Lords Sitting of 19 May 1808

MARRIAGE INDEMNITY BILL.
The Bishop of Exeter The Bishop of Exeter moved the second reading of the bill for rendering valid Marriages which had been solemnized in certain churches and chapels, without a publication of the banns.
The Lord Chancellorcould not omit this occasion of expressing his regret at the frequent introduction of bills of this description.
The Bishop of Exeteracquiesced in the justness of the noble and learned lord's observation, and hoped that the introduction of such bills would cease.
The Earl of Lauderdaleconsidered the bill as of very great importance, inasmuch as it shewed the numerous inconveniences that arose from the Marriage Act. As the noble and learned lord seemed resolved to turn his attention to these inconveniencies, he would perhaps discover how far it might be expedient to repeal the Marriage Act, or so far to new model its provisions as to

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prevent the necessity of such frequent suspensions of it.
Lord Hollandconcurred in this opinion. He wished even the legislature would take a more wide and liberal view of the Marriage Act, and some other acts, such as the Corporation and Test Acts, which proved such hardships to so many large descriptions of his majesty's subjects. Surely that act could not be practically wise and useful which justified a recurrence to so many suspensions of it.
The Lord Chancellorsaid he must have been grossly mis-understood, if it was supposed he could entertain any intention of moving the repeal of any of these acts; on the contrary an occasion was likely soon to occur when he should declare his opinion of the necessity of retaining them.
Lord Redesdalewould never sit silent and hear the declarations that were made by some noble lords. As he deeply and sincerely revered the Marriage Act, and as he felt the great importance of a strict observance of it, so should he always be ready to raise his voice against the opinion of those to whom nothing in the constitution appeared sacred, and who avowed the design of proposing the repeal of the Marriage Act, and other acts equally essential to The safety of the state, and to the well being and peace of the community. Those who harboured such designs, could not mean well to their country.
Earl Stanhopecalled to order. He felt much respect for the noble and learned lord, but he never would allow him or any noble lord to impute motives to noble lords as influencing the opinions they delivered in that house.
Lord Redesdaledid not conceive himself to be disorderly. He did not think that any noble lord without moving for the repeal of an act of the legislature had a right to enter into arguments that treated it with disrespect.
The Earl of Lauderdalecalled the noble and learned lord to order, and reprobated the narrowness and illiberality of his opinions, which were now held odious in every part of the country, and which he was certain would prove as mischievous as they were odious.
Lord Ellenboroughcontended that his noble and learned friend was strictly in order, and that his observations grew out of the bill before the house.
Lord Redesdalethen went on, and contended that he did not conceive he had made any unparliamentary remarks: on
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the contrary, he thought this had been done by the two noble lords who had introduced a subject that was not before the house, he was more and more convinced of the necessity of the act, in serving as a barrier to confusion in the order of succession to property, and that we should not follow the example of a neighbouring country, whose laxity in that respect was of a pernicious tendency.
The Earl of Lauderdaleconceived the noble lord as most illiberal in his observations on this and other discussions of a like nature, and was convinced there was not one noble lord within the four corners of the house, who did not think so.
Lord Holland, considered the language used by the noble lord as most unparliamentary, and tending to prevent the freedom of debate. The question had been naturally introduced by the motion for reading the bill, which proposed an indemnity to persons who had offended against the Marriage act. Besides, he protested against the doctrine that no law was to be amended, nor any new one introduced, without subjecting the person so introducing the measure to the imputation of acting with evil designs against the constitution. If such doctrine was once introduced, the liberty of speech would be destroyed, and some noble lords would perhaps be intimidated from doing their duty.—The bill was then read a second time.

INDICTMENT BILL.
Earl Stanhope Earl Stanhope moved the order of the day for the second reading of the Indictment Bill; which being read, the noble lord said that this bill was one of the most important, and he believed, at the same time, it was one of the most mischievous tendency that ever came before the house, and not having been able to learn from whence it sprung, he would state its contents. Their lordships would be astonished to hear, that the commons had transmitted them a bill for their consideration which went the length of almost entirely annihilating the Trial by Jury in criminal cases. He had enquired whence and from whom the bill originated, but found it had been smuggled through the house of commons; for many members, of whom he had enquired about it, declared they bad never heard of it. Formerly, it was the practice of that house that all bills which went to the alteration of the established law, or any part of the constitution, were obliged to originate in a committee of the whole house, and then every one had notice of what was intended; but now

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that wholesome practice was become a dead letter. He trusted, however, their lordships would act according to the constitution of the country, according to the common law of the land; for, in his opinion, that man who would act so as to bring in a bill which militated against every principle of the common law, must be actuated by the very quintessence of human folly. The first clause went to enact, "That every person prosecuted for any offence should be compelled to give bail in such sum as in the warrant should be expressed; and if such person should refuse, or not be able to procure such bail, he should be committed to the gaol of the county; and service of the different proceedings on the gaoler or turnkey, should be good, and judgment be given against such person, as if the process had been served upon himself."—So that a man might be tried without being present, which was directly contrary to the oath of the jurymen, which run thus: 'You shall well and truly try, and true deliverance make between our sovereign lord the king and the prisoner at the bar'.
Lord Ellenboroughobserved that this oath did not apply to the trial of misdemeanors, and that in ninety-nine cases of misdemeanor out of a hundred, in the court of king's bench, the defendants were not present at their trials.
Earl Stanhoperesumed and observed, that, the noble and learned lord on the woolsack, only made parentheses in his own speeches, but the noble and learned lord who had just sat down made parentheses in the speeches of other persons.
Lord Ellenboroughsaid he considered himself as appealed to by the noble earl.
Earl Stanhopecontinued his argument. Would the noble lord say that it was consonant to the constitution, or to the common law of the land, that a person ought to be imprisoned for a misdemeanor, before he was found guilty of the slightest offence, and that he should be kept a prisoner till the trial, which his prosecutor might delay as long as he pleased? It was a great hardship in the law that a man should be kept in prison on suspicion. Suppose he could prove an alibi, how was he to do it when in prison? He might know where the persons to prove it were to be met with, but not know their names, so as to enable others to come at them for the purpose of his acquittal: and the learned lord who was so fond of parentheses in other men's speeches, well knew
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that a man not guilty of any crime, might be imprisoned for more months than the judges might punish with days another person who was found guilty.—What was the enactment of Magna Charta? It was 'that no freeman should be taken orimprisoned but by the lawful judgment of his peers, or by the law of the land.' He should be glad to know from the chief justice of the king's bench, if an information, filed ex officio by the attorney-general, was a judgment of a man's peers, or of the law of the land? To require bail, in all cases of informations ex officio, would be to make a law which fell heavily only on the poor, who were seldom able to find bail, and then, though ever so innocent, they must suffer imprisonment, perhaps to an indefinite length of time. The rich could always procure bail, so that it would but little affect them, which would be making a most invidious distinction between the two orders of persons; whereas the house ought to watch carefully over the rights and liberties of the poor, to give them all the advantages of the law, and to amalgamate as much as possible the difference and distinctions which fortune had placed between them.—The noble earl adverted to a story of two link-boys, who were taken up for uttering a libel, in the days of Wilkes and Liberty: one of them, called Jack, who could not read, handed it to the other, named Will, and begged he would read it to him; in the act of doing which, the beadle took them both up, and carried them before the magistrate. Jack pleaded that he, not being able to read, had only desired the other to do it for him. 'What are you?' said the magistrate. 'Please your honour,' answered Jack, 'I am an anti-ministerial writer.' 'What!' said the magistrate, 'how can you be a writer on either side, if you can't read?' 'Oh, your honour,' replied Jack, 'I chalks IS on the lords' coaches.' Such a poor anti-ministerial libeller as Jack, might, by an information ex officio under this bill, be imprisoned for want of bail to the end of his days. Under all the circumstances, considering one part of the bill to be unnecessary, and the other highly objectionable, he moved that the said bill be rejected.
Lord Hollandrose, and observed, that he had expected some noble lord who supported the bill would have attempted to shew its necessity. He had conceived that the noble and learned lord (Ellenborough) had intended to do so, and he was

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ready to give way to hear such necessity shewn. He considered the bill as an innovation upon the sound and wholesome principles of the common law. The principle of part of the bill, with respect to requiring bail, was first adopted in the 20th of his present majesty, in a revenue act, and it was found so injurious, that a bill was brought in, in the 38th, to remedy the evil, it being found that many persons had remained in gaol for a considerable time without the means of bringing on their trials. He deprecated the principle of applying to other cases enactments found necessary for the better collection of the revenue, and still more as it was merely stated in the preamble to this bill as a reason for its enactment, that it had been found convenient. Was this a reason for altering the law generally? With respect, to the process upon indictment and information, where was the necessity shewn for such an alteration? This bill besides went to require bail equally upon an indictment presented by twelve, sworn men, upon an information granted by the court of king's bench, and upon an information filed ex officio by the attorney-general. This was an innovation which he thought pregnant with the most injurious consequences; nor could he for a moment consent that a power of holding to bail should exist upon the mere, filing of an information by the attorney-general. His lordship quoted some legal authorities for the purpose of proving the ancient practice of the constitution, contended that by this bill a man might be tried in his absence and without his knowledge, and called upon those who resisted a bill which they conceived to be an innovation upon the prerogative, to resist a bill which was an innovation upon the constitution. If no innovation was to be suffered in the one case, none ought to be allowed in the other, at least without proving some strong necessity.
Lord Ellenboroughcontended, that considerable misconception had taken place with respect to this bill, which did not alter the law as it now stood, or at least very slightly, but merely defined more accurately the course to be pursued. As the law at present stood, it was well known that persons might be held to bail not merely upon indictment, but by any justice of the peace, upon a charge of misdemeanor. With respect to informations filed ex officio, by the attorney-general, he was a sworn officer: he never filed
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such informations without previous affidavits to substantiate the charge; and when an information was filed by the attorney-general, it was a presentment upon oath, as much as that of a grand jury. He did not see, therefore, that any injury was to result from holding to bail upon such informations. With respect to indictment and information, it should be recollected that a person accused had much better means of justifying himself in the latter case than in the former. Before a grand jury the evidence was ex parte, and the proceedings secret. A person accused had no means of punishing another for a false accusation before a grand jury, nor could he indict a witness who had given evidence before a grand jury for perjury; in the case of an information granted by the court of king's bench, the accused must be served personally with the rule to shew cause, which was only granted on affidavit; he might then file affidavits, shew cause, and have all the advantage of the argument of counsel. Information filed ex officio by the attorney-general being grounded on affidavit, a party falsely accused might indict the person making such affidavit for perjury. He thought the provisions of the bill were humanely adapted to give relief to the prisoner. As to his being tried in his absence, that was out of the question: persons tried for misdemeanors in the court of king's bench, were scarcely ever present at their trials. This bill would also prevent a person sent to prison for want of bail, from remaining there, as it might, happen for years, without the means of bringing on his trial; another provision in his favour was, that the judge who tried him, although not a judge of the king's bench, might discharge him if acquitted. He considered the bill, therefore, as favourable to persons in the situation alluded to, instead of at all tending to make their condition worse.
Lord Erskinecondemned the principle of extending regulations made with an immediate view to the collection of the revenue, to other cases. With respect to the bill, he admitted there was nothing in it affecting the Trial by Jury, as supposed by the noble earl (Stanhope), and that the objection of trying a man in his absence did not apply to it. He contended, however, that the bill did make an alteration in the law as it now stood, and for which no necessity had been shewn; namely, in holding to bail upon informations filed ex officio by the attorney-general. These

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information, it had been said, were filed upon affidavit; but the attorney-general was not compelled to file them upon affidavit, he might file them without any affidavit. It was not to be supposed for a moment that his learned friend, the present attorney-general, would do any act that was in the slightest degree improper; but he objected generally, to the principle of holding to bail upon informations filed by the attorney-general, which might or might not be founded upon affidavit, and thereby giving to the attorney-general the power of a grand jury. No necessity had been shewn for this bill, and he thought it much better that the law should stand as it did, than that they should run the risk of exciting discontent or dissatisfaction by altering it, and by giving power of holding to bail in slight offences, in libels, and constructive breaches of the peace, which might, at some period or other, be used oppressively against the subject.
The Lord Chancellorcontended that the only question at present was, whether there was so much good in this bill as to authorise its being sent to a committee. He thought there was. With respect to informations filed ex officio by the attorney-general, it was fitting that It should be stated, that although he might not be compelled to receive affidavits previous to filing such information, in substance it was so, no information of that nature being filed except upon affidavits; and with respect to the informations of that kind filed by him when he held the office of attorney-general, the parties might have been held to bail by a magistrate upon the affidavits. He thought the provisions of the bill were favourable to persons sent to prison for want of bail, in preventing the necessity of their remaining there for a considerable time without the means of release, and that with some alteration in the committee, it might be rendered unobjectionable.
Earl Stanhopewas glad that some alteration was to be made in the bill, as in that case it would be sent back to the commons. His lordship proceeded to shew the absurdity of contending, that because judges were sometimes honest men, or attorney-generals persons who could be trusted, therefore extraordinary powers should be vested in their hands. Were he to attempt to drive such a doctrine down the throat of the noble and learned lord, he was convinced he could not say Amen to it. Judges and attorney-generals were like
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other men, and he should give a specimen of them for the edification of the learned lord, who seemed to have forgotten of what sort of characters they were at times composed. His lordship then alluded to the opinion of the Judges, when consulted by Charles the First, as to his right to exact Ship-money, by which they declared that he had such right, and that he himself was the only judge of it; also to the answer of the judges in Charles the Second's reign, who declared it to be unlawful to publish any argument against government. His lordship next alluded to a case decided some years ago, in which the learned lord on the woolsack had laid down what he esteemed to be true law, that the decisions of the judges were to be regulated not by precedents, but by the written law of the land. This case he did not allude to from memory: he had seen it within these few days as it came from the short-hand writer. This the noble and learned lord might not esteem evidence; but he certainly would do so, when he informed him that it was sanctioned by corrections made in the hand writing of the learned lord himself. This his lordship esteemed sufficient to found him in maintaining that it was to the law of the land, and not to the opinion of the judges, that we were to look for protection.
The Earl of Lauderdaleenforced the inapplicability of revenue statutes to the common law of the country, and argued, that the advantages felt in carrying these revenue statutes into execution, would by no means enable us to judge how far similar or equal good was to be expected from an extension of the system. If we were once to embrace this doctrine, we might expect, to see the facilities afforded by the Income tax, which was a revenue statute, sought to be extended to the effect of forcing persons, at all times, to make a disclosure of their property, on the pretence that thereby bankruptcies might be diminished. Many other provisions of an equally dangerous nature might be grounded on the principle here laid down, which, on the whole, had his most decided opposition.
Lord Hollandconfessed that some of his objections had been removed by his noble friend (lord Ellenborough) and by the noble lord on the woolsack, but still he continued so decidedly hostile to the preamble, and to the general principle of the measure, that he could not vote for the second reading of the bill.
The house then divided on the second reading: Contents 17; Not-contents 7. Majority 10.