HL Deb 03 June 1817 vol 36 cc869-78
Lord Holland

said, he should now proceed in a motion, of which he had given notice. He had a charge against the noble secretary of state, heavier than that of dispensing with precedents; it was a charge that he had assumed a power to dispense with the written laws of the land. An act, it was known, had been passed that session, commonly called the suspension of the Habeas Corpus, but which more properly might be called, an act divesting persons of their right of being brought to trial within a limited time. By that statute the secretary of state was invested with the power of keeping any person charged with certain offences, in prison, and of transferring him from prison to prison; but the law gave no other power nor took away any power with which he was previously invested. A few days since he had met with a correspondence in a public journal, between some magistrates in Berkshire and the secretary of state, with respect to the conduct to be pursued to some state prisoners in Reading gaol. He did not understand how these gentlemen had thought fit to apply to the secretary of state. They had to act on their own responsibility, and it was their business to become acquainted with their duty from their own legal research: the secretary of state was no authorized expounder of the law. So it was, however, that these magistrates had sent to the noble secretary a series of queries, to which the noble secretary had returned a series of answers. These queries he should read. Some of them were repugnant to his ideas of humanity; but one was, as he believed he should make clear to every man's mind, utterly illegal:—

"Q. May magistrates generally of the county of Berks visit the state prisoners in common with other prisoners, which they are privileged to do, and ask questions, and enter into conversation with them? A. No, except upon special reasons being assigned, which must be submitted to and be judged of by the secretary of state.—Q. If state prisoners may have a copy of official directions to gaolers? A. No.—Q. If state prisoners may have free use of pen, ink, and paper, under certain restrictions, as ordered by the official directions? A. Vide official directions, which must be strictly observed.—Q. If they may read the public London or provincial newspapers, under certain restrictions? A. No.—Q. If they may have books to read from circulating libraries? A. Such books as are approved of by the visiting magistrate.—Q. If they may have wine, or strong beer, or ale, in limited quantities at their own expense, or that of government? A. What quantity is desired?—Q. If through the day they be confined in solitary cells, and at night in better apartments, if such can be procured by magistrates for them A. To be confined in such manner as has been usual, and in such apartments as have been heretofore allotted to state prisoners."

It was to the first query and the answer that he wished to direct the attention of the House. The latter ones he thought were harsh, and he did not see what right the secretary of state had to send down his official directions as to the management of prisons; it might be the practice, it might be the law; but he had yet to learn where that law or that practice was to be found. It was harsh to prevent those persons from reading newspapers. It had also been said, that in whatever places persons might be confined under the suspension of the Habeas Corpus, they would have the right of petitioning the Crown or parliament. But this would be nugatory, if the persons were not allowed to have a copy of the official directions to the gaolers, to see the conduct which those persons were bound to observe towards them? These regulations, he conceived, were dictated by a harsh spirit, but he wished it to be understood that he did not mean to rest his motion on that part of the case. It was on the first query, and the answer to it, that he grounded his motion. He should now toad a section of the statute 31st of Geo. 3rd chap. 46. His lordship then read the section of that act, which enjoins "that justices of the peace shall, at every general or quarter-sessions, appoint two or more visiting justices, who shall personally visit the common gaols, houses of correction, and penitentiary houses, at least three times in the quarter of the year; shall take cognizance of the habits and condition of the prisoners, of the state; of the prisons, and of the conduct of the gaolers; and shall give redress according to the circumstances that come under their view; that the visiting justices shall, at every quarter-sessions, report their compliance and their observations; and that the chairman of the quarter-sessions call upon them for such report." This was imperative on the visiting justices. There was another clause, giving power to all magistrates to visit the prison's as often as they thought fit, and to report thereon to the sessions, when any abuses required intervention. Nothing could be clearer than these provisions, or more directly in opposition to the authority which the noble secretary had assumed of ex-eluding the magistrates from the prisons in question. This correspondence, he understood, had thus arisen—two respectable magistrates had applied to be admitted to the prisoners, but had been shown the official directions by which they were ordered to be excluded: and another magistrate had made a similar application, and had been met in a similar manner, The visiting magistrates had consequently written to the noble secretary for information in the new character he had assumed of expounder of the law, and had received the answer which he had read. He could not conceive a more unconstitutional measure than this habit in the secretary of state of dispensing with the law, and of directing his usurped authority to prevent the justices from doing what by law they; were commanded to do. This was in direct contravention of the Bill of Rights, the two first articles of which (repeating one another, in a manner which showed the anxiety of our ancestors on this subject) declared that the law could not be dispensed with, except by authority of parliament. With this act staring him in the face, why had not the noble secretary boldly applied to parliament, if he had found the law insufficient—if he had found its antiquated provisions so entirely repugnant with the spirit of the new system introduced by the suspension of the Habeas Corpus? Yet this noble lord, who had that night so summarily disposed of precedent—who had, on a former occasion, taken on himself to call on the justices to act, not on their own knowledge but on his letter—had told them, without thinking it worth while to allude to the act of parliament, that they were not to do what by that law they were commanded to do.—The two first articles of the Bill of Rights, and the section of the 31st Geo. 3. cap. 46, having been entered as read, the noble lord moved for "Copies of all Communications from the magistrates of the county of Berks, to the principal secretary of state for the home department, respecting their right to visit prisoners, confined for crimes against the state, in the gaol of Reading, with the Answer of the secretary of state thereto."

Lord Sidmouth

said, he had been charged with having assumed an authority, and having harshly exercised it. In the performance of the arduous duties he had to discharge, he had always taken the advice of the law officers of the Crown, and by their opinions he had been guided; though he begged to be understood, that he did not wish to throw off from himself the responsibility of the line of conduct he had adopted. As to the gaols of the kingdom, he had always understood they were his majesty's gaols, and that it was a part of the king's prerogative to give orders for the government of those gaols, which power was only restrained by justice, humanity, and the law of the land. The clause in the act of the 31st of the king could in no wise affect the prerogative, as that could not have been done without special enactment. The course taken with regard to state prisoners was always different from that pursued with other prisoners. Persons in general were merely committed to the custody of the gaoler; in state offences the warrant expressed it "to close and safe custody. The privy council or secretary of state by which soever they had been committed, made regulations for their treatment; and when the prisoners were brought under the cognizance of the court of King's-bench by indictment, or by a bill found by the grand jury, that court had always observed the greatest caution. Lord Holt had decided, that a wife could not see her husband confined on a charge of treason without other persons being present Lord Raymond had decided that near relatives could not visit but in similar circumstances. The suspension of the Habeas Corpus had enabled the secretary of state to commit several persons for high treason, and to him belonged the right of giving all directions concerning them. In the exercise of this right he had consulted the first legal authorities in this country, and in no degree exceeded the powers they thought him entitled to. As to the case referred to, it had hot been the exclusion of the visiting magistrates which had caused the application. Some other magistrates had taken occasion to go to the prisoners, upon which the visiting magistrates had applied to him to know what course they were to pursue. In his answer, he contended, he had neither transgressed the law, nor acted harshly. He admitted the House should entertain a constitutional jealousy; but unless there was a presumption that he had acted illegally, and it was intended to cast an imputation on him, he trusted the House would not accede to the motion, or hold out to the country, that there was any foundation for the attack which had been made on him.

Earl Grey

was of opinion that a more mitigated answer could have been given to ail the questions. With respect to papers and books, there seemed to have been a very unnecessary degree of rigour and severity exercised. But whether the noble lord had exceeded his powers, the act of parliament was express and decisive. One clause was explicit, actually compelling magistrates to visit prisoners. Another was equally explicit, empowering them to visit. He had felt very curious to hear the noble secretary's answer to this point. The act had appeared to him evident and distinct; and unless the noble lord could cite some subsequent statutes to justify his conduct, it had appeared to him that his conduct was in direct contravention of a public statute made to protect prisoners from undue harshness and injustice. What answer, then, did the noble lord give? Usage was appealed to. Lords, Holt and Raymond were eminent and distinguished judges. But the decisions referred to were not in point. They regarded quite a different principle. The noble lord ought to have, shown that they had prevented magistrates from visiting gaols; but even then the authority was not in point, because they lived prior to the 31st George 3rd. Since that period nothing was stated to have been enacted to alter the statute. If any usage could be shown against it, the power of this express law was sacred and conclusive; but no usage was in any shape brought forward to justify the noble lord's conduct. But prerogative was appealed to as being above acts of parliament. This was a new and extraordinary doctrine. The manner, too, in which the noble lord availed himself of this argument deserved attention; gaols were the king's gaols, and, therefore, state-prisoners were subject to the arbitrary regulations of the secretary of state! If this argument applied to one gaol, it applied to all gaols; if to one prisoner, to all prisoners. All gaols were the king's gaols, and all prisoners were the king's prisoners. How was it possible to make any distinction? The prerogative must be equally applicable to all. It could not be pretended that the legislature had passed a law of this kind, and excepted state prisoners. State prisoners were rather the objects of peculiar protection; and an act would be found passed by the legislature with an exception in their favour. Abuse he conceived it proper in all cases to guard against. He did not know whether there was abuse in this case; but they were told that the secretary of state had done what on the face of it appeared to be in contravention of an act of parliament. If the noble secretary did not give something better than the opinion of the law officers of the Crown, he would put it to their lordships whether prerogative could be a valid defence for violating an act of parliament. The question was, whether the prerogative gave such a right. But the noble lord here again precluded inquiry by urging that a presumption of blame would arise if an order for the production of the papers in question stood upon their Journals; and he claimed a degree of confidence from their lordships, as necessary for discharging his duties with satisfaction to himself, and benefit to the country. He (earl Grey) on the contrary, contended, that a constitutional jealousy that would not sleep was not only wholesome but necessary. The motion went merely to inquire into an apparent contravention of an act of parliament. The fair inference from such a charge, prima facie, was, that their lordships could not dismiss it without farther inquiry. If the noble secretary should be found to have acted conformably to his powers, he would stand acquitted and absolved, and their lordships sentence would relieve him from blame; but because an inquiry implied that the noble secretary might have acted illegally, they could not enter into an inquiry! This was a proposition, he trusted, which their lordships would never admit. All they wanted was information. The noble secretary was charged with a departure from the line of conduct prescribed to him by law; their lordships could not, without a departure from their duty, refrain from calling upon him for his justification. He felt now more anxious than ever for an inquiry, in consequence of the plea set up by the noble lord.

The Earl of Liverpool

said, it was impossible to read the 31st George the 3rd, and to suppose that it ever was meant to apply to state prisoners; it was merely intended to regulate gaols and penitentiary houses in ordinary cases. His noble friend had acted in exact conformity to the uniform practice which had taken place since 1791, with the exception, that under his superintendence more leniency had been shown to the prisoners than they formerly experienced. They had, therefore, an experience of 26 years in their favour, during which time the Habeas Corpus act had been several times suspended. Before the 31st of the king there were other acts regulating the power of justices of peace with regard to gaols; but the provisions of these acts were never supposed to restrain the power of the Crown with respect to state prisoners. It was impossible, in the nature of things, that the provisions of the act of 31st could be meant to apply to state prisoners. It never was in the contemplation of those persons who brought it in, or those by whom it was passed, to deprive the secretary of state of the power of regulating the treatment of state prisoners. He contended, therefore, that his noble friend was justified, by the understanding of parliament, and by all the law authorities, in acting in the manner he had done.

The Earl of Rosslyn

thought it his duty to look at the expressions in the act itself. In this he was borne out by the noble secretary of state, who, on a former occasion, had observed, that it was not the meaning of the movers and supporters of an act that was to be looked at—but that they were to look at what the law really enacted. Looking at the act, on that principle, he could find none of the exceptions with respect to state prisoners. It gave the magistrates certain powers as to all persons confined in prisons. To take away any of the privileges of the magistrates would, in his view, be acting against the law. If the noble lord could show him that any case on the subject had ever been brought fairly into discussion by a judicial proceeding, and had been decided according to his opinions, he might yield to his arguments and construction; but it did not appear that any such case could be adduced.

The Lord Chancellor

felt it necessary to preface any observations which he might make with the same protest which he had made on a late legal question in that House—he meant, that he must beg not to be concluded or bound by any remark which he might give as a member of that House. The plain reason for such a protest was this—that as that House was the dernier resort of all questions of law, it was important that the ultimate decision should not be prejudiced by any obiter dictum on an accidental motion. It was the less necessary that he should interfere with any opinion, because there was a regular remedy for any abuse of the existing law. If the gaoler did wrong, he might be proceeded against by action. He did not mean to say that the liberty of the subject was not a question deserving the gravest discussion of the House; but he should wish, if so important a subject was under agitation, that due notice should be given. At present he was taken somewhat by surprise, and therefore was not prepared with such authorities as he should have collected, had he expected to be called upon for them. As it was, he must say, that it would be much better to introduce a bill, to declare formally the law on this subject. One thing he could state, which bore strongly on the present question; and this was, that, in point of law, every gaol in the kingdom was the king's gaol, and therefore under the royal control. He could say that, in 1793 and 1794, it was never thought for a moment that the king's counsel or the secretary of state had not the power of giving advice as to the regulation of prisoners: he was perfectly sure that regulations and directions were issued from day to day. He was ready to admit that no right of the subject should be taken away, except on the most mature deliberation, and after a perfect conviction of its necessity; and in the present case, if he had not been taken by surprise, he would have gone into the fullest consideration of the subject: as it was, he must say, that the prerogative of the Crown should, no more than the liberty of the people, be taken away without the most attentive, investigation. For these reasons, although he attached the highest importance to the treatment of prisoners, he must object to the present motion, on the ground that the evil sought to be remedied should be made the subject of a particular bill, and should not be concluded by a mere motion of that House.

Earl Spencer

conceived the main point to be, whether the magistrates should be deprived of that power of visiting prisons which had hitherto by law belonged to them. The learned lord would perhaps recover from that surprise which he at present professed, if the question were adjourned to another day: he would then be able to give it that consideration which he had maintained to be necessary for a right decision of so important a point: with this view, therefore, and because he thought the question one of the highest moment, he should move to adjourn the consideration of the question to Monday next.

Lord Holland

said, that the main point now before the House was, whether the noble secretary was justified in suspending the right hitherto possessed by magistrates of inspecting all the gaols of the kingdom. The noble lord had admitted that the justices were enabled, under the act, to visit the gaols; but he seemed to contend that it was a part of the king's prerogative to keep them out of the gaols. He had called the gaols, the king's gaols, and seemed to consider them exclusively under the jurisdiction of his ministers; but the same language might be held of the army, the navy, the courts of justice, and of many other portions of the executive. It was in common language the king's army, the king's court, the king's navy; but no one ever contended that on that account these branches of public service were exempt from the ordinary operation of the laws. The reasons applied by the secretary of state for exemption from the provisions of this act went equally to sweep away the authority of all acts of parliament. In other cases, indeed, the noble lord had been ready enough to allow the magistrates a power of expounding acts of parliament, but the moment this power might interfere with the exercise of his own authority, he contended that they ought not to be allowed to exercise it. It was no argument to say that the act was an unreasonable act: it stood as the law of the land, and as such could not be departed from. When a pretence had been set up for the suspension of our most valuable rights, it more than ever became the legislature to inquire into the exercise of these new authorities. He could not allow that the practice pursued since 1791 furnished any reason for what had now been done. The point he wished to bring before their lordships was, not whether this business was warranted by precedent, or even whether it was legal, but whether, in the very teeth of an act of parliament, it was competent to the secretary of state to tell the magistrates that they were not to visit the gaols within their jurisdiction.

The amendment was negatived.

The original motion was then put, and was also negatived.