HC Deb 03 May 1854 vol 132 cc1216-20

Order read, for resuming Adjourned Debate on Amendment proposed to Question [30th March], "That Mr. Walpole be one other Member of the said Committee," and which Amendment was to leave out from the word "That" to the end of the Question, in order to add the words "the further nomination of the said Committee be proceeded with upon this day six months,"—(Mr. Lucas,)—instead thereof:—Question again proposed, "That the words proposed to be left out stand part of the Question."

Debate resumed,


said, he wished very briefly to address the House with the view of suggesting a mode by which the appointment of this Committee might be avoided, and an end put to these discussions, which were attended with so much angry feeling, and could not but be distasteful to many of the Members of that House. The House was aware that by the 56th of Geo. III. c. 100, remedy was given in civil cases, similar to that which the Habeas Corpus Act had previously given in criminal matters. By the first section of that Act it was provided that application for a writ of habeas corpus might be made "in behalf of or by any person" who was "confined or restrained in his personal liberty," but great doubts had existed as to whether such application might be made by a stranger not being next of kin or a lawfully authorised attorney. In the Habeas Corpus Act passed in the reign of Charles II. words were used authorising application to be made by "any one on behalf of" a person whose freedom was restrained; but in the 56th of Geo. III. these words, "by any one on his behalf," were omitted. It was matter of doubt, therefore, whether these words" on behalf of" could be taken to mean a stranger, or one who was not a kinsman or lawfully authorised attorney. He had not, after minute search, found a single case in which the words had been so received; and he had found it decided under the original Act of Charles II. that no one was entitled to take out a habeas corpus for a prisoner without his consent. Under the old Act, therefore, an application for habeas corpus could not be made on behalf of a prisoner without his consent. In a pamphlet headed The Nunnery Question, published, it was understood, under the auspices of the Protestant Alliance, he found it stated that a stranger could not apply for the release of a prisoner without the consent of the person immured. From all these circumstances he was justified in arriving at the conclusion that doubts did exist on the point. He could not part from this pamphlet, however, without adverting to the indications which it gave of the cloven foot of persecution, and of the desire of the party whom it represented to carry matters much further than was generally avowed. In the closing paragraph it was stated that the result of a Committee of Inquiry would be "to secure the enactment of a stronger measure"—meaning thereby a measure stronger than those domiciliary visits which had been proposed to the House. He wished, in passing, to call the attention of the House to this statement, as it evinced a desire to go much further than mere inquiry. The 56th of Geo. III. could not be made applicable to persons who, though not restrained as to their personal liberty, were, nevertheless, not in a condition freely to exercise their will; but he held that the common law of England was sufficient to reach all such cases. He would wish to impress upon the House the reasons why he considered that it would be not only inexpedient, but unnecessary, to appoint the Committee upon this Bill. His principal objection to such appointment was founded on the grounds that, while the Statute law was, as he had shown, unequal to cope with the supposed exigency, the common law, as it at present stood, with its powers of habeas corpus, was quite sufficient to protect the liberties of the subject, and prevent those gross abuses which, it was suggested to the House, did or might occur. In sup- port of this view he might mention that there were various cases which had been reported of applications for a writ of habeas corpus to the Court of Queen's Bench, for the purpose of bringing up the bodies of children or women supposed to have been deprived of their liberty and free action. In a case which was tried in the Court of Queen's Bench, in 1758, a person of the name of Clarke was compelled to produce the body of his daughter on the application of a man, a total stranger to him, who wished to take her away from her home. Again, in 1760, an application was made to the Court by the friends and relatives of Mrs. Frances Savage, a woman addicted to liquor, without her consent, representing that she was in the hands of improper persons, who were anxious to get her to sign away her property by will, and a rule was made upon the defendants to show cause why an information should not be filed against them for the misdemeanor charged against them in the affidavits, and likewise to allow the plaintiffs free and unrestricted access to Mrs. Savage. In the case of Blake, Denman, and others, which occurred in 1763, a writ of habeas corpus was issued, on an affidavit which was given without the consent of the person brought up. He might also refer to the case of the Hottentot Venus, in 1810. In that case the application to the Court was made by the secretary of the African Association, who stated in his affidavit that he had reason to believe that the female in question had been brought into this country and exhibited for money against her consent; and upon that statement the Court ordered the woman to be examined touching the condition of her mind. That examination took place, and the woman stated that she came over here and was exhibited of her own free will, upon a contract to receive part of the proceeds. If, then, the common law of England afforded all the relief that was required, and such relief as the Statute law failed to do, and, if the Court of Queen's Bench had the power fully to enforce the remedies which the common law provided, what was the good of coming to that House to seek for what we already had? If the common law had been unable to give relief, or the Court of Queen's Bench had refused to do so, as carrying out the principles of such law, why, then, it would be time to apply to that House for the appointment of a Committee on a measure like the present; but, as the law stood, even the suggestion of such a measure was crude and unnecessary. Let hon. Gentlemen who seemed to have such an appetite for special legislation introduce a Bill delaratory of the common law—that would be to meet the difficulty in a dignified and constitutional manner. He firmly believed that the common law could meet all the difficulties and exigencies of the case; but, supposing even that any alterations were required which a declaratory Act could not satisfy, he considered that that was no reason why we should by our legislation attack any one particular party or sect; but, on the contrary, that we should effect the necessary amendments, if any were necessary, in a spirit of liberality and fairness with the disposition of men, who seek to remove an imperfection in our law not to add fuel to religious contentions—who legislate as reformers, not as bigots. He thought, therefore, that this Committee ought not to be appointed, and he could not see what good it would answer in any way, even if it were countenanced. He objected, also, to the public funds of this country, at such a period, or at any time, being wasted and consumed in carrying out the prejudice or bigotry of any particular party or sect; and this was another ground why he opposed this measure. He objected, in fact, to the appointment of this Committee for three reasons—firstly, because no case had been made out to justify such appointment; secondly, because, even if any case had been made out (which he denied), be could see no good results that would arise out of the inquiry. If we were not to have the power to call the ladies who were principally supposed to be interested in this question before us, how could we arrive at anything like the truth of these matters? And, if we were to have such power given us, and had the bad taste to exert it, the effect of such a proceeding would be, that any lady who was forced to attend would enter the Committee-room as an object of idle curiosity, and leave it a subject of indignant pity—she would enter a spectacle, and leave it a sacrifice—she would enter a witness, and leave it a martyr. The third reason why he opposed the measure was, because he considered the present time to be particularly inopportune for its introduction, and, as he believed that that day week (the Day of Humiliation), when asking for success for our arms and victory in the day of battle, we ought not to let any party feeling mingle with our devotion, so he hoped that we would not now let that illiberality intrude into our legislation which charity had so properly excluded from our prayers.


said, he rose to make a suggestion to the hon. and learned Member for Hertford (Mr. T. Chambers). They must all feel that this continued discussion was not calculated to raise either the character or time dignity of that House. The hon. and learned Gentleman who had just sat down had treated the matter as a legal question; the House, he was sorry to say, had treated it more as a religious question. He confessed that he thought the first vote of the House was a mistake. If this discussion, which he ventured to say would lead to no result, were to go on from day to day, and from week to week, the hon. and learned Member for Hertford would do nothing towards gaining his object; but they would all feel that the character of the House was very much compromised by the proceeding. He would, therefore, venture to suggest to the hon. and learned Gentleman whether he should not take a little time to consider what course he ought to adopt in present circumstances. He was convinced that, if the hon. and learned Gentleman, to-morrow or next day, came down and told the House that he was not disposed to continue the debate in the irritating form which it had now assumed, he would receive the thanks even of his own supporters, while all would feel that he had exercised a wise discretion.


said, he felt as strongly as any one upon this subject, and considered the question before the House to be simply, whether these particular cases were within the reach of the law of the country, or whether—

And it being a quarter before Six of the clock, Mr. Speaker adjourned the Debate till To-morrow, without putting the Question.

The House adjourned at seven minutes before Six o'clock.