HC Deb 08 August 1871 vol 208 cc1175-91
MR. NEWDEGATE

Sir, I have several times postponed, in the absence of the right hon. Gentleman the Home Secretary, the Notice which stands on the Paper in my name; and as I have the advantage now of seeing him in his place, I cannot reconcile it to my sense of duty to defer this subject any longer. The question is one which affects the jurisdiction that the right hon. Gentleman exercises, as possessing the power of remitting sentences—that is, sentences passed by the Courts of this country. I have not myself hitherto appeared in the cause of leniency in my comments upon the exercise of this power, for I have twice brought before the House cases in which a Home Secretary, the right hon. Gentleman the Member for the University of Oxford (Mr. G. Hardy) in the first instance, and in the second the right hon. Gentleman who now fills the office, have, in the opinion of many persons, unduly remitted sentences where convictions for murder had been obtained, and capital sentences had been passed in the county, part of which I represent. I do not know that there is any other Member of this House who has had to bring forward cases of this description, and I have brought them, forward for this reason—there is a great power vested in the Home Secretary. He can supersede the sentence passed by a Judge. He can supersede a conviction obtained from any jury. He can mitigate or annul the sentence pronounced upon any crime; and the question that I ask the House and myself is this, whether this power is to be exercised irresponsibly. I know that the right hon. Gentleman the Home Secretary holds that, after he has consulted the Judge who has tried a case, he has a right to be governed by the opinion of that learned person, and that upon the representation of the Judge, after he has reviewed the sentence passed by himself, the Home Secretary is justified in giving effect to the second judgment of that Judge. I think, Sir, that this is a very questionable course. Nay, even a dangerous course; dangerous, that is, to the administration of justice, dangerous to the best interests of society. But the case which I now bring before the House, in moving for the Papers connected with it, is a case in which no Judge has intervened. It is the case of a trial at the Winchester Quarter Sessions, and the sentence which has been pronounced is the sentence merely of a Chairman of Quarter Sessions, who may be a very competent person for aught I know, though I think I shall be able to show the House that in this instance he has proceeded upon very questionable principles. A Chairman of Quarter Sessions has power to grant a case—if the counsel employed for the defence of a prisoner applies for a case to be submitted to a superior Court; the Chairman can also refuse a case, and in this instance the Chairman, Mr. Melville Portal, refused to permit his judgment to be reviewed by any superior tribunal. This power to refuse a case is an exceptional privilege, and I think a very questionable privilege, when exercised by Chairmen of Quarter Sessions; for I hold that most of them not being professionally trained, when their judgment is disputed there ought to be some ready and not very expensive means by which that judgment can of right be brought Tinder review, whether with or without their consent. Now, the case to which I advert is this. There is a person of the name of Mackey; and this person has been in the habit of giving lectures as a Protestant lecturer; and the House will remember this, that it has several times had before it the case of a person of the name of Murphy, who was also in the habit of giving lectures in the Protestant sense, and that I formerly brought the treatment of that person before the House when he had been attacked by mobs, and had not received the protection from the police that he ought to have received. At length the late Mayor of Birmingham thought fit to arrest this person as he was on his way to attend a meeting in the Town Hall, convened to consider the propriety or impropriety of disestablishing the Irish Church. This Mr. Murphy was, at that time, a ratepayer in Birmingham, and the Mayor had him arrested as he was entering the Town Hall. I brought that case, Sir, before the House in the Session of 1869 by introducing a Motion to the effect that the conduct of the right hon. Gentleman the present Home Secretary, by sanctioning unlawful interruptions of Mr. Murphy's lectures, and in supporting the Mayor of Birmingham in arresting Mr. Murphy, amounted to an undue interference with the right of free discussion and with liberty of the subject. I will read the terms of my Motion to the House. They were these— That the right of free speech is one of the most important safeguards of good Government, and that attacks upon this right are therefore dangerous to the welfare of the State: that the recent conduct of the Home Secretary in preventing free discussion of important topics was, in fact, an attack opon this great safeguard of freedom, and is therefore deserving reprehension by this House; that this conduct of the Home Secretary has proved especially mischievous, since it has led to breaches of the law on the part of official persons, more particularly by the Mayor of Birmingham, who caused the arrest of an innocent person for the purpose of preventing what to him was distasteful discussion. Well, Sir, the right hon. Gentleman brought down his majority—the majority who usually support the Government—and they negatived the Motion which begins with the assertion that the right of freedom of speech is one of the most important safeguards of good Government, and that attacks upon this right are therefore dangerous to the welfare of the State. The particular instance on which my Motion was founded was the arrest of Mr. Murphy; and what has happened? The majority of this House were, as I said, brought down to negative my Motion; and so they did, but afterwards the case of Mr. Murphy was brought before the Court of Assize at Warwick, and the Mayor of Birmingham had to pay £50 for his interference. Therefore, at the instance of the present Home Secretary, this House has passed a Resolution in direct opposition to a decision of the Courts of Law, which has never been questioned; has negatived a Resolution which affirmed this—that the right of free speech is not an essential safeguard for the freedom of the subject in this country. I only advert to this circumstance in order to show the House the lengths to which the right hon. Gentleman has induced the House to go, with the object of putting down the right of freedom of speech in these lectures. In 1869, in answer to a Question put to him in this House, the right hon. Gentleman said he was perfectly aware that the Mayor of Birmingham had acted, in the arrest of Mr. Murphy, upon no known statute; but he believed that the Mayor was acting upon the great principle—Salus populi suprema lex. This dictum of the right hon. Gentleman did not satisfy the Court of Assize, and the conduct of the Mayor was formally condemned. But to revert to the case of this person Mackey. He has now been for more than six months a prisoner under the following circumstances. He gave a lecture at the commencement of the year 1870, in which he referred to a work upon the Confessional, showing the doctrine of the Confessional, and the teaching of the Church of Rome with respect to the Confessional which this work was an expurgated edition of a pamphlet known as the Confessional Unmasked, exposed and condemned. It was not the same work as had been brought before the Court of Queen's Bench. It was, I repeat, an expurgated edition; but, in consequence of his references to this work, and in consequence of his having sold this expurgated copy, this person was committed for trial at the Winchester Quarter Sessions. Now, I have often heard it said in this House that Quarter Sessions law is not very good law, and I must say, judging from this case, that it is certainly very questionable law; but that to which I am about to refer is, I believe, a total exception to the usual practice of the Courts of Quarter Sessions. I will read a short statement which will place the House in possession of the facts of the case more quickly than if I were to narrate them myself. The statement contain the substance of one of the Papers which I desire that the right hon. Gentleman should produce to the House, in order to enable the House to exercise its judgment with reference to the refusal of the right hon. Gentleman to grant any remission of the sentence passed upon this prisoner Mackey. I regret to understand the right hon. Gentleman intends to withhold these Papers from the House, from which I now read an extract— I beg most earnestly to direct your attention to the case of George Mackey now a prisoner in Winchester Gaol; in connection therewith I forward three Petitions to Her Majesty, signed by 12,462 persons, or thereabouts, praying for inquiry into his case, with a view to his release. George Mackey was arraigned at the Quarter Sessions, Winchester on the 18th of October, 1870. The offence charged was the sale at Lymington of a pamphlet entitled and known as The Morality of Romish Devotion, or the Confessional Unmasked, showing the depravity of the Romish priesthood and the iniquity of the Confessional, alleged to be an obscene publication, though consisting of extracts from Romish canonists, casuists, and theologians. The said George Mackey is a lecturer on Protestantism. The jury, after five hours' consultation, could not agree and were discharged. Now, this was the first trial for the same offence of the prisoner Mackey; I am referring to the circumstances of this trial before the Quarter Sessions at Winchester in 1870, when the jury could not agree. They were 11 to 1 for an acquittal, as appeared after the trial; so the Chairman of the Quarter Sessions, Mr. Melville Portal, felt obliged to discharge them, retaining the prisoner under bail, however, for a fresh trial at the next Sessions, when, under very peculiar circumstances, as I shall show—and I say it advisedly—the Chairman obtained a conviction. The document continues— The said George Mackey was bound over to appear and take his trial at the next Quarter Sessions—to wit, January 3rd, 1871; on the second trial the said George Mackey was found guilty, and by the Chairman of Quarter Sessions, Melville Portal, Esq., was sentenced to three months' imprisonment in Winchester Gaol, which punishment he is now undergoing. On the second trial there was an informality in procedure; the jury were not sworn. There was, in a strictly legal sense, no trial. This circumstance is verified by the affidavit on oath of Robert Steele, which was duly forwarded on January 9th of this year to the Home Office, by Samuel Kydd, Esq., barrister-at-law, who was counsel for the prisoner on the occasion referred to. A copy of the said affidavit is herewith inclosed. There is also inclosed a solemn declaration of Samuel Hirst, as to the contents of the alleged obscene pamphlet, for the sale of which the said George Mackey was convicted as aforesaid. At the close of the second trial the prisoner's counsel asked the Court for a case for the Court of Criminal Appeal on the following points:—1st, that, under the terms of the indictment, the intention of the defendant was a question for the jury, and had been withdrawn from them; 2nd, that the whole book was for the consideration of the jury, and the Chairman had directed their attention to only two passages which he had marked. Therefore, this man has now been in prison six months for circulating a book of which the Chairman of Quarter Sessions would allow the jury to consider but two sentences— 3rd, that the Chairman had improperly told the jury that the terms of the indictment had no meaning of a kind requiring their attention. Let the House conceive a trial in which the Judge declares to the jury, that they were not to try the prisoner on the indictment which had been lodged for the prosecution, but were to try him upon a fictitious indictment invented by himself! This document continues— The Chairman refused a case for the Court of Criminal Appeal. The punishment appears excessive compared with the alleged offence. George Mackey was avowedly anxious, as a Protestant lecturer, to expose what he designated the evils of Popery and the Confessional. If in prosecuting this duty he sold a book the sale of which, under the circumstances already stated, was found by a jury to be a misdemeanour, a punishment sufficient to operate as a warning was all that the law, as the guardian of the interests of society, could reasonably require. It has pleased Her Majesty to extend her Royal clemency to prisoners undergoing imprisonment in various gaols for crimes that, in their character and objects, appeared to have been heinous. It is hoped that it may be made to appear that the Royal clemency might, for satisfactory reasons, be extended to George Mackey, who, in the pursuit of a legitimate ulterior object, may have committed an offence, but without evil intent or proved injury to the morals or rights of any of Her Majesty's subjects. Now, I wish to recall the attention of the House to the fact that, in two cases of murder, it has been my duty to impugn the judgment of Home Secretaries, in the last instance that of the right hon. Gentleman the present Home Secretary. Both these crimes were committed in the county which I represent, and in the second instance the right hon. Gentleman commuted the penalty of death to no more than one years' imprisonment! Yet here is the case of the disputed trial of a man for circulating a pamphlet, which is called obscene, but which has never been pronounced obscene by any Court of Law whatever; this man has been imprisoned, not for three months, but for six, and the right hon. Gentleman refuses any relief, and I understand means to refuse the production of the Paper from which I have read an extract to the House. As I doubted some of these statements I applied to the counsel in the case, because, although I was acquainted with the exact character of the first trial when the jury could not agree through an attested report, the second trial was, unfortunately, not reported, and I have here a letter from the counsel in the case, which runs in these terms—

"July 4th, 1871.

"Dear Sir,—So far as I know, there is no report of George Mackey's second trial, except notices in newspapers. You ask me specially about the summing up of the evidence to the jury. If you have a report of the first trial you can understand the case on the second trial. The summing up was substantially the same in both cases, with two distinctions. It was on the second trial more adverse in tone and matter to the prisoner, and only two passages in the book were pointed out to the jury. On the first trial the whole book was submitted to the jury. Possibly you are not aware that I wrote to Mr. Bruce and the Chairman of Quarter Sessions, Melville Portal, Esq., on the second trial.—I am, your obedient servant,

"(Signed) SAMUEL KYDD."

This letter is addressed to myself. I subsequently asked why Mackey did not appeal to the superior Courts, and the answer I received was that it was owing to his poverty, that he had already had the expense of two trials. I understand that there is a plea, an excuse to be put in with reference to the allegation, that the jury were not sworn on the second trial. I will answer that plea by anticipation. The offence for which Mackey was to be tried was a misdemeanour, and I hear it will be alleged that the jury were sworn in the morning before the prisoner or his counsel had reached the Court, and that the swearing of the jury once is usually held to suffice for the trial of all cases of misdemeanour standing for trial during the day. Practically that may, to a certain extent, be true; but where the prisoner has reason to believe that there is a malicious bias against him in the mind of any of the jury, he has a right to demand that the jury shall be sworn in his presence, because in case bias is proved against any juryman, although the trial is for misdemeanour, the prisoner has the right of challenge. I cannot positively say that the jury were never sworn. There is a rumour that they were sworn in the morning, before the trial of the misdemeanants commenced; but I know this—that from the time that the prisoner appeared in Court in answer to his recognizances, and that from the time his counsel appeared, the jury were not sworn, and that therefore the prisoner was deprived of the right of challenge, after having, on the first trial, been deprived of an acquittal through the obstinacy of one juryman only against the opinion of eleven. Now, I think that these facts constitute peculiarities in this case, and such peculiarities as, I trust, seldom characterize trials at Quarter Sessions. I am an old magistrate myself, and in my experience I do not remember such a case as this. The counsel for the prisoner tells me that I am to judge by the first trial of the conduct of the second. I regret extremely that the circumstances of the prisoner and his poverty did not admit of his having a reporter present at the second trial; but I will trouble the House by giving them a sample of the manner in which the jury were charged by the Chairman of Quarter Sessions at the first trial. This is an extract from, the report of his Charge to the jury— Then the counsel says, although it (the book) is obscene, it is not offered by the prisoner for the purpose of doing harm, but of doing good. But the law of the case is simple: in the eyes of the law the hawking about of an obscene thing is illegal—the hawking is illegal. Why, Sir, I put it to the House that if you were thus to try the Bible, to judge of the whole Bible from two or three selected extracts, the Bible itself might be held to be an obscene book, and the hawking of it a crime. Mr. Melville Portal thus proceeded with his charge. He continued— We do not care whether the person intended to improve the population or to demoralize them. We have nothing to do with any particular views of his. He must be responsible for his act; and if he does that which is calculated to corrupt them he is responsible for these acts; and we care nothing about his intentions. In another paragraph the Chairman goes on to state that the book was the book which had been condemned as obscene before the Court of Queen's Bench. Sir, it was nothing of the kind. The counsel for the prisoner happened to have been counsel in that case also, and he informed the Chairman during his charge that it was not the same book; but Mr. Melville Portal proceeded without reference to this information in the same line of argument. And what did he say?— The Chief Justice says that it is no answer to the publication of an obscene book, that the intention is good. Mr. Portal had been informed that these books were not the same; nevertheless, he still cites the judgment of the Court of Queen's Bench on a different book, not the book then before him. Again, he says—"You have nothing to do with the intention of the prisoner at the bar." Sir, this is in contravention of the first principles of English jurisprudence. It is malice and intention that constitute crime, and I will show the House that it is so stated in the indictment, which the Chairman wished the jury to put aside and not to consider on the trial. Again, Mr. Melville Portal said— The one only question is, whether that book is obscene. Consider what these passages are; and if you think these passages to be obscene, then you have nothing to do with the intentions of the prisoner. Mr. Portal enforced this dictum on the jury—that is, the jury on the first trial; but it happened that the foreman of that jury was a sensible man, and after the jury had retired the foreman came back into Court, and said—"The jury would like to hear the indictment read again." I have a copy of the indictment here. ["Oh, oh!"] The House will excuse me. I have to bring a legal question under their cognizance, and they must excuse me for stating the terms of the indictment. The terms of the indictment are these— That George Mackey, late of the parish of Lymington, in the county of Southampton, being a scandalous and evil-disposed person. ["Hear!"] I say "hear!"— That George Mackey, late of the parish of Lymington, in the said county of Southampton, being a scandalous and evil-disposed person, and devising, contriving and intending the morals, as well of youth as of divers other liege subjects of our said lady the Queen, to debauch and corrupt, on the 24th day of August, 1870, in a certain open and public place, to wit, the Town Hall of Lymington, unlawfully, wilfully, maliciously and scandalously did sell and utter. Again— That the said George Mackey being a scandalous and evil-disposed person, and devising and contriving and intending the morals, as well of youth as of divers other liege subjects of our said lady the Queen, to debauch and corrupt, on the day and year aforesaid, in a certain open and public place, to wit, the Town Hall of Lymington, unlawfully, wickedly, maliciously and scandalously did expose and offer for sale," &c. Clearly, then, the offence set out in the indictment was the intending to corrupt and debauch by the sale of this publication. Well, the Chairman was very unwilling that the indictment should be produced, and what did he say? The jury had come back, and the foreman said—"The jury would like to hear the indictment read again." The Chairman: "The whole of it?" Foreman: "Yes, the whole of it." The Chairman then read the indictment in full, but added further, "That is a mere form." Yes, the indictment upon which this man was tried was declared by the Chairman to be "a mere form." The real offence," he went on, "is offering for sale an obscene and immoral publication. You have but one single point to consider, whether the prisoner did offer an obscene book. You have nothing to do with his intention. The report of the case proceeds— At the rising of the Court, the jury having been locked up more than five hours, the Chairman sent for them a second time, and asked were they likely to agree? The foreman said he thought not. The Chairman had previously learnt that 11 of the jury were for the defendant, and that only one was disposed to carry out the wishes of the Court. The Chairman said: 'Suppose they were locked up another five hours, was there any prospect of their agreeing in the meantime?' The foreman: 'It all depends upon our friend here.' Counsel on both sides consenting to their discharge they were discharged accordingly. That was the manner in which the jury were charged, and the first trial conducted, and I have read to you the testimony of the counsel for the prisoner that the defects of that charge and of the procedure were exaggerated on the second trial. I have also shown the House that the Chairman distinctly told the jury at the first trial that the terms of the indictment were not matter for their consideration. Well, then, I will proceed. ["Oh, oh!"] Hon. Members may dislike to have these defects in the administration of the law brought before the House; but inasmuch as there is a jurisdiction in the Home Secretary to mitigate the sentences of the Courts of Justice, and the Home Secretary is responsible to no tribunal whatever except this House, I feel it to be my duty to bring this subject under the consideration of the House, because there is no other tribunal to which this prisoner Mackey can now appeal. Not long after the man had been in prison it appears to have been discovered by the Home Secretary that there is a society in London called "The Protestant Evangelical Mission and Electoral Union," who were in possession of some copies of the same pamphlet, for circulating which Mackey has now undergone six months' imprisonment. The police were sent to the office of that society to seize any copies that they could find there, and the secretary of the society, a Mr. Steele, was brought before a police magistrate, Sir Thomas Henry, for having committed, as alleged, something like the same offence as Mackey. Sir Thomas Henry heard the case; the same counsel who defended Mackey on both trials attended at the police Court and applied to Sir Thomas Henry to grant a case for the superior Courts. Sir Thomas Henry is, as is well known, a barrister of eminence, accustomed to judicial proceedings, and without the slightest hesitation he granted a case for the superior Courts. Let the House observe this—that Sir Thomas Henry granted an appeal in a case analagous to that in which the Chairman of the Quarter Sessions at Winchester had refused to grant a case. Therefore you have the judgment of an educated barrister to set against the judgment of Mr. Melville Portal, that this is a kind of case which ought to have been sent for trial to a superior Court. The matter does not rest here. This work—and I have seen it, I speak of the pamphlet—for selling which Mr. Mackey is imprisoned, contains scarcely anything but verified extracts from Roman Catholic works of devotion, which I have seen and compared, and they are true extracts, perfectly true extracts, and the translations have been verified, not only by myself, but by experts. I hold in my hand an account of the visit of the police, in the case of Steele, to the office of the Protestant Electoral Union, on the 26th of January, 1871, when they went there to seize the books of the society, and amongst the books they desired to seize was the report of the trial of this George Mackey, and they seized that report. Now, conceive this—that a verified and attested report of the trial of George Mackey, that is, of the first trial, when the jury could not agree, was held to be so indecent a production, and so vicious that, under the directions of the Home Secretary, the police were ordered to seize it, although the reports of trials are privileged. I presume there is not another instance on record in which the verified report of a trial has been treated as a publication which the Home Secretary has a right to seize. Well, Sir, whilst the police were searching in this place they took 12 or 20 copies of specimens of various editions of The Confessional Unmasked. They were about to take a copy of Den's Theology, and another of The Garden of the Soul, and another of Bailly. The secretary asked the officers not to take the specimen copies, as they were neither for sale nor exhibition, but only for private use. They said they must do their duty. The secretary pointed out Den's The Garden of the Soul and Bailly as originals, from which the extracts contained in The Confessional Unmasked were taken. Inspector Brennan then removed Den's from the bookcase to the floor; but on Inspector Mulvany saying that they (these books) could be bought at any shop—any theological book shop—they were not taken away. The police officers left about half-past 4 o'clock. Now these books are the originals, from which the extracts in Mr. Mackey's book were made, and the police would not seize the originals, though they seized the report of the trial, because some extracts from those originals were quoted at the trial, but they left those originals, the Roman Catholic works, behind them. Does not the House perceive how this cuts? I have some extracts here from the work called The Garden of the Soul, but they are so foul that I shall not read them to the House. I hesitate not to declare, however, that the questions suggested in that work are as gross, and the teaching more dangerous—nay, far more dangerous in the sense of its corrupting influence—than anything that appears in the book for circulating which Mackey has been six months in prison. Yet we have the statement of the police that these very books are to be bought at any theological bookseller's; and I have also heard an hon. Member of this House complain from his place here that this very work, The Garden of the Soul, had been thrust by a Roman Catholic priest into the hands of his daughter, she being a Protestant, against her will and without her knowledge. I allude to my friend Sir John Tyrrell, then Member for Essex; and I cite this because the Roman Catholic priests are permitted to place the originals, including the very extracts which have been condemned, in the hands of Protestant ladies, as one of them did place The Garden of the Soul in the hands of the Protestant daughter of a Protestant father, that father being a Member of this House. Sir John Tyrrell came down to the House and exposed the practice, yet this practice is sanctioned by the law, and if any man objects to it openly, as Mackey did, if he produces extracts from those works which are sold by Roman Catholic publishers, and thrust into the hands of Protestant ladies by Roman Catholic priests; if any man publishes those extracts for the purpose of reprobation, he is to be imprisoned, whilst the Roman Catholic publisher, and the Popish priest is to go free! Now, in Russia, there is a law against proselytism, and it was chiefly for violating that law in the case of the son of Prince Gallitzin, in the year 1820, that the Jesuits were expelled from the Russian Empire. I say, then, if you are to proceed upon any principle of equity or justice, you should pass a law against proselytism, such as the law in Russia, and forbid the thrusting of this Garden of the Soul, with its foul teaching, into the hands of Protestant ladies, or you are not justified in imprisoning Mackey. Enact the law which exists in Russia and you would act fairly; but until you have passed such a law you have no right to allow the Romish priest and the Roman Catholic publisher to disseminate with impunity the very doctrines for the open denunciation of which you imprison a Protestant lecturer; and now, when he is in prison, and an appeal is made to the Home Secretary in his behalf, you seem disposed to ignore it, although the right hon. Gentleman has remitted the punishment of death in the case of murders, and in one case, to which I have adverted, commuted the punishment of death to imprisonment for one year. Can there, then, be any justice in right hon. Gentlemen insisting upon keeping the Protestant lecturer tight in prison and refusing him relief? Where, I ask, is the justice or equity of such a course as that? In the case of a disputed trial, where the subject-matter of that trial in an analogous case is still pending before the superior Courts of Law, because bail has not been found for this prisoner, subsequent to the expiration of his sentence, the Home Secretary has no pity upon him. He will hold him in prison, and thus sanctions the whole of those questionable proceedings at this Court of Quarter Session. But the right hon. Gentleman seems to think that this matters not; the right hon. Gentleman seems to be determined to act upon a code of his own invention, founded upon the maxim—Salus populi suprema lex; he is acting according to his own interpretation of his own maxim, which interpretation has been condemned by the Court of Assize in the case of the trial of the Mayor of Birmingham for arresting Murphy, an imprisonment which the Home Secretary had virtually sanctioned, and induced the majority of this House to sanction. Sir, if ever there was a case in which this House ought to demand the Papers relating to it, and inform itself of the manner in which the Home Secretary is exercising his functions, it is this case of Mackey. I seek, then, for the production of the Papers connected with this case. I am unwilling to detain the House, having given no more than a fair outline of the circumstances of the case, but I repeat this—the man is a poor man, who is now in prison, and his friends believed and hoped that the right hon. Gentleman would exercise in his favour the power of remission, which he is known to possess; the more so after Sir Thomas Henry decided that the illegality of this pamphlet which Mackey had sold was so questionable that it should be referred to the superior Courts of Law. But the right hon. Gentleman the Home Secretary, who is ready to remit the punishment of murderers, is so bitterly adverse to the refutation of these Roman Catholic doctrines that he is deaf to every solicitation of mercy, and determined that this sentence shall be pursued to its bitter extremity against this poor man. I now beg to move for the Papers of which I have given Notice.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "an humble Address be presented to Her Majesty, that She will be graciously pleased to give directions that there be laid before this House, a Copy of Correspondence between the counsel and friends of George Mackey, now a prisoner at Winchester, and the Home Secretary, referring to the alleged offence, trial, and sentence of the said George Mackey; together with Copies of any Memorials or Petitions relating to the above case,"—(Mr. Newdegate,) —instead thereof.

LORD HENRY SCOTT

, regretting that the hon. Member for North Warwickshire (Mr. Newdegate) had brought the case forward, said, he wished to say a word in defence of the magistrate whose conduct had been impugned. There was no doubt that this Mackey, who had been imprisoned for circulating an indecent publication, could have obtained his freedom if he had chosen to bind himself over not to commit the offence again. It was well known that Mackey had been supported by a very wealthy and influential association, who not only undertook his defence, but would readily supply any money that he might need. He (Lord Henry Scott) would leave the general facts of the case to the Secretary of State for the Home Department; but his object in rising was to defend the magistrate who had tried the case, and who had done everything that was right and proper. Many of the statements made by the hon. Member for North Warwickshire were not strictly in accordance with the fact.

MR. NEWDEGATE

rose amidst loud cries of "Order!"

MR. SPEAKER

said, that the noble Lord was in possession of the House; and, unless he desired to give way, the hon. Member was not in a position to address the House until the noble Lord had concluded.

LORD HENRY SCOTT

said, he should be sorry to say anything that the hon. Member could call in question as a matter of fact. All he wished to do was to justify the action of the committing magistrate, whose proceedings had been perfectly regular, and who was not only a just and honourable man, but an able man, and had done nothing whatever which was not strictly in accordance with his duty.

MR. NEWDEGATE

said, he had been contradicted on a matter of fact. He affirmed on the authority of the counsel in the case—[Cries of "Order, order!"]—

MR. SPEAKER

said, the hon. Member was at liberty to explain, but not to reply.

MR. WHALLEY

said, he believed that a more gross violation of duty had never been committed by any Judge or magistrate than by the magistrate in question, and there never had been a case which more demanded the sympathy and support of the House than this case of Mr. Mackey. It was well known that if anyone ought to be imprisoned for this work, he (Mr. Whalley) ought to be imprisoned. He, to a certain extent, was particeps criminis, and men of high social position in this country had co-operated in circulating The Confessional Unmasked. The decision given in the Court of Queen's Bench with reference to that work was one which sent a shudder through Westminster Hall.

MR. BRUCE

said, that he had often heard Secretaries of State challenged for remission of sentences, but this was the first time he remembered that a Home Secretary had been censured, as he had been, for refusing to interfere with the decision of a Judge. He had exercised his judgment to the best of his ability upon this question, and must decline to enter upon any defence of his own conduct further than to say that a more distorted statement of the principles on which he had acted it was impossible for any Member to have given utterance to in that House. The charge against the Chairman of the Quarter Sessions was substantially that he had acted in accordance with the law as laid down in the Court of Queen's Bench. He felt bound to say the Judge could not do anything else than what he had done, because everything that was foul and vile in The Confessional Unmasked was to be found in the pamphlet, for the sale of which this sentence was passed. It was impossible for any man, woman, or child to read that publication without having his or her mind contaminated, and it was no answer to say that it was a controversial book. The man Mackey had previously suffered imprisonment for an entirely different offence. He (Mr. Bruce) was perfectly satisfied that the trial was a fair one, and the sentence just, and that there was no ground for his interference. It was true he had, in the case referred to by the hon. Member for North Warwickshire, commuted a sentence for murder; but that was in a case in which the Judge disagreed with the jury; and he thought it was most unfair to contrast his conduct in this case in declining to reverse the sentence of a Judge, and his intervention in a case in which the Judge spontaneously communicated with him, and specially recommended the exercise of the Prerogative. There was nothing in the Correspondence to justify departure from the rule with reference to such documents, the publication of which would involve the reprinting of the objectionable book; and as to the other Papers the hon. Member (Mr. Newdegate) already possessed them.

Question, "That the words proposed to be left out stand part of the Question," put, and agreed to.