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very different footing; for, in the only the table, in order that the noble lords two cases of misden.eanors, where peti- might have an opportunity of considering tions of appeal had been presented against it, as it was certainly a matter of great imjudgments of the court of justiciary, viz. portance, and that a future day might be the case of Elgin in 1713, and of Mackin- fixed to take into consideration whether tosh and Demoster in 1768, the petitions it ought be referred to a committee. had in fact been entertained and deter- Lord Thurlow was of opinion, that the mined upon by that House; in the first of judgments in 1713 and 1768, did by no these cases, the judgment of the court of means go the length of being precedents justiciary was reversed, and in the otherthe of that House having entertained petitions petition was referred to a committee, and of appeal from the court of justiciary in upon the report of that committee, which cases of misdemeanor ; but neither did was agreed to by the House,a direction was they go to show any opinion of their given to the court of justiciary in the same lordships appearing upon the record, that way as is frequently done in appeals from the petitions ought not to be entertained ; the court of session. This was a matter though there had been various judgments of very great importance to the whole peo- to that effect with regard to capital cases, ple of Scotland, and he hoped their lord- and he confessed he could see no room ships would agree with him in thinking, for a distinction, in this respect, between that it ought to be fully discussed, and set the case of a capital offence and of a misat rest one way or another. He would demeanor. He was persuaded their lordtherefore move that the petition be refer- ships must be completely satisfied, that an red to a committee to consider and re-appeal could not possibly lie in the one port to the House, whether it ought to be case and not in the other. He said, it entertained.
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 The Lord Chancellor said, that although be acquitted and dismissed from the bar, he was of opinion that no appeal lay, and the court of justiciary had repelled the did not suppose he should be inclined to objection made by them in arrest of judg- alter that opinion, yet he would not object ment, and had adjudged the one of them to the petition being referred to a com. to be imprisoned for the space of six mittee ; because, if any doubt remained months, and the other for three months, * | as to the case of misdemeanors, it would &c. The petition went on to state, that certainly be right that the matter should they conceived themselves to be thereby be finally settled. aggrieved, and appealed to their lordships The motion was then agreed to.* for redress, &c. After the petition had been read,
Mr. Whitbread's Motion respecting the Lord Cathcart suggested the propriety Embarkation and Landing of Persons from of simply moving that the petition be upon France.] May 9. The order in council
* The case of Berry and Robertson is re- • The further proceedings on this subject will ported in Howell's State Trials, Vol. 23. p. 80. be found in Ilowell's State Trials, Vol. 23, p.115.
respecting the Embarkation and Landing presumed to be innocent until he was of Persons from France being read, proved to be guilty. In vain had the con
Mr. Whitbread, before he stated the facts stitution declared that a man should know upon which he should ground his proceed the nature of the charge to be exhibited ing, begged leave to make a few remarks against him when he was to be deprived upon
paper which had just been read. in this arbitrary manner of his freedom. There was no person more unwilling to In vain had the constitution declared, consent to the abridgment of the just that no man should be punished without prerogatives of the crown than himself, trial, or without being heard in his defence; or more eager to preserve them to their all these points were violated by the order just extent; but he thought there could be in council, to which he had alluded. Have no prerogative that gave authority for the ing made these observations, he now came exercise of that proclamation. If there to a statement of the facts on which they was, such a power should be seriously arose. It was well known, that some time considered; for he held it to be an in- previous to the order in council, the Nadisputable point, that no prerogative should tional Convention of France had passed be held by the crown, except such as a decree, enjoining all Englishmen in conduced to the happiness of the people. France to quit that country within eight Lately, however, one of the law officers days in consequence of which, several of the crown had thought fit to assert, Englishmen came to Calais, with a view “ that his majesty had a right to regulate of embarking for Dover, and in a short the passage into this kingdom.” To time reached that port in the Express which he begged to answer, that his ma- packet ; but there they were met by cerjesty never had, nor by the constitution tain officers, who asked them whether they of this country could have, any such had passports from Mr. Dundas, with right a right to prevent an innocent sub- leave to land in England? They answered ject from landing in any of his dominions. they had not. They were then told, that But the order in council assumed that such being the case, they should not land; right, conformably to the opinion of the and if they attempted to do so, they would learned gentleman; and if such was the be resisted by force. Some of them, howcase, his majesty had power, under certain ever, by means of a boat, contrived to land circumstances, to condemn, without any at some distance from the port; they reason, any person he thought fit, to were taken by an officer from Bow-street, banishment from his native land for ever. acting under the imperial mandate of Mr. He admitted the prerogative of the Crown Dundas, and carried on board the packet to lay an embargo upon ships in time of again, where they, together with the other war; but such a power as that exercised passengers, were detained for five days, under this order, his majesty could not and then discharged by the order of Mr. have by the law of England, and there- Dundas. This Mr. W. maintained to be fore the act was an act of tyranny. Be- illegal, taken in any point of view. If sides the constitutional objections he had there was no charge to be exhibited against stated to this order in council, he had ob- them, it was illegal of course. If there jections to it in point of policy, and upon was a charge exhibited against them, they the principles of justice. It would be im- should have been kept in custody until politic to prevent the landing of innocent trial. These were the facts on which he individuals, because that act would dis- brought this subject forward. He meant gust all honest men. It was against the only to institute an inquiry into the subprinciples of justice, because the ministers ject. He did not know whether there of the executive power must always in were any precedents for this order in such cases proceed, if they proceeded at council ; if there were, no precedents, all, upon the information of despicable in- however numerous, could sanction a meaformers, who had their private views of sure so repugnant to every principle of avarice or pique to gratify. Such a power justice. He then moved, “ That a comwould be as troublesome to the secretary mittee be appointed to inquire into certain of state as that which he derived from facts whịch took place at Dover in the the alien bill, and more troublesome in the latter end of February last, under the auexercise than any other of which he was thority of the Order of Council of the 20th possessed. The whole principle of the Feb. 1793." order was against the spirit of the law of Mr. Secretary Dundas said, that if England, which was that every man was the proclamation was tyrannical and mm[VOL. XXX. ]
constitutional, the original guilt of it ought they had passports from one of the secrenot to be ascribed to his majesty's law ad- taries of state; which it appeared they had visers, for they had copied it from a long not. They refused to quit the ship, and chain of precedents established in the best began to weigh the anchor, so that he was of times. It would be fit for gentlemen, obliged to steer the vessel to England. before they pronounced it to be illegal, He (Mr. Dundas) in answer to this letter, to consider whether the king had or had desired that captain Bell should come to not a right to establish packet boats for town, to state more particularly the transthe service of the public, and whether he action, and give the names and characters had or had not a right to declare, that of the passengers. This was done; and none should land from his vessels so em- after a due examination, it was signified, ployed, without a passport from one of at the end of three days, that the British his ministers. It was allowed by all na- subjects might land, and proceed without tions, that war completely suspended all molestation to their respective homes. intercourse between thebelligerent powers. This was the plain state of the case ; and This maxim was generally true ; but many he trusted that the House would be of modifications had been introduc of late opinion that there was nothing in the by milder manners and a more liberal and transaction that was either tyrannical or relaxed policy, by which the horrors of unconstitutional. The hon. gentleman had war were softened. One of these was to said, that if the parties concerned were license certain packet boats for the pur- not guilty of any crime, they ought not to pose of carrying mails between two coun- have been detained. To this he would tries at war. Such licensing was only a reply, that, prima facie, they were guilty of partial suspension of the interruption of a great crime; they appeared to have intercourse; and surely the crown had a taken forcible possession of one of his mapower to annex conditions to that sus- jesty's ships, and compelled the commanpension. France had thought proper der to disobey the positive orders of his wholly to interrupt that intercourse; and employers. Upon a more minute inquiry, the law of nations gave her a right to do it appeared also, that there were on board
The king of England would have been some persons of characters so foul and de. justified by the same law in going the same testable, that they ought not to be suffered length : but he was not advised to take in any civilized state whatever. He besuch a step, but merely to provide that by lieved the House would not desire him to keeping the intercourse open on his side, say any more than that there were on for the benefit of his people, he did not board Dr. Maxwell, a Mr. Stone, and two open a door to evils still greater than the servants of the duke of Orleans. There interruption of all intercourse whatever. were also on board some Englishmen This was the ground of the order of whose conduct in France could not give council; and surely the king'was not only much satisfaction. To detain these, thereauthorized, but bound to consult the ge- fore, until some consultation should be neral safety of his coasts, by giving direc- held, was neither illegal or oppressive. tions that no person should be suffered to But the hon. gentleman would have it, land from any of his vessels, who was not that if they were properly detained, they known to be peaceable and well disposed, ought not to have been dismissed without in which case he should procure a pass- prosecution and trial. His answer to that port from the secretary of state. With was, that his majesty's ministers certainly respect to the particular case mentioned meant to have brought them to trial if they by the hon. gentleman, the first account he could : and for that purpose all the infor. received of the transaction, was in a letter mation they had received relative to the from Mr. Bell, commander of the packet, conduct of the passengers in seizing the and transmitted to him from the post king's ship, was laid before his majesty's office. Here he read the letter, which law officers, with directions to state their stated, that whilst he was on shore at the opinion, whether in the transaction there Post House at Calais, a number of persons, was ground for prosecution, and if there chiefly English, got on board his packet was, what mode of proceeding they would in his absence, and without his knowledge; recommend. Their answer was, that that when he returned to his vessel, and there was one circumstance in the case, found them on board, he desired they which would probably be a bar to convicwould go ashore, for it was not in his tion; and that was, that it did not appear power to land them in England, unless that the captain of the packet was ac
quainted with the king's proclamation, must cease in consequence of the war ; and that it was in obedience to it that he but, admitting this to be the case, what refused to carry them to England. As could be more unjust than this, that perthis opinion showed that a conviction was sons encouraged to carry on trade with not to be expected, and as his majesty's France, under the commercial treaty, and ministers would not order a prosecution, happening to be in France, in the course when they had reason to believe it would of carrying on their business when the not lead to punishment, they gave direc-war commenced, should be prohibited to tions for setting the parties concerned at return? But, supposing the proclamation liberty. The House would decide whe- legal, it would still remain to be consither ministers had acted tyrannically dered, whether it was wise? It appeared in the business, or rather whether they to him that it would rather be prudent to had not discharged their bounden duty to encourage all persons to come home. their country. But were he to speak' his The right hon. gentleman had spoken opinion, the House had nothing to do with with great confidence of the legality and the affair. Parliament ought not to inter- propriety of the proclamation, though his fere, except to redress grievances which mode of reasoning, with respect to the were beyond the reach of the ordinary proceedings which took place, inclined courts of law, or when justice was denied. him to believe that he had some diffidence if, in the present case, any individual felt on this subject; for the right hon. gentlehimself aggrieved, the courts of law were man had said, that these gentlemen were open to him, and he might bring his action, guilty of a crime in possessing themselves and compel him (Mr. D.) to answer for forcibly of the king's packet; and that a his conduct before a jury of his country. case had been laid before the king's Hence it would appear, that there was counsel, who had advised against a pronot the smallest ground for the interference secution ; but, although it had been of the House.
found inconvenient to prosecute them, Mr. Francis would not say any thing it became necessary to detain them, for upon the legality or illegality of the pro- a time by some forcible means; it had clamation; but he must observe, that the been said, too, that there were some proceedings which took place at Dover, suspected persons among them, who did certainly appear to him extremely se were said to be servants of the duke of vere and tyrannical
. About forty Řng-Orleans, &c. With respect to persons of lishmen happened to be at Calais, and this last description, he was ready to were placed in such a situation, from the admit that no government could be so circumstances existing in France at the well constructed in all its parts, that it time, that they had no other security, might not be necessary for the executive than getting on board the packet; they power, on some occasions of public dandid so, and when they came to England, ger and difficulty, to exceed the strict some of them were allowed to get ashore, limits of legal authority, trusting for the but others were kept rolling about on justification of the measure to the nature board the vessel, in the most disgusting of the exigency which called for it. But situation, and in the very worst kind of were thirty-six unsuspected persons to be imprisonment. It had been said that this punished, because there happened to be was a mere private injury—that it ought among them one or more other persons to be left to the individuals to prosecute, against whom suspicions lay? The forand was not a fit subject of investigation cibly seizing upon a king's packet or any in that House; it was his opinion, on the other vessel, was certainly a crime punishcontrary, that it was a most unjust, illegal, able by law, totally independent of the and oppressive exercise of power, and proclamation; and if those persons, who that that House ought to make it the were otherwise unsuspected, had been subject of a parliamentary inquiry. guilty of this crime, they were liable to
Mr. Fox was decidedly of opinion, that prosecution; and if prosecuted, and the the proclamation was illegal, being satis- crime proved, they ought to have been fied that the king had no right to say, that punished; but, if no prosecution was an English subject arriving here, either brought against them, they must be in a French or English vessel, should not considered to have been completely innobe permitted to land in his native country. cent.-Mr. Fox then alluded to the noIt had been said, that all intercourse be- tice which had been taken of the names tween the subjects of the two countries of Dr. Maxwell and Mr. Stone, and re
probated the dreadful injustice and inde- much impediment from him, particularly cency of throwing out surmises against as what he had to urge might come at a individuals, probably of good and irre- future stage of the proceeding. He did proachable characters, and who had done not, however, wish to let one opportunity nothing illegal, on account of their being pass without entering his protest against connected with certain associations. The some of the provisions of the bill. It last argument of the right hon. gentle was thirteen years since the sentiment of man related to this being a private injury, the public had been expressed in that and that it should be left to the indivi. House—“ that the influence of the crown duals injured to apply for redress. He had increased, was increasing, and ought might possibly have acquiesced in this to be diminished :” and he was sure, there opinion, had the proceedings in question was as much reason for that resolution been the act of inferior officers; but when now, as there was at that time. He obdone under the direction of one of his jected to the mode in which this bill majesty's secretaries of state, and involv- tended to extend that influence ; and he ing a matter of such public importance, must now call upon all those who in 1780 it seemed to him well worthy to be inves- declared, that the influence of the crown tigated by that House.
ought to be diminished, to compare the The Attorney General said, that the influence then, and the influence now; hon. gentleman had moved for a com- and to say, whether they could consistmittee to inquire into facts which had ently vote for the clause which gave the happened in consequence of the order of nomination of three officers to the crown'; council; but the facts which he had de- whether they voted for a bill brought in tailed, could not be connected with that by a right hon. gentleman (Mr. Burke), order, as was evident from attending to a bill which would do him immortal hódates. It had been asked, why those per- nour; whether those gentlemen, he said, sons had not been prosecuted, if it was true who had at that time entertained the that they had taken forcible possession of sentiments they then professed upon the the packet; and allusion had been made increase of the influence of the crown, to an opinion given by the king's counsel. could now vote for a measure, which só The question put was, whether they obviously tended to increase that influcould be punished under the proclama- ence. He maintained, that the clause tion, which was surely impossible, as they empowering the crown to nominate officould have no knowledge of it at the cers to act under this bill, and who were time; and, considering where the thing to be paid large salaries by the company, happened, it did not appear to him how was wrong upon the principle of it. He they could have been punished, for forci- thought that in all public situations, bly seizing on the packet, unless with where officers were appointed to any puba such severity, as it would have been lic trust, the public ought to pay them, highly improper, in the circumstances of because while the payment came from the the case, to have advised.
purse, the public had some check, The motion was negatived.
by their representatives, over the con
duct of such officers; but, by this bill, Debate in the Commons on the East In- the public were to pay circuitously and dia Company's Charter Bill.] May 13. obliquely, by and through the medium of The House being in a Committee on this the company; for the payment of these Bill,
officers was so much in diminution of what Mr. Fox said, he understood it was the public would otherwise receive from supposed by several gentlemen, that some the revenues of the company. He felt this, objections were to be made to this bill and he must add that in proportion as the before the speaker left the chair, and that House felt the influence of the crown to afterwards the clauses would be dis- be great, they should be impressed with cussed; but, although he had great ob- a sense of their duty not to increase it.jections to the principle of the bill, as He had heard it said on former occasions, others might approve of the principle, that the gentlemen acting in the affairs of and yet might have objections to some India were mere birds of passage ; if so, of the clauses, he had suffered the ques- he was sure there could be no good reation for the Speaker leaving the chair to son for supposing that they would be less pass, that those gentlemen might follow under the influence of the crown than if iheir own ideas upon the subject without they were stationary, or that they were