§ Mr. Whitbread
rose, in pursuance of his notice, for the purpose of moving for the appointment of a Secret Committee, to enquire into the circumstances attending the confinement of C. R. Baron De Berenger on the felons' side of Newgate. For the information of such members as were not present on a former night, he recapitulated the various grounds then urged for complying with the motion; and noticed the single objection made to it, that the under Secretary of State for the Home Department (Mr. H. Addington) had solemnly asserted, that Mr. De Berenger was arrested under the authority, given by the Alien Act, on charges and suspicions totally distinct from any fraudulent transactions with the Stock Exchange Without such an asseveration, under the circumstances, the House would not have hesitated a moment in deciding that the detention was only a part of the prosecution now pending; and that the Secretary of State, having abused the high powers vested in him by the statute, had been guilty of a high crime and misdemeanour. In addition to the circumstances of this case which came out on a former night, Mr. Whitbread stated, that when the prisoner was taken into custody by Wood, the alien messenger, with the assistance of the magistrates of Edinburgh, the warrant was not shewn to Mr. De Berenger, nor was any other cause assigned for his apprehension, than that he was taken in consequence of a supposed connection with the frauds on the Stock Exchange. He had been sent to Newgate by his own choice, because he experienced better treatment there than at the house of the messenger, where he had not been permitted to see any individual, not 998 even his solicitor, Mr. Tahourdin, without the presence of Wood; that when remonstrance was made to Mr. Beckett, of the Treasury, that gentleman replied, that Wood was, responsible for his prisoner; and that subsequently the messenger had sometimes gone out of the room when Mr. Tahourdin called, but that in that case he had left the door open. That De Berenger had applied for a copy of the authority under which the strangers that were obtruded upon him were admitted; which had been refused, although there was no denial, not even in the House of Commons, that such an authority had been given to the keeper of Newgate. Up to this very hour, the prisoner had not been informed of the cause of his confinement. The aggravations of the case were, that his papers, clothes, and money, had been unlawfully seized and detained till the 13th instant, on which day only a part had been returned: that his writing-desk and trunks had been broken open without the presence of De Berenger, his friends, or attorney, after, with the consent of the magistrates of Edinburgh, he had, jointly with them, put his seal upon them; that he was arrested in contradiction to the genera licence to travel through any part of the united kingdom, which had been granted him, after a strict examination into his conduct and character, in 1804. Under such circumstances, it was the duty of the House to interpose, and to take care that such grievous injury was not done to an unprotected alien. The case was the more severe, because, although the Secretary of State was empowered to take bail from aliens, yet in this case, although it had been offered to any amount, it had been rejected. The probability was (or rather would have been, had not the right hon. gentleman ventured to make so bold an assertion), that Berenger was arrested under the false pretence of being a dangerous alien. Mr. Whitbread hoped that Mr. Addington's conscience would second his courage in the daring assertion which he had ventured to give to the House. At any rate, under the many suspicious circumstances that attended this case, he thought that the right hon. gentleman himself would be anxious to remove the weighty responsibility which rested personally upon him, by the appointment of the committee to enquire into the circumstances connected with the apprehension and detention of Mr. De Berenger. Mr. Whitbread concluded, therefore, with 999 moving that a committee for that purpose should be nominated.
§ The motion having been put by the Speaker,
Mr. Cochrane Johnstone
rose to second it. He spoke as follows:—My object, in rising to second the motion of the hon. gentleman, is, to take this opportunity of referring to an assertion made on a former night by his Majesty's Attorney-General, who said that Mr. De Berenger had no other design in requiring the re-delivery of his clothes, money, letters, and papers, than that he might get into his hands evidence that might operate against him, and those who were connected with him, in the prosecution that is now pending. Such an assertion is undoubtedly calculated to prejudice the noble lord who is a party to this prosecution, and myself, in the eyes of the House, in the opinion of the public, and consequently of the jury who are to try the question. I thought it, therefore, my duty to attend on this occasion, to declare, that as far as depends upon the noble lord and myself, it never was, and is not, our wish to keep back any evidence that can possibly be brought forward by the noble Secretary of State, let the mode in which it is obtained be What it may. It is not my intention to take any further part in the debate upon this question; and should the result be a division of the House, I shall feel it my duty to withdraw, without giving any vote on the subject.
§ Mr. Bathurst
disclaimed, for himself and for the Attorney-General, any intention to prejudice the minds of any persons on a question of such importance; such an attempt would be the height of injustice at the time proceedings were pending. He congratulated the House, that it was now about to discuss this question in a regular and satisfactory way and contended that the Secretary of State was in this case a mere agent, charged with the execution of a certain duty under the Alien Act, and that in that capacity merely he had caused De Berenger to be arrested. Was it nothing to say, that under many successive administrations only two complaints (both of which were unfounded) had been brought against the individual who was charged with the performance of this duty? If a motion like the present were carried, on such slight grounds as those now urged, what Secretary of State would venture to do a duty for which he was so heavily responsible? This would 1000 indeed be converting the hon. gentleman opposite (who appeared fond of spying into the interior of the public offices, though he had never entered one of them officially) into an inspector of the Secretaries of State, to take care that they did their duty, and nothing more than their duty. That De Berenger had some reason for concealing himself was obvious, because he had passed under an assumed name at Leith; and the Alien office was not to wait, before the foreigner suspected was arrested, until he had actually incurred the penalty by shipping himself off for a distant country. As for the assertion that De Berenger was arrested under a false pretence, that was entirely begging the question, since that was the point which the hon. gentleman was labouring to have ascertained. It was perfectly regular to seize the papers of persons apprehended, without any specific charge, and to use effects found on persons under one charge to their conviction under another; for example, in the case of Jack the Painter, he was apprehended for some petty offence; and, by the papers found on him, he was suspected of having been the incendiary of Portsmouth dock-yard; in consequence of which he was tried and executed. Certainly, any abuse of this power was a just ground, of complaint; but it appeared that Mr. De Berenger, from his own confession, had been well satisfied. On the 8th of April he was apprehended—on the 15th he applied for permission to write in the news-papers, and to see his solicitor and friends. On the 16th an answer was returned from the secretary's office, that his solicitor would be admitted to him; but as to his friends no answer was returned, it being deemed inconsistent with close custody to admit them. To his application for his papers, it was answered, that it was deemed proper, for the purposes of justice, to retain some of the originals, but that his solicitor would be permitted to take copies of any that he chose. Mr. De Berenger replied, that he was perfectly satisfied—that the copies would answer his purpose, and thanked the office for its civility. When brought up to plead, he could not, at first find bail, and was detained. It might be regretted that he was in a, worse situation than others, but while a man was amenable to the alien laws that must be the case. Those persons indicted, who were members of parliament were not apprehended or put to bail, on account of 1001 their privilege. Suppose Berenger had been in Newgate for debt, and indicted for some offence, could he have got out to seek for witnesses? He was in one of the best rooms in Newgate, about a third of the size of that room they were now sitting in (a laugh). No man had been introduced to him whom he did not wish to see: and none refused but at his own desire. The persons from Rochester did not see him. As to his clothes, he had the full accommodation of his linen. He preferred staying in Newgate to being elsewhere, and complained of nothing. It only lately occurred to him that that House was the most convenient place for discussing his claims. He was told, in answer to his memorial of the 10th of May, that every thing would be returned to him, except what might be necessary to the ends of justice. He received his 186l., though not in the same notes which were taken from him. Would any sensible man give back to an apprehended person notes which, though they might be used for a different object, might yet be material for public justice, and the destruction of which might prevent important evidence? There was no question of sustenance, medicine, or counsel, for he had the supply within three days after he asked it. As to the matter of the right, he might try it. There was nothing retained but the original notes, a telescope, a pocket-book, and a few trifles. No ground whatever had been shewn for the present motion.
, without having any particular sympathy with Mr. De Berenger, contended, that it was well known, that there had existed oppressive proceedings under the Alien Act; and that justice had been often denied, under the operation of that Act, to persons who had applied for it. Happily, this Act was soon to expire; and, if it should be renewed, it would be necessary to make great alterations in it; and he hoped that, in doing so, some attention would be paid to the case now before the House. The great intention of the provisions of the Act was, to enable government to ascertain the place of residence of all foreigners. The Act, therefore, gave power to the Secretary, of State to arrest foreigners, but at the same time only under certain circumstances. He had power to prevent the departure of foreigner till any subject that occasioned, suspicion was investigated; or to compel, if necessary, his leaving the country. 1002 The right hon. gentleman had not done quite enough on this occasion; he ought to have shewn, that it was dangerous to the state either to allow Mr. De Berenger to be at large, or to leave the country. Every moment that gentleman was detained, while it could not be shown that the safety of the state required it, was a violation of the law. The detaining of the papers could only be justified by proving that they contained matters dangerous to the state. The great object of the Alien Act was, to give power to the Secretary of State to send foreigners out of the country. The right hon. gentleman had not assured the House, that these papers contained any thing dangerous to the state. He contended, from all the circumstances of the case, that a committee was highly necessary. With respect to the case of Mr. Colville, government found that there was something dangerous to the state; but no such allegation had been made with respect to Mr. De Berenger, and therefore the hardship of his case was attended with great aggravation. If the Alien Act had not been enforced against Mr. De Berenger, sufficient evidence might not have been brought against him. Identity of person, for instance, became by this means more easily ascertained. He was to be pointed out in the court, and persons having an opportunity of seeing him previously to the trial must have a considerable advantage. Mr. De Berenger, in his confinement, had been seen by a number of persons. (No, no; from the ministerial bench.) As I have understood (said the hon. member), certain persons have seen him in custody; but if any one individual has seen him in custody, the principle of the argument is equally the same. Unless the right hon. gentleman was prepared to say, that, if at large, he would be dangerous to the state, he could have no right to detain him. When it was further considered, that Berenger had resided in this country since 1788, and that he had been employed in his Majesty's service, and that government had given him a testimonial in 1804, by granting him power to live in any part of the kingdom the hardship of his case became the more an object of notice. It ought to be made obvious to the country, that there were good public grounds for detaining him As the case now stood, they would send Mr. De Berenger to trial with the very serious imputation, that he was not only dangerous person to be at large in this 1003 country, but that he was also too dangerous to be sent abroad.
§ Mr. Bathurst
, in explanation, contended, that as an alien he was, generally, under the power of the Secretary of State.
§ Mr. Alderman C. Smith
said, that, as a magistrate, he had been to visit Mr. De Berenger; and was told by the keeper of the prison, that Mr. De Berenger was very particular with respect to the persons whom he saw; that he, however, being a magistrate, might claim admission. I found him (said the hon. alderman) very comfortably lodged, and that improper persons were excluded from his apartment.
§ Sir S. Romilly
had no conception that the Secretary of State could seize a person's papers under the Alien Act. It was to be recollected, however, that at the time of passing the Alien Act, there were opinions prevailing in France which in this country were considered as very dangerous to the public peace and safety; and for that reason it was thought advisable to give the Secretary of State the power of sending suspicious foreigners out of the country; or, if they could not be sent out, at least to keep them in custody. This might be done on anonymous information; but in no case unless the charge was of a treasonable nature. No person was to be sent out of the country for any transaction unconnected with the state. It appeared to him, that the Secretary of State had no power to seize the papers of an individual, unless there was some charge of a treasonable nature; not by any means for the purpose of assisting in any private prosecution.
§ Mr. P. Moore
thought it appeared from the circumstances of the case, that Mr. De Berenger had been seized on account of his having been supposed to have hoaxed a body of professed hoaxers—the Stock Exchange Committee.—M. Talleyrand, the present minister of France, had been subjected to the operation of this same Alien Act; with this difference, that the government, by sending him out of the country, merely afforded him means to escape from his creditors here. He wished to know, whether a message had not been sent to the Stock Exchange Committee as soon as the seals were taken off De Berenger's trunks that they might come to examine them?
§ Mr. H. Addington
replied in the negative. He did not know that the trunks had been unsealed at all.
Mr. C. W. Wynn
thought that a secret committee would not be a good place to try whether the Alien Act had been transgressed in the case before the House: a court of law would be preferable for trying the question. He also conceived, if the seizure of the papers, &c. were illegal, yet that it was proper to employ them in a court of justice; as a man was once tried for forgery, on proofs which had been obtained by robbery. He had, however, much doubt on the subject; from which the right hon. gentleman (Mr. Bathurst) might relieve him, if he could state, that a disclosure of the grounds of De Berenger's apprehension to a secret committee, would be injurious.
§ Mr. Stuart Wortley
said, the only question to be decided was, whether this was a case which called on the House to appoint a secret committee to inquire into the conduct of the Secretary of State?—He conceived there was no necessity whatever for such a proceeding.—The right hon. gentleman (Mr. Bathurst) had unhesitatingly declared, that the cause of De Berenger's arrest was entirely distinct from the fraud on the Stock Exchange—and he (Mr. Wortley), was inclined to give full credence to his statement. If the House agreed to appoint secret committees on such occasions as this, the consequences would be extremely mischievous—it would operate as a check on the fair exercise of the powers vested in the Secretary of State. Being perfectly satisfied in his own mind, that cogent reasons existed, quite independent of the offence for which De Berenger was indicted, for the measures that had been taken, he would oppose the motion.
§ Sir J. Newport
observed, that from the appointment of the committee to inquire into Colville's case, three years ago, no inconvenience had arisen. His Majesty's ministers, therefore, if they were conscious of their own rectitude, ought to have satisfied the House in this case, in which it was more than suspected that the Alien Act had been transgressed. It was too much, to trust implicitly a power so liable to abuse as that of the Alien Act, to any body of men.
§ Mr. Wilberforce
expressed his opinion, that if there were no coincidence between the arrest of the petitioner, and the offence respecting the Stock Exchange, no notice 1005 would have been taken of that arrest; and from the reputation of the noble lord at the head of the home department, he could not think it justifiable to impeach the exercise of his lordship's discretion, in, this transaction. He therefore did not feel it necessary to appoint the proposed committee.
said, the House was not called upon to deliberate, on the expediency or inexpediency, of the alien laws; but merely, whether, in the present instance, power, had been over-executed. A certain power, was given by law to the Secretary of State, which extended even to the opening of letters, &c.; and those who were best acquainted with the noble lord, must be firmly convinced that such a power was vested in safe and honourable hands. For these reasons, he would vote against the motion, not feeling that any case was made out warranting the interposition of the House.
§ Mr. Barham
declared, that although he felt no sympathy for Mr. De Berenger, yet, aware that if the violation of the law and personal liberty, were tolerated with regard to the worst man in society, the precedent might be acted upon towards the very best, he thought it his duty to vote for the motion. By the opponents, of the motion an apprehension was stated, that public inconvenience might result from the appointment of the proposed committee; but it appeared, that in the only instance quoted of a similar committee, no inconvenience whatever had occurred; therefore the apprehension expressed was not warranted by any experience. He concluded with expressing his astonishment at the professed inability of the right Hon. gentleman (Mr. Addington) to answer the questions put to him, respecting the nature of the communications between the Secretary of State and the committee of the Stock Exchange; as the right hon. gentleman ought not to be ignorant of the transactions of the office with which he was officially connected.
The Attorney General
vindicated himself from the charge of endeavouring to mislead, by the statements which he had made on a former discussion, of this subject, or that he had attempted, as was insinuated, to impose the art of a cunning lawyer upon plain country magistrates; for, what he had said he was fully prepared to justify. He denied, upon the high authority of the Secretary of State, that the warrant of that officer against the petitioner was lent, upon 1006 false pretences, to aid the prosecution of the Stock Exchange. Indeed, the character of the Secretary of State would be a sufficient answer to any such charge—So much as to the arrest and detention of the petitioner. Then, as to the detention of the papers of the petitioner, or their delivery to the Stock Exchange Committee, he maintained, that the Secretary of State, or any other public officer, was entitled to make a similar use of any papers in his possession, to further the ends of public justice; nay, that a public officer was in duty bound to make that use of such documents, however he might have become possessed of them. To shew that this, doctrine was sanctioned by the practice of the law, the learned gentleman quoted the case of Crossley, already referred to, and also that of Paynter v. Brookes, which, occurred at the Bedford assizes. In this case, the defendant produced a receipt in full for the principal and interest of the plaintiff's demand; but, upon examination, it turned out to be a receipt only for the interest.—The jury found a verdict accordingly, and the defendant required the receipt to be given up to him: but no, said, the court, and the defendant was committed on a charge of forgery; of which charge he was acquitted, because the evidence was incomplete. He (the Attorney General), however, quoted the case to demonstrate that documentary, evidence, by whatever means obtained, could be legally, used to promote, the administration of public justice; and hence he argued, that the papers found in the possession of the petitioner were legally applied, notwithstanding the objections of the hon. mover.
§ Mr. Horner
observed, that the cases, cited by the learned Attorney-General referred to charges of felony, and not to misdemeanour, and therefore were not applicable to the subject under discussion. This subject he could, not, as he before said, hesitate, to consider of peculiar importance; and he trusted that whatever might be the vote of that night, this affair would hereafter be sifted to the bottom, at a time when, no plea of ministerial responsibility, or public inconvenience, could be urged against the disclosure of the reasons upon which the arrest of Mr. DeBerenger was, alleged to have taken place.
Mr. C. Grant
thought the observation of the learned gentleman, as to an investigation of this subject at a future occasion, when no, inconvenience could result from 1007 it, a sufficient argument against the necessity or propriety of pressing the present motion.
The Solicitor General
defended himself against the charge of applying any sarcasm to the petitioner. Sarcasm was not indeed his habit or his forte—and were it even so, he should be little disposed to employ it against the obscure, the unfortunate, or the distressed. In observing on Friday last upon the suspicious circumstance of demanding the restoration to the petitioner of the identical Bank-notes found upon him, he was misled, by confounding the statements of the Petition with the statements of those by whom it was supported; which he conceived rather an excusable mistake. But he had no intention to prejudice the case of the petitioner; nor could be apprehend that from the manner in which justice was administered in this country, any such prejudice could possibly occur. But as to the arrest of the petitioner, he had no hesitation in declaring, that the Secretary of State would not have done his duty if he had not ordered that arrest: for, independently of any other reasons which might have influenced the conduct of the Secretary of State, and which it might not be proper to disclose, enough had appeared to the world to call for that arrest. The petitioner had had his license as an alien enlarged in consequence of his public services; and what was the use made by him of that enlargement? why, to practise, as it appeared, a base imposture upon the public, in the disguise of a foreign officer, and through that disguise to deceive an admiral in his Majesty's navy—that too at a period when the fate of Europe hung in the balance—when any false statement, particularly of the nature alluded to might have so influenced some brave man's rashness, or some coward's fear, as to defeat the events which had since happily occurred. Thus did the petitioner appear to have abused the confidence reposed in him by his Majesty's government; and when sought after, in consequence of this imposture, where was he found? why, at a distant port, upon the point of departing from the country without a passport; which departure also would have been a violation of the law, and the confidence granted to this alien. Then as to the papers found in the possession of the petitioner, he contended that the executive government was justified in making use of them, to farther the ends of justice with 1008 regard to any other criminal offence charged upon the petitioner; and this doctrine he was prepared, to justify, whether the offence be felony or misdemeanour. Indeed, he thought that the Secretary of State would have been guilty of a gross, dereliction of duty, if he had acted in a different manner. But he would appeal to the common sense and common justice of any man, if he were asked to surrender the papers alluded to, to the petitioner who might destroy them, or to the Stock Exchange Committee, who required them with a view to the prosecution of justice, to which of the two he would give them? The learned gentleman concluded with repeating his protest against the idea of wishing in any degree, by his observations, to prejudice the case of the petitioner upon trial; but he felt that no such prejudice could be reasonably apprehended. At all events, if any prejudice could result to the petitioner from this discussion, the fault was with those who had pressed the subject into discussion.
§ Lord Milton
, adverting to the observation of the hon. gentleman (Mr. C. Grant), expressed a wish to know from some one who could give a satisfactory pledge upon the subject, whether ministers would object to an enquiry as to the transaction at a future period; because such a pledge would less dispose him to press the present, motion. For this pledge he was the more anxious, because he thought the affair under discussion involved in great mystery, and deserving of investigation.
§ Mr. H. Addington
recollected two communications which the Stock Exchange Committee had had with the Secretary of State's office; the first, in which the chairman of that committee requested that certain papers found in the possession of the petitioner should be detained, with a view to the ends of justice; to which an answer was returned in the affirmative. The second, requesting the Secretary of State to undertake the prosecution of the petitioner; to which the answer was in the negative.
§ Mr. Whitbread
replied. He said, that a great deal of responsibility had been cast upon him on this occasion. When he was first asked, whether he thought this was a case for a motion to be made in parliament, he answered, that certainly it was not; but that if any petition was drawn up couched in decent language, and complaining of any real grievance; he should have no objection to presenting it. For 1009 23 years, a sort of despotic power had been given the crown with respect to aliens, to which there was no other check than the responsibility of ministers. Although the case of Colville was the only one that, before this, was brought before the consideration of parliament, yet it could not be doubted but that in 23 years there must have been many abuses of this power. He knew that there were cases of the most capricious exercise of it. One man had been refused the liberty of going to Brighton to bathe; and he believed there was an instance of a fiddler, who, for playing out of tune at a concert, was not considered worthy of the privilege of being at liberty. In fact, upon the information given by one alien against another, often from motives of private pique, the person accused was often considered dangerous, and undeserving of indulgence. He placed very little weight on the complimentary letters written by De Berenger on his treatment. Many poor aliens signed themselves "your devoted humble servant," when in their hearts they cursed the persons they were addressing. The hon. gentleman, late member for Yorkshire (Mr. Wilberforce) must in his researches have read of many slaves in the colonies, who, while flogged, cried "Tank you massa." They felt no gratitude for the stripes, but thought this the best way of disarming the anger of those who inflicted them. An hon. and learned gentleman (the Attorney-General) had such an excessive susceptibility, that it was hard to know how to please him. If he was not answered, he complained that his arguments had little weight in that House; if he was answered, he felt equally sore. What was to be done in such a case? Should he speak, or should he be silent?—If he spoke—[The Attorney-General said something across the House, which we could not hear.]—"You see how it is; (said Mr. W.) if I speak, he must speak at the same time." [A laugh.] He never did represent him as a cunning lawyer puzzling magistrates; he rather considered him as a grave and oracular kind of lawyer. He praised his Majesty's ministers, for selecting a lawyer, not only of such great endowments, but such extraordinary learning, to place in that high situation. After replying to the objections made by different members, he said, that he was not satisfied with the bare assertion of ministers, but thought that an enquiry was necessary.
§ The House then divided,—For the motion 32; Against it 157; Majority 125.