HABEAS CORPUS SUSPENSION BILL.

HL Deb 03 March 1817 vol 35 cc825-36

Lord Holland

, previous to proceeding to the order of the day respecting the Habeas Corpus Suspension bill, it appearing that the Commons had taken the liberty of making an amendment in it, though their lordships were not allowed time to discuss or to consider it, was desirous of asking a question intimately connected with the extraordinary powers proposed to be given to the government by this bill, by which the liberties of the country were to be placed at the disposal of the ministers of the Crown. He wished to be informed by the learned lord on the Woolsack, whether an individual, unfortunately detained in any prison by order of government, under the power given by this bill, would have the means allowed him of petitioning parliament; or, if that should be thought to involve too much publicity, at least of petitioning the sovereign. He was the more desirous of being informed upon this point, because, knowing the kind of regulations that were in-forced in some prisons, it was of essential importance that an individual, placed in the situation he had alluded to, should not be debarred from the free exercise of the right of making an application to the government respecting the circumstances of his case.

The Lord Chancellor

said, he was called upon to give an opinion without the particular circumstances of any particular case being stated; but he felt anxious, when thus called upon, to give an opinion, as far as he could, regarding any question relating to the liberty of the subject; and he had no hesitation in stating generally, that he was not aware of the existence of any individual who had not the right of petitioning either the sovereign or the parliament.

Lord Holland

observed, that knowing the manner in which some prisons were conducted, he was anxious that it should be distinctly understood, that no gaoler could prevent the exercise of the right of petitioning on the part of any individual who might be unfortunately placed in his custody by order of government, and detained under the extraordinary powers given by this bill.

The Lord Chancellor

said, that every individual arrested on suspicion of treason, by order of government, and detained under the provisions of this bill, had in his favour the presumption of law, which always supposed every person under accusation to be innocent until proved to be guilty; and as far as he could answer a general question, every individual in that situation had the right of petitioning either the sovereign or the parliament, a right which the gaoler, in whose custody he was, had no right to deprive him of.

Earl Grey

said, the answers given by the learned lord were perfectly satisfactory to him, as to the general question. There was, however, this consideration, that a barren right was nothing without the means of exercising it. In some prisons, individuals might be confined without pen, ink, or paper being allowed to them, or the means of communicating with any person. Under ordinary circumstances this might not be of so much consequence, as they knew the time would arrive when they should have an opportunity of appearing in the face of their country; but under the provisions of this bill they could have no such knowledge, they could not anticipate how long they might be detained. It was therefore of the greatest importance that no individual in this situation should be deprived of his right of petitioning; and he concluded that the learned lord, from the way in which he had answered the question, meant also this, that a gaoler having an individual under such circumstances in his custody, would be acting illegally, if by any means he prevented that individual from communicating with other persons, or from other means connected with the exercising of his right of petitioning.

The Lord Chancellor

said, he was perfectly ready to agree in the explanation which the noble earl had made for him, with these qualifications, that the individual should have every facility allowed him, consistently with his safe custody, and that he should bona fide be desirous of petitioning, and not assert the privilege as a mere colourable pretext with a view to other objects.

Lord Sidmouth moved the order of the day for taking into consideration the amendment made by the Commons in the Habeas Corpus suspension bill.

The Earl of Darnley

could not let this opportunity pass without entering his decided protest against the measure, which he conceived to be uncalled for by any circumstances connected with the situation of the country. He could not help observing also upon the extreme rapidity with which that House had been induced to pass this bill, whilst the Commons had taken a much longer time to deliberate upon it, without, as it should appear, any apprehension of danger from delay, though the danger had been so loudly talked of in that House, in order to induce their lordships to suspend their standing orders, and pass the bill with extraordinary rapidity. He had, upon a former occasion, given his consent to a similar bill; but how widely different were the circumstances! At that period the country was at war with a highly powerful enemy; now not only no reason of that kind existed, but there was nothing in the report of the secret committee that called for the adoption of a measure to suspend the liberty of the subject. Some of the allegations in that report had been offered to be disproved by evidence at their lordships bar, which the House had refused to receive, although in one instance it was acknowledged the committee had been in error. What faith, then, could they put in such allegations? It was undoubtedly true that much distress existed in the country arising from the want of employment, to which was added the distress arising from a bad harvest, and there was no doubt that mischievous persons might endeavour to take advantage of these circumstances; but for this situation of the country the present bill was not only not a remedy, but would materially tend to add to the discontent. With regard to the amendment, he had no objection to it, but with a view to the general question upon the bill, which he considered wholly unnecessary and uncalled for, he felt it his duty to move, that instead of now, the amendment be taken into consideration this day three months.

The Earl of Liverpool

, as the amendment was not objected to, did not think it necessary to say more than a few words. With regard to the objection that this bill was passed through the House with unprecedented haste, he assured their lordships that in point of fact it was not so, as on former occasions within his own recollection a similar bill had passed through all its stages in that House in one day, whilst on the present occasion two days had been occupied in the consideration of the measure. With respect to the necessity for the bill, he could most positively affirm that on no former occasion when he or when the noble lord who had just spoken had voted for a similar measure, was there a greater necessity for it that at the present moment.

Earl Grosvenor

contended, that more time ought to have been given for the pe- ‡ titions of the people, he being satisfied that had a longer delay been allowed, there would have been petitions from all quarters against the bill. He would only instance the case of the ancient and very loyal city of Chester, where a requisition signed by one hundred persons of the greatest respectability was presented to the mayor, who in consequence called a meeting in the Town Hall, where a petition against the bill was agreed to, which in the course of a few hours was signed by upwards of 2,000 persons of great respectability. This served to show what numerously signed petitions there would have been against the bill had a little more time been allowed.

The Bishop of Chester

thought it right to state, that though the petition alluded to by the noble earl was respectably signed, yet that the persons who signed it did not constitute the major part of the most respectable inhabitants of that city.

Earl Grosvenor

, in explanation, said, he had only asserted that the petition was most respectably signed, he did not mean to state that there were not other highly respectable inhabitants of the city who had not signed it.

The Earl of Rosslyn

observed, that in consequence of the unnecessary rapidity with which that House had been called upon to pass the bill, they had had no opportunity allowed them of considering that part of it which related to Scotland, and in which a most important amendment had been made by the Commons. What was to be thought of those who had urged on the House to that rapid course of proceeding, which had not left them time to discover or to rectify a most material error in the bill, though the Commons had been allowed a sufficient opportunity to consider the measure in all its bearings. He alluded to the difference which was made in the bill, as it passed that House, between the people of England and the people of Scotland. In England no individual could be detained under the provisions of this bill, unless arrested by a warrant signed by a secretary of state, or six privy counsellors on their responsibility; whilst in Scotland individuals might be arrested by any inferior magistrate, without responsibility, and could not be released or put upon their trial, without a warrant signed by a secretary of state or six privy counsellors. These enactments, which placed the people of Scotland in a much worse situation than those of England, had been altered by the amendment made by the Commons, and that amendment he bailed as a most material improvement. He did not, however, the less object to the bill, which he considered to be wholly uncalled for and unnecessary.

The Lord Chancellor

said, he had wished to have merely given his support to this bill, by his silent vote, for which, however, he was just as much responsible as if he had publicly declared his opinion. But what had been urged by the noble lord with regard to the amendment, rendered it necessary for him to say a few words. In 1794, when a similar measure was proposed, he himself had a considerable knowledge of Scots law, from having been employed more perhaps, than any Englishman before his time, in Scots appeals, at the bar of that House, and he framed the bill, in concert with the late lord Loughborough, who then sat on the woolsack, and who, joined to an intimate knowledge of the law of England, had also a peculiar knowledge of the law of Scotland. That learned lord approved of the bill as then drawn, and no objection was made to it; a similar bill had subsequently passed, and the present bill was a transcript of those. He thought, then, that the bill was right, and he still thought that this bill, as originally introduced, was right; he would not, however, object to the amendment, because rather than any farther delay should take place in the passing of this bill, which, in his conscience, he believed to have been never more necessary than at the present moment, he would agree to the bill as amended, He could not help, however, saying, that in his opinion, the amendment made the bill infinitely worse, both as it regarded the situation of the individual, and the magistrates in England and Scotland.

Lord Holland

said, the House had been. very hardly dealt with in the proceedings with regard to this bill, no satisfactory explanation having been given with respect either to the bill, or to the particular clause which had been amended, or as to why the House should be called upon to pass the bill with such an extraordinary rapidity; nor even now, when the learned lord declared the amendment made the bill worse, had he condescended to state the reason why it did so. With respect to the haste in which the bill had been passed, he was aware that there were precedents for it; but of what avail were precedents when the reasons for them had ceased to exist, and no reason whatever had been stated, independently of mere precedents, why the bill should be passed with such extraordinary rapidity? How did it happen that only two days should have been allowed to that House to pass the bill whilst, a week had been allowed in the Commons what became in this case of the pressing and urgent danger? But why hurry the bill through with a clause placing the people of England and Scotland on a different footing, without the least explanation of such a clause? Surely it was not only dealing hardly generally with the House, but still more hardly with those noble lords who had supported the measure, first to call upon them to agree to the measure as originally drawn and then to say, here is an amendment made in a most material part of the bill, which makes it much worse; how it makes it worse cannot be explained, but still it is necessary the bill should pass as it is. So far as appeared the amendment was a most material improvement, and certainly it had his entire approbation. With regard to the bill itself, his opinion remained unaltered, no sufficient reason having been urged to prove its necessity; the only good part of it was the omission of Ireland, which he certainly rejoiced to see, and he trusted it would have a good effect in promoting the tranquillity of that part of the United Kingdom.

The Earl of Lauderdale

also contended, that no reason whatever appeared sufficient to authorize this measure. Whatever he had been able to ascertain, tended, on the contrary, to prove that no necessity existed for such a measure as the present. It was not because some poor wretches chose to set up for conspirators, that the whole people of England and Scotland were to be deprived of their liberties. Adam Smith had justly said, that the desire to have any thing did not create a demand for it, unless there were the means to procure it. So with respect to some low and illiterate men, they might desire to be conspirators, but where were their means? If they possessed no means of carrying their conspiracy into effect, how could they become formidable to the state? In Glasgow, for instance, where much had lately been said about arrests, who were the people arrested Poor and illiterate men, who had no means whatever of doing mischief, at least that might not be effectually counteracted by the ordinary laws. Of this description were the dangers which were urged as the pretext for this bill. With respect to the amendment, he thought it a little singular, that the learned lord should refuse to enter into any explanation as to why it made the bill worse.

Earl Bathurst

defended the report of the secret committee. It was a report which had been unanimously agreed to, although the noble lords of whom the committee had been composed were of different political opinions. The same was the case with respect to the report of the secret committee of the House of Commons. Both reports stated distinctly that the existing laws were not sufficient to meet the danger with which the public peace was menaced. The question, therefore, was as to the degree of sedition in the country, all agreeing that sedition there was. Was it of a magnitude sufficient to require a measure of the kind which had been introduced? In his opinion it decidedly was. A noble earl had said that an offer had been made to disprove at the bar the facts on which the report was founded. This he denied. There was nothing in the statements adverted to which affected the character of the report. With respect to the London Union Society, although it might not exist at present, its printed resolutions were spread and adopted throughout the country, in which it had formerly established an extensive correspondence. The proceedings of the Sheffield Union Society were proof of this. The noble earl, in speaking of the amendment had argued as if it exhibited great inaccuracy on the part of their lordships to allow such an error to have passed unnoticed. The learned lord on the woolsack had, however, told their lordships that the provisions of the bill, when it left their lordships House, were the same as they were in the bills for the suspension of the Habeas Corpus at former periods. The noble earl had closely attended the proceedings on some of those former bills, and yet, somehow or other, this gross, error, as he termed it, had always escaped his attention. Nothing had been stated to show that Scotland had particularly suffered from the former bills; and certainly, therefore, the renewal of the same provisions in the present bill afforded no proof whatever of censurable hurry.

Earl Grey

wished to make a few re- marks on what had just fallen from the noble earl. The noble earl seemed to think, with reference to the circumstances in which the suspension of the Habeas Corpus originated, that the only question was one of degree, and that it was on all sides admitted, that a danger existed in the country which required that the hands of the executive government should be strengthened. If the noble earl in this remark alluded to what he (earl Grey) had said on a former occasion, the noble earl had entirely misapprehended him. Certainly he had never said that there was no danger; but the whole drift and tendency of his argument had been, that while he admitted the existence of danger to the fullest extent in which the noble lords opposite were disposed to assert its existence, he contended that the danger was not of a nature to call for any new legal provisions, and least of all for the adoption of a measure which in its effect suspended for a time the entire liberties of the people of England. To that opinion he adhered; notwithstanding what had been said by the noble and learned lord who maintained that great as was the danger in 1794, the present danger was of considerably greater magnitude; that great as the danger was in 1715 or 1722, or 1715, when the Habeas Corpus was formerly suspended, it was infinitely surpassed by the danger of the present period. "For," said the noble and learned lord, "we are not now called upon to consider whether this or that family shall sit on the throne, but whether all law, power, and authority in the realm shall or shall not be maintained." He would ask the noble and learned lord, whether that was the way in which the dangers of 1715, 1722, and 1745 ought to be stated? Was it merely a contest at that period as to the person of the sovereign? Was not the danger of destroying the principles on which the revolution had been founded, greater than could have resulted from the mere substitution of one family for another? Would not the success of the descendants of James 2d, have occasioned nothing less than the utter subversion of the laws and liberties of the country? The noble and learned lord, as one of the causes which, in his opinion threatened so much danger at the present moment to all law, authority, and government in the realm, had spoken of the seditious publications calculated to deaden all sense of morality and religion, without which, the noble and learned lord truly observed, no law, authority, and government could continue to exist. He (earl Grey) was very far from under-rating the evil of such publications; but what he contended was, that the danger threatened by those means might be met by the law as it stood, and was not such as required the suspension of the Habeas Corpus, or which that measure was at all calculated to meet. But was it true that this was a period peculiarly irreligious? He had heard of the evil arising from the increase of Methodists, and some of the reverend prelates opposite had expressed much alarm ac the great diffusion of bible societies; but certainly these circumstances, whatever else they might prove, did not prove that there was any great degree of irreligion in the country. On the contrary, in his opinion, if there was any one time in which the danger of superstition was more to be apprehended than the danger arising from, the neglect of religion, it was the present. No case had been made out in the report to justify Such a step as the suspension of the Habeas Corpus; and he repeated, that the existing laws would have been quite sufficient to remedy the existing danger, had the executive government done their duty. The report detailed no evidence. It required implicit confidence, without exhibiting the slightest ground on which that confidence ought to rest. This was a great deal too much to expect from their lordships, more especially when such circumstances had arisen to shake the authority of the report. The noble earl had treated this part of the subject as of no importance. Had not an offer been made to disprove at the bar the existence of the identical society, which according to the report, was the centre from which emanated the danger that threatened the country? Why were not the secretary of the alleged society, and the lord mayor and Mr. Alderman Good be here allowed to come to the bar to give evidence of the dissolution of the London Union Society? If this fact was not a material one in the report, what deserved to be so called? It formed one of the" fundamental features," as it might perhaps be termed in another place of the report. Shaken as that report was in so material a particular, parliament ought no longer to proceed upon it as the ground of a legislative measure. It was true that the noble earl talked of a Sheffield Union Society and of other provincial Union Societies; but the information which the committee had obtained of these societies was evidently of an ex-parte kind, and could not be much depended on if it were considered that the same committee asserted the existence of the London Union Society although the president and secretary were ready to testify that it had not met for three years. The noble earl had made a technical objection to his noble friend's motion, by saying, that as his noble friend did not object to the amendments made by the Commons in this bill, he ought not to propose to put off the consideration of them. But the noble earl ought to know enough of the nature of the proceedings in that House to be aware, that however a part of any measure might not be disapproved of by any noble lord, a proposition, by which the whole measure might be got rid of, although it bore, in the first instance, only on that part, was completely fair and allowable. Feeling as he did, that the present was the most uncalled for attack ever made on the liberties of the people, and viewing it as a most dangerous precedent to establish, if his noble friend pressed the question to a division, he would certainly vote with him, not because he objected to the amendments, but because he wished to get rid of the bill altogether. As to the amendments, their lordships appeared to him to be placed in a strange situation. Did they know precisely in what way the people of Scotland were affected by the bill? The learned lord had said, that the bill, when it left their lordships House, was precisely in the form in which bills of a similar description had been passed, and that it was infinitely better in its former than in its present shape. He (earl Grey) must take shame to himself on this subject. He confessed that when the bill was before their lordships, he had attended entirely to its principle—mischievous and dangerous as he felt it to be—and had not adverted to the details. This indeed he felt less called upon to do, as the noble lord who opened the measure, stated that it was to be confined to Great Britain, a necessity for it not existing in Ireland; and he naturally supposed that England and Scotland would be placed with reference to it, precisely in the same situation. As that, however, was not the case, he thought their lordships had a right to complain that their attention had not been directed to the different situation in which the two countries were actually placed. It was nothing to their lordships that the bill in its original state was in the same shape as former bills had been. The question was, whether that state was a proper state at present? For an explanation on this point their lordships might seek in vain in what had fallen from the learned lord. The learned lord had, indeed, said, that the bill was infinitely worse than before, but he had not told them in what respect it was so. What was the situation of the people of Scotland by the bill before it received any amendment? Was it better or worse than that of the people of England? If worse, why had it been so? If the same, would their present situation be better? It was rumoured that the amendment would render the law altogether nugatory as it respected Scotland. If so, the House had a right to an explanation from the learned lord of the way in which that would be the case. The danger in Scotland had been described to be as great as the danger in England; and yet their lordships were now called upon to agree to a measure without knowing whether or not it would be effectual in Scotland.

The Amendment was negatived without a division. The Amendments made in the bill by the House of Commons were then agreed to.