§ Mr. T. Duncombe
said he rose in pursuance of the notice he had given, and in compliance with the wishes of large bodies of his countrymen expressed to him, to discharge a painful public duty, by calling the attention of that House to the manner in which the Lord Chief Baron Abinger discharged his duty as a judge during the late special commission issued for the counties of Lancashire and Cheshire. In asking the attention of the House to this subject, he did not prefer any claim on his own account, but he implored it on the part of millions of the unprotected, unenfranchised poor among their fellow-subjects. He was satisfied he should not make this appeal in vain, especially when he considered that in former days, if there was one subject more than another on which the House of Commons 1038 had been jealous, it was the administration of justice. Their first object had ever been to keep that pure, and to watch the manner in which the judges appointed by the Crown held the scales of justice between the prerogatives of the Sovereign on the one hand, and the rights of the people on the other. Now, the charges he had to make against Lord Chief Baron Abinger's conduct on the special commission were, that he had discharged his duty in a manner that was partial, unconstitutional, and oppressive to those who were brought before him—that he discharged it in a rancorous, malignant, political, and party spirit to the prisoners who were placed at the bar of the court over which he presided. During the last Session of Parliament a case connected with the administration of justice in Ireland was brought before the House by the right hon. and learned Member for Dungarvon, and he remembered that on that occasion a charge of Lord Chief Justice Pennefather was read, wherein he stated, that if there was a place in which the conduct of the law officers of the Crown or of the judges was to be canvassed, the House of Commons was that place. He now begged, therefore, in conformity with the declaration of that learned judge, to call their attention to the conduct of the Lord Chief Baron. He knew not whether hon. Gentlemen had forgotten the feeling raised among the public—the storm of indignation and disgust excited among all men out of that House at least—at the charges which Lord Abinger delivered, and the manner in which that judge summed up the evidence in several cases, as well as the sentences which he passed on the unfortunate prisoners. The House might have forgotten the feeling that then existed; but, at all events, if they had, he should feel it his duty to refresh their memories, and he knew no better means of testing public opinion, and ascertaining its direction, than by showing what was the opinion of the public press on this occasion. If that press were at all a reflection of public opinion, or if there were the most distant foundation in truth for the articles which then appeared in its organs, he said it would become the bounden duty of that House to institute a full inquiry into the charges he had to make. He challenged any hon. Gentleman to show him a single organ of the press, high Tory, Whig, Radical, Chartist, high church or low church, which approved of the conduct of 1039 Lord Abinger on that occasion. He must say that the manner in which the public press treated the charges delivered by the Lord Chief Baron and by Lord Chief Justice Tindal on the same occasion was highly creditable to them. If he had a doubt of the view he was about to take of these charges, and of the conduct of Lord Abinger, he need only quote a passage from the Times, which condemned the charges of Lord Abinger in the strongest terms. In the first place he might observe that every portion of the press, whether daily, periodical, London, or provincial, was loud in its censure and in invectives against the conduct of Lord Abinger. What said that which was called the leading journal of Europe? Had it a word to say in favour of Lord Abinger? Having contrasted the charge of the Lord Chief Baron with that of Chief Justice Tindal, the writer proceeded:—Speaking constitutionally, this was not the voice of an individual—it is not even simply the voice of one in authority—it is the voice of the common law of England.In another article published in the Times, in which comments were made on some speeches delivered at public meetings, which he (Mr. T. Duncombe) attended, and where the charges of Lord Abinger were severely condemned, the writer, having found fault with those speeches, said—We must guard ourselves from being sup posed to express an unqualified opinion of all that Lord Abinger has said or done in the performances of his trying office. We are inclined to regret the severity of some of those punishments with which he has visited many of the subordinates in this ill-judged and ill-fated rising. We regret that acts, scarcely amounting to tumultous begging, and with no proof of violence, should in these excited times have been visited with transportation, which, as robbery, has been awarded.Taking the other side of the question, he would refer to the language of the Morning Chronicle. [Here Sir Robert Peel smiled.] The right hon. Baronet might smile. He dared to say the right hon. Baronet did not approve of all the sentiments expressed in the Morning Chronicle, any more than he did perhaps always approve those of the Times. The Morning Chronicle said, after the opening of the Liverpool sittings:—If the sentiments attributed to Lord Abinger in reports of his previous charges are objectionable, those attributed to him in this last charge are infinitely more so. Indeed, I we can hardly conceive it possible to cram a 1040 greater number of questionable nay, absurd pro positions into the same space. We pass over the insinuations levelled at the Anti-Corn-law League in the allusion to the 'schemes of persons who considered that a general turn out might be advantageous to their peculiar political objects,' and proceed at once to notice some of the gross misstatements contained in this report. It is always our wish to be able to treat with reverence those who are clothed with judicial authority. Had Lord Abinger, in his charges, imitated the wisdom and moderation of Chief Justice Tindal, he should equally have commanded our approbation. But the noble and learned Lord has chosen to quit that path in which he could tread securely, for one in which his gait is most unseemly. It is not for a judge to propound from the judgment-seat doctrines of a questionable character; and if any one judge is less than another entitled to dogmatise on subjects such as those we have noticed—it is Lord Abinger. When in the House of Commons, he was never able to rise to the level of any general question, and in the House of Lords he has never distinguished himself by the comprehensiveness of his views.The Morning Herald spoke on this subject as follows:—We doubt whether the mode of giving some of the matter contained in these charges publicity and circulation is very judicious and appropriate. His Lordship's charges at Chester and Liverpool do not read so judiciously as that of Sir Nicholas Tindal at Stafford; they occasionally travel out of the records before his Lordship and wander into the regions occupied by political controversialists: they aim at more than is perhaps strictly within the province of a charge to the grand jury, and discuss subjects which will not assist the noble judge's auditory in disposing of the bills brought before them. Lord Abinger's addresses are, in short, what are termed political charges. … 'Proper things in their proper places; is a homely adage; Chief Justice Tindal's charge is an admirable illustration of it; Lord Abinger's charges here and there offend against it… The Lord Chief Baron devoted but small portions of his addresses to an exposition of the law; he rushed at once into political considerations, indulged in disquisitions on the tenets of a kind of men called Chartists'—declaimed against democracy generally—declared the adoption of the Charter to be equivalent to the destruction of the monarchy—suggested that the Government was most lenient in not instituting indictments for high treason in many of the cases to be tried.The Morning Advertiser also condemned, in very strong terms, the conduct of Lord Abinger. They were as follow:—Lord Abinger is proving himself to be to the Tory Government what his Lordship appo- 1041 sitely described Suisse to be to the Marquess of Hertford, 'an invaluable servant,' to whom no dirty work comes amiss. Yesterday we commented upon his Lordship's charge to the grand jury at Chester, and to-day we refer to the report in another part of our paper of a similar charge on opening the special commission in Liverpool. We have no hesitation in pronouncing both of these charges a disgrace to the Bench, whereto the public have been taught to look rather for an impartial and temperate exposition of the law, than for political disquisitions, or such liberticide harangues as those by which Lord Abinger has desecrated it. We have already expressed our conviction that the object of the Tories is to suppress all expression of public wrongs and opinion, under pretence of quelling insurrectionary manifestations, and Lord Abinger's charges most fearfully confirm this apprehension. By his Lord ship's exposition of the law, the mere fact of seeking any change in the system of Government, by means calculated to alarm the authorities, is equivalent to an overt act of treason; so that the people, in such case, have nothing to do but to hug their chains, lest their very rattling might disturb the repose of their taskmasters. We have merely space thus briefly to direct attention to the speech preparatory to the analysis, exposure, and denunciation of its flagrant aggression against the constitutional rights of the people.That was the opinion of the London press: he would take just one instance from a provincial journal, the Macclesfield Chronicle, which said—Lord Abinger delivered a lengthy charge to the grand jury at Liverpool, on (Monday, which, for bigotry and violence of language, far exceeded his former one. It was composed almost entirely of attacks upon the Anti-Corn-law League and the Chartists. This learned judge—this renegade Whig vents his Toryism in the most ignorant comments upon free-trade, and takes upon himself to be the guardian par excellence of public opinion. We venture to assert, that there is scarcely a single man, whose office leads him to animadvert upon human wickedness, in whose history will be found crowded a greater mass of political infamy.That was the language of the public press, the voice of public opinion, which was certainly not disposed, unless on good grounds, to undervalue judicial authority. Could we expect that the Bench would retain any share of public respect, for the authority which should belong to it, if just grounds were afforded for such imputations on its occupants. He had the firmest belief that he could prove the charges brought against Lord Abinger to be well founded, if the House would grant his demand for inquiry. It would ill become 1042 the House to refuse such a request. He believed the motion he was about to make was strictly founded on precedent, and conformable to the usage which had obtained in similar cases of ancient date. There had been numerous instances in former times of the punishments of judges who had been brought before the Bar of that House Judges who had misconducted themselves had been fined, imprisoned, and removed, and had, he might say, been executed. He was not asking the House at the present moment to pronounce any opinion upon the guilt or innocence of the learned Lord; but if he (Mr. Duncombe) could prove at the Bar of the House that that learned Lord had been guilty of the charges which he (Mr. Duncombe) imputed to him, it must be the opinion of every man that the learned Lord was unworthy to act in his judicial capacity. Without going back to ancient times for precedents, he would advert to those of more recent date. In the case of Kenrick, who was a Surrey magistrate and a Welch judge, Mr., now Lord Denman, made a motion in the House very similar to that of which he had given notice, which was to call witnesses to the Bar in confirmation of charges brought forward. That motion was agreed to unanimously. There was a little coquetting it was true; but the case was so good, that the right hon. Baronet now sitting opposite at last consented that an inquiry should be instituted into the conduct of this magistrate and judge. The result of the inquiry was, that Mr. Denman moved a vote of censure. The right hon. Baronet, then moved as an amendment, that the committee having heard evidence in support of the allegations of the petitioners, and having heard counsel on behalf of Mr. Kenrick, did not think it necessary to recommend to the House the institution of any further proceedings. There the matter dropped; but he (Mr. Duncombe) believed that the general expression of feeling was so strong against the conduct of Mr. Kenrick, that he resigned his judgeship, although he remained in the commission of the peace. The next case to which he would advert was that of Baron Smith, against whom certain charges were made in the year 1834; the first was neglect of duty, insomuch as he had kept his court sitting too late at night, while he had not attended it sufficiently early in the morning; and the second charge was, the introduction of political topics in his charges to the grand juries in Ireland. 1043 That case was brought under the consideration of the House by the hon. and learned Member for the county of Cork. Now, he (Mr. Duncombe) apprehended that all he had at present to do was to establish a primâ facie case for inquiry; for he did not ask the House to prejudge the question. That was the position taken by the noble Lord then, as now Secretary for the Colonies, and who he regretted, was not now in his place, in the case of Baron Smith. Now he contended that his case was stronger than that brought forward by Mr. O'Connell against Baron Smith. He complained not only of the topics introduced into the charges of Lord Abinger but of his summing up before the petty jury, and of his conduct—he had almost said, his brutal conduct—towards the prisoners at the bar, in passing sentence upon them. In the case of Baron Smith it was urged that a sufficient case had not been made out for the inquiry; but Lord Stanley (then Mr. Secretary Stanley) in answer to that said—Whatever circumstances of palliation—whatever circumstances of justification, there may be, depend upon it this case cannot stand without inquiry and investigation.Now, that was exactly what he said with relation to Lord Abinger. Mr. Secretary Stanley went on to say:—It cannot so stand—it ought not so to stand; and the hon. and learned Gentleman who expresses such anxiety to support the due authority of the law, and the upright and fair administration of justice in Ireland, may believe me when I say—which I do most conscientiously, as from the bottom of my heart—that that authority, and that support are best given and best secured by taking care that, if possible, no doubtful cases shall occur, and that if they do occur, no attempt shall be made to prevent a full and public inquiry into them. Sir, it is with this view wishing to cast no imputation on Baron Smith, for whom I entertain the most unfeigned respect, still less desirous of doing anything to subvert the authority of the law, and least of all desirous of acceding to anything that might countenance agitation in Ireland, whether political or predial, and believing that the support of the law and the authority of justice may be best maintained by allowing a due exercise of contralto the public opinion and the public sentiment, by showing that in the British House of Commons the interests of Irish justice are not less attended to than the interests of English justice; I say, Sir, that it is with this view, and on this ground, that while I should resist any motion that tended to remove with ignominy this judge from the bench, at the same time I 1044 do say, that in my conscientious judgment, a case has been made out for inquiry into the circumstances in question, and for examining whether any justification may be adduced for that which on the face of it appears to me a deviation from the ordinary duties of a judge. The hon. and learned Gentleman says, if we grant this inquiry, we condemn Sir William Smith. We do no such thing. All we admit is, that upon the face of the case there is ground for inquiry. I impute no corrupt motive—I impute nothing at all; all I say is, that there has been laid before me on the one hand, and not denied on the other, a case of deviation from that which I consider to be the strict line of a judge's duty. It is for that judge, and for those who defend him, to show whether that charge can or not be satisfactorily refuted. All that can be said is, that there is a primá facie case for inquiry.The House would remember that, after the lapse of three weeks or a month after that debate, a motion was made by the right hon. Baronet opposite (Sir E. Knatchbull), that considering the length of time Baron Smith had been on the bench—that he had served his country for thirty years, and that this was the first time his conduct had been questioned, the vote for appointing a select committee to inquire into the allegations should be rescinded. But even that was resisted by the noble Lord opposite, then Mr. Stanley, and the motion was carried by a majority of six, after a long debate. And upon that occasion what were the expressions of Mr. Stanley:—I say, that I have not that fear which the hon. Baronet (Sir E. Knatchbull) expresses, of subjecting the administration of justice to the caprice of a popular assembly. If the House of Commons wish to have all the statements brought before them, on which they should think a sufficient cause made out for instituting an inquiry, they should desire to be made more perfectly acquainted, not only with the facts that can be alleged on the one side, but with the justifications which may be tendered on the other, in order that they may be enabled to decide whether the matter be of that weight and importance which should lead them to take any ulterior steps.There was another speech upon the case of Baron Smith, delivered by a noble Lord then an hon. Member of this House, of whose integrity and of the value of whose opinion he (Mr. Duncombe) apprehended there could be no dispute. He alluded to the then Solicitor-general, now Lord Cottenham. That noble and learned person delivered his sentiments thus:— 1045It appears he wantonly delivered what must be considered a political party harangue—insulting to many of the grand jurymen who heard it, both with regard to politics and to religion. In England, no such practice prevails; and to avoid all temptation to the judge to become a partisan, it is considered inconsistent with etiquette that the bar should be present whilst he is delivering his charge. …. It is the duty of the judge to instruct the grand jury on the subject of the bills about to be brought before them, and not to enter into political matters, or make an harangue on doctrines and opinions, with respect to which many of the jurymen might think very differently from himself. It seems to me that if this practice were to obtain, a grand juryman might get up and answer my Lord Judge: he might say—'My Lord, I am of a different party in politics; I am of a different religion:' and I should like to see the judge who would have the hardihood to commit such a juryman. True, the judge might in answer say—'This is not a debating club, but a court of justice, and you must not reply upon the bench:' but might not the juryman, in return, inform his Lordship that he should have considered that before he made his inflammatory harangue? The hon. and learned Member for Dublin says, he is prepared to prove his case; and if it should be proved, I say that this judge ought no longer to remain in the seat of judgment. It is not proposed that we should immediately address the Crown to remove him; the result of the inquiry may be to prove that the hon. and learned Member is misinformed, and that there is no ground for the allegations which he has made. I earnestly pray that the learned judge may be honourably acquitted of the charge brought against him, if they be not well founded; and if that should be the result, he will return to Ireland in triumph, justified in the course he has pursued. It seems to me that, in justice to Mr. Baron Smith, we are imperatively called on to grant this inquiry.The noble Lord the Member for the city of London, whom he was sorry not to see in his place, also spoke, on that occasion, in favour of the inquiry. There was, indeed, one individual in the House at that time, who violently opposed all inquiry into the conduct of Baron Smith and that individual was—Sir James Scarlett. What were the sentiments he then expressed? Sir James Scarlett said:—I conceive that a motion for a select committee to inquire into the conduct of a judge is one which no Government should support.But the Government did support it: the right hon. Baronet the Secretary of State for the Home Department was then a Member of the Government, but having voted against them, retired about that time. Sir James Scarlett proceeded to say, 1046Which no Government could support unless they have first made an investigation, and are prepared to say they think it a fit case to be followed up by an address for his dismissal. You may declaim about the independence of the judges; but if a judge whose honour and integrity are questioned, even though be should have committed an indiscretion which may make him the object of odium to a particular party, is not supported by the Government, he will not have the courage to do his duty. I venture to say that if this motion be carried, the judges in Ireland, if they have any independence, will all resign.Resign! But not one of them did resign. Sir James Scarlett went on to say,I hope that no Gentleman in the House will give his vote on this matter as if it were a party question. No man detests a political judge more than I do. No man, in my opinion, ought to be made a judge on account of his politics; at any rate he ought not to carry them with him on the bench.Why, if Sir James Scarlett spoke his real sentiments, Lord Abinger must by this time be beginning to hate himself most mortally, for he could prove that no man had indulged in politics more than Sir James Scarlett, and that he had carried them with him to the judgment-seat, both at Liverpool and Chester. He had alluded to the charge of Lord Chief Justice Tindal; and he would remind the House that the learned judge had, in his charge at Stafford, pointed out exactly what he believed ought to be the conduct of a judge, particularly when engaged on an important and melancholy occasion, such as that upon which he was then addressing the grand jury. His Lordships words were as follow:—Gentlemen—It has already been intimated that we conceive it to be no part of our province on this occasion to discuss the justice of the complaints made by the workmen against their employers. or to decide upon the merits of the dispute existing between them. Neither is it part of our duty to show by argument that the course pursued by the parties who thought themselves aggrieved was of all others the least calculated to accomplish—on the contrary, perhaps, the most likely to defeat—the very object which they wished to attain. Nor, again are we called upon to suggest or to discuss any remedies which may be provided by law for the prevention of similar mischiefs, if, unfortunately, at any future time the same ground of dispute should arise between masters and workmen—a discussion which is better fitted for a legislative assembly than for the Members of this tribunal, to whom the only duty allotted is that of declaring the law as it stands at present. Our direct and more useful course 1047 will, therefore, be to endeavour to expound the law as it applies itself to the several cases arising out of these unhappy transactions, upon which you will be required to exercise your judgments, in order that you may arrive at a just conclusion whether sufficient evidence appears in each case to call upon the parties accused to appear before a jury of the country.No man, he apprehended, would dispute the soundness of the doctrine thus laid down. And here he could not forbear mentioning one anecdote of the conduct of Lord Chief Justice Tindal in reference to these trials. At one time a solicitor's clerk, engaged in defending a prisoner, had occasion to leave the court, and on attempting to return was stopped by the door-keeper, who told him that by order of the sheriff he was not to be permitted to enter, because he was a Chartist. Appeal was instantly made to the judge, and he was told that free ingress and egress had been denied to the solicitor's clerk to and from his client. Lord Chief Justice Tindal said, "Throw open the doors immediately. We know nothing of Chartists here." But go from the court at Stafford to that of Chester or at Liverpool, and it would be found that nothing was in the mouth of Lord Abinger but Chartism and Chartists. Now if Lord Chief Justice Tindal were right, it followed that Lord Abinger must have been wrong. Lord Chief Justice Tindal must have said what he did, in order to gain for the prisoners a fair trial. He now came to the charges delivered at Liverpool and Chester, and here he must contend that judges had no business to express their own opinions upon doctrines, nor to strain the law to meet those opinions. He was confirmed in that view by an authority which he apprehended the House would not dispute—he meant the Attorney-general Thurlow, afterwards Lord Chancellor, on the Duchess of Kingston's trial, in the House of Lords, in 1776, who said:—I do desire to press this upon your Lord ships, as an universal maxim, no more dangerous idea can creep into the mind of a judge than the imagination that he is wiser than the law. I confine this to no judge, whatever be his denomination, but extend it to all. Ingenious men may strain the law very far, but to pervert it—to new model it—the genius of our constitution says judges have no such authority, nor shall presume to exercise it!Now he asserted that Lord Abinger had assumed such, authority, and had presumed to exercise it. The two charges delivered 1048 by Lord Abinger at Chester and Liverpool were much the same, except that that at Liverpool went beyond the one delivered at Chester. Upon that, therefore, he (Mr. T. Duncombe) should principally take his stand, although he might read one or two passages from the Chester charge to show the animus of the judge throughout these trials.You will find that there is a society of persons who go by the name of Chartists, and who, if they have not excited or fomented those outrages which will be brought under your notice, have, nevertheless, taken advantage of them for their own purposes, have endeavoured to prevent the unfortunate people from returning to their work, and sought so to direct them that they might be conducive to the attainment of political objects. And what is the object of the Charier, which these men are seeking? What are the points of the Charter? Annual Parliaments, Universal Suffrage, and vote by Ballot. Yet, Gentlemen, you will find, by the evidence which will be produced before you, that it has been inculcated upon many misguided persons that the sovereign remedy for all abuses, and the only means of putting themselves in possession of such a share of power as would enable them to vindicate their own rights and secure themselves against oppression, is by the enactment of what they call the People's Charter.Was there any Member of that House who would get up in his place and say that the advocacy of the object mentioned is an illegal act? Lord Abinger went on to say—What a strange effect, then, would the establishment of a system of universal suffrage produce! for under it every man, though possessing no property, would have a voice in the choice of the representation of the people. The necessary consequences of this system would be, that those who have no property would make laws for those who have property, and the destruction of the monarchy and aritocracy must necessarily ensue.Not satisfied with libelling those who were favourable to the principles of the Charter, the learned Lord actually went out of his way to attack the institutions of America. His Lordship said—In the different states of America there are pure democratic associations, elected by universal suffrage and vote by ballot; and some of these states have recently exhibited the regard paid to property by democratic assemblies, by having protested against paying the public creditor, and disregarded their own obligation to obey their own law made for his security. If such a system of democracy were established in England, the first consequence would be, that the security of property would 1049 be removed, the public creditor and all commercial accumulations would be destroyed; and, finally, or, perhaps, the first object aimed at would be the destruction of property in land; there would be an universal agrarian law.Now, if this was not political doctrine, he would like to know what was. For what purpose was that point put to the grand jury, unless it were for the purpose of prejudicing not only their minds, but those of the petty juries who were to follow, against the prisoners to be placed at the bar? How could the judge know that some of the gentlemen he was addressing were not holders of that very American bank stock, and who, unfortunately for themselves, had lost the whole of their money, and that by his remarks their minds would be prejudiced, when he told them that the parties they were to try were seeking changes which, if effected, would place them, the public creditors, in the same position as the holders of public funds in America? He would ask if it was a fair argument to put to a jury, and whether a judge did not travel out of his way in alluding to such a subject at all. If this noble and learned Lord had not gone into Liverpool, and followed up his abominable and unconstitutional doctrines, in his summing-up before the petty jury, he should not have thought it worth while to call the attention of the House to th subject. But when he followed he noble and learned Lord into Liverpool, he found him indulging there in exactly the same style of language, nay, if possible, still more rancorous and malignant against the parties he attacked. He was quoting the reports of the Times newspaper, and as he understood that upon the occasion of the commission that journal sent down one or two of the most eminent reporters to take the proceedings, their report was, no doubt, more correct than if furnished by other means, or as if furnished by Lord Abinger himself. He would prove, that these reports, and more than these reports, were correct, for Lord Abinger went even beyond what was reported, and that in compassion of the judge, some passages were suppressed. The noble and learned Lord also indulged in a hit at the Anti-Corn-law League. Upon that point he would not enter, but leave that association to settle their dispute with the learned Lord:—Much has been said of the privations to which the working classes have been reduced, 1050 and I make no doubt that they are considerable, for it cannot be denied that many of the usual channels of trade have been interrupted, and there was existing a general feeling of despondency among commercial men as to the advantage of engaging in commercial enterprises, the result of which was attended with great uncertainty; but I am bound to say, from the experience I have acquired as to the history of this insurrection in a neighbouring county, that 'that distress has been greatly exaggerated.'Now he thought that House had, during the present Session, given a practical contradiction to the allegation that the distress of the people could be exaggerated. The noble and learned Lord went on—It seems that a society of persons, who are recognised by the title of Chartist, have endeavoured to persuade them that the true remedy for all their grievances, was the adoption of what they call, the Charter, which appears to be principally aimed at a larger Reform of Parliament than has already been adopted; and, in defiance of the promises, and no doubt the sincere hopes, of those patriots who introduced and carried the late Reform of Parliament, that it was to be a final, efficacious, and satisfactory measure of reform, these infatuated persons—for they also must be infatuated—have formed an opinion, grounded on what foundations I know not, that a representation created by universal suffrage and vote by ballot, together with the payment of Members of Parliament, would be a panacea for all evils, and endeavour to inculcate these doctrines on the assembled multitudes they addressed; and to persuade them that to perpetuate the insurrection against their masters, and to make it universal, was the best means of getting the Charter. They mixed up with their orations many affected recommendations to peace and order; but, gentlemen, you will find these recommendations always accompanied by false and exaggerated statements of the general feeling of the country. I must say, gentlemen, that if these conspiracies, having such purposes in view, had been made the subject of prosecutions for high treason, the consequences might have been serious indeed to the parties concerned. I am at a loss to know what distinction there is between a conspiracy to subvert the Government, and impose force and restraint on all the branches of legislature on purpose to have a particular measure passed into law, and the crime of high treason.So it appeared we were to have a new sort of treason—the advocacy of the Charter.I do not understand that the Government intend to push the indictment to that extent, and these people owe it to the lenity of the Government that they are not put in a position hazardous to their lives.1051 Had it then come to this, that the advocacy of the ballot, universal suffrage, electoral districts, payment of Members, and annual parliaments, is high treason? He was not now contending whether those principles were good or bad, but he said it was the constitutional right of Englishman to discuss these subjects, and a grand jury was not to be told by a learned judge of bigotted and rabid Tory principles, that it was little short of high treason to advocate certain principles, and that they were indebted to the lenity of the Government that they would not be arraigned for high treason. He (Lord Abinger) had forgotten that at so late a period as the year 1780 those very principles of the Charter had been advocated by noble Lords not only in that House, but in the other House of Parliament—that the very principles of the Charter had been advocated by the Duke of Bedford, the Duke of Richmond, Lord Selkirk, and others. Lord Abinger went on to say—A great deal has been said at different times as to what should be considered an unlawful assembly; and, I am sorry to say, that what has taken place in this country has given rise to discussion on the point, both in courts of law and in Parliament. But one thing is clear—that an assembly consisting of such multitudes as to make all discussion and debate ridiculous and a farce never can be assembled for the purpose of deliberate and calm discussion. Will any person in his senses say that when a man assembles together 3,000 or 4,000 individuals, he does so to form a deliberative assembly, to discuss speculative points either of law or government. Such a profession would carry with it its own refutation. If, therefore, an assembly consists of such multitudes as to render all notion of serious" debate impossible; or, if you find that at such an assembly all attempts at debate are put down, and that the only object of the parties is to bear one side, the meeting ceases to be an assembly for deliberation, and cannot protect itself under that pretension".Was that the learned Lord's definition of an unlawful assembly? He asked those who attended county elections, whether 3,000 or 4,000, and even 10,000, did not assemble; and whether they did not deliberate upon and discuss the merits of the candidates? Lord Abinger went on—The consequence of the success of their endeavours would be, not a reform of Parliament, bat a subversion of the Government; because everybody who reflects on such things knows that the establishment of any popular assembly entirely devoted to democratic principles, and elected by persons the vast majo- 1052 rity of whom possess no property, but live by means of manual labour, would be inconsistent with the existence of the monarchy and the aristocracy. Its first aim would be the destruction of property and the overthrow of the Throne, and the result would be the creation of a tyranny so intolerable, that the very persons who assisted in establishing it, would be the first to put it down; and out of the confusion which would ensue, would possibly result a military despotism. You will excuse me for using this language to gentlemen of your description.The learned Lord apologized for the language he used, and well he might. Why, those were the old arguments which were used up at the time of the Reform Bill, these anticipations of the Throne and aristocracy being in danger were all put forth as arguments against the Reform Act and its opponents, and now they are used against the Charter by a judge on the bench. With regard to the discussion of points like this, he would quote an authority which hon. Gentlemen on the opposite side would not, he apprehended, dispute—he meant that of the learned Attorney-general himself (Sir Frederick Pollock), at the trials at Newport, when defending Frost, in 1840. The hon. and learned Gentleman said,—I have not seen the Charter, and hardly know what is meant by a 'Chartist.' I hear of its points and articles, and I learn from the newspapers that Chartists carry their views beyond the Reform Act established by Lord Grey's Government. Among the articles spoken of are universal suffrage, vote by ballot, annual parliaments, and no property qualification; with respect to these I do not agree with the Chartists; but upon these subjects their opinions are entertained by many Members of Parliament of undoubted respectability and integrity, and of considerable talent, and if it be true what I have heard on the Subject—the names of many are attached to a document, the avowed object of which is to frame what is called the Charter of the People, by expounding their principles on these points. Gentlemen, I have abstained from mentioning any name unconnected with the cause, from uttering any observation which could give offence to any One who is absent, or using my privilege—I ought to say my duty—so as to create any feeling of pain or uneasiuess to any one absent, and I am sure I shall full fill the duty which I owe to Mr. Frost better and more to his entire satisfaction, if I refrain from making any one remark which could create a moment's pain with respect to any past conduct or transaction. These Chartists, however, gentlemen, it must be admitted, stand at present in relation to the present constitution as it was established in 1832, just as 1053 the advocates of reform stood in relation to the old constitution, which was remodelled by the Reform Act.The hon. Gentleman added:—And, however, I may differ from those who are called Chartists in opinion, I must do them the justice to say, that Chartism so far is not treason, nor the assertion, the public assertion of it, rebellion; and I must go further and say, that although I trust I shall never live to see the day, and I trust that nobody in whom I take any interest will live to see the day, fatal as I think it will be to the happiness, the prosperity, and the well-being of this country, when these principles shall be established; yet I must say, that if it be the confirmed opinion, at any time, if the large mass of the intelligence and numbers, if the strength and sinews of the country, and the intelligence which controls that strength, shall finally determine to adopt the Chartist code, doubtless, gentlemen, it will be adopted, and mere wealth would, in my opinion, struggle against it in vain.The hon. and learned Gentleman said, that it was not treason and rebellion to advocate the principles of the Charter; but Lord Abinger entertained a different notion. He defied any body who looked at the Charter to find in it anything that would enable him to say that its effects could be such as this learned judge ascribed to it. These were the charges addressed by Lord Abinger to the grand juries. He would now proceed to show how those charges were subsequently carried out by the learned Judge in his charges to the petty juries. If the matter had ended with the charges to the grand juries, it would have been of little consequence; for the gentlemen to whom those charges were addressed were men who, from their education and station in life, would possess enough of information to know that the doctrines laid down by the learned Judge were not the doctrines of constitutional law, nor indeed of any kind of law known in these kingdoms. He was told, that many of those gentlemen, on leaving the grand jury box, at Liverpool, had expressed themselves disgusted with the charge which had been addressed to them. Many of the unfortunate persons tried before Lord Abinger, upon this occasion were undefended. At Chester, as he found from the report to which be had before referred, there arrived the whole park of legal artillery of the Government. Down came the Attorney-general (Sir F. Pollock), the Attorney-general for the Palatine (Mr. Hill), Mr. Jervis, Mr. Welsby, 1054 and Mr. Pollock, to conduct the prosecution; whilst only a single counsel, Mr. Yardley, appeared for the defence. Hence it happened, that as two courts were sitting at the same moment, many prisoners were necessarily obliged to be tried undefended. There was always something in a special commission most adverse to the prisoners to be tried. For the holding of such commissions, the Government always appointed the time most convenient to itself. The bar did not generally attend unless especially retained. Hence the Government, with its heavy purse and well feed counsel, was always well and ably represented, whilst the prisoners, poor and without the means of offering a fee, were left to the very doubtful chance of procuring any legal aid at all. Upon the occasion to which he was referring, it appeared that Mr. Yardley was the only counsel available in the two courts for the defence of the prisoners. Hitherto, however, it had always been the benevolent maxim of the English law, "that the judge is counsellor for the prisoner." But so far from that being the case in the present instance, one of the charges that he had to bring against Lord Abinger was, that he made himself an advocate for the Crown, and that his conduct, throughout the whole of the proceedings, was most indecent and indecorous as applied to the character of a judge, and most unjust and cruel as applied to the prisoners. He would now show the House how the learned judge carried out the doctrines which he had laid down to the grand jury. He would go first to the trial of a man named Wilde, and five others, at Chester. These men were charged with attending an unlawful meeting, and rioting. In summing-up, the learned judge addressed to the petty jury very recently the same sentiments that he had already addressed to the grand jury: He said,—It would not be necessary to go at length through the whole body of evidence which had been presented to them. The question for the jury to decide was—first, whether that evidence went to prove the existence of a conspiracy; and, secondly, whether it identified the prisoners as connected with it. The aim of Chartist meetings he (the learned judge) considered, was to produce a general suspension of labour, in order, that by so doing, they might facilitate an organic change in the constitution of the country. All changes in the constitution, even from worse to better, were to be deprecated if effected by force and violence. He did not mean to say that men were set 1055 quietly to meet and discuss changes in the Government; but it should be remembered that Governments were not made in a hurry, but were created by a long succession of events, and the gradual improvement of mankind, who, as necessity required, made laws for the protection of persons and property; and any attempt to change those governments suddenly was pregnant with danger—it, in fact, amounted almost to treason. Now, he would ask, what were the objects likely to be obtained—what was the object sought by the advocates of the Charter? It was such a change in the laws as would give to the labouring classes the framing of all laws for the protection of property. That was the object avowed in the placard which had been produced in evidence, and the man who had been capable of writing such a placard must have had intelligence enough to know that such an object never could be effected without force and violence. It must be known that the House of Commons, as at present constituted, would never allow every man in the kingdom, whether having property or not, to have a vote for our representatives.He wanted to know what right Lord Abinger had to say that? How did he know it? What right had he to assume it? But Lord Abinger went on—To have a vote for our representatives, or allow their Members to sit without a property qualification.Then, what was to become of the Scotch Members and of the Members for the Universities of Oxford and Cambridge, who sat without any property qualification. If the universities were allowed to return representatives without any property qualification, why should not the same privilege be extended to the working classes? But Lord Abinger proceeded—Or, sitting, to receive a salary for their Parliamentary services. But even if the Commons should consent, the Lords would, to the last, resist the destruction of their own privileges.Here, again, the noble and learned Lord took upon himself to answer for the other branch of the Legislature. But with what propriety could he do so? When the Reform Bill was under discussion did not the Lords resist to the last what they considered to be a destruction of their own privileges? but when the advice was given to the Sovereign by the Cabinet of which the right hon. Baronet (Sir J. Graham) opposite was a Member, to "swamp" the House of Lords, did not their Lordships give way, and allow the Reform Bill to pass. This was the charge of Lord Abinger to a petty jury. By holding out such 1056 doctrines to them, he (Mr. Duncombe) maintained that Lord Abinger's object to use the words of Lord Erskine, must have been—To fasten the mill-stone of prejudice round the necks of those persons in order the more effectually to sink them.Lord Abinger went on—Finally, was it to be expected that the Sovereign would, without force or violence, consent to the changes proposed by the Charter?What right had Lord Abinger to state this? A former Sovereign, as he had already stated, consented to "swamp" the House of Lords. Why should not the present Sovereign consent to allow the working classes to vote for the return of representatives to Parliament? Lord Abinger proceeded:—The calling together of several thousand persons to discuss political rights was itself a farce, the object of the demagogues being invariably not to reason with, but to inflame the mob. He had always thought that a meeting, consisting of several thousand persons, must in its very nature, be illegal, because it was absolutely impossible that at such meetings there could be anything like discussion, and, therefore, for a man to say, I called together 5,000 or 6,000 persons for the purpose of political discussion, was in effect to say, that I called them together to inflame their passions.This appeared to be too much even for the stomach of the Chester petty jury, for it appears, from the report, that they interrupted the learned judge, and desired to have no more of it. The report said—The jury here interrupted his Lordship, and intimated that as their minds were already made up as to their verdict, they would not trouble him with going through the evidence.It was too much even for this jury. They had attended public meetings, no doubt, and had seen thousands of their fellow-subjects assembled for the purpose of political discussion, without allowing their passions to be inflamed. But "No," said the learned judge, "I will not stop till I have given you a little more;" and then he went on to a new subject, having nothing whatever to do with the case upon which the jury were to pronounce a verdict of "Guilty" or "Not Guilty." The report continued in these terms:—His Lordship said—He would only then trouble them with one observation, in reference to a statement of one of the prisoners, that the Queen lived upon the 1057 taxes taken out of the pockets of the people. Now the revenue of the Kings of England originally consisted of lands belonging to them. In the time of Edward the Confessor a great portion of the lands of England belonged to him as his private right. They would find even in Doomsday book, a very valuable document, and containing a record of all the property in the kingdom, that the King's property was there specified in the same way as that of a private individual. When William the Conqueror subdued this country, in virtue of his conquest, he took to himself the lands of those whom he had conquered, and introduced the feudal system. His revenue consisted of a vast portion of all the lands in the kingdom, besides the feudal rights, which gave him very considerable power over the lands of others. For instance, if a man died and left a son a minor, the King took upon him the property of the deceased as ward for his son. These were called the King's revenues. In the reign of Charles the 2nd the feudal rights, amounting to about 800,000l. a year were abolished, and a grant of 600,000l. a-year was given to him as a compensation, to be paid in certain taxes on small commodities which were then levied by the Government. In the reign of George 3rd, William 4th, and Queen Victoria, further immunities were given up, the Parliament undertaking to make a suitable provision for the purposes of royalty. Originally the property of the Crown belonged as much to the Crown as the estates of the Marquess of Westminster or the Duke of Bedford did to them, and if ever there had been sacrifices of property made to the public, they were made by the Sovereigns of England. Was it to be tolerated then, that assertions should be made respecting her Majesty which were false in fact, and only calculated to mislead. He had thought it right to make these observations, in order that the public might understand the real state of the question.Let the House mark these concluding words; the noble and learned Lord thought it right to make these observations, in order that the "public" might understand the real state of the question. So, then, this was an address to the "public," not to the "jury." In the opinion of this learned judge, when men were standing before him for trial by which their liberties, almost their lives might be affected, it was his duty to address himself not to the jury, but to the public out of doors. Well, the end of it all was, that the prisoners were found "guilty." Then came the sentences. Here again the learned Lord rendered himself conspicuous. Wilde and the other prisoners having been placed at the bar, the reporter of the proceedings gave this account of what took place—The learned Chief Baron in addressing the 1058 prisoners said, prisoners at the bar, you have all been tried and convicted—most of you of conspiracy, in the assembling of illegal meetings, rioting, and the adoption of other unlawful means to procure a change in the constitution of the country. With respect to this charge, which is the gravest and most important that has been brought before the court, you Robert Wilde, Samuel Lees, John Fairhurst, and James Wilde, after a long trial, and the deliberate consideration of the jury, have been convicted of that offence. It appears from the evidence, that all of you were more or less engaged in attending meetings assembled together by appointment, from day to day, and sometimes two or three times a day, the object of which was to procure the largest number of persons possible, and to deliver inflammatory speeches, which you, Robert Wilde, and. Samuel Lees, have been proved to have uttered against the constitution of the country and the present state of things. Your design in all this was to inflame the minds of the persons assembled, to procure still larger meetings, and, when you had sufficient numbers, and were sufficiently organised, to proceed to accomplish your object of creating an entire suspension of labour, and putting an end to all the industry within the districts in which you lived. Not only did you endeavour to suspend the labour in manufactories, but all other kinds of workmen were stopped—even agricultural labourers were prevented from following their lawful avocations. Now, a conspiracy to do this alone, if it were attended with no other result than the mere mischief and privation that must necessarily ensue to the unfortunate men whom you hindered from following their employment, is highly criminal, and very properly punishable by law. But the jury have decided that you had an ulterior political object; that you vainly imagined, by causing all labour to be suspended, that you could bring the country into such a state of distress and destitution—and which, indeed, you would have done, if your machinations had been successful—as that you might be enabled to force some political objects, which your imaginations suggested as the remedy for all the evils under which you supposed yourselves suffering. As to your suggestion that you intended to do this by moral force—the force of reason and argument applied to the judgment—what is that in reality but an absurd and fallacious pretext to cover your real designs, and to render them still more dangerous? Why, it has been proved, that at some of the meetings speeches were uttered—and I am not sure that they were not uttered by one of yourselves—in the course of which it was stated, that 200,000 men were on their march from Glasgow to turn out the cotton chaps—that your brethren(as they were called,) in Ireland were up—and that 100,000 Birmingham men (whom you thought proper to call cast-steel men, on account of their supposed imperviousness to 1059 the authorities, and against whom it was said a broadside would have no effect), were ready to rally round the cause of the people. Was this moral force and argument? Why, it is perfectly clear that your professions of regard for peace, law, and order, were only adopted in order to cover your baser designs; and that the real object was to give the people to understand that such physical force was about to be concentrated as would overawe the Government, and compel them to acquiesce in your demands. Nay, some of the speakers declared that the way to carry the Charter was to do as it was said was done in the case of the great Charter—go in a body to the Queen, and make the demand for it. That which is not altogether inconsistent with the history of Magna Charta was mentioned for the purpose of inspiring the people with a notion that, if you went in this formidable body to the Queen, the Government would be paralysed, and the Queen herself compelled to pass such laws as would, if they did pass, put the seal to her own destruction, and to the destruction of the constitution. However, I will not enter into a discussion of the principles of the Charter; for whether right or wrong in your speculative opinions, is a matter of no consequence. The charge is, that you attended illegal meetings, tittered inflammatory speeches, advised the people to cease from labour, and did all this with the design of procuring, by such violent and unlawful means, a change in the constitution of the country. The offence is the more dangerous, on account of the extent of the conspiracy, and the organization which seemed to prevail. It seems that you, Robert Wilde, was appointed a delegate to sit at Manchester, at which about three hundred were present. The question of the Charter was there discussed, and put to the delegates; and the great majority were for making the Charter a national question. Why I know not what is to become of the constitution of England, if the people are to be allowed to hold illegal meetings, appoint delegates, and exercise the right of legislating—if not for the nation at large, at least for the portion of it that is willing to submit to them. Let me tell you, that it is owing to the lenity of the Government in prosecuting you for a misdemeanor only, that you are not indicted for the crime of high treason; for I am much inclined to think that the principal feature which characterized all your proceedings was a design to subvert the Government; and such proceedings I am by no means prepared to say would not have been held to be high treason, if you had been charged with that offence. I say, therefore, it is solely owing to the lenity of the Government that milder proceedings have been instituted against you; but the Lord only knows with what success this lenity will be attended. The desire of the Government is, that you should be conciliated to your country—that you should no longer declare war against it, or resolve to effect a revolution which will destroy your own com- 1060 forts and peace; for, supposing that your machinations should be attended with success, and all were to become labourers, consider how much more labour would be brought to market, and with what a depreciation it would be attended. I am willing to believe that some of you have been deluded by those who have had more wicked objects than yourselves in view; and an opportunity will be afforded you by which you may yet become faithful subjects, on a more just consideration of the principles upon which all governments are established. This consideration may induce you to come to the conclusion, that you must take Governments as you find them; and that, if any improvements are desirable, they must be made by gradual and progressive reasoning, and through the medium of those who are empowered to revise and ameliorate the laws for the general benefit.He should be glad to hear from the Attorney-general and the right hon. Baronet (Sir J. Graham), whether they could defend and justify such doctrines as these. At Liverpool, Lord Abinger's charges were equally extravagant and unconstitutional, and there, perhaps more than any where else, Lord Abinger failed in the duty which attached to him as a judge, of being counsel for the prisoner, not an advocate for the Crown. This failure of duty on the part of the judge was in this instance the more to be deprecated, in consequence of the extraordinary stupidity of the jury. There were some unfortunate people tried for stealing bread. Their names were M'Cormick, Reed, Platt, Davies, and Cook. "The jury"—he was here quoting the report of the proceedings—Returned a verdict of guilty against the prisoners; but the foreman said they recommended Platt to mercy. The judge then asked the foreman, who did not appear to be very intelligent, what grounds he had for the recommendation, when, amidst much laughter, he replied, that, from the prisoners" own discourse, he did not appear to have been among the mob at all, but in other places. His Lordship told the foreman, that if the jury did not believe the prisoners were in the mob, that this disbelief entitled them to a verdict of acquittal, and not to a recommendation to mercy. He added, that, for his own part, he could see no doubt in the matter.Here was a remark to fall from a judge. The jury hesitated, but the judge immediately told them that he could see "no doubt in the matter." What was the consequence? The jury immediately returned their verdict, found all the prisoners guilty, and they were immediately sentenced to seven years' transportation. Mark how 1061 this occurred. The jury doubted, the liberty of the prisoners was trembling in the balance, when up got the judge, and said, "There can be no doubt in the matter." He came now to another case:—James Kelly, Andrew Cosgrove, and James Dolan, were charged with having, on Tuesday, the 9th of August, unlawfully, tumultously, and riotously assembled together, and feloniously demolished the mill and premises of Messrs. Stirling and Becton, in Lower Mosley-street. The prisoners pleaded not guilty. Mr. Wilkins said he appeared for Cosgrove: but the Attorney-general stated to the jury that he should not press the charge against him, as he found that the allegations consisted of an expression used by him, which did not legitimately bear the construction put upon it by the police-officers.He (Mr. Duncombe) was now only showing the want of intelligence on the part of the jury, in order that the House might see how likely they were to be wrought upon by a judge taking such views as Lord Abinger. The report of the proceedings in this case continued in these terms:The foreman again manifested the calibre of his intelligence by saying that they found Cosgrove guilty also, after the declaration by the Attorney-general, in his address to the jury, that he should not press the charge against him! After the verdict had been recorded, his Lordship ordered Superintendent Stephenson to be recalled. On entering the witness-box he was asked to describe the state of Manchester on the day when the above offence was committed by the prisoners. He did so, and said that there were upwards of 10,000 persons assembled. Lord Abinger: What was their object?—Witness: A large number of persons came from other towns; and they went from mill to mill, and compelled the men to leave work. Those who did so joined the turn-outs, and they continued the attacks. Lord Abinger: Just so. I shall pass sentence upon these men now. The prisoners being ordered to stand up, his Lordship, addressing them, said, You have been convicted by a jury of your country of a very grave and serious offence.Here he must remark that the manner of the learned judge in addressing himself to the prisoners, and in passing sentence upon them, was described to be such as to have created a thrill of horror throughout the court. It was so marked and striking as not to escape the comments even of the bar. The reports in the newspapers were not sufficient to show the manner and tone of the noble Lord in passing sentence. He was told that in the instance to which he was then referring, and upon a subsequent 1062 occasion, the learned Lord's manner was most indecorous and brutal to these men, and that he applied every sort of opprobrious epithet to them, such as "rabble," "vagabonds," and other terms of the like kind. These expressions were reported in very mild terms in the newspapers. The report made Lord Abinger continue his address to the prisoners in these terms:—Surely you have heard, or ought to have heard, that it is the peculiar blessing of the constitution of England, that there is no country in the world in which there is such ample security for personal liberty, and for the property of individuals. But if what you have been doing should be tolerated, of what avail would be the law? Of what use, I ask, would be the making of laws, if such rabble as yourselves should presume to usurp that authority, and to compel your fellow workmen to abandon their industrious employment? The law is a law of great leniency and great forbearance. It does not inflict penalties upon a man who quits his employment, and wanders about in idleness.The noble and learned Lord then sentenced these men to twelve months' imprisonment with hard labour. In another case, where the offence was that of stealing bread, the newspaper report said,His Lordship, after addressing the prisoners in similar language to that applied to Kelly and another, on the previous day, sentenced them to be transported for the term of seven years. The moment the sentence was uttered, the mothers of the unfortunate young men uttered the most piercing shrieks, and earnestly implored his Lordship for mercy, in which the prisoners joined, saying they had never been guilty of any offence before. They were then removed from the dock, but it was some time before order was restored in the court.In another instance, in which two men were found guilty of stopping mills, the newspaper report said:The learned judge immediately passed sentence; and, after commenting upon the liberal wages paid by Mr. Morris, and the fact of there having been no reduction in wages for three years past, and the further fact that the men employed by him were unwilling to leave their employment, ordered each of them to be imprisoned and kept to hard labour for one year. His Lordship expressed his regret that he was not empowered to inflict a heavier punishment.These were but a few samples of the spirit of lenity in which this learned judge administered the law. With regard to the noble and learned Lord's conduct it required evidence, and that evidence must 1063 be obtained in the form of oral testimony, to give the House an idea of the tone and manner in which he conducted himself towards the prisoners. He had received statements from persons who were ready to come forward and substantiate upon oath the accuracy of what they narrated. One of these statements, coming from a most respectable source said:—Messrs.—were present at the trials, and will come forward and give an account of the manner of Lord Abinger while passing sentence and summing up; they describe his manner and appearance as barely human, and that at the mention of the ' Charter,' he appeared to lose all self-command, grinning most demoniacally; and as proof of his antipathy to those who advocated Chartism, two men from a place called Dunkinfield, near Ashton, stated they were not Chartists; one of whom said he never allowed the Charter to be mentioned in his house. In answer to this set off, Lord Abinger, smiling, stated he should consider their case!' Since then a memorial has been sent to the Secretary of State, and they have been liberated, though they were charged with the same offence several others who are now suffering the extreme of human misery; their names are Turner and Fenton. Fairhurst was convicted of the same offence; his friends sent a memorial to the Queen, signed by most of the influential men in the neighbourhood of Mottram, together with several magistrates, praying for a mitigation of his sentence, which has been refused, whilst the other two, who disclaimed Chartism, were released. The whole affair is so altogether so disgusting that I will not insult you by offering any remarks upon it. The facts—the damning facts—speak for themselves.He (Mr. Duncombe) believed this to be perfectly true; and with this prejudice created in the mind of the jury and of the public with regard to Chartism, it was impossible that the prisoners could have a fair trial. If these were mere passing speeches, they would not much signify, even though they came from the lips of a judge; but when it was considered that they were terms employed upon the judgment seat, and addressed to men who were now undergoing the punishment pronounced upon them, the House would see that such language and such conduct assumed a very different character. He would now refer to the testimony of James Allinson, late a prisoner in Knutsford gaol. This man said,—I am prepared (if necessary) to make oath of the truth of the following statement relating to the treatment of Robert Wilde, &c., in Knutsford House of Correction. 1. That Robert Wilde told me that he and the others who 1064 went into the House of Correction together, were met by the governor, who said, Now you have been sent here to be punished, and I will take care you are punished; for let your treatment be ever so lenient whilst you are here, I would not give much for your constitutions when you go out.' 2. I heard the governor say to Robert Wilde, &c, in the day-room, immediately after their arrival, ' Bear in mind you men who are sent here for a long time, our rules are very" stringent. You will have your bread stopped for the slightest offence, and if that should happen often, you will never be able to stand your punishment!' 3. Samuel Lees told me, 'that he and the others who were brought in with him, were taken to the tread-mill on Wednesday afternoon, that being their turn according to the usual practice; and that on the following morning (Thursday) they were again taken out to treadmill, contrary to all custom, for the amusement of several ladies and gentlemen, who were anxious to see the sport!' 4. Samuel Lees further stated, that he was sent to weave against his will, as he would be in the same building as thieves and vagabonds of the vilest description, and, also, as his overseer was a felon!' I give it as my solemn conviction, that the unfortunate sufferers now confined in Knutsford would (as I would myself) much rather be transported for seven years than undergo the punishment inflicted on prisoners in Knutsford. I further affirm it as my opinion, that if they survive their long terms of imprisonment, their constitutions (which were strong and healthy on going in) will not be worth having; for before I came out, I marked with deep sorrow their altered countenances. The food is of such an inferior quality, together with being so short, and their anxiety for the fate of their wives and children being so great, that death would be much preferable to such a lengthened period of superinhuman torture.In addition to this, he (Mr. Duncombe) had a letter from Lees himself, addressed to his wife. It was as follows:Dear Wife—I write in hopes these few lines may find you and my dear child, my father and mother in good health, likewise my sister Martha, as they leave me in but moderately good at present, as I have suffered lately a little from indigestion; your visit gave me great pleasure, particularly when you told me that the master and manager had behaved so well to you in my absence, for which you must give them my thanks.Dear wife, I wish to give you a little advice how you should act in getting up the memorial to her Majesty, in order to get my term of imprisonment shortened; first, then, I must show you where the evidence against me was defective, nay, even false. They swore that I spoke at the meeting, on the 7th of August last, of which scores can testify to the contrary. Secondly, they swore that I did, on August 12th, state that I had been to Mr. Dalton's, and had asked a donation, he. 1065 refused to give anything, I therefore advised the people to go and stop his works; this is false. But the fact is, on the Friday morning, the 12th of August, a meeting was held at Wimbery-hill, when Mr. Dalton's foreman came and stated that his master had a quantity of goods in a spoiling state, and he asked permission of the meeting to be allowed to finish them; some part of the meeting seemed disposed to refuse his request, at which time I rose on the hustings, and advised the people to grant him permission to finish his goods, which was soon granted. On the evening of the same day another meeting was held at Waddensaugh-green, when some person told the people that Mr. Dalton had been swearing in a number of specials; and what I said at that meeting was, that Mr. Dalton's works were going on till the goods were out of danger, and that the meeting, I hoped, would not interfere, but allow them to go on; that was the substance of what I stated, Mr. Lodge can speak to what took place at the meeting in the morning, and I should like him to put a line in your letter to that effect. These and many other facts I stated to the Attorney-general at my trial, and he advised that my friends should memorialize her Majesty to get my time shortened. You must see some of my intimate friends, and they will give you their advice and asistance in the matter. I feel certain that should I remain here the whole of my time, on my liberation I shall not have a constitution worth having, should I even continue in moderate health, which is far from being the case at present.I wish you to give my best respects to the manager, overlooker, and all my old shopmates, hoping they will give their assistance, and all my friends in villages around you.I shall be very happy to see you the first Monday of April, or my sister Martha, or any of my friends or acquaintances; if you come bring the child with you.I hope you will keep up your spirits, as your unfortunate husband has done nothing that he or you need be ashamed of. Write in answer soon, and give me all the information you can.
§ "I remain, dear wife,
§ "Your affectionate husband,
§ "SAMUEL LEES.
§ "House of Correction, Knutsford,
§ "Jan. 16, 1843."
Robert Wilde also wrote a letter, giving a melancholy description of his health, and complaining of the conduct of Lord Abinger. It was in these terms:—
Dear Cousin—These few lines come with my kind love to you and your family, hoping to find you in good health and spirits, as they leave me moderately at present. I received your very kind and welcome letter of the 12th inst. To begin my very short letter, I must inform you and all our friends in
the neighbourhood from which we come, that we can be visited on the 2d of January,* or not till the first Monday in the next month, the hours of ten and four o'clock. I shall be glad to see you here, if you can make it accord with your engagements, along with either my father or brother, or any other friends. The period of my liberation approaches but tardily, but I shall reconcile myself to the lot of happiness which falls to my share. And in order to make the best of my leisure time after work, and to have a little improvement for the mind mingled with the tortures of the body, I wish them, when they come, to bring the following books, namely—M'Culloch's and Cobbett's Grammar, Hamilton's Geographical Key, and Walker's Pronouncing Dictionary, and I shall feel much pleasure in receiving from you any small work which your library affords, sentimental or scientific; nothing theological or political will be allowed. I send my very best and most affectionate love to my dear wife and children, to my father and mother, to my brothers and sisters, and I send my sincere and warmest respects to all friends, particularly Mr. J. Mills and family, Mr. Hall, and other real friends, who have given their liberal assistance to the widowed wife and fatherless children of the unfortunate Robert Wild. * * * Dear Sir, you may form an opinion how easy it is to be contented upon such scanty allowance. The effects are already visible in my body, and physical strength so far impaired, that I tremble when on my legs after the least exertion. You will cease to be surprised when I tell you that mine is not the only case of this kind. The effects of confinement and poor diet have reduced me extremely low, which you will see when I tell you that on my arrest I weighed eleven and a half stone, and now only ten stone three pounds; consequently I have lost only one pound per week for the sixteen weeks. We are compelled when exercising, to walk with our hands behind us, which I! find very inconvenient these cold days'. I wish to have a pair of gloves. I have applied to the magistrates to be allowed more food, but without success.
My paper is nearly full and time expired, I shall, therefore, close for the present, hoping that you will forward this to my father or wife, a copy of it to Mottram, By attending to my earnest request you will greatly oblige your affectionate cousin. ROBERT WILDE.
§ "Knutsford House of Correction,
§ December 16,1842."
He said, that these individuals thus harshly dealt with were, to all intents and purposes, political prisoners, that it was not right or just that they should be treated either as Lord Abinger had treated them, in the first place, or as they had
*And after that on the 1st Monday in April.
since been treated in the prisons in which they were confined. I hope, continued the hon. Gentleman, that I have now said enough to justify an inquiry into the conduct of this learned judge. At all events, if her Majesty's Ministers are resolved to stifle this inquiry—if they are determined not to accede to it—I hope they will at once stand up in their places and manfully say whether they approve of the political harangues which were delivered by Lord Abinger from the judgment-seat at Liverpool and at Chester. Let us know whether there are any of you who sympathise with the unconstitutional doctrines of law laid down and insisted upon by this recreant Whig. I wish to know whether the right hon. Baronet (Sir James Graham) sympathises in the political view of such a "recreant." I believe that the feeling throughout the country is universal in reprobation of the conduct of this judge, and that the people will not be satisfied unless some inquiry is instituted. But, if it be incumbent upon any persons in this House to assent to an inquiry, it is most especially so upon the friends of Lord Abinger. If Lord Abinger has been unjustly accused they will have an opportunity, if my motion is agreed to, of proving the falsehood of what I have stated. And there is this sense of justice in the British people, that if they feel that an individual has been traduced and wronged, they are always too ready and too happy to wipe away the wrong and to render to him full justice, and upon my head, and upon the heads of those at whose instance I come forward, will recoil all the shame and disgrace of not being able to substantiate the allegations we put forth. If the Government shrink from this inquiry what will be the opinion of the public? This judge is, to a certain extent, their servant. He was appointed by them. The public will say that you shrink from the inquiry, because circumstances may come out that would implicate yourselves. But if, by the force of a majority in this House, you stifle the inquiry I propose, what is to become of the character of this noble and learned Lord? Will he be respected by the people when he goes again to occupy the judgement seat at any of your country assizes? I maintain that he will not. No; he must be content to allow his name to be added to that dreadful and alarming list of ermined delinquents of former times who, forgetting alike the duty that they owed to their country and their God, are only remem-
bered in these days by the amount of law that they violated, the persecutions that they promoted, and the judicial murders that they committed. But I will hope for better things at this day. I hope that this House is prepared to do its duty on the present occasion. I call upon you, for the sake of the poorer classes, to institute this inquiry. I call upon you, Gentlemen, who support the Government upon all occasions, to vote with me in favour of this motion. I tell you that your character is also implicated in these transactions. I call upon you, therefore, for the sake of the Government—for the sake of the institutions of the country—but, above all, for the sake of the fair and impartial administration of justice—to accede to the inquiry which I now most earnestly, but most respectfully, implore you to grant. The hon. Gentleman concluded by moving—
That, petitions having been presented to this House complaining of Lord Chief Baron Abinger, when presiding as judge upon the execution of the late special commission executed in the counties of Chester and Lancaster, this House do summon witnesses to the bar, for the purpose of ascertaining the language used by the said Lord Chief Baron Abinger in charging the grand juries, and in summing up the cases to the petty juries who were empannelled under such special commission, and also in passing sentences upon prisoners convicted under the same commission.
said, he should meet the proposition of the hon. Gentleman with a direct negative. Perhaps the House would allow him, in the outset, to state the part he had taken in these transactions. Lord Abinger wag appointed head of the special commission that went to Cheshire and Lancashire, and he happened to practise before Lord Abinger. He was not aware that against the conduct of the Crown, or the immediate servants of the Crown, there had been uttered one single word of complaint. He had conducted the prosecutions in the cases referred to; he had addressed the juries; he had called upon the court to inflict punishment upon the prisoners; but he was not aware—though he might be mistaken in the view taken of his conduct—that, in any part of the kingdom, any expressions had been uttered, impugning the conduct of the law officers of the Crown. He could not avoid expressing his surprise that, after the imputations which the hon. Member had cast upon the learned Judge—after the administration of justice had been so 1069 much calumniated—not by the hon. Member opposite, but by other persons—those calumnies had not been extended to any of the parties who took an immediate and active share in conducting the prosecutions. The House would, perhaps, permit him to say, that the most lenient course was adopted in the conduct of those prosecutions; and that, though in many of the cases connected with these extraordinary outrages, charges of high treason might have been preferred, and as he thought successfully supported, it was not considered advisable to prefer charges of so grave and serious a nature. In the calendar of cases which came before Lord Chief Justice Tindal there was a charge of high treason; and it was chiefly in alluding to that case that Lord Chief Justice Tindal directed those observations which had been so much commented upon, and so justly commended, though it appeared to him that those commendations had in some measure been bestowed for the purpose of casting odium upon the charge of Lord Chief Baron Abinger. The House would, perhaps, allow him to call its attention to the manner in which this charge had been ushered in. He did not find that any petitions had been presented to the House from any of the relations or friends of one single person who was tried on the occasion to which allusion had been made, for that any petitions had emanated from the prisoners themselves, although many of them still remained in confinement. The hon. Member would correct him if he was in error, but he repeated that he did not find that any one individual among the persons who were supposed to be suffering from the conduct which had been complained of had presented a petition to that House. Nor did he find that any one Gentleman who had practised before the courts, either as attorney or advocate, had either presented any petition, or had given instructions for any statement to be made upon his authority as a member of the profession, that irregularity or excess of any kind had been committed by Lord Abinger. Neither did he find that a single petition had issued from any of the juries who were supposed to have been misled, or from any one of the grand jurymen whose feelings were supposed to have been outraged, by the charge of the Lord Chief Baron. He did find, however, that some six petitions were presented before the 10th of February, from 1070 Hull, Marylebone, Norwich, Loughborough, Newport, and Barnsley; on the 13th a petition was presented from Brighton; and on the 17th, fourteen petitions were presented, the majority, he believed, being from the immediate neighbourhood of London; but not one of these petitions had emanated from any person who professed to have been present at the trial, or to be able to afford the House any personal information on the subject. He should, he hoped, be the last Member of that House who would either throw any doubt on the right of petition, or who would question the duty of the House to attend carefully and anxiously to all petitions which were presented to it; but he thought, that in this case, in the total absence of any petition from any person who complained of injury, or who knew that anything had been done, calling for the interference of the House, they might fairly infer that the parties who had made the statements to which the hon. Member for Finsbury had referred, must either have been misled by exaggerated reports, or that their statements must in certain particulars be destitute of foundation. He was aware, that comments had been made in the public papers; and the hon. Member had cited certain passages from articles which appeared, he believed, in The Times, the Chronicle, the Morning Herald, and other metropolitan journals, and in one county newspaper, to show that the writers in those papers disapproved of the conduct of Lord Abinger. Why, if it was meant by the paragraphs which the hon. Member had read, that the writers disapproved of Lord Abinger's introducing party politics in his charge to the grand jury, he (the Attorney-General) entirely agreed with, them. But he denied the fact. He repeated that he denied the fact; if the hon. Members opposite would attend to the few remarks which he intended to make upon the charge itself, he would undertake to satisfy the House that nothing like party politics were introduced by Lord Abinger in his charge. The hon. Member had cited two precedents. He had mentioned the case of a Welsh judge, who was also a magistrate for the county, and to some flagrant misconduct on whose part, if he recollected rightly, the attention of the House was called many years ago, by the present Lord Chief Justice, who then re presented the town of Nottingham. He believed the complaint referred to the mis- 1071 conduct of that individual as a magistrate, not as a judge. The House entertained the question, because it was brought forward distinctly; and certain statements were made by the hon. and learned Gentleman who then represented Nottingham, which, if true, imperatively demanded inquiry. He believed, however, that it was not deemed expedient to move an address to the Crown on the subject of the misconduct of that learned judge. The other case was one from which he should have thought the hon. Member for Finsbury would have drawn very different conclusions from those which he had adopted. It was admitted on all hands that a judge not only might allude, but that it sometimes became his duty to allude—to political affairs. The noble Lord, the present Secretary of State for the Colonies, who at the time, he believed, filled the same situation under another Government, said, "It is not only his privilege—it may be his duty." The case against Baron Smith, as presented to the House by the present hon. and learned Member for the county of Cork, who then represented the city of Dublin, was this—that, at a country assize where there were only seventeen cases of cow-stealing, pig-stealing, and bigamy, but where there was no offence of a political nature for trial, the learned Baron had made certain observations on the general state of the country, and had introduced matters which at that time were considered to partake of the nature of party politics. Such was the charge against Baron Smith, and the House by a majority, he believed, of ninety-three, referred the subject to a Select Committee; but when the committee came to be nominated, it was moved, that the order for the appointment of the committee should be discharged; it was then felt, that with reference to the charges made against Baron Smith, it did not become the dignity of the House to trifle with its important duty in investigating the conduct of a judge, and the order was discharged. These were the two instances in point of precedent on which the hon. Member founded his case for calling upon the House to hear witnesses at the bar in substantiation of his charges. There would be no necessity to call witnesses to prove the delivery to the grand jury by Lord Chief Baron Abinger of the charge to which the hon. Member had referred, for that charge had been published by Lord Abinger himself. If the noble 1072 and learned Lord had omitted from that publication any material expressions which had actually fallen from him, if he had presented it to the world with important emendations, he thought such a circumstance would not have escaped the notice of the hon. Member for Finsbury, who would doubtless have stated the fact to the House. He had taken the pains to collate the charge of Lord Abinger, as contained in a newspaper, which he had obtained without the slightest reference to the political principles which it advocated, with the edition published by his Lord ship's authority; and, as far as he could discover, there was not in the latter copy any material omission or alteration from the beginning to the end. It was true that some expressions were slightly altered, but both were substantially the same. He must ask the permission of the House, before he proceeded to allude to Lord Abinger's charge, to direct their attention for a few moments to the state of the country at the time the special commission was issued. He did this with very great regret, and he owned that he could have wished that the hon. Member had postponed his motion until the most important of those trials—at least as far as the county of Lancaster was concerned—to which the hon. Gentleman had referred had been concluded. He felt himself compelled to speak with great moderation, when he remembered that the language which he now used might be circulated throughout the county of Lancaster, whither he was to proceed to-morrow week to conduct a trial—and a most important trial—against the leading and the principle offenders with respect to the late disturbances. But he must do justice to the noble and learned Lord. The House was aware that during last year, within a very short time, an insurrection broke out in no less than seven or eight counties. He had become more particularly acquainted with the details of the insurrection in the counties of Chester and Lancaster; and he believed that in those counties not less than from fifty to 150 mills were stopped, and above 50,000 persons—he thought 150,000 would be nearer the mark—a large majority of whom were desirous to remain at their work, were, by the proceedings of certain parties, awed into leaving their customary employment. In Lancashire and Cheshire, he was happy to say, none of that violence was exhibited which was exercised in the 1073 county of Stafford. In some very few instances lives were lost; and for ten days or a fortnight large bodies of men, varying in number from 2,000 or 3,000, to 7,000, 8,000, or 9,000, marched about the country stopping all the mills, and preventing the progress of every species of labour. A body of 9,000 men marched into Manchester and took possession of the town. They professed to enter under the banners of peace, and they gave such promises as induced the civic authorities to withdraw the military, and to permit them to march into the town. They dispersed themselves throughout the town—the shops were closed—and the provision shops were either broken into by parties of the insurgents, or the tradesmen were compelled by threats and menaces to give them food. In one instance a workhouse was entered, and the bread provided for the poor was carried away by the mob. At this time two deliberative bodies were holding their meetings in Manchester, by one of which placards of the most inflammatory nature were issued, desiring the people to arouse themselves to resist the tyranny under which they lived, to cease from all labour, and to take care to get arms, promising them, that after the lapse of a certain period, if they were prepared to use the advantages which nature had given to them, they would succeed in obtaining the Charter. The Charter had nothing to do with the administration of justice; but he would ask the House if Lord Abinger was not perfectly right, when it became his duty to address the grand juries in the counties of Chester and Lancaster, to point out how nearly the conduct which had been pursued verged upon the crime of treason, if indeed it fell short of it; and, in his humble opinion, it did not? Was not the noble and learned Baron perfectly right in pointing out that, though it was lawful to discuss any question in a proper manner by pamphlets, by lectures, and even by public assemblies of a peaceable character, yet that the people had no right, by force, by menaces, by compelling persons to abstain from labour, and so interrupting the peaceful industry of the country, to carry the terrors of something closely resembling civil war into every parish, and into every house of every parish—and for what purpose? To carry the Charter. These were the proceedings against which the charge of Lord Abinger was directed—not against anything like 1074 the free discussion of public questions. The House would, he hoped, bear with him while he mentioned some facts which would show the frightful extent to which this system of combination and conspiracy was carried. To such an extent was the system of interrupting labour carried, that in four or five towns there sat a committee, called, he believed, "the committee of public safety," whose business it was to mitigate the tyranny of the mob, and permit persons to perform certain works of necessity or mercy. For instance, if a family lost a near relative, and it became necessary for them, out of decent respect to go into mourning, the tailor was compelled to make application to the committee of public safety before he could call together the journeymen in the trade. It had been proved in evidence, that in one case a tailor went before a committee of twelve or fourteen mechanics or labourers, who were sitting at a table, and who called themselves a committee of public safety who heard his application to be allowed to employ workmen. They debated as to whether or not such an infraction of their rules should be allowed; and eventually a memorandum in writing was given to him, which was produced in evidence, permitting him to make a certain number of suits of clothes. But this was not all, for the next day the committee of public safety assembled the people in the marketplace, and informed them that they had granted this license, asking and receiving the popular sanction for their act. He mentioned this circumstance to show the House how deep, how extensive, and how well planned a scheme was in operation, and he 'might add, that in the counties of Chester and Lancaster six or eight of these committees were established. What, then, must have been the state of things in August and September, when the special commission was issued? Why, if extraordinary vigilance had not been used for the purpose of preventing the spread of the insurrection, it was difficult to imagine what lamentable and dreadful consequences might not have ensued from this effort to carry by force, and by violent agitation, what were called "the points of the charter." He would now proceed to allude to the charge of Lord Abinger. It was to him" ft matter of indifference whether he read the speech from the newspaper report or not; but, perhaps, it would be more convenient that he should quote 1075 from the edition which his Lordship had sanctioned. The hon. Member for Finsbury went through a portion of the charge delivered by Lord Abinger at Chester. I find the Lord Chief Baron says, at page 14,—You will find that there is a society of persons who go by the name of Chartists, and who if they have not excited or fomented these outrages, which will be brought under your notice, have, nevertheless, taken advantage of them for their own purposes—have endeavoured to prevent the unfortunate people from returning to their work, and sought so to direct them, that by a stoppage of all labour, they may be conducive to the attainment of their objects.He might venture to say, that scarcely a case came before the jury at Chester, in which this was not proved. The noble and learned Lord then says,—What are the points of the Charter? Annual Parliaments, universal suffrage, and vote by ballot. Yes, gentlemen, you will find by the evidence that will be produced before you, that it has been inculcated upon many misguided persons that the sovereign remedy for all abuses, and the only means of putting themselves in possession of such a share of power as would enable them to vindicate their own rights, and secure themselves against oppression, is by the enactment of what they call the People's Charter.His Lordship then proceeded to make some comments upon what he considered might be the effects of this Charter. He must say, that he did not think it was unbecoming, on such an occasion as that on which this charge was delivered, for one of the judges of this kingdom to vindicate before a grand jury the institutions of his country. Did they mean to say, that if a case of gross immorality was brought before a learned judge, he was to be debarred from making any remarks, the tendency of which might be to uphold a reverence for the laws, and a decent observance of those duties of private and public life which were the foundations of sound morality? Did they mean to infer, that in the case of any public crime which might be brought under the notice of a judge, it was not his duty, in general terms, to make such observations with reference to the offence as might promote in the minds of the grand jury and of the people a reverence for the laws and an attachment to the institutions of their country? He could not understand why a learned judge should be debarred altogether from allud- 1076 ing to the institutions of the country. The hon. Member for Finsbury had charged the learned Chief Baron with having offered an insult to America. It appeared, however, that the learned judge had alluded to America with great respect. He said,There is a country which cannot be spoken of without respect and attachment, as emanating from ourselves—I allude to America.The learned judge then pointed out some of those consequences which resulted from democratic government. Some hon. Gentlemen might think that this allusion was injudicious; but his opinion was, that if the object of the learned judge was merely to draw the attention of the grand jury to the love, veneration, and respect they owed to the constitution under which they lived, then the noble and learned Chief Baron had performed no more than his duty. The hon. Member for Finsbury then proceeded to notice the charge delivered by Lord Abinger at Lancaster; and though he (the Attorney-general) was sure the hon. Member had not the slightest intention of misrepresenting what the noble and learned Lord had said, yet his statements were calculated to produce a very different impression upon the House to that which would be made by a perusal of the charge. He would mention an instance. Lord Abinger said, alluding to those persons who demanded a change in the constitution,—But, gentlemen, you will find these recommendations always accompanied by false and exaggerated statements of the general feeling of the country.Now, the passage which followed he (the Attorney-general) most distinctly remembered. Lord Abinger thought it right to call the attention of the grand jury to these facts, for the purpose of showing that the object of the persons who thus assembled was not peaceable discussion and deliberation, but that their object was to overawe and to intimidate, and by something nearly approaching actual force to obtain the adoption of the measures they advocated. The noble Lord said,The people were told that all England was in arms, that Scotland was pouring forth hundreds of thousands of men, that Ireland was coming to the battle; and that the men of Birmingham, to the number of 100,000, armed with steel, and fearless of the force of the military, were ready to join them and carry 1077 the day. These are circumstances which plainly show that these parties endeavoured to delude the multitude they addressed with the notion that their force was becoming irresistible, and that they might effect their objects by alarming the Legislature, or by imposing restraint even on the Sovereign.He (the Attorney-general) would venture to vouch to the House that every syllable of that statement was to the letter true; and did the hon. Member for Finsbury mean to say that persons might assemble together by thousands and thousands, that they might encourage each other by the representation that England was favourable to their objects, that Ireland was ready to join them, that "the men of Birmingham, to the number of 100,000, armed with steel," were marching to assist them; and would he contend that to persons who might be charged before him with offences arising out of such proceedings, a learned judge was to declare, "Go and deliberate; consider among yourselves whether you will support universal suffrage, vote by ballot, no property qualification, and all the points of the charter. From the throne of justice I pronounce, that your proceedings are perfectly legal; you have a right to meet, to discuss, and to deliberate upon public questions, and therefore I dismiss you?" If they chose to construe the expressions of the noble and learned judge to infer, that all attempts to alter the constitution were to be put down, doubtless the charge of the noble Chief Baron was unconstitutional; but the observations of the learned judge did not warrant such an inference. What the noble and learned judge meant to say, and what he did say, was this—If you bring forward force, by which you may control and overawe the Government,—and if you use it, or conspire to use it, you are guilty of treason—at all events a combined conspiracy to effect these objects is as high an offence as can be committed.The hon. Member for Finsbury said this was a new doctrine respecting the crime of treason. Would the House allow him to quote the words of Lord Abinger?—By the law of this country the crime of high treason is technically limited to an attempt on the life of the Sovereign, or to raising war on the Sovereign; but the judges have from the earliest times considered that a conspiracy to levy war, and to employ force to restrain the will of the Sovereign, is an overt 1078 act of high treason; and, if satisfactorily proved, is sufficient to justify a jury, when combined with the intention of really imposing restraint on the Sovereign, in finding it to be high treason. I do not understand that the Government intend to push the indictments to that extent, and these people owe it to the lenity of the Government that they are not iced in a position hazardous to their lives.Then the hon. Member found fault with the charge in another respect. The hon. Member said,Here is again a new doctrine. No assembly of the people is to be allowed. Every assembly of 2,000 or 3,000 of the people is an unlawful meeting.And the hon. Member cited the cases of the Lord Mayor assembling the livery in common-hall, and of the sheriff convening a meeting of the freeholders for the purpose of a county election. He must confess that he thought the zeal of the hon. Member had a little overstepped his discretion and accuracy. [Mr. Duncombe: Had quoted from the charge of Lord Abinger to the petit jury.] He took a note of the hon. Member's observation, which he made long before proceeding to allude to the charge to the petit jury. Lord Abinger said—An unlawful assembly is an assembly collected together for some illegal object; and in case it exhibits by its acts and conduct some improper design, or excites alarm among the well-disposed subjects of the Queen, it is a riotous assembly.Where was the candour of the hon. Member, when he called upon the House to apply this doctrine to the meeting of the Livery of London at the call of the Lord Mayor, or to the assembling of the voters of a county for the purposes of an election, in compliance with the notice of the sheriff. The noble and learned Lord observed,A great deal had been said at different times as to what should be considered an unlawful assembly.But immediately preceding this, the noble Lord said,An unlawful assembly is an assembly collected together for some illegal object.And the former passage must, therefore, be read with this introduction. The noble and learned Lord said then—A great deal has been said at different times as to what should be considered an un-lawful assembly; and I am sorry to say, that 1079 what has taken place in this county has given rise to discussion on the point both in courts of law and in Parliament; but one thing is clear, that an assembly consisting of such multitudes as to make all discussion and debates ridiculous and a farce, never can be assembled for the purpose of deliberate and calm discussion.He hoped that the good sense of the House and of the country would support the law, and prevent the adoption of the principle that, under pretence of being a deliberative assembly, from 9,000 to 15,000 men might be collected in the open air, to consider whether or not the Constitution of the country should be altered, and might come to this conclusion:—Now let us separate; let one portion go to one place and stop labour there, and others to another quarter, and restrain labour there.If the hon. Member opposite chose to pick out an isolated passage from Lord Abinger's charge, and to say that he would take that passage apart from the context, he could only say, the hon. Member was at perfect liberty to do so; he could not prevent the hon. Member from pursuing such a course; but he would appeal to the candour and good sense of the House whether the connected passages ought not to be taken together? The noble Lord proceeded:—Will any person in his senses say, that when a man assembles together 3,000 or 4,000 individuals, be does so to form a deliberative assembly, to discuss speculative points either of law or government? Such a profession would carry with it its own refutation. If, therefore, an assembly consists of such multitudes as to render all notion of serious debate impossible—or, if you find that at such an assembly all attempts at debate are put down, and that the only object of the parties is to hear one side, the meeting ceases to be an assembly for deliberation, and cannot protect itself under that pretension.Such was the case with these meetings; every man who endeavoured to speak in opposition to the objects of the meeting was at once put down.Again (the noble and learned Lord continued), assemblies of such magnitude, without a president, or any one empowered and able to restrain and dissolve them, must lead, as every one will see, to alarm, and terror, and to the disturbance of the peace. Such assemblies are in themselves unlawful; and if their conduct occasions a breach of the peace"—["Hear, hear."]He begged to inform hon. Members 1080 who cheered, that the learned judge was speaking of large assemblies, which threatened disturbances of the peace. The doctrine really laid down by the learned judge was this—that an assembly of this description, the tendency of which was to lead to alarm, terror, and disturbance of the peace, was an unlawful assembly; and he must say, that he entirely concurred in this opinion. The noble and learned Chief Baron proceeded—If you, Gentlemen, find individuals among those assemblies who, by their conduct, manifest intentions of violence and mischief, and proceed to the extent of committing outrages on property, and preventing the free employment of labour, those men are rioters in the worst sense of the word. It will be your duty to find bills against all persons proved to be concerned in such proceedings.The only other portion of the charge to which the hon. Member opposite adverted, was that in which the noble and learned Lord referred to the probable consequences which would follow the success of the designs of such men:—They show by the example of their own conduct, by the violation of the law by which they live, how little calculated they are to compose a Legislature like that which they aim at as the result of the Charter. The consequence of the success of their endeavours would be, not a reform of Parliament, but a subversion of the Government; because everybody who reflects on such things, knows that the establishment of any popular assembly entirely devoted to democratic principles, and elected by persons the vast majority of whom possess no property, but live by means of manual labour, would be inconsistent with the existence of the monarchy and the aristocracy.This address must be taken in connection with the facts before them; it was not an address for the jury to carry home and to study at their leisure, but it was an address delivered to them by the noble and learned Lord, upon which they, the jury, were to act in reference to the business that was to come before them, and in reference also to that state of things, and the preceding events which had led to the special commission under which the noble and learned Lord had been called upon to preside. Having said thus much of the charge itself, he begged to call the attention of the House to two other points upon which the hon. Member for Finsbury had dwelt at some length. The hon. Member had stated that upon one of the trials the jury had 1081 expressed themselves disgusted with the summing-up of the noble and learned Lord; and if he had understood the hon. Member right, he said they "were so much disgusted, that they slopped the noble and learned Lord, and immediately found the prisoners guilty"—in other words, being satisfied of the guilt of the prisoners, they stopped the learned judge in his summing-up; but he found no expressions of disgust. [Mr. T. Duncombe: They said they had had quite enough.] All that the jury appeared to have said was, that they were satisfied as to the guilt of the prisoners, and that his Lordship need not dwell any more upon the nature of the case, for that they were prepared to find them guilty; and he believed the noble and learned judge, though perfectly of that opinion, but still desirous that the jury should not appear to find them guilty with the case incomplete, interposed—than which nothing was more common even in civil cases when the jury interposed, and said, "Permit me to lay down the law to you, and do not come to a premature and hasty conclusion, and decide upon a half-heard case." Now, with respect to the charges, he would take leave to make this statement,—that he had himself been present from the moment the grand jury had been charged, and was not absent from the court for more 'than five minutes during any part of the time that Lord Abinger sat. It was admitted to be the usual practice that the bar generally was not present in court before the grand jury were charged, and he could assure the hon. Member and the House that, acting upon that custom, he was not in court during the delivery of the charge, but that he was present on every other occasion—that he opened the prosecutions in that court—was present when the whole of the witnesses were examined—heard also the summing-up of the noble and learned judge, and remained in court after the verdict to call for the judgment of the Court, when the verdict had been returned. He, therefore, was never more astonished than when he heard the statement as to what had taken place which had been made by the hon. Member for Finsbury, and therefore he should be glad to know from what source the hon. Member derived his information?—
§ Mr. T. Duncombe:
From The Times and the Manchester Guardian, The 1082 Times gives the interruption by the jury; but the summing-up is more fully reported in the Manchester Guardian.
The Attorney-General was
obliged by the information, because his own impression as to what passed was entirely the other way. He had no recollection whatever of any part of the conduct of Lord Abinger that had excited from the prisoners and the spectators any of those emotions or feelings which the hon. Member had described. He felt this part of the hon. Member's charge somewhat personally, for he could not conceive how it was possible that counsel could have allowed case after case to go on with the judge conducting himself with the violence imputed, unless they themselves had participated in the conduct which was now made the subject matter of charge against the noble and learned Lord. The hon. Member had stated, that the parties under prosecution had not had the benefit of counsel on their trials. Now, he believed he was correct in his recollection when he said that there was no case tried at Liverpool in which counsel did not appear for some one or other of the prisoners, and that at Chester counsel appeared nearly for all. It was perhaps the same Gentleman, and he believed, if the hon. Member would refer to him, he would find that both from the bench and the bar he received every courtesy and assistance. There was one part of the summing-up of the noble and learned judge which he could not go to the length of the hon. Member in condemning. The prosecution, be it remembered, was for very inflammatory language held in a tumultuous assembly. In the course of that language the name of the Sovereign had been introduced coupled with remarks upon the expenses of royalty, and a statement that those expenses were so much encroachment upon the interests and comforts of the poor. Now, he thought Lord Abinger was perfectly right in instantly correcting the erroneous views of the misguided persons to whom such language had been addressed. The noble and learned Lord in his summing-up stated only that which was matter of history, and perfectly true, namely, that the Crown had formerly very large possessions wholly independent of grants from Parliament, and of which the Crown had made concessions to the State. If those had been retained, he believed the hon. Member for the University of 1083 Oxford had held on former occasions, there would be very little necessity for the Crown to come to Parliament for any assistance at all. Lord Abinger, however, did not go that length, but contented himself with stating that there had been extensive rights which had been surrendered by the Crown for the benefit of the state. Now, with respeet to the sentences which had been passed by Lord Abinger upon the persons convicted before him at the special commissions over which that noble and learned Lord had presided, he would ask the hon. Member who had brought forward the present motion, whether he had taken any pains to contrast the sentences passed at Stafford with those passed at Chester and Liverpool? or whether he had compared the sentences passed by Lord Abinger at Liverpool with those passed by Mr. Justice Cresswell and Mr. Baron Alderson, the learned judges who sat in the other two courts? If the hon. Member had taken the trouble to inquire he would have found that Lord Abinger and the other two learned judges he had named assembled on the evening of each day, and it was after the fullest consideration of all the facts of each case that the sentences eventually passed emanated from the united judgment and opinion of all the three learned personages. He thought before the hon. Member brought forward charges of this description, it would have become him to move for a return of the sentences passed at Stafford by the different learned judges who sat under that special commission, in order to ascertain whether there existed any discrepancy which could make out Lord Abinger to be that tyrannical, inhuman and cruel person he was described to be, as compared with the other judges of the land. When he stated the sentences at Liverpool to have been the result of communication between the judges at that commission, he stated that which was almost within his own personal knowledge; and this further he well knew, that from first to last Lord Abinger was at all times ready and willing to listen to any application for mercy, come from what quarter it might. It would not become him to say anything of the views he entertained upon going down to represent the Government on this unfortunate occasion; perhaps, however, he might be permitted to say that from the beginning to the end of those proceedings he had himself used no expressions that 1084 another individual could cavil at—that in opening the cases for the prosecution he had merely stated facts—indeed, understated them in most instances—he had listened to the recommendations to mercy—his instructions from the Government were to adopt that course—he not only listened to recommendations, but he had looked out for cases to which mercy could be applied, and he begged to say, that in this respect there existed, as far as he could judge, the most perfect sympathy between the bench and the bar. As an instance, he would mention the case of a man named Cosgrove, the testimony against whom chiefly consisted of some ambiguous expressions used by him. Those expressions had been pointed out to him, and when he found that there was nothing but the evidence of a policeman to make out a solitary expression of a doubtful nature, it appeared to him that it was not a case in which he should be justified in proceeding, and he had therefore abandoned the prosecution. In another case there was a person who had undoubtedly been mixed up with a riotous proceeding, but in the course of the trial it was stated by the prosecutor (the owner of the mill which the rioters had endeavoured to stop, and who identified the prisoner as one of the parties) that up to the day before the outbreak he had been in good work, and that he was a young man who by his labour supported an aged mother. In his reply he had urged this topic as a ground for mercy. That view of the case was taken up by Lord Abinger, and the man was instantly discharged upon his own recognizances. Now, this mercy had been extended under the circumstances to this young man, although up to the time of his offence he was in full work and had nothing to complain of; and here he might, perhaps, be allowed to state, that although beyond all doubt there did exist in that district a degree of heart-rending distress which it was impossible to contemplate without the deepest emotion—although sufferings were borne and privations endured with a fortitude it was impossible to witness without the strongest sympathy, yet he should be wanting in justice to those who were suffering that distress and those privations if he did not state that the persons brought before the court to receive punishment for the part they had taken in the insurrections were not of the class of persons who had en- 1085 countered those sufferings and undergone those privations. Generally speaking, he did not remember an instance. It turned out that the persons who really suffered endured in secret, and kept aloof from crime, and that the persons who appeared before the public to be punished as criminals were either persons who had been in full work, or individuals who had been maintained out of some fund or other in order to induce them to abstain from labour until the Charter was obtained. With respect to the case of Turner and Fenton, it was very true they had been sentenced as the hon. Member opposite had stated, but some circumstances connected with those men having transpired an intimation was given to them to apply for mercy. They did so; a reference was made to the right hon. Baronet the Secretary of State for the Home Department; the right hon. Baronet referred the application to Lord Abinger, who made his report in favour of the two men, and their sentence was commuted. [Mr. T. Duncombe: They were not Chartists.] That circumstance had formed no ingredient in the matter, for the sentence had been commuted because some doubt had been raised as to whether they had taken that part in the transaction which the evidence on the trial had imputed to them. He had seen many of the unfortunate and misguided men who had been involved in the charges which led to the issuing the special commission; full one-third of the cases had been tried in the court where Lord Abinger presided, and in which he had been the leading counsel for the Crown, and he must say that, apart from the crimes with which they were charged, many of them conducted themselves with ability, with respect, with a degree of education, and as if above the situation in which they were placed. He (the Attorney-general) should be extremely sorry to find that, in the case of the two men alluded to, the sentence of the law which had been passed upon them was aggravated by unnecessary severity in prison, or by the taunts of the judge; but he thought it would have been more fair and candid on the part of the hon. Member for Finsbury, if he meant the House to come to a dispassionate investigation of the conduct of Lord Abinger, if he had omitted from his speech that part which had reference to the period at which the special commission had issued, for which 1086 Lord Abinger was no more responsible than the hon. Member himself. His answer to that part of the charge was simply this—that, as far as the Government was concerned, the state of the country at the time called for the instant interference of the law. The same opinion he had expressed at Monmouth, while defending the persons there accused, with all the zeal and all the learning of which he was master; he had then felt bound to admit that he had no complaint to make that the dignity of the law had been assumed as soon as possible after the commission of the offences. He had made no such complaint then, nor could it be justly made in respect of the more recent special commissions; for be it remembered that at those commissions persons charged had the opportunity of traversing to the next assizes, and that actually many of the persons in affluent circumstances had availed themselves of the opportunity the law afforded them, and would be tried at Lancaster at the ensuing assizes. With respect to the motion now before the House, he found that the only petition which had been presented which would show the House the sort of complaint which was made, and to which he begged to call the attention of the House, was a petition from the town of Kingston-upon-Hull upon the subject of the accusations against Lord Abinger. The petitioners commenced by stating,—They deeply deplored and regretted the degraded and distressed condition of their fellow-subjects in many parts of the kingdom.Who was there, he begged to ask, possessing a spark of patriotism, who did not deplore that condition? The petitioners then went on to say, that—The persons convicted before a just judge and an honest jury of any real crime connected with the lamentable outbreak should receive such punishment only as was proportionate to the wrongs proved to have been thereby inflicted upon society.This was a bad criterion as to the amount of punishment, but he for the instant would accept it, for certainly no greater wrongs could be inflicted upon society than had been effected by the outbreaks and events which had occupied two months of the last year. But the petitioners further observed, that—The benefit of fair and impartial trials had not been afforded to the parties charged at the special commissions at Chester and Lancaster, that the trials had been hastened on at a time 1087 when great excitement prevailed, and with an utter disregard to the interests of the accused.Now, he declared there was not the slightest pretence for saying that any application for the postponement of any trial having been made had been refused, the petitioners further stated that,—James Scarlett, Baron Abinger, Chief Baron of the Court of Exchequer, had delivered certain charges which were improper, of a political tendency, and calculated to exasperate and influence the minds of the jury.And they prayed the House to institute an inquiry into his conduct, and to present an address to her Majesty, praying that she would be pleased to visit Lord Abinger with a mark of her royal displeasure such as might induce other judges to avoid pursuing a similar course. Now, he must say, with every respect for the hon. Member opposite—with all respect for the zeal he displayed in the public service, and for the eloquence and ability with which he urged his views—with every respect for all the hon. Member's good qualities, he felt called upon to meet this motion with a decided negative. He thought the House would very ill employ its time and attention in listening to accusations of this description, unsupported by even any ordinary indication of there being the slightest substance in them, or even the smallest complaint from anybody implicated in the proceedings to which the charges had reference. The character of Lord Abinger did not stand in need of this inquiry. His character as a highly honourable man who had filled various public situations with honour to himself and benefit to his country—the oldest member of the profession of which he was one of the brightest ornaments, could not require any praise from him (the Attorney-general). With respect to his brilliant career, he believed all Westminsrer-hall would bear ample testimony, and would declare that no man had exhibited more usefulness—as a judge none had brought more temper, abundant learning, acuteness, and ready adaptation of those qualities to the bench, and who disposed of the business of his office with a despatch and a satisfaction that was almost unexampled. This species of praise the noble and learned Chief Baron wanted not; nor should he have ventured to utter it, but it was extorted from him by the occasion; and he thought it would ill be come the House to waste the high func- 1088 tions that belonged to it—for he did not deny the proper vocation of the House of Commons for such inquiries in general in an inquiry founded upon such charges as those which had been brought forward by the hon. Member; but he wished the House to attend to the speech of the hon. Member, and notice how signally he had failed on this occasion in establishing his case, and he wished to spare the House the discredit of taking up this ground of attack upon the noble and learned judge; he was anxious, moreover, to shield the noble and learned judge, after a life of utility, from that species of dishonour which would flow from making him the subject of an inquiry on imperfect grounds, and from the public suspicion which would arise from it, that he had misconducted himself on an important occasion, when his services were called for by her Majesty's Government.
§ Mr. Ross
, after observing that if at that stage of the debate he rose to offer one or two remarks, it was only in consequence of the absence at that moment of hon. and learned Gentlemen better qualified to sustain the motion of his hon. Friend, proceeded thus: "I think a great deal of what has been advanced by the hon. and learned Gentleman might well have been spared, and particularly the closing appeal, which was nothing but an 'argumentum ad misericordiam.' If an aged and venerable judge has been so far forgetful of his high and solemn duties as to excite prejudice in the minds of the jury against prisoners on their trial, that is no reason why the House should shrink from the discharge of its duties however painful they may be. The hon. and learned Gentleman has, in my judgment, altogether failed in showing that inquiry is not necessary. I have listened with the utmost attention to the debate, and I must say there has been established a primaâ facie case of misconduct. I feel myself bound also to protest against the doctrine laid down both by the learned judge and his apologist as to what constitutes an illegal assemblage. We are told that if a large number of men assemble, deliberation is impossible, and the meeting assumes a character of illegality. Sir, I maintain, in opposition to this doctrine, that a peaceable meeting held for lawful purposes is not illegal, whatever may be the amount of its number. To maintain the reverse is most dangerous. Once upon a time a certain great meeting was held at 1089 Penenden Heath, will hon. Gentlemen opposite pronounce that meeting illegal; and yet there was but little deliberation there. Again, a meeting over which a noble Friend of mine, whom I do not see in his place, presided, was held a few years ago at Hillsborough—it was most numerously attended, the country gentlemen marshalling their tenants like clans and bringing them down in vast numbers The whole thing passed off quietly. They met for the purpose of censuring the Government of the day, passed resolutions, and then dispersed; will any one venture to say that meeting was unlawful? I think not. I think it unconstitutional to apply that term to a meeting characterised by no violence or outrage. From what I know of the history of this country, I should conceive that if such an opinion as has been advanced was to go forth as sound, very great danger to public liberty might be apprehended. One judge might think 4,000 persons, another 3,000, another 1,000 too great a number to be allowed to meet. The circumstances which precede, and above all those which follow, meetings of this description, ought to have weight with a judge in forming his opinion and pronouncing on the character of the meeting. But if no violence precede or accompany the largest assembly that can be formed, it is unconstitutional to condemn it, and hold them who are found liable to punishment. If I am wrong, my presence at the great meeting held two years ago at Leeds, when an attempt was made to bring the Chartists to ruin, and no less than 8,000 men sat down in Mr. Marshall's mill, was unlawful, and I might have been apprehended for sitting there. But I do not think I was open to any such charge, or that any constitutional lawyer could be found to pronounce that meeting illegal. Sir, I shall give my support most cordially to the motion of my hon. Friend.
§ Mr. Thesiger
said, that after the able defence of the Lord Chief Baron which the House had just heard from his hon. and learned Friend, he did not think that he ought to trouble the House at any very great length. With the utmost respect and esteem for the noble and learned Lord, he must say that he was thoroughly convinced that there was not the slightest foundation for the attack which had been made on his judicial character, and he felt so strongly the inconvenience and detri- 1090 ment that must ensue to the House and the public business if motions like that of the hon. Member for Finsbury met with the approbation of the House, that he could not give a silent vote on the occasion. It was not possible to conceive a more important function than that of inquiring into the conduct of the judges of the land, and such an inquiry ought to be proceeded in by the House upon no light or trifling grounds. He apprehended there was no foundation for this kind of application to the House unless there were imputed misconduct such as to justify, or rather compel the House to join with the other House of Parliament in an address to the Crown for the removal of the judge whose conduct was disapproved. Anything short of this might properly be left to public opinion, which held a salutary check over judicial conduct, and over the conduct of public functionaries of all kinds which it might not be convenient to make the subject of Parliamentary inquiry; but if the House sanctioned all the inquiries of this nature that might be suggested, there would be no end to them. In every case that came before a judge there was sure to be one disappointed, party, because one party must be unsuccessful; and, as every man was prone to think that his case had merits, if this were to be the rule, they would have every disappointed suitor coming to the House to complain that his case had been hardly dealt with by the judge who tried it, that the judge was not impartial, that he had not shown equanimity of temper, and that he had not even shown legal knowledge. To talk of the independence of the judges if this kind of thing were allowed would be perfectly ridiculous. One of the best Acts, as it was one of the first of George 3rd, was to make the judges independent of the Crown; and there was no one acquainted with the history of this country who did not know that no act had tended more to uphold the integrity of the bench. Any one who was familiar with the sub-serviency of judges, "when the breath that made them" could unmake them, too well knew how great and important was the change. But was there no danger of the dependence of the judges on a public assembly? Was there anything more calculated to shock the independence of a judge than the feeling of being constantly liable to the censure of the House of Commons, on the application of any discontented suitor? He felt this so strongly that he was perfectly satisfied that it would be a 1091 most impolitic and mischievous precedent if any encouragement were given to this application. He would now turn to the charge of the hon. Member for Finsbury, and he trusted that he should satisfy the House that there was not the slightest ground for imputing to the noble and learned judge that which the hon. Member wished to be believed against him. The charge was, that the noble and learned Lord introduced into his addresses to the grand juries political subjects of discussion. Of course that was not the whole charge, because the hon. Member could not bring such a charge, on the ground of an injudicious selection of facts. The charge therefore, must go further, and impute to the noble and learned Lord that he introduced topics calculated to bias the minds of the grand juries, and induce them the more readily to find bills against the persons who were to be brought before them. He would not stop to remark on the unreasonableness of concluding that any observations of a judge could have any such effect on the minds of the noble men and gentlemen of education who com posed grand juries in this country, but he would admit that if such were the intention of the learned judge it was immaterial what was the fact. The fact, however, was that both charges breathed a tone of pity and compassion to those misguided persons, which was calculated to produce a totally different impression. He should refer to two passages to prove this from the charge to the grand jury at Chester:At the same time we cannot reflect on the occurrences which have recently taken place in the manufacturing districts without mixed emotions of compassion, and, if I may so say, indignation—compassion at the weakness and ignorance of those deluded multitudes who imagined they could effect the purposes they had in view by force and violence, and who, as they never fail to do, become the victims of their own delusion, and suffer misery and privation, and many of them punishment.Now, was this the language of a judge who was seeking to prejudice the minds of a grand jury against the persons who were about to be brought before them? Take another passage:—I stated just now that we cannot view without emotions of compassion the situation of the industrious classes, who, not having a competent knowledge to form a judgment of their own as to the principles or the rights of property, or upon the questions in which their own prosperity is involved, imagine they can by force and violence dictate terms to their 1092 masters, and thereby rescue themselves from a degree of privation and discomfort against which no Government, however it might be formed, and no law, whatever might be its intentions, could effectually secure them. Nevertheless you will find many in that situation of life to which I have just alluded, and with that infirmity of judgment which I have just described, whose passions are most easily inflamed when subjects are touched on relating to their own means of existence and their state of discomfort, and who are induced by crafty persons who excite and mislead them to imagine that they are the fittest persons to govern themselves, and that they ought to have an equal share, if not a superior share, in the conduct of the Government, and the making of the laws. I am afraid that the manufacturing classes have been of late the dupes of this sort of persuasion, and you wilt find in the occurrences which have called you together sundry examples of this delusion.Then the noble and learned judge ended this charge by repeating his compassion for the objects of such delusions:—I cannot conclude, (he said), without repeating my expression of compassion for the unhappy people who have acted under the delusion I have referred to. But, gentlemen, the law takes no account of such delusions; and if a man commits guilty acts he must be prepared to submit to the consequences of his conduct.Now, was it possible that the hon. Member for Finsbury, after looking at these passages, could say, even if he thought the charge was not of that description which he considered it was the duty of a learned judge to deliver, that there could be any object of inflaming the minds of the persons in whose hands was the discretion of sending these misguided men to trial? He would not weary the House by any observations on the charge at Liverpool, for he was quite sure already that the House would go along with him in the conviction, that the imputations which had been cast on Lord Abinger were perfectly groundless, and that the noble Lord, even if the topics which he selected were not the most judiciously selected, could not have the smallest intention of pressing on those unfortunate persons, but that every expression he had quoted evinced the kindness of his disposition and his compassion for the accused. But he believed that the topics were judiciously selected. They had heard from the hon. and learned Attorney-general the serious nature of the disturbances, and the agitation which prevailed throughout the country. Was the noble Lord to be silent on those topics in 1093 his address to the grand juries? Was it careful or tender towards the prisoner not competent to him to allude to the causes which led to their assembling on their solemn duty under a special commission? He (Mr. Thesiger) apprehended that it was the noble and learned judge's duty to uphold the institutions of the country, and to inculcate obedience to the law. But with regard to what had occurred before the petty juries who had tried the prisoners, and to the sentences which were passed, he believed that the House had had the most satisfactory refutation of the newspaper accounts of the conduct of the noble and learned Lord before the petty juries, and they had the statement of the Attorney-general, who was present throughout the whole of the trials, from the beginning to the end. He believed that it was impossible to resist such evidence; for if the conduct of the noble and learned Baron had been such as had been charged, his learned Friend must have noticed and been aware of it. With regard to the sentences of the noble and learned Lord, he must be permitted to trespass for a short time upon the House. He did not think that it was very fair, when those sentences were the united sentences of the three judges who composed the speial commission, if there were any improper severity in them, to attribute that severity entirely to the Lord Chief Baron. He did not think the hon. Member for Finsbury had made out his case that the sentences were unnecessarily severe; but if the hon. Member had thought that, they were, he ought to have associated in his charge the other judges, who were equally implicated in them. He, however, utterly disbelieved that there had been any severity on the part of the Lord Chief Baron. He had long known him to be a person of the greatest kindness. He had no right to ask the House to go along with him into private life, where the noble Lord had secured the affection of every one having domestic relations with him; but he had a right to say he did not think it likely that the noble Lord would at once, and entirely, change his character, and become a different man: and he did, therefore, totally disbelieve the statements as to the unnecessary severity of the sentences of the noble and learned Lord. He had had many opportunities of observing the conduct of the noble Lord in criminal courts, and be believed be spoke the opinion of the whole profession, when he said that there was no judge who was more 1094 careful or tender towards the prisoner: no one more anxious, if there was a reasonable doubt existing, fully and fairly to bring it out; and no one, when the awful duty was imposed upon him of passing the sentence of the law, who was more considerate and merciful than the noble and learned Lord, who was here charged with acting with great severity towards the persons who on the late special commission were arraigned before him. There had been no want of an endeavour to excite prejudices against the noble Lord, and he (Mr. The siger) might, perhaps, be permitted to take that opportunity of correcting an error which had gone abroad with regard to an expression imputed to the noble and learned Lord upon the occasion of a trial at which he presided, which had been incidentally mentioned in one of the papers quoted by the hon. Member for Finsbury. It had been suggested in one of those papers that the noble and learned Lord, on the trial of Suisse for the robbery of the Marquess of Hertford, had styled the prisoner "an invaluable servant." He knew that in consequence of the report a prejudice was excited against the noble and learned Lord for this expression. Now he (Mr. Thesiger) begged leave to assure the House that this expression was attributed to the noble Lord without the slightest foundation. The facts were these. In the very last codicil made by Lord Hertford he gave a large sum of money to his valet, styling him at the same time "an excellent man." The question on the trial was, whether he had been faithful to his trust, it was not what was the character of his services towards Lord Hertford, but whether he were guilty of robbery; and this expression in the codicil was considered by the prisoner's counsel as a very strong argument of the opinion of the master as to the fidelity of his servant. The evidence having been gone through the noble Lord was summing up when the jury interrupted him and stated that they were disposed to give their verdict without troubling the noble Lord further, and then the judge, referring to the statement in the codicil, observed that his master himself had called him an excellent man. He observed that an erroneous interpretation of what fell from the noble and learned Lord had gone abroad; and after all that could by possibility be imputed to the noble Lord, he would ask whether there was any foundation for the imputation. The House would excuse him for having 1095 taken that opportunity of correcting the mistake. He knew that prejudices had been excited against the noble Lord by reason of this mistake of the words he had uttered. He certainly felt most anxious upon the present occasion on the part of the noble Lord, whose judicial character had been seriously attacked. It had been his duty to watch the career of that noble Lord. He had gazed at a distance at his meridian splendour, when he took his place among great competitors, the first advocate of the day. He hailed his elevation to the Bench, as the proper, although late, reward for his eminent services; he had watched his conduct whilst there with respect and admiration; he had seen him devote all his talents and all his industry to the service of the State and the unremitting discharge of the high duties imposed upon him; he had now arrived at that period of life which might, perhaps, be granted to few—a period when the faculties of men were ordinarily impaired—and he found him with a mind as clear and bright, and strong as in his younger days, devoting all the powers of that mind to the service of the country. He was jealous of a reputation which had long adorned their common career; he was anxious that now, at this late period of his existence, there should not be the slightest stigma attaching to his high character. He trusted that the noble Lord might be for many years spared for the service of his country, and that when that period should arrive, which must come to all of us, his high reputation would sink unclouded to the grave.
§ Mr. Sergeant Murphy
said, there was no one who more willingly admitted the unwearing attention of the noble and learned Lord, or more admired his spirit, his acquirements, and his genius; it was, perhaps, on this account, that the weight of his example, when he brought his talents to the bench, was more likely to influence the individuals coming after him. It had been stated by his learned Friend the Attorney-general, that at the period of these charges, the country was convulsed from one end to the other, that the minds of men were deeply alarmed at the riot and rapine reigning around them, and that the symptoms of the times required the peculiar interposition of the law. It. was surely most important, therefore, in the position of the noble and learned Lord, that he should be most guarded in his statements, and he must contend that a 1096 political charge was peculiarly unsuited at such a time. He would ask his hon. Friend the Attorney-general, whether the political state of the country did then require the Lord Chief Baron to travel out of what he called the strict line of his duty. When he found the state of the entire country to be such, that the minds of the grand juries had been previously inflamed against the lower orders by the violence and the consternation then reigning, and an apprehension that a wide spread conspiracy existed, the spirit of the constitution should have led the learned Judge, who was sent down to administer the law, to pause before he said anything to foster that irritation. He ought rather to have tempered, by wise and gentle speeches, their fears and feelings already too rife, than have made a political charge amidst these excited feelings. The Attorney-general had appealed to the state of the country at the time. Was Lancaster in a worse state than Staffordshire, or any other part of the disturbed districts? Were the mill-owners more injured by the riots than the owners of the mines in Staffordshire who were exposed to a general strike, and who found that their mines were stopped by violence, and their men prevented from working? In point of fact, the persons of the mine-owners were threatened with violence, and their properly with fire. He would ask then, if that were the state of menace in Staffordshire, if the arguments of his learned Friend the Attorney-general, and of his learned Friend the Member for Woodstock, were correct, and in the case of such excitement, political advice ought to have been afforded by the Lord Chief Baron, why the course which was so good in the one case had not been adopted in the other? If it was the duty of the Chief Baron at Liverpool, to make this charge, was it not equally the duty of Chief Justice Tindal at Stafford, to make a similar charge? Yet, let the House look at the terms of the Chief Justice's charge, and see how it was couched. He had never, till he came into the House, read the charge of my Lord Abinger; indeed, he could not even now say that he had read it, as he had only glanced over some fugitive extracts coupled with the speech of the hon. Member for Finsbury. The charge of Lord Chief Justice Tindal he had read at the time, and he congratulated himself being in Ireland, which had been notorious for 1097 the perversion of the bench to the purposes of party, that Lord Chief Justice Tindal, in this country, and in a time of great excitement, had delivered a charge which was a model by which any judge might profit. He reverenced the judges of the land; and why did he reverence them? Because he did believe that if there was anything which they brought to bear when they took their judicial seat—in addition to the great learning they possessed—better than any other, it was the feeling of the absence of all political considerations; it was looking at the question submitted to them in a calm and dispassionate manner, so that it might be said of them as it was said of Lord Tenterden, "he would try a question of sedition or of treason as he would a question concerning a bill of exchange." He said that this was the principle which ought to govern the judges. No judge ought to travel out of the record immediately before him. If the topics introduced were calculated to prejudice the individual to be brought before the court, it appeared inconsistent with the right conduct of a judge. Give him leave to ask whether there were no Chartists to be tried before the Lord Chief Baron. Was it not notorious that there were many Chartists included in the calendar, and had it not been the argument of the Attorney-general, as showing that these parties were not driven to their misguided conduct by any want, that the majority had been engaged in a political outbreak, that their wants had been ministered to out of funds provided by the so-called Chartists; and, in fact, that many were Chartists? If this were so, what right had a judge, sitting upon the bench, to prejudice these individuals by any reference to Chartism? Allusion had been made by the Attorney-general to the conduct of the Crown. He admitted that the conduct of the Crown had been most lenient. He was happy to see that the late Government had been lenient in their prosecutions; he was equally happy to find that the present Government had, in this leniency, imitated the conduct of their predecessors. As allusion had been made to the prosecution of Frost, he must ask what was the state of the country during the trials at Monmouth? The attacks there were not confined to the buildings; there was a regular conflict between the troops and the people, and there was the overt act 1098 of treason in levying war. Did the Lord Chief Justice, in addressing the grand jury of Monmouth say that sedition was stalking abroad; did he advert to a set of political adventurers, and describe them as tampering with the wants of the people to serve their own sinister purposes, as coming into the mining districts to excite the fiercer passions of the poorer classes, and collecting an army of their own? He did no such thing. He explained to the grand jury the law of high treason, from the time of Edward 3rd down to the present day, and that when the conduct of the different parties was brought before them, it would be their duty to give their decision, not on any extrinsic circumstances which were not in his charge, but from the law as he had unfolded it to them. And what had been the conduct of the same learned Lord at Stafford? He declared, "we know no Chartists here." So ought it to be in every court of justice. The principle of the law was that it had no respect for persons; the principle of the judges had ever been, that they laid down their politics on the threshold of the temple of justice, and never stepped over it. The people abhorred political judges, and the high character of the judicial seat had been preserved from a political character, with great advantage to the administration of the law. He had the greatest respect for the genius, the character, and the high acquirements by which in the person of Lord Abinger the judicial chair was decorated, but at the same time, he should regret that one who, because of this character, must possess great weight and influence should stimulate the feelings of grand juries, already sufficiently opposed to the notions of men of higher standing than the Chartists, men who, if mistaken, bore the name of Radicals. All his hon. Friend, the Member for Finsbury, said, was that inquiries should be made; if they were prepared with the learned Gentleman, the Attorney-general, to give the negative to the charge made against the noble and learned Lord, they would consent to the motion, which would in that case, end in that which he would greatly rejoice, the acquittal of Lord Abinger, and prove that he was no exception to the character he had ascribed to the judges of the land; but if, on the other hand, the inquiry should prove that the charge against the noble and learned Lord were true, he 1099 would not regret that his hon. Friend, the Member for Finsbury, had flown at such high game, and that my Lord Abinger should be made to know that dignity, however great, or talent, however exalted, must not trench upon the principles of justice.
Mr. James S. Worthy
was surprised that his hon. and learned Friend had entered upon this discussion without having read the charge complained of. [Mr. Sergeant Murphy had said that he had not read it till he came into the House.] His hon. and learned Friend had said that he had only read "fugitive passages" of the charge. It was to him a matter of great relief that his hon. Friend had not read it, because, entertaining a high opinion of his hon. and learned Friend's judgment and candour, he should have undoubtedly regretted much that, having read it, his hon. Friend had formed the opinion he had just expressed; but he was convinced that if his hon. and learned Friend had read it, he would not have discovered any thing having for its object to stimulate the feeling of the grand juries. It might be that the subjects selected in the charge might be matter of observation for hon. Gentlemen opposite, but no candid man, and he knew his hon. and learned Friend was a candid man, could read the whole of these charges and say that the object of the noble and learned judge was to pervert justice, and to stimulate the feelings of the grand jury. Would the representatives of Lancashire, who sat on the opposite benches, submit to the libel upon the grand jurymen of their county that they should be stimulated by any judge to the abandonment of their duty? He should be very sorry to think that possible. With respect to the petty juries, his learned Friend the Attorney-general had described what took place, and had clearly shown that there was nothing in the conduct or manner of the noble and learned Lord before them to justify this attack. As to the present motion, it proceeded in a great degree from a misconception of the principles and practice of the constitution. He had yet to learn that, because a man was made a judge, although he be a privy councillor, he must at once abandon his political opinions. He thought, on the contrary, that anciently, and down to the present time, it had been the practice as it was the duty of a judge periodically to open to the people the nature and the 1100 value of the institutions under which they lived. What was the origin of grand juries? Originally the justices itinerant went through the country, and the great officers and the principal people of the various counties were called together to meet them, and with whom they conferred upon the state and condition of the county. The charge of the judge was then delivered to twelve men of the same body, who were returned by the sheriff as the petty jury, in writing; and it was not until the reign of Edward 3rd, that any grand inquest was summoned at all. From that time it had been the frequent practice for the judge to enter at length, not into any questions of party politics, but upon the general politics of the country, and a discussion of the institutions of the age, and of the condition of the people living under those institutions. He found in the Harleian collection a charge delivered to the grand jury of York by a judge in the year 1649, a period with the doctrines of which he thought the hon. Member for Finsbury would not be disposed to quarrel. What was the course there taken? Judge Thorpe, to whose charge he alluded, addressed the grand jury upon the state and prospects of the country. He was not aware that Judge Thorpe could be identified, and he believed that he could not, with any of the violent proceedings of the time; but his charge showed that he was not without opinions and feelings upon the political institutions of his country. After alluding to the changes which had been effected in the form of Government, and impressing upon the grand jury that it was the duty of the people to conform to the newly-erected institutions, he went on to discuss what was the authority on which the Government rested. He said that all authority and power were originally and primarily in God; that God, of his wisdom and providence, had dispensed so much of his power to man as was necessary for his use; and then came a passage of which he (Mr. S. Wortley), was sure his hon. Friend the Member for Finsbury would not complain. Judge Thorpe went on to say,And this brings me to the next assertion and position, which I own as a most certain truth and positive assurance, that the people (under God) is the original of all just power; and that, let the Government run out into what form it will, monarchy, aristocracy, or 1101 democracy, yet still the original fountain thereof is from the consent and agreement of the people. And from this assertion and position, I am led on further, by plain reason, to understand that rulers and governors are accountable to the people for their misgovernment; namely, when they transgress the rules and laws, by which the people did agree they would be governed. But let me not be mistaken, for when I say, accountable to the people, I do not mean to the diffused humours and fancies of particular men in their singular and natural capacities; but to the people in their politic constitution, lawfully assembled by their representative.He thought, and had anticipated, that these were sentiments which would be grateful to the feelings of hon. Gentlemen opposite: but, he begged to ask, had Lord Abinger, in this instance, done anything not in accordance with that which had in the case referred to, been done? But to pass over what might be called bad times, and leaving the times of the Tudors and the Stuarts, he would refer to a more recent period, and one subsequent to the Revolution. He held in his hand a charge printed in the year 1703, which was published as a sort of model charge for all grand juries of the period; and it was said to be written by a most learned individual, to whose authority every attention was due, and thought worthy of a second edition by another learned hand in 1725. In this document a form was given which entered into a discussion of the principle of the constitution, and it concluded by directing that there should be handed to the grand jury a document containing what was technically called the charge, that was a list of the offences to be inquired into. And in truth, the principle upon which the institution of grand juries was founded was not satisfied by a mere recital by the judge of the number and nature of the indictments to be laid before the jurors, but their oath required that they should make presentment of all that has come to their knowledge in their own county, and it was out of this that the practice had arisen for the judges of the present time to address themselves to the grand jury, and to enlarge occasionally on general politics as well as all those topics which presented themselves as affording matter of remark by reason of their occurrence within the limits of the particular county. The hon. Member for Finsbury had referred to the case of Baron Smith, and he had remarked that Lord Abinger had taken 1102 part in the discussion upon that case. He had referred to the debate, and found that the noble Lord had spoken upon it; but he (Mr. Wortley) asserted no principle now on behalf of Lord Abinger, which that noble Lord had not then asserted on behalf of Baron Smith. He said,Government ought not to support such a motion without having themselves instituted some preliminary investigation, and been prepared to say that there was a fit occasion for following it up by an address to the Crown.In this case that investigation was unnecessary as appeared from the statement of the hon. and learned Attorney-general, who had given his personal testimony as to what had occurred at the trials. An investigation must be had, it was said, and upon whose opinion should the Government rest but that of their own officer, who had been actually present. Lord Abinger went on,They might declaim as much as they pleased about the independence of the judges, but unless they had confidence in the protection of the Government, how could they discharge their functions.He could not help remarking that this motion was brought forward at an unfortunate period, and it was not his fault that his hon. Friend had not been induced to postpone it. They were unable to speak either with certainty or freedom, for there was a trial yet to take place arising out of the same transactions; in that case evidence was to be adduced which had not yet been before the public, and which as yet could not with propriety be stated in this debate. Much of that evidence had been before Lord Abinger which was yet to be produced upon the trials about to take place, and it was not possible therefore, for hon. Gentlemen to form a judgment entirely correct with regard to the materials upon which the learned Chief Baron had made his charge. To return to the debate on the motion respecting Mr. Baron Smith. The noble Lord, the Member for North Lancashire, had been referred to as having spoken on that debate, and he had in his speech expressed what he deemed to be the duty of a judge with such extraordinary precision and beauty of language, that he would read it to the House, as far better than any definition he (Mr. Wortley) could give. The noble Lord was drawing a distinction between the case of Mr. Baron Smith and that which he described, and he said—
1103That he would not then enter into the question which was discussed last year, as to how far political topics were or were not admissible into such addresses from the bench, than simply to record his dissent from the position taken up by the hon. and learned Member for the city of Dublin on that subject, on the ground that if the offences in the calendar, or the state of crime generally throughout the country, were plainly of an insurrectionary tendency, a judge would fail in the duty he owed to society were he not to advert to such topics—in doing so he would be not only exercising a privilege, but discharging a solemn and imperative duty.He maintained that these observations were strictly applicable to this case. The hon. Member had brought forward this motion without the least reference to the state of the country. He would not repeat the description which had been given by the hon. and learned Attorney-general, but even that hon. and learned Gentleman had not fully described the extent of the disturbances in the north of England. The case of the charge delivered at Stafford by Lord Chief Justice Tindal had been referred to by the hon. and learned Member for Cork. He would not say one word against that learned and most estimable judge; he entertained, as he believed every other member of the profession did, the most sincere respect and the highest veneration for him. The bench possessed no greater ornament—there was no one to whom the whole profession looked with greater respect. The charge of the learned judge was excellent. But he remembered the charge of the same learned judge at Bristol—a charge equally excellent, but not so strictly confined to the immediate question then at issue as that delivered by him at Stafford. He re collected how the learned judge went into a definition of the character and duties of a soldier, for the purpose of showing that in his military capacity he did not lose his position, or forfeit his rights as a citizen. But was the state of things in Staffordshire precisely the same as that which existed in Lancashire? He denied that it was; for in Staffordshire the outbreak was not so much of a political nature, although the agitation in some degree assumed that character. In both counties there was a general apprehension that there would be a further reduction of wages. Communications were going on from one end of the country to the other, between the organized trades' unions, and there 1104 could be no doubt that a general determination prevailed to resist the apprehended reduction, even if an outbreak were the consequence. In Lancashire, however, the disturbances were marked by symptoms far more dangerous; at first undoubtedly the populace were acting upon the principle, that immediately upon a manufacturer reducing the wages of his men, there should be a turn out. But very shortly after the first outbreak, the leaders of the party, who styled themselves Chartists, endeavoured to identify themselves with the mob, and endeavoured to persuade them to adopt their views. At first they were unsuccessful, but eventually, and most unfortunately, the workmen were induced to join them, and to pursue by violence the political objects of the Chartist body. Lancashire was then in a most alarming position. Large collections of persons took place, and language of the most violent description was used, and two or three towns were for several days in the unrestrained occupation of the mob. Magistrates were present, and had taken part at meetings of the most inflammatory character, and some of them, the chief magistrates of boroughs within the county, had declared that under no circumstances would they order military force to be used to put down the disturbances. Unchecked by the authorities, and encouraged by the apathy if not the direct incitement of those who ought to have preserved the peace, large bodies of men were parading the county, forcibly preventing the continuance of labour; and further yet, a large force, with banners and the array of a march, had surmounted the hills and were pouring down into the valleys of Yorkshire. What, then, was the duty of the judge before whom persons engaged in those disturbances were brought for trial? The hon. and learned Member for Cork said, that there were Chartists there, and that that was the very reason why they should not be talked about. Why, it was a Chartist insurrection. The conspiracy charged was a conspiracy by means of force, violence, and intimidation, to effect a total change in the form of Government. The judge was not to talk politics. What was meant by politics? He agreed that party politics should be altogether excluded from the bench; but he defied the hon. Gentleman to point out one expression in the whole charge which was of a nature to render it open to this construction, unless 1105 it was the allusion to those Chartists, whose very offence it was that they were to inquire into. There were no common indictments to be tried. Some larcenies and some robberies, indeed, presented themselves; but these were the acts of the camp followers of the insurrection. Let them not tell him that the mob had done no harm. He cheerfully and gratefully acknowledged one most striking characteristic of their proceedings. He looked back to the time of the Luddites—of the machine breakers—and to the destruction of property which then took place; and he sincerely rejoiced in the contrast which those disturbances presented. However mischievous their purpose, however dangerous their conduct, however calamitous the results of their proceedings to themselves and their fellows, at least he was bound to acknowledge that the mobs of the year 1842 had, with few exceptions, cautiously abstained from doing violenceto property or person. But was there no mischief produced? How many mills had been stopped, how many hands prevented from doing their work, how many families turned adrift and bereft of the means of existence? It was a lamentable sight to see placed at the bar, as he had, poor men and lads, with tears, protesting that they had been forced from their work—that they loved their masters—that they had laboured willingly—that they had been the support of their young families or aged parents, until forced by the violence of the mob to give up their subsistence. He remembered one instance, which had struck him forcibly: A young man, named John Galvin, was tried before Mr. Justice Cress-well. He was nineteen years of age, and had been committed by the magistrates, having been apprehended amidst a violent mob, but, on account of the goodness of his character, was admitted to bail, to appear to answer the charge. When he was called, to the surprise of the court, he appeared in the uniform of her Majesty. He had, since the investigation before the magistrates, enlisted, and was then a private in the Rifle Corps. He had never intended any injury to any one, and on the first opportunity, he had evinced his loyalty by embracing the services of his Queen and entering an honourable profession. Then this being the nature of the disturbances, he would turn now to the charge of the Lord Chief Baron; and he would refer to the passages to which the hon. 1106 Member for Finsbury had alluded, and which he said, seemed to establish on the authority of the learned judge, a new fangled treason. The hon. Gentleman said, "There is a new treason; we cannot even discuss the Charter." Though the hon. Member was not a member of the profession to which he (Mr. Wortley) had the honour to belong, he thought that if he read the charge of the learned judge attentively, he could not fail to see that this was a construction which the words of that learned judge did not warrant.I must say, gentlemen, that if these conspiracies, having such purposes in view, had been made the subject of prosecutions for high treason, the consequences might have been serious, indeed, to the parties concerned. I am at a loss to know what distinction there is between a conspiracy to subvert the Government, and impose force and restraint on all the branches of the Legislature, on purpose to have a particular measure passed into law, and the crime of high treason. By the ancient law of this country, the crime of high treason is technically limited to imagining or compassing the death of the Sovereign, or to levying war on the Sovereign: but the judges have, from the earliest times, considered that a conspiracy to levy war, and to employ force to restrain the will of the Sovereign, an overt act of high treason; and, if satisfactorily proved, sufficient to justify a jury, when combined with the intention of really imposing restraint on the Sovereign, in finding it to be high treason.What was the effect of this passage? It was not that the Charter must not be discussed; but that if there was a conspiracy to subvert the present form of Government, and for that purpose to impose force and restraint on the Legislature, by means of a general insurrection and forced cessation from labour, it would amount to high treason. This was a position which no constitutional lawyer could deny. But there was another passage to which he would refer. It was this:—An unlawful assembly is an assembly collected together for some illegal object; and in case it exhibits by its acts and conduct some improper design, or excites alarm among the well-disposed subjects of the Queen, it is a riotous assembly; and all persons forming part of such assemblies, and countenancing by their presence their objects, must be taken, unless they can show that they were present innocently and honestly, as participators in a misdemeanour.A great deal has been said at different times, as to what should be considered an unlawful assembly; and, I am sorry to say, that what has taken place in this county has given 1107 rise to discussion on the point, both in courts of law and in Parliament. But one thing is clear, that an assembly consisting of such multitudes as to make all discussion and debate ridiculous and a farce never can be assembled for the purpose of deliberate and calm discussion. Will any person in his senses say that when a man assembles together 3,000 or 4,000 individuals, he does so to form a deliberative assembly, to discuss speculative points either of law or government. Such a profession would carry with it its own refutation. If, therefore, an assembly consists of such multitudes as to render all notion of serious debate impossible; or, if you find that at such an assembly all attempts at debate are put down, and that the only object of the parties is to hear one side, the meeting ceases to be an assembly for deliberation, and cannot protect itself under that pretension. Again, assemblies of such magnitude, without a president, or any one empowered and able to restrain and dissolve them, must lead, as every one will see, to alarm and terror, and to the disturbance of the peace. Such assemblies are in themselves unlawful; and, if their conduct occasions a breach of the peace, they are riotous.The meaning of these words, he thought, was too obvious to require explanation. The meaning of the passage, taken altogether, clearly was, that if the jury should be of opinion that discussion was not really the object of the meeting, and if the jury should find that it was of a nature to create and did create alarm, it was an unlawful assembly which, if accompanied with violence, would amount to the more aggravated offence of a riot. But to suppose that the learned judge had been guilty of the puerility of saying that a mere assemblage of 3,000 persons was unlawful was absurd. Then, there was another charge made—that Lord Abinger had stated that, so far as his experience went, he saw no reason to think that the outbreak was caused by distress or the want of wages. This was a question of fact. He did not for one moment deny the existence of distress in Lancashire or in the adjoining county; but if it were said that distress was the cause of the outbreak, he believed that in that statement a great exaggeration was involved; for it was not with those whose distresses were the most severe—whose sufferings were the deepest—that the insurrection commenced. Where did that insurrection begin—and amongst what class of' people was distress the most prevalent? He believed that there was no class of men more wretched or more grievously de- 1108 pressed, than the hand-loom weavers. The insurrection commenced at Ashton-under-Line, which was the centre of a population of 55,000 souls, including Dukenfield, Hyde, and Staley-bridge; but in the whole of that district there was not a single hand-loom weaver. Almost every mill in that particular district was at work—in Dukenfield one-half the population was employed, at an average of 10s. weekly wages, including men, women, and children, giving as the average weekly earnings of the whole population, 5s. per head. These places had sent emissaries abroad. They went to Wigan, but there they failed to create disturbances; to Preston; but several days elapsed before those calamitous occurrences which had there ended in the loss of life. He had letters in his possession from those who had been present at the time of the apprehension of the prisoners at Wakefield, Leeds, and Halifax, and there was scarcely a man among the parties taken up who at that time was not in full employment. There had been some evidence also given on one of the trials at Liverpool by Mr. William Morris, a manufacturer, which he would read. He was examined by Lord Abinger, who asked,Q.—Is yours a cotton mill?—A. Both cotton, spinning, and manufacturing.—Q. How many hands altogether do you employ?—A. The whole number of hands in that mill is 238, and in another in which I am concerned, nearly 500.—Q. Has there been any lowering of the wages in your mill for any time back?—A. Not for about three years. I may state, with your Lordship's permission, that last year I paid 500l. in wages in my own mill more than the nearest, for the same fabric of cloth, in the town; and at the present time I am paying full 20 per cent, more than the average.—Q. You say you have paid the same wages for three years 1—A. Yes.—Q. What was the average a good workman in your employ got by the week?—A, The average depends upon the number of looms they have. A two-loomed weaver, who is generally a young person, has from 10s. to 12s., according to the width of the cloth that is woven. Those on three looms have from 15s. to 18s.; those on four looms, after paying their little helper, a girl or a boy of about thirteen years of age, from 18s. to 1l. and upwards.—Q. Over and above what they pay their helper?—A. Yes, all clear.—Q. Many of the persons working for you, have their children working there also, have not they?—A. Yes.—Q. So that several members of a family earn their bread at the same mill?—A. Yes.—Q. Have you ever made a calculation how much each person gets on an average by the week, taking the men, and the women and children,—A. In the 1109 whole milt I had neither, up to last week, book-keeper, manager, nor salesman to pay—which ought to be borne in mind in this calculation, and the average is 18s. and upwards—between 13s. and 14s., taking the whole mill.This took place on the trial of a man named M'Cann, on the 11th of October, 1842. The view of the noble and learned judge was fully borne out by the report of Mr. Horner. If no other benefit had accrued from the measures which had been promoted by his noble Friend the Member for Dorsetshire (Lord Ashley) for the regulation of factory labour, the advantage of these periodical reports from the inspectors would have done him honour. Mr. Horner, after stating, thatThroughout a great part of my district there was a suspension of all work for a long time, by the riotous proceedings into which so many of the workpeople were betrayed: to these, however, it is unnecessary for me to advert farther, as I can give no information of which you must not have been long since in possession,goes on, towards the end of his report of 17th October, 1842, to state some of the influences under which the outbreak commenced.Setting aside all other considerations, and placing the necessity of adequate means of education being provided on no higher ground than as a question of public policy, it is obvious that something effective ought to be done without loss of time; and in the circumstances of the district, the most advisable thing appears to be, to establish National Schools, and those conducted on the system of the British and Foreign School Society; and I have no doubt that excellent local committees could be formed for the management of both. Such institutions for the benefit of their children would be evidence to the humbler classes of friendly dispositions and kind sympathy in those above them; feelings of alienation between the employer and employed would be checked, and the just influence of property and education would be strengthened. That people so uneducated are in perpetual danger of being led into wrong courses by designing persons, who, for selfish purposes, work upon their prejudices and passions, has been strikingly proved by recent events. It was in this district that the late outrages began; it was here that, in 1839, agitators found ready listeners to the most fallacious and mischievous doctrines; and if it be left in the state it now is, every year will produce a fresh crop of ignorant and excitable young men and young women, similar to those who constituted a large majority of the late mobs. Had these misguided persons been better attended to by their superiors (and by "superiors" I do not mean their employers only, but use the term in a far wider sense), 1110 if moral and religious principles had been carefully instilled into them in their childhood, if the means of continuing their moral, religious, and intellectual culture, and opportunities of passing their leisure time in innocent and agreeable occupations had been provided for them, we may safely venture to affirm that they would never have been betrayed into courses so dangerous to the community, and so ruinous to themselves.Now, with respect to the sentences. There was an authority on this question, upon whom he could rely, at least as an unprejudiced witness, a gentleman who had elevated himself into the position of a censor. He was the editor of one of the cleverest weekly periodicals, and he believed, himself a lawyer, although at different times he had been so unfortunate as to select as the objects of his attacks, such men as Mr. Justice Coleridge, Mr. Justice Pattison, and Mr. Justice Cresswell. His object in this case was to assail Mr. Justice Cress-well. In the Examiner of 15th October, 1842, he found the following passage: and let it be remembered that this was an acute lawyer, reviewing the whole proceedings of the special commission; and yet he hints at no fault in the conduct of Lord Abinger.Let us now see Mr. Justice Cresswell at the special assizes for the trial of men implicated in the late disturbances. But before we look at his sentences, let us mark those of the other judges in the same district, and dealing with the same class of offences.We take the report of the Chester trials in The Times of Tuesday, and we find that for cases of conspiracy, and not Lord Abinger's, sentences were twelve and eighteen months imprisonment, some so low as three months. In only one instance did he pass sentence of transportation, and that, as it seems, rather hastily, on the ground that the prisoner had been before convicted of felony, which conviction, as it appeared afterwards, was for a petty theft of a few potatoes.After going through Baron Alderson's sentences and Mr. Justice Cresswell's, the article proceeds:—With one exception, Lord Abinger's punishments ranged from eighteen months to three months imprisonment. Mr. Baron Alderson's punishment did not exceed two years imprisonment. Mr. Justice Cresswell's minimum was the maximum of Mr. Baron Alderson, and from two years imprisonment up to transportation for ten years, and even for life,This showed that the most lenient sentences passed were those of Lord Abinger. He must, however, do full justice to the high and excellent qualities of Mr. Justice 1111 Cresswell, whom he had the pleasure of knowing, and he rejoiced as well, he was sure, as nearly all those who heard him, for the sake of the nation, at now seeing that learned judge on the judgment-seat. In the case in which the sentence was so severe, and which was passed by that learned judge, the prisoner was prosecuted for robbery "together with others," and the judge, under such circumstances, was restrained by the terms of the statute from mitigating the period of transportation; but that sentence, he had reason to believe, was under the consideration of the Crown with the concurrence of that learned judge. He regretted on this, amongst other grounds, that the motion had been made. He did not believe that one of the men that had been tried would complain of their trial, and he believed that if they were consulted that they would all object to this motion on the ground that it would interfere with mercy, which otherwise might have been extended to them. He did not insinuate or suppose that the hon. Member for Finsbury had any such motive, but he could not help suspecting that some of them who had prompted him to make this motion had entertained a hope of influencing the forthcoming trials. But no one who knew the character of the learned judge, who was about to preside at Lancaster, could for a moment suppose that such accusations would dismay his mind. He believed that so far from the opinions expressed by the hon. Member for Finsbury being in unison with the general sentiment of the country, they were perfectly satisfied with the proceedings of the special commission. He had seen such an expression of opinion put forth in some of the leading publications of the day. Within the last few days a publication appeared, which, although it purported to be quarterly, was sent into the world within a month of the previous number, and whose pages are sometimes adorned by the writings of the ablest men of the day. He did not know whether this had been done in order to publish that article on Eastern affairs, which was so cruelly exposed last night by his hon. and learned Friend the Member for Beverley, or for any other purpose. The abortive character of that article might, perhaps, be attributed to its premature birth. The article, however, from which he wished to quote, was on the distress of the country, and was evidently not written in a 1112 hurry. In the last number of the Edinburgh Review he found it stated,—We have adduced sufficient evidence to show the extreme misery under which the people were suffering. It was in these circumstances that alarm was taken by the working classes at the resolution of some manufacturers still further to lower wages already lamentably depressed. The effect was very soon and very extensively felt; the workmen combined to resist the alteration; the combination spread; a determined resolution was shown to compel the employers to submit, by forcibly stopping the factories; vast assemblages of men were brought together for this purpose: proceedings not more illegal than they were absurd, ensued, adding greatly to the distress from which they originated; the Chartists endeavoured, with more or less success, to give this movement a revolutionary tendency; the laws were violated, great towns were taken and left in possession of irresponsible multitudes, and the whole social system seemed to be endangered. This state of things was not, however, of any long duration. The authorities, both civil and military, acted with effect, but with a temper and moderation above all praise. The administration of the law by Lord Denman, by Chief Justice Tindal, and their colleagues Barons Parke and Rolfe, displayed all the highest attributes of the judicial character—calmness, temper, firmness, impartiality: no false indulgence for crime, but a natural, and therefore a just, sympathy for suffering. The proceedings of the special commission were as successful as they were honourable to the venerable judges whom we have taken the liberty of naming, and order has been completely restored.
§ [Mr. T. Duncombe
observed that Lord Abinger's name was not mentioned.] No; nor were the names of Mr. Baron Alderson nor Mr. Justice Cresswell mentioned, who had been sent to try the cases at Liverpool; and for what reasons the writer best knew. But the facts to which the writer alluded could have reference only to Lancashire, and it was clear that he had in his view the commission in that county as well as that in Staffordshire. There was only one other point to which he would direct the attention of the House. He could understand the false impression conveyed by the writer of the letter which was read by the hon. Member. The Lord Chief Baron, no doubt, was occasionally liable to some little irritation of manner, caused, perhaps, by acute suffering such as he was known to labour under. And it had happened that pain had been given to himself, which he was satisfied was least intended. He had, on more than one occasion, been witness to some slight manifestation of this 1113 kind, and he was sure, that whether directed to his learned Friend the Solicitor-general, or any other member of the bar, for they might be equally liable to it, it was known and acknowledged that such a display of irritability was not meant unkindly. The hon. Member for Finsbury had been misled by his correspondents, and he (Mr. Wortley) would venture to say that, notwithstanding the circumstances to which he had alluded, that taking all circumstances into account, no judge could act with more consideration to the persons who practised before him, or with more perfect impartiality than the noble and learned Lord against whom this charge was brought. The hon. Member for Finsbury had complained of offensive terms which he had alleged had been used at the trials by Lord Abinger; now his hon. and learned Friend who was present denied that any such expressions as had been alluded to had been used by that judge. Still, however, he admitted that on the trial of some of the rioters strong terms had been used; but this was not only on the special commission, but at the assizes held at York before the Lord Chief Justice, similar and equally just expressions were used. That learned judge, against whom no one, he was sure, would bring the charge of harshness or severity, used the language which he would quote to the House, not in the charge to the grand jury, but in passing sentences on dosing the assizes:—You have all been convicted, either by the verdict of a jury, or by your own confession, of very serious offences—in the first place, of interfering with the rights of individuals and property; and in the second place, with committing acts of riot connected with those transactions. Most of you have been convicted of both; and I believe only one who stands before me has been convicted of riot only. It is quite plain, that you have lent yourselves in a most mean and abject manner, as it seems to me to be the instruments of persons who are much worse than yourselves, who have put you forward to bear the brunt of this accusation. If you had a proper spirit, and feelings like Englishmen, as you profess to be, and boast that you are, you would have resisted the force used upon you, and told those who incited you to work this mischief, that you would not lend yourselves to their purposes. The law has not yet got possession of any of those who appear to have originated this transaction. There are some, even at a distance, it appears, who have influence enough to induce you to prefer subscribing from your 1114 wages for the purpose of resisting the laws and injuring your neighbours, to keeping those wages in your own pockets, and pursuing the course of honest industry. It is necessary that examples should be made in all the different classes of offenders. Persons must be taught that the law is not to be violated with impunity; they must be taught that no mob can be kept together, performing any acts of violence, without committing deeper crimes than were at first intended; and that no control can be kept over them, save that which can be exercised by the soldiery, and by the terror of proceedings like these. It is highly necessary that you should be informed that from the moment the mob were acting together, to the annoyance of the special constables, and of the soldiery, and to their disturbance in the performance of their necessary duty, if, in consequence of the attack, death had ensued, every one of the persons acting on that occasion, would have been liable to be tried and executed for the crime of murder. There is not the least doubt that that is the law of the land, and, if it were not so, every person would have said, as many of you have been in the habit of saying, within the last few days, 'I took no part in it—I threw no stones—I was seen with no stick—I did no injury to any one;' and possibly this might be true; but if you were with parties of this kind, inspiring the terror that necessarily ensues from the congregation of large multitudes of violent persons like you, every one of you is concurring in the acts done in the course of the proceeding, and liable to suffer the extreme penalty of the law, if the crime I have alluded to had been committed during the transaction. It appears that in some instances, parties have endeavoured to extort money, which, if they had succeeded, through the terror of the mob, in obtaining from these parties, would have made them guilty of highway robbery. The crime of robbery is committed when men extort money through the fear of violence, and what violence can be more alarming than that of a large body of men, armed with sticks and stones, banding themselves together for some particular object, and resorting to threats and menaces? The act of riot itself is full of danger, and the same consequences will attach to all who are present, and aiding and abetting by their presence, acts like these. The jury, in several cases, have recommended you to mercy, and I consider that recommendation as extending over every one of the cases. They have felt some compassion for you, who have been so much misled, and have felt themselves justified in recommending you to mercy—a recommendation which the Court will consider in every sentence which it passes. It is a very painful duty which I have to perform; and it is lamentable to see so many of you, who are so well qualified to acquit yourselves well in the world, to set good examples to your children, to put your families in good circumstances, and to be yourselves respected 1115 by your neighbours, who now, in consequence of acts like these, must be imprisoned where the felon is imprisoned—where the criminal expiates his crime, and where some of you boast that neither yourselves nor any member of your families have ever appeared before.Jonathan Frost, William Holroyd, George Gill Whitwell, Samuel Tillotson, Samuel Holroyd, Thomas Lightfoot, Matthew Castle, and Richard Boardley, was next called up. The learned Judge said, they each of them stood convicted of taking part in those riots, and they were all of them persons who had used considerable violence. The offence was one of a shameful and cruel description, because it deprived a man of his bread, while on the other hand no one was a gainer. It was a system of the most mischievous and injurious description that could well be devised, but when it was connected with personal violence, it became an offence of a very serious character. Many of them had had good characters given them, and he was sorry to see persons, such as they appeared to be, in the Situation in which they then stood. The sentence of the Court was, that each of them be imprisoned and kept to hard labour for six calendar months. Broadley offered to enter into his own recognizances, and to find one surety of 20l. to keep the peace for twelve months, and his sentence was commuted in consequence to four months imprisonment.The learned judge, in this summing up, alluded to leaders, and pointed out the same class of persons as Lord Abinger, and no reflections could be directed against Lord Denman for having used language thus severe but just. He had felt it to be his duty, on a motion like the present, to address the House, as he thought that he could give some information having been present during the whole of the proceedings of the special commission. He believed that there was no part of its duties in which the House of Commons ought to be more cautious, than in the exercise of its undoubted privilege of holding the judges responsible for their conduct. The act of settlement of William 1st made them independent of the Crown, and one of the first acts of George 3rd made them independent of the life of the Sovereign. But it would be to little purpose that they had been made independent of the control or blandishments of the court, if they were lightly to be made subject to a new and more capricious authority. It had been well said, that "crowds have their courtiers as well as Kings;" and if the power of the more popular assembly were wantonly exercised, and the independence of the bench too lightly assailed, although its integrity 1116 and honour would remain untouched, its efficiency would be essentially impaired.
§ Mr. Wallace
could not help feeling that the hon. Member who had just sat down had made rather a singular use of the indulgence which the House was in the habit of extending to new Members, he said this as an old Member of the House, although he had only had a seat in it for the last ten or eleven years. It appeared to him that the hon. Member had totally forgotten that they had discussed the distresses of the country for five consecutive nights last week, and that he (Mr. Wallace) had also a motion on the distress of the country yet to come on; for the hon. Member had gone over great part of the ground of the speeches which had been and were to be made on this subject. With regard to the charges made by Lord Abinger whilst on the special commission, he had seen it his duty to purchase the book of the noble and learned Lord, and not to trust to reports of newspapers at all, but to trust to the learned Lord's own shilling's worth. [Cries of " Oh!" "Pooh."] "Oh," and Pooh!" They were very good words to come together. He had read this pamphlet with the very greatest care, and the conclusion which he had arrived at was the same which he had arrived at on reading the London and provincial papers. With regard to a special commission, he (Mr. Wallace) considered it a very awful thing in the country. The judge sent down was bound to purge his mind from every feeling not that of duty, otherwise he did not properly fulfil the office of a judge. ["Hear, hear!"] He said so too. There was a wide distinction in the judges on the Bench of England, which he hoped never to have seen. It reminded him, with sorrow, of the scenes he had witnessed in his own country, and which had degraded the Bench in former times. He could not forget in his younger days, in 1793 and 1794, how the judges in his country had condemned to condign punishment and even to death men who were never tried, except by packed juries and prejudiced men. They were condemned before ever they entered the court. That was strong language, and he was prepared to prove it. The hon. Gentleman who last sat down had quoted from the Examiner. He did not believe that the Examiner would descend to notice such conduct as that of Lord Abinger. He did not believe 1117 it would. He did not know before that the editor was a lawyer; but let him cut his pen well for next Saturday. It appeared to him, on reading this book, that the noble and learned Lord was well crammed as to the manner in which he was to deal with the Chartists, of whom he was not one. He told the grand jury at Lancaster he was going; to give them a little bit relating to the Chartists and the Charter, in case anything of the kind should come amongst them at any future time. If any judge were to say so to a Scottish jury, the foreman would be a very mean-minded man not to pull him up for addressing them in such a way. He (Mr. Wallace) should like to see the judge who would say so to him as a juryman, he would pull him up; and it was not the first time that he had pulled a judge up. The foreman of a jury at Liverpool had told the noble and learned Lord not long ago, that they wanted no more of his information, that they knew their duty. That noble and learned Lord seemed to him to have proceeded on his mission for the purpose of showing that there were two descriptions of persons only in England who were entitled to the protection of the law, and these were the holders of property and the aristocracy; for he told them distinctly, in so many words, that if the masses of the people who had no property were ever to be considered as worthy to be admitted to choose their own representatives to that House, nothing but revolution would be the consequence. Now, he asked that House, had these people no property?—had they not their ten fingers? ["Yes, and their ten toes too."] What was the value of their estates without these people and their fingers? And where would be their trenching and ploughing? ["Oh, oh!" and "Oh!"] Yes. He was speaking of the property of the working classes; they were the suffering part of the people; they were those who had been refused any inquiry into their petitions; they were those who had been oppressed and grievously oppressed, by the learned judge; and they were those who must now suffer for months to come without knowing whether there was to be any amelioration of their condition in commercial or financial affairs, according to the statement of the right hon. Baronet on the Treasury Bench. He had hoped he never should live to see the day when similar conduct to that of the Scottish 1118 judges, to which he had alluded, would be known in England. He would just read the charge of one of the Scottish judges made at the time to which he was alluding. The different charges of Lord Abinger at Lancaster and in other places, in turning out of his way to make the statements he had, had made so strong an impression on his (Mr. Wallace's) mind, that he (Lord Abinger) had done what he ought not to have done, or that he was through premature old age, or some other cause, unfitted for his position, that he (Mr. Wallace) would be most happy to see that judge retire in the same condition that he (Mr. Wallace) had proposed that the Scotch judges should retire—with his full and entire salary, and all other allowances. If it were true that Lord Chief Justice Tindal had pursued a course entirely different to the noble and learned Baron, with the complete approbation of the whole press of England, Ireland, and Scotland, he would ask again, how was it possible that Lord Abinger could not be wrong? He would read to the House the summing up of Lord Justice Clerk on one of the Scottish trials to which he had alluded:—The question for consideration is, is the panel guilty of sedition, or is he not? Before this question be answered, two things require noting; the first is this, that the British constitution is the best that ever was since the creation of the world." "That is the first thing;" (and the learned judge then advanced this rather stronger assertion)—"and the second is, that it is not possible to make it better; for is not every man secure, is not every man reaping the fruits of his own industry, and sitting safely under the shade of his own fig-tree?The charge of the Lord Chief Baron, at the special commission, was equally as violent as the charge of the Lord Justice Clerk against the Chartists of that day. The same charge proceeded as follows:—As Mr. Muir has brought many witnesses to prove his general good behaviour, and his recommending peaceable measures and petitions to Parliament, it is your business to judge how far this should operate in his favour in opposition to the evidence on the other side. Mr. Muir might have known that no attention could be paid to such a rabble. What right had they to representation? He could have told them that Parliament would never listen to their petition. How could they think of it: a government in every country should be just like a corporation, and in this country it is made up of the landed interest, which alone has a right to be represented; as for the rab- 1119 ble, who have nothing but personal property, what hold has the nation of them? What security for the payment of their taxes? They may pack up all their property on their backs, and leave the country in the twinkling of an eye, but landed property cannot be removed.How were the petitions of the people treated by that House at present? They were not allowed to be heard, but their petitions were jammed into a bag under the table. The Attorney-general had said it was remarkable that none of the prisoners sentenced by Lord Abinger had petitioned for redress or for amelioration of their sentences. Would any man tell him that a prisoner with the treadmill beside him would put his hand to such a petition? No man durst do it. It would be heard of in that House, the names would be sought out by a committee, and the prisoners would be punished. Why, it even appeared that at Knutsford the other day, on a party of ladies and gentlemen visiting the prison, a number of prisoners were set to work on the treadmill for their amusement. He had attended a meeting of 100,000 persons not long ago to express their feelings on the state of the country, and he wished to God there was another to-morrow, and that the hon. and learned Member (the Attorney-general) might be present to hear what he had to say. The people at that meeting had come to a resolution that the noble Lord must totally have forgotten what sort of meetings they were during the time that the Reform Bill was in agitation. The right hon. the Home Secretary would remember that there were plenty of such meetings. He remembered one large meeting, too, which he and the Home Secretary attended together: and one of the occurrences which had happened was this—there was a little bit of a row in the Court-house. There was. But the right hon. Gentleman took no part in it for or against. It was all against the Tories; therefore neither the right hon. Gentleman nor he (Mr. Wallace) took any part in it. They then, the freeholders for the county, agreed who should be the Member. No one knew better than the right hon. Member opposite how they had settled it and who was to be Member. They settled it over the claret and champagne. He never was elected in those days, but he did all he could to shove others in. In the course of the evening there was a considerable bit of a row 1120 got up, and they went to the windows of the dining-room to see what this was, and it was the sheriff of the county, who was the greatest man they had there, without cap, upon the horse of a private dragoon and ten or twelve soldiers galloping after him, coming to see "where was the row;" and no one laughed more than the right hon. Gentleman opposite to see the figure he cut. This was at Lanark. What did the Lord Justice Clerk next say?" What right has he to representation?" They might depend upon it he was going to read it. "The landed interest alone has a right to be represented." Very well. He went on—["Oh, oh!"] He conceived that this question was one of very great importance to the people of England, Ireland, and Scotland. It was a matter of great importance to them whether they should respect their tribunals and their judges. He would tell the House that since Lord Abinger's appearance on that commission special commissions were held in detestation and contempt. But, so far as the other judges were concerned, they had a beautiful contrast with the noble Lord. He had endeavoured to show to some Scotch friends that the conduct of Lord Abinger was the exception and not the rule. Every sort of care was taken in the English courts in the trial of a cause; whereas in the Scotch courts they had nobody to defend prisoners except mere lads and youths. Nothing showed greater abuse than the Scotch criminal courts; the prisoners were all ready "cut and dried" for condemnation. There were not more than two or three lawyers in a court, and these were mere "spoons." Not one man made his fob heavier or his pocket richer. He hoped that if witnesses could not be examined at the bar of the House, at least steps would be taken to inquire into the grievances complained of by the petitioners and to redress them, and that no shuffling excuses would be made to prevent justice being done.
§ Mr. Scarlett and Sir J. Graham
rose together, but the former being called for, proceeded to address the House to the following effect:—It would ill become me to offer many observations to the House on the present occasion; but I own I should be mortified if I were not allowed to overcome my usual indisposition to address the House, and to take rank, however humble, amongst the defenders of a person so nearly 1121 related to me, and who has for so many years occupied all my veneration and affection. That he should have found defenders, so zealous, so able, and so attached, is a circumstance which excites all my gratitude and admiration. Sure I am that the publication of these proceedings and not of these only, but of every act of his life, public and private, could have no other effect than to redound to his honour. Though I must in such case, be a partial judge, yet I will venture to say, that if any man could adopt the sentiment of the noble Roman, who proposed to construct his house in such a manner as to permit every citizen to survey all his actions, he Lord Abinger might be that man. The sum of Lord Abinger's offence is, that he happens to differ from a body of persons called Chartists, and their supporters in this House. He believes their doctrines directed to the subversion of the monarchy and Constitution of this country, and, being placed in a situation where he conceived it proper to speak of those doctrines, he did so. He thought it his duty as a judge to do so; had he done less, he would have failed in his duty to his Sovereign and to the public, with whose interests he was charged. In these charges he does not condemn as criminal, the holding any particular opinion; but he points out to those persons that their offence consisted in using force in order to carry into effect their principles. Perhaps it would little become me to find fault with the manner in which the hon. Gentleman opposite has introduced his motion; I am not a fair judge upon that subject, and therefore I shall leave it to the feelings of the House—to say whether or not Lord Abinger has been justly and fairly treated upon this occasion. The hon. Gentleman has not been sparing of insinuations against him; and he has particularly alluded to the personal manner in which he is supposed to have exercised his duties. From all I know, from all his friends know of him, though not present myself at these trials, I will venture to give a distinct denial to such accusations. The hon. Gentleman must have been deceived by those who have pretended to inform him. With his talents, and the figure he makes in this House, I greatly regret that he did not consider that the streams of his information might possibly pollute the channel through which they flowed. The hon. Gentleman has endeavoured to awaken prejudices against Lord Abinger, in terms to which I will not 1122 allude, and has reminded the House that he once acted with the Whig party. But to whatever set of public men at any period of his life Lord Abinger may have given his confidence it will be remembered that he was always a strenuous defender of the Constitution established in this land, of government by King, Lords, and Commons, with which he thinks the Chartist doctrines are inconsistent. It is a singular circumstance in the life of Lord Abinger, that in the preferment of public duties, he has always found himself involved in a struggle with the Clodii and the Catalini of the day—far be it from me to insinuate that the name of the hon. Gentleman who has placed Lord Abinger in the same category with wicked and unjust judges should be classed with the names of those persons—I need not allude to times which are now no more,—Lord Abinger in all periods of his life has shown himself earnest in the defence of the Constitution, and regardless of the odium and obloquy cast upon him by those who did not sympathize with him in that feeling. But I have said, that the hon. Gentleman was deceived by his informers. Will the House permit me to state some of the sources from which his information is derived? I apprehend that his information came principally from those persons who have presented petitions, and it is a remarkable circumstance, and worthy of any man's inquiry, how it should happen that almost 1,000 persons in various parts of the kingdom have sent up petitions complaining of Lord Abinger's conduct. I do not deny that his conduct may be a subject for public observation. But I have here a list of the names of the places where these petitions were signed. I find that out of six or seven petitions, five or six are identical in their terms, and are in fact precisely the same petition as that presented just now, and commented upon by my hon. and learned Friend (the Attorney-general). Those from Liverpool, Bath, Hull, Brighton, and Newport, are identical. What that indicates I leave the House to judge. The petition from Newport is signed by 190 persons. I think I may venture to say, that amongst those names there is hardly one which may not be pronounced to have been written by a common workman. There also is a petition from Marylebone and one from some other place, both of them couple Lord Abinger with the magistrates of Staffordshire, and allege incredible things; but they are signed 1123 by only one person in behalf of the meetings at which they were agreed to, I leave you, to consider how much weight they possess. The hon. Gentleman was pleased to refer to the speeches which were delivered at some of those meetings. I have the short-hand writer's notes of the Liverpool meeting, where the petition adopted was of the same nature as the others which have been described. Perhaps the House will allow me to read some of the language and assertions uttered at that meeting, and which resemble those the hon. Gentleman has used this night. The gentleman who moved the first resolution at the meeting told the audience that he was present at the trial, and thatHis Lordship directed the juries to bring men in guilty whether or not, telling them that it was absolutely their duty to decide against prisoners when there was a preponderating amount of evidence in their favour.His Lordship also told them that it was the purpose of the prisoners to plunder society, and to rob the very jury themselves;And thatOthers had been convicted for looking on; and some of them for playing in the marketplaces were sentenced to six or seven months imprisonment by the cruel Judge Abinger.After this, another speaker told the meeting that it was anUnparalleled case of tyranny, and it was necessary to adopt the petition in order to operate on the minds of other judges during the forthcoming assizes.Another speaker excites his audience by remarking to them thatThe fate of every patriot would be such as had befallen the unfortunate Emmett in the sister country, who was mocked in the hour of death, and brutally murdered in cold blood by judicial villainy and rascality.This sentiment uttered at Liverpool was loudly cheered. The speaker then asked,Would they sit still and see every patriot victimized by a man whose mind was as blind as his eye." (Cries of 'Oh? oh!' and other expressions of disgust.) "The petition was essentially necessary," (continued the same speaker,) "and any one refusing to petition was a mere half-hearted man, who had no regard for pure, unsullied democracy.The petition was adopted, and it was ordered to be signed by the chairman in behalf of the meeting, and forwarded to Mr. T. Duncombe, M.P., for presentation to the House of Commons. A collection having been made Mr. Davis, of Hawick, delivered his lecture on the principles of Chartism, after which the meeting separated.1124 Such were the persons who had petitioned against Lord Abinger, and such the persons from whom the hon. Gentleman had received his information. There is one other subject upon which I will just touch—the daily press. I must be allowed to say that sometimes the daily press makes me recollect an age of which the Roman historian says it became so corrupt that—" Neque vitia, neque remedia pati possumus" Sir, I thank the House for the kindness with which it has heard me upon this occasion, and sit down, in the confidence that it will not allow a public servant who has well and faithfully discharged his duty to be intimidated for the future, or oppressed at present by the unjust accusations which has been brought against him.
§ Lord John Russell
said, that the hon. Gentleman had ably fulfilled an appropriate duty, in defending the noble and learned Judge whose conduct had been brought into question. The part which he (Lord John Russell) had to perform was not so agreeable; but he felt it necessary to address the House more in reference to the tone of unqualified panegyric which had been adopted by the Attorney-General, and by the two hon. and learned Gentlemen who followed him. He would say at once, that he had no doubt as to the vote which he should give on this occasion. Without entering into the point, as to the period at which the independence of the judges might be dated—an hon. Gentleman had talked of the 1st George 3rd., he considered it to have been a maxim of the constitution as far back as the Revolution—but however this might be, he regarded the independence of the judges to be so sacred, that nothing but the most imperious necessity should induce the House to adopt a course which might, by any means, imply that the judges were to depend for the future, not on the sanction of an act of Parliament, not on that tenure which had protected them so long as they were not guilty of any crime, but on the particular views of a particular portion of their fellow-countrymen. He did not feel that the objection to giving a vote in favour of the hon. Gentleman was at all diminished by his proposition that the vote should be only one of inquiry—that evidence should be taken as to the language used by Lord Abinger during the special commission. The question was, whether, if they agreed with the hon. Gentleman's proposition, justice would not 1125 be weakened by that course. Would any one regard the inquiry, as the hon. Member suggested it, as a mode of clearing Lord Abinger from certain imputations which had been (brought against him? Would not the result be, that they would find the supporters of the law would be discouraged, the violators of the law encouraged? Could it, indeed, be made out, that Lord Abinger had wilfully perverted his high station into a means of oppressing those who were brought before him to be tried; or could it be shown that, by a total ignorance of the law, he had misled the grand juries and petty juries, and thereby caused any damage to the subject? He should then confess that, however dangerous it might be to enter upon such an inquiry, a case of necessity had been made out, and that it was essential to clear the bench from the imputation of such wrong or such imperfection; but, knowing as he did the character which the noble and learned Lord had borne, he could give no credit to such imputations. He could not believe that a man of Lord Abinger's reputation and disposition would wilfully endeavour to oppress any of her Majesty's subjects, or to pervert the law, so as to imprison any of those subjects contrary to the true course of justice. As to capacity, the acknowledged learning of the noble and learned Lord, his intimate acquaintance with the law, would it was not to be doubted, free him from the imputation of ignorancce on the matter. But having said thus much as to the vote he should give, he must add that he felt he could not have given that vote in silence, lest his silence should imply an assent to all that had been laid down by the Attorney-General and the two hon. and learned Gentlemen who followed him, who seemed throughout the case to consider Lord Abinger as entirely blameless in the matter. After reading the noble and learned Lord's charge he must confess he had not come to any such conclusion. It appeared to him that the duty of a judge, when he went either on the circuit or on a special commission, was to state generally the law, respecting any offences that were coming before him, to the grand jury, and having slated that law, more or less fully, according to his judgment, he should then leave it to the grand and petty juries to apply the law he had delivered to the accusations which were brought before them. It appeared to him, that on occasions where there was 1126 political excitement, in cases where there were questions of insurrection, or treason, or tumult, the judge should use his best endeavour to state the law with the greatest moderation, for this reason, among others, that his application of the law would have far greater weight if enforced with temper, moderation, and forbearance; for then the acquiescence in the sentence pronounced would be almost unanimous, while, on the other hand, if the temper displayed by the judge were otherwise, there would be a great difference of opinion on the subject, and, what was worse, great irritation of feeling in the mind of the public. He was drawing no imaginary picture. The charge of Chief Justice Tindal completely came up to the idea of what a judicial charge should be. The hon. and learned Gentleman opposite said there had been no fault found with the prosecutions instituted by the Government, of which he was the author. Now it was far from telling in favour of Lord Abinger to say, that there had been a general disposition to acquiesce in the commendation of Chief Justice Tindal, and that there was a general disposition to acquiesce in the statement that the functions of Government in this instance had been performed leniently and fairly; for this general acquiescence precisely showed that there was no disposition to find fault and cavil, unless there was really that in the tone and expressions of a particular charge which called for animadversion. The chief fault of the charge in question was, that it had entered into political matters, that it went into political doctrines concurrently with legal ones, which was apt to confound the grand juries whom the judge was addressing, and infuse prejudice and faction into a subject which ought to be looked on with the utmost calmness. He would beg leave to read a passage from the charge to explain what he meant. The difference he took was this, that Lord Abinger spoke both as a politician and a lawyer, and that in his case the judge only should have spoken and the politician should have been silent. Lord Abinger speaks ofPersons who for their own purposes have endeavoured to prevent the people from returning to their work, and sought so to direct them that they might, by the suspension of all labour, be conducive to the attainment of political objects.There the judge spoke of persons who prevented others from returning to their 1127 work, which was an offence very proper for the judge to point out. But Lord Abinger went on—And what is the object of the Charter which these people are seeking? What are the points of the Charter? Annual Parliaments, universal suffrage, and vote by ballot. Yes, gentlemen, you will find by the evidence which will be produced before you, that it has been inculcated upon many misguided persons that the sovereign remedy for all abuses, and the only means of putting themselves in possession of such a share of power as would enable them to vindicate their own rights, and secure themselves against oppression, is by the enactment of what they call the People's Charter.Here the noble Lord referred only to political conduct, and would lead persons who heard the charge to suppose, that to seek the Charter was an offence, like preventing men from returning to their work, against the laws. Lord Abinger further says,—What, then, would be the state of any country if multitudes were to make the laws for regulating property, or were permitted to employ physical force to restrain individuals from employing their own labour, according to their own judgment, for procuring their own subsistence.Now here the two things adverted to by the judge were essentially different; one was the law regulating property—a political question, full of important consequences. He would say that he, in that House, or Lord Abinger in the other House, might with great propriety come to the conclusion, that for a multitude to make laws, would generate confusion. That was a political argument, of the bearing of which he would then say nothing. But a totally different question was in the second branch of the sentence. There it was stated that the employment of physical force to restrain individuals from employing their own labour was an offence against the law, and for that offence several persons were then to be tried. The charge in various places, into which he would not further enter, used similar language, and led to the same conclusions. He could not agree therefore with the hon. and learned Member for Woodstock (Mr. Thesiger) in the high estimate which that learned Gentleman formed of Lord Abinger. He did not accuse Lord Abinger of any want of legal knowledge; but he did blame him that Lord Abinger had mingled both legal and political considera- 1128 tions in his charge, when only legal considerations were required. What would be the consequence? The Chartists who were brought before him hearing his opinion concerning annual Parliaments and vote by ballot, which they regarded as the remedy for political disorders, placed in the same category as the use of physical force, and consequently classed as a crime—such men, when brought before him, would be convinced that the judge entertained a prejudice against them. That would be the consequence of such a charge. The judge, they would believe, pronounced an opinion, that the endeavour to procure the Charter, and to stop the working of mills, was an offence of the same character; but it was not the spirit of the law that men, who were actively engaged in stopping mills, and in procuring the Charter, were guilty of an equal offence. That was the view which he took of the charge; and he found that a great number of persons, of persons learned in the law, of professional men, and of persons not learned in the law, took the same view. They entertained, as he entertained, an opinion that Lord Abinger, by introducing political topics indecorously, departed from his office of expounding the law, which was the proper subject of his charge. It was necessary for him to say thus much, to prevent it being supposed, that in giving his vote against the motion of his hon. Friend to go into an inquiry, he did so from being perfectly satisfied of the propriety of Lord Abinger's course of proceeding, and from concurring in all the praise which had been bestowed on him. It might be from Lord Abinger's age, but, in his opinion, that noble Lord's conduct displayed a want of due discretion. All who knew him knew that, as a judge, he was not of an even temper, that he wanted philosophic calmness, and was sometimes warm in his remarks. At the same time, he did not deny that he was a judge of eminent talent and learning, and he acquitted the noble and learned Lord of all malice or incapacity. As to the motion, he could not acquiesce in it, nor could he concur with the learned Gentleman in saying that Lord Abinger had exhibited no degree of indiscretion.
§ Sir James Graham
I am exceedingly glad that when I rose previously in 'the course of this debate, I gave way to the hon. and learned Member 1129 for Horsham, who has expressed his feelings on this occasion with a degree of temper and moderation, which appear to me highly honourable, and cannot fail to have made an impression on the House. I am glad, also, to have had the advantage of hearing the noble Lord, the Member for London; for I can state generally, that I concur with the noble Lord both in the principles which he has laid down with reference to the question under discussion, and in the practical conclusion to which he has come with respect to the vote to be given on the motion of the hon. Member for Finsbury. The noble Lord said, that in the present state of affairs, he was quite satisfied that if the motion were carried, the friends of law and order throughout the country would be much disheartened, and their enemies would be proportionally elated. In that sentiment of the noble Lord I entirely concur. I also agree with the noble Lord in thinking that the due administration of justice is promoted by the exercise of the vigilance of parliament; and, therefore, I by no means object to questions of this nature being raised in this House; but, on the other hand, I feel strongly that it is due to the cause of justice itself to defend the judges of the land, unless we shall be satisfied that their conduct has been corrupt, and their motives dishonest. It is only fair to a judge, considering his eminent station, the great power with which he is entrusted, and the grave responsibility under which he acts, that the House should not adopt such a motion as this, unless, in our deliberate judgment, we are satisfied that there has been manifested, on the part of the judge who is the object of it, a badness of heart, and a corrupt intention, which have contributed to the perversion of his judgment. The hon. Member for Finsbury cannot rely upon the case of Mr. Kendrick. That gentleman's case was not brought under the notice of the House with reference to any act of delinquency arising out of his conduct as a judge. It was Mr. Kendrick's conduct as a magistrate which was questioned, he being at the time a judge, when certain proceedings connected with his duties, as a Surrey justice were brought under the notice of the House. Another case to which the hon. Member for Finsbury has referred is that of an Indian judge, Sir Elijah Impey. Was there a motion for inquiry in that case? Nothing like it. A substantive charge was pre- 1130 ferred against the judge, and laid upon the Table of the House. The next case was that of Mr. Justice Fox, an Irish judge, in 1806. In that case, the Marquess of Abercorn did not move for an inquiry, but made certain specific allegations, laid charges on the Table of the House of Lords, and declared his readiness to substantiate them by proof. If I mistake not, the hon. Member referred to the case of Lord Ellenborough, whose conduct was impeached in this House by Lord Dundonald, then Lord Cochrane. There, again, was no motion for inquiry; but Lord Cochrane preferred his charges, thirteen in number; he laid them on the Table of the House, offering; at the same time, to sustain them by proof. The last case was that of Sir Jonah Barrington. In that case a commission of inquiry had been going on, and certain charges affecting the character of Sir Jonah Barrington came out before it. The commission made a report upon which a bill was introduced into Parliament, and evidence taken in support of it at the bar of this House. I think, then, that with this single exception of Baron Smith's case, which has been already discussed, and to which I will not again for obvious reasons more particularly refer, I have alluded to all the cases which have occurred since the commencement of the reign of George the 3rd, and in each of these cases, instead of the House being called upon to go into an inquiry with the view of discovering evidence, distinct charges and specific allegations were made, and evidence was offered in support of them. I must say, that the noble Lord, the Member for London, appears to me to have treated the question with great fairness. What is the head and front of Lord Abinger's offending, as stated by the noble Lord? I will not weary the House by going through passages of the noble and learned Lord's charge, which have been cited but which are balanced by other passages almost in immediate context with those which are condemned; but, I must say, I think the noble Lord was somewhat hypercritical in the observations which he made upon this part of the case. The allegations against the prisoners about to be tried being that they contemplated extensive changes in the Constitution, and endeavoured to effect their object by means which, as the noble Lord, the Member for London, admits, approached 1131 to the very verge of treason, it surely was not unnatural or wrong that the learned Judge, having proof of those things in the depositions before him, should point out to the grand jury the extreme danger which was likely to arise from such doctrines so enforced. And here I may be allowed to observe, that the hon. Member for Greenock does not appear to be conversant with the forms of our courts of justice. At the time a judge addresses the grand jury the depositions which contain the essence of the proof to be offered in each case, are open before him. When Lord Abinger addressed the grand jury he was perfectly cognizant, on sworn testimony, not only of the outline of the charges, but of the nature of the evidence to be adduced, and knowing the extent of the crimes committed, and the extreme danger that resulted from the wide-spread conspiracy which existed, a conspiracy which had for its object a change in the form of Government to be effected by force, I cannot think that the learned Judge transgressed the bounds of prudence in distinctly stating his opinions on those points both to the grand jury and the petty jury. I agree with the hon. and learned Member for Horsham, in thinking that the time has not yet come, when, the question under consideration being such extensive political changes as those which have been referred to—changes which, in my opinion, involve the safety of the Monarchy and of the State—a sworn servant of the Crown can be justly charged with a violation of duty, if he ventures to declare his decided preference for the form of Government under which we live, as contrasted with the new form which it is sought by violence to impose on us. Petitions have been referred to; but do those petitions prefer any specific accusations against Lord Abinger. The greater portion of those petitions are identical in language, thus affording pretty clear proof, that they all flow from one and the same source. The hon. and learned Member for Horsham read some passages which were spoken at a meeting in Liverpool, where one of these petitions was agreed to, from which it appears that the object which the parties who conducted the meeting had in view, was to prejudice certain legal proceedings which are still pending, and which my desire not to interfere with the course of justice prevents me from alluding to more particularly, and 1132 this motion is not devoid of a similar purpose. The accusation against Lord Abinger in the terms of this motion is, that he delivered charges which were unfair and unjust "in their tendency." Is it then come to this, that the House of Commons is to be called upon to come to a vote which can be regarded in no other light than as a direct and specific condemnation of the conduct of a judge—not on account of particular words spoken by him—not on account of corrupt motives—not on account of any malversation in his office, but solely on account of certain alleged "tendencies" which hostile criticism may discover in his charges. In my opinion it is the duty of a judge in the first place to be bold in grappling with prerogative if it be pushed to an extent inconsistent with the liberties of the people. In the next place, it is equally the duty of a judge to be bold in grappling with the privileges of this House, which, confined within proper limits, are the best safeguards of the liberties of the people, but which may be carried to an extravagant length subversive of popular rights, and dangerous to the supremacy of law. I have said that it is the duty of a judge to deal with the prerogative of the Crown and the privileges of parliament, but I contend that a judge has also another duty to perform not less obvious, not less grave and difficult and important; he must boldly and fearlessly restrain the license of the people when it threatens the subversion of law, of order, and the form of Government which he is sworn to protect. It is the boast of the law itself and also of the judges of the land that nothing is so high as to be above the sphere of their authority, and nothing so humble as to sink beneath the notice of their watchful care. I think it is unjust to look at portions and fragments of a judge's conduct. The fair and the manly course is to look at the whole tenor of his life; not to dwell upon particular passages selected from certain charges, but to form a just estimate of his conduct from his general demeanour on the bench. I will not praise the charges of Chief Justice Tindal at the expense of Lord Abinger. I believe that both of those learned judges presiding over a special commission, in difficult circumstances, honestly, manfully, impartially and justly, did their best in the discharge of their respective duties. I am satisfied that in the conduct of Lord Abinger there was nothing corrupt, no- 1133 thing in the slightest degree worthy of the reprobation of this House. I give the noble Lord the member for London credit for casting aside every feeling of party resentment on this occasion. It would ill become me to be the fulsome panegyrist of Lord Abinger; but I should be ashamed of myself if, from any personal considerations I, being satisfied that he has faithfully and honestly discharged his duty, should shrink from the vindication of his conduct when in my conscience I believe that his Lordship deserves not censure, but the highest praise. I recollect Lord Abinger's age—I recollect his position. Lord Abinger has risen to the greatest eminence by the rugged highway of his profession, not by the flowery paths of court favour, or undue partiality. He was the most distinguished advocate of his day, the most learned in the law—possessing, I believe, to an extent almost unexampled, the confidence of his clients, and winning the ready assent of juries by his knowledge of law, by his persuasive eloquence and his strong masculine good sense. Presiding in one of the highest courts of Westminster Hall, he can be no ordinary man, who retains his superiority when he has associated with him men like Mr. Baron Parke, Mr. Baron Alderson, and Mr. Baron Rolfe, who, one and all, are content to own Lord Abinger's superiority, not only in station, but in experience and merit. This being Lord Abinger's general character, and such his general conduct, it is hard, it is unjust, it is cruel, even on the part of those who may think that there are indiscreet passages in some of his charges, an opinion in which I do not coincide, to propose to send away a man of his age, his worth and high station, degraded by an angry vote of the House of Commons, at the instigation of party-malevolence.
§ Mr. Sharman Crawford
meant to support the motion for an inquiry. The main question at issue was whether the charges of Lord Abinger had not tended to raise up a prejudice against the persons to be tried. If he found that a judge entered, in his charges, into the discussion of political matters, he must say, that he felt little disposed to respect that judge's impartiality. In his opinion the charges were those of a political partizan, and could not be justified. The punishments inflicted by Lord Abinger were of a severe description. Gentlemen spoke of impri- 1134 sonment for a year and a year and a half as a slight punishment, but when it was accompanied by hard labour it was a very serious one. The effect of working on the treadmill for so long a period, upon prison diet, was in some cases loss of life to the individual. He had heard with great sorrow the speech of the noble Lord the Member for London, because, it contained expressions which were deeply injurious to public liberty, as coming from a strenuous advocate of that cause. The noble Lord's opposition to inquiry would deprive him of the confidence of the people. The hon. Member, who spoke amid much interruption, concluded with saying that he was sent there to support the rights of his constituents, and he did not think he could perform his duty better than by supporting the present motion.
§ Mr. Watson
could not give a silent vote on the present occasion, as he intended to give it in support of the motion of his hon. Friend the Member for Finsbury. He would do so, for a very short and simple reason, drawn from a former speech of the noble Lord the Member for North Lancashire in the case of Baron Smith. The' noble Lord on that occasion, said:—We impute no motives—we do not condemn Baron Smith. We merely say that there is a primà facie case, which calls for inquiry, and the House is bound to make that inquiry.On this occasion he imputed no motives to Lord Abinger, he did not condemn that learned judge, but he did say that very grave and serious charges had been made by his hon. Friend; and the representatives of the people would not do their duty if they did not inquire into them, flow far the inquiry was to be carried would depend on the evidence which his hon. Friend might be able to bring before the House. He differed from the right hon. Baronet the Secretary for the Home Department, that to vote for inquiry was to condemn Lord Abinger. If it were so, he would withdraw from voting on the question. But he must say there were some charges in the pamphlet put forth by Lord Abinger, and other matters stated by his hon. Friend, into which it was absolutely necessary to inquire. The charge made by the learned judge, either to the grand or petty jury, was not a legal charge. He did not say that every person in this country had a constitutional right to advocate any principles of Government, 1135 provided he did it by peaceable and lawful means; but that those who, under pretext of advocating such principles, broke the peace, and were the cause of public disturbance, were to be visited with punishment. The country was excited at the time the learned judge's charge was delivered. It behoved the learned judge to give calm and temperate directions to the grand jury and the petty jury, who were then too much inclined to punishment, and required such calmness and temper as were evinced by Lord Chief Justice Tindal. He repeated that he did not judge upon these matters now, but he thought they called for inquiry. He certainly thought, with all respect to Lord Abinger, that he had not shown himself a very good politician. He was an instance in support of what was sometimes said that lawyers were very bad politicians.
§ Mr. Cardwell.
He regretted much to have heard the speech of his hon. and learned Friend who had just sat down, and as he had been an unworthy member of the bar who was present on the occasion and had seen the conduct of the noble Lord throughout the whole of the time which had been so frequently alluded to, he offered himself as a witness to the House. He would prophesy the motion of the hon. Member for Finsbury would not be granted; but he hoped the hon. Gentleman would not imagine that any identification of political opinion between him and the noble Lord would induce him to get up in his place and give false testimony. He trusted that he had sufficient regard for the profession to which he had the honour to belong to be very sensitive as to the truth of any charge which might be brought against it, and he could assure the House that he would have been more than ordinarily sensitive if he had heard one of the lights of that profession giving expression to sentiments which with truth might have been distorted in the manner they had been that night. As to the occasion on which the noble Lord was charged with having told a prisoner that Government had dealt too leniently with him, and he would have been happy to have passed a more severe sentence, was there anything particular in that? Was it not a frequent occurrence for a judge to tell a prisoner that he might think himself fortunate that the predicament in which he stood was not of a much more serious nature, which only happened because of 1136 the mode in which the indictment had been framed? Had it been framed in another way, the consequences would have been much more prejudicial to himself, and the judge hoped that the leniency, shown him upon that occasion would prove a warning to him for the remainder of his life, and a useful lesson to those who, like himself, were exposed to similar temptations. That was an every-day occurrence, yet who ever before thought of complaining of it? Divesting this question of all political bearings, unless the House were prepared to affirm that punishment should be inflicted from motives of personal vengeance only, not with the view of affording examples to others, the observations of Lord Abinger must be considered to have been worthy of his station and character. Something had been said about the demeanour of the noble and learned Judge, and the hon. Member for Finsbury had, while quoting, apologized for the expression "superinhuman." Now, it was difficult to describe in language demeanour, which had been witnesssed with admiration; but certainly his impression was, that the noble and learned Judge had only displayed the acumen and the penetration for which he was celebrated on the side of the prisoners until the fact was established that they had been really guilty, when he properly addressed them in just reprobation of their offences. Of this he was convinced, that had his hon. and learned Friend (Mr. Watson) been present in court, he would have felt it his duty to express a different opinion from that which he had given utterance to.
§ Mr. Duncombe
, in reply, said, he had listened attentively to hear whether anything might fall from those opposed to the motion which should induce him to withdraw it. He was bound to say, he had heard nothing which should prevent him in the performance of his duty to the public from taking the sense of the House as to whether there should be inquiry into the conduct of this judge. The right hon. Baronet the Secretary for the Home Department said, it would ill become him to be the fulsome panegyrist of Lord Abinger, and he immediately followed up the declaration by pronouncing the warmest and most fulsome panegyric that had been delivered on the whole conduct of the noble Lord. The hon. Member for Horsham complained that he (Mr. Duncombe) had 1137 introduced reference to recreancy and political apostacy. But the hon. and learned Gentleman might have recollected, that, in his allusion to the political apostacy of a former day, he was quoting an expression of the right hon. Baronet the Secretary for the Home Department, who in addressing the electors of Cumberland, denounced Sir James Scarlett as a recreant Whig. Yet now they were told by the right hon. Baronet that, looking at the whole past life of this learned Lord, he saw nothing to find fault with; and he asked whether they on his side of the House, would send the learned judge, at his advanced age, and after the services he had performed, before a committee, in a degrading manner, by an angry party vote. What different language from that of the speech to which he had referred, and which he would now take the liberty of reading to the House. The House would recollect that it did not contain his sentiments, but those of the right hon. Baronet the Secretary of State for the Home Department. They came before the public with the authority of a Minister of the Crown, for the right hon. Baronet was then First Lord of the Admiralty under Lord Grey's Government. It was at the time of the general election of 1831, after the Reform Bill had been introduced, that the right hon. Baronet said, at Cockermouth:—The last time I addressed you from these hustings, I remember I had a wish to know who represented the borough of Cockermouth, and, except the returning officer, no man could tell me; and who now represents that borough? [A voice: Scarlett]. Ay; and sorry I am to hear him named in that way, for he was once a valued friend, I am glad, said Mr. Duncombe, he is restored to that honour. Yes; the ex-Attorney-general, a recreant Whig, a follower of Fox, a nominee of Earl Fitzwilliam, a man honoured and respected until he began to wage (an infamous) war with the press—he, I say, has been obliged to fly from the indignation of the people, and seek refuge in Cockermouth under the wing of my Lord Lonsdale. He has crept into the House of Commons through the postern-gate, of which a reverend vicar, now on these hustings, keeps the key. He has skulked from the offended majesty of the people, and is to be found the representative of those burgage tenures for which the late Mr. Satherthwaite showed so much fondness—[a voice in the crowd: 'How do you like that, my Lord?']And I say now," said Mr. Duncombe, "how do you like that, my Lord?" When the right hon. Baronet said, it would ill 1138 become him to be the fulsome panegyrist of Lord Abinger, he (Mr. Duncombe) entirely agreed with him, and wished he had not, by going further, made it necessary for him to allude to the Cockermouth speech. The hon. Member for Bute asked whether a Privy Councillor was not to have political opinions? Of course, he might, but a judge had no business to bring his politics upon the Bench, any more than a clergyman had to bring them into the pulpit. The hon. and learned Gentleman said, that Lord Abinger only claimed what the Chartists claimed for themselves. Nobody thought of denying that the noble Lord might have political party sentiments. He might indulge them in the House of Lords, at the Carlton Club, at Norwich, or anywhere else; but he had no right to let them influence him on the judgment-seat, when the lives or liberties of men were at stake, and where the noble Lord's politics might do serious injustice to several individuals. He confined himself to the printed charges of Lord Abinger, though he did not know why they might not as well rely on the reports of the Times or the Manchester Guardian, which some hon. Members seemed to sneer at. He believed that the Times and the Manchester Guardian possessed some of the best reporters in this country. Those reporters attended on the occasion, and he had reason to believe that they were prepared to prove the correctness of their reports. Lord Abinger's published versions of the charges had never appeared until notice was given at a public meeting that they would be brought before the House of Commons. They did not materially differ from the reports in the Times, but words were inserted here and there, which gave, in point of fact, to some sentences quite a different meaning from that of the newspaper report. If the committee of inquiry had been granted, he could have proved to them that the report, which had been so often alluded to, and which had been so much quoted, was not the most correct report; and he was surprised that when the hon. Member for Bute had quoted the examination of a witness by Lord Abinger, proceeding from the reporter sent down by Government, that he did not also quote the charge of Lord Abinger by the same reporter. [Mr. S. Wortley had not the report.] Yes, but you might have got it. If he could have got the inquiry, 1139 parties could have been produced to show that the report published by Lord Abinger was not a correct report. The report also given by Mr. Gurney was at the command of the Government, and could have been produced. He said that this was a fit subject for inquiry. The Attorney-general had complained of these petitions. He said there were but six or eight of them, and there was not one that proceeded from the parties aggrieved. He should like to know what would be the effect of producing these petitions. He had read a letter from one of the parties (Wild), stating his complaint, which he conceived to be equal to a petition. But let him suppose that he had presented a petition from Wild, or any other of the prisoners, would they on the other side, consent to an inquiry? Would they consent to an inquiry if petitions hereafter were produced? Not a bit of it. As they would not consent to the present motion, under the circumstances in which it was brought forward, so they would not consent to it under any other circumstances. Why then throw out such objections, which, if removed, could be of no avail? This was a sort of special pleading on the part of the Attorney-general which he did not expect; for if he produced those petitions, he would be as far removed from inquiry as ever. And then the hon. Member for Woodstock had said, that if they encouraged petitions of this sort, they would have petitions from every disappointed suitor, who would be coming to that House and asking them for redress, and seeking for an inquiry into the conduct of the judges. Was that the case at the present moment, when the hon. and learned Attorney-general complained that they had not a petition from one of the disappointed suitors; and if they had, then another hon. and learned Gentleman told them they should have no inquiry. Why, it was utterly impossible to please these learned Gentlemen. This was not a private case. This was not a case of private wrong. The whole nation was interested in this question, and the whole of the people were looking to it; and they were about to see them in that House put a direct negative on the motion for an inquiry. The hon. and learned Attorney-general said he would meet this motion by a direct negative, and he said that he had an objection to judges delivering charges that had a political tendency; but then he denied 1140 that the charges of Lord Abinger had a political tendency. But all the other supporters of the noble Baron, who had spoken that evening, said that his charges had a political tendency. Other hon. Gentlemen were more candid than the Attorney-general, for they not only said that the charges had a political tendency, but that they ought to have a political tendency, because they rose out of political events. No one attempted to answer the argument of the hon. and learned Member for Cork, that if the charges should necessarily be of a political character, why was it that Chief Justice Tindal, who had also to dispose of political trials, did not deliver charges of exactly the same character? He thought, that of all the debates he had ever heard in that House, there never was one in which there was to be found so little of argument and of reason in opposition to a motion. They were, he said, determined to screen this judge. The public, however, would judge them and condemn them. He was satisfied that the public could come but to one conclusion with respect to those in that House, and that was, that they, in their desire to screen a delinquent judge, lost sight of that which was owing to the people and to justice. Aye, the delinquencies of the judge would go forth to the country—they showed that it would not bear that inquiry, which he challenged them to enter into. He said that the public would come to the conclusion that, in their desire to screen a delinquent judge, they lost sight of that which was due to the pure and impartial administration of justice.
§ Mr. Scarlett
had one word to add as to the accuracy of what Lord Abinger had published. He might state that he knew that what was published in the pamphlet was taken from The Times, and only some small alterations made in it, such as any one would make who wished to correct the mistakes—the usual mistakes of a report. Further, he had the best reason for believing that if that report were compared with the short-hand notes taken by Mr. Gurney, it would make it appear that there was less point—in many of the allusions less point than in that report which Lord Abinger had published.
§ The House divided:—Ayes 73; Noes 228: Majority 155.
|List of the AYES.|
|Aglionby, H. A.||Archbold, K.|
|Barnard, E. G.||Leader, J. T.|
|Berkeley, hon. C.||Listowell, Earl of|
|Berkeley, hon. H. F.||Macaulay, rt. hon. T.B.|
|Blake, Sir V.||Marjoribanks, S.|
|Bowring, Dr.||Marsland, H.|
|Brotherton, J.||Martin, J.|
|Busfeild, W.||Mitcalfe, H.|
|Chapman, B.||Mitchell, T. A.|
|Christie, W. D.||Morris, D.|
|Cobden, R.||Murphy, F. S.|
|Colborne, hn. W.N.R.||Napier, Sir C.|
|Collins, W.||O'Brien, W. S.|
|Cowper, hon. W. F.||Paget, Col.|
|Crawford, W. S.||Pechell, Capt.|
|Dawson, hon. T. V.||Plumridge, Capt.|
|Dennistoun, J.||Ponsonby, hon. J.G.|
|Duncan, G.||Ricardo, J, L.|
|Dundas, Adm.||Roche, Sir D.|
|Dundas, hon. J. C.||Roebuck, J. A.|
|Elphinstone, H.||Ross, D. R.|
|Ewart, W.||Russell, Lord E.|
|Ferguson, Col.||Stansfield, W. R. C.|
|Fleetwood, Sir P. H.||Strickland, Sir G.|
|Gill, T.||Strutt, E.|
|Gore, hon. R.||Thornely, T.|
|Granger, T. C.||Turner, E.|
|Hall, Sir B.||Villiers, hon. C.|
|Hastie, A.||Wakley, T.|
|Hawes, B.||Ward, H. G.|
|Hay, Sir A. L.||Watson, W. H.|
|Hollond, R.||Wawn, J. T.|
|Horsman, E.||Williams, W.|
|Hume, J.||Wood, B.|
|Hutt, W.||Yorke, H. R.|
|Johnson, Gen.||Duncombe, T.|
|Layard, Capt.||Wallace, R.|
|List of NOES.|
|Acland, T. D.||Bramston, T. W.|
|A'Court, Capt.||Broadley, H.|
|Acton, Col.||Bruce, Lord E.|
|Adare, Visct.||Bruce, C. L. C.|
|Adderley, C. B.||Buck, L. W.|
|Ainsworth, P.||Buckley, Sir J. Y.|
|Allix, J. P.||Buller, Sir J.Y.|
|Antrobus, E.||Bunbury, T.|
|Archdall, Capt.||Burrell, Sir C. M.|
|Arkwright, G.||Campbell, Sir H.|
|Astell, W.||Campbell, A.|
|Bagge, W.||Cardwell, E.|
|Bagot, hon. W.||Cavendish, hon. C. C.|
|Baird, W.||Chelsea, Visct.|
|Baldwin, B.||Chetwode, Sir J.|
|Bankes, G.||Cholmondeley, hn. H.|
|Baring, hon. W. B.||Christopher, R. A.|
|Baring, rt. hon. F. T.||Chute, W. L. W.|
|Baskerville, T. B. M.||Clayton, R. R.|
|Bateson, R.||Clerk, Sir G.|
|Beckett, W.||Clive, Visct.|
|Bell, M.||Clive, hon. R. H.|
|Bentinck, Lord G.||Cochrane, A.|
|Bodkin, W. H.||Collett, W. R.|
|Boldero, H. G.||Colquhoun, J. C.|
|Borthwick, P.||Colvile, C. R.|
|Botfield, B. Bradshaw,||Compton, H. C.|
|Bradshaw, J.||Corry, rt. hon. H.|
|Cresswell, B.||Hornby, J.|
|Cripps, W.||Houldsworth, T.|
|Darner, hon. Col.||Hughes, W. B.|
|Denison, E. B.||Hussey, T.|
|Dickinson, F. H.||Ingestre, Visct.|
|D'Israeli, B.||Inglis, Sir R. H.|
|Douglas, Sir H.||James, Sir W. C.|
|Douglas, Sir C. E.||Jermyn, Earl|
|Douglas, J. D. S.||Jolliffe, Sir W. G. H.|
|Dowdeswell, W.||Jones, Capt.|
|Drummond, H.H.||Kemble, H.|
|Duffield, T.||Knatchbull, rt. hn. Sir E.|
|Duncombe, hon. A.||Knight, H. G.|
|Duncombe, hon. O.||Knight, F. W.|
|Dundas, D.||Lambton, H.|
|East, J. B.||Law, hon. C. E.|
|Egerton, W. T.||Lawson, A.|
|Egerton, Sir P.||Lennox, Lord A.|
|Eliot, Lord||Liddell, hon. H. T.|
|Emlyn, Visct.||Lincoln, Earl of|
|Escott, B.||Lockhart, W.|
|Farnham, E. B.||Lowther, J. H.|
|Feilden, W.||Lowther, hon. Col.|
|Filmer, Sir E.||Lygon, hon. Gen.|
|Fitzmaurice, hon. W.||Mackenzie, T.|
|Fitzroy, Capt||Mackenzie, W.|
|Flower, Sir J.||Maclean, D.|
|Follett, Sir W. W.||Mahon, Visct.|
|Forbes, W.||Mainwaring, T.|
|Fox, S. L.||Marsham, Visct.|
|Fuller, A. E.||Martin, C. W.|
|Gaskell, J. Milnes||Master, T. W. C.|
|Gladstone, rt. hn. W. E.||Masterman, J.|
|Gladstone, J. N.||Meynell, Capt.|
|Glynne, Sir S. R.||Mildmay, H. St. J.|
|Gordon, hon. Capt.||Miles, P. W. S.|
|Gore, M.||Miles, W.|
|Goulburn, rt. hn. H||Mordaunt, Sir J.|
|Graham, rt. hon. Sir J.||Morgan, O.|
|Greenall, P.||Munday, E. M.|
|Greene, T.||Neville, R.|
|Gregory, W. H.||Newport, Visct.|
|Grimsditch, T.||Nicholl, rt. hon. J.|
|Grimston, Visct.||Norreys, Lord|
|Grogan, E.||Northland, Visct.|
|Hale, R. B.||O'Brien, A. S.|
|Halford, H.||Ogle, S. C.|
|Hallyburton, Lord J.||Packe, C. W.|
|Hamilton, J. H.||Paget, Lord W.|
|Hamilton, G. A.||Palmer, R.|
|Hamilton, W. J.||Palmer, G.|
|Hanmer, Sir J.||Patten, J. W.|
|Harcourt, G. G.||Peel, rt. hon. Sir R.|
|Hardinge, rt. hn. Sir H.||Peel, J.|
|Hardy, J.||Plumptre, J. P.|
|Heathcote, Sir W.||Pollock, Sir F.|
|Henley, J. W.||Ponsonby, hon. C.F.C.|
|Henniker, Lord||Pringle, A.|
|Hepburn, Sir T. B.||Protheroe, E.|
|Herbert, hon. S.||Pusey, P|
|Hervey, Lord A.||Rashleigh, W.|
|Hinde, J. H.||Repton, G. W. J.|
|Hodgson, R.||Richards, R.|
|Hogg, J. W.||Rolleston, Col.|
|Hope, hon. C.||Rose, rt. hon. Sir G.|
|Hope, A.||Round, J.|
|Hope, G. W.||Rous, hon. Capt.|
|Rushbrooke, Col.||Sutton, hon. H. M.|
|Russell, Lord J.||Tennent, J. E.|
|Rutherfurd, A.||Thesiger, F.|
|Ryder, hon. G. D.||Thompson, Mr. Ald.|
|Sanderson, R.||Thornhill, G.|
|Sandon, Visct.||Tollemache, J.|
|Scarlett, hon. R. C.||Trench, Sir F. W.|
|Seymour, Lord||Trevor, hon. G. R.|
|Shaw, rt. hon. F.||Trollope, Sir J.|
|Shirley, E. J.||Vivian, J. E.|
|Shirley, E. P.||Walsh, Sir J. B.|
|Sibthorp, Col.||Winnington, Sir T. E.|
|Smythe, Sir H.||Wodehouse, E.|
|Smythe, hon. G.||Wortley, hon. J. S.|
|Smollett, A.||Wortley, hon. J. S.|
|Somerset, Lord G.||Wyndham, Col. C.|
|Sotheron, T. H. S.||Young, J.|
|Stanley, hon. W. O.|
|Stuart, W. V.||Fremantle, Sir T.|
|Stuart, H.||Baring, H.|