§ Order of the Day for the Second Reading, read,
The Earl of Radnor
said, he would endeavour to state shortly to their Lordships why he called upon them to agree to the second reading of this Bill which he now rose to move. The object of the Bill was to regulate that practice, which to the surprise of the public had become notorious last year—he alluded to the practice at the Post Office of opening letters under warrant of the Secretary of State. Whatever opinion their Lordships might entertain as to the propriety of the mode which he had suggested for the proper and due regulation of this practice, they would, he was sure, agree with him in the opinion that the matter was at present in a very unsatisfactory state. Nobody knew what the law upon the subject was. Committees of both Houses had been appointed during the last Session to examine into the matter. With respect to the law of the case, neither Committee had given much information; but the Committee of the House of Commons suggested that the matter should be left on its present footing in point of law. But nobody exactly knew what was that footing in point 1034 of law. He had heard it stated that this right of detaining and opening letters was a power vested in the Crown by virtue of its prerogative; and he had read that it had been stated in another place, that by ancient prerogative the Crown was able to detain and open letters. With respect to the Royal Prerogative, he never knew that the power to detain and open the letters of individuals formed a part of it. He had never read in any text book that it was part of the prerogative of the Crown to detain and open letters; and if he was not greatly mistaken, it was impossible that it should be so, because the prerogative of the Crown was founded on prescription; and in order to be so founded, it must go back to a period, upon prescription, beyond which "the memory of man runneth to the contrary," viz., the beginning of the reign of Richard I. Now, the very practice of carrying letters by the institution now known as the Post Office, was not introduced into this country until an infinitely later period than this. No doubt the practice complained of had been the practice since the institution of the Post Office; but that did not stamp it with the legal authority derived from prescription. It was never recognised in a court of law. Its being an undisputed practice seemed to give it the sanction of some authority; but it never was easy to dispute it, because it had always been carried on behind the backs of parties, and without the knowledge of those interested. The fact, therefore, that the right had not been disputed, or that it had never been called into question, gave but very little force to the right. He could not help remarking upon the immorality of the practice. The Legislature should be particularly guarded in making any enactments which might involve an immorality; and if it overlooked this practice, it would be guilty of overlooking a gross immorality. In the first place it was a gross betrayal of confidence. The people of this country were forbidden under a penalty to send their letters by any other conveyance than the post. The Government thus compelled the public to entrust their letters into its hands; and then assumed the right to detain these letters and to take possession of the secrets which they contained. And did the Government not commit a gross act of immorality by the mode in which it attempted to conceal its acts? 1035 Did it not, for this purpose, forge seals—did it not falsify stamps? The fact was, that this whole matter had been discovered and made public by a foreign gentleman—Mr. Mazzini, who had very ingeniously discovered that the letters he received had their seals forged and their stamps falsified. They were referred to the responsibility of the Secretary of State. But it was, in his judgment, a perfect farce to speak of the responsibility of the Home Office in exculpation of these practices. It turned out, upon inquiry, that it had at all times since the establishment of the Post Office been the practice of Secretaries of State to detain and open letters; and it was discovered, last summer, that letter carriers too—whether following the example of their betters or not, he knew not—opened letters entrusted to them, and made use of the information which they contained, to make great sums by betting on races. And what had been done with these delinquents? They had been merely dismissed from their situations; and though, by the Post Office Act, they had been guilty of a misdemeanor, they had never been brought to trial, but were merely dismissed. It was impossible to say that the power existed by prescription, or was part of the prerogative of the Crown. The question then was, whether the Post Office Acts conferred the power claimed. The principal Acts were those of the 9th Anne, and of the 1st of her present Majesty; and the words of both were pretty much the same. [The noble Lord then read the clause of both Acts, prohibiting all persons, under a penalty, from detaining and opening letters passing through the Post Office, except authorized so to do by warrant from the Lord Lieutenant in Ireland, or from one of Her Majesty's principal Secretaries of State in England.] It was inferred that these Acts gave the right to the Lord Lieutenant in Ireland, and to the Secretary of State in England, to issue warrants for detaining and opening letters. He thought, however, that every one conversant with these Acts would see that they gave no such right whatever. He admitted that it seemed to assume that such a power existed in the Secretary of State and the Lord Lieutenant of Ireland, and indemnified the clerks at the Post Office and the Postmaster General from any consequences, if they obeyed the warrants of the Secretary of State or the 1036 Lord Lieutenant. But that was a very different thing from giving the authority claimed to the Secretary of State: and if he derived his authority from no other source, he (Lord Radnor) apprehended that he had no authority whatever; and if by any means the question was brought into a court of law, the court would assuredly say that there was no authority to issue such warrants. There was a case which must be familiar to many noble Lords who acted as magistrates — he meant the provision under the Act of George II., for indemnifying constables for arresting persons under an illegal warrant, under certain circumstances, and throwing the responsibility upon the magistrate by whom the warrant was issued. He had some experience of that enactment; for an action was pending against him for having, in conjunction with another magistrate, issued a warrant, which it was contended was illegal. That case was exactly analogous to those which the words of this Act contemplated. It indemnified the party acting under the warrant, but conferred no power to issue the warrant. The noble Earl then read passages from the Reports of the Committees of that and the other House of Parliament, which he said were drawn up in a see-saw and contradictory manner; and contended that those Reports assigned no sufficient ground for the continuance of the power in question, and left it quite vague and uncertain whether it conduced to any useful end or not. The Report of the Lords' Committee, indeed, said that the power might be more useful in case of war than in the present time of peace; but that, he submitted, was a very bad reason for retaining it in time of peace, as there could be no difficulty, on a prospect of war arising, in passing an Act to revive the power. The Report gave in lists of the warrants issued for opening letters within two periods, the one extending from 1712 to 1798, and the other comprising the subsequent interval down to 1844. In the former period of 87 years only 101 warrants were issued; but in the latter 44 years the number was 372, the proportion being 1¼ per annum in the one case, but having increased to 8 per annum in the other; it was true that the other was stated to be imperfect, and only to extend so far as an account could be made up. Only two of these, it appeared, related to matters of treason or sedition, and all the 1037 others were criminal warrants. That reduced the number of warrants connected with treason or sedition to 2 per annum in the 45 years, as stated in the Lords' Report. Whether it was necessary for the safety of the country or not to retain such a power, when it was exercised in two cases in the twelve months, it was for their Lordships to decide. He had thought, in the first instance, that it would be better to abolish the power altogether; but on subsequent consideration, and conversation with others, it appeared to be more expedient to regulate the mode of exercising it. That was the object of the Bill of which he now moved the second reading; and if their Lordships agreed with him in the principle of the measure, it would be in their power to make whatever alterations they thought necessary in Committee. The noble Earl moved that the Bill be now read a second time.
said, it was with great regret he felt himself compelled by a sense of public duty, on the part of the Government, to give a decided opposition to the second reading of the Bill proposed by the noble Earl. He felt all the advantage which the noble Earl derived from appealing, in a matter of this kind, to the high and honourable feeling of those who, like their Lordships, would shrink from sanctioning in public life that which they would deem dishonourable in private; but he must say that he should have felt his own task more difficult, and should have considered the noble Earl's appeal to their Lordships' personal honour better founded, if he had followed up the argument with which he set out; and, on the ground of the immorality and the dishonourable nature of the practice which he condemned, and after satisfying them that there was no State necessity which could justify the exercise of this power under any circumstances, had proceeded, not to modify or regulate, but to abolish altogether a power which, according to the noble Earl's view, ought not to be sanctioned in public any more than in private life. And he was fortified in his resistance to this Bill by the declaration of the noble Earl, that, instead of adhering to his first impression, and following out his principles by the clear and intelligible course of proposing the abolition of the practice, subsequent reflection and conversation with others had satisfied him that State necessity, the safety of the realm, and the due administration of justice, demanded that, 1038 however dishonourable the practice in private life might be considered, it should yet be retained as a State engine; and that it was rather for the good of the realm that the Secretary of State should be subjected to the odium and obloquy which might be cast upon him for exercising the power, than the State should be deprived of a powerful instrument for attaining the ends of justice, and maintaining the interests, and preserving the security and peace of the country. If the two alternatives now proposed were the only alternatives—the alternative of accepting this Bill, by which the practice was to be retained and regulated in the manner in which the noble Earl undertook to do, or of abolishing it altogether, he should not hesitate for an instant; but should say—"In the name of everything that is just, as well as everything that is wise and prudent, abolish the practice if you will—renounce, repudiate the immorality of the practice; but do not retain the immorality and the odium attaching to the exercise of the power, and yet introduce such provisions as, while you continue all that is odious and objectionable in principle, shall render the power altogether unavailable in practice." That, perhaps, was not what the noble Earl proposed; but that was what the Bill would do, if their Lordships sanctioned this measure. The noble Earl proposed two objects. He proposed, in the first place, to define the law, and prescribe the conditions under which the Secretary of State should issue his warrant for opening letters; and, as the second object, he proposed such alterations in the law imposed as restrictions upon the exercise of the power. But when the noble Earl attempted to define the law, it would be found upon perusal of his Bill that he left it quite as undefined and uncertain as he found it; and when he proceeded to place restrictions upon the practice, the restrictions were of such a nature as to render it wholly useless. Fortunately, they could now approach the consideration of this question free from any political or party feelings. On former occasions, it might have been a question whether this or that Government had strained the law, or whether the powers which they possessed had been properly exercised, or had been stretched to an exorbitant extent; but no such question was raised at present. Their Lordships had now to consider, not whether there ought to be vested in the Secretaries of State a power of opening letters—for it 1039 was admitted by the noble Earl that State necessity required that such a power must exist under certain circumstances — but their Lordships were called upon to decide in what way, and by what practicable mode, they should regulate the discretion of the Secretary of State in doing so. He was not about to enter upon the discussion; indeed, he should feel himself incompetent, in the presence of so many noble and learned Lords, to discuss the origin of that power vested in the Secretary of State. He did not say that this power was a portion of the prerogative; but this he would say, that the Act of Anne was not the Act which gave the Secretary of State this power, or any power at all. That was a restraining Statute, which, for the first time, imposed a penalty upon an act which previously, whether done by order of the Secretary of State, or in any other way, was liable to no penalty whatever: it made it a misdemeanor to open or detain a letter passing through the Post Office, except under a warrant of the Secretary of State. Previous to that Act, no criminal proceeding could be taken against a person, whether connected with the Post Office or the Government, or not, for detaining or opening a letter which came into his hands in that way. The noble Earl had stated—but, at the same time, he thought somewhat in the see-saw manner with which he charged the Reports of the Committee—that this practice of the Secretary of State had increased of late years; but he went to contradict the certainty of that statement by saying he inferred so from the fact, which he frankly owned, that formerly no records had been kept of the number of letters that had been opened in this way, and that subsequently a very inaccurate record had been kept of them. That statement rested entirely upon the supposition of the noble Earl himself. And now as to the definition of the law by this Bill. He had read, and very attentively considered, the second section of this Bill. If there was one point upon which he should expect that the noble Earl, professing to define the law and to regulate the conditions under which the Secretary of State should issue his warrant, would be clear and explicit, he should have thought he would have provided expressly whether there should be a general warrant for opening all the letters of an individual — directed to one party — or whether there should be a special warrant in the case of each particular letter. And 1040 yet he found no such provision in the Bill upon so important and doubtful a question. On a former occasion there was an opinion expressed by a noble and learned Lord in that House (Lord Campbell) that general warrants were illegal, and that a special warrant was necessary for opening every letter. That opinion was ably controverted by his noble and learned Friend on the Woolsack, and his noble and learned Friend (Lord Brougham) who sat near him. It was also ably, and in his mind conclusively, controverted by the Lord Chief Justice (Lord Denman), although he regretted that subsequent consideration led that noble and learned Lord to qualify that opinion. But the value of the noble and learned Lord's first declaration was, in his estimation, that the definition of the law then given by him, rested not upon any technical construction of the words of the Act of Parliament, but was pronounced in opposition to the opinion of the noble and learned Lord at the Table (Lord Campbell), upon the rationale of the thing, the common sense, the necessity of the case, and the practical absurdity involved in the contrary interpretation of the law. And, although the noble and learned Lord, as he had said, subsequently qualified his opinion, he trusted their Lordships would permit him to read his words. He said—As to the construction to be put upon the provision cited, he was of opinion that the construction stated by his noble and learned Friend who spoke last (that was the noble and learned Lord on the Woolsack) was the right one; for he could not see how the Post Office authorities, when directed by the Secretary of State to detect the treasonable correspondence of A. B. could do so, unless they opened all his letters. It was obviously quite impossible for him, as his hon. and learned Friend said, to know which particular letter of A. B.'s perhaps multitudinous correspondence occurring next Monday contained the objectionable matter unless they opened all of them."*That was a most useful and valuable opinion on the part of so high an authority, and which nothing that had since passed had altered in his (Lord Stanley's) mind. If it was necessary to retain this power—and e confesso it was necessary, for the Bill of the noble Earl did not propose to abolish it—the noble and learned Lord admitted that if the power was to be retained, and the Secretary of State was to exercise it, to issue separate warrants would be impracticable, and general warrants, directed to* Hansard (Third Series), lxxv. p. 980.1041 one individual, were necessary for the exercise of the power, and consequently, as he (Lord Stanley) submitted, incidental to the power itself. The mode in which the noble and learned Chief Justice qualified his former statement was, in his (Lord Stanley's) judgment, a corroboration of his previous opinion, and an additional argument in favour of the necessity of adhering to that doctrine; for what did the noble and learned Lord say? It had been shown to demonstration that special warrants would be utterly impracticable in these days, whatever might have been the case in former times, when letters were counted by scores instead of millions, and were carried to their destination in weeks, not hours—when it was really an event in a man's life when he was going to write a letter, and a greater still when he was going to send to London—when his servant was called upon to prepare for a long and dangerous journey from the north to the south—when the letter was sewed up in the flaps of the saddle—and when the messenger, God willing, got from York to London in fourteen days. Then it might have been practicable to send up word to the Secretary of State, that, on a certain day in a certain week, there would arrive a letter which had been sent off the morning before, or was to be sent the morning after, from York; that it would be carried by a servant wearing a particular livery, riding a horse of a certain colour, and caparisoned in a particular manner; nothing could be so easy then as to stop the horse, open the flap of the saddle, and take out the letter. But he contended that however a special warrant might be available at the time and under the circumstances which he had described, when the circumstances were altogether changed, the argument would no longer apply, and the less so considering the immense number of letters and rapidity with which they were conveyed in the present day. The Lord Chief Justice, however, said, "Yes; but circumstances might occur by which such information could be gained." Now, he prayed their Lordships to look at the difficulty into which the noble and learned Lord, with his well-known love of liberty, was driven, to prove that a special warrant might be made available. He said, "Under a system of espionage a spy could write to the Secretary of State, that such a particular letter might be expected to reach Portsmouth on a particular day and in a particular hand." Under a system of espionage! Mark the words. 1042 Having admitted the necessity that the power should exist, and that special warrants were impracticable, on consideration the noble and learned Lord discovered that there was a mode in which they might be made available. Surround persons with spies, and under a system of espionage practical objects might be accomplished. Were their Lordships prepared to sanction this principle? Would they permit the opening of the correspondence of persons whose letters the Secretary of State, acting upon his responsibility, was convinced contained dangerous matter; or would they, in order to avoid general warrants, revert to a system which was exploded in this country, that of employing spies to worm out the secrets of those whom they wished to entrap, and to enable those spies, with a previous knowledge that a letter would be written—and it was not uncharitable to suppose with a determination that a letter should be written on a certain day—to give information to the Secretary of State for the most mercenary purposes? That was the alternative offered by the noble and learned Chief Justice. Now, this question of special or general warrants was one which, in a Bill professing to define the power, he should have expected to find occupying a prominent place; and yet, from the beginning to the end of the noble Earl's Bill, he was unable to discover whether it was his intention that a special or general warrant should be required to be issued by the Secretary of State. Look at the 2nd Clause of the Bill. And here he must say, he did not assent to the noble Earl's doctrine, that if their Lordships were of opinion that that practice should be regulated, although they disapproved of the mode in which that was attempted to be done in the Bill, still they should sanction the Bill and alter every word of it in the Committee. The question was, whether it was practicable to preserve the power in principle, and to provide by Statute against its abuse in practice. If that was the proposition, and if their Lordships found it impracticable, he protested against the doctrine, that their Lordships should sanction the principle of a Bill, every word of which they were to reject in Committee. With all possible respect for the noble Earl, he should be glad to be informed what was the meaning of the clause which professed to define the power of the Secretary of State to open letters. It said:—In case credible information should be 1043 given to any of Her Majesty's Secretaries of State, that the safety of Her Majesty's person or Government, or the peace and security of the Realm, require that any letters in the Post Office should be detained or opened, it shall be lawful for such Secretary of State to issue his warrant to the Postmaster General, requiring him to detain and open such letters.He was at a loss to know what the noble Earl meant by this provision; and, observe, this was the provision which was to make the law certain, clear, and definite. Who was to judge of the credibility of the information? Undoubtedly the Secretary of State. But the information was not to be information of any facts. It was to be information that it was necessary for the safety of Her Majesty's person or Government, or the peace and security of the realm, that certain letters should be opened. If it were said that there should be information of certain facts, which, if true, would render it necessary in the judgment of the Secretary of State to open letters, that would be an intelligible proposition; but the Bill left the whole judgment as to the credibility of the information and the exigency of the case where it was—with the Secretary of State. [The Earl of Radnor: That can be altered in Committee.] He could not agree in the doctrine, that the safety of Her Majesty's person or Government, or the peace and security of the realm, were the only circumstances which rendered it necessary or expedient that this power should be exercised. The noble Earl altogether excluded the great majority of the cases in which this power was applied, namely, for the detection and punishment of crime, which was not unimportant to the welfare of the country, although not connected with the safety of Her Majesty's person or Government. If a knowledge of the concealment of a murderer for whose apprehension a warrant was out, the discovery of the course taken by a forger, or the haunts of a notorious offender, who had escaped from the hands of justice, were to be obtained, the power now exercised by the Secretary of State of opening the correspondence with persons with whom the criminal was known to be in constant communication — perhaps the accomplice of his crime—might enable the administrators of the law to discover the criminal; and yet the noble Earl omitted these cases, Which were four-fifths or three-fourths of the whole number in which warrants were issued by the Secretary of State. Again, 1044 what did the noble Earl mean by the peace and security of the realm? Did he mean internal peace, or did he refer to the danger of our being involved in war by the machinations of those who, abusing the facilities which they enjoyed in this country, engaged in designs and practices which might expose us to the risk of hostilities and war with foreign countries. A great deal had been said of the rights of hospitality, and God forbid it should be infringed! but while this country was a place of refuge to all political offenders, while it was an asylum for all those who were banished from their own countries for political offences, while we had no Alien Act, and while no man, however dangerous, could be sent out of the country, it was reasonable that we should not afford to such persons, by means of the Post Office, a free, safe, and easy mode of disturbing, with perfect impunity, the peace and tranquillity of countries with which we are in alliance, and thus involving us in the danger of foreign war. He said that if this power was to be given, the law ought to be defined in the first instance; but the Act did not define it, but left it uncertain; and he should now proceed to show clearly, and he hoped incontrovertibly, that when the noble Earl undertook to regulate the power, and where his provisions were intelligible, they frustrated the whole efficacy of the power. The Secretary of State was directed to proceed only upon information in writing. Now, he could conceive cases in which information might be conveyed to the Secretary of State in a mode which did not require to be reduced to the shape of a formal information—[The Earl of Radnor was understood to say, that it was not required that the information should be in writing.] He repeated that it must be in writing, and subscribed with the name of the informant. He must suppose that the noble Earl had not read his own Bill, since he fell into such an error. Not only must the information be in writing, but it must, as he had signified, be signed with the name of the informer; and if, within a given time, no steps were taken upon the information so given, the name was to be handed over to the person referred to in such information, in order to enable him to institute any action against the informer. The noble Earl seemed to have so completely forgotten the whole scope of the Bill, that he was not aware the information must be in writing. There might be 1045 cases in which it would be extremely difficult to give such a description as the noble Earl's Bill would require of a letter and its contents; and in which it might be absolutely necessary that the Secretary of State should issue his warrant directing such a letter to be opened. Their Lordships had, without doubt, not forgotten the state of the northern and manufacturing districts of this country in the year 1842. At that time there existed a most extensive organization for the purpose of producing a simultaneous movement, the object of which was to effect a display of the physical force of the country at one hundred different parts of the kingdom together, in such a manner, and at once so formidable and dangerous, that no concentration of the military and police force could be rendered effectual to prevent that display, or resist that simultaneous movement, the object of which was to compel, at one and the same time, to abstain from all labour, and thus at once to throw the country into confusion. There could exist no doubt in the mind of any rational person that, whereas Parliament had been prorogued before that state of things had occurred, a serious responsibility was imposed upon the Government, and that they would have neglected their duty if they had refused to avail themselves of the powers which they possessed of opening the letters directed to those at the head of that conspiracy, in order to ascertain and detect their plans, and thus disappoint their expectations by preventing the fulfilment of the evil design which they contemplated, and had resolved to carry into effect. There was no doubt that the Government had a right to take such means as enabled them to bring to bear the military and police force, and to concentrate their power on the very spot where their protection was most required, instead of distributing them over a hundred different points where their presence was unnecessary. That was the course which the Government were justified in adopting; and it was evident that information which enabled them to do so was of the greatest importance for the safety of the State; and really, when this was considered, he could not agree to the proposition contained in the Bill of the noble Earl, namely, that when any man who might have been forced, or induced, rather, against his will, to join such a conspiracy—who had become afterwards alarmed at the length to which he went, and being desirous to make amends for his in- 1046 cipient treason by counteracting the plans of those engaged in it—he could not, he should say, agree in the proposition that a man desirous of making amends for his incipient treason by preserving the peace and tranquillity of the country, should be required by the Secretary of State, perhaps at the peril of his life, to sign those informations with his name. He (Lord Stanley) had no great respect—he never had entertained any great respect for anonymous communications, and he was, therefore, the more strongly opposed to this provision of the Bill, which, if carried into effect, would be calculated to drive those who were willing to give such information as that to the medium of anonymous communication; and whereas the Secretary of State had many opportunities of judging of the probable value of information under the present system, he would be necessarily obliged to dispense with them in the case of information conveyed solely through anonymous communications. There might be circumstances in which anonymous communications would be attended by circumstances calculated to give them additional weight; such, for example, as coming from four different parties on the same day, and containing the same story or information, which perfectly tallied. In that case, where the information was supported by such circumstances, would the noble Earl say that the Secretary of State ought to have any hesitation as to taking steps with reference to it? If he, as Secretary of State, used the powers which he possessed under such circumstances, in order to secure the peace of the realm, he would not only be justified in doing so, but he would not be justified to his country if he did not act upon it. It so happened that the Department with which he was more immediately connected was one under the supervision of which no such letters came, as no necessity existed for the use of those powers of detaining or opening letters under the superintendence of that Department; but he was speaking of the necessity for using those powers when their use and application might protect the peace and security of the country. He was describing the necessity which the Secretary of State might be placed under to use those powers which the noble Earl had described as so odious and deserving of such obloquy; and yet, it appeared to him, that while the noble Earl retained the whole odium and inconvenience of the present system, he rendered the power to be vested in the 1047 Secretary of State utterly inefficient. Then the noble Earl proposed that the Secretary of State, having detained and opened the letter in the presence of another person, should, within fourteen days, send a copy of it, and an account of what had been done, to the party to whom it was addressed. Why should it be sent within fourteen days? Within fourteen days, or within fourteen hours, a person who was conscious of guilt, and who knew that he had committed evidence of that guilt, in the shape of a letter through the Post Office, would become anxious to ascertain what had become of the letter, and at the end of fourteen days it would be too late to send any such notice. But suppose a person sent information to the Secretary of State that a movement was about to take place, and that a day was fixed about three weeks distant, and the localities were assigned, but that the party stated that he could not perfect his information until a period of time longer than fourteen days had elapsed, would the noble Earl, under these circumstances, send back an account of the information which he had received to an individual who was engaged in the conspiracy, and one of whose letters, forwarding the designs of that conspiracy, the Secretary of State might have directed to have been detained in consequence of the information which he had received? With respect to sending the information that a letter had been opened, he could state a case which would show how completely that course would counteract the effect of the information. During the war between this country and France, it was discovered that a subject of France residing in this country was in the habit of sending to France information of the intended sailing of merchant vessels from English ports. In one of these cases a letter from him was opened containing an account of the intended sailing of a large fleet of English merchant vessels. It was re-sealed and sent to its destination, and a fleet of French vessels was sent out to intercept the English merchantmen which sailed, but did not sail unaccompanied, for they were accompanied by a strong convoy of English ships of war. The result was that the tables were turned. The French fleet, to use a vulgar phrase, "caught a Tartar," and they were defeated and captured by the English ships. The last provision in the Bill of the noble Earl, or the last provision which he would allude to—indeed, it was almost the only other provision in the Bill 1048 —was that any person whose letters were opened, or to whom the letters were addressed, could, in six months after the letter or letters had been so opened, proceed by an action at law—could take legal proceedings against the person who gave such information (a most effectual way, by the by, to prevent any information being obtained) to the Secretary of State or the Lord Lieutenant, as the case might be, and that the Secretary of State or the Lord Lieutenant should furnish the plaintiff with the original information, or a certified copy of it, to be used as evidence against the person who furnished it. Was it possible, he would ask, to invent a better mode of preventing all the advantage which would result to the public from such information, than by making the Secretary of State the informant to furnish evidence against the man who conveyed intelligence, for the purpose of preserving the peace and tranquillity of the country? Could they adopt a course better calculated to prevent persons from giving such information, than by saying that the person furnishing it should sign his name to it, and that the Secretary of State should be obliged to furnish his name and a copy of the information which he gave as evidence against him, if the person writing or receiving the letter should afterwards think proper to commence an action at law? That might be deemed by the noble Earl to be sound wisdom and sound morality—it might be deemed to be political wisdom; but its morality was only equalled by its political prudence. But now, what was really the case with respect to the carrying on of such an action at law, and the wisdom of so furnishing the person's name? It was possible that a man giving information might be correct to a tittle in the day on which the letter was to be despatched, and on every other particular, and yet the proper authority in the Post Office might make a mistake, and might, in consequence of that mistake, open the wrong letter, and allow the right one, the letter to which the information referred, to pass through the Post Office. In this case the guilty person would escape by the letter being forwarded without being opened, and the person who was so guilty might take an action against the man who gave that true information to the Secretary of State, because one of the authorities at the Post Office had made a very natural mistake, and opened the wrong letter. In nine cases out of ten they might open the wrong letter. [Lord 1049 Denman: Hear, hear.] He was glad to hear the noble and learned Lord cheer that statement; for it showed that if there was any advantage to be gained from opening a letter, it could only be derived from the issuing of a warrant to open, not one, but all the letters directed to a certain person in whose correspondence it was suspected that there was contained matter which was dangerous to the peace of the country. He would give their Lordships a striking instance of the necessity for such a warrant by reminding them of an occurrence which had taken place some years ago, namely, the absurd and criminal enterprise of Prince Louis Napoleon Bonaparte, in the rash and mad invasion of France which he planned. He would not ask if the Government of that day had received any intelligence of the designs of Prince Louis Bonaparte; he believed that they had not received any such information. He would not ask whether or not Prince Louis Bonaparte's letters had been opened by the authority of any warrant from the Secretary of State; but he would suppose that the Secretary of State had received an intimation of those designs—had received information that a particular letter would be sent to the Post Office, and that, in consequence of such information, he issued a warrant authorizing the Postmaster to open a particular letter, directed to Prince Lonis Bonaparte. The Postmaster might in such a case open the wrong letter. He might open a letter containing an invitation to dinner, or a tailor's bill, or some other matter equally unimportant;—this harmless epistle would be returned to the party endorsed "opened by order of the Secretary of State, but no further proceedings will be taken thereon;" whilst the letter to which the information referred, the letter written in pursuance of a design to carry on that mad and rash attempt, would be allowed to pass, in consequence of the wrong letter having been opened, and thus the person who wished to preserve the peace of this country, and who had endeavoured to save a friendly Power from the effects of such an absurd and criminal expedition, was to be exposed to a prosecution in consequence of this mistake in the Post Office, if the provisions of the noble Earl's Bill were carried into effect. Because the Postmaster opened a tailor's bill, or an intimation to dinner, instead of a letter referring to the intended expedition, the person giving the information was to be subjected to an action according to that 1050 Bill; and a copy of his information, with his name, furnished by the Secretary of State. There was another provision in the Bill to which he would refer, that a return of all the warrants, and the circumstances connected with them, should be laid on the Table of the House within twenty-one days after the meeting of Parliament; and, with respect to that, he did not feel called upon on that occasion to make any observations, but he would remind their Lordships that the Bill did not define the law as affecting this subject; that it left the law obscure and uncertain, whilst it proposed a certain remedy, which remedy would only have the effect of nullifying and rendering invalid the powers which it proposed to continue; thus continuing a practice which they looked upon as most odious, whilst they did not retain the advantages it was calculated to confer. Under these circumstances, he (Lord Stanley) did not think he was going too far when he asked their Lordships, in the name of common sense, not to agree to the second reading of such a Bill. The noble Earl said that there was, under the present system, no responsibility attached to the Secretary of State; but he (Lord Stanley) was of opinion that the proceedings of the last Session of Parliament with respect to the Post Office, completely negatived that assumption. Committees were appointed by both Houses of Parliament to inquire into the circumstances connected with the issuing of warrants for opening letters, and they were composed principally of individuals who were not the political friends or partisans of the Government to which the Secretary of State belonged who was charged with issuing warrants to open letters in the particular cases that were more immediately referred to. The Committees investigated all the circumstances connected with every warrant issued by every living. Secretary of State, and they came to the conclusion, which they stated in their Reports, that in no instance had any such warrant been issued for any private object, or used in any manner which would justify any fear for the general security and inviolability of correspondence in this country—that in fact those warrants had always been issued for the general welfare of the State, and the peace and security of the realm. The power had been used by every successive Secretary of State for years, and the Reports of the Committee altogether negatived the idea that there had been any abuse of the power to issue these warrants 1051 on the part of the Secretary of State. The noble Earl, in introducing the second reading of this Bill, had laid great stress on the small number of warrants which had been issued, and appeared desirous to diminish still further the instances of the exercise of that power, which he did not, however, propose to abolish; but he (Lord Stanley) could not agree with him in the views which he took of the subject, and, as regarded the safety of letters and general inviolability of innocent correspondence, the Reports of the Committee completely refuted any such charge. There had been, in fact, but an average issue for many years of eight warrants annually, while the correspondence passing through the Post Office averaged 200,000,000 letters annually. The power to issue such warrants had always been used by the Secretary of State for the security of the realm—it was, he did not deny, an extreme power, which ought to be cautiously exercised, and only in extreme cases where the public exigencies required it; but being as it was an extreme power, if they were to retain it, if they were satisfied that it ought not to be abolished, what other security could they have for its safe and proper exercise than the high and honourable character of public men of all parties, seconded by the knowledge that it had not been used for any private purpose, or with any view other than maintaining the security of the State? That being the case, and if they were satisfied that, for public purposes, it ought not to be abolished, he trusted their Lordships would not consent to retain it accompanied by such restrictions as the Bill of the noble Lord contained—restrictions which would render the power of issuing such warrants altogether null and void. He would, therefore, move that the Bill be read a second time that day six months.
§ Lord Denman
was of opinion, that any jocularity was misplaced in discussing a question which was of the gravest character and the greatest importance to the country. The character of the country, of that House, and of their Lordships as individuals, required they should give a calm and deliberate investigation to the principles of the Bill, and that they should not, like the noble Lord who had just sat down, apply themselves to the mere technicalities of the measure. Their Lordships had to consider the grave question, whether it was really to be permitted, that in England all letters should be subjected to the authority of a Minister of 1052 the Crown—whether the private correspondence of every man in the country should be placed wholly at the discretion of the Secretary of State. They were to consider whether, because forsooth only eight warrants had been issued in a year, you would retain a State engine by which the Secretary of State was enabled to have the whole correspondence of the country in his power, and to ascertain the contents of those letters which had been confided to the honour and the sense of public duty of the authorities of the Post Office. He thought it rather misplaced, therefore, to apply solely to the technicalities of a Bill, the principle of which affected the rights of the whole people of England. If the Committees which had investigated the circumstances connected with the issuing of warrants had formed any opinion with respect to the law of the subject, they had not stated that opinion—if they had perceived any difficulty in understanding the law which regulated the issuing of such warrants, they left that difficulty as they found it. He did not wish on that occasion to remark upon the Reports of those Committees, which, in different parts of them, showed that one Member entertained one sentiment, and another Member entertained another sentiment, or upon those sentences in the Reports which appeared to indicate differences of opinion amongst different Members of the Committee. The Committees, if they thought it their duty to define what the law was, had not done so, nor had they recommended any course to be adopted with respect to any difficulty in defining the law. He had the greatest respect for the individuals who composed those Committees; he had the honour of numbering some of them amongst his Friends; and he felt bound to say that they might have abstained from an opinion on the law affecting this power, from a persuasion that the immense importance of the subject would force its way to the attention of Parliament, and that it would be discussed as it ought to be, and as it might be at the present period, in a tone perfectly free, as it ought to be, from all party spirit. He hoped that, although the prerogative of the Crown had been brought forward in reference to this subject in the other House of Parliament, no one in that House thought there was the slightest ground for supposing that the Crown had any prerogative whatsoever 1053 which could authorize the opening of the letters of any individual in this country. Such an idea was altogether unsupported by legal proof, and had not the slightest foundation. The whole law of this country, with reference to this question, was contained in the Statutes relating to the Post Office. In the first place, the Crown granted a monopoly to certain individuals in carrying letters; the first Parliamentary recognition of it was by an ordinance of Cromwell in 1657; and the Post Office itself was established by Act of Parliament in the twelfth year of Charles II. These Acts, however, took no notice of the great duty which attached to the Postmaster in respect of the monopoly so created in his favour; for they merely required that no person should send letters by other hands, and did not make it the duty of that officer to deliver the letters entrusted to his charge. That was a rational and consistent obligation, however, and one which was most binding; and every one who placed a letter in the hands of any individual so authorized by the Crown, felt that he imposed a duty of a most solemn nature to deliver it. It was not, however, until the Act of Anne, that a provision was made on that subject; and the 42nd of Anne, c. 9, stated that whereas it was dangerous to the interests of the trade and commerce of the country that the letters of individuals should be delayed or opened in the Post Office, it was enacted that from and after that date any person opening or delaying such letters should be subject to a penalty of 20l., and disqualified from holding a situation in the Post Office in future. Those provisions were followed up by the Statutes of the Georges, by the Act of the late King, and the Act of Her present Majesty's reign; and these were the modes by which the efficient discharge of the duties appertaining to the Post Office were enforced: in the first place, any misconduct or negligence in delivering letters was rendered subject to a penalty on summary conviction; and in the second place, there was a more serious penalty inflicted upon any person stealing or embezzling a letter, such person being declared guilty of felony; and if there were money, or a security for money, in the letter so stolen or embezzled, the person offending was rendered liable to transportation for life. The words of the Act were very clear, and declared that 1054 stealing or embezzling a letter was a felony subjecting the person to seven years' transportation, and to transportation for life if the letter contained a draft or security for money. The Secretary of State's warrant did not apply to that case, or to negligence in delivering letters; but applied only to the case of letters detained, delayed, or opened by the Postmaster under the authority of such a warrant; and the Act stated that the provisions did not extend to the opening, delay, or detaining of letters returned for want of sufficient description; or opened, detained, or delayed under the authority of an express warrant in writing under the hand of the Secretary of State. The object of that was to relieve the Post Office authorities from the punishment of misdemeanor by fine and imprisonment in case of the detention of a letter. Suppose there was an action against a Secretary of State for detaining a letter, to that action the Act of Parliament would not apply; it would only apply to the person who was authorized by the warrant to open letters. Was that a state of things in which the law was so well defined, that they ought not to consider if it might be altered with advantage? An action would undoubtedly lie, as a person might suffer very great injury by the detention of his correspondence, and holding back information which was necessary to him; and if he brought an action against the Secretary of State or the Postmaster, he was not aware of anything to protect him, unless the inference which might be drawn from that Act of Parliament. He (Lord Denman) did not mean on that occasion to express himself in such a manner as would bind him to an opinion if the case came to be argued; and he must say that it was with great surprise he heard the noble Lord opposite refer to his opinions of last year in that House, as if when the matter came accidentally before them, and he threw out an opinion upon it, such an opinion was to be looked on as the deliberate opinion of the Lord Chief Justice. His noble and learned Friend (Lord Campbell) doubted whether every particular letter must not be described. Ha (Lord Denman) disagreed with him at the time, and he did so still. He could not think it possible. It was quite absurd to suppose that every particular letter should be pointed out. But upon another occasion, when his noble and learned 1055 Friend pushed that argument to an extent which he did not think it bore, he (Lord Denman) said, that the very nature of the power of opening letters supposed a system of espionage; and he did not know how, if secret information were given, a particular description of a letter was to lead the Secretary of State to ascertain the one referred to. But was he to be held up as a patron of a system of espionage, because he said that under an Act of Parliament, which he condemned, which he thought inconsistent with the liberty of the subject, and which the noble Lord called an engine of State policy—a word that might be made to cover everything that was odious—was he, he said, to be held up as a patron of a system of espionage, because he stated that under that Act he did not see how the power could be restricted to any particular letter? He said that neither he nor his noble and learned Friend was bound to find out the means of giving facility to that odious power; but if there were no means of finding out particular letters, that was no reason why they should extend the power. He objected to the noble Lord quoting a particular passage from his speech in a former Session, in a debate which the noble Lord had not heard, for he could not suppose a more unfair way of dealing with any man in any situation, than by taking two small portions of his speech on a former occasion, and applying them as the noble Lord did, as if they went to support a system which of all other men he most strongly detested and renounced. Was it right that such a state of things as he had described should remain unaltered, that such serious doubts should be permitted to hang about the question? They ought to recollect that the practice could not legalise itself; a fact which had been shown in the case of general warrants, which had been in operation for a century, but which, when they were brought into the air of discussion, were at once abandoned; on which occasion Lord Camden remarked, that opening of private letters was odious and hurtful to the feelings of mankind, and should be always condemned. Suppose the Secretary of State, under the existing practice, issued a warrant to a postmaster to examine an individual's correspondence, could that warrant apply to one letter, or would it apply to all the letters directed to that individual? Was it a general warrant, or would it refer to all letters, or 1056 to some particular letters? The word "express" before "warrant," in the Act of Parliament, would appear to limit the warrant; but, according to the argument of last year, it was urged that the warrant might apply to all letters directed to an individual, as that, otherwise, it would be impossible to describe a letter with sufficient accuracy to prevent mistakes. He did not mean to say that such a thing was very probable; but it was necessary to be considered, if the law and practice were to come into a court of justice; and he thought their Lordships would be in a much better position if all these matters were considered beforehand. They were then in a state to consider what was best to be done, and it was better to do so than to leave it doubtful, and to be questioned hereafter by a court of justice or by a jury, who would no doubt be regulated by their feelings of what the liberty of the subject required. On the other hand, if the power were confined to a single letter described in the warrant, there would be no use in it. That was a state of things, then, in which it was quite rational and proper for Parliament to consider what was best to be done. It appeared to him that the Secretary of State was expected to act as an honourable man, to lay down certain rules for his conduct with regard to opening letters, and the unbounded nature of this power would impose upon him the necessity of that duty; but he wanted to know why Parliament should be afraid of imposing these restrictions on him? He understood that the right hon. Gentleman the Prime Minister stated, in the other House, that he had no objection to the regulation of that power; that the right hon. Gentleman the Secretary of State for the Home Department spoke of the power as most odious and hateful, and which he would be most happy to get rid of, and that he was willing to agree to any regulations on the subject. Now, what was the use of a Secretary of State making regulations, of which he was to be the judge whether they were broken or not? Why should it not be done by Parliament if it were fit to be done at all? The great object of his noble Friend's Bill was to enact, that if the power were proper under certain circumstances, it was proper under those circumstances only. He could understand that, in such times as those of Charles II., the merry Monarch and his courtiers might find it very entertaining to 1057 open letters, and he could well believe that even in the present time there might by possibility be some persons to whom suspected letters were addressed who might find themselves betrayed in a very awkward manner to those from whom they might wish certain things to be kept. It was not desirable to have such communications exposed, and it might so happen that it would be particularly disagreeable to have their contents betrayed to the eyes of the very individual who might be Secretary of State. "But," said the noble Lord, "was there no responsibility?" Could that be asserted after what took place in the last Session? He would ask their Lordships, did they wish to hear such things again—to hear such debates, in order to show that a Secretary of State was not irresponsible? On the contrary, was it not a calamity that such a subject was brought forward, and that such a proceeding should have arisen from the mere accident, as it was described by his noble Friend, of Mr. Mazzini detecting some bad language in that which was made to supply what was effaced by tearing off the seal? He fully acquitted all living Secretaries of State, whether in or out of office, of all misconduct in reference to their proceedings in this respect; he had not the slightest ground for imputing anything to their motives, and in the case of an arbitrary power that was all that could be expected; but he wanted to know upon what principle they acted. If it were good, he did not know why Parliament should not defend him instead of leaving him to defend himself. In former times the same delicacy was not observed. Suppose an election turned on a single vote, and that upon that vote the fate of the Ministry depended, did they not believe that 100 years back a Secretary of State would have thought himself a dolt for not opening a letter that would lead to that secret? Then the small number of the warrants made no difference, for if a warrant might run over several months, why might not eighty letters be opened instead of eight? There was no limit to the number that might be opened. A very instructive work had lately appeared—The Correspondence of the late Lord Malmesbury—and it appeared in that work that Lord Malmesbury, both abroad and at home, had some knowledge upon this subject. He supposed that nobody would say there was a more dishonourable act than open- 1058 ing letters in the course of a negotiation for the formation of a new Ministry; but when Mr. Pitt returned to power, in a letter to Lord Malmesbury he expressed a strong opinion that one of his letters had been opened. Again, the Duke of Portland, in 1792, in a letter on a similar subject—as to the introduction of Mr. Fox into the Cabinet—said, "I shall have this letter directed by another hand, and sealed by another seal." That was a strong intimation of what he expected. The same thing occurred in Mr. Burke's beautiful letters, and also in the letters of Horace Walpole; and he had no doubt that in those times it was considered quite fair that they should avail themselves of every kind of information that could be obtained by the opening of letters. But the same work, Lord Malmesbury's Correspondence, contained a passage which he had thought it right to copy, because, although it related to a foreign post office, still the same practices might be resorted to elsewhere. It was contained in a letter from Lord Malmesbury to the Minister in this country, in which he said his Lordship would scarcely credit it, but that M. Panin, then Prime Minister to Catherine II., employed whole nights in framing supposititious letters calculated to help his friends and hurt his enemies, and which he afterwards pretended had been intercepted in the Post Office, and the falsehood of which could not be detected, because when he showed them to the Empress, he used to state that the originals could only be detained while copies were taken. Another extract he had made, not from Lord Malmesbury's Correspondence, but from a review of the Correspondence; and certainly he believed that it was the remark of a reviewer who was never suspected of in any way favouring liberal opinions; but this particular review was a very acute review, and there the opinion was expressed, that if it was only to obtain such secrets as those which Lord Malmesbury said he was obliged to spend great sums to obtain, he only made a bad bargain, and that mostly money spent in this way would be money thrown away, for that the intelligence thus arrived at was only such as our adversary meant should mislead us, and which ought generally to be taken in the reverse sense to that which it purported to bear. And that brought him to what was the strongest point of the present case, namely, that it was beyond all possibility of doubt or 1059 cavil that this power was utterly useless. Neither of the Committees could state that it had ever done the smallest service to the State. The Committee stated that the Secretaries of State would be reluctant to see the power abolished. But, as his noble Friend had said, who did not like power, whether he expected office, or was at present in office, or had possessed office? Those who had been in office did not like that you should abrogate a power so liable to abuse as this which they had at one time exerted. Their Lordships would agree that it was most remarkable that no traces of the utility of this power in practice could be found in the Reports of either of the Committees. How easy would it have been for them to say, if such had been the fact, that in such a year the State obtained valuable information by this means? But there was a total absence of any such statement; there was an absence also of any allegation that any one respectable authority believed that it would be useful to the State to have this power continued. Then, as the practice was now known publicly, how easy would it be in future for seditiously disposed persons to take this mode of entrapping the Government; how easy would it be for such persons to take this mode of putting the Secretaries of State on the wrong scent; and if the state of the country was such, that troops were really wanted in the north, to write such letters as upon being opened at the Post Office would cause the troops to be sent away into the west! The practice would become a snare to the Government.Oh! what a tangled web we weaveWhen first we practise to deceive!As had been mentioned in the House of Commons, there had been in former times a letter intercepted in a foreign post office which had led to exactly the reverse consequences to those which the Minister had anticipated, and had hastened a declaration of war on the part of the Government that opened the despatch; and when the Minister in this country remonstrated with our Ambassador for writing such a letter, he replied that the foreign Cabinet had fallen into his snare. Thus there would be no security that the Secretary of State here would not be the victim of the practices he put in force against others. He now came to the third point. When a letter was opened, what was to be 1060 done with it? The Act of Parliament was silent on the subject. Was it fit that it should be silent? Both the Committees were silent. The noble Lord had abstained from alluding to that part of the question. Who could bear to think of it? What, was a letter that had been opened that you might become possessed of the secrets of the writer, to be sent on to its destination with every appearance that it had travelled the whole way in security, resealed with forged stamps, and with new writing in it, if necessary to complete the deception? If the noble Lord personally gave his assurance to the writer of the letter, the man could not have more assurance that his letter would be conveyed in security. It had been stated so often to have been done, that their Lordships must believe it, that there was a Black-office, either at the Secretary of State's office, or within the walls of the General Post Office, where ingenious individuals were employed in these disgraceful practices, by which you might get at the secrets of persons—guilty persons perhaps, but by which the innocent, it was equally likely, might be wronged and deceived. Was that the mode that a great country like England should have recourse to in order to avail itself of information of the designs of its enemies? He knew of no proceedings at law in which such proceedings had been had recourse to, except the Bill of Pains and Penalties against Bishop Atterbury; but proceedings more disgraceful to the House of Commons than those he had never met with. They admitted copies of the letters of the Bishop and his correspondents in evidence, and would not admit evidence that they had been truly copied or correctly deciphered. In this case, their Lordships had no evidence that the practice had done any good whatever. He gave his noble Friend his cordial thanks for having introduced this Bill, and he was most sure that this Bill, or a mote extensive measure, must ultimately become the law of the land. If this Bill, as he thought not unlikely from the appearance of the House, should go no further, he did hope that some Bill would speedily receive the sanction of Parliament to prevent a person from being entrapped by these odious means, by which, when you have led him to suppose that you were carrying his letter as his agent, at the same time you were taking secret means of making him condemn 1061 himself. The noble Lord observed that this Bill did not abrogate the practice. He (Lord Denman) certainly should think it much better that the practice should be abrogated altogether, for the greatest possible mischief might arise from the practice, and no good had been shown ever to have arisen from it. The noble Lord had alluded to what was going on in 1842; in 1842 he acknowledged the danger was great. God forbid anybody should endeavour to palliate that danger; but how was it met? The Committee did not state that it was met by means of the information derived from opening the letters of suspected parties. No, it was met by the firmness of the Government and of the magistracy, by the good conduct of the police, and, he might be permitted to add, by the firm and temperate administration of justice. It was not by means like this of opening letters that the men who were then seeking to overturn the institutions of the country were defeated. They were defeated by the good spirit of the country; and that he, for one, believed would have been the case if no letters had been opened by the Secretary of State at all. This Bill might be liable to objections; but, if necessary, a discretionary power might easily be so arranged, that very little more inconvenience would arise from detaining the letters of suspected persons, than arose from detaining goods or searching houses under suspicious circumstances. He took it that this, however, confined the opening of letters to cases affecting the domestic affairs of this country — the internal peace and tranquillity of this kingdom. This country ought not to be the police officer of any Foreign State whatever. Here be could not help referring to the late events which led to this inquiry; and, if he might be allowed to address himself to the noble Earl opposite, he would say that the explanation which the noble Earl gave of his conduct and views on that ocsion was not only perfectly blameless, but very much raised his character as a just and honourable man. His alarm was, lest he might by possibility have contributed to the detection even of guilty men. It was a painful duty, he said, but a duty imposed upon him; and he took pains to prevent any injury to individuals. If they were found guilty, the noble Earl believed it was upon perfectly good and sufficient grounds; and he (Lord Denman) would be sorry, therefore, to interfere with his conviction, 1062 that nothing which then took place through his means which had injured any one. But he (Lord Denman) thought it was unfortunate, when he found characters brought into question, and persons accused from day to day, and that it was said to be perhaps as well that they should be so as not. He could not help thinking, however, that we entered upon a painful and dangerous course wherever, in any single instance, we interfered for the purpose of carrying out the objects of any Foreign Goverment. It was very easy to say that disturbances in Calabria were connected with seditious proceedings in Corfu, and that those proceedings at Corfu might lead to commotion in Austria, and that if Austria were disturbed that would put France in motion, and France would move England. Why, these remote possibilities were perpetually arising, and might arise on every question. Well did he remember the language of the noble Duke last year—that it was the proud policy of this country to preserve the peace of the world; but he (Lord Denman) thought the peace of the world was best preserved by our declining, on general grounds and on all occasions, to interfere in the concerns of any Foreign Government whatever. If they once interfered in any case, might it not be possible that they might be solicited to interfere in other cases? And if they refused, might not that refusal become the cause of war? If they refused to interfere on behalf of a friendly State, they might give offence which might possibly operate on the feelings of men in such a way as to lead to war. To advert, for instance, to the situation of Mr. Mazzini, was it possible to imagine a more inconvenient situation for a Government than to be told by some Foreign State, "You have a certain Mazzini living among you. He is a dangerous man. Take care what you do with him; and do not fail to open his letters, in order to prevent him from carrying on improper practices?" Year after year had that individual been labouring under the charge of being a dangerous and atrocious character, one who would hire others to commit assassination; and now some leading Member of the Government of England was compelled to declare that there was not the slightest foundation for such imputation. Now, if the Government of England granted this favour to the Pope or the King of Naples, how were they to deny 1063 it to the Emperor of Russia? If he were not satisfied with the conduct of some of the Poles in this country—if he thought they were carrying on here plans dangerous to his Government, and if he were to call on the Government to take these means of affording him information as to individuals, was it impossible that a refusal might lead to war with Russia? Then, the only ground on which they could enter upon an engagement of this kind was, they were treating with those who were in possession of the reins of Government. But was it always easy to tell who was actually in possession of the Government in Spain and Portugal? and might it not so happen that by serving one party they might in the result find they were playing into the hands of the enemies of this country? He thought this was not a proper kind of assistance for this country to give to any Foreign Government. He could not agree in the expression which had been dropped of regret that we had no longer an Alien Act. He thanked God we had not an Alien Act. He remembered the siege that had been laid to that iniquitous Act in the other House of Parliament. Year after year that siege had been laid, and he did not believe that Sir R. Peel had forgotten the cheers with which he was greeted when he came forward and declared that the Alien Act was gone. He (Lord Denman) trusted that it was gone for ever; but this opening of letters was a substitute for it—much less effectual, it was true, but much more dangerous in its results. In no sense whatever should he wish to see that Act reproduced. He did not think it necessary to disclaim any imputation of motives to those Gentlemen who had filled the high office of Secretary of State; he did not speak of any one living; but there had been unfortunately very unprincipled men in the office to which the exercise of this power was confided, and there might be again, and this power ought not to be again trusted to such hands. Then underlings in office might think, that while these practices were resorted to by their superiors, they might safely play that game of "High Life below Stairs," with which the country had been entertained during the summer months, when letters were opened which referred to the Derby stakes. Subordinates might be induced to act thus by the example of what they knew to be done by 1064 their superiors in office. His own experience in courts of justice confirmed the unfavourable character that had been given by a person high in the Post Office of the subordinates employed there. Persons in those situations had abused their trusts; that was notorious, and he did not know that they would be induced to discontinue their practice as long as they observed that the law permitted such practices by their superiors, who were equally expected to conduct themselves with reason and integrity. 1844 was the first year that we had seen the opening of foreign letters for the benefit of Foreign States, quite bonâ fide done for that purpose, and for avoiding embarrassment in our relations with these States. The practice was new, and, as he thought, dangerous, and utterly unknown to the people of England. They were not aware of it until it came before Parliament last year. It was true that the power had been contained in Acts of Parliament for a long series of years; but it was utterly unknown to the public. In the Act of Victoria no reference was made to it in the margin. It was the same with the former Acts. Blackstone was not aware of it. His (Lord Denman's) learned brother, Mr. Justice Coleridge, who edited Blackstone about twenty years ago, did not give any notice of it. Mr. Chitty, however, as his noble and learned Friend had pointed out to him, did mention in his edition of Blackstone an Act of Cromwell in which this power was contained—not a very respectable origin that for an Act of Parliament. This practice, then, had its beginning under Cromwell. He (Lord Denman) had last night marked a short passage in Hume respecting the last hours of Cromwell, which he would read to their Lordships:—All composure of mind was now for ever fled from the Protector; he felt that the grandeur which he had attained with so much guilt and courage could not insure him that tranquillity which it belongs to virtue alone and moderation fully to ascertain. Overwhelmed with the load of public affairs, dreading perpetually some fatal accident in his distempered government, seeing nothing around him but treacherous friends or enraged enemies, possessing the confidence of no party, resting his title on no principle, civil or religious, he found his power to depend on so delicate a poise of factions and interests as the smallest event was able, without any preparation, in a moment to overturn. Death, too, which with such signal intrepidity he had braved in the field, being incessantly threatened by the 1065 poniards of fanatical or interested assassins, was ever present to his terrified apprehension, and haunted him in every scene of business or repose. Each action of his life betrayed the terrors under which he laboured. The aspect of strangers was uneasy to him; with a piercing and anxious eye he surveyed every face to which he was not daily accustomed. He never moved a step without strong guards attending him; he wore armour under his clothes, and further secured himself by offensive weapons, a sword, falchion, and pistols, which he always carried about him. He returned from no place by the direct road, or by the same way which he went. Every journey he performed with hurry and precipitation. Seldom he slept above three nights together in the same chamber; and he never let it be known beforehand what chamber he intended to choose, nor intrusted himself in any which was not provided with back doors, at which sentinels were carefully placed. Society terrified him, while he reflected on his numerous, unknown, and implacable enemies; solitude astonished him, by withdrawing that protection which he found so necessary for his security.If he (Lord Denman) wanted a contrast between two individuals, he should speak of Oliver Cromwell and that illustrious man whose victories in war were crowned by his influence in civil affairs, whose victories had all been journeys on the road to peace, and whose moderation and virtues were the pride, the boast, and the bulwark of this country. He wished the noble Duke would take that contrast into his consideration, and see that the individuals were not more contrasted than the times in which they lived; and that if this hateful power originated in the fears of a gloomy and hypocritical tyrant, there never was a man more proper or more suited to repeal it—to relieve the Government from the odium of it, and the people of England from the oppression and insult, than was the noble Duke in the times in which we lived. This panegyric he would venture to pronounce on the noble Duke, though in his presence:—Statesman, yet friend to truth, of soul sincere,In action faithful, and in honour clear.He (Lord Denman) trusted that the noble Duke, at a moment when the Government of this country were reversing the policy of Oliver Cromwell, with regard to Oliver Cromwell, would not lend his support to a more grievous policy towards England than had been pursued in respect to the subject before the House—the Protector.
said, he thought the 1066 measures of the statesman to whom his noble and learned Friend had just referred, would bear a comparison with any that had been propounded in any age of our history. With the crimes of Oliver Cromwell he was as familiar as his noble and learned Friend—he reprobated and despised no less than he the faults of his character; but he maintained that he had propounded, and, to a certain degree, effected some of the greatest and most salutary improvements in the legal, as well as in the commercial policy of this country; and he only lamented—he said this in the presence of other Members of the profession—that the lawyers of the day were too strong for him. He had been a little alarmed at first at the very severe censure which his noble and learned Friend had been pleased to pronounce on his noble Friend opposite, in the opening of his speech, for having been guilty of what he was pleased to characterize as levity, which was inconsistent with the importance of this serious subject. But his noble and learned Friend, totally forgetting the tone in which he began, did not close his eloquent speech without having recourse to topics of a purely amusing nature. He was afraid to say anything which might excite a smile after the sentence which had been passed that night; but his noble and learned Friend had himself been guilty of the offence of uttering jests, not only at his (Lord Brougham's) expense—of such jests he would not complain—but even at the expense of the subject itself, alluding amongst other things to the mimic court of Charles II. and to the scenes there represented. His theatrical experience being not so great as that of his noble and learned Friend, he would not attempt to follow him in such allusions; but would apply himself in a very few words to the defence of the Committee of which he himself had been a Member. Now, the first charge brought against the Committee was, that they had not given any statement of the law. Surely his noble and learned Friend could not have read the Report, or if he had, it had not been with that careful attention which he usually gave to subjects before he addressed the House. If their Lordships looked at the very first page of the Report, they would find it stated that the power exercised by the Secretaries of State was of immemorial usage—that it dated from the earliest 1067 institutions in this country for the conveyance of letters, and from the practice of, as well as Orders in, Council; they further state that the practice so established by usage had been recognised over and over again in Statutes passed in the reigns of several Sovereigns—was not that giving some statement of what the state of the law was? His noble and learned Friend must permit him to say, with great deference, that this was one of the ways in which any constitutional power came to deserve the name of constitutional power, in which any unlawful act came to acquire the title to be called a lawful act, by whatever Government it might be exercised. Here was a constant, uninterrupted usage as long as the Post Office had been established, and a recognition of its legality by various Statutes of the realm. He knew of no better foundation; nine-tenths of the Constitution rested on such a foundation as that. His noble Friend who had introduced the Motion said they must go back to the time of Richard I., in order to get back to the time of legal memory. Why, the whole of the powers and privileges of Parliament had originated within the time of legal memory, and it was only by the utmost subtlety and refinement that lawyers had been able to hold that they were beyond it. After giving a statement of the law, and of the foundations of the law, the Committee proceeded to say:—"This appears to the Committee (meaning this proceeding) to be the state of the law with respect to the detaining and opening of letters at the Post Office; and they do not find any other authority for such detaining or opening." His noble and learned Friend had compared this power of detaining and opening letters, under the warrant of the Secretary of State, with that by which general warrants were issued and defended. But such a comparison was ridiculous. Let noble Lords produce the statutory recognitions of general warrants; let them show him Statutes of Anne, George I., George II., or George III., enacting that such and such a thing should not be done, saving and excepting under general warrants issued by the Secretary of State. There was no such clause to be found in any Act in the Statute Book, and therefore a grosser error, a more absurd delusion, a more baseless imagination could not be conceived than that of likening the pre- 1068 sent case to the case of general warrants, and saying that the practice of two centuries is nothing, because practice would have sanctioned general warrants, which nevertheless on trial were found to be unlawful. If, before Lord Camden pronounced the memorable judgment which, among all his titles to fame, stood first and foremost—if he who was at the same time a lawyer, a statesman, an orator, and a judge, before he delivered that judgment by which his name had been immortalized in his profession as a lawyer, and amongst his countrymen as a patriot, had seen a tenth part of what was quoted on the face of the Report in the shape of statutory recognition of the power of issuing general warrants, he would venture to say, that although Lord Camden's fame would have burnt as brightly as ever, it would have been by having other lights to enshrine it for their veneration than his judgment in the case of Wilkes. Another charge made against the Committee was, that, although they had stated generally that they were in favour of keeping the existing power, they did not assign any one public use to which it might be subservient; and his noble and learned Friend who spoke last was pleased to say that it did not appear from the Report that the community was in any important particular a gainer by the continuance of the present law. Now, in the fifth paragraph of the second page he found the following words:—The Committee have not had any means of estimating in what degree the examination of letters thus detained has facilitated the administration of justice, the result never being reported to the Home Office; but it is known"—speaking of the power—"it is known in some instances to have led to the apprehension and conviction of offenders"—that was one little object of law—"and to the recovery of property.which was another object of some public importance. He thought, therefore, he was entitled to say that the Committee were not liable to the charge of not having shown that the exercise of this power was of any service to the State. In reference to State offences, the Report said—It does not appear that from anyone of these letters specific knowledge of great importance has been obtained. The information, however, which has been derived from this source has been regarded as valuable, and may have given better information upon dangers apprehended in particular cases, than could be derived from local observation, or than 1069 might be collected from the vague and exaggerated rumours which in periods of disturbance usually prevail.The Committee was one of secrecy—they were not at liberty to divulge all that came to their knowledge; but how did his noble and learned Friend know that the passage there with the hidden meaning did not allude to the dangers to which the country was exposed in 1842? He would not break the secrecy which had been imposed upon him as a Member of the Committee; but without going further, he would only inform his noble and learned Friend that it did. His noble Friend who introduced the measure had as holy an abhorrence of general warrants as his noble and learned Friend behind him; but if the Bill were to pass into a law, general warrants, for the first time, would be legalised. ["Hear, hear!"] It was so, and he referred his noble and learned Friend to the second section of the Bill, and he would find that he (Lord Brougham) had properly described the effect it would have were it to become law. With the sentiments which his noble and learned Friend entertained, he was bound to vote for reading the Bill six months hence; and having got rid of it, let him, to be consistent, introduce a measure altogether abolishing the whole power from beginning to end. In his opinion, the power must be retained. His noble Friend would allow it to exist where parties were suspected of treason against the peace and safety of the State, but he would abolish it in all other cases. If he were required to choose between different cases, he would infinitely rather have the power retained in reference to other cases, than with relation to that which he had mentioned. The reason of this was obvious. People who were brewing high treason did not usually send their letters through the Post Office. [Lord Denman: Of what use, then, was the power?] That was exactly his argument—the power was of no use for such purposes. It might be used, however, with advantage in the detecting of minor offences; it might be resorted to in cases of murder, robbery, forgery, and fraudulent bankruptcy. There could be no doubt whatever that the detaining and opening of letters at the Post Office offered a very ordinary and easy mode of detecting such offences. He himself remembered an instance in which a man 1070 who had been guilty of felony on a great scale was discovered, together with his gang of mercantile conspirators, seized, tried, condemned, and executed (the case happened before the alteration of the law with respect to capital offences), in consequence of a letter being stopped at the Post Office which was written to a person known to be related to the head of the conspiracy. He must observe that the eighth and ninth sections of this Bill would, if the Bill were carried, utterly prevent spies from giving to the Government information which it might be desirous to obtain. With regard to the Bill itself, he had to remind their Lordships that the Committee which sat upon this question had stated in their Report that they could not recommend the abolition of the present law; they stated that this power had never once been exercised for any bad or sinister purpose; they distinctly alleged that it had never been abused. He (Lord Brougham) had heard no charges brought against any particular Secretaries of State. He found the greatest names involved in the practice ever since it had existed. The name of Mr. Fox was appended to one of the most sweeping warrants which they had before them. His noble and learned Friend who had spoken last said, that Mr. Fox would have been more likely to join those who were against this power, than those who were in favour of it; but he (Lord Brougham) knew too well the acute character of Mr. Fox's mind, to suppose that he would have gone to the extent of supporting this Bill. That he might have supported some other Bill was possible. There was nothing to compel Mr. Fox to issue the warrant which he did issue. He issued it voluntarily; it was signed with his own hand, and it was, he repeated, of the most general and sweeping nature. It was impossible that he could have signed it without attending—without most minutely attending to the subject; for Mr. Fox was a man who possessed the most accurate information upon all details—he was a man who peculiarly loved details—he was a man whose curiosity was ever watchful and awake, and who was especially fond of prying into every particular connected with his own department. He well remembered that on one occasion when he (Lord Brougham) happened to be with him, and when the Under Secretary was unavoidably absent, 1071 it appeared as though there were no single detail connected with the routine of the Foreign Office with which he was not most intimately acquainted. Mr. Fox was not likely, therefore, to have exercised this power without the most searching inquiry; and he ventured to say, that were Mr. Fox alive at that moment, there was no one case that had been brought forward in the course of the inquiry in either House of Parliament which he would not have shown that he knew as well as they themselves did. It was quite impossible that Mr. Fox could have had any strong opinion against this power as unconstitutional. Yet, he would ask, was there ever a man who would shrink more from anything that was paltry or degrading? Was there ever a man who would more have hated to meet a Foreign Minister on terms of confidence or good will, or even of common courtesy, in society on the day when he had been reading his letters, possibly his private correspondence, under a warrant of his own at the Foreign Office? Mr. Fox must have felt the necessity for the exercise of this power. He signed this warrant, he acted upon this warrant, and never, to the end of his life, either in office or in opposition, did he endeavour to alter a practice of the existence of which he was aware from his own experience. Right or wrong, the practice had the high sanction and authority of one of the soundest statesmen, one of the most constitutional lawyers, one of the most profound historians in all that regarded the antiquities of our Constitution, and one of the most upright and honourable men that ever adorned either a high or a middling station of life. He would give his most hearty assent to the Amendment of his noble Friend.
observed that he was, on the present occasion, placed in a peculiar and novel situation, having to defend the opinion of the Lord Chief Justice of the Queen's Bench against that of his noble and learned Friend who had been Attorney General to Queen Caroline, and afterwards had filled the high office of Lord Chancellor. The able and constitutional speech of his noble and learned Friend the Lord Chief Justice would, he was sure, make a deep impression upon the English nation, and add to the admiration and reverence with which his name was every where received. The question, which had been in a great measure, he thought, lost 1072 sight of, was, whether this Bill of his noble Friend (Lord Radnor) now before their Lordships should be read a second time; but his noble Friend behind him had gone into a discussion of the merits of Oliver Cromwell, a most able statesman no doubt, and a governor in whose time many important legal reforms were effected, with which, however, he had but little to do, and whose only personal measure was a Bill to abolish the Court of Chancery, the result of which might be gathered from his complaint that the lawyers were too hard for him. This, however, had nothing to do with the question before their Lordships, which was simply whether the law on this subject was to be allowed to remain in the state in which it now was, or whether they would not make some attempt to define and regulate it. In his opinion it would be better that this power of opening letters should be entirely abolished. For his part he thought it was a power more likely to be injurious than beneficial to any Government. It was true many cases might be imagined in which it would be convenient that the Government should have such power; but cases could be supposed in which the employment of spies would be convenient to the Government, and cases could also be conceived in which the application of the torture might be convenient. Now let them consider what was the nature of this power as it now existed. It was the power of opening any letter that passed through the Post Office; and what was the process? First, an impression of the seal was taken, and a false seal made, then the letter was broken open, a copy of its contents taken—it was then refolded, a false seal was placed upon it and false stamp, and, if necessary, forged hands, in order to destroy any proof of the letter having been opened. It was then forwarded to its destination, the person to whom it was addressed having no intimation, and no means of knowing, that his correspondence had been tampered with. And this was to be done by the direction of any Secretary of State—the Colonial Secretary as well as the Home Secretary, and in regard to any letter or number of letters. This was a practice so abhorrent to all our notions of honour and propriety, that it was in England only that it was defended. All other nations were ashamed of the practice which his noble and learned Friend (Lord Brougham) had so gallantly 1073 defended. Even his friend M. Guizot had disclaimed, in the most solemn manner, that any such practice existed in France. He had declared that the French Post Office was sacred, and he should consider it a slur upon his nation if such a practice did exist there. It was reserved for the Legislature of England — the English House of Lords and the English House of Commons, whose honour was supposed to be so dear and so highly prized — that this detestable practice was to be defended and panegyrized. Then it had not been shown, in the whole course of the inquiry that had taken place, that any benefit had resulted from the practice. Why, therefore, continue it? If, however, they determined upon preserving this power, surely it was necessary that it should be defined—that it should be regulated—and that it should be legalized. The Chief Justice of England had declared in his place in Parliament—that was, as far as he could do so, without giving an opinion by which he was to be bound—he had declared in the most solemn manner that in his opinion there were very great doubts whether the power did at this moment by law exist. Was not that alone a sufficient ground for reading this Bill a second time? What might be the result of leaving the law in its present state? An action might be brought against Sir James Graham by Mr. Duncombe or Mr. Mazzini. He imputed no blame to Sir James Graham; he had only done that which he found other Secretaries of State had done before him, and had merely acted upon a practice which he found to exist. If such an action were brought, there would be great difficulty in obtaining the necessary evidence, no doubt; but it was possible it might be obtained, and that a jury, acting under the direction of the judge, might decide that the practice was illegal, and give damages to an enormous amount, in which case a public functionary, who had acted merely in accordance with what he believed to be his duty, would be subjected to inconvenience and pecuniary sacrifice. But not only were there great doubts in his mind whether this power existed, but his belief was that it did not exist. It had been said in another place, and referred to in the course of that debate, that the Prerogative of the Crown gave the power to open all private letters that passed through the Post Office. That opinion had, how- 1074 ever, been disclaimed by the noble Lord opposite, and no wonder, for it was extravagantly absurd; and he would, as had been said before, care as little for the opinion of the Secretary of State in such a case as that of the porter who waited at his door. There was no pretence for saying that there was any such prerogative in the Crown. It was true this power had been referred to in Proclamations, but that did not make it law. By the Common Law of the land there was no difference between opening a letter in the Post Office and opening a letter in the hands of a common carrier, or in the writing desk of the party to whom it was addressed. Then, if the power did not exist by Common Law, had it been confirmed by Act of Parliament? If it had, where was the Act of Parliament that gave it? They must look to this question, then, as it stood in Queen Anne's time, before the Act of Parliament passed. That the power at that time did not exist in Common Law was obvious; and the noble Lord opposite had admitted that the power was not confirmed by that Act. The Act merely made that which was before a trespass a misdemeanor, and inflicted a penalty accordingly. The same might be said of the subsequent Acts—the Acts of George II., George III., and of Victoria—they imposed a penalty as for a misdemeanor upon that which was before but a civil trespass; but neither of those Acts gave any power to the Secretary of State to open letters passing through the Post Office. Then, if the Secretary of State had not the power by Common Law, and if it had not been confirmed by Statute, from whence did it arise? Under these circumstances, he thought there could be but little doubt that if the power were contested in a court of justice, the judgment of the court would be against it. That it had been the practice of successive Governments could not be denied, and therefore he did not think any blame was due upon those who, presuming the power to exist by law, had exercised it. But the practice of issuing general warrants had existed from time immemorial, but it was found to be illegal; and he believed the same decision would be pronounced against this practice of opening letters at the Post Office, if the question came before the courts of law. It was true that the Secretary of State might issue his warrant to seize and open letters, and so might any justice of the peace, if the interests of 1075 public justice required it, but he would do it on his peril. Instances had occurred, as in the case of Miss Blandon for murder, in which conviction had been obtained by the seizure of letters under such warrants; but those letters might have been seized whether in the Post Office or in a private writing desk. So much as to the principle of his noble Friend's Bill. As to the enactments which had been objected to by his noble and learned Friend, he thought it was a somewhat unusual course for their Lordships to enter into a discussion of the details of a measure on the second reading. If such a course was adopted, the greatest inconvenience would follow. The question was, whether the law should be permitted to remain in its present state or not? He said that they did not now know what the law was; and it was the duty of their Lordships not to leave the law in so vague and uncertain a state as placed the whole of the correspondence of England at the caprice of any person who might happen to be Secretary of State, without information being laid in the first instance, and without any account being rendered to Parliament of the manner in which the power had been exercised, or the grounds of its exercise. The noble and learned Lord concluded by calling on their Lordships to relieve the country from the odium and obloquy that now rested upon it in regard to this practice of opening letters.
The Lord Chancellor
I am unwilling to interfere with the noble Lord on this occasion; but although it appears to me that the subject is exhausted, I feel that I cannot, with reference to the position in which I stand, remain altogether silent. The point to which I will address myself is that which my noble and learned Friend principally treated in the latter part of his speech—viz., whether this is a power which a Secretary of State possesses by law. I entertain the greatest possible respect for the opinion of my noble and learned Friend the Chief Justice, and my other noble and learned Friend, and therefore it is that I always hesitate when I differ in opinion with them; but it does appear to me that, adverting to the history of this power, and the manner in which it is exercised, it is impossible to entertain any serious doubt as to the law on the subject; that it is a legal power, legally exercised by the person to whom it is entrusted. My Lords, the mode to consider this subject is to inquire what 1076 has passed in courts of justice upon it, and to consider also what are the Acts of Parliament that have reference to it. If I find that this power has been over and over again recognised by different Acts of Parliament (for the recognition of a power by an Act of Parliament makes it the law of the land); if I find that it has at different times been brought under the view of courts of justice, and that courts of justice have never expressed any doubt respecting it, then I think I am warranted in coming, and come safely, to the conclusion that this is part of the acknowledged law of the land. In order to satisfy you of the propriety of this conclusion, I will only refer to the facts, the distinct facts, that are stated in these different Reports of the two Committees of this and the other House of Parliament. My noble and learned Friend stated that this originated in the time of Cromwell. In that respect he is mistaken. The power is stated to have been exercised, in more than one instance, previous to the Commonwealth; and in the time of the Commonwealth there is a clause in the Act to which my noble and learned Friend has referred, which distinctly recognises the existence of the power. It was one of the very uses of establishing the Post Office—it forms part of the preamble of the Act of Parliament that it was so; and, therefore, that is a distinct recognition by the authority of the Legislature of that time, that it was part of the law of the land. What took place from that time and during the Commonwealth? It was acted upon in a great variety of instances; and the Committee of the other House of Parliament, in their Report, refer, in confirmation of what I have stated, to the intercepted letters, many in number, contained in Thurlow's State Papers; which shows that the Act of Parliament which passed at that time was not suffered merely to rest on the Statute Book, but was acted upon by authority. What is the next step? Immediately after the Restoration, we find the same power, not recognised, indeed, by the Legislature in the first instance, but recognised by various instruments that were executed at the time. We find a lease granted of the Post Office to a person of the name of Bishop. In that lease this very power, which had been previously exercised and recognised by Act of Parliament, is asserted and reserved to the Secretary of State for the time being. My noble and learned Friend says, very 1077 properly, that a proclamation does not make the law; but a proclamation is evidence of the law. A proclamation ought not to issue by authority of the Crown unless it is founded upon the law. We find that after Bishop's lease terminated, and when a grant of this power was made to another person, of the name of O'Neile, a proclamation was issued by the Crown, reserving the same rights and the same power to the Secretary of State, which was contained in the Act to which I have referred. This brings down the power to an advanced period in the reign of Charles II. Now, I turn to the proceedings of the courts of justice. At that time, Coleman was put on his trial. What was the evidence against Coleman? It consisted of letters intercepted at the Post Office, under the authority of the Secretary of State. I am not approving of that trial—I am not approving of the verdict—I am not approving of the judgment: but these things were brought distinctly to the knowledge of the Court; the evidence was received, it was acted upon; neither the counsel at the time, nor the judges who presided at the trial, expressed any doubt as to the legality of the proceeding. It was considered as part of the acknowledged law. [Lord Campbell said the handwriting was proved, and therefore it could not be opposed as evidence.] If this had been considered as a violation of the law, is it possible that no observation should have been made, either by the counsel for the prisoner, or by the judges who were presiding? But that is not the only case. My noble and learned Friend referred to the case of Atterbury. What was the evidence against Atterbury? A series of letters intercepted at the Post Office, commencing in the month of March, according to the Report of the Committee, and continuing to August the same year. These letters, or copies of them, were all proved at the Bar of this House against Atterbury; and no observation was made by any noble Peer, no observation was made by Atterbury himself, no observation was made by any learned person at the time, calling in question the authority of the Secretary of State to intercept letters, or to produce them in evidence. Observations were made as to the manner in which the prosecution was conducted—observations were made when Atterbury insisted on cross-examining certain witnesses, and having certain other witnesses produced—observations were made, with great force 1078 and propriety, as to the hardship to which he was exposed, and the injustice that was made use of against him, and as to copies only of his letter being produced, and there being no evidence to prove that the handwriting was compared with the original, and no opportunity offered to cross-examine the persons who had made those copies. If there was so much activity used with respect to these particular points to which I have directed your Lordships' attention, and to which my noble and learned Friend referred, and not a single observation was made as to the authority of the Secretary of State, and the manner in which the letters were obtained, then I put it to your Lordships whether that is not the strongest evidence to show that, at that period at least, it was considered this power was legally exercised by the Secretary of State? But this is not all. Your Lordships very well recollect another most material fact that is referred to, which relates to a complaint made in the other House of Parliament against the Master of the Post Office, for opening the letters of Members of the House. A Resolution was passed upon the subject by the House of Commons. A great deal of excitement and feeling was created upon the occasion, and what was the result? A Resolution was passed by the House of Commons, in which they declared it was a high breach of their privileges to open any of their letters, except under warrant and authority for that purpose by the Secretary of State. What could be a more distinct recognition than this by the other House of Parliament? I do not mean that the other House can make law, or declare that to be law which is not law; but it shows that this was a legal power lawfully exercised, and properly vested in the Secretary of State for the time being. There is another trial that I could refer to of more modern date—that of Hensey, for high treason. His letters were intercepted and produced, and the same observations apply with equal force to that case. No observation was made—no remark or suggestion that the power was not legally exercised by the Secretary of State. When this power thus comes in review before the Judges of the land, and in this and the other House of Parliament, and is never called in question during a period of nearly a century, I ask your Lordships whether that does not itself form a strong evidence of what the law is? The last case in which this power was recognised in a court of 1079 justice was on the trial of Horne Took. Everybody knows that Mr. Erskine was the distinguished counsel for Horne Took. Letters were produced which had been intercepted at the Post Office. Would not that distinguished advocate have made observations and comments on this abuse of authority, on this illegal act and violation of the law, if he, who so well knew what the law was, considered it an infraction of the law? But no observation was made, either by that distinguished advocate or by any Judge on the bench. Nay, another person equally eminent, profoundly versed in the law of the country, Sir Vicary Gibbs, was also one of the counsel for Home Took. Would he have allowed the evidence to have passed without observation if he had considered there was any doubt existing as to the law? These are observations in aid of the observations made by my noble and learned Friend; but it does not require this aid. I now come to the Acts of Parliament. I have referred in the first instance to an Act passed in the time of the Commonwealth. I now come to the Statute of Anne. What is the observation made on that Statute by my noble and learned Friend? He says it is only an exception from penalties in favour of the Secretary of State. I say it is a distinct recognition of what the law is. It is impossible to suppose the Legislature would have made such an exception, if the Legislature at that time did not consider that the law was such as to warrant such an exception. And the recognition of the law is as clear to establish what the law is, as if an Act of the Legislature had been passed directly upon the subject. But it is not merely to the Statute of Anne I wish to direct your attention. This question has been brought in review before the Legislature at different periods of our history; for instance in the reign of Geo. I. and Geo. II. But I now come to an important period—namely, 1830. What passed then? My noble and learned Friend (Lord Denman) then filled the high office of Attorney General, and he prepared a Bill for the purpose of continuing this very power. That Bill was drawn up with very great care and deliberation. My noble and learned Friend seemed to doubt this fact in the course of this discussion. My noble and learned Friend's attention was then directed to the clauses of that Act; and he said on that occasion that he had considered the subject most maturely; that he had examined into it, and that he 1080 did not think it either convenient or proper that the power should be given up. I recollect distinctly upon one of those discussions which have taken place here, my noble and learned Friend stated to your Lordships that he saw that such a power had existed, and that he did not think it proper to give it up. That I may not be considered as mis-stating what the noble and learned Lord said, I will read the passage in the speech to which I have referred. This was the object of my noble and learned Friend's proposition:—Without casting any blame or seeking to throw any suspicion over the manner in which the power in question had been exercised in the present instance, he certainly thought that the real and entire state of the case ought to be generally promulgated. If blame were attributable to the exercise of such a power, he should share it, for soon after the change of Government in 1830, a new Post Office Bill being required, he took an active part in preparing it. The clause containing the power he observed with a good deal of surprise; but as it was not thought necessary to deprive future Governments of the power, the clause continued to be part of the Bill."*As my noble and learned Friend did not think it necessary to deprive future Governments of that power, he admitted it to be a legal one; because if it were not legal, to call it a power would be an abuse of terms; the clause therefore continued a part of the Bill. My noble and learned Friend added, "that he did not believe the Bill was in any degree a party measure. Your Lordships will perceive that this power was not only exercised by the Statute of Anne, but also by successive Legislatures, down to the present day; but in the particular instance to which I refer, my noble and learned Friend held the office of Attorney General, when he would not consent to abandon this existing power, and my other noble and learned Friend (Lord Campbell) co-operated with him. How is it possible that they can entertain this doubt as to the legality of this power, which I have proved, by a reference to Acts of Parliament, began with Cromwell, and was continued down to this day, when my noble and learned Friends were themselves the actors—how is it possible, I say, that they can now repudiate this authority, which has been recognised by so many Legislatures, and was then armed with the same force as if it were distinctly enacted by these Legislatures? I have called your Lordships' attention to* Hansard (Third Series), lxxv. p. 980.1081 the manner in which this power has been authorized; and never has it in any one in stance been called into question. Have I not then established to your Lordships' satisfaction that this is a legal power when legally exercised, and which has never been called into question, has never been doubted until now? My noble and learned Friend says, that the parties exercising the power are liable to an action. Has any action been brought to question the exercise of this power? Did Mr. Mazzini ever bring an action to decide the point? Why did not those who questioned the power bring the matter before a legal tribunal? Why not bring an action, if an action could at all be supported in the face of what I have stated? My Lords, I felt that I could not sit silent on this occasion when my noble and learned Friends have stated their serious doubts as to the law on this subject. I felt it my duty to express my opinion on this subject, which is consistent with that of my noble and learned Friend near me (Lord Brougham). I repeat again, that whenever I differ in opinion upon a question of law from my noble and learned Friends, I differ with doubt and hesitation; but in this case I find myself fortified by arguments and facts, to which I have already referred. It is my conviction that the opinion which I have expressed is the correct one, and nothing that I have heard in the course of the present debate has induced me to depart from it. With respect to the present Bill, I think it is wholly unnecessary for me to enter into any discussion upon it. The noble Lord who has last addressed your Lordships has pursued a most extraordinary course with respect to it; he reprobates this power; he says that it has not been lawfully exercised, and that such a power vested in the Secretary of State was abominable. The noble and learned Lord makes use of all his usual eloquence to show how abominable a power it is, and how disgraceful to a country like this that it should exist. But what course does he take? He actually votes for the second reading of this Bill, which proposes to continue and to perpetuate that power, so as to render the existence of it perfectly legal. Now what course can be more inconsistent? If the noble and learned Lord thinks that this power is contrary to law, and disgraceful to the country, he should vote for a very different Bill to that which is before the House. In respect to the inconsistencies of this Bill, these have been so ex- 1082 posed by my noble Friend (Lord Stanley) who opened the debate, and my noble and learned Friend near me, that I think it would only be an idle waste of time to enter any further into this point. I shall make no observation upon it except this—one of its provisions is, that within fourteen days of a letter being received, it shall be transmitted to the person to whom it is directed; it follows of course that no other letters having reference to that transaction would be attempted to be transmitted, or would be intercepted. Now, as in the case of Atterbury, the illegal correspondence might be carried on for a period of six months, and the greater part of the valuable evidence which was procured in that case would have been altogether lost, if the provisions of this Bill had then been the law of the land. But I will not occupy your Lordships' time further. My object in rising was to state my opinion in respect to what the law in this respect really is, and the reasons upon which such opinion is founded. I have done so as concisely as it was in my power, and I do not mean to make any further observations in respect to this particular Bill.
§ Lord Denman
explained: he had been stated to have said that he had maturely considered this subject, and deliberately said that it ought to be the law.
§ Lord Denman
As to the question of power given by the Act, it had never been considered by him, and never brought before him. What he had said last year on this subject was said in the spirit of conciliation, and in the hope of inducing the Government to give their deliberate consideration to this most important subject. He had said that this was no party question, and it was one in which every party ought to have but one object in view. He had been reminded, by the former Postmaster (the Duke of Richmond), that when he filled the office of Attorney General, he had given it as his opinion that the power ought not to be continued—that he had entered his remonstrance against it; and he must say, that he felt the same objection to it still.
The Marquess of Normanby
said, that as the immediate predecessor of the right hon. Gentleman who was now Secretary of the Home Department, he had thought it better to attend these discussions, in case any reference should be made to him on the duties of that office as connected 1083 with this subject. He only meant now to trouble their Lordships with a few words in explanation of the vote he meant to give. He was one of those persons who had been alluded to by his noble and learned Friend, in his admirable speech, as having exercised this power; and his noble and learned Friend had stated that all those who had exercised power once, were influenced by the desire of exercising it again. In the general view of human nature thus given by his noble and learned Friend, he must plead on his part an exception; for it was never but with feelings of unmixed pain he had exercised such power. The question, however, to be decided that night was not whether that power should be continued or not. The question to be decided that night was, whether the Bill introduced by his noble Friend behind him should be read a second time—by which he understood, that the principle of the Bill should be adopted. Whenever the question came before them as to whether they were to continue, or not continue, this disputed power, he should be prepared to give his best attention to the consideration of that question. He would come to that consideration influenced by the peculiar circumstances of the case calling for such a decision, namely, what advantages rose from the exercise of the power, and what practical diminution of the public benefit might arise from it. He was one of those persons who was not aware of the exercise of this power until he came to the situation in which he was called upon to exercise it. What, however, was their situation at present? Not only were their Lordships aware of it, but so also was the other branch of the Legislature, and the public were not only conscious of the exercise of this power, but there were exaggerated notions prevailing as to its exercise, and thus a material diminution in the benefit that might arise from it. But then, if they come to the consideration of the Bill of his noble Friend, they would be bound to consider it clause by clause. He had done so; and he found that whilst it left the public odium of the supposed evasion of this privilege, he sincerely believed, that it would deprive the Minister of any practical benefit for the public service. He was told that the Bill once received in Committee might be amended there; but having listened to the able arguments in support of the Bill, he could not find any of them in favour of the principle of the Bill; because 1084 every one who argued for the Bill said he was against the principle, for he would prefer the abolition of the power. How, then, was it possible to support the second reading of this Bill? It was not his intention to agree to it; and, in saying so, he requested the noble Lords' opponents to give their serious consideration to the subject. The question, they might be assured, could not be closed here. After the statements made to the House that night; after high legal authorities had given conflicting legal opinions as to the particular state of the law, he thought it was necessary that the other House of Parliament and the Government should take up the question, to see whether a consideration for the public service imperiously called for the continuance of this power, and that, in bringing in a Bill, they might not limit it in such a manner as to establish, at least, a regular official record of every warrant, that which was a very different thing from a publication. He threw out these suggestions to noble Lords opposite, whilst he said that, if his noble Friend pressed his Motion to a division, he must say "not content" to it.
observed that, at the present moment, and for some years past, no warrant for opening letters was ever issued that three persons were not cognizant of—the Secretary of State, the Under Secretary of State, and the Chief Clerk. Thus every warrant issued was placed upon record; and the Post Office, too, kept a record; and in addition to these, the Postmaster preserved the warrants for his own protection.
§ The Earl Fitzwilliam
observed, that the noble Secretary of State (Lord Stanley), and his noble and learned Friend (Lord Brougham), both contended for the propriety of the practice of opening letters at the Post Office; but each for different reasons. His noble Friend opposite supported his opinions by much more statesmanlike views than his noble and learned Friend. His noble Friend contended that it was necessary for the commonwealth. His noble and learned Friend said nothing of the kind; he wanted the power as a measure of police, for tracing murderers and robbers, and hunting down fraudulent bankrupts and little thieves. His noble Friend (Lord Stanley) did not descend so low as his noble and learned Friend. [Lord Brougham: It is a gross exaggeration.] His noble and learned Friend argued so well upon different matters, 1085 that he even forgot the reasons he had urged; and as his topics descended, so did his noble and learned Friend sink in his eloquence. Now, as to his noble Friend (Earl Radnor), he could not greatly compliment him on the construction of his Bill; and if he voted for his Bill, it was not because he was in love with the manner in which he had drawn it up. In its present state, it was extremely doubtful what was and what was not intended to be the law. He, then, only voted for the Bill on consideration that the law required amendment.
said, there never had been so great a misrepresentation as that into which his noble Friend had fallen. He appealed to their Lordships whether he did not put the continuance of this power on two distinct grounds—first, for the purpose of tracing crime; and next, to maintain the tranquillity of the Empire.
The Earl of Carnarvon
, thinking that no legislation was necessary on the subject, opposed the second reading of the Bill.
The Earl of Radnor
was not prepared to defend the Bill as to its details, after the criticisms which had been passed upon it. Some of these criticisms, he must say, were exaggerated; but at that late hour, he would not detain their Lordships by dwelling on what he considered the exaggerations. He would, however, observe to the House that if they came to a division upon the second reading, it would be a division upon the principle of the Bill, and not upon its details. It was upon the principle involved in the Bill that he went to a division; and those who voted with him would vote on the principle, and not at all on the details, of the Bill.
§ The House divided on the Question, That "now" stand part of the Motion:—Contents, 9; Not-contents, 55: Majority, 46.
§ Bill to be read 2a on this Day Six Months.
§ House adjourned.
§ The following Protests were entered on the Journals:—
- "1. Because we think that the law, which in a matter directly affecting the rights, interests, and comfort of every class of the community, ought to be perfectly clear and distinct, is in the matter to which this Bill applies obscure and doubtful, affording neither a guarantee to the subject against inquisitorial tyranny and the arbitrary caprice of a Minister, or certain
1086 protection to a servant of the Crown who may be led by unsound precedents to exceed his lawful authority.
- "2. Because it does not appear from either of the Reports of the Secret Committees of this and the other House of Parliament, or from any other authentic source of information, neither has it been alleged in debate, that any danger to the State from foreign foes or from domestic treason has ever been averted or discovered by the stoppage or opening of letters in the Post Office; and we therefore gather from the experience of nearly two centuries, that no benefit arises from a practice which is so unconstitutional, odious, and demoralizing, that nothing but the highest interests of the State, involving the peace of the country or the security of the Sovereign, could justify or palliate its continuance without some such limit and restraint as this Bill is calculated to impose.
- "3. Because, even if we could believe that the opening of letters in the Post Office may have been at any past time useful to the Government and beneficial to the community at large, we should nevertheless be convinced that it cannot in future be attended by advantages at all commensurate with the evil of maintaining a system disgraceful to our Government, repugnant to the feelings of the British people, and contrary to every principle of popular or individual liberty.
- "1. Because it is doubtful whether by law any power exists of detaining and opening letters passing through the Post Office.
- "2. Because this power, as now exercised by the Secretary of State in England, and in Ireland by the Lord Lieutenant, is abhorrent from the feelings of the people, and is immoral in itself; being in violation of confidence, and requiring for its useful exercise secrecy, which in practice has been obtained by the forging of seals and the falsification of stamps.
- "3. Because being exercised secretly, it cannot be questioned; and the person who exercises it, not being known, cannot be proceeded against or made responsible.
- "4. Because, if necessary, as is alleged, for the safety of the realm, or for the purposes of police, it ought to be clearly recognised by law, regulated, and well defined; and the provisions of this Bill were intended for that purpose.
- "5. Because the clauses and provisions against which in the debate strong objections were urged, might have been altered in the Committee if the Bill had been allowed to proceed, and were not legitimate grounds for objecting to the principle or refusing the Second Reading.
- "1. Because I think the law with respect to the detaining and opening letters at the Post Office extremely doubtful; and that in a
1087 matter of so much delicacy and importance, it ought to be peculiarly clear and well defined; and because if the law really is what it was contended in the debate to be, I think it ought to undergo immediate amendment.
- "2. Because, despairing at present of the entire abolition of the practice, I highly approve of the principle of the Bill, which was meant to restrain it to cases in which it might possibly do some good, and to limit its operation within reasonable bounds.
- "3. Because if the clauses of the Bill were liable to the objections urged in the debate, these clauses might have been corrected, and the objections obviated in the Committee.
- "4. Because two most desirable objects would have been obtained by this Bill—
- "1st, The suppression of the immoral and fraudulent practices naturally arising out of the power itself; and,
- "2ndly, The limiting the exercise of the power claimed to matters of internal government, and the preventing of that interference with the concerns of foreigners, relying on English hospitality, which I deem derogatory to the character of the country, and which, as late events have proved, is likely to be prompted by false information, and may, I apprehend, endanger the general peace.
§ "KINNAIRD and ROSSIE."