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After some observations from Lord Holland, and some further conversation, the bill was read a second time, and committed for to-morrow.
On the order of the day being read for the second reading of this bill,
Earl Stanhope expressed his astonishment, that so mischievous a bill should have been suffered to pass the commons. He considered the bill as an infringement of the trial by jury, and as tending to oppression. His lordship read great part of the bill, and laid great stress on the clause enacting that a copy of the indictment or information might be served upon the gaoler or turnkey where the party was in prison, and upon the subsequent enactments respecting putting in a plea by the prosecutor for the defendant, where the latter did not appear and plead; contending, that according to these enactments, a man might be tried in his absence, which was contrary to the principle of the common law, as was shewn by the oath of a juryman, who was sworn to make a true delivery between our lord the king and the prisoner at the bar.
Lord Ellenborough observed that this oath did not ap ply to the trial of misdemeanors, and that in ninety-nine cases of misdemeanor out of one hundred, in the court of king's bench, the defendants were not present at their trials.
Earl Stanhope resumed and observed, that the noble and learned lord on the woolsack, only made parentheses in his own speeches, but the noble and learned lord who had just sat down made parentheses in the speeches of, other persons.
Lord Ellenborough said he considered himself as appealed to by the noble carl.
Earl Stanhope continued his argument against the bill, which he considered as tending to press in many instances particularly hard upon the poorer class, as the same process might be had for any offence, however slight; and as tending to impose in several instances a longer term of imprisonment than would be inflicted upon eonviction. In the course of his speech, his lordship related an anecdote which excited considerable laughter,
of a link-boy during the ferment respecting Mr. Wilkes, who had received a paper from another link-boy, which was supposed to be seditious, and who was taken before a magistrate. On being asked what he was, he replied, “I am an antiministerial writer." "What is that paper you have in your hand?" "I do not know; I cannot read.""Cannot read! Why, what did you mean by say ing you were an antiministerial writer?" "I writes No. 45, upon the lords' coaches." His lordship concluded by stating, that he should give his negative to the bill, with the view of afterwards moving that it be rejected.
The question was about to be put, when
Lord Holland rose, and observed, that he had expected some noble lord who supported the bill would have attempted to shew its necessity. He had conceived that the noble and learned lord (Ellenborough) had intended to do so, and he was ready to give way to hear such necessity shewn.
Lord Ellenborough said, he was ready to defend the bill, when any objection was made to it.
Lord Holland proceeded to comment upon the bill, which he considered as an innovation upon the sound and wholesome principles of the common law. The principle of part of the bill, with respect to requiring bail, was first adopted in the 26th of his present majesty, in a revenue act, and it was found so injurious, that a bill was brought in, in the 38th, to remedy the evil, it being found that many persons had remained in gaol for a considerable time with out the means of bringing on their trials. He deprecated the principle of applying to other cases enactments found necessary for the better collection of the revenue, and still more as it was merely stated in the preamble to this bill as a reason for its enactment, that it had been found convenient. Was this a reason for altering the law generally? With respect to the process upon indictment and infor mation, where was the necessity shewn for such an alteration? This bill besides went to require bail equally upon an indictment presented by twelve sworn men, upon an information granted by the court of king's bench, and upon an information filed ex officio by the attorney-general. This was an innovation which he thought pregnant with the most injurious consequences; nor could he for a moment consent that a power of holding to bail should exist upon the mere filing of an information by
the attorney-general. His lordship quoted some legal anthorities for the purpose of proving the ancient practice of the constitution, contended that by this bill a man might be tried in his absence and without his knowledge, and called upon those who resisted a bill which they conceived to be an innovation upon the prerogative, to resist a bill which was an innovation upon the constitution. If no innovation was to be suffered in the one case, none ought to be allowed in the other, at least without proving. some strong necessity.
Lord Ellenborough contended, that considerable misconception had taken place with respect to this bill, which did not alter the law as it now stood, or at least very slightly, but merely defined more accurately the course to be pursued. As the law at present stood, it was well known that persons might be held to bail not merely upon indictment, but by any justice of the peace, u on a charge of misdemeanor. With respect to informations filed ex officio, by the attorney-general, he was a sworn officer: he never filed such informations without previous affidavits to substantiate the charge; and when an information was filed by the attorney-general, it was a presentment upon oath, as much as that of a grand jury. He did not see, therefore, that any injury was to result from holding to bail upon such informations. With respect to indictment and information, it should be recollected that a person accased had much better means of justifying himself in the latter case than in the former. Before a grand jury the evidence was ex parte, and the proceedings secret. A person accused had no means of punishing another for a false accusation before a grand jury, nor could he indict a witness who had given evidence before a grand jury for perjury; in the case of an information granted by the court of king's bench, the accused must be served personally with the rule to shew cause, which was only granted on affidavit; he might then file affidavits, shew cause, and have all the advantage of the argument of counsel. Information filed ex officio by the attorney-general being grounded on affidavit, a party falsely accused might indict the person making such affidavit for perjury. He thought the provisions of the bill were hu manely adapted to give relief to the prisoner. As to his being tried in his absence, that was out of the question : persons tried for midemeanors in the court of king's bench;
were scarcely ever present at their trials. This bill would
prevent a person sent to prison for want of bail, from remaining there, as it might happen for years, without the means of bringing on his trial; another provision in his favour was, that the judge who tried him, although not a judge of the king's bench, might discharge him if acquitted. He considered the bill, therefore, as favourable to persons in the situation alluded to, instead of at all tending to make their condition worse.
Lord Holland and Lord Ellenborough explained.
Lord Erskine condemned the principle of extending regulations made with an immediate view to the collection of the revenues, to other cases. With respect to the bill, he admitted there was nothing in it affecting the trial by jury, as supposed by the noble earl (Stanhope), and that the objection of trying a mau in his absence did not apply to it. He contended, however, that the bill did make an alteration in the law as it now stood, and for which no necessity had been shewn, namely, in holding to bail upon informations filed ex officio by the attorney-general. These informations, it had been said, were filed upon affidavit; bat the attorney-general was not compelled to file them upon affidavit, he might file them without any affidavit. It was not to be supposed for a moment that his learned friend, the present attorney-general, would do any act that was in the slightest degree improper; but he objected generally to the principle of holding to bail upon informations filed by the attorney-general, which might or might not be founded upon affidavit, and thereby giving to the attorney-general the power of a grand jury. No necessity had been shewn for this bill, and he thought it much better that the law should stand as it did, than that they should run the risk of exciting discontent or dissatisfaction by altering it, and by giving power of holding to bail in slight offences, in libels, and constructive breaches of the peace, which might, at some period or other, be used oppressively against the subject.
The Lord Chancellor contended that the only question at present was, whether there was so much good in this bill as to authorise its being sent to a committee. He thought there was. With respect to informations filed ex officio by the attorney-general, it was fitting that it should be stated, that although hemight not be compelled to receive affidavits previous to filing such information,
in substance it was so, no information of that nature being filed except upon affidavits ; and with respect to the informations of that kind filed by him when he held the office of attorney-general, the parties might have been held to bail by a magistrate upon the affidavits. He thought the provisions of the bill were favourable to persons sent to prison for want of bail, in preventing the necessity of their remaining there for a considerable time without the means of release, and that with some alteration in the committee, it might be rendered unobjectionable.
Earl Stanhope was glad that some alteration was to be made in the bill, as in that case it would be sent back to the commons. His lordship proceeded to shew the absurdity of contending, that because judges were sometimes honest men, or attorney-generals persons who could be trusted, therefore extraordinary powers should be vest- ed in their hands. Were he to attempt to drive such a doctrine down the throat of the noble and learned lord, he was convinced he could not say Amen to it. Judges and attorney-generals were like other men, and he should give a specimen of them for the edification of the learned lord, who seemed to have forgotten of what sort of characters they were at times composed. His lordship then alluded to the opinion of the judges, when consulted by Charles the First, as to his right to exact ship-money, by which they declared that he had such right, and that he himself was the only judge of it; also to the answer of the judges in Charles the Second's reign, who declared it to be unlawful to publish any argument against government. His lordship next alluded to a case decided some years ago, in which the learned lord on the woolsack had laid down what he esteemed to be true law, that the decisions of the judges were to be regulated not by precedents, but by the written law of the land. This case he did not allude to from memory: he had seen it within these few days as it came from the short-hand writer. This the noble and learned ford might not esteem evidence; but he certainly would do so, when he informed him that it was sanctioned by corrections made in the hand writing of the learned lord himself. This his lordship esteemed sufficient to found him, in maintaining that it was to the law of the land, and not to the opinion of the judges, that we were to look for protection.