Lords Sitting of 10 December 1819

BLASPHEMOUS LIBEL BILL.
Lord Sidmouth Lord Sidmouth moved the third reading of this bill. The bill was accordingly read a third time, and the question being put, "That this bill do pass,"
The Earl of Carnarvonrose to move the amendment, of which he had given notice. The principle of the bill had been already so fully discussed, that nothing which might be said by him on that subject was likely to alter their lordships' determination. He must, however, observe, that this bill was how arrived at its last stage, without its being known whether the ground on which it was recommended to their lordships adoption was well founded or not. It had not been ascertained in what degree the laws were deficient in the power to punish blasphemous and seditious libels or whether they were deficient at all. On that point, the most important for their lordships consideration, they had heard nothing which bore out the assertions of the sup-porters of the bill. Blasphemous and seditious libels had been allowed to circulate to a great extent within these two or three years; but it was with astonishment he heard the necessity of passing new laws asserted, on the ground of the insufficiency of those which now existed to check such publications. In order to see what foundation there was for this assertion, their lordships had only to look at the return on the table of the number of prosecutions. By that paper it appeared, that the whole of the prosecutions by information, of blasphemous and seditious libels, during the year 1818, amounted to nil! In turning to see what had been the number by indictment, he thought that a proper regard to the constitution had induced the law officers of the Crown
978
to adopt a mode of action which was justly more popular than information; but when he had turned to that head, there he found nil also! That the government and the officers of the Crown should not think it necessary to institute prosecutions, when the evil of which they complained was at its height, and should now come to parliament for a new law, without having tried the old, was most extraordinary. Having made this observation, which the paper on the table naturally suggested, he had now to state the principle which induced him to propose an amendment to the bill. That principle was, that in time of alarm, great caution ought to be exercised, before any permanent change in the law was adopted. At the beginning of the session those who opposed the measures introduced were willing to give ministers temporary powers to enable them to repress any disaffection which might be found really to exist; but they protested against making local dangers a ground for passing permanently restrictive laws. The same consideration had induced him to make one attempt before the bill was finally adopted, to prevail on their lordships to do that which ought always to be done in such cases; namely, to give only a temporary power to ministers, and to reserve for future consideration the question, whether the law was fit to be rendered permanent. Last night the noble and learned lord on the woolsack, whose mind possessed the richest stores of legal knowledge, had hesitated to apply to a bill, a clause the principle of which he admitted, until he had time for further inquiry, and was not satisfied that the postponement of the bill till Tuesday would afford sufficient opportunities for his research. If that noble and learned person could not by Tuesday make up his mind on a subject with which he was so well acquainted, how could the few days in which their lordships had been occupied in the consideration of this bill be sufficient to satisfy them that it ought to be made permanent? He believed that to make a wise law on the subject of libel, one that should equally protect the liberty of the subject and the security of the government, was one of the most difficult tasks a legislative assembly could undertake; and yet, upon a proposition made last night, their lordships were called upon to make such a law permanent. He could not but regret that no satisfactory reason had been given for altering the law.

979
He must therefore resist so great and permanent a change in the constitution. Before the last clause authorizing the alteration of the act in the present session, he would propose to introduce a clause declaring that it should continue in force two years and no longer.
Lord Sidmouthcould not admit that this bill was a violation of the constitution for a temporary purpose. The noble earl had stated, that he and his friends had been ready to co-operate in temporary measures of restriction. He certainly did not understand that to be the base; but if it had, such co-operation could not have been accepted by his majesty's ministers with respect to the present bill. Was the danger to be guarded against one of a local description, or one the legislation against which ought to be temporary? That danger was the circulation of blasphemous and seditious libels; and it was their lordships duty to mark their opinion of the importance of putting down such crimes by passing permanent laws for that purpose. In estimating the nature of this bill, their lordships should consider what the law on the subject of libel had been previously to the act which an hon. and learned gentleman introduced in another place. The punishment for libel was then fine, imprisonment, or the pillory, or all three. It was hot, however, proposed by the present bill to make the punishment in the first instance so Severe. Only fine and imprisonment attached to a first libel; on a second conviction, banishment and transportation were added. He would ask their lordships, whether, considering the great increase of the crime of libel, these could be regarded as too heavy punishments? Whether the framers of the bill had shown a disposition to push the law to a severity beyond what the exigency of the case required? But the noble earl had referred to the papers on the table; and it was unquestionably true, that no prosecutions had been instituted during the year 1818 for blasphemous and seditious libels. But their lordships could not doubt that the attorney and solicitor-general had reasons to assign for this forbearance. Whether their reasons would appear satisfactory to the noble lords opposite, he could not pretend to say. He could, however, assure their lordships, that the subject had been fully considered by two of the most able men in the profession of the law; and the course which had been
980
adopted was by them considered the most advisable. When he mentioned to their lordships the name of sir Samuel Shepherd, they would be sensible that he could refer to no public character more distinguished for transcendant talents and private worth. After what took place in the court of King's-bench in the course of the year 1817, particularly after the remarkable acquittal on a prosecution for blasphemous libel, a very strong impression was produced, that the existing law could not be successfully enforced. But with regard to the year 1818, the fact was, that public libels had during that year become less numerous, and a hope was entertained, which unfortunately proved fallacious, that the temptation to publish had decreased with the disposition to purchase such poison. When it was found that the expectation Formed in 1818 had been disappointed, and that libels again increased, it was thought necessary to look to a sufficient remedy. All the arguments, and all the conduct of the noble lords on the other side, formed the very counterpart of what he recollected to have passed in 1792. When his majesty's proclamation was issued against libels, then loud charges were made against the government for not prosecuting. The instruction given to the magistrates to perform their duty was described to be the holding out encouragement for spies. When an association was formed, in which were to be found the names of the late Mr. Windham, Mr. Perceval, and other distinguished persons, and subscriptions entered into for the prosecution of libels, these proceedings were called oppressive and unconstitutional, and were held up to opprobrium as an attack on the liberty of the press. On the 18th of September in the subsequent year, Paine was convicted of publishing his seditious libel; but still the same conduct was pursued by those who opposed his majesty's government. Now, what had happened within the last two or three years showed that the same course was still followed. Seeing the difficulty which had arisen in prosecuting, and the art with which some libels were framed, he had addressed a letter to the magistrates, recommending a course which appeared best adapted to the case. Before he had done this, he had taken the opinion of the highest legal authorities, and the answer he received from them was, that the magistrates had the right of holding to bail

981
for libel. The measure he had described was however no sooner adopted, than it was stigmatized as a violation on his part of official duty, and an undue interference with the law of the land. It was not, therefore, from quarters in which this conduct had been pursued, that complaints of the neglect of prosecution ought to come. With respect to the motion of the noble lord, it was one to which he could not agree. He had already stated the difference between the law of libel as it formerly stood, and that which at present existed; and if he were to give his opinion as to any imperfection in the bill now before their lordships, he should say that it was deficient in not enacting some punishment for libel in the first instance equivalent to that which had been recently repealed.
The Earl of Rosslynthought, that before this bill passed, ministers ought to show that the present law was inadequate to the object in view, and what prosecution for a right object, and rightly conducted, had failed. The noble viscount had alluded to the proceedings against Mr. Hone, as a reason why the officers of the crown were unwilling to prosecute. But what had been the effect of that prosecution? Why, according to the noble viscount's admission, it was followed by a decrease in the number of, libels published, being the consequence of a decrease in the disposition to buy. Now; if such an. alteration had taken place after the trial of Mr. Hone, it was rather odd to make his acquittal a ground for the present measure? But who had been acquitted in the year 1819 for blasphemous libel, that the noble viscount thought it necessary to propose this measure? The argument, that Mr. Hone's acquittal had caused an increase of libellous publications, was now swept away. If their lordships looked at the papers on the table, they would find that no steps had been taken, towards enforcing the law in the present year, until July. It seemed as if prosecutions had been abstained from purposely—as if it had been expected that an increase of the crime would take place, to justify the imposing of heavy and extraordinary penalties unknown to the constitution.
Lord Erskinesaid, that when he formerly spoke against the bill before the House, he had not then seen the papers now upon the table, which greatly increased his objection to it. He did not
982
then know that in 1818 there had been no prosecutions, and in the last year only one. How then could a measure so perfectly new in principle be possibly supported. The noble viscount ought not to suppose that they who opposed it, condemned ministers for not prosecuting.—What they had said was only this—" If there has been such an increase of blasphemous libels, as to justify the enactment of new laws to suppress them, why have you not prosecuted them. We do not pretend to blame your inactivity, because we have no proof of the truth of your assertion, but when you call upon us to consent to new laws, and of greater severity, we have a right to retort that no use had been made of the old ones."—It had been justly observed by his noble friend (lord Holland) that the matter to be considered was not the number of the writings which alarmed his majesty's ministers, but the proportion to the antidotes of religious publications. Only 3,000 copies of the Age of Reason had been shown to have been circulated, whilst printing in all its branches had increased to an uncalculable extent, and particularly in tracts periodically circulated by the zeal of sincere supporters of the Christian faith. Lord E. said he had reason to believe that the numbers alone of the Methodist and Evangelical Magazines, taking the circulation of each at 25;000 per month, amounted to above 500,000 in a year, and there were very many others of the same character so widely circulated, as to make religious enthusiasm rather than infidelity, the national characteristic. At the same time he was most desirous that the infamous traffic in writings of that description should be put down, and the ancient laws had always been found sufficient to effect it. His objection to the bill, however, would have been greatly lessened, if the second punishment had applied alone to blasphemous publications, because booksellers might then easily discover the kind of books or pamphlets they were selling; but when it was extended to writings upon the daily measures of government, which the people by the best principles of the constitution have a right to consider, and even a duty with freedom to animadvert on, it was a scandalous and frightful abuse to require from every general bookseller carrying on an extensive trade in books, such an accurate scrutiny into every work he sent forth from an immense

983
library as to protect him against the ruin of transportation if he made a mistaken estimate of every writing on political subjects which he had sold, more especially when the libellous chatacters of such publications depended upon opinions which might differ; and not upon any plain rule of law. It was manifest; therefore, that by extending the bill to other objects, blasphemy was made a mere stalking horse to justify, and by imposition to render popular the new projected fetters on the press, so as to deter men from examining and publishing the acts of government, dreading every public scrutiny into the vices on errors of its administration. Lord Erskine said, that his noble friend (lord Holland) had alluded to a passage in the works of Mr. Burke, ex posing the corruption of an addressing parliament, and a petitioning and complaining people. There were many other most eloquent ones of the same description, one of which he repeated, and said, that coming from the pen of some obscure author instead of Mr. Burke, whose character was established and out of reach, it might have been prosecuted and the terrors of transportation might have been made use of to suppress such valuable works. He should therefore support the amendment.
The Duke of Wellingtonthought his noble and learned friend who had just sat down had completely mistaken the question. What their lordships had to consider was, not whether the present law of libel was sufficient with regard to a first offence, or whether the government ought to have instituted more prosecutions; but whether it was proper now to pass a law for inflicting a severer punishment on persons convicted a second time of the same offence. What had given occasion to the introduction of the present measure was, as he understood, the case of Carlile. That person had not only continued the sale of the libel for which he was prosecuted, after conviction, but had published other libels, and had also published the same libel for which he was tried in another form, before sentence was passed upon him. No person who considered the circumstances of that case could avoid seeing that the law was not strong enough to prevent the repetition of the offence. The question therefore was, whether their lordships would enable the judges to inflict an additional punishment in such a case—whether they
984
would not adopt a measure which had for its object to prevent the repetition of so atrocious an offence.
Lord Holland Lord Holland, though the grounds on which this measure had been defended had often varied, did not expect at this period of the discussion to hear it stated, that it had been brought forward for the reason the noble duke assigned. It seemed now, that all that had been stated in support of the bill was unfounded—that it was not a general increase of libels that had given it origin, but a desire to apply punishment to a particular repetition of the offence, because one man had after conviction continued to publish: but it was a pity the noble duke did not think it necessary to go one step farther, and to show that the court was not able to punish this offender. If he did publish fresh libels, did not every separate publication afford a ground for further punishment? If their lordships were to go on to punish on such grounds, they must next apply the penalty of death to this offence, for nothing else remained. When the discussion of the present measure first commenced, it was stated that libellous publications had greatly increased, and that the acquittal of Mr. Hone had been a great cause of that increase. A return of the number of prosecutions, embracing that period having been moved for and produced, it was to be expected that this assertion would have been confirmed; but on referring to it to see what prosecutions had been instituted during the year after Mr. Hone's acquittal, what was the number returned? None. The noble viscount, in answer to the observation of his noble friend on this subject, says, that during that period the fact was, that the number of libels published did actually decrease. This was contrary to every thing that had been stated before. For his part, he had no inclination to look after libels; but he must say, that the most blasphemous and seditious he had ever met with were published in that very year 1819, when, according to the noble viscount, the taste for that sort of publication had so much declined; and yet no prosecution had been instituted in that year. Here, he observed, he must repeat the observation of his noble and learned friend, that fault was not found with ministers for not prosecuting, if prosecutions were unnecessary. That was not made a charge against them; but when they proposed new laws, on

985
the ground that the present were inefficient, it was fit that they should be called upon to prove that inefficiency, by its failure when applied to cases which deserved to be prosecuted. At the beginning of the session it was proposed by a noble friend of his, that their lordships, before they proceeded to any enactment, should institute an inquiry, in order to ascertain whether the evil complained of existed; but then it was never conceived that it lay in so narrow a compass as that assigned to it by the noble duke. Now it appeared that all we had heard respecting the great increase of blasphemous and seditious libels, after the acquittal of Mr. Hone, was unfounded; that on the contrary they had decreased, and consequently no prosecutions had been instituted. He confessed that, had he heard from any of his friends on his side of the House, that the return of the number of prosecutions would have been what it turned out to be, he should have deemed it a hasty assertion; but the manner in which it had been accounted for was one of the most extraordinary circumstances which had occurred during the discussion of the measures proposed by ministers.
The Earl of Westmorelandsaid, that as the bill had gone through all its stages, and as their lordships had already agreed to the increase of punishment, that increase could not be brought again into discussion. If the measure were now under discussion, he should be prepared to contend, that the alteration of the punishment by the present bill did not render it more severe than it was when pillory was in use. This, however, was not now the question. The question was, whether the bill enacting this increased punishment was to be a permanent or temporary measure. He had no hesitation in saying that he thought it ought to be permanent, as he could not conceive a time in which he or their lordships would be disposed to consider the blasphemous and seditious libels described in the bill too severely punished by the penalties awarded. Some noble lords had represented this measure as dangerous to the liberties of the people, and an inroad on the constitution. He was of opinion, that it would tend to preserve their liberties and constitution; and as it was desirable that these blessings should be perpetual, so he thought that this measure should be perpetuated as their support and protection.
Earl Grosvenorsaid, that as the bill had not yet passed, it became their lordships to consider now, whether it ought to be made temporary or permanent. He besought their lordships to reflect on the danger of the measure to public liberty. He could not believe, from the temper displayed by his majesty's ministers, that they would accede to the proposition, now made; but he called upon those noble lords who had not become the slaves of administration, who had not so much prostrated their understandings to the views of government, as not sometimes; to decide for themselves, and to support measures proposed by his side of the House—he called upon the noble lords on the cross-benches, to consider the inroad which this act would make; on the constitution, and therefore not to sanction its perpetuity. He knew it might be said, that the law, if found unnecessary or injurious, might be repealed; but it was difficult to get a law repealed on which the courts had been acting as permanent. Under a tyrannical law, the public mind might acquirers death-like torpor, which might render it insensible to the despotism under which it laboured, and thus learn to make no difference between the thick atmosphere of oppression, and the free air of liberty. The noble earl said; that he should have wished to have entered more at large into the subject of the new measures, had he not been prevented by indisposition. He then proceeded, but evidently labouring under the indisposition to which he alluded, to state grounds for believing that the alarms in the northern counties, and particularly in that part of the country with which he was connected, were false, or much exaggerated. The disturbances among the miners and colliers of Flintshire had no political object: they were merely disputes about wages, which had been since adjusted. He had alluded to these circumstances, because he was confident that in many other instances where disturbances prevailed, they arose from causes connected with the state of trade or the rate of wages, and did not indicate any disposition of resistance or rebellion against the government. Reverting to the bill before the House, the noble earl observed, that it would have been a great satisfaction to his mind if an instruction had been given to the committee to divide it into two, and to separate that part of it which related to blasphemy

987
from the enactments for checking seditious libels. The blasphemous libels intended to be put down were so disgusting in their nature, that there would have been little objection to greater severity of punishment. Seditious libels, as the word was understood, might be of a very different description, and might not deserve the same punishment. He had observed with regret, that the noble lords opposite, in supporting their measures of severity, had, in their speeches, universally joined blasphemous to seditious libels, as if for the purpose of inflaming, the, public abhorrence of the, one by the infamy attached to the other. He always lamented when he saw religious and secular matters mixed, but more particularly when he saw religious men engage in secular subjects, for by so doing they uniformly lost that respect and reverence which ought to belong to their sacred character. He should not, however, find fault with them, if, when they, did interfere in secular matters, they followed the example of the present bishop of London, who met these blasphemous publications by the only proper means—the distribution of religious and moral lessons. Such were the means most effectual for controlling the evil complained of—such the means for acquiring respect and esteem for the individual who would so conduct himself—and such the surest and most effectual weapon for combating the enemies of the church, by drawing out for the sacred fabric the best wishes of the generous and the good throughout the kingdom.[Hear, hear!].
The Bishop of Landaffsaid, that in the few observations which he had to make, he would confine himself to that part of the bill which related to the suppression of blasphemous libels. He did not understand the noble duke as supporting the necessity of the present bill only on the difficulty of punishing or checking an offence in one particular instance. The offence of blasphemy was one of long standing. It had, during the last century, appeared under different shapes of infidelity and irreligion, but it had lately assumed an entirely new aspect. It was formerly limited to books of infidelity and free-thinking, which fell into the hands only of persons of education, who could resist their influence or refute their errors. In the present times, blasphemous and infidel productions were brought down to the level of the meanest capacity—learning and argument and rea-
988
son were discarded, and the meanest understanding joined to the grossest ignorance assumed the privilege of abusing what the most cultivated and sublimest minds had defended and venerated. There was no reason in that called the "Age of Reason.'' Considering the character of the irreligious works in circulation, it was vain to suppose that they could be put down by legitimate reasoning or fair argument, or that their authors could be silenced by any effort of wise and solemn minded men to refute their errors. Some attempt therefore ought to be made to try whether the terrors of the law could not put down publications against which neither the reasonings of the wise, nor the researches of, the learned, nor the force of truth, offered, an immediate defence to those classes of society among which they diffused their poison. The noble earl had eulogized the distribution of moral and religious tracts to counteract this alarming evil. This might be done; but it was not alone sufficient. The ministers of religion should be seconded in their efforts, and inspired with confidence in the success of their labours, by the countenance of their lordships, and of all the respectable part of society, who should testify their abhorrence of those attempts now making to unsettle all the principles of mankind. After the discussion which the bill now before the House had already undergone, the reverend prelate declared that he should think any observations of his an intrusion. He could not, however, but allude to one remark made by a noble lord, who asked—was transportation a fit punishment for a wrong direction of intellectual labour? Now, there was no effort of mind, no intellectual operation, in blasphemy. It was a crime that the meanest capacity could commit; and the persons who had lately published their pestiferous doctrines had evinced so much of the felon's character that they deserved to share the felon's fate. He therefore gave his support to the bill, which, in his opinion, would be duly executed by juries, and give confidence to all orders of the community.
Lord Lilford Lord Lilford, who spoke from the cross-benches, said, in reply to an observation of earl Grosvenor's, that he did not see why those who supported government on the present occasion could be considered as having prostrated their understandings to the administration. The noble lord at some length defended the bill.
The amendment was negatived without a division, and the bill passed.

PROTEST AGAINST PASSING THE BLASPHEMOUS LIBEL BILL.
The following protest was entered on the journals:
"Dissentient,
"For the reasons assigned in the pro-test on the second reading of this bill
"And because, feeling, as I do, a just abhorrence of the mischief of circulating blasphemous writings, I am persuaded that the prevalence of such libels will not be diminished by the provisions of this bill.
"Because I consider, also, that in the present disturbed and distracted state of the country, measures of extreme severity are little calculated to restore confidence to an irritated and suffering people, and that the increased measure of punishment for the repetition of the of fence, of "composing, printing, or publishing" what are termed seditious libels, is inconsistent with the genuine spirit of the English constitution, and inefficient for the object which it professes to have in view. BEDFORD."