§ Sir C. Wetherell
rose [a little before ten o'clock] to bring forward his Motion, he said, on the subject of certain recent prosecutions which had excited much of the public attention. In rising to bring on so important a discussion, he was aware of the onerous nature of the duty which he was about to discharge; he was, besides, and so must the House be at that hour, a little fatigued, from attention to previous business. Since he had the honour, however, of a seat in that House, he had always, perhaps too long, found the members consideratively attentive to his humble appeals to their indulgence. Indeed, he knew from some experience, how great was their patience, their sense of duty, and their diligence in attending to all matters of general importance, without being diverted from the consideration of them by any reference to the humble ability of the person who introduced them. It was this which induced him to think, however inauspicious were the circumstances under which his Motion appeared; however disadvantageous the position in which he stood as an individual, that nevertheless they would not withdraw from him their attention while he discharged what he felt to be an imperative duty, in bringing forward a question, which he believed would be found so important as to maintain itself against his own comparative incompetency. Indeed, if the House could, as he had seen, devote itself for above two hours to discuss the construction of some such thing as a lease in the progress of some public improvements, if a trial of that kind could have been thus carried on for two hours, the trial of Mr. Alexander would, he hoped, be listened to with equal patience, since it involved so many considerations of more paramount importance. Before he stated the subject matter to which he wished their attention to be more particularly directed, he trusted they would not deem him trespassing on their patience, or incurring a charge of presumption (from which he should gladly escape) while he stated two or three reasons which prompted him to come forward on this occasion. It was well known that he now stood in a situation perfectly different from that in which he had previously stood towards Lord Lyndhurst, the Duke of Wellington, and the right hon. Secretary of State for the Home Department. From, the position in which he had once 1168 been placed with regard to these individuals, when he was asked to undertake the defence of Mr. Alexander in the three informations in the Court of King's Bench, he had then declined, knowing that as an advocate in Westminster Hall he should be precluded from touching on any topics not contained in the record. But if, after the trial of that individual had taken place, he thought thereby the fair liberty of the press, the privileges of the House of Commons, and the spirit of the Constitution had been invaded, he then had a right, in that House, and in the exercise of that unrestrained and unrestrainable free agency which belonged to every Member of the House of Commons, to take up those topics of discussion, and to inquire how far the course pursued at Westminster Hall was consistent with the practice and spirit of the Constitution. But if, in doing so, he should assume any point which was untenable, if he made any complaint which was groundless, if he urged any objection against the Government, its ministers and officers, which was unfounded in fact, and untenable in principle, or not congenial to the sense, spirit, and language of the Constitution, he was liable to the reprehension of the House: his absurdities would be open to ridicule, and his arguments to refutation. He therefore could not be considered as pursuing an unmanly course, in making objections in that House against the proceedings which had taken place in Westminster Hall, because there he was exposing himself to that sort of ordeal to which he would not have been subject elsewhere. In declining elsewhere to undertake the advocacy of the person charged with libel, he had reserved to himself the right of calling the attention of the House to some points which he considered as most important with regard to the privileges of the House, and the constitutional law of the land, certainly the most important which had ever been discussed since the Revolution, [hear, hear.] The papers and documents for which he should move, were copies of the proceedings in the three ex officio informations which had recently been tried in the Court of King's Bench against Mr. Alexander, the editor of a paper called the Morning Journal, copies of the several judgments entered against him upon the records of the above informations, and how the same were entered, an exact minute of the terms in 1169 which each jury pronounced their verdict against him upon each of the above informations, and an exact minute of the terms in which any of the juries expressed a recommendation of him to mercy. Those were the documents to which his Motion applied. It was true that the Motion contained no notice of any practical measure to be proposed in the way of legislative enactment. Any ulterior measure, however, of such a nature must depend on the acquiescence or non-acquiescence of the House in those views, which, if its candour and indulgence would permit, he should have the honour of laying before it. His present Motion, however, only went to the production of those papers, in order that that House and the public might have before them, as parliamentary documents, proper data on which they might form an opinion as to the legality, fairness, or candour of the proceedings to which those papers related. He should never have made the present Motion on his own individual opinion that those proceedings were unfair and unconstitutional, but he had been informed that throughout the Kingdom they had excited general dissatisfaction. He had been informed, and he believed the fact to be, that those multiplications of official informations against an individual editor of a newspaper, were not so much intended to beat down the editor as to beat down the cause which that editor represented. He had been informed, that not only those persons who had been the vanquished party on the great question of Catholic emancipation, but that all persons of every description and party, thought that the late proceedings in Westminster Hall were partial, unfair, and oppressive. Why he had not undertaken the defence of Mr. Alexander elsewhere he had already stated; but he was bound in that House to state his own opinion, that the proceedings taken against that gentleman were partial and oppressive; and he would take the liberty of stating to the House why he thought so. He could assure the House that he had devoted no small labour to the investigation of this important topic, and nothing less than the consciousness of having a substantial case to lay before the House would have induced him to-enter into its discussion as a Member of Parliament. He therefore took the liberty of calling the attention of the House to those proceedings, the papers of which his Motion sought 1170 to have laid on the table. The House was aware that there had been recently filed against Mr. Alexander three ex officio informations. The first was for a libel against Lord Chancellor Lyndhurst; the second for a libel on the Duke of Wellington and his Majesty; and the third was for a libel, which he was unable to describe in any other way than by calling it an omnibus libel, or what in cookery was named hodge-podge. It was for a libel against the Government, against the right hon. Gentleman the Home Secretary, whose dignity ought to have required something more distinct, against the House of Commons; and for an attempt to inflame the people, cum quibusdam aliis. Such an information had no precedent in the records of any court of justice. Those were the three informations, exact copies of which his Motion sought to have laid on the Table; and if in what he was about to address to the House he should impugn men, not measures, he hoped the House would remember how difficult it was to speak de re without speakingde personâ if he should happen to allude to any thing which might be personally offensive to any one—quod Deus avertat—he could say most conscientiously, and as a man of honour, that no person would feel more hurt thereby than the individual who was now addressing the House. All he could say was, that if any thing did escape from him which might be considered offensive, indictum puta, suppose it not to have been said. In his opinion the Lord Chancellor did perfectly right in commencing legal proceedings for having been charged with receiving a bribe for the appointment of a learned gentleman to the office of Solicitor General. Every one knew that that learned gentleman's promotion had been earned by his eminent talents as a lawyer, and he would not tarnish his own integrity by using any of those dirty or miserable means of promotion alluded to in the libel which had been prosecuted. Every one who knew the Lord Chancellor was aware that he was incapable of the conduct imputed to him, and he was called upon by public opinion, and in defence of his own character, to defend himself against that libel. In compliance with his own feelings, and the requisition of public opinion, the Lord Chancellor therefore proceeded to bring before the public the individual who had charged him with the legal crime and moral corruption of having procured 1171 the appointment of a learned gentleman to a legal situation under the Crown. He thought that the Lord Chancellor had acted perfectly correct in instituting legal proceedings, and accordingly an Information was moved in the King's Bench by the Attorney General, whose talents and eloquence were generally acknowledged. If he should be obliged to censure the proceedings of the individual who now filled the office of Attorney General, he hoped that he should be considered as speaking of the office only, dropping entirely the name of the person who filled it. In order to obtain an information in the King's Bench, it was necessary for the party applying to make affidavit denying the truth of the allegations of which he complained. Such affidavits were made both by the Lord Chancellor and Sir E. Sugden (the Solicitor General), and Mr. Alexander being called on for his defence, he stated that he meant no allusion to the Lord Chancellor. The application had been made by the Attorney General entirely in his private capacity; and the defendant had been put to the vexation, trouble, and expense of meeting that private application. Soon after his defence had been put in, what was the next step taken by the Attorney General? He then virtute officii, in his official capacity, filed an ex officio information against the same individual! He would take the liberty of saying, that in the whole history of Westminster Hall, so extraordinary and oppressive a proceeding had never been heard of. That was a statement he felt it necessary positively to make. The case of an information having been applied for and granted against an individual on the subject of libel, and afterwards abandoned by the Attorney General, who adopted other proceedings against the same individual, was a case unprecedented and unheard of in the annals of judicial proceedings. He would say, that such a proceeding was a breach of the Constitution of the realm, oppressive, and intolerable. He was not uttering merely his own individual sentiments on the subject; he knew that he had concurring with him in that opinion, every lawyer in Westminster Hall, with but one exception, and that was the man who instituted the proceeding. He spoke advisedly, when he said, that there was no lawyer in Westminster Hall, who, if he were tailed to the bar of that House, and examined, would characterize that proceeding in any other way than by de- 1172 signating it as unprecedented in the history of the law. But the case was not merely a departure from all precedent; it had been followed with consequences of vexation and oppression to an individual. That was one of the complaints which he had to make. He need not describe in what way the proceeding was vexatious. An individual had been put to double expense, and had been twice placed on his trial for the same offence. Though he was no reformer, he was always ready to support any wholesome and wise change; and he felt deeply indebted to the right hon. Gentleman, the Home Secretary, for the many bills he had introduced reforming the practice of the law. Among those bills was one to prevent a man being subject to what was called acquittal-fees. Now the Attorney General had commenced a private suit against an individual, and after putting him to the expense of defending it, he abandoned the private suit, and instituted a public one. He therefore hoped, that the right hon. Secretary would introduce into his bill a clause indemnifying Mr. Alexander for the litigious proceedings instituted against him, in the first instance by a private suit, and afterwards by an ex officio information. He would then call the attention of the House to a subject of great importance. The learned judges of the Court of King's Bench, Lord Tenterden and Mr. Justice Bayley and the other two learned Puisne judges, stood in no need of his eulogium on their honour, learning, or impartiality. But let the House consider the situation in which they were placed, after Mr. Alexander had made his defence, stating that he had meant no allusion to the Lord Chancellor. The Attorney General thought, however, when he had seen the defence, that he had better have an ex officio information. Every one knew that the Attorney General, as the servant of the Sovereign, had a right to file an information ex officio, without asking leave of the Court; and he chose to exercise that right. Mr. Alexander on that occasion employed a gentleman whose talents and learning he need not describe when he mentioned that Mr. Denman was the person who moved the Court of King's Bench to put the Attorney General to his election as to which suit he would proceed with, the private or ex officio information. The Court said, that it could not compel the Attorney General to abandon his own information, but it decided that the infor- 1173 mation previously granted should not be resumed without its pleasure. Upon the ex officio information, the individual was tried, convicted, fined, and imprisoned. He had already said—what every fair and honest man must admit, that the Lord Chancellor was entitled to prosecute the libel which had been written against him; but it must be obvious to the House, that the proceeding which had been adopted was a most strange departure from the principles of the law of the land. Of course he was not aware what Ministers had attended the Cabinet when it was decided to direct the Attorney General to proceed by an ex officio information; but he was bound to suppose, that when that order was given, so contrary to all precedent, and to the spirit of the Constitution, the Lord Chancellor was not present. That learned individual could not have been one of the Ministers authorising and directing such an unconstitutional proceeding. He was not complaining that Mr. Alexander had been brought to trial and visited with punishment, but it was the departure from precedent to which he objected. Suppose that Mr. Alexander had been acquitted on the ex officio information, what was to prevent the Attorney General trying him again, after his acquittal, on the private suit? It was very true that Lord Tenterden and the other honourable judges of the Court of King's Bench would not suffer a man to be twice tried for the same offence; but still there might be times when political and party spirit would reach the Bench, and when the judges would be told to bow to the Government, and a certain curious Letter, which had lately been made public, might be brought from the banks of the Ganges to the shores of the Thames. A noble Lord on the first day of the Session told the House that the Government was to be conducted on a new principle. It was to be composed of Tories on Whig principles. He was one of the Tory party, and was sure that the proceedings lately instituted in Westminster Hall ought never to have been sanctioned either by a Whig or Tory Attorney General. It was said, that the Government was to be composed neither of Whigs nor Tories, but of what was called by the writers on the subject a tertium quid, without any principle at all. [Laughter.] If he should call the Administration an unprincipled one, only twenty yards from that House, he might expect to have an ex 1174 officio filed against him, though all political, moral, and historical writers agreed that unprincipled did not mean bad-principled, but merely the want of any principle of action. The Whigs prided themselves on their abstinence from power, on their kindheartedness, and their milkiness of human nature; and the Tories also claimed to live in the land of milk and honey. They claimed the same kindness of disposition, the same abstinence from acts of power. Oppression was on both sides disclaimed, yet it did in fact exist. If any hon. Member were to ask whether he meant to follow up his present Motion by the introduction of any practical measure, he would reply that he should not distinctly pledge himself to such a course. He thought that the Attorney General's power of filing ex officio informations should exist, as it was necessary that some individual should have the power of prosecuting offences againt the body politic of the state; but he thought it would be wise and prudent to prevent the repetition of such a case as he had alluded to, that of an Attorney General proceeding by official indictment, after having instituted a private suit for the same offence. He therefore thought, that it was for the House of Commons to place some restriction on the exercise of the powers thus committed to his Majesty's Attorney General. He had already said so, and he would repeat, that the Attorney General should be restricted to one or other of the different courses of proceeding which were open to him in cases of this description. Here it appeared that, in the first instance, the Lord Chancellor had made his election, but the Attorney General afterwards turned round, and said, "I have changed my mind." Any man, certainly, had a right to change his mind, and no man, undoubtedly, had a better right to do so than the Lord Chancellor, for he had changed his mind already more than once. Men had a right to change their minds, not a doubt of it. He did not dispute the thing at all; but the question was a different one when it regarded the mode in which one of the King's subjects was to be tried, under the law of the land. He would state to the House the view in which this matter had been taken by a former Attorney General, who was afterwards Lord Chancellor in this country. In 1773, Lord Sandwich was First Lord of the Admiralty, when Lord North was Prime Minister, and Lord Halifax Secretary 1175 of State. That was the position in which these individuals stood towards each other when a libel was published against one of them; and he would tell the House the course of proceeding which was then adopted towards the alleged libeller by the Attorney General of that day. The alleged libel was contained in a letter published in the London Evening Post, which charged Lord Sandwich with corruption in the disposal of certain places within his department, as First Lord of the Admiralty; and, in particular, the letter-writer charged that noble Lord with having exposed the office of a Commissioner of the Navy to sale for 2,000l. What was the conduct of the Tory Attorney General of that day, Lord Thurlow, in contradistinction to the conduct of the Whig Attorney General of the present day? The course which Lord Thurlow pursued was that which law and justice pointed out for his adoption. He did not change his mind—he did not commence one species of action, and then afterwards turn round and assail the unfortunate defendant by another and a more vexatious line of proceeding. No, Lord Thurlow was too good and too constitutional a lawyer to do that. What, then, was done? Lord Sandwich proceeded against the alleged libeller by a private action, and he obtained 2,000l. damages. There was a detailed report of the trial to be found in the Annual Register of 1773. It appeared from that report, that the Attorney General put the action upon the ground of personal slander and defamation of the character of Lord Sandwich. He did not say that the action was brought for a public libel upon the Government; he did not file a criminal information and proceed against the individual in question by a public prosecution in the name and on the behalf of his Majesty's Ministers. No, such a proceeding as that was reserved for the present day, and for a Whig Attorney General. It was to be observed that the mode in which persons might proceed in cases of libel was by action, or indictment, or by filing a criminal information in the King's Bench. Lord Sandwich thought proper to proceed against the individual who had libelled him by indictment in a personal and private action. That was the course which was recommended and adopted by the then Tory Attorney General, Lord Thurlow. There was no ex officio information filed in that case,—there was none of the changing of 1176 mind and deviation from the original proceeding, as had been seen in the instance to which he was now directing the attention of the House. The noble Lord (Lord Lyndhurst) might have very good grounds for changing from one course to another, and from one opinion to another; but it remained with those who gave him such counsel to show that he had just grounds for doing so. He would only refer the House to the case of another Lord Chancellor, he meant Lord Loughborough, who, when similarly aggrieved, did not adopt what he must say was a most harsh mode of proceeding. The cases were nearly similar; the individuals attacked occupied the same high and exalted situation, and yet Lord Loughborough thought fit to proceed by a private and personal action for a public libel upon his character. Lord Loughborough, a member of the Privy Council, and a Cabinet Minister, was charged with frequenting certain places on the left-hand side of St. James's-street, with which, perhaps, hon. Members were not quite unacquainted, and with losing his money in gambling. He brought his action for this libel, and he recovered damages. There, was still another case which he would quote to the House. At the time that Lord Grenville was Minister, a charge was made against Lord Moira of having disclosed the Cabinet secrets; and if any charge affecting a minister could be considered in the light of a libel upon his public and official character, that surely was the one. Yet what was done in that case?—An information was filed in the King's Bench; Lord Moira made an affidavit denying the truth of the charge; a similar affidavit was made by Lord Grenville; the individual against whom the information was filed confessed that there was no foundation for the imputation which had been made against the noble Lord, and the thing was dropped there. He mentioned these cases, to show that in several instances, where individuals filling high situations in the government of this country had been publicly libelled, they uniformly resorted to personal and private prosecutions to vindicate their characters. The cases of Lord Sandwich and Lord Moira were quite in point with the present case; and with every submission and deference to the present Lord Chancellor, he conceived that those noble individuals had acted much better in instituting a private suit for the vindication of 1177 their characters, than if they had resorted to the mode of proceeding—in his opinion unprecedented and oppressive—which had been adopted in the case of Lord Chancellor Lyndhurst. He next came to the informations which had been filed against Mr. Alexander, charging him with having published a libel upon his Majesty and his Ministers. The House would probably allow him, where the materials connected with this subject were so extremely extensive, to classify the cases to which he should call their attention. His object in doing so was to place before the House, in the strongest point of view, the objections which he conceived applied to the three cases to which he should now take the liberty to call the attention of the House. The second of these cases was an ex officio information filed against Mr. Alexander for a libel on his Majesty's Government, and upon the Duke of Wellington. The terms in which the Duke of Wellington was described in the publication in question were charged as libellous, to him they seemed by no means to deserve that designation. An hon. Member had, upon a former night, done ample justice to the great merits of the Duke of Wellington. He would be glad to express himself, did he possess the power, in equally eloquent terms, as to the great merits and eminent services of his Grace. But while he was ready to do the fullest justice to the merits of his Grace, he conceived that as a Minister, and respecting his public capacity, they had a right to look, not to the Duke of Wellington, or the individual, but to the Minister of the Crown; and as such, and occupying such a responsible situation, his Grace was open to public animadversion. If a different opinion existed on that point, and if a different principle should be adopted, with regard to him, there was an end at once to every tiling like free discussion. If the hero of Waterloo,—if he who had by his achievements equalled the great Duke of Marlborough, and who perhaps was unrivalled by any captain of his own age—if he should, by a concurrence of circumstances, come to be employed in a high civil situation under the Crown, and if we were to be prevented from looking upon him in his civil, apart from his military capacity,—if we were not to be suffered to separate the civilian from the soldier, and to canvas the merits and demerits of the individual in the former 1178 capacity distinct from the latter,—there was an end at once to free discussion regarding his conduct as a responsible Minister of the Crown of these realms. If it were maintained that the soldier was so bound up with the civilian, that we had no right to canvas the merits or demerits of the individual in the latter capacity, he would repeat that there was an end altogether to every species of free discussion in this country. He hoped and trusted that, in expressing his opinion of the noble Duke's public conduct, it would not be supposed that he for a moment felt the less grateful for the eminent military services which his Grace had rendered to his country. It was one thing to feel grateful to him for his services in his military capacity—it was another thing to approve of his public conduct as a minister of the Crown. Mr. Alexander was charged in this information with having published a libel upon the Government and upon Ministers,—upon the Duke of Wellington and upon his Majesty. That was the order observed in the information. Formerly, the question was whether Ego or Rex meus should be first, but here the point seemed to be settled in a summary way, for the Rex was put in the rear. When Ministers and the Sovereign were thus mingled together, there was too close an approximation between them; and that relative distance which ought to be preserved was completely left out of sight. It might have been as well if this indictment had been so worded, that the libel upon his Majesty could be separated from the libel upon his Majesty's Ministers, for in consequence of the way in which this information was framed, it led to some degree of confusion. The theory of the Constitution was, that the Ministers and the Sovereign were the same,—practically they never were so, and he (Sir C. Wetherell) never considered them the same either theoretically or practically. Sure he was, that that opinion was more in accordance with the spirit of our laws and of our Constitution, and with the true interpretation of their meaning than the contrary principle. He thought that the character of the Sovereign should not be thus merged and mixed up with that of his Ministers, should not be brought into an approximation with his Ministers, so as to diminish the reverence that belonged to the regal character; and that such a confusion should not take place as was observable in this 1179 information, where the Duke, and the Ministers, and his Majesty were joined together in one indiscriminate charge of libel. Referring to the libel in question, he would ask any man to say whether he could consider such a publication a libel upon his Majesty or upon the Duke of Wellington. His Grace was called an "ambitious Minister?" was that a libel? Would it not be libel to say he was not ambitious? Had there ever been a Minister without ambition? or could any man be a Minister unless he were ambitious? One of the charges in this information was, that it was alleged in the libel that "His Majesty had lately evinced more than even a marked coolness towards his Grace the Duke of Wellington." He would ask whether, since the Star Chamber had been abolished, it had ever been charged as a libel, to say that a Minister was coldly received by the King at Windsor? He should be glad to hear any man stand up in that house and assert, that at any period since the abolition of the Star Chamber, there had ever occurred so tyrannical, or so unjust a proceeding as the prosecution of an individual for libel, because he asserted that Ministers had been coldly received by the Sovereign. He would go to the page of history,—he would call upon all those who were conversant with history,—he would call upon all those Members who had read the Journals of that House,—he would call upon all those who were deeply versed in books, upon philosophers, statesmen, politicians, antiquaries, upon the readers of our annals, and the admirers of our Constitution, and he would ask any man amongst them to point out a period since the extinction of the odious Star Chamber, when so vexatious, so tyrannical, and so unjust a proceeding had occurred. He would ask any one of them to tell him of a time when any man ventured—dared, to prosecute any individual in this country for libel, because he said that a Minister had been received coldly by his Sovereign. That was a portion of the charge which had been actually introduced into the information against Mr. Alexander. He should now go to the next charge in the information. Mr. Alexander was charged with having called the Duke of Wellington an "imperious Minister." Who could doubt the truth of the expression, that had witnessed his Grace's conduct since his accession to power? Had he not carried a measure in despite 1180 of the opposition of the people of England, and in contradiction, as he believed, to the wishes of the Sovereign? But the libel also accused him of being not only an ambitious but likewise of being a "dangerous Minister." He would not here enter into a critical discussion respecting verbal niceties and distinctions. He remembered very well, Johnson said, that "criticism disdained to chase schoolboys to their common-places." Who, however, that was ambitious, was not dangerous? The Duke of Wellington was ambitious, and therefore he was dangerous, and this he would maintain was sound constitutional doctrine. But he would also maintain, that if any jury of twelve men, of men without coats, without shoes or stockings, without hats, that a jury, in fact, composed of complete sans culottes, that if such a jury were asked their opinion fairly upon this publication, not a single individual amongst them would pretend to call this a libel [hear, hear]. But it was alleged to be a libel to call the Duke of Wellington "an ambitious Minister." Sure he was, that neither the Duke himself, nor any other man, would deny that he was an ambitious Minister, when he was able to carry a great question which had dissolved three Cabinets, which had dissolved the Administration, which had dissolved the "talents" Administration, and which had dissolved, or at all events prevented from being completed, the Administration of Mr. Canning. Could he be said not to be ambitious when he aspired to carry, and succeeded in carrying, a question which had thus broken up three administrations, and had been in vain attempted by the ablest men in this country? After doing so much, the noble Duke should not quarrel with phrases, or feel annoyed when called an ambitious man. He trusted that the House would keep in mind the precise course of this argument. The publication charged as a libel went on to say, that his Majesty was unpopular, and that he was not able, in consequence of the measures of his Ministers, to go out in public, or to show himself to his people at the theatre. Now, the noble Lord behind him (the learned gentleman was understood to allude to Lord Palmerston) had, upon a former evening, let out some secrets of state which showed that our foreign affairs did not go on satisfactorily. It was evident from the disclosures made by that noble Lord, that the ministerial carriage did not move on smoothly, that 1181 it had a break down at some time or other; that there had been a stoppage of it; and, to carry on the metaphor, they pretty well knew that such an accident was likely enough to occur under a Constitution like ours, where the legislative power was divided into three parts, the Regal, the Commons, and the Aristocracy. Now it was to be considered here, that as to the regal part of the Constitution, there was not a question that it was sui juris, and that it possessed rights peculiarly belonging to itself. Yet, in the King's Speech, or rather in the speech which Ministers made for him, at the commencement of the last Session of Parliament, his Majesty was made to state that which he did not willingly state, as regarded the Catholic question; and this he would assert, that upon that subject there was a complete difference of opinion between the regal branch of the legislature and the two Houses of Parliament. He would assert that he knew that to be a fact, and that there was a disinclination in the regal quarter to assent to that measure. He would deny, if a case should arise in which those two branches of the legislature should concur as to a certain measure, that it was either illegal or unconstitutional to discuss how far the regal part of the Constitution was or was not sui juris, entitled to maintain its own opinion on the subject. The regal branch of the legislature was totally and completely distinct from the other two branches, and it could not be controlled by them without a violation of that freedom of opinion which should in that capacity belong to it. He would call the attention of the House to a case in point, quite in point with the present, and he would beg their particular attention to the law as laid down in that case by that admirable lawyer and great judge, the late Lord Ellenborough. Mr. Perry, the late proprietor of the Morning Chronicle, was tried for a libel in making a contrast between the system pursued in the reign of George 3rd and the system which was likely to be pursued on his Majesty's demise by his royal successor, our present gracious Sovereign, and it was intimated in the article that the successor of his Majesty George 3rd would have, of all our monarchs since the Revolution, the finest opportunity of becoming popular. What did Lord Ellenborough say in that case? "A change in the system of Government might be pointed to without a crime. An error in Government might be marked in 1182 the language of severe reprehension, without incurring the guilt of libel. There might have been an erroneous conception of the public interests; there might have been grievous and gross mistakes in foreign and domestic policy; it would be no crime to observe upon these things. Error was human, and to reprobate that error, and expose its nature, was not libellous. To impute a guilty motive was the crime, and if they thought the defendant to have proceeded to that extent (of which he had some doubt), they must find him guilty. It could be no crime to say that his Majesty had taken an erroneous view of public matters. Such was the law, as laid down by that able and learned judge, who decided that it was legal to discuss such matters, and that there was no libel in doing so, provided criminal motives or criminal errors were not imputed. He should not go further than the high authority of Lord Ellenborough on the subject of libel. It was plain from that, that it was perfectly legal to attack the measures of his Majesty's Ministers; and Lord Ellenborough laid it down that to impute mere errors to the personal agency of the regal branch of the Constitution in its individual capacity, was not libel. It was no libel, to say that Ministers should not be allowed to press too far upon the regal branch of the Constitution. It was the duty of the subject to vindicate the freedom of that branch of the Constitution, and it was, according to Lord Ellenborough, no libel to do so. He was sorry he was not in the House the other evening, when the hon. Member for Westminster and the Attorney General entered into some conversation with one another on this subject. He understood, however, through other channels, that on that occasion the hon. Gentleman said, he had got a verdict in this case. He (Sir C. Wetherell) would say to him, that he got, on the contrary, a rap on the knuckles. He wished him only the same luck in future. An individual was charged with libel for attacking the measures of his Majesty's Ministers, and for calling the Duke of Wellington "ambitious,"—that Minister who had carried a measure which had dissolved the Pitt, and "Talents," and Canning Administrations,—the Jury were told that that was the case, and that that was all, and they gave their verdict accordingly against the defendant. Why, the whole proceeding was a complete gallopade on the part of 1183 the Attorney General; it did not even deserve the title of a sober waltz. What was really the verdict of the Jury in this case? The Jury said, "We find the defendants guilty of a libel on his Majesty, but we do not find them guilty of a libel upon his Majesty's Ministers. We also beg to state, it is our opinion, that the Article in question was written under feelings of very great excitation, occasioned by the unprecedented agitation of the time. We, therefore, most earnestly beg leave to recommend all the defendants to the merciful consideration of the Court." If that were the sort of verdict which the Attorney General boasted of getting, he would only wish much good luck to him in that way hereafter. The Jury had referred to the unprecedented agitation that prevailed when the article in question was written. Never did he recollect a period of greater agitation in this country. The Prime Minister had come down to the House of Lords, and given his support to a Bill which he declared was necessary for the safety of the country. Scarcely had he sat down, when up rose the Primate and Metropolitan to oppose the Bill, and move its postponement to that day six months. The Lord Chancellor on the Woolsack was sure that the country would stand stock still without it, and the Ex-Chancellor declared that it would be the ruin of the Constitution. One portion of the rev. bench of Bishops voted for it, and another portion voted against it. The Lord Chief Justice of Ireland said, that unless the bill were passed the connexion of the two countries would be rent asunder; and the Lord Chief Justice of England said, that it would sap and undermine the Constitution of England. The right hon. Secretary of State, who eighteen months before the time he was speaking had declared that an united Cabinet upon that question could not exist, in nine short months afterwards turned round, changed his opinion, and he who had been called the leader of the Protestant party became the prime supporter of this bill. A Lord Lieutenant in Ireland, who had had his leg chopped off at Waterloo, had the Vice-regal stool chopped from under him in Ireland; and, in fine, a measure which had dissolved three Cabinets, was carried against the well-known sentiments of the Sovereign, and despite of the opposition of the people of England. Never was there a period of greater excitement: there were 1184 no such personal contests or disputes at the period of the Revolution, nor at the period of the settlement of the Crown, nor at the time of the American war, nor during the continuance of the Revolutionary war with France,—none of these periods had been distinguished for such separations of personal friendships and political connexions,—for such rending asunder of old attachments, and party ties; and well might the Jury say that it was a period of "unprecedented excitement and agitation." Was the editor of a journal, in such times, to be prevented from sharing in that general excitement, and receiving a spark of that flame which spread throughout society? Why was Mr. Alexander alone selected for punishment because he partook of that excitement which was shared more or less by every individual in the country? He would tell the House the reason. Because Government wished to break down that party which he represented. The motives which induced him to bring this case of oppression and hardship under the consideration of the House flowed from his unbiassed judgment and reflection. He did not know, if he had been tempted, during the late extraordinary excitement, to commit his opinions to print, that he might not perhaps have used as strong language as the editor of this journal who had been so severely persecuted. He had seen an account— but perhaps as it was in The Morning Journal it could not be a correct one—of what had fallen from the Attorney General at the trial of this case. In that account the hon. and learned Gentleman was represented to have said, that it was a libel to represent, the feelings or opinions of the Sovereign as under the coercion of his Ministers. He denied the assertion. It was no libel to represent in a respectful manner the personal opinions of the Sovereign as erroneous, when they should happen to be so, provided that no moral guilt was imputed at the same time. The late Lord Ellenborough was the authority which he would oppose to the authority of Mr. Attorney General. Such doctrine was adapted only for the reign of a Tiberius, who made it a libel ever to praise one man, because it was a censure on another. If two parts of the legislative constitution of the country agreed upon a certain point, and if the third, the regal portion, could not agree with them, it was no libel to say so, and if the regal portion were compelled 1185 to acquiesce in the decision of the others, from what cause he would not inquire, it was not a libel to say that that portion was under coercion. Having Lord Ellenborough's authority in his favour, he would say that what the Attorney General asserted to be law in that case was not law. But the expressions in this publication had been strangely interpreted indeed by his Majesty's Attorney General. It would seem really as if all the dictionaries in the country had been burned with the Argyll-rooms. His Majesty's Ministers should themselves get up a new dictionary, with new meanings for words, and a glossary upon the latest-received interpretations of his Majesty's Attorney General. This dictionary might be accompanied with the following pithy and useful preparatory introduction:—"That Lord Chief Justice Abbott decided, in 1829, that such words bear such and such meaning, and therefore, gentle reader, take care of yourself." He could not avoid calling the attention of the House to the raree-show which took place at the first trial. In order to prove the innuendos in the libel as being applicable to the Lord Chancellor, Lord Chief Justice Tindal was first called; then came his Honour the Master of the Rolls, then that eloquent and learned individual Baron Vaughan. To show, too, that it was not carried on by a tory administration, they put the whig Lord Holland into the box, and, lest that might be too much, they balanced his weight by the tory Lord Bexley. Such were the ingredients of that extraordinary mixture. It was further mixed up by the addition of the Deputy Chairman of the East-India Company. It had been asked, too, and really with reason, why the Ministers should mix up the currency with all questions. Even here we had the currency, for there was a banker from Lombard-street among the witnesses, and the list was completed with the Clericus Parliamentarian. Was not this theatrical display intended for effect? Was it not plain that this raree-show was intended to influence the result of the trial? He certainly did not intend to make a motion on that part of the subject, nor did he propose to bring in a bill to prevent this gallery of "national worthies" from being arrayed again for a similar purpose; but he would express his hope that no such exhibition would be ever repeated in a court of justice. It might be as well, perhaps, as this was a 1186 serious piece of ridicule, a sort of flebile ludibrium, that a raree-show should be got up as an accompaniment to this grave ex officio prosecution. He now came to the third information; but before he left the second, he would venture to say that he was one of those persons who were induced, by the spirit displayed in conducting The Morning Journal, to think that the attack made upon the editor of it for the sentiments which he had avowed on the Catholic question, was intended to beat down and insult the vanquished Protestant party of this country. He now came, he repeated, to the third information, and in so doing, he would call the attention of the House to a point connected with it, which he conceived to be most important to their own privileges. The House would observe that, as far as it was concerned, this was the most important of all the ex officio informations. He did not mean to say that the topics to be urged against the third information were larger than those which he had already urged against the second. All that he meant to say was, that the third case involved matters which were nearly connected with the proper exercise of the privileges of Parliament. The third case selected for prosecution was a mixed case —in a word, an alloy, of libel, It was stated to be an attack on the King, an attack on his Government, an attack on the purity of Parliament, an attempt to inflame the people against the House of Commons, a vilification of Ministers, an excitement to general disaffection, and in some parts of the information he believed that even the word sedition was found. In analyzing and decomposing this strange heterogeneous mass of libel, he should begin, first of all, with that part which related to the King. He had already stated to the House, that, upon the second information, the jury, though it found Mr. Alexander guilty of a libel on the King, did not find him guilty of a libel on his Ministers, and that they recommended him, on account, of the excitation of the times, to the merciful consideration of the Court. The second libel was published on the 14th of May, and this third was published on the 16th of June. Now, in discussing the merits of the information filed against the third publication, he should consider it not so much the information of the Attorney General as of the Administration whose servant that officer was, The 1187 Government, it was clear, must either avow or disavow the proceedings of their principal law officer. The Attorney General was the officer, and in his Majesty's courts the representative of the Government. These prosecutions, one and all of them,; were, he contended, therefore, the prosecutions of the Government, carried on through the medium of their representative, the Attorney General. Would it be believed, except by persons who had seen; the informations, that this third libel which was selected for prosecution was a mere repetition of the second, which the jury had found a libel upon the King; but not upon his Ministers, and which they had recommended to the merciful consideration of the Court? It contained, and pretty nearly in the same language, all that had been said in the second libel, as to his Majesty's not being able to exhibit himself to his people at places of public amusement. He contended that in finding that the second libel was a libel on the King, but not on his Ministers, and in recommending the author of it to mercy, the jury had told the Court, and not only the Court but also the Attorney General, that prosecutions for similar offences should not be continued. He called such a verdict as they gave, a verdict with a farthing's damages, or rather a nonsuit for the plaintiff, and no verdict at all. Could any man, who was not acquainted with the event, have believed that any Attorney General would have proceeded with this third information, after the castigation which he had received for filing the second? The jury which tried the second information retired for three hours to consider their verdict; and whilst they were out of Court, and before the next case was called on, Lord Tenterden was stated—and that not in the Morning Journal of which the report might be suspected of partiality— to have said in open Court, "What do you intend to do now, Mr. Attorney?" He did not say that that speech was a hint to the Attorney General of what he ought to do; but he did say that it was something very like it. Nullum tamen simile est idem. It was giving the learned gentleman time to pause,— it was affording him alocus pœnitentiæ—it was offering him time to revolve in his own mind what he ought to do,—it was furnishing him with room in which to turn round,—it was giving him a period in which a man might say to himself, "This won't do;" or if 1188 he thought so, "This will do." But no, the learned gentleman spurned the opportunity for reflection thus kindly thrown in his way, and he said boldly and at once, "I mean to go on, my Lord, with the next case." The case was called on accordingly; and he must again repeat, that it was, as far as the King was concerned, a repetition of the same libel, on which, though the jury had declared it to be a libel, no judgment had been, or would be, pronounced by the Court. In his humble opinion, it would have been quite as well, perhaps much better, if the Attorney General, instead of proceeding with that case, had put his brief into his bag, and had said that he would consider till next morning whether he would bring it to trial or not. A verdict was given on the third information against Mr. Alexander, and was not accompanied by any recommendation to mercy. But though that was the case, he would declare it to be quite unprecedented that an Attorney General should proceed upon a new information to try the same identical matter which he had already tried upon a former one. That was done in this case, in breach of all the mildness, fairness, and impartiality, which on former trials had characterised former Attorney Generals. If he were wrong in that position, he knew that at the proper period he should be reprehended or ridiculed for his error; but till he was reprehended—and when he was reprehended he should still retain his old opinion—he should be glad to hear the reasons of those who dissented from him. Now, on this third libel he should like to know what Mr. Alexander had been convicted of. Was it consistent with common sense and with common justice, that Mr. Alexander should be sent to Newgate on the third libel, when on the second, which was indentically the same, he was not even brought up for sentence? The next point on which he should trouble the Mouse shortly, was the invasion which was committed upon their privileges by the filing of this third information. Yes, he maintained that the filing of that information was an usurpation of the powers and privileges belonging to the Commons House of Parliament. Why did he say I this? He would briefly explain his reasons. He had already stated, and he must now repeat the statement, that in these discussions he did not mean to say any thing that was personally offensive to 1189 any individual. He hoped that he should be able to perform the task which he had imposed upon himself without rising any expressions that would be unfavourable to individuals in their private capacity; and if he should have occasion to allude to a right hon. Secretary, he declared that as a public man, and as a gentleman, he meant nothing personally offensive to that public functionary. The libel began by stating that an hon. Member—he would not mention his name—a great champion of the Protestant cause, a gallant and enterprising soldier in the sacred phalanx with which the editor of the Morning Journal had allied himself, an active and efficient operative in the same great and glorious work, had brought under the consideration of Parliament the distressed condition of the manufacturing labourers of Blackburn. He did not know whether the fate which had befallen Mr. Alexander was intended as a hint to that hon. Member to be on his guard lest a similar fate should befall him. The libel began, he said, with a statement of something which had been done or said by one hon. Member of this House, and then it went on to state what had been said or done by another. He would mention no names,—he would call him an individual in that House; for the sake of clearness he would denominate him, in the residue of his speech, the right hon. Mr. A., he would not say that he was the right hon. Mr. P., for that might be considered as almost a personality, and might lead to some of those constructive libels, by which out of doors men were daily ensnared, without knowing either how or why. The right hon. Mr. A. then, was said to have been seen to smile at the other hon. Member's tale of distress. He was very much afraid, that if the appearance of a smile on the face of any hon. Member, whilst a petition complaining of distress was under presentation, should be considered as a libel, the Attorney General would very soon have his hands full of work even in that House. If he remembered rightly what took place in the House on the first night of the session, the Attorney General would have to file an information, not only against the noble Lord who proposed the address, and the hon. Member for London who seconded it, but also against the hon. Member who thirded, and the noble lord who fourthed it, and indeed against every Member in the House. For he well recol- 1190 lected that when it was pointed Out to the House, that, though the speech described the distress to be partial, the mover and seconder and thirder and fourther of the Address described it to be overwhelming and universal, not only was there a smile flickeringon the face of those Members, but there was also in the House, what Lord Chesterfield said should never take place in any civilized assembly, loud and universal laughter. He did not mean to say that there were not in this publication many coarse, and rude, and impertinent, and undeserved expressions applied to the right hon. Mr. A, and if the right hon. Mr. A. had come down to the House the next day to complain of them, and if he had moved that Mr. Alexander should be brought to their Bar in consequence of them, he did not. mean to assert that the right hon. Mr. A. would not have acted rightly in pursuing such a course, and that the House would not have acted rightly in taking up his complaint, and in leaving Mr. Alexander to be reprehended by the Speaker with that firmness and dignity which he always employed when he was called upon to vindicate the privileges of Parliament, in consequence of any improper attacks which might happen to be made, either on the members of Government in that House, or on their political opponents. That opinion had been given elsewhere, and he cordially coincided with it—non meus hic sermo. He would not allow himself to enter further into an examination of this libel. He would content himself with reminding the House, that it was published on the 16th of June, and that the House of Commons was not prorogued till the 24th. A week elapsed after the publication of the libel, in which the House of Commons did nothing; indeed, after the Catholic bill was passed, the House did nothing, though it had been labouring before almost double tides. No complaint, however, was made to the House respecting Mr. Alexander's conduct, and this part of the libel was therefore a mere individual attack upon the conduct and character of the right hon. Mr. A. Assuming, then, that this publication was a libel,—and for the sake of argument he was ready not only to admit that point, but also that Mr. Alexander was liable to be punished for it by that House,—he would now proceed to contend, that when the right hon. Mr. A. was attacked in a public newspaper for his conduct in that 1191 House, the Attorney General had no right to take the vindication of the right hon. Mr. A.'s conduct into his hands. The right hon. Mr. A. had been attacked for what he had done in that House. He was stated to have smiled, and before the House came to a vote of censure on Mr. Alexander for making that statement, it was not impossible—for the gravity of the proceedings of that House was sometimes disturbed by the intrusion of levity—that all who then heard him might have smiled too. It was, however, certain, that before the House of Commons was prorogued, Mr. Alexander might have been called to the Bar to answer for the offence which he had committed. Now no such step had been taken, and therefore the question for the House to determine came, in the long run, to this—has the Attorney General ex officio a right to file an information for a libel on any private Member of Parliament? He had investigated that point with considerable labour, and he was in consequence decidedly of opinion, that when the privileges of that House were invaded by any newspaper, the House ought not to delegate the vindication of them to any other party. He was happy in being able to fortify himself in that opinion by the recorded declarations of Mr. Fox. Hon. Gentlemen would, perhaps, recollect, that before the impeachment of Lord Melville took place, there was a Commission of Naval Inquiry appointed. A newspaper, called the Oracle, in commenting upon the conduct of those Commissioners, was supposed to have wantonly attacked the honour and dignity of the House of Commons. Mr. Grey, now Earl Grey, called the attention of the House to it, as containing one of the most indecent libels on its proceedings, which it had ever been his province to notice. A great debate in consequence arose. It was said that the House, in impeaching Lord Melville, was acting like an intemperate judge, and it was moved that the printer and publisher of the Oracle should be called to the bar and reprehended. A question was raised whether he should not be prosecuted by the Attorney General. Mr. Fox argued in this manner—"We should not give up the vindication of our privileges to others. We should be jealous of our honour and dignity, and not leave it to the protection of the courts of common law—we should not give up ourforum domesticum, but should maintain it in all its pristine vigour 1192 and integrity." Mr. Fox afterwards expressed himself thus: "He reminded the House that when it committed a prosecution to the courts of common law, from that time it had no command over it, and could not compel them to extend to the party prosecuted that lenity which it might be disposed to extend itself." How did that debate end? It ended in a manner most creditable to Earl Grey. He said that he had brought the newspaper before the House because he conceived it to be a high breach of its privileges —that he should be satisfied with whatever punishment the House thought proper, and that if such should be the opinion of the House, he should have no objection to have the printer called to the Bar, reprimanded, and discharged. Mr. Pitt, who then held the office of Chancellor of the Exchequer, said, that as the printer had been voted guilty of a high breach of privilege, he could not, in consistency with the dignity of the House, be instantly discharged—that it was necessary, propter dignitatem, that he should be taken into custody by the Serjeant-at-Arms, but with the understanding that if he made a proper submission, he should be discharged in a few days. He would not trouble the House by going into a detail of the other cases which illustrated his view of the subject: he would only say, that if the right hon. Mr. A. had summoned Mr. Alexander to the Bar of that House for the libel upon him in June, 1829, instead of hauling him, into court for punishment in January, 1830, the case would have been disposed of long since, at least so far as the quantum of punishment was concerned. It was true that at that time there was no Attorney General in being,—but there was such a law-officer as the Solicitor General; and in Wilkes's case it had been ascertained that when there was no Attorney General, it was competent for the Solicitor General to exercise all his functions. Shortly afterwards an Attorney General was appointed, who, as soon as he received his appointment, started with these prosecutions. He maintained that from the Revolution down to the present time, no case existed in which an Attorney General had ever, of his own accord, asserted the right to prosecute an individual for libel which imputed to a Member of Parliament improper conduct within the walls of that House. He begged pardon, there were two,—one in 1699, in which the Attorney 1193 General prosecuted an individual of the name of Stevens, for a libel on a private Member; and another in 170'2, which was referred to yesterday, in which the Attorney General prosecuted a party for a libel on Sir John Packington, the Member for Worcester. Since that time no similar case had occurred. There was no occasion for him to illustrate the impropriety of allowing an Attorney General to institute such proceedings. If the Attorney General had a right to file an information for a libel on Mr. A., a Member of that House, he would have a right to file it for a libel on Mr. B. there, [a laugh, as Sir C. Wetherell pointed to Mr. Brougham,] or Mr. C. there, and Mr. D. here, if they were also Members. Suppose, for instance, that there was an individual,—a stout man, coming from the north, or it might be from the south,— troublesome upon estimates,—a reformer, —an awkward man,—a calumniator of Ministers,—a parader of figures at one time, and of distress at another, — a preacher of economy,-—suppose that this man was libelled in a paper. Well, he goes to the Attorney General, and says, "So, Mr. Attorney, I understand that by some new-fangled privilege which you have discovered in the constitution of your office, you are bound to protect me and my character from libel. I am libelled in such a paper—do you prosecute it." The Attorney General, being a civil and wellbred man, would receive him at first most graciously, but would conclude by saying, "Sir, I have not the honour to know you, but perhaps you will be so good as to tell me on which side of the House you sit?" The hon. Member to whom such language was addressed would immediately understand that he was in the wrong quarter,— that he had got into the wrong box, and would be glad to retire out of reach of the fangs of so formidable an officer; and thus the question would ultimately be reduced to this,—that if the Attorney General had a right to file his information in this manner, it would protect every Minister, Secretary, Treasurer, and Clerk, down to the lowest ramifications of official dignity; but that if a stout man on the opposition benches, more accustomed to oppose than to grant estimates, complained of a libel to the Attorney General, he would say, "I cannot file it, unless you previously obtain the consent of the Cabinet!" Would any Gentleman who 1194 had the honour of a seat in that House degrade himself and his character so far as to solicit that consent? If any Gentleman were so mean-spirited, he would say at once that the House ought not to suffer him to involve himself in such degradation. The test of the propriety of such an arrangement is this:—Could such a system exist and be carried on with impartiality? It would be ridiculous and contemptible to argue that it could. He therefore asserted that this new-fangled privilege of the Attorney General was nothing else than an usurpation of the privileges of Parliament. The next part of this publication was the attack which it contained upon the House of Commons. It was not for him to assert what was and what was not a libel. He should undertake a doubtful province if he undertook to decide such a point. He should have said that to call a man ambitious was not a libel; but on that point recent decisions had proved that he would have been wrong. He would not give, he repeated, any opinion as to what materials constituted a libel, for he might be wrong, and if he was wrong, he knew that he should be scarified. Mr. Alexander, it appeared, had said that the House of Commons had not sufficiently attended to the distress of the country. Now this libel, if libel it were, appeared on the 16th of June, 1829; and yet no notice of it was taken by the House of Commons, which was then sitting; but nine months afterwards Mr. Alexander is consigned, by the tender mercy of the Attorney General, to the walls of Newgate. It was only the other night that they were given to understand that Ireland was nothing but a land of oil, and olives, and honey. Be that as it might, it was quite clear that at present there was nothing but discord and distress at Whitehall. He should not have been vexed, if his Majesty's Ministers had, when they condemned Mr. Alexander to imprisonment in Newgate for complaining that great and universal distress prevailed in the country—he should not have been vexed, he said, if they had at the same time laid hold of and imprisoned the cause of his complaint. No, he should not have complained if they could have caught the Genius of Distress, and have sent him to gaol for three months along with that Gentleman. But what, he would ask, was the head and front of Mr. Alexander's offence here? He had said 1195 that the distress was great in 1829, and every body admitted that it was now much greater in amount, and more general in extent, than it was then. So that this man was sent to Newgate for four months, and was fined one hundred guineas, for having complained too feelingly, too warmly, too eloquently, too pathetically, and in language, if you will, too unlimited and too unguarded, of the existence of that distress which was now universally felt and acknowledged; and yet in this year of our Lord 1830, whilst he is not walking abroad, distress is walking abroad, and preying on the resources and demoralizing the habits of the most industrious part of the population. His opinion was, —and in that House, at least, he could assert it without fear of consequences,— his opinion was, that when this information was filed by the Attorney General, the object was not so much to injure Mr. Alexander as to strangle the groans of complaint, and to create an impression that that person had been maliciously suborned to promulgate exaggerated accounts of distress which had no existence. The Ministers, in the pride of their hearts, said to their legal officer—"Send this man to gaol; convict him as a libeller, and then we will say that his libels are false, and that no distress exists in the empire." But their scheme had met with signal and portentous disappointment: the man had been sent to gaol, but distress had not ceased; on the contrary, it existed in an aggravated nature, and was increasing in a ratio frightfully progressive. This, then, was, at all events, a hard case upon Mr. Alexander. But it was said that he had inflamed public feeling against both Houses of Parliament, and that he had thrown in a dangerous stimulus to aggravate the mass of unrelieved distress. If Mr. Alexander had done any such thing, he would say that he deserved to be imprisoned, not for months, but for years. But the imputation was most false and unfounded. Look at the memorials of grand juries—the remonstrances of magistrates in Quarter Sessions—the petitions of corporate towns and populous places—the public meetings of your extensive counties, beginning with the county of Kent, and ending with that of Northumberland. Was Mr. Alexander guilty, then, of fabricating meetings, of stimulating complaints? No: they existed at the time of publishing this para- 1196 graph—they existed, unfortunately, yet; and he confidently asserted that no improper excitation had been administered to them by Mr. Alexander. Not only was there no sedition in existence when this paragraph first appeared, there was none in existence at present. And yet this man was sent to gaol for proclaiming the existence of distress at a time when not merely in the petitions of the people, but also in the speeches of their representatives, the universality of distress is made a nightly subject of discussion. Had he over stated this case, or had he not? [cries of "No, no."] If he had done so, he had done it undesignedly; for he was no advocate of the licentiousness of the press,—he had no desire to extend its liberty beyond its due limits,—no wish to defend it when it was transgressing the rules of order and decency, and divaricating from the strict path of its duty into personal abuse and scurrility. He asserted, without fear of contradiction, that in all the legitimate modes of complaint,—in memorials, in petitions, in remonstrances, and in speeches in Parliament,—the same terms were used with impunity which had consigned Mr. Alexander to the walls of Newgate. He had now, by the indulgence of the House, travelled through this budget of informations. The Chancellor of the Exchequer had his annual budget of finance—he trusted that the Attorney General would not also have an annual budget of informations, for if he had, he (Sir C. Wetherell) might feel himself under the necessity of complaining of them next year, as he felt himself under the necessity of complaining of them at present. Only two words more, and he had done. He had already stated to the House, that if these informations should become as common as the posting-bills stuck up at the corner of every street, they would not have the slightest effect in converting the political sentiments of a single member of the community. By-the-bye, he would just observe, that he had that morning read a pamphlet upon the conduct and character of Mr. Canning, which, in his opinion, reflected high honour on the person who wrote it. There were terms of greater severity applied to Mr. Canning in that pamphlet than any which could be found in this libel applied to the right hon. Mr. A. Mr. Canning was there charged with running a career of defection and apostacy: but he bad never heard 1197 that the Earl of Liverpool, who was at the head of the Cabinet when that pamphlet was published, had directed an information to be filed against its author. The House had afterwards heard that pamphlet decanted into a speech, and delivered with much grace of gesture and elocution by a learned personage. The same expressions were used in the speech as were used in the pamphlet, and yet it was now. notorious that the same learned personage had since carried through the other House of Parliament that same bill, which in this House he declared to be an insult to the community. He believed that no information was filed against the reverend author of that pamphlet, though at that time there was a Tory Attorney General. He could have staled many other cases in which similar forbearance had been shown: but he had thought it perhaps better to refer to a case which was within their own recollections, and which they could touch as it were with their finger. He knew not why the invader of Mr. Canning's reputation should pass safe, whilst the invader of the right hon. Mr. A.'s reputation was to be punished with heavy fine and imprisonment. He said that it was untenable in principle, and contrary to the uniform practice of the House, that an Attorney General should prosecute individuals out of the House for attacks made upon individual Members of it, for their conduct within its walls. If he were asked what course he was prepared to advise the House to pursue on this third information, he would answer frankly, that he had not exactly made up his mind. He had a little explication to give upon that point. He said that if Mr. Alexander were confined for condemning the smiles of the right hon. Mr. A. in that House, such a punishment was an invasion and usurpation of the privileges of the House of Commons. So, too, was it, if he were confined for inflaming the people against the House of Commons; but if he were confined for an aggregate of libel, formed out of the three separate libels on the King, the House of Commons, and the right hon. Mr. A., he might be wrong; but he must think with all fair persons that it was wrong to confine Mr. Alexander for four months on this third information, when the jury recommended him to mercy on the second, and the Attorney General was afraid to bring him up to receive the judgment of the 1198 Court upon it. He had endeavoured, in what he had addressed to the House, to pursue some little arrangement, in order to make evident why he moved for the papers, and what use he intended to make of them. In one word, he would declare, that, in his opinion, common justice required the law of England to be altered. It was intolerable and tyrannical that any man in the realm should first prosecute an individual for a private libel, exposing him to vexation, putting him in hazard, and rendering him obnoxious to all the consequences of judicial imputation, and then, afterwards, in the shape of an Attorney General, institute a public prosecution, upon the failure of which he might (supposing the bench were occupied by partial and unjust judges),—he might revert to the private and original prosecution. Such a state of things was not to be borne, must not be borne, and if the House attended to the feelings of the public, should not be borne in the land. He stigmatized the prosecutions which had taken place, and finally he thought the House ought to come to some declaratory resolution by which their privileges might be better understood, and by which an Attorney General might be prevented, without the consent of the House, from taking out of the hands of the House the prosecution of a person who had been guilty of a personal libel on one of its Members; for, in consequence of the Attorney-General's proceedings, the libeller might be subjected to tenfold the punishment which would have been inflicted on him had he been brought before the bar of the House. On these grounds he would move for the production of the papers mentioned in his notice of Motion, and fit should be the pleasure, of the House that they should be laid upon the Table, he hoped that some hon. Member who might have bestowed one tenth part of the labour upon the subject which its consideration had cost him, would endeavour to provide some practical remedy for a state of things which was at present an intolerable grievance. He concluded with submitting to the House the following Motion, "that there be laid before the House copies of the several informations filed ex officio by the Attorney General against Mr. Alexander, the editor of a paper called the Morning Journal— copies of the several judgments entered against him upon the records of the above 1199 informations, and how the same were entered—an exact minute of the words in which each jury pronounced their verdict against him upon each of the above informations—exact minute of the terms in which any of the juries expressed a recommendation of him to mercy."
The Attorney General
said, that in rising at so late an hour as between twelve and one o'clock to address them upon that important occasion, he trusted that if he expressed any difficulty, it would not be supposed that it was a difficulty to answer every topic which his hon. and learned friend had introduced into his speech; but that it would be understood to be the difficulty which he should feel in commanding the attention of the House while he proceeded to investigate the charges which his learned friend had brought against him. It was more especially necessary that he should throw himself upon the candour, the indulgence, and the patience of the House, because he should abstain from all attempt to introduce any of that entertaining kind of matter with which his learned friend had enlivened his observations. On the contrary, it would be his object to endeavour to separate from the real question all those extraneous and unconnected topics —which, however, had formed the principal part of his learned friend's speech— and to confine himself to those few points the consideration of which was essential, in order to enable the House to come to a sound decision upon the subject. In the first place, he could not help thinking that the manner in which his learned friend had treated the question showed that he was acting under the influence resulting from his considering himself as a kind of professional advocate for the person principally concerned. He could not. otherwise account for the partial manner in which his learned friend had presented the facts of the case to the view of the House. There was also another kind of influence by which it was evident that his learned friend had been actuated. To his great surprise, he had condescended to state that Mr. Alexander, the libeller, was the representative of the party in that House, and in the country, of which his hon. and learned friend declared himself to be a member. He had certainly never expected an avowal of that nature. However right his learned friend might be in questioning the propriety of the prosecu- 1200 tions against Mr. Alexander, he certainly had never expected that he would have avowed that that individual was the representative of a party in that House, and that he would have defended him on that ground. They had now learned, however, not only that Mr. Alexander was the avowed representative of a party in that House, but that his learned friend would have become his advocate in a court of law, had it not been that the recollection of former connexions had led his hon. friend to entertain an apprehension that he should have violated decorum by so doing. His learned friend had declared it to be his opinion, that the prosecutions which had been instituted by him (the Attorney General), and by his Majesty's Government, against Mr. Alexander, were attributable to the motive, not of a wish to restrain the licentiousness of the Press, and to put down intolerable calumny and slander, but to put down the party to which his learned friend belonged, by attacking it through Mr. Alexander's side. In discussing what was a great Constitutional question, he had hoped that it would have been kept separate and distinct from all party and political considerations; and that there would not have been attributed to him motives which he distinctly and entirely disavowed, although the probability of their existence seemed to have filled his learned friend's mind. He would now proceed, trusting, as he had already said, to the candour and indulgence of the House, to the investigation of the topics which were the real objects of their consideration.—In the first place, he was charged by his learned friend with oppression, inasmuch as, having commenced proceedings in the Court of King's-Bench in a private suit, in the name of the Lord Chancellor, against Mr. Alexander, and having induced the Court to grant a rule to show cause why a criminal information should not be filed against that person, he afterwards thought fit to file an ex officio information as Attorney General against the same individual. This course his learned friend had called oppressive, for he had maintained that if he had tried one prosecution and failed, he might have proceeded with the other. Now that could not have been done; and he was surprised that his learned friend, who had himself filled the office of Attorney General, should have fallen into a mistake, which he could not 1201 have supposed that any one lawyer in Westminster Hall would have committed. [Sir Charles Wetherell said, that such was not the case.] He could only ascribe his learned friend's mistake to his not being very conversant with common law.
The Attorney General
in continuation. As his hon. and learned friend seemed to be unaware of the law in this case, he would tell him, that if Mr. Alexander had been tried on an ex officio information and acquitted, he could never have been tried on any other information for the same alleged offence. Yet this was one of the topics on which his learned friend had expatiated for half an hour; an error which he certainly had not expected from one so conversant with the law. That topic was the main ground on which he rested his first charge. That ground was thus taken from him. But he would go further. His learned friend asserted that it was not right, when the Court of King's bench had granted a rule to show cause why a criminal information should not be filed against an individual, on a private suit, that the Attorney General should then file an ex officio information against the same individual. He would, by and by, state the reasons which had induced him to make this change in the course of his proceeding. He would now confine himself to the declaration of his learned friend, that the Attorney General having, as private counsel for the Lord Chancellor, obtained a rule from the Court, ought not to have filed an ex officio information against the same individual for the same offence. In the first place, all that he had done in the first instance was, to obtain permission from the Court to file the information. Did his learned friend mean to say that the information had been actually filed? If so, he had been misinformed. But it seemed that because that Rule had been granted, he was wrong in afterwards substituting for the private action an ex officio information. Why? Was it any objection to the Attorney General's filing an ex officio information against an individual, that the four learned Judges of the Court of King's-Bench had previously declared that it was a fit case for filing an information? Even if the Court had refused him authority to file an information in the 1202 first instance, would that have deprived him of the right of exercising his own judgment as to filing an ex officio information? If his learned friend maintained that doctrine, what would he say if an Attorney General were to file an ex officio information against an individual after a Grand Jury had thrown out a bill that had been preferred against him? Yet such had been the case. A noble and learned Lord, of sound judgment, and the highest legal attainments, formerly one of the greatest ornaments of that House, but who now held the office of Chief Justice of the Common Pleas in Ireland, when he was Attorney General for Ireland, had a charge brought against him for having filed an ex officio information, not, as in the present case, after he had had the authority of a court of justice that the case was one fitted for an information, but after a Grand Jury had thrown out a bill against the party charged. How did the noble and learned Lord defend himself? There were several cases, both in Ireland and in this country, which he might have adduced, to show that his course of proceeding was correct. But he wanted no distant precedent. He simply referred to a case in October, 1811, in which a bill, of three counts, having been preferred against Sir William Strickland, for having written a letter to a member of the Government, soliciting a place, and offering a bribe for a compliance with his solicitation, the bill was ignored by the Grand Jury; upon which the Court of King's-Bench ordered a second bill to be preferred, which was ignored by the Grand Jury in November; the result of which was, that an ex officio information was filed against the same person by the noble and learned Lord's predecessor, who was never called upon in any manner to explain the reasons of such a proceeding. He, however (the Attorney General), was called upon by his learned friend to account for his conduct, because he had filed an ex officio information, not after a Grand Jury or Grand Juries had thrown out a bill against the individual, but after he had received the sanction of the Court of King's Bench for its being a fit case for an information. He would state to the House the form of the proceeding. The Lord Chancellor, as a private person, had made an affidavit denying the allegations of the libel. If upon this the defendant had made a clear and distinct admission of the 1203 falsehood of the charge, and had expressed his regret and remorse at having given it publicity, no further proceeding would have been taken against him. He had had an opportunity, before the information was filed, to have explained and apologized, and thereby have put an end to the matter. Instead of that, what was the course which this person pursued? An excellent and learned friend of his, who defended Mr. Alexander, when he (the Attorney General) moved in the Court of King's-Bench for a rule to show cause why a criminal information should not be filed against him, he meant Mr. Denman, stated that the course which was pursuing by him (the Attorney General) indicated apprehension; that it was evident he did not dare file an ex officio information at once, and therefore came to seek the sanction of the Court; that other eminent persons who had suffered from the freedom of the Press had trusted to their character, but that the Lord Chancellor was compelled to have recourse to legal proceedings. This was a tenfold aggravation of the offence. He was far from imputing to Mr. Denman, who was a personal friend of the Lord Chancellor, who highly esteemed him, any intention of seriously imputing such a motive; but it was stated by him in the cause of his client, and certainly had a direct tendency to fix the charge in the libel more deeply on Lord Lyndhurst. The next day the proceedings in the Court were reported in the Morning Journal, Mr. Alexander's paper, a copy of which was brought to him (the Attorney General) by a learned friend. In that paper, every topic which had been urged by Mr. Denman in his speech was repeated with the utmost exaggeration. The most inflammatory language was used. He (the Attorney General) was taunted with want of courage and spirit for the course of proceeding which he had adopted; and it was distinctly declared, which, however, was precisely what his learned friend had that evening denied, that the only true constitutional proceeding would be the filing of an ex officio information. Suppose he (the Attorney General) rested his defence on that ground alone, what right would any one, especially what right would Mr. Alexander and his learned friend have to complain of him for the course which he ultimately pursued? But provoked as he was by this conduct, it was not the ground on which he adopted his ulterior proceed- 1204 ing. The information was, as usual, drawn up for him by a junior barrister, a gentleman of great ability and learning. When, however, he (the Attorney General) was about to sign the information, he observed in one of the counts matter which induced him to change his course of proceeding. It was rather difficult to explain this to the House, but he would endeavour to do so. The charge in the libel, although mainly directed against the Lord Chancellor, did not rest there. It cast an imputation on an hon. and learned friend of his, the Solicitor General, for having obtained the high station which he held by corrupt means. It also cast an imputation on the whole Government for conferring a high office, not from considerations of a public nature, but from considerations of private gain. It was a general attack on the Government; and when the information prepared for him was presented to him with the count in which that was alleged, fully concurring in its justice, the libel appeared to him to have greater and more extensive malignity than he had imagined. He was, therefore, induced to change his course. The Court of King's-Bench might otherwise have said to him, "When you applied for an information, it was for a libel on the Lord Chancellor; on that ground we granted your application; but we find that you have introduced into the information a count which has no relation to that specific point." For those reasons he (the Attorney General, had abandoned the course originally taken, and had filed an ex officio information. He had no hesitation whatever in doing so. He had the authority of his learned friend, Mr. Denman, and of Mr. Alexander himself, for the propriety of the proceeding. It was not, therefore, from fear in the first instance; it was not from provocation in the second instance; but it was for the reason which he had just stated, and which rendered the course he had taken the only justifiable course. That was his firm opinion at the time; it was still his firm opinion; and he should carry it with him to the grave. His learned friend, in the first instance, had declared that no man in Westminster Hall would say that the proceeding which he (the Attorney General) had adopted was justifiable, although he afterwards qualified that declaration by saying that every man in Westminster Hall considered it to be unprecedented. Such a case, in all its circumstances, had, he dared to say, never 1205 before happened. But if his learned friend meant to allege that there was no man in Westminster Hall who did not disapprove of his (the Attorney General's) proceedings, all he would then say was, that his hon. friend and himself must move in very different circles. He denied most distinctly that his conduct had met with the disapprobation among legal men which his learned friend seemed to suppose. He came now to the consideration of the second information. This was attacked by his learned friend as warmly as the first. He (the Attorney General) really believed, however, that it was the first time since that House had been a House of Parliament, that any Attorney General had been attacked in it for filing an ex officio information for a libel upon the King. But his learned friend said, that the publication in question was not such a libel. The answer was, that it had been so considered by the judge, and that it had been so considered by the jury. His learned friend had dwelt upon the acquittal of a part of the charge, and upon the recommendation to mercy. But suppose the defendant had been acquitted altogether. Would that have been an unprecedented case? Repeated instances of such a case had occurred. But it was wholly without precedent that even in such a case the Attorney General had been attacked in that House for filing the information. His learned friend had quoted the late Lord Ellenborough's opinion on the trial of Mr. Perry, to show that the second information which he (the Attorney General) had filed, was directed against matter not libellous. Notwithstanding that opinion, however, and notwithstanding the acquittal of Mr. Perry, the Attorney General of that day was not called to account for having filed an ex officio information. His learned friend had been very tranquil on that occasion. Now, however, that he conceived his own party was interested, after three months' consideration and preparation he came forward with his charges. He perfectly agreed with the verdict which the jury gave in the case of Mr. Perry. But what was the passage charged as libellous? It was the following:—"What a crowd of blessings rush upon one's mind, that might be bestowed upon the country in the event of a total change of system! Of all monarchs indeed since the Revolution, the successor of George 3rd will have the finest opportunity of becoming nobly popular." Now, 1206 without imputing any blame to Sir Vicary Gibbs, who no doubt did what he conceived to be the duty of the Attorney General on that occasion, he must say that he did not think that passage was sufficiently libellous for prosecution. He should certainly have not filed an ex officio information against it. Lord Ellenborough inclined to the opinion that it was not a libel; and the jury declared by their verdict that it was not so. Sir Vicary Gibbs, however, was not attacked in that House for his conduct. But then he was not a Whig Attorney-General. His hon. and learned friend had, in his opinion, shown bad taste in bandying about the terms Whig and Tory; distinctions which, perhaps, existed at present only in name. The fact was, however, that no Whig Member, no advocate for the press, brought Sir Vicary Gibbs before the House for having filed an ex officio information against Mr. Perry, although Mr. Perry had been acquitted of the charge preferred against him. It seemed that such a course of conduct was reserved for a Tory. In stating the offence which had given rise to this second prosecution, his hon. and learned friend had been somewhat uncandid. The course which a Member in his situation ought to take was, to state the whole case, to extenuate nothing which made against his own view of it, to exaggerate nothing which confirmed that view. Whereas his learned friend had conducted himself like a lawyer; he had exaggerated whatever told in favour of his client, and had extenuated whatever told against him. His learned friend had not even read to the House the terms of the libel; but had described it generally as a representation that the King was unpopular, and therefore did not like to go to Covent Garden Theatre. If that were all that it contained, what must be said of the judge who had allowed such a case to go to a jury? He must be an absolute idiot. Yet he was sure his learned friend respected and reverenced Lord Tenterden as much as he did; and knew as well the candour and impartiality of his character, as the depth and extent of his legal knowledge. In the course of a long practice, he had never known any judge whom Lord Tenterden did not equal, he might almost say whom he did not surpass, in combining the greatest accuracy of professional knowledge with the most perfect fairness and impartiality of conduct. Lord Tenterden said, that the publication was a 1207 libel. He (the Attorney General) said that it was a libel. If his learned friend had been on the jury, his sense of honour would have compelled him to concur in the verdict that it was a libel. It began thus:—"His Majesty, it is said, complains bitterly that his Ministers have placed him in such a position, that he cannot enjoy the pleasure of exhibiting himself to his people. George 4th was, till now, a popular Monarch. That he has been rendered otherwise, is the act of his imperious Ministers. We deeply lament the occurrence; but public feeling is an ever moving tide that is affected by causes, which, although invisible, often lead to disastrous results. We pity our aged and revered Sovereign." He had been brought up in the habit of thinking that when the personal character of the Sovereign became the subject of public discussion, that discussion ought always to be conducted with reverence and respect. But what could be more degrading to any Monarch than to declare that he was in a state of thraldom to his Ministers, and that though once popular, he was afraid to show himself to his people, or partake of their amusements? He would now proceed to the third case. His learned friend had asserted that the libel in this case was exactly the same as in the last. He maintained that it was much stronger. It stated that the King was kept in subjection to his Ministers; but it combined with that a libel on the Houses of Lords and Commons, on the Revolution, and on several individuals. His learned friend had contended, that because the jury had in the second case recommended the defendant to mercy, the third trial ought not to have been brought on five minutes after the conclusion of the second; and he maintained, that the constitutional mode of proceeding against any person who had libelled that House, was to place him at the bar, and to punish him for contempt. Long, however, before he had had the honour of a seat in that House, he had heard the usage on the part of both Houses of Parliament, of making themselves at once accusers and judges, instead of sending cases in which they were concerned to be determined by juries, made the topic of loud and general complaint. Now, however, he learned, and that from an Ex-Tory Attorney General, that it was constitutional to bring offenders to the bar to be punished for a breach of privilege. If, 1208 however, he wanted precedents for his conduct, he had them in abundance. When Lord Ellenborough was Attorney General he filed severalex officio informations against individuals for libelling both Houses of Parliament, no previous Address to his Majesty for that purpose having been agreed to. When Sir Archibald M'Donald held the same office, he filed an ex officio information against the notorious Paine, for a libel on all parts of the Constitution; no Address to the King having requested that such a proceeding might be instituted. If, however, people had made up their minds to disapprove of his conduct, the whole of his defence, on whatever grounds it might be founded, would prove of no avail. But as to the number of informations for libel on the House of Commons moved for during the sitting of that House, he could show that they were neither so few nor so unusual as might be inferred from the argument of his learned friend. When Lord Eldon was Attorney General, there were three informations for libel on the House of Commons during the sitting of Parliament. Of these informations the second was against Joseph Johnson, and the third against a publication entitled "The Scarlet Devil." When Sir William Garrow was Attorney General there were four informations, and one indictment for the same offence, and under similar circumstances. When Sir S. Shepherd was Attorney General there were ten informations and two indictments for libels on the House of Commons during the sitting of Parliament. When Lord Gifford was Attorney General there were ten informations and one indictment for libel on the House of Commons, not entirely, but chiefly during the sitting of Parliament; and lastly, in 1820, there were three indictments for libels on the House of Commons, the Parliament then sitting. He should hope these were sufficient precedents to show it was neither improper nor unusual to file criminal informations for libels on the House during the time it was yet sitting. Now, as to the second libel, did his learned friend mean to say that because Mr. Alexander had been prosecuted for a libel on the King, and had also, on the same occasion, maligned the Ministry, the House of Lords, and the House of Commons, that they were, therefore, to consider the libel on his Majesty the less? Was this what he meant to urge after his three months 1209 study of the case? Surely at least 500 instances might be cited in which such circumstances were pressed in aggravation; and nobody had ever objected to such a course of proceeding except his learned friend and Mr. Alexander, from whom, in all probability, he would say his learned friend had borrowed his objections. Now he would state the grounds on which he had proceeded. His learned friend had treated these prosecutions as if exander had been selected for punishment because he was the organ of a party; while the fact was, he was so much mistaken, that his (the Attorney General's) reason for prosecuting the man was to prove that he was not the organ of the party he pretended to represent. He had punished the Editor of that Newspaper, because he thought it was the best way of showing he was not supported by a party. During the discussions preceding the settlement of the Catholic Question, considerable excitement had prevailed within the walls of that House, and an angry feeling had been called up, which he was sorry to observe still seemed to rankle in the breast of his hon. and learned friend. A corresponding degree of agitation existed abroad, and the Press on one side sought to maintain things in the state they were, by the use of all possible means. Now he had never impeached the motives or doubted the integrity of the noblemen and gentlemen who maintained opinions contrary to his own upon this great measure, however he might have suspected their judgment in not consenting to accommodate themselves to the circumstances of the times; but he thought that the means adopted by a certain portion of the Press to forward the objects of one party were not legitimate. False rumours were daily spread abroad, with the view of weakening the influence of his Majesty's Ministers in the House of Commons. London was described to be in a state of the most dreadful agitation. He remembered that he happened to go into the country in the month of March, and he was asked if the metropolis was not in all but actual rebellion? In short, they expected to hear each hour that the town had been set on fire. Well, on the other side, the country papers asserted the same things, so that the people were kept, in perpetual alarm respecting the state of the country; while the fact was, that the Oxford Election alone had created some excitement, which rapidly subsided, and 1210 then all was forgotten. But still, while the discussions were going on, no prosecutions were instituted. It was expected that after the measure had been passed all agitation would subside. Well! the bill was passed, as he believed, on the 13th of April, and the feeling of all the noble and hon. persons who opposed its progress then was, that no exertion should be spared to restore the public tranquillity, which this measure was intended to secure. Still, however, the Morning Journal continued its misrepresentations. The first assertion was, that the King proposed to dissolve the Parliament and withhold the Royal consent from the bill, and he had no doubt that many honest men who took their opinions from the newspapers believed it; nevertheless, it was not correct. Next it was stated, that his Majesty being dissatisfied with his Ministers, and having determined to dismiss them, the measure was to be reconsidered and repealed. Now, he contended, a public officer was bound to pay attention to the effect which any given libel was likely to produce; and when it was considered that the state of the country was such at the time that all good subjects and honest men who had ever been opposed to the measure were anxious to allay the popular agitation, he submitted that he was perfectly justified in showing that Mr. Alexander did not represent the party under the colours of which he might be received by certain classes of the people with a degree of credit. He remembered that on the very day he was presented to his Majesty, a paragraph came out, pretending to describe a conference which took place between the King and the venerable Lord Eldon, respecting the inability of the Lord Chancellor to discharge the duties of his office, and the necessity of seeking out some proper successor to his Lordship. Here, then, was a conversation reported as having taken place between the King and a Peer of the realm, containing the most unpleasant allusions to the Lord Chancellor, and this was done by a man who pretended to be (but was not) the organ of a party. What, then, was likely to be the result of such proceedings? Would they not assuredly have the tendency to lead the multitude to believe that this man had some mode of acquiring information of what took place at Windsor, and had an intimate connexion with the leaders of the party who had opposed the Catholic Relief bill? He 1211 was quite aware that no Member of that House would believe it—that no man of education would believe it. All such knew better. They did not take their opinions from the newspapers; but the great mass of the populace might, and perhaps, in a great degree, did take their opinions from the newspapers; and were not statements of such a nature, therefore, likely to produce seditious effects amongst the people? Still he was anxious to refrain from any measures of severity, and he did so until the libel was published on the Lord Chancellor, attributing to him improper motives in the promotion of his learned friend. This libel, it should be remembered, too, was combined with many hints of the same false and offensive nature. Thus, for instance, allusion had been made to his Lordship, as if he were in a state of the utmost pecuniary embarrassment—as if creditors were knocking at his door, and could not get their bills paid. The Lord Chancellor, as was usual in these cases, was the last to hear of this misrepresentation, while it was every where whispered that his Lordship was unable to pay his way. He had reason to know that many hon. Members of that House had received intimations to that effect, which had originated in the falsehoods of The Morning Journal. The Lord Chancellor having declared that he had not, for years past, expended one-third of his income, his Lordship certainly did then, as it was already stated, file an affidavit in the Court of King's-bench. But to proceed, when he took office he found that every member of the Administration—his right hon. friend near him—the Duke of Wellington—all were libelled in paragraphs, letters, leaders—in every possible shape and form, and with a degree of virulence and atrocious falsehood to which no private man would submit. He found that the paper was still going on villifying all character, public and private, and defying all authority. If, then, in the course he pursued he had judged wrong, he was to blame; but he did not think he had judged wrong. He did not believe he had acted improperly in endeavouring to restrain that licentiousness which would make the press of no value, by rendering it contemptible. Thinking, then, that the misrepresentations daily made in The Morning Journal were not safe for the country, he selected some of the many libels which had been published, and marked them for prose- 1212 cution. If he had proceeded upon all, his learned friend might well say he had brought forward a budget of informations, but his object merely was, to repress the circulation of those misrepresentations, and prevent the recurrence of those nauseous libels which were ushered into the world by The Morning Journal from day to day. He did select the most atrocious libels—and he asked the House, if he had not, what would have been the consequence? Might not his hon. friend near him have said, "it is true you have prosecuted this person for a false and malicious libel on me and on my noble friend; but why have you not in the first instance punished him for the libel on the King, in which he is represented as defied and degraded by his Ministers, and withheld from a knowledge of those matters with which no constitutional Sovereign ought to be unacquainted?" What reply could he then make if he had prosecuted a paper for libels on the King's Ministers, and suffered the libels against his Majesty himself to pass unpunished? He accordingly maintained, that it was his duty to have selected that libel against the Sovereign when he was instituting a prosecution for the sake of warning and example; and in favour of his opinion he could cite many precedents, under circumstances when the offence was of a much less aggravated nature. And he went on, because he hoped that by filing informations he should rather show Mr. Alexander the dangers of the course he was pursuing, and induce him to abandon it, than be compelled to punish him; but from that time he had no choice left, for Mr. A. still continued his libels. And great as was the deference he entertained for the opinions of his learned friend, there was nothing he had done which he would not do again. He had done nothing wrong—he had nothing to regret. He was aware that some might think otherwise—some who took the statements of what took place respecting these trials from The Morning Journal, and other papers belonging to the same party. For himself, it so happened that he seldom read the papers—he had not time, and consequently scarcely ever knew anything of their statements, except when some worthy friend sent him one containing a libel on himself. But he had, since these events had taken place, been informed, that the reports of what took place after the first day's trial, were not so correct as 1213 usual. He was treated as a decided enemy to the Press. In this, however, the Press was mistaken. He would avow his creed upon the subject for the benefit of all such as might take any interest in the opinions of so humble an individual; and, fortunately, he found it embodied in a speech which he had delivered in the course of the debate touching the blasphemous libels, as they were called, that were brought before the House on 21st December 1819. In that speech he had said, that in his opinion the power of filing ex officio informations ought not to be taken away from the Attorney General, because he considered that, if discreetly exercised, it was a power which might be of great benefit to the country. This was the argument which he then pressed upon the House. When it was urged, too, by hon. Members on the Ministerial benches, because the prosecutions against Hone and Wooler had been ineffectual in checking the licentiousness of the Press, that, therefore, it was necessary for the House of Commons to devise some means for strengthening the arm of the law, he had maintained a contrary opinion, although he believed it was then the general feeling that some coercive measure was necessary. But what did he say? That he did not believe there was any defect in the law because the Attorney General had failed in these prosecutions for libel. He stated, that in most of them he had, before the parties were brought to trial, made up his mind that they must be acquitted, and consequently that the fault was not in the law but in the mode of conducting the proceedings. In his opinion if the Attorney General had acted with more judgment, the law would have been found sufficient; and, therefore, he had concluded that Ministers were not entitled to demand any additional restrictive laws. These were the sentiments he had formerly professed, and which he still entertained. He thought honestly and conscientiously, that if the Press were to be the polluted vehicle of public and private slander—if every gentleman who happened to be a Minister of the Crown were to be held up to scorn as a knave, a liar, and a scoundrel—if it were to be considered as a part of the liberties of Englishmen that the Duke of Wellington, or his right hon. friend, or any other Minister, might, because he was a member of the Cabinet, be, with impunity, represented 1214 as a fool, a traitor, or a coward—one of two things must happen; the Press must fall into such disrepute that no man would allow it the slightest influence, or some measures must be taken to correct its excesses. And, accordingly, he thought that when there was a case of a factious man, without principle, or regard to truth and decency, and without the least regard to private feeling or the public welfare—who in the most false and atrocious manner published libels against all that was good, and great, and distinguished in the country—the best thing which could be done for the interests of the Press would be, to punish such a person, since by so doing that moral influence which the Press ought to have would be increased. Honourable Members might hold out for the abuses of the liberty of the Press; but, he contended, the Press would lose all its influence if that liberty were suffered to degenerate into licentiousness, since it must infallibly fall into contempt. Where, then, would be its moral influence? Gone for ever. It would become like Thersites, as described by Homer, who might say that Achilles was a coward and Agamemnon not a great King, while the Greeks would only laugh at his mendacity and despise his slander. When, therefore, a paper was conducted on such principles as The Morning Journal—on the principle of perpetual slander, falsehood, and misrepresentation, he thought that it was conferring a benefit on the Press to punish it. He was not afraid to say so—and he knew it required some courage to do it. Now with respect to what had been attributed to him upon the subject of the publication of the names of jurors, he had to state that he had been misrepresented. He had procured the passage in his speech as he delivered it; and having first explained the tone in which it was given forth, he would then proceed to show how he had been misrepresented. He should also have occasion to allude to another misrepresentation which had been very unfortunate for him. But to proceed—the day after he had filed the first information against Mr. Alexander, that gentleman said, that if the jury gave a verdict against him, he would print their names, and so expose them to the public censure. He wished to have it remarked he was not now on the subject of the indictment, from adverting to which his learned friend had abstained. He was, however, ready to defend it, if necessary. 1215 He knew it might be said, what need the Duke of Wellington care about such a thing?—what did it signify to him? But this was not the question. This libel was in the form of a letter, signed by a clergyman, styling himself Chaplain to the Duke of Cumberland. Every body knew that this was false—but still it would be allowed that the effect of the calumny was materially changed by the patronage which this person assumed for himself. The name employed made a mighty difference; as, for instance, if a person altogether contemptible in himself were to say he had been sent by Sir Charles Wetherell to tell you, you were a coward and a liar, however disposed you might be to despise anything he could utter as from himself, yet would you then feel yourself bound to resent it in some way or other. You could not look to Sir C. Wetherell, for you, must know it was false that he had sent the fellow; you could, therefore, do nothing but knock down the man, or prosecute him. It was not, accordingly, enough that the Duke of Wellington should know privately that this libeller was not sanctioned or protected by the Duke of Cumberland, but it was necessary that the whole world should know that this clergyman was not patronised by an illustrious personage so nearly allied to the Sovereign. To return, however, to the informations. As he had before said, he had no time to read the newspapers before he went into Court; he was accordingly indebted to a friend for the knowledge of Mr. Alexander's threat respecting the publication of the jurors' names, and what he said upon the subject was partly in answer to the advocate on the other side. The hon. and learned Gentleman then proceeded to read from a written paper the passage to which he had alluded. It was to the effect, that he had learned of the threat of Mr. Alexander to the jurors, but that he trusted they would not be swayed by it, or take their lessons of duty from the criminal practice of a licentious press, or the maxims of an anonymous writer, but from the laws of the land, the recommendation of judges, and the principles of their ancestors; and he urged upon them, that if they were influenced by the threat of The Morning Journal—the more they submitted, the more odious would become the power to which they succumbed; and he added, that if anybody had the 1216 audacity to publish their names, with a view to intimidate them in the discharge of their duty, by heaping calumny upon them, he would not, if he could procure sufficient information, shrink from bringing that person to condign punishment. He was ready to repeat and vindicate those opinions; and he hoped the House would be as little influenced as the juries were by the threats of the Press. The second misrepresentation was on the occasion of one of the early prosecutions. Mr. Alexander had used the word will, instead of shall—upon which he had taken the opportunity of remarking, that he probably was not an Englishman. The English pretended to great felicity in the use of these words. He had accordingly stated that, from this circumstance, he believed him to be an Irishman or a Scotchman. But, in his defence, Mr. Alexander took advantage of this, and accused him of making some illiberal reflections on his country, and, in short, made some parade about it. In his reply, however, he distinctly stated that he had a great respect for Scotland, and had no intention of making any reflections whatsoever upon it, but on the contrary, he had many valued friends, for whose sake the country was dear to him. But, notwithstanding this, the newspapers persisted in taking Mr. Alexander's version of the affair; and the consequence was, he had the misfortune of giving much offence. He had received many proofs of this; amongst the rest one of rather a ludicrous nature. In a letter which he got the other day, he found enclosed a paragraph of a Scotch newspaper, which said, that if the Earl of Aberdeen or Sir George Murray were at the head of the Administration, he would not dare to speak of Scotland in the manner he had done, for that he would have been at once turned out of office. That was a sample of the genuine representation of things which was to be expected from a newspaper, when its interests clashed with those of the persons it misrepresented. Therefore was it, that when he found any sentiments which surprised him attributed to any friend of his in the public prints, that he at once withheld his credence from the report; and he implored the House not to judge of his conduct in these trials from what had been detailed by the Press. With respect to the Motion of his learned friend, he begged to say he was most anxious that his request should be granted; 1217 he was anxious that he should have the papers, to found a charge upon them if he thought proper, and bring in some measure to tie up the hands of the Attorney General. He wished, too, that the Motion should be granted for another, and more selfish reason—namely, that the papers might be printed, and the House thus enabled more easily to come to a deliberate decision respecting his conduct. He, therefore, offered no opposition to his hon. and learned friend. In conclusion he had only to say that no act of his was intended to restrict the liberty of the Press. It was a false view of the case to suppose that any act of his could have such a tendency. His learned friend was mistaken in accusing him of tyranny and oppression. He had no object except to restrain the excesses into which Alexander had been betrayed. In this he perhaps might fail, if Mr. Alexander found supporters and apologists in that House. He, however, had nothing to reproach himself with. He retained the opinion that he had acted as he ought; and, notwithstanding the observations of his learned friend, he believed that, under the same circumstances, he should act in the same manner again.
Sir F. Burdett
said: Sir, I am unwilling to enter upon the subject before the House at this late hour, but, mindful of early friendship and old associations, I cannot abstain from delivering a few words. Sir, I must say, that notwithstanding the multitudinous topics in which the hon. and learned Gentleman below me indulged, and the entertainment he afforded the House by those drolleries, which would, however, in my opinion, have been better calculated for any other stage,—notwithstanding those gibes and gambols, and sesquipedalia verba, and apparently interminable sentences which, as he said of my learned friend's informations, contained a little of everything, and something more,—notwithstanding all these, his speech was like a grain of wheat in a bushel of chaff; for the sum and substance of his charge against my learned friend amounts to this—that he brought an ex officio information, after having first moved for an information under the orders of the Court. Now, when he states the charge he does not state the evils under which individuals laboured in consequence of these proceedings. He speaks of them as unprecedented—he thinks them not only dangerous to the Constitution, but such as every lawyer 1218 must deprecate—he says the consequences are such that no lawyer could be of opinion that any such subsequent proceedings could take place. I was glad to hear him dwell upon these legal effects of the proceedings, for here is an end at once to the charge, as far as the Attorney General is concerned, of cruelty and oppression. I say, Sir, I have derived the greatest satisfaction from this discussion on this account; and there is another satisfaction, which may not be conclusive on the minds of others, but is so on my own—that these proceedings and this discussion must have shown the utter impolicy of employing those powers which my learned friend exercised on this occasion. The learned Gentleman has shown, that a great number of things taken out of the newspapers, which were unworthy of his remark, were made the subject of prosecution. I regret it, for I am of opinion, with the great Chatham, that the Press is, like the air we breathe, "a chartered libertine." If the Press is licentious, it will cure itself; people will become inattentive to it, and its attacks will be ineffectual and of no avail upon those against whom they are directed. With respect to the supposition that these libels affected the reputation of the Ministers, I don't give credit to it for a moment. Will any body believe, that because the Duke of Wellington was called a coward he would stand a jot lower in the estimation of anyone? I am free to confess, if there were anything which could lower him in my mind, it would be these impolitic and ill-judged prosecutions. I do not believe that he will be in haste to repeat them. These are things which are to me sources of the greatest satisfaction. At the same time I must repeat what I stated on a former night, namely, my deep regret that my learned friend should have thought it worth his while to have recourse to that which I must call an unconstitutional mode of proceeding. It is, and always has been, an ineffectual mode of opposing opinion. Its inefficiency, was proved even during the time when the Star Chamber, from which it is derived, flourished; and I am happy to hear the learned Gentleman opposite stigmatizing it as a power unconstitutional in itself, and inconsistent with the law and the liberty of the Press. What use indeed is it that the Star Chamber was abolished if the same power be still exercised by the Court of King's Bench? and if it continue 1219 to exercise this power, I cannot see what the country has gained by the abolition of the Star Chamber. The learned Gentleman has talked of Whigs and Tories, distinctions which I had hoped had been buried in the grave of the Capulets—which are out of date—but which he has revived in order to designate certain parties as Whigs and certain parties as Tories. What has been a Tory of late years has been a person of contracted, bigotted, and arbitrary disposition, who would sacrifice every thing for power, and who would make fear his instrument instead of love. On the contrary, a Whig has been taken to be a person of more mitigated, more free and liberal principles, one who would act on grounds more consistent with the institutions of a free Government. The learned Gentleman has referred to these two parties, and has called my learned friend a whig Attorney General. I believe that my learned friend is one who wishes well to the Press, but who has wrongly thought that he ought to exercise his discretion upon its employment. I beg to toll him, that discretion is a thing which is not derived ex officio; and as far as any Attorney General can have it, must depend on himself, and not on his office. The consequence of these proceedings is, that no man who suffers wrong from any publication will attempt to vindicate himself in this manner; for no man would be the better for it. I have some right to speak of these things, for I believe there is no individual who has been so much the butt of strong and malignant libels as myself. I never noticed them; for I could not perceive how a prosecutor should not be a loser among men of sound opinion. I thought it would be no vindication of conduct; and can I believe that other persons want that protection which an humble individual like myself did not require? Let him be protected by his own proceedings, and he will not stand the lower for these attacks; let him rely on his character, to which, sooner or later, a discerning public will pay justice. After what has passed this night, I hope my learned friend will do one act of justice to the Press. If he thinks, as he seems to think, that the law as it formerly stood was sufficient, let him be the first Attorney General to gain a well-merited fame by removing the odious statute relating to the Press which now disgraces the laws of this country. Let him put the Press on a free footing, on a footing consistent with 1220 public utility. That will be to himself a source of great honour, and to his country of great service. When the learned Gentleman talks of my learned friend as a whig Attorney General, I beg him to refer to what tory attornies-general have been. Let him look to the prosecutions of former years. If he will go into antiquity, and come down here with his recondite labours, loaded, not like bees with honey, but with musty shells in which to put his stores of learning, let him not, after searching through ancient history, overlook the modern page, and forget all the transactions before the present time. Let him see the prosecutions that Tory attornies general have instituted. I remember when a tory attorney general prosecuted the editor of the Courier—and to the honour of the right hon. Gentleman opposite let me here observe that he was the first to give protection to the subject, and in consequence to the Press, by allowing every man to appoint his own Jury—a proceeding that will reflect immortal honour on him, since he thereby abolished that system of packing, which would secure a Jury that should find Abel guilty of the murder of Cain, and that left no man any hope of escape. I say I remember that prosecution of Mr. Perry, for a libel, in laughing at the mad Emperor Paul for punishing people for wearing shoe-strings, which at that time was considered a signal of Jacobinism. He was found guilty; and what was the sentence? Why one year's imprisonment and 1,000l. fine! I can go farther back than that; and when the learned Gentleman talks of tory attornies general, let him recollect the trials for life of those honest men whose lives I say were endangered by the attempt of the attorney-general of that day to re-introduce those accursed constructive treasons, which consisted in publications in newspapers, in transactions done in open day by men who thought no more of treason than did the then attorney general, and perhaps not so much as Lord Eldon does now, since his last fervent hope was disappointed in the grant of Catholic emancipation. The attorney general of that time had not the good luck to be able to hang those honest men; but had he succeeded in his attempt, with the spirit which those times manifested, I am convinced that numbers of other worthy and excellent men would have 1221 followed them to the same fate. It is not long since a tory attorney general prosecuted the political writer, Mr. Cobbett, for writing against that wicked, atrocious, flagitious system of flogging English soldiers in the presence of German soldiers; of mercenaries; he was convicted, sentenced to imprisonment for two years, and to pay a fine of 1,000l.* After this, I say, let us look at the conduct of the whig Attorney General of the present day. I say that my learned friend left out the strongest part of his case. He has shown that no grievances existed in consequence of these prosecutions. I confess, that after he had the oath of Alexander, that he did not mean to throw any imputation on the character of the Lord Chancellor, nothing would have been so wise as to drop any further pursuit of that individual. I do not believe that any man gave credit to that charge; but even suppose there had been some weak enough to believe it, I think he ought to have stopped, upon this denial being given; but as to the other libels, I do think they were utterly unworthy of the notice of the persons to whom they were applied; and I much hoped at the moment, and do believe now, that if my learned friend had trusted to the good sense of the country, and to the effect of time upon men's minds, he would have found that a malicious attack upon character could not be successful for more than a very short period. However, that was a question for his judgment—he had to decide what he thought the honour of the Administration required, and for all the rest the juries were responsible—not* In 1810 some of the local Militia at Ely, in Cambridgeshire, demurred to march without being paid a guinea usually allowed for marching-money, or knapsacks. To quell this spirit of mutiny, a guard of the German Legion, then stationed at Newmarket, were ordered to Ely, (Soham) and punishment was inflicted upon the sons and servants of English farmers who were then serving their stipulated period. For observing in terms considered offensive by the Attorney General (Sir Vicary Gibbs) Cobbett was tried, and sentenced to two years imprisonment in Newgate, to pay a fine of one thousand pounds to the king, and to find sureties for his good behaviour for two years more. Mr. Hansard, the printer of the Register at that time, received three months imprisonment; Bagshaw and Budd, the booksellers, for publishing, two months; and these three were also to find surety for good behaviour for two subsequent years.1222 he; for they were the judges whether those papers were or were not libels. But when the persons prosecuted were convicted—when they were within the power of the Government, what was done?—For three libels, one year's imprisonment and, 100l. fine were imposed, or about the rate of 301. and four months for each libel. That certainly was a most lenient administration of the law! The learned Gentleman may rummage among his standing records as deeply as he pleases; I do not think he will find one instance in which Government have dealt more leniently with persons who have been prosecuted. It is a great satisfaction to my mind that it has done so. It seems that the Tories out of office are not in good heart—their seats on this side of the House are uncomfortable. They are like those quadrupeds which clothed themselves in the lion's skin, but which could not conceal what, was their birth; and though they made a great noise, it was not the noise of the lion.Detrahere et pellem nitidus qua quisque per ora Cederet introrsum turpis.The Tories cannot, Sir, impose their present outcry upon the country for patriotism, nor can they give any satisfactory cause or reason for the new-born patriotism in this age of patriots. The first cause of their violence is the Duke of Wellington—the next the in furia propria; but when the learned Gentleman, one of these Tories, comes forward as a patriot, he must forgive me if I look upon his claim with caution, and if I confess that I am surprised so small a cause as that which actuates him could have occasioned so great a noise, and that so great a noise should have produced so little effect. I did expect a most grievous charge would be brought against my learned friend, and sorry I should have been had my conscience compelled me to vote against him. But I am in no such unpleasant situation. If the thunder of the prologue had been equalled by the subsequent parts of the acts of this drama, it would indeed have appeared by the vote we must have come to, that this House did cast blame upon my learned friend; but I feel the greatest satisfaction in knowing that we shall be compelled to do no such thing. The Motion, indeed, Sir, appears to me not meant for any other purpose than toCleanse the stuffed bosom of that perilous stuff Which weighs upon the heart1223 of the learned Gentleman. It has done that—I hope he is better for it. I, Sir, who hardly ever oppose any motion for inquiry, must almost make up my mind to do so here; for the learned Gentleman has not made up his mind to any subsequent proceedings, and this Motion in itself is without any definite object. Why he has not done so is clear—he does not wish for them; they would be inconvenient to him; he had rather the papers should be denied than that they should be laid on the Table of this House. It is unnecessary now to discuss the general subject of the law of libel. It is a law made by the Court; got up out of one of those fictions which are the curse of the law of England. A libel is something which depends on the constitution of the mind of the Attorney General. No man can say whether he is writing a libel or not. There is hardly any man so mad as wilfully to subject himself to the operation of such a law, or to attract the notice of the Attorney General, except the few to whom that notice will be an advantage. I think that Mr. Alexander is one of that number, and I think he is, as the learned Gentleman called him, an organ of the party. He is worthy of the party. I must say, however, that I hardly expected from a lawyer an acknowledgment that he was so; but, no doubt, as he is, his sufferings for the party will recommend him to the justice and the generosity of that party. These prosecutions, then, will not restrain him: he writes to eat; and that necessity is a more compulsory motive than any my learned friend can oppose by ex officio informations. I am inclined to believe he will benefit from them, and that, instead of being an example to terrify, he will be an object of emulation; and I think my learned friend will at last believe that the Press must be left to itself. There is a wide distinction which I wish to take between a public and a private libel. If any man feels that he must set himself right with the country, he wants no ex officio—that would defeat his purposes. If his object, on the other hand, is not vindication, but punishment, then he has recourse to this unjust, unconstitutional instrument, to inflict a penalty on the offender: but his character will not be vindicated: that object he must attain by the course of an action at common law, which is the only one that admits truth as an answer or defence; but here the at- 1224 tempt is, to vindicate character by the use of a brutal instrument of terror, which necessarily excites the compassion of all around. I do not know that truth will even be admitted as a defence to an action of libel, but it ought, certainly, in all instances, to be allowed in extenuation. But be that as it may, while the law is in such a state of confusion as it is at present, no person knows what is and what is not a libel. The law is vague—but the term libel is still more so. In the civil law it only means a book, and in certain Courts an indictment before a tribunal; but it is altogether vague and unsatisfactory, and is far from curtailing the license of the Press; it has no power but to work injustice. It has been asserted, and it is true, that distress is abroad; but the Duke of Wellington and his colleagues have not brought it on the country; and when the learned Gentleman speaks of it, he should remember who were the authors of it. Whatever may be said of the imperious disposition of the Duke of Wellington, I never knew any ministry who bore "their faculties more meekly." I have not the honour to know him but as a public Minister; but I believe, that though he does not think of the public distress exactly as we want him to do, there is yet no man who would more willingly afford relief to it if he could, and every one must be convinced that the charge which was the subject of the prosecution was utterly unfounded.
Mr. Secretary Peel
confessed, that after the elaborate proemium of the learned Gentleman he felt considerable surprise at the Motion with which he had concluded. After the learned Gentleman's three months' gestation, and three hours of painful delivery, he was considering with what miraculous conception the learned Member was likely to teem; and was surprised when the learned Member concluded with a motion for papers, every one of which he held in his hand. He had expected some notice of a legislative proposition, or a grand constitutional assertion of principle. Notwithstanding his learned friend's offer to produce the papers required on parliamentary grounds, a justification might be made out for refusing them. It was quite natural, indeed, the learned Gentleman having intimated that at a future period he might possibly found some vote of censure upon those papers, with respect to the Attorney General's 1225 conduct, that his learned friend should be anxious to produce them. As the papers could be given without material inconvenience, he should not resist their production. The right hon. Gentleman proceeded to contrast the conduct of Sir C. Wetherell on this occasion with that of Mr. Brownlow, when proposing a resolution relative to the conduct of Lord Plunkett in filing ex officio informations after the rejection of bills of indictment by a grand jury. The hon. Member for Armagh proposed a strong resolution—the learned Gentleman quite the contrary. The learned Gentleman appeared to suppose that there was a design entertained by Government to overwhelm Mr. Alexander, because he was the representative of his party. In this conspiracy against the individual in question he had no share, for he never even heard of the libel in which his own name was mentioned, till he was informed of the prosecution which his learned friend, no doubt upon good grounds, had instituted. The learned Member supposed, because the name of the Member for Newark stood first in one of the paragraphs prosecuted as libellous, that its prosecution was intended, among other things, as a significant hint to the hon. Member, and as a means of heaping obloquy upon him for a supposed privity to the contents of the paragraph in which his name appeared. He denied this altogether. On the whole he was disposed to take much the same view of these libels as the hon. Baronet opposite. The hon. Baronet said, he had been more abused than any other public man. Certainly the hon. Baronet's political life was longer than his, but, making deductions for that, he could claim to be the hon. Baronet's rival in this way. He had been Chief Secretary in Ireland for six years, and was pretty well abused by one party; since the passing of the Catholic Relief Bill, he had been exposed to attacks from the other, as numerous and violent as any that the hon. Baronet himself could have experienced. The previous apprenticeship which he had served to attacks from the other side prepared him for attacks from this; and thus the account was balanced. Excepting the allegations against the Lord Chancellor, and the statements which purported to come from a person holding the situation of chaplain to a royal Duke, he should not have felt disposed to prosecute the ordinary political calumnies relative to treachery and apost- 1226 acy, to which public men were so often subjected: he spoke now for himself—such groundless charges gave him very little pain indeed. He had so much respect for the learned Gentleman, and the great and powerful party with which he acted, that he regretted that the learned Gentleman should appear to connect himself or his party with the libels of the Morning Journal and Mr. Alexander—that he should speak of Mr. Alexander as the organ and representative of the Tory party.
§ Sir C. Wetherell
—I used no such expression: neither those words, nor words synonymous; nor any thing which a fair man could so construe. [Order.]
in continuation said, he would give the learned Gentleman full power and opportunity of explaining, and if he said he had not used the words, he would entirely and fully believe that he did not mean to use them. But that such words fell from his mouth in the heat of debate, was certain, and he would appeal to the recollection of the learned Member's friends in confirmation of the statement. The learned Gentleman had said that the object of the prosecution was to beat down the powerful Protestant party with which Mr. Alexander was connected, and of which he was supposed to be the representative; and his learned friend, the Attorney General, had to consider what effect might be produced by the libels in question on parties in this country and in Ireland. He would give the opponents of the Catholic Relief Bill in Parliament credit for feelings of sincere pleasure if their predictions with respect to the results of that measure should be falsified; he was sure that they would join the advocates and supporters of the bill in rejoicing at that: but studious efforts were making at the period of these libels to unsettle the public mind in Ireland, with a view to retard the beneficial effects expected from the Relief Bill, and keep the Protestant mind in that country in a state of excitation by the hope that other influence was about to prevail with the Sovereign over that of his Ministers, and that the Protestant monopoly would be reestablished. Whatever might be the effect of those inflammatory paragraphs in this country, they were certainly calculated to be productive of much mischief in Ireland, where parties were so much excited, and where all means of fomenting that 1227 excitement were so industriously laid hold of. In the present case the subject matter was invested with a peculiar air of authority, which rendered its probable consequences in the highest degree dangerous and pernicious. It professed to be written by a clergyman of the Church of England, who was described as the chaplain of a royal Duke, and dealt the most violent personal attack on the Prime Minister of the Crown. Then it was immediately copied into all the Irish papers, and universally circulated amongst an irritated and disappointed party, where the elements of strife already but too generally existed. The hon. and learned Gentleman appeared to have omitted the consideration of some circumstances connected with those prosecutions, which, nevertheless, did not deserve to be overlooked. The defendant Gutch, who had been included in them, and had been found guilty, was permitted to leave the Court without any punishment whatever, in consideration of his absence from London, and indisposition at the period alluded to. This lenity was exercised at the particular instance of his hon. and learned friend the Attorney General, whose proposition it was, that he should not be brought up for judgment with the others. Was this manifesting a disposition to press unduly the power with which he had been intrusted by his office? Neither personal nor party motives had actuated his conduct; nor had he taken such a step at the dictation of Government, but in strict accordance with his own sense of duty, which he had invariably exercised with lenity and judgment. He quite agreed with the hon. and learned Gentleman in thinking that he who controlled the excesses of the Press was, in reality, the true friend to the liberty of the Press, and that it was by resorting to such means alone that they would secure its proper influence and wholesome control over the conduct of public men. No man was more thoroughly convinced than himself that the Press exercised a salutary control over public measures and public men, but that control would not be increased by private calumny and unrestrained licentiousness. He admitted that it was most expedient in such cases to appeal to the old laws before they created new. It was so represented to Government in 1819, when it sought to invest the law with greater power, with a view to repress blasphemous publications. On this principle the Attorney General 1228 had acted: he had appealed to a jury, and shown that offences of this description were quite within the reach of the ordinary control of common law.
§ Lord Althorp
observed, that he agreed in general with what had fallen from the hon. Member for Westminster, but that he must on principle condemn the practice of resorting to ex officio informations. Nothing which he had heard on that or on former debates had convinced him that the Attorney General ought to possess the power of filing such informations. Not that prosecution was always an evil, it was sometimes a good, and precisely what the libeller deserved. He believed that the publication, of which complaint had been made was, strictly speaking, a libel; but the excitation which existed last year, during the discussion of the Catholic Question, had led to a strong expression of feeling, which would not have been exhibited in more temperate times. He was of opinion, that very often attacks of the description which had given rise to these ex officio informations, instead of being injurious to the person attacked, were rather beneficial, since they gave to members of the Administration thus attacked an opportunity of defending themselves.
§ Mr. O'Connell
observed, that it appeared to him that the prosecutions which had been carried on by the learned Attorney General showed evidently a desire to assume a dictation over the public Press. He felt extremely sorry for the manner in which the learned Gentleman had defended himself. He had asserted that the course which he had taken did not give him any additional advantage; but he would, on the contrary, show that it did give him a very great advantage over Mr. Alexander. After the learned Gentleman had first stirred in these proceedings he had changed his course, he had turned round, he had instituted two prosecutions, the one on account of Lord Lyndhurst, the second with reference to another of his Majesty's Ministers. By his first proceeding he had filed a sort of Bill of Discovery, and of that he had subsequently taken advantage. It was a singular fact, that during the heat of the contest, before the Catholic Relief Bill had been passed, when agitation prevailed to so extensive a degree, not a single prosecution for libel had been instituted. The prosecution which gave rise to the present Motion did not take place until 1229 some months afterwards. He was a good deal surprised at the course which had been taken; because on one day the defendant was apprised that he would be prosecuted for one libel, and the next he was told that he would be made to answer for two. Under such circumstances, how was he to frame his defence? He remembered reading what had occurred on one of the state trials, when the prisoner was kept in ignorance to within one night of the specific charge intended to be advanced against him, in order to prevent his framing a proper defence; and it seemed to him to be pretty nearly the same case here, where a man was made acquainted on one day with a little charge against him, and on the next was informed that it was much more extensive. The learned Gentleman then referred to the speech of the Attorney General on the trial of Mr. Alexander, on the 24th of December last, in which he was represented to have said, "he would now notice some of the topics of defence mentioned by his learned friend. And first, that the Duke of Wellington ought to prosecute another person, who was the author of the letter, and not the present defendants. But suppose another person were the author, and that he doubted, the Duke of Wellington would be happy to discover the author: that he stated from knowledge. Had the defendants furnished evidence on which to prosecute the author? Had they produced the letter and offered to prove the hand-writing? They had not. Had the author himself thought fit to own the Letter to the Duke of Wellington and abide the consequences? He had not. It was not because a name was signed to a letter that the Duke of Wellington could prosecute the author. If he failed in proving the hand-writing of the author in the original letter, the defendant must be acquitted. To say, therefore, that the Duke of Wellington prosecuted a newspaper for publishing a libel, but would not prosecute the author for writing it, was an evasion which should not be allowed to go forth to the public unanswered." Here it was clearly stated, that the Duke of Wellington would willingly forego a prosecution of the printer, if he could discover the author. But was the sincerity of this declaration borne out? In the case of another newspaper, which occurred but a few days afterwards, the author of an alledged libel avowed himself in a letter 1230 addressed by him, on the 22nd of January, to Mr. Maule, the solicitor of the Treasury, but no declaration was made to the person who had written the objectionable article, Mr. Stanley Lees Gifford, who avowed himself to be the author, that he was to be prosecuted, and that. Mr. Baldwin would not be molested. On the contrary, the letter was returned to the writer, on the 27th of January, without the least, ceremony, and Mr. Baldwin being kept in ignorance, up to the very day of trial, that he was not to be prosecuted, was put to all the expense of preparing for his defence. He would ask whether this was acting in the spirit of the declaration made by the Attorney General in the speech which he had quoted. It was directly the reverse; and he was not wrong, under these circumstances, in saying that the feeling and the desire of the Attorney General was to put down the Press? It appeared to him that the law-officers of the Crown were too eager to punish libel, at the same time that the country knew not what the law of libel was. The same system had been pursued by Whig and Tory: on this point, at least, there was no difference between them. They were told that that which threw an unpleasant reflection on any man was matter of libel. Such was the splendid definition of the law of libel—a definition which at once put an end to free discussion with respect to public men and public measures. Nothing, he was convinced, but the progress of public opinion could remedy this evil.
The Attorney General
denied that he wished to domineer over the Press. Nothing that he had ever said, or that he had ever done, could justify such a conclusion. He was obliged to take the law as he found it, and by the law he had been guided in all his proceedings. The hon. and learned Gentleman had introduced a case which was not then under discussion. That case, he begged leave to observe, must stand on its own merits, and must not be judged in conjunction with any other case. The hon. and learned member, he must say, was mistaken in his facts. The Duke of Wellington would have been happy, on the trial which had taken place, to have prosecuted the author of the libel; but up to the time of the trial no author appeared that could be prosecuted. If the author had been forthcoming, he would have been prosecuted. He begged leave to correct one error into 1231 which some Gentlemen had fallen. It was said that but one day's notice of trial had been given. Now he would state that ten days' notice had been afforded.
Sir R. Heron
observed, that in his opinion the noble Duke had been very ill-advised in carrying on these prosecutions. He ought, like his predecessors, to have treated these libels with the contempt they deserved. If all animadversions on the conduct of public men were to be prosecuted as libels, there was an end of the freedom of the Press.
§ Mr. North
was of opinion, that these prosecutions had not been instituted so much with a view to gratify the personal feelings of the persons attacked, which some hon. Members seemed to suppose, as to defend the character of illustrious men, which was the property of their country. He agreed with Mr. Burke that men could not look with indifference on the contempt of their fellow creatures; and the law was therefore bound to shield them from calumny. It seemed to be a mistake to suppose that these prosecutions had not been begun on account of the excitation occasioned by the passing of the Catholic Relief Bill. Many persons, both in England and Ireland, were anxious that the agitation occasioned by the discussions on the Catholic Question should survive the passing of the bill. To allow that bill to have fair play it was necessary that the Government should watch over its infancy. It was bound to prevent busy and disappointed men from marring the effect of that healing measure. He would not enter into the questions which had been mooted as to the law of libel, he having only risen to explain that, in his opinion, these prosecutions were necessary in order to prevent the spreading of calumnious assertions, that were only intended to preserve alive a spirit of dissatisfaction.
The Solicitor General
defended the course pursued by his hon. and learned friend. The hon. and learned Member for Clare had observed, that during the period of agitation, no prosecution for libel had been instituted. This, he conceived, was a very proper mode of proceeding. Government was unwilling, while the country was in a ferment, to add to the excitation, which was felt on all sides. But when the great measure was carried which created so much warmth, then, and then only, did the Government 1232 think it right to interfere, in order to prevent the daily promulgation of libel. He looked upon the libel against the Lord Chancellor, not merely as a libel directed against an individual, but as a libel which affected that which was most dear to the country in a constitutional point of view, he meant the pure administration of justice. The proceeding in that case he conceived to be a proper one; the charge of the judge he considered to be correct, and the finding of the jury was, in his opinion, perfectly just. Some individuals seemed to suppose that the libel in question could not affect, could not injure the character of the Lord Chancellor, but he was prepared from his own knowledge to say, that it was most injurious; and he was quite convinced, that if he had not repelled it, he would have been utterly unable to have remained in his situation. Looking to the important duties which the Lord Chancellor had to perform, it was quite impossible, if he allowed the remotest taint of suspicion to rest on his character, that he could be looked up to with that respect and veneration which such a functionary ought to command. The course pursued by the hon. and learned Gentleman with whom this motion originated, was neither more nor less than this; namely, to bring before the House the person who had prosecuted, and successfully prosecuted, an individual accused of libel, together with the Lord Chief Justice who tried the cause, and the jury who had decided on it. He had watched those cases with much anxiety, and he would assert, in the face of that House, that never were prosecutions carried on with a more sincere desire not to punish unnecessarily, but merely to do that which was demanded by a regard to the peace and safety of the country.
§ Mr. Sadler
was of opinion, that it was very right to bring this subject before the House, and he conceived that his Majesty's Attorney General could not feel any hardship in consequence of its being so introduced. He had some observations to make on the subject, which he would offer when a distinct proposition relative to this subject was before the House. He admitted that the question had been very well argued on legal grounds; but there were some other points connected with it which he deemed very important, and which, if no other individual thought proper to bring forward, he certainly would.
§ Mr. Hume
said, he was extremely glad that this Motion had been made, and he was quite sure the hon. and learned Gentleman (Sir C. Wetherell) had read the Attorney General such a lecture as he could never forget to the last day of his existence. The Attorney General, in explanation, had said, that he did not mean to set himself up as a dictator of the Press: but he could assure the Attorney General that the impression of those around him (Mr. Hume) was, that such was his meaning. The speech of the right hon. Gentleman (Mr. Peel) was very different, and did him great credit. He had always, both in public and private, praised the right hon. Gentleman for treating the calumnies of the Press with the contempt they deserved. He was sorry that the hon. Baronet, the Member for Westminster, had attempted to palliate the conduct of the Attorney General by alluding to that of attornies general in the most odious times of tyranny. The present state of the libel law was a disgrace to the country. The Attorney General had said, that he was favourable to a well-regulated Press: but what did the Attorney General mean by this? His meaning was evident,—namely, a Press regulated by himself. He had never heard a weaker defence than that of the Attorney General, and when the papers distributed it over the land, he was quite sure that the voice of the public would induce him to stay his hand. He had never heard any individual defend the libel on the Lord Chancellor. On the contrary, every body condemned it, and rejoiced at the punishment of it. He protested, however, against this being put, as the Solicitor General had put it, in the front of the battle. He was glad that these prosecutions had been begun without the knowledge of the Secretary for the Home Department. This confirmed his opinion of the right hon. Gentleman's character. He hoped the country would know this: he hoped the country would know that the right hon. Gentleman was not aware of these prosecutions until the day after they were brought into Court. He trusted the Attorney General would learn caution by the proceedings of this night, and he thanked the learned Gentleman for bringing forward this Motion.
Sir F. Burdett
said, that the hon. Member for Aberdeen had so totally misrepresented what he had said, that he must be allowed, to lay claim to contradict it at 1234 a future time, for to trespass upon the House at that late hour was out of the question.
said, that words were not strong enough to describe the misrepresentation into which the hon. Member for Aberdeen had fallen with respect to him. So far from differing with his hon. and learned friend, the Attorney General, he entirely agreed with him; nay, he had not heard one single sentence from his hon. and learned friend in which he did not concur. In what he had said upon the point on which the hon. Member for Aberdeen had so strangely mistaken him, he was speaking of himself personally, and of the abuse which had been levelled at him. He had expressly stated that his hon. and learned friend had acted upon no other than the just and proper feeling of preventing the continuance of excitement in this country and in Ireland. He entertained the same feeling, and if he had been told that a chaplain of the Duke of Cumberland had made such a political charge against a Minister, or that any other person had made such a personal charge against the Lord Chancellor, he should have been ready to suggest the institution of a prosecution. All he had contended for was, that there had been no conspiracy to ruin an individual; and he said again, that he did not know that he himself had been mixed up in the libel, until the author of the libel had been prosecuted. Knowing the deliberate intention in which these libels were published, he begged to be understood as perfectly concurring in the prosecutions against the author of them.
The Solicitor General
said, that he also had been most strangely misrepresented by the hon. Member for Aberdeen. He had not put the libel against the Lord Chancellor foremost in the battle, except so far as it was the first of a series of libels. He was willing to put that out of the question, and to defend the rest of the prosecutions.
§ Sir C. Wetherell
said, that at that late hour he should compress his reply into a very small compass. When he professed himself to be a Tory, he could not of course labour under so great a delusion as to expect to meet with the approbation of the hon. Baronet, the Member for Westminster. No amalgamation, no reciprocity of sentiments could take place between, them upon the Tory creed; but 1235 there was no delusion in him, if there were consistency in the hon. Baronet, when he expected to find support from the hon. Baronet in defending the liberty of the Press. Strange to say, however, he had met with an opponent in the hon. Baronet on this point. So also had the hon. Baronet treated him on what he had said with respect to the privileges of the House; and no wonder. Ten or twelve years ago, if his memory did not fail him, the hon. Baronet had shown the greatest possible contempt for the privileges of the House; and he was not surprised, therefore, that the hon. Baronet should lay heavy stripes on his back for the sticking to the Journals. His search into the Journals was mere chaff in the opinion of the hon. Baronet, now, as heretofore, when the hon. Baronet held cheap and trampled on the privileges of the House. It was a part of the honourable Baronet's tactics to hold cheap all searches into the privileges of that House. If it were not so late, he would go more at length into the fine declamatory attack of the hon. Baronet upon him; but, leaving it here, allow him to say that the hon. Baronet seemed to be more of a theoretical than a practical patriot. And now for the right hon. Secretary, who had endeavoured, somehow or other, to make it out that he was connected with, or was a partisan of Alexander's paper. The right hon. Gentleman had let him down easy; he did not thank him for that, but only for his intention, on this point, by supposing that the words he had used had fallen from him in the heat of debate. Now, he did not pretend to have much greater coolness and self-possession in debate than other Gentlemen possessed, but he begged leave to say that he had used no such expressions as those which the right hon. Gentleman had attributed to him. The right hon. Gentleman had observed that he had not defended Alexander in Court. Surely that was a proof that he was not a partisan of the Paper, and the only part of the libel in which he had said that he should have concurred, was that in which it was said that the condition of the august personage alluded to was to be commiserated. He repeated this, and this, ipsissimis verbis was the expression he had used, and which had been violently tortured into something else—something different. He did not, therefore, think that the right hon. Gentleman had fairly reciprocated the absence of personality in which he had 1236 commenced and conducted this question. But his main position remained untouched. That position was, that there was no case on the Journals of that House in which the Attorney General had proceeded against an individual for a libel on a Member of the House, without leave of the House. His hon. friend the Attorney General smiled—smiled in contradiction as it seemed, to this statement. Now he was always glad to see his hon. and learned friend in good humour, and in the same good humour he begged leave to re-state and to re-assert this position, and, more over, to repeat that it had not been touched. There was once a celebrated wit, George Selwyn, whose habit it was to play off a very ingenious trick upon his opponents in argument. That trick was, to represent his opponent as saying something very ridiculous, and then to get up and answer that which he had put into the mouth of his antagonist. This was George Selwyn's way, and the plan had been adopted by the Attorney General that night. But, at that late hour, it was impossible for him to go into all these things. The Attorney General had admitted that he meant to put down the paper; and this was a part of the complaint which he (Sir C. Wetherell) made. It was not because Alexander was scurrilous, but because the paper was the champion of the fallen Protestant party that it was to be put down. Could the Attorney General find no other paper to put down? "Oh! but," said Mr. Attorney, "I can't read all the newspapers; I have not time." Perhaps not; but it seemed that the Attorney General found time to read the Morning Journal. There were many other papers—daily papers—besides as many as fifteen Sunday papers, he believed, of which the editors made no holiday on Sunday,—The sabbath shines no day of rest to them:of all these daily and Sunday papers, none but the Journal was read by Mr. Attorney. The knockers and the bells of all the other editors were undisturbed by Mr. Attorney; it was only the brass at the door of Mr. Alexander that had charms for the hon. and learned Gentleman. "And yet," said Mr. Attorney, "it was not Alexander, the libeller, that I attacked, but the Morning Journal." This was what he complained of: and now if any Gentleman told him that he was connected with any of these people, he begged to say, in the 1237 strongest Parliamentary language, that such Gentleman imputed to him what was not true. He had been taunted with his labours of gestation; he had been told that his labours were all gestation, and that they ended not in delivery; but he begged leave to say, that he had stated he should go farther, and he promised them that his labour should not end in the barren result anticipated. His intention was to take the sense of the House on this question,—namely, whether, when an Attorney General had got out of a man the nature of his defence, he was then at liberty to proceed against that man by ex officio informations. He begged leave to say that he was gratified with the expressions of approbation which he had received from many hon. Members; and although he had received such stripes in a certain patriotic quarter, yet he should sleep soundly, never the less, under the conviction that he had shown himself a greater friend to the liberty of the Press than the hon. Baronet (Sir F. Burdett), though he had not pronounced so eloquent a declamation as had proceeded from the hon. Baronet. The late hour of the night prevented him from going as fully into the speeches on the other side as his inclination prompted him.
said, that if the hon. and learned Gentleman supposed that he had intimated that the hon. and learned Gentleman had any personal connexion with the Morning Journal he was mistaken. He had said no such thing; and if he had misrepresented any part of the hon. and learned Gentleman's speech, he had done so unintentionally.
§ Mr. Tennyson
thought that a part, at least, of the present Motion, could not be complied with. The exact words in which each verdict was pronounced, and the exact words in which the juries recommended the defendant to mercy, were not, he apprehended, recorded.
§ Motion put and agreed to.