§ A Message from the Lords acquainted the House, that their lordships had passed a Bill to repeal an Act made in the last session, intituled "An Act to continue an Act to empower his Majesty to secure and detain such persons as his Majesty shall suspect are conspiring against his person and government."
The Chancellor of the Exchequersaid, that it would perhaps be more convenient for both parties to reserve any observations which they might wish to make on any subject connected with the suspension of the Habeas Corpus to a future day. On Monday next a communication would be made to the House of certain papers calculated to throw light on the state of the country. He trusted that whatever differences of opinion they might have with respect to the necessity for the suspension, or the manner in which the powers given to ministers were exercised, there could be but one opinion among them respecting the propriety of passing the present bill through the House with as little delay as possible. It was his intention therefore to propose that the House should depart from their usual practice, and pass the bill through all its stages that day. He concluded with moving that the bill be read a first time.
§ Mr. Tierneyagreed in thinking that the suspension act ought to be repealed with as little delay as possible. He should abstain at present from entering into any of the topics alluded to by the chancellor of the exchequer, in the understanding that the subject would be gone fully into on a future day.
§ The bill was then read a first time. On the motion for the second reading,
§ Sir W. Burroughsasked, in what manner the subject would be gone into on Monday?
The Chancellor of the Exchequersaid, it was first intended to lay before the House certain papers calculated to throw light on the state of the country: the appointment of a committee was afterwards to be proposed.
§ Mr. Tierneyasked in what way these papers were to be dealt with? In what way were they to proceed on Monday?
The Chancellor of the Exchequersaid, on Monday a day would be named on which the papers then laid before the 92 House should be taken into consideration; and a committee would be chosen for that purpose in the usual manner.
§ Mr. Tierneyasked, if the committee was to be chosen by ballot.
§ Mr. Broughamsaid, they were still left very much in the dark as to the manner of choosing the committee, which was by far the most important part of the business. The right hon. gentleman had told them it would be chosen in the usual manner. Now, a committee was chosen in two ways last session—one time by ballot, and another time by motion.
§ Mr. Broughamwished to know, whether the committee was to be proposed on Monday, or on a future day?
The Chancellor of the Exchequersaid, the papers would be laid before the House on Monday, and the committee would not be proposed till a future day.
§ The bill was then read a second time. On the motion, that it be committed,
Lord Folkestonesaid, he could have no objection to a bill so very desirable as the one now before the House. At the same time, he could not help expressing his surprise, that though he had come down to the House that night before the usual time for entering on public business, this business had been gone into some time before he came. He knew some other members who would have been happy to have given their assent to this bill, but who were thus precluded from an opportunity of doing so. It seemed as if ministers were afraid of opposition or dreaded discussion; at all events, their conduct on this occasion was very unfair towards the House. His reason for then rising was, that he considered this measure was not sufficient—it was not all that the case required. If they confined themselves to a bare repeal, those persons who had been arrested and detained under the suspension act, and discharged on their recognizances, might still be harassed and exposed to a great deal of suffering. Something was due to these persons, and the bill ought therefore to be more than a repeal. As far as he was able to learn, and he had taken every opportunity of examining into the subject, it appeared to him that all those persons taken up under the suspension act who had been discharged on their recognizances, were unfairly dealt with. There was no law authorizing magistrates to demand such 93 recognizances from them. These men had, he apprehended, been very ill used, and might be exposed to further ill usage without any remedy, if provision was not made in the bill now before the House. There existed no proper legal authority for binding these persons on their recognizance to appear on a certain day. A recognizance could not be demanded from a man, without an accusation against him on the oath of some individual whom he might have an opportunity of confronting. He did conceive, that by merely repealing the Suspension act, they would not be going far enough, and that a clause ought to be introduced for the purpose of vacating the recognizances which had been so illegally demanded. He had drawn up a clause to meet the difficulty which he should propose in the proper stage.
§ Mr. Tierneyconsidered the secretary of state bound to give the House the fullest information of the reason and grounds which induced his majesty's government to require the parties to enter into these recognizances.
The Attorney Generalsaid:—The question now before the House appears to me rather a question of law, adapted for the consideration of a court of justice, than an argument for or against passing the bill. The cases of these individuals were such, that although nothing sufficiently strong, so as to affect them with the crime of high treason, could be substantiated on oath against them, still enough came out to warrant the magistrates in binding them over to keep the peace, and appear at a certain day if called upon. It is by no means a practice unusual in accusations of felony or misdemeanor, and rests in the breast of the magistrate as he shall deem it fit. What is a discharge upon a man's own recognizance, but a security given by the accused himself, instead of one given by himself jointly with two good securities? The recognizance, so far, has the appearance of an indulgence granted, rather than an injury inflicted. If the recognizance under these circumstances be illegal, the party may apply to the court of King's-bench, and it will relieve them. If the noble lord asks for my legal opinion upon this head, I think I may safely admit, that the act which empowered the secretary of state or the magistrates, to commit, also empowers them to liberate upon taking a recognizance. That the secretary of
§94 state has a right, under these circumstances, to require, through the medium of the magistrates, a recognizance, the, history of all prior periods of similar alarm will be found to prove. But the fact is, that no objection would have been made to the release of these men, and the discharge of their recognizances long since, but for their determination to prefer in court objections to the right which had been thus exercised. In a conversation I myself had with some of them, they stated, that they had objections on points of law to urge when brought up; and I, as well as others of his majesty's servants, thought it best to let their recognizances stand over, that they might avail themselves of the opportunity to discuss the point. Whether I have acted rightly or not in this respect, I will leave to the result; but I have the satisfaction to reflect, that it cannot be said I have precluded these persons from making use of the advantages they imagined they possessed.
§ Mr. Brandsaid, the attorney-general had confounded the practice of the courts of law with the legislation of the country. The men detained under the suspension act were enlarged, on the condition of entering into recognizances for their appearance in court on a future day, and therefore they were under the control of the court. But they were repealing the act under which these men were held in confinement, and therefore any detention of them after the repeal would be illegal. But if these men had been bound on their recognizance to appear in court on a future day, they might still be called on for that purpose, if some provision were not introduced into the bill. The measure recommended by his noble friend was one becoming the House to adopt, insomuch as no such detention ought to be continued after the passing of the repeal. The attorney-general had confounded two subjects, the remedy against the persons demanding the recognizance, and the security against future oppression.
Lord Castlereaghsaid, that the moment this bill had passed, that moment, the suspension and its consequences were removed. The suspension and the compelling the parties to enter into the recognizances, were transactions, neither involved in, nor connected with each other. Neither could the fact of the existence of these recognizances affect the propriety of the repeal of this act, suspending that 95 invaluable portion of the general liberty. The circumstance might fairly be a ground of a separate motion, and was cognizable in point of law; but could never be considered a ground for preventing the restoration to society at large of the full and free exercise of their constitutional liberties.
§ Mr. Broughamcontended, that the noble lord had not understood the grounds on which the clause was proposed. It was true, that after the passing of the present bill, no persons could be arrested or detained in prison, without having the power of forcing on their trial; but in what way did the government now endeavour to escape from this? The persons detained under the suspension act were bound on their recognizance to appear in court on a certain day, that is to say the bill would still be in force against them. Various things might be demanded from men confined under such circumstances, as the condition on which they could obtain their liberation—they might be compelled to pay 100l—they might be asked to go down on their knees and beg the ministers pardon—or they might be asked to give recognizances to appear on a certain day in court, and from time to time afterwards ministers had chosen to demand a recognizance; and, with few exceptions, it was deemed advisable to accede to their demand. Could any man, however, say, that they had the power to demand such recognizances, and to detain those individuals who refused to grant them, without the Suspension act? Why then these recognizances necessarily flowed from the Suspension act, and ought to be vacated by the repeal. He had understood that in one or two cases the alternative offered to the detained had been rejected; and there was a case which would, he believed, shortly come under their notice, concerning the conduct of a certain justice in London towards three individuals. It had been argued that this was properly a question for the consideration of a court of law; but he contended that it was not properly a question for the consideration of a court of law. The way taken in this case was, to put an option to the parties, which option they could not have had put to them, had they not been visited with the extraordinary powers of the Suspension act?
The Solicitor Generalsaid:—My hon. and learned friend seems altogether mistaken in the principle of law, upon which 96 he has founded his whole speech. Does he for a moment mean to assert, that had a man been taken up on a charge of high treason, and that such circumstances had been brought to light during his confinement, that he had been discharged upon his own recognizance, there was no person competent by law to enlarge him upon such recognizance prior to the parsing of the suspension act? I apprehend this act confirms no such power. The power to commit and to discharge in this manner existed long before this act. The power created by this act was the power of preventing the accused being brought to trial in the usual course of proceeding If this act had never passed, it would have been as competent to the parties to dispute the legality of the recognizances, as if it were to continue until the time of trying the question. We are now discussing what does not concern the merits of the suspension act, nor flow out of its enactment.
§ Sir W. Burroughssaid:—I certainly agree that the act gave no new power to commit; the power has been well observed to have existed before. However, the exercise of it must, in this case, be considered extremely objectionable. The secretary of state has evidently usurped this power to the prejudice of these parties, nor can the hon. and learned gentleman easily exculpate himself from the charge of neglect of duty, in not having discharged these parties without taking any recognizances. The attorney-general ought to have known, that no secretary of state has any power, much less right, on a charge of high treason, to liberate the accused on his own recognizance, or commit him to bail; much less can any inferior magistrate exercise such a prerogative; this power belongs only to the court of King's-bench. The attempt to justify this conduct has been equally futile with the attempt to impress on the public mind the necessity of the late rash and alarming measures of an administration which has not hesitated to plunge numerous victims into gaols without cause, and to keep them them there immured, without permitting their innocence to be established, in order that they might keep alive those fears and apprehensions to which they were indebted for the support of many, who were otherwise averse to their guilty measures.
§ Mr. Lockhartremarked, that though it had been stated by the solicitor-general, 97 that the power did not proceed from the bill, but from the common law, yet ministers had in substance acted under the bill, and from that the recognizances had proceeded.
§ Sir Samuel Romilly,thinking the suspension act had existed much too long, and that it would have been better if it had never existed at all, said he should not give any opposition to the repeal. They were passing the bill with great propriety, and dispensing with the usual forms. They did so because it was a matter of extreme injury that the suspension should not be repealed immediately after it ceased to be necessary. Now, how long had this extreme injury been allowed to continue? Was the suspension act necessary last night—last week—amonth—or two months ago? [Hear, hear!] When the question was before the House last session, it was proposed that the bill should expire on the 1st of December; that, if it should still be found necessary to vest ministers with these extraordinary powers, the judgment of parliament might have been taken on the subject. If the bill had only been in force to the 1st of December, parliament, in all probability, would not have been called to meet, and the act would have been allowed to expire. By not advising parliament to be called sooner than the 27th of January, the country had been existing in a state in which it ought not to have been suffered to exist. Because ministers had not thought proper to advise the assembling of parliament, the country had been exposed to the misfortune of existing under powers, for the continuance of which there was no necessity. These powers had been acted on till within a very few weeks of the time when ministers knew that they would have to account for their conduct. The fact was, that no necessity existed for the bill ever since the month of June last. He had not, since June, heard of any signs,—he would not say of an insurrection,—but of dissatisfaction existing in any part of the country. In that very month of June it was that the conduct of the missionaries employed by government was exposed. As soon as their conduct was brought under notice, these persons were discontinued in their employments, and since that time they had heard of no discontent, no dissatisfaction, no conspiracies.
§ Mr. Bathurstsaid, it was the practice of the other side of the House to represent this measure as setting its supporters in 98 array against the people; but this was both uncandid and unjust. It was not against the people that ministers were furnished with this discretion; but against the deluded part of the people, and for the benefit of the public at large. In the same spirit the officers of the Crown had been charged by the hon. and learned gentleman with bringing forward some late proceedings, and persisting in them, for the express purpose of rendering juries contemptible, and thus preparing the public mind for further encroachments on one of their most valuable privileges. But common candour and justice would ascribe their conduct to a more honourable motive—to an imperative sense of public duty. It had been asserted, and with great confidence, that all the mischiefs which had occurred had their origin in the artful machinations of a certain individual, whose name had formerly been mentioned in that House. He had no difficulty in asserting, in opposition to all this clamour, that that individual had done no mischief whatever; that on the contrary he had done great service, and that he had disclosed conspiracies, at which he had only incidentally and accidentally been present; for surely little weight could attach to the unfortunate declarations of the men dying at Derby; besides that, they were fully disproved by their own previous statements. It had been stated that government ceased to employ spies in the month of June, and that from that period the country remained tranquil. But the real cause of this tranquillity was to be found rather in the suspension of the Habeas Corpus, and the salutary apprehensions of the trial which was then hanging over the disaffected. He solemnly protested, that, to the best of his judgment, the state of the country was not such at any given period up to this date, that the bill could have been before repealed with safety. He well knew, however, that it was no new thing to charge government with being the cause of the evil which they were instrumental in averting.
§ Sir S. Romillysaid, he did not particularly allude to the employment of Oliver. The last report of the secret committee of the Lords had thrown sufficient light upon that subject, in which it had been stated, that the committee "had seen reason to apprehend that the language and conduct of some persons from whom information had been derived, might in some instances, 99 have had the effect of encouraging these designs which it was intended they should only be the instruments of detecting."* Nor had one of his majesty's ministers scrupled to assert broadly, that it was his duty to employ such persons in such an objectionable way.
§ Mr. Bathurstsaid, that the persons alluded to in the report were not employed by government, but by inferior magistrates.
§ Mr. Tierneysaid, after what had fallen from the right hon. gentleman, they were to understand that a danger did exist up to the 20th of January, when the last person was discharged—a danger which rendered it unsafe to repeal the suspension of the Habeas Corpus. That point ministers were therefore pledged to make good; for if the suspension existed one single day beyond the necessity for it, the king's ministers were guilty of a crime against the liberty of the subject. According to the right hon. gentleman the reports of both Houses of parliament were wrong.—It seemed the spies had never, as stated in these reports, promoted any mischief. He was to prove that the spies employed by government were never in any one instance, the cause of mischief.
§ The Bill was then committed and reported. On the question being put, that the Bill be read a third time,
Lord Folkestoneproposed a clause to the following effect:—That all persons bound by recognizances under the suspension act, be henceforth completely discharged from these recognizances, but that this clause should not apply to any other recognizances.
Lord Castlereaghsaid, that the clause proposed by the noble lord would place the House in an extremely awkward situation. In such a case the House would actually be legislating on a subject, the legality of which remained to be discussed in a court of justice. He hoped, therefore, the difficulty would be avoided by the noble lord withdrawing the clause proposed.
§ Mr. Tierneyobserved, that some of these poor unfortunate men had been more than twelve months in confinement, during which time their families had been left unprotected and starving. It was therefore a question not so much of justice as of humanity. Even if they could obtain redress in a court of law, yet they
* See Vol. 36, p. 1097.100 would be exposed to heavy expenses. He hoped, therefore, the House would save them this necessity, and release them completely from the effect of these recognizances as a small atonement for the heavy evils they had suffered from the act of suspension.
Lord Folkestonesaid, he rested his proposal, not upon a doubtful statement of any facts, but upon such as were notorious, and that he proposed merely the complete repeal of the suspension act.
The Attorney Generalsaid, it was impossible the gentlemen opposite could have rightly understood what he had said on the subject of these recognizances. He begged again to state, that the reason why the persons who had been set at liberty on their own recognizances had not been discharged from those recognizances, was, because they had maintained the illegality of their being obliged to enter into them. He therefore wished to give them an opportunity of bringing the matter to issue, and of having it decided by the court of King's Bench. Several of those persons had complained to him on the subject. He had told all of them that they would not be called upon. God forbid, that he or any other law officer of the Crown should' attempt to direct any persons against whom charges had been made by government in what manner they should proceed in their defence. Many of those persons had, asked his advice as to the manner in which they should proceed. He refused to advise them; but repeated, that their attendance was not necessary; and that if they had any fault to find with having been obliged to enter into those recognizances they might make their complaint to the court of King's Bench, or in any other manner they pleased. He did not wish to discharge them from their recognizances, lest it should be said that he had thereby deprived them of an opportunity of seeking redress. They had all received notice, save one, before they left their different homes, that their presence in town was not necessary. The person who did not receive such notice had set off for London before the notice reached that part of the country where he lived. It could not, therefore, be said, that their not being discharged was in order to harass or distress them. Another observation which had been made was, that because the suspension act was repealed every thing which had been done under that act should also be repealed 101 This he begged leave to deny. When the act itself was repealed it left every thing in the state it was before it was passed. The intention of the act was, to prevent persons who were arrested from being bailed, and to empower magistrates to detain them in custody until proceeded against, or set at large by the secretary of state, on such terms as the peace and well-being of the country made necessary. But it did not follow, when the act under which any persons were arrested was repealed, that those persons should be considered as free from all responsibility. Suppose any number of persons were arrested under the suspension of the Habeas Corpus act, against whom the officers of the Crown were not ready to proceed—if that act were to be repealed before those persons were brought to trial, ought they to be discharged on that account, though there were strong grounds of accusation against them? This, he supposed, no one would assert; and yet the argument of the gentlemen on the other side would go that length, if they maintained, that every thing which had been done under the suspension act was to be repealed with it.
§ Mr. Broughamimagined, that the attorney general did not yet understand the plea on which the clause was offered to the House. It was by virtue of the act of suspension that the secretary of state had been enabled to exact these recognizances from the prisoners. The persons bound by these recognizances might go to the King's-bench and demand to be released from them. But might not the King's-bench say that they had voluntarily, and with their eyes open, entered into them? Was it not likely they would say so? The attorney-general, then, well knew they were without their remedy. But what was it that had enabled the government to demand these recognizances in such a manner that the prisoners were compelled to comply? The suspension of the Habeas Corpus. It was then suspended; and at the time when their recognizances were entered into, no man knew how long it would remain suspended. Look then at the different situation of a prisoner while the suspension continued. In common cases, when the government had detained a man, they might offer him his discharge on his recognizance: if he refused that, the alternative was that he must be brought to trial. But, during the suspension of the Habeas Corpus act, 102 if a prisoner refused to give his recognizance, the government was not obliged to bring him to trial. He would in that case be compelled to remain in prison, as the right of suing out his writ of Habeas Corpus was denied. Was there no difference between saying, "give your recognizance or you shall be brought to trial," and saying "give your recognizance or you shall remain in prison." Here was the git of the question. As the bill before the House was to place the subject in the same situation in which he stood before the passing of the act, it was therefore not consistent, that those from whom recognizances had been exacted under the act should be excepted from its beneficial operation.
The Solicitor Generalobserved, that the necessity of the clause was now placed on a new ground, on which, however, he was ready to meet it. It had been said that the court of King's-bench would use those recognizances, the parties having entered into them voluntarily, as a ground for refusing to discharge them, and also for proving their being legally entered into. But that he conceived was not the question before the House. The question to be decided was, whether the parties taking those recognizances had a right to take them? If the magistrates who took them had no right to do so, then it mattered not whether the parties had entered into them voluntarily or otherwise, they were illegal. The only power taken from a magistrate by the suspension of the Habeas Corpus act was, his being prevented from setting those persons who might be arrested under it at liberty on bail. But any act of the persons who had been arrested, however willingly entered into by them, could not be binding on them if entered into before an incompetent tribunal. He should therefore repeat, that the only question was, whether the magistrates had a right to take those recognizances from the parties liberated, as if they had, there could be no complaint of illegality; if not, the recognizances were not binding.
§ Sir S. Romillysaid, that his hon. and learned friend had stated that the question had been placed on a new ground, and that the only subject for consideration was, whether the parties taking the recognizances had a right to do so. The secretary of state had, by the suspension of the Habeas Corpus act, been vested with the power of taking persons into custody 103 and detaining them, and, therefore, had the power of taking their recognizance if he chose to liberate them: at least, he had the power of detaining those who refused to enter into the recognizance which he demanded. But it appeared to him the question was, whether, when the act which empowered him to arrest and detain ceased, the power of demanding recognizance did not cease also? Previous to the suspension of the Habeas Corpus act, the secretary of state could not send for whom he pleased to tell him there was a charge against him, and that if he did not enter into recognizance to appear when called for he would commit him. He could not do this, because the law would not allow him so to do. Why then, he would ask, were those persons to be kept bound to appear when called on, against whom no charge of guilt had been brought, or, he believed, could be brought? If they repealed the suspension act, they had also a right to remove those hardships which had been brought upon those men who had been dragged from their homes without any cause, and who would otherwise be kept in continual alarm and suspense, lest they might on some future occasion be brought to trial on they know not what accusation. The attorney-general had said, that he intended to discharge the recognizances: if such were his intention perhaps his noble friend would not press the clause.
The Attorney Generalsaid, that were it not for the reasons which he had before given, the recognizances would all have been discharged. He should repeat, that he had declined doing so, lest it should be said that by having discharged them, he had prevented many individuals from seeking redress for what they considered a great grievance.
§ Sir W. Burroughsobserved, that those persons who had been arrested under the suspension of the Habeas Corpus act, and afterwards set at liberty on their own recognizances, had sustained a much greater injury than was generally imagined. They had been accused of crimes of which no proof could be brought against them, and by being obliged to enter into recognizances for their appearance, an imputation of guilt had been cast upon them. A blot was thrown on their characters which it was not easy to remove from the public mind; and he would say, that if these persons had been arrested for the purpose of injuring their charac- 104 ters, and blasting their reputation, and not with the intention of proceeding against them, a very serious degree of blame attached to the secretary of state. He hoped the noble lord would press his clause, as it was of the utmost consequence to those persons to be relieved from the trouble of attending at any future day, and the fear of having their recognizances continued.
Lord Folkestonesaid, that to save the time of the House he would withdraw the clause, if the attorney-general would state that it was his intention to discharge all those recognizances. But if he only said it was not his intention to call upon them, he should press it; as he thought it was most strongly called for.
The Attorney Generalsaid, the nature of the case had been misunderstood, if it was supposed that the persons in question had entered into recognizances for their good behaviour. Their recognizances were only for their appearance in court to answer any charge that might be instituted against them. At the time they were discharged, it had not been determined whether any proceeding against them should be instituted. Their recognizances could not afterwards be discharged till the first day of term. On that day they appeared in court, notwithstanding the notice given them that their appearance was not necessary. When they appeared in court, he told them that their recognizances should not be acted upon, but should be immediately discharged; but some of them replied, that they had a right to make objections to the recognizances. He then at once said he would not deprive them of that right; God forbid that he should interpose, by any deed of his, between them and their right to bring forward legal objections. He had now no hesitation in saying, that their recognizances would be forthwith discharged.