HC Deb 08 April 1845 vol 79 cc307-28
Mr. T. Duncombe

rose, in pursuance of a notice which he had given, to move for leave to bring in a Bill to secure the inviolability of letters passing through the Post Office. He felt that it was a reproach to the Government under which we lived, as well as a reproach to those free institutions which we felt a pride in possessing, that any Member of that House should be under the necessity of bringing forward a Bill, the object of which was to secure the inviolability of correspondence in this commercial country. In submitting this Motion to the House, he should abstain from introducing anything which could by possibility bear a personal or individual application. It was with the system he was at war; and that system he felt it his duty, if possible, to destroy. Whatever Government had originated this assumed power, and whatever cause was assigned for its assumption, he had the highest legal authority for stating that there was no law to justify the exercise of that power. The subject was during the last Session brought before Committees of that House and of the House of Lords. The Committee of the House of Commons had not in their Report stated whether the exercise of this power was legal or not; although it had stated that the law on the subject was the same in 1814 as it had been in the reign of Queen Anne, but had not said what that law was. The Committee of the House of Lords, however, had expressed itself more clearly: it went a step further, and described the terms of the provisions of the Act of the 9th of Anne, c. 10, and stated, that the Act of Parliament of Anne led to the supposition that the power had been fully recognised in the Secretary of Slate, and that from an early period it had been recognised by the Acts of Parliament. That was all which the Committee of the House of Lords said on the subject of the law; it did not state that there was any law to justify the exercise of the power; it merely stated that the power appeared to have been recognised, and that its recognition was sanctioned by old usage; but he had the best authority for stating that there was no law to justify the exercise of that power. There had been no proof given to the House that such a legal authority existed, nor had there been any proof given that at former periods such practices took place as those which had happened recently in this country. Letters might have been stopped in the Post Office; but there was no proof that at former periods private letters were opened, and forwarded to their proper destination after the examination of their contents at the Post Office. There was, he maintained, no proof that such a system of fraud and forgery as that had been practised by former Governments. It had even been shown that letters stopped in the Post Office were used in a court of law; but that had failed in establishing the legality of exercising that power; for the question as to where was the warrant under which the letters were opened and detained was not allowed to be asked in court, so that the question as to the existence of a legal authority for opening those letters had not been proved in that case. It could not be ascertained who opened the letters—to whom the power was delegated; it was only ascertained that the letters had been opened, and they had, therefore, nothing before them to establish the fact that they were opened and detained in the exercise of a legal authority. The Act of Anne had been cited as an authority by the Committee of the House of Commons; but the Act which was at present in force on the subject of the detention of letters in the Post Office was the Act of the 1st of Victoria, which repealed the Act 9th of Anne, but it neither added to nor diminished the power with respect to the detention of letters, leaving that in the same condition in which it was before the passing of the Act; and, he repeated it, he had the highest legal authority for stating that legally no such power existed. All that was done by the Act was to relieve the servant of the Post Office from a misdemeanor in detaining or opening any letters. It left the legality of the warrant totally and entirely untouched, just the same as a constable who produces his warrant is exonerated from all responsibility as to the legality of that warrant. The same thing might be said of the orders that were given for the admission of strangers into the gallery of that House. If a stranger in that gallery were to be apprehended for breach of privilege in listening to their debates, be would produce the order as his protection. Yet it was clear that the power of admitting strangers to be present at their debates was not possessed by any Member of that House. But admitting that the Government possessed the power of opening letters, the question the House had to decide was, what advantage they had obtained by its exercise. They all knew the difficulties in which the present Government had been placed; and they all knew the ill feeling which had been created by the exposures in that House with reference to this subject. It might, indeed, be said that there ought to be some means of control over the correspondence of persons engaged or about to engage in treasonable plots, if such correspondence were forwarded through the Post Office. If there was any benefit of that nature to be derived from it previously, he would ask any rational and sensible man whether, after the disclosures which had been made, a man engaged in a treasonable correspondence would not be an idiot or a fool to send that correspondence through the General Post Office. He said, therefore, after the exposures which had taken place, that the value or utility of this practice had been destroyed. If this system was to be of any value at all, it must be practised with secrecy and fraud. There was no middle course. They must either stand by the present system, or abolish it altogether. Why should they not expunge from the Statute Book the Art giving this odious power, if it existed? Such a power existed in no other country. One of the Articles of the Belgian Constitution protected the correspondence of the Belgian people. The power of opening letters did not exist in the United States, nor in Canada; but it was preserved in Ireland, in England, and in Scotland. It was not exercised in our Colonies, although it was exercised in this country. It did not exist in France. Monsieur Guizot had declared in the French Chamber, that in law, and in fact, the correspondence of the French people was inviolable. [Laughter.] Right hon. and hon. Members opposite might smile, but that declaration had been made in the French Chamber by the Minister for Foreign Affairs. If letters of individuals in this country were opened, they were opened without any responsibility on the part of the person so acting, and the individual whose letters were opened had no redress. There was no responsible person in the Post Office; and if a person asked who it was that opened his letters, he was unable to get that information, so that he did not know where to apply for redress. When that power was questioned before in the House of Commons, Sir Robert Walpole said, "It was a power which ought to be exercised only in a time of a great internal danger." It had, however, been increased since that period, and was extended from criminal to political offenders. If the powers were confined to criminal warrants, perhaps there might be no such objection to its use; but it was not confined to those warrants. It was stated on a former occasion that letters had been opened by Lord Sid mouth, and he was able to state to the House that the nobleman alluded to had refused to exercise that power in a case where a banker required its assistance in order to obtain the address of a clerk who had committed forgery. He (Mr. Duncombe) had it from a banker in the city of London, that he applied to Lord Sidmouth to issue a warrant for opening the letters of a clerk who had committed forgery, and had gone away, as the banker was anxious to ascertain his address, in order to effect his apprehension; and the answer of Lord Sid mouth was that he would never issue such a warrant unless in a case of high treason. He again applied to Lord Sid mouth, and asked leave to see the superscription of a letter in the Post Office, without detaining it, in order to find out the address of the clerk; Lord Sidmouth then stated that he would send an answer in the evening. He did send that answer, and it was to the effect that he considered the Post Office so sacred he could not allow even the superscription of a letter to be seen. It might be said in defence of this power, that it was necessary for the detection of criminals; but he (Mr. Duncombe) believed that, with the means for the detection of criminals which the Government possessed, without this power, it was not necessary to apply it for that purpose. The Government had been asked to show the warrants under the authority of which the letters had been opened. But those warrants had not been produced. It was true that warrants of the Duke of Newcastle and of Mr. Pitt had been brought forward; but the House had no means of ascertaining if those warrants were the models after which the warrants issued by the present Government had been formed. Were the warrants issued by the present Government framed after the model of those issued by Mr. Pitt and the Duke of Newcastle? [Sir J. Graham: They were not.] Of what use, then, were the warrants of Mr. Pitt and the Duke of Newcastle? For his part, he looked upon this power of opening letters as inefficacious; and he believed that, in addition to its inefficacy for the purpose for which it was intended, it was calculated to demoralize the servants of the Government in the Post Office, and all those who were connected with the opening of letters. He could not give a stronger instance of the demoralizing effects which the exercise of such a power had on those who were engaged in the Post Office, than a notice which was put up in the Post Office some months ago, after the discovery that some letter-carriers had opened the letters addressed to certain sporting gentlemen, and that notice he would read to the House. It ran thus:— The Postmaster General having had papers laid before him relating to the gross conspiracy which has existed among certain carriers, and having ascertained that Lang, Bell, and Saunders, have been in the habit of opening the letters of sporting gentlemen, his Lordship is pleased to dismiss them the service. The defence, or rather the plea in mitigation, which those letter-carriers would set up in case of a prosecution, would be that they had only done what their superiors had done. It would be proved that those letter-carriers opened letters addressed to certain sporting gentlemen, for which offence they were liable to transportation; but they would plead in mitigation of their sentence that they had only done that which they knew had been practised by those in authority over them. That was the course which had been taken with respect to those transactions in the Post Office; and he had mentioned them on this occasion in order to show the demoralizing effect of this system on the servants of the Post Office—a system which had the effect of preventing the infliction of an adequate punishment on those men for an offence which they would allege was of a similar nature to that course which had been sanctioned by the Prime Minister. Those men ought not to have got off with such an inadequate punishment; they ought to have been severely punished. A Committee sat on the subject of opening letters, and the Gentlemen who composed it made a Report, from which it was impossible to say whether they were for or against the practice of opening letters in the manner and to the extent which had been complained of. It was impossible from the Report to ascertain whether they were for or against a continuance of that power. It was stated, forsooth, amongst other arguments, that such a power would be calculated to prevent a Minister from forming any exaggerated idea as to the danger, in case of any outbreak or disturbance. Now he would ask the House to imagine how such a result could be produced by the exercise of this power? Suppose the Secretary of State to have read an account in the Morning Herald, or some such paper, the organ of such a Minister, that a dangerous conspiracy existed, and that an outbreak was to be apprehended, and that in consequence of such a statement he resolved, on coming down to the House, to ask for additional powers to meet that anticipated danger—if, when he was about to set out, a messenger from the Post Office came to him and said, he found out, by the letter of one of the conspirators, that it was a very trivial affair—perhaps a conspiracy of the Conservative Operative Association, in that case the Minister would not ask for additional powers, but would put the letter and the Morning Herald at the back of the fire. And yet such a contingency was one of the reasons assigned for the continuation of this power. It had been also said, that if this inviolability were secured, the Post Office might be made the vehicle for the conveyance of treasonable correspondence; but that would apply equally to all modes of transit; and it was at best but one of sentiment—it would apply to railroads, to omnibuses, and to taxed carts. If he said to a person that he would carry letters for him to Edinburgh, and that subsequently another person represented to him that there might be treason conveyed by those letters, would it be a defence for his violation of confidence, in case he opened them and found nothing wrong, to say he feared he might be subjected to punishment for carrying a treasonable correspondence? But as the law stood at present, if a treasonable correspondence were sent through the Post Office, there was as perfect a power to seize it as there was to seize papers on his (Mr. Duncombe's) person, or in his desk, if they contained anything treasonable. The Goverment had great advantages in the way of preventing and detecting crime, without resorting to this power; they had the rural police in almost every county; and in every borough and city they had the metropolitan police. What did they want more? If they wanted further assistance, they had it in a loyal and affectionate people; if they were wise, they would rely on that means of safety; and they would find it a better mode of securing the safety of the Throne and the country than could be obtained by the use of all the dirty powers which they now exercised. Let them pass the Bill which he would introduce, and there could be no room for any mistake in future as to the extent and legality of this power; for it would effect an unconditional repeal of it, if any such power existed under an Act of Parliament. This power of exercising fraud and forgery could not be ameliorated; it must exist in its present shape, or be discontinued altogether; and he was not to be made a fool of by leave being granted to bring in a Bill, and then having it frittered away, or strangled, in some of its subsequent stages. He was not aware that the Government intended to bring in any Bill on this subject; he asked leave to introduce a Bill which would have the effect of making this power cease altogether. He hoped the right hon. Baronet would rise in his place and say, that as this was a power of so odious a nature for a Minister to exercise—a power so repugnant to the best feelings of a free people—he would take the question into his own hands and say, the law shall at once be expunged from the Statute Book. He hoped the right hon. Gentleman would take that course with the expectation, aye, and the clear understanding, that any ill feeling or suspicion, whether just or unjust, which before existed, should now and for ever be buried in oblivion. If that course was followed, and hereafter any Foreign Minister, the agent of any foreign despot, should sneak to the door of the Secretary of State, he would be able to say to the agent that the power of opening letters was no longer in existence; that whatever redress or protection the laws of England or of nations permitted he was willing to give; but with regard to the use of treachery he must deny any assistance; and he could say, pointing to his (Mr. Duncombe's) Act of Parliament, that such treachery as had before been exercised was no longer at the command of a Foreign Power. With those views and those objects, he should conclude by moving— That Leave be given to bring in a Bill to secure the Inviolability of Letters passing through the Post Office.

Dr. Bowring

seconded the Motion. The right hon. Baronet the Secretary of State for the Home Department had stated that Mr. Mazzini was an unprotected foreigner—that he would inquire into the statements made with respect to that gentleman, and that if he found himself misinformed with respect to him, he would make every reparation to Mr. Mazzini. He was quite sure, from the well-known character of the right hon. Baronet, that he would make the necessary inquiries, and would take the earliest opportunity of making reparation to Mr. Mazzini, if he found that the allegations with respect to him could not be substantiated. Some documents which had relation to Mr. Mazzini had been laid on the Table of the House; and he would ask the right hon. Baronet, if those documents contained the only matter upon which the charge against Mr. Mazzini, of being connected with certain proceedings in France, rested? The only charge contained in the despatch of Sir A. Foster to Viscount Palmerston, was one containing very vague allusions; and he would ask if there were any particular statement to authorize that vague charge? The passage to which he (Dr. Bowring) referred, in the despatch of Sir A. Foster, was as follows:— The Austrian Minister professes to have got hold of a number of letters of instructions from Mazzini, who was expelled from Genoa, and is head of the secret tribunal, author of the atrocious murders lately committed at Rodez. In this case, it appeared that no charge was brought forward against Mazzini, and that the Austrian Minister only professed to have got hold, of the letters. He would ask the right hon. Baronet (Sir James Graham) if he had taken steps to ascertain if such letters were in existence, and if their contents had been communicated to our Government, and whether any further information had been obtained with respect to this calumniated, and, as the right hon. Baronet had himself called him—this unprotected foreigner?

Sir James Graham

Sir, I will commence the observations which it will be my duty to address to the House by first noticing the questions put to me by the hon. Gentleman who seconded the Motion. Upon a former evening I stated — and stated with accuracy—that until the hon. Member for Finsbury mentioned in this House an article in the Westminster Review, which contains a defence of a portion of Mr. Mazzini's conduct with reference to a transaction brought by me under the notice of the House, I was not aware of the existence of such an article. I then stated, that it would be my duty to make inquiry, in order to the removal of certain doubts respecting that portion of the case in which Mr. Mazzini was concerned, and to which I had alluded. I should have been most happy to embrace the first opportunity of declaring that my doubts had been removed; and I certainly did, in the first instance, endeavour to inform myself upon the subject. I inquired, and from the best authority, with respect to an article in the Moniteur, whether any prosecution had been instituted against that paper by Mr. Mazzini. From the best authority I learned that a prosecution had been threatened, but had never been instituted; and from the same high quarter no notice whatever was conveyed to me of the prosecution now said to have been instituted against M. Gisquet, for the republication of the article. Since that statement was made by the hon. Gentleman, I felt that it was my duty to make further inquiries in respect to that transaction. It is due to myself to say, that I only heard of that article on Tuesday last; and since then I have not received any additional information on the subject. As soon as I receive any, I shall feel it my duty to redeem my promise and to lay it before the House; and I shall make as frank a statement as to the impression on my mind as possible, after a full inquiry. Having said this, I think I may relieve the House from hearing any further observations upon that part of the subject. As to the other part of it, painful as these discussions have been to me on many former occasions, I am bound to say, that the hon. Member for Finsbury, in introducing a grave question—a question of great importance—for the consideration of the House, has done it on the present occasion in a manner as fair and dispassionate as I could desire. And certainly, however painful my experience has been when I have had to follow the hon. Gentleman on former occasions, I feel comparative ease in following him now when the debate is stripped of all personal and acrimonious topics. I am far from contending against many of the positions of the hon. Gentleman; on the contrary, they have my entire approval. For instance, I agree with him, that upon this question no middle course can be taken. This power must either continue as it is, or entirely cease. I do not believe that it would be useful to maintain this power, unless secrecy is preserved; and if the power he continued, I do not think the exercise of it can be materially altered. To these leading observations I entirely assent. I need hardly state to the House, that the hon. Gentleman has treated this subject in a manner which has almost seduced me from my strict line of duty. I admit at once that this power is an immense and odious power—one that is viewed—and justly viewed—with jealousy by the people of this country; and if it were consistent with my sense of public duty, after the painful experience I have had, to accede to the Motion of the hon. Gentleman, nothing, I assure him, would exceed my delight in doing so. But I am forced to consider this question with reference to the public interest, and to the public interest only. First of all, I must venture to treat of the law of the subject; and here I must state that I differ from the hon. Gentleman. I altogether dissent from the proposition that this power, such as it is, was first given by the Statute of Anne. I contend distinctly that the inverse is the true state of the fact. No doubt the opening of letters is a great moral offence, when committed by parties to whom they are intrusted in confidence. But prior to the Statute of Anne it was part of the Royal Prerogative to carry letters; and I believe it was notorious at that time, that the Government, from time to time, whenever grave suspicions arose, did, without hesitation, open letters; and prior to the Statute of Anne, so far from its being a legal offence, such opening was not only not a misdemeanor, but it did not even form a ground for a civil action. The Statute of Anne created the misdemeanor; and it also created the exemption in favour of the Crown. It was made under the Statute of Anne, as it is now under the Statute of Victoria, a misdemeanor to open a letter, except under a warrant by the Secretary of State. Now, if this is the clear interpretation of the law upon this point, as I conceive it to be, the effect of a simple repeal of the Statute would be, that the opening of letters in the Post Office would not only not be a misdemeanor, but it would be no offence cognizable by law. The effect of the present Statute, therefore, is a restraining effect generally; while, at the same time, it makes an exception—a single exception only—on behalf of the Executive Government, allowing letters to be opened under the warrant of the Secretary of State. The hon. Gentleman has stated fairly the general purport of the Report of the Committee. He says, the people of this country object to the violation of their correspondence; and this Report states expressly, that except under the warrant of the Secretary of State, the correspondence of the people is inviolate. The Report goes on to state that the average number of warrants issued in the last twenty-two years is eight a year; two-thirds being connected with criminal offences, and not of a political character. Therefore, it appears from that Report, that the average number of warrants per annum, issued for opening letters of a political character, does not exceed two or three in each year on the average during the whole of that period. The Report also states, that there has been a great alteration and improvement in the check kept in this department of the Post Office since the time of Lord Spencer, in 1806. All the warrants are carefully preserved. Is there no other check? No Secretary of State can now issue a warrant without three persons as well as himself being cognizant of it—two Under Secretaries and a confidential clerk. Besides these checks each original warrant is kept; and every warrant issued by me was produced from the Post Office before the Committee. I gave an account seriatim of the reasons which led to the issue of all the warrants signed by me. Now, it appears to me, that this is a matter not so fit to be made the subject of enactment as of regulation, and there are certain regulations which, on the part of the Government, I am willing to adopt. I admit, that while in criminal cases a record has been kept of the peculiar nature of the reasons for issuing each warrant, such has not been the case with respect to political warrants; and, feeling the force of the desire expressed by the head of the Government, the three Secretaries of State are prepared to make a regulation that the reasons and grounds on which every political warrant is issued shall henceforth be recorded in a book kept for that purpose; and that record shall be signed by the Secretary of State. I do not think the regulation can be carried further. Is it for the public interests that this power should be treated as if it never had existed? I cannot think that it is safe or expedient to treat this power as if it never had existed. If it were the first time the question had arisen as to whether this power should be given or not, I might hesitate in deciding that it would be wise to bestow it. But this power having been intrusted to the Executive Government from the earliest period; bearing date even prior to the Revolution, and being exercised from the time of the Revolution downward; being confirmed by the practice of the best of times; not having been abused—for the Committee tell you so—and not being exercised from personal feelings, or from political hostility, but for the public interest—I say it is quite another thing that the House should now declare that this power—so established and so exercised—should no longer exist; and that the General Post Office should be made a safe and inviolable medium in future for the transmission of correspondence, whether foreign or domestic, of the most treasonable and dangerous character. The hon. Gentleman says, the rule to be effectual must apply to railroads and other conveyances. The great distinction is, that the Post Office, necessarily for the public good, is placed under the Royal authority and the control of the Executive Government; and it is too much to expect that that part of the Royal Prerogative, conducted by the responsible servants of the Crown, should be made the medium of communication in the promotion of violent and treasonable designs against the safety of the State, and against peace and good order. I do not wish to dwell upon what the hon. Gentleman has said about the inviolability of letters in the Post Offices of France and Belgium, and other countries. But in answer to that observation I would mention a fact which I have mentioned before, because I hope the House will not lose sight of it. In France, and in every country in Europe except in England, there is a check on the power of admitting foreigners; also there is vested in every Foreign Government the power of sending them out of the country when they become troublesome. In this country no such power exists. I do not ask for the renewal of any such power. I was opposed to it when it was in force; and upon the whole I do not think its renewal desirable. If you allow them to come here, however, and if they abuse your hospitality, you have no power of removing them; therefore I do not think it is too much to have some check upon their correspondence, lest this country be made the focus of political plot and intrigue for the disturbance of the peace of Europe. Having given the subject my best consideration, I have come to the conclusion that it is for the safety and advantage of this country that this power should be retained in the limited form I have described, though I do not set very great value upon it, nor lay very much stress upon its use or maintenance. Indeed, were this the first time it was about to be proposed, I do not think I should be willing to vote for it. But, looking at all the circumstances of the case, particularly with regard to aliens and their foreign correspondence, I must repeat that I cannot, consistently with my sense of duty, support the Motion of the hon. Gentleman. I entirely agree with the hon. Member that any Bill merely to amend the law would be illusory, and that if any enactment on the subject is to be made, the most intelligible and direct mode of proceeding is by way of a Bill to repeal entirely the power at present vested in the Government; but it is with reluctance that I am bound to say on the part of the Government that I cannot give my assent to the Motion of the hon. Member for Finsbury.

Lord J. Russell

I agree in the observation of the right hon. Gentleman, that nothing could have been more fairly stated than this case has been by the hon. Member for Finsbury. He has brought it forward as a constitutional question. He has staled the arguments which may be fairly urged for the abrogation of the power at present possessed by the Government for the opening of letters, and has called upon the House to consider whether a legislative enactment for its abrogation may not be passed. I find myself in the situation of neither agreeing entirely with my hon. Friend the Member for Finsbury, nor with the right hon. Gentleman who has last spoken. I think that there is great force in one observation made by my hon. Friend, to the effect that the exercise of this power having been much questioned, and discussed both among the public and in this House, is no longer of the same utility as in former times; and that there now is a sort of notice given to all persons, who may be supposed desirous of using the Post Office as a vehicle for the carrying on of treasonable and seditious correspondence, not in future to attempt to make use of that department for such a purpose. Let me however say, that with respect to the law of the subject, my reflections and investigations, as far as they could proceed on any authority, have led me to the same; conclusion as that arrived at by the right hon. Gentleman opposite. It appears to me that the Act of Anne was framed entirely with a view to provide a penalty and a punishment against clerks and other persons engaged by the Post Office, and not to cripple or take away any power which the Crown previously possessed. I have asked several Gentlemen engaged in legal affairs what sort of criminal proceeding could take place, supposing that a private individual, intrusted with a letter, so far betrayed the trust as to open it; and I have been unable to find that there is any power of punishing such a party. The purpose of the Act of Anne was to give the public a security that their letters should not be opened unauthorizedly by persons engaged by the Post Office, and at the same time to reserve to the Crown the power which was considered established and recognised. If this were so, it was not, of course, necessary to confirm this power by Act of Parliament; but it was only requisite to refer to it indirectly. In the course of the discussions which have taken place on this subject, it has been urged that this power ought in future to be used with more formality and precaution, for the sake of the liberty of the subject, than have hitherto been shown in its exercise; and a noble Friend of mine (Lord Radnor) who has adverted to this subject in the House of Lords, is prepared to propose—I do not know whether he has done so yet—that in all cases of opening letters there should be information on oath, on which the warrant should issue. I understand, also, that it is the opinion of a person of high authority, Lord Denman, that there should be this control laid on the issue of warrants for the opening of letters; and, considering the discussions which have taken place, and how desirable it is that all powers of this nature should be brought as much as possible into a legal and definite form, I think that this restriction should be placed on the power of opening of letters. But my hon. Friend (Mr. Duncombe) seems to go beyond this. He considers that letters in the Post Office should have a peculiar inviolability, and that persons carrying on treasonable and seditious correspondence should have a security given them by the Bill which he proposes to bring in. I cannot, therefore, vote with him for the introduction of that Bill; but if a Bill comes down from the other House, or should be introduced in this House, such as proposed by Lord Radnor, I am prepared to give my vote in its favour. Such a Bill would have one effect, which I, differing from the right hon. Gentleman opposite, think would be beneficial. I take it, that if a restriction of the kind I have referred to were imposed, there would then be no danger, if any representations were made by the Minister of a Foreign Power that letters should be opened for the purpose of preventing insurrection in a Foreign State, that the power of opening those letters would be exercised. I look upon the opening of letters for such a purpose as an unjustifiable use of the power of the Crown. I do not mean to say that the right hon. Gentleman opposite, in the course he pursued, did not act on what he conceived to be a sense of duty. I do not mean to say that he acted from corrupt or improper motives; but from a feeling that the public interests were to be served by the line be adopted. But I think that such a use of the power as would oblige the Secretary of State to give assistance to Foreign Powers for the purpose of quelling insurrections in Foreign States, without reference to any degree of tyranny which may prevail in those States, ought not to be maintained; and, therefore, I should not wish to see the power possessed by the Secretary of State exercised in such cases. I have now expressed shortly my view with respect to this power; and I cannot give my vote in favour of the proposed Bill of my hon. Friend; but I shall be ready to impose on the use of this power such a restriction as I have already stated, and such as, I understand, has the authority of Lord Denman in its favour.

Mr. Warburton

entirely approved of the course which his hon. Friend had taken. He agreed with him that there was no medium, but either to abrogate the practice altogether, or to allow it to remain as at present. Having been a Member of the Committee appointed to inquire into this subject, he must say that, it being admitted the Government were in possession of this power, or, at least, the practice being established on the part of the Secretary of State of opening letters, he must give credit to the British Government generally that for the last twenty-two years the power had been exercised with so much forbearance that on an average only eight warrants for opening letters had been issued in the course of a year. And, whatever the practice of Foreign Governments might be, he thought that foreigners, knowing this was the practice amongst us, would concur with him in this opinion. Something had been said about the authority on which the power of opening letters rested; and he supposed it would be admitted that that practice rested either on the Prerogative, on Common Law, or the Statute of Queen, Anne. There were, indeed, various writs issued by the Edwards and the Henrys on this subject; but if they were examined, it would be found that, with one or two exceptions in the course of a century, they were writs issued by the Crown at the instance of Parliament to search persons coming into or leaving the country, on suspicion that they carried with them Papal bulls or other ecclesiastical documents. Nothing, therefore, could be founded upon that. The Tudors and the Stuarts had issued writs more nearly resembling the present practice; but no person would draw constitutional precedents from those times. As well might it be contended that the examination of prisoners of Slate by torture was legal, because it had been practised by the Privy Council down to the meeting of the Long Parliament; and Fortescue and other writers, who had written in praise of the English laws, because it did not allow of the use of torture, had their names appended to some of the Privy Council warrants, authorizing torture to be used against prisoners of State. Then with regard to the power resting on Common Law, where were the volumes of the jurists, or the decisions of the judges, on which they could venture to justify the exercise of this power. There was, indeed, one obiter dictum of a judge, but it was made after the Statute of Queen Anne was passed. Therefore, he did not think they could found much upon that rule; so that if it existed at all it must exist by Statute. In looking into some papers which had been published by Bishop Hoadley, who wrote articles in the Intelligencer newspaper, justifying the administration of Sir Robert Walpole and his conduct in the trial of Bishop Atterbury, he founded his justification of the Government in opening the letters of that Prelate solely on the provisions of the then recent Act of Queen Anne being used in the suppression of correspondence. He thought this opinion of a contemporary showed that the Act was really the ground on which the Crown exercised its right. He had no doubt whatever that in the opinion of those who passed the Act it was the only foundation on which they could exercise such a right. It had been stated as one reason why the power should be retained, that the Government could, in this way, not only exercise control over the correspondence of the natives of this country; but that, unless such a power was maintained, they could not control the conduct of the various foreigners who resided here. Now, he should like to ask whether foreigners were the only persons who interfered in the affairs of foreign nations? They had amongst their own body individuals who had taken an active share in the proceedings, both civil and military, of foreign nations; and what reason was there that they should exercise this power in the case of foreigners, which did not apply to the case of natives of this country? He thought, therefore, that this argument of the right hon. Gentleman went too far. He contended for the total abolition of this power—being persuaded, after the exposure which had taken place, that if parties had a treasonable correspondence to carry on, they would take good care not to send it through the Post Office. In the next place, he thought it clear, from the Reports of the Committees to both Houses of Parliament, that neither in criminal warrants nor in political warrants had information been obtained, by opening letters, which was of any importance. The practice was a breach of public morality; and to continue it, there ought to be made out in its favour a strong case, proving that it had been productive of eminent public good. But what was the fact? There was positively no proof whatever that any good had ever been effected by the practice; and he would say that in a case which was altogether exceptionable, which was a breach of the great maxims of public faith and morality, they ought to abrogate it altogether when it was shown, as in this case, that it was not of that utility on which alone an argument could be founded in its favour.

Viscount Howick

could not give his vote in favour of his hon. Friend's Motion without stating, in a few words, why he did so. He thought his hon. Friend had rather, in his generosity, made a larger concession to the right hon. Gentleman opposite than was altogether discreet. He admitted that the power of opening letters could not exist at all except in its present state. Now he for one, could not agree in that opinion. He believed the power of opening letters might usefully exist, and safely exist, provided the system of secrecy were put an end to. He believed that if they would not resort to the practice of resealing letters, or of defacing post marks—if it were known in what way letters were opened, he believed that such a power might be usefully and safely exercised. But if his hon. Friend should carry his Motion, and the Bill were to be brought in, it would be competent for any hon. Member to propose a clause placing the exercise of the power under such restrictions. He would vote for a clause of that kind, and on this simple ground, that though, by the existence of such a law, they would not obtain the advantage of spying into a man's secret actions, yet they would prevent the Post Office from being used as the medium of carrying on a treasonable correspondence; for then no man engaged in carrying on a treasonable correspondence could use the Post Office as a vehicle of transmission, without the risk of a warrant being issued, by which his correspondence would be seized and used in evidence against him. On the other hand, if they said that they must either have the power as it was, or not at all, he, for one, was perfectly prepared to say that they should not have it at all. He was prepared to say that the danger of abuse in the present form of the power was greater than the advantages that would result from its use. He said that the present system of forging seals and of defacing post marks were what the hon. Member for Shrewsbury had said of another subject — an organized and legalized hypocrisy. It was falsehood — practical falsehood—carried on under the authority of the Government. To that he objected, as demoralising and discrediting to the Government. He held the opinion expressed last year by the noble Lord the Member for Dorset—that what was morally wrong could not be politically right. He believed that that opinion was true. He was prepared to carry it out to the utmost — it was morally wrong. It could not be defended on any ground of morality — to reseal letters with forged seals, to deface their own post office marks, showing the day and the hour on which the letter was put in, so that the parties might not suspect it had been opened—that was falsehood—it was morally wrong, and could not, therefore, be politically right. No doubt it was true that the exercise of this power might sometimes detect plots and conspiracies. Who doubted it? Who doubted that by the employment of these vile and treacherous means they would sometimes arrive at important information? That was precisely the argument that might be used for the employment of spies. The right hon. Member for Edinburgh had truly said, on a former debate on this subject, that precisely the same argument might be brought forward to justify the paying a man to offer himself as a servant to one of those foreigners whose conduct was suspected, and to report to Government all his proceedings. Precisely the same argument would tell in favour of the one case and the other. In both cases there was falsehood—deliberate falsehood—practised under the sanction of Government, enabling them sometimes to obtain information which might prove useful. He did not deny that there were some advantages in such a case; but he believed that in the long-run the advantages would be found to be all on the side of open and fair dealing. He would not, for the sake of any temporary advantage, sanction a system of fraud and forgery. Therefore, if he were driven to choose between the exercise of the power as it now stood, or to part with it altogether, he would say that his choice was made—he would part with it although. But it was a great fallacy to tell the House that by supporting the Motion of his hon. Friend, it necessarily implied that the power ought to be parted with. It was quite competent to introduce a clause allowing letters to be opened by warrant from the Secretary of State, if the letters were not to be resealed. He was told that it was the practice in Foreign nations so to exercise the power—that in Austria, in particular, letters which were opened were resealed with the Post Office seal. Let the House follow that example—let them not farther adopt a system of fraud and forgery, which foreign nations repudiated. For these ample reasons he for one had no hesitation whatever in voting for the Motion.

Mr. Hume

thought the country was indebted to the hon. Member for Finsbury, for the courage and tact he had displayed throughout the discussions of this question. He could not understand how the noble Lord the Member for Sunderland, who had laid down the principle that the power was rather a disadvantage than an advantage, could yet consent to continue that power to the Government. The question ought to be, had they any proof that the practice was of advantage at all? Had it been productive of any public good? He knew of none; he had heard of none. The right hon. Baronet had not alleged that any had been produced. Then, why should they continue the power? He denied that this power was exercised under the Prerogative of the Crown; would the Prerogative fine him 5l. for sending a letter by a private hand? The whole of the Post Office was established by Acts of Parliament, and by Act of Parliament it ought to be regulated. The agitation of this subject had damaged the right hon. Baronet both in his public and private character. ["Oh! oh!"] Hon. Gentlemen opposite might not think so; but that was his opinion, and a large portion of the people of England thought with him. He urged the House to make its legislation on this subject as satisfactory to the public as possible, and retaining the power as it at present stood would not be satisfactory to the community at large. He should certainly support the abolition of a power which he was satisfied no honest Minister would have recourse to.

Mr. T. Duncombe

was sorry to hear the determination of the right hon. Baronet. He was convinced the country would not be satisfied with that decision; it would not be satisfied with the retention of this power by the Government. The noble Lord the Member for the City of London had said, that he (Mr. Duncombe) appeared to think letters passing through the Post Office ought to have some peculiar privilege over all others. He had never said anything of the sort; what he stated was this—that if they took away this power the Government had assumed, but which he denied it possessed, then letters passing through the Post Office would stand exactly in the same position as papers in the writing desk of any individual, liable to be examined under a search warrant issued on oath. If they were apprised that a treasonable correspondence was passing through the Post Office, they would still have the power of seizing it. One Member of the Committee (Mr. Warburton) had spoken that evening; no other Member of it had condescended to give an opinion on the question; he had a right to assume, therefore, that his hon. Friend had expressed the opinion of that Committee. No other Member of it had come forward. He saw the noble Lord the Chairman of that Committee (Lord Sandon) opposite; had he given any reason for the continuance of the power? The noble Lord had not. He might be accused of a "prurient curiosity" in submitting such a question to the noble Lord; but he would ask him whether he thought such a power ought to be continued? It was impossible this question could stop here; a high authority had stated, that this power was not a legal one; and when the petitions of these foreigners were presented to the House the right hon. Baronet had said, if the parties were aggrieved, let them indict those of whose conduct they complained. These individuals were poor, and had not the power of seeking legal redress; but if there was law or justice to be had, he (Mr. Duncombe) would test this power—he would prove that his letters had been detained and opened, and he would try whether it had been done by law or not. If Lord Denman and Lord Campbell said this was not a legal power, and if the Government required a bill of indemnity for what it had done, he did say the right hon. Baronet was not justified in telling the House he had acted in strict accordance with the law. The Law Officer of the Crown was present; he should like to hear his version of the law on the subject. If possible, he would take him into the Court of Queen's Bench; the hon. and learned Gentleman should there defend this law, and then the extent of it would be tried. The right hon. Gentleman said last year, let the individuals who complained indict the parties who had detained their letters, and then the warrant would be produced. He would see whether it would be produced or not, by carrying the case into a court of justice. He had hoped the House would have entertained the question, and that there would not have been that anxiety to stifle this discussion. He had observed during the speech of the hon. Member for Kendal, hon. Gentlemen evidently had more consideration for their dinners than for the reasonable wish and desire of the majority of the people of this country that this odious and iniquitous power should be extinguished.

The House divided:—Ayes 78; Noes 161: Majority 83.

List of the AYES.
Aglionby, H. A. Howard, hon. C. W. G.
Aldam, W. Howick, Visct.
Bellew, R. M. Humphery, Ald.
Berkeley, H. C. Hutt, W.
Bernal, R. Macaulay, rt. hn. T. B.
Blewitt, R. J. Mangles, R. D.
Borthwick, P. Manners, Lord J.
Bouverie, hon. E. P. Marjoribanks, S.
Bowes, J. Marsland, H.
Brotherton, J. Martin, J.
Browne, hon. W. Mitcalfe, H.
Buller, C. Mitchell, T. A.
Busfeild, W. Morris, D.
Butler, hon. Col. Murray, A.
Byng, rt. hn. G. S. Napier, Sir. C.
Chapman, B. O'Conor Don
Christie, W. D. Paget, Col.
Collett, J. Parker, J.
Curteis, H. B. Pattison, J.
Dalmeny, Lord Pechell, Capt.
Dennistoun, J. Plumridge, Capt.
Divett, E. Ponsonby, hon. C. F. A.
Drax, J. S. W. S. E. Protheroe, E.
Duncan, Visct. Rice, E. R.
Duncan, G. Ross, D. R.
Dundas, Adm. Rutherfurd, A.
Ebrington, Visct. Sheil, rt. hon. R. L.
Ellice, E. Sheridan, R. B.
Elphinstone, H. Somerville, Sir W. M.
Forster, M. Strickland, Sir G.
Guest, Sir J. Strutt, E.
Hanmer, Sir J. Tancred, H. W.
Hawes, B. Thornely, T.
Heron, Sir R. Trelawny, J. S.
Hobhouse, rt. hn. Sir J. Tuffnell, H.
Villiers, hon. C. Worsley, Lord
Wall, C. B. Yorke, H. R.
Warburton, H. TELLERS.
Wawn, J. T. Duncombe, T.
Williams, W. Hume, J.
List of the NOES.
Ackers, J. Estcourt, T. G. B.
Acland, Sir T. D. Fellowes, E.
Acland, T. D. Fitzroy, hon. H.
Acton, Col. Ffolliott, J.
Adare, Visct. Forbes, W.
Arbuthnott, hon. H. Forman, T. S.
Arkwright, G. Fremantle, rt. hn. Sir T.
Bagot, hon. W. Fuller, A. E.
Bailey, J. jun. Gaskell, J. Milnes
Baillie, H. J. Gladstone, Capt.
Baird, W. Gordon, hon. Capt.
Baldwin, B. Gore, M.
Bankes, G. Gore, W. O.
Baring, rt. hon. F. T. Gore, W. R. O.
Baring, T. Goring, C.
Baring, rt. hon. W. B. Graham, rt. hn. Sir J.
Baskerville, T. B. M. Greene, T.
Bateson, T. Grimston, Visct.
Benbow, J. Grogan, E.
Bentinck, Lord G. Hale, R. B.
Beresford, Major Hamilton, G. A.
Blackburne, J. I. Hamilton, W. J.
Blackstone, W. S. Hamilton, Lord C.
Boldero, H. G. Harcourt, G. G.
Botfield, B. Harris, hon. Capt.
Bowles, Adm. Hayes, Sir E.
Brisco, M. Henley, J. W.
Bruce, Lord E. Hepburn, Sir T. B.
Buller, Sir J. Y. Herbert, rt. hon. S.
Campbell, Sir H. Hope, hon. C.
Cardwell, E. Hope, A.
Carew, W. H. P. Hope, G. W.
Christopher, R. A. Houldsworth, T.
Chute, W. L. W. Howard, P. H.
Clerk, rt. hon. Sir G. Ingestre, Visct.
Clive, hon. R. H. Irton, S.
Cockburn, rt. hn. Sir G. Jermyn, Earl
Codrington, Sir W. Jocelyn, Visct.
Corry, rt. hon. H. Johnstone, Sir J.
Courtenay, Lord Jolliffe, Sir W. G. H.
Cripps, W. Jones, Capt.
Damer, hon. Col. Knight, F. W.
Darby, G. Lambton, H.
Deedes, W. Lawson, A.
Denison, E. B. Lefroy, A.
Dickinson, F. H. Legh, G. C.
Douglas, Sir H. Lennox, Lord A.
Douglas, Sir C. E. Liddell, hon. H. T.
Douro, Marquess of Lincoln, Earl of
Drummond, H. H. Lockhart, W.
Duff, J. Long, W.
Duncombe, hon. A. Lowther, Sir J. H.
Duncombe, hon. O. Lyall, G.
Du Pre, C. G. Lygon, hon. Gen.
East, J. B. Mackenzie, T.
Eaton, R. J. Mackenzie, W. F.
Egerton, W. T. Mackinnon, W. A.
Egerton, Sir P. McGeachy, F. A.
Emlyn, Visct. Masterman, J.
Escott, B. Mildmay, H. St. J.
Morgan, O. Smith, rt. hon. T. B. C.
Munday, E. M. Somerset, Lord G.
Newry, Visct. Somes, J.
Norreys, Lord Sotheron, T. H. S.
O'Brien, A. S. Spooner, R.
Palmerston, Visct. Stewart, J.
Patten, J. W. Stuart, H.
Peel, rt. hon. Sir R. Sutton, hon. H. M.
Peel, J. Tennent, J. E.
Pennant, hon. Col. Thesiger, Sir F.
Plumptre, J. P. Tollemache, hon. F. J.
Polhill, F. Tollemache, J.
Pollington, Visct. Trench, Sir F. W.
Praed, W. T. Trevor, hon. G. R.
Pringle, A. Tyrell, Sir J. T.
Reid, Sir J. R. Verner, Col.
Repton, G. W. J. Villiers, Visct.
Round, J. Wellesley, Lord C.
Rous, hon. Capt. Wortley, hon. J. S.
Sandon, Visct. TELLERS.
Shelburne, Earl of Young, J.
Sibthorp, Col. Baring, H.
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