HL Deb 01 October 1841 vol 59 cc1049-65
The Duke of Portland

rose to submit a motion founded on the papers which recently had been laid before the House, containing the correspondence between the magistrates of Mansfield and Lord John Russell, the Marquess of Normanby, the Duke of Portland, and others, on the subject of an action brought against one of their body, who was defendant in an action brought against him for trespass in the discharge of his duty. The noble Duke was understood to say, that the magistrates of Mansfield had received information, that on August 12th, 1839, it was probable there would be an eruption of Chartists into the town. The magistrates had met, and a Mr. Unwin, one of the body, had told them that he had certain information, that in many houses there were arms concealed for treasonable purposes; and that if those houses were searched, they would find them. Now, the magistrates had great doubts as to whether they possessed any authority to search for arms, and the clerk to the magistrates gave it as his opinion that they had no such authority. The apprehended meeting of Chartists took place. They were dispersed without difficulty, and some of them were taken up; but in the evening, constables, under the super-intendance of Mr. Unwin, a magistrate, went to the house of Joseph Broyan, in order to search for arms. No arms were found; but many letters signed Pitkeithley, which Mr. Unwin considered to be of a treasonable nature, were seized, copies of which he forwarded to Lord John Russell; and Mr. Phillips, by the desire of Lord John Russell, acknowledged the receipt, thanked the magistrates for their zeal, but stated that the noble Lord had no directions to give them. Not one word was then said against the perfect legality and order of the proceedings taken by them. Two months after that, Broyan gave notice of action against Mr. Unwin for trespass, and that gentleman applied to Lord John Russell to undertake his defence. The Government declined. Mr. Unwin was now dead; but there never was a more active magistrate. He certainly was no partizan of her Majesty's late Government; on the contrary, he was strongly opposed to them; but, had he been their warmest adherent, he could not have done more to repress Chartism. The answer given to his application by the Home-Office, was a letter from Mr. Phillips, by command of the Marquess of Normanby, in which the noble Marquess regretted, that the magistrates had proceeded to the search of any house without having had a sworn information before them, or without previously communicating with the Secretary of State, as it was at variance with his previous instructions to the magistrates. Before that period, not one word had ever been said against the conduct of the magistrates. In his opinion, it was the duty of the Secretary of Stale at all times to support the magistracy; but in this case, the noble Marquess had gone out of his way, and had invented facts, in order to cast blame upon them. This was a most extraordinary case, and one which, he thought, deserving their Lordships' attention. The noble Duke concluded by moving— That an humble Address be presented to her Majesty, praying that her Majesty will be pleased to take into her Majesty's gracious consideration the case of the late Edward Unwin, Esq., of Sutton, in Ashfield, in the county of Nottingham, late a magistrate of the said county, and the defendant in an action for trespass, brought against him by one Joseph Broyan, of Sutton, in Ashfield aforesaid, for acts done in the discharge of his public duty, as a magistrate, in obedience to the instructions contained in a circular letter of the 7th May, 1839, from the right hon. Lord John Russell, then one of her Majesty's principal Secretaries of State, and in furtherance of the purposes of her Majesty's Government.

The Marquess of Normanby

said, he could not help regarding the motion of the noble Duke as an unprecedented one —that, upon an ex parte statement, without the knowledge of the facts before the executive Government, their Lordships should be called upon to take upon themselves the responsibility of advising the Crown to indemnify a party. The noble Duke knew that he was most unwilling that this case should come before the House. One reason was, that he should have to speak of the conduct of a person now no more. The noble Duke had stated that everyone of Mr. Unwin's acts had been founded on the letter of Lord John Russell. If that noble Lord was to bear the responsibility of the proceedings of Mr. Unwin, why was he not informed of them? [The Duke of Portland; He was.] He begged the noble Duke's pardon. He was not informed that there had been a search for arms till Mr. Broyan brought his action. The House was not searched under a warrant; it was distinctly admitted on the trial that there was no warrant. Mr. Unwin, a magistrate, was present at the search, but there was no warrant, although the letter of Messrs. Parsons and Benn stated, that "a copy of the warrant, under which the search and seizure of papers was made," had been forwarded to him (Lord Normanby.) If Lord John Russell and the Government were to bear the responsibility of the proceeding, at least the magistrates should have stated all the circumstances under which it took place. It had been the opinion of the jury at the trial, under the direction of the judge, that Mr. Unwin had not been justified in the seizure. He had told their Lordships that no communication had been made to Lord John Russell at the time; but he went a step further; no communication had been made to him for two months after. This was a period of considerable anxiety, when there was more of organization for purposes of unlawful violence and for illegal acts than he ever recollected; and amongst other sources of disturbance of the peace, those who lived on the outskirts of the seditious districts propagated unfounded reports. The information respecting the collection of arms was of this description: many of these statements were founded upon mere hearsay—a person saying, "I should not wonder if there were arms in such a place." In the instance before their Lordships, the magistrate had acted on insufficient information; a house was searched, and no arms were found there. The letter of Messrs. Parsons and Benn, the clerks to the magistrates, dated the 15th November, showed they felt that Mr. Unwin had acted wrong. Although it may appear," they said, "under the peculiarly difficult situation in which the magistrates have been placed, they may have exerted a rigour beyond the law, yet, as their determined resistance to the Chartists has obviously secured the peace of this county, they trust that your Lordship will favour them with your counsel and assistance on this trying occasion. In reply to this application, he had acquainted the magistrates with his opinion regarding the conduct of Mr. Unwin, and he had declined to take any part in the business, or to offer any advice. Now, if the magistrates had expected that the Government should bear the responsibility of their acts, was it not extraordinary that they should not have stated that they had acted in conformity with the directions of Lord John Russell? But no such a thing. The notice of action by Joseph Broyan was to this effect. For having on the 12th of August last, illegally and with force of arms broken and entered the dwelling-house of Broyan, and illegally searched the rooms, drawers, and presses, and seized and detained certain papers. He had directed the magistrates to be told that He regretted very much that before Mr. Unwin issued his warrant for entering the house of Broyan, and for the seizure of arms, information was not given to the Secretary of State, in which case Mr. Unwin would have been informed that such a course was not to be justified in point of law, and dangerous. Messrs. Parsons and Benn referred to the warrant under which the seizure had been made, but the search was not made under that warrant. It had been distinctly admitted by the counsel on both the trials that there had been no warrant, and the judge had commented upon that fact. [The Duke of Portland. It referred to other houses.] The noble Duke was in error; it did not refer to other houses. The information on which the search was made merely stated, that Ephraim Sills, hath good cause to suspect, and doth suspect, that certain fire-arms and other offensive weapons had been collected for treasonable purposes by John Tomlinson, Thomas Hunt, Benjamin Brandreth, Joseph Broyan, and others. It did not state where collected. The warrant stated that Sills had given information upon oath, that they were concealed in Broyan's dwelling-house; but these important words were not in the information.

Lord Wharncliffe.—

That was sufficient to justify the search of the house. The warrant set forth the information.

The Marquess of Normanby.—

The warrant says, "concealed in the dwelling-house;" but the information stated no such words, and it was upon the information that the search was made. The noble Duke objected to the letter he had sent on the 19th of November; but he was ready to justify it under the circumstances of the case. In that letter Mr. Phillipps said— Gentlemen—I am directed by the Marquess of Normanby to acknowledge the receipt of your letter of the 15th instant, with its enclosures, and to inform you that Lord Normanby regrets very much that before Mr. Unwin issued his warrant for entering the house of Joseph Broyan and for the seizure of arms, information was not given to the Secretary of State, in which case Mr. Unwin would have been informed that such a course was not to be justified in point of law, and dangerous, and that it would be contrary to the course which the Secretary of State has recommended, and at variance with the opinion which he had generally made known among the magistrates. Under these circumstances Lord Normanby cannot take part in this business, nor offer any advice with reference to the action of which Mr. Unwin has had notice; but in case an action should be brought, and the party should proceed to trial, Lord Normanby will be ready, after the conclusion of the proceedings, to take the matter again into consideration, upon a review of the whole of the evidence which shall have been laid before the court. Everything that had since occurred had convinced him of the propriety of that letter, and that Mr. Unwin had acted rashly, inconsiderately, and illegally, and not, according to the words of the noble Duke's motion, "in conformity with the instructions of the Government." The letter of the 25th of January, to which also the noble Duke alluded, established an additional ground for confirming him in the view he took of this case. He never saw Mr. Unwin but once in his life, and that was towards the end of December or beginning of January, when Mr. Unwin came late in the evening to his office, and entered into details of the alarming state of his district; to all which his reply was, that this was all very serious, provided it was authentic; but that it was to be regretted that much of the information from that part of the country was derived from sources to which no credit ought to be attached. A few days after that he received a letter from the noble Duke, stating that he could not learn anything more about the fire-arms. This was after the riots at Newport. On the 25th of January, 1840, he directed Mr. Phillipps to write the following letter to Mr. Unwin:— Whitehall, Jan. 25, 1840. Sir—Lord Normanby directs me to inform you, with reference to a statement made by you as to the fact of a large number of arms being kept in the house of a person, who has been in the habit of attending Chartists meetings, (to which statement the Duke of Portland has called his Lordship's attention), Lord Normanby advises, in case you can obtain information upon oath that a large number of arms are kept in the house of such a person for an illegal use and purpose, as the informant believes, that a warrant should be issued for searching for the arms; and that the arms, if found, should be taken possession of, and kept safely by the magistrates. To that advice he still adhered. But nothing was done in consequence of that letter; Mr. Unwin found that he had been deceived, and no steps were taken. The noble Duke had also alluded to the charge of Mr. Justice Littledale at the trial, but he had not said one word respecting the charge of Lord Chief Justice Denman at the other trial. The noble Duke called upon their Lordships to assent to the motion, because the act had been done in conformity with the directions of Lord. John Russell; but Lord Chief Justice Denman said: It has been stated that Lord John Russell's letter had been acted upon; but Lord John Russell's letter was not the law, and if it had been, it did not go to the defence of Mr. Unwin. The information did not state that the arms had been seen. It was a mere suspicion on which the magistrates acted, and this fell far short of what was required by Lord John Russell. This was Lord Denman's language, and it fully confirmed him in his opinion of the propriety of the course which he had pursued when he promised to reconsider the case after all the facts should have been laid before a jury. No doubt Lord Denman and Mr. Justice Littledale said there were circumstances in the plaintiff's case which were not above suspicion, and which might have been and which ought to have been explained; but Lord Denman observed also:— It excites surprise in my mind, that the man who gave this information is not here today. This appears to me to be the result of management,' and that the object was not to search for arms, but for papers. It was sworn on that occasion that Mr. Unwin, on seizing some papers, said: — This is what I all along wanted. Circumstances came out on the second trial which corroborated the suspicions arising from this transaction. A Doctor M'Neish, who was examined for the defence, on being cross-examined by the plaintiff's counsel, said that he lived in Sills's house, and that he could not believe him (Sills) on his oath; and that Mr. Unwin had told him that his reason for not calling Sills on the first trial was, that he feared he would only injure the defence and disgrace himself (Sills). What did Mr. Justice Littledale say on the first trial?— The defence set up is, that the country was in an excited state. It appears that warrants were granted for searching other houses, but that no warrant was granted for searching Broyan's, and that Mr. Unwin reserved that for his own personal search; for what object does not appear. Some stress had been laid upon the documents found in Broyan's house, and particularly on the copy of the address from the general convention. But it was evident that this latter document was not much prized, when it was used to wrap round stockings. It had been also said, that Broyan had attended meetings of riotous persons. But surely this could not be a justification for breaking into his house to search for arms. The noble Duke wanted the House to address the Crown to do that which had never been done before. It was not the fact, that Mr. Unwin's conduct was in exact conformity to the rule laid down by their Lordships and Lord John Russell. No one could say, that the dignity of the Bench was improved by what came out on the trial about Mr. Unwin searching the drawers of this man's daughter. When he coupled with that, that Mr. Unwin acted on his own authority without warrant—without having taken the opinion of the Bench, that other houses were searched upon warrants by magistrates, and that Mr. Unwin took away not what he was instructed by Lord John Russell to search for; all these circumstances combined, justified him in maintaining that this was an exception to the invariable practice. He was not inclined to throw suspicion on Mr. Unwin's motives. He happened at one period to live in Mr. Unwin's neighbourhood, and he knew that his character was, that he had a constitutional infirmity of wishing to take the law into his own hands, not that he perverted the law, but he liked to execute it. Mr. Unwin would much rather take the poacher himself than commit that duty to any other person. He considered all these to be irregularities. There was no instance in which a magistrate, under such circumstances, had been indemnified. It was, however, open to his noble Friend to make an appeal elsewhere for the revision of his decision. If his appeal was successful, he should think that he was wrong. He was satisfied with having discharged his duty in the situation which he then filled. As he was obliged to proceed to the country after to-day, he was anxious that Government should consider whether it was fitting that they should annul an appointment which, under the circumstances of the case, he had felt it right to make. He felt that any person who should come to the decision of the question whether there should be a legal adviser to the Home Office, from a view of the present state of the business, would form a very inadequate idea of the business at the time to which he alluded. He thought he could prove that, at all times, it would be an economical thing. The Home Office had most multifarious, numerous, and important business to transact. They should have ready access to legal advice. He was only expressing Mr. Phillips's opinion when he staled, that, at the time this correspondence passed, he felt his hands overloaded with business of this description. Business increased during the latter part of the year. The trials at Monmouth took place, and circumstances occurred which convinced him (Lord Normanby) that it would be good policy to have a solicitor for the Home Department. He was satisfied that he did right in making the appointment. As to some charges he had made considerable saving. The reference to the law-officers was conducted in a much more satisfactory, efficient, and speedy manner. He regretted very much that the noble Duke should have felt it his duty to bring this matter before the House. He considered the state of the country now to be different from what it was at that time. He had the consolation to think that the law was vindicated without any violation of the regular march of the constitution. Misguided men were brought to justice, and juries throughout the country performed their duties in the most exemplary manner. From the noble Duke and the magistrates of Mansfield, he appealed to the magistrates of the rest of the country. This circular was addressed to all the magistrates; all had acted on it, and none of them had got into this scrape except Mr. Unwin.

Lord Wharncliffe

was far from denying that his noble Friend opposite had always shown himself ready to attend to the business of the Home-Office, and that he showed every disposition to perform his duty; but he could not help thinking that his noble Friend had in this country been influenced by the same sort of feeling which he manifested in Ireland, namely, a disposition against the country gentlemen and magistrates, rather than an inclination to look favourably and kindly upon their actions. Now, he conceived that it was the duty of a Secretary of State to put himself, in the first place, upon a footing of confidence with the magistrates of the country; but it was impossible for him to perform that part of his duties, if, upon every occasion he was betrayed into a leaning against them, and in favour of every one who thought proper to complain of their conduct. To betray a feeling adverse to the country gentlemen and the magistracy, was, in all respects, inconsistent with the character and duties of a Home Secretary, and no country could be well governed where such a state of feeling and the practice consequent on it could be suffered to exist. His noble Friend, the noble Duke near him, had said, that Lord John Russell's letter gave no authority for the seizure of arms; now, he (Lord Wharncliffe) distinguished between the seizure of arms and the seizure of papers. It was true that no warrant had been issued in the case for the seizure of papers, but if the magistrate made a bona fide search for arms it was clearly matter distinct from the search for papers. Was he laying down the law upon this subject unsupported by sufficient authority? He could show from the words of Mr. Justice Littledale that the law was clearly with him; and here he must take the liberty of saying that the noble Marquess ought not to place implicit reliance upon the statements of newspapers known to be the organs of the party opposed to that to which Mr. Unwin belonged. In districts so circumstanced as those to which the present conversation referred it almost always happened that the newspapers on both sides went great lengths; their reports even of the summing-up of a judge might not be strictly impartial, they might be distorted; he had known such things done, and he believed done for party purposes. To return, however, to the position which he sought to sustain, he had said, that if the magistrates possessed any information which gave them good grounds for thinking that any individual was unlawfully in the possession of arms, they might go to his house and make a search for such arms, and that a magistrate might go without a warrant, and might in his own person make a search for arms. He would show their Lordships that in saying this he was supported by the authority of the learned judge who tried the cause. As their Lordships knew, the judges in such cases were accustomed to state the evidence pro and contra, then to give a general view of the question at issue, and to conclude with a statement of the law as applicable to the case. Now, he should quote the charge of the learned judge, not from the reports of any country or any party print, but from a report transcribed from the notes of a professional short-hand writer, who had been employed to take down the proceedings:— Now, Gentlemen," says Mr. Justice Littledale," it will be material for you to consider the question about the arms and the question about the papers. With regard to arms, it appears there had been a regular information laid before Mr. Unwin, (the defendant), that there was reason to believe arms would be found in different people's houses, and accordingly warrants appear to have been granted, and several houses were searched, and nothing found in them; but as to the plaintiff, Mr. Unwin thought he would take the responsibility himself, and, instead of granting a warrant, he would go and execute the duty himself, and that he certainly had a right to do. Then, gentlemen, they find no arms in the House; well, but had he a well-grounded reason for supposing the plaintiff had arms? You see information is laid before him, and it is the duty of a magistrate, when information is made, to consider whether that information is sufficient for him to act upon; if the information is slight, or if it does not look like the truth, he ought to discard it; he ought to watch the information he receives well before he grants a warrant. However, he goes for arms, but no arms were found. Still you will recollect it is in evidence that on Broyan's being told there was a report abroad there was to be a search for arms, and being advised to get any arms he might have out of the way, be said he had already taken that precaution, that he had already got them out of the way; therefore it does appear there was reasonable ground for supposing there had been arms in the house. Now, any man may keep arms in his house if they are kept for lawful purposes, there is nothing illegal in that; but he is not entitled to have arms if he means to use them for illegal purposes, but the question is whether he did. If a man have arms in his house, meaning to use them for legal purposes, the magistrate would not he justified, I imagine, in taking them away; but if he had grounds to suppose he intended net to use them for legal purposes, but that his purpose was to join with others to subvert the Government and constitution of the country, and to banish all good order—then, in that case, it would be lawful to seize them. It appears that Crabtree and Pitkeithley came to the house of the plaintiff, and Crabtree produces from a bag, this dagger and two knives, which he said he was going to take to the convention. Now, gentlemen, these knives, and this dagger are not such as could be used for common household purposes, or for cutting sticks or bushes or anything of the sort; they are evidently arms of force. You will look at them and judge for yourselves, and see whether they could be used for common purposes, or whether they are not arms of an offensive nature. Gentlemen, you see, as to arms, it will be for you to consider whether the defendant had good reason to believe the plaintiff was concerned in these proceedings of the Chartists and to act as he did, and that he acted bonâ fide in going into his house. Their Lordships must now see very clearly that the judge distinctly laid it down that the conduct of Mr. Unwin was according to law. He asked, did he act bona fide? [Lord Brougham: He left it to the jury to say whether he had done so or not.] He clearly told the jury, that if his search for arms was not used as a pretext with a view to the accomplishment of some other subject, but was abona fide search, that in such a case his conduct was perfectly legal. It might be doubted, perhaps, whether he had a right to institute any search for papers, but there could be no sort of doubt that upon the information he had received, he was fully entitled to search for arms; he might not have had a strict right to search for papers; but let their Lordships look at the state of the country, and especially at the state of that district, during the time to which those proceedings had reference. It was well known that there existed a dangerous conspiracy; that numbers of men were in the habit of assembling, armed in an illegal manner, and for illegal purposes; that they carried on correspondence with other parts of the country; that the magistrates believed that the person whose house they searched was one of the leaders of that conspiracy. Mr. Unwin went most certainly for the purpose of searching for arms; and being engaged in that duly he found certain papers of which he took possession, and if in the search for arms he took possession of those papers, some of which belonged to other parties, he might perhaps have done that which rendered him amenable to the courts of law; but he (Lord Wharncliffe) took upon himself to say that no magistrate could be considered to have done his duly who neglected the opportunity of taking possession of papers on which the peace of the country depended. The lives and properties of our fellow-subjects were at stake, and were they to be told, that under such circumstances the magistracy of the country must be tied down by the strict rules of a severe and unchangeable system of law? In such circumstances the Government ought to take the consequences upon themselves. It would not do in times of such difficulty and danger as those in which the circumstances in question took place to withdraw support from the magistracy. If in such times the magistrates went beyond the strict line of their duty were the Government to say, "We will take away all protection from you?" The noble Marquess opposite seemed to think that the instructions of Lord J. Russell formed no sufficient defence for the conduct of the magistrates; but to him (Lord Wharncliffe) such a letter did not so appear. If he, as a magistrate, received a letter from the Secretary of State desiring him to do certain things, he admitted that he should do them on his own responsibility, for, as had well been said, "the Secretary of Slate could make no laws—thank God, he could not." Here, however, was a case in which the magistrate had not adhered strictly to the law; but, yet, if he had done so, he must have transgressed his duty. There were times in which magistrates could not do so, for an over-scrupulous observance of forms would destroy the efficiency of the magisterial office. Now, he begged the attention of the House to the language held by Mr. Justice Littledale upon this point:— Now, with regard to papers, nothing is said in the information about them; but, when he gets there, on looking into various drawers, it appears there is a letter in which is the name of a person, who says ' has been going about the country inciting people to acts of rebellion and treason, and who ought to have been hanged long ago, this is what I want and I shall take them all away.' Now, I do not know whether he had a right to take them all away. Now, what are the letters? There is a letter which alludes to— Mr. Serjeant Adams.—There are eight letters, and there is one which talks of ' Bloody butchers.' Mr. Justice Littledale—(having read the letters given in evidence)—Gentlemen, I have pointed out the distinction as to arms being kept for legal and iilegal purposes; and, as to these letters, you will say whether the defendant was justified. If you are of opinion he is not, the plaintiff is entitled to compensation if the defendant has acted illegally. You will say, upon the whole, whether you think the plaintiff is entitled to a verdict, and if so, then to what damages. Gentlemen, I have pointed out the distinction to be observed between arms kept for legal and illegal purposes. Every man has a right to have arms in his house, but if there is reason to believe such arms are kept for an illegal purpose, for the purpose of aiding and assisting in the overturning of the Government, and that this gentleman had an honest, just, and reasonable ground that arms were kept by the plaintiff with some such evil design, then he was justified in going to the House as he did, and either taking a constable, or granting a warrant to a constable. Then, gentlemen, with regard to the papers, that stands upon a different ground, because these papers, you see, cannot of themselves be used for any purpose; it is only that they are there, and that they may chance to afford information of what the plaintiff's proceedings are. I must own I have great difficulty in saying he can be justified in seizing papers, whatever he may do about aims. I do not know that a magistrate having a suspicion, has a right to go, upon a mere suspicion, and take away papers that may have a tendency to j overturn the Government. You see the magistrate acts entirely on his own head; he docs not go to search for papers, and he finds no arms: but, on looking over some papers, he finds the name of a person, and his attention is thus directed to them, and he takes them away. Now, I have great difficulty in saying that a magistrate, whatever notion he may have of acting bona fide, has a right to take away letters. You do not find that the plaintiff had j taken any steps in consequence of these letters, or corresponded with the persons? it is merely that he receives some letters; it may be a ground for proceeding against Pitkeithley, but I have great difficulty in saying, upon the whole of this case, that with regard to these letters, the magistrate was justified in taking them away, though I have no doubt, with regard to the arms, he had the power, if he had reasonable grounds for believing the plaintiff had arms for the purpose of being used in an improper and treasonable manner; he would have no right to seize arms kept in the house for the purpose of poaching, it must be for an illegal purpose, having a tendency to overturn the Government. With regard to the papers, the defendant had no information as to them; it was merely that he sees some person's name, and then he takes them away; he did not find what he went for, but having seen an allusion made in a letter to a person, who, he said, ought to have been hanged years ago, he takes them away. In my opinion, he is hardly justified in seizing the papers: however, the matter is for you, and you will consider your verdict. The jury thereupon consulted, and after conferring together for a few minutes, one of them addressed his Lordship as follows:— Juryman.—The jury wish to know, whether a magistrate, while searching for arms, finding treasonable papers, has a right to seize them? Mr. Justice Littledale.—I cannot say he has such a right; only see, if he comes to search for arms, it cannot give him a right to go into the house and seize papers; it seems to me to be exactly the same thing as if he suspected there were treasonable papers, and while searching for them, he finds arms. He did not go for arms, it has nothing to do with it. So, if he was searching for arms, that would not give him a right to search for papers. Juryman.—But if he discovered such papers, was he justified? Mr. Justice Littledale.—I do not think, he had a tight to take away these papers; it seems to me, Gentlemen, he had no such right. The jury having conferred together very shortly, Juryman.—My Lord, we find for the plaintiff, with nominal damages. He had now read to them the words of the judge, he had stated to them the result of the trial, and he must be permitted to say, that it did not appear to him to be a case in which the Government should show the sort of feeling which the Home Office had manifested in the course of this affair. It was true that Mr. Unwin went for the purpose of making a search for arms, and it was equally true, that, technically, he went beyond the law. His noble Friend opposite had said, that Mr. Unwin was in the habit of going beyond the law. [The Marquess of Normanby: I said that Mr. Unwin liked to take upon himself the execution of the law.] His noble Friend had spoken of Mr. Unwin as being much in the habit of executing the law himself, and being active in the pursuit of poachers. His noble Friend had not, perhaps, sufficient practical acquaintance with these matters. That mode of disparaging the magistracy was very common; their supposed activity against poachers was often used as an ad captandum argument. Counsel frequently took advantage of it in the examination of witnesses; they were in the habit of saying, "Oh, he is a magistrate very active against poachers, is he not?" Now, it was really not worthy of his noble Friend's situation that he should by means such as these, try to catch a little approbation, and join those who endeavoured to make it appear that the magistracy of England occupied themselves principally with the prosecution of poachers. He presumed that very few noble Lords then present could have forgotten the events of the 12th of August, 1839, the violent assemblages which then took place, the consequences of those assemblages, the apprehension of a great number of persons, and the fact that seven persons were tried, convicted, and punished. In such a state of things he was sure their Lordships would agree with him, that the conduct of Mr. Unwin constituted no very grave offence, and therefore ought not to be taken out of the pale of all protection; at the same time, he could not support the motion of his noble Friend near him, and he thought that no appeal ought to be made on such a subject to the Government now in office. Such proceedings would take from the stability of the executive power in this country; what had passed, however, ought to satisfy his noble Friend. For his part, he was clearly of opinion, that in some cases, magistrates could not discharge their duties, if they were to be confined, with undeviating precision, to the strict letter of the law.

Lord Brougham

observed, that what had fallen from the noble Baron who last addressed their Lordships, relieved him from the necessity of stating the objections which he entertained to the motion then before them. The noble Baron talked of "protection for the magistracy." No one knew better than he did the ample protection which they enjoyed. It was well known, that if they acted bonâ fide, their errors were very lightly visited; but under all circumstances, they were largely protected. If an action were brought against them, that action must be tried in the county where the occurrence took place. It must be brought within six months, a month's notice must be given, the defendant might plead the general issue, and under that, all evidence justifying his conduct might be let in. Yet now their Lordships were called upon to say, that if the magistrate loses his cause, the Crown should pay the expenses. That, with him, would be a sufficient ground for objecting to this motion, if there were no other ground. But he must say, that Lord John Russell did not appear to him to have misstated the law in any degree; it must also be observed, that the report of what had fallen from Mr. Justice Liltledale 'at the trial was probably incorrect, because it made that learned judge mis-state the information. However, the information omitted to state, and he (Lord Brougham) believed designedly, that the arms were collected in the dwelling-house of Joseph Broyan; then it did not say when, it did not say where those arms had been collected for illegal purposes. This information, therefore, would hardly give the magistrates the right to search for arms; but it was absolutely silent about papers. Mr. Unwin, therefore, was not entitled to search for papers; and although the whole gist of Mr. Unwin's defence was, that he did what he did by warrant of the Secretary of State's letter, yet that letter did not say one word about searching for papers. But if it had been otherwise, and Lord John Russell's letter had commanded a search for papers, it would most clearly not have been a justification of such search, still less surely was it a justification when it did not command any such thing. Then the judge and jury had declared the magistrates to be wrong. In every view, therefore, it was evident that this motion ought not to be agreed to, and this address to the Crown, which he believed to be perfectly unprecedented, ought not to be sanctioned by their Lordships. From accidental circumstances, he had had an opportunity of knowing Mr. Unwin, and he could bear testimony to his great ability and zeal, and it could only be through an over zeal that he had been led into this error of judgment. He should be most sorry, especially now that Mr. Unwin was dead, if anything he had said J could be supposed to bear hardly upon that Gentleman.

The Marquess of Normanby

had not intended to say anything against the character of Mr. Unwin.

The Duke of Portland

would act upon the suggestion which had been thrown out by his noble Friends, and withdraw the motion.