Commons Sitting of 31 March 1819

COAL DUTIES.
Mr. Sinclairsaid, that he held in his hand a petition very numerously and respectably signed, from the town of Thurso, in Caithness, against the imposition of any fresh duty upon coals. The anxiety and alarm, which even the unauthenticated rumour that such a measure was in contemplation, had excited in every part of the kingdom, and which particularly prevailed in the manufacturing districts of Scotland, had extended to the distant county, which he had the honour to represent.—He was happy to find that his own sentiments were confirmed by those pf the petitioners—and should, if necessary, give every opposition in his power to a tax so cruel and impolitic; a tax which would press so severely upon all classes of the community, but especially upon the indigent and industrious—a tax which, by increasing the price, would necessarily diminish the consumption of many important articles of manufacture and would thus prove very injurious to the commerce and revenue of the country.
Ordered to lie on the table.

BREACH OF PRIVILEGE —MINUTES OF COURT MARTIAL ON THOMAS STINTON.
Lord Althorp Lord Althorp moved, that the Minutes of the Court Martial on Stinton, the man tried for attending a committee of the House, be printed.
Mr. Beckettjustified the proceedings of the court-martial, and contended, that no breach of privilege had been intended or committed in point of fact; the order produced by Stinton was dated on Thursday morning, and the arrest by Serjeant Hardy did not take place until Saturday afternoon.
Mr. Tierneythought that the court ought to have inquired, whether the presence of Stinton had been required on the morning of Saturday, before they found him guilty, although they had followed up their sentence by no punishment. He did not impute to the court-martial any intention to infringe the privileges of the House; but the subject ought to be investigated, for the sake of the precedent.
Lord F. Bentincksaid, that if the soldier was wanted by that House, it was merely necessary for him to mention it to the Serjeant, and then to go. With respect to any expressions in the sentence, he could not see how they could be construed to involve any breach of the privileges of the House. That sentence was worded as the sentences of courts-martial generally were, and went expressly to show that it was not meant to incur any such breach of privilege.
Colonel Barryconceived, that had the sentence of the soldier been for absenting himself without leave, it would have been fully justified. Undoubtedly the man had been guilty of a military crime in so doing, and the sentence was quite regular.
Mr. Tierneythought the man was perfectly justified. If he was wanted by that House, it was enough for him to say, "I am wanted, and will go."
Mr. Broughamrose to protest against the doctrine which had been advanced by an hon. member on the other side. The hon. member admitted, that if the soldier was refused leave, he might come notwithstanding; he did not now contend that point, but said that he was bound to ask leave. Now he (Mr. B.) meant to dispute that doctrine altogether. On the warrant of that House being issued to any person whatever to attend them, whether it was to a servant under a master, a sol-
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dier under his officer, an officer under his superior, it signified not which, except that the soldier under his officer was the most important case, when the control of the officer over the soldier was in question, it was that soldier's duty to come before the House immediately, without regarding any other order.
Mr. Wynnagreed with his learned friend, that any person receiving ass order to that effect was bound to attend the House. He considered that the soldier was also bound, not to ask leave, but to state that he had received such an order, and must attend. He had in such a case, no leave to ask.
Mr. Broughamexpressed his concurrence in what had fallen from his hon. friend, as to there being no necessity for a person so summoned to ask leave.
Sir James Mackintoshwas perfectly satisfied, that there was no wish to make out the infringement which had occurred a breach of privilege. With respect to what had been said about asking leave, whatever degree of confusion that expression might have produced among hon. members, it originated on the other side of the House. It seemed in the highest degree necessary to protect the individual from the consequences of the step he had taken. As to the observations of a right hon. gentleman, that such protection would open a door to every soldier who chose to do so, to leave his quarters, nothing could be more futile. Soldiers were bound to do their duty.
The motion was agreed to.

SCOTCH DUELLING ACTS REPEAL BILL.
Mr. Boswellrose to call the attention of the House to a subject which he felt to be of great importance to that part of the country with which he was connected. He wished it to be understood, that he meant to throw no imputation on the laws of his country. He was confirmed in his veneration for those laws —no man could feel more. Indeed, he had never met with a Scotsman in his life, who would change the laws under which he lived, for those of any other country. But that very veneration led him to look with greater anxiety and more fear, to any thing objectionable connected with those laws. They had heard that a revision of the laws was idle and visionary and impracticable. That it was idle and visionary he would deny: for it was not idle to remove from the Statute Book,

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statutes which the courts of law had pronounced to be in desuetude. As the doctrine of the power of the courts to determine what statutes were, and what were not in force, had long been held to be the law of Scotland, and had even been sanctioned by the other House of Parliament, it was not his intention to interfere with it. But he wished the statute laws of that country to be in a more determinate shape—that those statutes which were declared to be in desuetude should be repealed, and that those which were partly in force and partly not, should be put in a more determinate shape. He wished for no innovation in the law; for the removing from the Statute Book statutes which were not held to be law, was not an innovation. It had been said, that the people of Scotland were going on very well under their present laws, and would go on very well without the interference of the House—that the court of session could pronounce hereafter, as they had hitherto pronounced, what laws were and what were not in force. But, how was this done? By a pertinacious and expensive litigation between individuals; for an act could not be pronounced in desuetude till it had been decided to be so by a court. It had been said that it was impossible to determine what part of a law ought to be struck out of the Statute Book and what not, without a most laborious inquiry. He had never thought it an easy task; but he was clearly of opinion that if it was competent to the legislature, to enact new laws, it was competent to them also to correct the old. Though it had been stated that, by the law of Scotland for more than 300 years, laws by contrary custom were abrogated, he was prepared to show that this had not always been the case within the period in question. In the Harleian miscellany there was a case which was decided in 1634. This was the case of lord Balmerino, in which the lord advocate Hope, of Craigie-hall, the author of a work on Scots law, called Minor Practicks, was the prosecutor, and Nisbet, of Duleton, the author of another book on Scots law, with a quaint title, was advocate for lord Balmerino. It was then objected to by lord Balmerino, that the act on which he was tried was in desuetude, but it was argued by the lord advocate, that there was no prescription against statute law. The court repelled the objection to the statute on which lord Balmerino was tried, "in
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respect the act of parliament stands unrepealed." The statutes of Scotland might be divided into four classes: I Such as were totally inapplicable to the present state of society. 2. Statutes of which parts were in desuetude, and parts in force. 3. Statutes held to be in force, and which were of an unexceptionable nature. 4. Statutes held to be in force of an exceptionable nature. He wished to confine himself at present to moving the repeal of one statute of an exceptionable nature—a statute with respect to Duels, on which an individual had lately been tried. By this statute, a person sending or bearing a challenge to fight 3 duel, forfeited all his moveable property, and suffered banishment, whether the duel took place or hot. He had it in view to move the repeal of two other statutes. One on the old system of monopoly, by which a butcher could not have more than one acre for grazing; the other declaring, that if two individuals who had a law-suit should happen to quarrel to the effusion of blood, the party who provoked the quarrel, de facto, should be considered to have lost his cause.—The hon. gentleman concluded with moving, "That leave be given to bring in a bill to repeal certain acts of the parliament of Scotland regarding Duelling."
Mr. Mackenziethought some of the hon. gentleman's observations calculated to produce a wrong impression with regard to the present state of Scottish jurisprudence. The practice of regarding some statutes as fallen into desuetude, was dictated by the first principles of the law of Scotland. He was not desirous of opposing the motion, but must protest against the doctrine, that established contrary use could not outweigh an unrepealed enactment. These partial repeals operated as ex post facto laws, and might serve to revive other statutes which were at this moment sunk in oblivion. Whether the principle of desuetude was originally good or bad, it was now too late to inquire; it was a principle interwoven with the whole theory and practice of the law, and could not be abrogated without producing the most injurious effects.
Lord A. Hamiltonconsidered the course now pursued as extremely inconvenient, with reference to the general object in contemplation. The hon. gentleman proposed to repeal one or two particular statutes and leave to any other hon.

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member the task of proposing the repeal of others equally obnoxious. The effect must, in the mean time, be, to give new validity to all those which, though fallen into desuetude, had not hitherto been repealed.
Lord Binningsaid, that had the motion been of a general nature, he should have wished it to be postponed, but he felt no objection to the particular question before the House. He did not mean, however, to pledge himself to the support of the measure.
Mr. Broughamsaid, if he rightly understood the hon. gentleman, the subject of desuetude was not in question. He wished to repeal an act of parliament which was not in desuetude, but in force two years ago; he merely proposed an act to repeal another act, and the whole discussion would turn on the merits of the act proposed to be repealed. His opinion on the subject of desuetude was, that it was as much the law of Scotland that statutes fell into desuetude as it was that a man's eldest son succeeded to his landed estate.
Leave was given to bring in the bill.

CHIMNEY SWEEPERS TRADE REGULATION BILL.
Mr. Bennetbrought up the report of the committee appointed to examine the Lords' Journals respecting any proceedings in that House upon the Chimney Sweepers Regulation bill. After which, he rose to move for leave to bring in a bill for the better regulation of the trade of chimney sweepers. After what had passed it was not his intention to propose any measure for the abolition altogether of the use of climbing boys. Whatever might be his own private opinion on the matter, the result of his former endeavours had been such, that he could not think such a proposition admissible. His object therefore, now was to regulate the trade, and to put the parties under a better charge, and in a better situation, than they had heretofore been. He was happy to inform the House, that he had had several consultations with the master chimney sweepers, and that the bill he should propose to the House had met with their entire approbation.—Leave granted.

EXCISE PROSECUTIONS — WILLIAM WEAVER.
Mr. Alderman Waithmanobserved, that in submitting his motion he wished to make one or two observations
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respecting the petition which on a former night he had presented, from William Weaver. He considered it his duty on all occasions to endeavour to ascertain the merits of every petition which he presented. In the present case, he had made inquiries into the statements of the petitioner, and the result was favourable. Since that he had learned that he had been engaged in smuggling transactions. But he did not think that, even if these charges were true, they constituted a reason for the persecution he had undergone. He had seen the landlord of the petitioner, and from him he had learned, that even alter the goods first seized in execution were purchased by him, they were again seized as belonging to Weaver. He was, in consequence of his present imprisonment, wholly unable to meet his honest engagements with his creditors; and had actually laid his petition before the insolvency court, in order to be relieved. His main object in the present motion was to get at the whole of the system—to show, that while the party sued in the Exchequer was ruined, the resources of the country were misapplied in defraying the expenditure. He had therefore to move "That there be laid before the House an account of the expenses incurred, and the amount of penalties recovered, under the prosecution of William Weaver, by the Solicitor of the Excise."
Mr. Lushingtonsaid, there was one thing which the worthy alderman had yet to learn, namely, that a member of parliament should not allow his credulity to be practised on by the tales of unprincipled persons. There never was a case founded on more deceptions grounds than the present: instead of being a case of hardship, it was a case of fraud committed by a notorious offender. The present motion was founded on the petition of Weaver, in which he said that he had been prosecuted for selling a quantity of Spanish juice, and that that was his first offence. Of the truth of this allegation the House would judge, when he informed them, that this man had formerly been twice convicted by the board of excise, once for smuggling tobacco, and once for smuggling tea; that he had been three times convicted of smuggling by the Thames police, and twice by the Shadwell police; and that in the course of the last month, and since his petition was presented, smuggled tobacco had been found in his house. While under the execution

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issued by the court, he had in a clandestine manner, made off with part of his property; and when the remainder was sold, he had contrived to buy it back himself. He thought that, during the whole transaction, the officers of excise had done nothing but their duty. With regard to the solicitor of excise, who had now held that office for five years, he certainly did not know any man, who, for integrity of character, and a conscientious discharge of duty, was more deserving of praise. The worthy alderman had only moved for an account of the expenses incurred in this prosecution; but he conceived that the account of these would not give an adequate idea of the transaction, and therefore he should move that there be also furnished copies of the several petitions' presented by William Weaver to the lords of the Treasury, and of the proceedings upon these petitions.
The Attorney Generalsaid, he should not have troubled the House on the present occasion, if the worthy alderman had not stated, that the object of his motion was, to open the eyes of the House to the system of the excise laws. The petitioner said that he had never before violated the laws of excise, as they ought to be administered. What might be the petitioner's ideas of the manner in which those laws should be administered he did not know; but he was sure that a man who had been convicted six times of smuggling, and in whose house smuggled goods had been repeatedly found, was a person who ought to be prosecuted as an example to others. This man had presented a petition to the court, and as his (the attorney general's) recommendation had considerable weight, as was natural from his official situation, he had made inquiries into the particulars of the case; but when he found that the man was an habitual smuggler, or at least an illicit trader, he did not think it proper to recommend him to the lenity of the court. There was another fact of some importance: this man was a grocer in that quarter where goods were most frequently smuggled ashore, and had been convicted five times of receiving smuggled tobacco and other articles from Lascars and various descriptions of low character. Was this, then, a man entitled to indulgence? The learned gentleman then detailed the circumstances of the prosecution, in order to refute the charge of oppression. The many convictions of this man had not cured his family; for a few days before
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the presenting of the petition, there had been a seizure of tobacco in his House.
Mr. D. W. Harveywas quite sure that the worthy alderman had been himself imposed upon, although he had done all in his power to ascertain the truth. Such petitions prejudiced the general principles and prejudiced those who were really aggrieved. This man might fairly have paid 1,000 l. instead of 200 l. which were taken as a compromise. The several counts had been formally drawn out, charging him to the amount of 44,000 l. The commissioners of excise, in this case, as in all other cases, had only reviewed the petition, but told not what sum would be taken in compromise. He had formerly stated and would now repeat, that the solicitor knew in the infancy, as well as in the development of a case, what sum would be taken. He was the responsible party, and could give a negative or affirmative to a proposition for compromise, and hence arose expenses that were most injurious and grievous to the country. The solicitor came into court with two columns: the one containing the full charge, the other the mitigated sum that would be taken; and he acceded to any sum that was proposed, if it amounted to the latter sum.
The Attorney Generaldenied, with great warmth, that the solicitor came into Court with two lists, and took what compromise he pleased. That gentleman, in receiving a compromise, never took into consideration the expenses of the prosecution, or what charges the crown might be put to; but he did consider the capacity of the party to pay, and if he could pay a reasonable sum without Inconvenience, he would put something to it in order to create inconvenience. The object of the excise laws was to occasion inconvenience, and so to deter from offences against them. If he had known this man's offences, he would not have agreed to any compromise.
Mr. Alderman Waithmansaid, he had brought forward his motion, in the first place, in order to relieve the wretched man. Whatever might have been the number and character of his former offences, they had no right to punish him but for this offence. Another object with him was, to expose the system itself. By correcting the system, an enormous expense might be saved to the country. The excessive severity of the excise laws, like the excessive severity of the criminal laws, counteracted its object.
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Sir Isaac Coffinwas sorry that so much of the time of the House had been occupied by so unworthy a case as that of a man five times convicted.
The motion was agreed to.