INFORMATIONS EX OFFICIO FOR LIBEL.

HC Deb 28 March 1811 vol 19 cc548-612

Lord Folkestone

rose and spoke as follows: Mr. Speaker; At any other time I should have said with the leave of the Mouse; now after what we have seen this day, and on former days, I say with the leave of the minister, I will make the motion which has for some time stood in the order-book, that motion will be for "An Account of ail Prosecutions for Libel by Information ex officio since the 1st of January 1801, with all the proceedings had thereupon, specifying the dates of the publication of the said alleged libels, and of all the subsequent proceedings had upon each respectively." In calling the attention of the House to this subject, I must observe, that in my opinion, it is the bounden duty of the House to require of the Law Officers of the Crown the production of these papers, in order that the House may distinctly see, whether the privilege of filing these Informations has or has not been abused. Had this been likely to be the case, there would not have existed any necessity for me to enter at any great length into the subject; but as I am given to understand that an opposition to my motion is intended, I shall proceed to stale the reasons which have induced me to bring it forward, and the grounds on which I think it is absolutely incumbent on the House to support it. The extraordinary increase in the number of criminal Informations for Libel, during the last few years, is the principal ground of my troubling the House upon the present occasion. That these Informations have been much more numerous since the Learned Gentleman, the present Attorney General, over the way, came into office, than they were at any equal period at any former time, is a fact that cannot be contradicted. Upon referring to those sources which are open to every one, I find that in the course of the thirty-one years ending with the year 1791, there had been seventy such prosecutions instituted. Of those from 1791 to 1800, I have not obtained any account. From 1801 to 1806 there were fourteen such prosecutions; in 1807 there was not one: whereas, in the years 1808, 1809, and 18)0, during all which period the present Attorney General has been in office, there have been no less than forty-two Informations filed; the yearly average of Informations in the former periods being two; in the latter fourteen. (Hear! hear!) This increase some persons may endeavour to account for by the great increase of publications daily sent forth. To such an opinion I cannot subscribe, and I think it must be accounted for on other grounds. However the simple fact that so vast an increase has taken place of late, is, in my mind, a full and sufficient reason to call upon the House to require the production of these Papers. That increase must have arisen from one of two causes—either from an increased propensity on the part of the public press, to offend against the law; or from an increased eagerness on the part of the present Attorney General, to commence such prosecutions. If the former be the fact, the House will do well to consider what the circumstances are which have given rise to this prone-ness to offend. For it is clear, that it is not true, as is alleged, that the object of the public prints is to propagate mischievous doctrines, and to instil dangerous principles in the minds of the people. The object of these prints is rather to follow than to lead the public feeling. It was lately proved on the trial of the editor of the newspaper called "The Day," who was prosecuted and is now under sentence for a libel, that that very libel was inserted for the purpose of falling in with the popular sentiments, and of thus increasing the sale of the paper. The increase there-fore of libels is a proof of an increased disposition on the part of the people to adopt and fall in with these libellous sentiments; and I should then say, that if an inclination, favourable to the propagation of such doctrines, does exist among the people, it become" the duty of this House to investigate the cause of the discontent; for it is the general bent of the human mind, unless oppressed by great injuries, to remain contented with its situation; and nothing but real and serious injury can raise at once the cry of a whole country. It is, therefore, an object well worthy the attention of Parliament to inquire what are the increased grievances under which the people labour, and which have rendered popular publications that awaken afterwards the vengeance of the law. If, on the other hand, the increase of Criminal Informations has been occasioned by an over-anxiety to prosecute, it will then be proper for the House to call the Attorney General to account for his proceedings, and to make him shew upon his responsibility, on what principle it is, that ex officio Informations have been so frequently resorted to. The fact, that prosecutions of this sort have increased exceedingly and alarmingly under the present Attorney General, cannot be denied; and upon this simple fact, I would willingly have rested my case; but as I am given to understand, that the grant of these papers is intended to be refused, it becomes my duty to enter somewhat more into detail. In either case, whether of an increased disposition to offend, or an increased keenness to prosecute, I call upon the House to consider the great and extensive power given to the Attorney General by the privilege of filing Informations ex officio. Although, that privilege may have been extremely proper, and comparatively harmless, at a period when the Press was circumscribed and confined to a very few persons, yet now, when it is become so very extensive, and so many persons in every part of the country are concerned in the management of it; and when therefore this privilege and power of the Attorney General's attaches upon and affects so many more individuals; it becomes quite a different thing. Those Gentlemen who have not maturely considered the subject, cannot be aware of the immensity of power, which, under the existing state of the law upon this subject, is placed in the hands of the Attorney General, and how he is enabled to vex and to harrass those against whom he is disposed to file his ex officio Informations. In all other cases where an individual has to contend with the Crown, he is fortified by the rules and forms of the law, which rules and forms serve as a bar against oppression. In cases of High Treason for instance, cases of the highest importance to the state, the defendant has protection and support infinitely beyond what he has in any case of simple felony; and the reason of the thing I take to be this, not that the life of the sovereign is less fit to be protected by the law than that of any other individual, nor that the person who attempts that life is less an object of abhorrence and vengeance to the law, than a simple felon; but this, that the law contemplated the disadvantage under which an individual laboured, when contending alone againsd all the power of the Crown—a pigmy contending against the strength of a giant. And therefore the law has fenced the weaker party round with those forms which serve as a protection against the might of his opponent, in the same manner as the forms of this House were devised as the bulwark of a minority, against the influence of an overweening and overwhelming majority. But in cases of Libel, the accused has to contend with the same power, and' even in a more formidable shape, and without any of those advantages which are enjoyed in cases of Treason. I say that in cases of libel, this power is in a more formidable shape, because a prosecution for High Treason attracts universal attention, catches the watchfulness of the public eye, and the vigilance of the public will prevent any unfair or unjust treatment. But in cases of Libel, where the crime is comparatively so small, and where the punishment of death cannot be inflicted, the public does not watch all the circumstances with that interest which the former case excites. Just as all public writers always state that a great and glaring act of prerogative is less dangerous to the liberty of a people, than the secret workings of influence; so an individual prosecuted for Libel, deprived of that vigilance of the public eye which, were he tried for his life, would attend and support him; has to contend with all the power of the Crown, in a much more formidable shape than the person accused of the crime of High Treason.

But this is not the extent of the evil. The Attorney General has it in his power to file his Informations against whomsoever he pleases. He may go into court, and, on his mero ipsc dixit, he makes his accusation, and his accusation must be received. In all other cases justice is provided for in the outset. When a bill is presented to a Grand Jury, the accused is protected by the oaths of the Jury and of the Witnesses, and unless twelve of the Grand Jury agree to the probability of the charge, the accusation is dismissed. But, in cases of ex officio Information, no oath is necessary; the Attorney General may at once file his Information, and the Defendant stands charged with the offence.

And here, Sir, there is one point that ought not to be overlooked. It ought not to he forgotten that the Attorney General has a personal interest in these prosecutions, in consequence of the fees which he receives. I respect the situation of the learned Gentleman, and I certainly do not mean to impute to him so sordid a motive. I cannot bring myself to suppose that the fees have had any influence in the late extraordinary increase of these prosecutions; but arguing generally on the privilege, it must be apparent that an Attorney General may file Informations against every person he thinks fit, and that so far he is interested in multiplying his accusations. I will not ascribe such a principle of action to the learned gentleman opposite, nor to any man who could lay the slightest claim to elevation of mind or dignity of feeling. I am willing to believe, that when he filed these ex officio Informations, he was not actuated by any fondness for "base lucre." It is always unjust and ungenerous to fix such a motive upon any man, and in this I am sure the learned gentleman will be ready to coincide with me.

Sir, there is another most important consideration. The Information being filed, there is no limitation as to the time when proceedings shall be commenced. In cases of High Treason, the time is limited to three years. If the prosecution is not instituted within three years and a day, it falls to the ground; but with respect to these prosecutions by Information, there is no limit at all. The mode pursued, in this respect, with regard to persons attacked by way of Information, is peculiarly hard, because the whole criminality is confined to the publicity of the Libel at the time of its publication. Now, Sir, it is very possible, that a treasonable plot may be kept secret for three years; but, if it is not discovered during that period, and should afterwards be brought to light, the parties implicated cannot be punished. But not so as to the time of filing these Informations. Against the Attorney General there is no limitation: by virtue of his extraordinary privilege, an offence of three, ten, or twenty years standing may be thus visited; and what increases the hardship is this, that by Statute the accused are compelled to provide their accusers with the evidence against themselves; for by the 39th of the King, the printers and publishers of newspapers are compelled not only to give in their names to the Stamp Office, but also a copy of each of their papers.

And, Sir, as, on the one hand, there is no limitation of the time in which an Information shall be filed; so, on the other, there is no limitation as to the period when the accusation when made shall be brought to trial. The Attorney General may come into court, and put it off whenever he pleases. I believe there is a process by which the accused may force the court to entertain the question; but, unfortunately, it has been the custom for nearly one hundred years to try such Informations before a Special Jury. The full number of Special Jurors very rarely attend, and as the King alone has in these cases a right to pray a tales, the Defendant not having this advantage, and the number of Special Jurymen being always deficient, it is evidently in the power of the Attorney General to postpone the proceedings as long as ever he pleases. (Hear! hear!)

With respect, Sir, to Special Juries themselves, I conceive them to be a very great grievance. I will not enter upon the subject at present, because, on a future day, it is my intention to submit to the House a specific motion upon the subject. I will merely observe, that they were originally intended for quite different purposes and resorted to in cases of a totally different nature. In cases of public libel, it is peculiarly hard, that the defendant should be tried before a Special Jury. The individuals composing it, are generally selected by an Officer of the: Crown, and, in point of fact, most of them are persons connected with the Government Offices, and are therefore liable to an undue influence. Besides it is a matter of desire to be on the list from whom these, Special Jurymen are selected, as appears by the publication of sir Richard Phillips, late Sheriff of the City of London, who states that during his Shrievalty he received numerous applications from persons, who for the sake of the emolument derived from serving, are desirous to be put upon the list. Is it therefore unfair to presume, that this situation being thus an object of desire, the hope of retaining it, or the fear of being removed from it, may have some effect on the verdicts they give? that they will willingly forfeit this advantage by a want of compliance with the wishes of those who can appoint them and reject them; and who, be it always observed, is an officer of the Crown. They have accordingly always been made matter of complaint in those who may happen, to be tried by them. Moreover the act by which they are regulated, appears to me to be essentially violated in the manner in which they are now conducted. But the impropriety of introducing Special Juries into criminal cases is expressly marked by Statute; the law is jealous of them, and allows them no cognizance of causes affecting life or limb. The Liberty of the Subject is, Sir, no less valuable; and in truth, in some recent instances, the punishment which follows the verdict of these Special Jurymen falls very little short of affecting the life, as well as the liberty, of the person convicted. But, Sir, the grievance does not terminate here: for when a Defendant is brought up for trial, it has been ruled, that he shall not alledge the truth in justification of the supposed offence. That, Sir, is the modern law. In late years it has been determined by the Judges that truth is a libel; yet I could cite some of the best and most learned authorities, within the last hundred years, who held the direct contrary doctrine; and the whole doctrine as it at present stands is absolutely contrary to common sense. The first law relative to slander was enacted in the reign of Edward the first. But the provisions of that act went only to punish tales which were founded in falsehood. And the act of Scandalum Magnatum passed in the reign of Richard the second proceeded upon the same principle. That act was renewed in the reign of Philip and Mary; and again in the first of Elizabeth; and still in the false hood consisted the whole of the offence. Even at a later period the same principle prevailed. In the case of the Seven Bi-shops, Mr. Justice Powell stated it as his opinion, that in order to constitute the libel, falsehood was necessary. Lord Chief Justice Holt always held a similar doctrine. And therefore, I must observe that, although it has latterly grown into a principle, that falsehood is not necessary to constitute a libel, yet, according to the enactments of former days, the case was different. I know that now this-is the acknowledged law, and that when Mr. Fox's Libel Act was pending in the House of Lords, the Judges gave an unanimous opinion to that effect; and stated that the indictment might run verus libellus as well as falsas libellus; still, however, the doctrine is of modern date.

Sir; another very great hardship in trials for Libel, is, that the Attorney, whether the Defendant adduces evidence or not, assumes a right to reply. I know not whether this is customary in cases of Information filed in the Court of Exchequer, but I am sure it is not usual in courts of Nisi Prius. By this means the Attorney General has a very great advantage. In his opening Speech he may only charge one half of the offence, and, when he comes to reply he may introduce new matter, and thereby influence the verdict in a manner the most fatal to the accused, while there is no power given of answering the charge.—These, Sir, are the hardships sustained by the accused, before and at his trial; and great as these hardships are, they are rendered still more so by the uncertainty of the Law of Libel. The Judges not only differ from each other in the interpretation of the law; but the same Judge differs from himself at different times. The doctrine laid down by Lord Chief Justice Mansfield, in the trial of Mr. Home in 1777, at Guildhall, and that subsequently promulgated by Mr. Justice Buller; on the trial of the Dean of St. Asaph are totally different. In the former, Lord Mansfield left the alternative of guilty or not guilty on the whole case, to the Jury in the usual way. In the latter, Judge Bailer directed the Jury merely to fill up the inuendoes. Parliament felt the necessity of interfering, and the 32nd of the King was in consequence enacted, by which the Jury were made judges of the law as well as of the fact: the Judge, however, was to state his opinion of the law at his discretion to the Jury, the same as is done in other criminal cases. Sir, I do not conceive, however, that the spirit of that Act has been complied with by the Judges; for, in some cases, they have delivered their opinion in such a manner as almost to force it upon the Jury. I wish to speak with all due respect of persons high in judicial office; but I cannot disguise my opinion that in divers cases the judges have taken upon them to pronounce the law on the subject in a manner totally inconsistent with the Act of the 32d of the King. Further, not only have different Judges differed on the law on this subject, but the same Judge has at different times and on different trials differed from himself.—My lord Ellenborough, on the Trial of Mr. Cobbett, for a. Libel contained in some letters relative to Irish Affairs, stated, "that when the feelings of any" person began to be wounded, then "the Libel commenced." But in the Case of Carr and Hood, the same Judge said, "that a writer's failings might be criticised, and that in matters of literature it was for the benefit of the public that "the works of an author should be fully exposed." Now, Sir, I cannot see why the feelings of an author should be held less sacred than those of any other person; or why those of a statesman should be particularly spared. On the contrary, the character of the latter is of that description, which, more than any other, calls for exposure, if any impropriety is committed. The measures of a public man, if bad, ought, above any thing else, to undergo the lash of public censure: and if those measures are good, they have no reason to apprehend any serious reproach, seeing that the writers in their own interest, are always ready to come forward with panegyrics upon their great talents and merit.—The hardships, however, of a person subjected to this sort of prosecution do-not end here. It is not enough that he should be made to undergo both before and during his trial all the disadvantages I have been describing—he has still to undergo the sentence, and that probably a most severe one.

In the eye of the law, a Libel, Sir, is only a Misdemeanour, punishable with fine, imprisonment, and the pillory. But, in late instances, it has been visited with a severity, which seems to indicate a desire of depriving the offender of the very means of subsistence. Those who fall under the lash of the libel law, are principally persons connected with the Public Press of the Metropolis. But now, in cases of conviction, they are not allowed to remain in London, but are hurried off to distant jails. Two individuals, Mr. White and Mr. Hart, the Proprietor and Publisher of the Independent Whig, have lately been sentenced to three years imprisonment. Perhaps this punishment alone was too much: but to render it still more severe, they were removed to country jails, at a distance from their friends and connections. The length of the confinement appears to me an outrageous punishment; but it is greatly aggravated by the circumstance of the mischief and ruin which the distance of the jail must inevitably bring upon their very means of subsistence. The law gave the right to punish, but not to ruin. And those who passed such a sentence must have been aware that ruin, and almost unavoidable ruin, must follow its execution.

There is another person, Mr. Gale Jones, whose principal support was derived, I believe, from some daily or weekly publication; that person has been sent to a prison, where, by its regulations, he is deprived of the use of books, ink, or paper.—And if this statement is correct, is he not thereby deprived of the means of subsistence? A more recent case is that of Mr. Finnerty: and there are several others to which, if necessary, I could call the attention of the House. And this is not all, for when the term of imprisonment has expired, the sentence generally directs, that the party shall find security for his good behaviour, probably in a large sum, and for a number of years. Now, as it is often difficult to procure such security, it has the, appearance of a desire to imprison for life.

Now, Sir, it will be worth while to compare the punishments for Libel with those for other offences. With this view I have procured a report of the trials at the last Old Bailey sessions, and I there find that several persons, who were convicted of various felonies, have been sentenced, some to three months, some to two months, and others to only one month's imprisonment, Mr. Alexander Davison, who was convicted of a very great offence, in misapplying the public money, was sentenced only to twenty-one months imprisonment! And ft man who was lately convicted at the Winchester assizes of a most aggravated assault with intent to commit a rape, and to whom the Judge observed, that had he been capitally indicted, he certainfy would have been hung—this man was sentenced to no more than two years imprisonment. He did not receive so much punishment as the man whose only crime was the writing an article, which might be offensive to the Attorney General and the Government of the day.—But, Sir, it may be said that the injured party may redress himself, by bringing a Writ of Error into the House of Lords. But that is really nothing, as it is possible that he might wait a long time before he had his appeal decided. And, in the course of nine or ten years after the termination of his imprisonment, it would afford him very little consolation to be told, that the House of Lords had reversed his Judgment! (Hear! hear!) On these accounts, therefore, on account of the extreme hardship, which attends the defendant in every part of the proceeding, I think the House should watch with extreme jealousy in what manner the privilege of filing these Informations has been exercised. There have not been less than 42 of these Informations filed in the course of the last three years, comprising upwards of seventy persons. And therefore, supposing no alteration had taken place in the law, the House would only do its duty in calling for these Papers. But the law has not remained the same—it has undergone a woful change for those who may happen to fall under the displeasure of the Attorney General. It is not the same law now, that it was three years ago. About that time the Learned Gentleman brought in a Bill to extend regulations lately enacted in cases of Informations for offences against the Revenue Laws to all other Informations. This Bill passed unnoticed through the House. It was introduced under some specious pretence of convenient regulation, and was quite unobserved. I share with others the blame of inattention to this Bill. It passed this House sub silentio, and, I believe, without having been ever printed. But in the House of Lords two noblemen exerted themselves against it, but I am sorry to say, unsuccessfully. The Bill was introduced as a mere matter of convenience—as a rule found advantageous in practice—a mere improvement on an Act of the 26th of the King, by which persons resisting the Revenue officers were ordered to find bail, or in default to be liable to be committed. The offences stated in the act against the Revenue were serious, and required coercion. But the Attorney General brought in this Bill, whereby the practice was extended to all offences which he might think deserving of prosecution: and thus the liberty of the subject is put completely in the hands of the Attorney General, and every man holds his freedom at the will and pleasure of the Learned Gentleman opposite: who, if he should happen to be displeased with a person's looks, or even his very dress, has only to use his power of filing an Information against him ex-officio, and then have him confined or held to bail (which is a confinement) at pleasure. (Hear! hear!) I do not mean to say that the Learned Gentleman has made any such arbitrary or improper use of this power; but it is very evident that an unfair use may be made of it. This act was introduced for the purpose of ameliorating the law. If it has not been acted upon, it ought to be repealed as useless. But if it has been acted upon, and if the number of offences have increased under it, then it ought to be repealed as pernicious. Such, therefore, is the law as it now stands with respect to Informations filed by the Attorney General ex officio—such is the power in his hands, and such the means of harrassing and tormenting all his Majesty's subjects. I have further to allege, that the present Attorney General has exercised this great power abusively and partially. Sir, I am not prepared to go the whole length of disputing the legality of these Informations in toto, but I much doubt their legality when exercised in the manner in which it is the fashion to use them at the present day. I will not rely on the obiter dictum of Lord Hale on this subject, because the existence and the meaning of that dictum is not admitted; nor will I rely on the arguments of Mr. Dunning, Mr. Wedderburne, and Mr. Burke on the subject, who all in this House absolutely denied the existence of any right in the Attorney General to file these Informations: at the same time, I must say, that when I see such grave and great authorities on that side the question, and when I see a minority of 78 Members of this House, on a division supporting those opinions, I think it would rather be presumption in me to feel assured than to doubt on the subject; nor am I convinced by the authorities quoted on the other side. There is Sir Bartholomew Shower's argument which is published in his works, and that is reckoned great authority in favour of this practice. Now, in the first place, I must observe on that, that it is at best but the argument of counsel, and an argument never used. Next I must notice, that this argument was drawn up in answer to objection urged against what? Informations ex officio by the Attorney General? No. The case for which this argument was proposed was the case of an Information, not at the uit of the crown but of an individual, for a trespass; and accordingly the whole of the cases quoted in the argument are of the same nature. It contains a long and elaborate list of Informations, and carries them up to the time of Edward 3rd; but out of all these cases I think there are but two, which appear to be at the suit of the crown; one is in the time of Philip and Mary, and was an Information filed by the then Attorney General (Griffin) against Plowden and others, for absenting themselves from their duty in parliament. It certainly does not appear that the defendants ever objected to the mode of proceeding, and Mr. Plowden was himself a lawyer of eminence; but I think that the case does not appear distinctly enough to build much upon it. The other is a more remarkable one; it is that of an Information filed ex officio by the Attorney General in Charles the 1st's time, in the King's-bench, against sir John Elliot, Mr. Hollis, and Mr. Valentine, for seditious words spoken in this House; and yot it does not appear that they objected to the proceeding. This is assuredly a strong case, inasmuch as the Star-Chamber had been lately abolished; and this proceeding by ex officio Information, had been one of the proceedings complained of in that court; and in this case the defendants were sufficiently keen and eager to take advantage of any thing that might tell in their favour. But on the other hand it is to be observed, that they pleaded to the jurisdiction of the court altogether, and relied upon that plea; and I think it by no means improbable, that they thought that it might in some degree tend to weaken that plea if they took the other objection. All the other cases, as I said before, mentioned in Shower's argument, relate to Informations at the suit of individuals; and it is evident from the decision of Lord Holt on the case, that the argument was meant to refer wholly to those of that description; for he Jays it down; that Informations cannot be disputed, and argues in favour of their existence from the end of the Act of the 18 of Henry 8. Nor is it quite clear that that Act refers only to such Informations; for it gives penalties, part to the King, part to the party, suing in any Court of Record, "by" bill, plaint," &c. wherein "no essoin," wager of law, &c. is allowed," and wager of law never lay to the king's suit. It is clear therefore that both the argument and the decision refer only to Informations at the suit of individuals. However, I said before that I did not dispute the legality of them in toto; but simply the legality of such an use as has lately been made of them; and here I have the authority of Lord Holt again, who in a subsequent decision on the same cause, expressly states, that "Informations were at common law****. For a crime committed in York cannot be punished here by indictment, for it cannot be removed out of the county, therefore it is only punishable by Information." So that if this decision of Lord Holt refers to ex officio Informations, it is clearly his opinion, that they are only good in cases when Indictments will not lie; and in conformity to this opinion, is that of Mr. Justice Black-stone, who, on this point, says, "The informations, that are exhibited in the name of the King alone, are of two kinds: first, those which are truly and properly his own suits, and filed ex officio by his own immediate officer the attorney general; 2ndly, those in which, though the King is the nominal prosecutor, yet it is at the relation of some private person or common informer; and they are filed by the King's coroner and attorney in the court of King's bench, usually called the master of the crown-office, who is for this purpose the standing officer of the public. The objects of the king's own prosecutions, filed ex officio by his own attorney general, are properly such enormous misdemeanors, as peculiarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offences so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the crown the power of an immediate prosecution, without waiting for any previous application to any other tribunal."

Certainly, Sir, this definition of Mr. Justice Blackstone does not correspond with the dilatory manner in which these Informations have been prosecuted; and upon this, it is, that I would ground the uselessness and illegality of the power. Is the evil such as to require an instantaneous remedy? What is there in it that requires the sudden effort to suppress it. Or if a libel be this ruinous thing, why does the Attorney General put off its trial for six Or eight months? Out of the whole 42 Informations filed within the last three years only 10 have been brought to sentence. Two of the accused have been acquitted, two are still unsentenced, ten have never been proceeded against after conviction, eight never tried, one not found, and three are still for bail. Perhaps these ten are to be forgiven like the rest, and that, of course, will be solely attributed to the humane disposition of the Attorney General (Hear, and a laugh!) But, Sir, is it no punishment to have such a prosecution depending over a man's head? Is there nothing in the expence and the perplexity and the harassed mind and the doubts and suspence of the unfortunate person who is thus threatened by the Attorney General as the victim of that species of prosecution, which according to Blackstone, ought only to be had recourse to in cases that are of vital importance to the state? The seventy informations previous to the year 1791 produced fifty convictions: the fourteen previous to the year 1807 produced 13 convictions: but in the last three years, the House will look at the number which have been convicted, and at what has been done in the other cases, and I then leave, it to the House to judge of the influence which by this proceeding is given to the Attorney General. Sir, in the 4th and 5th of Will. and Mar. an Act was passed for putting a stop to vexatious Informations. It certainly left the power of filing Information to the Attorney General. There is an express exception in the act in his favour. This, I conceive, is decisive on the one hand of the legality of the proceeding; but on the other, of the improper and vexatious use of it. The object was to put a stop to vexatious Informations; but the legislature never could conceive that a person in the high situation of an Attorney General would use this power for the purpose of vexation, and therefore left it him in order to meet the cases pointed out by Blackstone. Again, Sir, in the time of queen Elizabeth an act was passed against compounding Informations, and in this act too, the Attorney General is exempted. from the provisions of the act, and surely for the same reason. Blackstone, speaking of this last mentioned act, says, "The compounding of Informations upon penal statutes are an offence of an equivalent nature in criminal causes; and are besides an additional misdemeanor against public justice, by contributing to make the laws odious to the people; at once therefore to discourage malicious Informers, and to provide that offences when once discovered, should be duly prosecuted, it is enacted, that if any person informing, under pretence of any penal law, makes any composition without leave of the court, or takes any money or promise from the defendant to excuse him (which demonstrates his intent in commencing the prosecution to be merely to serve his own ends and not for the public good) he shall forfeit 10l. shall stand two hours in the pillory, and shall be for ever disabled to sue on any popular or penal statute." Now I leave it to the House to judge, whether prosecutions taken up and dropped as I have described, have not been productive of vexation on the one hand, and whether there is not good ground to suspect that they have been most improperly compounded on the other. When the present Chancellor of the Exchequer was Attorney-General, a public writer, a Mr. Peltier, was convicted of a Libel on Buonaparté, and the war soon after breaking out, he was never brought up to judgment; and since that time he has never ceased to be a zealous writer on the side of government. I beg to be understood as not saying that he ought to have been sentenced, or that he ought to have been proceeded against at all. But certainly in this case, there is reason to suspect that there was an understanding and compounding of the information. And, Sir, it will be found that those who have suffered from the severity of this power, have been persons who have written against that administration of which the learned gentleman himself forms a part. The power has been used for influence, and has not been directed against those who take the part of administration, although it is very evident that they have as few restraints from a feeling of decency and propriety as the writers on the opposite side. Upon what principle of justice, Sir, should the vigilance of the Attorney General be only directed against one party? The learned gentleman, on coming into office, found au information by his predecessor against the proprietor of the Morning Post for a publication tending to create a mutiny among the troops that were then embarking for foreign service. This, if any thing could be, appeared to be a case that called for the vigilance of the Attorney General, as the mischief might have been instantaneous and most serious. But notwithstanding this the learned gentleman opposite entered a Noli Prosequi on the prosecution, and gave as his reason, what was probably a sufficient one, that the printer had given up his author. Not, Sir, that I am by any means disposed to complain of this lenity: but why has it not been followed in other cases? And why did not the Attorney General uniformly act upon the same principle? The libel in the Morning Post appeared first in that paper, and was so far its original production. Besides the editor had given notice that he should defend it, and had so far fathered it. But although Mr. Cobbett on his trial, declared himself the sole author and proprietor of his paper, and declared the printer and publishers, as, in a certain sense, merely his servants, that declaration did not avail them, and they were all punished together. In the case of The Statesman, a paper which has attracted notice by its opposition to Ministers, the Libel for which the editor is now in Newgate, was copied from a Manchester paper, with the name of the author subscribed, and yet Mr. Lovell, the proprietor of the Statesman, has been found guilty and sent to prison; and no proceedings, I believe, have been commenced against the Author, or against the Editors of the Manchester paper.

Sir, there are cases without end upon this subject. The Messrs. Hunts, the proprietors of the Examiner, have been acquitted in Westminster, on the very same Libel for which Mr. Drakard has been found guilty at Lincoln. There may have been the difference of a few words in the two Libels, but I am sure the learned gentleman will not descend to the chicanery of drawing any distinction between them. At Lincoln, Mr. Drakard has been prosecuted for endeavouring to excite mutiny among the soldiers, while the proprietor of a London paper, the Courier, is permitted to go unpunished, after having asserted in so many words, that the soldiery are, every man of them, out of the pale of the British Constitution! (Hear! hear!) Of this partiality it is, Sir, that I complain. At the time that discussions were going on in this House respecting the Duke of York, many Informations were filed against different individuals, which were afterwards withdrawn. As to the matters which those publications contained, it was then, and still continues to be, my opinion, that they were fully proved in evidence at the bar of this House. The Attorney General, however, has thought proper to abstain from the further prosecution of those Libels, and yet the individuals against whom he had filed those Informations were put to great hardships and serious expence, and had no means by which they might obtain redress. When the Attorney General first thought proper to file those Informations, it was on the ground that the holding up the Duke of York to contempt was lowering the respect due to the royal family, and a great offence against the state. The Duke of York was at that time Commander in Chief, part of the ministry, and of course supported the politics of the Learned Gentleman and his friends. At that period great respect was paid his Royal Highness's character; but it seems that that is no longer to be the case, the moment he ceases to espouse the politics of the Learned Gentleman and his friends. In proof of this, Sir, I shall take the liberty to read from a ministerial paper, called, The Courier, some observations made on the 31st of December last upon all the male branches of the royal family, in an article which the writer is pleased to designate by the term of "The College of Princes:" After commenting on this College, they say; "This is a new class, a new estate" starting up to assert a right of giving an opinion on any great measure in the contemplation of government. The College of Princes! Such a college existed in the Germanic Constitution, lately laid low; but, now, for the first time, is heard of in the armies of Great Britain. ^**** They must know, that as Princes, they were nothing but great babies, with royal corals and bells, just learning to walk in the paths of the state; and that by making them English noblemen, with seats in Parliament, the King breeched them into political manhood. As Prince Ernest and Prince Adolphus, they are nothing more than great boys, hardly regarded by the public, but without power or weight in the community—pretty creatures for a Dutchess to have dancing at her ball, but of no influence in the Government. To give them this influence they were made Peers of Parliament. ****** As English noblemen of the highest rank, they command respect **** as Princes they sink back to the character of great looby boys with toys and rattles. What evil genius has persuaded them to drop their parliamentary for their princely character? To lake a step which, as they knew it would be disregarded, must expose their impotence and excite derision? Let them act in Parliament, but let them never be heard again in their princely collective capacity, if they do not wish to become obnoxious. The history of the class of the French Princes is not forgotten."

Now, Sir, I am not complaining that these things are not proceeded against, but I do complain of the partiality which prosecutes for every thing that may be said against the political friends of the minister of the day, but passes over the grossest and most indecent observations which can possibly be made against the highest persons in the community, unless those persons happen to coincide in political opinion with the Government for the time being. The whole of the article I have just read to the House, is so grossly absurd, indecent and abominable, that I do not blame the Attorney General for not prosecuting the Author of it. But I do, and I must blame him for not shewing something like impartiality in his selection of those libels which ought to be proceeded against. I can also state, although it is not now a new case, that it appeared that in the year 1788, libels against two of the royal Dukes who then opposed ministers were actually sent to the newspapers for insertion from the Treasury, and the publisher imprisoned for it. I have before alluded to the two persons sent for three years to distant jails for a libel upon a jury, that is for censuring the Verdict of a jury; yet a ministerial paper (The Courier) may abuse with impunity that Jury who thought it their duty to acquit Messrs. Hunt?

Upon the whole, Sir, it appears, that the real rule which guides these prosecutions is this: that the Courier and the other papers which support the Ministers of the day may say whatever they please without the tear of prosecution; whereas the Examiner, The Independent Whig, I he Statesman, and papers that take the contrary line, are sure to be prosecuted for any expressions that may be offensive to the minister. In directing these observations to the Attorney-General, I have acted merely from the consideration, that he is the Officer properly responsible. I do not know whether he has acted ex propriomotu, or whether he has been guided by the opinions of others. It is pretty evident, however, that the gentlemen with whom he is in the habit of acting are all equally biassed on this subject. The present First Lord of the Admiralty, (Mr. Yorke) found out, in the course of the last session, that the Press was intolerably licentious, and complained to this House of a placard reflecting upon him. In consequence of this complaint, the individual against whom it was brought (Mr. Gale Jones) suffered a confinement in Newgate for several months. When the right hon. gentleman brought the complaint forward, he stated that he felt nothing personal on the subject, but had been actuated solely by his regard for the credit and dignity of the House. In the first instance, I gave the right hon. gentleman credit for the assertion; but I am free to confess, that since that time my belief has been greatly shaken. And the circumstance which led to that disbelief on my part, was, that those who felt so keenly the regard that was due to the credit and dignity of the House in one instance, have not felt it incumbent upon them to take the same steps to assert its dignity in other cases which appear to me still more glaring, not only when individuals, but when, large bodies of the members have been abused in the grossest and most indecent manner by those papers who support the cause of the present Ministers. The Morning Post, in its observations on the conduct of a Minority in opposing an adjournment, (in which opposition I believe it will now be confessed that they were right) abused in the grossest manner all the members who voted in that minority. It is as follows: With very few exceptions, there was displayed in both Houses, on this occasion, a most creditable and becoming sympathy, and the conduct of Lord Moira and Mr. Sheridan, who on all occasions of real national importance are ever actively to be found at their post, is entitled to our best commendations. In the House of Lords, notwithstanding some observations from Lords Grenville and Grey, to the justice or necessity of which we can by no means subscribe, the question of adjournment was carried as we have already observed, nemine disstntiente; nor would there have been any division in the Commons, where the Opposition were unwilling to expose the weakness of their numbers, had not Sir Francis Burdett, after some reprehensible and insidious insinuations, relative to the exercise of the Executive Power, entrapped Mr. Whitbread and some others, who to hide a still greater shame, and wear the semblance of consistency, found themselves compelled to vote with the mischievous Baronet. We are not, however, displeased at the patriotic expedient to which the worthy Sir Francis has thus had recourse, as it serves to shew how contemptible are the numbers of those whose nature is debased by the vile views of faction, and whose unmanly feelings and ungenerous hearts forbid as it were their sympathy, in a case, which to the everlasting honour of the country he it related, so deeply interests the best feelings, and fills with keen solicitude the fond bosoms of a people, who in duly appreciating his virtues, prove themselves deserving of the best Monarch that ever adorned a Throne."—Such language as this, Sir, is endured in the Morning Post, because that paper is in the habit of lending its support to Ministers, and no one of those members who, upon other occasions, have discovered such a lively regard for the credit and dignity of the House, considered this as a case deserving of their notice. For my own part, Sir, I do not feel at all hurt by such expressions of the Morning Post. Of me, that paper is at all times at liberty to speak in whatever way it pleases. All I ask is, that the Attorney General and those gentlemen who are so tremblingly alive to the heinous nature of libels in some instances, will practise something like impartiality in their selection. If they are actuated by the purest of motives; if their object in the prosecution of libels is solely their regard for the state, a respect for public decency and the preservation bonorum morum, how happens it, Sir, that these considerations never affect them but when the person offending differs in politics from the Minister of the day?

I fear, Sir, I have already trespassed too long upon the indulgence of the House. I hope I have said enough to convince the House of the exorbitancy of the power exercised by the Attorney General. I call for the production of the Papers upon these three distinct grounds: 1st, That even if the law had not been altered, the state of things being altered, the Privilege ought to be investigated: 2ndly, That the law having been altered, inquiry is thereby rendered more necessary, and particularly as the alteration has been introduced by the Attorney General himself: 3dly, That the House may examine whether what I have asserted be true; namely, that the proceeding by Information has been exercised vexatiously and partially. I shall now conclude with moving, "For an Account of all Prosecutions for Libel by Information ex officio since the 1st of January 1801, together with all proceedings had thereupon, specifying the dates of the publication of the said alleged Libels, and of the proceedings had upon each respectively."

The Attorney General

rose, and said, that though the noble lord had not expressly called in question the right of the individual holding the office which he had the honour to fill, to institute a criminal process by filing Informations ex officio, yet the whole drift and bearing of his argument, and the great object of the motion with which he had concluded, were directed against that right. For himself, he had no hesitation to say, that he would be the last man to contend, that, if an officer in his situation should so far lose sight of his duty, as to act upon the right legally and constitutionally vested in him in a partial manner, or to the injury and oppression of individuals whose political principles might be obnoxious to him, he ought not to be as responsible as if his conduct was wholly illegal. But while admitting the responsibility under which he acted, he trusted, that he should experience the indulgence of the House in repelling the charges which had been thus ground lessly brought against him; and he was confident he should be able to satisfy every hon. member who heard him, that, in the exercise of the power he possessed he had not so misconducted himself as to render it necessary for parliament to interfere, to modify or restrain the power itself.

In the first place, he must remark, that he was persuaded, that the noble lord himself, would do him the justice to acknowledge, that no official impediment had been thrown in his way from any quarter, to prevent his obtaining the fullest information on the subject of his motion. Not only had the noble lord had the ac- cess, to which he was entitled, to the records of the office, but instructions had been given to the different officers to facilitate his inquiries, and to save him from the unavoidable embarrassment which the multiplicity of documents might otherwise have occasioned, by directing his attention to those papers particularly, from which he could obtain the most satisfactory information. Under these circumstances and by such official assistance the noble lord had qualified himself to lay before the House an accurate statement of the number of Informations which had been filed ex officio, by him (the Attorney-General) during the last three years, from which statement the noble lord inferred, that there was reason to suspect that the power entrusted to him had been improperly used; and that the House was called upon to enter into a further investigation of the subject, for the purpose of ascertaining whether the accusation advanced against him was not founded in fact. Many of the topics in which the noble lord had indulged had no immediate bearing on the subject before the House; although they might be calculated to shew that the ordinary proceedings of the law required correction. If such were the opinion of the noble lord, and if he conceived that the legislature ought to interfere, the subject was one which he should distinctly introduce; but, he must repeat, it had no connection with the present question.

The noble lord had charged him with many acts of harshness and severity towards those offenders, against whom in his official character he had felt it his duty to file criminal Informations. But how, he would ask, had this accusation been borne out by the facts? It was true, that the noble lord asserted that the influence of the crown had been used against those individuals who had been prosecuted for libels; but he desired the noble lord, or any one who had been an observer of his proceedings since his accession to office, to say, that in one single case there bad been any exercise of the influence of men in power, to the prejudice of those against whom it had been his duty to institute prosecutions for libel. On the contrary he was confident it would be found, that every prosecution of that nature had been conducted with the greatest lenity. Indeed he was happy to say, because in the declaration was included a just character of the constitution and feelings of the country, that no man standing in his situa- tion —however bold his disposition—however strong his nerves—however wicked his inclination, dare so much abuse the power vested in him, as not to give an offender prosecuted by the crown as great advantages, or greater advantages in his defence than any ordinary criminal possessed. Were any prosecutions so closely watched as those commenced by Attornies-General? Were there any individuals whose conduct excited such careful and curious inquiry, if they exceeded the just limits of their power? Was zeal or ability wanted to detect their errors? Were they even allowed the ordinary excuse of human infirmity for any wrong which they might commit; It had indeed been thrown out by the noble lord, al-though he had saved him (the Attorney-General) personally from the necessity of repelling the accusation, that the paltry dirty fees of office might be an inducement to those who held the situation of Attorney General, to prefer proceeding in cases of libel by Information rather than by indictment. He really forgot at that moment whether the fee to an Attorney-General was 6s. 8d. or 13s. 4d. but in either case he would not condescend to defend those who might be placed ill that situation from the imputation of being influenced by any unworthy considerations of personal emolument, still less by the amount of the fee he had just stated.

With respect to the insinuation thrown out thus generally by the noble lord, he was at no loss to trace the cause, to which he was indebted for the observation that conveyed it.—He was perfectly aware that the noble lord had thrown it out, because on the trial of Cobbett he had imputed to the defendant, that he was influenced by a consideration of the profits of his paper to pursue the course which he had adopted. By no candid mind, however, could the two cases be thought to resemble. A nobleman whose heart beat so high with honourable feeling as that of the noble lord, could hardly think, because in a case of a periodical publication, he (the Attorney-General) had been called on in the discharge of his duty to make the observations which he had made, that, therefore, it was fair to bring the two cases under comparison. Sure he was, that there was no man sitting in that House, and possessed of a liberal sentiment, who would perceive any likeness between them.

Another circumstance of alledged hardship had been much dwelt on and forcibly pressed by the noble lord. The noble lord had slated that these criminal informations were made peculiarly the engines of oppression, because no time which might elapse after the filing of the information could prevent the institution of such a prosecution, and, therefore, that, whenever a libel had been published, it was always open to the Attorney-General to prosecute the offender at how considerable a period soever after the commission of the offence. Now he would ask whether there was a single member in that House, who, on the noble lord's making this statement, did not believe that criminal informations had been in the manner described, filed for state libels? Was the observation intelligible, unless it was intended to imply, that after a lapse of time, he (the Attorney-General) had oppressively exercised the power entrusted to him for the prosecution of offenders? The House would scarcely credit the statement of the fact therefore, that after a term had elapsed from the publication of a libel, in no single instance bad an information been filed by him against an offender of that description! Offenders of other descriptions he might have prosecuted, at periods more distant from the commission of the offence; but, with respect to the kind of offences alluded to by the noble lord, he had never allowed a longer time to intervene between the discovery of the offence and the filing of the information than what was required for the necessary legal preparation. Let the noble lord bring a direct charge on this subject, and he pledged himself to meet it;—nay more, to shew to the satisfaction of that House and of the country, that if he had been guilty of any breach of duty in the execution of his office, it was on the side of lenience and not in the exercise of oppression.

Another of the accusations made by the noble lord applied rather to the general administration of the law on the subject than to the execution of the duties of his particular office. The noble lord asserted that, the defendant in a criminal information for a libel had not the privilege of praying a tales. But if he had the power of praying a tales, the prosecutor would as in other cases always be enabled to withdraw the record; and thus the same effect would be produced. The noble lord had thought proper to descant very largely on the nature of special juries. He had as serted that special jurors were selected by an officer of the crown—that they made interest to serve—that their service was lucrative, and that they would take care not to return a verdict unpalatable to the crown, lest they should offend the officer who selected, and be rejected by him on subsequent occasions. The noble lord however had stated all this without an accurate knowledge of the fact. The 'officer to whom he alluded was no more under the controul of the crown than the judges were. Would not the House suppose from the statement of the noble lord, that this officer was removable at the pleasure of the crown, and that he would therefore act under the apprehension of displeasing the crown? Yet the fact was, that the officer was appointed for life; that he had as firm a title to his place as the Judges had to their exalted offices; and, as he had before observed, that he was no more under the influence of the crown than the Judges were. He owed it to the individual now in possession of that place to declare, that a more honourable man did not exist; and he was persuaded, that no one would feel more sensibly, the imputation that he could be capable of dealing partially between the crown and the person accused. Nor was the noble lord more correct in saying, that the Special Jurors were selected by this officer. They were taken from the freeholder's book. It was the duty of the constable of each parish, to return the names of the freeholders in that parish; and these several lists were collected in one book. The line of conduct pursued by the officer in question was, to let no one know where he opened the book and began to take names, lest that knowledge should lead to such contrivances as he was sure from what the noble lord had said, he wished should be avoided. Opening the book, therefore, in different parts, and without communicating any information to either of the parties, he took 48 names; which names were given to the parties, who attended on a future day, and had each alternately the privilege of striking out a name, until the number was reduced to 24—This list of 24 names was returned to the court, and from it 12 individuals were drawn to try the cause. A more impartial course of proceedings, from first to last, could not be conceived; and he trusted, therefore, that the House would not consider the loose and unfounded assertions of the noble lord, as a sufficient ground for acceding to his motion.

With respect to the law and the administration of the law in matters of libel, the noble lord had gone into a long and elaborate statement of a great number of cases which had occurred in courts of justice, and had endeavoured to persuade the House that different judgments had been pronounced by different judges, and even by the same judge in different cases in matters of libel. Into the discussion of this subject it was quite impossible to enter, without a more extensive knowledge, and a more deliberate consideration of the various cases. It was enough for him to say, that this part of the general subject was not before the House, nor did it arise in any way from the alledged undue exercise of his power as attorney-general; This, however, he would declare, that, making every allowance which ought to be made for human infirmity, he was satified that the same steady principle of justice had actuated all the learned judges to whose conduct the noble lord had alluded. Speaking of judgments for libels, which he termed severe beyond measure, the noble lord referred by way of contrast, to the conduct and opinions of lord chief justice Holt. He was satisfied, however, that if the noble lord would look back to the judgment of the court of King's Bench on the offenders of that time, he would find the learned and upright judge whom he had mentioned, expressing his opinion, that the licentiousness of the libellers of his day called for the utmost severity of punishment; and that in fact, his judgments were, to say the least of them, not more lenient than those which the noble lord had so pointedly condemned. He would particularise some of the judgments to which he alluded, were he not anxious not to intrude unnecessarily on the time of the House. He would satisfy himself, therefore, with stating the fact generally, and challenging the noble lord to contradict it if he could.

Amongst the many cases contained in his studious enumeration of what he thought proper to designate as severe sentences, the noble lord had adverted to the sentence of three years imprisonment passed on Hart and White, which the noble lord asserted was for a single libel.—(Lord Folkestone said across the table, that he had observed it was for two libels.)—He did not hear the noble lord say so before; If he did say so, it had escaped his ear. What he had understood him in his speech to have represented was, that the sentence of three years imprisonment had been inflicted on those persons for the publication of a single libel. There were however two libels, and they were of a very gross nature. He was persuaded that those who looked at the libels of which these individuals were convicted—who looked to the conduct of the individuals themselves, and who then reverted to the judgments of the courts, in times which had been called "the good times of the law and of the constitution," would see no ground for accusing the judges of the present day of overstepping their power, or of exercising their authority with rigour. The noble lord indeed had declared that it was a mockery to say, that persons, situated as those were, whose case he had been just considering, might have the benefit of a writ of error; because there was such a long string of cases pending in the House of Lords, that a very considerable time must elapse before that writ of error could be argued. How happened it that the noble lord forgot to accompany this assertion with the statement that the individuals, Messrs. Hart and White, did actually bring a writ of error into the House of Lords; that, being a criminal case, immediate attention was paid to it; that other pending matters were made to give way to it; and that the subject was taken into consideration at the earliest possible opportunity? Surely it was not the object of the noble lord and could not be his wish to intimate, that the criminal law was administered with more severity than it really was. He confessed his wonder therefore, that to the declaration that a Writ of error, to persons in the situation of Hart and White, held out the semblance, but not the substance of advantage, the noble lord had not, with the case fresh in his memory, added that that case was an exception to his general remark.

In the course of his speech, the noble lord had most strenuously contended that the situation of offenders of this description was very much aggravated by the Bill which he (the Attorney General) had had the honour to introduce into the House three years ago; and that by that Bill he had assumed the power—nut merely of filing informations for libel against whom he pleased—but, having filed such informations, of casting any one of his Majesty's subjects into prison unless he found the bail required for his subsequent appearance.—Now really when the noble lord had asserted this, he for his part sup- posed it was a slip; and that the noble lord did not mean to convey that which his words necessarily implied. But when to this the noble lord added, that by this act of parliament, he (the Attorney General) had under his controul the liberty of every subject of the realm, against whom he might choose to file a criminal information for libel, he was at length satisfied there had been no mistake. The House would judge of the fact. The Act alluded to gave to the Attorney General no such power as that ascribed to it. It gave to the judges of the land the power to be used at discretion (a discretion which they would of course always exercise with all due reference to every circumstance of the case), to hold such persons to bail as they might think proper. Instead of his having the power to do this without affidavits (as alleged by the noble lord), the judges of the land could not exercise the power but on a case made out before them by affidavits.

Thus much he had felt it necessary to say with respect to the provisions of this Bill and the powers it conferred. He should in the next place beg leave to submit an, observation or two upon the manner in which these powers had been exercised. If the House were to judge from the candid statement of the noble lord they would be led to conclude that the powers so reprobated, had been kept in a slate of unceasing activity, and converted into an engine of intolerable oppression and injustice. What, however, must be the surprise of the House to learn that only a single instance of the exercise of this authority had occurred since the passing of the Act. He should state it to the House, and leave them to judge of its propriety.

A person, against whom an information was pending for a libel, had the audacity, while such information was pending and before his trial, to publish a second edition of the same libel. The case was laid before Mr. Justice Le Blanc on affidavit, Mr. Justice Le Blanc thought fit to hold the person to bail, and he was held accordingly. While he was on this subject, he thought it necessary to state, that the Act in question gave to the judges of the land no power which was not vested in a Justice of the Peace, or a Secretary of State, before the passing of the Act. If the noble lord would revert to the reign of the late king, he would find many instances in which Justices of Peace had caused persons charged with seditious libels to be arrested, and bound them over to appear in the Court of King's Bench, there to await the event of any information or indictment against them for the said libels. This was not therefore a new power: it had been before exercised by magistrates of an inferior description. Long indeed before he had brought the Bill into the House—so far back as 1804, it had been introduced by lord Ellen-borough in the House of Lords as an Amendment to a Bill from the Commons; and this Amendment had been afterwards withdrawn in the Commons, not from any doubt as to the propriety of the enactment itself, but on an observation from the Chair which related solely to an informality in the mode of proceeding. What he had now stated, he trusted would be fully sufficient to satisfy the House with respect as well to the history as to the merits of this measure, which had been with so much candour and justice converted by the noble lord into a ground of accusation against him.

After having pressed with all the force and ability which so peculiarly distinguish his lordship this general topic which had no bearing on the subject before the House, the noble lord at length came to that which was the point actually under discussion, namely, the supposition that he (the Attorney-General) had unduly and with partiality exercised the authority entrusted to him. The charge distinctly made was, that he had conducted himself oppressively and partially. The noble lord therefore, having produced the number of criminal informations for libel filed by him during the last three years; and having shewn that those informations were more numerous than they had been in the three preceding years, had thence inferred, that there was reason to suspect the power of filing them had been improperly exercised. He wished the House here to observe, that the same opportunities which enabled the noble lord to ascertain the number of informations filed, enabled him also to ascertain the nature of the libels for which they were filed. He was sure that the diligence, the zeal, and the curiosity of mind for which the noble lord was so eminently distinguished must have also induced him to examine the nature of the libels. Not a word, however, did the noble lord say on that subject. He yet thought that the House would not deal so harshly with an officer compelled to exercise such invidious powers as those which it was his duty to exercise, as to conclude, that because the number of informations increased, the in-formations were necessarily improper. If a greater number of libels were published within a certain period, than during any former period of a similar extent, an Attorney-General would neglect his duty, unless he increased the number of his prosecutions in proportion. The noble lord knew very well, it had been relied on by the person from whom he had borrowed a great part of his accusations—it had been relied on by Hart and White in their defence—it had been relied on by the two Hunts—that publications of a nature similar to theirs had been passed over on former occasions unnoticed. In what a situation therefore was he placed! If he abstained from prosecutions he might be accused of holding out impunity to future offenders; if he prosecuted, he was then charged with unbecoming and oppressive severity. When the noble lord stated that 42 persons had been prosecuted for libels during the last three years, he ought to have added that the number of libels prosecuted, was only 18; several persons having been prosecuted for the same libel copied into different publications. When it was considered that there were 52 different newspapers published in London, some every day, some once a week, some twice a-week, and some three times a-week; and that altogether, near 200 publications were thus issued from the press of the metropolis every week, it would not appear surprising that the necessity of instituting prosecutions for libels should have greatly increased.

Now with respect to the eighteen libels which had been the subject of prosecution, he had to inform the House, that eleven of them had either been proved before a Jury, or judgment on them had been suffered to go by default. On one, the defendant had been acquitted; and he (the Attorney General) had in consequence withdrawn the record of the next on the paper, and had not brought it to trial. Three of the defendants had inserted satisfactory apologies in their newspapers, and he had dropped the prosecutions in consequence. He had filed an information against the author of the Independent Whig, for a libel on the Duke of York, long after the investigation of his royal highness's conduct had terminated: but on a representation that the libel was inserted without the publisher's knowledge —that he was in infirm health—that the imprisonment he was already enduring pressed heavily upon him—and that an extension of it would be a most grievous suffering, he had consented to drop the prosecution, on a proper apology being made. One case was now pending, but not ripe for trial. In two cases connected with major Hogan's pamphlet, he had dropped the prosecutions, for reasons which, he was persuaded, the House would not condemn. The noble lord had also asserted, that some prosecutions had been dropped because the persons against whom the informations had been filed changed sides in politics. To what the noble lord alluded he sincerely professed that he had not the most remote idea. The assertion was utterly incapable of being answered, because it was utterly unintelligible. He had been charged by the noble lord with proceeding partially in the case of the Morning Post. Having found when he came into office a prosecution pending against the Morning Post for a libel (which libel the noble lord acknowledged he thought would have been better passed over in the first instance), the noble lord asserted that instead of prosecuting he had entered a noli prosequi.—This was not the fact; the proceeding had been instituted towards the close of 1806, by his learned friend who preceded him in office. An application had been "made to his learned friend, by a friend of the editor of the paper, to stay proceedings on giving up the author. For a considerable time after he (the Attorney General) came into office, he heard nothing of the prosecution. He was then informed by the solicitor for the Transport Board, against which Board the libel had been written, that a Mr. Jevers had been ascertained to be the person who sent the article to the office of the Morning Post. He was also informed that this was not considered sufficient, and that then Mr. Jevers gave up the name of capt. Roach, as the author of the article. He was also informed that capt. Roach was not in England, having been abroad when the prosecution was commenced; of course, this business being connected with the Transport Board, passed under the notice of the counsel for the Admiralty, and the consideration of steps proper to be taken was in fact committed to Mr. Jervis and himself. The advice they gave was, "that it would be proper to defer determining what was fit to be done, until the truth of the alle- gation should be proved by the result of the indictment against captain Roach, on the affidavit of Mr. Jevers; and if the prosecution should fail against Captain Roach, then to bring it against the other."

This he could assure the House, was the first and the last which he knew of the matter. He had since, however, upon inquiry, learned that captain Roach (who was a most meritorious officer) had made a representation to the Transport Board, by which they had been very much softened, although a difference existed about a public apology, which capt. Roach declined to make. Soon after capt. Roach was again sent on foreign service, and there the matter rested for the present. He put it to the House, therefore, whether he had evinced any partiality in this proceeding. Adverting to the sentiments of the noble lord, with respect to the libel in two country papers, and in the Statesman, against the Commissioners of the Property tax, in Lancashire, he observed that h" had stayed the prosecution against the two country editors, on their giving up the author of the libel, Collier, against whom a prosecution was now pending; and that he had persevered in the prosecution of Mr. Lovell, because, to the copy of the libel, he had added a most aggravated commentary. He had thus replied to the principal remarks made by the noble lord. The charge against him was, that he had used the power, which was meant only to curb the licentiousness of the press, For the purpose of restraining its liberty. He appealed to the candour of the House, whether there were any symptoms to that effect in the daily and weekly publications that issued from the press? Could they for a moment believe, that any fair discussion of a political, a moral, or a religious subject was suppressed, by any apprehension of a prosecution on his part? He trusted confidently, therefore, that the House would think that the noble lord had not laid "sufficient ground for his motion, and that there was nothing in his conduct which called for the interference of Parliament to alter or restrain the power vested in, him, in his official situation.

Sir Francis Burdett

spoke to the following effect:—Sir, I ought, perhaps, to make an apology to the House for troubling them with any observations of mine, after the very able and convincing statement made by the noble lord, who brought forward this question, and after having heard the very lame, defective, and impotent defence of the learned Attorney General, who has just sat down; but although the reasoning of the noble lord stands in need of no aid, and the weak attempt at vindication of the learned gentleman, requires no answer, still a sense of duty will not permit me to give a silent vote on so important a question.

The hon. and learned gentleman, with that dexterity peculiar to his profession, of which he is so great an ornament, has by the studied construction of his speech, carefully evaded all the strong points that would bear against him, and all the material parts of this great question. He has cautiously abstained from touching upon any of the leading points urged so forcibly by the noble lord; and by the very mode and conduct of his defence has given strength and validity to the charge.

Sir, I must confess myself greatly disappointed at the course pursued by the learned gentleman; because I did expect from him the benefit of much legal re-search and investigation; a profound exposition and clear statement of what is called the Law of Libel, and of great constitutional principles involved in this great constitutional question. I am also disappointed, that the right hon. and learned Chancellor of the Exchequer, on the same bench with him, and the rest of the gentlemen of the long robe set forth in full array on this occasion, have not given us the advantage of their great legal acquirements, have not thrown the least ray of light to illumine us in the midst of darkness, or afforded us any information to direct our judgment on a subject of this interesting and momentous nature—a subject concerning which so many doubts are entertained, so much anxiety prevails, and with which the freedom of the press, so essential to the freedom of the country, is so intimately connected.

The noble lord, in the manly, perspicuous, and comprehensive speech, by which he introduced his motion, has placed the question on sound constitutional grounds, and established his case by authority, by law, and by argument; leaving us no alternative, but either palpably to abandon our duty, or to accede to his motion; unless resisted by much more powerful reasons than any that have hitherto been advanced. The manner in which the noble lord has considered this subject, proves the industry with which he has investigated it, and the variety and extent of the information he has obtained. A statement so clear and direct seemed to preclude the possibility of being misunderstood. It is, therefore, the more surprising that the learned gentleman should have represented the noble lord's argument as in no degree tending to question the legality of the power assumed by the Attorney General in filing Ex Officio Informations. Nothing can be more erroneous' and incorrect, in my humble opinion, than the learned gentleman's misconception and consequent misrepresentation of the argument of the noble lord; who, so far from admitting, as stated by the learned gentleman, the legality of that power so exercised, has so effectually contended, throughout the whole of his speech, that such a proposition cannot, even by implication, be deduced from any part of the argument, still less be founded on any positive admission of the noble lord. On the contrary, the whole force and tenor of all his reasoning went directly to establish the very reverse of this admission, though from that modesty usually accompanying unassuming merit, he contented himself with stating the law of the case doubtingly. But every gentleman who heard him, must have evidently seen, that the impression upon his own mind was decidedly against the legality of this power, which legality the learned gentleman is pleased to state, as having been admitted by the noble lord. As, therefore, the noble lord's argument was so clear and manifest, I did hope that the answer of the learned gentleman would have been equally clear and direct in combating it; and that we should have been favoured with the reasoning of a legal mind, interesting at least from its ingenuity, even though it might not have proved satisfactory and conclusive. So far, however, from gratifying these expectations; so far from meeting the case fairly and broadly, as laid down by the noble lord, both in law and in principle, the learned gentleman, either from misunderstanding or misconstruing the noble lord's statement, has reduced this great question to a very narrow compass, and left wholly unanswered the constitutional part of the argument, as well as the strongest parts of the statement, more immediately directed against himself.

Sir, the whole drift and undisguised design of the noble lord's reasoning was to question that which the Attorney General presumes to have been admitted—namely, the legality of his ill exercised power. The motion was brought forward with no other view than to expose, not merely the abuse of a power which might or might not be unconstitutional, but the existence of an illegal assumption of power, the evils of which had been aggravated by the lengths to which it had been carried, and the gross partiality with which it had been exercised: and yet the learned gent. has not scrupled, at the outset of his speech, confidently to assert, that the legality of Ex Officio Informations by Attornies General was assented to by the noble lord. But I maintain, and shall be corrected, if I am mistaken, that the whole tenor of the noble lord's speech went to establish directly the reverse—a speech, from the soundness of its constitutional principles, from its strength of argument and fact, well deserving the serious attention of the public, and requiring a very different answer from that which it has received.

The learned gent. appeared to be exceedingly angry at being suspected of being interested in his fees of office, though the noble lord had studiously disclaimed fixing upon him any such imputation; and undoubtedly in his career of ambition the actual fees are but a very secondary consideration. But that we can, therefore, deduce the purity, the disinterestedness, and the absence of motives of filthy base lucre, or of improper bias on the mind of the Attorney-General, is a proposition too ridiculous for a moment to admit. Unquestionably, 6s. 8d. and 13s. 4d. fees are much beneath the notice of a gentleman looking to all the wealth and honour the crown has in its power to bestow. But how one can suppose the motives, instigated by filthy lucre, are weak in proportion as the temptation is strong, or that the bias arising from the hope of immeasurable gain should be less powerful than that arising from the comparatively trifling consideration of fees, is to me quite incomprehensible.

The Attorney General is the last man who, in my opinion, ought to be entrusted with great, or with any discretionary power, and ought to be the first and the most anxious to lay it down and relieve himself from a task, impossible to execute with credit and reputation. The situation of an Attorney-General called upon to act according to the modern practice and doctrines respecting Libel, is, it must be allowed, embarrassing in the extreme: for it is impossible for him to discharge what his employers will consider as his duty, without the laws under his inspection being, in some instances, shamefully relaxed, and in others violently stretched beyond their tone. And to this charge of gross partiality in the exercise of his illegally assumed functions, in filing Ex Officio Informations against those writers hostile to his administration, and withdrawing them when filed against those supporting his administration—thus aggravating the hardships of those who suffer by the impunity of those whom he permits to escape, and adding to the insecurity of all by the uncertainty and capricious exercise of this illegal and unconstitutional power—to this most important part of the charge against him, the learned gent. has, with lawyer-like skill, evaded making any reply. Thus has the learned gent. passed over altogether those points upon which he was seriously attacked, and has exhausted all his powers of defence in rebutting charges which never were urged against him. The learned gent. has thought proper to suppose, that the noble lord had charged him with not having instituted his prosecutions Ex Officio within a reasonable time after the commission of the supposed offence. No such charge was however, made by the noble lord, though the learned gent. has employed a great part of his speech in uselessly defending himself against it.

The question, as it has been argued by the noble lord, is two-fold:—1st, as to the legality of the power claimed by the Attorney General of filing Ex Officio Informations for libel:—and 2dly, as to the abuse of that power in the hands of the present Attorney General. The abuse I take to have been clearly established by the noble lord, because not attempted to be disproved, nor even touched upon by the learned gent. in his defence; nor that inquiry agreed to be consented to, which has been moved by the noble lord, and which alone could vindicate the character of the learned gent. if he was conscious of being free from blame. I defy any man to collect from the gentleman's defence to the charge brought against him, a single reason to justify, or even to palliate (for it cannot be justified) the manner in which indulgence has been dealt out to some, whilst others have been visited with a vindictive rigour unparalleled in the history of this country since the revolution. This, I repeat, the learned gent. has not at- tempted to answer. He bas been equally silent with respect to many other important topics dwelt upon by the noble lord, especially that part of the able argument of the noble lord on the general question of what is miscalled the Law of Libel. This the learned gentleman affected to think not necessarily connected with the charge against himself, and has chosen to consider as unquestioned by the noble lord. It is, however, so much the most material part of the question now under consideration, and that to which the learned gent. has confined himself so comparatively unimportant, that I cannot consent thus to pass it over in silence, notwithstanding the presence of so many professional gentlemen, from whose numbers one might expect to derive some advantage upon such a question. As these learned gentlemen do not appear inclined to afford us any assistance upon the present occasion, one may, from their silence perhaps, not unjustifiably suspect, that they have nothing to advance in favour of the learned gent. the case, that there is no law whatever on the subject. We, however, are bound not to omit considering the whole of this question; nor can we separate either part from the other, if we mean to come to any decision satisfactory to the feelings of the public.

The noble lord has manifestly shewn, that the supposed offence called Libel, and what is called the law upon the subject, but what I shall call the practice, is of itself novel in its nature, borrowed from the worst periods of our history, and hostile to every principle of the constitution—in short, that the methods of procedure, adjudication, and punishments for libel, are the growth of tyranny and usurpation; and whilst these doctrines are susceptible of the capricious interpretations which every day exemplifies, and the Attorney General exercises as capriciously, the discretionary and unconstitutional power claimed by him Ex Officio, it is a farce to talk of the Liberty of the Press. A most wretched slavery is uncertain law, and I challenge all the lawyers in England to define the law, as it is improperly called, of libel: and under the present uncertainly and amidst the contradicting dicta, diametrically opposite to one another, of the greatest judges, and even of the same judges on different occasions, in this sea of uncertainty and contrariety of opinion, bow can any writer guess even when he is or is not writing a libel? Words which he may think the most innocent and inoffensive, may happen to be most irritating to the feelings of some susceptible person; or the Attorney General may differ in opinion with the author, who, if he does, is sure to be severely punished, even without trial, to the extent of fine and imprisonment. For by the new bill empowering the Attorney General to hold to bail, or in other words to imprison, and of the sufficiency of which bail be is to be the judge, by these powers an information filed Ex Officio subjects every man who writes to heavy expence and imprisonment, at the will of the Attorney General, who, after all, may not think fit to bring him to trial—may keep the Ex Officio Information suspended over his head as long as he pleases, and let it fall and crush him whenever he pleases; which by means of a Special Jury he can hardly doubt of being able to effect. If the unfortunate author makes an humble submission, and especially if he places himself at mercy by letting judgment go by default, the Attorney General may, if he is in a lenient mood, never call him up for a judgment; or, calling him up for judgment, may mitigate his punishment. These operations may be repeated at the varying and wayward will of the Attorney Genera): and by this tenure every writer in England holds his liberty.

In order, therefore, to get rid of all these grievances and shackles on the press, and considering it as a commencement of a course of proceeding to remove all doubts and uncertainties, and set the question at rest, I consider this motion as of the utmost importance. That there is some difficulty in the subject, I am ready to admit; but there ought to be some definite and fixed standard of whatever is denominated an offence: and, that the course of proceeding for the punishment of that offence ought to be legal, constitutional, and consistent with the safety and liberty of the subject, is, I think, what no one will deny. That this is not the case, the different doctrines held by different judges of equal authority, and by the same judges at different times, evidently prove; and it is become the imperious duty of the legislature to get rid of this oppressive anomaly by restoring the consistency of the law. Can it be endured, Sir, that the personal right, the liberty and property of the subject, should be thus left at the mercy of the King's Attorney General, under the operation of a practice, so arbitrary, fluctuating, and uncertain as is denominated, the Law of Libel, under the lash of which there is no publication which may not be brought by loose construction, supported by some former precedent, or even without construction or precedent, to a dreadful extent by the fiat of the Attorney General.

But let us take a short retrospect of the conflicting authorities upon this subject. My lord Coke, who makes the first mention of this term Libel, in his 5th report de libellis famosis, in the Star Chamber; which court appears to have considered it sufficient for one person to be answerable for one offence (contrary to the modern practice of punishing numbers, however ignorant or innocent of having been concerned in any thing which rendered them liable to punishment). My lord Coke, in the case Lake versus Hatton, considered truth as a justification of libel; which lord chief justice Popham (no mean authority) denied. Judge Foster, in the case of Warner versus Ellison, maintained the same doctrine with my lord Coke. Judge Windham, however, was of a contrary opinion, and agreed in doctrine with Chief Justice Popham, but carried it farther: being of opinion, that any thing was a libel by which another was injured. In the case of the Seven Bishops, Judges Powel and Holloway were of opinion, that to make any thing a libel, it ought to be proved false and malicious. Mr. Justice Allybone considered any thing, a libel written upon politics without the leave of the government; and the Attorney and Solicitor General went so far as to assert the honeslest paper might be a libel, if written without leave. Chief Justice Holt considered truth as a justification; at least in the cases of Twitching and Fuller, he asked, if they could prove the truth of their writing, desired them to call their witnesses, and tells them if they write such things they must prove them at their peril. In Carr's trial, the judges held any political discussion, unlicenced, to be a libel. In the famous case of Zenger, the doctrine of resistance to tyrannical government was prosecuted as a libel. He was prosecuted for preaching the doctrine of the resistance to tyrannical government, and doctor Sacheverel for preaching the doctrine of non-resistance. In the case referred to by the noble lord, of Hollis, Elliot and others, in the time of Charles the first, he omitted what makes most powerfully for his argument, namely, That their counsel then insisted against the Attorney General, that though the crime they were charged with was punishable, yet he had no right to proceed by Ex Officio Information; but only by indictment or presentment. The Attorney General replied, there were many precedents, but produced none; and sir Francis Winning-ton, in that argument to which that of sir Bartholomew Shower's was an intended answer, gives positive testimony to Lord Chief Justice Hale's opinion of Ex Officio Informations; which was, that if ever they came into dispute, they could not stand. The House will observe the contrary opinions entertained by high legal authorities on this subject: the preponderance, however, of great professional eminence and constitutional character, is greatly in favour of truth being a justification in cases of libel.

In modern times, however, the other doctrine, with more whimsical distinctions, have been asserted and maintained. The more reasonable principles of Coke and Holt are now wholly exploded, and so far has the practice deviated from the rules and notions of those able and learned lawyers, that it has, I understand, been laid down from the bench, in a late instance, as a principle of modern practice, in cases of libel, that any publication which had a tendency to hurt the feelings of persons in high stations, was a libel, and brought the person so offending under the dreadful penalties of this practice. If this be law, how can any man write in safety? So long as a writer flatters the vanity and defends the conduct of men in power, he may no doubt publish without apprehension. He may celebrate their virtues, their wisdom, their disinterestedness, and may varnish over detected delinquencies, with an unsparing hand: he may also indulge in the most rancorous feelings and grossest scurrility against their opponents. This is a liberty of the press he may freely indulge in, but let him beware of discussing measures which he must condemn; as he will inevitably come under this new doctrine of the law of libel, by hurting the feelings of their authors in high stations, whose feelings will unquestionably be susceptible of offence, in proportion as their measures are open to reprehension.

Sir, we have been referred for proofs of the legality of this power, exercised by the Attorney General Ex Officio, to the intended argument, but never delivered, of Sir Barthlemy Shower, which argument, however, I beg leave to observe, has nothing to do with this question. The whole of that argument was addressed to a totally different question, which was, whether, on application to the court of King's Bench, an information not Ex Officio, but by the court, could be granted, though founded in the oath of the parties, and proceeding according to all the usual forms in the case of a trespass. It was contended on the one hand, that the court had not power to grant such an information, though founded on the oath of the party demanding it; for that no man was liable to be put on his trial for any offence, except by the old constitutional mode of indictment. That the court had such a power is maintained, not successfully, I think, in the argument of sir Bartholomew Shower. It is sufficient to state this case to shew how little it can have to do with the legality of informations Ex Officio filed by the Attorney General for libel. If it was contested, as it was successfully by sir Francis Winnington, that these informations by the court, sued out according to the usual forms and upon the oath of the party, if this power in the court was disputed and is still disputable, what are we to think of the legality of informations filed Ex Officio at the discretion of the Attorney General, without the intervention of the authority of the court, and unfettered by any limitations or forms? In truth this practice is contrary to all law. Lord Coke, in his second Institute, lays it down positively, that no man can be attached in his person except by an indictment or presentment of good and lawful men upon their oaths. The courts, indeed, have adopted a practice in smaller offences, such as informations for nuisances, which, upon the maxim "de minimis non curatlex," has not been violently though it has been frequently objected to. But in matters concerning the safety of the subject, care has been taken to provide the guard and shield of a grand jury previous to trial. For the law says, "Nullus liber homo capiatur," no free man can be taken. It does not content itself with saying cannot be tried, but cannot be taken, without the previous sanction of his country. In the case of libel, the subject stands in need of the whole armour of the constitution. He is as much exposed, and to the attacks of the same unequal power, as is well stated by my lord Erskine, as in cases of high treason; and I defy all the lawyers in England to controvert that irresistible argument of lord Erskine's upon this most important constitutional question.

There is another practice connected with this subject insisted upon by the noble lord who brought forward this motion, and not touched upon by the learned gent. in his reply, which is in my mind the most detestable feature in this most detestable practice. I mean that most tyrannical, illegal power assumed of sending men to distant gaols and to solitary confinement, and to close custody, which the law of Eng land abhors, and which was one of the practices principally complained of in the time, of the Stuarts. The learned gent. has said that he was never disinclined to be lenient whenever he offered or manifested contrition for his offence and made a proper apology; in other words, if the party should cease contumaciously, as the learned gent. would call it, to write and to publish freely his opinions, and restrain his animadversions upon the political friends of the learned gent. Such an apology and such pusillanimous desertion of truth and honesty, might, probably, disarm the resentment of the learned gent. but in what a condition, on this shewing of the learned gent. is the liberty of the press, and how does this controvert the charge brought against him by the noble lord, of having exercised his power with partiality, of having oppressively used it against his contumacious opponents, and shewn not a disposition to moderation, lenity or humanity, of which he has talked so much—but a disposition to make an unjustifiable use of the power he assumes to destroy free discussion and the consitutional liberty of the press.

It can scarcely be necessary to remind the House that the term 'libel,' as the designation of an offence, is altogether unknown to the old law of the land; that in fact it does not designate any offence; that in fact it is in itself no offence, and that other words must be added, such as "false and malicious," to constitute it one. In all other technical terms importing crime, guilt is implied, and the mind informed of the nature of the guilt by the nature of the technical expression; as for instance, murder implies a malicious premeditated killing, so burglary a forcible entrance with a felonious intent; so larceny and all other terms respecting crimes, all of which are clear and unambiguous and definite, except in this new-fangled term libel, the date of the adoption of which into the catalogue of offence is to be traced to the proceed- ings of the Star Chamber, a court, it is worth observing, honorable and salutary in its original institution, and long maintaining its character for wisdom and justice, as long as it confined itself to its proper objects of controuling and punishing public oppressors and great state delinquents, who were thought to be above the reach of the ordinary course of the law: and though it has since had affixed to it the appellation of the infamous court of Star Chamber, that infamy it drew upon itself, that very process 'de libellis famosis,' those very doctrines and practices upon Ex Officio Informations by the Attorney General, which are now complained of as continuing to be exercised by the court of King's Bench. This was the source, the fountain, and the life of this hopeful progeny of arbitrary prosecutions and cruel and unusual punishments: but even this tribunal, arbitrary, oppressive, and unprincipled as it was, admitted truth to be pleaded in justification; did not reach to the practice of modern times, or declare the greater the truth the greater the libel. That court, too, adopted, as I have before shewn, the common law principle of considering the punishment of one offender sufficient satisfaction to the law for one offence. In that court the giving up of the author of a libel was allowed to exonerate all other parties from penal responsibility; and it was only when the author could not be ascertained, that any other party was held accountable.

In how favourable a light, by this comparison, does the much abused Star-Chamber appear, when, according to the practice of modern times, truth so far from being a justification, is in some cases held to be an aggravation of the offence, and the vengeance of the prosecutor no longer terminates with the punishment of the author, but extends to every individual connected with the publication, however, guiltless of any malicious or calumnious intention, or incapable of surmising any opinion of its actual or constructive tendency.

It is useless for me or for any one, at this time of day, to indulge in accusations against the Star Chamber. Every man who knows any thing of the history of the country is well acquainted with its usurpations and the causes of its abolition, and will be able to draw a just conclusion of its proceedings and of those of the established courts.

In libel cases in more modern times the court of King's Bench has assumed this nvidious jurisdiction, and the Attorney General continued therein to exercise this unconstitutional power. The court of King's Bench is a common law court, and ought to be bound by the maxims and governed by the mild spirit of the common law. An, offence, therefore, unknown to the common law, and a mode of proceeding originating only in the Star-Chamber, cannot fall within its jurisdiction, or, be a fair mode of legal proceeding. And as, in point of fact, we find it is by a monstrous fiction of law, that what are termed libels are brought within its legal cognizance, its jurisdiction under which come all those actions, denominated crimes, and those only, is, strictly, speaking confined to offences amounting to a breach of the King's peace: but libels, which are mere words, or at most signs, constitute no actual breach of the peace. They are obliged, however, to have recourse to this notable fiction: and yet it is but the shadow of a fiction, for their pretence is, that it tends to a breach of the peace: therefore it is no actual breach of the peace, and therefore no crime within their jurisdiction.

In order, however, to give a colour to take any cognizance of it at all, the old indictments were laid vi et armis: for such was the mild nature of the ancient law, that it would not recognize any act as amounting to a crime, unattended with force and violence. It was also laid to be false and malicious. These words have, by degrees, been dropped in the indictment, as inconvenient to be proved. It is really curious to observe the whole of this anomalous proceeding with respect to libel, the various shape which it assumes according to the interests of the prosecuting parties. It is not a crime; is and is not a misdemeanor, just as it suits the immediate object in view: by this ambiguity however it is, that the judge and the Attorney General get hold of it like the two thieves in the fable; one says, I did not take it, the other says, I have not got it. The judge says, it' it is a crime or I have no jurisdiction; the Attorney General says, it is not a crime or I have no Ex Officio Information, it is a misdemeanor. Now, a misdemeanor means' that small species of offence which the term obviously implies, a misbehaviour, on which it might be allowed for a court to animadvert and correct in that gentle manner appropriate to so small an offence, without the subject feeling it so heavy a grievance as to surround himself, or to demand what he is strictly entitled to, the intervention of a grand jury of the country. As a misdemeanor, therefore, the Attorney General proceeds by information, but when so brought into court, the offence unknown to the law, indefinite and undefinable, immediately assumes a very different appearance, and becomes, according to Judges and Attorney Generals, a crime of the most heinous nature. By this trick and contrivance is the subject compelled, upon a false pretence, to answer as to a criminal charge, stripped of the protection provided for him on such occasions by the constitution and the law; deprived of the advantage of preliminary process, of his undoubted birthright, a grand jury of his country. The Great Charter says, no man shall be taken, any more than tried, unless per judicium parium, by a jury of his country: but the learned gentleman says, by the new act it is in the discretion of the judge to grant or refuse his holding to bail in the first instance, and consequently there can be no danger of abuse; but the Great Charter holds a different language, and is clear and explicit on the point. It leaves no room for discretion; and I shall never consent to transfer the care of the rights and liberties of the people from the protection of the law to the discretion of any man.

But is it not only by being deprived of the intervention of a grand jury, that the subject is injuriously affected by these Ex Officio Informations; he is equally harrassed by the uncertainty of the charge, and the indefinite character of the offence: having been accused for a misdemeanor, and by that means brought under the operation of an Information Ex Officio, that he is brought before the court for a misbehaviour is wholly forgotten, and punishment inflicted on him as for a crime of the most enormous kind. The cruelty and vexation of Ex Officio Informations is indeed boundless. The individual against whom it is filed, may be absolutely ignorant of having committed any offence; he goes to trial without any of the advantages which are not denied even to the greatest criminals, and is liable to be punished with a severity with which the greatest are seldom visited; and in short may be said to be placed wholly at the mercy of an interested prosecutor in every stage of the proceeding; all and every part of which is entirely under the con- troul of his arbitrary will. By this oppressive instrument Ex Officio, he may accuse whomsoever he pleases, whensoever he pleases, and whatsoever he pleases, and may bring to trial or not, as he pleases. He may renew the danger, anxiety and expence of preparing a defence as often as he pleases; he may thus fine ad infinitum, and ruin without ever being obliged to attempt to prove the truth of his allegation. Every term he may file his Ex Officio Information, so that he may literally ruin any man without coming to any trial at all. In case he chooses to proceed to trial, he claims powers equally oppressive and unfair in the conduct of it. He chooses the nature of his jury, of course a special jury, and supposing a sufficient number of special jurymen are not in attendance, he prays a tales, or not, as he pleases, and claims a right, as in every other step of this proceeding, to repeat it as often as he pleases, even after the jury are complete; for any reason, no matter what, he claims a right, previous to coming to a verdict, of withdrawing & juryman, and still putting off the trial, which also he may recommence whenever it suits his purpose; he claims the unfair advantage denied to every one else, of replying upon the defence, when no witnesses have been called. The same oppression and injustice accompany him, throughout: for after having obtained a verdict and prayed the severest sentence of the law, even after sentence, he assumes and exercises the oppressive and illegal power of aggravating the punishment, by choosing the sort of gaol and mode of imprisonment; so that the same sentence is by no means the same punishment. Imprisonment in a distant gaol, where solitary confinement is the rule, is very different to an imprisonment in a constitutional gaol, free from every restraint not necessary to the safe detention of the prisoner.

There is, indeed, no end of the vexations and hardships to which the subject is liable, under this libel practice, by means of this unconstitutional, illegal Ex Officio proceeding. It is not necessary for me on this occasion to prove that the present Attorney General does actually inflict all these vexations on every occasion: it is fully sufficient for my argument, that he may and does exercise, according to his own discretion, more or less of such scandalous power. Can the press be called free in a country where such a power of fine and imprisonment is exerted at the discretion of any individual? where the subject is exposed to such arbitrary methods, for as arbitrary an offence; an offence created by construction alone, and wholly undefined by law; where a writer wishing to avoid, but not knowing what is or is not libel, may consult the opinion of the most eminent of the learned profession both ancient and modern, and find that no two of them can agree upon the subject; is this a state in which the subject or the law should be suffered to remain? We have been told by the learned gent. to night, that there is no hardship in the case, and no cause for any inquiry; that nothing can be so fair, lenient, merciful and forbearing as this libel process; that the Attorney General is a pattern of conscientious candour, the master of the Crown-office of unbiassed impartiality in selecting jurors, and special juries them-selves the best adapted contrivance for upright and fair decision in cases of political libels. Without meaning to impute any thing improper personally to the actual Master of the Crown-office, of whom I know nothing, I cannot however consider his connections in general, his situation and office, and with the Attorney General in particular, being according to sir Bartholomew Shower, now relied upon as a great authority, the official deputy of the Attorney General himself. I must confess, whatever may be the merits of the individual, I cannot, under all these circumstances, regard such an officer so situated, as likely to be the most disinterested, and therefore the most proper to select special jurymen and return pannels, where the crown is ostensibly held forth as a party, but where the administration is really interested, of which administration the Attorney General is principal, is the Ex Officio prosecutor, and by far the most interested member of the whole administration, in support of which these Ex Officio Informations are filed. Upon this subject, however, of appointing special jurymen, I can speak with positive certainty, having had an opportunity of knowing by my own experience, the method and management of this curious business. I had before had much information, but not practical knowledge on the subject, but in consequence of that action which in defence of the law and in duty to the country I brought against you, Sir, and with great reluctance as far as you were personally concerned, from motives of a private nature, which you, Sir, will well understand, though not proper perhaps to mention here, and from those of a public kind, from having witnessed the talent and ability with which you have executed the high and difficult duties of your station, and in which you have on several trying occasions supported, as far as depended on you, the character of this House. The proceedings I instituted upon that occasion, were not therefore against the individual, but against the assumed power of the House, not intended to press upon any particular person, but to oppose arbitrary power. From what I had heard and read upon the subject of special juries, I was desirous of attending in person when the pannel was to be appointed for trying the action, to which I have before alluded. I accordingly attended at the Master's office, and found that all I had before heard respecting the appointment of these juries was perfectly correct; I found, in fact, that the names of the pannel were taken at the discretion and dictation of the Master. I was accompanied on the occasion by my solicitor, Mr. Ellis, a gentleman I have found zealous, able and intelligent in his profession. Mr. Ellis wished that the 48 names selected by the. Master should be taken in some fairer and less exceptionable manner than the Master was proceeding to take them in. Mr. Ellis wished that the names should be-either taken in succession from any part of the freeholders' book, or by some fixed rule or other, no matter what, but some rule by which we might judge a little what we were about. This, however, could not be obtained, it was then proposed by Mr. Ellis, that the pannel should be taken from the freeholders generally. The Master of the Crown-office insisted that those only should be chosen to whose name the appellation of esquire was added. Not having any reason particularly to desire the jury to be composed of squires, but, on the contrary, having very particular reasons for wishing the jury not to be composed of the Master's squires, and convinced that a jury of common freeholders would be the most likely to afford an upright and impartial decision, Mr. Ellis requested to be informed upon what ground the Master insisted upon appointing a pannel exclusively of squires? At first it was said to be in obedience to the act for forming special juries, but Mr. Ellis assured the Master that no provision to such an effect was to be found in that act. It was then pretended to be in pursuance of a rule of court, but Mr. Ellis requesting to see the rule, here also, on examination, it was ascertained that no such matter was contained in the rule. To cut the business short, the Master said it was the rule and practice of his office, and of this we had sufficient proof in the actual transaction before our eyes, and to this practice we were compelled to submit. This, Sir, is Mr. Attorney General's fair, just and impartial mode of appointing a special jury, who are to try writers on charges of libel, charges with which the liberty of the press is so vitally connected.

But, Sir, is it not notoriously known, that the persons who usually serve on special juries are men who make this employment subservient to their profit? and convert the performance of their duty into a source of revenue? They are, with scarce any exception, connected in some shape or other with the government; they are for the most part either engaged in contracts, or collectors of taxes, or Middlesex magistrates, or otherwise under government influence.

I have also learned from the publication of Sir Richard Phillips, who has rendered no mean service to the public, as well as through other channels, much information on this subject of packing juries: first, that there is kept a gross qualified list, qualified by having esquire added to their names, in the freeholders book; secondly, that there is a secret qualified list, consisting of about 400 names, squires of course, from which all special juries are taken; that to be placed on this secret qualified list is an object eagerly sought alter, as a regular source of personal emolument, and that to be let drop out of this secret qualified list, is also an object of considerable apprehension to those who seek with avidity the employment; that this is the fact also falls, in one instance, within my own knowledge; for, not long since, I had myself an application made to me by letter, from a person who had experienced this inconvenience, complaining of being struck off this secret, or, as he called it, paid list, stating himself not to be aware of having given any offence, and requesting my interference to get his name reinstated upon the list.

When, Sir, we are in possession of these facts, we may cease to be surprised at the Attorney General's not having insisted, in his attempt at justification, upon that which would otherwise have been a most power- ful argument in his favour, viz. that in all the cases he had brought to trial he had been borne out by the verdicts of juries. This is a circumstance that must naturally have occurred to every gentleman who has attended to this debate; and is too strong a ground of defence to have been overlooked or neglected by so acute a lawyer as the learned gent.; to do him justice, however, he has been so far candid as not to have insisted on this point, either too candid to urge it or too penetrating not to perceive how it might be turned, under these circumstances against him, if the juries had been fairly constituted. I am ready to admit that their verdicts would have had great weight as to the propriety and moderation (supposing the Ex Officio Information to be legal) with which that power had been exercised; but I must contend, and the learned gent. seems to admit it by not insisting on it in his defence, that the propriety of the exercise of the power assumed by him Ex Officio can derive no sanction from the verdicts of juries constituted like these.

Special Juries, Sir, are of late introduction, and may be termed a modern invention, for nullifying the cheque of juries on judges, and for procuring acceptable verdicts; and being applied to libel cases, are dangerously perverted from the original intention of their institution. The first mention we find of special juries is in the first special jury act, (for there are several) of George the 2d, artfully worded so as to appear to be only regulating an ancient, and not introducing a novel practice. Its origin is certainly but of recent date; not that it is very material whether special juries be of recent or remote date; whilst they are so selected and constituted, they are a grievance not to be endured, and it is no answer to the charge of an improper use having been made by the learned gent. of his power to say, that his Ex officio Informations have been borne out and confirmed by the subsequent verdicts of such juries as these.

Sir, I feel some reluctance, after the very comprehensive and able view taken of the general principles of law, as affecting this question, by the noble lord who opened this debate, and the total silence of the learned gent. who has just sat down, upon all the great leading points of the question, to obtrude much longer on the time of the House: the subject is, however, too important for me not to press it on the attention of the House and of the public. The fact is, that the term libel, which, as I have before stated, implies no offence, and is not even known to the law of this country, has been borrowed from the most slavish part of the most slavish imperial law; was first adopted by the court of Star Chamber, togethter with the doctrines and oppressive modes of proceeding with which it has been accompanied. It is curious to observe, that even that slavish imperial code was itself, by venal lawyers, first wrested and perverted, before libel, as an offence, could be brought under its cognizance, that it was during the reign of the most wicked monsters that ever afflicted the world, the emperors of Rome, who made it the instrument of the most degrading, cruel and detestable tyranny, that it took its rise and flourished as in a soil most conjenial to its growth; for the Roman did not, any more than the English law, designate as crimes such acts as were afterwards amongst the Romans, and now amongst ourselves, denominated libels, still less punish them as crimes. Their Jaw, like our own, allowed freedom of speech and of discussion, and it was only against overt acts injurious to the state that the vengeance of their laws was directed. Even when the imperial tyrants, for the consolidation of their power, found it necessary to extinguish the liberty of speech and of free discussion, they did not venture to promulgate a new, but only to extend and pervert an old law. The same stale pretences were, by the Roman lawyers, made use of for introducing that tyrannical practice with respect to libel, and to make that, by construction, an offence, which was no offence by law, at was made use of to introduce the same practice, and the same doctrines upon the same subject, by the venal lawyers of this country in the Star Chamber, which then only became infamous, and on that very account the pretence of disturbing the peace of individuals, and of the necessity of protecting private character against calumny and malice. This, by the Roman lawyers, in the time of Augustus, was brought by construction under the law of 'Læsæ magistatis,' a law originally made to protect the liberty of the people, and prosperity of the state, against the treachery, or other delinquency, of great men in situations of great public trust. The transition was easy from private to political libel, and the arguments of the Roman were the same as those of the English lawyers, in order to make political writing, because it might hurt the feelings of high placed individuals, a crime. The argument was shortly this; that if it were mischievous to calumniate a private individual, and deserving punishment se to do, how much mote mischievous was it, and how much more deserving of punishment to calumniate the instruments of government under the prince? Before this notable expedient, the Roman, like the English law, contented itself with repressing bad deeds, leaving words free. That this is a correct statement, we have the direct testimony of the great Roman historian Tacitus, in his sketch of the commencement of the reign of Augustus, "Olim," says he, "facta arquebantur verba impune erant, Primus Augustus cognitionem de libellis fainosis, specie legis ejus tractavit." Augustus was the first who brought libel under the penalties of this wrested law. Having once established this method of proceeding with respect to libel, it was impossible that any one could write or speak with safety; accusations multiplied as the infamy of the government increased, as the frequency of conviction encouraged the industry of informers. At length, the severity of the practice became so outrageous, that not only writing and words, but looks, sighs and tears, "ferninæ ob lacrymas incusabantur," even silence, or too much, or too little, adulation was, by the ingenious construction of court lawyers, brought under the penalties of this law, aggravated into guilt and punished as crime. A Roman matron, Vitia, was punished for lamenting at the execution of her son, suffering under the execution of this perverted law. The famous instance of the Roman knight, Cremutius Cordus, punished under this law, for writing a history in which Cassius and Brutus were called the last of the Romans, is familiar to every school boy. Nor less remarkable is the instance of one of the descendants of Cassius who fell under the penalties of this law for placing a statue of Cassius amongst those of his ancestors.

But not to weary attention by exhibiting the long train of Roman oppression by means of this system of constructive libel, let us for a moment turn our eyes to the history of our own country groaning under a system, the offspring of this detestable tyranny; and we shall find, unfortunately, too many traits of its origin not at once to recognise it odious parent. In the reign of Charles the 2d, when these Ex Office Informations were most used, sir Francis Winnington informs us in his argument against the legality of informations granted even by the court, that a person was severely punished for drinking to the pious memory of Stephen Colledge; another was punished for what was called a most venomous heretical libel, for expressing his opinion in approbation of Adult Baptism, because that was the age at which the apostles were baptised. Pilkington and Shute for voting for sheriffs contrary to the desires of the court; sir Samuel Barnardiston for writing a jesting letter to a friend in the country ridiculing the Protestant Plot—it would be endless to go through all the cases of this description which might be pointed out; suffice it to say, that if such doctrines and practices are to be reintroduced and maintained, and Ex Officio Informations in consequence suffered: it cannot be fairly said, that the liberty of the press exists in this country. [A cry of hear! hear!] Do gentlemen, Sir, mean by that cheer to question the propriety of the remark? If they do, I refer them to the actual situation of the press of all public writers, and to the daily practices with respect to them. It is undoubtedly true, as has been well stated by the noble lord, that the utmost scurrility may, on the side of the ministry, be employed against persons in the highest situations, even the highest may be aspersed, groundlessly aspersed, without subjecting the traducers to the destructive vengeance of the learned gent. Let the calumniators but abstain from touching the administration of the learned gent.; let him abstain from the discussion of such topics as must lead to the exposure or impolicy of their weakness; let bin" but pass over, without comment, such measures as it is his right and his duty as a public writer freely to animadvert upon; and he may be secure from the deadly gripe of the Attorney General; unless indeed there should happen to be a change of administration, then the whole scene changes;! the actors change with the scenes, and he who was deemed a libeller to-day, is tomorrow a very honest gentleman; and so vice versa as often as the administration changes.

As a preliminary step to cure all this shameful and distressing uncertainty, I hope and trust that the motion of the noble lord, which I consider only as a first step towards a cure, will be agreed to, and that it will lead to some legislative provision against this monstrous, illegal, and oppressive power claimed by the Attorney General. As to the pretended antiquity of this power, it is by no means a material consideration: the grievance would be none the less for being of long standing, but that the contrary is the case, can, I think, easily be shewn. That this practice, with respect to libel, is so far from being antient, that it is altogether of modern adoption and of foreign extraction, as it came from a system of slavery, so it brings a system of slavery along with it, that it is not only contrary to English law, but inconsistent with common sense, even to that slavish imperial law from whence it sprung; and that it is the foundation of all law; for can any thing be more absurd than to confound, as is done in libel case, all moral distinctions to make truth and falsehood equally criminal, and indeed it has been said, the greater the truth, the greater the libel. I do not, however, pretend to say that mischief and malice are not to be restrained, whatever shape they may assume; that if as much mischief could be done with a pen as with a sword, reparation ought not to he made to the injured, and punishment to await the guilty; but this is not to be effected upon pretence of libel, nor is an information Ex Officio by the Attorney General a legal, fair and constitutional mode of proceeding, nor is writing a libel but malicious mischief, the crime which calls for punishment. But to pretend an act a crime void of malice, not even accidentally, much less intentionally, producing mischief, which shall be visited with the heaviest punishment at the same time that it is unattended with any moral guilt, is too preposterous a proposition for any honourable mind to assent to.

To look at the practices of modern times under this pretended libel law, one would almost think we had relapsed it to the odious times of the Stuarts. This was the very rock upon which they split. It was owing to these very practices, and that Martyr to obstinacy, Charles the 1st, lost his head, that James the 2d, was expelled the throne, and the family finally banished the land. This was effected by those infamous Star Chamber proceedings which the King's Bench seems now willing to adopt, as well as those cruel sentences and punishments equally abhorrent to the nature of English law, and equally detestable, whether inflicted by one court or another. For what was it that was complained of in the Star Chamber, but Ex Officio prosecutions and cruel and unjustifiable punishments; and amongst all the cruelties exercised by that infamous court? The practice most complained against was the modern practice of sending to distant gaols and close custody. "When," says some one in Rushworth, "peaking of the cruelties of the Star Chamber," when nothing would satisfy the rancour of some churchmen but whipped backs, gagged mouths, and slit noses, and above all the transporting men to distant prisons, and keeping them in solitary confinement; when wives and children and friends were, by orders from that court, prevented from entering those prisons where their husbands and fathers lay in misery, then began the English nation to lay to heart the slavish condition they were brought unto. Should this court be longer suffered to exercise its tyrannical power?" and it is high time when the same system is reintroduced, when cruel and unusual punishments, and, above all, distant gaols and solitary confinement are again resorted to, that we should lay to heart, in like manner, the slavish condition likely to be brought upon ourselves, if no restraint should be put upon the powers and practices now claimed and exercised by the Attorney General against the liberty of the press. In order, therefore, to commence some cheque upon these arbitrary, cruel, and unconstitutional proceedings, I shall give my decided support to the motion for inquiry brought forward by the noble lord.

Mr. Stephen

maintained the legality of the practice of filing Ex-Officio informations. The hon. bart. was consistent in not giving his sanction to prosecutions for libels. In a speech of his to the sage judges of law assembled, not in Westminster-hall, but in the purlieus of Westminster-hall, sub diu in Palace-yard, he, as appeared from a newspaper report of his speech, pledged himself to his auditory, that when the subject should be under discussion, he would prove "that the practice was contrary to the principles of the constitution." But he would join his learned friend in challenging the hon. bart. to point out any time in which libels were less severely punished than at present. The learned gentleman here enumerated several cases of the punishment of fine, pillory, imprisonment, and flogging, having been inflicted for libels in the reigns of William and Mary, of Anne, of Geo. 1, and of Geo. 2, disclaiming at the same time any desire to express approbation of such severity, though he could not avoid stating the cases, in order to shew that in good times, as they were called, more severity was used than at present. He was not surprised at the part the hon. bart. took upon this subject, because he had forborne to prosecute a most gross libel against himself which appeared in another part of the same paper—in which he had read the passage of the hon. baronet's speech. That paper had represented the hon. bart. to have said "that all the grievances of the people were engendered in the corruptions of that House of Commons, falsely stating itself to be the legal representatives of the people." This was a most gross libel on the hon. bart.; but he was treated much worse in a subsequent part of the paper, where he was made to say," that no government 'can stand without the confidence of the people:" and also "that the people can never regain their right to petition the House during the remainder of this long and misguided reign." All those passages he contended were gross libels on the hon. bart.; particularly the last.—The whole of the argument of the noble lord who brought forward the motion resolved itself into this, that there had been a greater number of prosecutions for libels of late than formerly. This had been satisfactorily answered by the observations of his hon. and learned friend, from the greater number of periodical papers that were now published, which was likely to be followed by an increase of libels. There was a spirit in many political writings at present, which was peculiarly dangerous, and required to be carefully watched and put down if possible. It was not confined to the attack of this nor that administration, but was hostile to the very constitution itself. Attempts were made to calumniate the very system of the government itself, and particularly in regard to the army, on which the safety of the country so greatly depended. It was an ominous circumstance with regard to the present period, that the press had teemed with more libels on that very point than on any other. To give the House some idea of the astonishing multitude of periodical publications, he would mention, that in last January alone, there were no fewer than 2,037,000 stamps for newspapers issued from the Stamp-Office. Under such circumstances, taken altogether, the mildness and moderation with which the powers of the Attorney General had been exercised, really appeared as manifest as their legality.

Mr. Peter Moore

observed, that all that was sought for on the present occasion, was the means of investigation. The public mind was greatly interested in the present question; and very properly, for the liberty of the press was the best birthright of an Englishman, and what perhaps, he had most to depend upon for the maintenance of all his other rights. To his certain knowledge, in consequence of the numerous prosecutions lately instituted, an alarm had gone abroad that struck such a terror into the booksellers, that when a person very lately offered a pamphlet to the London booksellers, displaying the most nefarious practices in certain gaols in Ireland that ever disgraced a civilized country; offering also to prove them by affidavits, he could not get a publisher. This fact struck him with alarm; for if the abuses of power were not to be exposed, then there was every danger of their being practiced with impunity.

Mr. William Elliot

thought that no instances of an improper use of the powers of the Attorney General had been produced, and could not therefore support the motion of his noble friend.

Sir Samuel Romilly

declared, that he would not enter upon the general question which had been that night the subject of discussion, but would shortly state his reasons for the vote which he should give in favour of the motion. The object of it was merely for an account of the number of ex officio Informations that had. been filed within a certain number of years back. Now, really, when it was considered, that these were professedly prosecutions instituted by the government, for the public service, and at the public ex-pence, one would think that there must be very strong reasons indeed for not ac-ceding to the production of the account moved for. Every thing that had been said by his hon. and learned friend, the Attorney-General, afforded the strongest reasons for granting the information that was now sought for. Public prosecutions ought never to be matters of secrecy, and particularly prosecutions relating to the liberty of the press, which was the great safeguard of all our privileges, civil, religious or political. The strongest grounds, then, ought to be laid for rejecting the motion, if it was to be rejected. But it was said, that a charge had been made, and if the House granted the papers, they would seem to sanction the charge. Now, it appeared to him, that there had been rather two statements of facts made, and that that had been asserted on one side of the House which had been denied on the other. Would the House, therefore, refuse the most authentic information that could be obtained as to the facts on which alone they could form their own opinion? His learned friend who spoke last but one, had said, that the libels which had been prosecuted by the Attorney-General had no connection with the present administration, or with one administration more than another, and. therefore that the advisers of such prosecutions were not actuated by party motives. This might be all very true; but how was the House to know it, if authentic information was denied? Which of them knew how long those prosecutions had been suspended over the heads of the defendants? From the speech of his learned friend the Attorney-General, the House would naturally be led to conclude, that he had acted a very meritorious part: why, then, did he object to give that decisive evidence of the propriety of his conduct, which would satisfy the House and the country? There was often heard in the speeches of ministers a disposition to talk loudly of their responsibility, and in so doing they were cheered by their friends for their great magnanimity; while perhaps the very next day they refused all information; and consequently prevented enquiry, without which there could be no responsibility. Besides, if unfounded suspicions had gone abroad, was it not to do the most important benefit to the government, to afford the required information? And if the information should be refused, was it not likely to confirm the suspicions that were entertained? He was further desirous of enquiry, because it would include that period when he had the honor to be Solicitor-General, and when he believed no prosecution was undertaken without his opinion and assent. It was said, the Press was at present more licentious than formerly; but it was the common language of all ministers to represent the Press as peculiarly licentious in their time. If of late it had been more licentious than before, that was only a proof of its wonderful buoyancy, for it had grown under greater restraints in respect to publishers and printers than had ever been formerly known. To his own knowledge, the existing law requiring the name of the author, or at least of both printer and publisher had prevented booksellers from publishing books the most innocent, because the author did not choose that his name should be known. He should, therefore vote for the information required.

Mr. Charles Adams

said that he should support the motion of the noble lord.

Lord Folkestone

rose to reply, and spoke as follows: Sir, after having already trespassed so long upon the attention of the House, it would be unpardonable in me to consume much more of its time; but I cannot refrain from making a few short observations upon what has been dropped in the course of the present discussion. My right hon. friend (Mr. Elliot), and the hon. and learned gentleman (Mr. Stephen) have stated, that I have produced no instances of an improper use of the power of the Attorney General to justify this motion. To this I reply, that I have laid different grounds: first, the general ground of the hardship under which this power lays all the subjects of the realm: secondly, the improper use of it, in the case both of prosecutions improperly commenced, and of partiality. And for the truth of this, I need only refer my right hon. friend and the hon. and learned gentleman to the fact, that the Attorney General has, in no one case, denied the hardship of which I complained, and to the statement which I made in the outset, confirmed as that statement has been by the Attorney General himself: namely, that of the forty-two prosecutions commenced in three years, nearly one half have not been proceeded in. Now, Sir, either the prosecutions were justifiable, or they were not. If they were justifiable, then why were they dropped? Did the Attorney General assume to himself the right to decide that sufficient punishment had been inflicted? and the right to inflict it on whomsoever he chose? The Attorney General tells us that he has received apologies. Sir, the Attorney General is a public servant, acting for the benefit of the public; and is he to assume to himself the right of stopping proceedings commenced with that view, upon an apology made to himself? Besides, what apology can be sufficient in the case of such high misdemeanours as those to which alone, according to Blackstone, these ex-officio Informations are applicable? If the prosecutions were not justifiable, then at once here is a cause for inquiry and for granting the papers I have moved for; then, all the persons affected by them have been unjustly subjected to expence and trouble. But the hon. and learned gentleman (Mr. Stephen) says that the increase of publications justifies the increase of prosecutions. But, Sir, is that the real state of the case? In the six years ending 1806, the number of prosecutions is at the rate of two in each year. In 1808, 1809, and 1810, at the rate of fourteen. Have, then, these publications increased in the rate of fourteen to two? Certainly not.—Of the rest of the speech of the hon. and learned gentleman, I have only to say, that he has not alluded to a single argument of mine, which he has not misrepresented. But, in truth, the hon. and learned gentleman applied scarcely any one sentence of his speech to the arguments that have been urged, or to the case now before the House. He came down with a bundle of old papers, prepared evidently, not for the purpose of refuting arguments that might be used in behalf of the motion; but with the view of attacking the hon. baronet (sir F. Burdett). And how, Sir, does the hon. and learned gentleman attack him? Why, for not prosecuting as a libel, that which purports to be an account of his speech to his constituents. And what are the grievous parts of this libel?—that the hon. baronet has been represented to have said, that "no government can stand without the affections of the people," and that he hoped "the people would never again be deprived of the right of petitioning." Sir, is it libellous to say this? Are these libels, which the hon. baronet is called upon (and the hon. and learned gentleman does call upon him) to prosecute? If these are libels, then I beg to be comprehended in the guilt of a libeller. I am guilty of being such a libeller, and I beg to be comprehended in the hon. and learned gentleman's censure.—But, the hon. and learned gentleman tells us, that the spirit of the people is libellous. "There is a spirit gone forth," says he, "amongst the people, of so dangerous a sort, that the Attorney General is called upon to check it by these prosecutions." Is it so? Why, then, Sir, let the causes of that spirit be inquired into. Let us correct the abuses and the grievances that have given it birth. Let us institute these proceedings, in order that we may retrieve the affections of the people, without which, notwithstanding the censure of the hon. and learned gentleman, I shall still assert, that "the government cannot stand."—With regard, Sir, to the speech of the Attorney General, it is to be remarked, that he really has rebutted neither the allegation of general grievance under the law, as it stands and is administered; nor any one of the cases alledged of oppression and partiality. The Attorney General has passed an eulogium on special juries; but his hon. and learned friend behind him, has not said one word in answer to, or in contradiction of, the facts alledged on that subject by the honourable baronet. This question, however, of special juries shall be made, on a future day, the object of a specific motion; and therefore nothing more need now be said upon it.—The Attorney General has plumed himself upon his civility to me in ordering all the records and offices to be thrown open to my inspection. I really did not know that I was so much indebted to him. He has given me credit for great industry and care in rummaging into the antient records on the subject. I am afraid, Sir, that I am not entitled to this commendation; and if it was part of my duty to devote myself to these researches, and to read all these libels before I brought the question forward, I am afraid I must plead guilty to the charge of having come before the House unprepared.—Sir, the Attorney General is very angry at the mention of the word fees, and is extremely indignant that it can be entertained as a possible motive for any Attorney General, that he is to receive fees on the filing of these Informations. Sir, I cast no such imputation upon the learned gentleman: but I wish he had been equally abstemious in another case, where the imputation was equally undeserved, and when it was used for the purpose of aggravating the punishment of an offence of a quite different nature, and with which it had nothing to do. The learned gentleman knows to what I allude, and has mentioned it in the course of his speech. I am glad he has done so; for I am glad to have an opportunity to state that that imputation was quite unfounded and totally unjustifiable. Sir, I have known Mr. Cobbett, the person against whom the learned gentleman flung out that accusation, for many years. I have heard of the eminent services he performed for his native country when a public writer in America. Honourable testimony has heretofore been borne to those services in this House; I have known him ever since his return, and have never ceased to admire his public writings, or to esteem his private character, I have more than ever had occasion to do so, since he has been suffering the punishment which he is now undergoing, in Consequence of the prosecution of the Attorney General, and I am extremely happy to have had an opportunity of professing publicly the high esteem which I bear him, and the value I set upon his writings, and the great services he thereby does the country.—The Attorney General has told the House, (hat I complained of state prosecutions, but that I gave no instance of any such. It is true, that I complained of the possibility as the law stands, of keeping these prosecutions hanging over the heads of individuals for an indefinite period; but I did not complain that this had ever been done. The Attorney General states a case where he entered a noli prosequi to relieve the mind of the person against whom a prosecution had been commenced. I am bound to acknowledge the truth of that statement, and to bear testimony to the kindness with which the Attorney General acted in that case—but why is this the only noli prosequi which he has entered? Why, in other cases where prosecutions have been dropped—or at least not proceeded on—why have they not been put a final stop to in this way? Why have they been left in such a state, that at any future period they may be taken up again either by the present or any future Attorney General? Why were not the minds of these other individuals equally set at rest? Sir, I complain of this: these people are still under the lash. It is not in full operation; but it is kept suspended over them, and may at any future period be again brought into operation.—And now, Sir, with respect to that case, which the Attorney General states so triumphantly, of the only person who has been committed under the 48th of the King. The Attorney General says that I misrepresented that Act, when I said that it gave him the power to hold all the King's subjects to bail. I surely could not be understood to mean that it empowered the Attorney General himself to take bail, or to commit. I have read the Act and I know it means no such thing; but it does that which is tantamount to it. It empowers a Judge—(I am not quite sure whether or no it is imperative on the Judge)—it empowers him, however, at all events, to hold to bail or commit any person against whom the Attorney General files his Information. Is this nothing? The Attorney General may file his Information against whom he pleases, and on Affidavit of the filing of the Information, the Judge may hold to bail or commit. Then, I say, that this gives the Attorney General the power of having any person whom he pleases, held to bail.—But this Act, it seems, has only once been brought into operation. Has the Act done no good? it ought, then, to be repealed. Is it useless? it ought to be repealed. It has been useful in one case: and that case the Attorney General states triumphantly. He says it is the case of one O'Gorman, who after an Information filed against him for a libel, republished the Libel, and was then brought under the operation of this Act, and being unable to find bail was committed. I say, that this case, instead of being a triumphant one for the Attorney General, is a case of most gross and flagrant abuse. In the first place—a libel!—by what right does the Attorney General call the publication in question a libel? 'Has it ever been so proved? Has the author ever been tried and convicted of being a libeller? No. The Attorney General, for reasons which he has stated, has never brought this work to the test of a trial. It is, therefore, no libel in law; and he has no right so to call it?—.Then, as to the republication of this work, which the Attorney General is pleased to call a libel, I understand that the fact is not true. Previous to the filing of the first Information, a second edition of the work was sent to the press. The putting the Information on the file did not stop the work of the press: it went on, and the second edition was printed and sent home to this man's house: and this is the republication for which the second Information was filed: Well, but admitting the work itself to have been as heinous a libel, as abominable a publication as ever came from the press. What then? Does that render the author justly amenable to this Act? Was this act passed to punish libels? or to enable attorney generals to punish those whom they chose to pronounce libellers?—No: this act was passed to prevent culprits running away from justice: to prevent their escape. And I want to know, if this man was more likely to run away from the second Information than from the first? Whether the re-publication, therefore, gave any good ground for bringing him under the operation of this Act, or not, I say, that the object and purposes of this act have been herein grossly perverted. I say, that this act, passed for one purpose, has been used for another—has been used arbitrarily by the Attorney General for the purpose of punishing a man, who has never been convicted of any crime; but who had incurred the displeasure of the Attorney General.—On the whole, Sir, I assert, that none of the grounds that I before alleged for this motion, have been, removed. The hardships which I enumerated as attending every person who be" came the object of this sort of prosecution have not been disproved or denied, in any one instance. And as to the particular grounds, they are equally uncontradicted. The fact asserted by me, and confirmed by the Attorney General, of prosecutions being dropped, is proof of their being improperly commenced: and as to the charge of partiality, in prosecuting some and withholding all restraint from others, none of the gentlemen have touched on the subject. I beg leave here to repeat, that this lenity I do not complain of, but what I complain of is this: that while this lenity is extended to some, great severity is meted out to others. The ground, therefore, on which I stand, is the general hardship, even as the law stood before the alteration—the increased severity of the law in consequence of the 48th of the King—and the abuse and partiality with which the Attorney General has exercised his privilege. These, Sir, are the grounds on which I rely, and upon which I shall take the sense of the House.

The House then divided, when the numbers were

For Lord Folkestone's Motion	36
Against it	19
Majority against the Motion—	83

List of the Minority.
Abercromby, hon. J.	Martin, Henry
Adams, Charles	Miller, sir Thomas.
Adair, Robert	Moore, Peter
Aubrey, sir John	Newport, sir John
Byng, George	North, Dudley
Brand, hon. Thomas	Ord, William
Cavendish, William	Osborne, lord F. G.
Combe, Harvey C.	Ossulston, lord
Creevey, Thomas	Parnell, Henry
Cuthbert, J. R.	Romilly, sir Samuel
Ferguson, general	Smith, William
Guise, sir William	Sharp, Richard
Hibbert, George	Taylor, M. A.
Howorth, Humphrey	Tracey, Hanbury
Hutchinson, hon. C. H.	Western, C. C.
Latouche, Robert	Whitbread, Samuel
Lefevre, James Shaw
Lemon, sir William	TELLERS.
Longman, George	Folkestone, viscount
Maddocks, W. A.	Burdett, sir Francis