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HOUSE OF LORDS.
Thursday, December 9.

MISDEMEANORS BILL.] The Earl of Shaftesbury reported the bill, intitled "An act to prevent delay in the administration of justice in cases of misdemea

nor."

The Lord Chancellor proposed several verbal amendments, which were made on the report being brought up. One related to the granting of copies of indictments to defendants. In certain cases defendants were already allowed copies before appearance; he therefore proposed to insert the word, "after," in order that they might be granted after appearance.

Lord Holland did not rise to oppose any of the alterations suggested. He was glad to find that the noble and learned lord was so readily disposed to amend the bill. He now rose to move an amendment to the effect, that in cases of information exofficio, filed by the attorney-general, if the defendants were not brought to trial within eighteen months, such information should cease to be of any effect, unless there should be an order issued by the court for further delay. He moved this as a clause in the present bill, because he thought it of importance that in a bill, the object of which was to hasten trials for misdemeanor, by taking away the privilege enjoyed by defendants of traversing a disposition should also be shown to prevent delays through the conduct of the prosecutor, particularly in the case of ex-officio informations, which might be kept inter minably hanging over the heads of individuals to the destruction of their peace of mind, and perhaps of their property, without any means, at present existing, of compelling the attorney-general to proceed

with them.

The Lord Chancellor admitted the importance of the considerations urged by the noble lord. It was, he believed, true, that there were no means of forcing the attorney-general on to trial. In other cases, the defendants might carry down the record by proviso, but where the attorney-general was prosecutor, the defendant could not carry down the record without a warrant from that officer. He admitted it was of importance to consider whether any means could be adopted of shielding a defendant, under such circumstances, from the effects of unnecessary delay; but he thought that to do it effectually, and with a due regard to all the

considerations involved, required more machinery (if he might use the expression) than the clause of the noble lord afforded. In crown cases, where there was what was called a private prosecutor, the defendant, though entitled to carry down the record if the prosecutor did not proceed, yet he must tender himself for trial and abide by the consequences. The noble lord's clause contained nothing on this point, but merely went to enact that the information should cease to be of any effect. In one case in the court of King's Bench, where a motion was made to force the attorney general on to trial, it was suggested by one of the judges, that the object might be attained by moving for a trial at bar, which, if the court granted, they would fix the day for the trial. He did not, however, mean to say that the subjects of this country ought to be in that state in which, in cases of prosecution by the attorney-general, they, could only force that officer on to trial by moving for a trial at bar. If the noble lord would withdraw his motion, he would endeavour by the third reading to frame some clause that might meet the object in view, or else he would state what he conscientiously felt upon the subject. It was frequently not the fault of attorneys-general that the parties they prosecuted were not brought to trial.

Lord Holland was glad to hear what had fallen from the noble and learned lord. The subject, however, was not new to the House. Five or six years ago he had called the attention of their lordships to it; and two years ago, it had again been brought under the consideration of parlia ment. His mind was made up on the subject; but if the noble and learned lord would himself introduce a bill to remedy the evil, in case it should not be convenient for him to consider the matter fully before the third reading, he would not press the clause. As the noble and learned lord was of opinion, that to make some alteration in the present practice was a subject worthy the attention of the legislature, he hoped that either by a clause on the third reading, or by the introduction of a new bill, the necessary amendment would be made. Perhaps, by the time the bill was read a third time, the noble and learned lord would be able to come prepared for the consideration of the subject.

The Lord Chancellor observed, that the measures which the noble lord had alluded

to as having been already before the House, differed from the present proposition. He understood that it was intended to move the third reading of the bill tomorrow. Whether a matter of such importance as that suggested by the noble lord could or could not be by that time arranged in his mind, in a state fit to be introduced as a clause, he could not tell; but if no provision should be made on the subject in the present bill, he should certainly think it his duty to give all the assistance in his power to any measure which might be brought forward on this subject if he thought it proper, or conscientiously to oppose it if he thought it wrong; for until he fully considered the proposition which might be made, he would not pledge himself.

The Marquis of Lansdowne expressed a hope that the noble lords opposite would agree to postpone the third reading of the bill till Monday. Their lordships would not, he trusted, allow the inconvenience arising from a short delay to stand in the way of justice. It was of great importance, when, upon grounds some of which he would admit were strong, it was proposed to deprive the subject of valuable privileges, that their lordships should endeavour to redress any grievance which might be discovered in the administration of the law. The noble and learned lord had on this, as on other occasions, evinced his readiness to consider any proposition of that description. It had, with respect to this bill, erroneously gone forth, that the noble and learned lord had laid down the law in the case of the Seven Bishops as the foundation of the measure; whereas he had done no such thing, but in adverting to that case, had observed, that the defendants had a right to imparle, and were hardly dealt with when that right was refused. If it appeared that the subject suffered injury by the delay of prosecutions at the suit of the Crown, that injury could only be removed by obliging the attorney-general to bring on the trial within a limited period. It was but justice to furnish the subject with some facilities in return for the privileges which were taken away; and a provision, which would prevent prosecutions from hanging interminably over the head of defendants, was one to which their lordships' attention should be seriously applied. If, by delaying the third reading of this bill for two or three days, the noble and learned lord should have time to make up his mind on

the subject, a considerable advantage would be gained; for the provision would form a very appropriate clause in the present bill, and would be better so introduced than if made the subject of a separate measure.

The Earl of Liverpool said, that if his noble and learned friend could be prepared to propose a clause by Monday or Tuesday, he would have no difficulty in postponing the third reading.

The Lord Chancellor expressed his willingness to give the subject every consideration in his power, but still thought it would be better to make it the subject of a separate bill.

The report was then agreed to, and the bill was ordered to be read a third time on Monday.

BLASPHEMOUS LIBEL BILL.] Their lordships proceeded to the consideration of the report of the committee on this bill.

Lord Holland objected to the bill generally, but thought it right to propose some amendments, with the view of confining its operation to that offence, the prevention of which those who supported the measure professed to have in view. The alterations which he had in view, would apply chiefly to the fixing what was to be understood by seditious libel. As to blasphemous libel, its nature was well understood; and with regard to it, nothing, he thought, had occurred to justify any alteration in the law. The number of publications of that description had been greatly exaggerated; but if they had been as numerous as they were described to be, exceeding every thing known in former times, their lordships ought to recollect, that, in like manner, there had been an increase of publications of every description. It was not, then, the number of blasphemous libels which their lordships ought to to take into consideration, but their proportion to other publications. At the same time, whatever the number was, it had not been shown to their lordships, that the existing law had been enforced against them. As the definition of blasphemy was well known, he should not offer any amendment in reference to it. With regard to sedition, it had been declared by the supporters of the bill, that it was their wish to confine it merely to seditious libels. Now, what a seditious libel was, had never been settled. He conceived that those who said they wished to confine the ope→

[962 ration of the bill to seditious libels, meant cessity of considering what effect any althereby libels exciting to a change in the teration of the law in certain cases might government of the state. They could have, had been strongly urged. Had their therefore have no objection to what he lordships ascertained what effect this pumeant to propose. Their lordships must nishment of banishment would have upon be aware, that very different ideas pre- the property or even the life of defendvailed in the minds of individuals as to ants? Were their lordships prepared to what constituted a seditious libel, and place subjects of this country under the therefore they must see the necessity of arbitrary authority of foreign powers, for removing the uncertainty which existed such offences as that contemplated by the on the subject. This was the more neces- present bill? It was proper they should sary, when they considered that by a look well at the policy of a measure which merely accidental connexion with some proposed to punish so unequally the same publications, persons having an interest in offence; for the severity or leniency of them were liable to be punished for the the punishment would depend greatly acts of others. It was, indeed, in many upon the disposition of the sovereigns to cases held, that the master was respon- whose dominions the individuals might be sible for the acts of the servant; but what- banished. In going to Holland, France, ever objection there might be to this as a or Italy, the fate of the exile might be general principle, it was not now his in- better than in some other countries; but tention to bring the law on that subject if the libel should be of a nature to give under consideration. He presumed that offence to foreign powers, the author it was the wish of those who supported the might be denied an asylum. This ought bill to reach the real offenders, and that to be a matter of consideration, more esthey did not intend the punishments it in- pecially in the present state of the contiflicted to apply to any persons except nent. The person banished might be conthose who wrote libels which had for their signed to the mercy of those who would object the subversion of the state. The be disposed to aggravate his sufferings; first amendment he should propose would and when discussions on government and be in the preamble, by introducing into it the state of the liberty of the press in other the words "knowingly, wilfully, and ma- countries were going on, was there not liciously publishing." In the first clause, reason to suspect that this measure might, which refers to cases in which any verdict have such an effect? He had somewhere or judgment by default shall be had against read in an old book, though his present any person for composing, printing, or recollection did not enable him to refer to publishing any blasphemous or seditious it, that much praise was due to the law of libel, and provides for the seizure of the co- England for not having introduced into it pies, he proposed to introduce the words the punishment of banishment. The reaknowingly, and maliciously composing, son assigned, if he recollected right, was, &c., with intent to excite his majesty's sub- that the English government and laws jects to subvert by violence the govern- were peculiarly jealous of foreign influment as by law established." If any other ence, and that therefore the punishment words could be proposed which would of banishment was avoided. In this view better define the nature of a seditious li- he agreed. If men of active spirits were bel, he would gladly agree to substitute engaged, as was asserted, in designs hosthem for those he suggested. But their tile to the public peace, was it wise or prulordships would consider how necessary it dent to teach such persons to look to fowas to have some precise idea on this sub-reign powers for a mitigation of their ject; for, in the vague state of the law lot? In this way effects might arise from there was scarcely any political libel which the introduction of this new punishment, might not be called seditious. There was which it would be well for their lordships another part of the bill to which he wished to consider. If they referred to history, to apply an amendment. When he ob- they would find that no free state (he did served the introduction of a new punish- not allude to the states of antiquity) had ment for libel, and one which was un- adopted the punishment of banishment for known for that offence in any other part political offences. It formed part of the of Europe, he must say, that such a cir-law of Scotland, but only for felonies of the cumstance was calculated to excite no lowest description. This general disinclismall degree of suspicion. In the conver- nation to the punishment of banishment sation which had recently passed, the ne- was to be attributed to the wish which (VOL. XLI.) (3 Q)

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clause enacts, that the clerk having the custody of the records of the court where a person has been convicted, shall, on the request of the prosecutor for the king of a new libcl, make out a certificate, containing the effect and substance only of the former indictment and conviction, and that this certificate shall be proof of the conviction. He would wish to omit the whole of this clause, and leave the proof to the usual course of law. If any convenience was to be gained by the government by this brief description of proof, then grant the same advantage to others. Either hold by the ancient principles of the law, or if innovation be determined on, let the change be fair and equal to all. The next clause to which he objected was that which limited the period of bringing actions against magistrates or others for what might be done by them under this bill, to three months. There was already an act on the subject of bringing actions against magistrates-he believed the 24th of George 2nd-and he saw no reason for deviating from that general law. He should therefore move to reject that law. These were the amendments he should submit to the consideration of their lordships. He concluded with moving the first amendment.

every country had to prevent foreigners | given of conviction of a former libel. The from interfering in their domestic concerns. How far the spirit of vengeance might lead to interference with the concerns of this country, if such a punishment became. common, was well worthy of their lordships consideration. But it seemed hard that the onus probandi should always be thrown on those on his side of the House who objected to measures, and not on the ministers who proposed them. How different was the case when any measure was brought forward from the side of the House on which he stood! If an humble individual like himself proposed any thing favourable to the rights of the people, was he not invariably called upon to show the grounds, and the consequences of adopting the measure? Were he or his friends in such cases ever permitted to throw the onus probandi on the noble lords on the other side? A bill had been brought in last session relative to this very punishment of banishment in the law of Scotland. Gentlemen of the law, it appeared, were often condemned to be sent from that country to this. Some Scotch lawyer, however, thought the punishment of banishment not sufficient, and a bill was introduced into the other House to authorize the sending of the banished Scots who might be found in England, out of his majesty's dominions. His noble friend near him (lord Lauderdale), when the bill came before their lordships, moved that it be rejected. That motion was agreeed to, and he had a right to infer that it was adopted upon the principle, that the law of banishment being unknown to England, it was not proper to interfere with its execution in regard to Scotland. He had stated considerations which ought to induce their lordships to hesitate respecting this part of the bill; and until the questions arising out of these considerations were answered, he could not agree to the clause inflicting banishment. Their lordships surely would not consent to render that punishment a permanent part of the code of this country, until they clearly saw what were likely to be the effects of such a change in the law. He would, therefore, move, to strike out the word banishment from the first clause in which it occurred, and if that motion were agreed to, he would make similar alterations in other parts of the bill. Supposing his first amendment agreed to, he would next propose an alteration in the clause respecting the certificate to be

The Earl of Harrowby rose to express his objection to the amendments of the noble baron. The first amendment attempted to define a seditious libel. The noble baron, however, had at the same time complained, that it could not be accurately defined, and that it was unjust to affix a severe penalty to an undefinable offence. He had maintained, that the offence might be so slight as to require only a slight punishment, and that an heinous punishment ought only to be awarded to a heinous crime. Now, this was precisely the course taken by the law as it now stood: the bill supposed different degrees of guilt, and left it to the discretion of the court to apportion the punishment accordingly, either fine separately, or imprisonment separately, or the two together; or, in case of second conviction, fine and imprisonment, or banishment, or transportation. If, therefore, the words of the clause should stand exactly as they did at present, no injurious consequences, would follow. It was obvious, too, that in cases which the law called seditious, where there was any room for a reasonable doubt, juries

phemous and seditious writings? The inequality of which the noble baron complained applied to all descriptions of punishment. Parliament could only look to the nature of the offence, and not to the particular persons committing it. It was true, that to individuals in a certain class of life, transportation might be no terror at all, while to another it might be a

same inequality belonged to the punishment of imprisonment; so that there was no reason that banishment should be condemned on that ground. It was most necessary that a description of persons such as he had described should not be suffered to prey on the public weal; and it was right that they should be treated. like bad humours, which ought always to be removed before they grew sufficiently strong to destroy the constitution.

Lord Ellenborough could not conceive how a man could write a blasphemous or seditious libel ignorantly, or publish one accidentally: but he rose chiefly to state what had occurred to him as a definition of a seditious libel. It was, he would suggest, one calculated to bring his majesty's person, or the government and constitution, or either House of Parliament, into hatred or contempt, or calculated to excite his majesty's subjects to attempt any alteration of any matter in church or state as by law established, otherwise than by lawful means.

were extremely cautious in finding a verdict of guilty; and this caution would of course be increased, when a second conviction was sought; so that the probability was very small, that a man would be convicted on any vague and indefinite grounds. Yet, if it was the opinion of the House that it would be better to make some attempt at a definition of a se. ditious libel, he would not object, not-source of very great terror indeed. The withstanding the extreme difficulty of making such definition. Their lordships were not left entirely without a precedent for such an attempt; for in 1796, in a statute passed for the purpose of preserving his majesty's person and government, a description was given of a seditious libeller in the following words: "Any person who shall maliciously and advisedly, by writing, &c. express or publish words or sentences to excite or stir up the people to hatred or contempt of the person of his majesty, or of the government and constitution of this realm, as by law established." Some such words might, if their lordships pleased, be introduced into the bill, and would probably answer the object of the noble baron. As to the other amendment, which went to omit the penalty of banishment on the ground that it was unknown to the law of England, he could show from the same act, that "a person on a second conviction may be adjudged, at the discretion of the court, either to suffer such punishment as is inflicted in cases of high misdemeanor, or be banished the realm, or transported." It was true, that the act in question was not a permanent one: that, however, had nothing to do with the objection, which was, that the punishment was unknown: whereas, this statute Lord Erskine, though he felt the utshowed that it had been the law of the most abhorrence at the disgusting blasland, and had so continued for three phemies circulated among the lower years. But, even if it had not been so, classes, did not think any additional it was still competent for parliament to punishment necessary for their suppresaffix to any offence any punishment which sion. It was true, that transportation, it might think most fitting under the par- properly applied, was a useful punishticular case. No man could deny, that if ment: impurities, which if suffered to such an atrocious libel as he had describ- remain, might lead to contagion and ed should be published, it ought to be death, should be put forth; so should visited with severe punishment; but as persons dangerously injurious to the the law now stood, the offence might be country; but was it right to send them repeated, so that the life of man could forth to a new colony, to poison the not be sufficient for the punishment which hearts and understandings of an infant the multiplied guilt might require. And state? Besides, as far as the offenders could their lordships figure to them- themselves were concerned, a greater puselves any set of men whom it was more nishment might be inflicted under the fitting to get rid of than those who earn-existing law; he might be imprisoned for ed a livelihood by the daily issue of blas- each fresh offence, and cut off from the

The Earl of Liverpool observed across the table, that he had no objection to this amendment, with the addition of the words-" or the person of the Prince Regent."

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