§ On the order of the day for the third reading of the Indemnity bill,
§ Lord Auckland
said, that notwithstanding the amendments which this bill had received in its passage through the House, he was still of opinion that it ought not to pass, at least in its present shape. His objections to it appeared to him insurmountable, but he should endeavour to comprise his statement of them in as few sentences as possible. It was not his intention to oppose the bill altogether, but to move its recommitment, with a view to its being divided into two bills. Only one ground of defence had been laid for the measure when it was brought forward, namely, that ministers of magistrates who might, under the operation of the suspension of the Habeas Corpus act, have arrested persons improperly accused of treasonable designs through mistake, or from zeal for the public good, should be protected from the consequences of such arrest, should there be no evidence against those persons, and should they be of course discharged. As far as this defence fairly went, he should be willing to admit the application of the bill, though he could not but regret that so very small a portion of information on the subject had been laid before their lordships; and that with regard to the necessity of this protection of the magistrates, their lordships had nothing before them but assumption. The noble and learned lord on the Woolsack had, on a former night, supposed the case of a magistrate assisting in dispersing a riotous assemblage of 11,000 persons at Manchester, being in consequence liable to 11,000 actions. Their lordships, how-ever, would of course recollect that under the statute of George 2nd, a magistrate was not liable to an action for acts done in the discharge of his duty, except within six months, and therefore the magistrates alluded to were of course safe from any actions, on the ground of the conduct 789 which had been referred to. But it was said, that other acts might have taken place at a later period, and under other circumstances, and therefore an indemnity became necessary. He had therefore no objection in this point of view to an indemnity for the magistrates, though he had great doubts whether it was not unnecessary. But how far did the indemnity extend? it was not merely to the secretary of state and to magistrates, but to every petty officer of police, to every creature who, to use the language of a former report, had instigated the treason he was employed merely to detect. What was this but to shield the infamy of wretches like these by preventing the possibility of their being confronted with those they had accused. To this alone did the plea urged, that the names of those giving information ought to be concealed, tend. Thus a person whose reputation had been blasted, whose prospects had been destroyed, and whose property had been ruined by the machinations of an informer, instead of having that resource which the laws of his country gave him to clear his character and re-establish his reputation, was to be subjected for the remainder of his life to all the infamy which an informer had managed to attach to him by means of secret information, whilst the informer himself was to be screened from all inquiry. This was reversing those maxims upon which the laws of the country were founded, and acting in direct contradiction to those principles which required the publicity of all criminal proceedings, and that the accused should be publicly confronted with his accuser; principles from which the most essential advantages were derived to the administration of justice. Upon what ground so sweeping a bill of indemnity was proposed, it was difficult to understand. It was said, on introducing the bill, that it was a corollary or necessary consequence of the Suspension of the Habeas Corpus.—But, after several explanations, the argument seemed to resolve itself into this, that if ministers had acted under the suspension of the Habeas Corpus so as to render an indemnity necessary, then an indemnity was necessary.—The arguments, indeed, in favour of this bill had been so changed and shifted, that it was difficult to understand on what argument it was founded. Certain it was, that this was the most comprehensive and sweeping bill of indemnity ever yet introduced; and that it 790 might, in that respect, serve as a model for all future bills of indemnity, if it should be their misfortune to have any such introduced. It was to the real circumstances of the case their lordships had to look in considering whether ministers had established any ground for passing this bill. Now what were the circumstances? A committee of secrecy had been appointed under the pretence of inquiring into the state of the country, and the conduct of ministers under the suspension of the Habeas Corpus act, but in fact with the sole view of stifling all effectual inquiry. What did the report of that committee contain? What could it be expected to contain? When it was brought forward, their lordships had found it merely a sort of newspaper abstract of the proceedings at Derby, terminating with a pompons encomium on the conduct of ministers, and of the magistrates who had carried the Habeas Corpus suspension into execution. The bill, however, did not confine its protection to those highly com-mended ministers and magistrates, but extended the indemnity to every menial agent who had been employed under them; to all the base informers and spies at whose instigation every act which was really criminal appeared to have been committed. Why were those men to be protected? On innocent men—at least men against whom no charge could be preferred in a court of justice, a mark of infamy was allowed to remain. It was most unjust that this protection should be given to conceal evidence. Such' a practice was perfectly hostile to the spirit of English jurisprudence, which required that the accuser should not be heard in secret, but should be confronted with him against whom he brought his charge. This sanction given to secret information was deeply to be deplored, and he almost equally regretted that their lordships had in the committee given their sanction to the preamble of this bill, which was so inconsistent with all the grounds on which it was pretended to be introduced, and the purposes to which it was proposed that it should be applied. Their lordships had been told of the responsibility of ministers acting under the Suspension act, but what, became of their responsibility if a bill of indemnity was to be the necessary consequence of a Suspension act? For all the reasons which he had stated, he should move, That the bill be recommitted.
thought it necessary to say a few words on the motion made by his noble friend for recommitting the bill. In the shape in which the measure came before their lordships, it obviously extended the protection of indemnity too far, and much farther than any of the grounds on which the bill was pretended to be introduced warranted. In fact, it was proposed to extend indemnity as fully to him who did not deserve it as to him who did. It not only indemnified the magistrate who had acted in good faith under the Suspension act, but the spy who had provoked disorders which afforded the pretext for that law. That this protection of informers had been in view from beginning to end was evident from the manner in which the clause proposed for excepting those persons from the operation of the bill had been opposed and rejected. It appeared clear that it had from the first never been intended to confine the bill to ministers and magistrates, but to make it give a sweeping protection to the lowest agents. With respect to the preliminary measure, the report of the committee, which preceded the bill, it was notorious that the evidence on which that report was founded was altogether ex parte, for their lordships had refused to refer to the committee any of the numerous petitions presented from persons who stated themselves to have been aggrieved or seriously injured by the suspension of the Habeas Corpus. It was undeniable that many persons had had to endure solitary confinement for a great length of time. Why did not the committee inquire into their cases? The report of a former committee admitted that the spies employed to discover treasonable designs had instigated to acts which they were employed only to detect. Did not this warrant the suspicion that many of the persons who complained of the operation of the Habeas Corpus suspension had suffered innocently? The last report laid before their lordships stated, that up to a certain period it had been intended to bring the persons in custody to trial. He should be glad to be informed when this intention had been abandoned. He believed the true reason of refraining from trying the persons ministers had imprisoned was, that they had no evidence against them, except what they had procured from their spies and informers. But after the result of the proceedings on a charge of treason in westminster-hall, where almost the whole 792 case rested on the evidence of an informer, he did not think it probable that any trial on such evidence could have been again contemplated. The period at which the intention of trying the persons detained had been abandoned was, therefore, in all probability not very recent. When the bill was in the committee, their lordships had- been told that it was necessary to protect persons who gave information of illegal designs. Here he could not help asking himself whether he was living in a country governed by law. Was it possible to conceive that in England it was now become dangerous for a man to do his duty to the public? Was it meant to be said, that if a man performed his duty, by giving evidence, tending to the punishment of crimes, he was liable to assassination? To this extent the supposition on which the protection was called for went; but he never could be brought to think so ill of the people of England, as to believe there could be any ground for such a calumny. In what part of the world were witnesses so secure as in this country? Their security rested on a solid foundation—on the publicity of all legal proceedings—on the excellent practice of confronting the accuser and the accused. Witnesses were safe, because there were no secret tribunals to excite the jealousy and indignation of the people. The way to bring witnesses into danger was the very practice which had been resorted to —the throwing of a veil over their evidence—the taking of informations without confronting the accuser with the accused, This was precisely the principle on which the inquisition acted. The holy office could, like his majesty's ministers, assign very plausible reasons for not making public the evidence on which its victims were consigned to dungeons and torments. This principle was the most dangerous ever introduced into this country, and if allowed to take root, would destroy every vestige of liberty. If bills of indemnity of this sort were to become the consequence of the suspension of the Habeas Corpus act, a most fatal encouragement to the abuse of power would be afforded. If all the base agents which had been employed during the late unfortunate period, all the infamous spies were to have protection and reward, hosts of those iniquitous beings would be created. The country would soon abound with such wretches as that Judkin Fitzgerald, of whom their lordships had heard so much. When mi- 793 nisters were asking for the power which was put into their hands, they called upon parliament to give it them upon their responsibility; but after obtaining that power and exercising it, they shrunk from their boasted responsibility by refusing all inquiry. But this was not all: they would, by the passing of this bill, establish a most dangerous precedent, and the act of 1818 would be quoted in support of future encroachments on the law and constitution; for it was impossible that any indemnity of a more extensive and sweeping nature could ever be proposed. The public had been disgusted within these few days with reports of persons employed by the police, exciting individuals to commit crimes, in order that they might obtain the blood-money consequent upon the disclosure of those offences which they had themselves excited; and what was the difference between the practices of persons of this description exciting others to the commission of offences for the sake of obtaining a reward, and the practices of individuals employed by the government, who excited to acts of treason, in order that they too might obtain their reward? When Brock, Pelham, and Vaughan, and wretches of that description, obtained a pardon, was it not to be apprehended that crimes would continue to be excited for the sake of the rewards which their prosecution produced, and if informers, such as Oliver and his associates, were to obtain impunity, would it not be a consequence that treason would again be excited, and that discontent would be increased? To sanction the impunity of informers under such circumstances, would be a violation of all the principles of justice. For such a stretch of legislation no ground had been laid, no plea that was entitled to attention. The system of employing spies was that which led to all the mischief on which this bill of indemnity was grounded: it was that system which promoted the proceedings that were made a pretext for suspending the Habeas Corpus. But the indemnifying such men must strike at all confidence in public justice, a confidence which greatly, if not mainly, contributed to the support of it. The suspension was had recourse to last year in a period of profound peace; and there was as much reason for its adoption four years ago, when the Luddites were creating disturbances, as last year. The only difference between the two periods was, that it was asserted last year that the disaffected were con- 794 nected with clubs in the metropolis; but this rested only on the evidence of Oliver, and if his evidence were taken away, there was nothing else to support the allegation. If, then, these spies had promoted the measures that led to the Suspension, and if they were afterwards the only evidence on which that Suspension was so unnecessarily continued, it became the House at least to except them from the operation of the present bill. He doubted not his majesty's ministers might be able to bear an inquiry; but unless these informers were excepted from the operation of the bill, it looked as if they shrunk from all inquiry: he should therefore oppose the bill, unless the indemnification were confined to magistrates, and spies were altother excluded from its operation. Were they to indemnify informers for injuring the the characters of individuals against whom they might have malice, without any evidence to show that their conduct deserved it? To resort to such measures was to give a full scope to the malignancy of individuels who might choose to traduce others, who might choose to excite discontents in order to profit by them, or who might choose, by fabricated tales, to impose upon the government. As to the danger to persons giving information, arising from the disclosure of their names, it could only mean assassination, and it was too much to say, in a country like this, governed by laws and with the known disposition of the people, that any such danger could actually exist.
§ Earl Bathurst
recalled the attention of their lordships to the nature of the motion before the House—it was not to reject but recommit the bill, for the purpose of dividing it into three parts, so that his majesty's ministers, and the magistrates acting under them, might be protected, and informers exposed to punishment, or at least be excepted from the proposed indemnity. The intention of the bill however was not to protect informers, but to save his majesty's ministers from the dilemma of giving up the names of the persons from whom they derived their information, or being obliged, if they refused to do so, to remain without defence. No ground whatever had been laid for dividing the bill in the manner proposed by the noble lords, nor had they adduced any argument whatever to prove its necessity or expediency. The noble mover himself had no objection to protect the magistrates who had acted conscien- 795 tiously in discharge of their duty; but let the House look to the other parts of this case. Their lordships were aware that all cases of suspensions of the Habeas Corpus had been followed by bills of indemnity, and those bills had been granted without an inquiry, or without any appointment of a committee, on the notoriety that the powers granted under the suspension had not been abused. The only exception to this practice was in 1801; and the circumstances of that period were very different from those of the present. At that time there had not been merely a single suspension, but a series of suspensions from year to year; and an inquiry had then been instituted to ascertain whether the powers confided during so long a period had been properly exercised; and if it was found that no abuses had been committed, a bill of indemnity was considered as the consequence of the inquiry. On the present occasion the conduct of ministers had been referred to the inquiry of a committee; the committee had found, not merely that no abuses had been committed—the committee did not, as it had been asserted, conclude its report with a few compliments to ministers—but that no warrant had been made out except on information on oath. That was different from the language of the report of 1801. He did not say that this was the standard by which ministers were to be tried, or the rule by which they were in future to guide themselves in the exercise of extraordinary powers; he had reason to know that in other times those powers had been exercised on very different grounds, and such times might come again, when it would be impossible for ministers to discharge their duty honestly by such means. It was not, therefore, that he conceived the secretary of state bound to abide by such a rule, but that, abiding by it, he had succeeded in saving the state from all the horrors of anarchy. It was this, he thought, afforded the strongest presumption that the powers confided to him had been well and properly exercised. But it had been objected that the evidence was all ex parte. But after the report of the committee, were there any noble lords who would deny that parties had been detained on oath, and that their conduct had justified that detention; of what then did the noble lords opposite wish to be informed? Did they say that they wished to know the character of those who had furnished information to mi- 796 nisters, that they might then consider whether it were proper to conceal their names? What then, in order to know whether the names of these persons ought to be concealed or not, they would begin by a disclosure of their names! This was extraordinary reasoning indeed. But their real object in wishing to obtain the names of the informers was this—that they might be able to show, that in fact no traitors and no conspiracy had existed, and that therefore the act of last session ought never to have passed. However, it was not the time now to enter on that question. It was sufficient that the act did in fact pass; and it passed because there was full evidence of the existence of crimes and treasons, of such a nature as to make its enactment necessary to the tranquillity and safety of the people. It was not now the time to inquire whether that act should have been passed or not, but whether the powers granted under it had been properly exercised. It was not now the time to inquire whether dangerous designs and treasonable practices had existed, but whether the means adopted to repress them were such as were warranted by the extraordinary powers confided for their suppression. The argument of the noble lord was most extraordinary; for he brought forward facts of the most contradictory nature, to show that such an act should never have passed. If the act was Justified on the ground of disturbances having existed, of what use was the act, said the noble lord, when disturbances had existed four years before, and the same measure was never applied to them: if it was shown that the country was now restored to a state of tranquillity, the noble lord said that the quiet that now prevails is a proof that the act was uncalled for. If it was urged that trials had taken place, and criminals had been found guilty, those criminals, according to the noble lord, were led into a conspiracy by spies and informers. If the result of some trials had been a verdict of not guilty, the noble lord urged it as a proof that no conspiracy existed. It would be just as reasonable to say, that a verdict of not guilty on a trial for murder was a decisive proof that no murder had been committed by any one, and that the person, killed was actually alive. This, then, was the state of the case—the noble lord could, not dispute that dangerous designs had been, checked in their progress; but he disapproved of the means that had 797 been adopted for that purpose, and therefore, vented all his invective against the persons on whose information the warrants had been granted; and what did these invectives mean. That if any well-disposed, any good and loyal person, knew of dangerous designs and conspiracies directed against the government and peace of the country, it was not his duty to come forward and disclose them as quickly as possible. Would the noble lords opposite say, that when parliament itself found and proclaimed the dangers that were impending over the country, those who were acquainted with the cause and point of danger, were not to come forward and disclose all they knew? and if they did so come forward, was it not fit that the House should afford them its protection? But the noble lords said, "What had they to fear? why not bring them forward and confront them with those whom they charged with crimes?" Was it nothing to be the object of the noble lord's invective? Was it nothing to be exposed to all the shafts of disappointed malice and the revenge of those whose schemes had been disappointed? Was it nothing to be the objects of party spleen and victims of busy malignity? It was, indeed, the duty of parliament to afford them its protection—a protection that the ordinary courts of law afforded to common informers. Another objection had been made by the noble lords opposite, to the practice of a bill of indemnity following a suspension of the Habeas Corpus: and their objection was this—"that a suspension was first proposed, and in order to smooth the way for it, it was held out that persons in the execution of extraordinary powers were to be restrained from exercising them in an improper manner, by the responsibility they were subject to; but this was all nugatory, if a bill of indemnity was to follow every suspension." To whom, then, were the persons intrusted with such powers responsible? To parliament—to parliament that gave them the power—to parliament that would not have given it unless it had been necessary, but which would certainly protect those to whom a proof of that necessity had been intrusted. It was in the full confidence that this protection would be afforded if they conducted themselves properly, that ministers ventured to exercise the powers intrusted to them; and the apprehension that such protection might be refused if their conduct would 798 not bear inquiry prevented the commission of any abuse. Their lordships knew that they had given their sanction to such measures over and over again, but their doing so had never injured the liberties or prosperity of the country. But why? Not because the men to whom such powers had been committed were men of extraordinary forbearance or goodness; no! they were but men, and, as such, subject to all the infirmities and weakness of their fellow men; but the reason that they did not abuse the powers intrusted to them was, that they were responsible to parliament; and if they failed to exercise those powers in a proper manner, they knew that no protection would be afforded them. The practice of passing bills of indemnity showed the necessity there was for so doing, and that necessity showed the responsibility of those for whom they were passed. If they were not responsible, it would not be necessary to pass a bill of indemnity. As he did not perceive any argument against the bill in all that had been urged, he could not possibly accede to the motion made by the noble lord.
observed, that the noble viscount opposite had on a former night exerted himself with great pains to defend the employment of spies. But the noble earl had gone much farther. He had taken great pains not only to justify the employment of such persons by the government, but to induce their lordships to look upon them with a degree of respect, which he was confident their minds were ill prepared for. Though he admitted that much might be said to countenance the employment of spies and informers, in cases of urgent necessity and danger; and though he was prepared to hear such topics insisted on by the noble earl upon the present occasion, he did not expect that he would have thought it expedient to attack the laws of the country. The depositions of informers should be sifted to the bottom; the testimony of any one who came forward with a view to reward should be received grano sails, because the circumstance of its being connected with such a view rendered it necessarily of a suspicious nature. Such persons were protected in courts of law, but they were not concealed. God forbid they should! for in such a case what would become of the justice of the country? The noble earl was far from being happy on another subject— his defence of the evidence de- 799 rived from such sources. He maintained that as their depositions were made upon oath, the case which was so made out was not to be considered as merely an ex-parte case. But how did their lordships know that the depositions were so given?—from the statements of ministers, which statements were in themselves ex-parte. He remembered to have heard the same argument in 1801, but could never bring his mind to regard it as a satisfactory answer to the charge. Even supposing that all the depositions were taken upon oath, why did they not hear the depositions on the other side upon oath also? was not the fact of their refusing to hear both sides, in itself an ex-parte proceeding? It was with much pleasure that he gave his support to the motion of his noble friend, having always entertained but one opinion on the subject, which was decidedly hostile to the measures of last year in every shape. Acting upon this conviction, he should enter his solemn protest against the present bill, because it was connected with the whole of those measures which struck so deeply at the freedom of the constitution. Their lordships were well aware of the value of that constitution, and could not be ignorant of the dangers resulting from the establishment of a single bad precedent. This precedent would be brought forward in future times, when it might be applied to the worst of purposes. For what was the precedent?—an unnecessary suspension of the Habeas Corpus act; and as in ninety-nine cases out of a hundred, the favourite ground of justification was authority, the transactions of the present day would not be without their dangers to posterity. He was far from disputing the general propriety of suspending the Habeas Corpus act, when circumstances required and justified it—but the case to which he was alluding was not of that description, and it was impossible to appreciate the extent of the mischief which it might become the means of entailing upon the country hereafter, if unfortunately it should be employed by weak and wicked ministers, to serve the purposes in which they would naturally engage. It might probably be expected, from the part he had taken in the discussions of last session, that he should have been present on a former evening, when the enactments were discussed in the committee; but he felt that his attendance was unnecessary, and although he would not ap- 800 prove of the measure itself, he was not prepared to say, that there were not occasions upon which an indemnity bill ought to be passed. Two grounds were necessary in order to justify a bill of this nature. In the first place, it should be shown, that there was no invalidity in the grounds on which the Habeas Corpus act had been suspended; and, secondly, that there was no abuse of the powers which that act gave to the administration. He was bound to say, that he could not support the bill, because he did not think that satisfactory grounds were established to prove the necessity of the measure out of which it arose. All the doubts he had entertained and expressed in the course of last year, were confirmed by every thing that had since transpired. Though the justification on which ministers relied, was the alleged danger of the country, he believed the real cause of their proceedings was an apprehension of the progress which parliamentary reform was making in the country. If they thought the views of the reformers were of a dangerous tendency, and the principle of universal suffrage subversive of the constitution, the best, the most candid, and straight-forward proceeding for them to have adopted was, to consider the publications in which such views were manifested, and such principles avowed, as libels, and to prosecute them as such. Considerable alarm was excited last year by the reports of the committees, and by the language which was adopted by noble lords in that House; but after the first report was published, it soon betrayed its own infirmity. It was found to be defective in one material point—that of the existence of a club in London, with which all the minor clubs throughout the country kept up a correspondence. He had already stated, that on the first publication of the report, considerable alarm had been spread throughout the country. In Chester a club had been formed to obviate the supposed danger, called "The King and Constitution," the chairman of which soon afterwards received a diploma, enrolling him among the Knights of the Order of Brunswick—a new order, created especially on this danger—as if there had not been orders enough in the country; as if the Order of the Garter, of Saint Patrick, of the Thistle, and of the Bath, with all its branches, extending to the "crack of doom," were incapable of satisfying the chivalrous spirit of this age, without this 801 new order of the Knights of Brunswick. He might have added also, the order of the "Honoured Leek," to which he could possibly have no objection, being half a Welchman; and in this he was very disinterested, for he did not see his own name enrolled among the proposed knights. With regard to the seditious and blasphemous publications, on which so much stress had been laid, he would declare that he had never heard or seen any thing of them until the trial of Mr. Hone. The jury by which he was acqitted, looked probably on those productions with the same disgust that was felt towards them in that House; but he thought it would not be difficult to conjecture the grounds upon which they had brought in their verdict. [The lord chancellor requested the noble earl to state them.] Earl Grosvenor said he had no objection. The jury probably saw that the prosecution originated in a political feeling. They recollected that similar publications had, at one period of their lives, received the sanction of some noble lords of that House, and that even if Mr. Hone should fall, he should not fall by the hands of ministers: "non tali—debuit ense mori." "If Clytemnestra should fall, it ought not to be by the hand of Orestes." Another reason might also be assigned: the jury had heard so much all their lives of the importance of looking at the intention of the offending parties, that they did so in this instance, and they thought that Hone had no intention to ridicule sacred subjects, but to ridicule his majesty's ministers; that he had no such intention was evinced by his withdrawing the publication as soon as he found it objected to, and before prosecution. As no law existed against applying sacred subjects to secular purposes, it was very natural that the indecency of such a course should escape the notice of a man of little education and less taste; and the more so, as the best authority to be found on such a subject (that of eminent divines from the earliest to the latest period) was altogether in support of the practice. With respect to the publication and distribution of those Parodies, he begged leave to mention one circumstance. In a county, with which probably the noble viscount was acquainted, the magistrates were extremely anxious to discover the distributors of blasphemous and seditious publications, and after many vain inquiries, they at length discovered the distributor in a person who had always 802 been looked upon as eminently loyal, taking that word in the signification that the noble lord probably would attach to it. A letter was immediately transmitted to the office of the secretary of state, mentioning these circumstances, but no answer was returned. A second followed, which obtained no farther notice, and thus the matter rested. As to the spies and informers, he could bring persons ten thousand times more respectable than spies and informers, to prove that Oliver and others were at the bottom of the conspiracy. Would the noble lord deny that Bacon was acquainted with Oliver—Bacon, who was concerned in that transaction for which the unfortunate persons suffered at Derby? After all he had heard last year about the responsibility of ministers, seeing the result to be a bill of indemnity, he was persuaded (however respectable ministers might be) that their wishes were of a most despotic description. He was told that there was no danger from the rich and affluent, but from the poor. Were the indemnities on former occasions accorded from fear of the poor? No! It was the great and opulent, who in every case must join to cause any danger to the government. A noble earl had alluded, on a former night, to the French revolution, for the purpose of showing the miseries which the lower orders might bring upon a country; but did the noble earl mean to say, that there were no great persons concerned in the French Revolution? Did he mean to deny that the duke of Orleans was concerned in it? The French Revolution was not to be attributed to the violence and power of the lower classes, but to the weakness of a corrupt system of government. Such would ever be the case when oppression compelled society to redress itself. At present a torrent of despotism had flown out on the nations like an eruption of lava. The little court of Saxe-Weimar was stretching its puny arm to extinguish the liberty of the press in Germany; but all their machinations would terminate in provoking to an earlier and more stable existence the liberties and happiness of the people. They might flatter themselves that the day-star of liberty was set for ever; but they would see it re-ascend once more—……Think'st thou yon sanguine cloud,Rais'd by thy breath, has quench'd the orb of day?To-morrow he repairs the golden flood,And warms the nations with redoubled ray,803 It had been a most unfortunate thing for this country, to be so closely connected with those despotic governments; it led to despotic ideas, and a most expensive and unnecessary increase of our military force. With 60,000 yeomanry in Great-Britain and Ireland, not a man more was in his opinion wanting, to preserve the tranquillity of the country; and the most rigid economy was at the present moment the more desirable, as he collected from the statement on a former night, by the noble earl opposite, that the sinking fund would be requisite to meet the expenditure of the country in the present year. Being perfectly convinced that the object of the noble earl was, to assist towards the establishment of despotic government, and seeing that no case had been made out for the bill before the House, he cordially supported the motion of his noble friend.
The Bishop of Exeter
expressed his surprise at the levity with which the noble earl, who was always considered a serious character, bad treated the subject of those productions which had done so much mischief in the country, and which had excited the disgust of every well wisher of the established church. It was not necessary for him to repeat what the noble earl had said respecting blasphemous publications, nor did it appear to be of any importance to consider whether they were intended to ridicule ministers or not. If other publications, possessing more point and wit, had been directed to a similar purpose, would it be contended, that therefore the present attempt to bring our sacred book and our sacred liturgy into disrepute was justifiable? It was a serious calamity that such publications should be treated with levity. They had already done great mischief, but he hoped in God the progress of that mischief was now arrested.
in explanation, said, that he had so unequivocally expressed his dislike and his sense of the indecorum of the parodies in question, that he little expected the reprehension of the right reverend prelate. As to the mischief done, he could not find that the parodies had been widely disseminated; but if any thing was likely to make them known, it was the very means taken by ministers for their suppression
The Bishop of Exeter
declared, that to his knowledge many of the parodies had been distributed in his diocese before the prosecution in question.
assured their lordships that they were also distributed very extensively in Devonshire. With respect to the propriety of employing spies, he could state, that a plan was laid for the purpose of getting at the arms of his regiment, which would probably have succeeded if it had not been for the intelligence of spies; and surely it would be improper to give up the names of the persons who had conduced to the defeat of such a scheme. If some strong measure had not been adopted, greater evils would have occurred; and if the ministers were answerable for any fault during the late transactions, it was in his judgment the fault of too much mildness.
The Lord Chancellor
said, that although be had not intended to speak on that occasion he was called up by some observations of the noble earl. It was by no means his intention to follow the noble earl through his speech, in which he had so closely adhered to the question before their lordships, that not a single word of it made for or against the proposition that the bill should be divided into three parts. The noble earl would therefore excuse him, if he did not answer all the topics which he had introduced. Ministers, and himself amongst the number, had been accused by the noble earl of abridging the liberties of the people, and of oppressing the lower classes of society; and his lordship had hinted that he (the lord chancellor) thought the poor were all seditious, and ought to be guarded against. This was by no means his opinion. All he would say on that point was, that he had endeavoured, throughout this business, to do his duty to the country at large—to all classes of the community, and the noble earl would allow him to add' that he was a little more afraid of some of the rich, than he was of the poor. However, he had been called up by some observations made by the noble earl on those horrible, disgusting, blasphemous, and seditious publications, that had been so justly the subject of prosecution. Did the noble lord say, that when the country was deluged with publications of this sort, the bane of all that was sacred and good, that prosecutions were to be avoided under the fear of giving them greater publicity? He (the lord chancellor) knew that most of those who had lately suffered, owed their misfortunes to the poison' imbibed from such publications. But if this doctrine of the noble lord's, that such 805 publications were to be left unnoticed from the fear of giving them greater publicity; if this doctrine were to hold good, then must their lordships sanction all that was dangerous to morals—all that was subversive of religion and good government. Almost every man, in and out of parliament, had expressed his abhorrence of those productions—and yet it was argued, not very consistently, that the persons who were the means of propagating them, should be suffered to pass unnoticed. Those persons, he would say, had to answer for most of the sufferings which individuals had endured, in consequence of the recent troubles—not merely of those who had committed misdemeanors, but of those who had been capitally Convicted. He spoke this confidently, because he had their own authority for the statement. By not prosecuting such offences, they would invite every licentious person in the country to undermine and destroy all that was dear to them. The person who said this to their lordships had had the misfortune to live in times in which libels were not directed against them, as individuals—when scurrilous publications were not confined to their private characters—he had had the misfortune to live in times when it had been his duty in his official capacity to repress a system of libelling, not directed against private individuals or public characters—not directed with the view of any narrow party, but calculated to destroy the whole character of our constitution and laws, lie knew what it was to be exposed to Obloquy For having done his duty—and this had led him to consider the conduct. of the present chief law officer of the Crown, in the discharge of those duties which he (the lord chancellor) had once the honour of performing. He conceived that that individual had acted in the most meritorious and exemplary manner. He would go farther and say, that if he had swerved from the responsibility attached to any one step he had taken, he would not have fairly or honestly discharged the duty which he owed to the public.
The Marquis of Lansdowne
observed, that the present was probably the last occasion on which the bill before them would come under their discussion, he should therefore avail himself of the opportunity to allude to the proceedings which had engaged so much of their attention in the course of the last year. 806 After the act for suspending the Habeas Corpus, it might, he would admit, be necessary to indemnify the persons who had acted under its provisions. When parliament agreed to give certain powers, it imposed a certain duty, and it was bound to follow the individuals on whom such duties devolved, not only with a view to investigate their conduct, but to afford them protection. He differed, however, from the noble earl as to the extent to which the shield of indemnity should be held over all the classes of informers. The noble earl had maintained that it would be impossible to procure evidence from informers, if they were to be brought forward, and had asked in what a situation would they be placed, if they were exposed to the taunts of his noble friends. Did the noble, earl consider the effect his observations would have on false informers, as well as on true? Did he consider the effect it would have thus to hold out certain impunity to the whole class of informers, whatever their conduct might be—to tell them, that however malignant that conduct, a sweeping protection would be thrown over them without, any inquiry, and without affording any redress to the injured? The legislature ought to have an opportunity of distinguishing between those who acted from just feelings, and those whose deeds were the offspring of that infamous malignity which often influenced a base and bad man to become an informer. It was conformable to the constitution of the country, that those who made charges against any individual should not shrink from the avowal of them. If that were not so, the law of this country would be like that of Venice, or other countries, in which secrecy was one of the principles of legislation. England would then be robbed of that which, however it might be sometimes injurious to individuals, was so generally glorious and beneficial, that no partial inconvenience could counterbalance it. He by no means meant to contend, that in no case should parliament extend the protection now required; but he called on parliament, whenever they did so, to recollect that they made a great and dangerous exception to the law. The greatest caution should be used in all the steps leading to so hazardous an anomaly. It had been well said oh a similar occasion, by an eminent orator, the late Mr. Windham, in terms homely, but full of common sense, "you ought not only to take care that 807 you are convinced, but take care that you come honestly by your conviction." Had their lordships come fairly and honestly by the conviction which induced them to agree to the present bill? In answer to this question, he would refer to the report on the table, and then to the bill in its amended state. In that amended state of the bill, was the principle for the first time avowed (for the report contained no such principle), of the necessity of indemnifying persons for acts done by them contrary to the law. The words introduced by the learned lord on the woolsack, and which, he contended, were not borne out by any thing they had heard from ministers, or which bad transpired in the report, were these: —"and whereas some of the said acts, so done, may not be strictly justifiable in law, but being done for the preservation of the public safety, the persons who have done the same ought to be indemnified in respect thereof." Before this amendment of the bill, the ground on which parliament was exclusively called on to agree to the measure, was the expediency of protecting persons called into court from producing the evidence on which they had acted, and which could not be disclosed without prejudice to the public interest. That might be a very good subject for one bill. But was it right, now, on the third reading of this bill—founded too on a report, which stated, that the magistrates had exercised their power most mildly—to relieve magistrates and others from the responsibility which attached to them for illegal acts—without knowing what acts had been done, or what parties had been affected by them? Such a proceeding might be proper hereafter—but, under these circumstances it was a sweeping clause, which in justice, ought not to be agreed to. In the committee on the bill an objection had unexpectedly arisen as to the propriety of inserting Ireland in a particular clause, and on that occasion, the noble viscount, to explain the matter, was obliged to refer to one of the petitions laid on their lordships table—one of those very petitions which a majority of that House declared ought not to be referred to the Secret Committee. This proved the imperfect way in which the business had been carried on. In fact, no attempt had been made to examine the whole state of the country, which should have been developed, before any report was made or any 808 bill introduced. Admitting, for the sake of argument, that parliament were justified last year in suspending the Habeas Corpus, in the absence of all the circumstances which had, until that period, been considered indispensable to such a bill,—there being no foreign war, no civil war, no part of the property of the country engaged in the alleged conspiracy; they were certainly bound to fence round such a measure with every species of precaution that might prevent it from being hereafter drawn into a mischievous precedent. For if there was a case in which the evil to be dreaded from repetition was greater than in any other, it was this, in which the legislature renounced the protection of the individual, which was its peculiar province, and abandoned him to the executive government, placing his liberty and privileges at its disposal, without affording him the possibility of redress for whatever injury he might sustain. He supported his noble friend's amendment, in order to do full justice to the people, and, at the same time, to do full justice to those individuals who had carried the act of last session into effect, and who, after due inquiry, might be found entitled to the protection of the legislature.
The Earl of Westmorland,
after the able manner in which the question had been discussed on both sides of the House, felt great reluctance in intruding on the House, but wished to make a few observations on what had just fallen from the noble marquis. The noble marquis must have overlooked the earlier clauses of this bill, not to be aware that its general tendency, as well as the direct tendency of the clause introduced by his noble and learned friend, was to protect persons who might have gone beyond the legal discharge of their duty. The Bill of last year, for suspending the Habeas Corpus, founded on the reports of committees, composed of individuals of every party, was passed by a great majority of both Houses. What did the noble lords opposite object to the present measure? They said that the suspension of the Habeas Corpus was unnecessary, and that the insurrections and conspiracies which had existed, might have been put down without it. He concurred entirely in that opinion. He fully believed that those conspiracies and insurrections might have been put down by the executive government without the extraordinary powers given to it. But had the noble lords calculated 809 how much murder, bloodshed, and devastation, might in that case have occurred? Had they considered how many brave soldiers might have fallen, or, if that were of little importance, how many of the deluded individuals themselves might have perished on the scaffold? It was mercy, and justice, and wisdom in the legislature to prevent such evils. Who could say to what extent the mischief might have proceeded, even had it been eventually checked, if parliament had not enabled the executive government to make the exertions which it had made? But their lordships had been told that all the disaffection which had manifested itself in the country was the work of spies and informers. It happened rather unluckily for this assertion, that Castles, one of the persons alluded to, had no communication with the leaders of the party respecting which he had subsequently given information, until three weeks after some of their most violent acts, and with respect to the other, that what took place in the country had been distinctly predicted long before he had been taken into the service of government. Spies and informers had from the earliest periods of history been the objects of popular dislike. But he believed that no government had ever existed by which they had not been used, and that hardly any conspiracy or treason had ever been detected and punished without their aid. He would not argue whether or not the nation at large owed gratitude to such persons, but this he knew that many individuals did owe gratitude to them for opening their eyes, and showing them that those whom they were protecting under the supposition that they were honourable men, were rank traitors. He was very willing to allow, that a bill of Indemnity was not a measure that followed of course the act of last session. But it should be recollected, that when the legislature gave to the executive government extraordinary powers, it was the duty of that government to exercise them. It was the imperative duty of the secretary of state, if he felt the exercise of the extraordinary power vested in him to be necessary to the security of the country, to exercise it. But would parliament invest any man with power, and then leave him subject to prosecutions and persecutions for the remainder of his life, for having exercised it? Was it possible to suppose that the legislature of this country would leave a servant of the country 810 in such a state? And if it was the duty of parliament, under such circumstances, to protect the secretary of state, it was equally their duty to protect the magistrates; and to protect those from whom information of the designs of the disaffected had been obtained.
The Earl of Carnarvon
was free to confess, that his objections lay to both parts of the measure, though certainly if he were called upon to say to which in the present state of their lordships' information on the subject, he was the more adverse, he should reply to that lately introduced because it extended the principle of the bill to that of which their lordships had no knowledge, and respecting which no communication had been made from the Prince Regent, nor any information elicited from the sealed bag. The necessity for it was a recent discovery on the part of his majesty's ministers. He would by no means assert that if the circumstances were thoroughly investigated, there might not appear a strong case for this indemnity; but at present their lordships had no facts, no grounds before them. Were ministers to be allowed thus to call on the legislature whenever they might find it convenient to interrupt the ordinary course of justice, without assigning the slightest cause for such interruption? The excess of proceedings on the part of the magistrates was not even hinted at as a ground for the bill, until the last night of debate upon it. That excess might be unjustifiable. It had been said that where 10,000 men were collected, the assembly must be unlawful and that the magistrates acted with propriety in dispersing it. In a free country like this, where the freeholders and other inhabitants might meet at pleasure to address the throne, to petition parliament, &c. this was singular doctrine. Their lordships had been told that the meeting at Manchester was an unlawful assembly. He was ignorant whether or not it was so; for the statements on the table, referring to that subject, were in contradiction to one another. But supposing it as unlawful and riotous as ministers wished it to be believed that it was, the conduct of the magistrates by whom it had been dispersed, and who it had been allowed had exceeded their powers, ought to be investigated, in order to determine whether they should be indemnified or punished. The bill ought to be divided. It now proceeded on two alle- 811 gations. For the one their lordships had some voucher, however imperfect; for the other they had no voucher at all. He had pledged himself again to bring forward in the present stage of the bill, the clause which he had proposed the other evening, allowing actions to be brought against persons who were charged with exceeding their authority, unless the secretary of state should, within a month of notice of such actions, make an affidavit that they could not be defended without danger to individuals and injury to the public service. But as the bill now stood, with this new proposition interlarded of which ministers did not seem to have dreamt before, it would be in vain for him to press any such amendment. He had only one course to take, which was, to give his negative to the bill, and, should that prove unavailing, to enter his protest in their lordships Journals against it. As a precedent, he was convinced it would be attended with more danger to the liberties, the security, and the happiness of the nation than were any of those disturbances which the noble earl thought, if they had been put down by the ordinary operation of the law would have deluged the country with blood. Their lordships certainly would not deluge the country with blood by passing those bills, but such might be the effect of the precedent which they would establish. In his conscience, he believed, that it was calculated to undermine and destroy the constitution of the country. When the legislature told the people of England that the constitution did not possess sufficient vigour to meet trifling and temporary difficulties, it was unquestionably not the way to induce them to love and defend that constitution whenever it might be assailed. With respect to the report on which the bill of last session was founded, and on which the noble earl had laid so much stress, he could only say that at the time the transactions took place on which the suspension of the Habeas Corpus act was founded he was at a distance from the country, and he heard with anxiety and alarm of what was going on. But whether it was, that, being removed from the scene of apprehended danger, he was less alarmed than many of their lordships, or whether it had arisen from something afterwards disclosed in the report itself, he must declare, that he no sooner read the report than he dismissed from his mind all apprehensions with respect to the internal tran- 812 quillity of the country. When he read in that report of the designs to undermine religion, &c.; and farther, that those designs were to be carried into effect by the 2nd December, he pronounced the whole to be a farrago of absurdity, which might terrify those who did not look deeply into the subject, but arising from which there was no rational ground of fear, except that parliament might be seduced to adopt that dreadful measure, the suspension of the Habeas Corpus, followed, as it had been, by this bill for suspending the responsibility of ministers; and now not satisfied with that, their lordships were required to go out of their way in order to protect all local and subordinate authorities who might have acted with unnecessary rigour. If there were any thing which could make such a suspension of the ordinary laws palatable to him, it must be the responsibility of those who were to exercise such extraordinary powers; for, in his mind at least, in proportion as the power was greater, in equal proportion must the responsibility increase. The report of the committee was the most meagre of any reports that had ever been laid on their table: it did not establish any ground for the measures that had been adopted; but it gave rise to many new principles, which, if sanctioned by the House, would inflict a more fatal wound on the liberties of the country than it would have sustained by any of those dangers which noble lords opposite had painted in such glowing colours. Government had derived little strength or benefit from the suspension of the Habeas Corpus. The fact was, that all the persons who had been tried were brought to trial within the period at which they had a right to be tried by the ordinary course of law, and all the advantage that government had enjoyed from the Suspension was, the power of detaining thirty-seven persons in custody beyond that period which would otherwise have been legal, an advantage against which was to be set all that the constitution had suffered. Upon the whole of this case, he felt it his duty to vote for the amendment of his noble friend; and if that were rejected, he should move that the bill be read a third time on that day three months.
The amendment was put, and negatived without division. The earl of Carnarvon then moved, That the bill be read a third time on that day three months. Upon which a division took place: Contents, 813 12; Proxies, 15–27. Not Contents, 45; Proxies, 48–93: Majority, 66. The bill was then read a third time and passed.