§ Mr. James
begged to call the attention of the House to a violation, as it seemed to him, of the privilege of its members. There was a gentleman confined in the gaol of Lancaster, who had terrified government by attending a reform meeting in 1819, whose letters, from prison, to him (Mr. James) had been broken open; and his letters to that gentleman had experienced a similar treatment; one letter, indeed, had been withheld altogether; and a copy only delivered in its place. Petitions forwarded to be laid before the House had shared the same fate with other communications; and, strange as the decisions of Parliament had been, it would hardly sanction so gross a proceeding. Upon the effect of the practice it could not be necessary to say a word. The most signal injustice—the most atrocious cruelty—might be committed in prisons, under the operation of such a system, and no means of complaint would be open to the sufferer. It might be urged, perhaps, that prisons were visited by magistrates, and that to those magistrates, if necessary, complaints might be addressed; but, let it be remembered that in one gaol at least (Ilchester), cruelty and torture had been inflicted upon prisoners, notwithstanding the visits of such appointed magistrates; and that gentlemen had risen in the House to eulogize the character of the manager of that institution, unconscious of the conduct of the man of whom they were speaking. As far as he had been able to learn, this inquisitorial practice of opening letters had originated in 'the wish of some Lancashire magistrates to pry into the secrets of the advocates of parliamentary reform. Inquiry being made into the legality of the course, those magistrates laid a case before counsel, and obtained an opinion, that the proceeding was lawful: they then, from having merely desired the gaoler to open certain letters, added a formal regulation to the rules of the prison, that all persons confined for peculiar offences should be subject to an unqualified inspection of their correspondence. Now, that such an order was contrary to English law, he had no doubt. The 9th of Anne, commonly called the Post-office act, declared that no person should presume to open a letter unless by 645 warrant from a secretary of state; and in support of that enactment might be quoted the circular of the late secretary for the home department, dated 9th of November, 1814, decidedly stating to gaolers, that such an act was not warranted by law. The proceeding, he contended, was in direct violation of that clause in the Bill of Rights, which said that the law of the land should not be dispensed with, unless by the authority of parliament. He knew that some reliance had been placed upon the act of the 32nd George 2nd; but he could find nothing in that act to justify a magistrate in doing that which was contrary to law. That act referred to persons who were imprisoned for debt. Its preamble set out with recognizing the hardships to which persons so imprisoned were sometimes exposed by the oppression of gaolers, and it enacted that proper rules should be made for the regulation of persons imprisoned; but, though certainly the letter of the act referred to persons imprisoned for debt, yet the spirit of it was humane, and it went to alleviate, not exasperate, the sufferings of any class of prisoners. But before those regulations were made, as well as since, the letters of prisoners were opened in this prison, which showed how little respect there was for the law, by those who thought it for their interest to violate it. This, he believed he was safe in saying, was a practice unknown in any other gaol in the kingdom. It was not practised at Ilchester gaol, even towards Mr. Hunt, whom the attorney general had described as guilty of a crime little short of high treason, but whom he (Mr. James) would always consider as severely persecuted; for he would maintain that he had rendered great services to the cause of humanity, in the recent investigation, to which his exertions had contributed; but even in the case of Mr. Hunt, the magistrates of Somerset had not made a regulation by which his letters were to be subjected to inspection—a regulation which he should ever think most inquisitorial and unjust. Whatever opinions might be held on the subject elsewhere, he would say, that the practice was illegal; and in support of his opinion, he had the authority of a great politician and an able lawyer, whose name he was sure would carry great weight with the House. He alluded to the late sir S. Romilly. That able man, in presenting, in the year 1812, a petition from a prisoner confined in Lincoln gaol, 646 complaining of having his letters opened, had stated, that he knew no statute law which authorized such a practice, and that certainly no such right existed by common law. He had stated as a lawyer; that the magistrates had no such power. They had no right to interfere with the prisoners. They were in the custody of the high sheriff, whose duty it was, not merely to precede the judges of assize, with men bearing white staves, and others sounding trumpets, but to attend to and provide for the comforts of the prisoners in his gaol; for they were in his custody, and not in that of the magistrates. This was the opinion of sir S. Romilly; and, fortified with that opinion, he contended that he was fully borne out in describing the conduct he had alluded to as illegal. But, if it should be contended that the 32nd of George 2nd gave the power in question, the sooner it was repealed the better. As to the question whether this was a breach of privilege, it was at first his intention to have brought the matter before a court of law; and he was satisfied that before an impartial judge, and any twelve honest men, he should have got a verdict; but when he heard from so many excellent authorities, that the matter was a violation of the privileges of the House, be felt that he should not be discharging his duty if he did not bring the subject before it, satisfied that in supporting the privileges of that House he was also maintaining those of the people. The hon. member concluded by moving, "That it is the opinion of this House, that any person breaking open, detaining, or suppressing, any letter or letters addressed by or to Members of this House, is guilty of a direct breach of the privileges of this House."
§ Lord Stanley
did not see on what ground the motion for declaring the opening of a letter from a prisoner to a member of parliament a breach of their privileges, could be sustained. A similar question had been started last year, and referred to a committee of privileges, and he had never heard that they felt it incumbent upon them to bring the subject forward. That the practice complained of would, under some circumstances, amount to a breach of moral justice between man and man, no one could deny; but there were limits to the privileges due to letters, and when he found that even the judges of the land, were strongly in favour of the practice complained of, he could not think that there were sufficient 647 grounds for assuming that a breach of privilege had been committed. One of the rules ordered, that the keeper of the gaol should examine all correspondence carried on by prisoners on the Crown side, and not forward any letter which contained improper matter without showing it to the chaplain or one of the visiting magistrates. When the letter was submitted to the proper persons, if the letter came to a prisoner, he was sent for, and the unexceptionable parts were read to him; if the letter was written by a prisoner, he was told what were the exceptionable parts, and had the liberty of rewriting that which was not offensive. This rule was ordered by Mr. Justice Bayley, and he believed was in the hand-writing of that learned judge himself; and the whole of the rules were sanctioned by Mr. Justice Bayley and Mr. Justice Park. Therefore, upon a general view of the question, whether the gaoler was justified in opening the hon. member's letter or not, he firmly believed that he would not have done his duty if he had not examined its contents. Whether the mere fact of the frank of a member of parliament went to alter the operation of the prison rules, was a question which others might be more able to determine; but, for his own part, he certainly did not think it did. How was it possible for members always to know what their franks contained? They might become the means of conveying matter the most improper in its nature, and dangerous in its consequences. Upon the hon. member's own showing, he thought there was nothing in the present case which called for the interference of the House.
Mr. Secretary Peel
observed, that if he understood the hon. mover, his object was, to establish two propositions; first, that the opening of a letter franked by him was illegal; and secondly, that it was a breach of the privileges of the House. If he should be able to disprove both these points, he apprehended there would be an end of the hon. gentleman's case. Before he proceeded with his argument on the first point, he could not but express his surprise at the opinion of a learned gentleman (Mr. Brougham), on a former evening, as to the opening of letters sent by convicts on board the hulks; and he thought that, on a little more mature reflection, the learned gentleman would not himself persist in the opinion then given. It would not be denied, that 648 by far the greater portion of the persons detained on board the hulks were civilly lead, possessed no civil rights, and there fore that the government would be justified, not only in ordering the inspection of heir letters, but in prohibiting all communication with them. However, the Proposition of the hon. member this night was a different question. It went to show that a certain regulation for the better government of the gaol of Lancaster, which had been sanctioned by his (Mr. Peel's) predecessor in office, was in its operation illegal. Now, he would show the contrary. What was the nature of the regulations of Lancaster gaol? Here the right hon. gentleman repeated the statement given by lord Stanley, as to the authorities by which the regulations were sanctioned. The first impression of the House, after hearing such authority as that of two judges of the land sanctioning those regulations, should be, he imagined, a presumption that they at least were not illegal. The hon. member had referred to the 32nd of Geo. 2, but he carefully left out of his view the 31st of Geo 3. By that act it was enacted, that fit and proper regulations should be drawn up for the better government of gaols and other places of confinement, in England and Wales; and it added, that those regulations should be drawn up by the same authorities as those mentioned in the 32nd Geo. 2. And who were those authorities? The magistrates of the counties. It further added, that the regulations to which they might come should have force, when sanctioned by the judges of assize, who were authorized to revise them. This was done in the case of Lancaster gaol. The magistrates drew up and agreed to certain regulations for the better government of the county gaol. These were submitted to the judges, by whom they were examined, and, with some alterations, sanctioned and approved. Would it, after this, be said, that they were illegal? He should be wantonly trespassing on the time of the House, if he dwelt longer on the question of legality. Supposing it, then, admitted to him, that this regulation was a legal one, the next question was, whether the exercise of the rule was, in the case alluded to, a breach of the privilege of parliament. Now, if parliament sanctioned the enactment or the rule, he could not see any thing in the case of a member of parliament which should exempt his letters from being opened, where that was war- 649 ranted by the law of the land. Now, taking it as granted, for the sake of the argument, that the view which he took of the construction of the act was a legal one, upon what did the authority of the regulations rest? Here they had it, that the House of Commons, one branch of the legislature, had declared, by a bill which was passed into a law by the concurrence of the two other branches, that certain regulations for the government of gaols and other places of confinement should be binding, when sanctioned by the authorities there specified, Would it, then, be maintained, that after thus sanctioning such rules, without any reservation as to their own privileges, such exemption now existed? He contended, that where the authority was given, as in this case, he maintained it had been given, it could not be revoked except by another act; and until that act was passed, any regulation under the former would not amount to a breach of privilege. The attention of parliament had formerly been called to the question of privilege, with reference to the letters of members; but, before he proceeded with that, he would make a few remarks on the subject of a letter sent by lord Sidmouth to the gaoler of Gloucester gaol, on the subject of opening letters addressed to prisoners. The letter was written after a complaint made to the Lords on the part of a debtor, and a person accused of a misdemeanor, but not tried, that letters addressed to them had been opened by the gaoler. Lord Sid-mouth, after consulting with the law officers of the Crown, sent the letter in which it was said, that a future regulation would apply to "felons and fines." Now he was satisfied that the word "felons" here was a mistake for the word "debtors." How the mistake occurred, whether in the copying or printing, he could not say; but of this he had no doubt, that "debtors" should have been mentioned and not "felons." He had just said, that the attention of parliament had been formerly called to this subject. In the year 1735, a complaint was made, that letters addressed to members had been opened; and that postage was claimed, but this complaint referred to letters put into the post, and in that case there could be no doubt that it would be a gross breach of privilege. But, was that a case at all in point? was it in any way analogous to regulations made by magistrates to prevent a letter being put into the post? 650 He maintained it was not. The House of Commons never considered that they were exempt from the operation of the law. They resolved on that occasion, that it would be a gross breach of privilege for any agent of the post-office to open a letter of a member of parliament, except by a warrant of a secretary of state. Thus they clearly recognized, that in cases where it might be necessary for a secretary of state to order the opening of a letter, their own privilege was not reserved. He was satisfied that the same feelings would prevail here, and that the House would not claim any privilege which would interfere with the criminal justice of the country. The opinion of Mr. Justice Blackstone was, that the privilege of a member of parliament did not extend to exemption from arrest, in cases of indictment. All the civil rights and exemptions which they had formerly claimed were gone, except that of the freedom of their person in civil cases, and the freedom of their letters. Where the regulations alluded to were authorized by law, there was no presumption of such an unlimited correspondence in any way as could have the effect of revoking these regulations. Whatever right of personal communication a magistrate might have with prisoners, a member of parliament, as such, had none: he had no right to insist upon such communication, but certainly all correspondence should be controlled by the regulations which were necessary for the discipline and proper management of the prison. Under all the circumstances, he saw no ground for the interference of the House, and would therefore conclude by moving the previous question.
said, that if he understood the right hon. gentleman right, he had laid it down as the law of the land, that magistrates, when their regulations were sanctioned by judges, had a right to legislate for gaols, and that they could not only enforce, but aggravate punishments, by placing persons in solitary confinement. Now, the magistrates might make regulations, and the judges assent to them; but such regulations could only relate to the hours of labour and of diet, and such matters. The magistrates might take care that the prisoners had all the advantages consistent with their situation and sentence, but beyond that they had no power at all. He would put it to the House, whether a judge had a right to increase the term of 651 a sentence from one year to five, and solitary imprisonment? The act referred to by the right hon. gentleman was a penitentiary act, and was not applicable to gaols in general. But, if the magistrates had a right to legislate for the discipline of prisons, then there was an end to all the labours of their committees. In the case in question, the letter was addressed not to a felon but a fine; so that the construction of the right hon. gentleman would not apply to it, and consequently the opening of it was an illegal act. On this subject he would refer the House to the report of the committee in 1735. The first resolution of that committee declared that it was the privilege of members, that letters sent by or to them, should pass free of postage. The object of this privilege was evidently not for the purpose of saving two-pence or three-pence, or seven-pence, but because it was essential that members should have a free and unrestrained communication, not only with their constituents, but with the people at large: The next resolution of the committee was, that it was a high breach of the privileges of parliament for any postmaster to open any letter sent from or to a member, unless under a special warrant signed by the secretary of state;—not a general order, such as that which had been given on a recent occasion. One of the principal objects of this privilege was, to facilitate the knowledge, and consequently the redress of grievances. And in what place was the existence of grievance more to be apprehended than in gaols? Who that knew the efforts that had been making during the last eight or ten years to improve the condition of our gaols, and compared their present state with their state before that period, but must feel that grievances without end must have existed in gaols; and therefore that it never could have been intended by the legislature that all complaints proceeding from gaols and addressed to members of parliament should be interrupted and suppressed? The present was a signal case of improper interference, for his hon. friend had written to the gaoler to tell him that the letter was from himself. He was not surprised that the right hon. gentleman had been apprehensive of meeting this motion with a direct negative, and had preferred the previous question; but he was sure that his hon. friend had done good in bringing the subject forward, and that the discussion of it would cause the correction of a great abuse.
The Attorney General
said, that though he was fully prepared to admit, that neither the magistrates nor the gaoler had a right to increase the punishment of any individual beyond the degree mentioned in the sentence of the court, still he was prepared to argue that they had a right to make such regulations as they thought proper for the internal government of the prison, liable, however, to the subsequent confirmation or rejection of the judges of the assize. Now, a set of regulations having been agreed to by the magistrates of Lancashire, and subsequently approved of by the judges, it became the duty of the gaoler implicitly to obey them. Indeed, the gaoler would have been guilty of a gross dereliction of his duty, if he had obeyed the hint given him in the letter of the hon. member for Carlisle, and had refrained from opening the letter sent to the prisoner under his custody. In the, case of the Gloucester gaoler, he took upon himself to stop the letters of prisoners, without orders from magistrates. The letter of lord Sidmouth written upon that occasion, was not a circular. It was transcribed by some of the magistrates of Somerset, and afterwards entered upon the journals of Ilchester gaol, where Hunt found it, and supposed it to have been a circular. Would any member say, that he had a right to enter into any gaol in the kingdom, in order to hold communication with those confined in it. Now if hon. members had not a right to communicate personally with all persons confined in gaol, how could they have a right to communicate with them in all cases by letter? As to a breach of privilege, he was quite confident that none had been Committed.
contended, that the absence of all exceptions in the statutes which had been quoted, saving the privileges of members, was a proof that it was not supposed that the general rule, by which those privileges were secured to them, was affected. If this privilege were not-maintained, cases of great severity might exist in prisons, which would never be known to the world. It would be far better to suffer the danger and inconvenience of a solitary instance of an improper use of the privilege, than the much greater danger and inconvenience of preventing acts of oppression from being brought to light. In his opinion, there ought always to be the most free mad unrestrained communication between 653 the people and their representatives, under whatever circumstances the former might be placed.
§ Sir R. Wilson
trusted, that parliament would not allow its privileges to be got rid of by the regulations of any set of magistrates. He was no great stickler for precedent; but he had found one peculiarly applicable to the matter before the House. In the first year of William and Mary, it was resolved by the House, that the breaking open a letter sent by, or directed to, one of its members, was a gross infringement of the privileges of parliament. After such a resolution, there could be no doubt of a breach of privilege having been committed in the present instance. When hon. members read the report of the commissioners on the state of Ilchester gaol, they would discover an additional reason for not allowing the letters of prisoners to be intercepted; for they would see, that there was no longer any great confidence to be placed either in gaolers or in visiting magistrates.
maintained, that neither a breach of privilege nor of the law of the land had been committed. That the law of the land had not been infringed, was clear from the act of queen Anne, on which so much stress had been already laid. That the privileges of the House had not been violated, was also evident from this—that the resolutions to which allusions had been made only referred to the delivery of letters by the post. With regard to the resolution of 1689, the circumstances which had given rise to it ought to be taken into consideration. The House had come to that resolution in consequence of the governor of Hull having seized upon the mail bag, and opened all the letters it contained, among which were some written to and by members of parliament. Now, it ought to be recollected that this event had occurred shortly after the Revolution, at a time of great public alarm and confusion; and that, though the House had come to such a resolution as the hon. member for Southwark had described, it had not inflicted any punishment upon the offender. Indeed, the House was bound to consider, in reference to the present question of privilege, what were the powers of magistrates and gaolers before the acts of George 2nd and George 3rd. Before that time they had the power of adopting all such regulations as appeared to them 654 necessary for the safe custody of their prisoners. The judges could give no connexion or relative of the prisoner an order of admission into the gaol: all that they could do was, to recommend to the gaoler to allow such and such a person admittance; advising him at the same time to take all due care that the prisoner did not escape. They had even the power, cruel and odious as it was, of placing individuals in solitary confinement; and having such power, was it likely that they would not have the power of intercepting their correspondence? Indeed, it appeared to him that nothing might be more necessary than such a power: for by means of it, a prisoner's intention to escape or to give information to his accomplices might be effected; nay, to put an extreme case, poison might be -sent to a prisoner in a letter to enable him to evade the execution of the law; and certainly against such a catastrophe it was the duty of the gaoler, if possible, to provide. He must see evidence of much greater abuse than appeared in the present case, before he could consent to interfere.
§ Mr. Brougham
begged to make a few observations on what had just fallen from the right hon. gentleman. He confessed he had been anxious to hear what could be said by the right hon. gentleman, well known formerly on his side of the House, and now he trusted to be as well known on the other side of the House, as the strict and vigilant guardian of the privileges of parliament. Since he had heard the right hon. gentleman, however, instead of being weakened, he had been strengthened in his opinion on the subject; as he knew that he had now heard all that could be urged by learning or legal ingenuity. In the first place, he must protest against the doctrine of the right hon. secretary of state, as to that which ought to be considered the test and limitation of the privileges of parliament; namely, that that privilege did not interfere with any act done legally by any established authority; that if, for example, the justices of the session, sanctioned by two of the judges, were empowered by law to make certain regulations for the conduct of gaolers, those regulations were to ride over the privileges of parliament; although there was nothing in the act by which that power was conferred respecting those privileges, except the omission of any clause by which they 655 were saved. Such did not appear to him (Mr. B.) to be a sound construction of the statute. The sound construction was, that nothing in the statute should infringe the privileges of that House. The sound construction of the statute was, that if the two things could stand together—if the regulations could be inforced, and the privileges of parliament maintained, it was well; but if not, that as those privileges were not expressly taken away by the statute, they must be considered as untouched, and not liable to infringement. For to what a monstrous doctrine would the right hon. secretary's argument lead! According to the right hon. secretary, the bench of justices would have nothing to do but to obtain the sanction of two of the judges, and they might establish regulations involving the grossest violations of the privileges of that House. In such a case, the right hon. secretary would exclaim, "Oh, but this is no breach of privilege; for by the act, the magistrates are authorised, with the sanction of two of the judges, to make any orders they please, and the privileges of the House are not saved in the act." Now, the sound doctrine, as he (Mr. B.) contended, was directly the reverse of this. The sound doctrine was, that, unless the privileges were expressly waved by the statute, nothing the magistrates could do should be allowed to infringe them; and, therefore, he should always read any order of the magistrates, with an exception, saving the privileges of parliament, which the statute gave them no right to violate.—Another strange doctrine which had been held was, that the privilege of the House, with respect to letters, went only as far as their delivery from the post office. But it appeared from the resolution of 1735, and from the history of the proceedings of those times, that the complaint did not extend to the post-office alone. He should like to know what was the peculiar nature of the post-office, which could confine the privilege of parliament to all letters which passed through it. If it was a breach of privilege to open member's letters in the post office, why not in other places also? The resolutions must in substance and in spirit mean this—that all communications between members should be free and unrestrained—that the doors of parliament should be opened to all complaints on the part of the people—that the utmost confidence should exist between the House and the 656 country. But this could not be done, if any steps were taken (he cared not whether by a sheriff, a gaoler, a postmaster, or what other public functionary), to interrupt or stop this wholesome and salutary communication. If any thing had been wanting to support this part of the argument, it had been fully supplied by the president of the board of Control (Mr. Wynn). The right hon. gentleman had alluded to the conduct of the governor of Hull, in sending for the bags and opening the letters. Now, in that case, the complaint was made by the deputy post-master, that the said colonel had opened and embezzled the letters of the king's subjects, to the destruction of the trade of the place, and to the injury of several merchants, and amongst others, many members of parliament who lived near the place. Let it be observed, that here was no complaint of breach of privilege on the part of the members alluded to.—Now the first complaint of breach of privilege was brought, not against, but by a post-master, and against a military officer. It would be for the gentlemen opposite to tell the House by what magic it was, that the privilege of parliament was to be preserved in those letters which passed through the post, but that, in the event of their being opened by a gaoler or other person after delivery, such privilege was to be done away with. But they were told by a right hon. member, that this privilege was liable to abuse. To be sure it was; and so was every other privilege; but was that an argument why it should be abolished? Where was there any privilege affording a greater opportunity of abuse than that which protected members from arrest for debt? This privilege had been abused to an extent, that exceeded all comparison with the present question. He himself was acquainted with one case. It was that of a member, not of the present, but a former parliament, who was deeply indebted to many individuals, who (notwithstanding that he possessed ample property to pay his debts) were ruined by the shelter which his privilege afforded him. For when the creditors proceeded against his property, which they thought they could reach, though his person was safe, be made it over to a relation in trust, so that it also was protected; and the creditors were ultimately sent to that prison which ought to have been the destination of him who had made this fraudu- 657 lent conveyance. This was undoubtedly a strong case; but, would any one pretend to argue from this, that the privilege of freedom from arrest ought to be done away with? Surely not. The learned member here referred to another case, in 1727, where the post-master complained that members were in the habit of receiving numerous letters (for the privilege of franking was then almost unlimitted) which did not concern themselves or their families, to the great detriment of his majesty's revenue. But, what was done in consequence? Was this privilege done away with—was it curtailed? No such thing. All that was said by the Crown was, that it was expected members would take the necessary steps to prevent a recurrence of the abuse. Gentlemen must not argue from the use to the abuse: they must not do away with the privileges of parliament, because there was a possibility of its being carried to excess. If an abuse was found to exist, let it be pointed out; and if after that the necessary steps were not taken to remedy it, then and not till then was it time for parliament to stop it by a declaration of the House; or if the abuse was found to overbalance the advantage, to abolish the privilege altogether, as they had done other privileges which had been found to have a similar tendency. But there was no fear of the present privilege being carried to excess; there was no fear that it would extend beyond a fair statement of the grievances of the people, or a prayer for the redress of the wrongs under which they laboured. If this was a right to be enjoyed by the community generally, how much more necessary was it that it should be extended to those who were under the strong arm of power? For, after all, law was power; and while men were men, and prisons were prisons, the power vested in those who had the charge of prisoners, was likely to be abused. It was, therefore, absolutely necessary that the inviolability of all communications from persons so situated should be religiously and sacredly observed. It was for these reasons, notwithstanding the two venerable names which he saw attached to the regulation of the magistrates, that he felt inclined to pause before he pronounced, as perfectly legal, even upon their authority, a document, which went to render the confinement of convicted persons more severe, and their punishment more Acute and galling.
§ Mr. Horrocks
referred to several high authorities, to show, that it was lawful for a gaoler to keep every prisoner (who was committed in execution) in close custody. The person whose case was under discussion had been convicted of a very serious offence, and more than ordinary caution was highly necessary. There was a case within his own knowledge which had come before the grand jury of the county, which showed that the power in question was not given to gaolers without abundant reason. A prisoner had sent a letter to one of his acquaintance; the gaoler suspecting that the communication was of an improper nature, opened the letter, and it was found to contain a statement from the prisoner of false facts, affecting to refresh the memory of his friend, who was to be a witness on his trial; and adding, "mind you stick to this, and don't flinch." This circumstance showed the great danger of subornation of perjury; and of which a member might be made the innocent medium. The rules applicable to the case in question, had not been adopted by the magistrates hastily or unadvisedly; and the gaoler himself had been provoked into an adherence of them by threats. As far as he could judge, the present case did not involve a breach of privilege.
The Marquis of Londonderry
said, that the case divided itself under two heads—the one was a question of law, the other of privilege. If there had been any offence committed against the law, no determination which the House might come to could deprive either the hon. member, or the prisoner who had written the letter in question, of a legal remedy. If a legal offence had been committed, redress might be obtained before the proper tribunal, and in the mean time no possible prejudice would be done to the party injured, by the House not interfering. He put the case as if the regulations of the magistrates, and the use of them on the present case were against law; but the hon. and learned gentleman must forgive him, if he said that he thought the law had not been violated. He thought that, upon the face of the case before them, there was enough to raise at least a very strong presumption that the regulations were sanctioned by law—and here he would say, that the law ought to prevail; and that the privileges of members of that House ought not to be allowed to ride over the law. If he were wrong with 659 respect to his notions of the law, then the party would be entitled to legal redress, and would have their remedy. Now as to the question of privilege, he was by no means prepared to recognise the doctrine, that the privileges of parliament, even though not opposed to law, were to be so largely interpreted as was now contended for. It was not necessary now to raise the question of the privilege of parliament. Were the House, he would ask, prepared to put the law as to the privilege of that Mouse on this broad principle—that all prisoners, whatever might have been their offence, had the right to address letters to all members of parliament? Why was the distinction made with respect to letters sent through the post-office and other letters? Because the post-office knew the hand-writing of members of that House. But gaolers could not be supposed to know the hand-writing of members. The question then came to this—was the House prepared to assert a privilege which would have the effect of rendering it imperative on all gaolers to receive and to transmit unopened all letters which had on the back of them the name of a member of parliament? This was a privilege not necessary for the liberty of the subject. Gentlemen ought to have free intercourse with their constituents; but he knew not on what grounds the House could be called upon to countenance the doctrine, that a member of parliament ought to have the power of secretly corresponding with prisoners. Prisoners, it was true, might have occasion to transmit to members their petitions, in order to be presented to that House; but, if the case of prisoners were a bonâ fide case—if prisoners had nothing to conceal—there could be no grievance in having their letters opened. He saw no reason why members of that House should be invested with the privilege of holding secret communications with all prisoners—charged with all species of crimes—high treason, felony, or misdemeanor. He put the case in that way, because, if the doctrine were to be applied to one case, they would not know where to stop; it might be applied to the greatest criminal, as well as the venal offender. He could not agree in the doctrine as it regarded members collectively or individually, that the privileges of parliament should divert the law with respect to them, which had a universal application with respect to all others. The members 660 of that House surely were not to he regarded as visiting magistrates. It was, indeed, their duty to hear complaints, and to see grievances redressed; and that duty was best discharged through the medium of petition. No one would interrupt that course; but he could not help saying, that he disliked that sort of epistolary intercourse between members of parliament and prisoners which was contended for. He was not saying that in all cases it was justifiable for gaolers to open the letters of members; but he would not decide the question raised by this motion too hastily; and he would therefore vote for the motion of his right hon. friend, because the offence complained of, if offence it was, might be carried before the competent tribunal. It would then be seen, whether these rules, which had been signed by two judges, were legal or: not; but at present be was not disposed to push the right of privilege to the extent sought for by the original motion.
§ Mr. Denman
said, that the noble marquis had stated that the question was a question of law, and that the complaint might be brought before the proper tribunal. But the noble marquis had not thought fit to inform his hon. friend of the manner in which be ought to proceed. In opposition to the noble lord, he would contend that the question was not one of law, but of privilege; and all the authorities cited in support of the governor of Lancaster Castle, were cited in disregard of the privileges of parliament—were cited to support the monstrous doctrine that members were to be prevented from receiving the complaints of those who might be suffering under solitary imprisonment. The noble marquis had said, that if the case of a prisoner were a bonâ fide case, there could he no cause for secrecy. Now he (Mr. D.) thought that a bona fide case—a case of great grievance and of real suffering—was precisely a case which ought not to be exposed to the view of gaolers, and which ought to be kept secret, if the complaint were intended to he effectual. Need he call to the consideration of the House the state of that horrible bastile called the Ilchester gaol? When the complaint of Mr. Hunt was brought against the gaoler—when the grievances and sufferings of the prisoners were first stated—the answer was, that he had acted according to law—that the regulations under which he had acted were sanctioned by the judges—and that 661 the gaoler was one of the most humane and most excellent of men; but when an examination of witnesses had taken place, and when the report of the commissioners had been published, it turned out, that the regulations, so far from having been observed by the gaoler, were departed from; and that the conduct of the gaoler justly exposed him to the indignation of the public in general, and peculiarly to the indignation of that House, which he had so grossly deceived. Now he would put it to the sense of the House, whether the abuses of Ilchester gaol would have been ever brought to light, if the gaoler had opened the letters of the prisoners? Was it not monstrous to contend that, a party, who was himself a criminal, should be set up as a judge in his own case, and should be vested with power to prevent the case of the oppressed from ever reaching the individuals that might be inclined to protect him? The noble lord had, however, laid down the doctrine, that the wretched inmates of a gaol should not have the opportunity, without the previous sanction of a gaoler, of communicating with members of that House; that was the doctrine distinctly laid down by the noble lord. Against that doctrine he begged solemnly to protest; as necessarily leading to the greatest abuse. With respect to the learned persons who, it was said, had signed those regulations, he believed that the question of privilege had not been contemplated by those learned persons, as he was sure it never entered into the consideration of the framers of the law under which they acted. The regulations of the act did not refer to the question of privilege. An hon. gentleman had stated opinions taken at the bar; but he would venture to say, that the question of parliamentary privilege had not been brought under the view of the gentlemen who had given legal opinions. The opinion of sir Samuel Romilly had been taken; and he had said that the privileges of parliament could not be taken away by a side wind. An hon. gentleman had instanced a case where a prisoner attempted to carry on a correspondence for the purpose of suborning witnesses. Unquestionably, it was a most criminal act; but, were not those regulations calculated to prevent the communication of truth—were they not calculated to obstruct the opportunity of a fair defence—above all, were they not calculated to prevent the cause of the sufferer: from being made 662 known to the public? A right hon. gentleman had made a distinction between the delivery of letters by the post-office, and other letters; and the noble marquis made the same distinction, because it was assumed that the persons in the post-office knew the hand-writing of members. Now, he would wish to know how letters could come to the hands of a gaoler, until those letters had previously gone through the post-office? The right hon. gentleman had alluded to the case of the governor of Hull; but the principle applied with equal force to the case of the gaoler of Ilchester, as to the governor of Hull. He trusted that the House would feel it to be their bounden duty to assert their privilege on the present occasion. The exercise of that privilege was essential to the situation of a member of parliament. The privilege of parliament was considered precious in the eyes of ministers, when it was wielded to oppress their political opponents; but as soon as that privilege was about to correct the gross abuse of power, then it was no longer thought deserving of their regard. But be did trust that the House, by their vote, would show the country, that they considered that parliamentary privilege had not been given to them to aid and protect ministers in acts of arbitrary power; but to remedy and control such abuses as they might, from time to time, detect in any department of the state.
said, that the hon. mover had admitted, that if he had not been a member he could have no right to complain of the regulations which had formed the subject of debate. The question, then came to this, whether the House were bound to come to a decision on a matter of privilege, which decision would be looked upon as precedent for the future; or whether it would not be more prudent to leave the party to his remedy at law? It should be recollected, that the privilege which the bon, gentleman claimed was not one which was recognised by the former practice of the House; and it would not be difficult to show that, if established, it might, in some cases, operate in a manner highly inconvenient, if not dangerous.
§ Mr. James
shortly replied. His view of the question was not, he said, at all altered; and he believed, on the authority of sir S. Romilly, that the practice complained of was illegal. The right hon. gentleman had argued that poison might 663 be conveyed to a prisoner in a letter. This was very true; so might a prisoner knock his head against the prison wall, if he were determined to kill himself. He would not hesitate to assert, that if the House should that night decide against him, their decision would be most arbitrary, and at the same time most dangerous to their own privileges. Their vote would have the effect of recognising two distinct legislatures; one composed of both Houses of parliament, with the king at their head, and the other composed of judges, magistrates, and gaolers.
§ The previous question being put, "That the question be now put," the House divided: Ayes, 60; Noes, 167.
|List of the Minority.|
|Allan, J. H.||Leycester, R.|
|Althorp, lord||Lloyd, sir E.|
|Bernal, R.||Lambton, J. G.|
|Bright, H.||Lushington, Dr.|
|Birch, J.||Maberly, J.|
|Brougham H.||Maberly, J. jun.|
|Barret, S. M.||Macdonald, J.|
|Kenyon, B.||Marjoribanks, S.|
|Beaumont, T. W.||Moore, Peter|
|Calvert, C.||Martin, J.|
|Crespigny, sir W. De||Normanby, lord|
|Crompton, S.||Newman, R.|
|Concannon, Lucius||O'Callaghan, J.|
|Coffin, sir I.||Parnell, sir H.|
|Creevey, T.||Palmer, col.|
|Calcratt, John||Russell, lord J.|
|Carter, J.||Ricardo, D.|
|Caulfield, hon. H.||Ramsden, J. C.|
|Davies, col.||Robinson, sir G.|
|Denman, T.||Smith, hon. R.|
|Ebrington, viscount||Smith, W.|
|Fergusson, sir R.||Smith, S.|
|Farrand, Robert||Sefton, earl of|
|Grattan, J.||Stuart, lord J.|
|Guise, sir W.||Sykes, D.|
|Hamilton, lord A.||Wilson, sir R.|
|Honywood, W. P.||Wood, alderman,|
|Haldimand, W.||Wyvill, M.|
|Hutchinson, hon. C. H.||TELLERS.|
|Hume, J.||James, W.|
|Lennard, T. B.||Bennet, hon. H. G.|