§ Mr. S. Whitbread
observed, that though he should consider himself deserving of blame if he at any time unnecessarily forced himself on the attention of the House, yet he should think himself still more worthy of censure if he allowed a subject like that which he was about to bring under its consideration to pass unnoticed. He had been in expectation that some gentleman distinguished for his talents and legal knowledge would have attacked the misnamed Constitutional Association. He had been disappointed, and had therefore resolved not to let the session pass without calling the attention of the House to a society as odious in principle as it had proved itself malignant in practice. A difficulty existed in opposing this society, because, though acting in disregard of every principle of justice and equity, it insidiously took shelter under some quibble of the law. He wished to avoid speaking in rash terms of this Society. He would allow that there were many persons of exalted rank connected with it. He believed, however, that these individuals had been induced to become members in consequence of the false title which it had assumed. He was sure that if, instead of being called the Bridge-street Constitutional Association for opposing disloyal principles, it had received the title of the Birchin-lane Plot, the names of the individuals to whom he had alluded would never have been seen in connexion with it. No person of the least understanding could fail to perceive that this society was set on foot only by a few attorneys, for their own private emolument. He did not blame these attorneys for having regard to their own interest; but he had a right to quarrel with them when they 1487 resorted to improper means of promoting that interest. No person would deny that the law officers of the Crown possessed sufficient power to prosecute libels directed against the state; and no person would complain that they had not sufficiently exercised power. He did not stand there as the advocate of sedition or blasphemy, but as the opponent of the principles of this society, which, he believed would prove more dangerous than all the publications of Benbow and Dolpy, added to the protected libels of St. James's-street. Whatever might have been the crimes of Benbow or Dolby, the conduct which this association had pursued towards them was oppressive in the highest degree. The association assumed to itself the right of deciding what publications should be allowed, and what proscribed. The law officers of the Crown, in the execution of their duty, were subject to the influence of public opinion, and the animadversion of that House. The association was under no such restraint, and whatever blame might attach to the society generally, each member would think that but a small portion belonged to him individually. He had always observed, even in the transactions of private life, that individuals acting collectively would openly avow proceedings which, in their individual character, they would have been ashamed to acknowledge. He did not pretend to any deep knowledge of the law, but he would contend that the association was formed against the common law of the land, and in opposition to the act of Maintenance. That act was passed to prevent oppression and he thought that subscribing to prosecute individuals at the suit of the king, came under the description of maintenance, and within the contemplation of the act. The hon. gentleman then called the attention of the House to a recent proceeding in the Court of King's-bench. A person against whom a prosecution had been instituted by the association, applied to the court for a list of the subscribers to the society, upon which the court granted the applicant what appeared to him the extraordinary privilege of questioning all the jurymen, in order to ascertain, whether, they were subscribers to the association. If the Court of King's-bench, thought danger would result to the interests of justice from members of this association acting as common jurors, how much more mischievous 1488 would it be for such persons to serve as grand jurymen! If a grand jury did Pot find a true bill, there was an end of alt prosecution; but if the majority of the jury was composed of members of this association, what chance of escape would remain to an individual prosecuted at the instance of the association. If, however, a person prosecuted by the society should eventually escape, how was he to obtain indemnification for the expense he might have incurred, or remuneration for his loss of time? He would find it difficult to prove that the prosecution originated in malicious motives on the part of the members of the society, either collectively or individually. It would be sufficient to justify the belief of malicious motives, if it could be shown, that the prosecution was instituted without probable cause; but it ought always to be remembered, that it rested with the judge to decide whether the finding of a bill by the grand jury was not reasonable cause, and if the judge should happen to be a member of the association, what doubt could be entertained of the nature of his decision? The association was opposed to the spirit of the constitution, and had a tendency to corrupt justice at its source. The legislature was bound to protect the people from acts of oppression. He trusted the House would not shut its eyes to the proceedings of the association, because it acted under the mask of law, and was patronized by peers, old women, and his majesty's ministers. The two attorneys, Sharp and Murray, wished to become prosecutors for the public, and to dispense with the exertions of the attorney and the solicitor general. He trusted that all persons of respectability, who had without due reflection become members of the association, would withdraw their support from it. If, as he had reason to believe, there were any persons present, who had become new subscribers or shareholders in the concern, he hoped they would dissolve their connexion with it, before they became bankrupts in reputation. The association might be compared with the inquisition of Spain: it was nothing more than an inquisition on the press. He acknowledged the power of the press, when employed in a good pause; but when used for a bad purpose, he thought it operated as a cure for its own evil. The Association pursued its victims by a system of treachery and deceit; and if suffered to exist, he knew of 1489 no greater evil that could afflict the state. St would destroy all confidence between man and man; individuals would find it necessary to avoid each other, as in a town where a pestilential fever raged. If permitted to continue, it would effectually put an end to all discussion on political subjects. The hon. gentleman concluded with moving, "That an humble Address be presented to his Majesty, praying him to direct his Attorney-general to enter a nolle prosequi upon all indictments laid against individuals by the society styling itself the Constitutional Association."
said, that if he understood the practice of the Court of King's-bench rightly, it would be impossible to put a stop to prosecutions instituted against individuals by the society in question, in the way proposed by the motion. The court never inquired who the prosecutor was. The hon. member had described the principles of the association as odious he wished, however, the hon. gentleman had described what those principles were. In the light in which he (Mr. B.) viewed the association, it was nothing more than a certain set of gentlemen, who considered that libels ought to be punished. He could distinguish, however, between the principle on which the association was founded, and that on which it was conducted. The hon. member seemed to think, that no person might assume the authority of the attorney-general. He apprehended that this opinion was contrary to the law and the constitution. Every person who prosecuted another, assumed the character of a public prosecutor, by acting in the king's name. The office of the attorney-general was only an exception to this rule. In every part of the country societies existed for the prosecution of different offences; and he could see no distinction between the principle on which they were founded, and that on which the present association existed. He thought it was improbable that the society could have originated from the selfish schemes of a few professional individuals. Had the association originated in this manner, it never would have been able to attract so, much notice. The very circumstance, of its having been alluded to so frequently in that House, proved that the, society, had done, and was doing, a great deal,—of. good or evil, he would not pretend to say. He was of opinion, that the more the attention of the country was directed towards the society, by the 1490 discussions in that House, the more the subscribers to it would increase. At the time of the French revolution, a society of a similar nature to the present was allowed to exist, and gave rise to no doubts as to its legality. The society to which he alluded obtained the sanction of an eminent legal authority, first in his place in the House of Peers, and after wards in his judicial character on the bench. Another eminent legal authority, lord Kenyon, had also given an opinion in favour of the legality of that society. No single transaction of the association, had been considered a fit subject for legal investigation; he thought it unreasonable therefore that the House should be called upon to put it down. If the association had presented a large number of indictments to the grand jury, and the grand jury had thrown them out, he should then have supposed that the society was acting indiscreetly; but he believed it was complained of that the grand jury had found too many bills. It might be recollected, that prosecutions were formerly entered against clergymen for non-residence, by private individuals, without the intervention of the attorney-general. There had been no attempt to impeach the association on the ground of law. Many other societies were founded on a similar principle. He might refer, for a particular example, to the society for the Suppression of Vice. But the society of 1793 was exactly similar to the association now attacked.
thought it not a little; extraordinary that, after the almost Uninterrupted power which hon. gentlemen opposite had maintained for the last thirty years, and in the face of the numerous laws which, under their administration had disgraced the Statute book, a cabinet minister should stand up in his place and admit the necessity of such an association as this to carry the laws against libel and sedition into effect.
—The right hon. gentleman denied that he admitted its necessity: but did he not defend it as being constitutional, and As a society whose existence was desirable f Did he not allow that government, were willing to receive the assistance of sir John Sewell, Mr. Sharp, and Mr. Murray? Either the society was useful, or it was hot. It was necessary, or it was not. If it was neces- 1491 sary, then the attorney-general had not done his duty, and ought to be made to do it. But he did not mean to blame his learned friend, for he had selected cases for prosecution wherever proper ones occurred, and he was fully competent to continue the exercise of that power which was vested in his office, without the gratuitous assistance thus pressed upon him. The right hon. gentleman had said that this association was quite constitutional, and not without a parallel. These parallels were to be found, first in the association of 1797, of which Mr. Reeves was secretary. But that society, he believed, never commenced a single prosecution. The other parallel was one almost too contemptible to mention,—he meant the society for the Suppression of Vice — that society whose business it was to dive into obscene pamphlets and prints^ and to prosecute the poor for what they called the profanation of the sabbath, but which in comparison with their own conduct on that day in the West-end of the town was wholly blameless. They were a set of cowardly pusillanimous hypocrites, who prosecuted the poor and helpless, but left the great and noble unmolested. At the same time he was fully aware that many characters of the highest respectability and virtue supported that society. With regard to the allusion which had been made to the societies established for the prosecution of felons, they were established to put down moral crimes, to which all the world agreed to award punishment. But how wide was the difference, between those crimes and what were tended political offences! In the writings of Mr. Burke, passages frequently occurred which, if prosecuted by such a society as this, would have been strained into sedition in a charge to the jury delivered by a corrupt judge; and thus one of the greatest characters that ever adorned it would have been lost to the country. The hon. member then commented upon the difficulty which persons, if maliciously prosecuted, would have in recovering damages from the society. If counter associations should be resorted to, nothing but dissention and ill-will would be seen instead of that peace and quiet to which the country was so anxiously looking.
§ Sir M. Cholmeley
insisted upon the necessity of preventing the exposure of obscene prints in the windows of shops; and stated, that they were frequently 1492 placed so low down, that children had ant opportunity of examining them. He entreated gentlemen to consider the dreadful effects which these things must produce.
§ Mr. Wilberforce
expressed his regret that the learned doctor should have thought it necessary to go out of his way to attack a society which had effected great good, and of which he was proud to avow himself a zealous supporter. The learned doctor seemed to know as little of the object as he did of the proceedings of that society. If he would point out any officer of that society who had conducted himself in the manner described, he would undertake that he should be dismissed immediately. One of its objects had been to stop the sale of obscene pamphlets and prints which had formerly found their way into the seminaries of the young of both sexes; in what manner that object had been effected, the House would judge when he informed them, that out of 45 prosecutions which the society had thought fit to institute, not one had failed. Another of its objects had been to put a stop to the profanation of the sabbath. In that pursuit, though not so successful as could have been wished, it had still been able to do much good. With regard to the motion before the House, had there been greater licentiousness of the press than existed at present? indeed it was perfectly insupportable. Calumnies and detractions were so prevalent, that an individual was obliged to be either perpetually contradicting them, or to submit to a belief of the truth of them. Where, then, was the man who would not rejoice in seeing the laws again appealed to for redress? So far from thinking it to be unconstitutional that individuals should endeavour to enforce the; laws against the licentiousness of the press, he thought that it was most congenial with the spirit of the constitution. How far the Constitutional Association had acted properly or improperly in their endeavour thus to enforce the law, he did not know; though he would not deny that the power which they had assumed was liable to abuse. He thought that it was the duty of a member of parliament, who saw the number of detestable publications now in circulation, to call upon the law officers of the Crown to enforce the laws against them, which he thought they had not done. The merit of a society like the Constitutional Association 1493 depended much upon the manner in which its objects were effected; and that, he must say, was not at this time in evidence before the House. They had only assertion against assertion; and he thought that his hon. young friend, whom he respected no less on his father's account than on his own, had been led a little astray by his zeal for public liberty, in the motion which he had that night made. He hoped that those who saw the abuses of the press would go on vindicating the laws against it. Let them turn neither to the right nor to the left in doing it. Let the true John Bull and the false John Bull be both prosecuted. By thus enforcing the laws, they would best promote the morals of the people, upon which the happiness of the nation mainly rested.
§ Mr. Denman
said, that the great objection to the constitutional and all similar associations was, that they could not exist without becoming a seminary for spies and informers. The person who could condescend to purchase a book from which he was to derive emolument on the conviction of the seller, would be ready to act even a more degraded part. If the book were not to be had for asking once, it would be asked for twice; and they might depend upon it, that the informer would not leave the shop without acquiring that which would afterwards prove a source of emolument to him. This was an objection to all societies, but pressed with greater force on the Constitutional Society than any others. The learned member dwelt on the illegality of a society, possessing large funds, and established, not for the punishment, but for the ruin of such booksellers as fell under their lash. The power thus placed in the hands of individuals was most enormous, and the number of bills presented by the association that had already been thrown out was enough to excite grave suspicion. It was impossible to calculate upon obtaining an unbiassed grand jury to find the bill, and an impartial petty jury to find the verdict, while the society extended in such infinite ramifications of power and influence. As to the formation of a counter-association, nothing could be more injurious to the administration of public justice than for two parties to be constantly running a race with each other, endeavouring to pour their several friends into the jury-box, and thus to gain a triumph over the law. The association had been properly considered 1494 a nursery for spies and informers; large funds were raised for their payment and encouragement, and instead of diminishing the number of objectionable publications, they would see then daily augmented as long as it was rendered worth the while of any of these desperate seducers to crime to promote their circulation.
said, that the motion was not sufficiently distinct at intelligible. Nobody had yet ventured to assert that the society was not legally constituted. If such were the case, the courts of law were open to any of its opponents. The fact that no appeal upon this point had been made to the proper forum, of itself showed that there was no ground for attacking its legality. In the same way, no attempt had been made to call in question the legality of the society for the Suppression of Vice, to which allusion had been frequently made, and between which and this society he could see no distinction whatever. It was a most extraordinary doctrine urged on the other side, that the attorney-general was the only public prosecutor in the country. If he brought a case of libel into court, he was constantly assailed by the defendant or his counsel with the charge that he was proceeding by an unconstitutional mode — that lie had filed an information ex-offlcio, instead of leaving it to the ordinary course of indictment, prosecuted by any private individual who might think fit to proceed. In this country there was, in fact, no such officer as a public prosecutor: all prosecutions were instituted by individuals, though in the name of the king; and lord Lough brough, as was well known, in the year 1792 stated that it was the duty of every member of society to enforce obedience to the law. So far from the society for the Suppression of Vice being illegal, his lordship at that time, when the press teemed with infamous prod actions, asserted that those individuals were meritorious in the highest degree who entered into an association for the purpose of suppressing them. The society For the Suppression of Vice had been instituted as long ago as the year 1787, and its object was, to carry into effect the king's proclamation against vice and immorality; yet, from that day to this, no man had dreamt of attacking it on the ground of illegality. It was very true that the constitution had armed the attorney-general with a particular power; but the crime of libel was as well known 1495 to the law as any other, and individuals or societies had as much right to prosecute for it as they might for felonies, or for the publication of obscene prints and books. If the attorney-general instituted a prosecution which terminated unfavourably to him, the party accused had no more remedy against him than it had against this society; and the indictments presented by the latter were at least attended with one advantage to the defendant. If the attorney-general proceeded ex-officio, the information for a libel was filed on his sole opinion; but in cases of indictment by the society, a grand jury intervened, and was called upon to decide whether the publication complained of was or was not a libel. Besides, if Mr. Murray or Mr. Sharp conducted themselves improperly, the party aggrieved had his remedy against them, although malice and want of probable cause must of course be established. Perhaps an action under such circumstances would even lie against the attorney-general for maliciously, and without probable cause, filing an information, although there certainly was no precedent of the kind. As to evidence, the attorney-general was always obliged to adduce the same species of testimony as the society: he was always obliged to prove the publication by purchase at the shop of the defendant; and a complaint might with equal justice have been made against him that he had directed a person to purchase at the shop of Carlile, Paine's "Age of Reason." The society had only taken the same means of establishing their case. It had been said, indeed, that they had encouraged a man of the name of King to sell a libellous work, that they might prosecute him for the crime, and he had ventured to swear that he had never seen the book until he procured it for the informer. Orton, on the contrary, deposed that he had seen one number of the publication lying on the counter, that King gave a good character of it, and that he promised to procure a whole set by the afternoon. Yet this was called inciting to crime. He felt bound injustice to the society, and in common candour, to say, that it was fit that credence should be given to the affidavits on both sides, since truth was not to be obtained by listening only to the representations of one party. It seemed a little premature to address the Crown to put an end to prosecutions, before even the nature of 1496 the publications which were the subjects of them was known. With regard to the legality of the society, he felt called upon to say, as far as his humble opinion went, that there was not the slightest ground from which it could be assailed. Neither could he see in what way the individuals composing it incapacitated themselves from serving as jurymen because they had contributed sums to its funds. He did not know why there should exist a stronger bias in their minds than in the minds of the jurors who belonged to associations for prosecuting felons. The question was, whether the law had been violated, and this they were as competent to decide as any other men.
§ Mr. Brougham
said, that in his opinion, a man might with perfect consistency approve of the other societies alluded to incidentally, and yet disapprove of that under the notice of the House; as the distinction between them was as clear as possible. Some offences were, and ought to be prosecuted, though many a man would feel a repugnance at having his name mentioned in the same line with such an offence, even as its prosecutor. The argument drawn from the societies to prosecute for thefts could not apply to the present association. How was it possible that a man's feelings could be so interested in the case of a theft as they would be upon a question purely political? Party feeling would interfere, and even the jury become contaminated with it, by the encouragement of such a society as this. The remedy proposed would be an aggravation of the mischief; for, as had been well-observed, it would lead to the pollution of the very fountain of justice. The attorney-general bad said, he did not see that members of this association were disqualified to sit as jurymen on prosecutions instituted by the Society. The Court of King's Bench, however, had declared them unfit, and had ordered, that the fact of a juryman's being a member should be a good cause of challenge. He who subscribed to bring on an indictment, was certainly an improper person to try it. In the case of a felony, if a man had subscribed money to find the bill of indictment, this would be a good cause for challenging him as a juror and yet in such a case it was not likely that any thing had occurred from the act itself to rouse the passions. But the Bridge-street association was founded in party feeling alone. Even their enthusiasm, however 1497 honest, was dangerous; they attacked only those who differed from them in politics: and not the least objectionable part of the case was, the circumstance, that if the matter were carried by writ of error to the House of Lords, the last legal resort, there were some dozen of Bridge-street associators to give checkmate to the proceedings. Would any man of common understanding say that this was consistent with common justice? The influence of the members of this association was not confined to London. How could an impartial jury be found in the country, half a dozen jurors being tenants of the duke of this, that, or the other, a member of the society? How could the unfortunate defendant have a fair chance? A counter-association, he repeated, would be worse than the present evil; for it would cause the whole country to be split into parties, and would destroy the hitherto proud character of English justice. The strict legality of the association on its professed principles he did not deny; but the legality was no objection to the interference of the House. The abuse, even of a legal right, might be a fair subject for interference. He did not ask whether what Mr. King had said, or what Mr. Orton had said, was true; but he was satisfied that Mr. Murray and Mr. Sharp had bragged of the commission of acts which were illegal. He thought it was not legal to go to a man's shop, and say to him, "If you don't agree to certain terms, I will indict you. If you do not admit your guilt, give up your property to us who have no right to ask it, and who cannot take it without violating the law. If you do not, besides all this, take an oath never to repeat that which we pronounce to be a legal offence, we will inflict legal vengeance upon you, and you must endure the consequence."—To do this, was to act more like a robber than any thing else—more like a violator than a protector of the law. This he held to be illegal. If this was the law of England, he had not so studied it; if it was a part of the constitution, he did not understand it. If these proceedings were to be supported by peers, who might ultimately have to pronounce upon them judicially; then, all he could say was, that there never was an Association put down as illegal, half so much to be reprobated as this society, this terror to all good men, commonly known by the name of the "Bridge-street Gang." There were, however, many per- 1498 sons, belonging to the Society for whom individually he entertained a very high respect. To those he should prefer using the language of expostulation rather than that of reproach. He believed they had been drawn into the society by designing persons; that they were the tools of others for whom no one could possibly feel any respect. "Church and state," "social order," and "sacred institutions," were fine phrases; but, in the present instance, they meant that it was necessary that a parcel of individuals should swell their own purses by using those of other people. Something bad dropped from the hon. member for Bramber, about the propriety of putting down libels on both sides; but what was the fact? Why, that all on one side were mown down, and all on the other left untouched. Benbow, he believed, had been prosecuted for publishing a caricature upon his majesty; but this caricature was actually a parody on another quite as gross which had been published against the Queen. One was a libel on a woman, the other on a man, and this excellent society had taken no notice of the first. The press had teemed with the most disgusting libels; yet had this immaculate association emptied all the phials of their wrath on the other side and on that only. The society was, in fact, evidently erected for party purposes—to punish libels on one-side, and, if not to encourage, at least to leave untouched all those on the other. For these reasons he considered it dangerous that such a society should exist; and if any thing could increase his abhorrence of it, it was the sort of defence by which it was endeavoured to be sustained.
The Solicitor General
thought, that in order to form a correct opinion on the present question, it would be proper to inquire what was the state of the proceedings referred to by the motion. Bills had been found by grand juries against individuals for various libels; the judges of the courts of law had held these defendants to bail; and now the House of Commons was called upon to address the Crown to stop these prosecutions without any inquiry into their merits. The hon. and learned member here entered into a review of the proceedings against Dolby, and contended that the society had, in the course of the proceedings, clone nothing which was not justified by law. The stock of Dolby was not demanded; he was only desired to give up the remaining 1499 copies of the libel referred, to in the indictment. His hon. and learned friend had not denied the legality of the society. Indeed, no attempt had been made in the superior courts to question the legality of the society; and an attempt made before another tribunal had completely failed. The hon. and learned gentleman then referred to the society of 1792, which he said had been ably and eloquently defended by lord Erskine himself, on the trial of Williams for publishing Paine's "Age of Reason." What, indeed, could be a more proper object than the prosecuting of seditious libels? And what sound objection could be raised against a society, which could not take a single step without the previous opinion of a grand jury? That such a society was capable of abuse he did not deny, but no ground had been shown to induce a belief that any abuse whatever existed in the conduct of these prosecutions. He begged to correct his hon. and learned friend as to a remark he had made on the proceedings in the court of King's-bench on the motion respecting the members of the association qualified to serve on the special jury. The order of the court relied on by his hon. and learned friend had been made with the consent of the prosecutors themselves. As to the proposition itself, it was of so extravagant a nature, that it was impossible it should receive the sanction of the House.
§ Mr. Scarlett
could not concur with his hon. and learned friend in pronouncing this society to be legal: he thought it usurped the functions of the attorney-general, in whose hands, prosecutions for political offences were vested by the government, and where he thought the discretion of instituting them would be exercised with more coolness than this society was likely to use on such subjects. Any set of men arrogating to themselves such a power of prosecuting for political offences assumed an unconstitutional power, which he considered dangerous, and which he could not easily be persuaded was legal. He meant to pronounce no conclusive opinion until he had all the facts before him; but he must deny that the judges, as the matter stood, had concluded any thing upon the point of law; nor, indeed, did, he know in what form their judgment could be summarily had upon so large a question. He thought there was a great distinction to be drawn 1500 between a society like this, and other societies for prosecutions not political in their nature; and he remembered that lord Erskine did, on a particular occasion, throw up his brief when the society, whose counsel he was, had refused to accede to what he deemed a reasonable proposition. He did not believe that any decision had yet been had, which went the length of legalizing societies of the nature of the present; and, much as he respected the object and the motives of the members of the Society for the Suppression of Vice, he still thought that their proceedings were liable to great abuse. Suppose a society were formed to conduct excise prosecutions, and another for customs, and a third for other departments, let the House consider the state in which society would become involved: the nation would be cast into parts, and every individual employed in hunting down his neighbour. There was, he recollected, in history, a society framed upon such a principle: he meant that of Empson and Dudley, in the reign of Henry 7th, for enforcing the penal laws of the country. It did, however, so happen, that Empson and Dudley were put to death for their conduct. Empson on that occasion made pretty much the same defence that was now set up for this society: he asked, what he had done but support the due administration of their own laws, and that by the intervention of juries? The great danger of such societies was their inevitable tendency to poison the springs of social life. If the attorney-general did not perform his duty sufficiently, why not address the king for his removal, rather than attempt to quicken the administration of the law by constituting a private prosecuting society. At the same time he did not think that House the proper place to propound the question of the law of the case, and he was therefore anxious that the motion should be withdrawn. If pressed, he should certainly vote against it, notwithstanding the opinion he entertained of the unconstitutional character of the society.
§ Mr. Whitbread
said, that as it seemed to be the general wish, he would not take the sense of the House upon the subjects With respect to the argument, that those who were aggrieved by the proceedings of the society would have their remedy as law, he would ask who were the persons from whom redress was to be sought? 1501 Was Mr. Sharp to be the object of such prosecution? All he knew of Mr. Sharp was, that he was a bankrupt, and that he owed 300l. to a member of that House, who was not likely to receive 300 pence in payment.
§ The motion was negatived.