Star. — London, England, 1817-06-19 00:00:00

: asit it was passed. The King had no more power • en violate .the provisions of an Act of Parliament than any other p non in the kiirgd , .m ; and to pre-1 vent Magistrates from entering prisons whenever they thougl.t proper, was a gross violation of the law of ;he lend. A jail was not the property of the King, nniess the wood and bricks of which it was built, and the ground on' which it stood. might be his property; the jail itself was not ; it WAS under the custody of the Sheriff of the County. The Noble Lord here recited various part- of the Acts of 14 1 111 Edward 111. and 30th Richard 11. to skew hoW and when they were t ilci a from tie power Of the King, and reunited to the ..ustody of the Sheriff. The Act of 9th Henry 11. was to the same effect; and.,,it was the more remarkable, As the Sheriff was ntSt then, as now, a person appointed by the: Crown, but was elected by the Freeholders as .the servant of the county. He referred to various similar and subse quent laws, and cAttewled, that under none r f them, hilt more particularly since the Act of 1791,,had the Secretary of State any right to interfere with the treatment of presons detaiti-d in county prisons, the Sheriff being in all cases answerable fur the body of the prisoner ; therefore this act of the Secroary of State was an extension of the law, and an absurder proceeding could not possibly be. For, supposing the jailer refused obedience, what power had the Secretary of State, except under the Suspension of the Habeas Corpus Act, to punish him, unless he imprisoned him in his own jail (liter, hear)? On the whole, in his opinion, Ilse letter of the Secretary was an illegal mandate ; for if Ministers had such a prerogative, it was done away by the 3lst of the King. He hoped the House would consider this subject to be worthy of Ike most grave and serious consideration. The Justices were appointed to see that no abuses were carried on in prisons; and it was a curious thing, that when a system of espiaaag: was patronised by Ministers—(Near, luar)—they should total re to prevent the person; appointed by the Crown and Parliament from ascet taming whether abuses existed or not. It must be supposed that the Magistrates .were not fit persons to be entrusted with the charge of visiting such prisons ; but it they were not lit to do their duly, why were they left .in the commission of the. peace;, Stk.upjusultable a . pro ceeding was serious to the : prisoners ; but it was . much More serious to the public, as it was absolutely . dispensing with the Bill of Rights. He should make no farther observations at present, but should only Move for Copies of Instructions sent by the Secretary of State for tile ,Home Department to all Jailers and other persons, in whose custody persons were detain.. ed, suspected of conspiring against his Majesty's Government; Arid ails of all, correspondence between any Magistrates and the Secretary of State respecting ins:ructions ..r the treatment of prisoners, &c. The A i TOKNEY-GENERAL observed, that the Noble Lib -Li !. of stated a proposition that be was not inclined v. iy, namely, that the Crown bad no power to dispe- se with the laws. But. the Noble Lord, in use c..urse of his speech, had observed to the effect, as he believed, chat the Secretary of State had introduced a new practice at a peculiar time, just when persons had been taken up who were :hewn in nocent by a verdict of a Jury. (Lord Folkston said he bad not used those precise words). He would, however, contend, that the Secretary of State had not done any thing more than had uniformly been done towards persons who had been taken up on sus picion of High Treason, and who were always corn. nutted to close custody: From the earliest times -such persons were denied all access to by orders from Government, though constant and repeated applica tions hid been made to visit them. Proofs of this would be found in a vast variety of instances in the Reports of the State Trials, previous to, and since , the Revolution ; and this right had been maintained ' • by Judges who were as great friends to the Constitu tion as the Noble Lord, or any other man. Chief Justice Pratt, in particular, in the case of Lyon, re fussed an application made to the whole Court at Bar. A Rule was only granted tor the admission of his wile, and it was intimaters, that if the prisoner wished for any other indulgence, he must apply elseavhere. The Privy Council and the' Secretary of State have had the power, from the earliest time, to grant or refuse permission to visit State Prisoners. The She riff was undoubtedly the person rho was responsible for the safety of the prisoner, apd he admitted that no other person bad a right to he keeper of a County Jail but the Sheriff; but that would not decide the question whether those who commit persons to their custody charged with offences against the State had not a fight to the regulations respecting such priso- Der* ? He would say, in contradiction to the opinion *of the Noble Lord, that every jail in the kingdom was the King's jail, although a subject may have the custody of the jail. Previous to the Act of 1791, an ' objection never was taken, and there was never less indulgence :s to access. The management of such parsons charged with crimes against the State was always deemed to be a prerogative of the Crown. Respecting perjury, the Noble Lotd was virrroo in saymg that the prerogative of pardoning was taken sway by any Act. He denied it. It was the conse queuce only that was taken away, because the Act said that no person should be admitted to give his evidence on oath without obtaining a reversal of' ' judgment. Thus the power of pardoning was not in terfered with, and the•object of the Act was for ano ther and quite a different purpose. Bat let it be re collected what the object of the Act of 1791 princi p illy was. It was with respect to jails used as peni tentiary houses, that the people might be set to work, and that the interference of the Magistrates might cause them to be kept in a state of employment. But it the Act authorised Magistrates to go into the .pri sons at any time and bold converse with the /pities seri, certainly it authorised any thing. Magistrates might go to the prisons and inquire and report, but it was not necessary that they should have private communications with the prisoners; And he was quite sure the present question never was in contemplation when the present Act was passed. Therefore, unless it could be said that au more'precaution ought to be taken with .regard to such prisoners than towards others, there could be no just grounds of complaint for pursuing a course that bad been adopted since the earliest times. Unless it were for the purpose of ar guing on the question, the Noble Lord had no right ~ -argue that any persons had been wrongfully taken i f i and he (the AttorrierGeneral) had a right, for (I A i kake of auguing tho case, to suppose that wine 4. had been taken tio hot:such as were ri;:htfully appre-1 I !tended —( Hear, ilex% hair.)—ln his huinblnopinion, I l a more chi sigerou , construction never could be put on. !any Art than was endeavoured to be put on this Sta._ Ilute ; and it was singular that this was the fiat time such an objection had been taken. During the dif ferent periods since 1791, in which the Habeas Cor pus Act was suspended, and persons committed un der it, constant applications were made to visit them, and orders as to who should or should not he admit ited were always given by the Secretary of State. He would contend that the right to order the manner in which such prisoners should be kept, was a preroga tive of the Crown, which had been constantly exer .cised by the Privy Council and the Secretary of State ever since.the passing of the Act of 1791, without any objection being made. The question in short was, whether the importance and necessity of keeping State Prisoners is close custody was to be done away, by giving a power to visit them by persons who night wish to converse with them. He did not un der.tand the difference made by the Noble Lord be tween the Tower, as the King's prison, and other jails. When the Act for suspending the Habeas Corpus had given the Secretary of State the power of confining a prisoner in any jail or the kingdom, it made that jail a State prison. There was. therefore, nothing in the law, which prohibited the Secretary of State from doing that which had been done at all times, and, therefore, there was no ground mode out for laying before the House hit instructions and ctn., respondence. He should consequently oppose the motion, as what the Secretary of State bad done he' had been fully warranted in doing. Sir SAMUEL ROMILLY would say for him sell, that he had never heard doctrines of law more novel than those wl:ich bad fallen from his Lear. ned Friend, die Attorney-General—( Hear, hear.) — It was of i little importance to iaquire what the power of the Crown was in this respect before the Act of 1791. What were the powers enjoyed by the Secre tary of State and the Privy Council before the Act, of 1791, was a subject of inquiry, which it was not now necessai y to enter or, ; and therefore he would not at present foLow his Learned Frieed through, that part of the subject. But the question was, whe- 1 ther, after the Act of 1791, the Secretary of Sta.e should be conedered as entitled to give nirections that Magistrates were not to be allowed :o sisit any of the prisoners in the gaols within their jurisdiction. The questi in was one of the greatest importance which had ever come under discussion before any tribunal in this country, namely, whether the intro gative of the Crown could be taken away by Act of Parliament, otherwise than by express words ? It had been contended by the Learned Attorney•Gerierat, that the prerogative could in no case be taken away but by express words. But though this might be true with respect to some subjects, it did not apply to the present case. It applied to the case of certain . civil rights, debts due to the Crown, which 'Could not be affected by statutes of limitation. The right to recover debts could not, in like manner, he ob served, be taken away by the Bankrupt Laws. But t was rt ever before held, that in acts of general regulation the prerogative of the Crowd could not be taken away, except by express words—(Hear, hear.) —lt had been expressly decided, that the power of the Crown could, in matters of general regulation, be taken away by Act of Parlianient, though the same were not stated in express worda--(diesay.).-oin the well known case of Magdalen College. in Lord Chief Justice Coke's Reports, the question was, whe. tber the power of the Crown was affected by the re. straining statute respecting Colleges and Ecclesiasti cal Bodies I Magdalen College had made a grant to Queen Elizabeth, and it was held by all the Judges coat the Crown was precluded under that statute frum receiving the grant; because this was not a question merely with regard to property, but was a matter of general regulation—(Hear, hear)—and all theJadges were unanimously of this opinion. 1 thought be might say that there was not only no decision, but that there was even totdictum in any books of law that die Crown was not bound by a law of general regulation, though .the name of the King were not even mentioned in that law, and though it were nut stated that the prerogative was in so tar abridged.— The Act of 1791, expressly authorised any Justice of Peace, on his own suggestion, to visit all the g aols within the county; and here the Secretary of State issued orders, that if he came to particular parts of the prison, he should not have access to them. Since the Bill of Rights, it had not been usual to advocate directly the odious doctrine that the Crown had the right of dispensing with statutes ; but what was. this doctrine of his Learned Friend in effect, but claiming a power to dispense wi t h t h e l aw ? He would ask those who maintained that a Magistrate could dis charge his duty under the Act of 1791, without hav ing any communication with the prisoners—it he was not permitted to see the prisoners—if he could nut speak to them—it he could not examine the dungeons in which they were confined—it he could not inquire into the state of their health—bow could he possibly ascertain the state of the gaols and report concerning them. It was impossible to exercise the duties en joined by the Act, but by seeing and conversing with the prisoner. The Act was expressly made on ac count of the abuses in prisons, and the misconduct of gaolers; and he was afraid that the House would always be obliged to have a strict eye on prisons, as places where power was more likely to be abused than any where else. The Act expressly said, that the Magistrate might visit them whenever he pleased: and now came tue Secretary of State, and said he should not. His Learned Friend said, such a power to any Magistrate, never could be in the contempla tion of the Legislature at the time of passing the Act —(Hear, hear) ;—brit that had nothing to do with the question. It was not what was in their contempla tion, but what they had actually done—(Hear, hear). And he should be astonished indeed it any other Gentleman in the protessicn should follow the At torney General, and say that the Crown was not bound by an Act passed for the general regulation of prisons. hie called upon them to produce any deci sion of any Court, any dictum of any text writer, or any authority in support of such dOctrine. But they could not. *ibis would, in taetibe placing the Crown above the whole Legislature. (Hear, hear.) Because it was saying, no matter what regulatioes the Legis lature may adopt for the sake of humanity and jus tice, we will take care with respect to certain priso ners that teey shall nut beottit by such regulations. This was a doctrine, however, which ought to Curate supported with softie more authority than the mere assertion of an Attorney General. The SOLICITOR GENERAL said his Learned Friend (the Attorney General) had not contended that the Crown was not bnund by Act of Parliament, but that the right of the Crown, as it stood before the passing of this Act of Parliament, was not taken away by it. if it was coetendeJ that under this Act a Magistrate might visit State Prisoners what and where he pleased, then during the trial ot &Ate Pri soners, any Magistrate might have Access to them, and make all communication to them that he pleesed. Mr. BROUGHAM said, that all he had heard from his Honourable and Learned Friend naposite, had merely served to confirm him in the opinion which he formed of this case when it first came before the House. He would take it upon him to say, that a more le: , ble defence than that which was how set up in this case had never been heard within the walls of that House—(Hear, hear). He spoke without the slightest disrespect personalty to his Honourable and Learned Friends. It was tee fault of the case, and not their's ; and all their talents, karning and skill, had been utterly unable to give even a colour of jus tification to it. The Learned Gentleman (the Soli citor-General) assumed that his Learned Friend (S r Samuel Romilly) had admitted that before 1791 solitary confieentent made part of the Law of Eng land, and that as rigorous as the Crown pleased.— Good Gon, was this the Law of England I Who eves thought of . giving the Crown the power in all the details of torturing prisoners in this manner ? His Learned Friend had not thought proper to enter into any inquiry respecting the I.aw prior to 1791, because the Act of 1791 expressly empowered Justices to visit prisons, and to inquire into the abuses in them! Herr was a specific Statute call. ing on Magistrates to visit all gaols ; and the question was, whether in the teeth of that Statute the King's Minister could issue an arbitrary mandate, and say that certain prisoners should not be visit ed ? It was said that the purview of the Act was the regulation of Penitentiary Houses ; and so, in truth, it was in the first four sections.— But in the fifth section it was expressly said .iand for the better preventing all abuses as well in Common Gauls as in Houses of Correction"—(llear, hear.) And Magistrates were expressly authorised to exa mine into the treatment and conduct of prist.ners, at such time or times as they might think fit, and to report concerning the same. Now could this exami nation be carried on, if the right of examination should be confined to the mere walls and earth ot the prison ? How could they report tespecting the treat ment of the prisoners, by on.y looking to the walls on the one side of the prison, and the floors below and ceiling above them. The Act could mean but one thing, the power to examine tae :.eeeers themselves, and to ask them questions respecting their treatment. The section in question could have no earthly mean ing, it it did not oust that power of the prerogative winch was in this case claimed, and authorise Magis trates to exeminv into all prisons and inquire into all abuse,. but in what Statute, he wou.d ask, were State Prisoners mentioned? What book of law, what dictum, divided State Prisoners from other prisoners ? --(Hear, hear.) All prisoners were the King's Pri soners, and without his authority it was impossible they could be committed and brought to trial. And it was as illegal as it was a mockery ef common sense therefore to distinguish two sorts of prisoners, 'and to say common Prisoners and State P - f.sosers— (Hear. hear.) It had been said the Crown had a peculiar interest in the prosecution of State Prisoners, but was not the Crown as much interested in the prosecution of theft, murder, and robbery, as of se dition. This was the first time, he believed, that two lawyers had got up and stated what was as repugnant to common sense as it was repugnant to all analogies of the law, and unknown in all the'Courts of this cella try. It had been said there would be a great inconve nience if all Magistrates could go into prisons and hold communications with State Prisoners. But he would say, that if a Magistrate did that which was improper, he was amenable to the proper authority— it he abused his trust, he might be removed from the Commission, and further steps might be taken againit him. But then it was said it would be attended with ' 1 another consequence —prisoners might be examined net only before trial, but even pending trial: and has Learned Friends, from their experience, appeared to consider State Trials as necessarily a thing ot wery long endurance. But this was one. of the very worst practices which could possibly take place. GOD tor bid, that when we talk of State Trials, we should think of an exception from a proper regulation from what had happened in the late long continued State Trials. They had seen, when lately an signed for high treason, a list of 240 witnesses furnished to them. To be charged with treason was suilicient to harass and bewilder the mind of itself ; but what could be compared to the being kept day after thy in suspense till the close of a bungling prosecution ? (Hear,hear.) His Learned Friends were not to blame for this— the preparations for the trial were beyond their de partment. The whole of these proceedings for trea son gave rise to nothing but feelings of disgust ;they Ivilified that which was never betose considered but with feelings of veneration. Gon forbid that we should again, from the long continuance of these trials, give an arbitrary power to the .Secretary of State. merely to serve the purpmes of patty. Lord CASTLEREAGH said there was no elle gatiou that the Prisoners of State had been subjected to any improper treatment. He apprehended it was not merely competent for the Secretary of State to issue warrants fur the apprehension and commitment of persons charged on oath with high treason. Every Magistrate might commit for high treason ; and it he committed, it could nut be otherwise, than the person committed should be held in close mad safe custody.. It would be a breach of duty in any Ma gistrate to,comme otherwise. Though the Honour. able and Learned Gentleman seemed to philosophize On this subject —(ellaugh).—Ttie laws at England, from the eallieat to the latest period, had meat a dis tinction between the prisoners for treason, and other offences. The law 01 1791 WAS the only peg upon which the Honourable and Learned Genilernan could hang an attempt at argument. Though he saw no distinction, the law of England, which was wiser than the Honourable and Learned Gentleman, lied always made the distinction, and uniformly proceeded en the distinction which had been taken. The goes don was, whether the Act of 1791. did make any such alteration in the general tenout of the law as to the offence of tre. and had been set but to all other from the circum shuttld put ou The Act of 179 ptesettt instvlce abuse had taco p. _fon, a s;moe point o f 0 law, 03 which he hop e d th e Him* vn A d t i n-)t deci .le indirectly, so as io chanve the linisruderice. With the grr.ttest reytet tor the irtahistrates, he was not prepa; e.l to say, that in all yrnsiine circumstances it would be ptoeser to allow them to 0.• what Rs contended for. If an improp..r course had been rm. sued as to the gaoler of Iteaclin, ga'4, it might be brought to adjudication. As to she ii . .ro2rable and Leatnrd Gentletn:in, lie had taken as:vantage of temporary feeling to mike an ant mpt to t iodine in unfair impression. Never was there a more nnirtr. ded attack; to clia:ge the Governmert with a bin. gling prosecution—( //ear from th Optcri•ims); to l a) it to them as a thnge, that a trial had i..sted a num ber of days—(Hear ! front the Gpisetiion tide). He lamented that the ti 41 had lasted so long ; he thou g h ; it was unfortunate that of late State trials had tarn that turn. Bin the length of them was to be attri buted to the extent of time during which the criminal designs were charged to have been carried on, and the candour of the Court and their 'patient examinap Lion. This W4S only another instance in which the point of the Honourable Grntleman's attack was ell_ aimed by the want of eat.d orr, so that they prod:l:rd as little effect out of the House as the votes sherird they did within. Lord A. RADII LION said, uo one had ti-enii..d or could deity that abuses might take place as to stoners committed by the Secretary of State's sea:. rant. What then was his remedy, when soch a';;;;:i were committed ? The prisoner was depnvec!•:: tits remedy by Habeas Corpus—by the Act v.hich was passed. If tins power on the pert of the M.igiStretteS was taken away, what possthle remedy et,uld have ? He might be transferred horn jail to jai round the kingdom. It was said no ahuse had be..n alleged. How could any abuse be alleged, if no communication with the prisoner were all.wed ? The censure which the Honourable and Learnel Gentleman (Mr. Brougham) had applied to the Stye prem.:onions might be extended to a nerobout:iig country, Scotland—t hese a marl had been if red tivic.: tor one offence, and was now to be tried a third time . He hopes!, it the mation was rejected. it would at least operate as a V/4111111g to the House against curs• sewing to pass a measure which gave rise to such practices on the part of the Secretary or State. Mr. WYNN said. that he tame into the Home undecided upon this subject. He had thought the explicit words of the Act were lot to be coriticulee. bet he bad suspended an absolute judgment. lie had heard nothing which had shaken the words of the Act. There might be inconventencies attached to the execution of that .law. It did not Ptft•ct the prerogative in that direct way, whicrs could make it necessary to introduce rpectric words into the Act, respecting that prerogative. It it had yenerally taken the contioul of State I'tisoners out of tn.: lands of the Crown, it could not have been effectoal without a distinct telerence to the prerogative, ha: au allow ance to the Magistrates to visit prisoners, could not be considered as an encroachment on the petogative. kie should therefore support the motion. For the Motion, ,76—Against it, 85—Maj.rrity, FRAVDCLENT VoTES.. When re-admitted into the Gallery, we found— Sit FRANCIS BURDETT moving that a Pet--' thin be held in his hand be b:ought up. h was trora the same voter for the Borough of Haslemere, whose former Petition had been rejected. It .vas framed in aclitierent manner, and p ra y e d no cous: d era : ;:n his particular case, but a revision of the law, in order to prevent fraudulent practices. Mr. BANKES objected to toe motion for hril:;;•z up the Petition, on toe ground that the indtvi.: acknowledged' himsdf guilty ut perjury.—(Cey alit appeared mat the matter WU bet. :el Court of LAW, and at would be iinpioper to briny It before the House. Sir FRANCIS BURDETT said, be had no wiib to break through th e ru l es o f th e House, but the Pe tition appeared to contravene no rules; nor did we Petitruner state, that. he had committed perjury. lie stated, that a fraudulent cony f _l a st b e cu _ol 1114. k to him of property, to enable him to vote ; and alter he had voted, an attempt was made to take ilia freehold truth him. He considered, that if he itora 4 7 esced in that demand, he should have beer. r .Jilty perjury. Legal proceedings had been cc against bin'. Some perscos ni t,t contenifoLit this WAS a breach of trust on the pal tut the But this man asked tot no iiiterlereuce as to Or Courts below, but humbly prayed, that the Hoeg would take the matter into con,idciatinn, to FIVVeLt the fraudulent criticise of the Llective Fr i nclases whereby ignoittrd persons like hirn.eli might be I 4 valved in sumo, ur in th.: crime of papal. Lord COCHRANE said, all the perjuries bad 14144 wituesaed ILI the Court; of Law had itch , totted from the corruptions in that House. Tae .Q totious breach of the bribery 0.4::3, and the tont:an:A ol the solemn u:ljuratiun id the Chest ox's name, could not be peinlittrd to continue without a complete derninalization of the country. He pleiged tiine.elt to bring li‘rward a motion on the subjects founded on sptcitic fees, which hr should have pro duced sooner, it private ciscumstances had act de layed him. Mr. LONG, before he :poke on the present cues. tion, wished to correct a misrepresentation of %.oAt he had said on a former night. He bad been stata Istve.said, that what had been alleged Mi. Reynolds was unfounded. He knew notreng e: Mi. Reynolds. With respect to the resent pet:covet however, he (Mr. Long) had oleerved should be able to spew that what had toots lard r• spouting Lis Nolde Friend (I.nrJ Lonsdalc) as to ik clue:instances mentioned in tots l'etiti"r, Nem "*W.: Ott I , )LAIRJALIon. lie did not see horn the r ?„ put could interfere. Toe nr4ll was now in possessieri • the trcehold of which he spore, and which his ter conscience, lie pretended, prevented him f r om up. As to his tetilci conscience, he tiad received a letter trim this r• a 1 mil of a sumo et incney ; and stating, that el t • consideration he would give op tl.e creer.•• • lerr,;?g ) It was in COl:totqUt:llCe of h'S Wt. i • that a Pto;et..4 tt as C;nt•n.zti:t !non. WRs not tew 4:lo.e.t:tdn. Ale,' before, not malt , as tt , tt . e 'rower prisons.ll...c.ause that th e T ozer , nstasa e ot ()Ping a l(U) I tattiaza., Lit ta the ottlic-ry trash el [I wit to retntdy abwc., hit in. the i t 1,43 not been g that illy i Nl.cc. It wits, theseforr, a s;ola.i.