§ The order of the day having been read for the second reading of the Indemnity bill,
The Duke of Montrose
said, that in rising to move the second reading of this 618 bill, it appeared to him necessary, as a justification of the measure, merely to refer to the circumstances which had caused it to be brought forward. In doing this, he should have to trouble their lordships by recalling to their recollection what had been the situation of the country during last session, and for some time preceding its commencement. He might perhaps, by some, be thought to deviate from the object under consideration, by the period to which he was disposed to trace back the circumstances which had rendered the measures adopted in the last session necessary; but he could not refrain from referring to the alarming symptoms of disorder which had prevailed in some parts of the country for several years past. Their lordships was well aware of the atrocious transactions which took place in the disturbed districts of Leceister and Nottingham, where the destruction of frames and houses, and the perpetration of murder, was carried on by regular combinations, of a character altogether unknown before in England, to the astonishment and terror of the country. And to such an extent were the machinations of these individuals carried, that it appeared from the confessions of persons who had been executed, that a premium was offered for murder, that a project was entertained for shooting the judge upon the bench, that a plan was actually in contemplation for assassinating him in his way from one place to another, and that money had actually been raised for carrying that plan into effect. The spirit which operated in these transactions, it was not difficult to see, would extend itself by degrees, and accordingly they found that it spread, in the course of no very long period, over a considerable district. Numerous individuals became contaminated, and projects were entertained of overthrowing, by force and violence, the laws and constitution of the country. Clubs of various names and descriptions, and union societies, had been formed in different parts of the country, under the pretence of seeking a reform in parliament. These clubs communicated with each other, and with associations of the same kind in London. They even appointed delegates to assemble in the metropolis. The institution of these clubs was followed by public meetings held in different quarters of the country, at which the most inflammatory and seditious language was used. And at what a period were these projects at-†619 tempted to be ripened?—at a time when the commerce of the country was in a great degree suspended,—when there was no demand for our manufactures,—when a numerous and deserving class, the agricultural labourers, could not find employment,—when the farmers could find no market for their produce,—and when, as their lordships knew, they were no longer able to pay their rents. It was at such a period, when numerous classes of individuals were experiencing the greatest distress, that inflammatory agitators endeavoured by every perverted means in their power to render those who, under the pressure of distress, were peculiarly susceptible of discontent, parties to their insurrectionary and revolutionary projects. At that most extraordinary and distressing period, meetings of the nature of those to which he had already adverted took place in the metropolis and various parts of the country. Their lordships would recollect the two which had been held in Spa-fields. The second of these had led to robbery and assassination, if not to high treason. That alarming disturbance was soon followed by the atrocious insult and attack on the person of his Royal Highness the Prince Regent, which took place while he was in the act of proceeding to exercise his royal functions in that House. After that transnction, it became the duty of government to take measures to defeat the machinations of these individuals, and their lordships and the other House of parliament thought fit, in consequence of the general state of the country, to institute a Secret Committee to inquire into and report on the evidence laid before them. The opinion of those committees had been solemnly recorded and sanctioned, upon the report of their lordships committee being laid upon the table; and upon it a bill had been introduced and passed for suspending some part of the act of Habeas Corpus, namely, in its application to the apprehending of persons charged with designs against his majesty's person and government. That bill was opposed, and underwent much discussion. It was asserted, that the existing laws possessed sufficient strength and energy to protect the constitution; and it was asked, why resort should be had to the measure then proposed, when the disturbances complained of could be suppressed without it? His answer was that those who proposed the suspension of the Habeas Corpus were not afraid of the contitution. They 620 did not apprehend that the constitution would be overthrown. They had no fear that their lordships would be interrupted in the exercise of their functions, or that the succession of the throne in the house of Hanover would be altered. It was not from any apprehensions of such a nature, that the measure had been introduced. All the fear the supporters of the bill had, was for what might befal the unfortunate persons to guard against whose misconduct its provisions were framed. It was for the sake of these infatuated men, for the sake of humanity alone, that the suspension of the Habeas Corpus act had been proposed; and here he would ask their lordships, as a noble lord had emphatically done, when the bill was in progress in that House, whether they did not think it better to prevent crimes than to punish them? His noble friends were perfectly sensible that they could, in the ordinary state of the law, have put down every disturbance which had taken place. They could have easily employed force enough for that purpose; but then it must have been employed at the expense of thousands of lives. Their lordships therefore passed the act for suspending the Habeas Corpus on the ground of humanity, as well as for securing the peace and tranquillity of the country. With a view to these objects it had appeared to them indispensably necessary, and in passing it they must have looked forward to the introduction of the present bill, which was the natural consequence of their agreeing to suspend the Habeas Corpus act. The present bill was merely a corollary deduced from that which had preceded it. Their lordships had hoped, that the first act for suspending the Habeas Corpus, which had been passed during the last session of parliament, would have been sufficient to restore tranquillity to the country; but in this they were disappointed, and it had been found necessary to renew it. Public meetings, of a seditious and inflammatory tendency, continued to be held; and one in particular, of a very alarming description, took place at Manchester. At that meeting it was proposed to petition the Prince Regent; but the petitions were not to be conveyed to the foot of the throne in the usual manner: they were to be carried up to the metropolis by large bodies of persons, who evidently intended to seek their object, not by prayer, but by alarm or force. What would have been the consequence, had 621 these men been permitted to proceed on their march from Manchester in such numbers? They would in all probability have committed numerous robberies and murders on their way; and it was impossible to forsee what mischief might have been the result of their project, had they been suffered to come near the metropolis. He did not wish to rest the introduction of the present bill on precedent; the ground on which he proposed it, was necessity. Their lordships could not avoid passing it; for, as the circumstances to which he had referred justified what had already been done, this measure must necessarily follow. Their lordships were called upon to pass the bill in justice to his majesty's ministers, and the magistrates who had acted upon the suspension of the Habeas Corpus in the disturbed districts, and to whom, in his opinion, the thanks of parliament and the country were due. If their lordships did not pass this bill, they would hereafter look in vain for the exercise of that vigilance and prudence, by which the magistrates had prevented the greatest of evils from befalling the country. Were they to reject this measure, which was necessary to protect those to whom the country was indebted for its present tranquillity, they would never again have the opportunity of preventing insurrection. They might, indeed, put it down when it did take place; but then that suppression could only be accomplished by force, and with much bloodshed. From the papers which had been laid before the committee, he was certain that the magistrates had performed the duties which were imposed upon them with the greatest prudence and humanity. He doubted, indeed, whether all the persons who ought to have been apprehended had been taken into custody and detained. Some of their lordships might be surprised at this observation; but if they had examined the papers as he had done, they would be of the same opinion. He should not trouble their lordships with any farther observations, as he conceived that the circumstances he had recapitulated sufficiently proved that the proposed measure was one to which they were bound to give their sanction. His grace concluded by moving that the bill be now read a second time.
The Marquis of Lansdowne
said, he did not rise for the purpose of attempting to persuade their lordships to refuse altogether to entertain, the bill, which it was 622 now proposed to read a second time, but to call their attention to the nature and extent of the proceeding recommended to them by the noble duke, not only with reference to its importance, as it might oppose the just claims of persons who had been injured, but also, with reference to its legal character and consequences. Affecting as it did the rights and properties of the people, it inflicted, in conjunction with the bills of last session, a serious wound on the constitution; he was therefore of opinion with the noble duke, that it was impossible to separate the consideration of the present bill from those which had passed last session; but, notwithstanding what had fallen from the noble mover, he could not believe that it was intended by the noble duke to maintain that the passing of the present bill was a necessary consequence of the Suspension of the Habeas Corpus act. The noble duke surely could not think of seriously supporting such a proposition. As it was one which could not possibly be admitted by their lordships, the noble duke would doubtless on due consideration abandon it. Were it possible to conceive that the present bill could be regarded as a necessary consequence of those which had been passed in the course of the last session, it would then be no profitable employment of their lordships' time to consider what had been done under these acts, which, however, the noble duke had thought a fit subject to be dwelt on. But if it really was intended that the present bill should be a consequence of the measures of last session, would it not have been more candid and manly to have said so at the time these measures were introduced? No such declaration had, however, been made. On the contrary, when the suspension of the Habeas Corpus was in the last session under consideration, it was said that ministers were responsible for the exercise of the powers entrusted to them by these acts. If this measure of indemnity was a necessary consequence, where was the responsibility? Were they then to understand that at the time the suspension of the Habeas Corpus was introduced, and the responsibility of ministers was so much vaunted of, it was determined to bring in this bill of indemnity to render that responsibility a mere name?—He could not indeed believe it possible that the noble duke meant to say that the act of the last session rendered the present measure absolutely necessary, and that a 623 bill of indemnity was to follow as a certain consequence of the Suspension of the Habeas Corpus.
The Duke of Montrose,
after alluding to what he considered the irregularity of calling upon a peer to explain, proceeded to observe, that he had never intended to say, that the present measure was rendered absolutely necessary by the act of last session for suspending the Habeas Corpus. The words he had used did not go to the extent to which the noble marquis had interpreted them. Their lordships had passed a bill in the last session of parliament for the suspension of the Habeas Corpus, in the hope of avoiding the necessity of proceeding farther. If their lordships had not approved of the conduct of ministers, they would not have a second time invested them with the same powers by the renewal of the bill. Though this bill was according to his view, a necessary consequence of those passed in the last session, it was not strictly so, unless the House approved of the conduct of ministers.
The Marquis of Lansdowne,
after observing that the noble duke was in the first instance irregular in speaking from his seat, said he did not believe it possible that the noble duke could have intended to use such an argument, but the noble duke having asserted that the present measure was a corollary to the acts of the last session for suspending the Habeas Corpus, it certainly led to an impression that he actually did view a bill of indemnity as a necessary consequence of the suspension of the Habeas Corpus. Certainly it was not what he should call a corollary; nor did he understand how the noble duke could so call it if it was to depend upon the conduct of ministers.
The Duke of Montrose
again begged that he might not be represented to have said what he did not mean to say. He did not use the word corollary in the sense imputed by the noble marquis; all he meant to state was, that if ministers had acted upon the measure of the last session with the approbation of parliament, an act of indemnity ought to be a necessary consequence.
The Marquis of Lansdowne
did not agree exactly with the definition of the 624 noble duke of the term corollary, to which he annexed a somewhat different meaning from that attached to it by the noble duke. It was certain, however, that if the measure of last session had not been acted upon, there would be no necessity for a bill of indemnity; of this no one could doubt. Recurring to the measure before the House, he observed that it would still be necessary for their lordships to inquire into the state of the country before and after the suspension of the Habeas Corpus act passed, in order to ascertain how far it was proper to press the bill before them. The grounds on which the former bills had been passed were stated in the reports of their lordships committees. It was asserted that a spirit of sedition and insurrection prevailed throughout the country, and that there existed plans in the metropolis, the midland counties, and Scotland, for resisting the laws, and overturning the constitution, by violence. Now he maintained, that unless this intended violence was not only proved, but proved to have existed to such an extent that the ordinary laws of the country were incapable of overcoming it, all the pretences which had been set up for suspending the Habeas Corpus act were unsound and fallacious. It was stated in the recent report of the Secret Committee, that there were a number of persons in London who were still bent on pursuing mischievous projects; and in this opinion he felt himself bound to declare his concurrence; it undoubtedly appearing that there were a number of persons who, in spite of every disappointment, were still employed in mischievous projects, and who still, notwithstanding their diminished means and diminished resources cherished the hope of carrying their projects into effect. But how, with regard to these individuals, had the suspension of the Habeas Corpus operated? Their lordships must perceive, that although there certainly did exist in London such a disposition, those who cherished it must, indeed, be very few in number; for, notwithstanding the powers given to the noble secretary of state, and his vigilance in detecting treason, he had found no persons whom he thought so dangerous as to render their arrest necessary, except the two Evanses, the Spencean philosophers. All the other leaders of the disaffected in London had been allowed to prosecute their dangerous projects without any interruption. He could 625 easily understand how a number of men could be deprived of their leaders under the operation of the Suspension act; but he could not understand how, by any operation of that description, the leaders could be deprived of their followers. Every advantage the designing could desire had been offered to them; during a year of unparalleled distress, they had repeated opportunities of working on the passions of the people of London; but after all, they had been able to effect nothing; every day saw them with diminished hope and diminished forces; and when it was most important for them to call their ranks together, they could never at any one point muster more than 50 or 100 individuals out of a population of 800,000 people. He mentioned this as most decisive of the weakness of those persons to whom so much power to produce mischief had been imputed. He mentioned this as most decisive to the state of feeling in the population at large; because, if any experiment could be tried on the temper of society (he was far from wishing that any such experiment should be tried), none could have afforded a more decisive result than this, where mischievous men had been at work through a whole year of great public distress, and at the end of it were found to have failed in producing any effect from all their machinations. But it was perfectly true that there had been, and he certainly believed were still, persons actively employed in diffusing violent and erroneous opinions; and it was singular that the persons most actively employed as mentioned in the two reports of last session, were incapable throughout of proportioning the means to the end; they never once appeared to consider with what insufficient means they thought to compass their projects. In all the circumstances, in all the bearings of these proceedings, it would have been much more effectual if parliament had conferred extraordinary powers on government to consign the objects of their fears to Bedlam, rather than to his majesty's prisons; and so much easier would it have been to convict them of madness than of treason, that it would never have been necessary for Dr. Monro to call on the House for a bill of indemnity for taking proper care of them in that unhappy receptacle. This, then, was the case of the disturbances that had taken place in London. He should now come to the case of the 626 midland counties, as set forth in the reports of last year and the present session. It was here necessary for him to state, that in the midland counties as elsewhere (notwithstanding the state of London was such as he had just shown), it was generally believed that a large body of people were ready to co-operate with any who should join them. How that belief obtained ground he would not now discuss; that it had been produced, in Yorkshire especially, by that delegate from London, better known by the name of Oliver was undoubtedly true; but to what extent other parts of the kingdom had been operated upon by inflammatory speeches and the writings of persons resembling madmen (for madmen they did resemble), what portion of the expectation was derived from the latter, and what from Oliver he could not pretend to say. He certainly was bound to say that Oliver did exceed his instructions; and he wished their lordships to observe this, because the evidence which showed the improper instigation of Oliver, was of the same nature as that on which several persons informed against by Oliver had been arrested, and if there was any objection to the one, the same objection must apply to the other also. In both cases the evidence was that of parties concerned in the transaction; and here he begged leave to call the attention of their lordships to the nature of those transactions in which (though it was impossible to assign on what ground and motives) the impression he had alluded to existed in the midland and other counties. And what, even under that impression, took place in those counties? Their lordships would read, in the report of the committee, a detail of what took place near Derby, and of the insurrection that broke cut in Yorkshire; they would find how small was the number of the rioters, and with what extreme facility they were put down; indeed, the object had rather been to overtake than to put down sedition: they would find what was the disposition of the inhabitants of the neighbouring counties and of the surrounding villages, in the very centre of all the disturbances that had taken place; these people were at least neuter; and on many occasions appeared to entertain an absolute hostility against the insurgents. Such was the extent of that insurrection; and, whatever its amount might be, no diminution of it was effected by the suspension of the 627 Habeas Corpus. In Derbyshire, the suspension had afforded no check whatever to the disaffection that existed. The disturbance there took place under the reliance that the discontented of that district had on their leader; it took place on the nomination of Brandreth, called the Nottingham captain, who was appointed to command the expedition. Here then was the whole extent of the operation of the suspension of the Habeas Corpus in that country. He knew it would be said, that if it had not been for the operation of that measure, the same disturbances would have taken place in other counties. He would ask, in estimating the extent of such a possible insurrection, even in places where the disaffected possessed the strongest hold—he would ask if, even in those places, it would not have been put down with equal facility; if there would not have been found in each of the adjourning counties one magistrate, one colonel, one sergeant, and eighteen men, for no more of each had been employed to quell the whole force of the disaffected in Derbyshire! But the noble duke had insisted, that the object of government was to prevent, rather than put down. Had the noble duke considered what had been the effect of the most arbitrary power, the abuses of imprisonment, the false information, the insecurity of persons and of property, which always ensued, under the pretence of preventing crimes which the policy of this country thought it more wise to leave to the public forms of justice? He had stated on supposition, that if similar insurrections had taken place in all the counties, they would have been put down in a similar manner. But what did really happen? Some persons attached to the left wing of this formidable insurrectionary army of Derbyshire had committed, burglaries in Huddersfield; they had broken open houses; they had been arrested without any exercise of the powers conferred by the suspension of the Habeas Corpus; they had been tried at York for burglary; but in consequence of the prevarication of an old woman, the only witness, they had been all acquitted. But it was not from Yorkshire or London only that the deluded persons at Derby expected to receive support; they expected it from Scotland also, and their expectations had certainly not been frustrated by any exercise there of the extraordinary powers conferred on 628 ministers. When the report came out, it was stated that all the manufacturing districts of Scotland, Glasgow, Edinburgh, and a variety of other towns, were equally implicated in the conspiracy to overturn the laws and government of the country. It was already, however, known to their lordships, that in consequence of the wording of the Suspension acts, there was a doubt whether they extended to Scotland, and that, in point of fact, they did not at all operate in that part of the United Kingdom. What was the consequence? Not a symptom of insurrection appeared; all was perfectly quiet. They had been told of an insurrectionary spirit to an alarming extent being prevalent in the south of Scotland, and the insurgents, it appeared, or some persons amongst them, talked of the clouds from the North that were to join them; but notwithstanding all these circumstances, notwithstanding the suspension of the Habeas Corpus did not operate there, Scotland was perfectly quiet. In Scotland there was no movement at all! In Derbyshire, no movement took place till the Suspension act had passed. In Scotland, which was left to the course of its own law, there was no movement at all! What were we to infer from this? In Scotland, where the remedy could not be applied, the cure had been most complete. Insurrections had taken place in Derbyshire, where the extraordinary powers might have been supplied; and none in Scotland, where they had not been used. He had now stated the situation of the metropolis, the midland counties, and Scotland. The result was, that in the metropolis, without any exercise (except as to the Evans's) of the extraordinary powers vested in ministers, any danger that might originally have existed had been gradually diminishing. In the midland counties the suspension had not operated to prevent the insurrection as originally planned; an insurrection did take place, and treason was aroused to its full developement, but was attended with no evil even to those in its immediate vicinity, and of all others most immediately affected. In Scotland, where the suspension had never been acted on, the country was a scene of unbroken tranquillity. He said tranquillity, because the trials that had taken place in Scotland had afforded no proof whatever that that tranquillity had there been even menaced. He must consider it as an extraordinary proof of tranquil- 629 lity, that after all the instances that had been offered of a disaffected spirit prevailing there; after all the representations of his majesty's ministers, and the various allegations in the different reports; after all that had been stated of Glasgow, Edinburgh, and the manufacturing districts, his majesty's law officers could bring none to trial but an old clergyman, the rev. Neil Douglas (against whom nothing could be alleged, but that he had used some violent expressions in a sermon, and even that allegation, although such expressions if they had been used in the hearing of a public congregation could not be difficult of proof, was found to be not proven), and two others, who had used improper words at a public meeting, all of which, in the sentence of the court amounted only to "indecorous, absurd, and improper expressions." These were all his majesty's law officers had prosecuted, with the addition of one other,—he meant M'Kinley, who (after conduct on the part of the Crown prosecutor to which he should not now advert, but which he thought loudly demanded a separate inquiry) was returned to his family without any substantiation of the charges brought against him. These then were all the cases that the ingenuity of the law officers of the Crown in Scotland could rake together; not the slightest symptom was there of any insurrectionary movement. Having now stated what was the situation of the country at the time of the suspension of the Habeas Corpus be begged to remind their lordships, that he had set out with undertaking to dwell only on that statement which went to show that there had existed any real danger to the government of the country, because it was unnecessary in any case but that of actual violence to have recourse to a suspension of the Habeas Corpus. He had on a former occasion stated, that if the House, instead of inquiring for designs of violence, and searching out for treason arrayed, had only inquired whether erroneous and mischievous opinions existed, and to what extent, they would have found that whole classes of people were affected by foolish and impossible doctrines; but he hopedhe should not be told that such opinions were to be repressed by the measures of an arbitrary government. On the contrary, it was he thought, quite clear, that these erroneous and absurd notions were principally caused by the pursuits of such arbitrary measures, 630 and by the withholding public justice from the jurisdiction it ought to exercise over offences. Such proceedings formed the noxious aliment on which these opinions were nourished, and it was by adhering to such proceedings that the surest handle was afforded to those who were disposed to inflame and mislead the public mind. The noble duke had said it was better to prevent insurrection than to put it down when it took place. He was willing to believe that the noble duke when he used this argument was not aware of all the consequences to which it might lead. There could be no more arbitrary powers granted to the most arbitrary police that ever existed in any country in Europe, than those of preventing offences by capricious regulations. It was of the very essence of a free government, that offences should be only met by the laws when they were committed, and that then the offenders should be in the due course of the administration of justice brought to trial. Let them adhere to the law, and they would be safe. Let the danger be what it would in appearance from any seeming spirit of discontent, if they confined themselves to the defence of the citadel of the constitution—if they exerted themselves to defend that tower of strength, built upon the wisdom of ages, the law of the constitution, they might rely upon the support of the people—they might rely upon maintaining the constitution against every attack upon it, and preserving it unimpaired amidst the gratulations of the great majority of the nation, notwithstanding every shock by which it could be assailed. It was in vain to conceal that there was considerable discontent amongst a numerous class of individuals, but it was a most important object for their lordships consideration, whether the appearance of arbitrary measures, whether the appearance of injustice towards individuals did not materially contribute to increase that discontent; whether, also, that increase was not aided by the want of that publicity with regard to charges against individuals which was justly considered as a most essential part of the liberties of the country. Let them revert to the known and established laws of the country, under which all persons accused had the advantage of a free and open trial, and much of that discontent which now prevailed would probably be done away. And this led him to the particular measure now under the considera- 631 tion of the House; a measure which in character at least was an additional invasion upon the laws of our country. He said, additional, because the suspension of the Habeas Corpus, however violent and improper, was at least a temporary measure, while this would have a permanent effect to the end of the lives of those who had suffered under the former measure, and would be appealed to as a precedent in future. He had said before, that he thought it impossible for any noble lord to contend that a supension of the Habeas Corpus should necessarily be followed by a bill of indemnity; but if reason were not sufficient for such an assumption, be was also borne out by historical precedent. The Habeas Corpus act had been often suspended; but, in 1722, sir Robert Walpole, a minister who ought never to be mentioned without respect, would not call for any bill of indemnity. After other suspensions, different bills had been adopted and proposed, but none to the extent of the present, except in 1801, or that of Ireland in 1798; which he did not mention, because he hoped the transactions of that dreadful period would never be called a precedent for any proceeding whatever. If their lordships considered not only what provisions the present bill contained, but what persons were chiefly affected by it, he trusted they would pause before they proceeded. Their lordships were in possession of the report made by the committee. When that committee was appointed, he had suggested that it should be armed with full powers to make a complete investigation, and to send for papers, persons, and records. It had afterwards been proposed to refer the various petitions from parties aggrieved to the consideration of the committee. Whether that had been acceded to, or it had been understood that the committee should have power to send for papers, persons, and records, was of no material importance; but he did consider it worth their lordships attention to have made a full and impartial inquiry, or still to make it, before they passed a bill which affected the interests of so many who claimed redress, which professed to exclude them from that redress, and set aside the whole intent and effect of equal laws. If their lordships hoped to satisfy the public, they could not proceed to pass such a measure without completing the inquiry. If such inquiries were inseparable from indemnity bills in general, they were more especially necessary 632 in the present instance. He did not say that he should oppose an indemnity in all cases of suspension; but he entreated their lordships to look at the provisions of this bill before them. It provided an indemnity not only for those who were authorized to commit and detain under the suspension act, but for all persons who, not only during the actual suspension of the Habeas Corpus, but from the first of January last, had detained any parties whom they might suspect, however un-warrantably, of being disaffected towards his majesty's government. It included not only secretaries of state, privy counsellors, magistrates, but also all officers, spies, informers, or any other persons employed intermediately or otherwise under the government, who might in any manner have contributed to the detention of persons they might think fit to deem objects of suspicion. Would their lordships at once rob and confiscate the legal rights and claims of a description of persons so large as those who had been affected by the late extraordinary measures, without affording them an opportunity of making their complaints heard, and holding out a hope of some redress to those who, under every precaution, might have fallen victims to misrepresentation or mistake? Their lordships committee had done their duty, but the duty committed to them was only that of inspecting papers submitted to them by the Prince Regent. Let their lordships consider to what an extent such an indemnity would operate, they knew not indeed, nor could they know without inquiry, how many persons who had been outraged or injured, would be thus precluded from obtaining redress by the laws of their country, who would be thus shut out from every channel through which they could obtain the slightest remedy for the grievances they had sustained. Measures which went to set aside the laws of the country, might, in the way of precedent, operate upon persons yet unborn; and it behoved them to take the most sedulous care that gross injustice was not committed, in order that it might not be drawn into precedent to operate, perhaps, still greater injustice at a future period. He thought it essential to the cause and purposes of justice that time should be allowed for persons, who thought they would be aggrieved by this measure, to petition that House, and to be heard at the bar with regard to the grievances of which they complained, in 633 order that their lordships might be aware of what it was they were called upon to enact, and that previous to proceeding farther in the bill, they might refer such petitions to a committee, to ascertain the nature and extent or reality of such grievances. For this course there was a precedent in the other House in the 1st William and Mary, where, upon a bill of indemnity, petitions were received, complaining of arbitrary conduct on the part of judges and others, which petitions were referred to a committee to report upon their contents. Why that course should not now be adopted he had yet to learn. He knew it might be stated, and with some chance of approbation from many noble lords, that the individuals affected were worthless characters. Certainly, with respect to those be had heard of, he could not, even before the committee sat, think very highly, and the result of that sitting had not impressed him in their favour; but the distinguishing feature of the British constitution was, that any individual however low, however worthless, however guilty (at least till found so), was an object of as great interest as any one of their lordships basking in the sunshine of fortune; and in this measure was concerned the fate, not only of many such individuals, but also the hopes and happiness of hundreds who were yet unborn; for though the individual himself might be worthless, the principle involved in the trial of his case might be of the greatest importance to future generations. It was the duty of the legislature to prevent men from being deprived, under any hasty analogy of the benefit of laws and privileges they inherited by birthright. He was not now disputing the propriety of entertaining the bill at all (it might or might not be a necessary appendage to the last act of the legislature, to which it referred), he only asked their lordships not to deprive men of their rights, not to extinguish every hope of redress, by adopting this measure without some proceeding of inquiry more full and extensive than that they had hitherto been satisfied with. He entreated them to adjourn the question for one fortnight; it could expose them to no inconvenience, as the ex post facto law they were proceeding to pass would cover all the interval, and it would afford time to deliberate on the claims of parties who had been aggrieved. He therefore moved, as an amendment to the noble duke's motion, 634 that the word "now" be omitted, and the words "this day fortnight" inserted instead.
The Earl of Liverpool
said, that as far as the objections of the noble marquis related to the particular provisions of the bill, as the present was not the time for entering into their discussion, he should postpone what he had to submit in reply upon that part of the subject till the House should have gone into a committee. He should be prepared to show, at the proper opportunity, that the present bill did not go beyond acts of a similar nature in any of its provisions; but whether it did or not, the only question now to be decided, was, upon the principle, in discussing which they were only bound to say, whether, after the proceedings of the last session of parliament, and the report which was now on their lordships table, it was fitting that a bill of indemnity should be granted, of the same general nature with those which had been formerly passed under similar circumstances. The noble marquis had alluded to an expression of his noble friend's, which he had certainly, though he would do him the justice to believe not wilfully, mistaken and misrepresented. He had described his noble friend to have said that the bill of indemnity was a mere corollary, a necessary consequence of the suspension of the Habeas Corpus act. But as he understood his noble friend, he had said no such thing; he could not have said it.—No, his argument was, that after such a report as that presented by their lordships' committee, a bill of indemnity seemed to follow as a measure due in justice to those who had been intrusted with the difficult task of carrying the act of suspension into execution. How then did the question stand? With regard to the first point referred to by the noble marquis, as to the extent of the danger which threatened the country at the time when that measure was judged necessary by parliament, it could not be denied that, whether well or ill-founded a sentiment of great alarm, pervaded numerous classes of society. Parliament thought it necessary to inquire into the fact, and the result of that inquiry was a similar persuasion upon their parts. The danger appeared to them of such a magnitude as to require that ministers should be armed with a power to take up persons suspected of high treason, and detain them in custody in a maner not authorized by the ordinary law of the land. Parliament 635 had deemed it necessary to adopt the same course in other cases, no matter whether few or many, when the constitution was threatened with danger. In those cases they appointed committees and acted upon their reports. It was so in the present. They appointed two committees at several periods during the last session. The first committee recommended that such powers should be invested in his majesty's government, and the second committee recommended a farther extension of those powers under the circumstances then existing. Under this second act of suspension, some individuals had been arrested and detained. But, at the commencement of the present session, on the first day of meeting, his majesty's government came down to the House and stated that those powers were no longer necessary; that the causes which existed during the last session happily existed no longer, and they proposed the immediate repeal of the measures under which they had acted for the protection of the country, and which would have been in force more than a month longer had they been permitted to run to the limit prescribed by the enactments. If any one in that state of things had moved for a bill of indemnity it would have been as a corollary to such proceedings, and not to the mere act of the suspension. But that was not the course pursued? Government were anxious to lay every information with respect to their conduct before the committees of the two Houses of Parliament, in order that they might know how they had exercised the powers entrusted to them generally and particularly, and judge from them how far they were entitled to such an act as they now came forward to apply for. They did not ask for it as a necessary consequence of the suspension of the Habeas Corpus act, but on the ground of the belief expressed by the committee, that the powers committed by parliament to their discretion had not been abused. That and that alone was the ground upon which they now stood before parliament and the country. The noble marquis had said it was impossible to detach the consideration of the Indemnity bill from the Habeas Corpus Suspension act. To a certain extent he was willing to admit the truth of this proposition, but in some respects the two questions materially differed from each other. Unquestionably it was possible that an individual might at the same 636 time admit the existence of the danger, but deny that the measures adopted in consequence of that danger were the most likely to enable the country to surmount it, or were in any aspect of the case a proper or defensible remedy. Yet such a one would, according to his judgment, be bound, notwithstanding, to vote for a bill of indemnity, because the question was not now upon the expediency of granting those powers, but upon the fact, whether or not those powers had been abused by the persons to whom they were entrusted? If parliament was of opinion that such powers were necessary at the time, it would not be fair to say to the executive government, "I will try you not by the opinion of parliament, but by an opinion of my own. I will not take their judgment upon the subject of expediency, but I will form a judgment for myself, and according to my impression upon this previous consideration I will determine to grant or to withhold the bill." This would not be a fair proceeding, even if the suspension of the Habeas Corpus act was not clearly made out to be a necessary and justifiable expedient. But he should not avail himself of such an argument. He was prepared to maintain, that its necessity was distinctly proved by the transactions of last session, and by every thing that had happened since. The noble marquis had traced the internal state of the country from London through the different districts, and had offered a few words with regard to Scotland. He had observed upon the smallness of the number arrested in London under the act. That circumstance he did not mean to dispute; but did it follow from thence, that many were not disposed to disaffection? He would not say that the danger was greater in London than in any other part. The noble marquis he believed was not in England at the time; but he would beg their lordships to recollect what the state of the town was in the months of November, December, and January, at the time of the meetings at Spa-fields, and on the day of the meeting of parliament. He would ask them to recollect what the state of the town was until the alarm had reached parliament itself, and induced them to adopt measures of security, and to arm the government with powers, in order to meet the violence of the times. If their lordships recollected this, he believed they would not say that there was not great danger in 637 London. It was to be seen from the evidence, that many active and able persons, not, indeed, possessing property or respectability, in this town, were concerned in those machinations; but the internal state of the town was obvious to every one. Alarm and apprehension were expressed in every face as they passed the streets. Persons were taken up under the act—some were brought to trial—two were not, but the reason why they were not had been stated elsewhere. Was it nothing that the peace of the country had been secured, that apprehensions generally entertained had been allayed, that confidence had been every where restored? Such were the consequences which all the accounts received from different parts of the country concurred in stating to have attended the operation of the Suspension act. He would undertake to state with reference to this town in particular, that the alarm which was excited among the disaffected by the passing of those bills had materially checked their proceedings. They had the effect of abashing their boldest advocates, of taking the conspirators by surprise, of defeating their schemes both here and in the districts, of forcing them to distrust their cause, and, what was often of greater importance, to distrust each other. It was consolatory to reflect that the temporary suspension of that act, whose existence was so important to our liberties, had accomplished the security of the public peace by means less serious and violent than could otherwise have been accomplished. There were multitudes of instances which proved the sacrifices which it might have been impossible to prevent, without so strong a measure of precaution. The state of London and of the country generally in 1816, and at the beginning of 1817, was such as to require the exercise of this extraordinary power. He thought it material that their lordships should understand the grounds on which he and his friends rested their own defence, and the justification of parliament in passing the act. They did not mean to contend that the proof of the existence of a wicked and treasonable conspiracy would in itself be sufficient to vindicate the course they had taken. When his noble friend and himself were connected with a former administration, a conspiracy of the most malignant nature had been discovered—he meant colonel Despard's plot; yet government did not in that instance resort to the suspension 638 of the Habeas Corpus act because it appeared to have been an insulated proceeding, not ramifying into other and no less dangerous designs against the safety of the government; and though malignant in its character, not extensive in its operation. He was ready to admit that no local disturbance, or partial mischief, would afford sufficient ground for the adoption of so extraordinary a measure. It was upon this principle that the Secret Committee which sat in 1812, to inquire into the disorders and outrages committed in the midland counties, and into the nature of the Luddite associations, although they recommended new legislative measures, did not deem it necessary to suspend the Habeas Corpus act: not from an idea that there was not a conspiracy at the time alarming and dangerous, but because it did not assume a treasonable character, though many persons hostile to the government were concerned in it. However wicked and mischievous the practices of those persons were, and however disaffected many of them probably were to the constitution of the country, their plans were not immediately directed to the overthrow of the government and laws. But what was the situation of this country during the six or eight months by which the necessity of the late measure was to be tried? Not only were the Spenceans active; but, a regular systematic, organised conspiracy was proved to have existed in different parts of the kingdom. It was proved to have been carried on simultaneously in London, in Manchester, in Nottingham, in Leicester, in Derby, and in the West Riding of Yorkshire. The several branches of this extensive confederacy had acted in concert with a view to insurrection and to the subversion of the constitution. He would insist, that under those circumstances it was an act of mercy to the country to pass the act. He well knew that the danger was materially increased by the peculiar circumstances of that period, and it was this consideration which rendered it an act of mercy to protect unhappy individuals from that delusion, which their private distress rendered more than ordinarily powerful. All these facts had been proved, not only by the reports of the Secret Committees to which the evidence had been referred—although that, he conceived, must satisfy their lordships—but in courts of justice, and according to the established laws of the country. The law of England would not be 639 what it was, and what it ought to be, if it did not admit the possibility of a conspiracy being fully proved, whilst the person accused of it was acquitted. He was far from being disposed to reflect upon verdicts of acquittal, and thought that a jury might often conscientiously acquit a prisoner in cases which left no doubt of the existence of guilt somewhere, although from a defect of legal evidence they did not feel warranted in finding a different verdict. But he was fortified by cases in which convictions had taken place, he alluded to the trials at Derby; he would maintain, that they furnished clear, distinct, and explicit evidence of conspiracy. Those trials not only brought to light the circumstances attending the insurrection in Derbyshire, under the Nottingham captain, but showed that a rising took place at the same time, on the 9th of June, at Nottingham, and although the insurgents were comparatively few in number, they were armed and formed in military array marching to join each other. On the same day, or the day before, a similar rising took place at Huddersfield. These proceedings were not caused by a scarcity of provisions, nor had for their object the destruction of any private monopoly, but were parts of a concerted plan and system, organised throughout the most populous districts of the kingdom, with the view of overturning the established government. The noble marquis had said that this insurrection was not prevented by the Suspension of the Habeas Corpus act. He would ask the noble marquis, was he certain that the conspiracy might not have assumed a different character, even at Nottingham, if in the month of June measures had not been taken to prevent it?—The noble marquis had put it to the House, whether every tumult of this description was to be considered as justifying a suspension of the subjects rights? He did not mean to say so, and the cases he had quoted at the beginning of his speech showed that it was not the system pursued by his majesty's government. It must always be left to the wisdom of the legislature to decide according to the nature of the existing evil, whether it could be remedied by due course of law, or required the adoption of some strenuous exertion beyond its ordinary powers. It must always be a question of degree; and in the late instance, the danger was of that extent and degree as to justify parliament in the view which they had origi-¶640 nally taken of it. Parliament had decided that the danger was such as to require the stronger course—that course they accordingly adopted; and it was well known, that from distress and from the difficulties of the times, combined with other causes, a spirit of disaffection, more or less extensive, had manifested itself, not merely in one place, but throughout the kingdom. The conspiracy thus engendered, was not even of short duration. For seven or eight months, from December, 1816, to June and July in the following year, it appeared in constant activity, sometimes appearing in one place, sometimes in another, but at all times fraught with the most serious consequences, and exciting in the well-disposed part of the community the greatest alarm. The noble lord had said, that a great part of the danger arose from the misrepresentations of the persons employed by government. He would not take up the time of the House with any observations upon the conduct of the individual principally alluded to in this charge. It could not affect the question at all. This much, however, he should state, that the conspiracy was in existence for weeks and months before that person went into the country. The state of Scotland had been alluded to, and it had been inferred, that the danger in that part of the kingdom could not have been great, because the Suspension act had not been enforced: but those who were acquainted with the ordinary powers of the law in Scotland, know that they differed materially from those of our own, and they had for that reason been found adequate to the emergency. As to the argument which went to underrate the danger, on the ground that those concerned in the traitorous designs were few in number and of no respectability, it had little force. Perhaps there was not sufficient knowledge possessed with regard to this circumstance. When a conspiracy of this kind was in existence, when distress had disposed the minds of the lower orders to disturbance, who could undertake to say what numbers might have been concerned? Who could undertake to deny that there might not have been tens and twenties of thousands? Those who recollected what passed in 1780, the formidable riots of which period were commenced by a few boys and old women, must know what a few hours might produce in collecting numbers for purposes of disturbance, and how possible it was, even from 641 beginnings the most trifling, to produce a degree of confusion which might last for days, and even weeks, and render the most violent measures necessary to restore the peace of the country. Evils of this kind, if they were not likely to endanger the stability of the government, might, if not instantly and vigorously checked, shake the peace of society to its foundations. As to the argument derived from the circumstance of no persons of consequence being concerned, he thought we had lived in times when the impracticability of revolutionizing a state without the agency of men of rank, would no longer be advanced. Even in former days, many passages in our history would be found to discountenance the opinion that there was no danger to be apprehended from conspiracies which were confined to the lower orders, but in our own days, with the example of France before our eyes, with the example of what had passed in Ireland—when we had witnessed in both countries insurrections by those who had nothing, against those who had every thing—he did not expect to hear property and consequence insisted on as necessary to render disaffection dangerous. The question, however, now was, whether such a danger had not existed as to make it wise, with a view to the public safety, and humane as respected culpable but unfortunate individuals, to vest a power in the executive government, which might indirectly, and by its very name, operate to put down the mischief, without having recourse to measures of the last severity, under whose rigours the lives even of well-disposed people might unfortunately be sacrificed. His firm and thorough conviction was, that under all the circumstances, it was a measure of humanity as well as of justice; and that there never had been a measure of preventive justice, which had repressed evils of a more extensive or heinous nature. He agreed with the noble lord, that even those who thought the suspension of the Habeas Corpus necessary, might differ as to the propriety of passing the present bill, if they had reason to conclude, that ministers had been guilty of a wanton abuse of the powers intrusted to them. The bill did not follow as a matter of course. The conduct of ministers had been referred to a committee, falsely said to be a committee of their own friends; for they were anxious to place in it those who differed from them in opinion, as well as those who 642 agreed. By the report of the committee it appeared, that all the detentions which took place under the suspension, were fully warranted by circumstances; and if their lordships had any confidence in that report, they must in justice and in fairness grant the protection of the bill now proposed. If the question were asked, whether there existed greater danger to the country during last year, when it became expedient to have recourse to the suspension of the Habeas Corpus, than there existed during the French revolution, when similar measures had been adopted, he certainly would grant that, considering the state of France at the time, and the dangerous influence which the example of that country had on the public mind in this country, the necessity might be more apparent at that period. But did it follow, because the danger was then greater, that therefore the measures adopted last year were not warranted by circumstances? During the eventful period he alluded to, such was the dangerous state of the country, that it became necessary to renew the Suspension seven or eight times, to counteract the poison which had insinuated itself so deeply into men's minds. There was this also to be observed, that during the whole of the period of the former Suspension, there was no insurrection in the country. It was to guard against a secret poison which infected the minds of men, that it was tried on that occasion; but in the late instance it was to guard against the consequences of an immediate insurrection. Last year intelligence had been received of various insurrections ready to break out, and all had taken place except one; and the prevention of that one was solely to be ascribed to the Suspension of the Habeas Corpus, which had struck a salutary terror into the minds of the factious and disaffected. The report of the committee, which was now on their table, bore testimony to all this: he would desire them, therefore, to look at the evidence of that report, and they must be convinced, that the conduct of government was fully justified by the precedent of 1801. From all the circumstances of the case it would appear, that though the nature of the danger apprehended was different, yet the measures adopted were as well warranted by the necessity of the case, as those adopted in 1715 and 1745. It was at critical periods such as these, that detentions on evidence which could not be brought for- 643 ward took place; and the manifest danger of disclosing such evidence, justified its suppression. Government might know much that could not be brought forward at a public trial without great danger. It was to prevent the necessity of bringing forward such evidence, that bills of indemnity were passed. Were any question to arise as to the manner in which they had exercised the powers entrusted to them, a ground might be made out to justify the refusal of such a bill, but as that was not the case in the present instance, he felt confident, for the reasons he had already stated, that their lordships would reject the amendment of the noble marquis, and agree to the motion, as originally proposed by his noble friend.
The Marquis of Lansdowne
briefly explained. He had never argued that indemnity was the natural result of the Suspension of the Habeas Corpus act, or that those who either supported or opposed that suspension were bound, in their support or opposition, to the act of indemnity. What he had said was, that it became necessary to recur to a full examination of the state of the country, in order to ascertain how the powers with which the government had been entrusted were exercised; and whether any difficulties subsequently existed which prevented such a disclosure of evidence, as in a court of justice would be considered sufficient to warrant the detention of the persons imprisoned.
§ Lord Erskine
said, that whether the suspension of the statute of Habeas Corpus in the last session of parliament was, or was not a just act of state necessity, could not possibly, in the present stage of the discussion, be even a relevant consideration. It might bear indeed upon the merits of the bill hereafter, but could obviously have no reference to the amendment proposed by his noble friend behind him, which went only to the propriety of postponing the farther consideration of indemnity for the unanswerable reasons he had offered to the House.—The noble earl (Liverpool) had laboured, throughout the whole of his speech, to establish that the treasonable insurrections were of a magnitude clearly sufficient to justify the suspension which had taken place; but admitting, for a moment, that he had succeeded, what reference could it possibly have to the question before them so manifestly different; the proposed amendment being to give time for the admission of 644 evidence to ascertain whether the powers fitly or unfitly entrusted to the noble secretary of state, and others acting under his authority, had been confined to the purposes for which they were bestowed, or wantonly exceeded and abused; when that was the only question brought forward by the motion, how could it be at all material whether the authorities granted to magistrates were just and; necessary, since neither their necessity nor their justice could be any justification to those who had without necessity overstepped them, and unjustly converted them into instruments of oppression? and how again could such a question be possibly entertained in the absence of all evidence, which it was the sole object of the amendment to obtain; and how could it rationally be resisted, unless the House was prepared to say in the face of the country and of the whole civilized world, that the petitioners and others who had so grievously suffered in their persons and reputations, without a shadow of pretence even under the severe powers unnecessarily bestowed were to be shut out at once from all the protections of the law which from time immemorial had been the distinguishing birthright of British subjects, and which our justly boasted constitution had no other end or object but to bestow. For the noble secretary of state whose office involved him in a peculiar responsibility, he had very long entertained a sincere regard and respect, and if he were now upon his trial to answer for abuses of the extraordinary powers entrusted to him, he would be a most willing witness to his general character for moderation, humanity, and justice; but nevertheless if the noble viscount were his own brother, aye, and a twin with him in the some birth, he never would consent to protect him by an act of indemnity, if the evidence were excluded by which alone his title to indemnity could be ascertained.—But even if it could be admitted in the absence of all proof, and after the rejection of all petitions and complaints that the secretary of state had acted with the utmost purity of intention, how could that admission extend to justify those who had conveyed to him the informations upon which he might have honestly acted, if in many instances they could be manifestly shown to have been malicious and infamously false? or how again and for the same reason could it have the remotest application, even where inferior magis- 645 trates had acted honestly upon similarly false informations to protect those who had given them maliciously and without probable cause, deceiving the magistrates, whilst the innocent were betrayed; yet if the bill now before them passed into a law without farther inquiry by the rejection of the proposed amendment, such would be the odious and intolerable result. His noble friend might feel in his own mind as far as he himself had been instrumental in carrying the Law of the last session into execution, that no abuse of his authority had taken place, and upon the production of the informations he acted on, would be indemnified at once by the common law, without any act to protect him; and if in the exercise of such a difficult authority any of his acts turned out to have been illegal, no man could then object to a corresponding indemnity; but upon what principle malicious, sanguinary, perjured informers, even after the most decisive proofs of their guilt were to be saved, harmless and protected, he was utterly at a loss to comprehend. Whilst the laws indeed were overborne and not in force to protect the honest and innocent from the violence of the guilty, the secret informations might be justified, but to extend that secrecy to periods of profound tranquillity when the laws were in undisputed force to protect and even with safety to reward every honest informer, whatever his information might have been, established a principle not only utterly subversive of the British constitution, but destructive of personal security, under any form of government whatsoever. There was no law that entitled a magistrate to act upon secret information; neither was any such authority given by the act under which the writ of Habeas Corpus was suspended, and if even, as he had just said, the magistrates might be justified in not returning such informations according to the ordinary course of magistracy whilst the authority of the laws might be held inadequate for protection, yet it never was before heard of in England that secrecy could be justified after order had been compleatly restored; and he verily believed that no English statute could be produced to justify the monstrous preamble of the bill before the House, and this assumption of a false and unprecedented principle of secrecy was only a gross fraud upon the sufferers, protecting the most infamous oppressions, and extinguishing all relief under the laws.
646 Lord Erskine said, that this false principle of secrecy would in itself be intolerable even if there were no actual victims to it, but it was notorious that there were many, though the House had refused to look at their supplications—giving the utmost credit, therefore, to his noble friend's integrity and discernment, it was quite clear he had been imposed upon by the artifices of designing men who wished to recommend themselves by their apparent zeal [lord Sidmouth signified his dissent]. His noble friend had no doubt honestly dissented, but his own conviction was, that the admission of the evidence which was the object of the amendment, would prove clearly he had been deceived; and no man ought to presume to contradict him, who gave his vote to shut it out; and how and why the House had been deceived the evidence would have shown also. Their lordships must no doubt remember that when this proceeding originated in the present session, it was pressed upon them to refer the evidence to a committee of the whole House, or if greater secrecy could be at all necessary at the present period, to a more select committee impartially composed without any regard to parties, by which the House at large might have a reasonable assurance of a faithful and unbiassed result; he intended no disrespect to the few noble lords of whom the committee consisted, but he protested against their nomination by such a mockery of a ballot, when instead of a free choice, of which it carried the mark and imposition, the very names were given to the ballotters. There were occasions, indeed, when such ballots might not be exceptionable, and which could alone account for the precedents that might be produced; when facts of many descriptions were to be investigated at the instance of those who were charged with the administration of the government, involving no questions of public liberty nor strong differences in political opinions. The nomination of peers by ministers, though by the apparent free choice of a ballot might perhaps be justified, since ministers might best know what peers were the most likely to attend, or the best qualified for the business that was on hand; but could such precedents or any precedents justify the abuse of such a ballot, when ministers who thus named the committee were themselves to be indemnified, and upon 647 evidence too which they and they alone, were possessed of, and were at their own choice to hold back or to produce, the House at large knowing nothing whatsoever but from the general report of themselves thus selected for their own indemnification; and although such report, without a syllable of the evidence being known to the House, was at once to deprive multitudes of oppressed and ruined sufferers, of all redress under the laws against the falsest and most infamous of mankind; no precedent could sanctify such injustice; and independently of the injury to others, it had a tendency to lower the House in the opinions of the people, who had for ages held it in reverence for its faithful administration of justice.—It was notorious that many had been arrested and detained for months after months in dungeons, yet were afterwards discharged without trial, and that the most innocent had been ensnared by the dark and mischievous machinations of those whom ministers themselves had employed and rested upon for the truth; yet even those ensnared victims of treachery were to be cut off from all legal vindication and satisfaction by such a secret committee (the House itself being totally in the dark upon the subject), composed too of the ministers themselves,—[A cry of No, no! from the opposite side of the House.] Lord E. said he did not mean entirely composed of ministers, but if he were himself upon trial he should think himself quite safe to have such a proportion of his jury selected by himself, or from among the number of his steadiest friends; what would the noble lords have said to the same striking of a jury, had it been adopted under the special commission at Derby, where the prisoners were tried and executed?—Whatever might have been the evidence, would such convictions have ever taken place, if the prisoners could have set aside all the challenges of the Crown, and could themselves have named by such a ballot the very persons to try them with whom they had conspired. It was obvious that he could mean no offence to any noble lord in the House by such a comparison, but the principle was unquestionably the same, however pure and enlightened the conduct of the committee might have been, and its report, therefore, though it might secure indemnity, could neither establish a title to it, nor satisfy the demands of the country.
648 Lord Erskine said, that what doubled his objection to the whole of the proceedings of the last and the present session of parliament, as they regarded the present subject was, that they defeated the very purpose of government to punish offenders by the strong and popular arm of the law, and thereby to tranquillise the country with instantaneous and obvious effect. The House might bear in mind, that when in the last session sealed-up evidence was laid before the House, as the foundation for suspending the act of Habeas Corpus, he had urged them strongly to prosecute the offenders by the ordinary course of law, because he knew from long experience that it was the amplest and most efficacious mode of giving dignity, popularity, and strength to the administration of criminal justice; had that just and prudent course been adopted, the danger would not have been to government, but all on the other side. Instead of having to fear the prejudices of the popular part of our judicial constitution, on the trials of the offenders, they might have suffered injustice but in the protecting mercy of the Crown, the country at large being admitted, even by the report of the committee, to have been sound and untainted, the accused and the suspected ought to have been left as odious and unpopular exceptions, and in that case could have had neither friends nor protectors, nor any hope even, if guiltless, but in the sacred impartiality of justice, when left, as it ought to be, to itself. Nothing could be more certain than this: all the friends of order and good government would have been against them; all the enemies to the most temperate reformation would have been no less so; and even the wildest reformers, the claimants of universal suffrage, would have held them in detestation, because they knew, by dear-bought experience, that nothing had so notoriously and so effectually put down even the possible chance of reforms, or changes of any possible description, as when they had been rashly clamoured for by libellers, or sought for amidst the tumults of ignorant and desperate men; but instead of taking the advantage of this obvious separation of interest and feeling between the great body of the people admitted to be untainted, and those accused or suspected ministers had blended them altogether by an universal, useless, and mischievous eclipse of public liberty. This was the grand mistake—the very 649 source of the alarm that had taken place, and of the popularity of those who might otherwise have been even wrongfully deserted, and but through the mercy of government might perhaps have unjustly suffered.
The insurrections, such as the report had described them, might thus most manifestly have been crushed by the exertions of a vigilant magistracy, and this ordinary course of law, but by seeking a security beyond the law, government had given a shield to those it had to combat, and in popular feeling the accused stood rather as patriots and martyrs than culprits in the hour of trial.—He meaned to make no remarks nor even allusions to any verdicts that had been given—the House had no right to examine them—it could not by law bring the evidence before them for a legal judgment, and much less therefore without evidence could their justice be questioned by it. In such a case the maxim of the law ought to be conclusive omnia presumuntur rite acta. It was with great satisfaction he had observed the just and prudent reserve of the noble earl (Liverpool) in speaking of the trials—The want of it in an enlightened and regretted friend, the late Mr. Windham, had given him great pain formerly, when, after the acquittals at the Old Bailey on the great state trials, he spoke of the "acquitted felons,"*—an expression of which kind had never fallen from the lips of his noble and learned friend, who had conducted with great honour and candour those interesting and momentous prosecutions; but the real truth was, that though the people always justly feel a strong but regulated satisfaction at the vindication of innocence in state prosecutions, which are objects of just and scrutinizing attention in a free county, yet it had never arisen to indecent or even irregular triumph but when government, by its own severity or imprudence, was thought by the multitude to be in the wrong; and the House could not but remember that when he (lord E.) was in the very act of telling them in the last session of parliament that they must lay their account with such popular feelings throughout all these trials whilst the Habeas Corpus act was suspended, he was interrupted by the loud joy at an acquittal which had at that very moment taken place. He did not mean in any manner* See New Parliamentary History, Vol. 31, p. 1029, and 1077.650 to question the just result of that prosecution, but only to mark on the principle he had adverted to, the more than ordinary feeling which carried an air of triumph to the accused—There were occasions indeed when the suspension of that great statute would be felt throughout the whole of this enlightened country with universal satisfaction, as in cases of armed rebellion or wide-spread disaffection to the government; but the report of the committee itself, upon the very bill now before them, had negatived all the former alarms and reduced the disturbances to almost nothing.—Here lord E. read those parts of the report which were afterwards made the subjects of lord Lauderdale's amendments; viz. "that the committee had the satisfaction of delivering it as their decided opinion, that not only the country in general, but even in those districts where the designs of the disaffected were the most actively and unremittingly employed, the great body of the people had remained untainted even during the periods of the greatest internal difficulty and distress."—Good God! exclaimed lord E., what more could any government expect or wish for in any nation upon earth? How very different was the state of public feeling during the early periods of the French revolution when visionary theories of government were afloat in the minds of the multitude, for the most part wholly incapable of estimating the real value of a monarchical institution when wisely tempered by the dominion of the laws, and duly balanced by a representation of the people.—But it was not to the report alone that he need refer for the universal loyalty of the nation, no nor to that most affecting part of the Prince Regent's speech from the throne on the opening of the session, which gratefully noticed in what manner it had been surrounded by condoling addresses on a late lamentable event. If his voice could reach to the remotest part of the island, he might appeal to its whole population, who, as if they had been all the children of the same parents, were shedding the tears of affection and sorrow on the unhappy loss of the presumptive heirs of the British crown. In the race of all this evidence was it not the height of absurdity to consider that the ordinary laws were not sufficient to protect the government against a delirious rabble of unarmed men, coming up with a petition in their hands to lay at the Prince Regent's feet—a rabble, to use 651 again the very words of the report, "whose objects were extravagant when compared with the means to give them effect, some of them throwing away their pikes even before the military appeared, the rest of them dispersing on the first show of force, their leaders being unable to rally them."—What will other nations think of our boasted laws, so famous for many ages, if we ourselves shall acknowledge that they are not even sufficient against a mob; and that according to the proposition of the noble duke who made the original motion, a bill of this kind must follow whenever the Habeas Corpus act shall be suspended, whatever might be the cause of its suspension, and without any proof of the necessity of either, but by the report of a committee of the ministers own selection, sitting in judgment on themselves.
Let it not for a moment be imagined, that he meant to degrade the House of Lords. No words could express his respect for its judicial character, which had so long secured the reverence and affection of the people, and on that very account he was the more anxious that it should be preserved.
But, supposing, for the sake of the argument, that the extent and character of the insurrections had been sufficient to justify the temporary suspension which had expired, was such a bill as this, shutting out all evidence, and thus sanctioning all abuses in the administration of its severe provisions, an antidote to future discontents; a bill that went beyond all precedent in the principle of its preamble, and by one sweeping provision protected every kind of wrong; cancelling, without even the decent appearance of examination, all personal actions, suits, indictments, and prosecutions, brought or depending, or hereafter to be brought, and even all judgments already obtained, and all proceedings whatsoever against any person or persons on account of any act, matter, or tiling, no matter whether honest or malicious, and all this not from the date when the Habeas Corpus was suspended, but going back, without any reason given, for the enlargement, to the very beginning of the year? Was this a remedy for disaffection? So far from its being a remedy, it was laying the very foundations of future rebellion and revolution. He could not indeed believe, and he thought it his duty to say so distinctly and boldly, that any people could long submit to be 652 governed by a legislature that trampled upon every principle of the constitution, that bestowed its authority depriving them of all the securities which were the only rational consideration for allegiance. Parliament ought, therefore, to beware of going beyond the endurance of a free and an enlightened people, who could only be safely governed upon the principles of freedom. Our own glorious revolution was the best proof of the causes that might produce another. He would therefore support the motion for adjournment, and if it was overruled, as he expected, he should enter his solemn protest on the Journals of the House.
The Lord Chancellor
said, he must take that opportunity of giving his reasons for supporting this measure. The indemnity bill arose necessarily from the suspension act. The suspension act went to the preservation of our laws and constitution, which laws and which constitution few individuals were more identified with than himself and his noble and learned friend who had just sat down. Of the adjournment he should speak afterwards; but he should now make a few observations in reply to the arguments of his noble and learned friend. And while he did so, he hoped his noble and learned friend would receive what-ever might drop from him with that indulgence which he was always disposed to feel when his noble and learned friend addressed their lordships. It was allowed on all hands, that there were cases that required a suspension of the Habeas Corpus, and cases which were entitled to an act of indemnity. There had been many such cases. He had said at the time of passing the last bill of suspension, that an indemnity would follow it, and he had used that as an argument to awaken their lordships to a proper view of its importance. That act of suspension was a most important measure; but it was a necessary measure; and an act of indemnity should now follow it, as its natural consequence. It was now a century and a half since the Habeas Corpus act was passed, in the reign of Charles 2nd. It formed the great bulwark of our liberties, and the pride of our constitution. But that very act would have caused the greatest danger to the constitution, if parliament could not control parliament—if what was then enacted could not on certain emergencies be suspended. He was old enough to have more than once known this to be so. Since the reign of Charles 2nd, there 653 were periods of danger which proved the necessity of occasional suspensions of the Habeas Corpus. His noble friend had read that part of the report which represented the great body of the people to have been sound, and triumphantly asked, if that did not prove the suspension to have been unnecessary? But he would ask his noble and learned friend, whether the great body of the people were not sound in the reign of William 3rd? Yet the suspension of the Habeas Corpus passed three times during that reign, and they were respectively followed by three acts of indemnity. The acts of indemnity then passed were in the same words as this bill, and they referred in like manner to individuals. The individuals were, indeed, of a different description; but the principle was the same. Those acts did not say that an indemnity was calculated to prevent inquiry into individual cases; they did not deny that there might be individual grounds of complaint; but they admitted that there were violations of law, and went to justify and cover them. If their lordships considered the principle of the suspension, they must be aware that it went to give powers, which, without an act of suspension, would be unjust. Those who acted under it, therefore, did injure individuals: but it was for the public safety, and from public necessity. Then surely, from the same principle upon which the suspension was necessary, it was necessary to take away from individuals the right of complaining or prosecuting for the exercise of it. But not only were acts of indemnity passed in the days of king William—those days that were spoken of as most favourable to the liberty of the people—but also in 1715 and 1746. In those two years, too, they were passed, if he recollected right, in the same terms with the present bill. The proceedings under the different suspensions were justified from the exigency of the juncture, and it was judged right, that a peaceable good subject should not prevail in an action for unjust imprisonment, where it was for the benefit of the country that he should not prevail. Salus populi, the public safety, the highest object of law, was the salutary principle of such measures. They now proceeded from 1746 to 1794. When the Suspension act was passed in the latter year, the exclamation was, "O, how can you suspend the palladium of our liberties, on account of the London Corresponding 654 Society, and a few meetings at Sheffield?" Parliament did not, however, think so lightly of the matter. The legislature felt that a great portion of the lower orders of the people had imbibed most dangerous opinions. They perceived, that the people supposed they could do better without Kings, Lords, or House of Commons, and they rightly concluded, that such an opinion was more dangerous to the existence of the state, than the temporary suspension of any law. That act expired in 1795, and till 1798, no new suspension took place. In 1801, an indemnity bill was brought in. But, during all the intermediate period, from the expiration of the act to the introduction of the bill, not a single person thought of bringing an action, or commencing a suit. The moment, however, the indemnity bill was proposed in 1801, then all those who were previously silent—who had made no complaint whatever—came forward with statements of their grievances. But parliament thought an indemnity was due to those who were concerned in that great business, and they did indemnify them. Was it then to be contended, when the history of the constitution, at the period of the revolution, and ever since, acknowledged that to be a parliamentary proceeding, on which they were now engaged, that they were to adopt a new system, and, without sufficient cause, to depart from a long recognised practice? If the proceeding was allowed to be parliamentary, then the question narrowed, itself into this—was there any thing in the petitions presented that should induce their lordships to adjourn the second reading of the bill for a fortnight? In his opinion, nothing should induce them to stay this proceeding, unless it was of such a nature as would authorize their rejection of the bill altogether. But, to call on their lordships to stop, at this moment, in order that, at the end of a fortnight, persons might come forward to fasten on individuals with contemplated complaints was a proposition too unreasonable to be acceded to. What was the reason for suspending the Habeas Corpus act? It was not necessary for him to enter into that subject at all—still he would advert to it. Parliament agreed to the measure, after great and serious consideration. It was not passed on the recommendation of a secret committee, but on account of the report of a committee, which had not, in fact, offered any recommendation what- 655 ever. His noble and learned friend must here forgive him, if he said, that he had used language, in speaking of the committee, extremely unfit to be adopted when that committee was mentioned. If it was right to have the report of a secret committee, before the Habeas Corpus act was suspended, there were only two ways in which that committee, could be formed; and he contended, that the course chosen was the preferable one. It was a matter of indifference, whether they were to act from the report of a secret committee, with respect to a suspension of the Habeas Corpus act, or to an indemnity bill. In either case, the committee must be secret, because were it public, the persons who gave information to government would necessarily be exposed to their enemies. The committee must either be formed by open vote, or by ballot. The latter system had long prevailed; and he knew not why, except in compliment to those who seemed to think that the whole constitution of parliament ought to be changed, a different course should now be adopted.—He next came to the question, whether a suspension of the Habeas Corpus act was necessary? When noble lords said, there were only a few riots in the month of December, and a little heat arising from distress—when they argued that this was not a sufficient ground for the Suspension act, they left out of their calculation altogether the evils that were prevented by the adoption of that measure. He venerated the constitution of the country, and he did not like to risk the loss of the benefits it conferred; but, he was well assured, that, had not this measure been adopted, the loss of that constitution would have been risked, under which domestic happiness and public prosperity flourished to a degree unknown elsewhere. Those who were acquainted with the real nature of the danger which threatened the country doubted much, if decisive steps had not been taken, whether they would have been now expressing their opinions in that House. And he believed that, but for the measure so much decried, some of those who inveighed against it would have been in as unpleasant a situation as the individuals who supported it; because an open enemy was not quite so odious in the eyes of those who were opposed, as the secret one. When he made these observations, he begged to state, that, for many of those†656 noble lords who were opposed to him in opinion, he had the highest regard; and he was sure that the noble marquis who moved this amendment, had often entitled himself to the thanks of that House and of the country, for the manner in which he had acted. But he would venture to say, that that man must have a very stout heart, who did not feel, in common with the great body of the people, in London and Westminster, a very great degree of alarm on the night when the Spa-fields rioters proceeded to acts of violence—an alarm which, he believed, would have been fully justified, had the subsequent meetings taken place. He would not say, that the persons who were active on that occasion were guilty of treason; but this he would assert, that, if they had not been placed before a jury of their country, those individuals, whose province it was to take that step, would have been guilty of a dereliction of their duty to the state. Let their lordships consider what would have been the consequence, if those who plotted insurrections at Nottingham and Derby had been suffered to join with the disaffected in the metropolis. Did those persons want a reform in parliament? They considered that as downright nonsense. They were for the overthrow of the constitution; they were for marching to their object through blood and murder; it was neck or nothing with them. This was fully proved by the evidence which terminated in the conviction, of many of them. To the suspension, therefore, he thought the tranquillity of the country was more owing than to any thing else. That measure was not intended for any problematical effect; it was called for, and justified by the state of the country. It was mild, merciful, preventive of much disturbance and misery, instead of being the occasion of misery. If the noble lords near him were prepared to say, that if the petitions against indemnity were taken into consideration, they were ready to act upon them, he would not accede to their proposition. Their proposition would be entitled to more attention, if the principle of the present measure were such as any petitions which had been received, or which might be received, could possibly overthrow—if one or two petitions more could possibly make a case to prove that the bill of indemnity ought not to pass: The principle of the bill, however, was, that no redress ought to be given for unjust imprisonment under the 657 Suspension. If he, although innocent, had been taken up and confined on suspicion of treason, he should give way to the public safety; he should patiently bear the hardships of his fate for the good of his country. But the main ground of the measure was here—that ministers could Dot disclose the evidence on which they had acted. On this ground, the bill of indemnity was most reasonable. If an examination of those persons who gave evidence, was the object of those who opposed the bill, that was the very thing which could not be disclosed. If their object was the examination of those who complained, that was useless and beyond the purpose. A noble earl, for whom he entertained great respect, had, on a former night, expressed a wish that the depositions should be given without the names. Had that noble earl been in the profession in which he and his noble and learned friend were, he would have known that every one perceived at once, from the nature of the deposition, who it was that made it. He must then repeat the proposition, that the necessity of the suspension, and the safety of the country, precluded those who complained of sufferings under that suspension. This proposition he felt himself bound to state, although he felt great grief that such a proposition must fall from his lips. He should not go into the clauses of the bill, which related to magistrates and others, notwithstanding the expectation expressed by a noble lord on a former night, that he should obtain a solution of all his doubts from him. He concluded by repeating, that this bill was supported by precedents since the time of Charles 2nd, when the Habeas Corpus was passed, and that the practice of suspending the Habeas Corpus could not be given up without consequences that would strike at the root of our great and free country; great and free it never would have been, if parliament had not had the sense and the power to suspend its liberties.
said, he would not confine himself to the matter which his noble relative had introduced in proposing his amendment. So great a variety of topics had been touched upon, relative to the past and present state of the country, as rendered it almost impossible to address their lordships on this occasion, without wandering, in some degree, from the immediate question. Before, however, he replied to what had fallen from the noble 658 and learned lord, he wished to state the nature, object, and motive of the bill then under their lordships' consideration; and whatever indignation he might feel with respect to the principle on which it was introduced, he would endeavour to describe it as dispassionately as he could. As far as he had been able to collect from documents, and from the speech of the noble lord at the head of the treasury, the reason for introducing the bill appeared tolerably plain. But he must say, that those who had spoken in support of it, had not stated the real nature of the measure. The noble and learned lord, with all his legal knowledge, and no man possessed more, had aimed rather to entangle and puzzle the subject, than to illustrate it; and the noble duke who brought the bill forward, had proceeded most curiously. The noble duke had stated, before the bill was introduced, that it was "commonly called" an Indemnity bill. Now he, for his part, could not conceive how it could be so named, before it had been agreed to by the House; and he must leave it to those who had so long sat in the committee, hatching this portentous egg (and who, after all, could give no reason for it), to explain this circumstance. He recollected reading, in a Spanish author, and also in a work of a very popular author in this country, he meant Sterne's Tristram Shandy, a long dissertation, "how far it was lawful and practicable to baptize a child before it was born." The noble duke appeared to have applied himself very successfully to those works, and had actually baptized the measure before it could be said to have seen the light. He had told their lordships what its title was—by what title it was commonly known—before it came regularly to that House.
Let the House, then, examine what the bill before the House really was; what was its purpose and effect; and how it bore on the allegations by which it was supported. If these allegations were well founded; if what was said to justify the present measure was true; if ministers had only done their duty under the suspension act; if they had arrested no person but upon oath; if they had not measured out against their victims a greater measure of severity than circumstances warranted; if, in short, they had not exceeded their powers, and committed injustice under pretence of preserving the laws and constitution of the country, with 659 the care of which they were entrusted, then they had no need of a bill of indemnity. Indemnity was only necessary in cases where law would yield no protection; but where there had been no oppression, there was no breach of law, and consequently, no use in the present measure. If an indemnity bill, as had been mentioned by the noble duke who introduced this measure, was always to be a corollary, as he called it, to a suspension act, then it would follow that any just exercise of the powers conferred by the latter must necessarily be an excess; or, far other words, that an act of parliament could not be executed without being abused. This argument of the noble duke appeared to him to cut double, and therefore was as dangerous in his hands as if it were used against him.—But other noble lords opposite had defended the bill before the House on different grounds. They said it was necessary to protect the government against suits or actions instituted to recover damages by those whom they had oppressively arrested and detained; because, in allowing legal proceedings to go on against them, it would be necessary for their own justification to disclose the information on which they had acted. What was this but stating in other words, that the noble secretary of state for the home department, who, in his zeal for the protection of the constitution, or in his alarm for the public safety, might have been led to commit acts of individual hardship, which his opinion of the exigency might to a certain extent excuse, if not justify, stood in no need of indemnity; but that his informers must be protected against the consequences of their falsehoods, their calumnies, and their delinquencies? What was it but saying that the horrible miscreant, Oliver, must not suffer the reward of his crimes; that the shield of power must be held before this vile wretch; that in elevating this shield for his protection, the victims of his atrocious arts and frightful iniquities were to be left without redress, to pine under the effects of his machinations; and that all law and justice were to be trampled underfoot, lest their retributive force should extend to him condign punishment, or expose him to merited infamy? [Hear, hear!]
But the noble and learned lord had said, that he had voted for the suspension act in 1795, which was repealed in 1797; and that, though the liberty of England 660 was thus destroyed for two years, and the subject was left at the mercy of the executive, no action was instituted for any abuse of power exercised under the act. The noble and learned lord had then detailed other precedents to justify the late suspension, and the present indemnity bill; but, in his opinion, those proceedings did not apply. He had alluded to the precedent in king William's time, and had mentioned that that was a period when the government could not be accused of wishing to exercise power at the expense of justice, and yet that a bill of indemnity had then passed. But it ought not to be forgotten, that though the government of that prince was in general wise and just, he was surrounded by a party who, in. their zeal for the Orange interest, had exceeded their powers. The noble and learned lord had stated, as a justification of the late suspension act when the great body of the people were professedly sound, that the same act had passed in William's reign, when the whole country were actuated by sound principles. The latter part of his statement could not be admitted without considerable limitations; for though the majority of the nation was in favour of government, there was a very powerful and a very active party, who supported the rights and were zealous to restore the sway of the abdicated monarch. The periods of 1715 and 1745 were equally dissimilar to the present, and the precedents taken from them equally inapplicable. At both these times there was a civil war in the country; great parties headed by men of influence and distinction, were arrayed against the then existing government; and if, as the noble and learned lord had truly said, the salus populi was the suprema lex, it was necessary to consult that safety by suspending the ordinary laws. The noble and learned lord, in returning to the enactment of the Habeas Corpus in the time of Charles 2nd, had not, he thought, treated that great bulwark of our liberties, with sufficient reverence, or stated with sufficient force, the importance and necessity of the circumstances which would justify its suspension. A royal author (James 2nd) whose writings on the subject were very objectionable and dangerous, had in a letter to his son, treated this precious law with great levity, and had expressed a doubt about its importance or utility. The noble and learned lord had not gone this length. He had praised the law itself; but he seemed, 661 from his language, to think that it was "more honoured in the breach than in the observance." The noble duke who introduced the present measure, and other noble lords who had defended it, had stated, that a bill of indemnity always followed, as a matter of course, the exercise of the powers granted by the suspension act, and those who approved the latter could never object to the former. This statement was neither correct in principle, nor consistent with fact. He could quote authorities in support of a contrary doctrine. The late Dr. Laurence, a man of great talent and political energy, had vigorously supported the suspension acts of his time, and as vigorously (as he could do nothing without energy) opposed the bill of indemnity which followed. At the period of 1801, he remembered the noble and learned lord had supported the bill of indemnity, on the ground that the person who had given information might be in the power of the enemy, and therefore that their names ought not to be disclosed. No pretence of this kind could be now advanced. The informers under the late suspension act were in no danger from an enemy; they would only be left as they ought, by a disclosure of their names and testimony, to the execrations of their country, and the burthen of their own infamy. In rating precedents in their favour, one of the noble lords opposite had alluded to the bill of indemnity that passed the Irish parliament in 1798, and had said that posterity would judge of its necessity and justice. The judgment of every impartial man who was acquainted with the circumstances had already decided against that iniquitous act. One of the greatest lawyers and ablest politicians which Ireland had produced, had loudly declared against it. The late lord Avonmore (better known as chief baron Yelverton) had said from the bench, that the oppressions suffered under the Suspension act ought to have been redressed. After having mangled the limbs of a man without trial, and without proof of guilt, it was a horrible crime to deny him redress, by passing an act to protect his persecutor. Lord Avonmore regretted, when the action was brought before him, that the Indemnity act stood in the way of the redress which his sufferings demanded. That venerable judge, whose extensive learning, elevated views, and incorruptible integrity, entitled him to a comparison with any man 662 that ever sat upon the bench of justice in any country, expressed himself in very decisive terms upon this subject, on the trial of an action brought at Clonmel assizes, in the Spring of 1798, by Mr. Francis Doyle, against the notorious sir Thomas Judkin Fitzgerald. The following were the words of this respectable judge in his charge to the jury upon that occasion:—"This, gentlemen, is an action brought to recover damages from the defendant, colonel Fitzgerald, for an act admitted to be against law. If, therefore, the acts of indemnity which have been cited to you had not passed, no damages, that you could give, would be too great. Much, gentlemen, has been here spoken respecting loyalty: and, lest the clamours of pretended loyalty should drown all considerations of justice, it is incumbent on me to inform you what loyalty is, and in what true loyalty consists. Loyalty is another term for legality; and he who acts with legality, acts in strict conformity to the laws. That man, therefore, is to be esteemed the most loyal, who is a steady and faithful adherent to his lawful prince, and a strenuous supporter of the established constitution, by paying due obedience to the laws of his country, respecting social order, and preserving every member of the state in his just rights and possessions. You must find that the defendant acted maliciously, and not with an intent of suppressing the rebellion or saving the state, according to the words of this act, which places an insuperable bar between injury and redress, and sets all equity and justice at defiance." The noble and learned judge executed the law, though he bitterly lamented that it was necessary for him to be the instrument of executing it, and the defendant was in consequence refused the redress to which he was entitled. Lord Avonmore was not only a man of great talents, but of great independence and respectability, though reports to his prejudice had gone abroad respecting his conduct in regard to the union. But the reason why he so strenuously supported that measure was to be found in the conduct of that parliament which had passed the acts which he so bitterly lamented and so severely condemned; a parliament that had executed such atrocities, that had rendered itself the instrument of iniquitous acts, did not deserve his favour or respect; and though he knew he was destroying the theatre in which he had made so dis- 663 tinguished a figure, where he had earned his greatest honours, he would rather agree to its extinction than prolong its existence after such a dereliction of principle and justice. If such were the motives of this great man in consenting to the loss of the independent legislature of his native country, what must be the sentiments of the people of this country, when they see their liberties and rights destroyed by similar acts.—Lord Holland said, he had no love for the mad schemes of reform that had been so zealously advocated, and so clamorously demanded; but bills of the kind now before the House, if passed to bar the oppressed from redress, would do more mischief than all the elaborate blunders of major Cartwright, or the coarse invectives of Mr. Hunt. The noble and learned lord had feelingly described the alarms of November, 1816, and had passed an eloquent and just eulogium on the powers and influence of parliament. Why, then, was he one of those who had advised the throne to adjourn the meeting of parliament so long? Why was it not convoked till the mischief was past, till the Spa-fields riots had taken place, and till an account of the execution of the plots could be given, instead of measures proposed to prevent them?
He did not wish to go through all the reports of all the secret committees; but let any one read the two first, and then consider the state of the country as represented in the last, and lay his hand upon his heart, and declare whether the dangers were not greatly exaggerated. But the ministers said, the Suspension of the Habeas Corpus act was the cause of the re-establishment of tranquillity; and though they allowed that it gave them no powers to put down insurrection, except the right of detaining a few wretched individuals, against whom they had charges which might have been prosecuted to conviction, they attributed the whole change to that measure. Whether there was insurrection or not, their acts of power and oppression were declared to be useful and necessary. The noble duke who had introduced the present bill, had treated the subject rather lightly, by saying, that the government, under the Suspension act, "had merely abstracted a few individuals, for a time, from society." So then, said lord Holland, you take men from their family, friends, and employments; you immure them in dungeons; you doom them to solitary confinement for months; 664 you expose their persons to every species of hardship, and their characters to every kind of suspicion, and you call this "only abstracting a few individuals from society." This expression, he must confess, gave him great pain. He heard it, indeed, with astonishment, from the known humanity and mild disposition of the noble duke. For he was not prepared to expect, that the imprisonment of a number of our fellow subjects, secluded even from any intercourse with their families, who were, perhaps, deprived of subsistence, if not absolutely ruined by the event, would be spoken of with such levity by any member of that House, and especially by the noble duke. But this levity served to show the ill effects of the measure alluded to, in betraying men, step by step, into an easy reconciliation with arbitrary power, and its consequent injustice [Hear, hear!]
He did not desire to dwell upon the various circumstances which served so seriously to aggravate the late suspension of the Habeas Corpus act, but he could not forbear observing upon the evil effects but too likely to result from the example of the noble secretary of state, in exercising the powers with which he was invested by that measure. For when it was known throughout the country, that a noble lord, usually so remarkable for moderation, had employed, and been influenced by, informers of the vilest character, the operation of that knowledge upon futurity, was not the only evil to be apprehended. When it was understood that the noble lord had engaged such instruments as Oliver and Castles to provide for the safety of the state (for so he described it), was it not but too probable, that the magistrates who looked up to the noble lord, would be apt to employ similar persons, for the purpose, as they would say, of preserving the peace and preventing poaching, or upon other specious pretences? Thus, indeed, was the system of espionage with all its concomitant evils of dissention and disunion likely to be spread throughout the empire. The mischiefs to be looked for from such a system he need not delineate. It would be superfluous to point out all the ramifications through which the poison of such an example might spread, destroying private confidence, corrupting the honest feelings of the people, and setting one class of men, or one part of the population of the country, against the other. The example of France was often on other occasions re- 665 ferred to, as a warning; and their lordships would do well to consider the evils which had arisen in that country from that source of corruption to which he now wished to direct their attention. Let them look to the description given lately of the state of the population in Lyons and its neighbourhood. If a proper opportunity were offered, he would pledge himself to prove, that so far back as 1812, a similar system of espionage and dissention had commenced in this country. He alluded to the districts about Bolton and Manchester, where orange clubs were established, where spies had been for some years employed, and from whence much of the information on which the government had lately proceeded had come. If the noble and learned lord cited the precedent of the reign of William 3rd, in justification of the late measure of the Suspension and the present bill of Indemnity, might not the example now furnished be likewise soon established into a valid precedent? The noble and learned lord called the late measures, measures of necessity; but when would ever a statesman, who wished the possession of arbitrary power, want the plea of necessity to justify his demand? The sufferings of the individuals lately imprisoned required consideration, even independent of the pernicious effect which the example of denying them redress would have on posterity. Let the House consider the ruin into which arbitrary arrest and confinement had thrown them. After being injured in character, and ruined in circumstances, the present bill proposed to take from them that just redress, to which they had as good a title as their lordships to their rights or their estates. Suppose these persons were to institute actions, then, it was said, the noble secretary of state must disclose the information on which he acted. What would be the evil of this? Was the existence or the welfare of such wretched and detestable persons who had become informers, and who refused to openly support their evidence, necessary for the existence of the state? If they suffered by such disclosure, a little remuneration would reward them for their infamy, and pay them sufficiently for that loss of character which was of so little value. The wretch to whom he had alluded in Ireland, was so indemnified, and now bore his infamous honours. On the broad principle of justice and right he called upon the House to throw out the 666 present bill, and allow the injured men to seek their redress.
began by observing, that he was not the person who could properly enter upon a discussion, the object of which was to indemnify him for the way in which he had performed the functions committed to him. But he had a motive for rising, quite distinct from any personal considerations. He must, in the first place, say, that those who conceived that he asked for this bill, in order to preclude himself from the necessity of disclosing the information which had come before him, completely mistook his purpose and his character. The individuals who had trusted their names to his confidence, might have felt perfectly secure, even if this bill were not passed; for no consequence which might involve his own liberty, property, or reputation, would ever have induced him to betray them. But then, the noble lord who spoke last, had asserted, that the bill was not intended as an indemnity for the secretary of state, but for an individual upon whom that noble lord had, in a few words, heaped more abuse than he had ever heard uttered against any one man. But he would tell that noble lord, that he was mistaken in his opinions respecting that individual; the bill did not concern him in any manner whatever; he had done nothing which could possibly make such a bill necessary for his security; no person had been apprehended in consequence of information from that individual, nor had any steps been taken at his suggestion, or arising out of his disclosures. The noble lord had poured out a great deal of indignation against that individual, an indignation which was perfectly natural and honourable, on the supposition of his having done what was imputed to him, but which was, in fact, totally unfounded and unjustifiable. But the noble lord, not content with venting his indignation against an informer, had gone farther, and vented it on a body which had hitherto been un-impeached. He had drawn a most degrading picture of the character of the magistracy—of that useful body of men, who were the main pillars of the internal strength of the country, and without whose co-operation the public tranquillity could not be preserved. These men did not deserve to be treated with that levity which the noble lord had employed against them: he did not accuse the noble lord of any wish to degrade them, but his man- 667 ner had certainly that tendency [No, no, from lord Holland]. On the subject of spies and informers, that noble lord had held such language, as he was sure he could not have held had he been placed in an official situation. At the same time, he gave the noble lord perfect credit for consistency. In saying this, he meant no disrespect—for admiring, as all must, the talents of that noble lord, and prizing, as all did, his personal qualities, it was impossible for any administration not to regret that he should differ from them, and withhold his sanction—yet he must say, that the noble lord and some of those who sat beside him, had a claim to the character of consistency on one ground at least, which was, that they had never, on any occasion, supported any one measure which the wisdom of parliament had thought necessary for the safety of the country. As to the system of espionage, he disdained it as much as any man; he abhorred, with all his heart, whatever tended to shake the confidence of the private dwelling, or weaken the bonds of social intercourse between man and man; but when he was placed in that situation that an opportunity of saving the country from insurrection was presented to him, by means of an informer, could he, as an upright minister, could he as an honest man, reject such information? He only wished that he could, consistently with his duty, disclose what had been communicated to him: above all, he wished he could disclose what had passed between him and Oliver. He had, indeed, made a full disclosure to the secret committees of both Houses of Parliament; so full, that he was not aware of a particle that was not in their possession. He wished that it were consistent with propriety to make an equal disclosure to the country generally, that he might state what related to Oliver, and show how much the public were mistaken in that man's motives and conduct.—As to the question of the treatment of the prisoners, the noble and learned lord opposite had gone too far, when he asserted, the he (lord Sidmouth) must be conscious of at least one instance of injury inflicted on some innocent person, or he would not ask for a bill of indemnity. He could broadly and conscientiously say, there was not a single case of imprisonment, which, in his own mind, or in the minds of any of those who had officially advised it, produced the slightest feeling of self-reproach; there 668 was not one individual apprehended, against whom he would not proceed in a similar manner, under similar circumstances. The accounts of their treatment, as furnished by the prisoners themselves, were full of the grossest misrepresentations and falsehoods; and he could enter into particulars which would convince the House, except that they did not concern the present discussion. He would not, therefore, touch upon them: indeed, his chief object in rising had been to state, that Oliver, the individual so often alluded to, could not come within the scope of the present bill; for he had done nothing that required forgiveness or indemnity; and he defied any noble lord to say, that he had made use of Oliver in any way repugnant to strict honour, or to strict law; or that he had exercised any of his official functions in any way injurious to the sound principles of the British constitution.
denied that he had passed any such sweeping censure on the magistrates as had been imputed to him. His argument was simply this: that as ministers had openly encouraged the busy, meddling activity of spies and informers, and as magistrates were merely men and actuated by human motives, it was possible that one consequence of the system adopted by ministers might be, that some magistrates out of a vast number would be induced to act with more zeal than discretion; with more anxiety to please the government than to keep within the strict limits of their duty. The noble viscount could not pretend to say that such an effect had not been produced on some magistrates.
said, that nothing had occurred which could justify the suspension of the Habeas Corpus act. There was nothing that might not have been left to the ordinary laws of the country. The noble viscount might be, and perhaps was, satisfied with his own conduct, but his self-opinion furnished no sufficient reason for the satisfaction of the House generally; the grounds of that self-approbation must be better explained before the House could ratify it by their sanction. The noble viscount had defended Oliver, and not without cause; for, if Oliver should turn out to have been guilty of the acts imputed to him, then the noble lord himself would be answerable for the conduct of his agent, on the common principle of "Qui facit per alium, facit per 669 se." But he would not at that late hour, discuss a subject which might be discussed at another time, but should content himself with expressing his decided approbation of the motion of his noble friend.
The Earl of Carnarvon
said, that he could not be content with a silent vote. The noble viscount had commenced his speech by disqualifying himself from taking part in the present discussion, and had fairly avowed what was the fact, that he could not with propriety advocate a measure which was so personal to himself: this was a very correct view of the subject, and he trusted that the noble viscount would carry it a step farther, and would give no vote on a matter so extremely personal [a laugh, and hear, hear!]. But he should like to know when and how the noble viscount had arrived at this just opinion; for he could not but recollect that a few days ago that noble viscount had appointed himself to sit as judge on his own conduct, in conjunction with certain other judges, all chosen from a list furnished by himself. Since the appointment of that committee, several petitions had been laid upon their lordships' table; and he could not but think it a peculiarly hard case, that these petitioners could procure no hearing before the House, and that now they were also to be shut out from all redress before the ordinary tribunals of their country. But what was scarcely less hard was, that the noble viscount should, in the very face of these facts, get up and declare to the astonished ears of their lordships, that he had laid before the secret committee all the evidence that could be procured—all the circumstances of every case. The noble viscount had forgot—but would the House forget—that he had a very few days ago refused to lay these petitions before that committee. When he (lord C.) first laid the petitions on their lordships' table, with a desire to make a motion on the subject, he was told that such a proceeding was premature, and that delay was required. Well! after the interval which had been begged of him, he brought forward his motion, but was then told that the committee were about to make their report, and that such additional information would only puzzle and distract them. And now that a report was made, and a bill of indemnity, its usual consequence, was brought in, it was said, the subject of the petitions should not be alluded to—it was quite irrelevant—it was too late. But he 670 did not think it irrelevant: he did not think it was too late. For what was the question before their lordships? Was it not whether ministers had abused, or had not abused, the powers intrusted to them? and was it not fitting that all cases of alleged abuse should be strictly inquired into by that House, before their lordships proceeded to shut up the tribunals of justice against the petitioners, and through them against the people of England? The noble viscount seemed to consider that the great object of the Habeas Corpus Suspension act was to detain persons in prison whom they never had the least intention of trying; in other words, that it was its object to erect in every county a bastile for persons who were obnoxious to ministers. He would tell the noble viscount, that this was an erroneous view of the subject, and he doubted whether their lordships would ever have given their consent to such an act had ministers avowed such an object. He would not now trouble the House any farther. He should have a better opportunity when the details of the bill should come before their lordships; or when its terrible principle should, as he hoped it would, be again discussed. But he would now conclude by impressing on their lordships, that on their conduct in this business depended the character of their lordships, the character of the ministers, nay, the character of the injured Oliver himself [a laugh, and cries of Hear, hear!] for against him as well as against the unfortunate complainants, whose petitions lay scorned and unheeded upon their table, would this bill of indemnity block up all the avenues of legal redress.
§ The question being then put, That the word "now" stand part of the question, the House divided:
|Contents, 56; Proxies, 44||100|
|Not Contents, 15; Proxies, 18||33|
§ The Bill was then read a second time.
|List of the Minority.|