HC Deb 03 March 1818 vol 37 cc741-52
Mr. Bennet

said, he held in his hands a petition to which he wished to draw the attention of the House. It was from a person who had not been imprisoned under the Suspension of the Habeas Corpus act. The act of which the petitioner complained was one of those measures, which the noble lord, the secretary of state for the home department as head of the high police of the country, had chosen to inflict on the country. The House would recollect the Circular Letter of the noble lord to the lords lieutenant of counties, directing magistrates to hold persons to bail charged with selling libellous publications. Whatever might be the intention of the noble lord as to the degree of mildness or severity with which persons so arrested should be treated, the petitioner had been treated with a degree of cruelty hitherto unknown in the practice of this country. The petition was from Jonathan Buckley Mellor, by trade a small bookseller, in the town of Warrington. The offence for which the petitioner was arrested, was the selling the well known Political Litany for which Mr. Hone was tried; but though the copies bought for the purpose of prosecution were obtained long previously, he was not taken up till after the quarter sessions in April, when he was dragged to a common gaol, and confined several days in irons. The petitioner was conveyed, loaded with irons, to the house of correction at Preston, where he was confined six weeks. He was altogether confined fifteen weeks in differ- ent prisons, before he was removed, at 12 o'clock at night, in an open cart, in irons to the sessions at Ormskirk. He remained there two days and two nights in irons, in a dirty room, without even straw to lie on. The case was removed by the person who conducted the prosecution, by Certiorari to the court of King's-bench. The prisoner was re-conveyed to Preston in a cart, along with convicts sentenced to transportation. He remained there four weeks in prison, when he was discharged on his recognizance. During this time his wife and children were reduced to the most abject poverty, and obliged to apply for parochial aid. He trusted, however indifferent the House had hitherto shown themselves to the grievances of the people, that they would, on an occasion of this kind, show that they would not allow them to be made the victims of most wanton, and unjustifiable cruelty.

The Petition was read. It purported to be the petition of Jonathan Buckley Mellor, of Warrington, in the county of Lancaster, and set forth:

"That the Petitioner has for some time undertaken the sale of books, with a view to enable him to support himself and family in a more comfortable way than his wages as a servant would allow of; that, amongst the books and pamphlets which he received from his agent in the way of business, was a quantity of copies of a work styled "The Political Litany;" that, upon the publication of lord Sidmouth's circular, Mr. Thomas Lyon, jun., in February 1817, sent one Mary Scholeheld to purchase two copies of the Litany from the petitioner, for the purpose as it subsequently appeared, of having the petitioner arrested for the sale of this work; that Mr. Thomas Lyon jun. notwithstanding his pretended alarm for the interests of religion, instituted no proceedings until the quarter sessions in April had ended; his motive for this delay was solely to gratify his malice by subjecting his victim to a longer period of imprisonment; as soon as the sessions were over, he deputed Paul Caldwell, the constable, to arrest the petitioner; when taken into custody, the petitioner demanded to see the warrant upon which he was apprehended; the constable produced a pair of hand-cuffs, and with them securing the hands of the petitioner, replied they were his warrant; the constable took the petitioner to a public-house, and delivered him in charge to Mr. Thomas Lyon jun. who was there waiting to know the success of his measures; the constable then returned to the petitioner's house, which he searched, and carried away from thence about seventy books and pamphlets in a sack, amongst which were Rollin's Antient History, Wynne's General History of America, Law's Serious Call to a Devout and Holy Life, the Evangelical magazine for two years, some numbers of the Liverpool Mercury, a few of Cobbett's Registers, and other miscellaneous publications; Law's Serious Call, with some Other books thus forcibly carried off have never been returned; not one parody was found in the House, the one sold to Scholefield was the last sold by the petitioner, for, on learning that the Political Litany was considered by his majesty's ministers to be blasphemous, he declined to sell any more, although strongly urged to do so by persons who, he has reason to believe, were emissaries of Mr. Thomas Lyon jun.; soon afterwards, the petitioner destroyed every copy which remained; the petitioner was confined all night in the Bridewell, a dirty loathsome dungeon; he was then taken before the magistrates, Richard Gwyllym and Isaac Blackburne esqrs. and by them ordered to be confined in the workhouse, where he continued all night chained by the leg to a 60 pound weight, without either bed or straw; the next day he was again examined before the same magistrates, who offered to liberate him on his procuring two sureties, in the penalty of 50l. each, and himself in 100l.; the petitioner, not being provided with sureties, was again removed to his former situation for two nights more, with a similar appendage to his leg, and again without bed or straw; he was then conveyed in irons to the house of correction at Preston; here he was, for six weeks, denied pen, ink, and paper; he was confined at Preston fifteen weeks, from whence he was conveyed in irons, at twelve o'clock on a very wet night, in an open cart, to the quarter sessions then holding at Ormskirk; there he was confined two days and nights, all the time in irons, in a dirty room crowded with prisoners, without any convenience to ease themselves from the burthens of nature except an open leaky tub in a corner, and without even straw to lie upon; on being brought into court, Mr. Peter Nicholson, the attorney for the prosecution, said he had a writ of certiorari to remove the business to the King's-bench; the petitioner was then conveyed back to Preston, handcuffed and ironed, along with convicts sentenced to transportation; about four weeks, more he was, in consequence of a letter from Mr. Nicholson to the governor of the house of correction, discharged on his own recognizance to appear at the court of King's-bench, incompliance with which, not having received any notice to the contrary, he went to London at a considerable expense of time and money, and having appeared in court, he was ordered to appear at Lancaster at the March assizes 1818; the petitioner, unconscious of having infringed upon any existing law, has by these cruel and illegal proceedings been imprisoned upwards of nineteen weeks, been conveyed like a criminal seventy miles from Preston, he had to return home, to travel to and from London at great expense, whilst his wife and family have been dependent on the scanty aids of parochial relief and the contributions of the benevolent, and he has lost a situation which before his arrest contributed materially to his support; the petitioner humbly prays that the House will take into their consideration the statement now submitted, and that they will adopt measures best calculated to secure the liberty of the subject, and to prevent a recurrence of the arbitrary, unjustifiable, and severe sufferings endured by the petitioner, from the magistracy, or any their inferior officers and agents."

Mr. Bennet also presented a petition from Samuel Pilling, of Warrington, setting forth:

"That on the 23rd of April 1817, Paul Caldwell, the deputy constable of Warrington, along with other persons, entered the petitioner's dwelling-house, and told him they were were come to search for Cobbett's Books, and though the petitioner did not in the least resist the search of his drawers and boxes, but offered to find them the key of one box which was locked, the deputy constable ordered him away with one of the persons who accompanied; this person took the petitioner to the work-house, adjoining to which is the prison of the town, a damp unwholesome place; the petitioner was not thrust into this hole, but was permitted to sit on a wooden sofa by the kitchen fire, with a chain locked round his leg, to which was fastened a 60lbs. weight; in this situation the petitioner was kept till the following day, and he was then taken before Richard Gwyllym and Isaac Blackburne, esqs., two magistrates for the county of Lancaster, before whom he was charged with selling to one John Scholefield, on the 8th of February, 1817, a seditious and blasphemous pamphlet called "The Political Litany; John Scholefield not being present, the petitioner was ordered back to the workhouse, where he was chained to the 60lbs. weight as before, and was taken the next day before the aforesaid magistrates, where John Scholefild's wife deposed, that she bought the Political Litany from the petitioner on the 8th of February 1817; John Scholefield deposed that he received the said pamphlet from his wife, and delivered it to Thomas Lyon jun.; Thomas Lyon jun. deposed that he received the pamphlet so purchased from John Scholefield; on these depositions the petitioner was committed to the House of correction at Preston, by the warrant of the aforesaid magistrates, there to lie till delivered by due course of law; that on the 26th of April the petitioner was taken like a felon with chains round his legs, fastened to the bottom of a caravan, and conveyed to the house of correction at Preston, and was there put into confinement a long with felons and kept to hard labour, till the quarter sessions held at Ormskirk on the 4th of August; to that place, a distance of. 18 miles, the petitioner was removed during the night in an open cart, exposed to incessant rain, with chains on his legs, locked to persons charged with felonious acts; when the petitioner arrived at Ormskirk he was put into a room, and was kept there three days, locked to felons, and had nothing to lie on but the room floor, though he was at that time in a bad state of health, and he was there informed, that a writ of Certiorari was come from the court of King's-bench, and that he was to be tried at Lancaster, the spring assizes; the petitioner was removed from Ormskirk to the house of correction at Preston, in the same manner he had been conveyed thither, where he was kept five weeks longer in prison, during which time, being unwell with a stoppage of urine, and not being able to go to his daily work, he was severely treated by one of the turnkeys named Anderson, who threw him down, kicked him, and otherwise very much abused him, giving him two black eyes, because forsooth he was unable to work through illness; after being detained a prisoner at Preston for nineteen weeks, the petitioner was liberated on his own recognizance to ap- pear at the court of King's-bench, to be held at Westminster on the 6th of November, 1817; there he appeared and pleaded not guilty to the charges brought against him, upon which he was bound over to make his appearance at the next assizes, to be held at Lancaster, where he will have to appear, a distance of about fifty two miles; that the petitioner, on his return from Preston, found that Paul Caldwell, the deputy constable on the day of his apprehension, had seized the greatest part of his books and papers, many of them not of a political nature, carrying them off in a large basket belonging to the petitioner; and although the petitioner has applied to Isaac Blackburne, esquire, one of the aforesaid magistrates, who promised to speak to Mr. Peter Nicholson, the solicitor who managed the prosecution against the petitioner, to deiver them up, and although the petitioner has repeatedly applied to the said Mr. Nicholson, and to Paul Caldwell, the deputy constable, they have not been returned to him; and the petitioner humbly conceives the first seizure of his books to be illegal, as well as the present detention of them; that the petitioner suffered very much from anxiety of mind, on account of a wife and two helpless children, who were left in a great measure destitute by his imprisonment; and he humbly prays the House will take into their serious consideration the cruel, unjust, and illegal treatment which he has received, and that they will adopt such measures as they in their wisdom may judge the best calculated to secure the liberty of the subject, and prevent a recurrence of the same cruel, unjust, and arbitrary treatment, which has been received by the petitioner from the magistrates and their subordinate agents, in consequence of lord Sidmouth's Circular."

The petitions were ordered to lie on the table, and to be printed.

Mr. Bennet

wished to know whether it was the intention of the attorney-general to bring these men to trial, after the three acquittals of Mr. Hone, the principal publisher of the parodies; or whether he did not feel it his duty to discharge the recognisances under which they were bound to appear at the next assizes?

The Attorney General

apprehended there was a mistake in the supposition that the recognizances bound these men to appear at the next assizes. The recognizances, he believed, bound them to await the judgment of the court of King's-bench. Unless they had notice of trial, they would not be bound to appear.

Mr. Bennet

said, the learned gentleman had not answered the question, whether he did not feel it his duty to discharge the recognizances? He certainly had no right to demand this answer.

The Attorney General

replied, that he had no hesitation in saying, that because a person had been acquitted for the publication of certain libels, he did not feel it therefore his duty to discharge the recognizance of persons under prosecution for publishing transcripts of those same libels, whether he should proceed in the prosecution of these men would be determined by a variety of other considerations; but he did not feel it his duty to forego the prosecution of what appeared to him to be a libel, because a person had been acquitted for publishing a similar libel in another place. He knew it had happened, that in one place a person had been acquitted of a libel on the publication of a paper, which had at another time and place been declared to be a libel by another jury, to the satisfaction of those who heard the trial. It was not for him to say on what grounds the jury acquitted Mr. Hone. He wished to cast no reflection on that verdict: it was fit the defendant should have the full benefit of it. But he would take leave to say, that it did not satisfy him, that ever after these publications should be allowed to circulate with impunity. There were many circumstances which might have weighed on the mind of the jury in the case of Mr. Hone. Mr. Hone had proved that after a certain time, when he found those publications were disapproved of by many persons, he ceased to sell them. He thought it extremely likely that, considering this, and considering how in former times, similar publications had passed without reprehension, they might have acquitted Mr. Hone though they thought his publications mischievous. But did it follow that men vending this publication, which if not a libel was literally poison, through the country, should be suffered to proceed—to circulate it at the corner of every street? Did it follow that the law officers were to let this pass without animadversion? Since Mr. Hone had ceased to publish, other persons had republished them, nearly at the same place where they were first vended. They professed that they had a right to do so, and desired that the subject should be brought before a court of justice; and so valuable did they conceive these publications to be, that they talked of bringing actions for the copyright. Whether in these individual cases he should think it his duty to prosecute, would depend upon other considerations than the acquittal of Mr. Hone. They had been indicted at the Ormskirk quarter sessions, and he had thought fit to remove the cause to the court of King's-bench, because, while the case of Mr. Hone was depending before a superior court, he did not think it fit to bring on a similar case before an inferior court.

Mr. Lyttelton

said, he was glad he had an opportunity of expressing his opinion on these detestable libels, for so, notwithstanding the acquittal of Hone and verdicts of the juries, he should call them. He did not think those verdicts however conscientiously given, could or ought to alter the opinion of any man in the country. He should have been glad to have had an earlier opportunity of expressing his feelings on the subject; but he thought it his duty, however unimportant his individual opinion, to contribute his mite to do away the mischief which the verdict, however well meant, had indirectly occasioned. The petitions before the House, however, stated matters which were very fit for inquiry. It was not for him to give an opinion whether these persons should be prosecuted, but he thought it likely that a verdict might be obtained against these publications, when there was nothing in the individual case in favour of the person prosecuted. But it was doubtful to him, whether farther prosecutions might not aggravate the evils of these publications. It was fit for the House to consider what cause had led to these acquittals—whether the minds of the juries had not been indisposed towards any state prosecutions, by the unconstitutional law which had been passed, and by the manner in which other state prosecutions had been conducted. This he threw out for the consideration of the House, and he hoped they would bear it in mind when the bill of indemnity demanded by ministers should be brought forward [Hear, hear!].

Mr. Brougham

was pleased that an opportunity was offered to him of expressing his opinion on what formed a principal subject of the petitions they had lately heard. He agreed with his hon. friend in regarding with feelings of unqualified dis- approbation the very repugnant, and, if he might so say, in every point of view, the very disgusting publications that had been issued; and he agreed with him in not making any remark in disparagement of the verdict of those juries. Indeed, had he been upon the juries himself, under all the circumstances of the case—considering the impunity of former libels of the same nature, and the general conduct of the prosecution, he should have felt it his duty to return the same verdict. The juries were justified in their conduct. They might, and no doubt did, wholly disagree with the tenour of the libels; but they considered that they were political prosecutions, and if they had had ten times as much blasphemy in them—if it were possible that ten times as much blasphemy could have been crammed into such a space—if they had been on the side of government they would not have been called on to give a verdict of blasphemy against them. They acted as British jurymen; they thought that by acting as they did they served the cause of religion, better than if they had given verdicts for those who served it only when it suited the side to which they belonged. They saw that the intention was to make religion a cloke for political purposes. He spoke not lightly when he spoke of things of the same nature from another quarter. There were publications which appeared more disgusting and more disgraceful even than these; parodies not merely of the liturgy, but of large portions of scripture; parodies produced with other views than the objects of the prosecutions. He alluded to those which had been published when the noble lord and the bulk of his present colleagues entered upon their offices. At that time parodies were in the course of publication, not by a few obscure individuals, or by a few dozen copies at a time, but circulated in great numbers under the special protection of those very persons who had carried on the recent prosecutions. Had they prosecuted those parodies? No. Because they were against their own political adversaries, and to serve their own political ends. He would say, that nothing could do so much harm to religion as to make it a handle for political convenience; and that he was the worst enemy of religion who made a show of dealing out justice for its protection, but who, in reality, acted on political grounds, and to nerve political interests. But it seemed a man might blaspheme—he might send forth as much irreligion as he thought proper—as long as he meddled not with the conduct of government—he might abuse the ministers of religion with Impunity, so long as he refrained from speaking ill of the ministers of the king—he might say or publish what he chose, so long as he was of the right stamp—lie might take what liberties he pleased with the affairs of the church, so long as he left temporal subjects unprofaned. He had a most complete dislike of such publications themselves; but religion, he thought for its own sake, ought never to furnish means for the expression of political displeasure.

Lord Castlereagh

thought the doctrine of the hon. and learned gentleman who had just spoken open to much animadversion, particularly as it came from a professional gentleman. There never could be a doctrine maintained more fatal to the laws, and to the fair and impartial administration of justice, or its purity and tranquillity, than that a jury, on their oaths, bound to decide on the particular case before them, should be allowed to travel out of the record, and erect themselves into a sort of political tribunal to adjudge, by comparison, different matters and different persons. This was contrary to the spirit and principle of jurisprudence, and he trusted the House and the country would never tolerate, that their judicial tribunals should be elected into places for political disquisitions. It was in vain to defend these offensive publications, on the ground that other parodies had been previously suffered to pass with impunity. He was at the same time ready to admit, that whenever the scriptures were so parodied, the act was highly reprehensible, no matter in what way the parody was intended to be applied. Offences of this kind, however, were open to different views. He knew not to what parodies the hon. and learned gentleman alluded, but there was a great difference between the effect of publications circulated at a cheap rate, and couched in language calculated to diffuse poison throughout the country, and those which were circulated at a dearer rate in a higher circle of society, and, in fact, intended but for literary classes. His object, however, was not to defend by comparison such publications; he merely rose to protest against the doctrine so broadly laid down by the hon. and learned gentleman, that a jury, solemnly trying a particular fact, should be allowed to travel out of the record, and neutralize that fact, because other parties had previously acted with impunity. In this manner the jury might be said more to try the attorney-general for his prosecution, than the defendant who was really committed to their inquiry.

Mr. Brougham

said, that the doctrine which the noble lord had been reprobating was no doctrine of his. What he had said was this, that the jury were so placed that they were called on to single out one man for conviction on a particular offence, which had been committed with impunity, nay, with encouragement, by others for a course of years. To make such a distinction to suit political views, would have been any thing but that even-handed justice which they were sworn to administer.

Lord Castlereagh

appealed to the House, whether the hon. and learned gentleman had not re-laid down the doctrine he had complained of.

Mr. Wilberforce

was very glad indeed to find that the hon. member for Worcestershire, and the hon. and learned member for Winchelsea, had so decidedly expressed their opinions against these parodies. He was himself entirely ignorant of the libel of which the hon. and learned gentleman had spoken. It ought, in his opinion, to be considered, whether or not, without prosecuting, the libel would be likely to have a great degree of circulation, or would do a great degree of mischief. He remembered a case of prosecution, in which a noble lord (L. Erskine) had been particularly engaged. In that case, the question of prosecution and not prosecution was fully considered. It was, he believed, on the second part of Paine's Age of Reason; and that time he recollected it was found, that the circulation was such amongst all orders and classes of society, that it could not be brought into more notice or greater publicity. Before the prosecution of the present productions, he had thought, and he thought so in common with a great part of the nation, that such productions which were so industriously circulated, called for reprehension. He wished to have caused them to have been prosecuted in such a manner as would have avoided the imputation of political feelings. He did not think, however, that those who were charged with the defence of the national religion, if that religion was to be pro- tected by law, could retire to their closets with the consciousness of having done their duty, while such publications remained unchecked. The possibility that political motives might be imputed to them, should not deter them; and the hon. and learned attorney-general, with whom he had not the honour of a personal acquaintance, was the least likely to be deterred by such an apprehension. The real question was, whether such publications had not a tendency to desecrate those things which a man ought to conceal in his bosom, and venerate in secret. And if such was the conclusion, it might be recollected that it was the office of the law, it was part and parcel of the law of the land, that religion should be defended. Sir Matthew Hale, a great and excellent lawyer, had established that principle, and he was very glad to see that it was still maintained. He could not but feel grateful to his honourable friends that they had expressed such sentiments on the subject as he had heard from them, and he could not but express it as his opinion that the officers of the Crown would not have done their duty if they had not exercised the authority of the law against the wicked and blasphemous publications that had been mentioned.

Lord Cochrane

hoped the ministers, if they wished, as it had been expressed, to retire to their closets with a good conscience, would not confine their care of religion and morality to the prosecution of parodies, but would turn their attention to those who had incited innocent men to commit acts which would draw on them punishment. The true motive for the acquittal of Mr. Hone was, that he had been tried for offences against religion, when his real offence was political. He should shortly have to present a petition, which, when read, would, he hoped, induce the House to inquire into a subject which they had hitherto avoided.