Commons Sitting of 7 July 1823

CONDUCT OF BARON M'CLELLAND—PETITION OF JOHN QUIN.
Mr. Broughamsaid, he held in his hand a petition from a person of the name of John Quin, a surgeon, of Belfast, to which he wished to call the attention of the House, as it complained of a very great abuse in the administration of justice. He knew nothing personally of the petitioner, or of the facts which his petition related. The member for the county in which the transaction 'was said to have occurred, had, he believed, left this part of the kingdom, and therefore he could not make any inquiry from him with respect to the petitioner or his statement. The language of the petition was, however, perfectly respectful towards the House; and on that ground he felt it to be his duty to present it, without pledging himself in any way whatsoever, and without indulging in any comment that could tend to prejudge the case. If, however, the whole or any particular portion of the petition were founded on fact, it did appear to him to disclose a case which called for the interference of parliament. The petitioner stated, that five years ago he brought an action against a person with whom he happened to have an affray, which action was tried before Mr. Baron M'Clelland and a special jury. A verdict was given against him, and he was taken in execution for the payment of costs. The consequence was, that he was ultimately ruined, and was obliged to take the benefit of the insolvent act; his prospects which before were very fair, having been completely blasted. The charge now made by the petitioner divided itself into two parts. The first was against

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the sheriff and those connected with the sheriffs-office, for packing a jury; and the next against the learned judge, for misconduct in his direction to the jury. With respect to the first point, the petition set forth, that an application had been made for a special jury, which was refused as being too late, the distringas having been delivered before the application was made. He then complained, that the common jury panel which was returned to try the cause, was not the panel of that year, but of the year preceding. He next stated, that though it had been decided, in the first instance, that the cause should not be tried by a special jury, yet, a second application being made, not by the defendant or his attorney, nor by the plaintiff or his attorney, but by the returning officer of the sheriff, four days prior to the assizes, it was agreed that a special jury should be empanelled. He (Mr. B.) did not understand this. It was contrary to practice thus to procure a special jury; and therefore, perhaps, there might be some mistake in the statement; although, in other respects, the petition seemed to have been drawn up by a person conversant with the law. How a returning officer to the sheriff could apply for a special jury, and have his application complied with, he could not imagine. This was four days before the assizes; and, although it had been ruled, that the cause should be tried by a common jury, it was now, as the petitioner stated, granted to the returning officer of the sheriff, who had no right to meddle in the affair, and set down as a special jury cause. The petitioner further complained, that the said special jury consisted of the, defendant's own friends and acquaintances, selected by him, all of whom were reputed and avowed Orangemen. He then stated, that he was a Catholic, and the defendant a clergyman of the established church; that the sheriff was the cousin-german of the defendant, and that the returning officer in question was the law-agent of the sheriff. The cause was called on, as the first cause, on the first morning of the assizes. The cause was brought before Mr. Baron M'Clelland, who presided in the crown court, while the other judge decided Causes in the record court, An objection was taken by the counsel for Mr. Quin, against proceeding to trial with a special jury which had been improperly obtained; but it was over-ruled by the learned
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judge, and the cause was peremptorily called on to proceed. This was the first part of the charge, and was perfectly distinct from the main point, which related to the conduct of the learned judge,. It was an action for an assault, of a very aggravated nature. The petitioner was a Catholic, and happened to be in the pit of the theatre of Armagh, while "God Save the King" was played. The, defendant, who was also present, came up to him, and chid him in harsh terms, for I remaining covered in contempt of the music. The petitioner said, he did not remain covered in contempt of the music. The defendant was told by several bystanders, that it was not in contempt of the music they remained covered. He however continued to use abusive language, and at length committed the assault for which the action was brought. His expression to the petitioner was, "By the immortal God, if you don't take of your hat, I'll knock your head off," There were some parts of the first charge which he (Mr. B.) could not reconcile to the legal practice of this country; bur such language as this was still less reconcilable to that notion of decency and propriety, which might be expected from the reverend defendant, as a clergyman of the church of England. When the ""music had ceased, he called for a repetition of it, and continued to conduct himself with the same violence. After wards when some other tunes of a popular character were played, and among the rest "Patrick's day," the defendant, stood over the petitioner with his hat on, and in a menacing attitude, endeavouring to provoke the petitioner to commit an assault on the defendant similar to that which had been made on himself, but this the petitioner declined. He made out the case which was here stated by evidence at the trial, and he charged the learned judge with having, when he addressed the jury, used the following words, "The strict letter of the law is decidedly against the defendant; notwithstanding, you can find a verdict for the defendant, in honour, of our good old king, who may be truly called the father of his people." The petitioner stated the two facts distinctly first, the improper manner in. which the jury was empanelled; secondly the misconduct of the judge; and he called on the House to direct that a new trial may be had [a laugh];—for which proceeding, however, the House, certainly had no

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authority. As he was on his legs, he begged leave to say, that his not having alluded to a certain statement which he had on a former occasion made use of, with reference to another Irish judge, the lord chief justice of the Court of Common Pleas, was not an accidental omission; for he had purposely declined making any retractation of, or alteration in, the statement in question; because, notwithstanding its denial in the public newspaper, where it first found a place, he had received private letters from respectable persons, warning him not to retract that which he had brought under the observation of the House, since it was substantially correct. Besides, the letter of the editor or reporter was not couched in such unqualified terms of denial, as his letters were in those of affirmation. It was also equally certain, that when the chief justice called the printer before him, he did not give the same reason for his displeasure. His observation was—"It is very hard that I cannot have my own jokes." The learned gentleman then moved, that the petition be read.
Mr. Secretary Canningobserved, that as the complaint contained in the petition was that of wilful misdirection from the bench, courtesy, he thought, ought to have induced the learned gentleman not to bring forward so grave a charge in a questionable shape. The learned gentleman himself admitted that there appeared to be some mistake in one part of the petition; and certainly with some small inquiry, he might have learned what the real facts of the case were. In his opinion, the best course would be, to withdraw the petition until the learned gentleman could communicate with the parties who were affected by it; and if it were necessary, he might bring it forward hereafter.
Mr. Broughamsaid, that this was precisely one of those cases which it would be unfit for him to accompany with any statement. He had refrained from doing so, and the whole responsibility rested with the petitioner. This was precisely the course he had adopted on a former night, when presenting a petition, of the statements in which he personally knew nothing. He was not in such a case bound to make any statement; but, as the petition was respectful towards the House, he thought it right to present it. The present was also just one of those cases in which he thought the petition should
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not be printed—not on acount of its containing a charge, because every petition did contain a charge; but because it complained of the conduct of a judge in administering the duties of his office. No undue impression had been attempted to be created against the learned judge. The statement rested entirely on the individual who petitioned the House, and consequently, it would go forth without the possibility of doing any mischief; while, on the other hand, it afforded the accused party a full opportunity for contradicting it.
Mr. Goulburnsaid, that this was a charge preferred against a judge for wilfully misdirecting a jury; and, before the House received it, they ought to be put in possession of the fact which was contained in the petition itself—that application was made for a new trial before the whole court, and all the judges concurred in thinking there was no ground for granting it. It should also be recollected, that the trial complained of took place five years ago.
Ordered to lie on the table.

PRISONS BILL—FLOGGING.
On the order of the day for taking into consideration the Lords amendments to this bill,
Mr. Grey Bennetsaid, that although the bill had been returned with numerous amendments from the other House, the only one he was disposed to quarrel with was that in which the punishment of flogging had been introduced. The clause inflicting that punishment in the original bill was wisely ejected by that House; but if it were now allowed to become a part of the law, magistrates would resort to nothing but force for the correction of those unfortunate persons confined in gaols, and every parish would have its Dr. Thwackum. For his part, he should never rest till he rescued the people of England from the beastly and barbarous punishment of flogging. Within the last seven years, the number of persons flogged in this country amounted to 6,959. It was but a short time back that two children were flogged in Newgate, and then, with their flesh torn and lacerated, they would have been sent out on the streets to thieve again, if a humane person belonging to the prison had not obtained their admission to a house of refuge. He (Mr. B.) had since visited them, and had drawings made of the state of their backs,

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which he intended to, get lithographed, and when painted, he should have those representations stuck up in the streets, in the hope of putting down such abominable punishment. According to the present bill, it was not to be even resorted to by way of public example, but was to be inflicted privately in holes and dungeons, without the presence of a magistrate. He should therefore, move that the words in the printed bill "or by personal correction, in cases of prisoners convicted of felony, or sentenced to hard labour," be left out.
The House divided. For the Amendment 22; against it 36.

List of the Minority.

Attwood, M.

Palmer, J. F.

Bright, H.

Ricardo, D.

Colburn, R.

Rice, T. S.

Coffin, sir I.

Smith, J.

Denman, T.

Tennyson, C.

Griffith, J. W.

Titchfield, marquis

Hamilton, lord A.

Western, C. C.

Hobhouse, J. C.

Wilberforce, W.

Hume, J.

Williams, J.

Hutchinson, C. H.

TELLERS.

Jones, J.

Bennet, hon. H. G.

Mackintosh, sir J.

Lushington, Dr.

Monck, C. B.

NEW SOUTH WALES JURISDICTION BILL.
On the order of the day for further considering the report of this bill,
Mr. Wilmot Hortonsaid, that this was a bill which related to New South Wales, most especially in the light of a British colony; whereas, in its previous measures with respect to this settlement, government had always treated it rather as the destination of certain individuals, who were sentenced on account of particular offences to be transported thither from the mother country. In the commissioner's report that had been lately printed, three places had been particularly designated as proper for the foundation of a new settlement, to be so ordered and governed as to combine the two great and, sometimes, incompatible advantages, of effectuating the objects of the law by the imposition of punishment, and of rendering the services of the individuals so punished useful to themselves and to the state. Of these three places, one in particular, which had already had a partial trial—he meant Norfolk, Island, situated to the north of the colony—was singularly well calculated, from the beauty of its climate, and the fertility of its soil, for the esta-
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blishment of what he might call a penitentiary on a great scale. The convicts might be made to cultivate the land, and to raise, as well as manufacture, produce for their subsistence and clothing. It had been truly stated, that, in too many instances, transportation was looked to by the guilty offender, not so much, as a visitation for his crimes, as a better condition and a more fortunate state of existence; but the necessity of labour, while it answered all the useful purposes, for which employment was applicable, and in which it could be beneficial to the community, was well calculated to remove so mischievous a delusion; and at the same time, in offering to the convict neither the leisure nor the temptations of vicious indolence, to effect in his habits and character, that reform which ought to be the ultimate object of all punishments. Another object contemplated by the bill was, to secure the employment of convict labour (as we understood the hon. gentleman) in detached parts of the colony, on a more extended and general plan than the present system of locations admitted of. The house would easily perceive, that at present, in proportion to the influx of agricultural settlers into the colony, so was the approximation of convicts to convicts; and the manifest consequence of this was, as had been pointed out by the commissioner, that these men, being brought once more into contact with each other, relapsed into the commission of those vices or offences which it ought to be the essential object of the colonial government to prevent by a judicious system of separation. It would be accordingly proposed, that convict labourers might be assigned to particular services, in small numbers, in distant and detached parts of the colony. As to the higher class of convicts, who had been transported for crimes from which their misused talents ought to have preserved them, much difficulty had naturally been felt as to the degree and mode of punishment that they ought to experience; and though it might not seem advisable to require of them agricultural or manual labour, it by no means followed that they ought to be exempted from all infliction of punishment. Whether a suggestion which had been thrown out in the report, that it might be expedient to employ them as schoolmasters, for the children of the convicts, was one which could beneficially or conveniently be acted upon,

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it would be for the government to consider. He apprehended that some objection would be made to the fourth clause, which provided that all offences should be tried before judges. Some hon. members, he understood, wished that the trial by jury should be substituted for the trial by judges. He, however, was of opinion, that at present it would be unwise to select juries from the peculiar population of New South Wales. It was, however, provided by the bill, that in cases where both parties desired it, trial by jury might be allowed. He concluded by moving, that the bill be recommitted.
Mr. Brightsaid, that the trial by jury had been always justly considered as one of the proudest marks of freedom. With respect to the colony in question, Mr. Justice Bent had expressly and forcibly recommended that form of trial. It was a great mistake to suppose that the population of New South Wales was not prepared for that form of trial. The colony of New South Wales was not a colony of convicts. There were to be found there many free settlers who had voluntarily embarked their character and their capital; and who, on every principle of justice and policy, were entitled, as free Englishmen, to all the privileges and rights of the constitution. With respect to convicts, many convicts resided in New South Wales, having satisfied the severe penalties of the law, who were at this moment most industrious and valuable members of society, and who were deserving the rights of British subjects. He thought, therefore, that upon every fair view of the situation of the colony, and upon principles of public policy, the trial by jury ought not to be withheld. He thought that the bill professed to settle a variety of objects, too important to be so disposed of at the termination of a session. The trial by jury, as contemplated, was a farce; the Insolvent Court was a system of monstrous absurdity and injustice; and as for the Court of Requests, and the Court of Foreign Attachments, if any necessity for such tribunals existed, their formation might be deferred for another year. The bill was drawn with such an utter contempt of every principle of British jurisprudence, that he doubted whether all the lawyers in the house would ever be able to get it into shape. As for the council given to the colony, what did it amount to? The members were appointed by the Crown; they
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might be removed by the Crown; they had not the power of initiating any measure; and a law proposed by the governor might, in some cases, be passed without their consent. He could not help believing, that the bill, if it passed in its present state, would be a mischief to the colony rather than an advantage; and he should, therefore, move, "that the report be further considered this day six months."
Mr. Bennetsaid, he took a different view of the bill from that which had been taken by the hon. member for Bristol. He thought that the colony was not yet fit for such an institution as the trial by jury. The number of persons who could be found in New South Wales fit to sit upon a jury was small indeed. The possession of wealth in that country by no means indicated (of necessity) respectability of character; for many of the most opulent and extensive land-holders had acquired their property, even in the colony, by the most dishonest and disgraceful means. According to the report of Mr. Biggs, out of 4,376 remitted convicts in New South Wales, 369 only were living in any degree of respectability upon their means. Even where there were men of great property, they had often acquired it by acts of the grossest swindling. A person who had been transported for an act of robbery on a bank on a large scale had carried with him the property, and was living opulently in the colony. A person who was living with this individual as a servant, had written home, that it was a happy night in which he had committed the robbery for which he was sent there, as he was servant to "Squire Love," who was a gentleman of great opulence and liberality. With such a population, the institution of jury-trial could not turn to good. He remembered that at Turin, he was informed, that though Bonaparte had done a vast deal of good, he had introduced one law, winch had spread terror throughout the country, namely, the examination of witnesses vivâ voce, in presence of the accused. The consequence of this was, that witnesses were murdered. This excellent law was thus pernicious, for want of accompanying protection; and so it was, that most enactments, however excellent in other situations, would, when unsuited to the state of society, produce the most calamitous results. The hon. member then detailed circumstances, to prove the general corruption of

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morals in New South Wales, and particularly mentioned the small number of marriages in proportion to the population, from the general aversion of the youth, who were accustomed to the constant exposure of females in the most degraded character. Under the actual state of things, he thought the bill necessary, and, with a few amendments, he should give it his support.
Sir J. Mackintoshsaid, that the bill bestowed none of the blessings of the British constitution on the inhabitants of New South Wales, with the exception of that simple, summary, cheap, and expeditious system of justice of which they had recently heard so much—the Court of Chancery. The policy which England had adopted towards her colonies had been various at various times. The first and best had been that under which Englishmen carried, wherever they went, the institutions of their native land, and under which colonies, instead of subaltern despotisms, became societies of freemen. All the arguments now used against the extension of trial by jury to New South Wales, might have been applied to the extension of trial by jury to the colony of Virginia at the time of the Revolution. There were many convicts, many slaves, and few persons of considerable property. Yet we saw the beneficial effects of free institutions in Virginia. The next system pursued was, the introduction of absolute power into the colonies, of which ah unhappy example had been given in Canada. Each of these systems was consistent in itself—one in good, the other in evil; but the present experiment wavered between both. He deprecated most strongly the impolicy and injustice of postponing those clauses of the bill, the object of which was to confirm the pardons granted by the governor of the colony, on the ground of the necessity of revising those pardons. The object of those clauses was, to secure the individuals, to whom the pardons were granted, in their persons and possessions, and it was an act of the greatest injustice to postpone the consideration of them to another session.
Mr. Peelsaid, that it was impossible that the details of the bill could have been fully considered by ministers, in consequence of the great press of other important business. With respect to the clauses which related to rendering the pardons granted by the governor valid,
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he would admit the justice of making them so, but for the present would limit the act to persons still in New South Wales.
Mr. Denmaninsisted upon the justice of realizing the hopes held out to all those to whom the governor had granted pardons. He contended against the policy of appointing officers in the army and navy to decide questions, on which property, liberty, and even life might depend. He would give the colonists the advantage of jury-trial as in England. By placing such confidence in the people there, they would be excited to a much greater respect for themselves and the law; than could be looked for while they were deemed unworthy to be intrusted with so valuable a privilege.
The House then went into a committee on the bill. Several amendments were proposed. To that which allowed Officers of the Army and Navy to judge cases, Sir J. Mackintosh objected, and proposed the addition of the words "a Jury of twelve men duly qualified to serve." After a few words from Mr. W. Horton, in opposition to the Amendment, upon the ground that, according to the opinion of all the Judges who had been in that Colony, it would be impolitic; and from Mr. H. Gurney, Mr. Wilberforce, Mr. D. Gilbert and Mr. Bright, in support of it, the House divided: for the Amendment 30—Against it 41.

List of the Minority.

Attwood, M.

Monck, J. B.

Bright, H.

Maberly, J.

Bailie, J.

Money, W. G.

Bennet, hon. G.

Marjoribanks, S.

Coffin, sir I.

Palmer, C. F.

Denman, T.

Robinson, sir G.

Forbes, C.

Ricardo, D.

Fremantle, W. H.

Rice, T. S.

Gurney, Hudson

Smith, R.

Gilbert, D.

Smith, J.

Heber, R.

Scarlett, J.

Hume, J.

Taylor, M. A.

Hutchinson, C.

Tremayne, J. H.

Hart, G.

Wilberforce, W.

Hobhouse, J. C.

TELLER.

Lester, B.

Mackintosh, sir J.