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very different footing; for, in the only two cases of misden.eanors, where petitions of appeal had been presented against judgments of the court of justiciary, viz. the case of Elgin in 1713, and of Mackintosh and Demoster in 1768, the petitions had in fact been entertained and determined upon by that House; in the first of these cases, the judgment of the court of justiciary was reversed, and in the other the petition was referred to a committee, and upon the report of that committee, which was agreed to by the House,a direction was given to the court of justiciary in the same way as is frequently done in appeals from the court of session. This was a matter of very great importance to the whole people of Scotland, and he hoped their lordships would agree with him in thinking, that it ought to be fully discussed, and set at rest one way or another. He would therefore move that the petition be referred to a committee to consider and report to the House, whether it ought to be entertained.

the table, in order that the noble lords might have an opportunity of considering it, as it was certainly a matter of great importance, and that a future day might be fixed to take into consideration whether it ought be referred to a committee.

Lord Thurlow was of opinion, that the judgments in 1713 and 1768, did by no means go the length of being precedents of that House having entertained petitions of appeal from the court of justiciary in cases of misdemeanor; but neither did they go to show any opinion of their lordships appearing upon the record, that the petitions ought not to be entertained; though there had been various judgments to that effect with regard to capital cases, and he confessed he could see no room for a distinction, in this respect, between the case of a capital offence and of a misdemeanor. He was persuaded their lordships must be completely satisfied, that an appeal could not possibly lie in the one case and not in the other. He said, it seemed a matter of regret on account of the The petition was then read, purporting subjects of Scotland, that no appeal should to be the petition and appeal of James Ro- lie to that House from the supreme cribertson, bookseller and printer in Edin- minal court there, in the same way as a burgh, and of Walter Berry, bookseller writ of error lies in some shape or other there; and stating that they, having been from the criminal courts in England, at brought to trial before the court of justi- the same time, from the forms of the law ciary at Edinburgh, on an indictment, at of Scotland, he saw the very great diffithe instance of his majesty's advocate, for culties with which it would be attended in feloniously printing and publishing a cer- impeding the course of criminal justice, tain seditious book or pamphlet, &c. the which were provided against by the regucourt had found the libel relevant to infer lations which took place in the law of the pains of law; that the jury had retur- England. If, however, other noble lords ned a verdict: whereby they found it should join him in opinion, he said, he proved that the said James Robertson did would have no objection to agree to the print and publish, and that the said Wal-motion of the noble earl in order that, if ter Berry did publish only the pamphlet any doubt remained, the matter might be libelled on; and the petitioners having finally settled by a solemn determination, insisted that no judgment could pass upon which was certainly very desirable. the verdict, and that they were entitled to be acquitted and dismissed from the bar, the court of justiciary had repelled the objection made by them in arrest of judgment, and had adjudged the one of them to be imprisoned for the space of six months, and the other for three months,* &c. The petition went on to state, that they conceived themselves to be thereby aggrieved, and appealed to their lordships for redress, &c. After the petition had been read,

Lord Cathcart suggested the propriety of simply moving that the petition be upon

The case of Berry and Robertson is reported in Howell's State Trials, Vol, 23. p. 80.

The Lord Chancellor said, that although he was of opinion that no appeal lay, and did not suppose he should be inclined to alter that opinion, yet he would not object to the petition being referred to a committee; because, if any doubt remained as to the case of misdemeanors, it would certainly be right that the matter should be finally settled.

The motion was then agreed to.*

Mr. Whitbread's Motion respecting the Embarkation and Landing of Persons from France.] May 9. The order in council

The further proceedings on this subject will be found in Ilowell's State Trials, Vol. 23, p.115.

respecting the Embarkation and Landing of Persons from France being read,

Mr. Whitbread, before he stated the facts upon which he should ground his proceed ing, begged leave to make a few remarks upon the paper which had just been read. There was no person more unwilling to consent to the abridgment of the just prerogatives of the crown than himself, or more eager to preserve them to their just extent; but he thought there could be no prerogative that gave authority for the exercise of that proclamation. If there was, such a power should be seriously considered; for he held it to be an indisputable point, that no prerogative should be held by the crown, except such as conduced to the happiness of the people. Lately, however, one of the law officers of the crown had thought fit to assert, "that his majesty had a right to regulate the passage into this kingdom.' To which he begged to answer, that his majesty never had, nor by the constitution of this country could have, any such right-a right to prevent an innocent subject from landing in any of his dominions. But the order in council assumed that right, conformably to the opinion of the learned gentleman; and if such was the case, his majesty had power, under certain circumstances, to condemn, without any reason, any person he thought fit, to banishment from his native land for ever. He admitted the prerogative of the Crown to lay an embargo upon ships in time of war; but such a power as that exercised under this order, his majesty could not have by the law of England, and therefore the act was an act of tyranny. Besides the constitutional objections he had stated to this order in council, he had objections to it in point of policy, and upon the principles of justice. It would be impolitic to prevent the landing of innocent individuals, because that act would disgust all honest men. It was against the principles of justice, because the ministers of the executive power must always in such cases proceed, if they proceeded at all, upon the information of despicable informers, who had their private views of avarice or pique to gratify. Such a power would be as troublesome to the secretary of state as that which he derived from the alien bill, and more troublesome in the exercise than any other of which he was possessed. The whole principle of the order was against the spirit of the law of England, which was that every man was [VOL. XXX.]

presumed to be innocent until he was proved to be guilty. In vain had the constitution declared that a man should know the nature of the charge to be exhibited against him when he was to be deprived in this arbitrary manner of his freedom. In vain had the constitution declared, that no man should be punished without trial, or without being heard in his defence; all these points were violated by the order in council, to which he had alluded. Having made these observations, he now came to a statement of the facts on which they arose. It was well known, that some time previous to the order in council, the National Convention of France had passed a decree, enjoining all Englishmen in France to quit that country within eight days in consequence of which, several Englishmen came to Calais, with a view of embarking for Dover, and in a short time reached that port in the Express packet; but there they were met by certain officers, who asked them whether they had passports from Mr. Dundas, with leave to land in England? They answered they had not. They were then told, that such being the case, they should not land; and if they attempted to do so, they would be resisted by force. Some of them, however, by means of a boat, contrived to land at some distance from the port; they were taken by an officer from Bow-street, acting under the imperial mandate of Mr. Dundas, and carried on board the packet again, where they, together with the other passengers, were detained for five days, and then discharged by the order of Mr. Dundas. This Mr. W. maintained to be illegal, taken in any point of view. there was no charge to be exhibited against them, it was illegal of course. If there was a charge exhibited against them, they should have been kept in custody until trial. These were the facts on which he brought this subject forward. He meant only to institute an inquiry into the subject. He did not know whether there were any precedents for this order in council; if there were, no precedents, however numerous, could sanction a measure so repugnant to every principle of justice. He then moved, "That a committee be appointed to inquire into certain facts which took place at Dover in the latter end of February last, under the authority of the Order of Council of the 20th Feb. 1793.”

If

Mr. Secretary Dundas said, that if the proclamation was tyrannical and un[30]

constitutional, the original guilt of it ought not to be ascribed to his majesty's law advisers, for they had copied it from a long chain of precedents established in the best of times. It would be fit for gentlemen, before they pronounced it to be illegal, to consider whether the king had or had not a right to establish packet boats for the service of the public, and whether he had or had not a right to declare, that none should land from his vessels so employed, without a passport from one of his ministers. It was allowed by all nations, that war completely suspended all intercourse between the belligerent powers. This maxim was generally true; but many modifications had been introduced of late by milder manners and a more liberal and relaxed policy, by which the horrors of war were softened. One of these was to license certain packet boats for the purpose of carrying mails between two countries at war. Such licensing was only a partial suspension of the interruption of intercourse; and surely the crown had a power to annex conditions to that suspension. France had thought proper wholly to interrupt that intercourse; and the law of nations gave her a right to do So. The king of England would have been justified by the same law in going the same length: but he was not advised to take such a step, but merely to provide that by keeping the intercourse open on his side, for the benefit of his people, he did not open a door to evils still greater than the interruption of all intercourse whatever. This was the ground of the order of council; and surely the king' was not only authorized, but bound to consult the general safety of his coasts, by giving directions that no person should be suffered to land from any of his vessels, who was not known to be peaceable and well disposed, in which case he should procure a passport from the secretary of state. With respect to the particular case mentioned by the hon. gentleman, the first account he received of the transaction, was in a letter from Mr. Bell, commander of the packet, and transmitted to him from the post office. Here he read the letter, which stated, that whilst he was on shore at the Post House at Calais, a number of persons, chiefly English, got on board his packet in his absence, and without his knowledge; that when he returned to his vessel, and found them on board, he desired they would go ashore, for it was not in his power to land them in England, unless +

they had passports from one of the secretaries of state; which it appeared they had not. They refused to quit the ship, and began to weigh the anchor, so that he was obliged to steer the vessel to England. He (Mr. Dundas) in answer to this letter, desired that captain Bell should come to town, to state more particularly the transaction, and give the names and characters of the passengers. This was done; and after a due examination, it was signified, at the end of three days, that the British subjects might land, and proceed without molestation to their respective homes. This was the plain state of the case; and he trusted that the House would be of opinion that there was nothing in the transaction that was either tyrannical or unconstitutional. The hon. gentleman had said, that if the parties concerned were not guilty of any crime, they ought not to have been detained. To this he would reply, that, prima facie, they were guilty of a great crime; they appeared to have taken forcible possession of one of his majesty's ships, and compelled the commander to disobey the positive orders of his employers. Upon a more minute inquiry, it appeared also, that there were on board some persons of characters so foul and detestable, that they ought not to be suffered in any civilized state whatever. He believed the House would not desire him to say any more than that there were on board Dr. Maxwell, a Mr. Stone, and two servants of the duke of Orleans. There were also on board some Englishmen whose conduct in France could not give much satisfaction. To detain these, therefore, until some consultation should be held, was neither illegal or oppressive. But the hon. gentleman would have it, that if they were properly detained, they ought not to have been dismissed without prosecution and trial. His answer to that was, that his majesty's ministers certainly meant to have brought them to trial if they could: and for that purpose all the information they had received relative to the conduct of the passengers in seizing the king's ship, was laid before his majesty's law officers, with directions to state their opinion, whether in the transaction there was ground for prosecution, and if there was, what mode of proceeding they would recommend. Their answer was, that there was one circumstance in the case, which would probably be a bar to conviction; and that was, that it did not appear that the captain of the packet was ac

must cease in consequence of the war; but, admitting this to be the case, what could be more unjust than this, that persons encouraged to carry on trade with France, under the commercial treaty, and happening to be in France, in the course of carrying on their business when the

quainted with the king's proclamation, and that it was in obedience to it that he refused to carry them to England. As this opinion showed that a conviction was not to be expected, and as his majesty's ministers would not order a prosecution, when they had reason to believe it would not lead to punishment, they gave direc-war commenced, should be prohibited to tions for setting the parties concerned at liberty. The House would decide whether ministers had acted tyrannically in the business, or rather whether they had not discharged their bounden duty to their country. But were he to speak his opinion, the House had nothing to do with the affair. Parliament ought not to interfere, except to redress grievances which were beyond the reach of the ordinary courts of law, or when justice was denied. if, in the present case, any individual felt himself aggrieved, the courts of law were open to him, and he might bring his action, and compel him (Mr. D.) to answer for his conduct before a jury of his country. Hence it would appear, that there was not the smallest ground for the interference of the House.

Mr. Francis would not say any thing upon the legality or illegality of the proclamation; but he must observe, that the proceedings which took place at Dover, did certainly appear to him extremely se vere and tyrannical. About forty Englishmen happened to be at Calais, and were placed in such a situation, from the circumstances existing in France at the time, that they had no other security, than getting on board the packet; they did so, and when they came to England, some of them were allowed to get ashore, but others were kept rolling about on board the vessel, in the most disgusting situation, and in the very worst kind of imprisonment. It had been said that this was a mere private injury-that it ought to be left to the individuals to prosecute, and was not a fit subject of investigation in that House; it was his opinion, on the contrary, that it was a most unjust, illegal, and oppressive exercise of power, and that that House ought to make it the subject of a parliamentary inquiry.

Mr. Fox was decidedly of opinion, that the proclamation was illegal, being satisfied that the king had no right to say, that an English subject arriving here, either in a French or English vessel, should not be permitted to land in his native country. It had been said, that all intercourse between the subjects of the two countries

return? But, supposing the proclamation legal, it would still remain to be considered, whether it was wise? It appeared to him that it would rather be prudent to encourage all persons to come home. The right hon. gentleman had spoken with great confidence of the legality and propriety of the proclamation, though his mode of reasoning, with respect to the proceedings which took place, inclined him to believe that he had some diffidence on this subject; for the right hon. gentleman had said, that these gentlemen were guilty of a crime in possessing themselves forcibly of the king's packet; and that a case had been laid before the king's counsel, who had advised against a prosecution; but, although it had been found inconvenient to prosecute them, it became necessary to detain them, for a time by some forcible means; it had been said, too, that there were some suspected persons among them, who were said to be servants of the duke of Orleans, &c. With respect to persons of this last description, he was ready to admit that no government could be so well constructed in all its parts, that it might not be necessary for the executive power, on some occasions of public danger and difficulty, to exceed the strict limits of legal authority, trusting for the justification of the measure to the nature of the exigency which called for it. But were thirty-six unsuspected persons to be punished, because there happened to be among them one or more other persons against whom suspicions lay? The forcibly seizing upon a king's packet or any other vessel, was certainly a crime punishable by law, totally independent of the proclamation; and if those persons, who were otherwise unsuspected, had been guilty of this crime, they were liable to prosecution; and if prosecuted, and the crime proved, they ought to have been punished; but, if no prosecution was brought against them, they must be considered to have been completely innocent.-Mr. Fox then alluded to the notice which had been taken of the names of Dr. Maxwell and Mr. Stone, and re

probated the dreadful injustice and indecency of throwing out surmises against individuals, probably of good and irreproachable characters, and who had done nothing illegal, on account of their being connected with certain associations. The

last argument of the right hon. gentleman related to this being a private injury, and that it should be left to the individuals injured to apply for redress. He might possibly have acquiesced in this opinion, had the proceedings in question been the act of inferior officers; but when done under the direction of one of his majesty's secretarics of state, and involving a matter of such public importance, it seemed to him well worthy to be investigated by that House.

The Attorney General said, that the hon. gentleman had moved for a committee to inquire into facts which had happened in consequence of the order of council; but the facts which he had detailed, could not be connected with that order, as was evident from attending to dates. It had been asked, why those persons had not been prosecuted, if it was true that they had taken forcible possession of the packet; and allusion had been made to an opinion given by the king's counsel. The question put was, whether they could be punished under the proclamation, which was surely impossible, as they could have no knowledge of it at the time; and, considering where the thing happened, it did not appear to him how they could have been punished, for forcibly seizing on the packet, unless with such severity, as it would have been highly improper, in the circumstances of the case, to have advised.

The motion was negatived.

Debate in the Commons on the East India Company's Charter Bill.] May 13. The House being in a Committee on this Bill,

Mr. Fox said, he understood it was supposed by several gentlemen, that some objections were to be made to this bill before the speaker left the chair, and that afterwards the clauses would be discussed; but, although he had great objections to the principle of the bill, as others might approve of the principle, and yet might have objections to some of the clauses, he had suffered the question for the Speaker leaving the chair to pass, that those gentlemen might follow their own ideas upon the subject without

much impediment from him, particularly as what he had to urge might come at a future stage of the proceeding. He did not, however, wish to let one opportunity pass without entering his protest against some of the provisions of the bill. It was thirteen years since the sentiment of the public had been expressed in that House-"that the influence of the crown had increased, was increasing, and ought to be diminished:" and he was sure, there was as much reason for that resolution now, as there was at that time. He objected to the mode in which this bill tended to extend that influence; and he must now call upon all those who in 1780 declared, that the influence of the crown ought to be diminished, to compare the influence then, and the influence now; and to say, whether they could consistently vote for the clause which gave the nomination of three officers to the crown; whether they voted for a bill brought in by a right hon. gentleman (Mr. Burke), a bill which would do him immortal honour; whether those gentlemen, he said, who had at that time entertained the sentiments they then professed upon the increase of the influence of the crown, could now vote for a measure, which so obviously tended to increase that influence.-He maintained, that the clause empowering the crown to nominate officers to act under this bill, and who were to be paid large salaries by the company, was wrong upon the principle of it. He thought that in all public situations, where officers were appointed to any public trust, the public ought to pay them, because while the payment came from the public purse, the public had some check, by their representatives, over the conduct of such officers; but, by this bill, the public were to pay circuitously and obliquely, by and through the medium of the company; for the payment of these officers was so much in diminution of what the public would otherwise receive from the revenues of the company. He felt this, and he must add that in proportion as the House felt the influence of the crown to be great, they should be impressed with a sense of their duty not to increase it.He had heard it said on former occasions, that the gentlemen acting in the affairs of India were mere birds of passage; if so, he was sure there could be no good reason for supposing that they would be less under the influence of the crown than if they were stationary, or that they were

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