The Earl of Radnorsaid, he rose to move for certain Returns relative to the recent proceedings connected with the Post Office Department, which were of so much importance that every information ought to be afforded to the public on the subject. A Petition had been presented to the other House of Parliament from four persons, which stated that letters addressed to these individuals had been intercepted and opened in the Post Office; and an inquiry was made, whether that act was valid, and under what authority such a step had been taken? In answer, Sir James Graham, it appeared, had stated, that he had granted a warrant in respect of one of these individuals, but that that warrant had been withdrawn. From this, he (the Earl of Radnor) inferred that it was a sort of general warrant for opening letters; and he could imagine nothing more unconstitutional. The letters of individuals ought not thus to be exposed to scrutiny and examination. It had ever been the subject of boast on the part of Englishmen, more especially when travelling abroad, and observing the pro- 974 ceedings of Continental Governments, that letters in England were sacred—that they went through the Post Office perfectly free and unexamined —that they never were opened, or their contents sought to be extracted; but it now appeared that our Government also was invested with the power of opening any letters they pleased, under the authority of Acts of Parliament; and it was contended on the part of the Government that that power was not limited to the issuing a special warrant for the examination of a particular letter, but that the Secretary of State might issue a general warrant under which all the letters of an individual to whom it applied might be opened, delayed, and read, for so long as the warrant was not withdrawn. And further, whereas such opened letters used formerly to be sent to the party, with the distinct statement written on the outside of them, "opened and read by authority," it now appeared that this fair dealing was not observed, but that when the letters so opened had been read by the authorities, and such use made of them as is thought necessary, they are sealed again with the utmost care, so that it does not at all appear they had been opened, and so forwarded to the party without any intimation of what had taken place. Now, if this power was to exist at all, it ought, at least, to exist under some responsibility on the part of those exercising it; but exercised in the manner stated, under general warrants, limited to no particular letters and to no particular period, and the letters being sealed up again, so as to prevent the parties detecting the fact of their having been opened, there was no responsibility at all. The act was done in secret, and there were no means of making the person who issued the warrant, however unjust it might be, responsible. In order to understand how the matter as to these warrants, as to this Act of Parliament and its operation, really stood, he should move for a Return of the number of warrants that had been issued in this way. There was another matter of something the same nature that he wished to put a question about. The other day a foreigner, a Pole (Count Ostrowski) while seated quietly in his lodgings in Mount Street, Grosvenor-square, saw four men enter his room without notice, and was by them most unceremoniously arrested. He asked by what authority they proceeded, but they gave no answer, be- 975 yond intimating abruptly that they were policemen, of which, however, there was no external appearance, and then, having thus arrested him without any warrant shown on demand, carried him off. Now, had this gentleman resisted these men under such circumstances, even to the death of one of them, he would have been perfectly justified by the law. Nor, was this all, for having seized him, one of the men, before carrying him off broke open his writing-desk, and removed his papers which were taken with him to the police-office and handed over to the magistrate. The gentleman was released the next morning, after having been most unnecessarily and unjustifiably detained as prisoner for a number of hours—he did not recover his papers until after some delay, and then he found that one particular document of considerable importance to him had been withheld. It was generally understood that the papers in question, the papers, as he had stated of a Polish refugee, had been submitted in the meantime to the authorities at the Russian Embassy. Now, such proceedings as these appeared to him (Lord Radnor) to be utterly at variance with the principles of the British Constitution, and with the feelings of the British people. If there had anything really been alleged against this gentleman, subjecting him to the operation of the law, a regular Magistrate's warrant ought to have been issued for his arrest, and this warrant ought to have been produced; and even then no Magistrate's warrant could have sufficed to justify the seizure and detention of his papers, which could only have been legally done by a Secretary of State's warrant. He should like to hear from the Government some explanation of this very extraordinary proceeding. As to the other matter, the Post Office proceeding, he should move:
That an humble Address be presented to Her Majesty, for a Return of all Warrants granted by any Secretary of State for opening Letters at the Post Office, since the 1st of January, 1841, stating the names of the parties whose Letters were to be opened, and also giving the form or forms of the Warrants issued; and also a Return of the Number of Letters opened in obedience to the said Warrants, and of the Names of the Persons to whom the Letters were addressed.
§ The Duke of Wellingtonbelieved that if the noble Earl would look into the Statute Book, he would find that the power in question had been exercised by Secre- 976 taries of State ever since the reign of Queen Anne, under virtue of an Act passed in that Sovereign's reign, and latterly, at the time the Post Office underwent certain reforms, continued by an Act passed in the first year of her present Majesty, in words as nearly as possible those of the former Act. The various warrants issued in this extended period had possessed the same force, and had been framed in the same terms, as in the case referred to. He was sure their Lordships must feel it to be expedient that such a power should exist in one of the offices of Government, and if it were expedient that it should exist, then it should be exercised under his responsibility, and that your Lordships should not call for these Returns, or for any account of the exercise of this power unless some clear ground of complaint, some grievous wrong was shown; in such a case, doubtless, if it were demonstrated that a Secretary of State was undeserving of the confidence of the House and of the country, or that he had exercised his power indiscreetly or improperly, on any occasion, then indeed there would be ground for inquiry; but in the present instance, no such ground had been shown, and he, therefore, hoped their Lordships would reject the noble Earl's Motion, as unnecessary and highly inexpedient. In reference to the case of the person mentioned by the noble Earl as having been arrested in his lodgings by four policemen, really he did not think that House was the fit place for entering into a case of that description, nor were the whole facts of the case before their Lordships. All he need say about the matter was, that this person having, to say the least of it, committed himself in a very indiscreet manner, it was thought fit to bring him before a magistrate, that he might account for his conduct, and he was accordingly brought before a magistrate. As to the complaints made by this person, that his papers were abstracted from him against his will, exposed to the inspection of particular parties, and one of them withheld, these statements were positively asserted by the authorities who had charge of the matter to be totally without foundation. And supposing that any wrong had been done this person in the way he described, it was matter for a court of justice, and not in the first instance, at all events, for that House, The fact was, however, simply 977 as he had stated it; there were no papers seized, but the party gave a bundle of papers to the policeman who apprehended him and on his discharge the bundle was returned to him, just as he gave it, and no document whatever was withheld.
Lord Campbellquite concurred with the noble Duke in thinking, that whatever grievance there might be in the last case mentioned, it was matter for a Court of Justice, and would be much more satisfactorily inquired into before a judge and jury, than before their Lordships. A constitutional question, however, had been raised in the previous matter spoken to, which he thought deserved the prompt and serious consideration of the House. He had not been aware that the subject would be introduced that evening, but having seen it adverted to elsewhere, he had referred to the Act of Parliament under which the power in question was exercised. It was clear that such a power could only be exercised under an Act of Parliament, for the Common Law gave the Secretary of State no such authority. Under the Common Law letters were sacred. The noble Duke, however, was mistaken as to the nature of the power thus given by Parliament in the reign of Queen Anne, and continued under every Post Office Act from that time to the present, the latest Act on the subject being the 7th Wm. IV., and 1st Vic, c. 36. By the 2.5th section of that Act, it was made misdemeanor to delay or open any letter placed in the Post Office; but then came this proviso,—
Provided always that nothing herein contained shall extend to the opening or delaying of a post letter returned for want of a true direction, or of a post letter returned by reason that the person to whom the same shall be directed is dead or cannot be found, or shall have refused the same, or shall have refused or neglected to pay the postage thereof; nor to the opening or detaining, or delaying of a post letter in obedience to an express warrant in writing, under the hand (in Great Britain) of one of the Principal Secretaries of State; and in Ireland, under the hand and seal of the Lord-Lieutenant of Ireland.This was a sort of power to be construed strictly, and this provision would be construed strictly in a Court of Justice, if there were anything equivocal in its language, but this was by no means the case; for the plain distinct language of the provision was, that there should be a particular and express warrant for each 978 and every letter so opened; for any letter to be opened, there must be "an express warrant, under the hand and seal of one of Her Majesty's principal Secretaries of State." He (Lord Campbell) had no hesitation in saying, after a careful examination of the Acts of Parliament, that to open, detain, and delay letters under a general warrant, would be unlawful. And, as to the power really possessed by the Government, it ought to be exercised most cautiously—not to gratify the curiosity, much less the malignity, of any foreign state — but only in a case where the safety or honour of our own country was, upon good grounds, believed to be compromised by the individual against whose correspondence the warrant was directed. And even then, the warrant must be an express one against a definite letter, or it would contravene the Act of Parliament. The security of their correspondence was a distinction of which the people of this country had ever been justly proud, and he trusted that that privilege they were not destined to lose.
Lord Broughamdeeply regretted that this Motion should have been brought forward without any notice. [The Duke of Wellington: The noble Lord gave me notice of it.] He meant such notice as would have afforded noble and learned Lords an opportunity of looking into the law upon the subject. He (Lord Brougham) was now suddenly called on to say whether he agreed in this most extraordinary construction put upon the Act by his noble and learned Friend, who had, no doubt, duly considered it. But he (Lord Brougham), not having had time to consider it, was not prepared to say that he could go along with his noble and learned Friend. His noble and learned Friend said that the Secretary of State was to give a warrant for each letter, and was to define the letter which the warrant was to authorize the opening of. But how was it possible for a Secretary of State, let him be ever so acute and perspicacious, to know how many letters the suspected traitor was to receive on a certain morning, and also to know what kind of letters they were to be, what places they were to come from, what postmark they were to bear, what kind of handwriting they were in and paper written on, because all these things were necessary to be known to be able to give a warrant for each letter and to define the sort of letters to which the 979 warrants were to be applied? He (Lord Brougham) might come to the same conclusion as his noble and learned Friend, if he had time to consider the question. Certainly, if his construction of the Act were correct, the sooner a new act was passed the better. [Lord Denman remarked that the power had better be left out altogether.] The Lord Chief Justice, with a degree of celerity more characteristic of his legislative than his judicial capacity, observed that the power should be omitted. But he was not aware of how frequently cases might arise — although it was much to be desired that they never should arise—in which it would be necessary to take the precaution of obtaining information in this way. It was a very popular thing to declaim against the opening of letters in the Post Office, and he heartily wished that society was so constituted as to render all such legal remedies useless, because they were odious. No one had a greater horror of this power than he had, and no one rejoiced more at England being exempt from the stain of other countries in the proverbial security of her Post Office; but he was not prepared of a sudden to say that power ought to be taken away, considering that it had been exercised by so many Governments,—not only by Sir R. Walpole, in whose time it had been acted upon more exuberantly than at any other period,—not only by Lord Somers, at the time of whose Government this proviso was originally framed,—not only by the Governments of Mr. Pitt and Lord Grenville, the man who, of all others, had the greatest horror of any unnecessary interference with the safe custody of letters in the Post Office, but by the Governments of Mr. Fox, Lord Grey, and his noble Friend Lord Melbourne, in whose time this very proviso was continued as it was in former Bills, and precisely on the same footing as it had been since the reign of Queen Anne. If, upon inquiry, he should find that this power was quite unnecessary, and that it would be better, as his noble Friend suggested, to lop it off, he would be the first to alter and amend the law respecting it; but, without inquiry, he was not prepared to say that they had acted in error for one hundred and fifty years, and that no such power was necessary for the Constitution of this country.
§ Lord Denmansaid, that being here in 980 his legislative capacity he very much regretted that the Motion was to be resisted, for he regarded it as one of the very highest interest. A subject of such vast importance to the people having been brought before Parliament, it seemed to him most desirable that all the information that could be given on the matter should be immediately made public. This was the object of his noble Friend, and without casting any blame, or seeking to throw any suspicion over the manner in which the power in question had been exercised in the present instance, he certainly thought that the real and entire state of the case ought to be generally promulgated. If blame were attributable to the exercise of such a power he should share it, for soon after the change of Government in 1830 a new Post Office Bill being required, he took an active part in preparing it. The Clause containing the power he observed with a good deal of surprise, but as it was not thought necessary to deprive future Governments of the power, the Clause continued to be part of the Bill. He believed his noble and learned Friend (Lord Campbell) was Attorney General when the Act was passed; so that it was not in any degree a party measure. The question, he would repeat, was one of vast interest to foreigners, as well as to our own people, great alarm having naturally spread abroad on the subject, as recently brought before the public, and he, therefore, considered it most desirable that it should be fully discussed, and the matter be fully understood both by the Parliament and by the country. As to the construction to be put upon the provision cited, he was of opinion that the construction stated by his noble and learned Friend who last spoke was the right one; for he could not see how the Post Office authorities, when directed by the Secretary of State to detect the treasonable correspondence of A. B., could do so, unless they opened all his letters. It was obviously quite impossible for him, as his hon. and learned Friend said, to know which particular letter of A. B.'s, perhaps multitudinous correspondence occurring next Monday, contained the objectionable matter unless they opened all of them. He could not do this without opening every letter, and this circumstance increased the horror of the practice. Could anything be more revolting to the feeling than that any man might have all his letters opened in conse- 981 quence of some information respecting him having been given to the Secretary of State, and that the contents of those letters which he might have never received, might be made use of for the purpose of proceeding against him in a court of justice? The letters of a man might be opened, and he might not have the slightest intimation that he was betrayed. Now, is such a state of things to be tolerated in a civilised country? He would say, without the slightest hesitation, that it ought not to be borne with for a single hour. If his noble Friend's Motion were rejected, he hoped that his noble Friend would at once give notice of a Motion, so that the practice might be altered or abolished.
Lord Broughamobserved that he had not expressed any approval of the system; on the contrary, he distinctly stated that nothing but absolute necessity for the safety of the State would justify it.
Lord Campbellsaid, that he certainly was Attorney-General when the present Act was passed, and the Clause must have come under his attention, but he certainly was not aware that the construction which had been put on it that night could have been adopted. His own conviction was, that the Legislature only intended to give a power to the Government, in case it received information that a letter was passing through the Post Office containing matter dangerous to the State, to order such letter to be opened. He should not object, under such circumstances, that a letter specified in the warrant might be opened. If, however, it was intended that the construction of his noble and learned Friend should be put on the Clause, it would expose the correspondence of the whole country to the supervision of the Government. His noble and learned Friend said, that it was quite sufficient, if some suspicion was entertained by the Secretary of State with respect to any individual, to order all his letters to be opened. He believed that the Legislature never intended to give such a power to any Member of the Government.
Lord Broughamwould ask any noble Lord whether he had heard him say that some suspicion existing in the mind of the Secretary of Stale that somebody was doing something wrong would justify him in opening letters directed to any person? The Secretary of State was responsible for the Acts which he performed, and he 982 must have evidence to satisfy his mind, and to induce him to act upon it.
The Marquess of Normanbysaid, that as he had filled the office, the holder of which was responsible for the exercise of this discretionary power, he hoped that he might be permitted to say a few words. He could, better than noble Lords, who had not filled the office of Secretary of State, speak as to the frequency of resorting to the exercise of this power, and to the extent to which it was carried. He believed that he could speak with confidence as to the practice of his predecessors in that office, and also his successors, and that nothing induced the Secretary of State to resort to it but a belief that it was an extreme case of danger to the State. There might come a time when the Secretary of State might be in possession of information which he might feel bound to act upon, as to certain parties being engaged in a plot against the State; and it was possible that by the exercise of this power entrusted to him by the Legislature, that he might be enabled to prevent it. It might also be necessary to resort to it for the detection of some great offender. He spoke from his own experience when he declared that it was only in very rare cases that this discretionary power was exercised. He had no reason to believe that the present holder of the office had acted differently from his predecessors; therefore, with every desire for investigation as to the expediency of the practice, he did not see in the present case that any grounds had been laid for investigation. Now one word as to the practice. It must have been the intention of the Legislature, in giving this power, to leave it to the discretion of the Secretary of State to say what letters should be opened, for he could not conceive anything more inconsistent than to say that the power should only be exercised when the Secretary of State had received some information respecting some specific letter, of the existence of which he could not have been aware. The order must be to a certain extent an open warrant, but it was confined to as narrow a limit as sufficed for the exigencies of the case. It had been said that the letters were opened and destroyed; but he happened to know that the letters were always sealed up again, and sent to the parties to whom they were directed. He could most sincerely say, that if it were possible to relieve the Se- 983 cretary of State from this discretionary power, that the relief would be most grateful to that functionary. He could say for himself, and he sincerely believed for his predecessors and successors, that they never exercised this power unless in cases of imperative necessity. He knew of no case in which this power had been abused, and he did not believe that it was so now.
The Marquess of Clanricardeoffered no opinion as to the construction of the statute, but wished to call attention to one fact connected with the two cases mentioned by his noble Friend behind him, giving to the question a particular character and complexion. His noble Friend, who had just sat down, thought this power was only exercised when some extreme danger to the State was apprehended, at the same time stating that a case might arise which, though hardly coming within that definition, might justify the exercise of such power—if it were to be justified at all—which he (Lord Clanricarde) was not now about to question; but their Lordships would recollect that in the case which related to the Post-office, as well as the other case which related to the conduct of the police, both parties were foreigners, and that as regarded Mr. Mazzini there did not appear to be the slightest reason for supposing that he could have been engaged in any plot whatever against the State. Now, it was reported, he hoped, without foundation, that Mr. Mazzini's letter was opened at the suggestion of the Minister of another power, the Sardinian Minister resident in this country; but, certainly, whatever justification a Secretary of State in this country might have for opening letters upon matters of State strictly connected with the Government of this country, sure he was, that their Lordships felt, and that every Englishman felt, it was not right that a power intrusted to a Minister of this country for the welfare of this country, should be exercised at the pleasure, at the will, and to the advantage, if you please, of a foreign state. The same observations applied to the other gentleman whose case had been mentioned, M. Ostrowski. If any thing illegal had been done to him, he had his remedy at law. Upon that he (Lord Clanricarde) had nothing to say; but, considering the country to which that gentleman belonged, and the circumstances under which he was a resident in 984 this country, together with the fact of the late imperial visit, he would go so far as to say, that a degree of vigilance, even slightly beyond the law, ought to have been exercised, if they thought proper. Undoubtedly if any thing had happened to the imperial visitor, the consequences would have been horrible and frightful to the Poles themselves; and through humanity to others, as well as on account of what was due to the honour of this country, it was necessary to take every possible precaution against an event which there was no chance of occurring, but to the possibility of which, nevertheless, public allusion had been made. Now, this gentleman's papers had been seized; but upon what ground he (Lord Clanricarde) was at a loss to understand. Whatever might be the necessity for watching over this gentleman, he saw no possible necessity for seizing his papers. They ought not to have been seized without a warrant from the Secretary of State. But, being seized, the utmost discretion ought to be exercised regarding them. He had heard it reported, he hoped untruly, that those papers had been submitted to the Russian Consul-General,—no doubt an excellent man; but in such cases, if permitted to occur, it might be his bounden duty to make known the nature of the papers to the Russian Government, and, if other parties were compromised thereby in consequence of any other authority than a magistrate of this country having been allowed to have cognizance of those papers, what justice, he would ask, could be done to those parties living in another country, even by impeaching a Minister? He would ask, what redress, or he might say, what vengeance, could be obtained for the evils which the disclosure of those secrets might have brought on many families? He said this as respected the disclosure of the contents of the letters opened; but there was another point which had also obtained credit as a rumour, but which he hoped would turn out to be wholly unfounded. He referred to a Report that the letters had been opened at the instigation of a Foreign Power. He repeated his earnest hope that this would turn out to be untrue. With respect to the contents of the papers belonging to M. Ostrowski, he did trust that they had been read with due secrecy and discretion, so as to render it impossible that their contents should be known abroad. As the 985 subject had been brought under the notice of their Lordships, he thought they ought to know on what grounds this proceeding had been adopted, and whether the letters were opened by the authority of a general or a special warrant—whether general warrants for such a purpose were legal, and what were the circumstances under which these powers of a Secretary of State were generally used?
§ The Duke of Wellingtonobserved, that the noble Lord had referred to rumours as to the use made of these papers; now, he (the noble Duke) was enabled to state that there was no foundation whatever for those rumours.
§ Motion negatived.