The Earl of Radnorrose to present a petition from Mr. Mazzini, complaining that his letters had been for a considerable period regularly opened in the Post Office He stated in his petition that he had been residing in England for seven years, and that his occupation was that of a literary man, and he (the Earl of Radnor) had 75 been given to understand that as a literary man his reputation and merits were of the highest order. The petitioner further stated, that he had never in any manner infringed the laws of England or connected himself with any political party, nor had he ever entered into any seditious or treasonable correspondence. Nevertheless, his letters had been regularly opened for a period of four months; that they had during that period been regularly detained in the Post Office, the seals broken, the contents examined, and after such examination resealed with a counterfeit seal, and the post mark and all the marks of their having been opened obliterated; after which they were forwarded to him without any notification of their having been so examined. He complained of that as a great grievance by which he had been seriously injured, and he prayed their Lordships to take the subject into their consideration, and grant him such redress as they might in their wisdom think fitting and just. Their Lordships were now well acquainted with these proceedings, which had been so much spoken of throughout the country, which had produced such a general feeling of shame and displeasure—a feeling in which he (the Earl of Radnor) most fully participated. He should not detain their Lordships on that occasion by going into a minute detail of all the circumstances connected with this opening of the letters of Mr. Mazzini, for he should have a full opportunity of doing so at length on a future occasion, as he was about to give notice of a Motion on the subject for a subsequent day; but he wished before doing so to ask whether a warrant had been given for opening all those letters by the Secretary of State for the Home Department?
§ The Duke of WellingtonI do not know the name of the petitioner, nor did I receive any notice from the noble Earl of his intention to put the question.
The Earl of Radnorsaid, the individual from whom the petition came was Mr. Mazzini, whose name had been recently so much before the public, in consequence of his letters having been opened at the Post Office. That individual complained that great injury had been done him by the opening of his letters, and he prayed that their Lordships should take the subject 76 into consideration, in order that they might grant the petitioner redress. He (the Earl of Radnor) therefore gave notice that on Thursday next he should move—
For the appointment of a Select Committee to inquire into the practice of opening letters at the Post-office, and particularly into the circumstances connected with the opening of the letters of Mr. Mazzini, and other foreigners residing in England, whose letters had been opened at the Post-office.
Lord Broughamsaid, he wished to correct an erroneous impression into which he had been a party to misleading their Lordships, namely, that the practice of opening-letters by the authority of any of the Secretaries of State originated in the reign of Queen Anne. It was, in fact, one of the numerous legacies left us by the Commonwealth, but it was not by any means one of the best of those legacies. The Ordinance having reference to this authority originated with Cromwell in the time of the Commonwealth and Protectorate, and was given in Scobell's Collection of Acts of Parliament; and curious to say, that Ordinance stated that the very main object of the establishment of the Post Office, or at least one of its main objects, was to enable the Government to prevent wicked and treasonable practices by opening the letters of parties who were at the necessity of communicating their designs to each other in writing. That Ordinance gave no power to the Secretary of State to use such an authority, but it rather took for granted that as soon as the Post Office was established, the Government would exercise such a power. Many admirable legacies had been left by Cromwell, but certainly that was not one of them.
The Earl of Radnoragreed that the power had existed before the Statute of Anne, which limited the practice to the opening of letters by warrant from the Secretary of State for every letter so opened.
Lord Campbellsaid he had that morning read in Scobell the Ordinance referred to by his noble Friend, but he did not put the same interpretation upon it. It was passed in 1656, and one of the principal causes assigned in the preamble for establishing the Post Office was to put down treason, and detect and put an end to treasonable correspondence. When the Act recognised the authority of the Secretary of State to 77 issue his warrant, authorising the opening of a letter in which it was suspected treasonable correspondence was contained, he doubted whether it was contemplated by the Act of Parliament that letters should be opened secretly, and afterwards resealed and sent to the person to whom they were addressed, as if no such examination of them had taken place—as if they had never been inspected. He doubted whether such a system of espionage as that had ever been contemplated by the framers of the Act. He was rather of opinion that the intention was, that in a case of suspected treasonable correspondence, the Secretary of State might open a letter containing such correspondence suo periculo, and bring it forward against any person so concerned in any treasonable plot. The statesmen who flourished at that period were men who, with great faults, combined very great virtues, and this country was indebted to them for great improvements in its institutions; and he very much doubted that they ever contemplated the practice which was afterwards adopted. Indeed, it would appear, that the object of the Act of Anne was to prevent a practice which was calculated to be very pernicious and dishonourable to the country. The words in the Act 9 of Anne, c. 10, s. 40, were very distinct, and would undoubtedly go to prevent the exercise of such a general warrant as would authorise the opening of all letters addressed to any individual; for it recited that "whereas many abuses may be committed by wilfully opening, delaying, or detaining letters, to the great discouragement of trade and commerce, and correspondence," and it went on to make, not a misdemeanor but subject to penalties, the opening, destroying or detaining any letter in a post-office: then came this exception, "unless by an express warrant in writing, under the hand of one of the Principal Secretaries of State, for even such opening, detention, or delay"; toties quoties, there must be a warrant for opening every letter. It was quite clear that it was not intended by this Act to grant such an unconstitutional power as the issue of general warrants, for it required an express warrant for each letter. No one could throw the blame upon the present Government for following the form of warrant which they found had been before adopted. However, under the Act of Anne, an express warrant was required, and the noble Earl, who was not then in his place (the Earl of Tankerville), and who had 78 the other night stated that he had seen general warrants for opening letters, had seen warrants which were not justified by the words of that Act.
The Lord Chancellordid not concur with his noble and learned Friend in his views and construction of the Act. Undoubtedly they could not open letters without an express warrant, but he did not believe that an express warrant was required for every letter which was opened, but that a warrant directed to the Postmaster to open the letters of A B within a certain period of time would be, in the sense of the Act, an "express warrant for every such opening." It was quite evident that if that were not the case, any power to issue a warrant for the detection of treasonable correspondence would be rendered altogether nugatory in effect. It struck him as a little singular that his noble and learned Friend should object so strongly that one warrant would not be sufficient to justify the opening of several letters, insisting that there must be a specific warrant for the opening of each letter, when the Act of Victoria was passed under the inspection of his noble and learned Friend himself, when Attorney-General, and yet had not those very words, on which his own construction now depended. But this was not all—in preparing this Act, his noble and learned Friend had introduced an alteration, omitting the very words on the meaning of which he now commented. He did not believe that the power was created by the original ordinance of Cromwell. He believed that the ordinance of Cromwell rather recognised an assumed power in the Secretary of State to issue the warrants. The ordinance did not grant any power to the Secretary of State to issue the warrant, but it assumed that such a power existed in the Secretary of State, and that he could use it. The Act of Anne in like manner gave no power to the Secretary of State, but assumed the power to exist in the same manner as the former Act. Assuming, then, that the power existed in the Secretary of State to issue those warrants to open the letters of persons suspected, could it be said that the power could be practically useful if there were a special warrant required for opening every letter? He would not go at present into full details as, in consequence of the Motion of the noble Earl (Earl Radnor), there would be a future occasion on which they might go at greater length into the Acts of Parliament and the ordinance of 79 Cromwell. He should now, however, again say, that the power of the Secretary of State to issue these warrants to open the letters of persons suspected of mischievous designs against the State, was assumed by the Act, but not granted.
Lord Campbellwished to explain. He did not complain of the law as it now stood, but of the manner in which it had been acted upon. He was complaining of the issuing of general warrants.
Lord Broughamsaid, that the Acts contained in Scobell's collection did not grant the power, but they assumed that the common law power existed in the Secretary of State to issue the warrant. With respect to the re-sealing of the letters and sending them forward, he could not concur in thinking that it was the greatest evil. If they were opened and read, and their contents copied, and they were afterwards sent to their destination, it was so much the better, for the real grievance was, not sending the letters on, but opening them.
§ Lord Denmansaid, that the ordinance in Scobel recited the great convenience to trade and commerce of sending letters through the Post Office, and the advantage of a power to prevent, through that agency, treasonable designs against the Commonwealth of England; but if by implication it may be thought to allow this authority, it did not say one word about Foreign Powers. The first Act, constituting a public Post Office, was passed after the Restoration, the 12th of Charles II., and there was not in that one word about opening letters, or the means afforded of detecting conspiracies, or the Secretary of State's warrant. The 9th of Anne did not create, but it recognised the power, at the same time, however, distinctly requiring that there should be a warrant for every such opening. Language which certainly appeared to him to found a strong argument that every particular letter should be delivered safe, unless it were directed to be opened by an express warrant from the Secretary of State. If it did not mean that, if a special and express warrant were not necessary to authorise every such opening, then the warrant of the Secretary of State might require the Postmaster to single out all the letters directed to any particular individual during a year, or seven years, or during his entire tenure of office. If the later Act was more loosely worded, still this consequence appeared so monstrous as to condemn the construction which would admit it. On the whole matter 80 he could not doubt that, now that the subject was before the House of Lords, or rather before the Cabinet, they would perceive it to be not a question of antiquarian investigation, or of the history of Acts and Ordinances, or even of their true verbal interpretation, but rather a question what ought to be the law and practice at the present moment as regarded all the great states of the world, and particularly as regarded the people of England. He was satisfied that the noble Duke himself—if it were not from reluctance to giving up a Colleague, placed under a serious imputation would have felt the propriety of bringing down a measure modifying or defining the absolute power which now seemed to exist. That power, however, was not conferred by an Act of Parliament; it was assumed; it was taken for granted, and was supposed to have arisen from that state necessity which had set aside the wholesome law of the land in other particulars, which had made the habeas corpus Act so essential for the personal liberty of the subject, and which was brought into question in another form, when general warrants were supposed to be sanctioned by law, as well as practice. But no sooner were those warrants brought before the judges than they one and all condemned them, and showed by clear reasoning to be as illegal, as they were inconsistent with the spirit of the Constitution. Amongst these judges were Lords Mansfield and Camden, the latter of whom admitted the practice, but observed, matus usus abolendus; and all the judges declared that the power was one which ought never to have been practiced, and was of no force when submitted to the proper tribunal. This assumed power in regard to the opening of letters was the assumption of that state necessity, and of which, in fact, it was at the present moment the only relic.
The Lord Chancellorsaid, that as his noble and learned Friend (Lord Campbell) had commented on the first Act, he wished he would read the Clause in his own Act—the existing law.
Lord Campbellsaid, that those words were by way of proviso, instead of exception, and he thought if they came judicially before his noble and learned Friend (Lord Denman, who had, by the declaration he had just made, rendered himself more dear to the people of England, if that were possible), that he would be of opinion that they were exactly the same. The 1st of Victoria, c. 36, after making it a misdemeanour 81 to open, detain, or delay a post letter, went on by way of proviso to say—
That nothing herein contained shall extend to the opening, or detaining, or delaying of a post letter returned for want of a true direction, or of a post letter returned by reason that the person to whom the same shall be directed is dead or cannot be found, or shall have refused the same, or shall have refused or neglected to pay the postage thereof; nor to the opening, or detaining, or delaying of a post letter in obedience to an express warrant in writing under the hand, in Great Britain, of one of the principal Secretaries of State, and in Ireland under the hand and seal of the Lord Lieutenant of Ireland.This he took to mean precisely the same thing as the language of the Statute of Anne, namely, that there should be an express warrant for every letter.
Lord Broughamsaid, that nothing would make his noble and learned Friend who had just sat down more dear to him than his being kind enough to answer him this question. How was it possible for the Secretary of State, who did not know what letters Mr. Mazzini or any other given individual might receive to-morrow morning, to make out a warrant for any one of those letters? If he was to make out a warrant for each letter how was he to know the number of them? and if he was to describe each letter, he must know the postmark, the kind, shape, or something whereby to describe it. Nothing but the construction of his noble and learned Friend on the Woolsack could be the rational or sensible construction of the existing law. The construction put on it by his noble and learned Friend (Lord Campbell) was rank nonsense. If there must be an individual warrant for each individual letter, how could Sir J. Graham know anything about the letter, so as to be able to point it out?
The Lord Chancellorsaid that the only way in which it was possible that it could be done was, that the Secretary of State should go to the Post Office and put his finger on a particular letter, and then issue his warrant for opening it.
§ Lord Denmansaid that would not be necessary, for under a system of espionage the spy could write to the Secretary of State and say that such a particular letter might be expected to reach Portsmouth on a certain day, and in a particular handwriting. There were, in fact, various ways in which it might be done. Perhaps the Secretary of State might not find the express warrant as convenient as a general 82 warrant, but it would answer his purpose to a certain extent. With respect to the Act which was carried into effect when his noble and learned Friend was in office, he could only remark that neither his noble Friend nor himself could be expected to make an Act all wise; but if that Act were difficult to be carried into execution, perhaps so much the better. Indeed, he was not sure whether the Secretary of State who exercised that power, might not under the circumstance of the several Acts of Parliament on the subject, find himself in a difficult situation. Considering the circumstances of the case, he thought it was imperative on the Government to introduce some measure which would place the subject on some safe and intelligible principle.
Lord Broughamagreed that they were not bound to make sense of every insensible Act of Parliament; but for the last 150 years the same form of expression had been used and acted on by all Governments, from Sir R. Walpole to Mr. Fox. He must say that the way pointed out by his noble and learned Friend behind him was, with great respect, one of the most impossible that could be thought of. He assumed that there must be a spy who knew there were letters coming, and who knew the handwriting of the party writing them, and by whose description of the letter the Secretary of State was to find it on a particular day. That would reduce the Act of Parliament to utter insignificance. The power had been exercised for years on the opposite construction, on the practical construction put upon it by his noble and learned Friend on the Woolsack, namely, that a general warrant for all openings justified each individual opening.
The Lord Chancellorsaid, that the statute of Anne referred to the "opening of any letter or letters except by an express warrant," plainly signifying that the warrant embraced the plural as well as the singular number of letters. [Cries of "Read."] The noble Lord then read the oath prescribed (in the 9th Anne, chap. 10, sec. 41) to be taken by the Postmaster and other officers:—
I, A B, do swear, that I will not wittingly, willingly, or knowingly open, detain, or delay, or cause, procure, permit, or suffer to be opened, detained or delayed, any letter or letters, packet or packets, which shall come into my hands, power or custody, by reason of my employment in or relating to the Post Office; except by the consent of the person or persons to whom the same is or shall be directed, 83 or by an express warrant in writing under the hand of one of the principal Secretaries of State for that purpose.This, he conceived, showed that the warrant was intended to apply to "letters" as well as to a single "letter." [A noble Lord observed that that was an enacting clause.] But were they not to take all the clauses of an Act together for the purpose of finding out its meaning? The word in the statute of Anne, upon which his noble and learned Friend now relied, had been omitted purposely and designedly, not by a Tory, but a Whig Government, from the Consolidating Act.
Lord Campbellhad before declared that the Act had been introduced when he was Attorney General, and he was responsible for the words of it. As to what had fallen from his noble and learned Friend of the impossibility of defining beforehand what letters should be opened, there were sufficient instances in history to the contrary, showing, that where the information to justify opening any letter at all exists, it may very well point out the particular letter which is the object of suspicion, so that on its arrival it may be stopped and examined by a special warrant, specially indicating the special letter. Indeed when the Ordinance referred to was passed, it was said that Cromwell had received information in this way, that on a certain day a certain letter from the King to the Queen would arrive in London, at the sign of the Blue Boar, in the saddle of a particularly indicated messenger. The messenger was arrested on his arrival at the Blue Boar; the saddle was ripped up, and there was the letter, wherein the writer, among other things, intimated that Cromwell, instead of a blue ribband, at which he had aimed, ought to have a halter.
The Lord Chancellorcalled attention to the particular Clause in the 9th of Anne, c. 10, s. 40, which enacted that
No person or persons shall presume wittingly, willingly or knowingly, to open, detain, or delay, or cause, procure, permit, or suffer to be opened, detained, or delayed, any letter or letters, packet or packets, after the same is or shall be delivered into the General or other Post Office, or into the hands of any person or persons employed for the receiving or carrying post letters, and before delivery to the persons to whom they are directed, or for their use, except by an express warrant in writing under the hand of one of the principal Secretaries of State.[Cries of "Go on."] The noble Lord continued to read— 84For every such opening, detaining, or delaying.Everybody knew these words were in the Act; but the whole question turned upon the question of "opening, detaining, or delaying any letter or letters except by an express warrant."
The Marquess of Clanricardewould submit to their Lordships, that the very terms of the Clause just read by the noble and learned Lord on the Woolsack made it clear that, for "every such opening" there must be a special and particular warrant, and that therefore the idea of one warrant applying to a man's whole correspondence was altogether incorrect. One thing was, at all events, clear, that after what had taken place, the matter could not be allowed to stop here. Doctrines had been propounded which no right-minded Englishman could submit to have received in this country. It was said that it was impossible for the Secretary of State to describe beforehand what letters should be opened, and that therefore, as a matter of common sense, and absolute necessity, the whole of a man's correspondence must be opened. Now, on what ground was a Secretary of State to issue a warrant? It must be on information—on sound, clear information—otherwise the Secretary of State would be committing an act of despotic tyranny, to suit his own caprice and pleasure, and for some other even more unworthy motive; if such information were furnished, it could hardly be a matter of much difficulty to ascertain to what particular correspondence the attention of the Government ought to be directed. But it would seem, according to the new doctrine, that no information was necessary. That was part of the question against the Government, because it was stated in a petition before their Lordships' House that a gentleman's letters had been opened in the Post Office unjustifiably. That accusation was brought against a great public department, and it would be necessary for the Government to let their Lordships know upon what grounds that accusation rested. On the other hand, if it could be denied on authority that this gentleman's letters were opened, then might they reject the prayer of the petition; but if not, having received that petition, and seeing that the statement in it was publicly made, he conceived it to be utterly impossible that they could allow the matter to rest until they were informed of the nature of the warrant under which, the Post Office acted, and whether the 85 Secretary of State had had good reasons for issuing such warrant. Issuing a warrant to open letters in the Post Office, without the fullest justification, was an act of despotic power which the country would never submit to.
Lord Broughammust really say a word as to the gross misapprehension which the noble Lord had formed, and the gross misstatement, founded on that gross misapprehension, which he had given, of what had fallen from him. The noble Marquess imputed to him the doctrine that the Secretary of State had a right to open letters at the Post Office, without any information on which to proceed. Now, this was a most extraordinary misconception on the part of the noble Marquess. There was, he (Lord Brougham) was sure, no other Member of the House who had understood what had fallen from him in that way. What he had said was this. General information, every body knew the Secretary of State must have; he must suspect somebody ere he opens his letters, and he can only do this on information; he is not to open letters because he has had a dream that somebody deserves to be suspected and watched; he must have information that the party is engaged in unlawful transactions—transactions injurious to the tranquillity of the realm at home, or, he would add, for he had some regard for other countries as well as for his own, to the tranquillity of realms abroad; nor did he say that any foreign Minister was to be at liberty to come to the Secretary and say, "I suspect A. B., and therefore you must open his letters for me." God forbid! But, then, if a British Minister has information that a particular person is engaged in dangerous and unlawful practices, which require that he should be watched, the Minister has a right to issue his warrant to the Post Office to detain and examine the letters of that person; as to the proposition that he is to specify what particular letter is to be opened, that was a mere ahsurdity—it was requiring what in 999 cases out of a 1,000 was a physical impossibility. Mr. Fox was certainly a man filled with the highest devotion to the constitutional liberties of the subject—to the freedom of the people in every respect; yet he did not think it necessary to issue separate warrants. He had seen and carefully read the document ordering the Postmaster General to detain and open all the letters to the foreign Ministers, and all letters from the foreign Ministers, without further authority or specification whatever, 86 and also any other letters to or from any other individuals, "of which letters I shall give you notice." That was in 1782. Did not Mr. Fox mean by that he had a right to open by general warrant, not only the letters of all the foreign Ministers living under the peculiar and special protection of the laws of this country, but the letters of any other person? Was the notice to give a description of the particular letter? The impossibility was manifest and glaring to the eye. To issue a warrant for each letter would imply that he knew what letter each individual was to write, what letter each individual was to receive, and also the number of letters; and if two letters were sent on the same day, there must be a warrant for each. The Postmaster General might say, "I have got a warrant from the Secretary of State to open; a letter, but here are two, which am I to open?" Then he must have recourse to chance. But the Act of Parliament did not say it was to be done by lot. He was really ashamed of troubling their Lordships any longer with arguing on so untenable a proposition. The provision was that no letter or letters should be opened without a warrant for every such opening. What was the last antecedent? The opening of such letter or letters. The word letters in the plural included each letter. Suppose a warrant to be issued for the apprehension of three persons, naming them, would not that be a warrant for the taking of each? [The Lord Chancellor: It was an express warrant.] It was, and a warrant to take the letters of A. B. would be a warrant to take each of the letters of A. B. That was the logical construction.
The Earl of Radnorsaid, that the question in this case was not whether one or two letters had been opened, but whether the gentleman now complaining, had not been seriously injured and wronged by Slaving all his correspondence regularly opened for a period of several months; and this was the question on which it was his (the Earl of Radnor's) intention to move for a Committee to inquire into the whole matter. The most extraordinary feature was, the five Members of the Government seated in a row on opposite benches and the noble and learned Lord on the Woolsack were all of them profoundly ignorant about the matter. Here had this transaction been the subject of general remark out of doors for a full fortnight past, and in the same period been discussed three or four times in the House of Commons; and twice in their 87 Lordships' House, yet had not the Cabinet Ministers in that House considered it their duty to inquire of their brother Cabinet Minister, the Secretary of State for the Home Department, whether or no it was the case that Mr. Mazzini, a gentleman highly respected, esteemed, and beloved by all who knew him, had been subjected to the odious proceedings complained of. In order to sift the matter thoroughly, he should, on Thursday next, move that a secret Committee be appointed, to whom the whole affair should be referred.
§ The Duke of Wellingtonsaid, that as the noble Earl proposed to bring forward the question regularly on Thursday, it might more fitly be further debated then. All he could say was, what he had said before, that the warrant issued by his right hon. Friend was in strict conformity with all the precedents, and that he had done no more than had been done by all the Secretaries of State from the reign of Queen Anne to the present time.
Lord Kinnairdasked whether there was any Secret Board at the Post Office to whom these letters when detained were referred?
§ The Duke of Wellingtonsaid, that it could not be supposed that he knew anything about the administration of the Post Office.
§ The subject dropped.