Star.
London, England, 1811-03-05 00:00:00

the abuse, and not the legality of
that was to be questioned, allowing
or necessity of the existence of such
did he wish to suppress that power,
ercised with a view to the constitution.
abuse of it, which he dreaded, and
he propose inquiry, in order to detect
abuse, if it existed. If he looked to later authorities
who disapproved of the power assnmed by informa-
-1 tions cx officio, he had on his side Mr. Wedderburne,
and Mr. Dunning, whose acuteness of judgment and
knowledge of law was only equalled. by his love of
liberty. Now there were two modes of proceeding
against libel, the one by civil action, the other by in-
dictment—the former was only as between party and
party—ln the latter, no man could be convicted of
libel or misdemeanour unless grounds were proved
befere twelve men upon oath.—But in the cases of
whit!' he was complaining, when an information ex
officio was filed against an individual, he was brought
to trial as if a Bill had been found against him by a
Grand Jury. To the highest authorities which he
had already cited, he might now adduce the autho-
rity of Judge Blackstone—Blackstone was not a man
remarkably strong in his animadversions on the abuse
of power. His book, equally conspicuous for the
soundness of his reasoning and the elegance of his
style, might rather be considered as a panegyric on
the Constitution and the Laws of Great Britain. Judge
Blackstone declares,indeed, that the Attorney-General
may proceed by informations ex officio, but that then
only should he proceed when the misdemeanours
againit which he is proceeding are so.enormous,
as that they threaten the destruction of Govern-
ment, and so urgent and' dangerous that not a
moment's delay Should intervene between the sup-
pression and punishment of them. What do these ob-
servations imply ? They imply indeed the necessity
of the existence of such a power, but that when it is
exerted for any purposes short of the suppression of
dangers nf the most fatal magnitude, and of the most
urgent emergency, the exercise of it is a most flagrant,'
abuse. Now who will hazard theassertion that thelibels,
against which informations ex ?Pio, have lately beenfrli
filed in such numbers, were of the description of that
' urgency, and that fatal magnitude to the State, which
these great authorities allow may justify the exercise
of such a Power ? . On the contrary, was there I
any thing in them which carried with it any of the
characters of such urgency and enormity of an evil
which was immediately to be suppressed by such an'
extraordinary exertion of power ? and if these cha-
racters did not justify it, are not we warranted, with
Blackstone, in describing it as a most flagrant abuse?
Now, it not only appears Irons the best authorities, that
this power is liable to abuse, but that such a mode of
proceeding is less favourable to the accused than any
other mode of prosecution, and that therefore it is ir-
reconcilable with the spirit of our laws. If the mere
liability to abuse ought to be guarded against, what
; ought not to be done if the power should be perverted
Ito the worst of purposes ? Is it not clear that such a
power may be exerted with a view to extortion, op.
, pression, and influence ? That it may extend wive
city even beyond the crimes which it is employed to'
punish. Even in case of a libel, what delays haver
been allowed to intervene between a conviction and.
the bringing up for judgment ? He hoped theis‘
Lordships would reflect how enormously this evil has
increased for the last three or four years: Since 1806
no less than forty-two persons have been proceeded
against in this manner—and out of those forty-twoi
only sixteen have been convicted. Were their offences
then, of that description of enormous misdemeanors,
the punishment of which could not be allowed to stif.'
fer a moment's delay without imminent danger of
destruction to the State ? Have thirty-six of these i
enormous crimes been suffered to go on unsuppressed
and yet no danger has accrued from them to the
power and security of the State ? In what absurdities 1,
would such doctrines and such practices involve us ?
It is also to be observed that the number of persons
proceeded against has increased ; so also has that
power been most pointedly directed against those who
rare engaged in the press. With what purposes then
Is not this power of information ex officio used, if not
for the purposes of terror and influence ? He was one
of those who did think that some distinction should
be made between the malicious intention of the maa
who uttered the libel, and the situation of the person
who, without ever having harboured any such inten-
tion, might be entangled in the consequences of it.—
He had with him in this opinion the authority of one
Attorney-General (Sir A. Pigot), a man of the most
constitutional principles, of the most unvarying stea-
diness of character. During the period that Sir A.
Pigot held the high office of Attorney-General, he
filed only one information cx ojcio for libel, a libel of
the most atrocious and dangerous nature, calculated
to produce no less an evil than mutiny among our.
troops. There indeed was an evil that might prove
destructive to the State, and subversive of Public
Authority. How did Sir A. Pigot act in that'case ?
He wished to get at the real author of the libel, and
no sooner was the real author of it given up, but a
soli proupti was issued. He (Lord Holland) was
always anxious to see that principle of Sir A. Pigot's
acted on. The real author of a libel is the person you
should endeavour to get at, if indeed he can be produc-
ed. It was remarkable that the newspaper sold off by Sir
A. Pigot was the Morning Post,distinguished fur its al-
most unvaried support of every Ministerial measure ;
yet, though judgment in that case was suffered to go
by default, the offender was never brought up for
judgment. The Administration, indeed, shortly after
changed ; and, although it is the no rare practice of
the Attorney-General to keep judgment hanging over
the heads of those who have been convicted, almost
the only exception was made in favour of that Paper,
with which the Attorney-General was politically con-
nected. It would not be simplicity, but stupidity on
his part if he did not suspect to what extent of abuse
such a power might be carried. He should not enter
into an examination of any of the particular cases
, which had recently occurred. It was too obvious,
however, not to remark, how, in some instances, the
punishment seemed to be pointedly aggravated. No
doubt it was right that the Judges should have the
power to confine persons in different prisons for very
good reasons; but the reason, ceased to be a good
one, if they were so confined with a view to the
gravation of the punishment. Nor was itele alum
of the libel only, and tht'proprietor of the pfeer that
contained it, who were esas punish/a, titsprinter
and publisher elf if likewise. Was tenet st Wet ag-
gravation of their punishmat this VI 111.16.1.'41

_


. distance far from their trade and oe.
consequently far from the means, not
resent, but perhaps of their future sub-
ippon.? The Noble Lord next mai-
' -r the employment of Special Juries
To them the same remark might
Hale applied to informations es
.
eficio—They were less favourable than the ordinary
course ofjustice; and consequently not so conforma-
ble to the law of the land or the spirit of the Constitu-
tion. They were not allowed in capital cases, nei-
ther should they in cases of libel. Here again was
an abuse which ought to be inquired into—for inqui-
ry should be instituted were it only to prove that no
such abuse existed. He was far from wishing to
throw out any ungrounded insinuations against the
administration of justice; but this he would say, that
it should not only be pure, but that it should not even I
be suspected. The only object of all punishment was '
example—but, instead of deterring by example. it
now often happened that the evil consequences of a
libel were aggravated by the notice taken of it, when,
perhaps, it might be more wise to have left it unno-
ticed. The notice taken of it, only gave it a more
, rapid and extensive circulation, and thus increased
I the evil consequences of the libel itself. Such abuses
were obvious, and they fully justified the propriety of
his intended motion. His wish was, to prevent the
filing of informations against periodical publications,
after a certain time had elapsed subsequent to. the-
publication of the libel. It only went to revive an
evil that had already ceased to exist. He should
therefore move a resolution to compel the Attorney.
General either to prosecute forthwith, or to enter a
Rai itrosepi. He should move that judgment be
prayed against the individual in due time after his
conviction. Those also had strong claims to redress
who were exposed to heavy expences ; and after not
brought to trial. All these were -points which re.
quired to be investigated, and room should be given
to point censure against those who may abuse this
power of information ex ojicie, and who, for that pur-1
pose, skew a disinclination to let the law of the land',
have its course. Much had been said of the present
licentiousness of the press ; and, if our best, our me*
' classical writers were examined, they would perhaps
be found to contain much stronger censure against
public men and public measures than what is now
looked on with such horror, and punished with suds
severity. Who would now venture directly to allude,
to the harsh administration of justice, and have an in-
dividual in his eye, as Pope had when he wrote the
following line—
" Hard words and hanging, if your Judge Le Pans ?"
Such practices as those which he had been condemn-
ing were only calculated to degrade the press. Our
anxious efforts should however be to preserve it pure,
and rescue it from the corruption of venal hands.—
It is idle to say, that since the French Revolution the
I licentiousness of the press, whirl; then produced such
fatal effects, should be cautiously guarded against.—
No doubt the licentiousness of the press may be pro-
! ductive of great evils, but among them will never be
found the evils of diminishing the will or the means.
lof a country to resist a foreign enemy. Has the 11.
centiousness of the Press in France enabled the Noble
I, Secretary (Lord Liverpool) to march to Paris ? No.
' It has always been the means of defeating the at-
tempts of the coalitions to subjugate France ; and it I
will ever be found an engine, a powerful engine,!
against the aggression of a foreign foe. The Noble',
Lord concluded with moving for a list of all the in-
formations which have been filed ex officio, from the
Ist January, 1801, to the 81st DecemberlBll,-.liii
gether with copies of the proceedings had in
sequence.
Lord ELLF.NBOROUGH said, that such a motion
as that urged by the Noble Lord, which was for a
list of the 'es officio informations, in cases of libel, du-
ring no less an interval than that of ten years, should
by accompanied by some grounds, why such a pro-
ceeding were necessary, some instances of abuse of
power, ,which would appear by the production of
such documents. He had listened attentively, and
indeed somewhat painfully to the statement of the
Noble Lord, but was unable to find any one instance
duced of any act of: severity on the part of the
Law Officers of the Crown. The only precise spe-
cific instance referred to, was on the contrary, an act
of lenity, in the grant of a moll pronfui in the case of
the Morning Post. If the Noble Lord felt in his own
mind that any case of severity occurred, let him move
for that one document. But why should the files of
the Court for the long interval of ten years be ran-
sacked, and their contents emptied on the table of
the House ? If the Noble Lord desired the produc-
tion of any particular document, on the grounds he
had stated, be could easily have procured it—no as.
sistaace on his part should be wanting. Indeed there
existed too great a facility in the procuration of those'
documents from the Court, and very often a painful
facility to the applicants, some of whom hoped to be
refused, in order that a pretext might be afforded to
them to make the application in another manner.—
He differed from the Noble Lord with respect to his
reference to that great Law Authority, Lord Hale,
who never spoke on these points in the manner quoted.
The power of proceeding by information was as an.
cient as almost any branch of the Common Law ;
and this abundantly appeared from the respectable
authority of Stower. If the Noble Lord questioned
the legality of that mode of proceeding, be might as
well question that of the Sovereign of the Realm to
wear the Crown. He deprecated any d scussion
which tended to impress the public with the idea that
there was any thing illegal in that mode of proceed-
ing. It was as much a part of the Law of the Land,
as that by which the Noble Lord held his Estates, or
enabled him to sit and argue in that House. Refer-
ing to the observatiot s of the Noble Lord respecting
the persons held to bail under the Act, his Lordship
contended, that since the notice had been given, he
was anxious to know how many instances there was
of individuals being held to bail, when it appeared!
that there was but one solitary instance. This was
the ground laid for a Legislative interference—this.
was the practical instance of these mighty abuses,l
which were to render it a matter of indifference to
Englishmen, whether they were subjects to George
111. or to Bonaparte! He must again contend against
the practice of their coming forward with discussions
upon trivial or no grounds, and thus mischievously
inoculating the, public mind with opinions for which
there was no real foundation ! He repeated, that ifl
any information appeared to the Noble J,.ord to pro-
NO upon 'frivolous or vexatious &tonna, no assist.

r~
,~

since should be wanted upon his part towards bring.
ing such a case forward. He felt strongly on those
points, but it was from his love of justice And of real
liberty, which he always discriminated from licenti.
ousness. Nothing wystild- tend more to the preset..
ration of the liberties of the country, than to defend
those laws which protected them from the effects of
unfounded clamour and rash assertions. Finding that
the Noble Lord had in fact produced but one solitary
instance, and that one of lenity, instead•cf severity,
he felt it his duty to resist the Motion.
Lord HOLLAND, in explanations tappealed to
the justice and the recollection of their Lordships,
that he had not questioned the legality of the pr,,ee,
dings in question, as the Noble and Learned Lunt
seemed to impute to him.

Lord ELLENBOROUGH shortly explained.
Earl S'rANHOPE spoke in suppnrt of the argo.
ments of his Noble Friend In the present instance, .
he did not mean to attack the Learned Lord Chef
justice, nor to give the Noble. Lord on the Woolsaik
a trimming, as he had oftendone before. (41:usa.)
Referring to what had been said of the colistruiti, a
of libel, he observed there were two species of libel,
one a speaking cowardly scandalous °nonce. against
the characters of individuals, against' which it was
the duty of Government to protect them. Of this
many instances occurred, where retirees was imprac.
ticable ; but the reason uhy these, in-seessresses,
were regarded as libels, was their tendency so a breach
of the public peace. A curious in-recce happened is,
the case of the late Lurd Chesterfield, where any im-
mediate elect from a libell.ius insult was neatly par.
Tied. His Lordship was met one dry by a fellow is
the street, sklio pushed him from the wall, saying. he
never gave the wall to a sc,amdrel. On. which his
Lordship pullisd off his hat, and, making a low bow,
said, " I *twits do." The second species was dust
directed against the Government of the couutry, or
those who Were entrusted with it. "On thi., head, it
should be recollected that such topics weie fair matter
for discussion. Much had been said ou the po',nt,
,rwhether truth was a libeL In this view,he observed
tbat the people could never be Informed, or able to
budge of the conduct of their governors, except cit..
cumstances were allowed to be published ; but he
well knew that the licentiousness of the press was
10
ften encouraged by the worst enemies of its liberty.
He remembered, in the instance of a worthy and in.
titnate friend of his, a striking proof of this; they had
frequent arguments respecting the liberty of the press,
which his friend was hostile to, and he always &deo.
sated, they were nevertheless friends. KW, years
' ago there were some very scandalous stories in the
papers of the day respecting a Noble Earl and an 11.
lustrious Personage, both now no more. Of this
scandal he highly disapproved ; but his friend, con.
;tray to his expectation, was not equally indignant at
tit. His reason shortly came out, " Let them go on,
(said he) they will proceed to such a length that the
;evil will carry its own retnedy with it ;" and there
.were many, he believed, who connived at real licen-
tiousness in the press on the same grounds. Be should
support the motion of his Noble Friend.
Lord ERSKI/sIE entered into a discussion of some

I

length, upon legal grounds, on the leading topics is
question. He entirely agreed with what had (Ales
from his Noble and Learned Friend opposite (Lord
Elienborough) whose judicial character he highly pa-
negyrised, upon the legality of the great point at
issue ; it was as ancient as the Common Law itself.
It was at all times one of the pr:rogatives of the
Crown. No doubt existed on the point, and such was
the opinion of that excellent writer Lord Hales. He
observed, that even were the list called ior to be laid
on the table, and were it to contain five hundred cases
or more, still it would furnish no evidence of abuse
to the House, because there may be a proportionably
great.nOmber of offences which called for such an in.
terference. Abuses, however, may exist. The Noble
and Learned Lord then took a copious view of the
modes of proceedings with respect to cases of high
treason, and of the advantages those afforded to the
accused, in comparison with what these were allowed
in ordinary cases of offence. For the latter, where
the Crown was the prosecutor,.some improvements'
may be suggested. The statute of the 25th of Ed. 1
ward W. had long met with false constructions, and
the Legislature more than once interfered to bring it
back to its letter. He descanted on the modes of
process in cases of high treason, and dwelt on the ad-
vantages afforded thereby to the accused, as the neces-
sity of producing two witnesses,* ahe least, a gives
interval of notice before the trial ; the privilege of
making $5 peremptory, nay capricious challenges of
Jurors, and as many more as they could shew jog
cause for, this proceeded on the ground of the gigar•
tic power, of prosecuting—the Crown ; and he seemed
to think that it may be expedient that tome degree cf
reform, in other cases, where the same power prose-
cutes, might advantageously be adopted to secure the
affections of thegoverned,thattlielaw should berendr-
ed popular. .He agreed cordially with what had beta
said of the wide distinction between the licentiousneo
and the liberty of the press, a freedom sthich se greatly
tended to secure that of the Government
we had the happiness to live, and which fabric mJy
best be preserved by securing it from the evils ti
licentiousness, and made toendure to thelatestpostesity.
The LORD CHANCELLOR said he should de.
min their Lordships but a short time on the present
occasion. The motion went by a side vote, to affect
the character of the administration of justice, and
nineteen-twentieths of what was said, did not apply
to the real point in question. He felt the justice of
what was stated by a Noble and Learned Friend, on
one of the most important parts of the law of the
country, and of these benefits he trusted they would
not be deprived. If any thing was meant to be ar-
gued by analogy, as an improvement in the mode of
administering the law, in the cases more immediately
in question, that proposition should be directly stated
—but in examining this part of the law, upon gene.
ml principles, he thought it would not be advanta•
geous to part with that species of prosecution. With
respect to the .4 trimmings." which a Noble Lord
had boasted of his having inflicted on him, lie had
received that sort of discipline so often from, luau,
that he was grown so callotts as scarcely to feel them
(Alasrgb). He had much official sxpericnce in the
kinds of prosecutions in question, namely, for wcr-
tious libels, and could say, those he had co encounter
were calculated to overuses the Government of the
country. Much had been said of the supposed rigour
of prosecutions on the part of the Crown ; but lie
could confidently aver that it would be found that of

such informatio and send them a dis
sol
the expediency eupatibn, and cons
a power—neither only if their preseni
when it was.ex- sistence and suppoi
ion. It was the madverted against
therefore would on such occasions—
ect and punish the be applied as Lord