Commons Sitting of 25 June 1817

CHIMNEY SWEEPERS' REGULATION BILL.—
Mr. Bennetrose to submit to the House, a motion of the utmost importance to the character of the country, as well as to the interests of a class of unfortunate beings, who, from the nature of their present loathsome occupation, seemed to be shut out from almost all social intercourse with their fellow-men, and deprived of every portion of that respect which gene-
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rally attached itself to the exertions of industry in almost every other branch of human exertion. The object of his motion was, to procure the interference of parliament in defence of a helpless and infantine race of beings, generally known by the name of climbing-boys, in the service of chimney-sweepers. Their cruel treatment and sufferings had not escaped the attention of that House, who had by an act passed a few years ago, attempted to regulate this sort of trade, by enacting that no boys younger than eight years old, should be employed in this cruel occupation. This, however, had been found by the committee since appointed, to have been totally unattended to, and violated with impunity. Many were employed as climbing-boys, not more than four and six years old. The construction of several of the houses in the metropolis was such, that few of the chimnies therein was more than seven inches in diameter. It was the unanimous opinion of the committee, that no regulation could be depended upon, but that the trade should be gradually abolished. There were in this metropolis 200 master sweeps, about 20 of whom were, he believed, respectable tradesmen, and persons who used their apprentice boys kindly. Of the residue, more than 90 were a sort of jobbing itinerant characters, who went about the town or its environs looking for work, and amongst whom the boys employed were the youngest and most cruelly treated.— Indeed, it had come to the knowledge of the committee, that in some distant places even female children were employed, and that their delicacy of limbs, were considered most desirable requisites for insinuating the bodies of these unfortunate young creatures into the misshapen and ill-constructed narrow flues of chimnies. He should not trouble them with a detail of the accidents, distortations of the human body, and cruelties which were the frequent consequences of this practice, nor enlarge upon the moral and intellectual debasement consequent thereupon. It required no arguments in this age to prove that the practice was barbarous and inhuman, and unfit to be practised in a christian country. He had, he hoped, made out a case sufficiently strong to induce parliament to interpose its powerful protection in the cause of the youthful and helpless innocents thus exposed to contamination of mind, and unparalleled bodily suffering. He should leave it to the inge-

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nuity of the age to suggest a remedy for the evil. Machines had already been constructed, by which three-fourths of the chimnies might be swept and cleansed as well as they now were by boys; and with but very little alteration, he believed 95 out of 100, might be adapted to the use of the present machines. He could compare this traffic only to the slave trade—children were bought and sold—were kidnapped and cruelly treated—and, he hoped, the same spirit which had abolished all trades of slavery in our distant settlements, would not brook to see the helpless children of our native soil in a condition no less degrading and deplorable. The bill left altogether untouched the existing relations between master and apprentices. It provided, that no persons should in future be procured for the purpose of such occupation, until they had completed their 14th year; and that after a certain period, it should not be lawful, under the penalties attached to a misdemeanor, to employ any person in the sweeping of chimnies who had attained the age of 21. He then moved, for leave to bring in a bill to explain and amend the act for the better regulation of chimney-sweepers.
Mr. Wilberforceseconded the motion, and read a letter from the clergyman of a considerable county town, which stated, that although much interest had been excited there in behalf of these unfortunate children, nevertheless, in the space of three months, two children had stuck fast in chimnies, and perished in that shocking I state from suffocation.
Leave was given to bring in the bill.— It was afterwards presented, and read a first time.

TRANSUBSTANTIATION—IDOLATROUS WORSHIP.—
General Thorntonrose, pursuant to notice, to move for leave to bring in a bill to repeal such parts of the acts of the 25th and 30th of Charles the 2d, as require declarations, in certain cases, to be made against the belief of transubstantiation, and asserting the worship of the church of Rome to be idolatrous. The acts in question had been made at the end of the reign of Charles 2d, when the duke of York, the next heir to the crown, was a declared papist, and when the country was agitated by rumours of popish plots. Bishop Burnet, in the History of his own Times, stated, that while examinations were going on, and preparation was making for the trial of the prisoners, a bill was brought
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into the House of Commons, requiring all members of either House, and all such as might come into the king's court, or presence, to take a test against popery, in which not only transubstantiation was renounced, but the worship of the Virgin Mary and the Saints, as it was practised in the church of Rome, was declared to be idolatrous. This passed in the House of Commons without any difficulty. But in the House of Lords, Gunning, bishop of Ely, maintained that the church of Rome was not idolatrous. The lords did not much mind Gunning's arguments, but assed the bill. And though Gunning ad said that he could not take that test with a good conscience, yet as soon as the bill was passed, he took it in the crowd with the rest. The general said, his motion was not to interfere with the oaths of allegiance, supremacy, and abjuration, which would remain in force, and which he thought would be a sufficient security to the Protestant interest. The present seemed to him to be a proper time for the repeal of those laws, as there no longer existed any political necessity for them— He thought it was hard on Protestants, to make them declare the worship of the church of Rome to be idolatrous, as most of those who were so called upon, he conceived, did not know enough of the subject to be satisfied of the truth of the declaration, and some might know it to be an unfounded calumny. It was for another reason a proper time, as there was at present no clamour amongst the Catholics, which had formerly been thought a sufficient reason for not granting any thing to them.
Mr. Blakeseconded the motion.
Lord Castlereaghwas not disposed to provoke any discussion then upon the subject, He thought it would be more expedient to postpone the consideration of the measure to another session, and should therefore move the previous question; which was carried.

LORD SIDMOUTH'S CIRCULAR LETTER.—
Sir Samuel Romillysaid, that he should not offer any apology to the House for bringing under their notice the Circular Letter of lord Sidmouth; * that he felt that if he had any thing to apologize for, it was that he had so long delayed calling the attention of parliament to that extraordinary letter. This, however, had not
* See p. 447 of the present volume.

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proceeded from indifference to the subject, or from his not being sensible of its. importance, on the contrary, it was the great importance of it, which had made him hesitate before he took any step upon it. Recollecting how much the due administration of justice, the security of the subject, and the liberty of the press, might be affected by any decision that the House might come to upon this question; it was with some apprehension that he brought it before the House. He knew that this was not a time at all favourable for the agitating of constitutional questions, and he was aware of the address with which? those who were hostile to the rights of the people, often contrived, by majorities of that House, to convert any attempt to vindicate those rights, into a means of victory over them, and of triumph. Upon; the best consideration, however, that he had been able to give the subject, it had appeared to him that scarcely any use that could be made of the motion he was about to make, could be attended with greater mischief, than that the Letter of the secretary of state should be established as a precedent of the new law and practice which it introduced, without one member of the House of Commons, who were the constitutional guardians of the liberties of the people, raising up his voice against it.
The Secretary of State by the Letter in question, communicates to the magistrates in all the counties of England and Wales, that he had, by consulting the law officers of the Crown, ascertained that the magistrates had by law, a right to issue warrants for apprehending persons charged upon oath, with publishing blasphemous or seditious libels, and to compel them to give bail to answer the charge, and he recommends to them to require bail in all such cases. To the law thus stated he would not accede; but the question appeared to him to be of much greater importance in a constitutional than in a legal point of view. If the magistrates had by law the discretionary power which was here supposed, it was a flagrant violation of its constitution, for a minister of the Crown to direct or to suggest how that discretion should be exercised. But the Letter itself admits that doubt had been entertained whether the magistrates had any such power, and the minister takes upon himself to solve that doubt, and to declare upon the authority of the attorney and solicitor general what the law is. The Letter pretends to
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declare the law, and to control the discretion of the magistrates. It will probably be found, upon a due examination, hat there is no such law as the minister pretends to promulgate, and that the magistrates have not the discretion which he presumes to control. He would, however, for the sake of argument, in the first place, suppose that the justices have such a discretion as the Letter ascribes to them— What more dangerous authority was ever assumed by a servant of the Crown, than to pretend to interfere with the magistracy by suggesting to them how the discretion, which by law is vested in them, should be exercised? The law is supposed to have said, that it shall be for the magistrates, judging of all the circumstances of each particular case, to determine whether they will, before indictment, require a man charged with the publication of a libel, to find bail, or commit him to prison; but the minister recommends it to the magistrates in all cases, and under all circumstances, to insist on bail being given, or in default of it to commit. The law gives the exercise of discretion to the justice with a knowledge of the particular of each case; the secretary of state assumes that discretion to himself, and exercises it blindly, in ignorance of all the circumstances with which each case may be attended. In many cases the law gives judicial officers a discretion as to the degree of punishment which shall be inflicted for an offence. What would be said of a minister who should require the magistrate in every case to inflict the severest punishment which the law had appointed? And yet the interference with judicial discretion, is as unjustifiable in one case as in the other. This extraordinary and most unconstitutional recommendation to the magistrates too, is given with respect to a discretion which it seems agreed ought, where it avowedly exists, to be exercised but very rarely, and only upon very extraordinary occasions.
Since the act of 1808 it is clear that the attorney-general, or rather the judges of the King's-bench at the instance of the attorney-general, have authority to commit to prison or hold to bail persons against whom the attorney-general has filed ex officio informations for libel. But so seldom was it thought, that such a power ought to be exercised, that when, in the year 1811, a question was brought on in that House respecting ex officio informations, the then attorney-general, sir Vicary

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Gibbs, declared, that of all the persons against whom informations had been filed in the course of the three years which had elapsed since the act had passed (and they were numerous, no fewer, it was said, than 40), there was only one against whom he had thought it right to require that he should be held to bail, and that was in a case of a very aggravated nature; for the defendant, after the information filed against, him, had had the boldness to publish a new edition of the libel he was charged with. In the year 1793, notwithstanding the numerous government prosecutions for libels which were carried on all over the kingdom, and though Payne's Rights of Man and other very dangerous publications were amongst them, in no one instance had any defendant been held to bail. In his opinion, this fact alone went far to prove that the right did not by law exist in the magistrates; but every one must admit, that it proves that if such a right does exist, it was only in very rare and extraordinary instances that it ought to be called in action. The executive government, however, presuming to interpose with the magistrates in their mode of administrating justice, tells them that it ought to be constantly and in all cases acted upon. In so rash a manner had the secretary of state acted upon this occasion, that if any justice of the peace had presumed spontaneously to lay down for himself that rule which lord Sidmouth has prescribed for all the magistrates, and had declared before hand that he was determined in all cases of libel that should come before him to commit the offender if he could not find bail, such a man would have shown himself wholly unfit for his office, and the lord chancellor would not have exercised properly the discretion which the constitution has vested in him, if he had not struck his name out of the commission of the peace. Supposing, therefore, that the justices have clearly by law that discretion, which however is disputed, yet the Letter in question is a most unjustifiable interposition by the Crown in the administration of justice.
It is admitted, however, that doubt may be and was entertained, whether the magistrates have any such power: they did not know that they had it: the secretary of state thinks it necessary to inform them of it: the matter appears so doubtful to himself that he first consults the law officers of the Crown, and, fortified with their opinion (which opinion however itself betrays, in
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the manner in which it is conveyed, some doubt in those who give it), he takes upon himself to promulgate this at all the quarter sessions as the law of the land. But what authority has the executive government in doubtful cases, to declare what the law is. By the constitution of this country there are only two modes in which the law in matters of doubt can be declared: one is by the whole legislature by a declaratory statute, the other by the decisions of the judges upon points which have come judicially before them. It has been at all times thought of the utmost importance to prevent the law from being in any other way declared, and particularly to guard against the Crown presuming to declare it. In many cases they who have the power to declare have the power to make the law, and the Crown would be wholly independent of the other branches of the legislature, if it could by its ministers solve the doubts which had been raised on legal questions, and pronounce what the law is. Those of our princes who were most anxious to extend the prerogative were well aware of this, and attempted to exercise this power, but even they endeavoured to obtain for the law which they declared, the sanction of the extrajudicial opinions of the judges. It had been only in very late times, and he believed only under the present secretary of state, that the opinions of attorneys and solicitors general had been resorted to to give countenance to the law which he has been pleased to promulgate. Two years ago, when the ministers of the Crown thought proper to keep the militia embodied after peace had been concluded, and when all the causes which by law justify the embodying them had ceased, the same secretary of state had recourse to the attorney and solicitor generals to solve the doubts which were entertained, whether what the ministers had done was legal, and upon their authority he pronounced to the world its perfect legality. Even under the Stuarts this would not have been tolerated. When Charles 1st had determined to dispense altogether with parliaments, it was necessary to have recourse to some expedient for levying money upon the people by the king's sole authority, and Nov, the attorney general of that time, a man of great legal knowledge, and who had begun his career as an assertor of the people's rights, but afterwards proved himself a formidable instrument of tyranny, suggested the plan of requiring contributions for the purpose

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of fitting out a fleet for the defence of the realm in times of public danger, of which danger it was represented that the Crown was the sole judge. But when this tax was to be levied upon the people, it was not imagined that the authority of an attorney or a solicitor general would be sufficient to make it received as law,— the judges were all assembled, their opinions were taken in writing, and were registered in all the courts of Westminster-hall, and promulgated at all the assizes. The proceedings were exactly similar to what had been done upon this occasion, except that the law was declared upon the opinions, not of the law officers, but of the judges. It was most unconstitutionally declared, because, although it was on the opinions of the judges, it was on their extrajudicial opinions, on opinions formed without the advantage of hearing the case argued, and being furnished with the authorities and the reasoning which might be produced by those who had an interest to dispute the law, and above all, because it was an opinion given at the solicitation of the Crown. Fortunately for this country, a man was found bold enough to dispute the law which was thus published. A man to whom he would not be deterred from giving due honour, by the prevailing fashion of undervaluing his conduct, and depreciating his merits—by the sycophancy and servility of those who pay court to ministers by vilifying the founders of national liberty and happiness, and the brightest ornaments of human nature. The prevention of this arbitrary and unjust measure was owing entirely to the firmness and the honesty of John Hampden. But when this immortal patriot brought the case distinctly before the judges, ten of the twelve were so far corrupted as to adhere to their former opinions; and Croke and Hutton, names that he was proud to mention with a distinction so honourable, urged the strongest arguments against the decision in vain. The ten judges felt a sort of interest, a party bias, an esprit de corps which led them to give this iniquitous and disastrous decision.
In the reign of Charles 2d the judges were again called upon to give an opinion extrajudicially on the subject of libels, and they accordingly signed a declaration, that "to print or publish any news books or pamphlets of news whatsoever is illegal, and that it is a manifest intent to a breach of the peace, and they may be proceeded
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against by law." It is in these words that lord chief justice Scroggs, a person every way worthy to be the promulgator of this unconstitutional proceeding, states their opinion in the case of Henry Carr. What was the difference between that case and the present? There was a strong objection, indeed, to judges giving the law, when all the advantages of a particular case and of a full pleading were not afforded; yet he thought it much better to take the opinion of the judges than of the attorney and solicitor-general. It was not only because they must be supposed to be more learned, and to have had more experience, but because they must be expected to have more honesty. The judges were sworn to administer justice impartially between the king and his subjects; the attorney and solicitor general took no such oath; they were sworn only to serve the Crown; they held no judicial office; they were advocates and nothing more, and their usual mode of practice as well as the nature of their office, is correctly enough described by sir Henry Spelman, who says, "Atturnatus regis est qui causas regis forenses non solum promovet, sed ex more advocati fortissime tuetur." He would not be understood to insinuate any thing against the present attorney or solicitor general, for he argued on the general principle; but he did think them the very worst authority that could be used, as they were entirely dependent on the Crown for their present office, as that office was expressly appropriated to the purposes of the Crown, and as they must look to the Crown for all farther promotion. It was justly observed by the historian of lord Bacon's life, that the offices of attorney and solicitor general had been rocks upon which many aspiring lawyers had made a shipwreck of their virtue. More striking instances indeed need not be adduced than those of lord Coke and lord Bacon, the one the great oracle of our law, and who had acted most honestly and independently as a judge; the other, the ornament not only of his country but of the age in which he lived, and who yet both, when attorney general, had been the shameless instrument of the oppression and tyranny of the government by which they had been employed. When such men are not capable of resisting the allurements of their office, would it be pretended that the attorney and solicitor-general were proof against all interest, influence, and bias? They were the very

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last men in the world to give authority in such a question. Yet these were the oracles who could now make and unmake law!
How slow were proceedings in the case of Wilkes, and with what little effect was the decision promulgated, when compared with the rapidity and the effect of the opinion delivered by the law officers of the Crown, and transmitted to all magistrates by the authority of the secretary of state. The legal doubt with regard to their powers was not only solved to the magistrates, but they were enjoined to execute the law thus propounded. The Circular, resting on the opinion of the law officers, had thus declared the law of the land on a point that was before doubtful; and the secretary of state, assisted with such advice as he could command, had thus assumed the functions of legislation. He hoped the House, by its decision on this question, would mark its sense of this unwarrantable assumption of authority, and would declare, that the minister of the Crown had transgressed the limits of the prerogative in dictating to the magistrates his ideas of their duty; but if it came to a different result, and if, by passing no censure on such conduct, it showed that it acquiesced in its legality, he thought that parliament should in future take care to provide that an attorney and solicitor-general of such undoubted knowledge and uncommon integrity should be selected that there would be no danger of intrusting such power into their hands. No one who considered the manner in which these officers were at present selected could repose in them such confidence: and in saying this, he meant no reflection either on the ability or character of his hon. and learned friends opposite. The persons who filled these offices were sometimes chosen from other reasons than their preeminent talents, great experience, or legal knowledge, and were sometimes candidates, not only for other offices under the Crown, but for the situation of puisne judges. When he spoke in this manner of the office of attorney and solicitor-general, he begged that he might be allowed particularly to guard himself from being understood as conveying any censure on the late appointment; he meant particularly that of the Solicitor-General: not practising in the same court with him, he was not competent to speak of his qualifications as a lawyer, but he knew that he had a very high character in the profes-
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sion; but he thought the appointment highly honourable to government as well as to his learned friend, because it was certain that he had been promoted, not on account of his political principles, but from a conviction of his merits. He had gained his place by no servility of conduct; he had not been bought over by any hope of reward. He well deserved the favour which the Crown had been advised to confer upon him. He thought it necessary to state this when he alluded to the situation of the Crown law-officers, and objected to their being intrusted with such a prerogative as they had lately exercised, lest it might be imagined by some that he meant personal reflections, and that he disapproved of an appointment in the propriety of which he heartily concurred. It was not to the particular individuals that he objected, but the surrender of such a privilege into the hands of individuals so situated, whoever they were.
Was the House to believe it safe or constitutional to allow doubts on the laws that affected the liberty of the subject to be solved by his majesty's lawyer? If he looked back to former times, he found examples to show the danger of such a practice. A case occurred in the reign of Charles 2d in which a secretary of state, who wanted the interposition of alaw-officer to accomplish an illegal object, found a willing instrument in support of an iniquitous proceeding. It was in 1684, the year when Russel and Sydney were judicially murdered, when the law and the constitution were trampled under the feet of arbitrary power, and the forms of justice were made to cover the greatest enormities, that the instance to which he alluded occurred. The earl of Middleton at that time wrote to the lord advocate for Scotland to take his opinion on the question, whether the judges could receive the depositions of witnesses against state prisoners before their trials came on. The lord advocate of that day, who mentions the circumstance himself, was sir George Mackenzie, a man celebrated for his talents and legal knowledge, and who, on account of his perverted ingenuity, was only the more dangerous. He was sensible how contrary the opinion required of him was to the law; but he nevertheless answered, that the taking the depositions might, in ordinary circumstances, prejudice the judges; here they could not be prejudiced.

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Having spoken thus much of the constitutional question involved in this Circular, before he came to the proper subject of his motion he would read two Resolutions, with which, if the motion succeeded, he meant to follow it up. In the first place he would move a resolution, "That it is highly prejudicial to the due administration of justice, for a minister of the Crown to interfere with the magistrates of the country in cases in which a discretion is supposed to be by law vested in them, by recommending or suggesting to them how that discretion should be exercised." In the second place, he would move the House to resolve, "That it leads to the subversion of justice, and is a dangerous extension of the prerogative, for a minister of the Crown to take upon himself to declare, in his official character, to the magistracy, what he conceives to be the law of the land; and that such an exercise of authority is the more alarming, when the law, so declared, deeply affects the security of the subject and the liberty of the press, and is promulgated upon no better authority than the opinions of the law officers of the Crown."
Before he entered on this subject, he would shortly examine the legal opinion of the law-officers on which the noble lord's circular was founded. He did not think that opinion correct or consistent with the principles of law. In his opinion the magistrates had no such authority as it stated to belong to them. He meant, however, to propose no resolution on this subject. There might be some doubt; and he did not think it became the House, as one branch of the legislature, nor the other House, nor both together, to declare what the law was. In such a case, all the branches of the legislature must concur. But if neither House of parliament, separately, or both together, without the sanction of the Crown, could settle this point what was to be thought of an executive minister who took it upon him to declare what was the law of the land? He could not refrain from stating the consequences of the exercise of this authority of the magistrates, so unconstitutionally declared to belong to them. They would have the power of committing or holding to bail, before indictment, every man who should be charged on oath, at the instance or in the opinion of any informer, with having published a blasphemous or
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seditious libel. It was well known, too that blasphemous or seditious words uttered were punishable equally with publications of that character; or that the uttering of such expressions was considered as equivalent to publication; so that every man who published what any other man might think a blasphemous and seditious libel or uttered a blasphemous or seditious expression, might be sent to prison, or held to bail, on the oath of the informer, by the command? of any magistrate in any part of the country however prejudiced or indiscreet. The tyranny of the reign of Charles 2d could not be greater than this. It was folly any longer to talk of the freedom of the press. No paper, in any part of the country, could criticise the measures of ministers, or render itself obnoxious to some busy magistrate, without the danger of exposing its author to imprisonment or expense without trial. The magistrate was not even bound to examine the publication which was declared a libel. The oath of an informer was sufficient ground for him to act upon. He would say nothing here of the new dangers that beset this new law, from the system of late introduced of conducting the affairs of the government by spies and informers, who might insinuate themselves into our families, might listen to the unsuspicious conversation of our tables, urge on the ignorant and unwary to the use of expressions that might be construed into sedition or blasphemy, and then, by an exaggerated statement of what had been said, have them committed, or held to bail at the pleasure of a magistrate by whom they were employed. When this new practice was considered, the mischief of this circular was beyond all bounds. But the power of commitment was not only given in cases where blasphemous and seditious libels were published or uttered, for the opinion comprehended libels on individuals as well as those of any other description. He believed that the attorney and solicitor general, when they wrote the Opinion given under their signatures did not know the use that was to be made of it, otherwise they would have been more cautious and guarded in their expressions. If they were not told what use was to be made of their opinion, they had as good a right to complain of the conduct of the noble secretary as he had. They stated that "a warrant may be issued to apprehend a

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person charged on oath for publishing a libel cither by the secretary of state, a judge, or a justice of the peace;" but at the conclusion of their opinion, they qualify the word libel, which, in the first instance is general, by the epithets scandalous and seditious. This omission in the first instance, and addition in the second, showed something so slovenly, that they would not have been guilty of it had they been aware that they were declaring the law for the whole kingdom. As there was no distinction between the kinds of libels, so there were no limits to the power of the magistrates in other respects, if they were permitted to commit for what was not a breach of the peace. Any other misdemeanour would equally come within the limits of their jurisdiction.
So much for the importance of this assumption of power: he would now go a little into its history; and it did appear to him surprising, if this was the law of the land, that it was never thought of till now. In 1793 the country was deluged with publications that excited the displeasure of government, and which were accounted seditious; yet it never entered into the mind of the government of that day to give the magistrates such powers. He remembered, that in Warwickshire, in Derbyshire, and in some other counties, men were prosecuted at the sessions for seditious libels, that were very provoking to government. Two individuals of the names of Binns and Gale Jones, who were charged with going as delegates from the London corresponding society to excite sedition among the people of Birmingham, were particularly obnoxious, and were thought particularly dangerous, but this weapon was never employed against them. Yet there was no want of zeal among the magistrates; the two gentlemen who did almost all the business, of Birmingham were great church and king's men; they had, of course, no disposition to favour seditious libellers, and would have received with pleasure any order of greater severity from government. If, then, magistrates, overflowing with loyalty, and particularly inimical to libels of the kind alluded to, never thought of committing or holding to bail, it was evident they did not believe they had such authority. Nor did any other person think they had such power. The then attorney-general, the present lord chancellor, had no notion of such a power, or was very remiss in his duty.
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He was now about to enter into the legal arguments; but he would not detain the House long. Indeed, after the admirable argument upon that subject which had been delivered by a noble friend of his in another place*, and which was now in print, he should be inexcusable if he did. That argument it was difficult to add to and he believed impossible to answer. If the magistrates possessed the power of committing or requiring bail in cases of libel, they roust derive it either from their commission or from statute. Their commission was totally silent on the question. The only part of it on which an interpretation favourable to the existence of this power could be fixed, was that which regarded trespasses; but the whole tenor of the passage showed that trespasses here meant trespasses against the peace. If it were not so limited, it roust comprehend every species of trespass as well as this; and, therefore, as many species of trespass were not included, there was no reason to suppose that libel was. He would state authorities: the first was that of lord Coke, who, after stating that before the statute of Philip and Mary, magistrates could not commit, or hold to bail for breaches of the peace stated, that since that time they possessed such an authority. He did not, however, include libel. The next authority was that of lord Hale, who said that justices could issue their warrant to apprehend and imprison, before indictment, for breaches of the peace. That learned judge in speaking of the objects of this warrant, uses the word crimes in general; but it was evidently from what followed, that he meant misdemeanors, which amounted to breaches of the peace, and did not include those that only tended to a breach of the peace; for he added, that such was the universal and uncontrolled practice. It was not the practice to commit for libel. It was said in the time of the seven bishops, that a libel did not only tend to a breach of the peace, but was an actual breach, and on that ground a warrant for commitment was justified. In 1665 there was a case to the point, but it occurred in a period from which no precedent could be drawn. The statute enacted then, which gave the magistrates power to commit, did not refer to libels which were under the cognizance of government alone, but to the putting
* Earl Grey. Sec p. 445 of the present Volume.

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forth of unlicensed publications. Several persons, and among the rest Dover and Brewster, suffered under this tyrannical law. The constables or other officers were ordered by it to enter the dwellings of persons whom they suspected, and search for books that were not licensed; and of whatever character they were, the simple defect of the want of licence subjected their possessors to the penalties of the statute. The magistrates had no discretion. They were bound to commit on the finding of such publications: but these had no reference to libel: indeed, till lately he never heard that magistrates were supposed to have the authority now stated to belong to them. The Opinion of the law officers and the Circular of the secretary of state, were a surprise to him. He had had many opportunities of seeing the practice at the sessions; he had conversed with many learned friends well acquainted with the powers of magistrates; but he never heard any thing like the doctrine now advanced: and if this was the law of the land, which he did not believe, it should be altered as soon as possible.
He had brought forward the present motion from no feeling of hostility to wards the noble lord whose conduct was involved in the question he entertained towards lain no personal disrespect: he had, in any intercourse he had had with him, been treated with candour, and he had no inclination to hostility towards him, but he could not allow his feelings to overcome his sense of duty. In censuring his conduct, he did not conceive that the noble lord stood alone. He believed the whole ministers were culpable for any illegality that had been committed, and particularly the noble lord at the head of the legal administration of the country. Such doctrines as were now justified, and such conduct as was now pursued, appeared to him to be extremely dangerous, and tended if not counteracted, to operate the destruction of every thing that is valuable in our laws and constitution. He would always raise his voice against such pernicious innovations; and if in after times, when this country should be placed in that different situation to which it was hastening, and the liberties which our ancestors enjoyed and transmitted should no longer be enjoyed by our posterity, it should become a question with the curious or inquisitive how this change from freedom to arbitrary power began, what were the first symptoms of our decay, and
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what were the first inroads on the constitution? It would then be seen that there were some persons who were not insensible to the signs of approaching slavery, who denounced the tendency of arbitrary proceedings, and warned their countrymen against them. If those who were to follow us made as rapid progress in advancing from the point at which we now were, as we had done with respect to our predecessors, the season for the melancholy inquiry to which he had alluded was not far distant, and the country might decline into slavery without being aware of it. He understood that the noble lord who was the author of this proceeding had said, that he was proud of the censure cast upon him, since the only imputation-on him was, that he had been anxious to suppress blasphemy and sedition. The noble lord, however, might recollect, that a similar boast had been made by the most detestable and cruel tyrants that ever disgraced the history of mankind. When the duke of Alva, when Philip the 2nd and his sanguinary consort shed the blood of their fellow creatures and their subjects without remorse, and inflicted any species of torture on them, they too pretended that they were actuated only by a pious desire to extinguish heresy and blasphemy. Did any one really believe that religion was at the present time in danger? He might appeal to his hon. friend near him (Mr. Wilberforce) whether there was ever a time when persons were more deeply imbued with genuine principles of religion than at present. Could they suppose that irreligion and blasphemy, if they existed, could be suppressed by the means proposed; or rather would they not sec that ministers intended by such a pretence to gain over a party who could not otherwise be induced to sanction their measures, and that they were injuring the cause of genunine morals and religion by offering them such hypocritical protection? He concluded by moving, "That an humble address be presented to his royal highness the Prince Regent, that he will be graciously pleased to give directions that there be laid before this House, a copy of the Case upon which the Opinion of the attorney and solicitor-general of the date of the 24th of February last was taken."
The Attorney-Generalsat out with asserting, that no parliamentary ground had been laid for the adoption of his hon. and learned friend's motion; neither could he

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conceive the ground upon which such a motion could be sustained, or upon which the House would be warranted in calling for the production of any case which government might submit to the consideration of the Crown lawyers. There was, however, in this instance, no necessity for the production of the case referred to, because the opinion of the Crown lawyers which was before the House, was quite sufficient to elucidate the merits of that case, and to enable the House to decide upon it. Therefore, he thought the House, unless some very strong parliamentary ground were made out, would feel very much indisposed to violate the confidence between the consulter and the consulted. Such a violation would indeed be held contrary to practice and principle, in either a public or private case. For himself, he declared that nothing should ever induce him to violate any confidence reposed in him, by those by whom he had the honour to be consulted. On these grounds, he would resist the motion, convinced that the production of the case alluded to, would be improper and unnecessary, whether the opinion which rested upon it were right or wrong. As to what the hon. and learned mover seemed to say respecting that opinion, namely, that the law officers of the present day had betrayed a disposition to imitate the conduct of the judges in the reign of Charles 2nd, by giving extrajudicial opinions, he would assert that those law officers had done no such thing, nor did they feel any such disposition. They gave their opinion to those who asked for it, and that opinion was, he was prepared to show, perfectly consonant to the law and the constitution. Although the law officers had been called elsewhere the "paid servants of the Crown," he would say that no payment could withdraw them from the conscientious discharge of their duty, by giving, on all occasions, that advice which was warranted by law. But it was known, that whether in public or private cases, that lawyer who would give a convenient opinion merely to suit the desire or gratify the wish of his client, without any view to the law of the case, would manifest an indifference to the interests of his client, as well as to the preservation of his character, and the practice of his profession. The conduct of law officers was, however, it appeared, in the opinion of the hon. and learned gentleman, entitled to little confidence, or consideration, because, truly, their judg-
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ment was subject to bias. But there were he thought, names to be found among those who were law officers, which must claim the respect and consideration of the hon. and learned gentleman. There were Coke and Bacon, for instance, who, notwithstanding their aberrations, had manifested such manly independence as well as legal learning, as could not be too highly estimated. Yet, according to the hon. and learned gentleman, the judgment of Crown lawyers was so liable to be warped by their situation, that that judgment was quite suspicious. But did the hon. and learned gentleman deem such a suspicion applicable, when he himself was one of the law officers of the Crown? He was convinced of the contrary, and that the hon. and learned gentleman, at the time he held that office, was in no degree jealous of his own honour, or suspicious of his liability to deviate from rectitude through the operation of any undue influence. Why then should the hon. and learned gentleman entertain such jealousy or suspicion with regard to others? He did not pretend to enter into competition with the hon. and learned gentleman as to the extent of legal learning, or depth of political sagacity, or power of forensic reasoning, but he would not yield to the hon. and learned gentleman, or to any other human being, upon one point, namely, the conscientious discharge of professional duty. From this discharge he felt confident, that he was not to be withdrawn by any sinister influence, or deterred by any public clamour. No clamour or calumny, indeed, should ever restrain him from the declaration of his opinion, and in this case he had no hesitation in stating his deliberate judgment upon the best consideration of the subject, that a magistrate could legally commit and hold a man to bail for the publication of a libel. But although such committals had frequently taken place in the course of our history, and had been brought before our courts of justice, the fact was, that no question was ever raised as to the validity of the doctrine which he had maintained. If indeed any person were committed by a magistrate for the publication of a libel, and that he deemed such committal illegal, it was open to him to have himself brought up to the court of King's-bench, by Habeas Corpus, or to institute an action for false imprisonment. In various instances upon record, persons so committed had been brought into court by

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Habeas Corpus; but in no instance was the legality of the magistrate's warrant impeached upon the ground laid down by the hon. and learned mover, namely, whether a person committed or held to bail for a libel, before indictment found, was a legal proceeding. The hon. and learned gentleman did not question the power of the secretary of state to issue warrants, or hold to bail, in the case alluded to; nor could he, since the 48th of the king, question the existence of that power in the judges; but the hon. and learned gentleman denied that any authority could be quoted in support of the opinion that such a power belonged to the magistracy. He would, however, show, from the practice that had prevailed, as well as from the decisions of the courts, and the dicta of the text writers, that the doctrine impugned by the hon. and learned gentleman was fully established. In the first place he would state, upon the authority of lord Hale, that a magistrate could commit for every offence, before indictment, cognizable at the sessions. Lord Hale lays down his position in the broadest manner possible, and left no doubt that it was his opinion that parties may try indictments for libel, because libel has a tendency to disturb the peace, or, in other words, was quasi a breach of the peace. The sessions of the peace had always assumed the power to try for libel: but if there was any doubt on this subject, it rested with those who raised the doubt to settle it also. Why did they not bring the question fairly to issue? Why did they not go at once for a decision into the law courts? It was open to them at once to bring an action against the magistrate offending; and if they should be displeased with the judgment of the lower court, they would have their appeal to the principal tribunal. They might carry the matter before the House of Lords. Till this was done, till some legal shape was given to the objections of the opposite party, he should maintain, that the question was one completely settled. He had never yet seen in any text-book, or in any report of the decisions of judges, any doubt thrown on the opinion of lord Hale. Indeed, so far from seeing it shaken, he had seen it confirmed over and over again by the solemn arguments of subsequent judges. One learned judge had shown, that the power of the secretary of state and of a justice of the peace rested on the same footing; and
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as it seemed to be admitted that the secretary of state had the power of apprehending and committing for libel, it followed that the justice of the peace had it too. He supposed that there could be no doubt that the secretary of state had such power: it certainly had been decided over and over again. Two cases on this subject were particularly strong: those of the Queen v. Derby, and the King v. Earbery, the first in the reign of Queen Anne, and the second in the reign of George 1st, proved, beyond the possibility of doubt, that the secretary of state had the power of committing for scandalous and seditious libels. In the first of these cases he knew that Barnadiston had given somewhat a different complexion to the matter; for he had said that the justice of the peace had committed the libeller: but this, if true, only proved the case more strongly; for if there was a power to commit, there was a power also to apprehend; and that the justice had the power to commit was evident from this—that the secretary never committed without the aid and assistance of a justice of the peace. Were all these proceedings wrong? Was the case of the Queen v. Derby wrong? Was the case of the King v. Earbery wrong? Was the case of the King v. Wilkes wrong? On this last occasion every objection that could be raised was raised, and the judges were (he hoped he was not using an offensive expression), the astutest, perhaps, that ever were, in all matters relating to the liberty of the subject. Yet though here was an opportunity for raising the objection whether the secretary of state had the power of committing or not, yet lord Camden, when discussing the legality of the warrant, had never intimated that such a power was not lodged with the secretary of state. Lord Camden had stated it to be the judgment of the court, "That the magistrates should, on perusal, form an opinion whether any alleged libel was a libel or not." It was not necessary, in order to authorize the interference of justices, that there should be an actual breach; of the peace; except, indeed, in the case of a member of parliament: in all other cases it was sufficient that there was a tendency to it. The question then was, whether, supposing the power to exist, it had, in fact, ever been exercised. And here many cases might be quoted where judges, at least, had exercised the power. When he used the term judges, he applied it exclusively to the King's-bench (hear,

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hear); and though when he wrote his opinion he had omitted to qualify it so, yet he had intended it; nor did he think it possible to mistake his meaning. The hon. and learned gentleman then proceeded to cite several cases for the purpose of proving that the judges, for more than a century past, had been in the habit of holding persons to bail for seditious libels; and he argued, that in these cases the judges had acted as justices of the peace, and not as judges of the court. Now, according to the doctrine of his hon. and learned friend, all those persons who had been so held to bail ought to have been discharged; and yet where was the law of the subject to be found, except in the long, uniform, and uncontradicted opinions and practice of the court? And it seemed to him a necessary inference, from the argument of lord Camden, that as secretaries of state could only commit in two cases, 3ret justices of the peace could commit in all where there was any cognizance of the peace; otherwise his analogy between justices of the peace and secretaries of state fell to the ground. It had been asserted that lord Eldon, when attorney-general, had maintained a different opinion; but he knew that his lordship had always allowed that power for which he (the attorney-general) was now contending. In 1808, in particular, when the question was agitated in the other House, the lord chancellor had taken particular pains to give his support to this doctrine. In contending for this power to justices in cases of libel, he of course meant that the justice must himself see and read the libel, and not decide it to be a libel on the mere oath of any man [Hear, hear! from sir S. Romilly]. Why, surely, his hon. and learned friend could never have understood him to mean that the mere oath of an informer would be sufficient for the magistrate to found any proceeding upon, either of apprehension or committal. No; the magistrate must exercise his discretion on the perusal of the writing charged to be seditious, and must act on his own responsibility, and at his peril. It had been alleged against the Circular Letter, that the secretary of state thereby interfered with the clue and regular administration of justice. He had yet to learn that such an interference could in any way prejudice the process or ends of justice: there was no denunciation of persons by name, but merely a general recommendation to be vigilant with respect to the progress of an existing evil. Was not something similar
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perpetually done in the proclamations of the Crown? And could there be any doubt as to the utility of the measure? The grossest and most atrocious libels might have been with impunity hawked in every village, and placarded in every street, unless there had been some means of touching the offenders, before the slow process of indictment, or even of information. Before the arrival of the next sessions the offenders would have fled, never to have been found again. Who was to track the steps of an itinerant vender of sedition, who had no regular abode, and was never in the same place two days together? Such was the case which justified the transmission of the Circular: and yet, strange to say, gentlemen maintained that this salutary law, thus opportunely called to the attention of the magistrate, ought to be repealed. He was decidedly of opinion, that such a motion as the present ought to be negatived, unless some strong instance of misconduct in administration could be clearly proved.
Sir W. Burroughscited a variety of opinions and cases, to rebut the arguments advanced by the learned attorney-general. With respect to the authority of lord Hale, so much relied upon, the book in which the passage he had quoted, was to be found, was not written upon misdemeanors, but solely upon treasons, felonies, and capital offences. It was most clear, that the word crime, which the attorney-general considered as so conclusive, was used by lord Hale, in the passage cited, as relating to felony and felony alone. The authority of Hawkins, too, so far as it went, was against the power now assumed by the justices. What were the authorities quoted by the attorney-general, against those produced by his hon. and learned friend? They were authorities taken out of the Crown office; and not the decisions of judges, or what were to be found in any text writer. Yet it did not appear, even from those authorities, that any individual had been committed or held to bail, who had not been previously indicted. But even if it could be shown that custom was on the side of the practice now asserted, he should still maintain, on this particular point, that it was illegal. Lord Camden, in the case of general warrants, admitted they had been in use since the revolution; but, he said, was mere usage to grow into a law?—No degree of antiquity could give sanction, he observed, to a usage which was founded in an abuse. The

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Circular of lord Sidmouth authorized and required magistrates to arrest persons on oath, and hold them to bail for a libel, before they were indicted. But there was the authority of lord Camden, among others, against that practice, who expressly laid it down, in the case of Wilkes, that no man could be so held to bail for a libel. And he did not confine himself to the cases of peers or members of parliament, but included all individuals. He felt himself warranted, therefore, in maintaining, that it was never in the contemplation either of the statute or common law, to invest a secretary of state with such autliority.
Mr. Addingtonexplained the special reasons which had induced his noble relative to have recourse to that measure which had been this night called in question. He need not remind the House what the state of the country had been at the time the Circular was issued. It was sufficient to state, that the most mischievous publications were in circulation, and it in consequence became necessary, in the month of February last, great alarm having been expressed on this subject by some of the most respectable individuals in the country, for his noble relative to take the opinion of the law officers of the Crown. It was then for him to write specifically to the magistrates who had applied to him for information, inclosing them the opinion of the law officers, or to adopt the course which he had taken. To issue a circular letter explanatory of the law, had appeared the most efficient measure to which he could resort, and the decision came to would, he doubted not, meet with the approbation of the House.
Mr. Courtenaythought it of the most serious importance that the House should mark its opinion of this proceeding. The attorney-general, he observed, had not cited any case in which the question was brought before the court; but the law could only be settled by the decision of judges, in cases brought under their consideration. Lord Mansfield, who was by no means disposed to weaken the power and influence of the Crown, had said, that whenever bail is offered the Court never looks at the warrant. He did not charge the noble secretary of state with any disposition to violate the law; but when the difficulty occurred, he met it in a way in which it should not have been met. He should have said to the magistrates, You have a duty to perform, but it does not
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belong to me to explain to you what that duty is; you are judges to a certain extent, and are bound to exercise a judicial discretion. No man could doubt that his learned friend (the attorney-general) would give his opinion in the most upright and conscientious manner; but it ought to have been stated to him by the noble lord, that his opinion was to be acted upon. If he had been told that his opinion was to serve as a guide to the magistracy, it was most likely that he would have given a different opinion.
Sir C. Monckobserved, that the secretary of state was right in taking the opinion of the law officers of the Crown, but it by no means followed, that he was to use that opinion to influence the judgment and conduct of justices of the peace. What greater right had the secretary of state to dictate to the justices of the peace, than he had to dictate to the judges of the King's-bench, of the Common Pleas, or of the Exchequer The jurisdiction of justices of the peace might not be considered so important as that of the judges of the superior courts, but it was unquestionably very important, and, therefore, why should the Crown direct the exercise of their authority any more than any judicial authority whatever? The justices of the peace were as responsible for the discharge of their duties as any other judges of the country.
Sir F. Burdettsaid, that after this question had been so ably supported, both in detail and in general constitutional doctrine, it required some apology from him for offering himself to the notice of the House. He had waited till the last moment, expecting some farther arguments from the legal authorities, since the attorney and solicitor-general like greyhounds generally ran in pairs; but it seemed that the learned solicitor-general had left his colleague to bear the whole brunt of the contest. The only remaining constitutional branch of the subject which he should endeavour to support was this—that there was no practice of the courts, no usage, no dicta, that could contravene the established law of the land. The law of the land was, that nullus liber home eapiatur vel imprisonetur, unless upon conviction by a jury of his peers. That this was the old common law of the country was allowed on all hands; but it ought to be considered with the greatest strictness in respect to libel, a species of offence unknown to the common law, and which

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had been adopted from the civil law, and more recently borrowed from the practice of the infamous court of star-chamber. It was very extraordinary that, up to a late time it never was discovered that any man might be imprisoned for a supposed libel by ex-officio informations. If it had been the law of the land before, why was I a bill brought into the House to enable judges to hold to bail upon such ex-officio informations? In the case of libel, how was the party to proceed?—upon a person going to any magistrate and swearing that a man had published a libel;—only,observe, swearing to a point of law that a man had: committed that which could only be found by a jury [Hear, hear!.] In felonies, justices of the peace commit on oath; but then there existed a corpus delicli; an offence has been committed; and then they can hold the man in security for his trial, and the jury have to decide whether or not he has committed the particular fact; but in cases of libel, there was no corpus delicti, and it was impossible to tell what words an attorney-general or a jury would decide to be a libel. In his opinion, there was no subject on which the House were more bound to protect the people against being improperly punished than on charges I of libel. When first this bill was passed, it was said that the power would be very seldom exercised; but it had now become a matter of course, that judges, even upon the mere intimation that the attorney-general intended to file an ex-officio information, held the supposed libeller to bail. They had now an instance of a person (Mr. Wooler) having been committed under this authority, and afterwards tried and acquitted. The hasty conduct, or, in other words, the imprudent zeal of the judge on that occasion, deserved the most grave and serious consideration. To-morrow he should have a petition to present to the House, which would bring before them the judge's conduct as well as the singular hardship of the individual, who was now placed in a situation in which the government could not punish him. The office of attorney-general was one which ought to be looked at by the subject with great suspicion; and he thought that the assertions of the hon. and learned gentleman with respect to his opinion might have been spared. The silence of the solicitor-general gave the louse great reason to believe that he did not concur in the opinion of his colleague. The learned gentleman was there ex-officio to give them the
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benefit of his legal knowledge; but has he had not ventured to speak, it was a strong presumption, that he could not bring himself to maintain doctrines which his better judgment disapproved. Was it fit that the executive government should instruct persons who ought most jealously to be kept separate from the executive government? It was a very extraordinary proposal, that the House should be called upon to sanction an opinion without having before them the grounds of that opinion. Much had been said about a breach of confidence, but had the House no power on this occasion? It had, indeed, often carried its privileges to a great length against the rights and liberties of the people, but it had seldom exercised them against the Crown, and, least of all, against the law-officers of the Crown. He had been too long a member of that House to entertain any hope that they would exercise their powers to compel Mr. Attorney to lay the grounds of his opinion before them; but he humbly thought that they ought to see those grounds; and though he would not persuade the House to take such steps as would oblige him to produce them, still he had no doubt that it possessed the power. But if it would be a breach of confidence in Mr. Attorney to disclose the grounds of his opinion, how much greater was the breach of confidence which the secretary of state had committed, by stripping the opinion of those grounds He really thought that these gentlemen in office did not act fairly towards each other. Upon the whole, it was his opinion, that nothing would tend more effectually to lower the character of that House in the minds of the people than the rejection of the present motion.
The Solicitor-Generalfelt himself called upon to address the House, after what had fallen from the hon. baronet; and he could assure the hon. baronet, that unbiassed, unfettered, and unshackled by any pledge whatever, he had no doubt of the soundness of the opinion given by the law officers of the Crown. He had listened with the utmost attention to all that had been said, but he had heard no argument whatever which, in his opinion, had shown the interference of the noble secretary of state to be unconstitutional. On the contrary, the more he attended to the subject, the more he was convinced, that that Letter was founded on what the constitution gave the secretary u right to do. And he would only here remind gentlemen how often

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they had seen proclamations issued by the monarch, which declared what was the law; and was any thing more common than for judges at the various assizes to point out to juries what the law was? This Circular did nothing more, than merely remind the magistracy of what was the law of the land. Was it to be said that the secretary of state was to wait in indolence, and that magistrates were to do nothing till a crime had been committed, and that all was to depend on information being filed by the attorney-general? The hon. and learned mover had admitted the secretary of state had the power of imprisoning. Tin's was indeed a great admission from the opposite side of the House, when the jealousy which they professed to have for the secretary of state having power was considered. The opinion of lord Camden and other lawyers of that day, had been in favour of this power being vested in justices of peace, and indeed that opinion was well founded, for those persons were put into office for the purpose of preventing breaches of the peace. In a recent case, were a person was charged with inciting another to steal, lord Kenyon had declared the prosecution was proper, even though no act of theft had been committed. Though libel was not specifically pointed out in the statute book, it was always considered a breach of the peace, and this had been decided in the case of the King v. Somers. If, then, the magistrates can commit for felony, why not for libel? because, by having such power, they did no more than they did in a thousand other cases. A magistrate, in committing for a crime, exercised his discretion, well knowing that a jury had to decide on the case; and why should he not do the same in the instance of libel? He had read the argument of a noble earl in another place on this subject and— [Here Mr. Bennet called the hon. and learned gentleman to order.]
The Speakersaid, it was not parliamentary to allude to what passed in the other House of parliament; it was the practice to allow any printed publication to be referred to: the circumstance of that publication having been delivered in another place might, however, lead to a deviation from order in commenting upon it.
Mr. Wynnthought there was considerable inconvenience in referring to a speech spoken in the other House of parliament, even though it was printed. There was no knowing whither such a practice might lead.
Sir F. Burdellsaid, the publication might be alluded to as an argument which had been used, though not as a speech spoken.
The Solicitor-Generalproceeded—If fn a case of common cheat a magistrate could commit, he saw no reason why such power was refused in cases of libel. For would any man tell him that libel was ever intended by the legislature to be more privileged than any other crime? There might be cases in the law of libel which might give rise to nice questions, but certainly this might be done in every other case as well as libel. Much had been said of the oppression to which these persons were subjected by being imprisoned, but was not this the case in every instance where a charge was preferred against an individual? It was unfortunate indeed that this should be so, but there was no avoiding it, when the imperfection of human nature was taken into consideration. He was astonished to hear lord Hale's language so much tortured as it had been by the hon. and learned mover. Lord Hale had distinctly laid it down, that justices of the peace might issue their warrants against persons charged with crimes against the peace and hold them to bail. Hawkins also said, that justices had this power in cases of felony and misdemeanors. The very act of the justices of the King's-bench, in holding persons to bail, and in receiving that bail, justifies the opinion of the law officers of the Crown. I Having established—first, that libel was an offence cognizable by magistrates; and secondly, that being cognizable by them they had a right to commit for it in default of bail, he conceived that he had made out his case. As to the right of the secretary of state to call the attention of the magistracy to certain offences, it was only that which had frequently been done by proclamation, and by judges at the opening of an assize. He was astonished to hear his hon. and learned friend introduce so long a history of attornies and solicitors general, as if to assimilate the proceedings of his hon. and learned friend near him and himself, with the proceedings which he condemned. There might, be an imputation against the heads of his hon. and learned friend near him and himself, but there could be none against their hearts. They had discharged their duty to the best of their ability; and in so doing, he denied that he had declared any old, or introduced any new law. After

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the best consideration which he had been able to give the subject, he remained precisely of the same opinion that he had adopted originally with respect to it; and must therefore oppose his hon. and learned friend's motion.
Mr. Wynncomplimented the last speaker on his able construction of the law, and expressed his conviction that that was the only fair construction which could be put upon it. He was the more convinced of this by the consideration of what had passed in Wilkes's case, and the judgment given by lord Camden. Every offence, and the greatest the law knew, was subject to be decided on, as to commitment, by a single magistrate. A man might write to another abroad that he was about to send him six bales of cloth and four of cotton; this was innocent; but if the bales of cloth meant ships of the line, and the cotton frigates, and the letter was written to give information to an enemy, the offence was treason, and a magistrate might commit the writer. With respect to the other part of the case, he considered that the secretary of state possessed the right of directing magistrates, as the head and superintendent of the police of the country; but then, he ought to give the directions on his own responsibility, and not on that of the attorney and solicitor-general. He never knew an instance in which the law-officers of the Crown had been so called upon to expound the law, except that of the volunteer bill, and that had not been so successful as to render it desirable as a precedent. Lord Sidmouth's Circular had, besides, been addressed to the lords lieutenants of counties, which was a farther impropriety. The lord lieutenant being a military officer, ought not to have been made the medium of such a communication.
Sir S Romilly,in reply, expressed his surprise, that none of the members of administration, with the exception of his learned friend and the hon. and learned gentleman who spoke last but one, bad offered their opinion on this question, Their allowing it to go thus silently to a decision, showed the little value they set on questions of importance to the liberty of the subject. Nothing had been said in answer to the objections which had been urged on constitutional grounds. His hon. and learned friend seemed to think that he was only called on to justify himself against a particular charge, and the same view appeared to have been taken
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by the solicitor-general. The question, however, had not been brought forward with a view to censure any individual, but to show the impropriety and danger of publishing law on the authority of any attorney or solicitor-general whatever. The attorney and solicitor-general were only the king's advocates, and not the judges of the law; and although the present holders of those offices might be, and were, men of the utmost probity, who should say that in future such attornies-general as Noy might be found to be the tools of ministers? It appeared that the secretary of state had published the opinion of the law-officers without their knowledge; and this conduct appeared to be such a gross breach of confidence, that had it happened to him he should have thought it his duty to tender his resignation. Sir Samuel then entered into the law of the case, insisting that the answer, even upon that point, had been almost as defective as it had been upon the constitutional part of the question. It had been said that the magistrate was only empowered to commit for a time; but was it not necessary that he should first form an opinion upon the paper whether it were or were not a libel; and if he decided in the affirmative, did it not entail upon the unhappy culprit many of the worst consequences of conviction; dragging him away from his family and his business, and burying him in a dungeon? The authority of lord Hale had been relied upon as completely decisive, that the magistrates had the power to commit in cases of libel; but it was singular, that those who quoted him should have omitted a most important passage, in which the same learned judge expressed a doubt as to the opinion he had previously stated on certain text-books to which he had referred. Sir Samuel took occasion to censure that part of the circular which directed prosecutions against the sellers of pamphlets under the hawkers and pedlars act, upon which, it appeared, only one magistrate had ventured to proceed, and he had been compelled to make compensation to the party injured. He denied that the Circular had the least resemblance to a proclamation, or to the customary address of a judge on opening an assize. The proclamation of 1793, for instance, only enforced the existing law-In the case under the consideration of the House, there had been a declaration of law perfectly new.
The motion was negatived, Sir S. Ro-

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milly then moved his two Resolutions: viz.

1 "That it is highly prejudicial to the due: administration of justice, for a minister of the Crown to interfere with the magistrates of the country, in cases, in which a discretion is supposed to be by law vested in them, by recommending or suggesting to them how that discretion should be exercised.

2 "That it tends to the subversion of justice, and is a dangerous extension of the prerogative, for a minister of the Crown to take upon himself to declare in his official character to the magistracy, what he conceives to be the law of the land, and that such an exercise of authority is the more alarming, when the law so declared deeply affects the security of the subject, and the liberty of the press, and is promulgated upon no better authority than the opinions of the law officers of the Crown."

The Attorney-General having moved the previous question, the House divided: Ayes, 49; Noes, 157.

List of the Minority.

Abercrombie, hon. J.

Markham, admiral

Althorp, viscount

Martin, John

Atherley, A.

Martin, Henry

Baring, Alex.

Monck, sir C.

Bennet, hon. H. G.

Neville, hon. R.

Barnet, James

Newport, sir J.

Burdett, sir F.

North, D.

Browne D.

Orde, Wm.

Courtenay, W.

Osborne, lord F.

Calcraft, J.

Portman, E. B.

Carter, John

Parnell, sir H.

Caulfield, hon. H.

Ponsonby, rt. hon. G

Cavendish, hon. C.

Kidley, sir M. W.

Cavendish, lord G.

Sharp, R.

Duncannon, visc.

Sebright, sir J.

Douglas, hon. F. S.

Sefton, earl of

Fazakerley, N.

Smith, J.

Fergusson, sir R. C.

Smith, Wm.

Folkestone, visc.

Smyth, J. H.

Gordon, Kobt.

Walpole, hon. G.

Grenfell, Pascoe

Warre, J. A.

Hughes, W. L.

Western, C. C.

Hurst, R.

Webster, sir G.

Latouche, R. jun.

TELLERS.

Macdonald, J.

Burroughs, sir Wm.

Mackintosh, sir J.

Romilly, sir S.