observed, that pursuant to his notice, he rose to move for leave to bring in a bill to remove certain doubts, supposed to exist, as to the right of Magistrates, to Visit Common or County Gaols, under the act of the 31st of the present reign. Whether it was thought by some, that such a power should exist in the magistracy—whether it was thought, by others, that such power should not exist, or whether it should exist in some cases, and not in others—all, he should suppose, would agree as to the propriety of having the law on the subject clear and explicit, and no longer capable of doubtful or forced interpretation. As the object of his motion was to settle the question, he could not expect any opposition. Certainly, the bill which he should feel it his duty to introduce, would give to the magistracy of the county the right to visit common gaols. But if the gentlemen opposite did not wish to afford that right, or to limit its exercise in certain cases, it would be open to them in the committee to submit enactments to those purposes. That doubts now existed on the subject was undeniable, and his great object was to put an end to them. The House had in its recollection, that during the last session, he had submitted a motion to its consideration, relative to the refusal given to the magistrates of Berkshire, who wished to visit the county gaol.* That motion having been refused, he had preferred an indictment against the gaoler of Reading. The verdict of a jury had since acquitted him. With respect to that verdict, having himself attended most minutely to the trial, he must say, that if the charge of the judge who presided did not actually direct, it bore so strong to the one side as to lead to that verdict. He felt that he would not have discharged his duty to the country, if he had not complained of what fully and solemnly struck him as the partiality of the judge—not a personal partiality, but a marked partiality to one side of the question. This impression of his conduct, he felt at the time—he felt it the stronger the more he considered it, as being demonstrated in the whole of the* See Vol. 36, p. 1025.1144 summing up. Though it was a question, on each side of which, it appeared to him a grout deal might be advanced—though it was a subject the most removed from any very decisive opinion, yet it was remarkable, that the learned judge who tried it, who confessedly had turned his attention to it, had consulted authorities, yet could not find any one argument, but what bore on the one side. He verily believed, that on any question where the government was the one party, and him—self the other, he should not stand a chance of a verdict. If he had mistaken, or mistated any thing, the gentlemen opposite were in possession of the documents, and might correct him. The whole appeared to him to hinge upon the statute of the 31st of the king, and upon a particular clause in that act, namely, the fifth clause. The act in question was intituled, "An Act for the better regulating Gaols and Places of Confinement," and the point to be considered was, did the act or did it not, refer to gaols? The preamble of the act was stated in words which were very equivocal, but it must be a forced construction upon them to suppose, that it was not meant to refer to gaols as well as to other places of confinement. The four first clauses were solely confined to houses of correction and penitentiary houses. The fifth clause referred to the gaoler's fees, and expressly spoke of sheriff's officers. The eleventh clause manifestly and clearly referred to the common gaols and to the sheriff's gaols. The eighth clause directed the keepers of common gaols, and also the governors and keepers of common penitentiary houses, to make returns on the first day of every assize, which returns were to be signed by the visiting magistrates appointed in the manner thereinbefore mentioned. He should like, then, to know, by what act of parliament gaolers had a right to prevent the visiting magistrates from entering the common gaols, when it was a duty incumbent upon them at certain times so to do? To explain this, he supposed he should be referred to the 24th of George 2nd, and to the 19th of the king, c. 74. The act of 1791 was passed upon contemporaneous usage, and grounded on the practice of all similar occasions. At the late trial, a portmanteau had been produced stuffed with warrants (which certainly had a good stage effect), from the year 1660 down to 1817. The lieutenant of the tower was called upon to bring them forward, and it 1145 was true that all of them directed, that the persons committed should be kept in safe and close custody. He was perfectly ready to admit, that the secretary of state always committed to safe and close custody. The reason for this was, that it was the duty of the gaoler to keep the person safe and close, and no fault could be found with the mittimus for directing him to do so. What then was gained by producing any number of warrants? It was not the meaning of the warrants that the persons should be kept in solitary confinement. He would not state this upon the simple authority of the English language, but he would cite lord chief justice Coke upon the subject. The words were sub salva et arcta custodia, and this was translated, safe and close. A person might be in salva custodia while within the rules of the King's—bench prison, and might be in arcta custodia, when within the walls of that prison, though perfectly free to communicate with whom he pleased. In the State Trials in the time of king William, in the case of Cooke and others charged with high treason, application had been made by the friends of the parties for access to them when in gaol. That application had been complied with, and their friends had been al—owed access to them under certain restrictions. He (lord F.) had made inquiry as to the practice upon former occasions, and had found that since the year 1791, it had been the practice of magistrates to visit the prisons, and that no instructions of the same nature with those recently given had been delivered upon former occasions. The act of king William, which allowed the benefit of counsel to persons charged with high treason, had also provided free access for the counsel to the prisoners; and by a subsequent act of parliament magistrates had also been allowed to visit the prisons. Upon the recent trial the court had only said that the case was—attended with doubts, as to one of the rights of the magistrates in the visiting of prisons. Upon a former occasion much had been said as to the prerogative of the Crown and of the gaols being the king's, which did not seem to him to bear upon the point. The act of the 31st of the king was the first of a series of acts, when the gaols began to be more attended to than they formerly had been; and should the magistrates be prevented from visiting the gaols, things would fall back to their former state. The noble lord concluded 1146 with moving, "That leave be given to bring in a bill for removing Doubts whether Magistrates may visit Common or County Gaols, not being Houses of Correction."
The Attorney General
expressed the astonishment which he had felt at hearing the noble lord in the House of Commons accuse, in plain terms, the learned judge who had tried the cause in question, of partiality. It was impossible that any man, exercising the functions of that high office in the state, could have a more serious charge brought against him, for it implied every thing that was base and unworthy. If an individual, who had sworn to administer the law with strict impartiality, lent himself to any purpose, political or otherwise, he did that which ought to subject him to universal reprobation. Although he (the attorney-general) was not present at the trial, he had the most accurate information of all that had passed; of the patient and laborious attention, without any interruption, on the part of the judge, to the learned and ingenious, though fallacious statement of the noble lord's counsel, and to the evidence in every point of the noble lord himself (in which, evidence there were certainly very extraordinary parts, although he had not the slightest idea of insinuating that they were not founded in truth), as well as the patient and laborious attention which he gave to the statement on the part of the defendant. And this last he supposed the noble lord would not deny, that the learned judge was hound more especially to do, when a man was charged with a crime (whether by the noble lord or any one else), who had (he spoke it parenthetically) been punished already on ex parte evidence, by the magistrates of the county in which he was faithfully discharging the duties of his station. If ever there was an individual entitled to call on a learned judge for protection from the prejudices excited against him, the defendant was assuredly the man. When, therefore, the noble lord vented a charge Of partiality against a learned judge, let him not be quite sure that he himself, at two successive quarter sessions, did not exhibit great bias, partiality, and prejudice; more especially when he and the other magistrates voted this person guilty before he was tried—a person placed undoubtedly in a situation of the greatest embarrassment and difficulty, having the whole—no, that would be an unjust accusation against the 1147 magistracy of Berkshire, but a large portion of the magistrates of that county pressing him on one side, and the orders of the sheriffs and the directions of the secretary of state pressing him on the other—a person too (he was sure there was no one who could contradict the assertion), who from the first moment of his appointment to the situation which he held, and during the whole of his previous life, had borne the highest character, and who, in the exercise of the functions of his office, had never been exceeded, by any of his predecessors in his claims to the approbation of his superiors, to the respect of his equals, and to the gratitude of the unfortunate individuals who were committed to his custody. So far, however, was the learned judge from having manifested any partiality towards the defendant in this case, that if he (the attorney-general) might presume to find any fault with his conduct, it was, that he had not stated the law quite so strongly against the prosecution, as, in his humble judgment, he would have been warranted in doing.—The House would suppose, from the statement of the noble lord, that the question was, whether or not the magistrates (visiting or other) had the right of entering the gaol of Reading, for the purpose of visiting it? No such thing. The noble lord himself had visited it; and was told he might visit it again. That, however, he himself said, was not his object. His object was, to see if he had a right to hold communication with the state prisoners confined there. Although he (the attorney-general) admitted, that the statute of the 31st of the king was, in some respects strongly constructed, yet, in his humble opinion, there was not the slightest doubt, that the clause in question had nothing like the meaning attached to it by the noble lord; nor was such a construction ever put upon it until the noble lord's time. If, indeed, it was actually liable to such a construction, instead of opposing the noble lord's motion, he should feel it his duty to move for leave to bring in a bill to repeal the act. What! was it possible to suppose, that this or any other statute gave to any and all the magistrates the right of entering the king's gaols, and holding communication, when and how they pleased, with the prisoners confined in those gaols on charges of high treason? That all these common gaols were the king's, for the benefit of the state, was established, or rather recognised (for the 1148 establishment was too remote to be traced), by the earliest statutes. The sheriffs having been for a time dispossessed of their ward of these gaols, the statute of Edward 3rd restored things to their ancient footing. In the reign of Henry 7th, there was another statute of a similar description, in which those gaols were expressly termed "King's Gaols." What evils might not result from admitting the interpretation given by the noble lord to the statute of the 31st of the king? There had been, and there might again be,—times of treason and rebellion, in which, on the question of a disputed succession, or on other topics, there might be a very divided opinion among the better orders of the community. What would be the consequence if the whole of the means of safety which the law had provided for the custody of persons accused of high treason, were in such times to be beaten down, because, by the existing statute, the magistrates had the power to visit the gaols, in order to see that they were in good repair and well conducted, and nothing farther, and by no means to hold such communications as those to which the noble lord imagined they were entitled? The ancient warrants for commitment to gaols, in the difference of terms which they exhibited, proved the distinction between persons imprisoned for other crimes, and persons imprisoned for high treason. In the one they were ordered to be kept safe, in the other to be kept close. Even in modern times, so lately as 1794 or 1796 (he did not remember which), a person was committed by the court of King's—bench on a charge of high treason and other offences, and the warrant directed that he should be kept safe and close, as to the treason with which he was charged; and as to the other matters with which he was charged, that he should be kept safe. The object of this close confinement was, to cut off that communication with others, which might promote the purposes of a conspiracy detrimental to the state. He humbly contended—nay, he confidently contended, that the learned judge was perfectly right in his construction of the law. Were he not so, he repeated that the statute ought to be repealed. He had the highest respect for the magistracy of the country. He was perfectly aware of the importance of their duties, and of the exemplary manner in which those duties were generally discharged. But to say that, be- 1149 cause a man happened to be in the commission of the peace, he had therefore a right to do that which would be destructive of the prerogative of the Crown, and dangerous to the safety of the state, was to advance a proposition which never ought to be, and he was persuaded never? would be, listened to by parliament. The noble lord had said, that previous to the statute of the 31st of the king, there were statutes empowering the magistrates to go to the gaols. Yes; but for what purposes? One statute gave the magistrates the power of white-washing the gaols once a year. Another gave them the power of repairing them, &c. But could any man contend, that such statutes as those vested in the magistrates the power of destroying the prerogative possessed by the Crown, of keeping prisoners, charged with high treason, in the way specified in the warrants for their apprehension? He objected to the bill proposed by the noble lord on two grounds. If it was meant to say, that there were any doubts as to the right of the magistrates to visit the gaols, for the limited purposes he had described, he denied that there was the slightest foundation for those doubts; and in that point of view, therefore, the bill was unnecessary. If it was intended to carry the measure a jot farther, and say that the magistrates should be allowed to do what the noble lord tried to do, he contended that bill would be most detrimental. He wished to call to the noble lord's recollection, that the unfortunate defendant in the cause, about which so much had been said (for unfortunate he must call him, standing in the predicament in which he had been placed), had told the noble lord, that if he would converse with the prisoners in his presence, he would not refuse to allow him to do so. On this, however, the noble lord himself called to that person's recollection the orders he had received not to admit the magistrates generally; and he then receded from his offer. Why did he state this? To show that the noble lord's object (it might be a meritorious one in his own opinion), was not to exercise the power which was actually vested in the magistrates by the statute of visiting the gaols, for the purposes therein distinctly specified; but to assert the right of the magistrates to destroy the prerogative of the Crown, to keep in safe custody persons charged with high treason; to assert the right of the magistrates to access, intercourse, and 1150 communication with persons so committed to safe custody; a construction of the statute of which, until the noble lord fancied that it bore it, no one had ever thought it capable, or at least had ever acted as if he thought so. If the noble lord did not attempt to carry the right beyond the bare act of visiting and inspecting the gaol, the introduction of a bill was unnecessary; if he attempted to carry it a single iota farther, it would be most detrimental. If doubts had been shown to exist, with regard to the mere exposition of a cotemporary statute, he should think there was some ground for the proposed motion; but there could be no doubt whatever as to the object and meaning of the act of 1791; and the true question before the House was, whether it would suffer the prerogative of the Crown, as it existed under the ancient common law, to be destroyed by a proceeding of this nature. The act on which the noble lord relied, had passed in 1791, previous to times not only of danger and alarm, but of very great division of opinion on political subjects; and no such construction had by any human being, before the noble lord, been represented to be the true construction of the statute. He should oppose the introduction of the noble lord's bill, therefore; first, upon the ground that it was unnecessary, with reference to the meaning of the act of parliament; and secondly, that if adopted, it would be highly detrimental to the best interests of the country.
§ Mr. Sturges Bourne
said, that after the able speech of the hon. and learned gentleman, he would not argue the law of the case, but would confine himself to the statement of a few facts. The noble lord had told the House that he went to the gaol at Reading, with a view to gain admission to the state prisoners confined there, and that having been refused admission, be indicted the gaoler in consequence. But the noble lord had not told the House another circumstance, which, if true, was a most important feature in the case. And here he would observe, that that evening was the first time since he had sat in that House, that he had heard an attack on a learned judge, not in the shape of a charge which that learned judge could answer, but in a speech which he could not answer, of the most serious description, imputing to that learned judge direct and gross impartiality; nay, farther, declaring, that if he had a 1151 cause in which government were the other party, he was convinced that, whatever might be the merits of the case, the verdict would be given against him. Now, when such an accusation as this was preferred against an individual filling so high an office in the state, it was worth while to inquire whether or not the noble accuser himself stood rectus in curiâ. The noble lord had not stated what he understood had occurred, although he could not believe it; namely, that at the quarter sessions for Berkshire the noble lord persuaded the majority of the magistrates to punish a man first by turning him out of the office which he held, and then to bring a prosecution against him. Nor was that all. He had been told, that the noble lord and his associates were not content with the usual publication of the resolutions of the quarter sessions, with the names of the magistrates passing them; but that while the trial of the individual in question was pending, they caused the insertion of (the resolutions of the magistrates of Berkshire, pronouncing him guilty of the charge on which he was about to be tried, in the county newspaper. Nor was that all. He had been told, that to those resolutions were attached, not only the names of seventeen magistrates who voted for them, but the names of thirteen other magistrates who voted against them; and this he repeated, pending the trial of the person charged. He hoped the noble lord would say that he had been misinformed, and that all this was not so; for he must declare, that so complete an instance of partial and prejudiced proceedings no man ought to believe, unless it was stated in that House, and not contradicted. If, however, it should turn out, that such had actually been the case; if the noble lord had really been a party to the acts which he had described; the noble lord might make what speeches he pleased in favour of liberty in that House, but with such facts before them, all must be of opinion that his practice was wholly at variance with his professions.
Sir F. Burdett
was not well acquainted with the merits of the case, but wished to say a few words on the question. As to what had fallen from the hon. gentleman who had just animadverted so freely on his noble friend, he had no doubt that when his noble friend came to reply, he would answer the hon. gentleman's statements very satisfactorily; for he was so 1152 confident of the candour, fair dealing, and good sense of his noble friend, that although comparatively ignorant of the facts, he was persuaded that he would entirely exonerate himself from the hon. gentleman's charges. The hon. gentleman said, that the gaoler had been punished, as he termed it, before trial. Now, as far as he could collect the nature of the case it was this:—the magistrates of the county, considering the gaoler their servant with respect to a particular part of the gaol, and he having (very properly perhaps—that was not the point) disobeyed their instructions, they, not with a vindictive feeling, but to try the question, suspended him from that part of his office which related to the penitentiary, until the result of the trial should ascertain the state of the law. He did not apprehend that by this proceeding the gaoler had experienced much inconvenience, as the proceedings did not appear to originate in any feeling of hostility or animosity. The question at issue was, whether or not magistrates had the right to visit every part of these gaols. With respect to the warrants for keeping prisoners in safe and close custody, it was to be observed, that, according to the old practice of the country, and the opinion of some of our greatest lawyers, the common law considered every thing custody that ever so slightly infringed the liberty of the subject, even when the prisoner was confined to the care of his friends. But if by close custody was meant solitary confinement, he would assert that it was totally unknown to the ancient law. It had been argued, that because the common gaols were the king's gaols, magistrates had not a right to visit persons confined in them on charges of high treason. They were called the king's gaols in the same manner as the high roads were said to belong to the king, and no more was meant than that they were used for a public purpose, if, however, there were doubts—on the legal question, it was necessary that they should be immediately set at rest. Although the hon. and learned gentleman had no doubt on the subject, other gentlemen of the profession, equally learned, might entertain very considerable doubts. He should, therefore, vote for his noble friend's motion.
The Solicitor General
said, that the only ground upon which the noble lord had called on the House to agree to his motion, seemed to be the acquittal of 1153 Eastaff, the Berkshire gaoler. The question to be tried upon that occasion was, whether magistrates; under the 31st of the king, had a right to visit by themselves persons confined under a charge of high treason. It was decided against the noble lord. He had visited the gaol for no' other purpose than to lay a ground for bringing it to an issue, and the fate of the indictment against the gaoler determined that no such right of visiting existed in magistrates. If such was the law, were the House now prepared to say that they would alter it, and that the 31st of the king was passed with a different view? The statute of William, so far from proving that such a right of visiting persons confined for high treason existed, proved directly the contrary. It showed that counsel could not, under that act, visit such a prisoner without permission. The noble lord claimed the privilege of visiting, whether the person was indicted or not. The cases quoted by his hon. and learned friend proved beyond contradiction that no such right existed, and that a prisoner could not be visited without either the permission of the court or the secretary of state. The 31st of the king was passed with quite a different view. This law, as explained by his hon. and learned friend, was quite clear. If a bill was brought in to confer upon magistrates such a right, he hoped the House would pause before they assented to it. The hon. baronet who spoke last, denied that Eastaff was punished, because he had only been removed from his situation as superintendant of the Penitentiary. But, he would ask, was not this a punishment? And was he not removed from that situation in consequence of his refusal to comply with the demand of the magistrates?—[Hear,!]—He had not been even accused of misconducting himself in the Penitentiary. Why, then, was he discharged from it, but to punish him for what he had done in the other situation? He was dismissed from one place for having done his duty in the other. The judge who presided upon this trial, had been charged with partiality. The accusation came with a very ill grace from the noble lord, after having been the means of punishing the gaoler for what he was in duty bound to do. He had only offended in the solitary instance of differing with the noble lord in his interpretation of the 31st of the king, which the noble lord himself now allowed to be doubtful.
, in reply, said, that he had never before heard that there were no doubts on the subject. On the contrary, he had believed that doubts were very prevalent upon it, and it was for the purpose of removing those doubts, that he had made his present motion. As the attorney—general for whose opinion he entertained great respect, now told him that there were no doubts on the subject, he was not foolish enough to wish to introduce a bill to remove doubts which did not exist. His conduct in the affair in question had been called in question. It had fallen once or twice from the hon. and learned gentleman, that he had wished to establish the right of the magistrates to go and hold secret communication with suspected traitors. He had no such object. He thought he had a right to visit them; and he went to try that right. He allowed, that after he had been in the first instance refused admission, the gaoler offered to let him in, if he would previously stipulate what he would say when in. This he refused, as unbecoming a magistrate; and he had told the gaoler, that were he to admit him on those terms he would not satisfy him (lord F.), and might offend those whose peremptory orders he had received on the subject. Now he wished to know what there was improper in that? An hon. gentleman had been pleased to say that he had stated only parts of the case, and not the whole. The fact was, that he had not stated any part of the case. He had not alluded to any part of the proceedings before the quarter sessions. He would now state the whole story:—On the 10th of June he went to visit the gaol, accompanied by several magistrates. They had a good deal of discussion with the gaoler, who refused to admit them. And here he would observe, without feeling the least animosity towards the individual, that the discovery of his great merits had taken place since the recent occurrences; and that he (lord F.) had no reason to believe that the high eulogiums bestowed on him were perfectly well founded. He attempted to persuade the gaoler that he was acting illegally, to which he replied "I quite agree with you: I believe I have no right to keep you out; but I am ordered by my superiors to do so, and I must obey." On the 14th of June, he again went to the gaol, but the gaoler persisted in his refusal to admit him. At the ensuing quarter sessions he (lord F.) attended, 1155 made a formal complaint of the conduct of the gaoler, and moved a set of resolutions, one of which was, that the magistrates had a right, under the statute of the 31st of the king, to go into the gaol. The court unanimously agreed in his opinion. The gaoler was called in, and admonished; and told that the magistrates considered they had a right to visit the gaol. The gaoler applied for leave to write to the secretary of state. This was refused, and an hour given to him for his determination, at the expiration of which period he said he would let them in. He then thought the question was set at rest; but a month afterwards he was told that the gaoler persisted in his refusal to admit the magistrates. A few days before the next quarter sessions he called at the gaol, and required admittance, but was refused, and a letter of lord Sidmouth's was shown to him. He was then on his way to town; and when he arrived there had an indictment drawn against the gaoler. Returning to the quarter sessions, he there made another complaint. He found on the bench an unprecedented number of magistrates. Gentlemen were there who were not at all in the habit of attending. He learnt that they had come for the purpose of reversing the order of the last court. As the gaoler had refused to obey the unanimous order of the court, whose servant he was, it was the duty of the court, in the maintenance of their character and dignity, to take notice of that refusal, and that notice was only to suspend him until the trial of the indictment in question. That this was the least which the court of quarter sessions could do was his opinion then—it was his opinion still. As to the publication of the resolutions in the newspapers, he had voted against it; and, with respect to the names of the magistrates who voted against the resolutions being attached to them, the hon. gentleman who had made that charge ought to know, that when any resolutions passed at a court of quarter sessions were published, the names of the magistrates present were always attached to them. There was no part of his conduct, throughout this affair, of which he need be ashamed, or which he would not retrace under the same circumstances. As the sense of the House would be doubtless against his motion, after the decided opinion promulgated by the law officers of the Crown, he had no objection to with 1156 draw it, if such should be the pleasure of the House—[Cries of "withdraw!"]
§ The noble lord accordingly withdrew his motion.