INDEMNITY BILL.

HL Deb 03 March 1818 vol 37 cc713-35

The order of the day being read for going into a committee en this bill,

Lord Holland

rose, but not, he said, with the intention of resisting the motion. There were, however, two or three questions which he thought it right previously to ask, the answer to which might perhaps enable their lordships to proceed with more precision and dispatch when in the committee than they could otherwise do. His present purpose was not to discuss either the principle or the details of the bill; but as their lordships were about to go into the committee, it was important to know what was the object which they had there to carry into execution; for, after all the discussion which the subject had un dergone, there were still some points with respect to which the intention of those who had introduced the bill was very obscure. On one or two of the grounds on which they rested the measure, they seemed to be at variance with themselves. It had been said, that precedent was followed in the present case; but if it had been the object of the framers of the bill to establish it on precedent, the result of their labour was not consistent with their intention. All former acts of indemnity in this country had acknowledged or implied that certain illegal acts had been committed, and on the ground of that illegality the indemnity was granted; but the present bill, according to the assertions of those who supported it, the report of the committee, and its own preamble, came before their lordships with the allegation that no illegal act had been done. The report which had been made by their lordships committee stated, that the persons who had been taken into custody had been arrested on oath. According to all the assertions and allegations, there had been he illegality; and if there was no illegality, there could be no need of indemnity. But it was said, that if ministers should be called upon to justify themselves in courts of law, they would be obliged to produce evidence which it would be improper to disclose., He could not say, that it might not be possible that a bill on this subject was requisite; but then the object of such a bill could not be indemnity. It was, then, proper that their lordships should know, before they went into the committee, to which of these objects their attention was to be directed, or whether it was to be expected of them that they should accomplish both objects. What were they to be called upon to do? Surely the same clauses and words would not answer for the different objects he had pointed out. If all the proceedings had been legal, what danger could there be in disclosing the evidence on which the arrests had been made?—There was another point which also appeared to him worthy of their lordships' consideration, namely, how far this bill flowed as a consequence from the suspension act of last session. It had been asked, how their lordships could suppose that the Habeas Corpus should be suspended without this bill becoming necessary? He must confess that he had not seen this natural consequence; but if it really existed, ought it not to be their lordships business to make out that connexion in the committee? The bill, as it stood, contained no reference to the suspension act from which it was said to spring. The preamble declared that a traitorous conspiracy had existed, and that numerous persons had tumultuously assembled, &c. and stated acts to have been done, which, under the supposition of all the proceedings being legal were proper to be resorted to. The bill, however, did not declare that these act. had been done in consequence of the suspension of the Habeas Corpus. This bill, therefore, applied generally to all arrests, and was, in that respect, more extensive in its application than the measures which were said to have given it origin.—Another difficulty here arose in considering this bill, which, instead of being founded on precedent, differed in one material respect, not only from all the old bills of indemnity in this country, but from that of 1801, which had been so often alluded to, inasmuch as it granted indemnity, not only for arresting and detaining persons, but for discharging. Have prisoners, then, been illegally discharged? It would become their lordships well to consider what might be the effect of the introduction of this word into the bill, not merely with respect to the protection of ministers, but to the future security of the persons to whom it applied. If ministers, or the magistrates who, under them, carried the Habeas Corpus suspension into execution, had acted legally in discharging prisoners, they would stand in no need of indemnity. They could have no fear of producing evidence to show that they had acted according to law in setting the persons they had arrested at liberty. It was necessary, however, to call their lordships attention particularly to this circumstance, as it appeared that there were cases in which the discharge of prisoners by the magistrates might be illegal. In stating this, he wished to refer their lordships to a case which occurred in Hilary term, 1788, before Mr. Justice Ashhurst, Mr. Justice Buller, and Mr. Justice Grose. The case was intituled, Morgan v. Hughes. The plaintiff having been accused of felony, and discharged, brought his action for malicious imprisonment against the justice of the peace. The declaration of the plantiff stated that he had been "discharged." Upon this a special demurrer was entered, setting forth that it did not appear by the declaration, that the plaintiff had been tried and acquitted, or discharged by due course of law, and that it did not therefore appear that the commitment was without cause. The declaration, in fact, must state, that the prosecution is at an end; for a person aggrieved cannot bring an action, without showing that he has been discharged according to due course of law, cither by a grand jury throwing out the bill of indictment preferred against him, by acquittal on trial, or by a noli prosequi. Their lordships would therefore perceive, that the extension of the bill to cases of discharge was of itself an indemnity to ministers. That this was the unavoidable consequence of the introduction of that word into the bill, was evident from the judgment given in the case to which he had alluded. Mr. Justice Buller on that occasion said, "The grounds of a malicious prosecution are, 1st, that it was done maliciously; 2dly, without probable cause. The want of probable cause is the gist of the action; for it should have showed on the face of the record, that the prosecution was at an end. Saying that the plaintiff was 'discharged' is not sufficient: it is not equal to the word 'acquitted,' which has a definite meaning. where the word acquitted is used, it must be understood in the legal sense, namely, by a jury on the trial. But there are various ways by which a man may he discharged from his imprisonment, without putting an end to the suit. If, indeed, it had been alleged, that he was discharged by the grand jury's not finding the bill, that would have shown a legal end to the prosecution." The other judges were of the same opinion. After what he had stated, and, in particular, after having recited this decision of the court of King's-bench, he thought it right that their lordships should be informed on the following points:—1st. Whether a person discharged by authority of the secretary of state, without any bill of indictment against him having been thrown out by a grand jury, or acquittal on trial, or on a noli prosequi, can be held to be discharged according to law. 2nd. Would a discharge by the secretary of state prevent the person from being again arrested on the same charge? 3rd. Could a person discharged by the secretary of state insert in his declaration, on bringing an action, that there was an end of the suit against him? These were important questions, and he thought them worthy of their lordships' consideration on grounds totally independent of the bill before them.

The Lord Chancellor

wished, in the first place, to observe, that he did not consider himself so great an adept in the criminal law as to be always prepared to give their lordships a satisfactory opinion upon every difficulty that might be started. In the present case, he must also confess, that he could not recollect the terms of the question which the noble lord had put with sufficient precision, to enable him to give it a full answer, were he in other respects capable of so doing. With regard to what had been said as to this bill being founded on precedent in all its provisions, he certainly had never so argued it. He had on the contrary observed, that when the Habeas corpus was suspended in the reign of king William, it was distinctly acknowledged in the bill of indemnity, that illegal acts had been committed; but it was at the same time declared, that these acts were so necessary for the safety of the country, and the preservation of the constitution, that it was fit no persons should be put to the expense of defending themselves in suits which might be brought for their commission. The principle of the act of 1801, though different, was a just principle also. It was this—that the names of persons who had given information should not be disclosed. Whether that principle was to be, bonâ fide, in any particular instance maintained, depended on those to whom the constitution had given the right of deciding on such questions. What their lordships decision on this point ought to be, it would be for them to consider in the committee; but if that principle was one which ought to be acted upon, there was another which possessed a claim not less urgent on their lordships' attention—he meant the protection of the magistrates who had executed the laws. In a case in which there had been a probability of a general rising against the government, it was obvious that great numbers of persons would be arrested. To leave the individuals who had caused these arrests to contend with the multitude of actions which might be brought against them, would be to allow them to be overwhelmed and crushed with an incalculable expense. As to the chief point in the noble lord's question, he should consider it most contemptible conduct in him were he to withhold from their lordships any information on a legal point which he could give. He would therefore state his opinion, for which such allowances should be made as his practice confined to courts of equity required. Though he thought the word "discharged" highly proper and necessary, he was not aware that it had been inserted in the bill until the noble lord had referred to it. It certainly appeared to him a point of great importance, and in stating what at the present moment occurred to his mind on the subject, he could only say, that he did not think a man discharged in the way described by the noble lord would be discharged according to law. But this formed precisely a case in which the magistrate ought to be protected. If, when a rising against the government was apprehended, a magistrate arrested on information a number of persons suspected to be engaged in such a treasonable design, was he to be punished for discharging those persons when the danger was over, and when he conceived that he had no longer any right to detain them? Surely, no clearer case for granting indemnity could be suggested. He knew what he should have done on such an occasion. He would have pur- sued the very same course that had been adopted. When persons taken into custody were delivered on recognizances, it had been usual to bind them to answer, from time to time, in the King's-bench. If that was illegal it had been illegal ever since the law of the country had been administered. He had himself had the honour of filling the offices of attorney and solicitor-general—he should say, perhaps unfortunately for himself, for no situation was so pleasant as that of a private barrister, and none so full of anxiety as that of solicitor or attorney-general; but he was always in the practice of going from term to term and respiting recognizances; and no persons had ever sat in the courts of justice who understood the laws better than those who presided during the time he alluded to. He could give no better answer than he had done to the question of the noble lord; but he owed it to the kindness of the House, and to the indulgence he always experienced, to give on all occasions the best answer in his power. If it were explained to him, and he were satisfied he was wrong in what he had stated, he should be ready to give any farther information in his power.

The House then went into the committee.

The Lord Chancellor

proposed, that the House should consider the preamble first, instead of postponing it as usual, because it was closely connected with the enacting part of the bill.

The Earl of Lauderdale

observed, that if the House was to set aside all precedents, and rely on the argument of the learned lord, he must say that argument had no great weight with him. The meaning of a preamble was to explain the object of a bill; but how could it assume to do this before it was decided of what clauses the bill should consist? Here the learned lord, contrary to all usage and meaning, called on the House to consider the title and preamble of the bill, before the various clauses had been decided on.

Lord Redesdale

contended, that it would materially serve the convenience of the House to proceed first to the consideration of the preamble, because the preamble was intimately connected with the enacting clauses, and would, in fact, be necessary as a point of reference to explain many of the objects to which those clauses were directed.

The Earl of Carnarvon

admitted that there was a close connexion, grammatical as well as substantial, between the preamble and the enacting clauses, but the question was, whether in proceeding to pass an objectionable bill of this description it would be more proper, as well as more convenient, to go to the enactments in the first instance, and afterwards to suit the preamble to them, or to fix the preamble first and then proceed to the enactments, shackled and embarrassed by that previous step. This was a point of great constitutional importance. For his own part, he could see no objection to the ordinary mode of postponing the preamble, and he hoped they would not be called upon surreptitiously to recognise principles in that which when they came to the enactments themselves, many noble lords might be disposed to question and to resist.

The Lord Chancellor

said, that in many acts the preamble was a mere form, reciting the object of the enactments that were to follow; but the present was so materially connected with the substance of the bill itself, as to render its postponement inconvenient. How, for instance, could they decide upon the propriety of the clause which referred to tumultuous assemblies, without looking to the preamble to see what was meant by tumultuous assemblies? Every meeting which took place in the course of the last two years was not to be concluded as necessarily of a tumultuous character. The preamble, therefore, in which the precise description was marked out, would seem to come naturally in order before those parts of the bill which would require to be referred back to it in order to be understood.

Lord Grenville

contended, that when the House departed from what was usual, there ought to be some strong ground for doing so, particularly in questions of this nature, where interests so serious were involved. He was not aware of any advantage that would be gained in point of accuracy or precision, by omitting to postpone the preamble as usual; for when the preamble was postponed, every member bore in mind that the enacting clauses would ultimately refer to it. The reason of the practice of postponing the preamble was, that the House could not be presumed to know beforehand whether the various enactments agreed to, or introduced, would all agree with the preamble or not. When the committee had determined what agreed with the preamble, and what not, they might then be in a condition to know what the preamble ought to be.

Lord Redesdale

said, it was only for the convenience of the committee he proposed its immediate consideration. If the general feeling was in favour of its postponement, he should have no objection to the adoption of that course.

The question was then put for postponing the preamble, and agreed to. The first clause being read,

The Earl of Lauderdale moved as an amendment, that the 4th of March should be substituted for the 1st of January, as the period to which the operation of the Indemnity act should extend. In stating his reasons for proposing this amendment, his lordship observed, that the noble lord who introduced the bill had described it as a species of corollary dependent on the suspension act of last year. It was true that another noble lord had attempted to explain away the expression, but not in a manner satisfactory to his mind. What he wanted now to understand was, whether the Indemnity bill was a consequence of the suspension of the Habeas Corpus; for if it was, the indemnity should extend only to the period at which the suspension had commenced, and not, as the present bill was drawn, to a period long before it. The Suspension act was passed on the 4th of March 1817, but this bill was dated from the 1st of January. If such bills were to pass with this kind of latitude, they would render the suspension of the Habeas Corpus act altogether unnecessary; for here was a bill which not only legalized all acts done under the suspension act, but many that were not countenanced by that measure.

The Earl of Liverpool

said, he should not now enter into the reasons why he differed from the noble lord in his application of the expressions used on a former night; but with respect to the amendment, he would ask, whether it was not probable that many acts might be done while the suspension bill was in its progress, to which it might be proper to extend the indemnity now proposed? The Habeas Corpus act could only be suspended in cases of serious and important danger. The very circumstance of its necessity, the very danger which obliged ministers to come to parliament and ask for such an extraordinary measure might render it incumbent on them to act in the interval on their own responsibility. For this reason it appeared to be but fair, that the act should have some retrospective effect, that it should not be rendered strictly coeval with the measure, but rather with the necessity. He called upon their lordships to recollect what had passed on the first day of the session, when a dreadful outrage was committed against the sacred person of an illustrious individual. Might it not have been necessary to arrest some persons suspected on that occasion? When also they remembered the subsequent acts on which this measure of suspension was adopted by parliament, would they not admit that it might be necessary to take some steps for the apprehension of those concerned? Rut abandoning the particular case, he should make his stand upon the general principle, that government might, upon its own responsibility, under circumstances of imminent danger, take steps for the general security of the kingdom before parliament had passed the bills, which parliament would afterwards be bound in strict justice to recognize. However, as he was not aware that any acts of this nature had been done antecedent to the meeting of parliament, he should have no objection to limit the operation of the bill to the 26th of January, the day before parliament met.

The Earl of Lauderdale

acceded to this proposal, and took credit to himself in so doing, for an act of kindness to ministers, as it would be an awkward thing to oblige them to confess that they had neglected calling parliament together while such acts were going on—an inference which would be unavoidable, if he insisted on his amendment in its original shape.

The amendment, substituting the 26th of January, was then agreed to.

Lord Holland

said it was his intention to move that the word "discharged" should be left out of the bill, but in consequence of what had fallen from the noble and learned lord, he was induced not to press that motion. But if it was right that the magistrate who had irregularly discharged persons from confinement, should be indemnified by parliament, it was also right that the person so discharged should have the advantage of a full discharge according to law. If therefore it was deemed necessary for the protection of the magistrates, that this word should be retained, he hoped they would admit the introduction of a proviso into another part of the bill, securing the advantage he had described to persons in such a situation.

The Earl of Liverpool

replied, that two principles were applicable to the bill; one, to prevent the disclosure of testimony on which the magistrates had acted; the other, to indemnify them for certain steps they had taken when the country was in a state of insurrection. In Derbyshire, a large body of men had assembled to proceed towards the metropolis Now, no person, whatever his opinion might he respecting the Suspension, could say that it was not the duty of the magistrates, under that act, to prevent such a purpose, and in furtherance of the act, to detain individuals, and afterwards to release as many as they could without danger to the public tranquillity. The question, therefore, was, whether under such circumstances they could properly discharge such as had been arrested, without further proceedings, though, perhaps such discharge might not be strictly legal? If any question was more clear than another, he thought it. was the propriety of the apprehension of these persons in a moment of considerable danger, and the release of them as soon as was consistent with the public safety. He thought this must appear on all sides the least exceptionable part of the bill.

Lord Holland

agreed, that this was the least exceptionable part of the bill; but the House had now heard it avowed, for the first time, that this bill was not passed for the sole purpose of preventing unpleasant disclosures of evidence, but really to cover acts in themselves strictly illegal. The noble lord had announced his opinion, that the magistrates, in these discharges, might have acted illegally; but if they did so, parliament, it was alleged, ought to bear them out. This was no answer to the question he had put respecting the situation of persons so illegally discharged. These persons could not bring any action for damages, without averring on the record, that they had been duly discharged, so that they were at present deprived of the very right of seeking for redress. If they were discharged at all, they ought to have received their discharge in a way that would give them the rights that all Englishmen ought to possess. If these rights could be secured to them by any clause, he was ready to indemnify the magistrates; but if not, he thought the magistrates ought not to be protected at the expense of those who had been aggrieved. The only way in which the latter could regain their rights, was by proceeding in a court of law, to question the regularity of the proceedings in their committal; and if they were not regularly discharged, a clause must be introduced to give them the benefit of such a discharge before they could proceed at Jaw. Should such a proviso be framed, would the noble lord object to it?

The Earl of Liverpool

suggested, that the noble lord should first prepare his amendment; they would then be more competent to give an answer.

Lord Erskine

said, that he felt as much as any man the justice, and, indeed the necessity of protecting magistrates in the honest discharge of many difficult duties. Before the act of the list of the king, if a conviction by one or more magistrates was afterwards quashed as being contrary to law, they were subject to actions or even indictments as the case might be: but this was remedied, and properly remedied by the statute. When regard was had to the various and complicated jurisdictions of the justices out of sessions, requiring often a very deep knowledge of the law, nothing could be more tit than that they should be protected when they acted to the best of their honest judgments; but the parliament of that day knew too well its duty to extend the protection farther, and therefore, though after a conviction was quashed for error, no action of trespass could be maintained, yet the convicting magistrates were left liable to an action on the case, if they acted maliciously and without reasonable or probable cause. He should therefore propose hereafter a similar provision in the bill now before them; as, if it were to pass as it stood, the most atrocious and notorious outrages might be unpunished. He was aware that the preamble of the bill would be I objected to him, and that he should be told the protection was not intended to screen magistrates or others who had acted unjustly; but because they could not defend themselves without injury to others, even when their conduct had not only been just, but highly meritorious. To that objection he could only answer, Let such a shocking preamble be amended, which laid down a doctrine never to be found till this hour in any English statute—Good God! exclaimed lord E. to what condition were we reduced! Whilst order was overborne by violence, and the most honest informer might be at the mercy of the guilty, informations for such a season might be secret, but after it was completely restored, and the law in its usual force, what principle could be stated to justify this absolute inversion of the whole spirit and practice of magistracy, informations being always publicly returned to the courts of: justice.—But the bill as it stood went much farther than even the false principle of secrecy would justify, because it protected magistrates and others, even for-the most open outrages, upon no informations whatsoever, and when a thousand witnesses might be produced to prove them, who desired no secrecy to protect them.—What could be said to cases of this description? Was it possible to make the public safety the foundation of a measure, which destroyed the safety of every individual of whom that public was composed? The best measure the legislature could at any time resort to for the public safety was, to secure the liberties and the privileges of the people; Without that they might put down insurrections, but the hostile mind would remain; and all the securities which flowed from a free constitution would be lost, The clause which he intended to propose when he had drawn it up in form, would be in harmony with the general law, and would in no shape effect indemnities, unless in cases to which no man would be hardy enough to say, that they ought to be extended, the false pretext of secrecy being the only possible cover for its universal and unprecedented extension.

The Earl of Lauderdale

called the attention of the House to the benefit they had derived from an adherence to their regular forms. If the preamble had been agreed to in the first instance, as was proposed, it would have given a complexion to the bill totally different from what it now appeared to be on explanation. The preamble described its object, merely as intended to prevent the improper disclosure of evidence, but another object had since been avowed, which would render an alteration of the preamble necessary, in order to make it conformable with the intention and spirit of the enactments.

The Lord Chancellor

repeated the argument, that if magistrates discharged persons illegally, they would require to be indemnified. The grievance which arose out of such a measure was that of preventing persons who were innocent from bringing their action. It was the spirit of the clause that the magistrates should not suffer for an act of lenity, so that any proviso introduced in behalf of the persons discharged, should be considered with reference to the magistrates as well as to those persons. If a proviso could be so formed as to accomplish the one purpose without defeating the other, he was sure there would be no objection to its immediate adoption.

The Marquis of Lansdowne moved for the omission of those words in the bill, which went to extend indemnity to magistrates for arresting persons in tumultuous assemblies. The principle of the bill was to indemnify for acts dangerous in themselves, but justifiable for reasons of state, which could not be disclosed in evidence. Could any of the arguments that rested on this necessity of secrecy, be applicable to the case of persons taken in tumultuous and disorderly meetings? Why should the magistrate be prevented from proving his own justification in this case? He would admit that the magistrates who acted last year, were entitled to protection, but he was sure they would rather defend themselves in an open and avowed manner, where it could be done with safety to the public, than escape within the pale which that act threw over them.

The Lord Chancellor

contended, that such an exemption would expose the magistrates to actions from every individual arrested in tumultuous assemblies. That in itself was a great evil. Besides, the magistrates would have a right in their defence to enter into the information they had received as to the objects of the meeting which would lead to the disclosure objected against.

The Marquis of Lansdowne

observed, that there were but few persons committed for such an offence; the cases therefore would not be so numerous as was apprehended, and the mere proof of the fact that it was a tumultuous assembly would be a sufficient justification of the magistrates, without any farther disclosure.

The Lord Chancellor

said, that many might represent more force to have been used than was necessary to disperse the meeting, the only means of rebutting which would be to enter into a disclosure of its nature and objects.

Lord Holland

observed, that if the argument of the learned lord were good, whenever a tumultuous assembly was dispersed, the magistrates by whom they were so dis- persed must have recourse to parliament for an act of indemnity. He denied the principle, as it would go to overturn the whole law of the country.

The Lord Chancellor

said, that the bill before their lordships was not general, but contemplated a case of an extraordinary and special nature, in which it was indispensably necessary to protect the magistrates who were connected with it.

Lord Holland

allowed, that an extraordinary and special case ought to be decided on its own merits, but maintained, that the former argument of the learned lord was applicable to the case of all magietrates who dispersed tumultuous assemblies.

The Earl of Liverpool

admitted, that in the act of 1801 there was no provision of the nature under consideration, the reason of which was, that although many persons having been taken up on suspicion of high treason and not afterwards brought to trial, parliament thought right to pass an act of indemnity to protect ministers, yet at that period there was nothing like insurrection, which demanded a measure of this nature with reference to magistrates. In the late occurrences not only had persons been apprehended under the warrant of the secretary of state, but insurrections of a formidable nature had taken place, which required the interposition of magisterial authority. Large bodies of people were taken up by order of the magistrates—in one place no less than 250—with a view to prevent the farther progress of the meetings of the 10th of March. This having been the state of the country, would parliament act fairly by the magistrates, if it did not protect them from vexatious suits? Their lordships should never forget that the preservation of the public peace depended on the voluntary efforts of these respectable gentlemen, who were generally unpaid, and who came forward independently to discharge duties of the highest importance, attended in many cases with great personal risk, and which therefore entitled them to the protection of the legislature.

The Earl of Carnarvon

observed, that the arguments of the noble earl and of the learned lord went to prove that an act of indemnity was necessary on every occasion in which the magistrates exerted themselves to preserve the peace of the country. Did the noble earl mean to say, that the magistraes last year exceeded their powers, and that they therefore came to parliament for indemnity? If so, and if the necessity was manifest, that indemnity parliament would not refuse. But he denied that it was to be taken for granted that when magistrates exerted themselves in the case of tumultuous assemblies, they necessarily violated the law, and must have an act of indemnity to protect them. He supported the amendment, not because, he thought indemnity unnecessary, but because in this, as well as in other parts of the bill, their lordships were legislating in the dark.

The amendment was negatived.

Lord Erskine

said, he would now move the amendment he had before mentioned, which was only to place all magistrates and others as, but for this bill, they would stand by the general law of the land. By the 4dst of the king, though a conviction were quashed for error in fact or in law, magistrates, though protected when acting honestly, were still liable, if they acted maliciously, and without reasonable and probable cause. It never was heard of in England, that any magistrate or other person of any description whatsoever, could act with malice to the injury of another without a most severe and exemplary visitation. He wished, therefore, after the clause, "That every person by whom any such act, matter, or thing shall have been done, or commanded, ordered, directed, or advised to be done, shall be freed, acquitted, discharged, and indemnified, as well against the king's majesty, his heirs and successors, as against the person and persons so apprehended, committed, imprisoned, or detained in custody, discharged or dispersed, and all and every other person and persons whomsoever;" the following proviso should be introduced:—"Provided always, that nothing herein contained shall extend, or be construed to extend, to any act, mutter, or thing, done to any person whatever, if committed maliciously, or without reasonable or probable cause."—As the bill stood at present, putting aside every case where necessary secrecy of information could have any possible application, no magistrate nor any other person could be impleaded or questioned, though he had acted with the most palpable malice in the presence of a thousand witnesses, who desired no secrecy, being ready to come forward to prove it. This error, so affronting to common sense, was all he desired, to rectify. Let honest error of every kind be still protected, and let secrecy be maintained within its proper boundaries, as to time, that is, whilst the Habeas Corpus was suspended, on account of dangers from the laws being supposed to be overpowered, but not after order was completely restored, and still less, in cases where no secrecy was required by witnesses, nor could in any shape apply to the testimony they had to give. He desired once again to repeat, that the public safety which in every country must stand upon the affections of the people, could never be maintained by sanctioning private wrongs, and by the denial of justice.

The Lord Chancellor

said, that the answer which he had to make to his noble and learned friend was very short—it was simply this, that the clause which he proposed would nullify the whole bill. If their lordships did not choose to agree to a bill of indemnity, let them say so; but if they did agree to it, let them make it effective. Were an action allowed to be brought against a magistrate on the ground of his having been-influenced by malicious motives, he could not defend himself without staling from what source he derived the information on which he had proceeded. His noble and learned friend said, that the country was now tranquil, and that no danger would result from such a disclosure. But whatever might be its effect on the peace of the country, what effect did their lordships think it was calculated to have on the peace of the individual who had furnished the information? The principle of the clause was, that admitting that illegal acts had been committed, it was fitting that the magistrates should be protected, not only against vexatious suits, but against suits which might be otherwise so numerous, that however complete the defence of a magistrate might be against them, his efforts might be paralyzed by their repetition. No such exception as that proposed by his noble and learned friend, was to be found in any preceding measure of a similar nature. His noble and learned friend, with that love of his country by which he had always been distinguished, exhorted their lordships to take care of the liberties and feelings of the people. God forbid that any man in that House should, forget that that was the principle by which all their proceedings ought to be regulated. But they should at the same time recollect, that they ought not to destroy all autho- rity for the sake of individual benefit. I That for which their lordships should feel the deepest interest was, the public safety. The public safety ought to be secured with as little injury towards individuals as possible; but without being afraid of adopting even harsh measures towards individuals, if such measures were rendered necessary for the preservation of the state and the constitution. Those felt the most for the people who were anxious to protect the great mass of the people from the machinations of the few, who sought the destruction of the whole system of government.

The Earl of Rosslyn

could not consent to the sacrifice of the rights of so many persons for the sake of protecting a few magistrates from actions. It seemed admitted, that some alteration in the preamble was necessary, inasmuch as it did not state the true object of the measure, which was not merely to prevent disclosures, and to protect those who gave evidence on which magistrates had acted, but also to cover with a shield the magistrates themselves, however unwarrantable and illegal had been their proceedings. The noble and learned lord had given no sufficient answer to what had fallen from the noble mover of the proviso, who was anxious not to expose magistrates who had acted bonâ fide, but to open the courts of justice against those who had availed themselves of their authority to oppress and imprison individuals. The noble and learned lord had stated most truly, that by the indemnity acts of William 3rd, of 1715, of 1746, and those that had passed since, illegal acts which had been committed, were indemnified. It was the only justification of an indemnity bill, that when, to preserve the peace of the country, the law had been violated in particular instances, those who, from a sense of public duty, had committed the violation, should be protected against the consequences of their conduct; but in this case it had been averred that no illegal acts had been done, and that an indemnity was intended only to prevent actions, which, if proceeded in, might lead to disclosures inconsistent with the public safety. Where, therefore, malice was offered to be proved against magistrates pretending to act for the public good, no indemnity should be allowed to prevent the plaintiff from proceeding, or shut the doors of justice against him. In the first Irish indemnity act, this principle was recognized, and the distinction between illegal and malicious arrest or detention was established, though the act had been afterwards altered.

The amendment was negatived.

The Marquis of Lansdowne

proposed, as an amendment, to leave Ireland out of the bill, and to retain only the words "in that part of the united kingdom called Great Britain." The provisions of the Suspension act did not extend to Ireland, and that country should therefore be excepted from those of the Indemnity bill.

Lord Sidmouth

said, that the indemnity had no reference generally to Ireland, but the name of that part of the united kingdom was necessary to be retained to meet a special case. A suit might be instituted in the courts of that country, at the instance of a person who was apprehended there for acts done in Great Britain, and it was necessary therefore to protect the magistrate who had executed the warrant of arrest.

The Marquis of Lansdowne

said, that a clause should be introduced to meet the special case, rather than Ireland should remain under the general provisions of the bill.

Lord Sidmouth

said, that he had no difficulty in alluding to the case. A warrant had been issued against an individual who had fled to Ireland. He was apprehended in that country, and unless Ireland remained in the bill, the magistrate who executed the warrant would be liable to an action.

Lord Holland

warmly objected to the introduction of Ireland into the bill. Let the particular case be named, however objectionable, rather than leave the exception general. He believed the magistrates of Ireland, like the magistrates of Great Britain, were active and, generally, exemplary in the discharge of their duty. He did not mean to speak of them with the slightest disrespect; but he too well knew the state of that country, not to feel that a general bill of indemnity for acts done by the magistrates in Ireland, would be a bill of indemnity for many acts of atrocious outrage. After the act of indemnity in Ireland, which followed the suspension of the Habeas Corpus in 1797, an action was brought in that country by a person of the name of Doyle, against an individual whose conduct he (lord Holland) had the misfortune to bring the other evening, under their lordships consideration, a sir Judkin Fitzgerald, accusing him of acting in his ma- gisterial capacity with malicious motives; and, although the act of indemnity was in force, Doyle obtained a verdict, and sentence was about to be pronounced. In order to save this gentleman, if gentleman he was, another indemnity bill, with a sweeping clause, was passed by the Irish legislature. He knew not if the bill then before their lordships would 6creen such acts as that to which he had just adverted. But when it was notorious that for the last five and twenty years there had not been a year unproductive of deviations from law on the part of some of the magistrates of Ireland, their lordships ought to be cautious how, for the purpose of meeting an unknown and conjectural case, they agreed to a clause which might deprive the Irish people of their redress for such injuries. The remedy ought not to extend beyond the evil, and the indemnity ought to be confined to the particular case in question.

The Earl of Liverpool

did not think that the principle of indemnity would be construed so broadly as to include any case but the one contemplated. He should, however, have no objection to an amendment, on the third reading, that would limit the operation of the act as it regarded Ireland to the special case contemplated. The history of that case was this:—a man of the name of Benbow, whose petition had been laid on their lordships table, had fled to Ireland, with the hope of obtaining there the means of being conveyed out of the country. A warrant was issued from this country for his arrest; and he was taken up in Ireland for acts done here, and not for any acts performed there. The magistrate who had executed the warrant in Ireland was liable to an action in the courts of that country. It was necessary, therefore, for his protection, that Ireland should be introduced into the provisions of the present bill. This clause, however, extended no indemnity to magistrates in Ireland, where the suspension did not operate, for any arrest they might have authorized for acts done there.

After some further conversation, the amendment leaving out Ireland, was agreed to, on the understanding that on the bringing up of the report a special clause should be inserted embracing the case alluded to.

The Earl of Carnarvon

protested against the payment of double costs by the plaintiffs in such actions as might have been already commenced, without any anticipation of this act. He proposed that the infliction of double costs should be confined to all actions brought after the passing of the act. This would not interfere with the indemnity.

The Lord Chancellor

said it was his intention to propose that the plaintiffs in any actions which had been commenced before the 27th of February, should not be liable to any costs.

Lord King

was desirous that the infliction of double costs should be entirely withdrawn from the bill. Why, in addition to the evil of a deprivation of redress were the unfortunate individuals who had been illegally treated, to be punished with the penalty of double costs? Suppose a person were apprehended on a malicious and groundless information, that he suffered a long imprisonment, and was utterly ruined in consequence. This was not an imaginary case. It was that of an individual in Ireland, who had been already alluded to, of the name of Doyle, on whom the most horrid tortures were inflicted by a sir Judkin Fitzgerald, against whom he brought an action; but, in consequence of a second act of indemnity (the first not having been found sufficiently operative), he was defeated, and cast in 750l. costs, which proved his utter ruin. Conceiving that the words "double costs" conveyed as much injustice as two words could import, he moved to omit the word "double."

The Lord Chancellor

observed, that the next provision of the clause enacted that those who had commenced actions, but who stayed proceedings, would not be liable to any costs. The double costs were to be imposed only on those who, notwithstanding parliament had taken from them the ground of action, still proceeded.

Lord Holland

allowed that the provision just described by his noble and learned friend was commendable, but contended, that the principle of inflicting double costs in such cases was unjust in itself. In an act like that under consideration, and which was extorted from parliament only by necessity, they should be cautious not to go one title beyond that necessity.

Lord King's amendment was negatived. The lord chancellor then proposed his amendment, to exempt those from the payment of any costs, who might have commenced their actions before the 27th of February.—Agreed to.

The Earl of Carnarvon

proposed a new-clause, framed for the purpose of limiting the operation of the bill to those cases in which the interference of the legislature was indispensably necessary. It was stated in the preamble as the ground of the measure, that the production of evidence in defence against actions, might be dangerous to the parties who bad given the information on which the acts prosecuted had proceeded, as well as to the general safety. The object of his proposed clause was, to deprive any person of a right of action, whenever the secretary of state should make an affidavit before a judge, that the action could not be defended without danger to individuals, and injury to the public service. The way in which he intended to effect this was, by enacting, that before the commencement of a suit, the solicitor of the party should give notice to the secretary of state, and if the secretary of state made no affidavit, such as he had described, in the course of a month, the information should be produced, and the proceedings should not be stayed; but that if the secretary of state made the affidavit within the month, then the action should be immediately stopped. Unless some proposition of this nature were adopted, the most oppressive acts would escape with impunity, even when not the slightest ground could be alleged for preventing an action.

The Earl of Liverpool

replied, that the effect of the noble earl's clause, if passed into a law, would be to subject all the magistrates in the country, and all persons who had acted under them, to the discretion of the secretary of state, to determine whether or not actions might be brought against them. Nor that alone. The act for suspending the Habeas Corpus vested in the privy council, as well as in the secretary of state, the power of granting warrants for the apprehension of suspected persons. The privy council, therefore, would also be subject to a similar discretion on the part of the secretary of state. And who was the secretary of state? His noble friend might not always be in that office. One of the noble lords opposite, in the event of any change in his majesty's councils, might till that situation, and it would then be to be submitted to that noble lord, whether actions might be brought against his noble friend? Parliament had adopted the only proper course under such circumstances, by appointing committees, which had investigated all the cases of apprehension that had occurred. He was persuaded that his noble friend had, in no instance, issued his warrant for the apprehension of any individual, which instance he would not readily submit to the examination of any parliamentary tribunal, acting under the seal of confidence, in order that they might determine whether or not he had been actuated by motives of public duty alone.

The Earl of Carnarvon

contended, that unless his clause were acceded to, the evils growing out of this act of indemnity would be much greater than the benefits resulting from it. The noble earl had said, that if the secretary of state were changed, the discretion would rest with another individual. Certainly; and so it ought; for the secrets of the office would be in the possession of that other individual. It was only by the adoption of some provision, such as that which he proposed, that he could be brought to consent to the great anomaly in British jurisprudence, of shutting the courts of justice against the injured and oppressed. He would not at present trouble the committee by pressing his clause, but he gave notice that he would re-introduce it in the ultimate stage of the bill.

The clause was negatived.

The Earl of Lauderdale

said, he did not expect that the amendment which he was about to propose, would meet with a better fate than those which preceded it; but still he would persevere. Notwithstanding the observation of the noble and learned lord, he could not help thinking that, as the report was, in fact, the ground and origin of the bill, so the language of the latter should be in conformity with that of the former. With this view he had selected a passage from the report, which he would beg leave to substitute for the first clauses of the present preamble. The sentences which he would read were not filled with all the words of unnecessary recital which incumbered the report itself; but he pledged himself that he had not added one word of his own. Instead of the preamble as it now stood, he would propose the following:—"Whereas, on the 9th of June last, a rising took place in Derbyshire, and the insurgents were not formidable for their numbers; and whereas it was pretended that the state of Nottingham was favourable to their designs; and whereas some persons, about 100, were on that night assembled on the race-course near Nottingham; and whereas some of them were armed with pikes or poles; and whereas they dispersed about two o'clock; and whereas the Derbyshire insurgents proposed to surprise the military in their barracks, and to become masters of the town of Nottingham; but, in the course of their march, some threw away their pikes, and retired before the military force appeared; and on the first show of that force the rest dispersed, their leaders attempting in vain to rally them; and whereas the committee have the satisfaction of delivering it as their decided opinion, that not only in the country in general, but in those districts where the designs of the disaffected were most actively and unremittingly pursued, the great body of the people remained untainted, even during the periods of the greatest distress, it has been deemed necessary to apprehend, commit, imprison, detain without trial, &c." [a laugh, and Hear, hear!] Their lordships would perceive, that he had used no words that were not in the report, and he therefore moved, that an amendment so constructed, and in every syllable warranted by their own secret committee, might be adopted instead of the unauthorized preamble now before them.

The amendment was put and negatived. After which the House resumed, and the report was received.