§ —The order of the day having been read,
§ *From the original edition printed for Ridgways, with the following ADVERTISEMENT:—
§ "The following Speech is given, as accurately as was possible, from memory, with the assistance of the printed accounts446
§ My Lords; I have felt considerable hesitation and reluctance in bringing forward for discussion the question on which your lordships have been summoned to attend this night; not because it is not of great importance, or that it does not claim from your lordships the most serious attention, but because it is in my hands, exposed to difficulties, which I feel myself ill qualified to encounter.
§ It is, in the first place, a legal question, to which I, unlearned as I am, can little hope to do justice, considering the legal ability and experience, which, I have too much reason to fear, will be arrayed against me. It is, in the second place, a constitutional question; and though, in this view, it is of the utmost importance to the freedom of the press, and the liberty of the people, I have had but too many proofs, that this character alone is sufficient to deprive it of all interest, if not to expose it, when brought forward by me, to the suspicion and disfavour of those, to whom my arguments must this night be addressed. In this respect, as it appears to me, a lamentable change has taken place in the feelings of this and the other House of Parliament. Our affections are now all on the side of prerogative; our fears, of popular rights and privileges. It is no longer the encroachments of power of which we are jealous, but of the too great extension of freedom. Every symptom of popular uneasiness, every ill-regulated effort of that spirit, without which liberty cannot exist, but which, whilst it exists, will break out into occasional excesses, affords a pretence, which we seem emulous to seize, for imposing on it new restraints; whilst all the increased advantages of the Crown, in the extension of our military establishments, in the augmentation of our revenue, and in the patronage and influence annexed to its collection, seem to pass unnoticed, in our anxiety to support and strengthen the executive government, whenever called upon to do so, by new
§ of the debate in the newspapers. The line of argument has been scrupulously adhered to, though capable of many improvements and additions, had they been thought consistent with the general fidelity of the report. This, it is hoped, will not appear to have been materially departed from by introducing, towards the conclusion of the Speech, for the sake of convenience, two or three passages from the reply."447
§ and extraordinary powers. Feeling the effects of this change, it is for this, amongst other reasons, that I have resolved, upon this occasion, not to offer to the Mouse any distinct proposition with respect to the important matter which, I am about to bring under your consideration; fearing, that, if I were to do so, I should only give occasion for an adverse decision, and thereby injure those interests, which I am anxious to uphold and to protect.
§ I shall therefore, this night, content myself with moving for the Case laid before the Law Officers of the Crown by the secretary of state, upon which their opinion has been given, as to the powers of justices of the peace to hold to bail, or commit to prison for want of bail, any persons accused of publishing blasphemous and seditious libels. We shall, by this course, have the advantage of not coming to a premature decision on a subject of such vital importance; and an opportunity will be afforded of examining it carefully in all its bearings. I cannot conceive what reasonable objection can be urged against producing the information which I require. It is of the greatest consequence that we should be possessed of it, to see on what precise grounds the opinion was given; whether it was applicable to the case; and whether the purpose of the noble secretary of state was fairly brought under the consideration of the law officers of the Crown. My motion, then, will be simply for the production of the case; but I shall take the opportunity, which this motion affords me, of supporting it by such general observations on the whole subject, as, I trust, will prove to your lordships how deserving it is of your most serious attention.*
§ * The following is a copy of the Circular Letter, and also of the Opinion of the Law Officers of the Crown thereupon.
§ COPY OF CIRCULAR LETTER from lord viscount Sidmouth, to his majesty's lieutenants of counties in England and Wales.
§ Whitehall, 27th March 1817.
§ My Lord,—As it is of the greatest importance to prevent, as far as possible, the circulation of blasphemous and seditious pamphlets and writings, of which for a considerable time past great numbers have been sold and distributed throughout the country; I have thought it my duty to consult the law servants of the Crown,448
§ The Circular Letter of the noble secretary of state, addressed to the lord lieutenants of counties in England and Wales (whether properly addressed to the lords lieutenants of counties, where the object was to communicate with the magistrates, I will not now inquire), is before the House. The letter states, that the dangerous and extensive circulation of blasphemous and seditious libels had induced the secretary of state to consult the law officers of the Crown, as to the power of bringing before a justice of the peace, and compelling to answer for his conduct, any person found selling, or in any way publishing such pamphlets and writings: that the law officers had answered, that a justice of peace might issue his warrant to apprehend a person charged upon oath with the publication of such libels, and compel him to give bail; and the lord lieutenant is then desired to make known to the chairman at the next quarter sessions the substance of this communication, "in order that he may recommend it to the magistrates to act upon it in all cases, where any person shall be found offending against the law in the manner above-mentioned."
§ The character, then, of this extraordinary letter—for extraordinary I must call it, as there is no precedent, that I have ever heard of, for such a proceeding—is this; that, having consulted the law officers of the Crown, the secretary of state has, upon the ground of their opinion, taken upon him to instruct the magistrates in their judicial duty. The dangerous consequences of such a precedent I shall hereafter endeavour to point out. The Letter states, that the Opinion related to blasphemous and seditious libels. In the opinion I do not find the word blasphe-
§ whether an individual found selling, or in any way publishing such pamphlets or writings, might be brought immediately before a justice of the peace, under a warrant issued for the purpose, to answer for his conduct.
§ The law officers having accordingly taken this matter into their consideration, have notified to me their opinion, that a justice of the peace may issue a warrant to apprehend a person, charged before him upon oath with the publication of libels of the nature in question, and compel him to give bail to answer the charge.
§ Under these circumstances, I beg leave to call your lordship's attention very particularly to this subject; and I have to 449 mous, but I admit, nay I shall have to contend, that not only blasphemous, but all other libels, of every description, must, if the opinion be correct in principle, necessarily come under it. The letter refers only to the powers of Justices of the Peace. The opinion relates also to the powers of the judges and of the secretary of state; and it is of great importance to have the case produced, in order to see whether the noble secretary of state had intended to instruct, not only justices of the peace, but also the judges in Westminster-hall, In their judicial duties.
§ The Opinion first affirms generally the power of the secretary of state, of the judges, and of justices of peace, to apprehend persons charged with publishing a
§ request, that if your lordship should not propose to attend in person at the next general quarter sessions of the peace, to be holden in and for the county under your lordship's charge, you would make known to the chairman of such sessions the substance of this communication, in order that he may recommend to the several magistrates to act thereupon, in all cases where any person shall be found offending against the law in the manner above-mentioned.
§ I beg leave to add, that persons vending pamphlets or other publications, in the manner alluded to, should be considered as coming under the provisions of the Hawkers and Pedlars Act, and be dealt with accordingly, unless they show that they are furnished with a licence as required by the said act.—I have the honour to be, &c. SIDMOUTH.
§ OPINION of the Law Officers of the Crown; referred to in the said Circular Letter.
§ We are of opinion, that a warrant may be issued to apprehend a party charged on oath for publishing a libel, either by the secretary of state, a judge, or a justice of the peace.
§ With respect to the secretary of state, in the case of Entick v. Carrington, as reported by Mr. Hargrave, though the court were of opinion the warrants, which were then the subject of discussion, were illegal, yet lord Camden declared, and in which he stated the other judges agreed with him, that they were bound to adhere to the determination of the Queen v. Derby, and the King v. Earbury; in both of which cases it had been holden, that it450
§ libel. It then states separately, with respect to each, the grounds on which the existence of such a power is asserted. As to the power of the secretary of state to apprehend in cases of treasonable and seditious libel, I must admit it now to have acquired the force of law. Whether it was or was not originally an usurpation, it is unnecessary now to inquire. It has been sanctioned by the decisions of the Courts, and therefore I feel it can no longer be disputed. The opinion next states, that it appears that judges have such a power, at all events under the 48th of the king, cap. 58. Now, with all due deference to these learned persons, I must say, that this part of the opinion seems to me to have been somewhat inaccurately and
§ was competent to the secretary of state to issue a warrant for the apprehension of a person charged with a scandalous and seditious libel; and that they, the judges, had no right to overturn those decisions.
§ With respect to the power of a judge to issue such warrant, it appears to us that at all events, under the statute of the 48 Geo. 3d, ch. 58, a judge has such power, upon an affidavit being made in pursuance of that act; a judge would probably expect that it should appear to be the intention of the attorney-general to file an information against the person charged.
§ With respect to a justice of the peace, the decision of the Court of Common Pleas, in the case of Mr. Wilkes's libel, only amounts to this—that libel is not such an actual breach of the peace, as to deprive a member of parliament of his privilege of parliament; or to warrant the demanding sureties of the peace from the defendant; but there is no decision or opinion that a justice of the peace might not apprehend any person not so privileged, and demand bail to be given to answer the charge. It has certainly been the opinion of one of our most learned predecessors, that such warrants may be issued and acted upon by justices of the peace, as appears by the cases of Thomas Spence and Alexander Hogg, in the year 1801. We agree in that opinion, and therefore think that a justice of the peace may issue a warrant to apprehend a person, charged by information on oath, with the publication of a scandalous and seditious libel, and to compel him to give bail to answer such charge.
§ Lincoln's-Inn, W. GARROW.
§ 24th February, 1817. S. SHEPHERD.451
§ carelessly expressed. The act of the 48th of the king gives no such power to the judges generally, but only to the judges of the Court of King's-bench; and in this construction I am fortified by a late proceeding at the Old Bailey before two judges, not judges of the Court of King's-bench, who evidently doubted, at the least, their powers in this respect; though in that case the information was soon after filed, and the question was not farther agitated. The act, then, does not apply to the judges generally, but only to those of the Court of King's-bench, and the words of the opinion, "It appears to us, that, at all events under the statute 48 Geo. 3d, cap. 58, a judge has such power," imply a strong doubt whether a judge had any such power before that statute. These learned persons then go on to state, that a judge "would probably expect, that it should appear that the attorney-general intended to file an information against the person charged." They seem to have conceived, that a person so charged might, under the act of the 48th of the king, be committed before information filed. I doubt whether that be the true construction. I was not in the House when the bill was in its progress; but I understood, from those who were present, that the interpretation given to it, in the discussion, was, that it was only intended to confer the power of committing, after an information had been actually filed. These learned persons appear to think differently; but they say, that a judge would require some evidence of the intention of the attorney-general to file an information against the person charged. I do not very clearly see what evidence the judge could have of such intention. Is the attorney-general himself to prove, by his oath or affidavit, that such was his intention; or is some one else to give evidence of an intention, which could be certainly known only to the person who entertained it? This appears to show, that the learned persons, who have given this opinion, have not rightly construed the act, and that the opinion is, in this respect also, erroneous.
§ But leaving these minor points, which hardly deserved so much notice, I now come to the principal question, in which every subject of these kingdoms is indeed most deeply interested—the question, whether any justice of the peace may be called upon, by any common informer, to decide at once what is or is not a 452 libel (one of the most difficult questions, in many instances, that can possibly come under consideration): and, upon his sole judgment and authority, commit or hold to bail the person accused. The opinion states, that the decision of the Court of Common Pleas, in Wilkes's case, only amounted to this—that libel is not such an actual breach of the peace as to deprive a member of parliament of the privilege of parliament: and then these learned persons proceed, on the authority of two modern instances, to say, that all justices of peace have the power of issuing warrants to apprehend persons charged by information on oath with publishing scandalous and seditious libels, and to compel them to give bail to answer such a charge. In the first paragraph of the opinion, this power is not confined to blasphemous and seditious libels, but extends to all libels generally: and this undoubtedly is correct; for if magistrates possess this power with respect to one description of libel, they must have it over all, whether public or private, malicious or treasonable; and not only over all cases of libel whatsoever, but over every species of minor offence, which comes within their jurisdiction at the sessions. I now state this generally, as a consequence which, I shall hereafter have to argue, must follow of necessity from the opinion of the attorney and soliciter-general. I can, my lords, conceive nothing more dangerous than the assumption of such an authority: nothing more contrary to the whole spirit of our laws and constitution.
§ In examining this question, where are we to look for the proof, that such a power is or ever has been possessed by justices of the peace? The proof must be found either in the common law, in some express statute, in decisions of the judges, in the writings of lawyers, or in ancient practice. In one or in all of these authorities the proof of this power, said to be possessed by the magistrates, must, if it do exist, be found; and, if it is not to be found in any of these, it will not be denied to me, that it cannot be the law of the land.
§ In considering this subject, I shall have to trespass for some time on the patience of your lordships, in order to state what has been the result of my inquiries, in the course of which I have been able to find no foundation for the opinion in question. In the common law I have not discovered any tiling that tended to support it. There 453 is no statute which sanctions it; for, if any such statute had existed, the law officers of the Crown would doubtless have referred to that statute in support of their opinion. In looking into the most approved writers on the law, as well as the opinions delivered on particular occasions by judges, I have met with nothing to warrant the conclusion, that the power now attributed to justices of peace is legal. Whether considered separately or collectively, I have no difficulty in declaring, that all the great authorities will be found to preponderate against the existence of such a power.
§ But before I proceed to examine these authorities, I should wish to draw your lordships attention to the commission of the justices. That commission, which was settled by the judges in the reign of queen Elizabeth, consists, as your lordships well know, of two clauses: the first gives them the power "to keep and cause to be kept all statutes and ordinances for the good of the peace, &c.: to chastise and punish all persons that offend against the form of these ordinances and statutes; and to cause to come before them, or any of them, all those who have used threats, &c, to find sufficient security for the peace or their good behaviour; and, if they shall refuse such security, them in the king's prisons to cause to be safely kept." This first clause then describes the power of the justices out of sessions, as conservators of the peace—
§ The second clause relates exclusively to the jurisdiction of the justices at the sessions of the peace. "We have also as signed you, and every two or more of you, to inquire the truth more fully, by the oath of good and lawful men, of all manner of felonies, poisonings, enchantments, sorceries, arts magic, trespasses, forestallings, regratings, ingrossings, and extortions whatsoever; and of all and singular other crimes and offences, of which the justices of our peace may or ought lawfully to inquire—to inspect all indictments, &c— and to make and continue processes thereupon, and to hear and determine all and singular the felonies, trespasses, &c., according to the laws and statutes of England." This second clause it is material to keep in our view, as it is on the jurisdiction which it gives, that this power, as necessarily consequent upon that jurisdiction, must be maintained. It relates, as I have already stated, solely to the duties of magistrates in sessions.454
§ It is clear, then, that the first clause, which confers the power of arrest and commitment only in cases of actual breach of the peace, does not give it in cases of libel, or of any inferior offence. It is equally clear, that no such previous authority to compel an appearance at the sessions is conferred by the second clause, which relates exclusively to the jurisdiction of the justices there, which it requires the presence of two or more justices to exercise. It is not to be found, then, in the letter of the commission. Does it come within its equity, by fair and necessary construction? This is the question which your lordships have to examine; and in this examination the first step is to consult the great authorities of the law, who have treated of this subject, and who, if such a power legally exists, could not have failed to notice it in such clear and distinct terms, as would leave it subject to no dispute or doubt.
§ Lord Coke, so far from acknowledging the existence of such a power, denies the right of a magistrate to commit, even in cases of felony and treason, before indictment; a power which he held to be contrary to Magna Charta. His words are as follow:—" But for the justices of the peace to make warrant upon surmises, for breaking the houses of any subjects, to search for felons or stolen goods, is against Magna Charta: 'Nec super cum ibimus 'nec super cum mittemus nisi per legale 'judicium parium suorum, vel per legem 'terræ;' and against the statute of the 42d Edward 3d, ? and we hold the resolution of the court, viz, of Brudenell, Pollard, Broke, and Fitzherbert, in 14th Henry 8th, to be law, that a justice of peace could not make a warrant to take a man for felony, unless he be indicted thereof, and that must be done in open session of the peace." 4th Inst., 177, 8.
§ If, then, such a person as lord Coke denied the existence of this authority, even in cases where the peace and good order of the country were involved, how can it be supposed, that the ancient law of the country authorized magistrates to hold to bail for lesser offences? I admit, that, under the general word 'trespass,' as it has been interpreted, libel, with other offences of a similar description, as tending to a breach of the peace, is cognizable by justices of the peace at their sessions; but still, the utmost latitude of construction gives this authority to magistrates only in their sessions; and before your lordships 455 can decide in favour of the opinion of the law officers of the Crown, you will require clear proof, that libel, by becoming an offence cognizable in sessions, is also subject to the power of a single magistrate out of sessions.
§ The next opinion I shall notice is that of Mr. Sergeant Hawkins. That learned author has stated, * that "any justice of the peace may commit in cases of treason, felony, or premunire, or any other offence against the peace. Also wherever a statute gives to any one justice a jurisdiction over any offence, or a power to require a person to do a certain thing ordained by such a statute, it impliedly gives a power to every such justice to make out a warrant to bring before him any person accused of such offence, or compellable to do the thing ordained by such statute." He proceeds to state, that, "anciently, no one justice ever could make out a warrant for an offence cognizable by a sessions of two or more justices. Constant and universal practice appears to have altered the law in this particular; the practice of justices is now also become law, in granting a warrant for the apprehension of any person, upon strong grounds of suspicion, for a felony, or other misdemeanor, before indictment found. Yet as justices of the peace claim this power rather by connivance than any express warrant of law, and since the undue execution of it may prove highly prejudicial to the reputation as well as the liberty of the party, a justice of peace cannot well be too tender in his proceedings of this kind," &c.
The opinion, then, of Mr. Sergeant Hawkins, your lordships will observe, is of this character: it is clear as to the power of justices to apprehend and commit for "treason, felony, or premunire, or any other offence against the peace:" it is also clear as to the power of a single justice with respect to offences, over which a jurisdiction is given him by statute. But is there any thing to sanction the possession of such a power as to other offences? If this should be inferred from the words subsequently quoted, that one justice might make out a warrant for offences cognizable by a sessions of two or more justices, or for apprehending any person "for a felony or other misdemeanor," I must contend, that these words cannot fairly bear such an interpretation.
* Hawkins' Pleas of the Crown, b. ii., p. 84.
That they must, in the first place, be understood in reference to the offences of which the author was treating, and these are expressly stated to be treason, felony, or premunire, "or any other offence against the peace:" this, therefore, must be considered as the description of misdemeanor which Hawkins had here in contemplation. That, in the second place, he expressly founds this power, which he states to have been acquired by an alteration of the law, on ancient and universal practice. It rests upon practice and connivance. This practice, with respect to treason, felony, and actual breaches of the peace, is admitted; but where can it be shown with respect to other misdemeanors and offences, not breaches of the peace, but only having a tendency to that effect? Had there been any such constant and universal practice in cases of libel at the time that Hawkins wrote? If there had, it is impossible that he should have failed to notice it in clear and precise terms. Your lordships have then the opinion, the clear and distinct opinion of this able writer, as to treason, felony, and breach of the peace; and if any doubt should arise as to the sense in which he has used the word misdemeanor, that doubt is cleared up by the context, by reference to the description of offences of which he was treating, and by the practice, which he states to have been constant and universal.
§ The next authority to which I shall refer is that of lord chief justice Hale; and here I am aware of a proposition laid down by that great lawyer, which at first sight may appear to militate against the view which I have taken of this question. That learned authority has stated, * that "justices of the peace may also issue their warrants, within the precincts of their commission, for apprehending persons charged with crimes within the cognizance of the sessions of the peace, and bind them over to appear at the sessions, and this though the party be not yet indicted: and therefore the opinion of my lord Coke is too strait-laced in this case; and, if it should be received, would obstruct the peace and good order of the kingdom."
This opinion appears, at the first view, to state, that for all offences, so cognizable, a warrant might be issued before indictment; but it is afterwards explained,
* Hale's Pleas of the Crown, Vol. i., p. 579.
and the nature of the offences, to which this passage refers, made evident, by the remark that follows on the opinion of lord Coke, which, it states, was too "strait-laced, in this case," as to the authority of magistrates. What was the case on which Coke gave this opinion? The case of felony only. Lord chief justice Hale must, therefore, be taken as controverting here that passage in Coke, in which is laid down, that magistrates could not convict in cases of felony before indictment. This is farther evident from the subject under discussion, which was "Concerning felonies." Your lordships will admit, that, in construing an opinion, it must in fairness be considered with reference to the subject of discussion. Now what is the subject of which chief justice Hale is treating? It is the power of justices to commit for felonies. The title of the chapter is "Concerning felonies by the common law, relating to the bringing felons to justice, and the impediments thereof, as escape, breach of prison, and rescue; and first touching arrests."
I therefore think it impossible fairly to collect from this passage the opinion which some, I understand, are disposed to infer from it. But it is further explained by what lord Hale says in the second volume of his work,* where, speaking of the power to issue warrants, and arrest persons not indicted, he observes, that there had been doubts whether that power was not contrary to Magna Charta. "A jus-of peace," says lord Hale, "hath the power to issue a warrant to apprehend a person accused of felony, though not yet indicted." He then states* the doubt that had arisen on the statutes of Magna Charta, the 25th Edward 3, cap. 4, 28th Edward 3, cap. 3, and the 42nd Edward 3, cap. 3. "The question upon these statutes," he proceeds to say, "is, what is the law of the land? It is clear, if a felony were committed or suspected, a man may be arrested by the party that knows, or upon probable grounds suspects him as the felon, or by a constable upon complaint, or hue and cry. Let a man look upon all the acts of parliament that have been down to this day, he shall find, that the power of justices of peace to convene and commit felons before indictment is allowed." He then
* Hale's Pleas of the Crown, Vol. ii., p. 108.
* Hale's Pleas of the Crown, Vol. ii., p. 109.
cites a variety of statutes, by which it appears that justices may commit for felony, yea, or for suspicion of felony; so that the imprisonment before indictment is surely lawful, and not within the restraint of Magna Charta; and if so, then surely the arrest is much more lawful.—"He may also issue a warrant on suspicion of felony, though the original suspicion be not in himself."—" A justice* of peace may make a warrant as well in case of felony as of the peace, to bring the party before himself,"—" or before any of his majesty's justices of peace,"—" or before himself and any of his majesty's justices of peace."
§ In all these passages lord Hale expressly limits what he says to felony, or suspicion of felony, or breach of the peace. In cases of that description, his opinion, as opposed to that of lord Coke, is clear: but where do we find the same distinct expression of an opinion with respect to this power of arrest and commitment, before indictment found, for misdemeanors or other inferior offences, not being actual breaches of the peace? I am sure your lordships will not infer from lord Hale the existence of such a power, because he seems incidentally to assert it by a casual or parenthetical expression, delivered in treating upon another subject; but you will expect, that the opinion should be clear, distinct, and precise, as it would have been, if such had been the acknowledged and established law when lord Hale wrote. I feel myself, therefore, warranted to contend, interpreting a particular expression (which I hold to be the more legitimate rule of construction) by referring to the subject propounded for discussion, and by comparing it with the context, that no opinion of my lord Hale, in favour of the power now contended for, is to be inferred from the passages that I have cited; but that, on the contrary, the authority of this eminent judge, when fairly considered, is, if I were to stop here, to be taken as preponderating in favour of the opinion which I am endeavouring to maintain.
But if there should still remain a doubt in the mind of any of your lordships, whether lord Hale meant to assert, that justices of the peace had generally a power to commit or hold to bail for all offences within their jurisdiction at the sessions, though not actual breaches of the peace,
* Hale's Pleas of the Crown, Vol. ii., p. 112.
that doubt must be completely removed by a subsequent passage in the same great author, which I am now about to cite, and to which I request your particular attention.*
§ "Whether, generally, a justice of peace out of sessions, can issue a warrant to apprehend persons offending against a penal law, though within their cognizance, and to bind them over to sessions, or, in default thereof, to commit them, and this before indictment found, seems doubtful. These things seem to make against it: First, because some acts of parliament do particularly and expressly authorize them to it, which they would not have done if it had been otherwise lawful. Secondly, because, in most cases of this nature, though the party were indicted, or an information preferred, yet the capias was not the first process, but a venire facias and distringas; and, in cases of information, no process of outlawry at all (8 Hen. 6.9 B.)until the statute of 21 James 1, cap. 4, gave process of outlawry in actions popular, as in actions of trespass vi et armis."
§ Here, then, the very question, which we are arguing, is stated: the question as to the power of justices out of sessions, over offences cognizable before them at their sessions: and upon this, does my lord Hale give an opinion confirmatory of the inference which is drawn from the expression, which I have cited from the passage in which he is treating of felonies and breaches of the peace? Does it not, on the contrary, prove irrefragably, that, in the passage alluded to, on which, I am told, so much stress is to be laid, he not only did not, but could not mean to deliver any such opinion? The question is here raised, and, when raised, he states upon it not an opinion, but a doubt; and that doubt he supports by two very strong and cogent reasons, which it does not appear to me to be very easy to answer, and which he accordingly leaves unanswered.
The opinion given by chief justice Hale, therefore, fairly considered, reduces itself to this—that, in some cases, justices of the peace possessed the power of issuing warrants, and holding to bail before indictment; and that, in other cases, their right to exercise that authority was doubtful: but when he comes to give any thing like a description of what offences he had in view, he appears expressly to limit the
* Hale's Pleas of the Crown, Vol. ii., p. 112.
power of the justices to cases of treason' felony, and breach of the peace. This is made completely clear by another passage,* the last that I shall cite from this great judge. "If a justice of peace have jurisdiction in the case (as he hath in all treasons, felonies, and breaches of the peace, yea though it be treason, so far forth as it is a breach of the peace), though he err in granting his warrant, it seems that the officer, who executes it, is excusable."
§ I contend, therefore, that the authority of lord Hale, fairly considered, weighs decisively against the opinion given by the law officers of the Crown; but, if my argument to this extent should not be admitted, it surely cannot be denied to me, that the most that can be inferred from the writings of lord Hale with respect to this subject is, that he left the case in some degree of doubt: and, if there exists a doubt as to the law on so important a point, I am sure your lordships will not be disposed to lean to that interpretation of it, which is unfavourable to the rights of the subject.
§ The next authority to which I have to call your lordships attention is that of Mr. Justice Blackstone; the author, as your lordships know, of an elementary work upon the law of England; in that character entitled to the greatest praise, but not possessing the authority of those writers, who who have treated more in detail, and with more accuracy, those questions of law, which come practically before the courts. I say this by no means with a view to depreciate the merit of Mr. Justice Blackstone; that merit I shall always be one of the first to acknowledge; but to caution your lordships against giving too much I weight to every particular expression, which, from the very nature of the work, it cannot be supposed that the author could have weighed with as much accuracy and caution, when he was merely giving the general principles as an introduction to a more extensive and accurate knowledge of the science of the law, as if he had been detailing precise rules, founded on precedents of acknowledged authority and decisions of the courts, for the regulation of its practice.
Mr. Justice Blackstone says,* "A warrant may be granted in extraordinary cases by the privy council, or secretary of
* Hale's Pleas of the Crown, Vol. ii., p. 119.
* Blackstone, Vol. iv, p. 290.
state: but, ordinarily, by justices of peace. This they may do in any cases where they have jurisdiction over the offence, in order to compel the person accused to appear before them; for it would be absurd to give them power to examine an offender, unless they had power to compel him to attend and submit to such examination. And this extends, undoubtedly, to all treasons, felonies, and breaches of the peace: and also to all such offences as they have power to punish by statute. Sir E. Coke indeed hath laid it down, that a justice of the peace cannot issue a warrant to apprehend a felon, upon bare suspicion: no, not even till an indictment be actually found; and the contrary practice" (observe, with respect to felons) "is held by others to be grounded rather upon connivance than the express warrant of law: though now, by long custom, established. A doctrine, which would in most cases give a loose to felons to escape with impunity, and therefore sir M. Hale hath combated it with invincible authority and strength of reason, maintaining, first, that a justice of peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted; and, secondly, that he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party that prays his warrant; because he is a competent judge of the probability offered to him of such suspicion."
§ It is observable, my lords, that the only clear and distinct opinion delivered by Mr. Justice Blackstone in this passage (the whole of which I have cited, that I may not be accused of keeping back any thing that is unfavourable to me) is, that this power of arrest and commitment, before indictment found, is vested in justices of the peace, with respect to "all treasons, felonies, and breaches of the peace, and also all such offences as they have power to punish by statute." This is what I had always understood to be the law upon this subject. Beyond the limits thus defined by Mr. Justice Blackstone I had never conceived the power of the magistrates out of sessions to extend; and I never was more surprised than when I read, what appeared to me to be the novel doctrines, doctrines which I am convinced, upon examination, are equally novel and untenable, conveyed in the shape of an instruction to the magistrates, in the Circular of the secretary of state. Every person of eminence in 462 profession of the law, with whom I conversed on the subject, expressed equal surprise. I remembered too the discussions which took place in this House on the letter of the secretary in Ireland, the proclamation, and the proceedings upon the Convention act, in 1812. On that occasion, this very question was debated. I myself then maintained as law, what I still believe to be law, that the power of justices of the peace, out of sessions, or even of the judges of the Court of King's-bench, to commit or hold to bail, did not, unless given by special statute, extend beyond "treason, felony, and breach of the peace." I called upon the noble and learned lord on the woolsack to contradict me, if what I said was incorrect. He remained silent. It is not fit that I should refer to any thing that passed in private communications, which the urbanity of the noble lord permits even to his political opponents; but the impression left upon my mind by the result of that discussion was, that the law, as I then stated it, and as I now contend it to be, as it had not been, so it could not be disputed. A noble friend near me (lord Holland) entered upon that occasion a protest, stating distinctly the same principle of law. A protest undoubtedly cannot be cited as expressing more than the opinions of the individuals who signed it. But it was the subject of some conversation and discussion amongst persons, who took different sides on the question to which it referred, and by none of them, though the correctness of its application might be denied, did I ever hear the soundness of its law disputed.
§ I say, then, that the only opinion clearly announced in the passage, which I have quoted from Mr. Justice Blackstone, is, that justices of the peace may issue their warrants to apprehend, or to commit in default of bail, for treason, felony, breach of the peace, and such other offences as have been made specially liable to the exercise of such a power by statute. To this extent, says Mr. Justice Blackstone, their power, undoubtedly goes; implying thereby, that, in the words which preceded, he did not; mean positively to affirm the existence of such a power beyond those limits. It is observable, too, that he interprets the passage of lord Hale, to which I have already adverted, as applicable only to the opinion of my lord Coke respecting felony. He does not extend it to misdemeanor, as 463 he would unquestionably have done had he understood my lord Hale as meaning to give to the opinion, which he asserted in opposition to lord Coke, such an extension. And it is farther to be remarked, that the marginal note shows, that the introductory words to the more distinct opinion, which I have stated, are intended as a citation from Mr. Sergeant Hawkins. Now this is clearly a misapplication, or rather an undue extension of the authority of Hawkins on this point, which relates solely to the power of one justice, where a jurisdiction is given him by a particular statute. It affords, therefore, no foundation for the larger statement, which appears to have been somewhat incautiously made by Mr. Justice Blackstone, as to all offences coming within the jurisdiction of the justices at their sessions; and he himself seems to have so little intended to convey a conclusive or decided opinion on this point, that he immediately adds, in speaking of this very power, that it extends "undoubtedly to all treasons, felonies, and breaches of the peace," and other offences over which a jurisdiction is given by a particular statute; thereby, as have already stated, clearly implying, that, beyond this extent, such a power could not be asserted undoubtedly to exist. Taking, therefore, into view the opinions of Hawkins, Chief Justice Hale, and Blackstone, and recollecting what had passed in that debate, it surely is not without reason, that I have been led to conclude, that magistrates could not hold to bail in any case less than an actual breach of the peace, in which the power was not given them by statute.
§ In support of the conclusion which I have thus drawn from the writings of these great authorities of the law, I would next call the attention of your lordships to a case tried before lord chief justice Holt—the case of Roe, Kendal, and others.* They had been committed by the secretary of state, for assisting sir E. Montgomery, who was in custody for treason, to escape. Their offence, therefore, by the law of England, was treason; yet it was objected, that, even in that case, the secretary of state had no power to commit.
Holt, C. J. "Why should not a secretary of state have power by law to make commitments? Pray what authority has a justice of peace to commit in cases of
* 7th Wm. 3rd. Modern Reports, Vol. v. p. 80.
high treason? It is not given him by any statute; and truly I cannot tell from whence he derives such an authority, unless it be by virtue of the old common law, which doth authorize conservators of the peace to commit in such cases. My lord Coke doth seem to intimate, that a man could not be committed till he was indicted; but certainly that is a mistake, for the constant practice is otherwise."
§ Lord Holt then, my lords, appears in this case to have considered the power of a justice of the peace to commit even for treason, to be derived from the old common law which gave it to conservators of the peace. It gave it to them as conservators of the peace, in cases of actual breach of the peace; and it is accordingly upon that principle, and under that construction of their commission, that the power of committing for treason is said to belong to them, by the writers on this subject. It is because the offence is against the peace, says Hawkins, upon the authority of Dalton and lord Hale, that justices have power to commit in cases of treason, as well as in praemunire and misprision of treason. And, "this opinion," he adds, M seems to be agreeable to constant practice, especially since the statutes of the 1st and 2nd Philip and Mary, cap. 13th, and the 2nd and 3rd Philip and Mary, cap. 10; which, directing justices of peace to proceed in this manner against persons brought before them for felon)', seem to give them a discretionary power of proceeding against persons accused of the above-mentioned offences."
§ Here, then, we see, that this power of the justices, recognized by the statutes of Philip and Mary as to felony and as to felony, only, is, in the opinion of the greatest writers on the law, extended by constant practice, to other crimes, which are considered as offences against the peace. It is upon this principle, that the power of commitment for treason was exercised at the common law by the conservators of the peace. It is upon this principle, that my lord Holt says it must be considered as vested also in the secretary of state. Taking, therefore, the authority of the conservators of the peace, confirmed, as lord Holt says, by constant practice, to be the foundation of this power, we have to inquire, where the instance is to be found of the exercise of such a power by these ancient magistrates in cases of trespass or misdemeanor, not 465 being actual breaches of the peace; or what proof there is of that constant practice, which, according to lord Holt, proves lord Coke's opinion, respecting the power of a justice of peace to commit for felony, before indictment found, to be a mistake?
§ There is another case, in which the same excellent judge delivered an opinion materially bearing upon this important question, to which I also beg to call your lordships attention. It is the case of the Queen against Tracey*.
§ Holt, C. J. "If one be taken by a process from sessions to the sheriff, he must give ball bond, according to the statute of Henry 6th; and wherever one may be taken up by a warrant of one justice, any one justice may bail; formerly, indeed, none could be taken up for a misdemeanor until indictment found; but now the practice over all England is otherwise. And per Hale: 'that practice is become a law, and justices of peace, eo ipso, 'may bind to the peace, and over to sessions, for every breach of peace, before indictment found.'"
Here, then, we have the opinion of Lord Chief Justice Holt, expressed in a manner which can admit of no doubt: the misdemeanours, for which a justice of the peace may commit, are such offences as, according to the practice then established over all England, were subject to that power. With respect to what offences did that practice prevail? I answer, with respect to treason, felony, and breaches of the peace, and no other, except where the power was given by a special statute. The misdemeanours, then, here alluded to, were breaches of the peace; and to show that this, and this only could be the meaning of lord Holt, he proceeds to cite the authority of Hale in support of his opinion, and states, from that great authority, that, "the practice," which he states to be universal, "is become law, and justices of peace, eo ipso, may bind to the peace, and over to sessions, for every breach of peace, before indictment found." Is it in the power of words to express any thing more clearly? And is it not thus demonstrated, first, that lord chief justice Holt expressly confines the opinion here delivered to actual breaches of the peace; and, secondly, that, in citing lord Hale, he understood the au-
* 3rd Anne. Modern Reports, Vol. 6, p. 179.
thority of that great lawyer and judge to confine the power of the magistrates, with respect to offences for which they might commit before indictment found, expressly within the same limit.
§ In another case, which came before the court of King's-bench in the time of chief justice Parker, afterwards lord Macclesfield * (the Queen against Derby) I find, in the judgment delivered by that eminent person, a farther confirmation of the opinion, which I have been en-deavouring to maintain. This, your lordships will recollect, is one of the cases referred to by the law officers of the Crown as establishing the power of arrest and commitment for libel by the secretary of state. In that view I do not mean to contest the inference that is drawn from it, though I shall have to contend, that it affords no precedent for the power now claimed for justices of the peace; but I cite it now to show, with respect to this latter point, that the opinion of my lord Macclesfield coincided with that of the other great authorities, which I have already examined. The defendant in this case had been committed for a libel by the secretary of state. His counsel, in arguing the legality of the commitment, admitted the power of a secretary of state to commit for treason and felony, that point having been decided in the case of Roe and Kendal, but they denied it as to libel; because this was no offence on which commitment might by law be till indictment or presentment. This argument of the counsel, my lords, seems at least to prove, that there could at that time have been no such acknowledged practice as is now insisted upon; and this seems farther confirmed by the answer of the counsel for the prosecution, who do not contend, generally, for the power of committing in cases of libel, but state, in reply to the objection, that a warrant was not a commitment, but only what was necessary to the examination of the person accused; and that he could not now take exception to the commitment, because he had entered into a recognizance to appear."
C. J. Parker. "The defendant cannot be discharged; the warrant is good and legal. Suppose there be an information to a justice of peace that one is a felon; may be not send a warrant to have him come before him? To have him examined as for the benefit of an innocent man," &c
* 10th Anne. Fortescue's Reports, p. 140. (2H)
§ The terms, my lords, in which this judgment is delivered, are remarkable: lord chief justice Parker, asserting the legality of the warrant, says, may not a justice of peace send out his warrant—for what? for libel? No, but for felony. For offences of that description lord chief justice Parker seems to have considered the power of a justice of peace as clear and indisputable; and attributes to the secretary of state a similar power in cases of libel. But the inference would have been stronger, and there can be no doubt that he would so have applied it, if he had supposed that, by law, justices of the peace could issue their warrants for similar offences. There arises, therefore, in my mind, the strongest presumption, that lord chief justice Parker, in asking whether justices of peace had not this power in cases of felony, could not have supposed them to possess it in cases of libel.
§ I come now, my lords, to the celebrated case of Mr. Wilkes: a case heard and decided by one of the greatest judges that ever sat upon the bench—a judge eminent for learning, eminent for ability, eminent for the most unsullied integrity, but eminent, above all, for an affectionate and enlightened attachment to the constitution and liberties of his country, and his zealous and independent support of them at the bar, on the seat of judgment, and in the senate. Your lordships will at once point what I am now saying to the great and venerable name of lord Camden. The case of Mr. Wilkes arose, as your lordships know, upon his commitment for a libel, by the secretary of state. The general power of the secretary of state to commit for libel was not questioned: it was at that time considered as established by the decisions of the court in the cases of Derby and Earbury. But three objections were taken to the warrant. First, That evidence upon oath had not been taken. Secondly, That it was too general. Thirdly, That it was against the privilege of parliament.
§ The two first objections were overruled; but, upon the third, the discharge of Mr. Wilkes was ordered; and lord Camden concludes his judgment with these remarkable words, which I have taken from Mr. Serjeant Wilson's report of that case.*
"We are all of opinion, that a libel is' not a breach of the peace. It tends to
* Howell's State Trials, vol. 19, p. 990.
the breach of the peace, and that is the utmost—1 Lev. 139. But that which only tends to the breach of the peace cannot be a breach of it. Suppose a libel to be a breach of the peace, yet I think it cannot exclude privilege; because I cannot find, that a libeller is bound to find surety of the peace, in any book whatever, nor ever was, in any case, except one, viz. the case of the seven bishops, where three judges said, that surety of the peace was required in the case of a libel. Judge Powel, the only honest man of the four judges, dissented; and I am bold to be of his opinion, and to say, that case is not law. But it shows the miserable condition of the state at that time. Upon the whole, it is absurd to require surety of the peace or bait in the case of a libeller, and therefore Mr. Wilkes must be discharged from his imprisonment."
§ The case of commitment by a justice for libel was not, as I have already stated, before the court; but here, in delivering judgment, a principle is laid down by lord Camden directly applicable to that case; and I ask of your lordships, whether it does not authorize me to add that venerable name to those of the greatest authorities of the law, whose opinions I have before cited, and to conclude, that, whether taken separately or collectively, they constitute as strong a body of authority as can be expected to be found in support of the position, which I now lay down as established by the examination with which I fear I have tired your lordships patience, that for misdemeanours, not being actual breaches of the peace, and for libel, as coming within that description of misdemeanor, justices of the peace, before indictment found, have no power to issue their warrant, to apprehend, or to commit. No distinct authority in favour of such a power is to be found in any of the text writers on the law: on the contrary, I contend, the result of what they have written on this subject, fairly considered, is directly against it. But if there were no such inference to be drawn, if the case rested merely on their silence respecting this point, I should argue, that this alone ought to induce your lordships to pause, at least, before you will recognize the existence of such a power. For surely, my lords, on a point so important to the freedom of the press, so intimately connected with the security and liberty of the people of this country, where the power contended for is necessarily so extensive in its 469 operation, and so dangerous, as I shall show hereafter, in its exercise, it is not to be supposed, that these great and learned persons, whether examining the principles of the law and of the constitution, and applying them to practice, by writings carefully meditated in their closets, or delivering their opinions upon them in the solemn execution of their judicial duties; it cannot, I say, be supposed, that if this, power had been so clear as some contend, that they would not have noticed it, in distinct and unequivocal terms, and strictly defined its origin and its limits. I conclude, therefore, this part of my argument, in the words of lord Camden, in his immortal judgment in the case of Entick against Carrington, "If it is law it will be found in our books: if it is not to be found there, it is not law."
§ I have already stated generally, that if it be true that justices may grant their warrants in any cases where they have jurisdiction at the sessions, they may do it in all such cases; not only for libels of all descriptions, whether dangerous to the safety of the state, or merely injurious to the private reputation of individuals; but for every species of offence which either comes within the letter, or, by allowed construction, within the equity of their commission; for forestallings, regratings, engrossings, and extortions, which are distinctly expressed, as well as for conspiracies, and other similar offences, which, under the received interpretation of the word trespass, are now admitted to be cognizable at the sessions. My lords, I ask, where the exercise of so extensive and, as I shall presently show, so dangerous a power is to be found? Of the affirmative what proof have we? I have looked in vain for it. If it had been recognized in practice, surely some directions for its exercise would have been delivered to us. In Burn we have the manner in which the information shall be taken, and the warrant made out, for felony, under the game laws, and I believe in almost all the cases in which the ordinary exercise of that power has been established by law, or recognized in practice. In conspiracy and libel we have no such forms or directions given us; a strong presumption, at least, that, with respect to these and similar offences, there has been hitherto no such established practice, as must be proved, to give to the partial dicta of lord Hale, and Hawkins, and Blackstone, if they are still to be maintained, the effect, which is 470 contended for. But, my lords, if we have no proof of the affirmative of a proposition, which would give to the justices of peace so tremendous a power, have we none of the negative? To this I beg your lordships particular attention; and, if I can show that, with respect to any one of the offences, which are brought within the jurisdiction of the justices at their sessions, under the general word trespass, as tending to a breach of the peace, and which have been stated by the highest authorities in the law to stand precisely on the same footing, in this respect, with libels— If I say, I can show, with respect to any such offence, that the law denies this power to a justice of the peace out of sessions, before indictment found, then I contend the negative of the proposition, which I am combating, is clearly established.
§ In the case of the king against Rispal,* an indictment had been found, at the sessions, against the defendant and two others for a conspiracy. It was removed by certiorari to the court of King's-bench, The indictment was objected to on two grounds. First, That the justices at their sessions have no jurisdiction over conspiracies, any more than over perjury, usury, and forgery; it being not specified in their commission, nor given them by any special statute. Secondly, that the indictment did not charge them to have conspired to fix any crime on the defendant.
§ Lord Mansfield. "The case lies in a narrow compass. The first question is, whether the justices in sessions have a jurisdiction over conspiracies. No authority has been cited to show that they have, or that they have not. It must therefore be determined on general principles. The cases of perjury, usury, and forgery, stand on their own special grounds; and it has been determined, that the Justices have no jurisdiction there. This offence of a conspiracy is a trespass, and trespasses are indictable at the sessions, though not committed with force and arms. They tend to the breach of the peace as much as cheats or libels, which are established to be within the jurisdiction of the sessions. As, therefore, there is no authority to the contrary, I think the justices had a jurisdiction here."
Your lordships will observe, that the question here is as to the validity of an indictment at the sessions for conspiracy, over which it is contended, that the jus-
* 2d Geo. 3d, Blackstone's Reports, p. 368.
tices have no jurisdiction, as it is not specified in their commission, nor given them by any special statute. This objection lord Mansfield overrules, because, as tending to a breach of the peace, it comes under the word trespass in the commission, and stands precisely on the same footing as libels and cheats. Now, my lords, it is first to be remarked, that, in this judgment of lord Mansfield, nothing more is affirmed, than that offences of this description are cognizable at the sessions: they are stated by him to come within the same general principle. As to conspiracies, as the power even of trying them at the sessions was, at that time, contested, and lord Mansfield states, that no authority, with respect to the jurisdiction of the justices over that offence, had been cited either one way or the other, it is clear, that no practice could exist. In cases of libel, though the jurisdiction at the sessions was then considered as established, I think I have already shown, that no uniform and constant practice can be proved. But, in cheats, a case, according to lord Mansfield, precisely similar to that of libel, there is the clearest evidence, that this pretended power of a justice of the peace, out of sessions, has no foundation either in law or in fact.
§ I need not tell your lordships, that cheats are offences at the common law. They are also made punishable by an express statute, the 33d Hen. 8th, cap. 1, either at the assizes or sessions, by imprisonment, pillory, or other corporal punishment, except death. And "Two justices of the peace may call and convent, by process or otherwise, to the assizes or sessions, any person suspected, or commit or bail him to the next assizes or sessions."
§ Here, then, is the most complete proof, that for the offence of cheats, an offence cognizable at sessions—cognizable as a trespass because tending to a breach of the peace—cognizable as coming within the same general principle as libel—the justices, previous to the 33d Hen. 8th, had no power to commit or bold to bail before indictment; nay, that even now a single justice has not that power, the statute requiring the concurrence of two. Here, then, is an end of the supposed principle, that this power is necessarily to be inferred, where there is a jurisdiction at the sessions, in order to compel an attendance there, because the statute of the 33d Hen. 8th, in the words of lord Hale, 472 would not have been required, particularly and expressly, to authorize its exercise, and define its limits, if it had been otherwise lawful. Thus I trust, your lordships will be of opinion, that a complete answer has been given, first to the general reasoning by which this authority is supported, and, secondly, to its extension to the particular case of libel, because in this case no such power has been given by statute, as in the case of cheats; and may I not conclude, taking the whole of this together, that the authority of lord Mansfield is to be added to the other great authorities, in support of the conclusion, to which I again come, that, for offences less than a breach of the peace, unless given by a special statute, justices have not, before indictment found, any authority to commit or hold to bail?
§ But, my lords, if any thing were wanted to add to the weight of this collective authority, it would be to be found in the extravagant and dangerous consequences to which the opinion of the law officers of the Grown must necessarily lead. Only consider, I beseech you, the enormous extent and dangerous tendency of such a power, if it should really exist. There is hardly a case of daily occurrence, and of the most doubtful construction, in which the interests, the prejudices, the fears, or the passions of the magistrates might be involved, to which it might not be applied. In what I am going to say, I beg I may not be understood as intending to throw the slightest reflection on that highly respectable body of country gentlemen, who act in the commission of the peace. On the contrary, nobody can feel more sensibly than I do all their merits, or acknowledge, more willingly, the immense obligation the public is under to them, for discharging, as most of them do, with great intelligence, industry, and integrity, at the expense of their personal ease and convenience, duties, now become, as difficult and laborious, as they are important. But justices are men—as men liable to all the infirmities of our imperfect nature; and, from their rank and situation in life, exposed to all the temptations of interest, to all the influence of prejudice, to the bias of personal connexion, to the instigations of inconsiderate zeal, to the excitements of passion, and to the love of power. It is upon these grounds and to avoid exposing them to a dangerous conflict between feelings, originating from any of these causes, and their duties, that 473 I have frequently heard, in this and the other House of parliament, objections urged against the extension of the summary jurisdiction and power of magistrates. This principle of salutary caution, not offensive to the honour of any class or description of persons, but necessary for the protection and safety of all classes and descriptions, has usually had its just weight with the legislature, in passing laws relating to subjects of this nature. It is in this sense, and in this sense only, that I wish what I am now saying to be applied; and, to pass over all the other numerous offences, which the establishment of this new practice would subject to the power of justices of the peace. I beg your lordships to consider the danger of its exercise, particularly with respect to libel.
§ In all the varieties of writings, which may constitute that offence, what is more difficult to be decided than the question of their guilt or innocence? What more exposed to the influence of undue motives in its decision? It has been formerly stated, by some of the most eminent persons in the profession of the law, nay, by almost all of them, to be so nice and difficult a question, that it could not be safely left even to a special jury: that they were only to find the fact of publication, and that the criminality of the writing, as a question of law, was exclusively for the decision of the court. This, my lords, was long contended for, and long acted upon as law; till, happily for the freedom of the press, and for the liberty of the country, of which the press is the great palladium, by the perseverance of my noble and learned friend (lord Erskine), near me, and by the exertions of the man, whom, in public life, I most loved and admired (Mr. Fox.), whom I had nearly called one of the greatest lawyers, but who certainly was one of the greatest men this country ever produced, that principle was at length exploded, and, by the libel bill, it was at last established, that, in prosecutions for libel, both the law and the fact were within the province of the jury, and to be decided by them. But, my lords, what avails this just and beneficent statute, what security is there either for the freedom of the press or the liberty of the subject, if, whilst you have imposed this salutary restraint upon the judges, in trials for libel, you give to them, and to justices of the peace, before trial, a right to decide that difficult question, and to commit to prison (in many instances 474 perhaps to inflict a severer punishment than the court upon conviction would adjudge) upon a charge which, after all, may turn out to have had no foundation, but in the false interpretation of words perfectly innocent, by the justice before whom the charge was brought? I cannot, my lords, I will not believe, that you can sanction the exercise of such a power. That it is not law, I think I have already shown; but if it is law, your duty calls upon you to lose no time in altering it. With respect to offences over which this authority is acknowledged, it is ordinarily a simple and intelligible fact, of which the magistrate has to judge; whether a felony has been committed; whether a person accused has been guilty of an assault; whether the peace has actually been broken; whether the provisions of a particular statute have been violated: these are facts, depending upon evidence, of which it is easy to judge, and upon which the interests or feelings of the magistrate are seldom likely to interfere with an impartial discharge of his duty. But upon libel, where the whole guilt or innocence of the offence must depend upon the intention, and must be inferred from the construction and the innuendoes; often difficult for the most impartial and unbiassed person to decide; where the prejudices, interests, or passions of the justice before whom the charge is brought, are so likely to influence his interpretation of the words; where, in political or religious libels more especially, his particular opinions and attachments must unavoidably have so great a sway; in cases of this sort, to place, upon the charge of any common informer, the personal liberty of every writer and publisher on politics, religion, or law, or any other public question, the unfettered discussion of which is of the very essence and principle of a free government, at the discretion of magistrates mixing in all the contests of the time, and partaking, on one side or the other, in all the heats and prejudices, which personal or party interests engender—if such be the power of the magistrates, and if this be the law, where, I ask, are all the boasted securities of our independence and freedom? Look, I once more implore you, at the enormous extent and dangerous tendency of the power now contended for; and with this comment upon all that I have argued from the reports of the decisions of our courts, and the books of cur ablest writers, I say once more such is not, such 475 cannot be the state of the law in this country, hitherto famed for the sure protection which every individual enjoys, against the insidious attempts of private malice, or the open attacks of power.
§ What then remains, my lords? The practice and the precedents, on which (for they have cited no statute, no principle of the common law, no decision of any court, no dictum of any judge, no authority of any text writer) the law officers of the Crown appear to rely. Before I proceed, however, to consider the sort of practice of which your lordships would require evidence to substantiate a point of this nature, or the precedents which have been referred to in support of it, I must shortly notice what is said of the silence of the court, in the case of Mr. Wilkes. There is no decision or opinion of the Court, it is said, that, in a case of libel, a justice of the peace might not apprehend a person, who could not claim the privilege of parliament, and demand bail to be given to answer the charge. This silence of the court might have perhaps been taken as a sort of negative support of the opinion, which I am canvassing, had the commitment of Mr. Wilkes been by a justice of the peace; though this I think would have been much too weak a foundation for the assumption of so arbitrary and dangerous a power. But in the case of Mr. Wilkes no question arose as to the warrant of a justice of the peace. Mr. Wilkes had been committed by the secretary of state. This point therefore was not before the court; and its having passed unnoticed, both by the defendant's counsel and by the court, affords no inference to warrant the conclusion of the law officers of the Crown; unless it can be shown, as I shall prove it cannot, that the authority of a justice of the peace and of the secretary of state stands upon precisely the same principle.
§ In the interpretation of a general act, my lords, where a particular is put for an example, the rule I believe is, that there; must be a perfect resemblance between the things expressed and those implied, as that administrators are the same as executors, and so forth: and in like manner, to argue from the power of the secretary of state in favour of that of the justice of peace, I contend, we must be satisfied that there is the same perfect resemblance of character. But can it be necessary for me to insist, before your lordships, that, instead of this perfect resemblance, there 476 is the most obvious and striking dissimilarity in their character, their functions, and their authority? The secretary of state is a great executive minister of the Crown, responsible for the advice he gives his sovereign, and for his conduct in the performance of the high duties of his office; possessing no judicial authority whatever; but intrusted with certain powers for the security of the government, with the care of which he is specially charged. Considering the character of his office, therefore, there may be many reasons for entrusting the power of committing or holding to bail for libels of a treasonable, or seditious, or blasphemous character to the secretary of state (though I am far from thinking the exercise of such a power, even by him, either safe or necessary), which would not apply to a justice of the peace. Though strongly interested to support the power of the government, he is less exposed to the influence of those motives to which justices of the peace, from mixing in all the common concerns of life, may be liable; or, if exposed to them, he acts under the immediate control of parliament, where any error, or abuse in the exercise of his authority, can seldom escape being severely questioned. To the discretion of this minister, acting by the advice of the law officers of the Crown, and with so high a responsibility, such a power, it might therefore be contended, might be safely and usefully committed, though it would be extremely dangerous to extend it indiscriminately to all justices of the peace. But, my lords, to show how little analogy there is between offices so widely dissimilar, I must trouble your lordships with again reading, from the judgment in the case of Entick against Carrington, the opinion of lord Camden, as to the nature and origin of this extraordinary and anomalous power of the secretary of state to commit or hold to bail for libel; which he admits to have been established by practice, and by the decisions of the courts; though he plainly intimates, that he conceived those decisions to have been erroneous.
"The power * of this minister" (the secretary of state) "is pretty singular. If he is considered in the light of a privy counsellor, he is the only one of that body who exerts it. His power is so extensive in place, that it spreads throughout the
* Howell's State Trials, vol. 19, p. 1045, et seq.
whole realm; yet, in the object, it is so confined, that, except in libels and some few state crimes, as they are called, the secretary of state does not pretend to the authority of a constable. To consider him as a conservator—he never binds to the peace or good behaviour, which seems to have been the principal duty of a conservator; at least he never does it in those cases, where the law requires those sureties. But he commits in certain other cases, where it is very doubtful whether the conservator had any jurisdiction whatever. His warrants are chiefly granted against libellers, whom he binds in the first instance to their good behaviour, which no other conservator ever attempted, from the best intelligence that we can learn from our books. And though he doth all these things, yet it seems agreed, that he hath no power whatever to administer an oath or take bail. This jurisdiction, as extraordinary as I have described it, is so dark and obscure in its origin, that the counsel have not been able to form any certain opinion from whence it sprung. Sometimes they annex it to the office of Secretary of state, sometimes to the quality of privy counsellor, and in the last argument it has been derived from the King's royal prerogative to commit by his own personal command. Whatever may have been the true source of this authority, it must be admitted, that he is, at this day, in the full legal exercise of it; because there has been not only a clear practice of it, at least since the revolution, confirmed by a variety of precedents; but the authority has been recognized and confirmed by two cases in the very point, since that period; and, therefore, we have not a power to unsettle or contradict it now, even though we are persuaded that the commencement of it was erroneous."
§ Lord Camden then enters into a very learned investigation of the origin and foundation of this power, and he concludes this part of his judgment as follows:—
§ "I am persuaded that the secretary of state hath assumed this power, as a transfer, I know not how, of the royal authority to himself; and that the common law of England knows no such magistrate. At the same time I declare, wherein my brothers do aril agree with me, that we are bound to adhere to the determination of the court in the cases of the Queen against Derby, and the King against Earbury; and I have no right to overturn those decisions, even though it should be admitted, 478 that the practice, which has subsisted since the revolution, had been erroneous in its commencement."
§ Here, then, my lords, in this solemn judgment, given after long and diligent consideration and inquiry, we find my lord Camden stating, almost in the words of lord Holt, that he is puzzled to account for the origin of this power in the secretary of state; that it is unknown to the common law; and that it had been assumed as a transfer of the royal authority to commit per mandatum regis: thus putting it on a ground, which is clearly inapplicable to the office of a justice of the peace.
§ Having, then, my lords, as it appears to me, proved undeniably, that the admitted and established practice of the secretary of state has nothing to do with the question, as it relates to these other magistrates, we come at last to consider separately, with respect to them, what practice can be set up for the exercise of this power. The learned persons, who have given the opinion on your table, refer, in support of it, to two cases of recent date, in 1801 and 1802, in which two persons, of the names of Spence and Hogg, were held to bail, the one for a seditious, the other for an indecent libel. In the first of these cases it appears, that, in 1801, a person of the name of Arthur Searle laid an information on oath before Mr. Ford, justice of peace for Middlesex, of his having printed a pamphlet, intituled," The Restorer of Society to its Natural State," for Thomas Spence. That Spence was held to bail for his personal appearance in the King's-bench to answer the charge. That the attorney-general (Law) filed an information against him. That he was called upon his recognizance to appear, and, appearing, was charged with the information, pleaded not guilty, and was afterwards tried, convicted, and sentenced. —The recognizance was filed in the King's Bench, and there are recorded the rule of court stating his appearance and plea, and the entry roll in the King's-bench containing the information, plea, trial, and sentence.
§ The other case, of Hogg, in 1802, is of a similar description. Information upon oath was laid by the direction of the same attorney-general (Law), before the lord mayor, against the defendant, for selling a work called "Trials for Adultery." The lord mayor issued his warrant for Hogg's apprehension: he was apprehended," and 479 held to bail for his appearance in King's-bench. Mr. Perceval, having succeeded as attorney-general, filed his information: Hogg appeared in court, and suffered judgment to go by default.— Having made affidavit that he had stopped the sale of the books, he was not called up for judgment. There is, on record, the recognizance, the affidavit, and the entry roll in the court of King's-bench.
§ These cases, which have been communicated to me by the courtesy of the noble and learned lord on the woolsack, I have stated at length; and I ask, what inference is to be drawn from them? Are two solitary cases, neither of them contested, and in one of which judgment was suffered to go by default, to be pleaded as proofs of such an exercise of the power of apprehending and holding to bail for libel as will establish its practice? My lords, for such a purpose, proofs of a very different practice will be required. Not of a practice depending on two modern instances, but derived from a high antiquity, and sanctioned by the decisions of the courts: a practice, as it is described by lord Mansfield and other legal authorities, communiter usilata et approbata. It is singular, my lords, that even in modern times, and especially at the beginning of the French revolution, when the press teemed with publications, which were represented as being of the most dangerous tendency; when prosecutions were numerous, and the conviction and punishment of the offenders considered of the greatest importance; it is singular, I say, that at that time this practice does not appear to have been discovered. I never heard that Paine, for the Age of Reason, or any other of the persons accused of issuing libels threatening the very foundations of civil society, and attacking the principles of all morality, law, government, and religion, were, before indictment, found or information filed, taken up, or held to bail, or committed. But if such a practice could have been proved, if it could have been traced backwards to the time of the revolution; if it could have been shown, that the most illustrious characters in the law, in conducting state prosecutions, as attornies-general, had successively acted upon it; still I should contend, that the mere acts of the law officers of the Crown (which will always be regarded with a wholesome jealousy by a constitutional parliament) if they had not been objected to, and brought under the view of the judges of the land, 480 by a solemn appeal to their decision, would not constitute such a practice as would justify your lordships in recognizing the legal existence of the power, which is now claimed for the justices of the peace.
§ And here I would remind your lordships of the case of general warrants. What could be more established in practice than these warrants? They had been issued for above a century, without dispute or contest: persons apprehended under them had been held to bail for their appearance before the courts: they had been called and appeared before the courts upon the recognizances thus taken; all the most eminent characters in the law, the same whose authority may now perhaps be pleaded for a no less dangerous practice, had acted as attornies-general during these proceedings; yet my lords, notwithstanding this long course of undisputed and continued practice, when the legality of these warrants came at last to be questioned before the court of King's-bench, all the judges concurred in declaring them to be illegal; and they were afterwards condemned by a resolution of the House of Commons, whereby the people of this country have been protected against the farther exercise of so dangerous a power. I beg your lordships to attend to the words in which the opinions of the court, upon the subject of general warrants, are given;* and you will then see the degree of value that is to be attached to a practice of this description.
§ Lord Mansfield. "It is said, that the usuage has been so; and that many such warrants have issued, since the Revolution down to this time. But a usage, to grow into a law, ought to be a general usager communiter usilata et approbata, and which, after a long continuance, it would be mischievous to overturn."
§ Mr. Justice Wilmot "had no doubt nor ever had upon those warrants: he thought them illegal and void."
§ Mr. Justice Yates and Mr. Justice Aston "had no doubt of their illegality: for no degree of antiquity can give sanction to a mage bad in itself."
Thus, my lords, you see, that a much longer practice, in the case of general warrants, did not induce the court to support their legality. In addition to this authority of the court of King's-bench, I
* Howell's State Trials, Vol. 19, p. 1027.
have also again to quote to you upon this point, the judgment of lord Camden,* in the case of Entick against Carrington, not only to show the opinion of that great judge also as to the sort of usage which would be required to establish a practice of this nature, but to rebut the inference, which may perhaps be drawn from the acquiescence of the court in the cases of Spence and Hogg.
Lord Camden. "I come now to the practice since the Revolution, which has been strongly urged, with emphatical addition, that a usage, tolerated from the æra of liberty, and continued downwards to this time, through the best ages of the constitution, must necessarily have a legal commencement. Now that pretence can have no place in the question made by this plea, because no such practice is there aleged; yet I will permit the defendant, for the present, to borrow a fact from the special verdict, for the sake of giving it an answer. If the practice began then, it began much too late to be law now. If it was more ancient, the Revolution is not to answer for it; and I could have wished, that, upon this occasion, the Revolution had not been considered as the only basis of our liberty. The Revolution restored this constitution to its first principles: it did no more. It did not enlarge the liberty of the subject; but gave it a better security. It neither widened nor contracted the foundation; but repaired, and perhaps added a buttress or two to the fabric: and if any ministers of state have since deviated from the principles at that time recognized, all that I can say is, that, so far from being sanctioned, they are condemned by the Revolution. With respect to the practice itself, if it goes no higher, every lawyer 'wilt tell you, it is much too modern to be evidence of the common law; and if it should be added, that these warrants ought to acquire some strength by the silence of the courts, which have heard them read so often upon returns, without censure or animadversion, I am able to borrow my answer from the court of King's-bench, which lately declared, with great unanimity, in the case of general warrants, that as no objection was taken to them upon the returns, and the matter passed sub silentio, the precedent teas of no weight. I most heartily concur in that opinion; and the
* Howell's State Trials, Vol. 19, p. 1067, et seq.
reason is more pertinent here, because the court had no authority in the present case to determine against the seizure of papers which was not before them; whereas in the other they might, if they had thought fit, have declared the warrant void, and discharged the prisoner, ex officio.—But still it is insisted, that there has been a general submission, and no action brought to try the right. I answer, there has been a sub-mission of guilt and poverty to power and the terror of punishment. But it would be strange doctrine to assert, that all the people of this land are bound to acknowledge that to be universal law, which a few criminal booksellers have been afraid to dispute."
§ Apply the passage, my lords, which I have here cited from this admirable judgment, and which I have had a pleasure in reading at length on account of the sound and constitutional doctrines which it contains, apply it, I say, tot the case before us, and to the plea which is set up of practice, and of the acquiescence of the court. With respect to the first, standing upon this judgment, as upon a rock, I again assert, that if, not the cases of Spence and Hogg, cases only of fourteen or fifteen years standing, but a continued string of uncontested cases from the Revolution downwards could have been produced, they would not have amounted to evidence of a legal practice; the more especially, as during the whole period, from the Revolution to the year 1763, when the warrant against Mr. Wilkes was set aside on the ground of parliamentary privilege, there might be prevailing a general, though certainly an incorrect notion, that libel was to be considered as an actual breach of the peace; the last decision of a court of law, in the case of the seven bishops, having so ruled it. With respect to the second ground, the silence of the court, I answer, with the united authority of the courts of King's-bench and Common Pleas, when two of the greatest judges this country ever produced presided over them, that, "as no objection was taken to them, and the matter passed sub silentio, the precedents are of no weight:" and, that "the submission of guilt and poverty to power and the terror of punishment," as in the cases of Spence and Hogg, in the latter more particularly (who was seeking to avert the penalties to which he was exposed, and succeeded in doing so by stopping the circulation of the libel), is not to be taken for the esta- 483 blishment of a power, unknown to the statute or to the common law, and most dangerous to the freedom of the press, and to the liberties of the people of this country.
§ Surely, my lords, more cannot be necessary upon this point; but, if farther argument is required, it is not wanting; and, if we are still referred to the opinion, "of one of the most learned of the predecessors" of the present attorney-general— and to the learning, ability, and integrity of that noble lord, and to the eminent advantage to the public with which he discharges the duties of the high judicial situation, which he now holds, no man is more ready to bear testimony than I am—to that opinion, and to the acquiescence and silence of the court, I must oppose the opinion of another living authority, equally able and learned, who formerly held the same office; and the concurrence of the whole legislature, evidenced, not by a silent acquiescence, but by the positive enactment of a new law. I allude, my lords, to the act of the 48th of the king, cap. 58, to which the law officers refer as putting the power of the judges, to commit or hold to bail for libel, out of all doubt, and which was proposed to parliament by sir Vicary Gibbs, then attorney-general, and now chief justice of the Common Pleas. Whether the true construction of this act be, as some have supposed, to give the power of commitment, and holding to bail to the judges of the King's-bench, before indictment found or information filed, in consequence of evidence upon oath of the commission of an offence liable to be so proceeded against; or whether, as I contend, it only gives that power, after an information has been actually filed; in either case, it could not have been required, had this power been at that time considered to be so established by practice as to have acquired the force of law. It is clear then, that, in 1808, neither the attorney-general, who brought in the bill, nor the two Houses who passed it, could have contemplated the existence of such a power; for, if it had been possessed by the justices of peace, it is unnecessary for me to contend, that it must also have been vested in the court of King's-bench. Yet this law was much debated in its progress. The learned lords, now present, supported its expediency; and I will not pay them so bad a compliment as to suppose, that an act, which they defended with so much zeal, could be altogether superfluous and unnecessary.484
§ We have, then, my lords, I contend, a degree of cumulative proof, such as is perhaps to be found in no other instance, against the practice which maybe alleged as the foundation of the power, to commit or hold to bail, for libel, by justices of the peace: and if I have proved, that neither the statute law, nor the common law, nor any practice, supported upon a solemn hearing by the decisions of the courts, sanction the exercise of this authority; that no authority of any text writer, fairly considered, no dictum of any judge, can be produced in support of it; I feel some confidence in urging your lordships to the conclusion, to which I have now brought my argument on this part of the question, that the opinion of the law officers of the Crown is not warranted by the law of the land.
§ It remains for me to consider the conduct of the secretary of state, in issuing the Circular Letter of the 27th of March to the lords lieutenants of counties, for the direction of the magistrates in the administration of the law. This appears to me, my lords, a matter involving considerations of the first constitutional importance. I have before stated, that I believe such a proceeding to be without a precedent. I at least have not been able to learn, that any measure of a similar character was ever before hazarded by any minister of the Crown. For, my lords, you will observe, that this is not an instruction to the magistrates as to any of their ministerial duties, or the measures necessary to the support of an active and vigilant police, with respect to which, the secretary of state might be supposed to be charged with a peculiar responsibility, in a season of great public distress and uneasiness. It is not even prudently confined, to a general exhortation to them to exert the powers entrusted to them by the law for the speedy suppression and punishment of such offences as might be dangerous to the public security. For an order from the secretary of state to the chancellor, to give general directions to the judges, and through them to the justices of the peace, with respect to such matters as seemed to require attention, I understand examples in former times may be produced. But surely, my lords, such examples cannot be argued as affording any precedent for a proceeding like the present. To say nothing of the striking difference of such a recommendation through the chancellor the first officer of 485 the law, and the judges of the land, to be delivered solemnly in the face of the public at the assizes; the strong and marked distinction is, that these recommendations, as I understand them, were general. But here, my lords, we have a specific instruction, as to the interpretation of the law on a particular subject; and a direction, as to the manner in which the discretionary power supposed to be vested in the magistrates under that interpretation of the law, should be exercised: and this too on a doubtful point. That he thought it a doubtful point, must be admitted by the secretary of state, or else why did he require the opinion of the law officers of the Crown upon it? That it was considered, even by these learned persons themselves, as not free from doubt, appears from the terms in which their opinion is given. They cite precedents, and state that they agree with the opinion of the attorney-general, by whose advice those precedents were established; but they do not venture to say, that the proposition to which they subscribe has been generally received as acknowledged law, or established by a clear and undisputed practice. And, my lords, if this was a point involved in doubt, by what authority did the noble secretary take upon himself to decide it? Who gave him the right to determine? Who applied to him to do so? And where, I again ask, did he find any precedent for such a proceeding in the execution of his official duties?
§ It is, my lords, amongst the first principles of a free government, that there should be an insurmountable line of separation between the executive and the judicial authorities. That the latter should be kept independent of the former? and hitherto any interference of a minister of the Crown with the administration of justice has been considered as a political offence of so dangerous a tendency to the liberty and security of the subject, that, in other times, it would have called down the indignation of parliament on the head of the offender. I say, my lords, this has been such an interference—a direct interference, not with the ministerial but the judicial duties of the magistrates; by instructing them in what manner they are to administer the law with respect to a particular class of offences; the consequence of which is, to subject to the power of arrest and of imprisonment, if bail cannot be obtained, every author, printer, and publisher, nay perhaps every possessor of 486 any writing, which in their judgment they may deem a libel.
§ Suppose, my lords, such an instruction had been addressed, not to justices of the peace, but to the judges of the land. Is such a supposition impossible? The opinion states the powers of the judges as well as the justices, and might be intended perhaps to teach them also their duties. But such a supposition is not to be treated seriously. Such an interference with the judges, on the part of a minister of the Crown, would not have been tolerated. The nation would have been in a flame. At the power and indignation of parliament would have been roused. The judge, to whom so insulting a mandate should have been addressed, would himself have vindicated his authority; and the messenger, who had ventured to become the bearer of it, would have been committed to prison. I verily believe, my lords, that all this would have happened. Yet, where is the difference in principle? I maintain, that there is none. Let the case be stated. The instruction to the magistrates is, to act upon the opinion given by the law officers of the Crown, in favour of their authority, to commit, or hold to bail, for libel. This, I suppose, will be justified upon the necessity of the case, in order to correct an evil, which is dangerous to the public security. But this exercise of authority, on the part of the magistrates, can be of no avail, unless its legality is supported by the courts of law. A person committed for libel may sue out his Habeas Corpus, and appeal to the decision of of a court of law upon the validity of the warrant under which he is imprisoned. The court, if it should be of opinion, that the warrant was not lawful, would order his discharge; and thus all the provident care of the secretary of state, to secure the government against the attacks of a licentious press, would be defeated. Suppose, then, that to obviate so great a misfortune, he had addressed a similar instruction to the judges, stating the direction that had been sent to the inferior magistrates, and calling upon them to give it efficacy, by acting upon the opinion of the law officers of the Crown, in any case of this sort, that might be brought before them. The supposition is extravagant, absurd, impossible: be it so. But I say it is precisely the same in principle: and I defy any man to show me a jot of distinction between the two cases; or, that 487 such an interference with the judges, which all who hear me will reprobate, is either more improper or more unconstitutional than that which has actually taken place.
§ I contend, therefore, that such a direction to the magistrates, not being a general exhortation to vigilance and care, but a specific instruction as to the way in which they are to construe the law, and to exercise a discretionary power, would have been, even if the law had been clear and undisputed, a high offence against the constitution. That this has been done in a case, in which, to say the least of it, the law is doubtful, is a great aggravation of the offence. For the noble secretary of state has taken upon himself not only to direct the magistrates in the administration of the law, but to enact, or at least to declare the law, which they are called upon to administer; thus accroaching more than royal authority, and usurping the powers of legislature in addition to those of the executive government.
§ The character of this proceeding, therefore, I hold to be most unconstitutional; on its dangerous tendency, and the effects it is likely to produce, already exemplified in two striking instances, I must also trouble your lordships with some observations; though much, of what would apply to this view of the question, has been anticipated in the earlier part of my speech. I have stated to your lordships, in showing the extreme consequences to which the establishment of the authority of justices of the peace, to commit, or hold to bail, for all offences cognizable at their sessions, must necessarily lead, the danger of such an extension of their power: how much it would be exposed to temptations to abuse; how liable to be perverted by the inducements of interest, the intemperance of zeal, the errors of prejudice, the excitements of political hostility, and the instigations of private enmity and resentment! These dangers, my lords, would accrue, even if the magistrates were left to the uninfluenced exercise of such a power. But when they are called upon specially to exert it, in a time of political heat and violence, by a minister of the Crown; when this call is addressed to persons, who are engaged in all the disputes and contests to which the different parties in the state gave occasion; when the subject, on which they are to decide, is one which they will necessarily view through the medium of their different opi- 488 nions and attachments; thus encouraged, exhorted, and instigated to act, under the influence of motives so powerful, in questions so much exposed to error, even when most dispassionately considered, what security, I ask, can there be for any man, who engages in the discussion of public affairs, against the persecutions of power, or the vexations of private malice? To suppose, that, in such a state of things the freedom of the press can long continue, seems to me to be cherishing a hope much more sanguine than can be justified by any knowledge we have obtained, either from the history of other governments, or from our experience in human affairs.
§ But, my lords, it is not only this enormous power of the magistrates that is thus let loose against the freedom of the press, and the security of the subject, but, that most pestilent curse by which society can be afflicted, the whole tribe of common informers, are also called into action, To these a new encouragement and invitation is held out; any thing they may choose to call a libel may henceforth be made the subject of a prosecution, and thus become, in the hands of the worst men, acting from the worst motives, an instrument of pecuniary extortion, or any other base purpose, they may have to serve. On the danger arising from hence to individuals, it is not necessary for me to say more; but let me intreat your lordships to consider the possible, if not the too probable injury to the interests of the state itself; if indeed the interests of the state can, on any sound principle, be considered separately from the general security of those who are entitled to its protection.
§ Hitherto, my lords, prosecutions for libels on the government or religion, have only been directed by the attorney-general and the responsible officers of the Crown. In some cases the legislature itself has acted upon this principle: more especially in the stamp duties: with respect to which, as your lordships know, the right of instituting prosecutions for penalties has, by the 44th of the king, been expressly limited to the attorney-general, the lord advocate of Scotland, or the solicitor or some other officer of the stamps. In this there has been evinced, in my opinion, a wise and wholesome caution, to guard, not only individuals, but the state itself, against the effects of vexatious and ill-advised prosecutions. For I would ask the noble and learned lord on the woolsack, whether, in the discharge of Ills duty as attorney-ge- 489 neral, when he filled that office, he has not often found the expediency, of instituting a prosecution for libel, a question of exceedingly nice discretion? It is not only the political malignity and dangerous character of a libel, but the circumstances of its circulation, and the probability of suppressing it by a conviction, that must also be taken into consideration. Hitherto, therefore, this discretion has been confined to the responsible advisers and officers of the Crown, for the security of its interests, which might otherwise be lightly compromised, and perhaps materially injured. But now all this salutary restraint and caution is at an end. Every thing that malice may represent as a libel, or indiscretion deem so, is to be forced into notice by any common informer. Upon an information so laid, every person, who has been engaged in writing, printing, or in any way publishing a paper of this description, may be dragged before a magistrate as a public criminal, and exposed, in the first instance, to all the horrors of a prison, and the state itself to all the inconveniences (and in many cases they may be of no light consequence) of an ill-advised, and, ultimately perhaps, an unsuccessful prosecution.
§ This consideration therefore, as it affects the interests of the government itself, is of too much importance to be overlooked, though undoubtedly of very inferior moment to the danger to which every individual is exposed, who may venture to publish, on religion or politics, opinions differing from the prevailing tenets either of the church or state.
§ I have said, my lords, that this danger has already been exemplified in two striking instances. I allude to the case, which occurred at Liverpool, of an information against a Mr. Wright, for preaching a blasphemous sermon; and to a case reported by the newspapers, from which my information is derived, to have been brought a few days ago before the court of King's-bench.
In the first, an information was laid against a Mr. Wright for denying the divinity of Jesus Christ: a doctrine, which, however erroneous it may be deemed by us, who are members of the church of England, is maintained by many persons who believe, as firmly as we do, in the christian dispensation; by the whole class of Unitarian christians, amongst whom are to be found many persons of as exemplary life and morals, and of as strict an
adherence to religious duties, as in any other persuasion whatever; a doctrine however, which, whether true or false, has lately by an act of parliament, dictated by the soundest wisdom and justice, been exempted from the penalties to which it was formerly exposed by law. This, therefore, was no crime; and it was found necessary, to give effect to the information, by some more serious charge: and it was asserted, that the preacher had not only impugned the Trinity, and the divinity of Christ, but that he had denied the immortality of the soul, and the belief of reward or punishment in a future state. This was stated by a reverend prelate, the bishop of the diocese in which this proceeding took place, to have been the charge upon which Mr. Wright had been brought before a magistrate at Liverpool, and held to bail for his appearance to answer it. Now, my lords, there cannot be produced a more pregnant instance than this, to show the danger of inviting rash, or interested, or malevolent persons, to bring forward accusations of this nature; and leaving them to be decided on, in the first instance, with the power of committing the party accused to prison, by persons so likely, from the circumstances in which they are placed, to form an erroneous judgment. I have read the sermon, my lords—Mr. Wright, I maintain, had published no blasphemy; had said nothing which by law he may not say with impunity; had not denied a future state of reward or punishment; but simply maintained, that there is no separate or intermediate state of the soul; professing as his religious belief, that the soul expires and is revived with the body, on that day of final account, when we shall all be called upon to answer for our conduct in this life. This, my lords, I say again, may be a belief in which we may not concur, but it is neither impious nor blasphemous. It was the belief of Dr. Priestley, who, whatever the errors of his political or religious opinions might be, was, I believe, a man of as exemplary worth and morals as ever lived. It is the belief, not only of many persons belonging to the sect of Unitarian christians, but even of members of the church of England itself, and has been, as the reverend prelate well knows, explained and defended by a learned bishop,* to whom he will be the last man to deny the
* The late rev. Dr. Law, Bishop of Carlisle.
tribute of esteem and veneration, due to a life of distinguished piety and virtue. Here then, my lords, we have an example, directly in point, of the danger of an accusation, to describe it in the mildest terms, hastily laid, and incautiously decided upon, whereby a respectable man, for preaching a belief which he conscientiously held, and which is perfectly innocent in itself, has been dragged before the public as a criminal guilty of blasphemy; and would have been committed to prison, if he had not been in a situation of life which enabled him to procure bail.
§ The other case, my lords, is of another description; but it exhibits, in a point of view no less striking, the evil consequences to which this proceeding of the secretary of state might, à priori, have been expected to give occasion. A magistrate of the name of Powel had brought before him, upon the accusation of an informer, two persons charged with vending pamphlets, and I believe some other articles, contrary to the provisions of the act respecting hawkers and pedlars; which has also been recommended to the peculiar care of the magistrates, by the noble secretary of state. These persons in vain pleaded, that they had sold their goods on the market day, in open market; that there was a clause of exception in the act, which enabled them to do so; and that they were, therefore, exempted from its penalties. "No," says the magistrate "there is since my lord Sidmouth's Circular, an end of that exception; such publications can no longer be sold at all without a licence;" and he accordingly convicted them, committed them to prison, and issued a warrant to levy the penalties by distress. All this, however, had been done to extort evidence, as it appears, from these men, against a third person, from whom they had received the publications, which they had offered for sale; and having at last succeeded in this the magistrate, again exceeding his power, discharged them from the conviction which had taken place, and proceeded, in a manner no less violent and illegal, to convict the person against whom evidence had thus been extorted, in penalties to the amount of 80l., for which he immediately issued his warrant of distress; and this though it was represented to him, that the person accused had not had time given him to appear in his own defence, and that the magistrate, under the law for recovering penalties for the stamp duties, had no jurisdiction in the case.492
§ This, my lords, is the case, as it has appeared in the newspapers. I trust it may, upon farther hearing, be found to admit of some contradiction or explanation; but it appeared of sufficient weight to the court, to induce them to grant a rule to show cause why a criminal information should not be filed: and, if the facts stated be true, there cannot be exhibited a stronger instance of the imprudence and danger of calling into action all the intemperate zeal and violence by which magistrates may be influenced in a moment like the present.
§ These cases, my lords, and others, to which I will not now refer more particularly, in granting licences for meetings for the discussion of various subjects, have already occurred in consequence of the Circular Letter of the secretary of state, and are to be ascribed directly to it. How many more there may be of a similar nature I know not; but of this we may be assured, that more instances like these will occur, if they are not checked by the seasonable interference of parliament. Proceedings so injurious to the character of the government, so destructive of the spirit of the constitution, and of the free exercise of those privileges which it confers, more particularly of the freedom of the press, I will not dwell upon any longer; but the consequences of the establishment of such a power are so accurately described, in a protest entered upon the Journals of this House,* that I cannot help reading it, as the best summing up that I can make of the dangerous character and injurious effects of the measure, which the noble secretary has been induced to take.
"By this doctrine, every man's liberty, privileged as well as unprivileged, is surrendered into the hands of a secretary of state. He is by this means empowered, in the first instance to pronounce the paper to be a seditious libel; a matter of such difficulty, that some have pretended it is too high to be entrusted to a special jury of the first rank and condition. He is to understand, and decide by himself, the meaning of every innuendo. He is to determine the tendency thereof, and brand it with his own epithets. He is to adjudge the party guilty, and make him author or publisher, as he sees good. And lastly, he is to give sentence by committing the
* November 29, 1763. See New Parl. Hist. Vol. 15, p. 1371.
party. All these authorities are given to one single magistrate, unassisted by counsel, evidence, or jury, in a case where the law says no action will lie against him, because he acts in the capacity of a judge."
§ This protest, my lords, appears, in your Journals, to have been entered upon the resolution, which, in consequence of the decision of the court of Common Pleas in the case of Mr. Wilkes, had been voted by this and the other House of Parliament, "That privilege of parliament does not extend to the case of writing and publishing seditious libels," &c. It is signed by seventeen peers, at the head of which stands the name of Earl Temple. The danger attending the exercise of such a power, even by the secretary of state, is here most eloquently and unanswerably stated: but if it could have been foreseen, that the same power was to be given to every justice of the peace; and that not to the secretary of state alone, but to every inferior magistrate throughout the kingdom, "every man's liberty, privileged as well as unprivileged, was to be surrendered," in how much more forcible and glowing terms, if more forcible and glowing terms could have been found, would they have described such an extension of an authority, absolutely incompatible with the principles of a free constitution.
§ I have now, my lords, brought to a conclusion this long argument upon a case, which seems to me, as much as any that have ever occurred within my memory, to call for the prompt and effectual interference of parliament. If it should still be contended, in opposition to all that I have stated, that the protection of the state, against the machinations of sedition or treason, requires the existence of such a power; my answer is, that, in the best periods of our history, when the practice of the constitution was the purest; nay, in times when the state has been exposed to the greatest difficulties both from within and from without; it has been protected against all the dangers that assailed it, by the native energies of its government, and by the spirit and attachment of a free people. But this authority is now acknowledged to be established in the secretary of state; and with the tremendous power of the attorney-general in filing ex officio informations, and in keeping them suspended over the heads of his victims (powers at which guilt may well tremble, and from which even innocence cannot escape without severe suffering), I ask of 494 your lordships whether any reasonable apprehension is to be entertained of a deficiency of means in the government to repel the immediate dangers, which may arise from inflammatory libels, in a moment of popular uneasiness; or to defeat any more gradual and insidious attempts to corrupt the morals, or alienate the affections of the people?
§ Upon the whole, then, my lords, whatever view I take of this question, whether as it regards the law, the principles of the constitution, the character of the offence, or the security of the state, I come to the same conclusion; that it is unnecessary, that it is inexpedient, that it is dangerous in the highest degree to give, in the proceedings against libel, so extraordinary a power, hitherto unknown in practice, to be exercised indiscriminately by all justices of the peace throughout the kingdom. In the investigation of this subject, I can assure your lordships, that I have spared no pains before I ventured to pronounce so strong an opinion. I have had recourse to all the best sources of information within my reach, both of dead and living authority; and, after a careful and diligent inquiry, I present myself to you this night, with the strongest conviction of the soundness of the principles which I have asserted. Had I consulted my personal ease, indeed, and considered only the ungrateful character of the task I have thus imposed upon myself, knowing how little my opposition to any measure of the ministers of the Crown is likely to avail I should have remained silent. But I could not sit still and see so dangerous a blow aimed at the freedom of the press and the principles of the constitution, without employing such means as are in my power, however hopeless of success, to avert it.
§ If any thing, my lords, could add to the importance of the question itself, it would be to be found in the character of the times, and in the situation of the country. We have been induced, in concurrence with the other branches of the legislature, to suspend, with respect to political offences, the operation of a law, which forms the chief bulwark of the constitution. We have also passed other laws, materially abridging and restraining the facility of petitioning, and the privileges of free discussion. Even those, who are the most impressed with the necessity of making these new provisions for the security of the government, by the ex- 495 tension of its powers, will, I am sure, admit, that it is an evil much and deeply to be lamented. But, my lords, if new laws of this description are to be enacted—if, when enacted, they are to be construed to the utmost strictness of their letter, and executed with the most unrelenting severity; and if, at the same time, interpretations of the old law are to be adopted, and a new practice introduced, still farther controlling popular rights and privileges, and rendering their exercise difficult and dangerous, what, I ask, is to be the end? More especially, if this spirit in our legislation is accompanied with other circumstances, operating directly and powerfully in the same direction—if a great change has taken place in our principles, in our policy, in our tastes, in our habits, and in our manners—if we are become a military and a warlike, from a maritime and pacific people—if, whilst we are increasing the civil powers of the Crown by law, we are also maintaining an army disproportioned to our population, incompatible with an effective support of our naval superiority, and destructive of the character of a free government—what, my lords, must be the inevitable tendency of such a system? Its termination cannot be doubtful: one of two things must unavoidably happen; either that this free constitution, the glorious work of a thousand years, must, though its forms may still survive, decline, by no slow degrees, into a military despotism; or that—I will not describe the alternative; but it would be scarcely less dreadful.
§ To avert such extremities will require the utmost care, the utmost vigilance, the utmost wisdom of parliament. The people have borne, with a most exemplary patience, sufferings which I wish I could feel the confidence, which some express, in believing to be merely temporary. To what farther privations we may be called upon to submit I know not; but every thing I hear and see forbids me to speak of our present prospects as encouraging. With a declining revenue, we labour under the pressure of a taxation which I hold it to be impossible to increase; but any effectual and early relief from which I fear is difficult. Our best hope of surmounting the evils which surround us must be found in the patience and fortitude of the people, supported and strengthened by a high-minded consciousness of their rights as freemen. Beware, my lords, how you weaken in them this sentiment, 496 the true source of your security and power; how you deprive them of the confidence, so necessary to be cherished and improved, that by parliament, whose peculiar duty it is to protect them, their interests will not be neglected.
§ It is, my lords, by the irresistible impression of these feelings, and by a sense of duty superior to all other considerations, that I have felt myself impelled to bring this matter before you. Your acquiescence in the motion, which I am about to propose, will pledge you to nothing beyond a farther and more mature consideration of a most important constitutional question; and, if I did not fear being taxed with presumption, I would ask whether to this extent at least, I have not made out a case, which your lordships ought not at once to dismiss as altogether unworthy of your attention? That no adverse feelings may influence your decision, I have abstained, as much as possible, from the introduction of any topics that might excite them. It has been my endeavour to keep out of view all subjects connected with the interests and opinions of party; and if, inadvertently, any thing tending that way should have escaped me, I intreat your lordships to consider it as unsaid, and to banish it from your recollection. I have had no object, and no desire, but to pursue this question, in the sincere spirit of truth, to a just and legitimate conclusion. My wish is, that your lordships should consider it as having been brought before you in the exercise of your judicial rather than your political functions; as requiring the same dispassionate attention, the same grave deliberation and inquiry, the same disinterested and impartial decision. You are indeed sitting in judgment on the rights and liberties of your fellow subjects; and I earnestly pray, that they may sustain no farther injury from the proceeding of this night. I move, my lords,
§ "That the Case submitted to the law officers of the Crown, &c. be laid before this House."
§ Lord Ellenborough
said, he had listened with the utmost attention to the very able and elaborate speech of the noble earl—a speech which evidently demonstrated that the noble earl had bestowed great pains in considering this important question in all its bearings, and certainly he had argued it in a manner that reflected the highest honour upon him. He was by no means convinced, however, from any of the au- 497 thorities which the noble earl had cited, or by any of the arguments which he had grounded upon them, that the law was different from what he had always considered it to be; namely, that justices of the peace can arrest and hold to bail in cases of libel. In offering his opinion to their lordships on this great constitutional question, he would follow the example of the noble earl, in calling to his support some of the gravest and most venerable authorities that had ever adorned the seat of justice, or discharged the duties which every man owed to his profession, by publishing the result of his laborious researches, and most mature and unbiassed opinions. In the first place, then, lord Hale, in his very excellent work, intituled Pleas of the Crown, declares, "that justices of the peace may issue their warrants, within the precincts of their commission, for apprehending persons charged with crimes within the cognizance of the sessions of the peace, and bind them over to appear at the sessions."* Their lordships would be pleased to attend to these words—"within the cognizance of the sessions of the peace." The question was, then, does a libel come within the cognizance of the sessions of the peace? It would be endless to enumerate all the authorities that might be cited, in order to show the extensive jurisdiction that was given to magistrates, as conservators of the peace; but several of those authorities specifically mentioned a libel as within their cognizance. The doctrine, therefore, of lord Hale attached upon it, as coming within those cases in which they have power to commit.—He should next refer to the very same authority quoted by the noble earl. It would be found by a reference to Hawkins' Pleas of the Crown, that "any justice of the peace may commit in cases of treason, felony, or præmunire, or any other offence against the peace;"† although in another place, as the noble earl justly observes, he states, that "a justice of the peace cannot well be too tender in his proceedings of this kind;" which words, however, expressly showed, that they could hold to bail for a libel, as a high misdemeanor, whatever tenderness the learned writer recommended them to adopt in such cases. The fact really was, and so it had been uniformly considered, that libel was an indictable offence at the quarter sessions,*1 Hale's Pleas of the Crown, 579.† 2 Hawkins' Pleas of the Crown, 84.498 and magistrates had always exercised the practice of commitment in such cases. The noble earl had relied on a great authority, and great it undoubtedly was, though he was by no means prepared to rely on all the opinions of that very distinguished character, the late lord Camden. But what had that eminent lawyer said with respect to libels? He had been made to declare, that as to the offence of a libel, it was a high misdemeanor; and if so, should not the party be bound over to answer for it? And what could be more just, or necessary? My lords, suppose for a moment, that you should stand upon so miserable and decrepid a state, that publications of a most inflammatory nature are scattered over every part of the country, and you have no power to call the mischievous authors to immediate account: suppose that, in this season of imminent danger to the morals and loyalty of the people, it happens to be the long vacation, and that no proceedings can be had in the court of King's-bench, or at the quarter sessions of the peace,—would not this be a perfect suspension of all energetic faculties on the part of the state? If this were, indeed, the law and practice of the country, your lordships would not be justified in adjourning, even for a day, without passing some law on this subject to protect both the government and the people against the dangerous and wicked attacks of seditious libellers. Nothing, however, is more common; and I need only appeal to those who know any thing of the practice of the court of King's-bench, that, on, the last day of term, motions are constantly made, that persons may be continued on their recognizances, many of which are given for libels. The noble earl seemed to think that recognizances never attracted the attention of the court; but this was not correct. In the case of Hogg, the defendant was personally to appear in the court of King's-bench on a certain day, then and there to answer to all such matters and things as should be brought against him, and so on from day to day; so that he was from day to day considered in attendance. At the period of the Revolution, when, no doubt, the noble earl and all their lordships must admit that liberty was established in this country on a more sure and solid foundation than had been known for centuries before; at that auspicious moment he declared, that sureties for the peace were given in cases of libel. He had then in 499 his hand a list of a series of recognizances that had been entered into during the office of every attorney-general from the reign of William and Mary to the present reign. [Here earl Grey asked across the table, "Before indictment found or information filed?"] Yes, said lord Ellenborough, before indictment found or information filed. He would mention the names of some of the most eminent persons who had filled the office of attorney-general during that period. They were Northey, Lechmere, Raymond, sir Dudley Ryder; but, in fact, the practice was followed in the time of every attorney-general down to the present year. Could any body say, then, that this practice was not founded on law? Would any body state, that it had been only introduced in very recent times by attorney-generals, who were hostile to the liberties of the people? My lord Camden said in his speeches, two or three times, that a libel was a high offence; and he never said that it was such an offence as a party might not be answerable for. For his own part, he had not the smallest doubt, nor had he ever heard any thing suggested By any person of the least authority, during the whole course of his practice at the bar, or since he had had the honour of a seat on the bench, that the authority of a magistrate to hold to bail did not extend to cases of libel. If the authority of Hale, of Hawkins, of Camden, and of Coke were to be relied on, they all spoke expressly and explicitly on the subject; and if the practice from the revolution down to the present day were not sufficient to establish this point, there could be no safe guide for any man in the exercise of his judicial or legal duties. He wished no person to be screened from delinquency, neither did he desire (God forbid!) that any one should be improperly harassed or teased; but, upon the fullest consideration of the subject—and he begged to assure their lordships that he had paid the utmost attention to it—he was decidedly of opinion, that justices of the peace had power to hold to bail in cases of libel.
§ Lord Erskine
said, that in looking into his own mind, he could be quite sure his understanding was not betrayed by his wishes on the subject before the House. For the noble secretary of slate he had a high personal regard, and the two gentlemen from whose opinions he had collected the law which was the foundation of his letter, had been his companions 500 and friends from the beginning of his professional life—one of them being now called to the bench could no longer be consulted; and although upon the present occasion he differed from the other, yet he was happy to say that the Crown could not in general have a safer adviser, as he was a sound lawyer, and a truly honest man; but none of these considerations could give even the slightest bias to his conduct to-night, when the public interests were in question. No one in the world could feel a greater abhorrence of the blasphemous publications which were principally pointed at by the letter. He had fully proved that disposition when he advised the prosecution of Paine's Age of Reason, and afterwards convicted the publisher in the court of King's-bench. At that early period of the French revolution, when religion and order being trampled under foot, infidelity and anarchy walked hand in hand together, this country was in a manner overwhelmed with blasphemous and seditious publications. The Old Bailey and other courts had hardly time to try them, and he desired to remind his majesty's ministers that their universal existence and extensive circulation were the only foundations of the special commissions under which the state prisoners in 1794 were charged with a traitorous conspiracy to assume all the functions of government, and to overthrow it by rebellious force. At the same period, and upon the same assumption, the Habeas Corpus was suspended, yet not one warrant, that he at least remembered, or ever heard of, was even then issued by any of the magistrates throughout the country, to hold to bail the most open and boastful libellers, until after indictments had been found against them. At the same period still, and during a long time afterwards, he had himself been counsel to a Society for the Suppression of Vice; the object of which was to drive out of the reach of youth and innocence publications of a far more dangerous and corrupting character; and he could assure their lordships, that if he had then thought the law authorized the arrest of their authors or publishers, he most unquestionably would have advised and acted upon it, because it was in general so difficult to secure them, that recourse was often had to the disguise of purchasers; their shops being seldom open to ordinary traffic. He had convicted many of such offenders, but in no one instance that he could re- 501 member had ever directed an arrest until after an indictment found; although libels of that description required no legal knowledge to ascertain their pernicious effects. He admitted that escapes from justice might occasionally be the consequence of that cautious reserve in striking at offenders, but far more dangerous evils would universally follow, if they could be struck at without the clearest authority of the common law, or the positive direction of statutes. At that entrance an assault might be made upon all the securities which are the characteristics of our constitution.—Lord E. then said, that he had prepared himself to enter fully upon the legal argument, but it would now be pedantry to do so, as the most able and convincing speech of his noble friend behind him had received no answer. No man could have a higher respect for the talents and learning of his noble friend at the head of the court of King's-bench, where he had long presided with so much advantage to the public; but his noble friend had rested his opposition to the doctrines of earl Grey, upon his own great authority only; he had not entered into argument by way of answer to it, nor cited any authorities except a few arrests in London by attorney-general, in very modern times, en the validity of which the court had never pronounced any opinion, nor had its attention been called to the subject; and if those few instances had been known and considered as the understood and settled law, how was it possible that so learned a person in the House of Commons should have brought in the 48th of the king, which gave to the judges of the court of King's-bench, and to them only, and not even to them till after information filed, a power of arrest which notoriously belonged before to every magistrate in England. When that enabling bill for such judges only came up here, it was opposed and debated; it is true that the noble chief justice did then say, as to-night, that it was an unnecessary statute, but no authorities (as I remember) were then cited; and I can most positively assure the House that my own opposition to it rested upon my believing it to be a power quite new;—and I can further safely say, that during the whole time I practised at the bar, I never had the least idea that it was competent to a common justice of the peace to arrest before indictment for a libel. With regard to the more ancient 502 law, I shall leave it altogether upon the unanswerable argument of my noble friend, and shall only say that it appears to me, lord Hale, in the cases mentioned, was speaking only of felonies, which could not comprehend libels, and that until long after his lime the courts of quarter sessions could not at least have been in the practice of holding jurisdiction over them, because, even in Pitt's case, as stated in Hawkins' Pleas of the Crown, which was many years after the death of lord Hale, a motion was made in the court of King's-bench to quash an indictment for a libel, upon the sole ground that it was found only at sessions.—Lord E. said, he would not lead the House into technical reasoning, but he might ask any lawyer, whether, if the jurisdiction of the sessions over libels had ever at that time been settled, such a motion would probably have been made, or if made, could possibly have drawn such an answer from so high and so learned a court;—would any court, indeed, have talked of a demurrer upon a question of notorious jurisdiction?—Lord E. now said he would detain the House no longer, but he prayed them to remember that the libel act was a dead letter, if this was held to be law, and that there was an end to the liberty of the press if any common justice of the peace might overhaul collections of books in any shop or library throughout the kingdom, and upon his own authority pronounce the sellers or possessors to be criminal, and send them by his warrants to prison. He believed such a power never existed, nor if it did, could long continue.
The Lord Chancellor
observed, that after hearing the most able speech of the noble mover, he had no difficulty in declaring, that the noble earl had argued the case with such ability as held him in some degree of check, while, at the same time, he said that he could not agree with him. In delivering his own opinion on this great question, he desired to enter his most solemn protest against being bound to hold to that opinion, except for that night. His reason for saying this was, that many of the subjects of this country had been held to bail for libels; and if they had been unjustly arrested, they might bring their actions against the individuals who had so held them to bail; and, therefore, he could not think it would be fit for any noble lord in that House to suppose, that any opinion he 503 (lord Eldon) might give that night should conclude him, if he heard any parties reargue at that bar, on a writ of error, that they ought not to have been so held to bail. He had been upwards of forty years in the profession, and it was his duty to give his opinion; but if it was an erroneous opinion, he was bound to retract it. The present motion went to the production of the case submitted to the law officers of the Crown, on which he should say only a very few words, not out of disrespect to the noble earl, but because it would not be necessary, in his view of the subject, to detain their lordships long on that head. Nothing would have induced him to give his consent to the production of the opinion of the law-officers of the Crown, knowing the mischief that frequently attended the production of such documents, if the noble secretary of State had not made that opinion part of his letter. The opinions stated three propositions: that the secretary of state may commit, that a justice of the peace may commit, and that a judge generally may commit; by which must be under-Stood the judges who are mentioned in the 48th Geo. 3d. With respect to the present attorney-general, the noble earl had not spoken half enough of him; he could not, indeed, say too much in his praise, for a more able man did not exist. His objection, however, to produce the case was this; that it was hardly possible, on any such occasion, that some particulars should not be stated by the ministers of the Crown which it would be highly improper and inconvenient to disclose. In the year 1794 a proclamation was issued, requiring the magistrates to take notice of the numerous libellous publications which were industriously circulated at that period. He had never felt any difficulty in stating the principles upon which his conduct, as attorney-general, had been founded. It never had been his disposition to regard the case of an ordinary libel on the government of the country with any peculiar jealousy or vigilance: but when he saw that a system existed, the object of which was, by means of these libellous publications, to overthrew the government, he was satisfied that it was an evil which required to be suppressed with a strong hand. This was the state of things in the years 1793 and 1794. A design was pursued of subverting all the constituted authorities and establishments, civil and ecclesiastical, and 504 of destroying those morals without which there could be neither social happiness nor political security. It had been decided, again and again, that a blasphemous publication was a seditious libel. Neither could he consider it extraordinary, that the opinions of the law-officers of the Crown had been referred to; and he would ask with the utmost amity and good humour, whether his noble friend who spoke last, would not feel his own opinion confirmed on any question by the concurrence of such eminent lawyers as sir Samuel Romilly and sir Arthur Piggot? He must however again protest, that he would not be concluded by the legal doctrine which he maintained that night, if any subject of his majesty should think proper to discuss the point at the bar of that House in a writ of error. He only stated the present impressions of his mind on this occasion; he had spent the greater portion of his life in a court of equity, and was, therefore, but partially conversant with criminal matters. When he found, however, that Mr. Northey, lord Hardwicke, Mr. Justice Willes, sir Dudley Ryder, and lord Mansfield, had all, in the office of attorney-general, proceeded upon these warrants, and had sanctioned similar proceedings afterwards in their judicial characters in the court of King's-bench, the presumption, at least, must be, that such a practice was perfectly legal. The power was vested, not to be exercised for the oppression, but for the protection of society. The authority of Hale and Hawkins was, he should contend, in favour of the existence of the power, although some passages might be cited from which it might be possible to draw a contrary inference. The authority of Mr. Justice Blackstone was appealed to, but it was not on all questions of legal difficulty that noble lords were content to abide by the doctrines maintained in his work. That work reflected infinite credit on its author, but it was estimable as an exhibition of diligence rather than as a great law authority. Upon the subject of what the practice had been, he found that in Trinity term, in the third year of George 1st, the recognizance of Thomas Kinnersley, who was held to bail by a magistrate on a charge of libel, had been returned into the court of King's-bench, and a criminal information was filed against him. In the next year a similar proceeding took place against a person named Vaughan, who 505 was prosecuted for a blasphemous publication. In the 7th and 9th of George 1st, and in the 7th of George 2d, the like cases occurred. Under every attorney-general who had held the office, persons had been arrested for this offence, not upon warrants to seize their papers, or to enter into recognizances for their good behaviour, but to give bail for answering the charge. When he heard the opinion of lord Camden cited, respectable as it was, it could not be supposed to outweigh that of all the other judges. He denied that there was any principle in the judgment in Wilkes's case, which contradicted the legality of the power now under consideration. Lord Camden felt himself bound by the precedent of the case of the Queen against Derby, and the King against Earbury, and argued, that if the secretary of state exercised such a power, it must à fortiori belong to a justice of the peace to compel the individual charged with an offence to be forthcoming to answer to the charge. They were not now discussing what the law ought to be, but what it actually was. He had taken a considerable share in certain transactions connected with these subjects; he was now in the decline of life, and he declared that he should feel deep regret in his retirement, if he could think that the measures which he had deemed it his duty to advise or support, had trenched upon the just liberties of the country: but, on the contrary, he believed sincerely that they had been essential to the preservation of a constitution, under which more practical liberty and happiness was enjoyed by the subject than any other under the canopy of heaven. He believed that they had been indispensable, with a view to perpetuate those blessings which there were not wanting some who had it in contemplation, and had vainly attempted, to wrest from us [Hear!].
in endeavouring to follow the noble and learned lord, was desirous of stating at once the spirit and view which influenced him in supporting the motion of his noble friend. His immediate object was to obtain facther information on the subject. Those who thought that the opinions promulgated in the noble viscount's Circular Letter were sound law, and that circumstances were such as to call on the noble viscount to communicate them to the magistrates in so unusual a mode, and to take from them the discretion which in any state of the law was be- 506 fore vested in them, of enforcing and applying it, might conscientiously vote against the production of any additional documents; but those who, on the contrary, entertained strong doubts as to the legal doctrine, as well as to the expediency of promulgating it, must agree, that a farther inquiry was desirable. He could not be supposed to possess sufficient knowledge to engage in a legal argument with the noble and learned lords; but he did not deem it necessary to go very far into that question, after the uncontradicted and unanswered reasoning of his noble friend. He believed an abler legal argument never had been delivered either at the bar or from the bench. The noble and learned lord on the woolsack had read a list of distinguished names of attornies-general, who had exercised and sanctioned this power by their practice. It had never been asserted, that the single authority of lord Camden was to overbalance the unanimous opinions of other judges and law-officers, although it would undoubtedly bear a comparison with that of any other name, however distinguished: and his opinion given judicially from the bench, was, he conceived, of greater weight than the practice of all the attornies-general that ever lived. The principles of ship money and general warrants had been maintained by attornies-general, and it would be difficult to discover one practice, however pernicious in itself, or inconsistent with the liberties of the country, that had not been defended to the last by the law-officers of the Crown. It was not enough, therefore, on a disputed question of law, to adduce the opinions of the attorney and solicitor-general. Doubts of this nature could not be properly decided, except by a reference to the great text writers, or by distinct proof of long and established usage. He knew there was a disposition, both in and out of the House, to regard lord Camden as standing apart from all other judges; and to think, that as his noble descendant bad, with singular disinterestedness, surrendered what had been bestowed on lord Camden as the reward of his public services, we might also safely surrender the principles and opinions which he had so ably and honourably maintained. In that elaborate judgment which he had pronounced after a solemn hearing in the well-known case which had been alluded to, it was distinctly laid down, that the power of a secretary of state and of a justice of the peace to hold 507 to bail were not convertible terms. There had not been one decision in favour of the power to commit on a charge of libel by the conservators of the peace at the common law. If, then, a magistrate had such an authority at the present day, from whom did he derive it? He regarded justices of the peace as creatures of the statute law; and where was the statute which invested them with any power of this description? He might be told that this argument would prove too much, for that their power to commit on charges of felony, or breach of the peace, depended altogether upon usage: but it was too much to say, that the offence of libel could be included under those general denominations; nor were the same reasons applicable to the practice. In the former case it was uniform, constant, and uncontrolled. To the twenty or forty cases cited by the noble and learned lord, as decisive of the legal question, he would oppose the Circular Letter itself of the noble viscount, as ample proof of the uncertainty of the law; because, otherwise, such a letter would have been unnecessary. When the proclamation was issued in the year 1793 why had not this point been clearly explained? The mode, however, then adopted, of calling the attention of magistrates to the subject was much less objectionable in a constitutional view. He held the issuing of that letter to be itself a misdemeanor, for which, if it were not for his privilege, the noble lord might himself have been held to bail. The principle of the law was not that a single justice should exercise the same jurisdiction in all cases as the justices assembled in their sessions. Lord Hale's doubt on the question was founded upon the circumstance, that in practice a capias was not the first process, but a venire facias and distringas. In none of the cases allued to had the legal point been contended; and with respect to the argument of danger to the country from the non-existence of such an authority, did not the old constitutional proceeding by indictment furnish any security against the commission of offences? The practice of committing at all previous to indictment was not one of very great antiquity. He could conceive no mischief at the worst, except that a libeller might possibly remain at large for two or three months before trial: but Jet the House look at the consequences the other way, and reflect how long an innocent man 508 might be detained in prison. In the north of England this might be for a period of ten months. The noble viscount had introduced French and foreign law into the country: he had taken away the discretion of the magistrate; and whilst Mr. sergeant Hawkins treated this power as one that ought to be tenderly used, the noble viscount was for extending its application to all eases in every part of the country. This was a case which demanded investigation; it was not only an unconstitutional proceeding in its remote tendencies, but was immediately calculated to disturb the harmony and endanger the security of the country. He had heard that one magistrate had already declared, that in case of his exceeding his authority, government would certainly indemnify him. All this imposed a grievous responsibility on the noble viscount which he hoped he would one day feel. Should the noble and learned chief justice of the King's-bench, when acting on his oath as a judge, correct the opinion which he had that day expressed, and government should be placed in the cruel dilemma of seeing magistrates, for having acted in obedience to their injunctions, incurring heavy penalties, and applying to them for indemnity, he could not imagine, if the noble viscount had the feelings of a man, a more painful and distressing situation, unless he should be disposed to go one step farther, and trample on all law and justice. He had occasionally approved of the noble viscount's measures when at the head of affairs in this country, although he thought his administration generally founded on a principle of intolerance. He had felt gratitude to him for the peace he had negociated, and for the good humour with which he had let down the harsh and domineering character assumed by the preceding government. The affairs of Europe were now, indeed greatly changed; but he trusted the noble viscount would not relinquish his other title to the esteem of the country, and to the approbation of posterity. He believed that a distrust and jealousy of the people was not natural to his temper, but he had of late assumed an attitude of menace, and done more to curtail the liberties of the country in the last three months, than he had done all his life before to defend them. Nothing could be more short-lived than a system of propagating false alarms, in order to undermine the securities of freedom. He thought the letter in question a strong evidence, 509 and a serious part of that system; and must therefore, on these grounds, give his vote in support of the motion of his noble friend.
considering that the main object of the debate had been already obtained by the legal opinions which had been elicited, should think himself inexcusable were he to attempt to strengthen the arguments already adduced by the highest authorities, by any observations of his own. When he had the satisfaction of hearing it proclaimed in that House, that the measure which he had thought it his duty to adopt was conformable to the opinion of the highest legal authority in the country (the lord chancellor), and of the lord chief justice of the kingdom—when he found that it was conformable to the opinions of the greatest text-writers on the law, and also to the recorded practice of all the most eminent law servants of the Crown, both before and after they had attained the highest judicial situations—he felt it would be presumptuous in him to attempt to add any weight to this mass of dead and living authorities; but though he did not think it necessary to detain their lordships with any remarks on this point of discussion, yet there was another point on which he should think it a matter of great self-reproach, if he could not vindicate himself to their lordships. It seemed that he stood before their lordships charged with having used his best endeavours to stop the progress of blasphemy and sedition. To that charge he pleaded guilty; and while he lived he should be proud to have such a charge brought against him. In that report which was laid before the House at the beginning of the session, a report which had been attacked but not shaken, notice was taken of the unremitting activity which had been employed throughout the kingdom in circulating, to an unprecedented extent, at the lowest prices, or gratuitously, publications of the most seditious and inflammatory nature, marked with a peculiar character of irreligion and blasphemy; and tending not only to overturn the existing form of government and order of society, but to root out those principles upon which alone any government or any society can be supported. When he concurred in that statement, he knew it to be truth; but what he then knew, hp had since seen confirmed with ten times the force. He knew that efforts unparalleled had been made to carry into 510 every village and cottage in the manufacturing districts the poison of these seditious and blasphemous doctrines. He had himself seen the effects of these pernicious doctrines on some of these misguided men; and had heard from some of them, while under examination, the free confession, that it was the influence of this poison that had taken them away from their regular duties: that up to the time of their being assailed with these publications, they had been industrious and well-affected members of society; but that they and hundreds of their unfortunate neighbours, had been corrupted by the insidious principles disseminated by these itinerant hawkers of seditions and blasphemy. Never was there a period when blasphemy was so completely enlisted in the service of sedition. A greater number of persons could read now, than at any former period; they were better informed; they were collected more in large bodies, especially in manufacturing towns; there were also, he was sorry to say, more ale-houses. Besides, these publications were very cheap, almost gratuitous; and the seditious and blasphemous dealers in them were itinerant, in order to disseminate their mischievous wares more widely. Such being the case, the magistrates became alarmed, and applied to him for instructions. In consequence of such application, he asked the opinion of the law officers of the Crown, as to the best method of checking the progress of this dreadful evil. Perhaps, the noble earl would say that he ought not to have taken any such opinion; but the House would, he trusted, think differently. The noble earl would say, that the proceeding should have been by indictment; but let the House, before it sanctioned such a proposition, consider what the state of the country was, and still is. What had been the answer of some of these itinerant venders of poison, when they were told that their traffic was illegal? They said, "We know that we are acting illegally, but you cannot touch us till the quarter sessions." In the mean time they could go on in their shameful trade, adding offence to offence, and with increased momentum propagate the mischief up to the very moment of trial; and then, perhaps, abscond into another quarter. All this, however, he was aware, could not make that law which was not law before; but it showed the necessity of vigorous measures for 511 protecting the public peace and safety. He was ready to avow all that he had done, and would take upon himself all responsibility for his acts, be the consequences what they might. He felt conscious that he had endeavoured to serve his country, and he was happy to know that his efforts had not been unsuccessful.
The Bishop of Chester
said, he had never given any opinion as to the propriety or impropriety of the conduct of the magistrates towards Mr. Wright, but had merely related what he had heard—namely, that he had impugned a fundamental doctrine of Christianity.*
§ Earl Grey
begged leave to detain the House with a few observations. First, as to what had fallen from the rev. prelate, he had never stated the case otherwise than as it was now stated by him. He had merely drawn an argument from it as to the difficulty which must occur in deciding what is and what is not libel; and had inferred, from the representation made by the rev. prelate, that prejudice, passion, habit, interest, might occasionally influence the decision of the magistrates, when it appeared that a man had been held to bail for opinions not only common to Unitarian Christians, but even to distinguished prelates, as the rev. prelate well knew. He trusted that he should be acquitted of any even unintentional misrepresentation. He now resumed the
§ *Lord Sidmouth having, on the 20th of April, laid the Circular Letter on the table of the House of Lords, lord Holland took occasion to observe, that "since the passing of the Seditious Meeting act, a person had been molested for preaching in a chapel or meeting-house, such doctrines as persons of his religious persuasion thought it their duty to teach, and which they had been permitted to teach for 30, or 40, or 50 years past. This transaction had taken place at Liverpool. It might, indeed, be said, that it would probably have happened though this circular letter had never been published: yet the person to whom he alluded had been held to bail; and this at least warranted a strong suspicion that the circular in question was the cause of the proceeding. He did not mean to say that the noble secretary, or any of the persons concerned, were to blame; but it was a matter of very great importance that the subject should be discussed; and that, in order to bring before the House the requisite information for512
§ main subject of discussion. If he felt a strong opinion on bringing forward his motion—if, after a long investigation, he had arrived at a conviction of the correctness of his views, that opinion and that conviction had been in no degree shaken by what he had heard that night. When he came down to the House, he felt of course considerable distrust as to the correctness of his opinions, knowing that he was to be opposed by the highest legal authorities; but having listened to the noble and learned lords with the utmost attention, and with a sincere desire of conviction, he must say that all that fell from them rather strengthened than weakened ins own opinions; for he had never in his life heard any thing more jejune and unsatisfactory than the arguments of those learned lords. He called for law, and they gave him authority; be called for deliberate discussion, and they had given him bare assertions. They had served him as Falstaff was served, who asked for six yards of satin, and was called upon for security. Here the noble earl restated the principal grounds of his legal argument, and insisted that the authorities of Hale, Holt, and Hawkins, had not been in the slightest degree shaken by the noble and learned lords. The opinion of lord Holt, indeed, one of the most important, had been totally unnoticed. It was curious that all these authorities which
§ that discussion, the case and opinion should be laid on the table. The person who had been molested in the manner he had stated was an unitarian preacher, Mr. Wright, of Liverpool." In reply to which, the bishop of Chester (Dr. Law) observed, that "it was not in consequence of preaching Unitarian doctrines that Mr. Wright had met with any interruption or molestation. He had been charged on oath, by a most respectable gentleman, a merchant of Liverpool, with having preached, that the notion of the immortality of the soul was a mere delusion, and that the idea of a future state was an absurdity. This was the reason that Mr. Wright had been proceeded with in the manner mentioned by the noble lord."—Lord Holland replied, that the doctrines mentioned by the right reverend prelate were such as one would scarcely have expected to hear from a pulpit: but it was not to the doctrines that he referred, but to the manner in which the individual had been proceeded with."513
made for his argument, had been assumed by the noble and learned lords as making for them; and one of them had even asked, with a sort of sneer, whether the opinions of such grave and venerable men were to be set aside by modern lawyers of ten or fifteen years standing? The persons whom he had consulted were not tyros in their profession, but men of long established and tried reputation; nor could he understand the sarcasm of the noble and learned lord, unless it had a covert allusion to the new solicitor-general, who had been promoted to his office after a shorter experience in his profession than any man before him. The learned lord had quoted a great many cases of persons held to bail, and had asked, with an air of triumph, were not these precedents of the legality of such proceedings? The learned lords cases went for nothing. Were his cases of recognizance sanctioned by the practice of attornies-general, so were general warrants. Were they defended in parliament, so were general warrants. Was it not known that secretaries of state and attornies-general had declared general warrants to be legal? And yet, when they came before a court of law, they were by the judges unanimously declared to be illegal. So in this case he would say, they ought not to abide by the opinions of the legal servants of the Crown; but they ought to look to the solemn decisions of judges delivered in court after deliberate discussion. Such decisions he had produced in favour of his argument, while nothing but vague assertion had been produced on the other side. And here he must protest against quoting as decisive authority the opinions of the paid officers of the Crown. He meant no disrespect in using that term, he used it merely to describe that situation which should make their opinions be regarded with a constitutional suspicion.—He now came to the speech of the noble secretary of state, who, with a tone of great self satisfaction, had taken to himself the credit of stopping the progress of blasphemy and sedition. He supposed that the noble lords on his (lord Grey's) side of the House were as little friendly to blasphemy and sedition as the noble viscount; but the question was, whether the noble viscount had not overstepped the bounds of law, and endangered the constitution which he talked of saving? As to the report on which he grounded his measure, and which he pre-
tended had been unshaken, it was well known that that report had been impeached in some of its most material facts, and had been contradicted by the petitions of highly respectable persons. As to the falibility of the evidence on which the noble viscount had too much trusted, he would refer him to the proceeding at the Norwich sessions, where Mr. Steward Alderson having, in consequence of lord Sid-mouth's Circular, desired the grand jury to pay particular attention to houses used for the purposes of seditious meetings, the grand jury had unanimously reported, that to the best of their knowledge, no such meetings had been held.—The noble earl then, in reference to an observation of the lord Chancellor, observed, that the alarm and danger in 1794 were certainly greater, than now; for then the doctrines of the Age of Reason were in full vogue, were supported by persons of some eminence, and were countenanced by the progress of the French revolution. The noble viscount, indeed, had given a strange reason for his belief of the increase of danger. He said, that the danger was greater, because more people read and were better informed than formerly. What! did he mean to say that the Christian religion stood on such infirm ground, that it apprehended an increase of danger from an increase of knowledge? He was astonished to hear such a doctrine. Nor was the opinion of the learned lord more correct when he compared those general directions given on occasions of emergency to magistrates with the official interference of the noble viscount. To what would this doctrine lead? Would the noble doctor now that he had taken a new diploma in law proceed from instructing the magistrates to instructing the judges of the land? The noble lord looked alarmed at such a supposition, and yet such a course was equally justifiable with the other. There was not a jot of difference in principle, though there probably would be in the result; for he could easily conceive the indignation with which the lord chief justice of the King's-bench would receive such a letter of directions from the noble viscount, notwithstanding his present argument in favour of its legality. The slow process of the law, as it had been termed, had not on former occasions been found injurious to the state. There was a sufficient power at present to check dangerous libels effectually by the attorney-general's ex-officio informations; which had been used severely enough, and
which he could keep suspended over the heads of persons, without bringing them fairly to trial, and in many cases, not acted upon. But in the present matter, where had slept the vigilance of the attorney-general all the time of the danger? The noble lord had spoken of some man apprehended, who had ascribed all his errors to the publications complained of; but he looked at this description of evidence with suspicion. It was the declaration of a man placed at the mercy of the government, and who might hope to gain favour by making it. But the noble lord seemed to think that the evil originated in November. If these great evils commenced then, why was so much time lost by the attorney-general, or those who directed him, in the official informations, or other proceedings? How happened it that the circulation of the mischief was so long permitted? This appeared to be an extraordinary omission. With respect to blasphemous parodies, he thought, in common with others, that such productions should be restrained; but by the ordinary course of justice. But this disposition to profane parodies had been used for certain purposes on former occasions; and improper and profane as they were, they were pretended by some to be made in support of religion. This was pretty well shown in the publication called the Anti-Jacobin, which contained a parody of this description, and which he would take the opportunity of reading to their lordships:—
Couriers and Stars, sedition's evening host,
Thou Morning Chronicle and Morning Post,
Whether ye make the Rights of man your theme,
Your country libel, and your God blaspheme,
Or dirt on private worth and virtue throw,
Still blasphemous or blackguard, praise Le-paux!
And ye five other wandering bards that move
In sweet accord of harmony and love,
Coleridge, and Southey, Lloyd, and Lamb, and Co.
Tune all your mystic harps to praise Lepaux!
Priestley and Wakefield, humble, holy men,
Give praises to his name with tongue and pen!
Thelwall, and ye that lecture as ye go,
And, for your pains, get pelted, praise Lepaux!
Praise him, each Jacobin, or fool, or knave,
And your cropped heads in sign of worship wave!
All creeping creatures, venomous and low,
Paine, Williams, Godwin, Holcroft, praise Le-paux!
And every other beast after this kind.
And thou, Leviathan! on ocean's brim
Hugest of living things, that sleep and swim;
Thou, in whose nose, by Burke's gigantic hand,
The hook was fix'd to drag thee to the land,
With—,—,and—in thy train,
And—wallowing in the yeasty main,
Still as ye snort, and puff, and spout, and blow,
In puffing and in spouting, praise Lepaux!
Now, it appeared that a Mr. Hone was proceeded against for publishing some blasphemous parody; but he had read one of the same nature, written, printed, and published, some years ago by other people, without any notice having been officially taken of it. He wished to learn what the distinction was that was to be made respecting such productions by the government and the attorney-general. If a publisher was now to be proceeded against for such publications, as insulting religion and undermining the safety of the state, he trusted that the authors of the Anti-Jacobin, whether they were in the cabinet or in any other place, would also be found out, and visited with the penalties of the law. On the whole, he was satisfied with the view he had taken of the subject; and should certainly take the sense of their lordships on the question.
§ The House divided:
|Majority against the motion||56|