§ On the motion of the Solicitor-general, this bill was recommitted. On the clause being read, inflicting the punishment of death on such persons as shall not disperse after being required so to do,
§ Mr. Gurney
rose and said, he must again call the attention of the House to these atrocious clauses. That their being found in the riot act of George 1st, was no ground at all for introducing them in this; the preamble of that act stating it as made against "rebellious riots, and tumults," the preamble to the present bill "that such meetings had been used to the danger and disturbance of the public peace." That, indeed, all the riot acts in which capital punishments had been awarded, went on the ground of outrage carried to a length approximating to rebellion. The first of them, 2nd and 3rd Edward 6th, cap. 5, was enacted after the rebellions of York, Devon, and Norfolk, all commencing in simple riot; the latter of 30,000 men, who beat the king's army under the marquis of Northampton, and were with difficulty overcome by Warwick. That this act was repealed 1st Mary, c. 1, of which act Mr. Gurney read from the preamble, "forasmuch as the state of every king standeth and consisteth more assured by the love and favour of the subject toward the sovereign, than in the dread and fear of laws made with rigorous pains and extreme punishments, &c. whereby people are trapped and snared, yea, many times for words only without fact or deed done or perpetrated." —Mr. Gurney stated, that the acts of the 2nd Mary and of Elizabeth against riots, 932 after those which occurred on account of the changes in the religion of the country, both went on the same ground of acts of violence perpetrated, as was sufficiently proved by the giving triple damages against a less number than 12, for the property which they might have destroyed or injured. — That these laws had slept from the accession of James 1st to the 1st George 1st, when the riot act, of which the enactments were so strangely grafted into this bill, was passed on occasion of the great tumults on the impeachments of Oxford and Ormond.—Mr. Gurney expressed his decided conviction, that so far from these clauses, which were abhorrent to the common sense and feeling of mankind, having any tendency to secure tranquillity, their direct operation was, to bring the legislature into that "hatred" with the people, which the act alluded to, as arising from the artifices of disaffected men. That it was awarding to the suspicion of incipient sedition, the punishment of consummated treason; and on these grounds he trusted some gentleman more competent than himself, would move an amendment that should substitute some other punishment more commensurate with the offence committed.
The Attorney General
wished to remind the House of the object of the bill, and more particularly the clause in question. That object was to prevent the meeting of tumultuous assemblies, and to disperse them if they should have met. The hon. gentleman who spoke last, was afraid that the clause was of a nature to excite discontent against the legislature; but there had been a long experience of a law of a similar description, and that experience had demonstrated that no such effect was to be apprehended. The clause would operate as a preventive, and it therefore was not likely that the actual infliction of the punishment it enacted would ever take place. There had been no instance of any punishment under the act similar to the present bill, which passed at a former crisis, nor under the riot act. The apprehension of punishment had prevented the offence: but how could it be expected that seditious meetings could be dispersed, if, after an hour's notice given by a magistrate, it should still be necessary to enter into parlance with the multitude? It was necessary to have a definite penalty specified, in order that the parties might know what would be the consequence of their continuing longer 933 together; and the severity of the punishment would be a security against the violation of the law.
§ Sir James Mackintosh
considered the argument of the hon. and learned gentleman as one of a very singular kind. He had insisted on the necessity of punishing persons offending against the law, as if his hon. friend who had opposed the clause, had' maintained that there should be no punishment. To agree to enact that persons persisting to remain together after notice to disperse was given, should be an offence, and yet to say that no punishment should be inflicted on the offenders, was an absurdity of which his hon. friend certainly never was guilty. The question was, whether the punishment of death was the proper punishment for the offence. The hon. and learned gentleman had stated, that there had been no instances of punishment under the similar clauses m the riot act, and the act of 1795, which he believed was the fact; but if there had been no cases of punishment, the inference was, that there had been no occurrence of the offence. The multiplication of unnecessary statures, and the enacting of penalties too severe in proportion to the offence, only tended to weaken and degrade the authority of the law. The order of the magistrate to disperse, it was supposed might be disobeyed. That disobedience would either bring the parties offending within the riot act, or it would not. If it brought them within it, then this clause was useless; for what necessity could there be for loading the statute book with sanguinary enactments? If it did not bring the parties within the riot act, then this bill went farther than that act, by punishing a less offence with equal severity. He would ask the committee whether they were prepared to enact a law more severe than the most sanguinary of the criminal code of this or of any other country, namely, the riot act?—a law which nothing could excuse but the peculiarly difficult circumstances of the period in which it was passed. He must again ask, of what use the clause could be if it enacted nothing more than was already enacted by the riot act? and unless he received a satisfactory answer, he would propose to leave out the words, "shall suffer death without benefit of clergy," in order to substitute the punishment of transportation for not less than seven and not more than fourteen years.
The Solicitor General
saw no reason for 934 the amendment suggested by the hon. gentleman. Many laws were enacted merely with a view to the prevention of crimes, and it was therefore very inconsistent to contend that such laws were useless because no punishments had been inflicted under them. That circumstance rather proved that they had answered the purpose for which they were enacted. On this principle it might be said, that the riot act was unnecessary; for he did not recollect one instance of the trial of any persons for not dispersing within an hour after proclamation under the riot act had been made; and yet no statute had been of greater advantage to the county than that act. The hon. gentleman had observed that the clause either came within the riot act, or did more than that act. It certainly did do more than the riot act in the way of preventing disorder. According to the riot act, persons must not only be assembled, but must be assembled riotously and tumultously. The object of the present bill was to prevent assembling at all except under the sanction of lawful functionaries, as he might call the magistrates, who were to superintend such meetings; and the clause in question gave to magistrates authority to disperse meetings so assembled, though there might be no actual riot or tumult. As the object of the bill was to prevent riot, it must be regarded as wise and proper to put the offence contemplated in the clause on the same footing as resistance to a proclamation under the riot act. The House, too, would bear in mind that this bill was not proposed to be permanent, like the riot act, but to be passed to remedy a temporary evil. The offence was not one for which any reasonable excuse could be offered. It was not one committed on a sudden impulse of passion or inadvertently. The penalty did not attach, unless the persons assembled should continue together one hour after proclamation made by a magistrate for their dispersion. Now, unless assembled for some other purpose than passing resolutions or agreeing to petitions, it was not probable that any individuals would resist the order to disperse. This was the effect he anticipated, and consequently expected that the punishment enacted never would be inflicted. He was far from wishing for sanguinary laws, but he was convinced that the effect of the present act would be greatly weakened were any alteration to be made in the clause under consideration. Many per- 935 sons, he was persuaded, would risk the staying together, if the punishment were only transportation, who would not venture to resist the law if they knew that such resistance made them liable to suffer death.
§ Mr. Barclay
wished to know whether it was meant to assert, that when proclamation had been made under the riot act, it had always happened that the persons assembled dispersed in due time, and returned to their homes? For his part, he believed the contrary was very frequently the case. There having been no punishment under the law was no proof the offence had not occurred. In his opinion the severity of the punishment had prevented prosecutions. He trusted that his hon. and learned friend would propose the attention which he had suggested in the shape of an amendment.
§ Mr. W. Smith
was of opinion that the solicitor-general had not been aware of the consequences which might follow his argument, nor the extent to which it might be carried. Humane and mild in his disposition, as that hon. and learned gentleman was justly acknowledged to be by all who knew him, he was afraid he had on the present occasion been unfortunately misled. He had described the offence as deliberately committed. What crime might not be punished on the same grounds? The law obviously defeated itself by its own severity. Suppose, for example, that the infliction of torture was still a part of the law of this country, the same argument might apply to it in this case. If the crime was to be prevented by the severity of the punishment, why, he would ask, had the hon. and learned gentleman not proposed that the punishment of high treason should be inflicted? He begged the hon. and learned gentleman would really consider the nature of the case before he proposed so dreadful a punishment. Men met together to debate on a given subject and to come to some resolutions on that subject —a justice hearing of the meeting comes forward and orders them to disperse— they are, it may be, disposed peaceably to debate whether they shall disperse or not, and while they are occupied in so doing the hour elapses—they then become subject to this dreadful punishment merely because they have, perhaps, been disposed to doubt the propriety of the justice's conduct and have remained a little longer together. This view of the case struck him very forcibly. A pickpocket might be considered a deli- 936 berate offender. His stealing was certainly a deliberate act. If, therefore, the deliberate manner in which the persons remained together was to be considered a sufficient ground to justify the infliction of death, there was no saying how far that punishment might be awarded. Between the riot act and the one now before the committee there was no comparison. The riot act supposed those against whom it was directed, were violating the public tranquillity and commiting outrage. The one now before the committee subjected those who did not disperse in one hour after proclamation, to the same dreadful punishment as if they had been guilty of the most aggravated crimes. It was a matter of no moment, whether they were peaceable or not; it did not avail them any thing to have conducted themselves in an orderly manner, for the punishment was the same. Viewing, then, the subject in this most serious light, he hoped his hon. friend would move the amendment he had already suggested.
§ Sir J. C. Hippisley
said, it was now a century since the riot act had passed, and it had proved of the greatest advantage. He had recently had personal experience of its utility. In the course of last week he had felt it to be his duty to read the riot act to an assembly which, though not actually riotous and tumultuous at the time, had riotous objects in view. Had the act been less penal, he was convinced he should not have had sufficient influence to cause the dispersion of that assembly. He was perfectly confident, that it was only by his stating to the people the high penalties to which they would expose themselves if they continued together, that he prevailed on them to separate. If the punishment under the riot act had been transportation, he certainly should not have succeeded. With regard to the difference between the present measure and the riot act, the important difference with regard to the number allowed to continue together had not been noticed. Under the riot act the number was twelve, but by the bill now under consideration it; was fifty. He would vote for the higher: penalty, as he considered it necessary for the peace of the country.
decidedly thought the act would be of no avail unless the punishment of death was the consequence to those who violated it. Not to disperse after the proclamation was read, was an act of the highest rebellion, and certainly en- 937 titled those who were guilty of it to the severest penalties of the law. The very circumstance of no case having ever occurred under the riot act, where death had been inflicted, showed the excellent effects that the dread of that punishment bad on the mind. Convinced that those who should violate this act were guilty of direct and open rebellion, he did not by any means conceive the punishment disproportionate to the offence, and should therefore give it his support. Every circumstance connected with the present times justified its being the case, and led him to think it indispensably necessary.
§ Sir James Mackintosh
agreed with his hon. friend, that such a punishment could only be justified on the ground of its being applied to rebellion; but he contended that the offence was not one of that description. When the punishment of death was inflicted under the riot act, it was for actual violence and resistance; but here it was proposed to enact the same punishment for the mere non-compliance with the order of a magistrate. A century ago, it had been thought fit to punish resistance to a magistrate with death; but he called upon any hon. gentleman to show any instance in which the law of England had made non-compliance with the order of a magistrate an offence punishable with death. He now moved, that the words "shall suffer death as in case of felony, without benefit of clergy," should be left out, and the words, "shall suffer transportation for the term of 7 years," inserted in their stead.
said, that many gentlemen had appeared disposed to seize upon the present opportunity to discuss the abstract question of crimes and punishments, but into that branch of the subject he should not enter. With regard to the riot act, he was of opinion that there was not on the statute book a law which had been more advantageous to the country. The question was not whether the principle of the riot act was applied to the present bill, but whether there was a necessity for the measure. There was this difference between the two laws, that the riot act was applicable to tumult which had commenced, or was intended: whereas the present bill was intended, not merely to stop the incipient but apprehended riot. An hon. baronet had stated to the House, that he had dispersed persons because he knew they had assembled for a riotous purpose. 938 The operation of the riot act was not, therefore, merely confined to actual riot. He would contend, that whenever resistance should be made to the order of a magistrate under this act, there would be such an opposition to the law as constituted rebellion, and he would ask, whether it was more prudent, by mitigating the penalty, to invite the people to make resistance, or to arm the magistrates with that precautionary authority which would enable them to preserve the peace? If the two laws, the riot act and the present bill, were allowed to go into concurrent operation with different penalties, the result of that operation would be the greatest inconsistencies. Suppose in the same field one magistrate should order the people to disperse, under pain of transportation, and in another part of the same field the riot act should be read, it would be impossible for the persons assembled to know to which penalty they were exposing themselves. He could conceive nothing worse than to leave any doubt on this subject, and therefore thought that the House ought to be guided by the principle of the riot act. He was confident that the amendment would not be adopted unless it was determined that there should be a complete doubt raised as to the situation in which persons assembled in opposition to the act should stand.
§ Mr. John Smith
said, he was not quite old enough to remember the riots of 1780, but he should like to know if the riot act was found useful either then, or in 1793, when Dr. Priestley's house was burnt down. In 1780, as he was informed, the riot act was read many times without effect. He could not help thinking, that with men of common sense the apprehension of the penalty of transportation, which they knew would certainly be enforced, would go as far to deter them from disobedience to the law, as the threat of a higher punishment, which they might hope would not be inflicted on them. In the course of his experience he had always found, that when death was the punishment for slight offences the difficulty of prosecution was almost insuperable.
The Attorney General
condemned the distinction attempted to be set up between a mere non-obedience to the law, and a resistance to the law. Perhaps some of the hon. members opposite thought the meetings, on receiving the command of the magistrate to disperse, ought to deliberate whether they were to disperse or not.
§ Mr. Serjeant Best
observed, that the punishment in the present law was not more severe than that in the act of 1796, and the subsequent acts.
§ Mr. J. H. Smyth
, of Cambridge, thought the punishment of transportation, the second in point of severity in our law, was sufficiently severe to deter from the offence against which they were now legislating; and of two punishments, both effectual to the object in view, it became them to take the lighter.
§ The committee then divided: for the Amendment, 26: against it, 70:
§ Sir James Mackintosh
said, he had another amendment to propose in that most important clause which related to public meetings—not meetings held without observance of the conditions required by law, but all meetings whatever—meetings legally holden in pursuance of notice properly given by seven householders. He had no objection to the first part of the clause, that part which authorized magistrates to take into custody any person who proposed an alteration of any thing established by law, otherwise than by the authority of King, Lords, and Commons: neither should he object to the words "or shall wilfully and advisedly make any proposition, or hold any discourse for the purpose of meeting and stirring up the people to hatred or contempt of the person of his majesty, his heirs, or successors." All libellous and slanderous words against the king, or person exercising the sovereign authority, were perfectly inexcusable—they were inexcusable when they referred to acts done in the excercise of the royal authority, because this was transferring the responsibility from the ministers of the Crown to the sovereign. If they referred to the private conduct of the sovereign, they were equally inexcusable—for he held that all conduct purely private, whoever the individual might be, ought to be exempted from animadversion. His objection was to the same power being given in the case of propositions stirring up the people to hatred or contempt of the government or constitution of this realm as by law established. No man in that House would say that there was any intention of using the word government in any sense where it might be confounded with administration—that there was any intention of putting a stop to the canvassing all measures of administration, the proceedings of both Houses of Parliament. But if that were true, what was the use of 940 inserting the word "government." It was either no more than constitution, and in that case it was unnecessary, or it was meant for administration, and in that case it was mischievous. He desired to have some sense of the word government adduced in which it was different from constitution. The use of the word government in this clause could have no tendency but to create the most dangerous misapprehensions, and the greatest confusion in all public meetings. The House had received many petitions complaining of many acts of the legislature, and they always received such petitions when there was no intention to insult the House. But the right to present such petitions involved the right to discuss the subjects contained in them. He should propose, therefore, that which would leave the beneficial operation of the clause as full and entire as before, without giving a latitude of discretion to bigotted, servile, and narrow-minded magistrates. He should propose the omission of the words "or the government," leaving the passage to run, "or the constitution of this realm as by law established."
contended, that the word government had been used in every indictment for high treason from the earliest times. The persons indicted were charged with levying war against the king, and insurrection against the government. In all indictments in cases of sedition and seditious libels, the word government of the country was constantly used, as a phrase which no lawyer could misapprehend. He should not wish to have the word constitution left out; but if they were to leave out one of the two words, standing there as a lawyer, he would rather leave out the word constitution than the word government, as the latter word was better known in the language of the law.
agreed that the word government was better known to the law than the word constitution, and that it was a proper expression in the clause, but he objected to the clause altogether, as the only end which it could be intended to answer was provided for in the former part of the bill, or by the law as it at present stood. It would be better to allow the justices to prevent such meetings when they thought the terms of the notice improper, than to give them the power of dissolving them when a great number of persons were collected together, the exercise of which would lead to disorder.
§ Mr. W. Smith
wished to know whether it was to be understood that all power of assembling to petition for parliamentary reform was taken away by the present clause? If that had been the intention of the framers of the bill, what more could they have done? Persons who convened meetings to petition for reform were obliged to prove that there was something wrong in the constitution of that House; and how was that to be done, without saying something which might be construed into an intention to bring the constitution into hatred and contempt? He should take, for instance, the septennial act, which was a part of the established law. If any one were to tell the people that this act was an infringement on the rights of the subject, or a gross fraud on the people, would it not be said that his speech came within the clause? Now would they vest in any magistrate the power of going to any meeting, and at once dissolving it? As no one supposed that to petition for parliamentary reform was unconstitutional, to put into the hands of the magistrates the power of preventing meetings to petition was surely unconstitutional. They might judge of the construction which magistrates might put upon parliamentary reform meetings, by the words of a report made in another place. That report talked of the Union Clubs as professing to suppport parliamentary reform, "by which they understand universal suffrage and annual parliaments, projects which involve not any qualified and partial change, but the total subversion of the British constitution." For his own part, he was not friendly to these measures, which he thought would be most injudicious alterations and not reforms, but he did not think them subversive of the constitution. There were indeed very high constitutional authorities against that assertion. However, there might be found in the country, magistrates who thought that much less important changes than these would be subversive of the constitution. If the real intention of the bill was, to prevent parliamentary reform, it should be so avowed.
said, that the magistrates were by the same bill invested with a discretionary power as to Debating Societies. He did not think they incurred any greater risk, by granting them the discretion to determine whether the proceedings at a meeting, convened by seven householders, tended to parliamentary re- 942 form or to sedition. As to the case which the hon. member had put, he apprehended a magistrate would be not only blameable, but punishable, if he attempted to interfere with a debate, even not very temperate, on the state of the representation of the people. But when he had fully admitted that an exercise of the discretionary power against such meetings would not be justifiable, would it not be conceded to him, that when discourses were held, manifestly tending to sedition, there should be some power in the magistrate to put a stop to them? It would be afterwards left to a jury of his countrymen to determine, whether the magistrate had acted warrantably, or whether he had strained the power granted for the prevention of sedition, to the suppression of constitutional discussion. The House must take the course marked out in the clause, or leave the public mind open to all the inflammation which these meetings might be used to extend.
§ Mr. Lyttelton
said, he had given his vote for the mitigation of the punishment to transportation in the former clause, not from any design to clog the operation of the bill, but from a conviction that it would be equally efficient if the amendment had been carried. He had the same feeling as to the amendment now proposed, and he supported it, not from any idea that the word "Government" would be misunderstood in that House, but because there was a great popular misapprehension as to the import of that word. The looseness of expression which prevailed, was to be attributed to the freedom which the people enjoyed, and which rendered it unnecessary to weigh minutely every word which fell from them. Was it not usual, he would ask, to apply the word "government" to the administration, and might not the most loyal man in the course of a long speech speak of the government in a way which, though his meaning might be perfectly justifiable, would bring him within the letter of the law, and enable some officious magistrate to put him on his defence? As all that could be meant might be comprehended in the words, "constitution as by law established," he should vote for the amendment.
§ Mr. Bathurst
thought no one could be so ignorant as to understand by the word government, the administration of the day. As it was only the perversion of the law by ignorant men which could be ap- 943 prehended, it was an objection which equally applied to all discretionary power.
After some further conversation the amendment was negatived. On the reading of the next clause, for apprehending persons who offended as before described,
§ Sir S. Romilly
proposed to leave out this clause altogether. He wished to know how the learned gentleman opposite, who had paid so much attention to this act, could explain the operation of this clause. Dreadful penalties attached to persons not dispersing, or who obstructed the arrest of any persons by the magistrate. Now, if it should turn out that the magistrate had acted wrong, had arrested a person for no sufficient cause, would this error of the magistrate be a good plea for a person who should be tried for obstructing, or for not dispersing; or would the penalties still remain, and thus be made to depend on the bare opinion of a magistrate, and that, possibly, an erroneous one?
The Attorney General
conceived, that the clause was sufficiently explicit. If a man should make any treasonable proposition, he was to be seized, and not otherwise; if the meeting adopted the treason by obstructing the arrest of such a person, it was to be dispersed and not otherwise.
The Solicitor General
said, that a magistrate would by this clause have the power which he possessed in every other case, with this difference, that he would act on what he heard as well as on what he saw. He was in the legal predicament of a constable or magistrate, acting "upon the view." He was also responsible for any abuse or misapplication of his power.
§ Sir S. Romilly
said, that the clause before the committee pretended to give certain privileges to assemblies convened by seven householders; but under the construction now put upon it, he had not the least difficulty in asserting, that it would be far better that the clause should be expunged, since some officious magistrates might only make it a pretence for denouncing the most peaceable and constitutional meetings, and arresting all those who took part in the discussion. The clause, as at present framed and understood, tended rather to occasion riot and confusion, than to prevent sedition and rebellion. The most important rights might be invaded, if it were not amended. Suppose, for instance, at an assembly legally convened, a gentleman should state, that 944 it was a mockery upon the constitution that Old Sarum should have as many representatives as Westminster, some justice of the peace might think that, as by the law and constitution, Old Sarum was allowed that privilege, it was illegal and seditious to assert that it was a mockery, and the result might be the dispersion of the meeting. The whole representation of Scotland was in his (sir S. R.'s) opinion no less a mockery; and yet if that opinion were stated out of doors, any magistrate might step in with his constables, arrest the individual, and dissolve the meeting. This pretended privilege on the signature of seven householders was nothing more or less than an allurement to mischief.
§ Mr. Harvey
contended that the case put by the hon. and learned gentleman would not justify the magistrate in apprehending any person at a meeting which had been legally convened.
§ Mr. Serjeant Best
contended, that the object the clause had in view was not the mere words spoken, but the intention with which they were uttered.
argued, that the clause did not give the magistrate a greater power than he had at present. By the existing law a magistrate, if he heard seditious words, might order the person uttering them into custody. If the meeting at which they were uttered exhibited any tumultous disposition, he might read the riot act, and order them to disperse. Did the committee mean to circumscribe the existing power of the magistrate? They must choose between leaving the magistrate his ordinary jurisdiction, or making these meetings sanctified places, in which treason and sedition might be vented with impunity.
§ Sir S. Romilly
said, that if the noble lord was right, the proposod act was altogether nugatory.
On a division, there appeared: for the clause, 43—against it, 16. Sir J. Mackintosh proposed that the exemption extended to lectures in the universities, the inns of court, and Gresham college, should be extended to the East India college, to places for lectures in medicine, surgery, chemistry, or to any lectures really and bona fide intended for the improvement in learning, the sciences, and the arts. The amendment was rejected, with the exception of the part referring to the East India college.—On the clause declaring the societies called Spencean Philanthropists to be unlawful combinations,
§ Sir J. Mackintosh
said, that he was quite ashamed to have the names of such contemptible enthusiasts introduced into a solemn legislative enactment.
The Attorney General
said, that he felt as much contempt for those poor lunatics as any one could, but he expressed his conviction that the clause should stand, because they were making numerous proselytes.
§ All the clauses being gone though, the House resumed, and the bill was ordered to be reprinted.