Commons Sitting of 26 March 1823

PETITION FROM MARY ANN CARLILE FOR RELEASE FROM IMPRISONMENT.—
Mr. Hume, in presenting a petition from Mary Ann Carlile, complaining of hardship, and praying for redress, felt it necessary to state, that he was aware there was a great prejudice against the name of Carlile; but he hoped the House would, in the present case, divest itself of all prejudice against her, on account of her brother. He conceived that a very important principle was involved in the case of Mary Ann Carlile. The prosecution against her was instituted, not by the attorney or solicitor-general, who he (Mr.Hume) conceived were the only legal preservers of the peace and good morals of the community; but by societies which he had long viewed with great jealousy, namely, the Society for the Suppression of Vice, and the Constitutional Association. These societies were little better than conspiracies against the liberty of the subject; and the individuals prosecuted by them might be justly considered as their victims. By a joint purse they were enabled to bear down individuals even in point of expense; and thus render it quite useless to make resistance. The operation which their influence was calculated to produce on the minds of a jury was no small matter. Such had been the case in trials; but he was desirous of confining himself strictly to the present case. He had had the petition in his possession exactly one month. He had been unwilling to present it, until he could ascertain who had been the petitioner's prosecutors. She was tried on the same day at the suit of the Constitutional Association for a seditious libel, and acquitted, and at the suit of the Society for the Suppression of Vice, and found guilty. He had been anxious to discover who the prosecutors in the latter case were; but he had been ten or fourteen days in finding out the members of the Society for Vice, [a laugh]. Well! he could prove, that the Society was one, not for suppression, but for the promotion of vice. On inquiry, he understood that there had not been a list of the members published
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since 1803, or at latest 1807. The difficulty that he experienced in ascertaining the names of the members, assisted in leading him to the extraordinary conclusion, that those individuals must of necessity be infidels, men who shunned the light, who disbelieved the Christian religion, and who wished to diffuse the principles of scepticism as widely as possible. At last he wrote to the secretary of the Society: and it was but justice to say, that he found a perfect readiness to communicate to him all the information that he required. When he received the list of members, 250 in number, he found among them several of his most intimate friends, men standing high in public opinion, and distinguished by their private worth; members of that and the other house of parliament, as well as of every other respectable class of the community. He could mean, therefore, no attack upon their individual character, when he declared it to be his opinion, that by the course which they had adopted, they had rendered general throughout the country a knowledge of those principles, which but for that course would have been very little known indeed. In that point of view, therefore, they had been the promoters, and not the suppressors of vice. He had read the publication, for the sale of which, on her brother's account, the petitioner had been tried and convicted. But for the prosecution, he certainly should not have done so; he must say, that he could not see in it a single intemperate word, or any expression which might not with great propriety, be used by ally person holding the same opinions as the writer. He considered the punishment attendant on its publication therefore to be an infringement on the privilege of free discussion, which the people of this country had a right to enjoy, and which had been maintained by so many eminent individuals, and among them several of the most orthodox divines that the country had produced; he had also read with great attention that part of the defence of the petitioner, which she read in court, and he really could not conceive how any controversy could be carried on, where one person denied what another asserted, if such a defence could be put down as in the present instance it was put down by Mr. Justice Best. His (Mr. Hume's) opinion on such a subject might have little weight; but his conviction, on the

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most deliberate review of all the proceedings in the case, was, that the petitioner had been treated very harshly, and in a manner contrary to the spirit of the English law, by being prevented on her trial from using what argument she pleased in her own defence. He was aware, that of late a practice, but a practice which he contended was unprecedented and unjustified, had obtained on the part of the bench, of silencing individuals who expressed opinions contrary to the established religion, which was termed "part and parcel of the law." It was maintained that religion ought not to be reviled or abused, or spoken of in opprobrious language. Now, he had looked with a great deal of attention at books of controversy, published at different periods of our history, some in support of atheism, some in support of deism, &c. &c.; and he was satisfied, that no part of the publication, for her connection with which the petitioner was condemned; he was satisfied, that no part of the petitioner's defence was at all comparable in strength of expression with many passages in works published ages ago, which were now public matter of history, and which were to be found in every library. He contended, therefore, that the petitioner had been unduly punished, and that her judges had treated her with a severity not warranted by the principles of British jurisprudence. He was sure that they were principles which would not have been acted upon forty or fifty years ago; and that the only parallel to them was to be found in times, when individuals were brought to the stake, and were otherwise outrageously punished for their religious opinions. It was to have been hoped, that more Christian and liberal feelings would have prevailed in the present day. It was to have been honed, that an abstinence from any thing like harshness or severity would have been evinced by a body of individuals, among whom were some of the most distinguished ornaments of the church and the state; but who appeared to be actuated by a misguided zeal, fraught with the most pernicious consequences. He really did in treat those who had to make laws, to make such laws on the subject to which the petition alluded, as the people could understand. He entreated them distinctly to define the crimes against which those laws were directed. He entreated them to put an end to the worse than absurd practice of call-
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ing upon a jury, to pronounce upon oath on a matter of fact submitted to them, when no fact, but only the opinion of the judge, that such or such expressions were hostile to that which was part and parcel of the law of England, was actually submitted to them. He entreated them to bring in a bill to define what blasphemy was. In former times similar proceedings were instituted, and the same course was adopted against those who denied the Real Presence in the Eucharist. In the pre sent, as in all former ages, great differences existed on the subject of religion; but surely it was desirable to extend the principles of the Christian religion, the principles of true charity towards those principles; and not make them the pretext for the exibition of a system of gross oppression and tyranny. He wished the members of the prosecuting society to turn to the New Testament, and show him one passage in which they were warranted in prosecuting men for the expression of opinions respecting religion. On the contrary, when our Saviour was asked why he did not call down fire from heaven on the heads of his enemies, he said they knew not what they did; which was as much as to say, that violence was not what he approved of. The whole of the New Testament, the principles, precepts, and practice of our Saviour, confirmed this opinion. As for the petitioner, she had published nothing new, and unheard of. She was prosecuted only for publishing a transcript of what was sold with, perfect freedom in America. He saw some gentlemen smile when he alluded to America, but he would say that they would do well in some things to copy the practice of that country. He held in his hand an act of the Assembly of Virginia, intituled "An Act for establishing Religious Freedom, passed in the Assembly of, Virginia in 1786." It recites that, "Well aware that Almighty God has created the mind free, that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy, and are a departure from the plan of the Holy Author of our religion who being lord of both body and mind, yet chose not to propagate it by coercions on either:—that the impious presumption of legislators, and rulers, civil and ecclesiastical (who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opi-

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nion and modes of thinking, as alone true and infallible, and as such endeavouring to impose on others) hath established and maintained false religions over the greatest part of the would, and through all time, that truth is great and will prevail, if left to herself, is the proper and sufficient antagonist to error, and can have nothing to fear from the conflict, unless (by human interposition) disarmed of her natural weapons, free argument and debate; error ceasing to be dangerous when it is permitted freely to contradict them; be it, therefore, enacted, by the general assembly, that no man shall be compelled to support any religious worship, place or ministry whatsoever; nor shall be forced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but all men be free to profess and by argument to maintain their opinions in matters of religion: and that the same shall in no wise diminish, enlarge, or affect their civil capacities." The petitioner had only published a work, maintaining opinions by argument. In prosecuting her for this, we were departing from the principles on which Christians should act: we had claimed and vindicated the right of asserting our religious opinions in opposition to the see of Rome, and surely, then, we should extend the same right to others. If he had been one of the jury on Mary Ann Carlile's case, he should certainly have paused before he consented to condemn a fellow subject for such an expression of opinion; he could never, on the ipse dixit of a judge, think himself warranted in visiting an expression of opinion as a crime. The ipse dixit, that Christianity being a part of the law of the land, any attempt to impugn it was punishable, was utterly unworthy to be considered as a part of our legislation. The whole of the prosecutions against religious opinions were, however, founded on this ipse dixit, which originated with sir Matthew Hale, an authority of much weight in such questions, as he was the judge who had sentenced several persons to the stake for witchcraft. If he believed in such a crime, and it would be uncharitable to suppose that he did not, it was necessary to receive with caution what he said on matters of opinion. As to the sentence on the petitioner, she had been sentenced to a year's imprisonment, to a fine of 500 l. and to be imprisoned till that fine was
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paid. One of the charges against James 2nd was the imposition of excessive fines, and the demanding of excessive bail, and the petitioner herself stated, what he believed was correct, that the chief justice of the King's-bench had recently declared, that it was never the intention of that court to impose fines beyond the ability of defendants to pay. Now, by an affidavit of the petitioner, taken before W. Morton Pitt, Esq. she declared that she had no property beyond her wearing apparel, furniture enough to furnish a small room, and a few books of small value, not worth mentioning, and that she never had any other property. Now, when a fine of 500 l. was imposed upon a person in the condition of the petitioner, did not the sentence come within the description of fines, the imposing of which was one of the offences of James the second's government? They knew the difficulty of deciding what was an excessive fine and what was excessive bail, but the construction was generally on the milder side. By the 1st William and Mary, sess. 2, c. 2, this is particularly noticed and condemned. The statute says, "and excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. All which are utterly and directly contrary to the known laws and statutes and freedom, of this realm." He would ask, then, it the sentence on Mary Ann Carlile, was not just such a one as James had been condemned for sanctioning, and which the law in the 1st of William had declared illegal? When the bishop of Clogher, who was possessed of a revenue by some estimated as high as 100,000 l. was charged on the clearest evidence of an indictable offence, the magistrate did not think himself justified in demanding more than 1,000 l. bail;, which, however, justifiable, seemed a very, different measure of law from that by which 500 l. fine was inflicted on an individual having no property. The petitioner stated, that she was a comparatively young woman, 29 years of age, and if the House did not interfere, she might never be released from the walls which now surrounded her. On the 15th November last, the year of her imprisonment expired, and she had since that time been confined from her inability to pay her fine; beside, her fine, she would be required, previously to her enlargement, to enter into recognizances, herself in 1,000 l., and two expiration

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of her year's imprisonment, she had written to the lords of the Treasury, praying for the remission of the fine, which she was utterly unable to pay. This application was refused, and she now lay in gaol, the victim of persecution, for publishing matters of opinion which many of our most eminent divines, and some of our most enlightened judges, have declared might be promulgated with impunity. He hoped his majesty's ministers would grant the petitioner what she prayed for.
The petition was brought up and read as follows:—
"To the honourable the Commons of Great Britain and Ireland, in parliament assembled. The petition of Mary Ann Carlile, a prisoner in his majesty's gaol of Dorchester, respectfully sheweth:
"That your petitioner was shop woman to her brother, a bookseller, in Fleet street, in the city of London, and received wages of him for acting in that capacity.
"That your petitioner was prosecuted for selling a pamphlet, the title of which was, 'An Appendix to the Theological Works of Thomas Paine.'
"That this pamphlet, which questioned the divine origin of the Christian religion; was nevertheless mild in its tone and temperate in its manner, in comparison with other works, for publishing of which persons had been prosecuted to conviction.
"That in none of the cases in which persons had been convicted for the publication of the works alluded to, has f, sentence ever been passed on any one, which, in point of severity, admits of any comparison with that which has been and still is, inflicted upon your petitioner.
"That your petitioner appeared in the court of King's-bench, at Guildhall, in the city of London, on the 24th of July, 1821 and there attempted to defend herself against a charge of having published blasphemous libel; but before she had read more than ten or twelve out of mort than a hundred pages of her defence, shi was interrupted by the judge, Mr. Justice Best, who refused to hear the remainder, although the defence was altogether strict]y relevant to the charge made against her.
"That in consequence of the Judge having refused to hear her in her own defence, she was convicted unheard, convicted simply on the case which had been mad against her.
"That your petitioner is convinced is convinced that hers is a case of unparalleled hardship,
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and, as she also believes, of singular injustice.
"That the great injustice done to your petitioner at her trial was still further increased, when, on the ground of her being convicted without having been heard in her defence, she moved for a new trial, that request was peremptorily rejected.
"That on the 15th of November, 1821, your petitioner was sentenced to a year's imprisonment in Dorchester gaol, and also to pay a fine of five hundred pounds, and to remain in prison until the fine of five hundred pounds was paid.
"That your petitioner's year's imprisonment expired on the 15th of November now last past, but she is still detained for the fine of five hundred pounds.
"That your petitioner is twenty-nine years of age, of irreproachable character, and had for the last twelve years, previous to her confinement in Dorchester gaol, maintained herself by her industry, she having no property whatever, nor any other reputable means of obtaining al, livelihood.
"That your petitioner is utterly unable to pay the fine of 500 l. imposed upon her, or any other stun whatever.
"That in consequence of this inability, which is no fault in your petitioner, she is sentenced to perpetual imprisonment, in a distant gaol.
"That your petitioner has heard and believes, that in the mouth of December last, the present lord chief justice of the court of King's-bench declared from the bench, that that court in imposing fines upon persons convicted in that court, always paid attention to the ability, or supposed ability, of the person fined to pay the fine, and never intended to impose a fine beyond the ability of the person fined to pay.
"Your petitioner cannot but concluder that hers is, in all respects, a very extraordinary case, and one of singular hardship, and she therefore prays, that your honourable House will interfere in her behalf, so that she may be relesed from her present imprisonment, and that all further proceedings against her for the same alleged offence may be stayed.
"MARY ANN CARLILE.
"Dorchester Gaol, February 5, 1823." On the motion that it do lie on the table,
Sir T. D. Aclandsaid, there was no occasion on which it was more painful for him to speak, than in endeavouring to

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enforce severity of punishment against any individual, however unfortunate, or however guilty; and if he had any such wish, the present was the last occasion on which he should attempt it, as he was a member of that Society which had been visited by the reprehension of the hon. mover. He was the last person to hold an opinion on the propriety of enforcing a penalty on an individual brought to punishment indirectly through his agency. If indeed he gave an opinion, it would be, that he was most anxious that the first symptoms of returning penitence should be embraced in favour of a person who had already suffered much, and who was likely to suffer more unless her fine was remitted. In the present debate, he should not go into a general discussion of the law of blasphemy, because it would be entirely one of anticipation. The hon. member had himself moved for a general return of prosecutions, with a view to bring under discussion the law of blasphemy. He should say a few words as to the conduct of the Society for the Suppression of Vice. The business of that Society was merely to denounce to courts of justice offences which they thought could not with safety be allowed to go unpunished. Further than that the Society was not responsible; and if they did not proceed in an oppressive manner as prosecutors, which in the present case was not imputed to them, and which he believed they would not be found to have done in any case, they could not be justly visited with any reprehension. They should not confine themselves to the consideration of Mary Ann Carlile's single case in the way the hon member wished to confine them. It was to be considered in connection of the cases of others, and the severity with which the judges visited her offence (he did not mean to say undue severity) showed, that they so considered it. What was the system of blasphemy of which this individual formed a branch? They might call to mind what was their feeling at the deluge of blasphemy which was some time ago poured over the land, when blasphemous tracts were published in every street and every lane of this great town—the name of Richard Carlile was fixed to the worst and most blasphemous of the libels which had issued from the press. He could have wished to have been spared the necessity of stating the topics with which this man had the audacity to
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trouble the country. He should, however, select a few passages, though not the worst, for this plain reason, that some were so bad, that he knew no man who would read them aloud in any assembly. After his own prosecution, and while in confinement, he had prompted his wife to pursue the same detestable traffic. When Mrs. Carlile was also convicted, Mr. Carlile published from Dorchester gaol, the place of his confinement, a notice to the following effect:—"In consequence of the verdict of a jury, finding Mrs. Carlile guilty of selling Sherwin's Life of Paine,' and No. 9, vol I. of 'The Republican,' she is liable to banishment for serving in the shop; Mary Ann Carlile, the sister of Richard Carlile, will consequently conduct the business, in the same place, in behalf of the family; and if legal robbers should break into the shop in Fleet-street, she will be prepared in half an hour to begin business in another place. In vain one web is destroyed by the agents of persecution—in half an hour we shall spin another, stronger and better than before. After this notice it was, that Mary Ann Carlile opened the shop, in which she sold the publication for which she was convicted; and she could certainly be looked upon in no other way than as the successor of Richard Carlile in his abominable traffic [Hear!]. Now, what was this No. 9 of "The Republican?" By the way, this Republican was published from the very gaol where he was confined for perpetrating this very crime; and, as the law stood, his only security in publishing such things was in continuing in gaol; for, if he was out of gaol, he might, for a second offence, be banished from the country, of which he was unworthy. The following was a passage of it:—"Before the people can be blest with, and cordially receive, a perfect government, and a pure and equitable code of laws, they must reject the Bible as being the word of the true God; and also, totally disbelieve the divinity of Christ. For, while they are inflexible in the Christian faith, there is no possibility of establishing equitable laws, or even acting, in a private way, justly towards each other; for, by the doctrines of the Bible and New Testament, nature is subverted; and when nature is destroyed, no perfection can possibly remain. I was, in my youthful days, taught to read the Bible, and I continued to read and reverence it for more than twenty

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years, and was as tenacious of it and the Christian religion as any one could be, except, at some short intervals, when the reason that nature had given me was allowed to act; but priest craft had carefully provided a sufficiently powerful enemy to defeat the efforts of the divine light of nature, until I had the courage to read 'The Deist' and Paine's 'Age of Reason;' and I do most affectionately in treat all my countrymen to throw far from them that book which scarcely contains any thing but blasphemy, profaneness, lies, and unequalled absurdities; and, instead of the Bible, I would, above All things, have them read attentively, 'The Age of Reason' and 'The Deist,' which are books replete with perspicuous truth." It was dreadful to think of this man, who thus artfully referred back to the time when he worshipped his God as a child in simplicity of heart. Sir T. A. read another extract, which, he conceived, would justify those who proceeded against the petitioner, from "The Republican" of the 18th of December, 1822, which declared all the books of the New Testament were forgeries, and ante-dated; that the writer would not believe a single fact asserted in the four Gospels or Acts of the Apostles; and that he did not credit one of the Epistles as a matter of history. After this, the House would judge whether the petitioner, who had made herself the instrument of this organized system of blasphemy, had been dealt with with undue severity or, whether the prosecutors had shown a morbid sensibility when they attempted to prevent the diffusion of such sentiments. As this was an anticipated debate, he should not enter further into the subject; he had only intended to say a few words in vindication of the Society of which he was a member, and he might conclude by observing, that its proceedings had been five years before the House, without having called for any reprehension.
The Attorney-Generalsaid, it was not his intention to enter into any defence of the societies of which the hon. gentleman complained in presenting the petition; but he should be deceived if, after the observations made, and the extracts read by the hon. member for Devonshire, indeed it was impossible, he thought, that there could be a single person in that House who could concur in the charges against the prosecution of those persons. The hon. gentleman who presented the peti-
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tion had gone out of his way, in order to attack the judge who tried the petitioner, and the other individuals who were officially engaged on that trial. Against a charge of that nature, without notice to those individuals and in their absence, he most earnestly protested. He did not believe that there was any thing illegal or unconstitutional in those prosecutions. He knew that such prosecutions were not confined to the law officers of the crown. It was competent for any society or body of men to institute such prosecutions. Hard, indeed, would be the case of any attorney-general who should take on himself the prosecution of all persons who had spread blasphemy, indecency, and immorality, through the different parts of the country. In his opinion, the thanks of the country were rather due to those gentlemen who stepped forward, and conducted those prosecutions. That Society had been instituted about thirty years, and he believed that, instead of being injurious, it produced very good effects. He requested of the House not to confine themselves to the solitary case of Mary Ann Carlile. Was it to be said, that too much severity was used against those persons, who, in defiance of the laws, persevered in the course that was adopted by them. The offence of which the petitioner was found guilty, was not the first offence of that individual. The brother, Richard Carlile, and his wife were before prosecuted by the same Society for blasphemy, and not with the view of putting down fair discussion, as the hon. member said, but to prevent the spreading of such noxious opinions. The propagation and diffusion of those opinions in such publications, were any thing but fair discussion. After the conviction of this man and his wife, one after another, this woman, whose petition was before the House, was then set up to carry on the same odious business. That system called for unusual severity of punishment, inasmuch as that woman, warned as she was by the conviction and consequent punishment of her brother and his wife, pursued the same course. In her petition, she complained that she was not heard in her defence. Certainly she was not heard, because her object was not to defend herself, but to reiterate the same blasphemy for which she was under prosecution. She did not plead ignorant of the contents of the publication, nor of its dangerous tendency; she did not

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attempt a justification: but, instead of a defence, proceeded to read over a more odious blasphemy, if possible, than that which was under prosecution. He was not at the trial himself, but he was informed that was the course she endeavoured to pursue, until she was stopped by the learned judge who presided. The same conduct was pursued by the other judges. It was the uniform rule on which all judges acted, when indecency or blasphemy was attempted to be introduced under the pretext of a defence. She complained that she moved for a new trial, and that her motion was refused. It was refused on the same grounds as those set forth in the petition. The imprisonment to which she was sentenced was not so much a punishment on her as to deter others from committing the same offence. The hon. gentleman had complained, that excessive bail was required of the petitioner after the expiration of her term of imprisonment. The bail required was two sureties in 100 l. each for her good conduct in future. That certainly ought not to be considered too much, viewing the greatness of her offence. Besides that, she was required herself to sign a bond for 1,000 l. This latter could not be any impediment to her discharge. As to the charge of the hon. member on the laying down of the law by the judge, Mr. Fox often lauded and praised the practice which left the jury the whole of the law and the fact, but at the same time he acknowledged that it was the right of the judge to explain the law of the case to the jury, and it was for them to apply the law to the fact. The law in this, as in all other cases, was in the breast of the judge, who would state it to the jury, leaving them to apply it to the facts as they appeared in evidence. There was no criminal case in which the judges did not lay down the law. The hon. gentleman advanced another proposition more dangerous than any to which he had yet adverted. It was in effect, that the jury, before they pronounced on the guilt or innocence of a prisoner, were to consider what would be the punishment which would be inflicted. [No no.] He appealed to the recollection of the House, whether the hon. member did not say, that if the jury were to know the punishment, they would pause before they would pronounce the sentence of guilty. No proposition could be dangerous to the pure administration of justice. It
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was no matter what the punishment was to be. He would contend, that it was the duty of the jury to pronounce on the guilt or innocence of the parties on the facts in evidence before them, without the exercise of any discretion as to the punishment to be inflicted. He therefore protested against the dangerous proposition of the hon. member. If the petition had set forth the reformation and contrition of that woman, he should know on what grounds he would receive it, but it contained no expression to that effect. He deprecated the interference of the House with sentences pronounced by the judges. If the hon. member had any charge against the judge, let that charge be brought forward in a specific form. He would maintain, that no man, considering the crime of the petitioner, could lay his hand on his heart and say, that the punishment inflicted on her was too severe. Nothing else could prevent those persons from continuing those scandalous publications. He hoped the House joined him in the opinion, that there was nothing in the conduct of the learned judge who presided at the trial of the petitioner, to merit the epithets that were so liberally bestowed on him.
Mr. Ricardotrusted that the House would excuse him if he ventured to say a few words upon this petition. The hon. and learned gentleman who had just sat down, appeared to conceive, that Mary Ann Carlile would have been entitled to some lenity, had she expressed contrition for her past offences, or had she stated any change to have taken place in her religious sentiments. Now, they were bound in common justice, to consider that the petitioner was expressing her own sentiments in the libel of which she had been found guilty. The demand, therefore, of time attorney-general was, that she must acknowledge that to be right, which she conscientiously believed to be wrong, before she could entitle herself to any lenity; or, in other words, that she must commit an act of the, most shameless duplicity, in order to become a proper object for the mercy of the crown. While upon that subject, he must be permitted to find fault with a rule that prevailed in the courts of justice. A witness, before he was examined was asked whether he believed in a future state: if he replied that he did not, his oath could not he taken. Supposing that an individual did not believe in a future state,

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and by replying that he did not, showed that he was an honest man, he was put aside as an incompetent witness; whereas, if he belied his belief, and did not act the part of an honest man, he was considered as a witness worthy of credit. He contended, that the hon. member for Devon-shire had by no means answered the case which his hon. friend had made out. His hon. friend had stated, that these prosecutions had aggravated the very evil which they were instituted to check. The hon. baronet asserted, that the fact was not so—and how did he prove it? Why, he read a passage which proved that the sale continued in spite of his prosecutions, and thus confirmed the very argument which he had intended to refute. Besides, it appeared to him, that the hon. baronet, in reading the opinions of which he complained so loudly, had not taken a wise course, to keep them from the knowledge of the public. He fully agreed with his hon. friend, that the prosecutions of the Society for the Suppression of Vice had done much mischief. Blasphemy was an offence which it was quite impossible to define. Nobody, in committing it, was aware of what he was offending against. It was one thing in this country, and another thing in France; indeed, that which was blasphemy here, was not blasphemy there, and vice versâ. Indeed, as the law was now laid down, the mere disputing the truths of Christianity was an offence; and, therefore, the moment it was shown that the individual had sold a work reflecting upon them, that moment he stood convicted. If he said that he believed in what he wrote or sold, and attempted to state the grounds on which he rested his belief, he was told immediately he was aggravating his original offence by repeating it; and being thus precluded from making a defence, and bound as it were hand and foot, was delivered over to the vengeance of the prosecutor. The attorney-general found great fault with his hon. friend for saying, that the jury would never have returned a verdict of guilty against Mary Ann Carlile if they could have anticipated the punishment that awaited her; and had argued, that the doctrines which such a sentence inculcated was most dangerous to the interests of public morality and justice. Now he (Mr. Ricardo) fully agreed in all that his hon. friend had said upon that subject; and so far from the doctrine of his hon. friend being new or unheard of,
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it was a doctrine that was perpetually influencing the conduct of juries. Juries were constantly taking into their consideration the consequences that were likely to follow from their verdicts. If not, why were they so often finding individuals guilty of stealing property under the value of 40 s. when every man was convinced that the property was worth much more? Why, but because they knew that, if they did not return such a verdict, a punishment would be inflicted incompatible with the spirit of the times? In forgeries, too, would any man deny, that the punishment which followed on conviction did not often come within the contemplation of the jury? [Hear hear!] He should therefore dismiss the observations of the attorney-general, without any further remark. He must now inform the House, that after a long and attentive consideration of the question, he had made up his mind that prosecutions ought never to be instituted for religious opinions. All religious opinions, however absurd and extravagant, might be conscientiously believed by some individuals. Why, then, was one man to set up his ideas on the subject as the criterion from which no other was to be allowed to differ with impunity? Why was one man to be considered infallible, and all his fellow men as frail and erring creatures? Such a doctrine ought not to be tolerated: it savoured too much of the Inquisition to be received as genuine in a free country like England. A fair and free discussion ought to be allowed on all religious topics. If the arguments advanced upon them were incorrect and blasphemous, surely they might be put down by sound argument and good reasoning, without the intervention of force and punishment. He was convinced that if it had not been for the indiscreet conduct of certain societies in prosecuting Mr. Carlile and his connexions, that family would never have acquired the notoriety by which it was at present distinguished.
Mr. Secretary Peeldid not rise to reply to all the arguments which had been brought forward on the opposite side, but rather to state the grounds on which he could not recommend the individual in question to the mercy of the crown. The law of the country made it a crime to make any attempt to deprive the lower classes of their belief in the consolations of religion; and while this law remained

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unrepealed, he should think himself wanting in his duty, if he shrunk from applying and enforcing it. If there was any blame for continuing the imprisonment complained of, he was willing to take all the blame on himself. His learned friend had properly said, that there was no contrition expressed in the petition, not as an evidence of her present belief, but to show that, after a year's imprisonment, she gave no reason to suppose she would not again commit the same offence. She was unable to give the sureties required by the law, and contrition might have been accepted in their stead. But without either sureties or contrition, refusing both, his learned friend was justified in the remark he had made. The hon. member, as remarked by the member for Devonshire, had very adroitly appealed to the House, not to mix up other matters with the prayer of the petition, but to confine themselves to the particular case; and, if there was only the individual case, the crown would be justified in extending mercy. But this was one part of a system for propagating sophistry and delusion—it was an attempt on the part of the family of the Carliles to triumph over the laws and religion established for the general benefit. The right hon. secretary then referred to the repeated convictions of Mr. Carlile and his wile and sister, to show that they carried on a regular system for the benefit of the whole family. It proved, he said, that there was a concerted attempt to triumph over the laws, and establish a supremacy which they should not reach. It was not possible to consider this as a single crime, but one of a connected series. The hon. member stated, that, in fact, the sentence was one which involved perpetual intprisonment.—Now the sentence was, that Mary Ann Carlile be imprisoned one year, and pay a the of 500 l. When the crown thought she had passed a term of years in confinement, equal to that fine she was unable to pay, it might extend its mercy to her; and if he then filled his present situation, he would recommend and advise the crown to do so. The alternative was not, therefore, as stated by the hon. member, either paying the fine, or perpetual imprisonment. He avowed, that he had advised the crown to reject the prayer of her petition for her release at the present period.
Sir F. Burdettcomplimented the hon. member who had brought forward the
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question, for having carefully avoided every foreign matter calculated to excite angry feelings, and having limited the question entirely to its own merits. He (sir F.) however, protested against its being thought that the prayer of the petition was for mercy; it did not ask forgiveness, but justice; that an act of justice might be done which was consistent with the English constitution, and which, Under that constitution, every man had a right to demand. The sufferings of the poor woman could be of no further avail, even to answer the end for which they were inflicted, for they excited universal sympathy—far more sympathy indeed for the sufferer than detestation of the act for which she was punished. His hon. friend who had brought the petition before the House, had given his majesty's ministers a fair opportunity of withdrawing from the unseemly contest in which they had engaged against the Carlile family, and of preventing the mischief from spreading further. He had left every extraneous matter out of view, and only brought forward the plain statement of a case of most gross and monstrous oppression. He (sir Francis) agreed with every thing which had been said by the member for Portarlington, considering it the very greatest absurdity in a government, and extremely futile to attempt to subdue opinions by acts of violence. Leaving out of view every religious feeling, and looking at it as it was, he considered the case of the petitioner to be a case of gross and monstrous oppression. He believed that no honest man, certainly no sincere believer in Christianity, would sanction criminal prosecutions for matters of opinion. Does not the right hon. gentleman who now protects one religion, by that, oppose and blaspheme some other? That which was religion now, was blasphemy once. The author of Christianity was put to death on the same ground, and his punishment justified by the same argument on which the attorney-general had attempted to maintain the justice of the persecution of the Carliles. If men had the honesty to declare themselves openly against any cherished prejudice, however absurd, they were sure to suffer some degree of persecution. The most scandalous outrages of old, under the pretence of upholding the cause of religion, had been perpetrated on the most paltry pre, texts. The last idea expressed by the attorney-general; that of contrition by the

727
object of this persecution, was never before heard of, except in the court of the Spanish Inquisition. The arguments of the attorney-general might appear well in the mouth of a grand inquisitor, but they were little becoming a minister of this country. But it was the motto of the profession to which the learned gentleman belonged: "An dolus an virtus." It was the custom of those gentlemen, when they had a weak case to support, to divert the attention of the auditory to matters of an irrevalent nature. So the learned gentleman, by sound and fury, by loudness of tone, and violence of action, had endeavoured to make up for the weakness of his arguments. That learned gentleman had never heard of juries being influenced in their verdict by the punishment likely to follow it. He who had practised all his life in the courts of law, was not aware that human nature sometimes revolted from a verdict which would consign the sufferer to a punishment out of all proportion with the offence charged against him! though it was the argument of Blackstone in his Commentaries, of sir Samuel Romilly in that House, and of the enlightened persons who had deprecated the severity of the law, that the perpetual perjury of juries defeated it when the punishment was out of proportion to the guilt. Yet the learned gentleman was ignorant of the fact. That learned gentleman, however, with the astuteness which characterized his profession, had avoided altogether one part of the petitioner's case. She claimed redress on the ground of justice, not of mercy. She prayed to be relieved from an enormous and scandalous fine. She, who was not worth 500 pence in the world, had been sentenced to pay a fine of 500 l. The law and time constitution of England did not require that a relaxation from such an infamous fine should be begged on her knees by the injured party. Even if she considered that she had committed an offence, if she felt as mankind in general do, her natural feelings would rouse her against the oppression she was suffering, and prevent her from sinking in abjectedness the victim of her persecutors. The right hon. secretary had given the strongest reasons against these proceedings. He had stated a variety of Monstrous and severe punishments which had produced no effect. The proper object of punishment was to repress crime, not to produce contrition. The sort of
728
offence for which the Carliles were suffering was not a fit object of punishment at all. There could be no crime alleged, no corpus delicti stated. It was wholly matter of opinion. A legislature had only to do with the actions of men. It was impossible to prevent opinions from rising in men's minds, and it was a detestable slavery to endeavour to suppress them. There was this difficulty attaching to prosecutions for blasphemy; he defied the attorney-general to define it. It was the same in all cases of libel. No man could tell what was a libel till it had been found so by the verdict of a jury. No man knew when he was committing an offence; yet, by a recent law, he was liable to be transported for a second offence. He (sir F. Burdett) stood in that situation. If he should again write any thing displeasing to the attorney-general for the time being, and that learned person could contrive to get a jury to convict him main, he was liable to be transported for life [Hear!] In this state of doubt, it was an imprudent act on his part ever to put pen to paper, for no man could tell what might not be construed into a libel [Hear, hear!] The right hon. gentleman had said, the petitioner was not suffering imprisonment for life, not because she had any hope of paying the fine, and finding bail for her good behaviour (which, by the way, was a term as indefinite as that of libel), but because she would ultimately obtain her release through the mercy of the crown. What could be more unconstitutional than the tenure of this imprisonment? When the right hon. gentleman thought the petitioner had made a sufficient expiation for her offence—when 510 l. worth of imprisonment had been taken out of the person of Mary Ann Carlile, her release was to be granted. Imprisonment for any length of time was, under any circumstances, not only a cruel waste of body, but torture of mind. Besides, did the right hon. gentleman think that he had got a lease of his office? It appeared that, if Mary Ann Carlile had any chance of working out her salvation by prolonged imprisonment, it also depended on the continuance of the right hon. gentleman in office. A practice more utterly unconstitutional never was justified in that House. He would not enter upon other topics, but he could not sit down without a remark upon the Society for the Suppression of Vice, of whom he knew nothing, except what he had ga-

729
thered from the ordinary sources of information. He was astonished that the House should be told that they had heard of no acts of vexation on the part of that Society, when the whole of its proceedings were vexatious. The Society might say, that they took their defendants before a grand jury. In that respect a prosecution by them was preferable to an information ex officio; but it could not be forgotten, that when a number of individuals conspired and made a purse, they might, by such a kind of joint-stock prosecution ruin any person, though every time he was brought before a jury, he might be acquitted [Hear!] He knew not how far the law could take cognizance of such societies, but he was satisfied they ought to be discountenanced and put an end to. They not only failed in their object, but augment all the evils which they pretended to undertake to suppress.
Mr. Peelsaid, he had never stated, as the hon. baronet seemed to think, that contrition was a sina quâ non, that it was impossible MaryAnn Carlile should ever be released without confessing contrition; he disclaimed this. Some one, he said, must advise the crown as to the exercise of its discretion, with regard to such cases as the present. Suppose any person should refuse to pay his fine, what would the hon. baronet do in that case? Would he then recommend such a person to be discharged? It was a just consequence of this, that he who refused to pay his fine, should pay by a certain quantum of punishment.
Sir F. Burdettexplained. He did not suppose that contrition was a sine quâ non. If there were a man who could pay and would not, he should be imprisoned; but what he complained of in the present case was, the infliction of a monstrous fine, which it was impossible for the individual to pay.
Mr. Wilberforcedefended the Society for the Suppression of Vice. The hon. member for Portarlington seemed to carry into more weighty matters those principles of free trade which he had sp successfully expounded. Ours was the only free country which had ever existed in which there was no special tribunal for the protection of religion and morals. In all the republics of antiquity, in Athens, Sparta, in Rome, there were such tribunals, and in these states morals and religion were considered as the foundations, not only
730
of private happiness, but of public virtue. Laws in general only published violations of right, and individuals who called on these laws for protection, who prosecuted other individuals, did it to defend themselves and enforce the laws in cases of offences against individuals. But in cases of offences against public morals, the greatest of all offences, the degree of injury done to any individual was so small in the first instance, so imperceptible in individual cases, though so immense in the aggregate, that no individual was sufficiently interested to prosecute such offences. For this reason it was that a small elect body of men employed in suppressing an act of this nature, by carrying the laws into action, was a great benefit to the nation. There was a sort of popular clamour about persecution, but no false opinion could be supported by this means. He would rely on the Christian religion triumphing over all its opponents, without any thing like persecution. He would let them republish Voltaire, Hume, Mirabaud, and all the other sceptics, and still Christianity would triumph—would come off without injury or defeat. Christianity supported itself by arguments, by appeals to common sense, to reason, to all that was immortal in man, and having such a powerful hold of human nature, must come out purified from all the contests and trials to which it might be subjected. His opinions on this subject were even more favourable than those of Paley, who said, "he deemed it no infringement of religious liberty to restrain the circulation of ridicule, invective, and mockery on religious subjects, because this species of writing applies only to the passions, and contaminates the imagination of the readers." He (Mr. Wilberforce) had not opposed the motion last session relative to the Trinity, because he was an advocate for free discussion—Christianity always had and always would triumph. As to blasphemy not being definable, he wished that those persons who were always trying how far they might go without actually trespassing on the law, might at least find themselves within its reach, and meet the punishment they in a mariner tempted. The Society for the Suppression of Vice, which had been so much censured, had, in fact, instituted thirty-two prosecutions, all for most detestable offences, and not one of these had ever failed. Lord Kenyon, lord chief baron Skinner, lord Ellen-

731
borough, and Mr. Justice Bayley, had all spoke in terms of the highest commendation of the proceedings of this Society. Whatever some hon. gentlemen might think, who, he was sorry to say, seemed no less opposed to the law of the land than to our holy religion, he (Mr. W.) could not help thinking it no small circumstance in favour of this Society, that it was vindicated and eulogised by the judges of the land. Whatever, blemishes might have arisen, either from the lapse of time or other causes, in some parts of our constitution, our criminal law had justly excited the admiration of all nations, and required few if any amendments. The attorney-general had done well to stand forward in defence of those sacred institutions, on which depended every thing that was valuable in this world and inestimable in the world to come. He had heard astonishment an hon. member behind him (Mr. Ricardo) blame the practice of asking a witness, before his testimony was admitted, whether he believed in the Holy Scriptures. Had that hon. gentleman so little regard for the awful declaration "So help me God!" or could it be maintained that we had any thing else to depend upon for the credibility of human testimony, than the attestation of the sacred volume? With regard to the unhappy woman whose case had this night been brought into discussion, he trusted she might experience the mercy and long-suffering of that Being, against whose revealed word she had set herself in presumptuous array. The punishment, however, which she had justly incurred in this world could not be remitted without holding out a prospect of impunity to similar offenders. If such offences as hers were not to be visited by the arm of the law, the attorney-general might as well be absolved at once from all care of the public morality and religion, and every thing be suffered to go to wreck and ruin. As to the language used by those offenders, and their pretended resolution of perishing at the stake or on the gibbet, they knew enough that it was not now as in former times, and they presumed upon the mercy and lenity of the English law. He trusted the House would forgive him, if he was warm, for he felt warmly on this most important subject. He had long satin that House, and if the experience of a long public life might give weight to his opinions, he declared his con-
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scientions conviction, that every thing which was most valuable depended upon the preservation of the sacred institutions of the country. For their own sakes, therefore, as well as for the sake of their constituents, he implored them to preserve the religion and law of the land safe and inviolate.
Ordered to be on the table.
Mr. Humesaid, that as no objection had been made to the receiving of this petition, he took it for granted that the printing of it would not be opposed. He could not make this motion, however, without expressing his astonishment at the conduct of the hon. gentleman who had just sat down, who, after professing himself the enemy of all persecution, had concluded by entreating the House to encourage and continue a system of persecution. As to the Society of which the hon. gentleman stood forward as the champion, it had increased the mischief which it pretended to remove. No fewer than thirty-two victims had been dragged by this Society before courts of law, every one of whom it was their boast that they had convicted; and what was the result? Why, as fast as the prisons were filled with victims, individuals pressed forward eager to become martyrs, and oppose a system of persecution by a participation in the sufferings inflicted by their oppressors. He entreated the right hon. secretary for the home department to consider the policy of supporting these pretended friends, but real enemies of the cause of public morality; for, by upholding such a system, he would consult neither the morals nor the feelings of the country. The hon. member for Bramber had made an appeal rather to the passions than to the judgment of the House, and he (Mr. Hume) entreated him, if he had all the regard he professed for the religion of the country, and for the peace and happiness of families, to pause before he again assisted in propagating what he himself designated as poison, by advocating a system of persecution. Let him attend rather to the excellent advice of a divine, whose writings were no doubt familiar to him, but whose sound and judicious doctrine with reference to this subject, differed widely from those which he (Mr. Wilberforce) had advanced to-night. "The proper punishment," said Dr. Lardner, "for a low, mean, indecent, scurrilous way of writing, seems to be neglect, contempt, scorn and general indignation. This punishment

733
Woolston has already had is part, and will probably have more and more if he should go on in his rude and brutal way of writing; and if we leave all further punishment to Him to whom vengeance belongs, I have thought it might be much for the honour of ourselves and of our religion. But if he should be further punished, the stream of resentment and indignation will turn; especially if the punishment should be severe, and it is likely that a small punishment will not suffice to engage to silence nor to an alteration of the manner of writing." Mr. Justice Blackstone (vol. i. b. 4, ch. 4) says, "It seems necessary, for the support of the national religion, that the officers of the church have power to censure heretics; yet not to harass them with temporal penalties, much less to exterminate or destroy them." "All persecutions for diversity of opinion, however ridiculous and absurd they may be, is contrary to every principle of sacred policy and civil freedom." Such was the doctrine of Dr. Lardner, and such the opinion of Mr. Justice Blackstone. But was this the doctrine of the Society for the promotion of Vice? [a laugh from the Ministerial benches]. The word had fallen from him accidentally; but he would give hon. gentlemen opposite all the benefit of the accident; for in point of fact, with the single exception of their exertions in putting down obscene exhibitions, the Society had rather promoted than checked the mischiefs which they pretended to suppress. The hon. member for Devonshire, after reading what he thought was one of the worst passages in "The Republican," had asked, whether hon. gentlemen would permit such publications to go unpunished? He (Mr. H.) said he would; and if the hon. member was not likely to be influenced by his opinion, he would refer him to an opinion for which he would, perhaps, have a greater reverence—that of the present bishop of London, in his charge to the clergy of the diocese in July, 1822. That right rev. divine said, "I am, indeed, fully persuaded, that the extravagancies of frantic infidelity are means in the hands of Providence for the promotion of virtue and truth, by provoking discussions which lead to the dispersion of error, by disposing the careless to reflection, by determining the irresolute to inquiry, by awakening energies which might otherwise have slumbered in inaction, and rousing the horror and indignation which, vice and impiety, when they
734
throw off the mask will never fail to inspire in generous and honest minds. Such on all former occasions has been the uniform result of the violence directed by infidels against our holy religion in this country; and when I consider the general expression of disgust at the blasphemous libels which were lately put in circulation; when I recollect the number and excellence of the popular tracts in defence of the religion so basely traduced, and the reception which they experienced from the public, I cannot but think that the evidences of the Christian revelation, and the nature and grounds of the Christian faith, are in consequence more generally understood, and the people on the whole more firmly attached to the creed of their fathers than if it had never been called in question." He should conclude by requesting the right hon. secretary, who seemed to be in possession of a scale by which he could compute how many hours of imprisonment were equivalent to a given number of pounds sterling, coldly to calculate the quantum of blood and confinement that would atone for the crime of which these poor creatures were convicted, and having made out his scale, let him fairly state it, in order that all men may know what was the consequence of the course they were pursuing
Mr. Wynndenied the doctrine, that no publication of mere matters of opinion could be libellous. The defence set up by the hon. member who had just sat down for these blasphemous publications might be equally applied to the obscene publications, which he himself wished to put down. He would put the case of a person who believed in no religion, and who held that the promiscuous intercourse of the sexes was neither dangerous nor indecorous; and he would further suppose him to publish a book in conformity with these opinions, and in which he should endeavour, by argument and exhortation, to promote their propagation. Could it be pretended that such a publication would not be libellous? The same impunity which the hon. gentleman would extend to blasphemous publications, would, in his view of the argument, apply also to political libels. Acts of regicide might be defended, and it might be contended with impunity, that the kingly power was opposed to the liberties of mankind, and that every individual who killed a king did mankind a service, by ridding them of a tyrant, and was con-

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sequently entitled to the gratitude of his country. He would ask whether the publication of such shocking doctrines as these were to be tolerated? Some time ago a man of the name of Spence, actually published a book in which he attempted to prove, that the supposed right to property was founded in usurpation. Could it be maintained that the publication of such a doctrine as this, and the justification of those who should endeavour to regain their rights, and put an end to this alleged usurpation, would not be libellous? The doctrine that every man was at liberty to avow and publish whatever opinions he might entertain, would lead to the dissolution of the whole frame of civil society. Was the hon. member prepared to admit, that every man was at liberty to publish whatever libellous attacks he might think fit upon his own character?
Mr. Hume.— At perfect liberty.
Mr. Wynn.— If the hon. member was of this opinion, other men might not deem themselves equally invulnerable.—What would be the effect of this doctrine, as applied to women? Was there any female, whose reputation could stand against a series of attacks, if allowed to pass unpunished, or if obliged constantly to come forward and vindicate her character in the newspapers, by proving the falsehood and malignity of her calumniators? An hon. member sitting near the member for Aberdeen (Mr. Bennet) had come forward very properly to vindicate the character of a female against one of those unmanly attacks, by prosecuting the calumniator. He thought it too much to contend, that the public were not entitled to the same protection, which was admitted on all hands to be necessary to the peace and security of private families.
Ordered to be printed.

SCOTCH BURGHS—INVERNESS.—
Lord A. Hamiltonsaid, it was with extreme regret that he rose to make a motion on a subject of so much importance, at a time when the House was so thinly attended. The interests of 500,000 persons and of sixty royal burghs were involved in the subject on which he was about to speak; but, however unpleasant it might be to him to execute such a duty, in so thin a House, he should proceed to the task. He had so often complained to the House of the grievances sustained by the Scotch burghs, that no one could be surprised if,
736
not having obtained redress, he reiterated his complaints. To mention only the case of the burgh of Inverness: in 1817, an election had taken place, which was conducted by a few individuals who had forced themselves into office. It appeared afterwards, that three of the persons so elected to the council of the burgh were disqualified to hold that office. The inhabitants of Inverness instituted legal proceedings to annul that election. This attempt was resisted by the magistrates; but, at the end of twelve months, a sentence was pronounced against the magistrates. The election was declared void, and the persons disqualified were no longer to act as commissioners. The court then gave a power for the appointment of managers until the council should be re-established. Last year it had pleased his majesty to appoint, by special warrant, particular persons to elect councillors for this burgh. Under that warrant, the same persons had been returned into office who had three years before been turned out by process of law. At whatever expense the burgesses had pursued the action which they had brought, no sooner did they obtain a verdict in their favour, than a crown warrant was issued, which undid the operation of the law. This was a state of things which would not be endured in this country; nor would it be in Scotland, but that the councillors owed their election to the magistrates, and not to the burgesses. It was true, that the persons who were turned out, petitioned his majesty that they might be re-appointed. He did not say that the granting the warrant was an illegal exercise of the prerogative, but he did say that it was an unconstitutional, an improper, an unwise, and an unprecedented measure, as applied to this particular instance. In the progress of the action he had mentioned, the burgesses had suffered another grievance, greater than those he had detailed; they had been compelled to pay the whole of the expenses, amounting to 1,400 l., while the magistrates had defended it at the expense of the burgh. He was sure the House would agree with him, that this ought not to be the situation of sixty burghs—that whatever redress the law might give them for injuries they tad suffered, should be thwarted by the crown—that they should pay for both sides, and not receive the benefit from either. He did not know, if he were to talk for

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half an hour, whether he could put this point more forcibly before the House than by this simple statement. He had furnished himself with documents, for the purpose of showing that the ordinary practice and the rule of law in Scotland were not in conformity with the advice which had been given to his majesty on the present occasion. Before, however, he adduced those authorities, he felt it necessary to correct a misapprehension as to the similarity between a Scottish and an English borough, which had, in his opinion, misled the English lawyers on this subject. In England, the franchise of the borough was vested in the corporation, and if the election was wrong, and the corporation set aside, the whole rights of the borough were at an end, and had to be revived by the crown; but the charter, and all the rights of a Scottish borough, were vested, not in the self-elected dozen or score of men, but in the burgesses or freemen generally. The corporation in England were the borough itself; but the self-elected juntas in Scotland were merely the servants of the corporation, which was in reality vested in the freemen or burgesses. Hence, though the election might he found to be faulty, and the magistracy illegal, the whole charter and rights of the borough remained to the freemen the same as ever. In England a false election operated a total extinction of the rights of the burgh, and demanded a total revisal on the part of the crown; but in Scotland it operated only the removal of the magistrates, and required only an interference to put the existing machine of the borough again into operation. That the constitutional mode of doing this was by a poll election of those freemen in whom the rights of the borough were vested during the time that the magistracy were in abeyance, he was prepared to show, both from the authority of lawyers, and from the general practice. The noble lord here quoted the opinions of Mr. White, lord Callander, and lord Anniston, all of which described the power of the crown to interfere with the re-establishment of a Scottish magistracy in any other way than by a poll election, as being a very questionable, and even unconstitutional interference. The last authority which he cited, declared expressly, that the interference was illegal. He did not mean to give his opinion as a lawyer; but still his reason and common sense pointed out to him, that the prac-
738
tice was illegal. By the 16th George 2nd, cap. 11, s. 12, it was enacted, that it should be lawful for the constituent members of any of the Scotch burghs to attend the meeting for the election of magistrates, and if they apprehended any wrong had been done, they were at liberty to apply to the court of session, for the purpose of rectifying it. He wished to ask the House, whether, after a borough had pursued the direction of that act, and had succeeded, at considerable expense, in the action, it was just, that the crown should step in, and deprive it of the benefit of that success? But the burgesses at Inverness had so applied and so succeeded, and yet they had been deprived of the benefit of that for which they had paid double, by a warrant obtained from the crown by the advice of ministers, and in all probability chiefly by that of the lord advocate opposite. Since the Union, there had been 30 warrants granted by the crown; with the addition of the recent instances of Aberdeen and Inverness, the number amounted to 32. Out of the thirty, twenty-four of the elections had been directed to be by the open vote of the burgesses, and the remaining six had also been in the same manner, even after the warrants were received. In the times of Charles 2nd and James 2nd the power had been assumed by the crown, of naming the persons who were to be elected; but the convention of the states had declared all such appointments illegal, and the elections void. In the cases of Montrose and Stirling, the warrants had been granted on the grounds to which he now objected; but then the crown had granted a poll. He would call the attention of the House to a gross fact in the case of burgh of Aberdeen. It was the custom there to take an annual account of the debts, that they might, know the state of their affairs. The magistrates of that place had the audacity to produce an account, by which it appeared the town was indebted 6,000 l., when, in fact, a sum of 130,000 l. was due from it. After having brought the affairs of the burgh to a state of bankruptcy, they added to their offence by this shameful act of duplicity and fraud. He would here introduce a comment, made by the same magistrates on their quitting officer. They attributed this calamity to the sys, tem of concealment which was a necessary part of that by which the affairs of the burgh were governed, and recommended

739
a change in this respect, without which, they said, prosperity could never be restored, nor could any set of men carry on its affairs, with credit to themselves, or advantage to the community. Was it necessary that he should state more to show, that he did not mean to tease and pester the House with slight or trivial grievances? Did he not prove, that he wished to draw their attention to shameful evils—evils which, if the system were not altered, must be of perpetual recurrence?—He would now refer to the case of Edinburgh, a town governed by 30 or 32 self-elected magistrates. Some years ago, a faulty election had taken place there; and it was natural enough, that a population of say 100,000 persons, governed by self-elected magistrates, should endeavour, when an opportunity occurred, to procure some share in the management of their own affairs. The magistrates of Edinburgh opposed the attempt; and a process was issued, as in the case of Inverness, to annul the election. After about three years of litigation, and the expense of about 4 or 5,000 l. on each side, one would have supposed, that the complaining party were entitled to something. But, under the advice of the learned lord, whatever their success might have been, a crown warrant came down and undid it all. The court of session was then applied to, that court having the power, it was said, of deciding summarily. There the case remained for four years; and had it continued there for four years more, it would not have been brought to a conclusion; for every chicanery of law was resorted to by the magistrates, who, he believed, knew they were in the wrong. At the end of four years, the parties were allowed to appeal to the House of Lords, on some preliminary points; for they had not yet got to the merits of their case. What interrupted the proceedings? Why, the case of Aberdeen—that notorious case of bankruptcy. The parties prosecuting the cause heard that Aberdeen had been visited with the infliction of a crown warrant. Upon which they immediately exclaimed, "Oh! it is useless for us to proceed. We shall not get law: like Aberdeen, we shall have a crown warrant." Under these circumstances, what could the people of Edinburgh do, but give up the struggle in despair? The magistrates of Edinburgh, who had the public money in their hands to defend their proceedings, felt that, if they went
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on farther, they must lose their cause, since they were in the wrong; whilst those who prosecuted the suit, were convinced, just as their claim was, that, if they pursued it, they would get nothing in the end but a crown warrant. In this state of things, the magistrates agreed to pay the opposing party 1,100 l. to froe go any further proceedings. If they were magistrates, and were in the right, they ought to have prosecuted their suit and gained it, instead of giving away a portion of the public money; but they were not magistrates, and they were in the wrong, but they had the opportunity of putting their hands into the public purse, and taking out 1,100 l. for their own purposes. This did not make out his case, as to the point of law; but he stated the facts, to expose a system of gross fraud and abominable iniquity. It was, however, impossible, as public opinion began to be expressed more strongly, that it could be allowed to go on much longer.—There was another point which bore strongly on the case, as it showed how justice was administered in some of these burghs. About three weeks ago, he had presented a petition from the town of Inverness, and the matters stated in that petition proved what sort of government prevailed in that town since the magistrates were displaced. Of the number so displaced, it was necessary to observe, that 12 or 13 had again got into office. When he presented the petition from two brothers of the name of Young, complaining of illegal acts on the part of the magistrates, he was answered; that it was impossible; for the magistrates were a most respectable body of men. The same thing was said when complaints were made relative to Ilchester gaol. He had nothing to do with their respectability. In their individual capacity they might be very respectable men; but what he wished to bring before the House was, their conduct as magistrates of Inverness. The petition of these young men stated, that they had been arrested for a just debt. After being imprisoned for the period specified by law, they applied for the act of grace, by the provision of which, if the creditor did not, within ten days, agree to aliment his debtor, the latter was entitled to his discharge. The creditor having refused to aliment them, they applied for their discharge, and were called upon to enter into conveyances in favour of their creditor, of omnium bonorum, on two sheets of stamped paper.

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Now, as it was a joint debt, only one bond was necessary; and the act expressly provided, that it was not necessary for any instruments, under the act of grace, to be stamped. The stamps would have amounted to 30 s. each, and this sum was demanded of men, who had sworn previously that they had not one farthing in their pocket. Besides this, they were called upon to pay 6l. fees, not one shilling of which could be legally demanded. If they had complied with these demands, they must have committed perjury. They were, in default of making these payments, kept in gaol for five days; when, the business having been brought before the superior court, lord Gillies caused them to be liberated; and the magistrates, to prevent any proceeding against them, compromised the matter, by paving the young men 32 l. Here, again, appeared the grossness of the system. Those magistrates had an opportunity of putting their hands in the public purse; and they paid this 32 l. out of the funds of the borough.—The noble lord concluded by moving, "That there be laid before the House, a Copy of any Warrant, granted by the Crown, in the year 1822, authorizing any person or persons to elect Magistrates in the Borough of Inverness, in the room of those recently displaced by process of Law."
The Lord Advocatesaid, that in rising to object to the motion, he felt no wish to resist the production of any document from which useful information could be elicited. The warrant complained of had not been issued by the crown on the advice of ministers, but on the advice of the privy council of Great Britain; and it authorized the magistrates to make that election which they had previously a right to make by law. He hoped to convince the House, that in issuing the warrant, a wise and a sound discretion had been exercised. With respect to the petition presented from two brothers of the name of Young, complaining of oppressive conduct on the part of the magistrates, he could now state, that nothing had been done by the magistrates with respect to those individuals, which the noble lord himself would not have done under similar circumstances. The learned lord then went through the case of the petitioners; and read a legal opinion, in which the advocate laid it down as the law of Scotland,
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that magistrates, under particular circumstances, might detain a prisoner, provided they alimented him properly. In this case, the additional confinement took place, in consequence of a dispute as to the necessity of drawing up the conveyance, omnium bonorum, on stamps. The magistrates had the point of law in their favour, but their counsel advised them, rather than contest a suit with two bankrupts, to compromise the matter, and therefore they gave those persons 32 l. The learned lord proceeded to say, that he could see no necessity for the present motion; for the very warrant, the legality of which was now attempted to be disputed, was at that moment before the lords of session in Scotland, who would have to adjudicate upon it. Why, then, discuss the matter, when it would be decided without their intervention? It was singular, that the discretionary power of granting these warrants should be now called in question. From the time of the Revolution to the Union, as well as subsequently, the privy council were in the habit of granting them discretionally; and in the only two cases in which the right was litigated, the practice of so granting them was asserted and maintained. It was the ancient and indubitable law of Scotland, that the magistrates, with some peculiar exceptions, should have the power of electing their successors. He was astonished to find the case of Aberdeen again brought forward. He thought that it had been clearly established, that the funds of the corporation had been well disposed of in the improvement of the pier and harbour. A similar application of their funds was also manifest in the case of Inverness. In the course of election which they had pursued, they had the law uniformly with them; and though, owing to the lapse of particular classes of trades, the deviation from the strict rule had in one instance occurred, yet he saw no reason for agreeing to the present motion. The truth was, that if, instead of the course pointed out in the warrant, poll elections were granted, such would be the ingenuity of the minority in the different burghs, excited on every magisterial vacancy, that the towns would be in a state of election fermentation from the beginning to the end of the year.—Convinced that the warrant of which the noble lord complained was issued under a wise and due discretion, and knowing that Inverness had considerably improved under the present

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management, he should give his negative to the motion.
Mr. Cummingbore testimony to the local improvements which had taken place in Inverness.
Mr. Humestated, that this great mistake ran through the whole of the argument of the learned lord, that he mixed up self-election, on which there was no discussion, with the issue of the warrant, founded on a discretionary power. He contended, that what the learned lord stated to be the uniform practice, rested only on the exception to the general rule—which was, for the crown to issue a warrant to the inhabitants to elect the magistrates. He commented upon the conduct of the magistrates of Aberdeen, who, however respectable in their private character, deserved no credit for their public conduct. They had laid out the public money extravagantly, and without reference to utility; for instance, they had thrown an arch of granite 120 feet wide over a puddle that he could with ease leap over. As to the improvements of the harbour, though he admitted that the trade had increased, it was in spite of the supposed improvements, and not in consequence of them. The rates had been doubled. From time increased expense, one of the most valuable articles of export, stone, was now sent by land-carriage; and as to the finances, with those the magistrates had nothing to do, as they were under the management of trustees, by whom, he was happy to say, they were much better managed than they had formerly been.
Mr. Gordondefended the magistrates of Aberdeen, and affirmed, that, whatever money had been expended by them, was laid out for the benefit of the town.
Mr. Secretary Peelsaid, the weakness of the case of the noble lord was apparent from this single circumstance—that nearly one-half of the debate had been occupied in an attempt to criminate persons who had nothing to do with the matter. The whole of the charge against the magistrates of Inverness resolved itself into this: that not being able to find any maltman in Inverness, they had elected others. The noble lord had admitted the legality, but doubted the soundness of the discretion exercised by the crown; but, after what he had stated of the extent of the crime imputed to the magistrates, he would submit, that no case had been made out by the noble lord,
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but that the crown had been rightly advised.
Mr. Forbessaid, that the statements of the noble lord on this subject had been so often made, and so often refuted, that he wondered how the House could any longer listen to them with patience. He wished the noble lord would chuse some other hobby, and ride it less unmercifully than he had done the Scotch burghs.
Sir R. Fergussonvindicated his noble friend from the charge of having made an attack on the personal character of the Scottish magistracy. The question here was, whether the crown, when a burgh had been disfranchised, had a right to interfere in the election of its magistrates? He thought it clearly had no such right; but that the burgesses, in such a case, had a right to elect their magistrates by poll.
Mr. W. Smiththought, that, without casting any personal reflections on the magistracy in question, it must be admitted, that when gentlemen came into office, there was a certain esprit de corps which made them follow the steps of their predecessors, however objectionable those steps might be. During a long parliamentary experience, he did not recollect, out of many lords advocate, a single one, who had not opposed the infusion of a more popular spirit into those elections.
Lord A. Hamilton, in reply, begged to repeat, that a grosser case than that of Aberdeen was never heard of. The corporation was bankrupt to the amount of 130,000 l., having all the while described the amount of their embarrassments as 6,000 l. only. He would also say, that the imputations he had cast upon the magistrates of Inverness, were justified by the report of the commissioners of inquiry into the state of the Scotch burghs.
The House divided: Ayes, 31; Noes, 49.

List of the Minority.

Benett, J.

Hobhouse, J. C.

Bennet, hon. H. G.

Hume, J.

Bentinck, lord W. H.

James, W.

Bernal, R.

Jervoise, G. P.

Birch, J.

Lennard, T. B.

Blake, sir F.

Lushington, S.

Burdett, sir F.

Macdonald, J.

Creevey, T.

Palmer, C. F.

Davies, T. H.

Philips, G.

Ellice, E.

Philips, G. H.

Fergusson, sir R.

Poyntz, W.

Glenorchy, visc.

Rice, T. S.

Grattan, J.

Rumbold, C. E.

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Taylor, M. A.

Wyvill, M.

Titchfield, marquis

TELLERS.

White, col.

Hamilton, lord A.

Wood, Matthew

Smith, W.

MONUMENTS TO EARL ST. VINCENT AND LORD DUNCAN.—
The House haying resolved itself into a committee of the whole House,
The Chancellor of the Exchequersaid, that if, during the closing years of the late war, there were but few occasions, or at least, fewer than had once been the case, in which parliament was called upon to address the crown, on subjects similar to that to which it was now his duty to call the attention of the House, that circumstance arose, not from any want of valour, or enterprise, or credit, or renown, on the part of those who conducted the naval service of this kingdom; but it arose from the singular circumstance, that, in the earlier part of the late war, the exploits of our navy had annihilated, as he might say, those powerful means of resistance which the enemy possessed; and which exploits then gave frequent occasion for addresses similar to that which he was about to propose. It would not be necessary for him to trouble the House at any length on the present subject; but he would say, that, if the recent rarity of these occasions had deprived the House of the opportunity of testifying the gratitude which it owed to those who had devoted their lives to the service of their country, he thought that that was an additional reason why, after so long enjoying all the advantages of that security, which the efforts of our navy had conferred on us; if, in the time of peace, there should occur such an event as the death of a brave admiral, covered with years and glory, it should be the duty of the House to take care that his remains should not sink into an obscure grave. He thought it would be consistent with their feelings, as it would be with their duty, not to forget, merely from the length of time that might have elapsed since the period when great naval services had been rendered by distinguished men, the true value of those services; but rather to hold out to succeeding ages the benefit of their great example. He was sure it was not necessary for him to trouble the House with any details of the lives and general services of the two great officers, to whose merits he was about to call its attention. To say of both that they had entered the service of
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their country at an early period, and had discharged their duties in the most exemplary manner, was merely to say that which might with truth be said of almost every officer in the British navy. But he should not do justice to those two gallant officers, whose memory he now claimed of parliament that it should perpetuate, if he did not advert to some of the great acts which had conferred immortal honour on their names. Earl St. Vincent, when sir J. Jervis, was appointed to the command of the Mediterranean fleet in the year 1795. Although, in the early part of the war, the success which had attended the British arms in the capture of Toulon, and the destruction of a considerable part of the French fleet there, had for a short period relieved us from the presence of an enemy in that quarter of the world, yet, such was the activity of the French government, that, in 1795, it was enabled to send forth a considerable fleet which ventured to undertake two actions against lord Howe. In 1796, events of great importance occurred on the continent of Europe; he meant the extraordinary and rapid successes which Buonaparté obtained, and which formed a new era in military tactics. The result of those victories was to sweep the Austrian armies from Italy, and to give France the command of all the ports of Italy; and that circumstance, combined with the junction with Spain, compelled the British troops to evacuate Corsica, and rendered it necessary for sir J. Jervis to quit the Mediterranean with the whole of his fleet, and leave that sea at the mercy of the French fleet. It was not possible for sir J. Jervis to prevent the circumstance; because his fleet had been greatly reduced, part of it having sailed to India; and with the ships which remained under his command, he was obliged to secure the retreat of the British troops from the islands of Corsica and Elba. Sir J. Jervis proceeded to Lisbon with his small fleet to refit. In 1797, he received a reinforcement from England, which enabled him again to proceed to sea with the hope of meeting and of defeating the enemy. He left Lisbon early in 1797, and proceeded off Cape St. Vincent. After cruising there for a few days, he had the singular good fortune to learn, that the, Spanish fleet, which was nearly double the force of his own, had left Cadiz, and was then in sight. It was easy to conceive, but difficult to describe, the feel-

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ings which animated the gallant commander and his officers at the sight of the enemy. Confident in his own strength, and in the courage of those under him, he did not hesitate, with his small fleet, to make a direct attack upon that of the enemy. At the first onset, he threw the enemy's line into confusion, and after a most gallant action, he obtained a complete victory. It was perhaps impossible at the present day to estimate the full value of that victory. When it was considered that the British commander had gained the battle with means and forces so inferior to those of his opponent, it was impossible not to come to the conclusion, that the effect of the victory must have been to dishearten the enemy, and to paralyze their efforts. He would pass over all the other merits of the great commander; but he could not avoid saying, that no man, to use a naval phrase, ever commanded a fleet in better style than earl St. Vincent—no man ever displayed more judgment in the selection of his officers—no man knew better how to enforce discipline—no man ever displayed greater promptitude in action, or made a better use of the means which were placed at his disposal, than that eminent individual. He was not saying too much, when he declared, that earl St. Vincent ranked with the greatest of those illustrious characters to whom the country was indebted for its glory and renown.—With respect to lord Duncan, he was unable to account for the circumstance of the debt of gratitude which the country owed to that commander not having been paid long ago. He had been unable to ascertain the cause of the omission, but he was convinced that the committee would consider the neglect which had occurred as a reason in itself why they should now do justice to the memory of that great man. As in the case of the earl St. Vincent, he would confine himself to a brief allusion to the greatest achievement of lord Duncan; namely, the battle of Camper down. Lord Duncan had been for some time watching the Dutch fleet, and during the period that he was so employed the mutiny at the Nore broke out. He would make no further allusion to that circumstance, than by stating, that it afforded lord Duncan an opportunity of displaying the singular energy of his mind; for although he was aware that a great part of his fleet was tainted with those principles which led to fatal results
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with respect to some of the individuals who entertained them, and which if acted upon would have produced the most disastrous consequences to the country, he nevertheless continued to blockade the Texel with only two sail of the line, making use of every artifice possible to make the enemy suppose that he was employing the whole of his fleet for that purpose. The artifice to which the commander resorted completely succeeded. In the latter part of 1797, the Dutch fleet put to sea: it amounted, he believed, to one more sail than the English fleet. Lord Duncan, as the earl St. Vincent had done before him, hailed the appearance of the hostile fleet as the sure forerunner of success. He immediately ran his fleet between the enemy and their own shore, and thus rendered it impossible for them to escape without a most desperate action being fought. The engagement took place. The result was a most decisive triumph for the British fleet. Out of the whole of the enemy's fleet, no less than nine ships surrendered. Lord Duncan had the high gratification of receiving on board of his own ship the sword of the Dutch commander, who was one of the most gallant men that ever paced a quarter-deck, and upon that memorable day reflected as much honour upon his country as lord Duncan had done upon England. Parliament would be doing great injustice to the English character if it did not take some measures for expressing its gratitude for the eminent services which the two great men whom he had brought under the notice of the committee had rendered to their country. The right hon. gentleman concluded with moving, 1. "That an humble Address be presented to his majesty, that his majesty would be graciously pleased to give directions that a Monument be erected in the cathedral church of St. Paul, London, to the memory of John Earl of St. Vincent, as a testimony of his distinguished eminence in the naval service of his country, and as a particular memorial of the glorious and important victory which he gained over the Spanish fleet off Cape St. Vincent on the 14th day of February 1797.—2. That his majesty would be graciously pleased to give directions that a Monument be erected in the cathedral church of St. Paul, London, to the memory of Adam Lord Viscount Duncan, as a testimony of his distinguished eminenee in the naval service of his country, and as a par-

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ticlar memorial of the glorious and important victory which be gained over the the Dutch fleet on the 11th day of October 1797; and to assure his majesty, that this House will make good the expenses attending the same."
Agreed to, nem. con.