§ Sir J. Newport
rose to propose the amendments, of which he had given notice. The first referred to a principle, which was recognized in the preamble of the bill, but for which there was no corresponding provision in the bill itself. In. the preamble it was recited as follows:—"Whereas some of the said acts done may not have been strictly justifiable in law, but being done for the preservation of the public peace and safety, it is fit that the persons doing the same should be saved harmless in respect thereof." To the principle of this passage he was quite ready to assent: for it was but just that an act done for the public safety, should be entitled to indemnity. But then, upon, whom, in equity, should the loss, occasioned by that indemnity, fall? Whether should the individual, who had unjustly suffered, be condemned still more to sut- 1081 fer, by being deprived of redress and of his right of action, or should the damages awarded by any verdict upon that action be paid from the public purse? According to the indisputable principles of common justice it would appear, that any expense or damage incurred by an act done for the public safety, should rather be defrayed from the public purse, than from the purse of the individual who had unjustly suffered through that act. It was, indeed, clear and demonstrable, that where an individual was called upon to suffer for the public safety, the price of that suffering ought not to be paid by that individual, but by the public at large. If, then, this principle was admitted—and he saw no ground upon which it could be disputed—he could not anticipate any valid objection to the amendment which he was about to propose. This amendment he was urged to bring forward, not only because its principle was good in theory, but because he felt its adoption to be necessary from experience. He had seen much of the consequence of indemnity acts in Ireland. Two indemnity acts were passed by the parliament of that country in 1798, and he could speak of their effects, not from the information of others, but from what he himself had witnessed. For what he was about to state, he could pledge his honour and veracity as a gentleman, and as a member of parliament. It related to the case of an honest and respectable trader, who was robbed of his property by an act of indemnity; and that case was enough to convince any candid man, that if an individual suffered for the public safety, the price of that suffering should be defrayed from the public purse. In the course of the year 1798, Mr. Matthew Scott, a respectable and affluent cornfactor, of Car-rick-on-Suir, in the county of Tipperary, was taken into custody by the well-known Thomas Judkin Fitzgerald, upon a charge of sending corn to the rebels at Ross. Tin's charge was preferred against Mr. Scott upon the evidence of a common informer, of the name of Devaney, a wretch whom lord Avanmore, upon a subsequent trial, pronounced one of the most perjured and infamous villains that ever appeared in a court of justice. Mr. Scott utterly denied the charge—demanded a trial—and bail to the amount of 100,000l. was offered to Fitzgerald, for his appearance upon any prosecution that might be instituted against him. But this offer, 1082 which he could affirm to have been made, as his (sir J. N.'s) own brother was one of those who were willing to become bail, was peremptorily rejected by Fitzgerald, and Mr. Scott was dragged to the gaol of Clonmel. Yet, after being detained five or six days in duress, he was offered his discharge upon giving 20,000l. bail, to be forthcoming when called upon. With this proposition, however, Mr. Scott refused to comply, observing to Fitzgerald, "You have blasted my character and deranged my trade in the country, by accusing and arresting me upon a charge of being connected with rebels; I therefore demand a trial, in order that my innocence may be-proved, and my reputation redeemed." The injury, indeed, done to Mr. Scott was such, that he became bankrupt, particularly through a fall which had taken place in the price of corn, against the consequence of which he might have guarded, if at liberty to attend to his business. Yet this gentleman was liberated from his imprisonment without any trial whatever, and without being aware at the time upon whose information he was committed, for he was never confronted with his accuser. Upon his liberation, Mr. Scott brought an action against Fitzgerald; but of the right of obtaining any redress he was robbed by the act of indemnity. Thus a man, most grievously oppressed, was precluded from obtaining any legal redress in consequence of an act of indemnity; and such a case afforded a strong lesson to the House to guard against the repetition of similar injustice, by providing, that if an individual suffered for the public safety, the public purse should pay the price of that safety.—But he could quote many other cases of still greater injustice—of, indeed, unexampled atrocity and barbarity—from the period of Irish history to which he referred. He spoke upon this subject with some feeling of reluctance, because at the period to which he referred, the noble lord opposite (Castlereagh) was the minister of Ire land. He acquitted the noble lord of knowingly countenancing such acts. But it was to be recollected, that after the atrocities related of Fitzgerald had been perpetrated, the act of indemnity to screen him from the consequence of these atrocities was passed by the Irish parliament; nay, that after those atrocities were fully proved upon several trials in the Irish courts of justice, Fitzgerald was created a baronet, and granted the favour of raismg 1083 a regiment, by which Fitzgerald himself boasted that he realized several thousand pounds. Why, then, should such a man be indemnified? He really believed, that the acts of indemnity then voted by the Irish parliament, served to seal its own ruin: that its character was so completely and irrevocably sacrificed, in the estimation of the Irish people, by these acts, that its extinction, soon afterwards, excited no regret whatever in the public mind. Even after, indeed, those acts were passed, the Irish people shrunk from the parliament, and were ready to seek protection from such a body in an}' government whatever. It was, indeed, the general belief among considerate men in Ireland, that if it were not for these acts of indemnity, the union would not have been carried. Nay, many were forward to say, that the noble lord opposite pressed the adoption of these acts, with a view to render the parliament unpopular, in order to carry the union, but he would not say so. From the odium, however, which attached to the Irish parliament in consequence of those acts, which so completely severed the people from it, he exhorted that House to beware of pursuing a similar course.— Another amendment which he proposed was, to recognize, by a distinct provision, that which some of the advocates of the bill so readily avowed, namely, that persons inflicting undue rigour in the arrest or imprisonment of any individual under the Suspension act, should not be skreened by the measure before the House. If the gentlemen who made the avowal alluded to were candid, he could not conceive any ground upon which they could consistently oppose such an amendment. After expressing a wish to know what was meant in the bill by the words "advised to be done,"—which words were inserted in one of the indemnity acts passed in 1801, namely, that for England, the right hon. baronet proposed his first amendment, that any damages which a jury might award to any one proved to have unjustly suffered in consequence of arrest or imprisonment, or other injury, for the public safety, within the period mentioned in the bill, should be paid out of the public purse. The right hon. baronet concluded by observing, that it was his intention, if the House did not adopt his amendments, to move the recommittal of the bill.
§ The Speaker
observed, that he felt some difficult)' on the question. He was not aware of any precedent which would au- 1084 thorize a motion for the recommitment of a bill on the third reading. When a bill originated in that House, the form was, that after it had passed through a committee, it should be ordered to be engrossed; when it came from the other House, the only difference was, that it came engrossed. As to any alterations proposed, it was as open to discuss them in the House as in a committee. But the only time for attaching alterations to a bill that had once come to a third reading, was after it had been read a third time.
A conversation then ensued between Mr. Wynn, sir W. Burroughs, lord Cas-tlereagh, and Mr. Bathurst, when it was agreed that the alterations should be reserved for the passing of the bill, and that the third reading should now be entered on. The question for the third reading being put,
§ Sir R. Heron
said, that he could not allow that last opportunity to pass, without avowing his decided opposition to this most unjustifiable bill, and to every measure connected with it. He had too sincere a veneration for the constitution of his country—a constitution that had carried the nation through the most stormy periods of its history, not to feel satisfied that the laws were sufficiently strong to preserve it and the people who lived under it. What security had the people of England for the future against frequent invasions of their personal freedom? The same pretext that was now made subservient to the designs of the ministers would always present themselves. Such a case of justification as they made out was at all limes in their power, because there never was, and probably never would be, a period in which men of profligate morals and ruined fortunes would not be found engaged in some desperate projects against the public tranquillity. When his majesty's ministers had determined on manifesting their displeasure against the country, why had they not the manliness to go at once to the extent of their security? Why divide their system and do half by anticipation and half by retrospection When the Suspension act was opposed on the ground of possible abuse, the argument was, that the aggrieved would have their remedy. When the abuse was alleged in petitions on the table, the answer was—a bill of indemnity. It was thus that ministers kept their solemn pledges. It was by expedients such as these that the people were to be mocked, 1085 and defrauded of the protection of the constitution. But it was even now recommended, though the loyalty of the country bad been and was untainted, to persevere in the same vigilance, in other words, in the same abuses. Why, then, repeal the suspension of the Habeas Corpus act? There was just as true a ground now for that severity as when it was last session adopted. Now that a dissolution was approaching, it became the object of ministers, by mean endeavours and miserable subterfuges, to hold themselves out to the timid and the pusillanimous as the protectors of the peace and property of the country. Let ministers not deceive themselves. Public opinion in this country had passed its childhood and reached maturity; and to that opinion, soundly and firmly expressed, he would leave it, to appreciate the conduct of his majesty's government.
The question being put, That the Bill be now read a third time, the House divided: Ayes, 82; Noes, 23. The Bill being accordingly read a third time,
§ Sir John Newport
rose, to move, as an amendment, the addition of certain words to the first enacting clause of the bill. His object was to render it more explicit, and to cany into more certain effect the principle which its authors and supporters professed to have in view. They had declared, that it was not their wish or intention to extend indemnity to cases of unnecessary rigour or severity. If they were sincere in this declaration, he did not think it possible that they could object to the amendment which he was about to submit. Such an amendment appeared to him to be necessary, in consequence of the vague and general language in which the clause was expressed, It was desirable that no doubt whatever should exist with regard to the cases to which the indemnity would apply; and that it should be distinctly understood, that it did not refer to cases of imprisonment, longer or more severe than was required by the purposes of the Suspension act. With this view, he should move for leave to bring up a clause, providing that the indemnity granted by the bill was not to be construed as extending to those who had exerciscd any unnecessary cruelty or severity in the apprehension or detension of persons under the act for suspending the Habeas Corpus.
The Attorney General
rose for the purpose of objecting to the bringing up the 1086 clause; but it being agreed that it ought in the first instance to be read, he afterwards opposed its reception, on the ground that it was quite unnecessary for the purpose of declaring the true construction of the bill. The law had already secured to individuals the right of seeking redress and compensation for any unnecessary rigour or excess of severity which they might have experienced. The proviso, therefore, now brought forward by the right hon. baronet could not promote the object which he had in view. He recollected, although not then in the House, that in the year 1801 a similar clause had been moved in the indemnity act which passed at that time, and the argument urged in support of it was, that the bill, without this clause, would indemnify all gaolers and other persons for any acts of oppression of which they might have been guilty. But it was then answered, and he begged leave to repeat that answer, that no act in the nature of an indemnity act would prevent any individual from obtaining redress for unjust or unnecessary rigour, if he had in fact been so treated.
§ Mr. P. Moore
considered the bill, in its present shape, as indemnifying ever}' kind of enormity, and as excluding redress for every kind of private injury. The system of employing and protecting, by such means the race of spies and informers was a practice unknown to the old constitutional government of the country. He had opposed all the measures that had been proposed since the year 1792, by means of which a bastard constitution had been formed unknown to the legitimate constitution of England, and under which that venerable fabric could no longer be discovered. He should certainly vote for the clause proposed by his right hon. friend.
§ Mr. W. Smith
said, that he would apply the case of the petitioner Ogden to the clause now proposed by his right hon. friend. He was aware that it had already called forth the derision of a right hon. gentleman; but when he considered the age of that man, seventy-four years, and the infirmities under which he laboured, he could not help thinking, that to indulge in derision excited by such causes was not a very enviable display. He put the man's guilt or innocence wholly out of the present question. He did not care whether the infirmity of the man had existed previously to his arrest, or was the consequence of his ill treatment; let 1087 them take either alternative, and he would still contend, that if Ogden was in that dreadful state of health before his arrest, it was an extreme of rigour to have subjected him to the heavy ironing, which was sure to aggravate his agony; and the man who inflicted it thus unnecessarily ought to be punished. But if the disease was the result of the torture, no punishment could be too severe. Now, the question he wished to put to the attorney-general was this—could Nadin, the person who so heavily ironed Ogden, plead the present act of indemnity against an indictment? An answer in the negative from such an authority would go a great way [No, no! from the Opposition], although his hon. friends were mistaken, if they imagined he would accept that admission in preference to the clause of his right hon. friend. He wished the clause might be carried, as the opinion of a judge upon the bench might not coincide with that of the attorney-general. He was fully persuaded that many of the acts done in consequence of the suspension of the Habeas Corpus were unknown to the noble lord at the head of the home department, or to the right hon. gentlemen opposite. But scores of gaolers were to be found who, from want of sense of feeling, thought they were recommending themselves by such conduct to the favour of their superiors.
said, that with respect to the proposed clause, two questions came to be considered. First, if it were necessary or not; and next, what would be its effect should that necessity not be made out? The law had been clearly laid down by his hon. and learned friend, the attorney-general, who had shown that the clause was unnecessary; and if not necessary it would have a tendency to raise doubts in other cases, as the law did not presume abuse in legal enactments. No bill of indemnity could sanction cruelty and oppression, or be pleaded in justification of it. The bill of indemnity might indeed be pleaded, but the judge would direct the jury to ascertain the fact if any, and what kind of cruelty had been used; and every judge would tell the jury that the act of indemnity was extrajudicial. In the case of Ogden, the allegation of his having been put in irons had been denied, and upon that statement, a jury, should the case be brought before them, would have to decide, as also how far the confinement was justifiable. Nothing could 1088 be so dangerous to the liberty of the subject as to introduce useless qualifications in such a bill. The bill touched no question as to spies and informers, and only embraced four points; the seizure of arms, of papers, the detention of suspected persons, and the arrest of those who attended tumultuous meetings. By a special proviso, a greater latitude would be given in other matters to the construction of the bill.
§ Mr. J. H. Smyth
was not satisfied with the explanation of the noble lord, and thought the object and principle of the bill would be made clearer and less disputable by the adoption of the clause. The words of the bill were at present extremely general, and applied the indemnity to "all acts or proceedings" under the Suspension act.
observed, that in 1801 the same point had been mooted, but had been determined. The attorney-general of that day, who was at present at the head of the court in which any actions for redress would be brought, had expressly declared his opinion, that the bill of Indemnity would not protect acts of unnecessary rigour. Honourable gentlemen had chosen to let the bill pass through the committee without stating their objections; and now they wanted to make it a totally new measure. Before he sat down he wished to say a few words respecting a right hon. friend of his, who had just left the House (Mr. Canning), who had been censured for treating with levity a subject of a serious nature. But what were the circumstances to which his right hon. friend had adverted? One, that the individual in question had had for twenty years, the disorder which it was said had been brought on by the duress he had sustained; the other, that by being brought to London, he was placed within the reach of abler professional assistance than he could receive in the country, and that by means of that assistance he had returned home totally cured, and as he himself expressed it "a new man." No doubt could exist that the disease had not been brought on in consequence of Ogden's confinement.
§ Mr. Lyttelton
observed, that the recent allusions in the speech of a right hon. gentleman to the case of the petitioner, Ogden, violated every rule of decency and public decorum. Not to dwell, however, on so disgusting a subject, he thought this question an extremely fair test of the sincerity of those who introduced the mea- 1089 sure under consideration. The proposed amendment was extremely simple, and could only operate to render the principle of the bill more plain and indubitable. Why should it not be generally understood, that if cruelty or oppression had been exercised under the powers of the late unhappy Suspension act, the authors of it were liable to be brought to condign punishment? The right hon. gentleman had observed, that the proper time for proposing amendments had gone by, and that they ought to have been submitted in the committee. To this observation he must reply, that the bill had been pressed through its various stages with extreme and indecent haste. For his own part, business of great importance had detained him for some days in the country from his parliamentary duties, and on his return he found that the bill had been most rapidly advancing. Other members were probably in the same predicament; and now that an opportunity offered for making the observations which occurred to them, their mouths, forsooth, were to be closed! If the bill came out of the committee radically erroneous, the present was the time to correct it. It was not the opinion of an attorney-general, given in the House of Commons, that could determine the point. The judge must look at the letter of the law, and unless the House chose to submit their understandings to the quibbles and glosses of lawyers, and especially of lawyers in the pay of the Crown, they would take care that that letter should be perfectly explicit. The object of the bill was to nullify the ordinary law—to legalise that which was illegal. He contended that it would prevent any one of the acts in question from being made the subject of judicial inquiry, so that the parties aggrieved might have redress. The right hon. gentleman had indeed said, that the attorney-general of 1801 who had expressed his opinion that the Indemnity bill would not defeat any action for acts of unnecessary severity, was now lord chief justice of the court of King's-bench. In the first place, however, the actions for redress might not come before that noble and learned lord; and in the second place, if they did, taking the present bill in his hand, he, from the light of experience, or from other causes, might not retain the sentiments that he entertained when attorney-general. The noble lord talked of the hon and learned attorney-general having laid down the law. 1090 The gentlemen opposite had been so long in the habit of finding that what they said was law in the common acceptation of the phrase, that they began to fancy that every thing they laid down was really law. Things were however not quite come to that pass. Until he found that their opinions were in fact law, he could not be brought to change his sentiments on the present question. Reverting to the whole of the transactions—the reports of the committee—the suspension of the Habeas Corpus—this indemnity bill, &c. he characterised them as forming one of the most impertinent but at the same time one of the most mischievous farces that had ever been played on the political stage: and as exhibiting still greater inconsistencies than any former proceedings of the present ministers, fraught as those proceedings had ever been with the grossest inconsistencies.
said, he had merely stated, that the case alluded to had been, denied; but if the person felt himself aggrieved, he was not precluded by the bill from proving it before a jury.
§ Mr. Lyttelton
believed the noble lord was sincere in what he said; but opinions delivered in that House would not settle the law.
said, the question of cruelty could only be decided by a jury. The bill did not take away the opportunity of such a decision.
§ Sir S. Romilly
said, he was surprised to hear the line of argument which had been pursued by gentlemen on the other side. Was there any thing in this case that could admit of any doubt? Were there any technical words in this clause which a lawyer could understand better than any other man? Here were plain words which every man could comprehend. This act said, that all actions brought for or on account of any act, matter, or thing, should be discharged and made void; and that every person by whom any such act, matter, or thing should have been done, should be freed, acquitted, discharged, and indemnified. Now, they were told, that this act did not mean what it said. It was stated, that it went only to all necessary acts. But; if this was the intention of the gentlemen who framed it, why did they not say so? The bill declared, that all acts whatever should be indemnified. What, then, was to become of the cases of those who had been treated with improper severity and cruelty? The pe- 1091 titioner, Ogden, whose sufferings had been treated with so much levity and want of feeling, declared, that the infirinity under which he laboured was produced by the weight of fetters. Was this, then, a necessary act? Did this come within the meaning of the bill? If so, the words of this legislative measure had a different meaning in that House from what they had in any other place. He did most conscientiously say, that this was not the construction which could be put upon this act of parliament. The right hon. gentleman who talked about the attorney-general of 1801 said, that his opinion could not fail to have very great weight; but was not that opinion given when he was attorney-general, and urged in support of ministers in the House of Commons? The opinion of an attorney-general was not law: nay, the opinion of a single judge was not law; the opinion of a judge at his chambers, or at Nisi Prius, might be, and often was, over-ruled: and were they now to be told, that because the person who formerly held the situation of attorney-general, had delivered such an opinion, it must be taken to be the law of the land? He would never submit to such doctrine. He knew full well the importance which ought to be attached to the opinions of his majesty's attorney-general in that House. But it seemed, that because gentlemen on his side did not think proper to propose this amendment in a committee; because they were not present at any moment which his majesty's ministers might command; because it was judged expedient to the government that this bill should be passed with the utmost precipitation; therefore it was not proper that this question should be discussed now. If this argument were to be allowed, in what manner could they justify themselves to their constituents— in what way could they hope to excuse themselves to the country—in what word? could they reply to those persons who were suffering from the severities which had been so wantonly inflicted upon them? If his hon. and learned friend, if the noble lord opposite and his colleagues, contended that the words in question meant only necessary acts, why did they refuse to add the word necessary in that clause? He would once more say, that this act of parliament, to be considered in the way which gentlemen asserted, required the amendment which had been proposed.
The Solicitor General
said, that his 1092 learned friend had declared, that it was proper to insert the word "necessary," but his argument seemed to imply that it should be "unnecessary." Now, in his humble, but unequivocal and conscientious opinion, as the bill at present stood, no lawyer could contend with any prospect of success, that an unnecessary act done for the purpose of apprehending, detaining, &c. was protected by it. The acts, matters, or things, must obviously be necessary; for if not necessary, they could not be done for apprehending, committing, detaining, &c. An act of severity or cruelty was not done for the purpose of apprehending, detaining committing, &c. It must have some other object; and could not be protected by the bill. He could not help thinking, therefore, that the word "necessary" was implied in the present bill, as it had been implied in all other bills so framed. In 1801, lawyers on the opposite side of the House, as distinguished as any that ever sat in parliament, were perfectly satisfied that such was the legal interpretation of the Indemnity bill of that day. If this was the case, it would be pernicious to introduce a clause, or a superfluous word, the only effect of which might be to raise a doubt where no doubt at present existed, and to stimulate to proceedings that might prove highly injurious to the parties instituting them.
§ Mr. Brougham
thought, that when the House saw there was as complete a difference of opinion between the two hon. and learned gentlemen on the construction of the clause in question, as there was between aye and no — when they heard his hon. and learned friend say, that he conscientiously entertained no doubt that the legal construction of the clause was in one way, and the solicitor-general, backed by the attorney-general, that he conscientiously entertained no doubt that it was in another, they would scarcely leave the words of it in so vague and undefined a form. What was the hon. and learned solicitor - general's argument? That there could be no difference of opinion on the clause. But there actually was a difference of opinion on it. And why not, then, insert the explanatory word recommended by his hon. and learned friend? The apprehension of tautology and surplusage!. How long had acts of parliament been so concise in their construction? When had brevity become the style of the statutes? Was it on the introduction of the present bill 1093 that the love of precision had seized the framers of it? Let the House observe what expedients had been resorted to, to avoid tautology and surplusage in it. The preamble stated, that "divers persons had tumultuously assembled, &c."—"to disturb the public peace," an ordinary man would have thought sufficient; but no—"to disturb the public peace and tranquillity." Again, to cause terror in the minds of his majesty's loyal subjects," might have been supposed sufficiently intelligible; but the framers of the bill, in their love of precision, expressed it—"to cause tenor and intimidation." When an author once got into a certain style, he generally continued it. The hon. and learned gentleman's style, or rather his penmanship (as lord Kenyon once called the composition of an auctioneer, which he did not think deserved the appellation of "style") manifested itself throughout the whole bill. It was declared in it to be necessary that the information which had been obtained of traitorous designs "should remain secret and undisclosed." It then spoke of "actions, suits, indictments and prosecutions," for "any act, matter, or thing, done commanded, ordered, directed, or advised, & c" But there it seemed the hon. and learned gentleman's love of conciseness stopped; for after that no word not strictly or absolutely necessary must be allowed. To men of common understanding it would appear, that as so many words had been introduced into the bill which were certainly not necessary, one word, the necessity of which was even doubtful, might, without great difficulty, be admitted. One single word! It would not cost much to engross it. It would be but a slight deviation from the classical style of drawing acts of parliament, so much insisted on by the hon. and learned gentleman, and it would certainly be very satisfactory to the country, after so much difference of opinion had been expressed on so important a matter. It was, perhaps, unnecessary for him to enter into the arguments of his hon. and learned friends as to the meaning of the words as they had left them. He could not, however, think them so clear as they supposed, especially when they considered the purport of this act. Was it too much to ask, that they should make that clear which the court was required to follow? Did his hon. and learned friend go so far as to state, that the opinion of the lord chief justice 1094 of the King's-bench, when he was attorney-general in that House, was now to be recognized on the bench? What use, he would ask, could be made of that opinion out of that House? He should like to hear his hon and learned friend tell the chief justice that this opinion was to bind him in the court where he sat, because he had delivered the same opinion on a former occasion. The chief justice would then ask, in what volume of East's Reports is that opinion to be found? To which question his hon. and learned friend would be obliged to answer: It is not contained in any volume of East, but is inserted in Cobbett's Parliamentary Debates. In Cobbett's Parliamentary Debates! the chief justice would say. What authority in this court are Cobbett's Parliamentary Debates? He thought this clause was exceedingly liable to the construction which had been put upon it by his side of the House. The question was, whether putting chains on a man was necessary for the purpose of detaining him, or whether the chains were not so wide of the purpose, that they were not necessary. If the hon. and learned gentlemen on the opposite side were sincere; if they did not mean to justify and to indemnify all acts of persecution and cruelty, they could have no objection to add the word "unnecessary," particularly in an act which was not drawn with all the conciseness of which they boasted, and which they might have employed on the occasion.
thought that a clause, such as that proposed by the right hon. baronet, might throw a doubt on other acts of the same description, though not on this. There could, however, be no inconvenience in inserting the word "necessary." It was the more requisite, because there was not one decision on acts of this nature. In the case of a justice of peace who had gone beyond his authority, and had done unnecessary acts, he would ask, if it had ever been held, that he was not as much entitled to notice of action, as one who was proceeded against after having acted properly? If so, the word "necessary" was by no means superfluous in the present case.
§ Sir John Newport
then withdrew his amendment.
§ Sir W. Burroughs
, after reminding the House that the enacting clause proposed an indemnity for any acts whatever done under the suspension, proposed a clause 1095 to prevent its including cases where those acts were done maliciously and without probable cause. This clause differed from that proposed by his right hon. friend, as it was not confined to gaolers, but extended to malicious informations, and malicious acts done by magistrates, or police officers. He agreed, that where a magistrate made a slip, not malo animo, he ought to be protected, as he was by the 24th of Geo. 2nd, which entitled him to one month's notice of action, and limited proceedings against him in six months; but if he acted maliciously, he ought not to be protected; and that was the case his clause meant to provide for.
contended, that this clause would defeat the whole object of the bill. Upon what principle was the bill founded? It was founded on the presumption, that the acts for which indemnity was provided, were done for the public safety, and that the persons to be indemnified had acted honestly, fairly, and bona fide, and therefore they ought to be freed from the necessity of producing, in a court of justice, the evidence on which they acted, as the production of such evidence would be attended with danger. And yet the hon. baronet proposed a clause, which would have the effect of forcing them to lay all the evidence on which they acted before courts of justice; for how could a magistrate or secretary of state rebut an allegation of malice, or having acted without probable grounds, without disclosing all the circumstances on which he acted? If the House wished to reject the bill, in the name of Heaven let it be rejected; but let them not pass the bill, and adopt at the same time a clause which was contrary to the principle of it, and would completely undermine it.
The clause was negatived.
§ Sir W. Burroughs
rose to propose as an amendment, that, after that part of the preamble, "And whereas, in case the acts and proceedings of the several persons concerned or employed in such apprehending, committing, imprisoning, and detaining in custody, and dispersing, and seizing, and searching, as aforesaid, should be called in question, it may be impossible for them to justify or defend the same," the words immediately following be left out—"without an open disclosure of the information given, and the means by which the said traitorous designs and unlawful purposes were discovered; and it is necessary, for the safety and protection 1096 of the persons by whose information and means the same have been discovered, and for the future prevention of similar practices, that such information and means should remain secret and undisclosed."— In the six bills of indemnity which had been passed since the Revolution, this recital was not to be found in any of them, with the exception of the bill of 1801. Some of them were followed by prosecutions and executions, but yet nothing of this import was found in the preamble of an act of indemnity. He saw no reason for introducing it now, particularly when the report declared that the mass of the population had continued loyal.
§ Sir F. Flood
rose, amidst loud cries of question! The bill, in all its parts, he was pre-pared to support. It had obtained, he said, the test of the House of Lords—[Order, order!]—by a great majority; and the discontented on the other side of the House, might be very well satisfied with the great majorities that voted for it in every stage. Nothing, however, would content them but long declamatory speeches, ad captandum valgus; falsely imagining that they could thereby please their constituents before a general election. They were mistaken. Their speeches and their declamations went for nothing; not only with the greater part of the House, but with the people outside also. The bill was founded upon necessity—upon the report of the most respectable and the first characters in the country, one of which was the noble secretary for the fo-reign department. One of the papers had misstated what he said the other night: he did not wish that the duke of Welling-ton had been upon the committee; his words were, that he was very glad that his countryman, the noble secretary for foreign affairs, was a member of it, because no person was more fit to be so. He had reconciled the contending powers of all countries, and gloriousty effected a peace. He gloried also in his other countryman, the duke of Wellington; he had saved the world; but he (sir F. Flood) had never mentioned one word about his being on the committee. Thanks to the loyalty of the people of Ireland—thanks to the probity of her magistrates—thanks to the excellence of her government, it had not been found necessary to extend the Suspension act to Ireland. She had set an example to England; and, therefore, he was sorry to hear a right hon. baronet going back to cruelties committed twenty 1097 years ago in Ireland, and quoting them as examples for this country. The statute of limitations would prevent the recurrence of such times, and they should not be mentioned at all. He wondered to hear that right hon. baronet recommend that any damages incurred should be paid out of the public money. Was this economy? It was curious and strange, he must say, to hear such language coming from a person who had filled the place of chancellor of the exchequer for Ireland, and filled it very well too, and with great benefit to his country. He voted for this bill, not as a party man; he did not belong to either side of the House. He supported it as an independent member of parliament. He would not say any more. He did not rise for the love of talking; for he would rather, any day, hear others speak than himself.
§ The amendment was negatived.
§ Sir J. Newport moved an amendment, providing that payment should be made from the public revenue of such damages and costs as should be awarded to any aggrieved person in a court of justice. This principle was, he said, recognized in the case of vessels captured illegally, when costs and damages were awarded against the captors, if it appeared that they had acted with a view to the advancement of the public service. In such case, the costs and damages were allowed out of the droits of admiralty. Why should not the public pay the price of its own safety? Anxious as he always was for public economy, he should never look for it at the expense of a dereliction of duty—he should not attempt to rob individuals, or avoid throwing on the public purse, instead of throwing on individuals, what was necessary for the public safety.
said, that the object of the bill was, to prevent the necessity of laying the evidence on which magistrates or others acted, before a jury; and yet this clause made the public pay damages and costs. Damages could only be given after a discussion of all the facts and circum-stances before a jury; because it would not be contended, that any damages which any body could guess at, should be paid out of the public coffers of the state. They could not adopt this clause without making the preamble a complete collection of unintelligible nonsense.
§ Sir John Newport
said, that he wished so to alter the preamble as that the House should afterwards be obliged to 1098 alter the enactments. He thought these enactments ought not to be agreed to, as they were in every sense objectionable, and he wished, by means of the proposed amendment, to put the bill into such a shape as that the preamble, as altered, should be carried into execution by a change in the clauses which followed.
§ Mr. W. Smith
thought that the bill, as proposed, had in view, not the safety of the state, but the security of a few individuals. It acted only for one party, but that party which he maintained was most injured, were by the present bill deprived of all means of redress. It went upon the unconstitutional principle, that all those who were arrested were guilty, whereas, the presumption of law was that they were innocent until it was otherwise proved. This bill shut every door of redress on those who had suffered in their persons or characters. He conceived an opportunity should be afforded to them to prove their innocence, and that the expenses incurred by the parties against whom actions might be brought, should be borne by the public.
§ The amendment was negatived.
§ Sir W Burroughs
said, that the object of the bill was not only to protect the secretary of state, the privy council, and the magistrates, but all persons who were in any way concerned in the late arrests, imprisonments, and searching of houses. This was most objectionable, because the same protection which might be deemed necessary for magistrates and others, ought not to be extended to those persons who, without any warrant or authority, entered the houses of individuals to search for papers. He therefore should move as an amendment to the preamble, that after the words "all proceedings whatsoever against," the words "any person or persons" should be omitted, for the purpose of inserting the following: "his majesty's secretary of state, the members of the privy council, all magistrates, peace officers, and constables." By this means, the persons engaged in the suppression of riots and arrest of persons would be sufficiently protected by the bill, and it would not be extended to those whom the laws ought not to protect.
The Attorney General
observed, that as far as the searching houses for papers, & c. was concerned, the bill was meant only to protect those who searched the houses of persons who were in custody or 1099 who had been afterwards arrested, or those who had been engaged in riotous assemblies, & c. It did not go to protect those who had entered without authority to search houses under other circumstances. The amendment was therefore unnecessary."
§ The amendment was negatived.
§ Mr. Brougham moved, that after the words "for or on account of any act, matter, or thing, by him or them done or commanded, ordered, directed, or advised to be done since the 26th day of January 1817,"there be added the words "which may have been necessary."
The Attorney General
objected to this amendment as superfluous. By the proper interpretation of the bill, and of every statute similarly worded, the protection afforded was understood only to extend to such acts as were necessary for accomplishing the objects in view. A magistrate was supposed to commit no act of rigour which was not called for in execution of the duty imposed upon him. To adopt the amendment, therefore, would be introducing useless words; but this would not be the only evil. The adoption of the amendment would excite doubts as to the enactment of other statutes where similar words were omitted. All laws regarding the conduct of magistrates supposed them to be liable to damages for excess of rigour in executing their duty: but from the first to the last statute in the statute book, the words "acts which may be necessary," had not been introduced.
§ Mr. Tierney
said, that the hon. and learned gentleman, who opposed the amendment on the common principles of law, ought to have remembered that the present bill was a violation of all law, and, therefore, that it ought not to be tried by such a test. He was of opinion, that the language of the bill should be rendered as precise, and as guarded as possible, and he put it to the House, whether he was asking too much when he requested them not to object to the insertion of three or four words, not limiting the indemnity claimed by ministers, but defining the extent to which the law of the country had been set at nought?
§ Mr. Lockhart
was against any alteration in the bill. As it now stood it did not preclude any individual from the sort of remedy in a court of justice which he could expect to have, if the words proposed were introduced.
had no objection to the 1100 words being added, as they would not weaken the force of the bill.
§ The House then divided on Mr. Brougham's amendment: Ayes, 39; Noes, 149. On the question, That the bill do pass,
§ Mr. Brougham
said, he did not wish to provoke any discussion in the present stage of the measure, but he was anxious to protest on his own part, and on the part of his hon. friends, against its being imagined that they had less objection to the passing of the bill, either in consequence of the arguments which were urged in support of it, or from the circumstance of their attempting to qualify it by amendments. He and they were as desirous at that moment as before to avow their hostility to the detestable principle upon which the whole bill was founded.
§ Mr. Tierney
said, it was his intention, on a former evening, to have delivered his opinions on the subject; but he had abandoned that intention from a conviction that it was quite unnecessary after the speeches of his hon. and learned friend who had just quitted his place (sir S. Romilly), and his hon. and learned friend who had just sat down. He should avail himself, however, of the present opportunity to declare, that he believed this to be one of the most detestable measures that ever was introduced into parliament.
§ Mr.Peter Moore
entered his protest against a bill so fraught with injustice.
§ The bill was then passed.