Slike strani
PDF
ePub

the exercise of that discretion? If it was the intention of the minister to prevent the people from meeting, for the purpose of proposing any alteration in church or state, or of exciting dislike to the king's person and government, there was no necessity for the present bill; and the provisions inserted in it, for the purpose of producing such an effect, ought to be blotted out. The fact was, that they were determined to give the magistrates the power of dispersing public meetings.

stance. The people are the proper judges of the grievances under which they labour. They may think the measures of administration a grievance, yet the magistrate is to be the judge of the nature of the complaint, however respectful and inoffensive, and may even pronounce a requisition which censured the ruinous measures of a minister, or proposed a reformation of abuses, a crime against the law. Our ancestors were content to wait till some overt act appeared, which was the subject of punishment. But, under-He would proceed to show the gross this bill, the determination of a magistrate is to interfere between the people and the assertion of their rights and the com plaint of their grievances. Depend upon it, the people of England, unless they are lost to all sense of freedom and of national honour, will not, and ought not to

submit.

He stated the power which the law bestowed upon magistrates, of arbitrarily judging of the intention of the people; and even, lest he himself might be responsible for the consequences of any meeting, the necessity a virtuous magistrate might be under of dispersing a meeting of the best men with the purest views. He likewise stated various absurdities which resulted from the authority bestowed by the bill on magistrates. He would suppose that at such a meeting as had been convened, in the manner alluded to, he spoke with severity of the evils that existed, and with firmness of the grievances under which the people laboured; he would suppose that he said, what the minister himself once said, viz. that" as long as the parliament remained unreformed, no wise and virtuous administration could exist: he would suppose that he did this-could the magistrate disperse the meeting? He affirmed that he might disperse it, and could not be punished. One of the clauses of the bill stated, that" in case such meeting shall, by reason of any special circumstances, become dangerous to the public peace, in the judgment of two or more justices of the peace, &c." Here was a discretion given to the magistrates of the most dangerous kind. Where did the solicitorgeneral find a precedent of so broad a discretion given before to magistrates? A discretion, too, for which they could not be punished; because, when the law placed any thing in the discretion of a magistrate, it could not punish him for any mistake which he might commit in

and abominable absurdities of this part of the bill. Suppose thirty or forty of the most respectable magistrates in the country; suppose even that the twelve judges of England were to join in proposing a meeting; two hired, hungry, jobbing justices might disperse them all. Could a criminal information be filed against such magistrates for so doing? The court of King's-bench had determined a case that very morning, that might be applied in the present instance, and which was sufficient to establish the legal principle of the clause in question. A law had been passed in the reign of James the 1st, authorizing the magistrates to search for a particular kind of leather. Upon this law a search had been ordered by a magistrate, a seizure had been made; and, upon examination, the person from whom the leather had been seized had been acquitted: a question arose, whether an action would lie against the magistrate for having ordered such a seizure? It had been decided in the affirmative, because the particular law gave no discretion to the magistrate. It would be much more manly, much more consistent with truth and candour, to come forward and tell the people of England that they were no longer to enjoy such privileges, than to insult their understandings by telling them they retain that liberty of which they feel themselves deprived. He would ask, how they could petition for the redress of grievances without communication? He had in his hands an address to the jury at the Old Bailey, which would show that no conspiracy had existed, and that the opinion of the judge had not been as represented. The chief justice says-" All men may, nay all men must, if they possess the faculty of thinking, reason upon every thing which sufficiently interests them to become objects of their attention; and among the objects of the attention of free

men, the principles of government, the constitution of particular governments, and, above all, the constitution of the government under which they live, will naturally engage attention and provoke speculation. The power of communication of thoughts and opinions is the gift of God, and the freedom of it is the source of all science, the first fruits and the ultimate happiness of society; and therefore it seems to follow, that human laws ought not to interpose, nay, cannot interpose, to prevent the communication of sentiments and opinions in voluntary assemblies of men." From this it was evident that the judge considered voluntary communication as not only lawful, but as a right which could not be taken away. He next commented upon the preamble to the bill, and contended, that the most tyrannous act had always been passed under the pretence of making the subjects happiness the ground for the measure. Other matters were also to be considered in the provisions of the act: it was in the power of any one man, by going to a meeting, and speaking a few seditious words, whether apposite to the subject or not, to afford a warrantable reason for a justice to dissolve the meeting; any man whatsoever, though he be not one who signed the notice, or who called the meeting; any spy (and magistrates had their spies) with half-a-crown in his pocket, might go, and, by uttering seditious expressions, afford his paymaster the power of putting an end to all discussion, and to the meeting. He said, he considered the law of the land as fully adequate to all the purposes of good government, without the introduction of the present measure. In any public meeting, when a breach of the peace was committed, a magistrate, by the existing law, was entitled to interfere; and in his support, was authorized to raise the posse comitatus, if necessary: and by the riot act, he had likewise the power of dispersing tumultuous assemblies. Where, then, was the necessity for introducing a new law, and giving a vital stab to the constitution?

The learned solicitor-general had observed, that prosecutions had little effect, and under that pretence, licensing acts, Mr. Erskine said, were to be introduced. All laws, in all governments, even the most despotic, in their preamble, pretend to be dictated for the good of the people; and however the bill and its surpor

ters might assume that pretence, it was to be judged by its natural tendency. Was it consonant with the spirit of the constitution, that men, met for the best of purposes, should be dispersed, if a ministerial spy thought proper to propound some point which appeared exceptionable to the magistrate? Let gentlemen consider what the present laws were by which the constitution was defended. If it required new sanctions, he would willingly join in framing them; he would however adapt his remedies to the discontents and disaffection of the people upon principles suited to the nature of a free state, and of the nature of our own constitution. Mr. Burke, whose talents he reverenced, and who had displayed his wonderful powers for years, in opposition to the right hon. gentleman, by a most unfortunate coincidence of opinion, had of late recommended himself to his favour: that great man, when speaking of the American war, with all those graces of oratory which would carry down his fame to posterity with that of the fairest productions of Grecian and Roman eloquence, had expressed himself in terms peculiarly applicable to the present time. His words were these: "It is not very difficult for well-formed minds to abandon their interest; but the separation of fame and virtue is a harsh divorce. Liberty is in danger of being made unpopular to Englishmen. Contending for an imaginary power, we begin to acquire the spirit of domination, and to lose the relish of honest equality. The principles of our forefathers become suspected to us, because we see them animating the present opposition of our children. The faults which grow out of the luxuriance of freedom appear much more shocking to us, than the base vices which are generated from the rankness of servitude. Accordingly, the least resistance to power appears more inexcusable in our eyes, than the greatest abuses of authority. dread of a standing military force is looked upon as a superstitious panic. All shame of calling in foreigners and savages in a civil contest is worn off. We grow indifferent to the consequences inevitable to ourselves, from the plan of ruling half the empire by a mercenary sword. We are taught to believe that a desire of domineering over our countrymen is love to our country; and those who hate civil war abet rebellion; and that the amiable and conciliatory virtues of lenity, mo

All

deration, and tenderness to the privileges of those who depend on this kingdom, are a sort of treason to the state."

to prove that the offences recapitulated in the bill could be punished by the existing laws. The 13th of Charles 2nd was admitted to be the precedent of the bill; but it must not go the same length. Under that act 100,000 persons might

This was not a pompous display of theoretical observations, but a series of wise and political reflections, meant to have a real and practical consequence. "Gen-assemble, and sign any petition to the tlemen," exclaimed Mr. Erskine, "will king or the parliament voluntarily; but see by this, that the word eqaulity is not a the act prevented persons from hawking word of new coinage, and introduced into about petitions to persons to sign, who the dictionary only three years ago, but might not know that any grievances exa word of long and ancient usage, and isted. It also provided, that not more stamped with the sanction of such an than ten persons should present any petiauthority as that of Mr. Burke. In my tion to the king. It only authorized maopinion, the higher ranks do ill in thus gistrates to interfere when an overt act seceding from the lower. If the latter of tumult took place, or to require secu have swerved from their duty, would it rity if danger to the peace was apprenot be better for the former to rally them hended; but it never prohibited a meetround the principles of the constitution, ing to be held; it did not forbid volunand lead them back to their duty, than tary communication, but prohibited tuthus to make, as it were, a separate cause multuous petitioning: this bill prohibits against them? Let those higher ranks re- petitioning upon grievances which actucollect what must be the certain conse- ally exist.-An unreformed parliament quence of any contest between them and had been alluded to. The language of the lower ranks. Such a contest, I am the minister once had been, "That we sure, I deprecate sincerely; and it is be- had lost America by the corruption of an cause I sincerely deprecate it, that I thus unreformed parliament; and that we wish the higher ranks to take it into their should never have a wise and honourable most serious contemplation. What dis- administration, nor be freed from the evils traction has seized the House! You have of unnecessary war, nor the fatal effects said, that from the convulsed state of of the funding system, till a radical reform France, you expect better terms of peace. was obtained." The right hon. gentleWill she not act in the same manner with man had in that prediction shown his proyou? if you give her reason to suppose phetic power; for, to such a parliament that you are convulsed, will she not ex- was owing that detestable, ruinous, and despect better terms of peace from you on tructive war into which he had plunged the account of such convulsions? Good God! country. The right hon. gentleman would, because a prince, whose morals make him however, brand with the imputation of sedear to every man in the nation, was dition, all who employed the same language going down to his parliament during a that he himself once had held, or who war that has snatched the bread from the expressed their discontent at the fatal mouths of the poor; because, in the measures of his administration. That the erowd that surrounds him, there is one societies should complain of this evil was man, miscreant enough to offer an out- surely not to be wondered at. Though rage to that prince; the outrage com- they had complained, he would ask, had mitted by that one man, and which I af- they raised the standard against the confirm is punishable by the statute of Edw. stitution of the country? In arguing this 8d is to be charged against the whole peo-question, he desired not to be answered ple of England, and we are to be deprived of our most valuable rights and privileges. As there is always a disposition to exaggerate events, the French will be induced, by our proceedings, to form an idea that a wish to change the government of the country, and to introduce such a constitution as that of France, actually exists in England, and they will make you spend twenty millions more in the prosecution of the war."

He then entered into a legal argument,

§

by old musty records that had been
produced on the trials, by that mase
of matter which so wearied the pa-
tience of every man
who was pre-
sent when it was produced, or by those
letters which had been read upon every
subject. He desired not to be answered
by such documents; because he con-
tended that, in the trials that had
occurred, the issue that had been joined
was, whether the real object of the so-
cieties was, a reform in parliament, or

ing down of mills, yet, as he had taken part in the meeting of persons so employed, waved his hat, and approved of the proceedings, he came within the meaning of the act, and was held to be guilty of felony.-On the whole view of the subject, therefore, he was clearly of opinion, that the existing laws were amply sufficient; that they did not require any extension; and that there was not the least necessity for the present bill. That bill he felt to be a daring attack upon the principles of the constitution: he felt and saw also, that ministers, at a time when every thing should be done to restore harmony and peace to the country, were adopting measures that not only tended. to produce such an effect, but tended to swell the sum of public grievance, and to lay the foundation for fresh discontents in the minds of the people.

Mr. Milbank said, the riot act already authorized any magistrate, mayor, or sheriff, to disperse any meeting composed of twelve persons or more, suspected of assembling for tumultuous purposes, and if those persons did not immediately disperse, when so commanded, they were guilty of felony. The bill, he feared, might be made use of for pernicious purposes, and suffer many an error to creep into the state; and upon these principles, convinced that there was already a strong and satisfactory resistance to every probable evil, of the nature adverted to in the bill, by the law as it now stands, he should oppose the motion.

whether that was only a pretence to cover traitorous designs against the constitution? The chief justice Eyre had alluded to this issue in his charge to the grand jury, when he had said, "if there be ground to consider that the reform of parliament had been a mere colour or pretext laid hold of as a design against the government of the country, in that case he had already stated what his opinion was upon that subject; and the only question in such event would be, whether or not the matter of fact could be proved?" The chief justice had farther said, that "if these associations meant nothing more than a redress of grievances, and to have nothing else in view, then of course no charge could be made against them." The issue, therefore, was, whether the real object of the societies was a reform in parliament, or a design to destroy the constitution? The indictment against the prisoners expressly charged them with holding a convention with a view to depose the king, and to destroy the constitution. The jury by acquitting them had decided that no such design to destroy the constitution existed. Their verdict was not given from a disagreement with the judge on the point of law, but they had founded it on the principle of the fact that had been alleged, not having been proved. He had said, secondly, that the existing laws were sufficient for the punishment of the offences recapitulated in the present bill, because, if persons assembled for any unlawful purposes, those assemblies were unlawful assemblies, Mr. Anstruther said, that the learned and might be punished as such. If gentleman who spoke last but one had there were tumultuous proceedings, the attempted to trace the bill up to a general magistrates, under the statute of Henry system of separating the rich from the 4th (which lord Mansfield, in the case of poor, as if the former were set up in lord George Gordon, held to be still in battle array against the latter. To this force), might take sureties from persons he must give the most unequivocal conguilty of such proceedings, and might tradiction; on the contrary, he would assemble the posse comitatus to disperse assert, that there were associations formed such tumultuous meetings. He therefore of all classes of people, for the suppression contended, that no man could be guilty of Jacobins and Jacobin principles; and of any of the overt acts that had been that the wealthy and higher orders were, mentioned, without being affected by the in conjunction with the lower, standing laws as they now existed.-There was, forward equally in defence of the great lastly, the riot act, the provisions of which mass of the people, against the disseminawere fully sufficient for the dispersing of tion and progress of mischievous princiillegal meetings. By the laws as they ples which threatened to destroy all ranks, now stood, it was necessary that a person and bury them in one common ruin. should be actually doing an unlawful act, The same gentleman had laid it also in order to subject him to punishment: down as a fundamental proposition, that in the case of the king against Boyce, it the liberty of the subject was taken away was held, that though the defendant had by the bill; because, when the law prohinot been actually concerned in the pull-bited any thing, it prohibited at the same

[VOL. XXXII.]

[Y]

time, every manner of doing it; hence inferring the converse of the proposition, that what it permitted, was permitted in every way; and therefore, in restraining the right of public meetings in any way, the principle was so far violated. In answer to this, he must declare that the learned gentleman was mistaken; for nothing was clearer than that the law prohibited every method of doing that which was forbidden, yet the inverse of that proposition could never be maintained, that what it permitted it allowed to be done in every manner. In proof of which he referred the House to the very bill depending, where public meetings were permitted with certain formularies, but were forbidden without them. His learned friend had, nevertheless, contended, that a lawful act could never be done in an unlawful manner, and seemed to found his opposition to the bill on that general argument, maintaining, that it was an abridgment of the hitherto acknowledged liberties of the country. The major proposition was not only invalid, but the minor was so likewise; the country having never before been in a similar predicament to the present, consequently, could not before require that abridgment. Supposing, for a moment, that the bill were an abridgment of the liberties of the people, no precedent of the same effect could be stated, because no similar cause could be instanced. His learned friend had also said, that the bill would take away all right of petition, because two magistrates, in the exercise of the discretion invested in them, might disperse the meeting previous to its deliberation or resolutions, on trivial, capricious, and unfounded grounds, and yet was not liable to be called to account for so doing. The learned gentleman was here again mistaken; because in this case, as in any other abuse of power, magistrates would be subject to account and punishment, if they should presume to disperse any public meeting without fair, reasonable, and good grounds.-His learned friend had attempted to fasten a contradiction on the solicitor-general, who maintained that the bill was not only consistent with the liberty of the people, but that it protected and preserved that liberty. This he thought perfectly reconcileable, when fairly stated, inasmuch as the bill left every useful and constitutional liberty untouched, and only restrained the pernicious excess and abuse of it. Much stress had been laid on the

[ocr errors]

novelty of the measure, and it had been roundly asserted, that it was unknown to the constitution: he wished to remind the House, that new circumstances must always originate new measures in every legislature that did its duty: he denied that it was unknown in principle, and asserted that at all times the constitution contained a principle of exertion adequate to every emergency, and its own protection in particular. The general principle was to allow as much liberty as was consistent with its own security, and the real welfare of the subject; but the actual quantum had often fluctuated in the course of our history, as emergencies arose. The statute of treasons, so much relied on, the 25th Edward 3rd expressly says, " that when new cases arise, recourse must be had to parliament;" and in later times, particularly since the reign of Elizabeth, parliament had interfered in cases much more similar than was generally imagined; they had enacted laws to condemn dangerous tenets, and annexed penalties. This was always done where powerful and active parties attempted to carry dangerous opinions into practical effect. It was to be recollected, that these laws were made solely from motives of political prudence, unconnected with moral guilt. What moral offence was it, for example, to deny the king's title to the crown, or to call him a heretic? History had shown, that these opinions were connected with very wide and deeprooted practical consequences, and therefore they were condemned, forbidden, and made penal in the highest degree. The same prudent policy of our ancestors had gone farther, and had looked to the connexion of such tenets with the power and disposition of foreign states, and relaxed or strengthened their measures accordingly. In the reigns of Charles 2nd, William 3rd and George 1st, frequent instances of this interference were to be found. The measure was, therefore, in principle, directly warranted by precedent and experience. The severity of the punishment had also been cited as objectionable; but in the cases alluded to, equal if not greater severity was to be found. If there had not been precisely such a bill, it was because no such precise evil ever existed before; but through the whole current of history, we saw the parliament at times meeting every new evil with new laws, and by so doing our ancestors had laid down the principle, and

« PrejšnjaNaprej »