HC Deb 20 June 1817 vol 36 cc1077-81
Sir S. Romilly

presented a petition from Kingston-upon-Hull, against the farther Suspension of the Habeas Corpus. The petitioners expressed their opinion, that the existing laws were amply sufficient for the purposes of putting down any disaffection that might exist; and prayed the House, that, instead of passing an act to that effect, they would employ the remainder of the session in correcting public abuses and lessening public expenditure.—The petition was then read.

Lord A. Hamilton

firmly believed, that there was not the slightest ground for the suspension in Scotland, and that it was more especially unsafe to extend the power of the Crown in that quarter, after the specimen that had been exhibited in the case of Mackinlay. That man had been arrested, confined, dragged before a tribunal, and the proceedings against him then dropped. The same course had been a second time repeated, and a second time the indictment had been withdrawn. The law-officer of the Crown had determined a third time to prosecute this man, and the proceedings were still pending.

Mr. Brougham

was surprised that ministers had given no answer to an allegation that a man had been put three times on his defence. He knew that by the Scotch law, most unhappily for Scotland, a party might be tried a thousand times for the same offence, if the law-officers of the Crown thought it advisable. The House had been informed, that the first indictment against this unfortunate man had been quashed by the Court: there had been one trial, one detention in prison, one solitary confinement, one period of painful suspense; then came a second charge, a second imprisonment, a second period of suspense, a second judgment, and a second indictment quashed. The Crown officers, not satisfied with this, were now preparing a third torture for this unfortunate man. It was impossible to say what would be the decision of the Court, but no lawyer who read the indictment could have any doubt as to its inefficacy.

Sir S. Romilly

said, that although the person in question was only tried for felony, yet he was always committed on a charge of treason.

The Attorney-General

said, he knew neither the case nor the name of the person whose case was now alluded to. But it did not seem that this was the proper time to discuss that case, for it had no connexion with the suspension of the Habeas Corpus act. How the law of Scotland was upon this point he did not know; but by the law of England, a man might be tried more than three times for the same acts, if they were each time charged as different offences.

Mr. Brougham

did not mean to say that there was any thing illegal in the proceedings in the case alluded to.

Mr. W. Dundas

said, if the proceedings in the case alluded to were allowed to be legal, the question was whether the House was now to be called upon to alter the law of Scotland? There was not the least connexion between the case of the man alluded to, and the suspension of the Habeas Corpus act.

Sir J. Newport

maintained, that there was a strong connexion between the case mentioned and the suspension. The question on the suspension was, whether ministers should be entrusted with certain powers, and the question in this case was, how ministers had exercised the powers committed to them?

Mr. Abercrombie

said, that when the House considered that a man had been three times tried, and three times imprisoned for the same offence, it did seem more natural that some person should call the attention of the House to the subject, than that ministers should not consider it within the scope of their duty to explain circumstances so revolting to every proper feeling. Their silence created a suspicion as to the accuracy of the information they had received from Scotland. Every person recollected the oath that had been read in that House on a former occasion. He was astonished that ministers had given no answer to the question of his noble friend.

Lord Castlereagh

allowed that if there had been any impropriety in the proceeding alluded to, it might be a fit subject, at some future period, for the attention of parliament; but nothing could be so little productive of public utility as that collateral mode of attacking the conduct of a court of law, and of demanding an explanation which those who asked it must be aware ministers could not be prepared to give. If there was any one thing of which, the House ought to be jealous, it was of any interference on the part of ministers with the courts of law. He considered the questions put as coming more from political hostility than from any real complaint against the Scotch judicature. He was not ashamed to say, that he was not acquainted with what the lord advocate was doing 400 miles off. However, he entered no defence for that officer; he had the highest opinion of his skill and integrity, and believed that he would give a sufficient answer to all charges whenever he was arraigned; but he did protest against the arraigning him thus in his absence.

Lord Milton

thought the noble lord's protest was one of the most extraordinary he had ever heard. The noble lord I seemed to have abdicated the superintendence of his majesty's ministers over the law officers of the Crown.

Lord Castlereagh

protested against such incidental discussions.

Mr. Ponsonby

said, he was sure there was nothing farther from the thoughts of persons on his side of the House than to arraign the Scottish judicature. But the lord advocate was not the Scottish judicature—he was not a court of justice. He was only the prosecuting officer on the part of the Crown. He would say it did appear extraordinary that the same man should be tried three times. In England such a proceeding would be called illegal and oppressive.

Mr. Canning

argued, that a charge against the lord advocate, coupled with an admission that he had acted according to the Scotch law, was, in fact, an arraignment of the whole system of Scotch judicature. If what had been done was legal it was to no purpose to arraign the conduct of the officer concerned: but the proper course would be to propose a remedy for such a law. Whether the lord advocate had gone beyond the discretion vested in him, this was not the time to inquire; but his noble friend had said with reason, that the effect of what had been stated was, to create an unjust impression against the law officer in question, not for exercising the duties of his office, but as having exercised them improperly. When it had been said, that an individual had been three times imprisoned for the same offence, it was impossible not to wish to live under a different state of laws, but the law of Scotland was so, and the evil could only be remedied by altering that law. If imputations were still held out that the law officer had been guilty of improper conduct, all he asked was, that notice should be given of any charge, in order that the party might come prepared to answer it.

Lord Folkestone

thought that the right hon. gentleman himself had expressly arraigned the judicature of Scotland, in saying, that it was impossible not to wish to avoid living under such a law, and that a change in it ought to be made. But the gentlemen on that side of the House had complained not so much of the law as of the discretion exercised by the lord advocate; and they felt dissatisfied at no answer having been given.

Mr. Finlay

felt disgusted and disappointed, as did the whole Scotch nation, that an individual should be confined to a solitary prison, and tried over and over again, merely because the lord advocate was unable to draw an indictment. He complained that the legal affairs of that country were placed in such hands that it was impossible such circumstances should not frequently recur. An indictment had been three times quashed, and might, perhaps, meet with the same fate a fourth time. Was it to be endured that his majesty's ministers should allow the law to be in the hands of a person who could not draw an indictment? while the consequence might be, that, after all, the man would escape, whether innocent or guilty. The law of Scotland was right enough in itself-—it allowed an indictment to be repeatedly amended in point of form and before trial; but who ever heard of an indictment being preferred three times for the same offence, after the case had been argued? On these grounds he thought the thanks of the House were due to the noble lord who had brought the subject before the House.

Ordered to lie on the table.