Commons Sitting of 18 June 1817

RIGHT OF MAGISTRATES TO VISIT STATE PRISONERS.
Lord Folkestonerose to make a motion of which he had given notice, and expressed his regret that he should have to make it in so thin a House, and during the absence of those who ought to have been present, if they wished for an opportunity of justifying
1026
their measures. The object which he had in view was to procure copies of all instructions sent by the secretary of state for the Home Department to all gaolers, magistrates, or other persons, respecting the custody and treatment of persons confined in consequence of the suspension of the Habeas Corpus act; and the circumstances which had called for this motion on his part were these:—There were three persons under confinement in Reading gaol upon a charge of treasonable practices; they were called state prisoners; and, in consequence of some orders transmitted by the secretary of state to the gaoler, the visiting magistrates of Berkshire were not allowed to visit them. Now he (lord F.) felt himself entitled to complain, that he was deprived of the right which he had, as a magistrate of that county to visit that gaol; and he had no hesitation in saying, that the authority which had been assumed by the secretary of state on this occasion, was a gross violation of the law. By the 31st of the King, ch. 46, it was expressly declared, "that for better preventing all abuses in county gaols, the magistrates for the county of their own accord, and without being appointed visitors, might, from time to time, enter into such gaols, and examine into the treatment of the prisoners; and if they saw any abuse, that they should report the same to the quarter sessions, and no abuse so reported should be allowed any longer to continue." When the House found that this act remained on the statute-book unrepealed, what would they say to the order of the secretary of state, which arrogated the power of preventing the magistrates from visiting the county gaols? The power thus arrogated was most illegal and unconstitutional; it was a direct violation of that clause in the Bill of Rights which declares, that the laws of the land shall not be suspended or dispensed with, without the authority of parliament; it was, in fact, a complete breach of the contract made between the king and the people, and, as such, it deserved the most grave and weighty consideration. He should have thought, that when he had stated this, he had said quite enough to put his majesty's ministers upon their justification; but he would examine some of the arguments which he understood were intended to be set up in their defence. It, was said, that all gaols were the king's; that they were regulated by royal prerogative, and that the power now exercised had been always adopted with respect to

1027
state prisoners. Precedent had been quoted of the exercise of this power at the beginning of the last century; but the act to which be had alluded was passed so lately as 1791, and, therefore, any precedent of previous practice could not apply, or be of any avail. In support of this argument, he must beg to observe, that, in the first place, every gaol in the kingdom was now made a state prison, which was not formerly the case. State prisoners, as they were called, were then committed to the Tower, which was a military fortress, under the power of the Crown, into which no magistrate or justice of the peace had a right to enter: but, by the late act for suspending that great bulwark of our liberties, the Habeas Corpus act, prisoners might be confined in any gaol, and removed from gaol to gaol at the pleasure of the Crown. Now, to a certain extent, he admitted the rule, that the prerogative of the Crown could not be affected by an act of parliament, unless the prerogative of the Crown were particularly specified in that act. He believed, however, that there were some very important exceptions to this rule, and supported by very great authority. In Atkins's Reports, in a case upon the statute of frauds, lord Hardwicke doubts whether the king is not affected, though not expressly named. Sir Edward Coke more than once expresses an opinion contrary to the general rule. The law for the abolition of the slave trade most certainly extended to the prerogative of the Crown: but there was another very strong case—the case of perjuries prosecuted under the statute of the 5th of Elizabeth. Lord chief justice Holt there declared, that the king's pardon would not remove a man's disability to give evidence. In Buller's Nisi Prius, a work of great repute, it was also said, that the king's prerogative might be bound, though that prerogative was not named in the statute. Sir Edward Coke, in his Reports, says, that all statutes to take away wrongs, or prevent frauds, shall bind the king, although he be not expressly named, and the reason which he assigns is on account of the public good. The question, then, was, whether the act of the 31st of the king was an act passed for the public good, or not? Now, this act was to prevent abuses in his majesty's gaols, and nothing could be more for the public good than that object. The Crown, therefore, had no more right to violate this act of parliament than any other man; and, consequently,
1028
this order of the secretary of state to prevent the magistrates from, entering into the gaol was a gross violation of that statute, and a suspension of the law of the land. He was willing to admit, that all gaols were the king's; but he apprehended that the king had no peculiar prerogative over them. The building was the king's, but the custody of the prisoners belonged to the sheriff. This could be most satisfactorily established by positive acts of the legislature. By the 14th Edward 3rd, it ways provided, that the gaols which were wont to be in the sheriff's custody, and of which they had been dispossessed, should be restored to their bailiwicks. An act passed in the reign of Richard 2d was still more positive: it enacted, that the king's castles and gaols, once given to the care of the sheriff, but which had been severed from him, should be again put into his hands. By another statute, in the reign of Henry 7th, it is expressly declared, that the sheriffs of every county shall have custody of the gaols. Nothing, he thought, could be more satisfactory than these several authorities. It might be proper, however, to mention, that in former times the sheriff was not appointed by the Crown, as he now is, but was elected by the freeholders of the county; and when this was kept in mind, the importance of his office, and the propriety of investing him with the custody of gaols, would be more fully understood and felt. It had, indeed, been solemnly adjudged, that the sheriff has the custody of prisoners, and that the king cannot abridge him of any thing incident to his office, notwithstanding the grant of the custody of prisoners by the king to other persons. Now, what was it but the grant of the custody to other persons, when the magistrates, in consequence of an order of the secretary of state, are refused admission to the prisons? Sir Edward Coke, in his Reports, declares, that, in the 39th and 40th of Elizabeth, it was resolved by Popham and Anderson, and all the judges of England, that the custody of gaols belongs to the sheriffs, and that the sheriffs shall have the custody of them, and that the custody of prisoners to other persons was absolutely void. He (lord F.) contended, therefore, that this proceeding of the secretary of state, to prevent the admission of magistrates who were entitled to visit gaols, was a gross breach of the law. What power, he would ask, had the secretary of state to enforce this order? Literally none. The

1029
gaoler was not appointed by the secretary of state, he was not paid by the secretary of state, nor could he be removed by the secretary of state. The magistrates were directed, by the 31st of the king, to visit prisons, in order to see that no abuses existed: and, now that we were commencing a system of espionage, when persons were taken up and confined on slight and unfounded charges, as the verdict of a jury had declared, the provision of an act of parliament, which was expressly made to prevent abuses, was most grossly and illegally violated by the sole will and pleasure of a secretary of state. The king's ministers had taken upon themselves to set tin's law of the land, made for the security of the subject, at complete defiance; they had trampled upon it, and declared that it was of no avail, as they had prevented magistrates from going to see whether any abuses were committed in the prisons or not. And why was this? Were ministers afraid of the loyalty and integrity of the magistrates? Did they think that the magistrates were not fit to be trusted? If they really thought so (and what else did their conduct imply?), why were not the magistrates struck out of the commission of the peace? The noble lord then moved, "That there be laid before this House, copies of all instructions given by or sent from the office of the secretary of state for the home department to all gaolers, or other persons, to whose custody may be committed persons detained under the provisions of an act passed in the present session of parliament, 'for enabling his majesty to secure and detain such persons as he shall suspect are conspiring against his person and government;' and also, copies of all letters, or of answers to queries, sent to any magistrates, respecting the custody and treatment of the same."
The Attorney Generalsaid, that the noble lord had stated a proposition which he was not at all inclined to deny, namely, that the king had no power to dispense with the laws. This was a principle settled at the Revolution, and expressly declared by the Hill of Rights. The noble secretary of state had not done any thing on this occasion which had not been uniformly done for the custody of state prisoners. The warrant for the apprehension of the parties, specified that they should be kept in close custody; and the law ordained that they should be kept in such custody, not only previous to their trials, but also during their trials. If the noble
1030
lord would take the trouble of examining the State Trials, he would find a vast variety of cases, both prior to and since the Revolution, when this doctrine was maintained by judges who were as much friends to the liberty of the subject, according to the law of England, as the noble lord, or any other man. Instances of the exercise of the power now complained of had been sanctioned by lord Holt, and also by lord chief justice Pratt: by the latter particularly, in the case of Christopher Layer, who was tried in the King's-bench for high treason, in 1722. Lord chief justice Pratt then made a rule that Mr. Layer's wife should be admitted into the prison, but all other persons were excluded, without an express order to the gaoler. Part of the noble lord's argument was, that the sheriff was to decide according to his discretion; but the fact really was, that the party who committed had always granted or refused permission to visit the prisoner. The sheriff of the county was to keep the gaol; he was liable for the escape of the prisoner; and no other person had a right to be keeper of the county gaol but the sheriff: but that did not decide the question in the slightest degree, that the persons committing had not a right to say that such or such persons should be cither admitted or refused. The sheriff's gaol, and every gaol in the kingdom, was the king's gaol. It was laid down by lord Coke, and by almost every other writer, almost in these words—"The gaol is the king's, though the subject may have the custody of that gaol;" and certainly, the king had always, through the medium of his privy council or secretary of state, exercised the right of admitting or refusing persons to visit state prisoners. The noble lord had cited several cases to show that particular acts bound the king, although he was not expressly named in them: but none of those cases had the slightest application to the subject. The noble lord thought, that in the case of perjury the king's prerogative of pardoning was taken away. That he denied. The act of parliament expressly stated, that no person convicted under that statute for perjury should be admitted to give evidence, unless the judgment was reversed; but it did not take away the king's power of pardon for perjury. With respect to the statute of the 31st of the king, when that act was passed, he would venture to say, that such a question as that which the noble lord had brought before the House was never

1031
in contemplation. That act was made for a very different purpose. The object of it principally was to enable magistrates to visit penitentiary houses, in which the parties were to be under a sort of domestic government, for keeping them in a state of constant employment. It certainly spoke also of county gaols. The act directed that two justices might visit and inquire into the state of the prison; and the object of the act was not at all defeated by what was now contended for. Any magistrate might still go, might report abuses, or make his observations; but it was necessary for this purpose that he should have private communications with each of the prisoners. With respect to state crimes, in which the passions of men were always much engaged, it would be of the most dangerous consequence if every magistrate in the country might at all times converse with every prisoner, and that in private. Magistrates were but men; and every possibility of danger ought to be guarded against. Though the noble lord had assumed that the persons now confined had been taken up wantonly, there was no argument contained in such an assertion; and if there was, he (the attorney-general) had an equal right to say, that none had been taken up but those who deserved it. But the noble lord had contended, that whatever was the case before 1791, the law had been altered since that time. If so, it was a little singular that this was the first time an objection had been raised to the exercise of this power by the secretary of state, because it was clear that, since 1791, in every suspension of the Habeas Corpus, similar orders were given at the discretion of the secretary of state, as to every prisoner taken up under such suspension. But the noble lord's argument had nothing to do with the suspension of the Habeas Corpus in particular; for if a party taken up at a time when there was no such suspension might be visited at all times, he might also when that act was suspended; and if he might be visited at all times, he might even when his trial was going on; and it was impossible to enumerate the mischiefs that might ensue if communications with the prisoner were allowed at such a period. He maintained, however, that the right to control the access to a state prisoner was one of the prerogatives of the Crown, and Lad always been exercised by the secretaries of state. It had been exercised before the revolution, and since the revo-
1032
lution, up to the 31st of the king, without objection; and that statute, he contended, did not in any way affect or alter this prerogative: for though that statute gave the magistrates a right to visit prisons, it said nothing about any communication with the prisoner. The clause, indeed, respecting the visiting justices was more explicit; but even that said not one word on the subject; of communication with the prisoners. He did not mean to say that it might not be advisable or proper that on some occasions the magistrates should see and converse with the prisoners; but he did say that, with respect to state prisoners, this power was controlled by the king's prerogative. When the noble lord spoke of the difference between state prisons and the sheriff's gaol, he perfectly agreed with him; and it seemed to be admitted, that the Tower at least was a state prison, into which the magistrates had not general power to enter: but he contended, that the placing state prisoners in any gaol made that gaol a state prison: he therefore maintained that the secretary of state, in issuing regulations for the ordering of state prisons, did not dispense with the law, but follow the law. No allegation of abuses committed had he heard so much as hinted against the secretary of state. The powers he had exercised were warranted by law; and if any statement were made of wanton or excessive cruelty committed in the exercise of this power, that would afford a ground of inquiry into the conduct of the individual guilty of such; excesses. But the noble lord's motion: went to insist on the power of every magistrate to enter prisons at any time, and; communicate with every prisoner. There was no foundation whatever for such an extensive power, and therefore he should; oppose the motion.
Sir S. Romillysaid, he had never heard a doctrine more dangerous, novel, or more destitute of all foundation, than that advanced by the learned gentleman. He thought it of little importance to inquire what was the power of the Crown, or what its prerogatives before 1791; the question now was, whether a secretary of state could, without a violation of the law, prevent the magistrates of a county from investigating the state of prisons within their jurisdiction. What ever his learned friend might throw out, it was impossible a question of greater importance could be discussed in that House than this—whether the prerogative of the

1033
Crown could not be taken away by an act of parliament, without express words contained in the act for that purpose. His learned friend had said, that it could not; and this was certainly true in some instances where civil rights were confirmed. The rule held good in the case of limitations, and in the case of the bankrupt laws, which did not affect the king's right of recovering his debt, and perhaps ought not; but was it ever held, that in acts of general regulation, acts which went to check abuses, and protect the rights of the subject, the power of the Crown could not be taken away by any thing short of express words? There was no doubt that the prerogative might be taken away by such acts, without any express words for the purpose. The very case had often been decided. In the great case of Magdalen College, in lord Coke's Reports, the question was, whether the statutes preventing ecclesiastical bodies from alienating their property extended to the king as well as all others, there being no express words in the statutes to that effect. Magdalen college had made a grant to queen Elizabeth; and the point was, whether this grant, being made to the queen, was within the provisions of those statutes. The judges unanimously resolved, that the Crown was not excepted out of general statutes passed for the protection of the subject, or the redress of wrong. Now he would ask, whether the statute passed in 1791 was not a general statute passed for the protection of the subject, and the redressing of wrongs? There was no decision, no diction of any judge, no authority of any kind, to be found in any of the books, which asserted that the king was not bound by acts of general regulation. His learned friend had said the Crown could not dispense with law: but what had the secretary of state done? The act of 1791 says, that the magistrates shall visit the prisons within their respective jurisdictions; but the secretary of state gives orders to the gaoler not to open particular cells. Surely his learned friend would not say, that since the Bill of Rights the king could dispense with the laws of the realm. If the magistrates were to discharge a duty in visiting prisons to prevent the abuses of gaolers, would his learned friend say that they were not to see the prisoners in their dungeons? How could they perform this duty but by seeing and communicating with the prison-
1034
ers? Could they learn or repress the abuses of the gaoler by making inquiries of the gaoler himself? It would be seen in a moment that this was the very reverse of what the legislature intended, if we only considered the circumstances that led to the framing of the act. The act was passed on the representation of improper conduct in various prisons; and he could say, that a vigilant eye ought always to be kept up towards them, because no where were abuses so likely to arise. The act was passed to remedy and prevent these abuses; and with that view the magistrates were ordered to visit the prisons and report the state of them; but to what purpose would it be to visit the prisons, unless they saw and communicated with the prisoners? Towards whom besides could abuses exist, or who else could give any information of them? His learned friend had said that when the act passed no such cases as these were in contemplation; but that was not the question it was not what was in contemplation, but what was done, and what was law. If any thing wrong had been enacted, that might be amended in a new act but till such new act had passed, we must take the law as we found it. As the act now stood, it was a direct forbiddal of every thing that had been done by the secretary of state, he had assumed an authority he did not possess, and had dispensed with the existing law of the realm. He (sir S. R.) should be indeed surprised if any lawyer could show him in any text books any authority for such a doctrine as that which had that night been held out by his learned friend. That doctrine would set the Crown above the whole law; it ought not to rest on the support of his learned friend alone, but, unless some authority was adduced, should be at once discarded by the House.
The Solicitor-General[Sir Robert Gifford] stated his concurrence in the assertion of the attorney-general, that the right of the Crown to regulate the treatment of state prisoners was not taken away by the act of 1791. The noble lord had admitted that he had found it laid down, that the gaols were the king's: would he say that this expression applied to the four walls only? It could not be so; for in many cases the prison itself was private property, and did not belong to the king. The expression must mean, that the custody of the gaols belonged to the king. His learned friend had not attempted to

1035
impugn the doctrine, that anterior to 1791 this prerogative had been exercised without opposition; and surely he would not maintain, that during his trial a prisoner might be visited and interrogated by every magistrate that chose to enter the prison. It had never been maintained that magistrates could have such a power before the act of 1791; and if they had not before, we ought to see what were the intentions of that act. It applied to penitentiary houses; and though he would not say that gaols were not included, yet the act was chiefly meant for the regulation of penitentiaries. In order to prevent abuses in the prisons, magistrates were enabled to enter; but was it intended that any magistrate should communicate when he pleased with any prisoner?
Mr. Broughamtook upon himself to say, that there never had been a more feeble defence of any measure made by the law-officers of the Crown; and he spoke this without the slightest disrespect to his learned friends, for the; fault was not in them so much as in the case they had to defend, His learned friend had assumed, that the power of inflicting solitary confinement was part of the law of England previous to 1791. However, we were not now to inquire what the law was previous to 1791; the present question was whether in the teeth of a specific statute, calling on all magistrates to visit gaols, to make inquiries into abuses, and report the state of what they saw, the king's minister had power to issue an arbitrary mandate, and say that some of the prisoners should not be visited. Without seeing them, how could the magistrates execute the duty enjoined them by the statute; or ascertain whether or no abuses really existed? At all times this check on the abuses likely to arise out of imprisonment was highly necessary; but never was it so necessary as at the present moment. One of his learned friends had insisted, that the king's prerogative was not altered without express words; and another, that by the expression of the king's gaols, as the mere wells could not be intended, the custody of the prisoners must. He was well pleased with this latter argument; for if the gaols were the king's gaols, even in this sense, to what could the act apply but to the express restraint of the king's prerogative? His learned friend who spoke last had contended, that the act was principally directed towards the regulation of
1036
penitentiaries. Certainly, penitentiaries were mentioned in the first three or four clauses, but the fifth clause ran thus: "And for the better preventing abuses in all gaols," the magistrates are to enter, to examine into the treatment and condition of the prisoners, and to report any abuses they may discover: but how are those abuses to be discovered, if the magistrates can examine no more than the four walls or the earth of the prison? It was clear, that when they were ordered to examine into the state of the prisons, they could only examine the prisoners themselves. His learned friend had, indeed, admitted that it was possible to oust the prerogative of the Crown without express words. He (Mr. B.) maintained, that the section in question had that effect. If it did not oust the prerogative that had been set up, the magistrates had no means of doing that which they were expressly enjoined to do b}' the statute. But his learned friend had made a distinction between the offences for which the prisoners might be committed, and arrogated for the Crown the exclusive disposition of one class of offenders. What statute was there for state prisoners? What book, what authority had ever mentioned the distinction in the custody of two sorts of offenders against the public peace? All prisoners were equally the prisoners of the executive; all arrested, all tried in the king's name; and it was as illegal, as untechnical, as unworthy of his learned friend's acquirements and abilities, to say that there were two sorts of custody for those who were confined on the score of higher offences, as to say that the king could personally interfere in the mode of custody adopted towards an offender of any description. Was it not as much the interest of the Crown that murders, thefts, or burglaries, should be repressed, as of any other branch of the community? and would it for a moment be contended, that the Crown could interfere in the mode of custody prescribed for such criminals? This was the first time that two lawyers had got up a distinction as utterly untenable and absurd as it was oppressive and cruel.—Much stress had been laid on the possibility of abuse under the powers granted by the act, if any magistrate should visit a prisoner and make communication during his trial. It was impossible to vest discretionary powers that might not be liable to some abuse; but if the magistrates did abuse the confidence re-

1037
posed in them, they were also liable to be called to account: and if they entered a prison with improper views, might certainly be prosecuted for misconduct. No one had asserted that all magistrates had a right to enter prisons but only those belonging to the county in which the prison was situate. The same answer might be made to the objection stated, that magistrates might, under this power, examine prisoners during the course of a long trial. From a late example it seemed to be thought that a state trial must necessarily be longer than any other; but God forbid that any man, turning a shameful exception into a general maxim, should say that state trials were necessarily long —he called it a shameful exception, for to perplex innocence with a list of 260 witnesses, to add anxiety and distraction to all the difficulties of a trial on which life depended, was bad enough; but it was worse to exclude them by a long and solitary confinement, from their friends and families, to parade them backwards and forwards day after day, and keep them under every aggravation of terror and suspense, until a bungling prosecution was gone through; the whole train laid for which reflected disgrace on those who employed such means; the duration of which had degraded and vilified that which before was respected and venerated—the administration of justice: God forbid that we should argue from the duration of such a trial, to give the secretary of state a power to dispense with the laws and constitution of the country.
Lord Castlereaghobserved, that no suggestion had been thrown out that any of the prisoners were suffering under any cruelty or hardship; no allegation had been made that there was any abusive or novel exercise of the powers vested in the secretary of state for the management of state prisoners. The only suggestion had been, that the act of 1791 had altered the general criminal law of the country; a law that had always been recognized by the most constitutional lawyers that ever sat on the bench. He spoke with great diffidence on legal questions; but he maintained, that the warrant of the secretary of state in these cases was legal and proper, and that all these arguments, from the state of the times, did not affect the question. He apprehended the power of committing for high treason was not confined to the secretary of state; any magistrate on proper grounds might do the
1038
same; and if they committed a party to close and safe custody, the gaoler was bound to obey; and he contended that there was a distinction between the custody of state prisoners and prisoners for other offences, however the learned gentleman had seemed to philosophise on the subject. Down to the year 1791 there was not one act or decision on which the complaint could be founded. The act of 1791 was the only peg on which they could hang an argument. If, however, that act gave such a power to magistrates, how came the warrant of committal not to be changed? State prisoners were committed to the Tower; and it could never be pretended that the Tower was a common gaol, or subject to the regulations of common gaols. It was a garrison, and not a gaol. The question was, whether, when The warrant committed the prisoners for safe and close custody, the magistrates were not precluded from visiting them. In this view of the question it could not be received; there was no charge against the secretary of state. It was abuses in the interior administration of prisons, and not oppressive treatment of the prisoners, that formed the subject of question. He went along with the learned gentleman in making a difference between magistrates and other individuals; but paying all deference as he did to the character of magistrates, and believing that no individuals could be more safely trusted with such power than the present magistrates, yet possessing no assurance of what magistrates might be disposed to do in future times, he could not assume that their future character would be such as to entitle the House to break down such a principle as the one in question. If the magistrates in Berkshire have been obstructed in the discharge of their duty, this House was not the proper place for complaint; the courts below should be applied to; and could it be said, that a magistrate applying there, with the assistance of the learned gentleman, would not readily obtain a decision on the subject. There let the matter be put to issue, and the question set at rest: but the House would not, in opposition to the known principles of law and justice, go out of their way to decide a question of construction. This was a question of law, and a question of law only, and the House could not, therefore, suffer it to be brought into its jurisdiction. An unfair occasion was taken by the hon. and learned gentleman,

1039
as he had often done on other occasions, to produce a false impression on the public mind, as to the late transactions in the court below. He would throw no imputation upon the fairness and justness of the decision; but were the proceedings to be called bungling, because the prisoners were acquitted? He lamented that the trials had lasted so long, but that arose from the nature of the charge extending over so many matters of evidence, and was more for the benefit of the prisoners than from any other consideration. It was not against the excellent and revered administration of justice that the hon. and learned gentleman spoke, but to impute blame to his majesty's ministers; it was one of those unfair attacks of the hon. and learned gentleman which he trusted would produce as little impression abroad as he had reason to believe it had produced in that House.
Lord A. Hamiltonsaid, no one had denied that abuses might take place as to prisoners committed by the secretary of state's warrant. What then was his remedy, when such abuses were committed? The prisoner was deprived of his remedy by Habeas Corpus—by the act which was passed. If this power on the part of the magistrates was taken away, what possible remedy could he have? He might be transferred from gaol to gaol round the kingdom. It was said no abuse had been alleged. How could any abuse be alleged, if no communication with the prisoner were allowed? He hoped, if the motion were rejected, it would at least operate as a warning to the House against consenting to pass a measure which gave rise to such practices on the part of the secretary of state.
Mr. Wynnsaid, that he came down to the House without having made up his mind on the question, and wished to know what the learned gentlemen on the other side had to say on the subject. It was now his decided conviction, that the explicit words of the act could not be set aside by the alleged prerogative. He could conceive cases where vigilance should be used in admitting persons to visit prisoners; but that was not the question. If this act conferred any right, he could not see how it could be taken away but by another act. Here, where an imperious duty was cast upon magistrates, he could not see how the secretary of state could dispense with that duty, far less prohibit it. The noble lord had referred the
1040
question to a court of law. When the ministers of the Crown had given instructions inconsistent with the laws of the land, the principles of the constitution, and the rights of the subject, it was not to any court of law that the question belonged. It was one of the highest duties of this House to inquire into it. In those circumstances he considered it the duty of the House to grant the papers moved for.

Ayes

56

Noes

85

List of the Minority.

Abererombie, hon. J.

Moore, P.

Althorp, viscount

Methuen, Paul

Atherley, A.

Newport, sir J.

Aubrey, sir John

North, D.

Burroughs, sir W.

Orde, Wm.

Baillie, J. E.

Parnell, sir H.

Brougham, H.

Piggott, sir A.

Burdett, sir F.

Ponsonby, rt. hon. G

Byng, G.

Phillimore, Dr.

Campbell, hon. J.

Rancliffe, lord

Carter, John

Romilly, sir S.

Caulfield, hon. H.

Spencer, lord R.

Cochrane, lord

Sharp, R.

Coke, T. W.

Smith, W.

Curwen, J. C.

Tavistock, marquis

Duncannon, visc.

Tierney, rt. hon. G.

Finlay, K.

Walpole, hon. G.

Fazakerley, N.

Waldegrave, hon. W.

Fergusson, sir R.

Wood, Matthew

Gordon, Robt.

Wynn, C. W.

Guise, sir Wm.

Warre, J. A.

Hamilton, lord A.

TELLERS.

Heron, sir R.

Folkestone, visc.

Howorth, H.

Bennet, hon. H. G.

Hughes, W. L.

PAIRED OFF.

Latouche, R.

Birch, Jos.

Leader, W.

Douglas, hon. F. S.

Macdonald, J.

Dundas, hon. L.

Mackintosh, sir J.

Foster, P. T. H.

Madocks, W. A.

Grenfell, Pascoe

Martin, J.

Ossulston, lord

Mathew, hon. gen.

Ridley, sir M. W.

Milton, Visc.

Smith, J.

Monck, sir C.

Webb, Edw.

BOROUGH OF HASLEMERE—PETITION OF JAMES GREENAWAY.
Sir Francis Burdett offered to present a petition from James Greenaway, the same voter for the borough of Haslemere, whose former petition had been rejected. It was framed in a different manner, and prayed no consideration of his particular case, but a revision of the law, in order to prevent fraudulent practices.
Mr. Bankesobjected to the motion for bringing up the petition, on the ground that the individual acknowledged himself guilty of perjury. It also appeared that the matter was before a court of law, and

1041
it would be improper to bring it before the House.
Sir F. Burdettsaid, that the petition appeared to contravene no rule; nor did the petitioner state, that he had committed perjury. He stated, that a fraudulent conveyance had been made to him of property, to enable him to vote; and after he had voted, an attempt was made to take that freehold from him. He considered, that if he acquiesced in that demand, he should have been guilty of perjury. Legal proceedings had been commenced against him. Some persons might contend, that this was a breach of trust on the part of the individual. But this man asked for no interference as to the courts below, but humbly prayed, that the House would take the matter into consideration, to prevent the fraudulent exercise of the elective franchise, whereby ignorant persons like himself might be involved in ruin, or in the crime of perjury.
Lord Cochraneconsidered all those perjuries at elections, and in courts of law, as emanating from the corruption of that House. There was scarcely a contested election where those who made oath that they neither received nor expected any reward for their votes, did not know at the very time the wages of their iniquity. Unless the House wished the country to be totally demoralized, they were bound to inquire into the present complaint. He would soon bring forward specific instances of this evil, and should not have so long delayed the motion of which he had given notice, but for urgent private business.
Mr. Longsaid, he was authorized by his noble friend who was mentioned in the petition, to deny that any persecution or legal measures had been promoted by him, against the petitioner. With respect to the petition, he saw no reason for its being received by the House. The petitioner stated, that he was of a very tender conscience, and could not give up the conveyance of the property which he had sworn to be his own. But, if he mistook not, this man had not long since written to him, asking him for a sum of money, and expressing his willingness, notwithstanding the tenderness of his conscience, to give up the conveyance if he received the money. He alluded to the facility with which the hon. baronet received accusations against every person in office, and stated an illustration of it, that he had frequently received letters in his office from persons complaining of grievances,
1042
and threatening, if it was not remedied by return of post, to put the complaint in the hands of sir Francis Burdett. It would perhaps, not only relieve the House from some inconveniences, and the hon. baronet from much trouble, if he occasionally inquired as well into the character of the accusers as of the accused. If he had done so in the present instance, the petition would not have been offered to the House.
Mr. R. Wardsaid, that by a letter in the petitioner's own hand, so far back as February 1813, it appeared, that he had been in possession of his freehold in 1811, 18 months before the election. If that were so, the petitioner must have deceived the hon. baronet. The freehold was vested in him for life, upon paying a quit-rent. He was in arrears for 3 years. The prosecution was, to recover the arrears. With respect to himself, if the forms of the House would allow, he wished for nothing so much as to have an inquiry on the subject, in order to give the lie to the petition.
Mr. W. Smithsaid, it did not follow, because the noble lord knew nothing of any hardships having been practised towards this man, that none had been committed towards him by some of his agents. The main question on the petition was, whether it did not contain matter which really called for inquiry? Was not the matter, if true, vitally connected with their privileges? He should certainly vote for receiving the petition.
Mr. Brandsaid, that if Mr. Ward's statement was correct, the petition, stating a contrary fact, ought to be inquired into for that very reason. If, however, this freehold was in the petitioner's possession 18 months before the election, it was the only freehold of that kind, as he had occasion to know when that subject was before the committee, of which he was a member.
Mr. Wardrose to order.
Mr. Brandcontended, he was perfectly in order, for this reason, that the hon. gentleman had asserted that the freehold had existed for a certain period; he, on the other hand, wished to state a fact that militated against that assertion, in order to show the necessity of inquiry. If therefore he was in order, he would proceed to state why he—
Mr. Longmaintained, that if it was the practice to state such facts, it was a most inconvenient practice.
Mr. Brandsaid, this was a most singular dilemma. The committee were precluded from inquiring into the case, and the House, therefore, will not inquire into it. The committee was precluded by the laws of evidence from inquiring. The House will not inquire because the committee had not inquired. He did not wish to state what had come under his observation, since the gentlemen opposite had shown so much delicacy on that point; but to say that any thing in the petition was unfounded, while inquiry was refused, was more an argument against the noble lord than against the petitioner.
The Speakersaid, there was a peculiarity in the petition which he thought it his duty to point out to the House. The prayer was different from the circumstances of complaint. If he went into those circumstances, he should go beyond the line of his duty, and disgust the House; but he conceived it right to say, that one part of the petition set forth a grievance as to an individual, while it concluded with praying the House to guard it6 own privileges. It was for the House to judge whether the subject was such as they could or ought to receive, or whether the grievance was merely an ejectment. On the one side, they were not to be misled by the generality of the prayer; nor on the other side to refuse what was fair and just.
Sir F. Burdettsaid, he could discover no good reason for the rejection of the petition but the reluctance of the House to hear disagreeable truths. If the circumstances of a petition were such as did not meet the wishes of members, a thousand objections were mustered up against it; while, on the contrary, if they were agreeable, the petition was received without any inquiry, and even against the usual forms of the House. He had no knowledge of the petitioner. He was actuated purely by a sense of public duty; and seized the present occasion, not because it was one of rare occurrence, or uncommon delinquency, but because it was one example of the prevalence of a system of seat-dealing, which he thought himself obliged, as a member of parliament, to expose to the House and to the country. His objection to lord Lonsdale's conduct referred to him not as a private individual, but as a borough-monger. He objected to his sending members to that House to vote away the public money while those whose money was thus voted
1044
away had no influence in the election. The noble earl, he understood, had little property in the district, the representation of which he thus disposed of; while his members had an unlimited power of drawing upon the purses of those who were the principal proprietors. He might not even know of the transactions which took place in his name, but it became the House to inquire and to know.—He had been accused of believing, without sufficient proof, the representations of this petitioner; but unhappily, it did not require a man to be very credulous to believe that a peer who had the power of returning a member to parliament would do so. The character of the parties was not to be taken into consideration at all. He would allow the petitioner to be as great a rascal as those who opposed his petition chose to make him; and he would contend that, on the supposition, he strengthened his ground of attack, on the system which this person was employed to carry into execution. It would appear, that he at least enjoyed the confidence of the noble earl when he received his vote; the worse therefore the agent, the worse the transaction in which he was engaged, indeed, all the branches and transactions of the borough-mongering system were equally bad; there was no conscience, no principle, no justice, truth, or right, to be found in any part of it; and this was only a fan-sample of the whole of which he might say "ex uno disce omnes."
The House divided:

For receiving the Petition

11

Against it

47

List of the Minority.

Brand, hon. Thos.

Hamilton, lord A.

Burdett, sir F.

Curwen, J. C.

Sharpe Robt.

Cochrane, lord

Moore, Peter

Tierney, rt. hon. G.

Parnell, sir H.

TELLERS.

Smith, Wm.

Burdett, sir F.

Wood, Matthew Lord Mayor

Smith, Wm.