HC Deb 13 June 1811 vol 20 cc610-22
Mr. Marryatt

rose to bring forward his motion respecting the introduction of the British Constitution, and of British laws into the Island of Trinidad. The hon. and learned gentleman trusted, that he was actuated by no other principle than that of public duty in appealing to a British House of Commons on behalf of the subjects of Great Britain residing in Trinidad. He conceived it to be highly necessary to call the attention of the House to the subject, as the noble lord at the head of the colonial department had stated it to be the intention of his Majesty's ministers to continue the same form of despotic government which had so long disgraced the island. The hon. and learned gentleman, then went into a history of the island from the year 1780, down to 1797, when it was; captured by the expedition sent out from this country, under the command of sir Ralph Abercromby, who, in taking possession of it in the name and on the behalf of his Majesty, secured to the Spanish inhabitants their property and lives, but made no alteration in respect to the laws of the island. Thus things continued till governor Picton was appointed, who, to obviate the tediousness of some of their processes, which lasted as long as our Chancery suits, issued ordinances which provided for the decision of cases relating to property in a summary way. In 1802 the island was ceded to Great Britain, and the influx of British subjects was unusually great. The intercourse between the inhabitants and British merchants of course increased. At that time many discussions arose between governor Picton and colonel Fullarton, one of the council, which ended in their being recalled, and general Hislop was appointed to fill the office of governor. Some alterations were made by him to remedy the complaints on the subject of law proceedings, which were not satisfactory to some of the law officers; and it was in 1808 that ministers judged it necessary to send out Mr. George Smith, a barrister, to hold the offices of Corridor, Alcalde, &c. Commissioners had been previously sent out, and the inhabitants petitioned for British laws, which was followed up last year by petitions from ail tile commercial towns in this kingdom in their favour. Mr. Smith was accordingly sent out to fill all the judicial situations he had enumerated, for which he was fitted by being taken into the office of the noble colonial secretary, who, with a touch of his magical wand, like the metamorphosis of Ovid, transformed the barrister into a Corridor, an Alcalde, and a supreme judge of the Audiencia. By the laws of the country, a disqualification is imposed upon any man accepting the office of judge, who had not studied the laws for ten years; and by the Spanish laws, if he shall hold more than one judicial office, he shall also be disqualified, and pay a fine of 10,000 maravedas. Notwithstanding this, Mr. Smith decided in the lower courts, then Went and sat in the higher court of Audiencia, dressed not as in the inferior courts, in a plain dress, but in a superb Spanish dress. Therefore all the salutary checks which the laws imposed were done away, the offices being united in the person of Mr. Smith. One of the great sources of discontent was the docket fees paid to Mr. Smith in the lower courts, which Mr. Smith had to decide in the Appeal court, and he took cave to decide in his own favour, decreeing, that for every witness examined, a fee of 22 dollars, or 5l. 10s. sterling, should be paid. At length Mr. Smith, finding the business of the courts too much for him, sent down to the Carraccas for advice, and the consequence was, that two Spanish advocates were sent over to assist him; and at pre tent three persons were paid for doing what more properly belonged to one. Among the numerous causes for complaint, was that relative to the imprisonment of the printer of a newspaper, for inserting an advertisement without the authority of the judges, there being no such thing in the laws of Spain as Liberty of the Press. The printer was immured in a loathsome dungeon for two months, and at length liberated upon the interference of the governor. While offences of this description were punished, the most notorious malefactors escaped; because by the laws of Spain, no man convicted of a crime punishable with death can be executed, unless he confess his crime, and the torture not being in use, it is not to be supposed a man would hang himself. Such was the state of the criminal laws; and even a person charged with a murder, who had fled to this country, and was sent back by government, remained untried. The laws of Spain were particularly objectionable to British subjects, for by those laws the evidence of a negro or man of colour could not be received against a white person. Not so in England: all were alike subject to the laws. Some of these laws were singularly hard. If a negro, or man of colour, was found cohabiting with an Indian woman, he was subject to receive the punishment of 100 lashes. If he lifted his hand against a white man, that hand was cut off. The hon. and learned gentleman then made several references to the laws, and stated that he could prove the hardships under which the inhabitants laboured from their operation. In one case a French surgeon, who was also a planter, was charged with the murder of his negro slave. It seemed the slave had absconded. By the Spanish laws, if a slave absent himself from his master's service for more than four days, he subjects himself to the punishment of 80 lashes; so on in gradation to 200 lashes, for two months absence; but if he be absent upwards of six months, then the crime was commuted to the punishment of death. This French doctor's slave was absent two months. At length he was caught, and his master had him tied up to the stake and flogged. When he had received the 200 lashes, the French doctor went to his breakfast, leaving him tied up. On his return from breakfast the man was dead at the stake! For this murder he was tried. On the trial it was contended by the Attorney General, that the prisoner was subject to British laws. The counsel for the prisoner contended on the contrary, and he was acquitted. There was another case of wanton cruelty. Some officers of the militia having been out to dinner, and heated with wine, on returning passed an Indian but, when they heard the voice of mirth; upon going in they found soma negroes visiting: this was after sunset and against the Spanish laws: the officers immediately drew their sabres and swords and began to cut and hack the poor unoffending creatures. One of the men's hands was cut off, and some women and children materially hurt. The officers were afterwards tried, and Mr. Smith, the judge, decided that as the negroes were oft their master's estate after sunset; the prisoners could not be found guilty under the Spanish laws. They were accordingly acquitted.—The hon. and learned gentleman then noticed the great delay in the civil courts, and said, that he understood the Attorney and the Solicitor general proposed some alteration in the debtor and creditor laws of the island, in order to do away the hardship. He instanced a case, Dawson and Taddy, the former a resident of Liverpool, and the latter an islander, in which the process had been carried on for 18 years. The papers relating to them were more than the largest cart could carry. At length the fire, which had nearly consumed the island, burnt those voluminous papers, and Mr. Dawson having had enough of lawyers' bills did not chuse to carry on the suite any longer, and gave up his claim.—He then referred to the letter of the noble Secretary of State, upon which he commented at some length; contending that as all the other islands belonging to the cluster, of which Trinidad was one, enjoyed British laws, he thought it a measure of injustice in the government to deny that island the benefits arising therefrom. The denial would have the effect of exciting jealousies, and might be productive of injurious consequences. Me pointed the attention of the House to the serious evils which had occurred at Botany Bay, from a despotic form of government, and alluded to Jamaica, which originally, when it came into the possession of the crown of England, was subject to the same laws as Trinidad: governor after governor was sent out, but without any effect. The inhabitants smarted under the laws of Spain; and it was not until they received the British laws and the British constitution, that they were quieted.—After a variety of observations to shew the advantages which would result to the island of Trinidad from the introduction of British laws, the hon. and learned gent. moved the following Resolution: "That it is expedient, for the better security of the liberty and property of his Majesty's subjects in the island of Trinidad, that the administration of justice according to the laws of Spain be discontinued in that colony; and that British courts of judicature, for the administration of justice according to the laws of Great Britain, be established therein."

Mr. Brougham

said; that when he heard the reasons assigned for this motion, that the British constitution and laws were established in other West India colonies, that Ceylon was a conquered but not a ceded island; that a free person of colour by the English law was a competent witness; had no hesitation in declaring that it ought to be rejected, even without hearing the opinions of others of more knowledge, which he should have other wise been inclined to have heard in the first place. Without presuming to follow his hon. and learned friend through every part of his speech, he would offer a few remarks to shew the little foundation there was for the clamour that had been raised for the British laws and constitution.

His hon. and learned friend had first remarked upon the appointment of Mr. Smith, and upon the singular process in Downing street, for converting any lawyer caught up in Westminster hall into a gentleman learned in the laws of Spain, though he knew nothing of the law nor the language. But it was at least as ingenious a process by which his hon. and learned friend himself had, all at once, become so eminent a Spanish lawyer, as to speak of the most intricate points of the law with as much decision as if he had been an experienced Spanish alcalde. That one person should be the original judge, and also the judge of appeal, was, when boldly stated, inconsistent. But how stood the fact No criminal sentence by the Spanish law was valid till confirmed by the Audiencia of the Carraccas, This had become impossible to be got at, and it was absolutely, necessary to supply the defect; and for this purpose these appointments had been united in Mr. Smith. To one of the situations, however, he had appointed a deputy, so that there was none of that inconsistency upon which his hon. and learned friend had dwelt. But, admitting that he actually exercised the functions of an original judge, and of a judge of appeal, what was that more than a revision or rehearing—a thing to which they were accustomed every day in this country. In the county palatine of Lancaster he himself had witnessed, not more than six weeks ago, an application to a judge at twelve o'clock for a new trial, upon the ground of a misdirection of his own to the jury, not two hours before. After a trial at bar the application for a new trial was to the same judges, and his hon. and learned friend could not but be aware that the appeals from Chancery to the House of Lords were decided by the lord chancellor, the same judge who decided the causes originally.

The hon. and learned gentlemen next defended the conduct of Mr. Smith, who was a man of great talents and humanity, towards those persons against whom this motion was directed. Mr. Smith's conduct had been impeached, but the only instances in which it had been blamed consisted in the execution of those very laws which he had been appointed strictly to administer.—He next argued that the ordinance of 1789 was unquestionably a part of the Spanish law. It was an order of the King, conceived in the most distinct terms, and commanding the very council by which it was said it ought to be confirmed, to consider it as law, and administer it accordingly. It had been called by Mr. Smith an almost divine ordinance, and, comparatively speaking, it was so, for it afforded much greater protection to the slaves than any law of ours. The master and steward only were permitted to inflict a few lashes, not the driver; and they were inflicted too only by way of punishment, and not to quicken the negroes hands by the effusion of his blood, as in our other West India colonies, where the British constitution and laws Were not established as in this country.

Another regulation in this ordinance, was, that no one but the master or his steward should be entitled to execute the sentence. Not even in the presence of the master could any beyond a certain number of lashes be imposed; and even the degree of force was limited. No contusion or effusion of blood was tolerated; if any such took place, that was esteemed a misdemeanour; and if repeated, the slave was taken from under the controul and protection of his master. Such was the ordinance to which Mr. Smith applied the epithet of an almost divine code. He (Mr. Brougham) had only one objection to it, it was too mild—too near perfection—he was afraid it was scarcely human—and he doubted if it was in human nature always to stop short in punishment, so as to avoid even a contusion. It was enough for his argument, however, and it went to tear up by the roots the argument of his hon. and learned friend. This being the state of the law in the Spanish colonies, it was now proposed to change this law, and to introduce a different system, by which a brother slave was to scourge his fellow, and to give him any number of lashes not exceeding two hundred. There was one case mentioned in the papers before the House, at the very idea of which every person must recoil, and must shudder to think that he belonged to the same race with the being who inflicted the punishment; not only was he not the master or the driver, but he was the brother to the unfortunate victim! Was it for this that the House were Called on to give up the Schedula which Mr. Smith admired? Were they to depart from this model of perfection, and in its place to adopt that under which Mr. Huggins scourged to death this miserable being, and was acquitted on evidence which could not have proved satisfactory to any but to the twelve slave drivers by whom he was tried and was acquitted. When we talked of English law, we talked of it by reference to English judges, to English juries, and to English feeling and principles. He could not allow this man who could inflict such a punishment to be an Englishman. It was a mockery to talk of transplanting the English law to the West Indies when only the name was carried thither, and all the true English feeling was left behind. Then the law of England served only as the engine of fraud and oppression, rendered doubly disgraceful, because carried on under the pretence of law and justice. This was under the pretence of justice to the whites, to load the other miserable wretches with oppression unbounded. His hon. and learned friend talked as if men of colour were allowed to be witnesses in our West India colonies. His hon. and learned friend might by some of those magical changes of which he himself talked, have become a Spanish lawyer, but he could tell him he was mistaken as to the law of evidence in the British colonies. If the law in this respect were to be judged of from the way in which it existed in Jamaica, in Barbadoes, &c. he could tell his hon. and learned friend, that there men of colour were not admitted as witnesses. The proposition of his hon. and learned friend went really to this—to substitute oppression and injustice for benevolence. The British constitution was to be found in no other part of the world but in this country. His hon. and learned friend seemed to think that it was to be found in greater perfection in the island of Jamaica because the House of Assembly had no need of reform. It might, indeed, be better for the purposes of individuals, and let those who preferred such a system enjoy it. For his part, he could not conceive that to be the best system by which privileges were secured to a few who were allowed to lord it over all the others. His hon. and learned friend said that there were scarcely any free people of colour in Trinidad. In 1805, however, it appeared that there were of this description 5,275, being in a proportion of five to two of the white population; and in 1808, they had increased to 6,478. He proceeded to notice the Memorial presented to the governor of Trinidad by this description of the inhabitants, which was peculiarly touching, from the humble, gentle, and subdued nature of the language in which it was conceived, so different from the style of other persons of a similiar description in other colonies. Those were the persons, however, whom it was sought, under pretence of giving them British laws, to deprive of those privileges and that constitution which they now enjoyed. One word as to the nature of the trial which his hon. and learned friend wished to give to the unfortunate negroes in this settlement. The jury, as he proposed it, must consist of twelve white planters, interested in the slave trade. This was a tribunal similar to that which acquitted Huggins, and before which his honourable and learned friend wished the House to send every other person who was to be tried for any offence, real or supposed. To call this a trial by jury, was neither more nor less than a mockery.—The hon. and learned gentleman proceeded to shew the absurdity of that House, under the assumption that such and such was the law of Spain, and without any possibility of knowing whether such was the law of Spain or not taking on themselves at once to repeal it, and to substitute in its place what might be utterly inapplicable, and infinitely worse than the law which they repealed. That the law of Spain was not known in this country, the court of King's bench had fully shewn, by referring for farther inquiry, the simple point, whether the law of old Spain recognised torture. Surely then, that House could not be supposed to be better informed on such a subject than the judges of the court of king's bench.—This led him, in the last place, to remark that this very uncertainly afforded the strongest reason why the House should not proceed rashly, or without due consideration and deliberation. He hoped before many months elapsed, that the subject would be considered in its proper place; and it could not, to his mind, be taken up in a more proper manner than in the spirit which marked the greater part of lord Li- verpool's letter. Let that spirit, and not the letter of English jurisprudence, be in the minds of ministers when they went to the consideration of this subject, and let them act accordingly. He gave them, credit for what they had already done; and had no hesitation in opposing the present motion.

Mr. Stephen

, notwithstanding the satisfactory answer which the proposition of the hon. and learned mover had received from his hon. and learned friend who had just sat down, found it necessary to go somewhat into the question. He objected to the time and manner in which the question was brought forward. Not a single complaint had been made, but the system had been acted on by all concerned; and though the hon. and learned mover, who was the agent for the colony, had been in possession of the circumstances now staled by him for months, he now brought them forward when probably there was not another business day remaining of the session. The hon. mover desired of the House to take all upon trust. He did not even tell them to what extent or under what limitations he wished his proposition to be adopted. In the colonies there were infinite and important varieties in the legal proceedings. He did not tell them whether he wished for the British constitution as in force in Jamaica, in St. Kitts, or in Barbadoes. He first wished to disarm the government of all powers in relation to the management of the island, and then to leave it to the Regent to exercise his discretion.—He had for twenty five years been acquainted with the West Indies, but he had heard things to night concerning evidence received in those Islands, of which, till now, he had been ignorant. The hon. mover had said, that ministers were determined to govern this island by an arbitrary system. This he denied. They had not, indeed, determined that it should be governed on the same system with the other West India islands, but that any alterations in its existing law should be made gradually, and that they should be such as the colony was capable of receiving. What his hon. friend, on the other hand, proposed, was, that the House should accede to the wishes of 517 white inhabitants in opposition to the wishes of a population of 22,000. There certainly was no application before the House on the part of the people of colour; but how did this happen? Finding that a canvass was going on among the white inhabitants as to the nature of the constitution for I which they should petition, the people of colour presented a memorial to governor Hislop, who was the head of the faction on behalf of whom his hon. friend now applied, praying that they, too, might have liberty to approach his majesty, and to inform him that he had other subjects in the island of Trinidad besides the white inhabitants. This right, however, though requested in the most submissive terms, the governor dared to refuse to the people of colour, and such was the awe in which they stood of the formidable oligarchy of the island, that they did not presume farther to complain.—To prove the hardships under which the people of colour laboured, and that sound policy called for an alteration of the system, which was less oppressive in the Spanish and Portuguese islands than in any other, the hon. and learned gentleman proceeded to read extracts from several authors on the subject. The Spanish law was the law of the island at the time of the capture, and its continuance was guaranteed to the inhabitants. The present was an attempt to take the management of the island from under the observation of the legislature of this country, that the planters might be enabled to carry, on the slave trade with impunity. This was what the House would not countenance, notwithstanding the statement of his hon. friend.—He proceeded to state that the printer alluded to, and who was said to have been sent to a dungeon, had been guilty of exciting mutiny; and that the faction of whom he had already spoken, finding that they could not overcome the constancy of the chief judge in his resolution to do his duty, took on themselves to seize on the sovereign authority, and to abrogate the judge's office, in consequence of which he was now on his way to this country, where he hoped he would soon have an opportunity of meeting his enemies in a court of justice. The Spanish Schedula, to which reference had been made, he had no hesitation in declaring, had received the sanction of the Audiencia of the Caraccas, a copy of it having been transmitted from the Caraccas to Mr. Smith, and he himself (Mr. Stephen), having also obtained a copy from Porto Rico. It was to be observed, that the persons on whose account the present proposition was made, were careful to provide, that, so had property was concerned, the Spanish laws (Were still to prevail, the measure in this respect being wished only to be prospective. Highly as these gentlemen valued the beauty of the English constitution, and much as they wished it to be introduced into the island of Trinidad, they" seemed to agree that those blessings: would he too dearly purchased at the expence of their being compelled to pay, their debts.

Lord Castlereagh

entered into a history of the proceedings of government on the cession of the island of Trinidad, and explained and defended the policy of the arrangements then made. He spoke in terms of the highest praise of the character' of Mr. Smith, who had been sent out to administer the Spanish law in the spirit of English justice and mercy. He approved of the course which had been pursued by his Majesty's present ministers with respect to Trinidad, and thought it" would be improper to give power to persons who would be likely to wield it against each other. Though he hoped scenes like those which had been witnessed would never return, yet in his opinion it would be rash to suppose the embers of passion were wholly extinguished, and that every feeling of jeaiousy was already no more.

Mr. Barings

was in favour of the motion. He thought the great desideratum was, that there should be a settled system of laws for the island, and that it was not so material a question whether those laws were Spanish or British. He thought that the hon. gent. who had brought forward the motion was entitled, to the thanks of the House.

Mr. Barham

, though he by no means approved of all the arguments advanced by gentlemen opposite, was against the motion. He thought the measure proposed would be productive of evils of considerable magnitude, while that benefits of equal importance would result from it, was by no means clear. With respect to the treatment of slaves in the English colonies, as compared with what they experienced in the colonies of Spain, he would state one fact which he knew to be true; and which he would challenge any gentleman to contradict. In Jamaica, it was considered the greatest punishment short of death that could be inflicted for a crime: on a slave, to take him from our severity,; and send him to the comparatively mild slate of slavery which it had been stated existed in the Spanish colonies.

Mr. Canning

was desirous of refraining from any expression of his opinion on this occasion, from a cause that was generally understood; but, at the same time, he felt, it to be of so much importance that this question should be set at rest in Trinidad, that, he trusted, he should be excused for making a few observations. When the hon. gentleman said that the inhabitants of that island were earnestly desirous of the whole of the British constitution, but that they would be content with a part, and would also willingly relinquish their claim of an assembly, provided they were permitted to have a council, he could not perceive with what part of the British constitution they were enamoured. When they declared their wishes for a council, consisting of persons nominated and removable by the crown, it appeared to him that their only object was to prevent the legislature at home from exercising any controul over, or interference with, their proceedings. This was evidently the express purpose they had in contemplation, and on this express ground it was that he would resist the application. He wished to see at least one colony dependant on the legislation of the empire. In support of the application, no implied hope or engagement could be adduced. It seemed to have been the original design and purpose of the British government to make a new experiment in the island of Trinidad, and to enquire, previous to the happy abolition of the slave trade, into the practicability of preserving it free from that pollution, in order to furnish the means of a practical examination of the advantages of the plan. The colony was therefore an exception to all the principles on which the constitution of the other islands was founded. The hon. gentleman had ingeniously said, will you, when you have admitted every other member of the colonial family into a participation of your constitution, reject and banish Trinidad alone? Is Trinidad alone to be treated as an illegitimate and abortive offspring? But he must remark, that Trinidad, when received into this family, was admitted upon a clear understanding, and was perfectly apprised of the conditions of that reception. So little acquainted with Spanish laws as the House appeared to be, he thought it would be a most precipitate conduct if they were at once to abrogate them in a society like that of which a West India island was composed. There was one law in that code which for humanity toward the slaves. and feeling for their security as well as instruction, it was well known was quite unimitated by any provisions of our own colonial legislatures. It would not however, be by any means impossible or difficult to appoint a committee to revise the Spanish laws, and expunge such particulars as might seem flagrantly irreconcilable with the universal principles of British legislation. This he confessed was the whole extent to which he could permit himself to go. Upon the fullest consideration which he had been able to pay to the question, he felt in the highest degree averse to add Trinidad to the number of those islands where the introduction of every plan for ameliorating the condition of the slaves was uniformly opposed.

Mr. Manning

said a few words in sup port of the motion.

Mr. Wilberforce

enforced many of the arguments of the preceding speakers, and dwelt strongly on the advantages of religious instruction on the minds of the slave population in the West India islands. He complained of the assembly of Jamaica, who, he stated, interdicted and punished the Methodist missionaries, and concluded by praising the talents and exertions of Mr. Smith, and commending the zeal and attention of ministers to the abolition of the slave trade.

Mr. W. Smith

observed, that Great Britain, though unwilling to deprive boroughs of their charters, sometimes found it necessary to resort to that measure. Why should not the island of Nevis, for instance, not be deprived of its charter as well as a borough in the county of Sussex.

Mr. Marryatt,

in reply, defended the conduct of West Indian juries. In the island in which he had resided ten years, he had been concerned only in three actions, and two of those actions were brought b himself, one against the governor, and the other against the chief justice of the island, and to the honour of West Indian juries he had obtained, in both cases, verdicts in his favour. At present in Trnidad, small causes were decided speedily enough; but of 1,200 causes of importance not 20 had been tried by judge Smith. The sums at issue were placed in the hands of a depository, and could never be got out again. Of one cause in particular out of so large a sum as 200,000l not above 4,000l. could be recovered.

The question was then put, and negatived without a division.

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