Commons Sitting of 24 June 1824

REGULATIONS OF SURREY MAGISTRATES—PETITION OF DEBTORS IN HORSEMONGER-LANE GAOL.
Mr. Hobhousesaid, he had a petition to present on a subject of considerable importance. It was from the whole of the debtors confined in the gaol for the county of Surrey; complaining of the regulations to which, under the orders of the magistrates of that county, the gaol was subjected. In the first place, the petitioners complained, that the act of the 4th of his present majesty, commonly called the Gaol act, laid down certain rules for the regulation of gaols, which were very undefined in their character. He was of opinion that the House ought to interfere, and to correct the indiscretions which, under this act, the unpaid magistracy of the country were prone to commit. It appeared that by the 4th and 12th sections of the act, the justices of peace assembled at the quarter sessions, were empowered to make such rules with respect to gaols as to them might seem expedient. It was impossible to know how far such a power might be carried. If the justices of peace, assembled at the quarter sessions, chose to direct that every prisoner should have only a single ounce of bread, and a single glass of water per day, there was nothing in the act of parliament to prevent them from issuing such an order. Although many of the Surrey magistrates were men of the highest respectability, and among them his hon. friend (Mr. Denison), and the noble lord opposite (Eastnor), who was recently the Chairman of the quarter sessions; yet, after the treatment which, by their directions, had lately been experienced by a gentleman, whose case had made a good deal of noise—he meant captain O'Callaghan—it was impossible not to look at their proceedings with considerable suspicion and jealousy. The petitioners complained that, in consequence of the regulations of the magistrates, only one hour in the day was allowed for the debtors to provide themselves with food, bedding, clothes, and other necessaries. Now, as many of the friends of the petitioners lived at a distance from the gaol, and were engaged in business of various kinds, it must frequently happen, that the hour appointed for the purpose which he had just mentioned, which hour was from eleven to twelve o'clock, was inconvenient and in-
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sufficient. If, however, the unfortunate debtor did not receive the supply of which he might stand in need, in the course of that hour, the consequence was, that he might be without food for the next four-and-twenty-hours. The act under which this regulation was made stated, that the prisoners might receive food at proper hours. But, as he had already said, only one hour was allowed for that purpose at Horsemonger gaol; and this restriction in point of time was attended with great inconvenience and hardship. The act also said, that the magistrates should be empowered to make such regulations and restrictions under which food was to be permitted to enter the prison as to them might seem expedient. But, at Horse-monger gaol, in addition to the rule by which only one hour in the day was allowed for the admission of food, it was ordered that the food should be of the plainest kind, and nothing but water was allowed even to those debtors who could afford to pay for other beverage. This regulation was so cruel, that the very gaoler had relaxed its severity, and allowed each prisoner, if he chose it, a quart of porter a day. It must be recollected, that no huxter's or other shop, in which food, drink, bedding, clothes, &c. might be purchased, was allowed within the walls of the prison. Even if a prisoner were desirous of sending out for a little bread and cheese, the turnkey was not permitted to procure it for him. This regulation was enforced so strictly, that he understood a bun had been taken out of the hands of a child entering the prison, lest it should be given to its mother, who was confined in it. Such a law, if not wicked, was at least foolish, and very apt to be abused. The petitioners complained of another regulation, which was, that no visitor should be allowed to remain in the prison after five o'clock in the evening. The consequence was, that many small tradesmen, who were friends of the petitioners; and, which was of much more importance to them, the lawyers who practised in the Insolvent Debtor's court, were frequently prevented from seeing the prisoners at all. Similar regulations, not even that respecting food, did not exist in the Marshalsea and other prisons. Another complaint of the petitioners was, the grievance of shutting up the wards in summer at six o'clock in the evening. Those gentlemen who knew any thing of the situation of Horsemonger-lane gaol,

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would be aware, that the sun struck fiercely upon it throughout the clay, and that the evening was the only time in which it was possible for the prisoners to indulge in a refreshing walk. To prevent them from doing so was a severe punishment; more especially when it was considered, that the persons on whom it was inflicted were debtors, and were not persons contemplated by the law as criminals. The jet of the petition (and an extremely well drawn petition it was) was to beg that the House would amend the Gaol act. He hoped that in the next session, the House would take the subject into their serious consideration. It was impossible to go on allowing a discretionary power to magistrates. He certainly entertained a strong opinion with respect to the conduct of magistrates generally. Not that he believed that they wished to be oppressive, but that he thought the power of being so led them into error. He begged to entreat the right hon. secretary in the name of the petitioners, as it was too late in the session to amend the act of which they complained, to consider the expediency of interfering in his official capacity, with a view to mitigate the severity of the regulations of the county gaol of Surrey. He did not exactly know how the law stood. It appeared as if it enabled the magistrates at large to deprive themselves of their authority; for when, in the extraordinary case of captain O'Callaghan, that gentleman applied to the court of quarter sessions for relief from the hardships under which he was suffering, the justices of the quarter sessions said, that they could not take the case out of the hands of the visiting magistrates, although the latter were intrusted with their power, by the court of quarter sessions themselves! He did not know, therefore, whether the right hon. gentleman could interfere; but he was persuaded that he would do it if possible, if he read the regulations of the Horsemonger gaol, and saw how contrary they were to the spirit, and to the letter, of the Gaol act. They were regulations peculiar to Horsemonger gaol. None such existed at the King's-bench, the Marshalsea, or the Fleet.
Mr. Denisonsaid, that, in many points, he perfectly agreed with his hon. friend. He condemned the Gaol act: he hoped it would be repealed, and that the old law on the subject would be renewed. But, with many thanks to his hon. friend for the
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personal compliment which he had paid him, he could not accept it at the expense of his brother magistrates. Like other men, they were liable to err; and he certainly did think that they had erred with respect to captain O'Callaghan; but he was persuaded that no magistrates could exert themselves more earnestly for whatever they thought conducive to the welfare of the county to which they belonged. With respect to the state of the gaol in Horsemonger-lane, the complaints of the petitioners were, in some degree, well-founded. But they had directed their battery against the wrong quarter. It was the law of the land that was in fault. There were two grievances consequent on that law which required redress. The one was, that no fermented or spirituous liquors could be introduced into a prison, except by the directions of the surgeon; the other, that the prisoners had not a choice between accepting the gaol allowance and furnishing their own food. He was perfectly ready to allow that there was a wide difference between prisoners confined for debt and criminal prisoners. The former were, in many instances, the victims of misfortune, and ought not to be subjected to punishment. There were two of the regulations of which the petitioners complained, which he frankly allowed were hardships. The first was, the restriction of the time during which food might be brought into the prison; and which certainly ought to be during two or three hours, instead of only during one hour in the day. The second was, the restraint on the intercourse of the prisoners with their friends. As the regulations now stood, the prison gates were closed at three o'clock in winter, and at five in summer. Perhaps the hour might be advantageously extended to four in winter, and six or seven in summer. A further opportunity ought also to be afforded to the prisoners to enjoy fresh air in the evening. It was his intention tomorrow morning to bring these points under the consideration of the visiting magistrates. As to the case of captain O'Callaghan, he had not read the trial of that gentleman, nor did he know any thing of the parties. He had heard the case mentioned by an hon. member on last Saturday night. The first thing he did on Monday morning was to go to the gaol, and tell the gaoler, that he thought there must be some mistake in the business, and that he conceived the prisoner might have what food he required, as

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well as the newspapers, and every thing else that he wanted, with the exception of wine, which, in conformity with the law, could be introduced only through the means of the surgeon of the prison. With regard to the trial, his noble friend, the member for Hereford, who presided on that occasion, to whom the county of Surrey was so deeply obliged for his valuable services, and than whom no man could be found of greater humanity and discretion, never understood or thought that the prisoner would be treated in the manner in which he had been treated; or supposed that he would not have received all the indulgence that his situation required. He agreed with his hon. friend, with respect to the new powers which the Gaol act had vested in the magistrates. He had doubts also, if individuals, having seats in that House, should be also magistrates, whether the same persons should make the laws, and execute them also. He trusted, that after what had been stated, respecting captain O'Callaghan, the right hon. gentleman opposite would take the case into consideration, and with the humane feelings which distinguished him, extend the mercy of the Crown to an individual whom it was never intended should be punished so severely as he had been. He rather thought that that individual himself had committed a mistake, so fully confident was he of his acquittal under the circumstances of the gross insult and provocation that he had received, that he did not, as he might have done, bring his case before the court of King's-bench; in which case, he would have received every kind of indulgence. But the justices of the court of quarter sessions had no power to order him to any prison but the county gaol; a place which certainly was not fit for a person of his description. As far as he could, he would endeavour to remedy the two hardships to which he had adverted. The others were, he feared, beyond his power.
Mr. Maberlyobserved, that as the magistrates of Surrey had delegated their authority to the visiting magistrates, he hoped the error, if any, would be imputed to the latter alone. He should feel it his bounden duty, however, to bring the subject before the magistrates generally. They knew nothing of what had occurred. At least, he might say, as one of them, that he knew nothing about it.
Mr. Secretary Peelsaid, that with regard to the existing law on the subject of
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the petition, before hon. members blamed it, they would do well to see what the old law was for which it had become a substitute. As compared with that old law, there was not a single provision in the new law which was not favourable to the prisoners. He apprehended that he had no direct power to interfere on the points of which the petitioners complained. In fact, the less the Executive government interfered in such matters the better. The regulations of every gaol must be first agreed to at a general meeting of magistrates, and then submitted for the approbation of two judges of assize, before they could be carried into effect. He had the greatest confidence also in the magistrates of the country, and was convinced, that if any hardship sustained by a prisoner was submitted to them, they would immediately listen to the complaint, and, if it should appear a reasonable one, redress the evil. Interference, therefore, on his part, did not appear to be necessary. As to the case of Mr. O'Callaghan, he had made inquiries respecting it. He had had an interview yesterday with the noble lord who had presided at the trial, and he confessed that that noble lord had satisfied him of the propriety of the conviction. The case having been brought before the proper tribunal, and submitted to the investigation of a jury, a verdict of guilty was found; in consequence of which the magistrates sentenced the defendant to a fine of 20 l. and to a month's imprisonment. He (Mr. Peel) had asked the noble lord, whether in considering the sentence they should pronounce, the magistrates had taken into the account the recommendation of the Jury? His lordship replied in the affirmative. Under all the circumstances, therefore, he did not think the sentence unjust and severe, and did not feel it to be his duty to recommend to his majesty to remit it. Understanding that Mr. O'Callaghan complained of the treatment which he experienced in the prison, he (Mr. P.) had that morning required the attendance of the gaoler, and had directed that Mr. O'Callaghan should be at liberty to supply himself with whatever provisions he might wish for; and that his friends should have free access to him.
Sir R. Wilsonobserved, that they were informed by the right hon. secretary, that he had asked lord Eastnor whether the court had taken into consideration the recommendation of the jury: but, there was another question which the right hon.

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secretary ought to have put to the noble lord; and it was, whether the court had considered that the punishment to which their sentence had consigned the defendant, would have subjected him to such punishment as he had endured during the first eight days of his imprisonment.
Lord Eastnorexpressed his regret that he was not in the House when this petition was presented, but as he understood that a petition was to be presented from Mr. O' Callaghan, he would reserve any observations he had to make until that petition came before the House.
Sir F. Burdettwas sure, that his hon. colleague had not meant to cast any imputation upon the conduct of the noble chairman of the quarter sessions. He was likewise sure, that the humanity and liberality which always distinguished the conduct of his hon. friend, the member for Surrey, would lead him to mitigate the hardships of this prison law by every means in his power. He could not, however, help saying, that the case which was then before the House, showed that the alteration which had recently been made in the law of the country was a very grievous alteration; and he did not know how it was possible for any man with the ideas of a gentleman, to avoid experiencing the strongest disgust, on viewing the risk which he now ran of being subjected to the utmost degradation and insult for an offence which any of them might be urged to commit under the impulse of exasperated feelings. For his own part, he would declare, upon his honour, that he would rather be sentenced to be hanged at once, than to undergo the insults which captain O'Callaghan had suffered in the gaol to which he had been committed. He would ask whether any greater mental torture, any more flagrant mental degradation, could be inflicted upon any man who moved in the sphere of a gentleman, than to be placed behind iron railings, and to be compelled to communicate with his friends, not only upon the same terms, but also in the very company of a set of felons? He allowed that the present was an inconvenient time for entering into a discussion on the state of the prison laws; but, nevertheless, he could not refrain from expressing a hope, that the House would soon see the propriety of recurring to the old English law regarding gaols—of taking the management of them from the magistrates—of restricting the magistrates to their ancient jurisdiction—
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and of giving the custody of gaols to the sheriff, the old constitutional officer, to whom it had originally belonged [hear, hear].
Mr. Hobhouse,in reply, observed, that the law itself was so absurd and wicked, and gave so great a latitude to the magistrates by whom it was administered, that no man could be safe while it remained in the Statute-book. He was glad to find that his hon. friend, the member for Surrey, owned that three of the complaints made by the petitioners were well-founded. He had no doubt that in consequence of what had passed that evening, all those hardships would be remedied. Justice required it. He repeated that it would be much better to abandon the new-fangled system of gaol management, and to go back to the old practice, even with all the vices which belonged to it. As to the case of Mr. O'Callaghan, he would make only one remark. There was not a member in that House who did not recollect a C3se some years ago perfectly similar. He was far from meaning to say any thing personally unpleasant to the right hon. gentleman opposite. On the contrary, had he been in the situation of that right hon. gentleman's brother, on the occasion to which he alluded, he would have done just what he did. The act, however, was an assault similar to that which had been committed by Mr. O'Callaghan. But, what was the punishment? A month's imprisonment in the King's-bench. How different from the punishment of Mr. O'Callaghan! He had seen the prison, and the particular place in which the gentleman he alluded to was confined. He had his friends to dine with him every day, had any kind of food, had every indulgence he wished for, and walked about at his ease. But, Mr. O'Callaghan was shut up in a solitary cell twelve hours out of the twenty-four, compelled to live on bread and water, and, exposed to the most painful mental degradation. He knew the gentleman, and a more respectable man he never saw. The sentence, hard in itself, was rendered infinitely more so by the mode in which the gaoler thought he was called upon to carry it into execution. He had a right to say that the sentence was hard. Chief Justice Best had, the other day, declared, with reference to a respectable individual who had given another two slaps in the face, that the jury could not give more than a farthing damages. He would ask the

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noble lord, if the bench of magistrates intended that Mr. O'Callaghan should be punished as he had been; and he was sure the noble lord would reply in the negative. As therefore that gentleman had received a more severe punishment than the court intended, he did think that the right hon. gentleman was called upon to recommend the remission of the remaining term of his imprisonment.
Mr. Peelsaid, the hon. gentleman ought to bear in mind, that, in the instance to which he had adverted, the sentence, besides a month's imprisonment, was a fine of 500 l., and to enter into recognizances to the amount of 8,000 l. to keep the peace for five years. The law was, that a person committing a misdemeanour, should be subjected to a certain punishment; but it provided, that under special circumstances that punishment might be modified by the visiting magistrates.
Ordered to lie on the table.

PETITION OF LUKE CARLOS O'CALLAGHAN, COMPLAINING OF ILL-TREATMENT IN THE SURREY COUNTY GAOL.
Mr. Abercrombystated, that he had to present a petition from the individual whose name had been so often alluded to in the course of the late discussion; he meant Mr. O'Callaghan. The case of that gentleman had excited great public attention, and the only reason which he could find for its having done so was this—that when the public looked to the offence which Mr. O'Callaghan had committed, to the provocation which he had received, to the recommendation which the jury had given him for mercy, and to the treatment to which he had subsequently been subjected in consequence of his sentence, they saw that there was such a difference between the offence and the punishment, as compelled them to withhold their sympathy from the punishment, and to give it to the person on whom the punishment was inflicted. The petition was, in his opinion, well deserving the attention of the House; and he thought that the right hon. secretary, if he took it under his consideration, would see, that the petitioner had suffered a degree of punishment for the space of a week, which neither the noble chairman who passed the sentence, nor the bench who concurred in it, intended him to suffer. The hon. member then went into the particulars of Mr. O'Callaghan's case, reading them from the petition. After he had
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finished them, he called the attention of the House to the fact, that Mr. O'Callaghan had been obliged to submit to this extraordinary treatment for a week, and that he had not ceased to suffer from it until his hon. friend (the member for Surrey), with a humanity that was highly creditable to him, had interposed his authority to put an end to it. He asked whether any person, looking at the provocation which Mr. O'Callaghan had received, the offence he had committed, and the condition of life in which he moved, would have subjected him to all the severities which he had undergone? It had been said, that the bench, in passing sentence on Mr. O'Callaghan, had taken the recommendation of the jury into their consideration: but, in reply to that assertion, he asked, whether the bench would have passed the sentence which it had done, supposing they had known the different aggravations which it was to receive from the gaol regulations? Looking at all the circumstances of the case, he thought that strong grounds were laid for the interference of the House, and for its calling on the right hon. secretary to recommend the petitioner to the mercy of his majesty. The petition did not so much apply to the sufferings of the petitioner as it called upon the House to prevent similar severities from being inflicted on others.
Lord Eastnorassured the House, that he never undertook a more painful duty in his life, than that of presiding at the late quarter sessions for the county of Surrey. He undertook it not from any wish of his own, but at the request of his hon. friend the member for the county, in order to give the magistrates time to select a proper successor to their late worthy chairman, Mr. Harrison. He could assure them that he had given his best attention to this case, and that the rest of the bench had done so too. They did not wish to do any thing harsh, but they thought that they were bound by their sentence to mark their opinion of the assault which had been committed. He did feel that without a strong case, it was improper to allude in that House to what occurred before the judicial tribunals of the country; but, after what had fallen on the present occasion from hon. members, he felt himself bound to state, that the provocation which Mr. O' Callaghan received did not appear to be such as warranted, the assault he had made on the prosecutor.

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He did not feel it necessary to say more upon that part of the subject. If he had felt the sentence to be harsh, he certainly should not have passed it; but he did not feel it to be harsh at the time, and upon the reflection which he had since given to it he was confirmed in the opinion that he had done nothing more than his duty. There were, it was true, facts stated by the learned counsel for the defence, which if they had been proved, would have formed a provocation sufficient to justify the assault; but, so far were those facts from being proved, that there was even evidence on the other side to negative their existence. A defence, which added insult to injury, was considered by the bench as an aggravation of the original offence.
Mr. Maberlytrusted, that as there was to be a meeting of the Surrey magistrates to-morrow, they would resolve to appeal to the right hon. secretary to shorten the duration of captain O' Callaghan's imprisonment, in consequence of the aggravation it had received from the very hard discipline which they had imposed upon the prison. For the honour of Surrey, he hoped that nobody would in future suffer in any of the county gaols a greater punishment than that to which the bench intended to consign him.
Lord Eastnorsaid, he was anxious to make one observation which had before escaped him. He was not, when the sentence was passed on this gentleman, aware of the precise nature of the prison regulations; and when he was told of the privations to which Mr. O' Callaghan had been subjected, he doubted the statement, and said, that there must be some mistake. He, however, learnt, that the statement was true. He was afterwards informed, that those restrictions were removed, and every fair and reasonable indulgencegiven, and he was glad of it.
The Petition was ordered to be printed, It was as follows i—
"The humble Petition of Luke Carlos O' Callaghan, a prisoner now confined in the Surrey Gaol,
"Humbly showeth—That your Petitioner was on Monday the 14th instant tried at the quarter sessions for the county of Surrey, for an assault on the rev. James Saurin; that on the trial it appeared that your petitioner had some ladies under his protection, and that it was in resenting what he conceived to be, and what he
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still believes to have been,, a wanton insult to those ladies by the prosecutor, that your petitioner committed the act which the jury on the trial found to be a breach of the peace.
"That the jury, impressed with the feeling that the conduct of the prosecutor had provoked the assault, did, in pronouncing your petitioner guilty, strongly recommend him to the mercy of the court; but that, notwithstanding such recommendation, the court sentenced him to an imprisonment of one month in the county gaol, and to pay a fine of 20 l.
"That from the time of his imprisonment your petitioner was limited (with the exception of part of one day) to the county allowance of course brown bread and water; that though he repeatedly asked permission to provide himself at his own expense, such permission was constantly refused by order of the visiting justices. Your petitioner was, during the above time confined for 12 hours in each day in a solitary cell, 8 feet 6 by 6 feet 4, having no other sleeping place than a mattress spread on a plank 20 inches and a half wide, with a covering of two rugs and exposed in this situation to the damp night air, there being no glass within the iron grating of his cell; that in the daytime he is confined to a court about eight yards by six; that in the sitting or day-room there is neither table or chair, or any resting place except a narrow bench close to the wall.
"That your petitioner has been prevented from holding any communication with the friends who visited him in prison, except through two iron gratings, placed several feet apart, exposed to the inclemency of the weather, and liable to have all that passed between them heard by the surrounding prisoners. That your petitioner was, during this time, not allowed even permission to receive or read a newspaper.
"That notwithstanding that your petitioner memorialed first the magistrates, in court of quarter sessions, and afterwards the visiting justices, stating his case, and praying for redress, your petitioner received no relief from either source; and that he continued to be treated (as he respectfully submits) more like a felon, than a mere misdemeanant, up to Monday the 2lst, when, by the humane interposition of Mr. Denison, a member of your honourable House (and one of the visiting justices), some relaxation took place in,

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the severity of your petitioner's treatment but that he is still subjected to many restrictions and privations, not called for, as he humbly submits, by the nature of his case.
"That your petitioner has transmitted a memorial to the right hon. the secretary of state for the Home Department, stating the nature of his sufferings, and imploring a remission of his sentence.
"That this memorial was accompanied by one from the jury who tried your petitioner, in which they earnestly recommended your petitioner to the mercy of the Crown, on the ground of the provocation given by the prosecutor.
"That your petitioner has every confidence that the humane disposition of the right hon. secretary of state for the Home Department will lead him to give to your petitioner the most merciful consideration; but your petitioner, believing that, as faithful guardians of the public liberty, your honourable House will feel disposed to give effect to the prayer of one in whose case that liberty has been violated, most humbly implores,
"That your honourable House, taking all the circumstances of his case into consideration, may be pleased to support the prayer of your petitioner's memorial in such a manner as to your honourable House shall seem proper.
"Your petitioner further most humbly begs, that your honourable House may be pleased to institute an inquiry into the conduct of the visiting justices with respect to your petitioner's treatment, and also into the manner in which prisoners generally are treated in the Surrey gaol in order that timely steps may be taken to remedy such abuses as those under which he now suffers. And your petitioner, as in duty bound, will ever pray."