§ On the motion of Lord Castlereagh, that the House do resolve itself into a Committee on this bill,
§ Mr. Bernalsaid, that his feeling of duty upon this subject was too strong to allow the present motion to be carried without entering his earnest protest against a measure which he conceived of the most noxious and dangerous character. This was, indeed, in his view, one of the most odious of the coercive measures which ministers had thought proper to obtrude upon parliament, with a view to reduce the liberties of the people. But there was one clause in this bill which he deemed peculiarly abhorrent to the genuine spirit of the English law, and to the liberal feelings of the English people. He meant that which authorised banishment. For a period of 200 years banishment was unknown to our law, except in ex post facto acts of parliament for the punishment of great state delinquents. Abjuration, which in ancient days was tantamount with banish- 1516 ment, was, with the sanctuary, repealed in the reign of James 1st, both being considered as inconsistent with the principles of the general code. By the 39th of Elizabeth it was enacted, that certain rogues and vagabonds who infested the country in the garb of sailors and soldiers should be sent out of the country, and this enactment was said to suggest the idea of the law of transportation which was passed in the reign of Charles 2nd. But neither of those laws were ever meant to apply to such persons as the present bill had in view. There was what was called a civil as well as a natural death. The former was conceived to take place when a man was ousted from his country and all its civil rights. Now, he would put it to the Crown lawyers, whether it was meant that such should be the consequence of banishment under this bill; or whether, as allegiance was only a condition for protection, a man banished, and consequently deprived of protection, owed any allegiance to the British government? He would also ask, could the children of a man so banished, and born abroad, be entitled to claim as British subjects? Was it intended that forfeiture of property should follow from such banishment? But how was the expense attending the banishment of a man to be defrayed? If wealthy, he could of course pay that expense himself, but if poor, who was to pay? Again, if all, the world should be at war, as was the case some time ago, where was the banished man to be sent? These were among the questions to which this measure naturally gave birth; but as to the difficulties which he had stated with regard to the legal consequences of such a proceeding, he called upon the Crown lawyers to solve these problems, in order that the House might thoroughly understand upon what it was about to legislate.
§ Mr. Denmanfelt it to be perfectly impossible that he should allow the Speaker to quit the chair, without taking the opportunity of warmly protesting against the enactments of this bill. He should cautiously abstain from looking at it, in any observations he might offer to the House, except upon those general principles by which it was connected with the other bills. The grounds, then, upon which he objected to it were virtually the same as those upon which he had proceeded on a former night, with respect to measures effecting the press; and they were resolved into this one, namely— that the 1517 necessity of altering the existing laws, so far from being confirmed, was completely disproved by the papers upon the table. It did not appear to him necessary to impute, nor did he himself impute, to his hon. and learned friends opposite, that they had, in the exercise of the important duties confided to them, exceeded the measure of those duties. On the contrary, he heard from one of them, with great pleasure, the assertion that the attorney-general had exercised the large and extensive power intrusted to him, with singular caution, humanity, and moderation [a laugh.] But this was not a question as to the conduct of the law officers of the Crown; it was a question whether this bill was likely to have the smallest effect, beyond the existing laws, in putting down those offences which were so loudly and justly complained of? Connected, however, as it was with those other bills which had been so lately before them, and looking to the general intentions of them all, he could not join in the approbation which had been extended by those hon. and learned gentlemen to the principle of these measures. If the hon. and learned gentleman intended to abstain from prosecuting those who were now under ex officio informations, because Mr. Hone had been acquitted, they acted as unjustly as they did in prosecuting that individual, after he had been tried twice before. He conceived that this course of proceeding was not at all justifiable. But this question merged in the really important one which he had suggested. Were the laws, as they existed, sufficient for the purpose which these bills proposed to effect? He could only, in answer, refer the House to the committals which had taken place under them, and to the severe and destructive punishments which followed those committals. He confessed it was a most laborious task to instil into the breasts of hon. gentlemen any new interest on this subject, after the anxious rapidity and restless impatience with which these measures had been hurried upon their attention. It was indeed an exhausted subject, after the observations which it had elicited from several hon. members, but most especially after the luminous and enlightened speech of his hon. and learned friend (sir J. Mackintosh), whose transcendent eloquence had been so happily exerted last night. It appeared to him, however, that it was the duty of every man who loved the independence of his 1518 country, and who respected the constitution as it was settled after the glorious revolution, if he could not excite a feeling in that House for the danger to which it was now exposed, at least to endeavour to return to that healthful state of political existence which was so essentially identified with the support of a free press. While he should consider himself guilty of the grossest vulgarism, if he was to indulge in complaints of the views with which his hon. and learned friends had framed these measures, or performed the duties imposed upon them, he did venture to assure them of this—that if three years ago he had been told, that under the present, or under any other ministers, those two hon. and learned gentlemen would be made to introduce, that they would have the bringing into the House of two such bills as those, he declared to God he should have been almost tempted to insult the man who so predicted, as throwing upon them a most unfounded imputation. He should have then said so, not as believing them to be actuated by Whig principles, or by Whig associations, but as having the same opinion of them which every intelligent man in the country had; he should have said so, under the idea that the rights of the press had become a principal and prominent part of our warm, and constitutional, and every day feelings. He could assure the hon. and learned gentlemen, that he should have warmly vindicated them from such an imputation. He should have done so out of respect to them as enlightened men, acting upon those principles which, before these measures had been propounded, he had thought every intelligent man in the kingdom possessed, with regard to the liberty of the press. It had not withstanding been said, that these bills, so far from restricting or trespassing upon the liberty of the press, tended, in fact, to preserve it; that they only went to regulate it better by knocking off its abuses; and that the direct object of the bill before them, was, not to impose any shackles upon its operation, nor upon the efforts of wisdom or of genius, but to secure those liberties which had never been rightly understood, until the House had happened to light upon their just meaning during the present alarms. If that was really the result of the present alarms, it was certainly a very fortunate thing [Hear, and a laugh]. And it was most extraordinary, that in all the debates which had 1519 occurred upon this subject in that House, nobody had ever before manifested the same sort of intelligence. From reign to reign, from day to day, the history of this country recorded, that the liberty of the press had received new confirmations, and new concessions: but now, at the close of the year 1819, they were to be told that these provisions, by which those who were to conduct the press in this literary country were to be liable for an offence of which they might be guilty, were a compliment to the honour and fidelity and loyalty of those persons, when the whole of the bill went to impugn them. Though he was not at all disposed to enter upon the discussion of the general question as to the freedom and rights of the press, he could not help observing, that it had most certainly been the known, the declared, the recognized, the taken-for-granted opinion of several most eminent Englishmen who had written upon the subject, that they were constitutional rights, and jealously to be guarded. Whatever had been urged against their testimony, upon the ground of altered circumstances and obsolete reasonings, those writers were no unimportant authorities; they were men of extensive erudition and profound thinking—the sages of the law.—the expounders of its enactments; persons who had devoted their labours and their lives to assert and to preserve the constitution. When he heard therefore, one honourable member asserting that we were not the same people now that we were fifty years ago, he would ask if that circumstance changed the nature of things? The circumstances to which the hon. gentleman referred were accidental and temporary; but these rights were founded upon the nature of man, and could not be refused or restricted, except perhaps during a time of rebellion, when it might be necessary to close up every mouth, stifle every complaint, and restrain every right, till danger had subsided. But if the principle of these rights was true generally, why was it not so now? Was the principle of these rights just or unjust? If it was just, it must be applicable to all times and to all circumstances; but if it was unjust, a discovery had been made to-day, which put all former knowledge and opinions on the subject entirely to flight. This particular bill did introduce into our law, not merely that very great and important change to which his hon. and learned friend had just
║1520 alluded—that of imposing the penalty of banishment upon a man who might be ignorant of the crime for which he was banished, or who might commit a technical crime, in fact, of which his mind, however, might be ignorant, as in the case of a book being published which he had previously directed should not be published. And here he had to complain of his hon. and learned friends on the opposite side, that when rights were to be dealt with, the ancient inheritance of Englishmen; when questions were suggested upon points of the utmost importance, and affecting the very existence of those rights: no answers were given to remove the difficulties out of which they had arisen; and no alteration was made in the committee by way of amending the bills which had excited so much reprobation from some hon. gentlemen on his side. But, besides the important change effected by the bill before them, there were other subjects in it for animadversion. They had been told in the committee, that there was no term limited to that banishment; that it might be made commensurate with the life even of the party, if the court so pleased. Now, he knew that it was not likely that courts of justice would award so immoderate a term; but he would ask, what sort of jurisdiction the House would impose upon them by that bill? He would ask, whether the judges who were called upon to pronounce sentence; whether the juries who would be called upon for their verdicts; would not feel that by finding for the second offence they would bring the character of the individual fatally to issue? They had heard, in other cases, of many similar instances which had already occurred; and it was impossible not to suppose that the same sort of interest would be excited here for the criminal party. But let them mark the dangerous power with which they would invest the judges of these offences, by referring to cases in which the same sort of power had proved to be productive of singular injustice. Would any man say that this was not true in the cases of Mr. Johnson, an eminent and well known bookseller; and of Mr. Cuthell, a bookseller also, of Middle-row, Holborn; who were both imprisoned; Mr. Johnson being confined for nine months, for publishing Gilbert Wakefield's Answer to the Bishop of Llandaff, and Mr. Cuthell being? punished in the same way for selling it, which he did, thinking it a classical book, 1521 and having always sold Mr. Wakefield's other works. Yet these two persons, as respectable as any of the hon. gentlemen who heard him, were sent to prison at the greatest risk of their healths, and with the utmost inconvenience to their families; and had they been tried under the present bill, in any court and before any judge, they would have been liable to banishment for life. It was no answer to be told that this was not likely to happen; such penalties ought not to be tolerated in any court in England; and, for his own part, he was sure the judges would reject with indignation so enormous a punishment for this offence as banishment. Banishment, he believed, notwithstanding, to be a most inefficient remedy for the evils which the bill intended to protect them against; because, from the knowledge of the cheapness of paper, and the facilities of printing abroad, it would be found much easier and safer to send the libels over here. One, indeed, came into his mind at that moment, which was written, he believed, by a noble lord, and respected the transactions which had lately occurred at Athens. It was printed in paris, by Galignani, and was now circulating in this country. No person, however, he could assure the House, would have ventured to publish it here. But they might be told, that abroad they had strong allies, that they had friends and fellow constables, as it were, who would kindly look after our interests, and would take care to watch the excesses of the press; that they had a holy alliance, or a holy brotherhood rather, who would join in fraternal and affectionate amity to put down a free press! And, indeed, upon consideration, he did not know where that free press would find a refuge, when she should be driven out of England, her native and accustomed home: nor could he tell where the unfortunate exile, who might be expatriated by this new law, could venture to repose his wandering feet [Hear, hear!]. There was a clause which had not as yet been noticed, he believed, but which appeared to him to be of a very important and objectionable character: it was that which authorized the search of private houses for the discovery of libels which might be concealed there. While he did not mean to contend that if such libels had been concealed, they should authorize the seizure of the publications, it did not follow, that because such a thing were to be wished, they were 1522 therefore to carry it into effect, and by an act of parliament to give the most enormous and unheard of powers for that purpose. It seemed to him that this provision also would be extremely inefficient, and at the same time most unjust and reprehensible. Any concessions as to the term of transportation were not to be weighed against the objections to the bill; because it was to be remembered that those concessions had been obtained only after interviews and conferences with the noble lords. He should, therefore, look at it with severe and narrow criticism. In this feeling he must observe (he did not know whether the circumstance had struck hon. gentlemen) that this bill went to make those liable to the penalties who printed, published, or "composed" seditious libels—composed or wrote them. So that, if any one thought proper in his own closet, like Algernon Sydney, to write a tract upon the government which might be considered a libellous writing, that circumstance might give the parties acting under this bill a right to search over his private desk, for the purpose of ascertaining whether any libels could be found in it. He appealed to hon. gentlemen, whether clauses like this, which exposed a man's private house to the liability of search, were proper to be enacted? He would not now, however, enter into a detailed discussion of them; because, after the great fatigue which the House had already gone through, and of which he had had his share, he knew the difficulty which he should experience in fixing the attention of honourable gentlemen to particular positions. Of this they had had the best example in the instance of the hon. member for Dublin, who, last night, after hearing one of the most luminous and eloquent speeches from his hon. and learned friend (sir J. Mackintosh) ever delivered within the walls of that House, instead of offering any refutation to the arguments which had been advanced upon contested parts of the bill, had proceeded to discuss one or two other positions upon which all sides of the House were previously agreed. In the first clause of this bill it was enacted, that "in every case in which judgment by default shall be had against any person for composing, printing, or publishing any blasphemous or seditious libel, it shall be lawful for the judge or court to make an order for the seizure and carrying away, and detaining in safe custody, all copies 1523 of the libel which shall be in the possession of the persons against whom such judgment shall have been had, or in the, possession of any other person named in the order for his use." All this, then, must be made out to the satisfaction of the court in some way; as the order, founded upon the affidavits, was to give any person named in it the right of searching the house of a third person, without giving him the opportunity of rebutting that affidavit. The House would not fail to observe the hardship of this case. An affidavit was to be made behind a man's back upon which the court: was bound to grant an order. If it were made upon these grounds were all to be equally liable to this sort of search? But supposing, on the other hand, that this, provision were altered, and notice were directed to be given to the party, the libels would be diligently removed before the order could be served. So that either authors and publishers were to be reduced, to the cruel risk of being betrayed by a servant, who might wish to ruin them, or an informer who might wish to curry favour with the government, or else the whole bill was ineffectual.— His next objection was, that whereas the court was to issue the order, a justice of the peace was, for some reason or other, to execute it. Now, if the court had authority to issue the order, unquestionably it was competent to the court's own officer to serve it. But if not, he could not see for what purpose the magistrate was to be made responsible for its execution. He would contend, that the punishment of banishment was totally unknown to the law of England; for as to the act of 1795, it was passed under circumstances of great, and perhaps of reasonable alarm; but of quite a contrary character to those under which the present measure was framed. In all that had been said by the solicitor-general about these securities, as connected with the freedom of the press, being only analogous to the ancient frank-pledge, he confessed he was at a loss to discover the analogy or, the resemblance: and as to the other analogy (suggested by the attorney-general) between a pot house and a free press, he could not perceive that that was established, unless it was meant that a licence was to be taken out by both in future. The enactment of the 36th of the king, to which he had alluded, was in this form: "Any one who should maliciously or advisedly," not by composing but by speech, or any other means†1524 of exciting acts of immediate riot and disturbance, do so and so. Now, when they were told of that bill, in reference to the present, let it be remembered, that it at least gave reasonable penalty, for three years were thought enough by that act of parliament. In a measure so important and unparalleled as the present, this difference should be well observed.—There was one observation which he still considered himself bound to make regarding the principle of the bill, and that was, that it would act like an ex post facto law. It said, that on any second conviction, after the passing of this act, the offence of libel would be punished with banishment, at the discretion of the judge. Now, the offence might have been committed a year ago, and be only brought to trial after the passing of this act. If conviction was obtained, the offender might afterwards, on a second conviction, be liable to the penalties of the bill, and that for an offence committed before its existence. Thus any man who addressed his countrymen through the medium of the press — any member of the House for writing of publishing his thoughts or opinions, might become guilty of an offence subjecting him to banishment, without contemplating the possibility of that punishment when the offence was committed. His great objection, after all, to the measure was, the total absence of all necessity for entertaining it. He did not mean the absence of libels to be suppressed, for these had been numerous, and had disgusted every body; but the absence of any deficiency in the law to suppress them. This was a period of alarm. But the liberty of the press was not to be looked upon as fit only for seasons of calmness, as a fair weather friend to be discarded in a storm. He might say of it what was said of literature in general, that it adorned prosperity, sccundas res ornat; and that it was our security in times of danger, in rebus adversis perfugium et solatium prœbet. He had said on a former night that the restrictive measures now adopted would drive the people to desperation, unless more attention were shown to their feelings. In defending their liberties, he, for one, would never I consent to lower that proud tone which was held in the best times, fearing, as he did, that if the shackles at present intended for them were imposed, the effect of lowering that tone would be to perpetuate them [Hear!]
§ Mr. R. Martinsupported the bill. He would admit, as a general principle, that too great severity of punishment was not desirable. But the question naturally occurred, was the punishment beyond the guilt?—He did not think it was. Was the country to be left exposed to an inundation of blasphemous production, without taking any steps to oppose its course. No guilt could be much higher in degree, than that of the person who deliberately sent forth to the world publications calculated to corrupt the heart, to destroy every principle of religion, every source of happiness here, and of hope hereafter. This bill did not go to trench upon the just and true liberty of the press. After it passed into a law, it would be found that the press was just as unshackled as before. The freedom of the press consisted in the power of writing and publishing what it was fit and proper to write and publish, not in sending forth libels to sow disaffection, and preach up impiety. The peace of society, as well as of every individual, required that the press should be under the restraints of justice, good sense, and propriety. If there was no restraint upon the press, how easy would it be to ruin people in their fortune and reputation! A man would have nothing to do but get three or four dozen hand bills, and stick them about upon the walls. He knew a banker in Ireland that was treated in this manner. He was perfectly solvent, if he got time; but a report was circulated that he could not pay his notes; There was a run upon the bank; and the man was broke. Suppose for example Sake, that any person was maliciously disposed against alderman Birch, who made such excellent patties, and hand bills were sent about saying, that they were made of young children, dug out of the grave, and minced up—would any person buy the patties? not one, even if the flesh were as white as a chicken. No one would go near the shop, and the man would be ruined in his business. The devil a patty would he sell.
Mr. Bankesbelieved that abuses of the press existed to such a degree as required the interference of parliament He defended the clause of the bill which authorized a search for, and seizure of publications, adjudged to be libellous. This right of search existed to a greater extent, by the act of Charles the 2nd, and during the first six years of the reign of William the 3rd. He contended, that the right of 1526 search was properly applied by the present bill, as all admitted that works adjudged to be libels should be suppressed, which they could not be by the existing law. It had been said by the opponents of these measures, that the country was dissatisfied with what parliament was now doing. He believed the contrary. He believed that if the nation was polled, the majority would be found to declare, that parliament was acting wisely. It had been urged by one hon. gentleman, that he in expressing a doubt regarding the policy of extending education on the plan at present pursued, had opposed the spread of morality and religion. No man, he was convinced, could suspect him of such a design, and he thought it beneath him to answer such an insinuation. He had never declared education an evil. He had merely expressed a doubt as to the policy and expediency in the present condition of society, of carrying the system of educating the poor to the extent recommended by some of his friends. His reasoning was the following:—We put the people in a new situation by this general diffusion of education; and we are not perhaps aware of the effects to which this change may lead. This new condition which is created may lead to evils which additional restrictions on the press may be required to correct; as with the capacity of reading facilities are afforded for spreading mischievous as well as moral and religious principles. If he was asked generally, whether education was a good, he should be a savage to deny it; but if interrogated further, whether he thought it should be spread so extensively and so rapidly as was the wish of many benovolent persons whom he highly valued, he would beg leave to express a doubt; but because he did so, he ought not to be accused of opposing the diffusion of morality and religion. The hon. gentleman adverted to what fell from sir J. Mackintosh last night, regarding the articles of the Bill of Rights, in opposition to some remarks of his on a previous evening. The hon. gentleman maintained his former position with regard to the sense which the powers of the Bill of Rights entertained of the freedom of the press. In that heroic age of Whiggism the game notions were not entertained of the press as now. But did he wish the re-enactment of the statute of Charless 2nd, continued a short time after the Revolution? By no means, 1527 He thought that every man should be allowed to publish his opinions without a previous censorship, and only liable to punishment for the abuse of his freedom; but this was contrary to the act of Charles 2nd, and to the opinions of the Whig ministers of William 3rd who wished to re-enact it. The bill did not alter the existing law with regard to the punishment for a first offence; and a man who subjected himself to a second punishment, by committing a second offence, could not justly; complain that he was banished from the country, whose religion he had vilified or whose, tranquillity he had endeavoured to disturb.
§ Mr. J. P. Grantsaid, he never supposed that the hon. member would oppose the spread of religion and morality.— He always thought the hon. member was a consistent supporter of the present measure, as he entertained doubts regarding the policy of extending that education, which he said put the country in a new situation, and thus rendered restrictions on the press necessary. The noble lord opposite had, on the contrary, denied that the bill was intended to meet a new condition of the country, arising from the diffusion of knowledge. For his own part, from all; the experience he possessed of the state of a part of the country where education was most generally spread, and all the reasoning he was capable of, he came to the conclusion, that education was an unequivocal blessing. Education might be productive of some evils, but its advantages incalculably predominated; for, the more the minds of the people were opened, the greater the extent of their information, the more likely they were to be moral, orderly, and religious; the better the peace of the country would be secured, and the greater would be the chance of stability to the government.— It had been the opinion of all parties, Whigs and Tories, that the liberty of the press was a blessing, till the introduction of these measures. He must say that the House was left in a singular situation in two respects; first, it was going into a committee on a measure, in support of which not one reason had been given by those who had introduced it; secondly, in being called upon to enact a new punishment, without having heard the consequences of it explained by the Attorney and Solicitor-general, who were bound to defend it. The consequences of banishment for life had not been explained; 1528 as the punishment was new to the laws of England. Bills of pains and penalties had been passed against individuals, which inferred forfeiture of property and civil death. A case had occurred when the wife of the exile claimed her jointure as if her husband was dead. Would the banishment, which was inserted as the penalty in this bill, infer forfeiture of property and civil death, and was the House about to enact a punishment so understood? It had been said, that? the infliction of this punishment was left to the discretion of the judges To this discretion he objected. Blackstone described it as one of the excellencies of the English law, that it permitted a discretion in the extent, but not in the nature of the punishment, for particular crime. Yet, according to the bill under consideration, the judges had the power of inflicting, at their discretion fine, or imprisonment, or banishment for life. He contended that the country was at the present moment in a state unfit for permanent legislation; He would willingly accede to the measure, if it were made temporary; but he could not consent to legislate permanently under the existing state of exaggerated alarm. In Scotland especially, the alarm was such as to unhinge society. The troops Which had hitherto garrisoned Edinburgh had been marched to Glasgow, and the castle of Edinburgh was under the command of the lord president of the court of session; who, before he went into court in the morning, marched a guard of volunteers into the castle, and marched it back in the evening. If we were invaded by a foreign enemy, he should think such conduct most meritorious. As it was, he did not find fault with it; but it showed the extravagant and ungrounded alarm which existed. To the same cause were the numerous reports of the danger of insurrection attributable. Among others, it had been rumoured that pikes had been found; the value of these pikes was estimated at five shillings. Now, he should like to know how it was possible that a weaver, who did not get more than five shillings for his day's work could be able to afford five shillings for a pike; and, having procured it, how he could be able to devote the greater part of every night to learn its use? He allowed that proper precautions were necessary; but he deprecated the embodying of those pre- 1529 cautions in a permanent form. As to the measure before the House, not only was there no necessity for it, but even if the existing law were deficient, the proposed measure would be inefficient for all good purposes, but very efficient for bad ones. It would not prevent such publications as it was desirable to prevent; but it would ruin many publications of the most respectable character.
Lord Binning, in answer to what had fallen from the hon. member, referred the House to the statements which had been made by men of the most respectable authority, relative to the disturbed state of the western part of Scotland. He referred the House also to what had been said on the same subject by the hon. members for Renfrew and Lanarkshire. It was admitted generally, that great disaffection existed in that country. It was true, that the disaffected had availed themselves of the distress which existed, in order to work upon the minds of the people. So far had these evil minded persons succeeded, that a day was fixed for their rising. Was this, then, not sufficient to alarm the public mind? It was found necessary to take every precaution for the preservation of the public safety. The citizens of Edinburgh, therefore found themselves obliged to take arms in defence of their properties, their families, and all that was dear to them.
§ Mr. Birch, in order to show the system of exaggeration which was practised in order to create alarm, mentioned some observations which were made in a Nottingham ministerial paper. It was there stated that himself and his colleague (lord Rancliffe) must be either grossly ignorant of the training which was practised at Nottingham, or that they wilfully withheld that information from the House. The magistrates, feeling anxious on this subject, directed the town clerk to write to the editor, calling upon him to come forward and make known the information of which he stated himself to be possessed. The editor waited upon the clerk, and Stated that he possessed no information of the kind, and that he was ready to retract all he had said in his next publication.
§ The motion having been put and carried, that the Speaker do leave the chair,
§ Sir James Mackintoshsaid, the present was the proper time for him to state the amendments of which he had given notice 1530 on the preceding evening—amendments intended to define, as accurately as possible, the description of offences which ought to come within the operation of this bill. He had agreed to postpone these amendments until the third reading of the bill, but, out of deference to the wish of others, considering the great importance of the question, as there might not be a sufficient attendance of members, on the third reading to-morrow, he deemed it proper to make his propositions in the present stage. The first amendment was of so small a kind, and appeared to him to be so obviously reasonable and necessary, that he did not think it could give rise to any discussion. He would propose, in that part of the clause which set forth "that from and after the passing of this act, in every case in which any verdict or judgment by default shall be had against any person for composing, printing, or publishing," that the words, "maliciously and advisedly" should be introduced before the word "composing." The words which he wished to insert formed part of the act of the 36th of the king, which in all the other parts of the present bill, was exactly and minutely followed. He would not dwell on this part of the amendment, because those words having been originally part of an act of the same description, ought clearly to find a place here. He did not wish to enter into any discussion on this division of the subject, but would merely ask whether gentlemen opposite had any objection to the insertion of those words? (The attorney-general said across the table that there was an objection.) Then he was to understand that to this part of his proposition there was an objection. The principal amendment however, which he would propose to the committee, and which appeared to him of the most essential importance, related to that part of the clause which immediately followed the passage to which he had adverted. Whether it was a definition, a description, or an enumeration of offence, he knew not. It was impossible to say whether the passage was meant to point out the whole class of offences which would be punishable by this bill, or to define the precise writings that ought to be ranged under the words "seditious libel.'' The passage was this: — "for composing, printing, or publishing, any blasphemous libel, or any seditious libel, tending to bring into hatred or contempt the 1531 person of his majesty, his heirs or successors, or the regent, or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or to excite his majesty's subjects to attempt the alteration of any matter in church or state, as by law established, otherwise than by lawful means," &c. Now he was at a loss to say whether this was a definition of a seditious libel in general, or an enumeration of the offences, to which, as seditious libels, the punishment provided by this bill was to be applied. The passage seemed to him to be of so vague, confused, and unsatisfactory a nature, as to leave the understanding quite at a loss to decide whether it was, in fact, a definition of a seditious libel, or an enumeration of certain sorts of libel against which the provisions of this bill were to be specifically directed. If it was a definition, it was a very faulty one—absurd in language, since it at once gave you the thing described, and the description; just as if an individual were to say, that a triangle was a thing having three sides, and including three angles; which would be a mere absurdity, a waste of language. On the other hand if it were an enumeration of some sorts of seditious libel to which this bill was to apply, excluding others from its operation, then he wanted to know what the non-enumerated libels were?— what the libels were, thus left to the correction of the ordinary statute-law of the kingdom, and removed from the operation of this bill. He found, in all the words he had quoted, no satisfaction to the understanding with respect to this point. The amendment which he meant to propose, and to which he begged the serious attention of the committee, if not on his account, at least on the ground of the importance of the subject; was to leave out all those words, "tending to bring into hatred or contempt the person of his majesty, his heirs or successors, or the regent, or the government and constitution, as by law established, or either Houses of Parliament, or to excite his majesty's subjects to attempt the alteration of any matter in church or state, as by law established, otherwise than by lawful means; and to insert these words in their room, "or any seditious libel, fending to excite his majesty's subjects to do any act which, if done, would, by the existing law, be treason or felony; or any libel in which it shall be affirmed or maintained, that his ma- 1532 jesty by and with the advice and consent of the Lords spiritual and temporal, and Commons, in parliament assembled, has not, or ought not to have full power and authority to make laws binding on his majesty's subjects in all cases whatsoever." The clause, if adopted, as he now read it, was perfect with respect both to omission and insertion. He should now proceed to state the grounds on which he made this proposition to the committee. He hoped any gentleman who heard him read the clause, had marked what he proposed to leave out, and what he wished to insert, in order that they might understand the principle on which he proceeded, and the difference between the clause as it at present stood, and as it would appear if altered. It had been said by all those who had taken a part in supporting this measure, that there was nothing which they more anxiously desired, than to distinguish the infamous and flagitious press, which was the disgrace of the nation and of the age, which no man held in greater abhorrence than he did, against which no man was more ready to declare the most determined hostility, from the honourable, well-conducted, and well-deserving press. To make a clear distinction between these two branches of the press—to do away the atrocities of the one, without encroaching on the just liberty, or lowering the fair character of the other—this was the sentiment which had been stated by all those gentlemen who had taken a part in these discussions favourable to the present bill. It was a feeling so natural and so proper, that he should have been disposed to give them credit for it, even if they had hot expressed it. One object he had in bringing forward this amendment was, to put to the test the sincerity of those declarations—to afford to the committee an opportunity of making the necessary distinction between those two parts of the press, which gentlemen must see, the bill under consideration had not made, but which, on the contrary, it had the tendency to confound more than they had ever been confounded before. Here it was proper to consider what the evil was which had been complained of. He would take that evil on the statement of his hon. and learned friends opposite, and he would confidently appeal to them, whether it consisted in the general prevalence of common political libel. He would contend, that it did not. If they separated political libel into two classes, they would 1533 see the necessity of making the distinction he wished to introduce. One of those classes was the consequence of that violence, that excess of feeling, that ebullition of spirit, which was always occasioned by the collision of parties in this kingdom. There never was a period, when this species of libel was less frequent, and certainly none, in his opinion, when it was less virulent when it did appear. The English periodical press had never, on the whole, been so pure, so blameless, so meritorious, as of late years. On the other hand, there never was a period when another description of libels of a political nature indeed, but leading to every thing base and infamous—inculcating the doctrines, not merely of rebellion, but of murder were more frequent. He would not quote any of the passages taken from works of this vile description which were last night referred to by an hon. and learned friend of his. It was enough to say, that they encourage rapine, murder, and irreligion; rebellion was perhaps the lightest crime they inculcated. In general, the offences, as he took it, committed by the better part of the press, were neither numerous nor of dangerous consequence. Those of which the other branch of the press was guilty, were not, in his mind, justly entitled, to the dignity of political offence. They echoed the common cry of the outcasts of the human race, who, excited by bad passions, or acting under the influence of want and necessity, defended murder and robbery, recommended the proscription of men by classes and great bodies—whose writings, in short, tended to the perpetration of atrocities never known in this country, before, and scarcely even heard of in the time of Marat, in the worst period of the reign of terror in France. The press as he had already observed, was divided into two parts. He was almost ashamed to mention them by the same name. The one was the regular press, which was marked by greater purity, greater, moderation, greater talent, and more commend able conduct, than at any former period; the other a contaminated engine, sending forth almost clandestinely, amongst the lower classes of society, a few publications, carrying atrocity and criminality to a degree almost unparalleled in the annals of mankind.—The new evil, then, was the character of those latter libels. No evil could be traced from the increase of ordinary political libels, which had in 1534 fact decreased in number, and abated in violence. The evil, therefore, must be ascribed to the operation of this new species of libel, in which atrocious crimes were defended. His object then was, to confine the operation of the new law to that which was the new mischief. He wished to propose to the committee, that the old law of libel should be left to cope with the old character of libel, as in former times, and that the new law should be confined, as it ought to be, to the new mischief, and not extended to the ordinary indiscretions of a free press, the warm ebullitions of an ardent spirit — faults which called for no change whatever in the law. The whole of that part of the bill which he wished omitted was a good or bad definition of a seditious libel. He thought it was not a good one. He believed that the offence of seditious libel was undefinable. It was a futile labour to attempt the definition of an offence which depended on circumstances: since words which at one time might be considered innocent, might at another time, and a few miles off, be condemned as wicked and improper. The whole of the definition manifested a great inexperience in legislation—a great want of knowledge of human nature—a great unskilfulness in adapting laws to the particular situation of men. But positive instigation to the commission of crime was easily defined. It was, at least, easy to describe it in such terms, that a jury of common honesty might at once see, whether a person brought before them as the instigator to crime, was innocent of such charge or not. But it was very remarkable, that at the same moment when the framers of this definition had thrown various sorts of libel into it, in a sort of cumbrous and confused parenthesis, they had not only included what did not call but had excluded what really did call, for the interposition of the legislature. They had excluded much of what might proceed from the most degraded part of the press, which did call for regulation and they had included the respectable part of it, which did not. Would his hon. and learned friend show him any clause in this bill, by which the penalty of banishment, would apply to a man whose writings recommended assassination? There was not a word of the kind. Suppose that a man proposed an extended system of forgery, to destroy all confidence in commercial dealings, and to ruin the credit 1535 and character of the country. Under the bill as it now stood, he could not be punished—he came not within its provisions; but if his amendment were agreed to, such a man might be prosecuted with effect, because he would have instigated to that which is felony by the law of the country. The preamble contained what it ought not to contain, and omitted that which ought to have formed a part of it. So it appeared to him the substance of the argument which he had taken the liberty of stating to the committee was this, the possibility and the expediency of distinguishing instigation to crime from political libel. Every thing that tended to bring the king and the Houses of Parliament into contempt was certainly a seditious libel. This, he conceived, comprehended all instigation and incitement to rebellion; but it did not comprise crimes not actually instigating to rebellion, though having a tendency to that end, but which still were ordinary crimes against the state of society. He thought the cases might be distinguished one from the other. This would perhaps take some cases of a very culpable nature out of the operation of this bill; but the question the committee had to consider was, whether the efficacy of the law on the one hand, and the security it would give to the respectable part of the press on the other would not promote the ends of justice better than if it were left as it now stood, although some political libels of an aggravated sort, were to happen to be exempted from the new inflictions of this bill? Now he would maintain, that the classing persons whose writings were instigations to commit murder, instigations to rebellion, instigations to commit any atrocious crime, along with those who had only written an ordinary political libel, was a gross error. It was an error which would have the most pernicious effect, a doubly pernicious effect; since sometimes it would occasion the escape of those who deserved to suffer, and at others the severe punishment of men who ought to have been more mildly treated. Libels, in some cases, might be of a most atrocious kind, but they might be the fruits of qualities which were not the object of hatred or contempt among mankind. This law would apply to cases where the excellence and genius displayed in a libel would rather be considered than its criminality. What, then, would be the effect of this bill in those cases? Its severity would 1536 tend to abate the natural horror which men would otherwise feel against those who thus abused their abilities. It would tend to counteract the moral feelings and judgments of mankind, and would produce a certain degree of sympathy for those who would otherwise be the objects of abhorrence. But this, which was favourable to the flagitious writer, was decidedly against the interest of the fair and honest writer, whose error was an error of judgment. When a new Jaw passed against, both—when the same punishment was awarded against both— when the person who proposed assassination and thus placed a stigma on the press, and the individual who wrote a mere political libel, were viewed as equally criminal, the whole became confounded in one mass; and the wickedness of the one, and the respectability of the other, were merged together; in short, there then appeared to be but one press. But what would be the ultimate consequence in many instances? The liability to a severe punishment would save the ruffian; while the man who acted from honest views must suffer in his character although acquitted, by having been classed with such a person. This evil was, in some degree alleviated by the discriminating justice of the law of England, with respect to the different parties engaged in composing, printing, and publishing a libel; but the effect of the bill would be to comprehend under one common degree of guilt every person concerned, from the tradesman, in whose shop, without his knowledge, and perhaps against his injunction, a libel was sold, to the wretch who for years had dispersed amongst his fellow citizens publications inciting them to the worst of crimes. He spoke not as a visionary speculator in criminal law; but every man must see, that one branch of the criminal code would be most seriously altered, he would say injured, by this bill. Instead of strengthening the moral feelings of mankind, a measure proceeding on such a principle of confusion, by which crimes of various degrees were punished alike, tended to weaken them. It was injurious to those who were almost innocent, and advantageous to those who were in the highest degree guilty. He knew it would be said that this was the fault of the law as it at pre sent existed. He could not deny that. But he would put it to the good sense of the committee, whether, when they were 1537 called on to frame a new law on this subject, they ought not to render it as clear and perspicuous as possible? It was no defence of the obscurity of a new measure to say, that errors, and inconsistencies, and confusion, formerly existed. Formerly they might have excused themselves, upon the plea that they were only acting in conformity with custom; but on this occasion that plea would' be totally unavailing. Adherence to the old institutions of a well-regulated commonwealth was certainly a quality which deserved applause, and never could be regretted, except when it degenerated into a species of bigotry, which could see nothing to condemn, even in the most inveterate abuses. But this adherence to old institutions could not be urged as a plea for sanctioning old abuses, when the House was engaged in passing a law so novel and extraordinary as the present, a law which declared that a woman or a child residing 500 miles from London, and possessing an annuity dependent upon the existence and success of a newspaper, was to be classed under the same description of offenders, was to receive the same name, and was to await the same judgment as those wretches who were daily exhorting the people to the commission of the most criminal and atrocious actions. If the committee would take this circumstance for a moment into their consideration, they would soon be convinced that it imperatively demanded their most serious attention, as, if not altered, its tendency was, to destroy the whole effect of the bill. For undoubtedly its effect, if it were confined solely to those whose actions and writings formed the best justification of it, and those who by their malignant exertions had forfeited the respect and excited the abhorrence of every good man, would be to attract the wishes of all the community to the due execution of the law upon those who offended against it.— He meant no reflection upon the manner in which the magistracy throughout the country exercised their functions; but still he could not help remarking, that if it were confined as he would confine it, no law would be more cordially carried into execution. There would, however, be a very different result if it were extended to all who, either technically or substantially were guilty of a libel. That very extension of it to all cases would be productive of consequences which its framers had 1538 never contemplated; it would prevent prosecutors from coming forward, and witnesses from giving testimony, in that candid manner which ought always to be seen in a court of justice. And what would be the result of such a state of things? Why, that only few convictions would follow prosecution; so that in point of fact, more satisfaction would be gained to justice by subtracting a few cases from the operation of this law, than would be obtained by including all cases under it. He should, therefore, most strongly recommend the committee to make it apply solely to the criminals for whom they intended it, and not to allow any part of it to extend to the sound and respectable portion of the press. Indeed, he could wish to know what object could be effected by retaining the clause as it at present stood. There was not a printer in the country who was not afraid of it: there was not a respectable bookseller who did not object to it: those of London and the vicinity had already presented petitions against it, and similar petitions would shortly be presented from those of Edinburgh and Glasgow. Every proprietor, every editor of a newspaper, as well in the country as in the metropolis, was alarmed, lest this bill should pass into law, merely on account of the very words to which he objected. Was it right, then, to include the reputable and disreputable parts of the press under the same regulation? Where was the news paper which published any instigation to crimes, any incentive to assassination?— The gentleman who conducted the daily newspapers of the metropolis were as incapable of advocating such atrocious doctrines as any member of the assembly which he was then addressing, and held them in too great abhorrence to say even a word in their palliation. Therefore, though a few cases of libel, arising out of the hurry of composition, might be withdrawn from the operation of this bill, by the amendment which he proposed, more would be gained by the wide distinction which it endeavoured to create. He must apologize to the committee for the length, at which he was explaining his amendment, but he could assure them, that he had only proposed it, in order to render the bill more efficacious than it otherwise would be. The committee would, perhaps, be of opinion, that his amendment would not produce that effect which he contemplated; he, however, felt that he should not be discharging his duty, if he 1539 did not endeavour to fix upon their minds the impression which was made upon his own. The operation of this law must materially affect the newspapers, in which the whole force of political discussion had of late years been concentrated. The prodigious number of persons, of every rank and description, who now took an interest in public affairs, the care and anxiety with which every passing event was perused when recorded in these vehicles of information, and the discrimination and talent which were displayed in the daily comments which they contained, had given them a circulation which had at once increased the emoluments and the respectability of those who were connected with them. Indeed within his own recollection their importance had increased to a degree which to many would appear incredible. A new interest had risen in the state, which had imperceptibly acquired to itself consideration and power. Now that this consideration and this power had become apparent to the most inattentive observer, honourable gentlemen came forward with a general maxim, and said, "Try, if you can, to subdue this new interest; if you cannot, keep it down as much as possible." This was, however, most wretched policy, and never could be the advice of a wise statesman. The true policy to be adopted in such a case, was to conciliate and attach every new interest, to make it coalesce with the old institutions of the state, to render it the ally of the law and the government, and not to place it under unnecessary regulations and restrictions. Mr. Burke, when contrasting the effects of conciliation and of coercion in his speech in favour of conciliation with our American colonies, had made an admirable observation, namely, that a government might first conciliate, and if conciliation failed might then coerce; but that the reverse order was not so easy, because a government which began by coercion could not afterwards attempt to conciliate, without bringing itself into contempt and derision. This observation he could wish to have applied to the present case. The number of readers had rendered the property of newspapers valuable: this had attracted to them men of talent and respectability, and by them great influence had been obtained over the public mind. So long as emolument and respectability accrued to those who thus employed then faculties, it would be impossible to detach from the public journals, men of talent and education.— 1540 The House might irritate the press—they might deprive themselves of the assistance of that powerful instrument—but no measures which it was possible to adopt could have the effect of preventing its continuing to be a source of emolument, or preventing that emolument from continuing to attract men of talents to it. It was within the power of the House to conciliate those individuals, but it was not in its power to destroy them. It was within the power of the House to make them friendly, but it was not within the power of the House to make them feeble. It depended upon the spirit of conciliation which they exhibited towards the press, whether they were to rank those connected with it among their allies and auxiliaries, or among their enemies and opponents. The very circumstances which had attracted those individuals to the press bad also been productive of great advantage in the manner of conducting it. During the last thirty years, he had watched with the most earnest attention the behaviour of the public journals, and had observed, that however the various journals might differ on points of general policy, they had been continually improving in decency, and in respect for the laws and constitution of the country—a circumstance which he attributed to the improvement in talent and respectability, which, as he had before-mentioned, had taken place among those who supported them. He knew a gentleman who had been engaged during the whole of the last 40 years as the conductor of one of the most popular newspapers; and to his situation and his conduct as they had come very much within his own knowledge, he would wish to call the particular attention of the House. Writing as that gentleman generally did, in haste; writing too, under the impulse of generous feelings of party; easily excited when the liberty of his country or the rights of humanity were invaded, acting as an invisible, unaccountable, and unassailable being, exercising a power almost despotic over the minds of his readers; and yet with all these temptations to abuse—(and here he would suppose him secured always from greater temptations by his well-known integrity, and the incorruptibility of his character—he would suppose it impossible that he could be ever charged with venality, indecency, or improper motives of any description)—yet notwithstanding all these considerations, he had never been even subject to an accu- 1541 sation for private slander, and had never been convicted for a public libel. The House might suppose that the individual in question had been favoured by the ruling power; but so far from this being the case, he had seen the men whom he had always supported only three years in office. Still he had always adhered to the principles on which he had commenced his public life, in spite of the allurements of office and the frowns of power. He would ask whether, during the same period, any man in Europe had acquitted himself with more credit in a public situation than the individual to whom he alluded, he meant the gentleman who was the conductor of the principal opposition print—Mr. Perry, the editor and proprietor of the Morning Chronicle. He had not described any person who was a supporter of the government, because that would not have been so much to his purpose, but to an individual who, during thirty- seven years, had been one of its principal and most effective opponents. He had quoted him as an instance of high honour, unimpeachable integrity, and undeviating principles, in order to show that these qualifications were carefully cherished among those who were connected with the press, and in order to impress upon the committee the necessity of conciliating those who conducted that mighty and irresistible engine. They had been most efficient supporters of the nation's interest during the late common contest in which all of us had been engaged; for could any one who recollected the manner in which the press of London conducted itself during that war, fail to recognize the services which it had rendered during its continuance?— Had the common cause of the country; ever been maintained with greater splendor of talent (and indeed the splendor of talent was such as would do honour to the best writers in the best age of our literature) than it had recently been maintained by these very men against the individuals whose efforts this bill was more particularly intended to put down? Notwithstanding the manner in which they differed upon some subordinate points, and notwithstanding the want of prudence which some of them had exhibited on a recent occasion in the discussion of certain local questions, the constitution had never possessed more constant and more zealous supporters than those individuals whom the com- 1542 mittee was now going to place among their opponents. With what conscience could the Committee place these, the defenders of social order, on the same level with those who were its greatest enemies, and were daily exhorting their deluded followers to the commission of crime and villainy? And yet, extraordinary as it might appeal, they were placing men of talents and character on a level with men who were assassins in their hearts—men who had not courage to take on themselves the responsibility of crime, but who did not hesitate to instigate others to its commission—they were endeavouring to degrade their most powerful and efficient allies by classing them with their common enemies, and subjecting them to the same punishment as these common enemies; they were treating them as participators in the mischief which called for the security of additional laws; they were, after no fault of theirs—after the signal merit to the praise of which they were entitled—after their rendering more assistance to the cause of society than could be rendered by all the restrictions parliament could impose—about to confound them with those vile miscreants, and to punish them for the evil which they themselves had been the first to encounter. He did not ask the committee to make any sacrifices—to propitiate—he merely asked them not wantonly to irritate those on whose conduct more would depend than on the laws they were now enacting. The press had a power in the present state of society of which it was foolish to complain. This state of things depended on causes beyond the control of parliament. They could no more control the order of things in society, then they could control the planets in their courses. The order of the moral world was no more dependent on them than the order of the physical. The course of human affairs was beyond the control of any legislator—beyond the power of any statesman. The course of affairs had given a power to the conductors of the press which could not be wrested from them. This power they might exasperate or they might conciliate but not annihilate. They might alienate the press, but he repeated they could not divest it of the power which the circumstances of society had thrown into their hands. He would not on this occasion appeal either to the mercy or to the justice of the House: he would appeal to its prudence, and would 1543 ask them whether it was expedient to irritate the feelings of those respectable men against the institutions of their country. There was another point which he wished to press upon the attention of the committee. In another bill which had been recently before the House, a provision was made for taking recognizances from printers and publishers. The object of that provision was said to be to place the control of the press in no other hands than those, of men of property. The present bill, however, which classed men of property along with the most desperate and abandoned individuals, was calculated to prevent any respectable tradesman from interfering with newspaper property. The emoluments derived from a successful newspaper attracted men of capital to engage in them. The possession of capital was in general a guarantee for the possession of respectability. Men of property had generally a regard to their character, and to the peace of society in which they had so deep an interest. They could not obtain a better security than, was derived from this circumstance, but they might throw it away for that which would afford them no adequate security. A high sense of honour, a strong feeling of personal independence, and a reliance on an unimpeached and unimpeachable character, were the best securities which could be taken from the editor or the proprietor of a newspaper. If these were once broken down by any restrictions of the legislature, the public journals would be thrown into the hands of men either of desperate poverty, or of desperate fanaticism, or of desperate ambition, who would willingly brave all the penal statutes which could be enacted against them. From results of so dangerous a nature as those contemplated by the present bill, respectability, and property, and talent would, shrink with timidity; and the. consequence would be, that this engine so beneficial when well-directed, so pernicious when ill-directed, would fall into the power of desperate poverty, of desperate ambition, or, what was worse than all, of desperate fanaticism. He therefore implored the committee to reject the clause as it now stood; for he could assure them, that if they had purposely contrived means for rendering the press imfamous and hostile to the present institutions of, the country they could not invent a better me- 1544 thod for effecting that object than by agreeing to it. He was sensible that he had already intruded too long on the attention of the House; he should therefore sit down, after first moving that the words "maliciously and advisedly" be inserted before the words "composing, printing, or publishing."
Mr. Canningcould assure his hon. and learned friend, that as far as it applied to him, there bad not been the slightest occasion for the apology which he had just offered to the committee. He never thought, and he was convinced the House, never thought, his speeches too long. There was no man to whom he listened with greater pleasure than he always did, to his hon. and learned friend, because, even when he could not come to the same conclusion, he always heard much to delight and much to inform him. However, much in general he concurred with him in matter of principle, and much as he in general approved of what fell from his, hon. and learned friend—if there was any, regret felt by him on this occasion, it was, that with that power of eloquence he so eminently possessed, he had taken a basis much too wide for the motion with which he concluded. And he could assure, his hon. and learned, friend, that he would, have come to the discussion with very different feelings, if he had not overlaid the motion by the earlier part of his speech, but had proposed the amendment without the general argument, which had added; much to the amusement of his speech, and much to his delight, but nothing to his conviction, and much he owned to his, alarm [Hear, hear!]. The amendment proposed might or might not be harmless. But, in calling upon those who proposed the present bills to state their reasons for them, in the alarming tone which his hon. and learned friend had used, he had imposed a task of awful magnitude upon those who differed from him in their political views. The alternative which his hon. and learned friend had pro posed to their acceptance was this—either that, they should surrender their liberties to some unknown, undefined, and invisible power, or else that they should acknowledge the supremacy of the daily press. To the latter, he, for one, could never assent: in spite of the obloquy which might attend the declaration he was, now going to make, he was determined, conscientiously to discharge his duty; and if the choice was, whether he was to sa- 1545 crifice himself and save the institutions of his country, or save himself and sacrifice those institutions, his mind was made up, his resolution was taken, and the sacrifice of himself should be willingly offered to the good of the nation. Whatever he might yield to the arguments of his hon. and learned friend, he would yield nothing to his threats. Before he entered into a consideration of the definition of libel, which had just been offered to the committee, it would be well for them to consider of what nature the power was with which they were called upon to contend; they had heard that it resided amid clouds and darkness; and that from the midst of those clouds and that darkness it hurled its vengeance with such unerring aim as never to fail in striking down its victim: they had heard this dreadful denunciation, and therefore it became them to consider whether the freedom of parliament was to yield to the freedom of the press, and whether the freedom of the press ought not rather to be denominated its despotism? Despotism was not merely of one kind or description; it existed in various shapes, and arose in various ways; but to no despotism however created, or however formed, would he ever yield himself up a willing victim. He abhorred the despotism of one man, because it was calculated to destroy all the enjoyments of life, and to render existence scarcely worth supporting. He objected to the despotism of many, whether it appeared in the shape of aristocracy or democracy; to the former he objected, because it destroyed the spirit of competition, and checked the aspirations of ambition and hope; and to the latter, because it led by an ascertained course to military despotism. The despotism of the press, however, appeared to him to be more insupportable than all the rest; indeed, if they might credit the description which they had just heard of it, the imagination could conceive nothing more terrible. There was not only a power in it which it seemed it was impossible for any human ingenuity to resist, but there was also a power which acted with all the secrecy of a Venetian; tribunal, and at the same time struck with all the certainty of the Holy Inquisition. This power, it was allowed, had grown up under the fostering care and attention of parliament, and parliament was now advised to win it over to its side, in order that it might not turn round and destroy the parent from which it sprung. To such 1546 a degradation he would never submit. To such an argument he would not yield a single inch; no, not even though his hon. and learned friend advised him to do so His hon. and learned friend, in giving that advice, had endeavoured to tempt the House into a discussion into which he should not follow him. He had given a character of the daily press on which, for the most part, he did not differ from him. With respect to the individual to whom his hon. and learned friend had more particularly alluded, he would say that from some circumstances he happened to be acquainted with, in his own mind he was convinced he deserved the character which had been given of him by his hon. and learned friend. He would say this of that individual, that he believed him incapable of availing himself of the power in his hands to gratify any private soreness or private hostility. But while he admitted this, and trusted that the concession would qualify the severity of any farther remarks that he might make on the subject, he could not allow that the daily press was wholly free from blame in some of the particulars to which his hon. and learned friend had alluded. At no very distant day he had seen in some part of the daily political press, art extract from a pamphlet, recommending assassination as a means of obtaining political freedom. That extract was quoted, without being accompanied or followed by any observation, except that the assassination recommended was only conditional. Such a passage he had read, but he would never have thought of mentioning it but for the challenge thrown out by his hon. and learned friend, that it was impossible that this part of the press could be guilty of any possible aberration from rectitude or propriety—and he only adduced the circumstance as a qualification of his hon. and learned friend's general commendation the danger of even a possible aberration. Yet, though he could not concur with his hon. and learned friend's panegyric in every particular, he very readily agreed With him that in the present times there was a tone of decency in the daily press which ought not to subject it to any participation in the blame to which the other part of the press was entitled. But in an act of solemn legislation they ought to look neither to the right nor to the left. He agreed with his hon. and learned friend that when either in the moral or the physical world any new power made its ap- 1547 pearance, it became an object of importance to obtain the aid of that power, and to reduce it to a state of subserviency, instead of opposition to our interests. But as little, when any explosion of nature took place, which seemed to threaten universal desolation, was it the part of sound philosophy to prostrate itself before the formidable phenomenon, instead of raising, at any risk, a dyke to stop the progress of the ruin. But how could this argument as to the danger from the power of the press, be reconciled with some other arguments which they had heard at an earlier period of the debate, and which tended to prove that the freedom of England and the power of its press bad fallen off? The fate of our legislation, perhaps of our empire itself, had been said to be fixed, and our decline had been declared to have been already commenced. Parliament had been warned of their degeneracy from their ancestors; public opinion had been said to be stifled; the love of freedom and the spirit of patriotism had been lamented as extinct. The argument used to-night by his hon. and learned friend was a decisive refutation of those desponding statements which the House had heard last night. Public opinion was represented by his hon. and learned friend, and truly represented, as possessing now tenfold force at the present, compared with former times. Not only was public opinion advanced, but its power was accumulated, and conveyed by appropriate organs, and made to bear upon legislation and government, upon the conduct of individuals, and upon the proceedings of both Houses of Parliament. He was not so foolish as to regret—he was not so mad as to attempt to arrest—the course of public opinion. But, he was not so feeble, or so fearful, as to surrender the right of legislation, or to abdicate the functions of parliament, not to public opinion, but in order to conciliate the organs by which public opinion was expressed. He agreed with his hon. and learned friend, that there was much difficulty in definitions of prospective offences, and that too much solicitude about definition was apt to defeat its purpose, and he would rather leave the offence which it was the object of the bill to punish to be defined by circumstances and facts, than attempt to describe it too minutely. But it was one thing, whether a definition should be introduced in the original act of legislation; and quite another thing, whether it should be left out, 1548 with the knowledge that there it had once stood. It might be proper, and it would be safe, to refrain from definition in the first instance; but to strike out what had been once inserted, was not to leave the law in the same situation as if it had not been introduced, but to intimate by inference that those things, so left out, were not considered as crimes. He did not deny the superiority in many respects of his hon. and learned friend's definition. In point of length, it certainly was extremely superior. If they measured them by words or by sentences, by weight or tale, his hon. and learned friend's amendment was infinitely more voluminous than the clause which he was disposed to, displace. He was not sorry that it was so, nor was he supposing it a fault; but it was rather an awkward remedy for what his hon. and learned friend had considered as too complex and too extended. But, to prove his disposition to conciliate, he was willing to take all that was in the bill; and, to Together with that, a part of his hon. and learned friend's amendment. The only part which could be added to the bill from the amendment he would adopt, but he would not agree to disgrace what was in, the bill by displacing it. What was the expression in the bill proposed to be amended? "Any blasphemous libel, or any seditious libel, tending to bring; into hatred or contempt the person of his majesty, his heirs or successors, or the Regent, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament," &c. If he adopted his hon. and, learned friend's plan of conciliation—if he yielded to that manichean dread of the power of the press, this definition was, to be left out. Though he was sure that the press was supremely attached to the king, and that it had the most affectionate, respect for both Houses of Parliament; yet if, in deference to the power of the press, if from some unaccountable spirit, of conciliation, they left out this part of the bill, they would leave out the very best part of it. He was persuaded that the conductors of the power of the press would guard those sacred depositaries of constitutional authority with unrivalled zeal; that they would protect their rights with the utmost ability; that they would direct their proceedings with consummate wisdom. But the members of that House had some interest in this duty; they also had "done the state some service; they 1549 were bound by their oaths to protect the powers entrusted to them; and, highly as he valued the power of the press, he could not consent to surrender the share which parliament ought to have in the co-partnership. The legislature performed a part which was not unknown. Their powers were ascertained, their faculties were measured. They were not enveloped in clouds; they wielded not a force whose existence could be perceived only by its fearful effects. Their intentions were perceived; their words were heard; their proceedings were published. In a few hours it would be known from one end of the kingdom to the other, that he now discharged his duty at the hazard of owing the little reputation which belonged to him to the mercy which he would not condescend to supplicate. Yet he would not surrender to the guardianship of the press those principles which parliament was authorized and commanded to take to its peculiar care, and which it could not relinquish, without forfeiting its rank and character. He had no objection, however, to include in the bill that part of his hon. and learned friend's amendment which related to instigations to assassination. He was happy that his hon. and learned friend should thus have his share in securing that sober freedom, that temperate ardour of liberty which the bill was calculated to cherish, and which none was more anxious to promote or more capable of teaching others to reverence than his hon. and learned friend.
Lord Folkestone, said, that he ventured to address the committee with infinite disadvantage, after the splendid, succession of eloquence to which they had just listened. The right hon. gentleman had expressed his acquiescence in the first part of his hon. and learned friend's speech; in the latter part of that speech he must be excused by his hon. and learned friend for saying, that there appeared to be a little too much courting of the conductors of the daily press. He knew that his hon. and learned friend had no such intention. But that was, in any view of it, no argument for the dissent of the right hon. gentleman from the amendment. What was the real argument at issue? The amendment was offered as more applicable than the original passage in the bill to the purposes intended to be effected by the gentlemen on the other side and as leaving unaffected the daily press, which both his hon. and learned friend and the right hon. 1550 gentleman had agreed in calling an ally, in maintaining sound and rational principles against the noxious part of the press. Intimidation there was not, nor any thing that could be fairly construed into intimidation in his hon. and learned friend's speech. The right hon. gentleman, nevertheless, declared that he was ready to sacrifice himself to maintain the institutions of his country. What could have called for that gratuitous declaration of patriotic immolation he was at a loss to conceive, for he felt fully convinced that nothing had fallen from his right hon. and learned friend (sir J. Mackintosh) to call for the expression of such a determination. No sacrifice was required, or even alluded to; but if a sacrifice, even of life, in defence of their just rights and privileges, were required, every gentleman around him and on the other side would, he doubted not, make it with the same readiness as the right hon. gentleman. But the sacrifice was not called for. With respect to the question before the House, which was, whether the words "maliciously and advisedly" should, be inserted, not a syllable had been said by the right hon. gentleman. For his part, he could not help regretting that his hon. and learned friend had lent his hand to amend a bill which was so unconstitutional in its principles, and so grievous in its enactments. By this bill, a power was to be intrusted to the breast of the Court to make an order for seizing and carrying away from any persons, all copies of the libel on which a conviction, might have been obtained. This was a, most unjust and oppressive power. It might come out before two or three magistrates, before whom a conviction of libel might take place, that a third person, not in court, against whom there, was no charge, and who could have had no notice on the subject, had some copies of the libel. The magistrates might instantly sign a warrant by which constables or officers might go to his house, force their way into it and rummage all his property All this might be done to one with whom copies of the libel might have been left, designedly for a, malicious intent This bill, with all its novelties and all its cruelties, was left quite unexplained. No explanation had hitherto been offered. Explanation had been demanded by his hon. and learned friend behind him, in a manner that seemed so imperative, that he thought it could not have, been refused, and not withstanding his exprience of that 1551 House, he did conceive that it was impossible for them to have proceeded to agree to the bill without farther explanation. He wished to have it now explained, whether the individual who should be banished in terms of this law, was still liable to the obligation of allegiance? The language of the law upon the subject was, that allegiance and protection were mutual and co-extensive. Let them take the case of a banished man, who should become domiciled in a foreign country, with which this country might afterwards be at war. A conscription might then force him into arms against his native country. Found thus fighting against his country, not voluntarily, but by force, would he be liable to be hanged for high treason? But that would be the consequence, if the obligation to allegiance were not cut off by banishment. Explanation was probably refused, because the hon. and learned gentlemen opposite had not traced their own law to all its consequences. The editor of a newspaper was to be subject to this punishment, and liable to be sent to a foreign country. What stronger motive could exist to induce him to curry favour with a foreign power at war with his own country? Would he not act prudently in providing an asylum for himself by publishing statements and arguments favourable to the enemy of his country? There was an infinity of other objections to this ill-digested bill. A man might spend all his means in his defence, and how then could he be carried out of the country? The bill made no provision for conveying the party to any foreign country. Another grievous circumstance attached to that punishment was, the system which they were told, when the Alien bill was passed by that House, prevailed over the continent. It was there, as in England, in the power of the government to remove from the country, at a moment's notice, any foreigner whom they pleased. The good understanding, as it was termed, that existed between England and the continental countries, would operate perhaps in the further punishment of any individual condemned to banishment, who might thus be tossed from pillar to post without the possibility of redress. But a new light had broken in upon us; and the blots and flaws of the constitution were exposed to general observation and censure. The object of this measure, disguise it as they would, was to stop the progress of intelligence. This was preposterous and vain. 1552 Why should they not remove the blots and flaws which could neither be concealed nor defended, rather than manifest their folly by attempting to shut the eyes of the public?
§ Sir James Mackintoshsaid, he rose to recall the attention of the committee to the grounds of his amendment, from which they had been quite carried away by the magnificent speech of his right hon. friend, who on this occasion had delighted the committee by the union of all the splendor of eloquence with the specious and dexterous declamation in which he was eminently skilled. His right hon. friend had employed all his powers of imagination and skill, and artifice of representation (he would not add another syllable), to lead the minds of the committee from the argument of the question. His (sir J. Mackintosh's) province admitted not of the same use of ingenuity; and if it did, he could not hope to succeed in such a contest. His part was, not to indulge in the vivacity of invective, but, by a humble and plain defence, to recall the attention of the committee to the question before them. His part was, not to dazzle by the fascinations of eloquence, barren and unentertaining statements, and dry reasoning, being the only commodities he had to offer. His right hon. friend had dressed up an imaginary personage, whom he introduced into the House of Commons for the purpose of intimidation. This imaginary personage, so magnificently presented on the scene of that House, his right hon. friend had indeed most triumphantly destroyed and demolished. The ability with which his right hon. friend had accomplished this achievement, he certainly admired; or if the display produced any thing like regret in his mind, it was, that it should be thrown away in combating with a spectre which must soon have disappeared, and in destroying what from its nature must soon have destroyed itself. A feebler hand and a less vehement effort might have accomplished so unnecessary and so ignoble a task. His right hon. friend had, in one part of his speech, from his stores of panegyric, poured forth praises on the feeble efforts which he (sir J. Mackintosh) had made, while, in another, he had attacked with the force of his invective a part of the arguments which he had adduced to support his proposition. As in no part of his address to the House there had been sufficient merit to deserve eulogy, so in
†1553 no other had there been any cause for the severity with which the remainder had been treated. His right hon. friend had passed over the argumentative part of his speech in silence—a silence the more remarkable, because he had conceded, or seemed to concede, that he was almost disposed to yield to its force. This part he had passed over in silence, and he had recourse solely to the splendid force of declamatory invective, which he (sir J. Mackintosh) had listened to with a mind as unruffled as any in that House, and with as much personal unconcern as if he had not been alluded to. He now returned to his amendment, which rested not upon the strength of eloquence, but upon justice and truth. The first part of his argument was, that the evil to be remedied was confined to the delinquency of one class of writers. To this his right hon. friend agreed. Another part of his argument was, that another class of writers was exempt from any imputation of having any share in this delinquency. His right hon. friend here again agreed with him. When he had said, that one class of writers were thus free from any share in the delinquency, his right hon. friend could not suppose him to mean, that they were free from the imperfections of human nature, or from the errors into which the hurry of conducting a daily press must lead. The evil of the one class was to be remedied; the errors of the other were to be censured. Here again they were agreed. The inference then was, that while the first class required coercion by new laws, the other class required none. Two conclusions arose from this argument. The first conclusion was, that this clause was unjust, as it destroyed the salutary distinction between the innocent and the guilty, and confounded respectable persons with ruffians. The second conclusion was, that this clause was unnecessary, and extended to objects not within the scope of the law. This argument still remained unanswered. He thought it really unanswerable. Certain it was, that his right hon. friend had not answered it. But it had been said, that he surrendered the duties and the powers of that House—that he was for dispensing with the authority of parliament. Why was this charge brought against him? Was it because he thought it unjust and uncalled for to pass a law which should confound and mix together, in common reproach and dishonour most respectable and most mischievous men? 1554 Such charges would not alter his conviction, till strong arguments were opposed to his statements; and in this respect he was still unanswered. He was charged with threatening the House with he knew not what unknown power. He was charged with possessing lukewarm feelings towards the House. He was charged with flattering the public press, courting the favour of he knew not what conductors of public papers. He must, in justice to his own character, repel such insinuations. To rouse the pride of a popular assembly, to excite their indignation against imaginary encroachments, was an easy task, and a sure mode of obtaining sympathy and applause. To kindle the highest sentiments of pride and indignation in a popular assembly, jealous of its privileges, and tenacious of its rights, required but the slightest breath of air. It required but little talent and little address in managing such topics, to gain ready access to the sympathy and the feelings of a popular assembly like that House. Sympathy in guarding the constitution, zeal for privileges necessary for the due exercise of legislation, were, even in their worst state, so blended and mixed up with the best feelings, that they ought not to be wantonly excited or directed where they were not called for. He was the last man who would wish the House of Commons to become insensible to their privileges—to what he considered as an essential part of the bulwark of our liberties; and he had on all occasions exerted his humble powers in defence of those privileges. On that subject he had agreed with gentlemen from whom he differed on other subjects. In defence of the necessary and salutary privileges of the House of Commons, he was always ready to encounter the most violent insinuations or reproaches, and to expose himself to attack and danger, if danger should occur, in the defence of them. He viewed them as intimately connected with the best part of our constitution; and in the humble but honest effort he made to prevent an act of injustice and wanton insult, he had not apprehended that he laid himself open to any charge of indifference to their preservation. He thought that he had consulted every feeling of authority and of pride which belonged to the House. If it should be his lot to see their privileges really in danger, if he should have the misfortune to see a sacrifice really required in their defence; if he was destined to see them fall, he could say — 1555Iliaci cineres, et flamma extrema meorum; Testor, in occasu vestro, nec tela, nec ullas Vitavisse vices Danaum; et, si fata fuissent Ut caderem, meruisse manu.His right hon. friend, ought at least to have refuted the arguments opposed to him, after he had by means of incidental declamation secured partiality in his favour. If he had done so to, his satisfaction, he would have agreed with him that conciliation would be cowardice and timidity. Where, he begged the committee to reflect, where the cowardice or timidity was to be found on the present occasion. He recollected, indeed he could never forget, an expression used in that House by his right hon. friend, sir William Grant; whose sentiments indeed he always recollected and referred to with peculiar pleasure. Sir William Grant had said, when false or pretended timidity was pleaded in that House— "I am an enemy to all sorts of fear; but of all fears, the most foolish is the fear of being thought afraid." To that most foolish of all fears he ascribed the baseless fabric of his right hon. friend; for, splendid and magnificent as it was, it was without a base. He (sir J. Mackintosh), had urged as a reason for his amendment, the confusion of guilt and innocence, of meritorious respectability and flagitious crime, which this law would introduce. No reply had been made to this by his right hon. friend. All this he had quitted in his impatience to reach the splendor of declamation. This was the precept of the most celebrated poet and critic of antiquity—a precept which his right hon. friend had incorporated in his mind, as he had done all the wisdom and elegance of ancient literature——" quæDasperat tractata nitescere posse, relinquit.All his (sir James Mackintosh's) arguments his right hon. friend had forgotten, in his impatience to triumph in the opportunity of crushing an Ideal antagonist. He now came to the last topic of his right hon. friend's declamation; it was, that he had courted the daily press and threatened the House with the power and hostility of the press. He was sorry to be thought by his noble friend to have in some measure merited the imputation. He was sorry that his noble friend, who was such a model of independence—who was equally hostile against unfair influence from without and undue power 1556 exercised within those walls—who felt equal zeal against dangerous combinations of the people and degrading claims of power on the part of the Crown; he was sorry that such a model of independence should have blamed him. But his noble friend most naturally take alarm at the shadow of such a fault. Yet such a fault He was not conscious of having committed. He entreated the committee to recall to their recollection the argument which he had urged. The justification of the daily press was pact of his argument. What he had stated respecting it, was not so much in the Shape of eulogium as of fact. His argument would have been incomplete without such a fact. Having made out that this measure was uncalled for on the part of the daily press; having made out that its extension to them would be a confusion of the respectable with the atrocious, he had contended that, in addition to justice and humanity, motives of sound policy recommended the separation of the respectable from the dangerous. This was the whole of his argument—this the sole object of his speech. To say that he had held out a threat of the power of the press, was to misunderstand, or to misrepresent his language. He had indeed said, that its power had increased: he had represented this as the necessary result of the progress of improvement in society; he had represented it as naturally arising from the increase of knowledge and intelligence. Moral feeling had corresponded in progress and improvement, to the progress and improvement of intellect. The moral and intellectual qualities exhibited in the conduct of the press had acquired a power; and had become arrayed in a character which rendered the press infinitely more mighty and more beneficial than it had been in former times. This was not declamatory praise; it was the sober statement of historical fact. Upon what grounds could his right hon. friend found his objections to the conciliation of the power? It was friendly, it was respectable. There existed no reason why it should be feared or persecuted when conciliation towards the disturbed districts of the country had been mentioned the indignant report was "Are you afraid of them? They are in the hands of the enemy. They are to be subdued, not conciliated." Whatever might be the propriety of this style of reasoning he begged leave to ask the committee, whether it was no light objec- 1557 tion to an enactment that it tended to alienate the friendly and well-disposed? It was the part of a wise statesman to take a far prospective view of the dangers that might reasonably be apprehended, and to make judicious and provident arrangements for the well-being of society. It was his part to consult every distinct interest that might by possibility interrupt the harmony or endanger the safety of the community. This was the moral dignity and intellectual qualification of a wise and enlightened statesman. It was not from fear that conciliation was now recommended. Fear was a base and detestable motive. He would not disclaim its influence, for the man was degraded who even descended to disavow it. But prudence in avoiding insult, irritation, and injustice, was altogether distinct from fear. Respect for a respectable body in society was justice, as well as prudence. He could not, therefore, be convicted of the charges brought against him; he felt acquitted in his own consciousness; he felt assured that he was acquitted in the judgment of the committee. Neither could he be convinced of the incorrectness of his arguments, for he had received no answer. He had simply made an appeal to those maxims of wisdom under which governments prospered and empires became great; and he must once more repel the imputation of having addressed to the House of Commons any other than the fairest and most incontrovertible principles of legislation.
Mr. Canningsaid, that he would detain the committee but for a few moments. If ever he had risen with caution and apprehension, both as to the topic and as to the persons, whose arguments he had to combat, it was on the last occasion when he addressed them. He had been called on to do so by the nature of the speech which had been delivered by his hon. and learned friend. There were many members then in the House who, perhaps, had not been present when he last addressed the committee; but to those who were, he would appeal whether he had not correctly followed the statements of his hon. and learned friend. If he had not followed his hon. and learned friend throughout, he had, following his example in referring to the models of antiquity, commented upon his strong points, and upon those which had made most impression. If he had dwelt upon particular subjects, it was 1558 his hon. and learned friend who had set him the example. His hon. and learned friend had described a despot, and he (Mr. Canning) had naturally, therefore, abstracted the quality from the person, and alluded to despotism. His hon. and learned friend had introduced the topic of the power of the public press, its diffusion from one extremity of the universe to the other, the sacred and mystic manner in which its doctrines were propounded, and the overwhelming influence which it possessed, in a way that justified his (Mr. Canning's) impression, that his hon. and learned friend's object was, to create the impression which he had attributed to him. His hon. and learned friend had portrayed an individual who had for 40 years exercised a kind of despotic power over his fellow men,—who had, as it were, seated between the urns of Jove, dictated his oracles without control. If on this occasion he (Mr. Canning) should allude to the classics, his hon. and learned friend had set him the example, he might then say:
—Arcades ipsumCredunt se vidisse jovem; cum sæpe nigrantemÆgida concuteret dextra, nimbosque cieret.He was justified in the whole of the quotation, for his hon. friend had spoken of the clouds too in which this mighty being was enveloped: "Quis Deus, incertum est." But to proceed to the argument of his hon. and learned friend, he conceived that it was his wish to expunge a description of crime which the law ought to visit. Now, if this were agreed to, the bill might be abandoned altogether. It had been admitted by this, and decided by the other House, that such an enactment was necessary, and he could not admit the opinions of his hon. friend, without giving up the whole principle of the bill. In the course of the observations he had made, his argument was, that crime, and not persons, should be attacked; and he would attack the crime wherever it was to be met with. The description of individuals connected with the press, to whom his hon. and learned friend had alluded, were, like other men, liable to err, but when they did so to the violation of a law, they must take the consequences. Would it be wise in legislating upon a question of importance, embracing several descriptions of persons as objects, that some of them should be excluded, because they, less frequently, would become in- 1559 fractors of the law?—For himself, he saw no insuperable objection to the introduction of the words desired by his hon. and learned friend; but at a time when the fruitful growth of improper publications proved the magnitude of the dangers to be dreaded, why was a part of the press which none would deny could be converted into an engine of destruction, to be exempted from a law passed for the special purpose of restraining evils which were allowed to have derived their existence from the same machine? He would not object to the definition of the crime made by his hon. and learned friend if it could be introduced consistently with the enactments of the bill. At the same time let it not be understood, that he conceded for a moment that there ever were times in which the monarchy was in more danger, or the parliament in greater difficulty than the present. In conclusion he could not admit, that there ought to be any exception in the bill in favour of particular individuals. His hon. and learned friend had spoken of various kinds of fear. There was, according to his hon. and learned friend, a provident and salutary fear under which the legislature ought to enact its measures and to provide for futurity. But there was also another description of fear, which he (Mr. Canning) hoped the committee would avoid—he meant the fear excited by that fascination which hurried the victim into the jaws of its devourer.
§ Mr. Broughamadmitted the difficulty of taking the definition of his hon. And learned friend as to libel without the amendment, for one was inconsistent with the other. He would rather take the whole, or leave the bill as it now stood. His hon. and learned friend and the right hon. gentleman had certainly displayed very great eloquence; a considerable portion of which, however, had been expended in a kind of complimentary contest. In their episode, respecting each other they, to a by-stander, somewhat resembled two lovers who, after a quarrel agreed to meet and accommodate their differences. He certainly rather agreed with the observation of his noble friend that there was no necessity, as applied to the general argument, for, the introduction of part of what had fallen from his hon. and learned friend. Still however the argument of his hon. and learned friend was not (as he conceived it) that two classes of men should be distinguished, by the bill— 1560 for he had not maintained that all the daily writers were to be classed alike— but it was that this bill should not confound the innocent with the guilty. His hon. and learned friend had been misunderstood, if he were supposed to have said any one sentence in favour of intimidation of the House. He (Mr. Brougham) had been on all occasions, and would ever continue to be, a most strenuous advocate of the dignity and privileges of that House. He would be the first, if not the strongest against any attack upon either; but he had never understood his hon. and learned friend to make any such allusion, and if he had even supposed that he had so heard his hon. and learned friend, he should be strongly inclined to distrust the evidence of his own senses. Reverting to the amendment proposed, he would say, that it was extremely difficult to define the nature of such a crime as was contemplated by this bill. But he would ask why should we not content ourselves with what our ancestors had done with respect to seditious and blasphemous libels? Why not, as was done in the act of the 39th of the king, and in Mr. Fox's bill, go by the voce signatum. But here, by a particular definition, many cases were left out which ought to come under the operation of this act. Without going further into this part of the subject, he had a strong objection to the present bill, from the extraordinary power which it gave to the ministers of the Crown. In discussing a proposed law, if he could show that it conveyed a discretionary power dangerous to the subject, he had a right to assume that it might be abused. Whatever the motive of those who proposed the bill might be, it was not too much to assume the possibility that they might have successors disposed to oppress or persecute their enemies. What was the power which, under this bill, a secretary of state possessed? He would not suppose that the noble lord would wilfully abuse the power with which he was invested; but he could not make the same admission for those who might succeed him in his office of secretary of state for foreign affairs. This bill gave the power of banishment; but did the committee consider what might be the effect of that, punishment? The sovereigns of Europe were at this moment united by a sort of fraternal compact, the nature of which was, in most instances, only known to their subjects by the strictness with 1561 which it was enforced. Could it be supposed that any one of those sovereigns would suffer the subject of the other to remain in his dominions without a regular passport from his own country, or remain at all if he was known to have been an outcast from that country? Suppose another minister acting in the place of the noble lord wished to send a man banished by this bill to a particular place. Suppose he were to say "I will not indulge you by letting you reside in France, or gratify you by allowing you to pass to Italy," was there in such case any thing in the present bill to prevent him? The bill did not provide the party so banished with his expenses in leaving the kingdom. Would not its operation, then, be considered by many as worse than, or at least as bad as, transportation? The only place to which the convicted party might be sent, where perhaps he would be allowed to remain, would be Siberia; and there was nothing in this bill which would prevent his being sent thither. Under the name of banishment, that much severer punishment might be inflicted. But who were they who were most likely to come within the scope of this bill? Not the affluent man, who might—having written, and being convicted of one libel—say, "I will take warning; I will write no more:" no, but those who had no option; those who for their livelihood must continue to write and run the risk of a second conviction; for it was well known, that many of those who were liable to fall under the operation of the measure were rather in humble than in affluent circumstances. They were men who gained a livelihood by writing, and who could not give it over, even with all its terrors and responsibilities. To such a person the boon of the noble lord in substituting banishment for transportation would appear rather of an equivocal nature; for he might not be able to convey himself from the country, and even if he could do that, he might not be able to subsist in another. This was one strong objection which he had to the bill; but there was another which he begged to press upon the notice of the committee. The effect of it would be to send out of the country those political writers, who had so far transgressed the law as to come under the severities which it enacted: but let the committee consider what might be the consequence of such a line of policy. We should be sending them amongst our enemies! He did not mean 1562 to say that would be the case in the present pacific state of Europe. The nations of the continent were not now our enemies (and he hoped they would long continue on friendly terms with us), but they might not always continue so; and what would be the effect of sending amongst them such men, who to their peculiar habits, to strong, perhaps violent and criminal prejudices against the government, would then have added the desire of revenge for a supposed injustice done to them; would it not be natural to suppose that they would assist those nations, whether our rivals in peace, or our antagonists in war? This was not an imaginary case. Look to what had occurred in America. Who were those who had proved themselves, the most active, and efficient, as opposed to the interests of England? They were the Irish emigrants, who had been banished from their country at the period of the unfortunate rebellion. Let us look to France: who were those who had supported that country in its most determined efforts against us, who had conducted its newspapers, assisted in its wars, who were colonels of brigades, who had headed troops of spies, to ascertain our most secret movements, and as he had said (and perhaps that was the worst thing which they had effected against this country) who had edited newspapers, inflaming the public minds of other nations against us? Who were these men? They were those whom measures of extreme severity, called for perhaps by some circumstances and in some cases, had banished from their country. Such were the description of men whom this bill would be most likely to affect; and should we not take into consideration, the power and the disposition which, after being so banished, they would have to injure us? The experience of the past, justified him in saying that this was no visionary danger. On the subject of the general licentiousness of the press, which had been held up as a main ground for the present measure, he lamented the absence of the hon. member for Galway, who in general edified and entertained the House so much on all subjects, whether grave or gay. The hon. member had told them to look at the horrid nature of the libels that issued from the press—that of a banker, for instance, it might be told that 400,000l. of paper was out against him, and that a pastry cook might be reported to have made patties of the flesh of disentombed 1563 infants, to the ruin of the poor banker, and to the irretrievable disgrace of the unhappy pastry cook. But what would the hon. member say to this bill, which left society still exposed to their infliction? So that on the morrow of the passing of the bill, the banker might, in the natural progress of exaggeration, be accused of having four millions of paper outstanding, and the wicked libeller might assert that the pastry cook made his patties of something worse than the flesh of infants. The bill had no additional security in it for the prevention of libels of this nature. The general licentiousness of the press was not, therefore, an argument in favour of this measure. He seriously felt, that in a bill which professed to purify and correct the press, they altogether omitted the consideration of, if not the blackest, at least not the lightest of its faults. In no period of the history of this country had a more foul and intolerable system of spoliation against private character been carried on than during the last 10 or 12 years. There seemed to be in the public a morbid appetite for those base cates, and there were never wanting those who pandered to the most unnatural propensities. He did not so much blame many of the conductors of some of those publications (though he thought they were without excuse), as he did those by whom they were patronised. This bill would not, however, affect such slanderers as those he had described. Two publications of this nature he had heard of; one of them was named the Satirist, and the other the Scourge; the one of high Tory principles, and the other, not indeed supporting the Whigs, but being in systematic and violent opposition to all the measures of government. The latter of these publications he had never read a line of, but the other (The Satirist) he had been obliged, in the discharge of his professional duty, to look over. He thought it as disgraceful and disgusting an exhibition of low and scurrilous malignity as had ever fallen under his notice. It not only attacked the public principles of those who were of different political sentiments from those which it seemed to espouse, but went into the private history of the most private characters. On one occasion it had entered into the bed-room of a most amiable individual, the ornament of the peerage, and attacked his character with the foulest slanders, which were conveyed to those who were unable to read them by a colour- 1564 ed caricature. Yet, because the editor of that base publication had lent a violent, though injurious support to the measures of government, he was sent out (not banished) but sent out to represent the government, as a consul in New England too, a place where purity of character was esteemed as much as in any part of the world! In the noble lord who had the immediate appointment to those offices, this was no doubt an act of indiscretion or inadvertency, but it was one which he much deplored and marvelled at. An hon. member had on a recent occasion expressed a distaste at the progress of education in this country, as if it were inconsistent with peace and liberty. Although, in answer to what had been impliedly said by the right hon. member for the university of Oxford as to the alternative of our manufactures or the constitution, he would reply— "The constitution beyond all doubt:" yet if it were put to him, whether we should give up the constitution, or that education from which he conceived all moral improvement was derived, he would say, "Perish the constitution, if it can be preserved only at the expense of all that ennobles or improves the human mind." If the progress of that education, which raised man from a rude, savage, and debased state (for they were all the same) to the present happy condition of a civilized being, were inconsistent with a constitutional monarchy, he would rather live under a government less constitutional, than see the mass of the people again brutalized and degraded. He would prefer education and its effects, even without liberty, to the enjoyment of liberty in the darkness of savage barbarism; but God forbid that such an alternative should ever be proposed. He differed toto cœlo from the hon. gentleman, and conceived that liberty and peaceful habits, were not only not inconsistent with knowledge, but that they were intimately and closely allied with each other. And as the freedom of the country had been the parent of civilization and of every mental improvement, so it would be monstrous and unnatural to suppose, that it was only by the destruction of that parent that the offspring could be preserved. Education, while it was the friend of every liberal sentiment, was in his opinion the truest security for the attachment of the people to the Jaws and constitution.
Lord Castlereaghregretted with the 1565 hon. and learned gentleman that the press should be made the vehicle of attacks on private character, but he thought the allusion to this point had no reference to the question before the committee. The hon. and learned gentleman had charged him with an indiscreet use of his patronage in the appointment of Mr. Manners to the situation which he now held, but he was surprised the hon. and learned gentleman should be ignorant of the circumstances of the case; for in answer to a question put by him on a former occasion, he had stated, that at the time Mr. Manners was so appointed, he (lord C.) did not know that he had been connected with a publication of such a nature. The individual mentioned was recommended to him by a friend, as a proper person to fill the situation to which he had been appointed.
§ Mr. Broughamsaid, it was not to the appointment he had objected, but to the principle of continuing him after the fact of his connexion with the work in question was known.
Lord Castlereaghsaid, that that fact was not known until after the appointment appeared in the Gazette, and he did not conceive that any grounds had been adduced on which he ought to have advised his royal highness to remove him.
§ Mr. Scarlettobserved, that the ground of the introduction of the present bill was to put down the blasphemy and sedition which issued from a portion of the press. But it went not to that alone, for it confounded the innocent with the guilty, and equally condemned that portion which was respectable, with the vilest and most disreputable part. It classed the innocent man, who by accident was led to the commission of crime, with the deliberate and malignant libeller. The amendment of his learned friend would make this just and necessary distinction. The bill comprised every mode of publication. But the law of libel, as it already existed, not only went to punish the writer of an offensive article, but even all those who were, in a particular way, connected with the work. But as this did not apply alone to the diurnal press, but to almost every species of publication, he would ask, why not define what the libel was? It was said to be "any thing tending to bring his majesty's government into contempt." Now, as the acts of the government were ascribed to, and looked upon as the acts of ministers, the libel would not of course 1566 extend to members enjoying the full freedom of speech, and speaking in that House; but this would not be an excuse in a court of law, for there a man might be charged for similar expression of opinion which had only occurred in that boldness of discussion which, he admitted, existed in the present day: he might have no intention to bring his majesty's government into contempt, and yet become liable to all the penalties of the present bill. The publisher, too, however innocent, would be subject to the like penalty. But not only did the act extend to every thing tending to bring his majesty's government, but also "either House of Parliament," into contempt. So that, if a man hazarded an opinion as to the construction of the House, or if he said a word against the propriety of a small place with few inhabitants returning members to parliament, as not being consistent with a popular representation, he might be construed to intend to bring the House of Commons into contempt. He remembered the case of the Walcheren expedition, which he knew was condemned by almost every one who spoke of it. He had not the honour of a seat in parliament at that time, but he was as capable of knowing what was the public opinion on the subject as the hon. member for Corfe-Castle could possibly be from that portion of the public which he represented. But would it be maintained, that the man who should state what he thought on that subject, and who should condemn the policy of that measure, though sanctioned by both Houses of Parliament, meant to bring those Houses into contempt? He contended that if such a principle were adopted, it would destroy every thing like free discussion. The learned gentleman next adverted to the penalty of banishment, and condemned the bill as leaving it to the discretion of the judges whether it should be permanent or not. At the present day, when the judges were vested with discretionary power in many cases, they found it difficult so to apportion the punishment as not to appear to Jean too much to the side of lenity or of severity.
§ Sir J. Mackintoshexpressed his surprise that the words "maliciously and advisedly" should be omitted in this bill, since they were inserted in the act of the 36th of the king.
The Attorney Generalobserved, that this bill did not propose to create any 1567 new offence, but merely to inflict an accumulated punishment upon an offence already known to our law. He therefore objected to the introduction of the word "malicious" in the clause, as unnecessary.
§ The amendment was negatived.
The Attorney Generalsaid, that the clause enacting the penalty of banishment on the commission of a second offence, as it now stood, was capable of being construed retrospectively; to obviate which, he should propose to introduce the words, "after the passing of this act."—The amendment was agreed to; after which he proposed, in order to avoid the consequences which the law attached to banishment for life, that the judge should be authorized to banish the delinquent for such term of years as to him might seem fit.
§ Mr. Broughamsuggested that the discretion of the judge should not exceed seven years.
§ Sir J. Mackintoshobserved, that if his hon. friend's suggestion were not attended to, it must be meant to do that indirectly which it was not thought expedient to do directly—banishing a man for a period of years more than equal to his probable life; and such a mode of proceeding could not be too strongly deprecated, as inconsistent with the openness and dignity of the English law.
The Attorney Generalavowed that it was not intended to abandon the principle of banishment for life in cases of aggravated guilt.
Lord Castlereaghsubmitted in the case of Mr. Carlile, who, in the face of the courts of the country, thought proper, after conviction, to persevere in selling the libels to which that conviction applied, whether on the second conviction of such a person it would be seemly or right to allow him to remain in the country?
§ Mr. G. Lambbegged those who defended this clause, on the ground that former statutes had authorized banishment, to reflect on the circumstances under which those statutes had been enacted. The 39th Eliz. had certainly introduced the punishment of banishment; but it had substituted that punishment for others of the most degrading kind. The class of offenders to whom that statute applied were, before its enactment, liable to be placed in the stocks, to have their ears cut off, to be branded on the forehead with the letter C, and to be made slaves for 1568 two years. These ignominious punishments were found insufficient to check the crimes of the persons who were subjected to them, and therefore they were abolished, and the severer penalty of banishment was resorted to. This showed what opinion the legislators of Elizabeth's time entertained of the punishment which the ministers of the present day thought so mild.
§ The amendment was agreed to. On the question "That the clause so amended stand part of the bill," the committee divided: Ayes 109. Noes 30. Majority 79.
| List of the Minority. | |
| Bennet, hon. H. G. | Lamb, hon. G. |
| Brougham, H. | M'Leod, R. |
| Beaumont, J. W. | Mackintosh, sir J. |
| Byng, G. | Martin, John. |
| Calcraft, J. | Moore, Peter. |
| Compton, lord | Philips, G. |
| Denman, T. | Pringle, J. |
| Davies, T. H | Ricardo, D. |
| Ellice, Ed. | Robarts, A. |
| Ebrington, Visc. | Scarlett, James |
| Fitzgerald, Ld. W. | Smith, W. |
| Fleming, John | Webster, sir G. |
| Folkestone, lord | Wilson, sir Robt. |
| Grant, J. P. | Wood, alderman |
| Graham, J.R.G. | TELLER. |
| Hume, Jos. | Bernal, Ralph |
| Kinnaird, hon. D. |
§ Mr. Alderman Heygatesaid, that he approved of the measure because he believed it to be necessary; but as the causes which required it were, in his opinion, of a temporary nature, the remedy applied to the evil should not be permanent. This measure might be tried for three years, and at the end of that period it might be renewed, if circumstances should then require its continuance. But he begged the House to recollect, that if they passed this as a permanent measure, it could not be repealed without the concurrence of the other House of Parliament. He therefore moved for leave to bring up a clause for limiting the duration of the bill for three years.
§ The motion was seconded by Mr. Denman, opposed by lord Castlereagh, and negatived.