§ The order of the day being read,
Lord Hollandrose and said, be had little apprehension, when he first gave notice of his motion, that it would meet with any opposition. It was indeed a motion so consonant to parliamentary usage, so obviously enjoined by the duties of the legislature, and so natural a consequence of measures recently adopted by the House, that he had hoped it might have met with the entire concurrence of their lordships. In this, however, he was mistaken—he had received an intimation (for the politeness of which he acknowledged himself obliged) from a quarter where he knew that opposition in that House was seldom fruitless, and it had therefore become necessary for him to trouble their lordships more at length than he could have wished, to explain the grounds on which this motion rested, and at the same time to state as explicitly the ulterior objects to which, if acceded to, he should call their attention.—The motion he had to submit was merely for information, it was merely for a list of such 130 proceedings as had been instituted ex officio against state libels, by the Attorney General, for the last ten years. It would pledge their lordships to no further opinion; it might be granted with due regard to parliamentary usage, without implying the suspicion of abuse, and without entailing on the House the necessity of any subsequent proceeding. In the other House (if it was regular to allude to such things) it had, from time immemorial, been the usage to institute, at the commencement of every session, a Committee of Justice, an usage which indicates that the eye of parliament should be invariably fixed on the administration of justice, that parliamentary inquiry into the nature or number of any prosecutions in the courts below conveyed no censure on those courts, but proved that vigilance and policy, with regard to them, was the constant and uniform duty of parliament, which could not be relaxed without danger, but which could be exercised without implying distrust or suspicion. The House, indeed, had recently sanctioned the principle, for without imputing blame to anyone, they had, at the motion of his noble friend (lord Grenville) whose absence he regretted, ordered in this very session, (or at least in last session) a return of the number of convictions and other proceedings on felonies under the revenue laws, in aid of that judicious and benevolent inquiry, in which, at the instance of his noble friend, a committee of their lordships was at present employed. In addition to this general view of their duties, and exclusive of those primâ facie grounds on which he (lord Holland) rested some suspicion of abuse, their lordships, without agreeing with him in that inference, would be justified in requiring further information on a subject on which they had so recently legislated, for the purpose of ascertaining the uses to which the new law had been applied, and the consequences it had produced; and this argument was yet more forcible, when he recollected the circumstances under which the act he had alluded to was passed, in a thin House, at the lag-end of a session, and without any one person to explain the nature of its provisions, or assign the reasons on which they were founded. In such manner, however, was an act altering the antient law of the land, giving to the silent and spontaneous, act of one man, all the powers and consequences of a solemn proceeding of a grand jury, introduced and passed through parliament 131 in the summer of 1808. When he recollected that to justify that extraordinary innovation, to lay grounds for that unexpected attack on the liberty of the subject, to prove the necessity of arming the Attorney General with the power of holding to bail, and in some cases, of imprisoning whomever he thought, guilty of a libel; no papers were moved for, no inquiry instituted, no documents produced, nay, no statement whatever made, further than was to be found in the meagre, un satisfactory, and unsubstantiated preamble of the Bill; when he recollected this, he felt that his expectation of his motion being acceded to by the supporters of that Bill, was rather a proof of his own simplicity, than a fair consequence to be drawn from the former conduct of those noble persons. He complimented them on their consistency in refusing all information respecting the consequence of a law, for the enactment of which they had assigned no reasons, and for the allegations in which they had adduced no evidence; but surely it was natural for their lordships, who, if they had reasons for adopting the law, must have adopted it for the purpose of preventing offences and "curing the ends of public justice, to inquire whether those ends had been accomplished; to learn how often and with what effect the provisions of the new law had been resorted to; to ascertain whether libels had increased or diminished since these new powers had been granted; and, above all, to discover whether the convictions obtained bore a greater proportion to the informations laid, than they did before the latter were armed with such unusual, and, hitherto, unconstitutional consequences.—On such grounds, the House seemed to him called upon to adopt the motion which he should that night make; but he did not mean to disguise from their lordships, that he had further views in making it, that he thought other circumstances required inquiry, and that the information which his motion, if acceded to, would produce, would lead to the necessity of other proceedings. He would say little of his own motives in coming forward on the occasion, but he must trouble the House with one or two observations in disclaiming the intentions, which, he feared, those most adverse to his views, and those most eager in their condemnation of all prosecutions for libel, might concur in imputing to him. It was not his intention to meddle with the law of 132 libel; as he should afterwards explain, he did not feel his knowledge of the laws sufficient to justify him in attempting to do all which, according to his imperfect and perhaps theoretical view of the subject, he should think desirable to be done. Indeed, limited as was the object of his motion, and even the measures he meant to build on it, it might well be asked how and why he, who had neither learning nor professional habits to give his opinion authority, should venture to descend into a field which was so much better adapted for the display of those qualities, for which so many noble and learned lords in the House Were eminently distinguished. He would speak fairly on this subject, he would own that if, on a review of our history, he had found that all or even a large portion of the laws which had improved our constitution, which had vindicated the lights of the people, and which had purified the administration of justice, had originated from persons of that profession, or from individuals dignified with the honours of their profession, he should have felt abashed in coming forward on such subjects; but the records of our legislature proved, that our ancestors, though not in the profession of the law, had not hesitated to correct the abuses which had crept into it, and with few exceptions, that the most eminent magistrates had seldom been forward in supporting, much less suggesting, those measures, which, when adopted, had become the theme of universal praise, and the most perfect models of our legislative wisdom. Without going back to ship-money, dispensing power, and the opinion of the judges thereupon, he would confine himself strictly to such as were in parimateriâ with those which affected the liberty of the press. He had not, for instance, heard that, in the controversy in which Milton drew his formidable pen, the lawyers had particularly distinguished themselves against the practice of licensing books previous to publication. He did not find when the law by which that practice prevailed, first expired in Charles 2d's time, that it was the suggestion of the judges which occasioned its expiration. He could not learn what were the efforts made against it by the luminaries of the law, when it was revived under James the 2d. He thought he recollected that, at the final expiration of that pernicious and degrading custom in William 3d's time, the press did not receive the warmest support, nay, that if 133 did not escape some degree of opposition from those to whom the execution of the laws was intrusted. Certain he was that in latter times, the great and important victory obtained over corrupt usage and bad law, by an act, which he reverenced, not less for its enactments than for its author, to which his learned friend near him had so eminently contributed, and which was commonly known by a name which was sufficient to revive in his mind the strongest emotions of veneration and gratitude; certain he was, that that great act, which restored juries to their rights, and rescued the press from servitude and oppression, was carried through that House, not at the instigation, but in direct defiance of those who at that time presided in our courts of justice, and who had recorded on their lordships' Journals, their opinion against a measure which, in its effects, as in its principles, was acknowledged to be among the most beneficial laws that, in modern times, had received the sanction of the legislature. Indeed, if he were disposed to dwell on so invidious a theme, he thought that, from the very nature of their stations, he could deduce reasons why such laws scarcely ever originated with the bench, and might be considered as fortunate if they did not receive active opposition from that quarter. Conscious (as he was sure the present judges, and, above all, his noble and learned friend, who with so much advantage to the country presided at the King's-bench, must necessarily be) of the rectitude of their own intentions, they must naturally be less aware than others of the evils of discretionary power; fully determined not to abuse it, they were less likely to see the objection of the liability to abuse, which applies to all discretionary power whatever, and for this reason were little disposed to suggest, and seldom could be won to support, restraints on the exercise of authority. But such should not be the feelings of a legislature, such was not the duty of parliament; and there the constitution had wisely, prudently, and, perhaps, for this very reason, placed the right of legislation, of regulation, of correction, instead of blindly surrendering the enactment of laws to those whose province it was to execute them. He did not, therefore, think that a member of that House was disqualified from offering an amendment in the laws, because he had pot been trained in the practice of them; but he felt his own personal inability too 134 much to venture any extensive plan, and, indeed, he did not think that the occasion required it. He was not, therefore, about to propose any innovation in the principle of the law of libel; that law was not, in his view, perfect and faultless; but yet it might, and had been, administered without practical injustice; and though in his utopia, the punishment of libel might form a very short chapter indeed, he did not think himself warranted on this, or any other occasion, in making the remedy larger and more extensive than the evil. At the same time he must observe, that, in discussing any subject connected with the liberty of the press and the law of libel, it was necessary to keep in view those great principles which distinguished the crime of libel from most other offences. In one respect it was like treason; for treason and libel (he meant throughout public state libels, for private slander was a different, and in his mind a much more heinous offence), were both crimes directly against the government, in which the public prosecutor, and even the magistracy itself, were more or less the parties aggrieved. The wise institution of juries, especially since the Libel Act, in some measure provided for this difficulty; and in the cases of treason the merciful and enlightened law of this country had invented many fences against the hand of power, for the person accused. Yet, after all, the difficulty was more or less inherent in the nature of the thing; it must and it ever would be the bias of men entrusted with power, to confound successful but lawful opposition with treasonable resistance, and a powerful exposure of the follies or wickedness of ministers and men in power, with seditious libels and calumny. The ingenuity of man could not devise a system of law where in cases of this nature, he would not say the prejudice, but the inclination of those who were to execute the laws, was not generally to convict men accused of having transgressed them; and in libel it should further be observed, that contrary to all other crimes, that which approached the confines of guilt, was not only innocent, but meritorious and useful. Government could never feel an interest in proving a robbery on the roan who had not robbed, but it might feel an interest in convicting a political writer of a libel which he had never written. The innocent might be deterred from indifferent actions by a fear of being suspected to commit a robbery or 135 other offence; but this, though vexatious to individuals, would be no extensive injury to the community: but if writers, able to expose the imbecility of our councils, and to point out to the people and to parliament the cause of any public misfortune, were deterred by the apprehension of incurring the penalty of libelling, they would be deterred from a positive good—the community deprived of a real advantage—and the interests of the people deeply and perhaps irreparably injured. It was, after all, public discussion, open investigation of public affairs, and in one word, the liberty of the press which formed the most salutary check on political men, on governments, and even on legislatures themselves. These were in his judgment principles never to be lost sight of, either in regulating or in executing the laws regarding that liberty; at least these were the principles which he had imbibed at the earliest period, and which he believed and trusted he should never abandon to the latest hour of his life. He had learnt them from the first authorities, and many of those who had supported them in this country drew from them consequences with respect to Ex Officio Informations much stronger than any which he should urge to their lordships. Indecd he knew that many had doubted the legality of Ex Officio Informations altogether. In such an abstruse point he was not competent to judge; he was almost ashamed of giving his opinion, for none of their lordships could think it worth hearing. He would however observe, that although they seemed to flow from an anomalous, perhaps a suspicious source, though they might come in the shape of civil actions from the Court of Exchequer, where he believed the first trace of them was to be found, yet that was at such a remote period, (Ed. 3.) and there was not only such a stream of precedent in their favour, but the legislature had so often by inference admitted, had so recently and in such good times regulated them, that he did not understand what constituted legality, if they were not legal, especially as, on the solemn argument upon their legality, the Court was unanimous in favour of them. He knew that on that occasion an obiter dictum of Lord Hale was quoted from memory by a counsel, but Lord Holt said, that Lord Hale blamed the abuse, and did not question the legality of informations; and even if it were otherwise, the obiter dictum of a man great as Lord Hale, (and a greater 136 never adorned a court of justice in any country) was not suffcient to counteract the stream of uninterrupted precedent, the then admission, and the subsequent sanction, of parliament itself. He did therefore think they were legal, though he felt it presumptuous in him to say so much when he knew that such men as Glynn and Dunning, as well as others, had more recently questioned the principles and precedents on which they rested. The authority of these eminent men was yet more decidedly against the expediency and necessity of such a power being vested in the Attorney General. Many who now heard him might recollect, that on a motion of a near relation of a noble lord opposite, a minority of 78 voted in the other House for the suppression of that power; and that in that minority, besides other great names, were the distinguished lawyers, Serjeant Glynn, Mr. Wedderburn, and Mr. Dunning. The two last had risen to the highest judicial situations, and the last especially, (though he had not the good fortune of having known him) was by all who had lived with him acknowledged to be a man in legal acquirements equal to any that had preceded or followed him; in acuteness, subtlety, and argument unrivalled; and not less distinguished for his pure and ardent love of liberty than for his deep knowledge of the constitution of his country. The hon. and learned lord on the woolsack, had recently avowed that he was his tutor and preceptor in the law, and thought it no mean subject of boast that he was such a man's pupil and follower. This great man had thrown down the gauntlet, and offered to maintain in parliament or in courts of justice, that Ex Officio Informations were productive of nothing but mischief, were to all good purposes null and unnecessary, and were"; only calculated for oppression and abuse. Perhaps he was not far from agreeing with that opinion, but he did not mean to enforce it, or to avail himself of Mr. Dunning's great authority to urge the suppression of that power altogether. But he quoted him, and he quoted him with confidence, to protect him from the imputation of rashness in supposing that an enormous increase of a practice so liable to abuse called for inquiry. He sheltered himself under his authority in expressing an opinion far short of that eminent lawyer's on the subject, but he would acknowledge that if Ex Officio Informations continued 137 to increase in number and to be applied to such cases as they had been of late, the power had better be suppressed altogether at the risk of government losing the advantages, if any, which its exercise might occasionally afford, than be preserved at the much greater risk of sanctioning such abuse, and producing such hardships and grievances as must result to the subject from it.
He came now more immediately to the subject of his motion, and it would hardly be necessary to explain the nature of that power which it was his object to restrain and regulate. He understood that there were three modes of proceeding against libel, by civil action, by indictment, and by information. The proceeding by civil action stood on other principles; it was for reparation of a private damage or injury, not for a punishment of offence. His motion had nothing to do with it, nor did it regard the mode of proceeding by indictment, which was the regular, the safe, the constitutional and true way, generally, of proceeding against any public offence whatever—but of informations there were, he understood, two sorts, both leading to a criminal trial before a petty jury, without the intervention of a grand jury, and the solemnities which attended that previous proceeding. Both modes of information, in the Crown Office and by the Attorney General, had once been to practical purposes of a similar nature and effect, but by a law of William and Mary (a law the existence of which he trusted would not again be denied, as it had been in 1808) the informations of the Crown Office were in effect confined to private prosecutors, and were only granted by leave of the court, which was in the habit of requiring many circumstances of aggravation before it complied with such an application. The same act required arecognizance (now much too small) from the prosecutor, but as the crown could not enter into recognizances, and the high office of Attorney General was considered as less liable to abuse, and more exposed to responsibility and punishment if abused, his Informations Ex Officio were left. The grounds of that bill had been the numerous and vexatious prosecutions, and the expences to which parties had been put without being brought to trial, and other grievances of a similar nature. Such were the allegations in the preamble, and similar, he contended, would be found the grounds far some legislative interference on the 138 subject of Ex Officio Informations now. That they were liable to abuse, no man could deny. Those who disapproved them and those who thought them necessary, must concur in thinking them anomalous, at least, in their nature, and peculiarly liable to abuse. Sir Matthew Hale, whose opinion of their illegality he had presumed to question, did certainly, not in an obiter dictum, not on the report of doubtful witnesses, but in his excellent and deliberate work of the Pleas of the Crown, distinctly imply his distrust of the uses to which they might be perverted; did in the most marked manner record his sense of the danger to which a frequent recurrence of them would be exposed. He says, on criminal informations, that two things are observable; 1st—That they are not applicable to cases where life or limb are affected. 2dly, That in all criminal prosecutions the most safe and regular method, and the most consonant to Magna Charta and the statutes of Edward 3d, is by the presentment or indictment of twelve sworn men. When this great lawyer says, that it is observable that informations will not lie for crimes affecting life or limb, he does not mean simply to inform his reader of that fact, for in the very page of the work he had told him that they would not; but he says it is observable, meaning that an inference is to be drawn from it; and what was that inference? Why unquestionably that the law itself felt and admitted, that such proceeding was less favourable to the subject than the mode of indictment; that it mercifully would not expose the limbs and lives of the people to the risks of this more summary proceeding, though in cases leading to less fatal consequences it might allow it to be occasionally resorted to. Yet even in these it is further observable, says that learned and excellent judge, that the most safe, regular, and constitutional method of proceeding, is by indictment of twelve sworn men. He saw the anomaly, he perceived the danger, he warned the public ministers, in that memorable passage, of the consequences of too frequent a use of this formidable weapon, with which the mercy of our law would not even entrust its officers in contests where the existence of the subject was at stake. Oh, but (it might be said) lord Hale was averse to these proceedings, because in his time they had been much abused in a way that the law has since regulated and remedied; besides, it might possibly be added, on the 139 authority of Roger North, Hale, though an excellent and upright man, was in ail his judgments swayed by a bias to popularity, by a laudable but perhaps overstrained attachment to the principles of liberty. Be it so, and let us hear what the apologists, what the admirers of this power of filing Ex Officio Informations say, even when they are urging its propriety and necessity, of its nature and character. He would quote Blackstone, an author to whom all Englishmen were indebted for the perspicuity with which he had explained the laws of his country, but who was never accused of any violent spirit of reform, and whose book, with all its merits both of style and matter, was certainly a laboured, though in a great measure a just panegyric on the whole system of British jurisprudence. Blackstone was so attached to these Informations Ex Officio, that he alledges them (he read the words) "to be necessary not only to the ease and safety but even to the very existence of the executive government." He then had no undue bias against them; he at least might be heard as a competent and impartial judge as to the manner in which this power was to be executed, as to the nature of the offence against which it ought to be exclusively employed. He wished the House to attend to the words, and to bear in mind that they were the words of the defender of the powers at the very moment that he was vindicating them from the charge of illegality and supporting the necessity of their existence. He says then, "the object of the King's own prosecutions filed Ex Officio by his own Attorney General are properly such enormous misdemeanors as peculiarly tend to disturb or endanger his government, or to molest him, or affront him in the discharge of his royal functions. For offences so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the Crown the power of an immediate prosecution." Here then was the admission of its supporter in aid of the argument drawn from the nature of so summary a proceeding, and from the authority of Lord Hale, that it was a power peculiarly liable to abuse; that if legal, if expedient, if useful, it was only so upon extraordinary and urgent occasions: that it was a weapon to be drawn only in moments of danger, but that could not be wielded on every sight occasion, without injury to the society. By this criterion, by judge 140 Blackstone's own definition, let the late exercise of it be tried. Had it been a Goliath's sword which had never quitted the temple, but on great and critical occasions? Had it led to immediate punishments? His inquiries gave rise to a very different suspicion. He thought he could perceive in the frequency and nature of their exercise, that as informations had formerly been perverted from their lawful purposes to those first of extortion, and then of vexation, they had now been distorted to means of influence. If they were intended for the prosecution of offences in the punishment of which one moment's delay would be fatal, how and why did it happen that, between the filing of the information and the trial, not moments, not days, not terms, but months, and even years elapsed? How did it happen that after trial and conviction, weeks, months, and indefinite periods were suffered to elapse without bringing the criminals to judgment? Was not this a ground of suspicion? If this mode of proceeding had been resorted to, not for the punishment of offences, but for the prevention of lawful opposition in the periodical press what other symptoms of that abuse would appear, but a long period between accusation and trial, between conviction and punishment? The power was confided for the better prosecution of enormous misdemeanours; had it not been used for the purpose of terrifying writers into compromise, compliance, and servility? These were surmises indeed, but they were surmises founded on facts which he would broadly state to the House. He meant the fact of increased frequency of Ex Officio Informations. He had procured an account, and it appeared that for seven years inclusive the Ex Officio Informations filed had been 14; that within the last 3 years there had been 42. What! had enormous misdemeanours, had offences in the punishment of which a moment's delay would be fatal, increased in a ratio of 8 to 1 in the course of these last three years, and if not, was there not reason to suspect abuse, when the principle on which the power of filing such informations was so notoriously and evidently departed from? If he was not mistaken no less than 26 were neither brought to punishment nor even to trial? Why then, either Ex Officio Informations had been applied to cases which in Blackstone's opinion did not justify a resort to them, or twenty six enormous misdemeanours threatening the state with destruction, twenty six offences in 141 the punishment of which one moment's delay might be ruin, had escaped unpunished and untried, and yet the crown was on the head of our lawful sovereign, their lordships and parliament were in full possession of their privileges, and the constitution and the country had escaped revolution and ruin, in spite of these successful and unpunished crimes, with which they were encompassed. It was preposterous to say that such occasions only had drawn forth the 42 Ex Officio Informations; it would be childish and blind to notorious facts to deny, that they had been used for the purpose of intimidation and of influence. He wished to avoid the mention of particular instances, but when he found that in some instances the subordinate agents, the printer, the publisher, the editor, were informed against, and the author allowed to escape; in others, all were proceeded against; in others the authors only; and when he compared the cases in which the opposite principles of proceeding had been adopted, his suspicions were strongly confirmed. The law undoubtedly enabled the crown to prosecute the writer, the publisher and vender of a libel, and though he thought that power was given it not exactly with the view, not exactly eo intuitu with which it had been often exercised, yet he knew that many thought otherwise. He had differed with many of his friends in private on this subject, and battled it with them, but he owned he was surprised to find that the ideal case, which they had frequently selected, to expose the danger of his system, of dropping all prosecution of the subordinate agents when the principal was discovered, had been really and in earnest selected by the Attorney General of this day to apply it. He then stated, that during lord Grenville's administration there bad been but one information filed Ex Officio by his learned friend sir Arthur Piggott, to whom he must on many accounts always feel the strongest private affection and gratitude, but who was entitled to the public thanks of the country for his uniform and upright conduct both in and out of office, and who was in his humble judgment one of the first ornaments of his profession, and without exception as pure, as honourable and as constitutional a character as in the course of his life be had ever been connected with. He was a man he could not mention but to praise, he was one of whose merits he could never say so much as from the bottom of his heart he thought they were intitled 142 to. That constitutional lawyer had filed an information against the Morning Post for what appeared to him a libel of a nature to produce immediate mischief, perhaps mutiny itself, among our troops. It asserted that our troops were embarked in rotten transports, and it implied, at least so sir Arthur Piggott thought, that they were selected for the purpose because they were rotten and unsafe. If this were so, a worse libel there could not be, nor one which required more immediate prosecution. It happened, however, that before it came to trial the ministry was changed, and sir Vicary Gibbs, who succeeded his learned friend, entered very shortly afterwards a noli prosequi; and why did he so? because the author was given up. But he begged leave to observe, that though his name was surrendered, he was stated to be abroad, and no further proceeding was instituted. He (lord Holland) approved as much, perhaps, more than any man of this principle; he thought till this instance that he pushed it to the extreme, bat then it must be impartially applied; and when he found that in other instances, where the authors were known, the publishers, nay the printers, were selected by preference for prosecution and punishment, he could not help thinking some other motive, and not the principle so exclusively applied to the Morning Post, induced the Attorney General to adopt this conduct. If it was on the principle, it would have applied to all; if it was accident, it at least was singular that it fell on a newspaper so professedly devoted to ministers. He would ask in Latin words, which he recollected somewhere, though he knew not where, si justitœ causâ cur non in omnes? si misericordiœ cur in hunc? Was it or was it not the Protestant Letters which atoned in the Attorney General's eyes for the crime of exciting our army to mutiny, by false reports and base and unfounded calumnies on the government? When he perceived a vigilance, that in three years discovered near four times the number of heinous offences that his predecessors had detected in twice the time; when he looked at his rigour on one hand, and the solitary instance of his mercy on the other, it would not be charity, it would be blindness, not to suspect; it would not be candour, it would be hypocrisy, not to say that the Attorney General had exercised these powers for the purposes of influence, instead of confining them to the legitimate cases of necessity, for which 143 alone they were entrusted to him. He wished the House to consider what was the effect of such Information, even where no sentence was passed, no verdict obtained, no trial instituted; the bare operation of an Attorney General so accusing a man, put him at once to an ex-pence of from 60l. to 200l. without the possibility of being indemnified. It was to all intents and purposes a fine of that sum, at the discretion of the Attorney General to inflict as often as he chose, on "very writer, proprietor, editor, or printer of a public newspaper.—Such a power might be right, might be necessary, but surely it was one, in the exercise of which the officer entrusted with it should be narrowly watched, according to every dictate of public prudence, and every maxim of our jealous constitution. He would not deny that other extraneous circumstances connected with the administration of justice, rendered this jealousy with respect to Ex Officio Informations more necessary in his mind, than at other periods.—He felt indeed that the power of imprisoning criminals in distant and different jails, was a power which resided in the courts of this kingdom, and which, it was proper on various considerations of policy, of safety, and in some cases of humanity too, should reside in the court which passed sentence upon them; he was far from accusing (God forbid he should) the present judges, of having intentionally abused that power, but he did humbly think, that in effect the imprisonment of individuals convicted of the same libel in distant and different jails had operated as a severe and as an unequal aggravation of punishment, and he could not but think that it was not (to use a law phrase again) eo intuitu that the judges were entrusted with it. Another point of a yet more delicate nature was Special Juries: on this much irritation, much suspicion, prevailed, he knew not whether it was founded, he was sure that, well or ill founded, it ought to be discussed and examined.—He, however, did not mean to say more of special juries than the law entitled him; for of special juries, he might observe, as lord Hale had observed of criminal informations, that they could not try cases in which life or limb were affected; and this was observable with regard to special juries, for the same reason that lord Hale said it was observable with respect to informations. The plain inference to be drawn from it was 144 this, that special juries were less favourable to the defendant in criminal causes than common juries; and it is further worthy of remark, that till times com" paratively recent, (he believed Geo. 2d's) special juries could only be obtained by consent of both parties. Now all criminal informations were tried by special juries, and it would be trifling with their lord" ships not to add, that strong and deep impressions had gone abroad, that there were even more reasons than the law contemplated for thinking them, as at present composed, less favourable to the subject than that which is enjoined by the constitution of the country in cases where life or limb are concerned.—These reasons, and the conviction that the punishment of libel differed from the punishment of all other crimes in this particular, that far from checking or diminishing the evil produced by that individual offence, it extended and aggravated it by giving a wider circulation, by publishing, if he might say so, a cheaper edition of the formidable paper, he felt that more than common pains should be taken to prevent the prosecutions by Ex Officio Informations, from being more frequent than prudence would dictate, or the exigency of the times absolutely require. On these grounds he should on some future occasion propose the following regulations. 1st, A limitation of the time at which it should be lawful to file Informations for libel, after the first publication; for it was surely obvious, that while the time was unlimited, every periodical work might be for an indefinite period entirely dependent on an Attorney General: 2dly, He should propose to fix a period at which the Attorney General should, after filing an Information, be compelled to bring the accused to trial, to drop the prosecution, or to assign reasons and ask leave of the court for further time to collect his witnesses: 3dly, He should wish to limit the period at which the persons convicted for state libels, should be liable to be cal led up for judgment; for a verdict in the present state of the law, might be perverted from the general purposes of punishment and example, into the means of intimidation and influence.—He should also move in the course of the session, unless such a measure came recommended from the other House, the repeal of that part of the 48th of the King, which gave to the Attorney General the power of holding to bail on Ex Officio Informations for misdemeanors.—He was aware that there 145 were two other remedies, one of which was founded on substantial justice, and the other enjoined by the principles of the constitution, which he owed some apology for not bringing forward. The first was that to which our ancestors in William and Mary's time resorted to on a similar occasion; namely, some provision to indemnify those who were accused, and either not brought to trial or acquitted, from the heavy and unjust losses they had sustained. But here he should be met with the principle that the crown paid no costs, and though injustice could never be right, he was not sufficiently acquainted with the practice of our laws to be able to estimate the consequences of introducing so new a principle into them, nor yet had he knowledge of details, or ingenuity enough to devise a method of indemnifying such persons without doing so. If at any future period persons of more authority and more conversant with the law should devise them, he should hail the auspicious moment, and give such humble support as he was able to a measure which professed to adapt the views of substantial justice, to the maxims and practices of English law in this particular. The second mode, which according to strict constitutional principles he ought to adopt, was a censure on the Attorney General.—But he would briefly state his reasons for not resorting to that mode of proceeding. Exclusive of his respect for the character of the individual, of whom though he knew nothing from personal acquaintance, he had always heard the highest character for learning, for abilities, and for a disposition amiable in private life, he did not wish to make it a personal or a party question. He knew that in that case, those who were attached to the learned gentleman by the ties of private affection, those who were connected with him in political sentiments, might feel themselves bound on this occasion to defend, and might afterwards think that their efforts in his defence pledged them to the support of the cause in which his interests were engaged.—His object was to avoid any such consequences. He had not taken up the question in a party view, though he did not mean to disapprove of party, which from his soul he believed necessary in our mixed constitution to preserve the rights of the people, to resist the encroachment of power, and to prevent the entire subversion of all authority but that of the crown.
146 But questions regarding the administration of justice should not lightly be mixed with party or political struggles. The sentiments he had expressed that night were not newly or suddenly taken up, he had always held the same principles, he had sometimes in that House, he had sometimes elsewhere, endeavoured to promote them, and whether supporting government or opposing it, he trusted he never should abandon or forget them. His lordship then proceeded to obviate some general objections, which he apprehended might be urged against any restraint or regulation on prosecutions for libel. He maintained that complaints of the increased licentiousness of the press had been common to all times, that it was always in the mouth of men in power and public characters, and that he could not. fix on the period of our history when, if the testimony of cotemporaries was admitted, it would not be found that the licentiousness of the press had reached its summit. We should from this consideration listen to such suggestions with doubt; we might thus learn to calm and moderate our indignation at the productions of the press which offended us.—Viewed through the medium of a few years, libels at the time considered as atrocious often appeared innocent, and the punishment to which they had been exposed disproportionate to their guilt, and calculated to excite disgust at the laws rather than disapprobation of the libeller. Let us then ask ourselves, what will be the opinion of future limes of those papers at which we feel indignation, and check our resentment by appealing as it were to the calmer judgment of posterity, collected from the manner in which we contemplate the conduct of those who went before us. We should indeed find that our best classical authors, Swift, Addison himself, Pope, might have been punished, if all that had been considered as libel had been tried, convicted, and condemned. Would any writer now be permitted to speak of a living judge, as Pope had done in the line,
Hard words and hanging, if your judge be Page?He did not mean by this to justify the abuse of the press, God forbid! But he did mean to deprecate all passion and irritation in the punishment; he did mean to recommend an uncommon degree of temper, forbearance, or, if they would have it so, connivance, in the execution of the laws against state libel, for it was 147 his conscientious conviction, that the prosecution and punishment of all that the law could construe into libel, would have the effect of degrading the press, and especially the periodical press; of deterring men of character and talent from becoming authors, and of throwing that powerful engine exclusively into the hands of the servile sycophants of power, or of needy adventurers of desperate fortunes, who having nothing to lose could only raise themselves to importance by slander, calumny, and falsehood. He ridiculed the notion that before the French revolution those liberties might be allowed with advantage which would be pernicious now, under circumstances so different from those which accompanied that event, and at the distance of ten or fifteen years. It was like the character in a popular farce who could make fine speeches, do grand things, and conduct himself with wisdom, propriety, and justice, before he had the measles, but seemed to think that having had that disorder fully accounted for and excused all his subsequent folly and incapacity. Among ail the political crimes of our enemy, none in his opinion was more disgusting than his tyrannical restraint on the press. Englishmen might indeed, in a narrow view, feel some exultation, though not of a very philosophical nature, at the adoption of such measures by their enemy—for these shackles on liberty always proved restraints on the talents and exertions of the country in which they were imposed and endured; but if Buonaparté hated the liberty of the press in France, why, he would ask, should that which was his natural enemy elsewhere be branded as his friend in this country? Did the nature of things change from one side of the Channel or the other? Or was it to be supposed that even the grossest licentiousness of the press, licentiousness which would be hurtful to society, disgraceful to civilization, and cruel to individuals, would in this country, among a people so attached to their language and their habits, and justly inspired with such strong national pride, reconcile them to a foreign invader, make them prefer Frenchmen to Englishmen, and lead them to surrender their rights and their constitution to the tyranny of a foreign usurper. It was talking like children to hold such language and to express such preposterous apprehensions. Let us not load even wickedness itself, with imputations to which it is not in truth exposed. The 148 abuse of the press, libel, slander, and calumny, might be and had been productive of great injury to mankind; but never had there been an example of its reconciling a great and powerful nation to its enemies, of its paving the way to foreign dominion and usurpation. The antient republics, in which the most disgusting licence of speech was permitted, might, in the judgment of many men, have constituted unhappy societies, the indulgence of satire and slander led to ingratitude, to persecution, to injustice; but of all nations, those very states which had most extravagantly indulged in such excesses, and had most bitterly suffered for so doing, were those which had made the grandest efforts in proportion to their natural resources against foreign invasion and encroachments. In the French revolution itself, whatever the horrors of it might be, and whatever share the disgusting and defamatory libels with which the press then teemed, might have had in producing them, it would be untrue and therefore unjust even to them, to say that they palsied the efforts of the country, or assisted the cause of the foreign invaders. They might perhaps have contributed to the horrible bloodshed which, either in massacres or in judicial murders, flowed throughout that country during that dreadful period. But at least they did not enable the noble lord opposite to march to Paris, they did not prepare the people for submission to the duke of Brunswick or the Austrians. It was idle therefore to call the licentiousness of the press the ally of our enemy, and it was safer to revert to the sober and constitutional principle which had guided the wisest nation of the world, and had been well imitated by our ancestors, namely, that in such pro-portion as the exigencies of the state increase, in such proportion as the defence of the country calls for greater sacrifices, in such proportion also should increase our disposition to enlarge the privileges, to; redress the wrongs, and even to regard with temper and indulgence the occasional excesses of liberty in the people. His lordship concluded by moving for, "An account of all Informations Ex Officio in cases of Libel, from the 1st of January 1801 to the 31st of December 1810, specifying when the same were filed by the Attorney-General, together with the Proceedings had thereupon and the dates, thereof."
§ Lord Ellenboroughhad expected that, in I bringing forward the motion, which had 149 been just submitted to their lordships, the noble baron would have condescended to specify some instances of abuse, oppression or grievance, as the foundation for such a proceeding. He had listened with anxious and painful attention to the whole of the noble lord's speech, in which he could find but one instance adduced as a proof of the abuses alleged to have prevailed, and even that instance was not on the side of severity—it was a case wherein a noli prosequi was entered by the Attorney General in the progress of an information against the Morning Post. Was it then on account of such an exercise of discretion, at the side of lenity too, that their lordships were called upon to range through such a mass of papers as the motion comprehended? Was it on such ground as this, that the files of the court of King's Bench were to be rummaged and ransacked, that a mass of useless and unnecessary papers should be cast upon their lordships' table? The motion of the noble baron, in extending to the last ten years, included the period during which so humble an individual as himself had the honour of filling the situation of Attorney General. Whether the noble lord meant to refer to his conduct, he knew not; but as the noble lord was silent with respect to it, and made no allusion to it, he did not think it necessary to defend what had not been attacked; at the same time he must say, in reference to those learned gentlemen who had succeeded him in that office, that their discharge of their public duty, and their discretion in the discharge of it, ought not to be put to the question upon grounds lightly or captiously taken up. He did not see why persons in such stations ought to be made the objects of invidious investigation, upon grounds of hazardous conjecture. As for the information desired, what could the noble lord learn from the documents he called for, which he did not know already? If there were any matter of special interest to which he was anxious to refer, every facility in his (lord Ellenborough's) power should not be wanting to the noble lord, to enable him to come at the required fact; but he was afraid that this was not the sort of facility that was either wished for or expected. He had reason to know that the facility with which inquiry in certain cases had been made and information gained, was painful to the parties making it. During the whole time, that be (lord Ellenborough) had presided in 150 the court of King's Bench, he knew that the greatest facility existed in getting at the files of these Ex Officio Informations; and there was not a document of which the noble lord, and any one else, might not soon be in possession. But it was not a search for information that the noble lord proposed to himself; it was not in order to be informed, that he had made the present motion.
The noble lord had talked in a high tone of an obiter dictum of lord Hale's. If lord Hale had ever made the observation, which he (lord Ellenborough) believed he never had, his judgment must have been as dormant as, in such case, he must have wished the law itself to have been. But he never could have expressed any such opinion. It was not to be credited that a man so perfect in his knowledge of the laws and the constitution as lord Hale was, could possibly have done so. The law of Informations Ex Officio not the law of the land! What was law if this was not? for it had been made law by the same authority that had made all the laws that held the government together. It was as much law as that which gave the noble lord the right of speaking in that House—it was as much law, as the law which put the crown of this realm on the brow of the sovereign. He would recommend there-lore to the noble lord to trace back the law of informations. He could recommend him a book upon that subject, and would refer him to the case to be found in page 119, of Shower's History of the Law of Informations. He would there find the law of informations to be as old as the common law. If the noble lord-questioned the expediency of the law, why not propose that it be repealed? That would be the direct and manly course. Nothing could be more mischievous, than by declamatory speeches in that public assembly to impress upon the public mind the false notion that Informations Ex Officio were not perfectly-legal. The noble lord may if he choose propose to amend the practice of filing Ex Officio Information; but that practice was conformable to law,—law undoubted, and recognised and indisputable, he should not venture to question its legality. (Here lord Holland intimated that he had never disputed its legality). True, the noble baron had not in words indeed questioned the legality of the practice, but the whole drift and spirit of his reasoning went directly to inforce the illegality of it. The 151 authority of Mr. Dunning, unquestionably very high authority, and which had been so often cited by another noble lord, had been here mainly relied on against this Jaw. He was certainly good authority, but not, perhaps, at the side at which he had been quoted, as he had himself taken an active part in libel prosecutions, and often pocketed the fees under this very law—(A laugh.)
But it seemed that it had been made more grievous by recent enactments. He had, he would confess, expected something from the noble lord that night against the Indictment Bill; and he was not disappointed. When he recollected the opposition made by the noble baron, he did not conceive that the opposition would rest there; in this too he was not deceived; for the whole speech of the noble baron that night was but a continuation of his former argument—a 'nec dum finitus Orestes' It was scarcely necessary for him to inform their lordships, that the bill, to which he alluded as having been formerly opposed by the noble lord, was an act made within the last four years, giving the Attorney-General power to hold persons to bail, against whom Informations Ex Officio had been filed. On receiving notice of the noble lord's present motion, he was curious to know how often this bill had been acted on. He inspected the necessary documents accordingly. And now he would ask their lordships how often did they think this bill had been acted upon since its enactment? but once in the whole four years; there was but one solitary instance of its being acted upon—and he would tell their lordships in what case that was—the case of a man, one Gorman, who, being under prosecution for a libel, after an information had been filed against him, had the hardihood to publish it again. And yet this was the mighty abuse of that act; this, forsooth, was one of the ruinous stretches of power which threatened the government with subversion, and put the subjects of George the third on a par with those of Buonaparté! He knew nothing more to be deprecated in that House than violent and vague declamations, resting upon no grounds (hear! hear! from lord Holland.) He was aware to what he subjected himself by what had fallen from him. The noble lord might call all that he had said a mere tirade; but in all that: he had said, did he not bottom himself on facts. (Hear! hear! from lord Holland.) The cries of the noble lord could not convince 152 him that he had not. He was used to tumults and alarms—they never yet could put him down. Were he to die the next instant, he never would yield for one moment to tumult. The noble lord, if not towards him (Lord E.), might at least in courtesy towards the House, have adopted a different tone of exclamation. He repeated that he knew nothing more mischievous in its tendency than inoculating the public mind with groundless apprehensions of imaginary evils. Where there has appeared to him any instances of going beyond the limits of a wise discretion, it had never passed unbranded by him. His abhorrence of the licentiousness of the press was founded upon his love of liberty, which burned as strong in his breast as in that of the noble lord. If there was one mode more efficacious than another to ruin the liberty of the country, it was by generating that groundless distrust in the great officers of justice, which such needless and vexatious jealousy was calculated to inspire.
Lord Hollandclaimed of their lordships' justice, their attention for one moment. He appealed to their recollection, both as to what had been said by him, and as to the manner in which it had been attempted to be answered. He would not say, merely, that the learned lord had not stated the facts, but that he had stated what was directly contrary to the facts; the learned lord had charged him with denying the legality of Ex Officio Informations. He had not only not denied their legality, but had avowed his conviction of their legality. When the learned lord complained of want of courtesy, he should himself have shewn more courtesy to the recollection of the House (here lord Ellen-borough motioned to rise.) The learned lord who had been so long in the habit of enforcing the laws elsewhere, ought to be, at least, so far skilled in the laws and orders of that House, as to know that no noble lord had a right to interrupt another while in the act of explanation. There were other points to which, in strict explanation, he could not now perhaps refer, though it did fall within the limits of general parliamentary explanation to advert to them. He had stated many other grounds, besides the solitary one commented on by the learned lord. Why was the learned lord wholly silent upon the increased numbers of informations which had been filed within a limited period? Was not this a ground, and had he not stated it? 153 Had he not also stated the time which in many instances had been allowed to elapse between the filing of the information and the trial? Was his no ground? Had he not also mentioned the practice of hanging over the heads of the persons accused, informations which had been afterwards abandoned? The learned lord's speech, he repeated, was throughout a complete mis-statement and misapprehension of his facts and reasoning. He should reserve what else he had to say for his reply at the end of the debate.
§ Lord Ellenborough, in explanation, said, that while the noble lord was professing not to dispute the legality of information, he was, in fact, questioning it.
§ Earl Stanhope,in justice to his noble friend, could not help stating, that in point of fact he certainly did not question the legality of Informations Ex Officio. What he did question, he did not believe even the chief justice himself could contradict him in, and that was, that the mode of exercising the power of filing Informations Ex Officio might be such as to become illegal. What! when those informations, invented for the purposes of expedition, were suffered to hang protracted over the head of an individual, would any man say, that such an exercise of them did not become illegal? No man could say otherwise. Yet this was all his noble friend asserted; and the misrepresentation to which he had been subjected must of course have arisen from his being misunderstood. He had asserted, also, that the hanging those informations, suspended in terrorem over the heads of individuals, an act so different from their original intention, could be done for no other earthly purpose than that of upholding influence. To this no answer whatever was given; and yet his noble friend was accused of uttering it "lightly and factiously," (" captiously," across the table) well, no matter, they were both nearly the same (A laugh.) If he, for instance, made any attack on the chief justice, or attempted to give the noble and learned lord on the woolsack a trimming, no doubt in the estimation of them both there would no be a more "factious" man in the kingdom than their humble servant, This was a very serious subject, and his noble friend had treated it as such; he had quoted the opinion of Mr. Dunning, the ablest lawyer that ever graced the English bar, that Ex Officio Informations, though coming within the letter, did not come within the spirit of the law, and 154 ought to be done away with as they might in some instances become tyrannous and oppressive. It was agreed on all bands that abuses might creep into the system, and those abuses could only be stopped and corrected by parliamentary vigilance. One abuse, for instance, was the delay which had been already alluded to. This could only be encouraged for the purpose of undue influence. Their lordships ought carefully to distinguish between two species of libels. The one species was libels against individuals, and these it was their duty, as they regarded the prosperity, and honour and character of the country, to discourage. If such libels were suffered, society could not exist. Truth in such cases was no justification. He would put a case:—suppose a man was in the habit of getting continually drunk (a thing, by the bye, which he never did himself), and that a fellow in the street thought proper to follow him along the flags wherever he went, shouting it out all the road behind him: now here the charge might be very true; but still no one could say that the libeller was justifiable. The publication of such libels had a direct tendency to a breach of the peace; for every man could not be supposed to possess the politeness of lord Chesterfield, concerning whom, as connected with this subject, he would relate to them an anecdote. His lordship was walking along the flags, and an impudent fellow pushed him away, saying, "I never give the wall to a scoundrel." Lord Chesterfield immediately took off his hat, and making him a low bow, replied, "Sir, I always do." To the licentiousness of the press no man could be a greater enemy than himself; to its liberty no man could be a greater friend. All public questions ought to be open to the press; every subject connected with religion, philosophy, government, of the administration of justice, any thing which could by possibility be supposed connected with the benefit of the nation, ought to be duly and freely discusssed. This was his idea; and he thought at the same time also, that the licentiousness of the press was the deadliest enemy which its liberty had. He would give them an anecdote on this subject, and perhaps the best history of the country was the history of its anecdote. He had an old friend, an amiable, worthy, able man. This friend and he were always differing, but still be did not like him the less, because he knew he spoke from conscience; and when a man 155 does that be is entitled, if not to respect, at least to tolerance. They differed, among other things, about the press—he was a friend to its liberty—his friend argued for its restraint. He (lord S.) could not help, however, severely Condemning some scandalous libels which were daily pouring forth at that period against lord Bute and the then princess of Wales; but his friend replied, "Oh! never mind them, only let them come to a proper height, and in time the evil will cure itself;" meaning thereby, that its licentiousness would at last come to such a pitch that its liberty must be checked in order to restrain it.
§ Lord Erskinesaid, that in his way of considering the subject before the House, it was not necessary that his noble friend, who had moved for the informations tiled within the last ten years, should be able to establish by evidence a probable ground of abuse to entitle him to have the papers he asked for. It would be sufficient for him to show that from any cause, from the increase, for instance, of printing and of periodical publications, a very large body of the people were daily subject, in the exercise of useful and honest occupations, to a prosecution, not attempted to be vindicated by the greatest law authorities, but as an anomaly in the constitution for the punishment of enormous offenders against the very existence of the State. On this principle he admitted that Informations Ex Officio were as ancient as the law, and were suffered to remain by the statute of king William, when informations by the King's coroner were taken away. But if these informations, instead of being applicable as formerly to a very small number of persons upon extraordinary occasions, became applicable to ordinary abuses or mistakes by all persons engaged in printing, it became the duty of parliament to enter into an inquiry upon the subject, and even without the suggestion of an abuse, to provide a protection against State prosecutions for misdemeanors analogous to those which the statute law had long enacted for the security of persons arraigned for treasons against the State. In ordinary criminal cases, the law, though universally indulgent, thought it necessary to keep within limits the privileges of parlies accused.—A man, accused of felony, may be prosecuted at any period. There is no statute of limitation to secure him when his witnesses may be absent or dead. He hears the indictment read for the first time by the clerk of the arraigns 156 when he is put upon his trial; he bas no-copy of it delivered to him; he knows nothing of the case intended to be made against him; he is a stranger to the witnesses who are to prove it, and he can have no counsel to make his defence to the jury, but only to argue matters of law with the" court. Such is the naked condition, of a prisoner, when his adversary is a private man. But when he is accused of high treason, he is covered all over with the armour of the law. He has a giant to fight with when he has to encounter the whole weight and influence of the Crown, and he is protected accordingly. The indictment must be preferred within three years from the commission of the crime. Every principle of limitation of time, as enacted in cases of treasons, surely applies, with tenfold force to prosecutions for libels, but above all to periodical publications. Treasons may be most secret, and most generally are so. They may not be discovered till long after three years; but still the law, in its general indulgence, imposes that limitation of time; treasons also, when discovered, oppose other difficulties to conviction. It may be much longer before the traitors can be detected, and longer still before evidence can be obtained. But libels in periodical publications are known to the crown the instant they are published, and government has already obtained laws which make known to them, immediately and universally, the responsible persons; the names of all the proprietors, publishers and printers, being registered in the stamp office, not only for purposes of revenue, but expressly for the detection of offences against the State. Upon what principle, then, ought such prosecutions to be delayed? There ought, on the contrary, to be a very short limitation of time indeed to prevent their being made instruments of terror, or of dangerous influence over the press. A copy of it must be delivered to him ten days before the trial. He must have the whole pannel of the jurors who are to try him, with their descriptions and places of abode, so as to entitle him to sift their characters for objections for cause, and even for 35 capricious challenges without any cause at all. If he dislikes the physiognomy of a juror, he sets him aside; he is entitled to full defence by two counsel to speak to the jury upon his whole case. The treason must be established by two witnesses, though one is sufficient to convict even in any other capital case; 157 and be must be brought to trial without delay or be set at large. Nothing could be more striking than the illustration of these principles, in Hadfield's case, for shooting at the King at the theatre. In most other countries he might have been trampled under foot or carried to instant execution; but here he was protected in the manner he had described. Though insanity was his defence, he was taken to be sane when he demanded all these privileges in open court, and he called upon the court to assign him (Lord Erskine) to plead for him, who had no privilege to refuse it. Such examples, instead of weakening government, was a bulwark to support it. Now, why should not persons, accused by the Attorney General, by Ex Officio Information, have analogous protections. They have the same antagonist to fight with, and why not the same armour to cover them? Ail the power and influence of government are exerted equally against them, and the cases are precisely the same, except that the crown does not fight with weapons that are mortal; but the wounds they inflict may be desperate. But they not only have not analogous protection, but they are exposed to greater dangers than in eases of ordinary crimes, by the abuse of special juries. He did not mean to complain of the institution, but to want of proper regulation. He had long had the greatest respect for many gentlemen who served upon them, but the most honest men were not equally tit for all' trusts. They were often deeply connected with government, engaged in the collection of the revenue, and magistrates in every county in the kingdom. The list was not returned by the Sheriff, but was made up by the Master in the office of the King's Bench. He did not believe that an honester man existed than the individual who held that office, but that was no answer to the subject who was cut off from his choice out of the general mass of the county where he is tried. He thought therefore that it would not only be just, but the wisest policy, to take the whole subject into immediate consideration. The administration of justice, to be useful, must be popular; and it never became unpopular but through abuse. He had always stood up for the character and honour of the law as the sure foundation of all social order and happiness, but for that very reason he would always give his voice, by salutary improvements, to rescue it from suspicion and to deliver it from reproach.
The Lord Chancellorobserved, that he could say with his noble friend that he also felt grateful for the honours with which a gracious master had rewarded his humble services; and that humble as his efforts might have been, those who were to inherit those honours from him would know that he had done his duty. As to the distinctions which had been drawn between the proceedings in the case of treason and libel, it should be remembered that in the former the accusation rests upon general principles—in the latter upon an alledged specific fact. He believed that no Attorney General had prosecuted more libels than it had fallen to his lot to prosecute when he held that office. He acted on a conviction at that time, certainly, that the publication of libel was one of the most formidable weapons then wielded against the constitution; and that it was an engine which was directed to the subversion of the government of the country. It was grateful to him to reflect that he had, by his conduct then, done his part towards its preservation. As to what had been introduced on the subject of special juries, he could not perceive how that was at all connected with the object of the noble baron's motion; but he would remind the House, that if any alteration was attempted in the present mode of regulating special juries, the same principle would equally apply to some change in the system of summoning common juries, who were all returned at the discretion of the Sheriff. (Hear, hear!) He did not know the meaning of this exclamation, but he could assure noble lords he spoke for the purpose of being heard. It was his decided opinion, that the mere fact of the number of prosecutions having increased, by a considerable number, in the last ten years, was not a sufficient ground for inducing them to accede to the motion of the noble lord. He must do that noble lord the justice to say, that he had, when the late act respecting Ex Officio Informations, authorising the Attorney General to hold persons against whom they may be filed to bail, was first introduced, given to it his strongest opposition. He him self unquestionably had approved of it, possibly from prejudice, and possibly from the esteem in which he held its authors. He knew well that the person who now filled the office of Attorney General, for whom he felt the most sincere respect, had been greatly misrepresented. This, however, he did 159 not lament—it was the natural and necessary consequence of the authority which he exercised, and it was also the privilege of a free people to view with distrust, and even with dislike, the necessary exercise of that authority. At the same time he must say, that a great deal of misconception prevailed in the public mind on the subject, that if well and truly understood, it would appear that no public officer holding the same trust had ever displayed a larger portion of mildness and forbearance.—It would be seen that he was the most forbearing prosecutor in the kingdom. If the cases demanding the filing of Ex Officio Informations for the last 29 years were laid before the House, they would be astonished at the forbearance of that officer. The House would see that the Attorney General not only did not, but that he dared not use that species of oppression imputed to him. His trust was of a description which it was not under the circumstances of the responsibility which he incurred, probable, if possible, that he should venture to abuse.
Much had been said by the noble lord (Holland) of the great legal authorities that had set themselves against the general principle of Ex Officio Informations. The practice of filing these informations, be would readily admit, was always most unpopular, and, in the course of his professional pursuits, he knew many young men who were, when called to the bar, most eloquent in their condemnation of it. Somehow or other, however, he afterwards found, that when those very men were employed by government and taken into consultations, that all the odiousness of the practice vanished from before their eyes. However warmly they might have contended against these informations when engaged against the crown officers, there was, he believed, no instance of their refusing the Attorney General their assistance, whenever he invited it, in carrying on the same Ex Officio Informations. After all the statements which had been made of the rigour exercised by virtue of the late act, only one person had been held to bail, and it was in that aggravated case of an immediate re-publication of the libel, which had been already noticed. He recollected well, that when he was Attorney General, a singular mode of doing the same thing was practised. As the prosecutor of a libel, he was obliged to state the libellous matter in the record, and this record of the indictment was, in many 160 instances, itself immediately published, and the circulation of the libel thus ingeniously extended. It was impossible not to be amused at the contrivance, but it was an evil which imperiously required a remedy. With respect to the circumstance of the Morning Post, he was desirous of stating that the principle which governed him, on those occasions, was to prosecute all the parties implicated in the publication of the libel, and he had uniformly found, that, by extinguishing the papers, he got rid of the authors. He must oppose the motion, because the very adoption of it would in some degree sanction a suspicion that there was something improper in the administration of justice. The substantial interests of the public required that they should give every prima facie presumption that persons who filled offices of trust, particularly those relating to the administration of the laws, discharged them with fidelity and integrity; and no clamours should be excited against them, except in cases of such aggravated misconduct as called for the severest reprobation. As for the general topic of the liberty of the press, he would be judged by his acts what his sentiments were on that subject.
The Earl of Grosvenorobserved, that after the able speech of the noble baron near him, it was unnecessary for him to obtrude a single word on their lordships. That speech had remained unanswered and unanswerable; except the misrepresentation of the noble and learned lord (Ellenborough) could be considered as an answer. He felt the deepest regret at hearing the sentiments that fell from that noble person. He thought that his noble friend had laid before the House good and substantial grounds for his motion, and he should, therefore, support it. Enough had been stated to justify an investigation into the practice of the Attorney General's office.
§ Lord Redesdalesaid, that as it had not been his lot to institute any prosecutions for libel, while he was Attorney General, he could at least give an unbiassed vote on this occasion. From his acquaintance with the gentleman who now filled that office, he was enabled to say, that he was sure no man could feel more pain than he did in discharging the irksome duties of his situation. It had been insinuated, that he acted by the advice and under the direction of ministers; he would not deny that this might be sometimes the case; but it ought 161 to be remembered, that he alone was responsible. If any blame was intended to be cast on him therefore, it should be done directly and explicitly. If it wars the object of the noble mover merely to regulate the law as it now stood, this might be effected without the production of the document for which he had moved. Upon the general subject of the freedom of the press, it had been said, that where this freedom existed, no despotic government could long stand, and that without it no free state could long maintain its independence. If this was true, how powerful an engine must it be, and how careful ought not every legislature to be to prevent its exceeding its proper bounds! And could any man assert that the press was not now free in this country? With the examples before them of its licentiousness, could any noble lord seriously say, that the restrictions of the law had operated to crush or annihilate a due spirit of free discussion? Without some means of prosecution it would be vain to deprecate that licentiousness which existed now, and, perhaps, had always existed, and he was not disposed to think the law in its present state harsher than was necessary for the attainment of this purpose. If, however, the noble lord (Holland) was impressed with an unfavourable opinion of it, the most direct and proper mode would undoubtedly be to-propose at once either a total repeal of the existing law or some modification of it.
The Marquis of Lansdownesaid, that after the very able and eloquent manner in which the subject under discussion had been treated by noble lords of distinguished talents and learning, he could have been well satisfied without offering himself to the attention of the House. But, as he was anxious that the vote which he should give, if his noble friend (Holland) should divide the House, might be subject to no misconception, he begged shortly to state the grounds on which that vote would be given. And he was the more anxious to be clearly understood, after witnessing the extent of that misconception which prevailed in the mind of the noble and learned lord (Ellenborough), upon what had fallen from his noble friend. Feeling, as he did, that the English language did not afford terms of sufficient energy and expression to enable him to signify the surprise he felt at that misconception and misrepresentation, he wished to guard particularly against a similar danger. He fully concurred in the opinions of the learned lords 162 who had spoken that night, that the process by Information Ex Officio was sanctioned by the whole practice of the constitution, and bottomed on the earliest precedents of our history. He would go farther, and say, that he believed it to be a most necessary and indispensable instrument of the government. He had, during the short time he had passed in office, seen abundant evidence of the expediency of this mode of proceeding in cases connected with the execution of the revenue laws. Such a power he therefore conceived was wisely and properly lodged in the hands of the officers of the crown. But did any thing which his noble friend had said tend to question this proposition? So far from it, he frankly and distinctly made this acknowledgment, and confined his motion to an inquiry whether this in itself just and necessary power, had not been in its exercise misapplied. In support of the grounds which he laid for this motion, his noble friend quoted the opinions of lord Hale and Mr. Justice Blackstone—opinions which had scarcely been noticed, much less controverted by the noble and learned lords. His noble friend quoted those opinions in order to shew that the mode of prosecution by Information Ex Officio, regular and constitutional as it was, was at the same time a mode originally intended to be adopted only on certain especial and urgent occasions. He had listened with the deepest attention to the speeches of noble and learned lords, in expectation of hearing something that should controvert this doctrine. But no attempt whatever had been made by them for this purpose. The noble and learned lord (Ellenborough) on the contrary, confined his exertions to the combating positions of his own, instead of those of his adversary, and he felt himself therefore justified in assuming, that Hale and Blackstone were right, since nothing had been offered to demonstrate that they were wrong. If then Mr. Justice Blackstone had described Informations Ex Officio as a mode of proceeding of a most summary and peculiar character, not easily to be reconciled to the general spirit of the constitution, as an instrument in the hands of the crown to enable it to interpose in cases of enormous crimes, threatening immediate danger or ruin to the state;—and if the object of his noble friend, on understanding that in the course of three years 42 criminal informations had been filed Ex Officio, when daring the six preceding 163 years the number was but sixteen, was to procure an authentic statement of this fact, with what truth or propriety could he be charged either with irregularity or want of candour? Was not this the ordinary established form of proceeding for the purposes of parliamentary investigation; and in what other manner was it possible to discover whether any power had been abused? His noble friend had laid a broad and distinct ground on which it became the duty of the House to inquire whether the increased number of prosecutions sprung from the law itself, or from the misapplication of it. The effect of his motion could not be mischievous—it might be highly beneficial. It was at all periods beneficial to satisfy and assure the public mind; to dissipate its doubts, and extinguish its suspicions. If an extraordinary authority was exercised, the country ought to be convinced that it was not exercised except on principles of just government and imperious necessity. If then the motion should have the consequence of establishing this conviction, it would have a salutary operation; if, on the. other hand, it should be followed by the detection of abuse, it would be a disrespect to the noble and learned lords opposite to him, to suppose, that they would not gladly co-operate in its exposure and condemnation, and in the task of bringing back the law to its ancient standard. When such a statement as had been made was before them, of the extent to which criminal informations had been carried, it behoved that House to consider well the nature of this spreading innovation, and its possible tendency to supersede grand juries altogether. It was certainly not the rule of the House to reject a motion for the production of papers, on the principle that the papers were already accessible to every body. It was always held necessary that such documents should be put on their own records, before any legislative step could be taken respecting them. So much for the form; in substance the motion went only to inquire into the cause of the vast increase of late years in the number of prosecutions for libel. In voting for this inquiry, he did not feel himself pledged to any subsequent proceeding; they were discussing at present nothing more than the propriety of the inquiry—of an inquiry suggested by those wise feelings of constitutional jealousy which had hitherto proved the safeguard of all the liberties we enjoy.
The earl of Liverpoolsaid, that the same motives which induced the noble lord to give his reasons for voting in favour of the motion, prevailed with him to give his reasons for voting against it. The motion was for information, and the question which would naturally suggest itself upon this was, whether such information was necessary or not? It appeared to him that it was not necessary: for every information of this kind could be obtained by other means than an application to parliament. He knew perfectly well, that, if it was in contemplation to follow up the motion by any parliamentary proceeding, such an application should be made; but when the operation of the motion was to bring suspicion on the administration of justice, which he agreed ought not even to be suspected, when this was the case, he must say that the course for the noble lord would be to select any prosecution of which he complained as oppressive, and then to make his motion for inquiry. To tell them that the prosecutions for the three last years exceeded in number the prosecutions of former years, was telling them nothing; it might proceed from different causes, from the diffusion of learning, or even from the circumstance of too great lenity having been shewn before. He believed if they looked to the libels of different times, they would find that they were much the same, or perhaps if they differed in any thing, they were worse in former times: but after this admission he must observe, that though perhaps in particular instances the evil was not as great, yet the extent to which it was carried, in those times, required a more vigorous prosecution. The frequency of libels in modern times, arose out of the progress of civilization. Publications of all kinds became more numerous than formerly, and libels also might be expected to multiply; but when it was said that the prosecutions of the Attorney-General were subjects of such universal complaint, he believed that if the complaints were collected, it would be found that the far greater number charged him with too much lenity. He would refer for the character of his prosecutions to their results, to the decisions of the juries upon them, and they would find that of all the prosecutions actually brought to trial, only two had failed. It might be necessary for the peace of the country that prosecutions should increase. The House in the exercise of its coastitutional 165 duty was undoubtedly bound to look with jealousy, but it was also bound to give support to the administration of justice. With respect to the case of the Morning Post, it did not bear upon the point; it had been cited as an instance of partiality, but in order to prove that, if was necessary to shew that a course was adopted in that case which was not adapted in any other; but the sane Attorney-General had acted in a similar manner in other cases, which was an answer to the chatge. He knew that many were of opinion that, if the author was given up, the printer should not be prosecused; the noble lord opposite (lord Holland) thought so; his noble and learned friend near him (lord Ellenborugh) thought the contrary; but he believed that the truth lay between both, and that it was not possible to make any general rule which should be considered a sufficient guide without any view to the circumstances. He had witnessed the zeal of the Attorney-General in his office, and was sure there was no man whose mind was less under the influence of oppressive inclination, or who discharged the duties of his situation more faithfully; the country owed him great obligations, and was indebted to him for adding greatly to the true and genuine liberty of the press.
Lord Hollandrose in reply and said: My Lords; I rose before to claim of your lordships' justice the right of explanation. I rise now to ask of your courtesy that which is never refused to the mover of a question, the privilege of saying a few words, at the close of a debate, on what has passed in the course of it. I cannot, however, pretend that I rise to reply, for what arguments have been adduced by the other side that have not been answered by my noble friends, that have not been triumphantly exposed and refuted in the excellent speech of my noble relation (the marquis of Lansdown)? Any observation on objections so refuted would be ill-judged and unnecessary; and yet, my Lords, I must trespass for a few minutes on your time, for I feel myself called upon, not, indeed, to answer arguments, but to repel accusations and charges; not to combat objections to my motion, but to vindicate my character from aspersions which have been thrown out, I will not say in a disorderly and unparliamentary manner, but, at least, in a style and tone which, fortunately for the dignity of your deliberations, is rare and unusual in this 166 House. I have been told, not by inference, but in direct terms, that I am captious, that I am passionate, that I am indirect and unmanly. I profess not the temper of bearing such charges with equanimity, and if I were to disguise my astonishment, and, I will say my indignation, at hearing them brought against me, I should, in fact, prove myself guilty of that insincerity with which I am charged. With respect to the vehemence or passion with which I may have expressed myself, I should have hoped that the learned lord would have had the charity to recollect that I never had the advantages of those judicial habits from which he has profited so much, and which, as they require from him, so they have, no doubt, taught him that calmness and composure of manner for which he is so remarkable. The practice of such duties, and the exercise of such temper as those duties require, can alone bring the feelings of men to so perfect a state of discipline, and produce, even in the delivery of their strongest opinions, that dignified and dispassionate tone which adds a grace to ail the noble and learned lord's public appearances, and has so eminently distinguished his conduct on this night's debate. I fear, my Lords, I shall never attain that composure of manner and command of temper of which the noble and learned lord inculcates the necessity full as much as he affords the example. Indeed, I must acknowledge that I shall not even aspire to emulate the model he holds out to me, and while I admire his precepts, must confess that I have no ambition to follow his example. While, therefore, he retains all the advantages which his approbation of that virtue joined to his practice of it, intitles him to, I snail content myself with intreating your lordships not to impute any unbecoming violence or impetuosity to me, if, convinced of the existence of abuse, I am anxious to detect it; and it, having detected it I am earnest in soliciting measures of correction and regulation. The noble and learned lord has talked in a high strain of his own heroic contempt of clamour He has held up to your lordships' admiration his inflexible firmness of character, and his glowing, though rational love of liberty. All this may be so, and I give him credit for the sentiments which he professes; but though I may vaunt less lealoudly my contempt of clamour, I will tell the noble lord, that unfounded accusation and intemperate virulence of language, 167 be they clamour or be they not, come they from a mob or from an individual, or from what quarter they may, will not deter me from doing ray duty in this House, nor, I trust, prevent one member of it from voting for such inquiry, regulation, or even reform, as he in his conscience thinks beneficial to the country. The invective, which has nothing to recommend it but authority, is as much clamour as the cries and shouts of a mob, and I hope, that, till I hear facts and arguments against the measures I recommend, I shall have the courage and honesty to treat the assailants of them, be they who they may, with a due portion of that feeling which the noble and learned lord so properly reserves for all clamour unfounded in reason.
But, my Lords, the motion of this night is not a motion of reform; it is simply a motion for papers, for documents, for information and evidence on which to proceed; and, forsooth on that very account it is unmanly! it is indirect! Such a charge is not very usual—is it very orderly in this House? Is any peer to be lightly accused of proposing one thing and meaning another? For myself, how far my general character warrants such an imputation, I must leave to those who know me best to decide; but I will say, with confidence, perhaps it may be thought with arrogance, that, on that point, I would hardly decline being tried by my enemies themselves. But, exclusive of my own character, where are the grounds, where is the sense of the learned lord's accusation? What so common, what so reasonable as seeking for the evidence on which the propriety of measures one wishes to recommend must necessarily rest? What is there unmanly in this? Have I disguised my objects; have I not rather detained, and, I fear, wearied your lordships with the detail of them? I think, indeed, that, even without concurring with me in those objects, the House should procure the information I ask for; but I have not concealed what is my view of that information, or what are the measures I should ground upon it. In this, then, there is nothing insincere, nothing indirect. If the learned lord objects to it on that score, he must object to proceedings in Parliament without end. Did he never read a remedial statute? Does he suppose that the abuses which such statutes correct, that the grievances which such statutes remove, "re not ascertained before they are recited 168 and acted upon? and why, when I have a measure of remedy and precaution in view, is it unmanly or indirect in me to move for the proof of the evil which I endeavour to correct? It is by the statute of William and Mary (which, though the noble lord once denied the existence of it, I make no doubt he is now well acquainted with); it is by the precedent of that statute that I wish to be guided. That statute states in the preamble, that "vexatious prosecutions on criminal informations had frequently occurred of late, by which parties had been put to great expence, &c. &c." And then proceeds to provide such measures as might prevent the recurrence of the abuse. So I, who mean to recommend to your lordships some legislative measure in consequence of the increased frequency of one particular description of prosecutions, the Ex Officio Informations, think it neither indirect nor unreasonable to call for information of the numbers of such informations that have been filed of late years—to this object the motion is confined; and while I have in view some further regulation, I begin in the first instance by laying my ground, and ascertaining the facts on which the propriety of that regulation must rest. The noble and learned lord further says that he has paid painful attention to my speech, and found it, as he foresaw it would be, a continuation of my former argument, a mere nondum finitus Orestes, as he is pleased sarcastically to term it. It is a pity the noble lord's memory should be as treacherous as his attention is unavailing. In spite of the one he has misapprehended, as your lordships must all have seen, every word I have spoken this night, and I can assure your lordships that in the exercise of the other, his statement of what passed three years ago is as incorrect, is as directly the reverse of what I did say, as his representations of my arguments this night.—The discussions on the Bill of 1808 are fresh in my recollection; they made a deep impression on my mind, a deeper, perhaps, than the noble and learned lord could wish, or was aware of; there were circumstances in those discussions not easily forgotten. The noble and learned lord interrupted me on that occasion to deny the existence of a law, to which I was referring; a law which, in spite of such interruption, still, remained and remains unrepealed on the statute books; a law which the noble and learned lord who first denied 169 its existence, and then maintained its desuetude, actually executes every term, or if he does not execute, is impeachable and punishable for a neglect of his judicial duties. I remember these things, and I speak before another learned lord who must remember them too, and will set merightifmy memory is incorrect, I mean the noble and learned lord on the woolsack.—To him, though I so often differ with him, though I hare frequently and recently felt it my duty to arraign his public conduct. To him I confidently appeal—for no man is more attentive, more patiently attentive to the arguments of his adversary, and no man (I am ready and happy to bear my testimony to that truth) more fair, more candid, more acute, and yet more courteous in his way of contending with them. To him I appeal then as to what passed on that night, and as to the arguments which the noble and learned lord has imputed to me—I opposed that bill in toto. The noble and learned lord on the woolsack, explained one part of the bill to which I had objected, to my satisfaction, and to that part I withdrew, as in duty and conscience I was bound to withdraw, my opposition; but for the other part which gave the new power of holding persons to bail on Ex Officio Informations, I heard no explanation, no apology, no reason; nor have I since heard one word to prove it justice, or its necessity.—I opposed it therefore in every stage, but I never used the arguments or expressions which the noble and learned lord (Ellenborough) has supposed, nor any thing like them.—So far from indulging in the hyperbolical strain, which the learned lord's fancy and not his memory repeats, the argument I did use was at variance with that which he puts into my mouth; far from foretelling the immediate downfall of King, Lords, and Commons, from the bill, I distinctly stated, that I apprehended no immediate consequences, good, bad, or indifferent, from the law, but that it was the principle, it was the use to which in bad times it might, and would be applied, that my fears were directed to; and though it is now two or three years ago, it so happens that I recollect the very metaphor I used, though not certainly a very happy or a very new one, but it illustrates the truth of my statement. It was, as far as I can recollect my expression, this, "that the law would remain long torpid in your statute book, but it would lie there fraught with a venom, which the accidental heat of factious 170 and turbulent times might at some future period draw forth into action." Yet the noble lord is pleased to indulge his pleasantry and sarcasm by imputing to me a prophecy of immediate tyranny which I never uttered, and banters me with wonderful self-complacency at its not being accomplished! Once for all, I never professed one of the principles against which the noble lord inveighs; I never used one of the arguments which the noble and learned lord refutes; I never made one of the statements which the noble and learned lord ridicules. He may attack them, he may answer them, he may expose them, but he has no right to impute' them to me, or to think he is answering what I formerly said or have this night said on the subject. The noble Secretary of State too makes an ingenious and able defence, but it is the defence of a place that has not been attacked. No inference, says he, is to be drawn from the increase of prosecutions, because we all know how publications are increased, and the proportion prosecutions bear to them may not be greater now than formerly.—Be it so; but we were not talking of the increase of prosecutions in general; I am moving for the number of Informations Ex Officio, and I will ask him this; if they have increased in number within these last three years, and not only in number but in proportion too, to other modes of prosecution, will he say that no inference is to be drawn from that? If he does, will he tell me from what possible facts inferences of this nature are to be drawn? Well, but, says another learned lord (Redesdale) after all the Attorney General is responsible, and solely responsible, for the exercise of this duty. I must say, by the bye, I was glad to hear this avowal, though I do not see how it made for the learned lord's argument, or justified his vote against inquiry; however I was glad to hear it, for the habit, apparently generous, but really artful and pernicious, of every man in office starting up to share the responsibility of a colleague in an act in which he is the only official agent; this habit, I say, or rather this trick, this cant, this jargon, has a tendency to fritter away all responsibility whatever, and to render that great security of our liberties a mere dead letter in the constitution.—On this responsibility the learned lord on the woolsack states that he, when Attorney General, did many things which he justly says I should disapprove, but which he 171 assures the House, were more severe than any now resorted to by his successor; and he alludes more particularly to his punishing printers and publishers as severely, or at least as uniformly as authors. I am certainly not disposed to compliment that learned lord, on that part of his political life, and still less to speak with respect of those times and those proceedings, but yet this I must say, that the times were peculiar, that many independent and good men thought they justified a deviation from common rules, and as far as the subject now before us is affected, parliament itself had by inquiries, committees, legislative acts, and other proceedings, (whether wisely or not, is not now the question) expressed its opinion that offences of this nature had increased, and that extraordinary vigilance and even severity should be resorted to. Parliament then was not likely to notice any increase of prosecutions which it had itself encouraged and sanctioned. The same causes which had Jed to the increased number of prosecutions, did lead to alarms in parliament, to committees, to laws, and to other proceedings. Parliament in its own conduct recognized causes which might well occasion an additional number of prosecutions, but that is not the case now, nor is it a reason why with the unexplained fact that Ex Officio Informations are now increased in the proportion of 8 to 1, in the course of three years, we should take no step, and should not even inquire whether this phœnomenon proceeds from an increase of offences which might require additional laws to put them down, or an abuse of authority which might call for some censure to punish it, or some regulation to restrain it in future. I do indeed differ with the noble and learned lord; I am not for punishing author, printer, and publisher of a libel. The law it seems to me should take no cognizance of the latter but for the purpose of coming at the former. A contrary system acts as a system of terror on printers and booksellers, and may defraud the public of works not only innocent but useful, by deterring the intermediate agents from printing and publishing a book which their ignorance, or their timidity, may lead them erroneously to deem libellous. I did not disapprove of the principle on which the prosecution of the Morning Post was dropped; but if it was applicable to others and applied only to him, it-is surely a presumption of partiality, it is a sort of primâ facie evidence 172 against the Attorney General. More than primâ facie evidence, I never thought of bringing against that gentleman, whom I do not know personally, but whom all I have heard of him ill private would lead me to respect; but I stated my case, and it has not been controverted. I stated that the number of Ex Officio Informations had increased in a proportion of 8 to 1.—I repeat it then, this amounts to primâ facie evidence, and surely the noble and learned lord on the woolsack, who talks with complacency of prosecuting publishers, printers and proprietors, as well as authors, will have no objection to primâ facie evidence. I only urge it as sufficient for parliamentary inquiry, but to support his doctrines he must contend that it justifies legal prosecution and punishment. I am asked where I learnt that Mr. Dunning's opinion was against Ex Officio Informations, and I am told, that he did not object to taking fees for them. Pitiful answer to my quotation of his authority! I care not whether he took fees, or what he maintained or did, as an advocate, but as a member of parliament (and a better never sat in the House of Commons) he spoke and voted on the motion of Mr. Constantine Phipps against them, and with him voted, serjeant Glynn, that excellent man Sir George Savile, and Mr. Burke, and no less than 78 of the most respectable members of that time, they voted I believe for the suppression of Ex Officio Informations; they spoke, I know, against both the expediency and legality of them, and while I disclaim that objection to the mode of proceeding, I cannot believe that the origin of a practice is quite so pure, or the principle so obviously sound, as the noble and learned lords would persuade us, when I see such a man as Mr. Dunning, and as others I could mention, disposed to call it in question. With respect to special juries I will say nothing more, perhaps it would have been more discreet to have said nothing, but thus much I must repeat, that as they are in the eye of the law itself less favourable to the defendant in criminal prosecutions, it behoves parliament to be more vigilant, more ready to institute inquiry, and to afford as much protection as the safety of the state will allow to such offences as are exclusively exposed to be tried by the less favourable tribunal. They add a link to the peculiar difficulties with which persons charged with libel have to contend, and when I see the temper in which 173 some men discuss these subjects, when I reflect on the sort of law which is fashionable, which is afloat on these matters, not merely among the vulgar and idle talkers, not in the mouth of heedless and insignificant men, but in that of grave characters invested with authority, I own I urn anxious that all encroachment on the freedom of the press should be jealously watched, and studiously guarded against by Parliament. When for instance I hear of a notion, that libels* may be stopped by an injunction from Chancery; that publications, by which individuals may think that their feelings would be hurt, may be stifled in embryo at the will of a crown lawyer, in short that the Great Seal may in effect exercise that imprimatur which our ancestors wrested from the crown, and which, revived in any shape would be sufficient to check the progress of all knowledge and to subvert all liberty:—when I hear of such things I do not think the press in that perfect state of security which some men would persuade us, and I am sure the only way of preserving that security is, by evincing here, here in parliament, an anxious, jealous, and uniform attention to all that concerns it.—My lords, I do not mean to allude to the noble and learned lord on the woolsack, such a notion I am well persuaded never passed his lips nor entered his head. Whatever may be the law afloat on the subject, and whatever his aversion to printers, publishers, and authors of libels, he is too good, too sound a lawyer to harbour such an idea; while the seals are in his hands he knows his inportant duties too well to issue an injunction against any publication in which the persons praying for that injunction neither possess nor claim any property or interest whatever. An injunction on criminal grounds, from a court of Chancery! Good God! did your lordships ever hear till the period of this report (a false one I trust, but which, if so, may now be contradicted) did your lordships ever hear or dream of such a proceeding? Would not the noble and learned lord on the woolsack blush for the most inexperienced barrister in his court who should venture to make so preposterous an application? who should ask him to interfere by an act of power which the analogy
* His lordship was supposed to allude to the summing up of the evidence in the trial of Hope versus Debost.174 of our laws, the practice of our courts, and the safety of our liberties all alike pronounce to be impossible for him to exercise? If indeed a man, from an apprehension of being libelied, can obtain an injunction against the exhibition of a picture or the publication of a book, in vain have our ancestors put down imprimaturs and licensers, the Great Seal virtually possesses their pernicious powers, and every paper that is printed, every book that is read, would be indebted to the Lord Chancellor's forbearance for not being crushed, and stifled in its birth. It is strange that any man should think this law; it is yet more melancholy that thinking it so he should not wish to alter it. To endure such a law would be to submit to the worst species of tyranny, to subject the press, and through it the human mind itself, to the worst species of degradation, a controul of its facilities of reasoning; or, in other words, to leave to the discretion of one man the right of suppressing the words and thoughts of all his fellow subjects. This, my lords, among other symptoms, shews a jealousy of the freedom of the press, in those most likely to possess the power of restraining it; and this among other things, together with the strong fact of an increase of Ex Officio Informations, leads me to move an inquiry which is in my judgment called for by the circumstances which may lead to regulation, if regulation be necessary, but will at any rate have the effect of checking and controuling that temper of the times which, if unchecked and uncontrouled, is too well calculated to produce encroachments of power and abuse of authority.
§ The House then divided, when the numbers were:
| For Lord Holland's Motion | 12 |
| Against it | 24 |
| Majority against the Motion | —12 |