§ Mr. Whitbread
presented a Petition from Mr. Henry White, Proprietor of a Sunday Newspaper, called "The Independent Whig," a Prisoner in Dorchester gaol, for a libel. The Petition, he observed, complained of grievances sustained in the course of the trial and afterwards in the gaol. The Petition was brought up and read by the clerk as follows:
"The Petition of Henry White, citizen and stationer; Sheweth, That your Petitioner is the sole proprietor of the Independent Whig newspaper, which, from its first commencement, has been, and still is, printed at No. 23, in Warwick-square, within the said city of London: and that your Petitioner is now a prisoner in the county gaol of the county of Dorset, in pursuance of the Sentence of the Court of Pleas, held before the king himself at Westminster, (usually called, the court of King's Bench) which sentence was pronounced at Westminster, a place not within the said city of London, contrary to the rights and privileges of the citizens of the said city.
"Your Petitioner published in his said newspaper in Warwick-square, within the laid city, in the months of December, 1807, and January, 1808, certain Letters, signed "T. C." "Humanitas," "A Sea- "man," and "Junius," for which publications criminal informations were filed, ex officio, against your Petitioner by the king's attorney-general, in Hilary term, 1808, at Westminster, a place without the said city of London, although a Grand Jury of the citizens of the said city was sitting at the very time within the said city; in which informations, it was alledged that the above named publications were scandalous and malicious libels, though the said publications were not alledged to be in any particular false or untrue. Now it is not only the privilege of the citizens of the said city, but the acknowledged right of every subject of the British empire who is accused of crimes and misdemeanors, to have an indictment preferred before the best men of his county, who are to determine whether there be sufficient cause to put him on his trial; but, as a Grand Jury is not always sitting, and as danger might arise to the state in some cases from the delay of assembling a Grand Jury, the practice of filing a criminal information before the king at Westminster has been tacitly conceded to the Attorney-General of the crown, at such times as no 176 Grand Jury shall be assembled; but it has never been contended that the subject should be deprived of the privilege of having his case submitted to a Grand Jury of his county, before he be put upon his trial, except where pernicious consequences to the state would arise from the delay of calling together such Jury; but this could not obtain in the case of your Petitioner, because a Grand Jury of his county, namely, of the city of London, were actually sitting at the very time the criminal informations were filed against him at Westminster.
"Your Petitioner humbly craves leave to remind your honourable house that it was not even alledged in the said criminal informations that the matter which gave rise to them was false or untrue, though the matter was alledged to be scandalous and malicious, and that it was the usage of the court of King's Bench, till within the last forty years, not to permit any information to be filed for libelloas matter, which was not alledged to be false as well as malicious, and indeed the most recent determination on the subject coincides with the opinions uniformly maintained by our ancestors; for, in the case of sir John Carr, and Hood and Sharpe, the plaintiff did not recover in action for a publication which was true, though admitted to be malicious and injurious.
"Your Petitioner having had a criminal information filed against him, of the nature, and under the circumstances above stated, the Solicitor for the crown moved for a Special Jury, to which motion the judges of the court of King's Bench acceded, and a Special Jury was awarded of such freeholders who were entered in the freeholders' Book belonging to the Sheriff, with the addition of Freeholder and Merchant, which Special Jury was struck, not by the Sheriff, but by the Master of the Crown-Office, who is a servant of the crown,—the prosecutor in this instance;—and the names were not taken as named by the said Master, but several were passed over after he had named them, because he stated them to be not likely to attend, thereby subverting one of the principles of British justice, which directs that a Jury shall be impartially selected, and attendance enforced by fines of the court; and, indeed, the Master of the Crown-Office might prevent all impartial persons from being summoned on a Jury destined, to try between the crown and the subject, if every name be passed over which he 177 determines to be a person not likely to attend. And this conduct of the Returning Officer is conceived to be strong presumptive evidence that he knows the characters of the persons to be summoned, and has the power of acting with partiality, which power is contrary to the constitution of these realms, and is strongly guarded against by the laws, in cases where no attempts are made to take the trial out of the common course of justice; for, the Under-Sheriff (who summons Juries) cannot continue in office longer than one year, nor be re-chosen till after an interval of two years, lest, from his familiarity with office, he may be enabled to select a partial Jury.
"Your Petitioner also reminds this honourable house, that, by a statute of the 7th and 8th year of king William 3, (ch. 32), it is enacted, that "every summons of any person qualified to any of the aforesaid services, (namely, serving on Juries), shall be made by the sheriff, his officer, or lawful deputy, six days before, at the least;" but in the case of your Petitioner, the summonses to the Jury were not delivered six days before the day of trial, nor five days before, nor four days before; from which cause your Petitioner was not able to avail himself of a trial before a Special Jury, contrary to the rights of the subject and the law of the land and this circumstance of not summoning the Jury six days before the trial, contrary to the positive and explicit enactments of the law of the land, has prevented your Petitioner from bring tried by a Jury of such men as had been assigned him; as his peers.
"Your Petitioner was not tried by a Jury of his peers; for, as the court of King's Bench had ruled that a Jury of freeholders and merchants were his peers, it necessarily follows that those who were neither freeholders nor merchants could not be his peers; and yet those who were added to the Special Jury were neither freeholders nor merchants, and therefore were not his peers:—and of a Jury composed of men who were all of them neither peers of your Petitioner, nor peers among themselves, a verdict was given.
"Your Petitioner also craves the attention of this honourable house, to the words used by sir Nash Grose on the trial, in his charge to the Jury, which your Petitioner humbly presumes to have been a deviation from the spirit of the constitution, which enjoins lenity and impartiality 178 to form the basis of the conduct of every British Judge, to have been also inimical to the letter and fair interpretation of the Act of Parliament entitled, "An Act to remove doubts respecting the functions of Juries in cases of Libel," which Act directs, that "on every such trial, the Court or judge before whom such indictment or information shall be tried, shall, according to his or their discretion, give their or his opinion and directions to the Jury in the matter in issue between the king and the defendant or defendants, in like manner as in all other criminal cases."—Your Petitioner therefore prays to submit, for the decision of this honourable house, the propriety or impropriety of the following words, as used by sir Nash Grose on this occasion, and which instead of delivering an opinion or direction, "as in all other criminal eposes," are conceived by your Petitioner to be unprecedented in the annals of modern British jurisprudence. The words that your Petitioner complains of, and which were taken down at the time by Mr. Farquharson, the short-hand writer, are as follows:—"In order to shew that they are most wicked, gross, and abominable Libels, it is only necessary to read, not all, but one or two of them. But, gentlemen, under this Act of Parliament, I am to give you my opinion upon these publications, and I have no hesitation in saying that any thing mere libellous I never heard read: in my opinion. they are gross, scandalous, and abominable Libels!"
"Your Petitioner humbly submits to the benignity of this honourable house, whether these words ought not to have been considered, in strict impartiality, as sufficiently strong, in giving the opinion and direction of the Judge as warranted by the Act of Parliament above alluded to, without the addition of the following unprecedented expression:—"But, really, gentlemen, I think it will be throwing dust in your eyes if I say I entertain the least doubt on the subject."—Your Petitioner humbly submits, whether an opinion and direction of the Judge thus given, and that without having read a tittle of the Libels in question, or the defence that had been urged to the Jury, comes within the meaning either of the letter of the law, or the spirit of the British constitution. And the necessity of a Jury being peers among themselves as well as peers to the defendant, has been ever recognized and insisted upon by the British constitution, 179 because, otherwise, the master and the servant, the creditor and the debtor, the employer and employed, might be inclosed in the same Jury box, in which case it would imply an absurdity to assert that such Jury were peers among themselves; for, the same individuals could not at the same time be both dependants and equals; and, if a Jury be not peers among themselves, they cannot all be peers to the defendant, and their verdict may not be a free and unbiassed verdict.
"And forasmuch as it is enacted by the Bill of Rights that "Jurors ought to be duly empannelled and returned;" and as no Juror can be duly returned who is not summoned six days at least before the day of trial, the Jurors summoned not four days before the trial of your Petitioner, were not duly returned.
"And forasmuch as it is the privilege of the citizens of the city of London to be tried and adjudged within the said city, though your Petitioner has been tried (if the issue committed to a Jury not duly impannelled and returned can be called a trial), yet he has not been adjudged within the said city, contrary to the privileges of the citizens of the said city, and, therefore, such judgment being contrary to these privileges, is contrary to the law of the land, which has confirmed and established them.
"And forasmuch as your Petitioner, if adjudged within the said city, could only have been adjudged to confinement within the prisons of the Sheriffs of the said city and county of Middlesex, it follows that a judgment which implies banishment from the said city, as well as confinement, is contrary to the lawful privileges of the citizens of the city, and when pronounced on a citizen in a place without the said city, for an alleged offence committed within the said city, is believed to be a violation of the law of the land, which acknowledges and confirms these privileges.
"Your Petitioner also humbly craves leave to observe that the measure of punishment assigned to him for the publication of the said Letters is equal to the measure of punishment assigned in any case where the libel was proved to be false, though the truth of the publications of your Petitioner has never been called in question.
"Your Petitioner also humbly states, that, when he was removed from the prison of the court of King's-Bench to the county 180 gaol of Dorchester, he was consigned to the magistrates' custody, as will appear from an Older of Sessions, made at the Midsummer quarter sessions for the county of Dorset, respecting his treatment in confinement, though by the law of the land, he could only be committed to the Sheriffs' custody, (allowing for the sake of argument, that he might be imprisoned in a different county from that in which the offence was committed, and it is allowed for the sake of argument only). Now, the magistrates of any county have no jurisdiction except what is given them by statute, and no jurisdiction is given to them by statute over a person convicted of misdemeanor, who is, during his confinement, emphatically, a sheriff's prisoner. Your Petitioner, therefore, is placed by his sentence in a situation which the law knows not, and therefore he prays the consideration of his case may receive the attention of this honourable house, not on his personal account, but as his treatment may be drawn into a precedent inimical to the freedom and liberties of the subjects of these realms.
"That your Petitioner further submits to your honourable house some peculiar privations and hardships to which he has been subjected since his confinement in Dorchester gaol, which commenced on the evening of the 6th of July, 1808, and when your Petitioner was labouring under a very severe and afflicting state of illness, which had been proved to the Judges of the court of King's Bench by the affidavits of four most respectable medical gentlemen. That notwithstanding this infirm state of your Petitioner's health, he was denied, by the controlling magistrates of Dorchester prison, for the interval of more than three months, viz. from the 6th of July to the 15th of the ensuing October, all access to the open air, even to the taking ordinary exercise, unless your Petitioner would take the same in a small circular stone yard, which was allotted in common for prisoners who were sentenced for fines, such as smugglers and those who had evaded the excise laws, &c. &c. Your Petitioner's complaint being a long standing bilious disorder, attended with a complication of alarming symptoms, among which he was subject to an almost continued swimming in the head, and a partial stagnation of the circulation of the blood in his feet, he found, after trial, that the walking on the stones and the circular direction in which he was obliged to walk 181 aggravated his disorder to such an excess, that he was obliged to abandon the attempt; and, although he represented this frequently, by letter and otherwise, to the visiting magistrates, and intreated that he might be permitted to walk in the garden, as Mr. Gilbert Wakefield, Mr. Redhead Yorke, and all other prisoners in similar situations, had been permitted to do before him, this was refused him, until he partially obtained the indulgence, through the benevolent interposition of Mr. Calcraft, one of the magistrates for the county, and the representation being first made to him by the medical gentleman attending the prison, that he considered your Petitioner's being permitted to walk in the garden essential to the preservation of his health. In consequence or this interference and this representation, your Petitioner has, since the 15th of October last, been permitted to walk in the garden, in company of the gaoler of the prison, for the very limited space of one half an hour every day, and which limited indulgence your Petitioner's health has been such as almost to preclude him from availing himself of. Your Petitioner, therefore, humbly submits to this honourable house that such extreme coercion and restriction is not necessary for the secure confinement of your Petitioner, and is inconsistent with the benign spirit of the British constitution. Your Petitioner, in candor and justice, begs leave to state that he considers this restriction as being personally cruel towards him, because, since his confinement in the gaol of Dorchester, an unlimited indulgence in walking in the garden has been extended to a felon, by the partial courtesy of the magistrates, and your Petitioner having given no cause of complaint against the propriety of his conduct, to justify such restriction.
"In addition to this heavy grievance, your Petitioner begs to state, that his family consists of a wife and two sons:—that, from the enjoyment of ail personal intercourse with one of his sons, whose business confines him in London, he is wholly-bereaved, by the great distance which separates them:—that his wife and his other son have taken lodgings at Dorchester, at an immense increased expence to your Petitioner, for the purpose of mitigating his calamity as much as possible by the comforts of their society; but hitherto they have only been admitted, by the order of the magistrates, alternately to visit him for three days in a week, and each day limited to eight hours, with the exception of 182 your Petitioner's wife, for some weeks past, having been permitted to be with him on a Sunday, and during the night, in consequence of the medical gentleman attending him having given it as his opinion that it was indispensibly necessary, on account of the alarming state of your Petitioner's health.
"Your Petitioner trusts that this honourable house will liberally consider what, a cruel aggravation this must be, merely arising from the local rules of the magistrates, and neither expressed in the sentence, nor warranted by the bill of rights; for, surely every father and husband must deem that imprisonment cruel which confines a man for three years, and allows him only twenty-four hours in each week to have intercourse with his wife and child. That your Petitioner has confined himself, in these instances, to a simple statement of facts, and commits the whole to the benignity, discretion, and wisdom, of your honourable house.
"Your Petitioner submits to the consideration of this honourable house, the extreme severity of the sentence passed upon him, as being contrary to the rights and liberties of every British subject in these realms, guaranteed to them by the Bill of Rights, which expressly says, "that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted," your Petitioner having already suffered, under a state of severe and dangerous illness, upwards of nine months imprisonment and banishment in Dorchester-Gaol, from his home, his business, and the County where he was tried, and which has already subjected him to a pecuniary expense of upwards of 500l., and which, unless migitated by the interference of this honourable house, it is more than probable will prove fatal to the life of your Petitioner, and ruinous to his circumstances, and future welfare of his family.
"And your Petitioner most humbly craves that he may be permitted to prove the truth of his allegation before a Select Committee, or at the bar of your honourable house, and he prays such relief as in your wisdom shall seem meet.
§ Mr. Whitbread
said, that he meant to do nothing more at present, than to move that the Petition do lie on the table. He could not of course pledge himself for the accuracy of the allegations, either as to the circumstances at the trial, or as to those which had taken place during the 183 confinement of the Petitioner. Yet as the Petition, though it contained some strong statements, was couched in terms respectful to the house, he thought it his duty as a member of parliament to present it. For what had been stated by his hon. friend (Mr. Calcraft)on a former occasion, when this subject was under consideration, he had the utmost respect. But at the same time, in justice to the feelings of the friends of that eminent scholar, Mr. Gilbert Wakefield, who was beloved and esteemed by all who knew him, he must state what they had said as to the accusation against Mr. Wakefield of having abused the indulgence granted him, by exciting sedition in the gaol. He could not of course, pledge himself for the correctness of their assertions: but he was informed by them, that no complaint had ever been made by the magistrates on that head.—With regard to the method of striking the Special Juries and other practices said to prevail in the courts, he could say nothing of his own knowledge. But he did understand that improper practices had prevailed, and that there was some danger that the error might be fallen into of rendering punishment so severe as to convert the person punished into an object of compassion. On the subject of the sentence passed on the Petitioner, however, he would say nothing at present, because the subject had been carried before the house of lords by a writ of error. It would be proper to wait for the issue of that proceeding, unless some unreasonable delay took place. But, with regard to the mode in which Special Juries were struck, he must advert to that point, without meaning to assert positively what he did not know of his own knowledge, and was not ready with proof to substantiate. He was informed that the master of the Crown Office might pass over any name that he pleased by saying that such persons would not attend, a practice which placed it in his power to appoint any Jury he chose. If that practice did actually prevail, it was a most incorrect one, and ought to be prevented. Another practice which he was given to understand actually prevailed, or had only lately been abolished, was, that in cases between the crown and the subject, the Jury if they found a verdict for the crown had two guineas, whereas if they found a verdict for the subject they had only one gainea. This was a most indecent and improper practice, which ought to be abolished if it existed; if it 184 did not, the public ought to he satisfied of that fact. Another practice of which he was also informed was, that Jurors if they gave verdicts for the crown were summoned over and over again; but if they found for the subject they were never again summoned. Another practice, which he could only state from information, was, that the crown always paid double fees to the officers of the Court. If this was not true, it would of course be contradicted. But as the circumstance was at any rate believed by some, it ought to be stated, if only in order to be contradicted. He stated them besides because they might possibly, at some future period be the subject of a motion in reference to this business of Mr. White. If these things should turn out to be well founded, this would form the ground of a motion for referring the Petition to a committee; if there was really no grievance in the case, he should be content with allowing the Petition to lie on the table. There was another circumstance which he ought to have noticed before, the confinement in a distant gaol. This was a great aggravation of the sentence; and if it might be imposed at the discretion of the court formed a grievous hardship. Confinement for three years was at best a most heavy punishment; but when it was aggravated by sending the prisoner to a distant gaol, the punishment, in his opinion, became severe in the extreme; and it was certainly a subject which deserved the most serious attention of the house.
§ Mr. Calcraft
said that he would take his full share in endeavouring to remedy any improper practices, whether confinement in distant gaols or any others, which should be proved to exist. But at present he only rose to do justice to himself and the magistrates of Dorchester, by giving a fair and candid statement of the circumstance which he had formerly mentioned relative to Mr. Gilbert Wakefield. He had been informed before, and had stated in the house, on the authority of most respectable men, that Mr. Gilbert Wakefield had made an improper use of the indulgence allowed, He had since inquired more particularly into the subject, and though he was as unwilling as any man to cast any imputation on the memory of that eminent scholar, or to hurt the feelings of his surviving relatives and friends, yet he must say that he had found that Mr. Wakefield made use of the indulgence shewn him to excite a spi- 185 rit of discontent among the other prisoners. The garden where he was permitted to walk was only separated from the space allotted to the other prisoners by a stockade, which did not prevent communication, and of this Mr. Wakefield had availed himself for the purpose mentioned. The present Petition was nothing more than a modification of what had been stated in the former petition. It now appeared that Mr. White was permitted to see his family for 48 hours in the week instead of 24, as formerly stated, and that his wife slept with him every night, at least was allowed to do so. He (Mr. C.) and the other magistrates, did all they could, compatible with their duty as magistrates, to give Mr. White all the comforts that could be enjoyed by a person in his situation, and he must say, that they had a right to expect some appearance of gratitude instead of complaints. There was not in the country a gaol more comfortable than that of Dorchester. The room which Mr. White occupied was better than those which were generally assigned to officers in barracks. Mr. Calcraft also stated, that the magistrates of Dorset considered it as a great grievance to have persons sent to the gaol from distant quarters. The gaol was not built for that purpose, and they were put to a great ex pence by this practice, und also rendered subjects of obloquy.
§ Mr. Windham
knew nothing of this matter except from the allegations of the Petitioner himself. He agreed with his hon. friend, that if there was an unnecessary severity in the case, and if the practices to which he adverted did actually prevail, that these were proper subjects for the consideration of the house. But the allegations in the Petition, as far as he could follow them, (having however come into the house only when it was in the act of reading), amounted to no more than this, that a gaol was a gaol, and that punishment was punishment. He really always understood that confinement was punishment, and it appeared that this confinement was not unduly severe with regard to him. Mr. White said that walking in a circular space aggravated his disorder; but he saw no reason why Mr. White should not square the circle if he pleased. But how came it that all Mr. White's complaints about this confinement related solely to himself. Others were in as bad a situation as be was, and if there was any improper severity, the remedy ought to 186 apply to the whole. Mr. White appeared to treat in the most contumelious stile, those who were confined in the same goal, for breaches of the revenue laws, for non-payment of fines, and perhaps for debt; thinking that he was very hardly dealt by in being put upon a level with such persons. Yet, while he indulged in these aristocratical feelings, it was to be recollected, that he was confined for a crime, of which he was at present to be presumed guilty; for a crime too, which might possibly be of a most atrocious nature, while some of the debtors confined in the same gaol might be not only innocent, but meritorious persons, who had been ruined by the failures of others. It was curious to observe this sort of feeling breaking out in an advocate for liberty and equality, and he confessed, that his democratical blood, of which he hoped he had a proper share, began to boil with indignation to hear Mr. White complain so much of his own case, while he appeared to regard with so much indifference the situation of those who, as far as the house knew at present, had so much more reason to complain, provided there was any ground of complaint at all. This was the state of the case, even on Mr. White's own shewing, when viewed comparatively. But what was it absolutely?—It appeared that he was permitted to walk half an hour a day in the garden, accompanied by the gaoler. Could the gaoler spare half an hour a day to give the same indulgence to the other prisoners? Mr. White, too, had the society of his wife and family during a considerable part of the week, and seemed, in every respect, to enjoy greater privileges than were enjoyed by his fellow-prisoners. Instead, however, of being grateful for this, he only indulged in complaints against his benefactors. If there were any ground of complaint at all, it was that he himself was treated with more indulgence than, in justice to others, he ought to be; and, if there was any reason to find fault with the magistrates, it was that they did for him what they could not do for others.
The Attorney General
observed, that if the subject should be again brought forward, justice would be done to the officers of the courts. The hon. gent. (Mr. Whitbread) had stated certain practices, which, if they had existed, would unquestionably have deserved the severest censure. But on these points his hon. friend had been very much misinformed. He said, that he had been informed, that when a jury 187 found a verdict for the crown they received two guineas; and only one guinea when they found a verdict for the subject. This, certainly, would have merited the severest reprehension. But the person who told him of the practice must have known that it did not now exist. It had prevailed once in the Exchequer; but it had been discontinued almost before his memory. This the person who gave him the information must have known, for the same means that brought its previous existence to his knowledge, must have shown him that it did not exist now. His hon. friend (Mr. Whitbread) must have asked the person who gave him the information, whether it now existed. His hon. friend must have said, that such things were not to be lightly stated before the house of commons; and that before he stated them he must be well assured of the facts. He was satisfied his hon. friend thought these practices did exist, otherwise he would not have stated them; but he must say, that he had been peculiarly ill informed. It was enough for him, however, to state, that the practice did not exist now; and his worthy friend who preceded him in his office, would, he believed, be ready to say, that it had not existed in his time. He made these observations because he should be sorry that such a statement as this should pass uncontradicted. His hon. friend also said, that when jurors gave verdicts against the crown, they were always, struck out of the list, and never summoned again. He did not strike juries, and therefore could not speak on the subject of his own knowledge, but he firmly believed that the practice did not exist, and that no officer of the court dared do it without risking the loss of his place. He was anxious that the house should be convinced that his hon. friend had been imposed upon.
§ Mr. Whitbread
said that the Attorney-General had misrepresented him. He had stated that the practice of giving two guineas to Jurors who gave a verdict for the crown, either existed at present or had only been lately discontinued. This was his information, and it appeared to be correct, for the practice had existed; and the learned gent, had admitted that it was a gross abuse. He did not say that Jurors who gave verdicts against the crown had been struck off the list; he had only said that it so happened that they were never summoned again; and the learned gent, upon inquiry might find that statement to be correct.
said that he had given verdicts against the crown, but that he had been constantly summoned.
§ Mr. Ashley Cooper
was sorry to hurt the feelings of the relatives of Mr. Gilbert Wakefield, but injustice to the magistrates of Dorset he must say, that he had abused the indulgence which he had met with in the manner stated. He then read a letter from one of the magistrates confirming this statement, and also stating that Mr. White had been asked before the commencement of the session, whether he had any reason to complain? to which he had replied, "None whatever."
Sir Francis Burdett
observed, that this was one of the most important cases which had ever come before the house. The Attorney General had admitted that the practice of giving two guineas to the Jurors when they found for the crown, once existed, and had only lately been left off; but he was sorry that he had not adverted to the other practices which the hon. gent, opposite had stated. He was surprised that he had passed over the great question as to the right of the executive to transport its subjects to any part of its dominions at its own discretion. He should have expected that he would not have passed over this. He thought, indeed, that this point had been settled at the Revolution; and he regretted that he had heard no opinion on the subject from him. He had also passed over another most important point; the allegation that Special Juries were struck at the discretion of the Crown Office. The ex officio informations of the Attorney General he considered as not more dangerous to the liberty of the subject, than the giving two guineas instead of one to those jurors who found for the crown. Here, in the case of libel, for instance, we found the crown appointing accuser, judge and jury! Into the great constitutional point of sending subjects to distant gaols, he would not now enter, as it was to be discussed in another place. But he could not help adverting to the extreme hardship of this practice, which totally altered the sentence of the law. He agreed that an imprisonment of three years was almost an unprecedented thing of late. The hon. baronet then remarked with regard to what had fallen from the right hon. gent, below (Mr. Windham), that Mr. White had only been convicted of a misdemeanour, which, though certainly a crime, had always been distinguished from felony. Mr. White, there- 189 fore, might have reason to think that he ought to be less strictly confined than some others.—There was another consideration which had entirely escaped the right hon. gent., and that was, that the other prisoners belonged to the county, and in that respect were less hardly dealt by than Mr. White. The hon. baronet next observed, that it would be in the power of the crown to ruin any particular county by sending thither all the prisoners of the nation. He would venture to say that this was not law, and he was glad that the subject had been brought forward by a gentleman who he was sure would do it justice.
The Attorney General
in explanation said, that Mr. White had not been sent to Dorchester, merely by the discretionary power of the executive government; but that this formed part of the sentence of the court. He stated, that the reason for his not averting to the other abuses mentioned by the hon. gent. (Mr. Whitbread), was, that these were to come forward at some future period. He had only adverted at present to the practices which had been stated upon grounds not arising out of the Petition.
The Chancellor of the Exchequer
remarked, that all arguments of the hon. baronet were founded on the misconception that the prisoner White had been sent to Dorchester by the executive government; whereas, the fact was, as had been stated by his learned friend, that this formed part of the sentence of the court. When the hon. gent. (Mr. Whitbread) made a statement, injustice, as he said, to the relatives and friends of Mr. Wakefield, he ought to have recollected that justice was also due to the magistrate.—The right hon. gent, observed, that before the complaints in the Petition were token up by the house, it would be proper, if not necessary, to shew that the individual had resorted to the ordinary means of procuring redress. If the house encouraged this practice of petitioning, without its being shewn that other means of redress had been attempted in vain, it might be made a vehicle of slander. The words of a Judge, giving his opinion in the manner prescribed by an act of parliament, had been complained of, because that opinion was, that the libel was the grossest that had ever been published. And supposing it was so—for so it ought to be taken at present—the house ought not readily to give way to these false accusations. He would, however, not oppose the laying the Petition on the 190 table; though lie hoped it would form, no ground for any subsequent proceeding.
Sir Francis Burdett
in explanation, said, that he had not spoken under a misconception. He knew that the sending the individual to Dorchester constituted part of the sentence of the court; but the government having the power of appointing accuser, judge, and jury, any accused person was, in effect, placed at its discretion. These sentences were not, indeed, unprecedented, but they were new since the Revolution.
§ The Petition was then ordered to lie on the table.
§ Mr. Whitbread
said he had another Petition from John Harriot Hart, a person confined in Gloucester gaol for the same offence, and who was tried at the same time as Mr. White, as the Printer and Publisher of the Independent Whig. There were two circumstances mentioned in this Petition, which appeared to him to be very severe, and somewhat extraordinary. He complained, that he was prevented from using any fermented liquors. This he thought very hard, for, in many instances, such liquors were deemed absolutely necessary for the preservation of a man's health, and therefore the indiscriminate and total denial of them seemed very harsh. Another complaint was, that all letters and papers sent to him were subject to inspection. This was very different treatment, and much more severe than that of Mr. White, and he was surprised it was permitted, as justice seemed to say decidedly, that for the same offence there should be the same measure of punishment. He would not say whether he should bring forward any motion on the subject till the question in the house of lords was determined; but he hoped that in the mean time those who had it in their power would take care that justice should be fairly dispensed. In allusion to what had fallen from an hon. friend of his on the other side of the house, that he was surprised he would present a petition from persons who were of that description, viz. libellers, his answer to this was, he thought that a strong reason why he should bring it up; for obnoxious persons were generally those seized on by the executive government, and were the means by which such proceedings creep 191 into practice, and which might afterwards become detrimental and injurious to the subjects in the general.—
§ The Petition was ordered to lie on the table.