§ Mr. H. Martinmoved the committal of the Bill to explain and amend an act passed in the 39th year of his Majesty's reign, intituled; "An Act for the more effectual suppression of societies established for seditions and treasonable purposes, and for better preventing 715 treasonable and seditious practices," so far as respects certain penalties on printers and publishers.
The Attorney Generalopposed the clause of confining the magistrate to the levying of one penalty only for every publication, however numerous the copies. If this were to pass, the end of the law would be entirely defeated. No man wishing to circulate a mischievous paper, would be deterred by such a consideration.
§ Mr. H. Martinhad thought himself fully warranted in proposing that there should be only one penalty for each impression. He requested the House to observe, that all the penalties to which printers had been liable before the 39th of the king would still be in force after this bill passed into a law. There would be no additional security for libels. The object of it was to place the law on its former footing, or nearly so. To shew the propriety of this, he called the attention of the Mouse to the history of the act of the 39th of the king, the most material part of which it was the design of this bill to repeal. It had originated from the opinion, that extraordinary vigilance and vigour were necessary to counteract the machinations of seditious societies, who circulated a vast number of papers, the printers of which could never, without great difficulty, be discovered. It was therefore required that as an additional security every printer should be made liable to heavy penalties, who should neglect to put his name to whatever he printed. But, if a libel was published, the printer was still subject to prosecution for that offence as before. These societies no longer existed, and the act being calculated only to meet a particular exigency, ought now to be considerably modified, if not repealed. Let the House consider how the law stood, whilst such enormous penalties might be incurred even by inadvertency. The Attorney General himself, he believed, about two years ago, had found it necessary to bring in a bill to indemnify persons who had violated it. Was it fitting that the act should still be continued on the statute books in its present shape? that it should still be hung up in terrorem? and that bills of indemnity should be passed at the end of every two or three years, to afford some mitigation of the hardships resulting from it? If he could secure his hon. and learned friend's support, by consenting to enlarge the 716 penalty, he should be disposed to yield so far. But how was it possible to permit the law to stand as it was? to leave the printer liable to a penalty for every copy of a pamphlet, hand-bill, or any other publication, merely for neglecting to put his name to them? The business was under sufficient regulation without this. He had been answerable for his publications before the time of the seditious societies, whose practices had been the only ground upon which the additional regulations had been established. It was impossible for printers to carry on their business without being well known. They were registered with the clerk of the peace, and subject to other rules, which rendered it impracticable to conceal themselves. Would the Attorney General point out any instance in which a prosecution had failed from a difficulty of finding out the printer? It was not pretended at the time the 39th of the king was under consideration, that there was any difficulty of the kind. It rested entirely on the proceedings of the seditious societies, and they no longer existed: why, then should the business of printing remain subject to this severe hardship? Let the penalty be raised to 100l. it the Attorney General wished it; but surely it could not be permitted that a magistrate should have the power of imposing penalties to the extent, perhaps, of 20,000l. in a summary manner. No class of the community ought to be so much in the power of the magistrate. His wish was not to innovate, but to restore the law to what it was before, with the exception of this small penalty of 20l. for a whole impression, if published without the printer's name.
§ Mr. Giddyproposed that it should only be imperative on the magistrate to impose the penalty for one copy—leaving it in his discretion to carry it beyond this, or even to go the whole length, according as the omission should appear to be an oversight, or to spring from bad intention.
The Chancellor of the Exchequerthought the penalty as proposed by his hon. and learned friend who brought in the Bill would be entirely useless. It would do nothing in the way of preventing the secret circulation of mischievous and dangerous publications. It would only affect those who might err, not from dishonest intention, but inadvertency. The penalty of 20l. or rather the risk of incurring it, would be no check upon those who had an extensive mischievous object in view. The 717 proper course would be to negative this clause,—and amend the other two, leaving a discretion with the magistrate to raise the number of penalties, in cases where it should appear just and proper. The magistrate would then impose one or more penalties, according to the circumstances of the case, and his decision would be subject to revision by an appeal to the sessions. In this state they might be content to leave the law. The quarter sessions, however, not to have the power of augmenting the penalties, but merely to correct the sentence of the magistrate in cases of excess. Where pamphlets or other publications were of a seditious and mischievous tendency, the whole of the penalties might thus be imposed, while other cases would be open to mitigation.
Lord Folkestoneobjected to this proposition, as lodging an enormous power in the hands of the magistrate. The House ought to pause before they armed a magistrate with the power of fining to the amount of from 20l. to 20,000l. according to his view of the offence. He approved the clause as brought in by his hon. and learned friend, or if he had any objection to the bill, it was because it did not go the length of repealing the 39th of the king altogether. His hon. and learned friend had very properly adverted to the history of that act. It was the last of a series, beginning with the 30th of the king, commonly known under the name of the Gagging Bill. That the act was passed for a temporary purpose appeared evidently from the preamble, and why should it be prolonged beyond the occasion? This power might perhaps afford some relief to the printers; but it was dangerous to allow it to exist. The best plan would be to repeal the act altogether.
The Attorney Generalobserved, that primers could not but be perfectly aware of the law. They were reading men, and therefore without excuse if they violated the act. But in cases of inadvertency and honest intention, the magistrate would have the power of mitigating the penalties. There might be such cases certainly, and therefore he would further propose, that the magistrates should be empowered to mitigate the penalty to not less than 10l. over and above the reasonable costs of the prosecution.
Sir Samuel Romillyunderstood the provision proposed, to be substituted for the clause under consideration to be this, that the magistrate might still if he pleased, impose 718 the full penalty for every copy. If this was the meaning, he must say, that the proposal was extremely objectionable. To say nothing of cases of inadvertency, suppose one of the worst description, where criminal intention was unquestionable, was it to be the law of this country that a magistrate might in a summary manner, at his discretion, impose penalties on a subject to the amount of 20,000l.? This was a sum which no Court would think of imposing even for a libel after conviction by a jury. A positive law made to prevent the publication of libel was to leave it in the power of a single magistrate to exact this enormous penalty. Printers, his hon. and learned friend had said, were reading men, and therefore inexcusable if they violated the law. But this law had been violated even by those particularly conversant with the law. Masters in Chancery had inadvertently issued printed warrants for attendance without a printer's name, and had been indemnified by act of parliament. Persons of the purest intentions were liable to these penalties. The law punished indiscriminately the criminal and the inadvertent. Nay, it bore particularly hard upon the honest and unwary. They attempted no concealment—while it might be difficult, perhaps, to get hold of the criminal and to levy the penalty from him. In this respect, as well as in many others, the proposition was very objectionable. Why should the most honourable and useful business of printing be subjected to such severe restraints? There were none such till of late; from the period of the Revolution and the establishment of king William on the throne, times which had been generally admitted to be the best of the constitution. On a particular emergency, extraordinary restraints might properly be imposed. The cause was temporary; the effect unfortunately was permanent. If his hon. and learned friend had proposed to repeal the act of the 39th entirely, he would have decidedly supported him.
Mr. Lockhartagreed with the noble lord that it would be inexpedient and dangerous to leave to the magistrate the power of convicting in penalties to an unlimited extent. It would be taking from juries the right of determining on libels of any description, and giving that right to the justices and to the courts of quarter sessions. To this he could never consent. Determined enemy as he was to the licentiousness of the press, he could never agree to 719 vest such a power in the hands of the magistrate and the court of quarter sessions. The only correction which suggested itself to his mind was to limit the extent of the penalty in which the magistrate should be empowered to convict. Perhaps 100l, might be found a proper limitation.
§ Mr. Martinbegged the Committee to consider what Would be the effect of allowing the excessive penalties which the present act permitted. The penalties did not belong wholly to the crown. A moiety went to the informer. If therefore the crown were disposed to remit its share of these penalties, a common informer might sue for his proportion, and this would operate as a perpetual imprisonment on the party offending. Now, it was well known that in cases of libel the term of imprisonment adjudged by the court of King's Bench, seldom exceeded two years. Let the Committee recollect the time and circumstances under which the existing act passed. Its object was to prevent the gratuitous distribution of papers of a seditious tendency, by certain societies, which were enumerated in the act. Those societies had ceased to exist; the evil to be apprehended must therefore have ceased to exist; and he was at a loss to discover on what principle the continuance of such severe enactments could be maintained. If continued at all, the extent of the penalty should be limited. What he was anxious to establish, was, that the offending party should be sued for only one penalty. If the single penalty at present enacted were insufficient, let it be increased. Although he should consent reluctantly, yet he would agree even to the extent of the penalty being made 500l. leaving to the magistrates the discretion of mitigating it to 5l. He would also propose that it should not be in the power of an informer, under any circumstances, if the magistrates were so ill advised as to levy the extent of the penalty, to prevent the crown, if it thought proper, from remitting the whole. He adverted to many cases in which the law might be, and indeed hail been, inadvertently violated; and particularly instanced one of an honourable member, a merchant of extensive dealings, who for many years had ignorantly violated the law in printing his bills of lading, &c and another of an hon. member, who when a candidate for the East India direction had violated, the law in a similar manner, in his addresses to the proprietors of East 720 India Stock. Would it be advisable to leave to magistrates the power of levying on persons so circumstanced, or indeed on persons otherwise circumstanced, the enormous fines, which, by the existing act they had incurred?
The Attorney General,in order to shew how willing he was to go along with his hon. and learned friend as tar as he could, proposed that the magistrate should, in no case, have the power of imposing more than 25 penalties of 20l. namely 500l.
§ Mr. Wilberforceapproved of the amendment, observing, that this was not the only way of punishing libel.
§ Mr. Martinand the Attorney General next agreed, that the magistrate should be allowed to mitigate to 5l.; that an appeal to the quarter sessions might be entered within 20 days from the time of the conviction; and that six days notice should be given to the prosecutor.
The House having resumed, the Report was ordered to be brought on Monday.