Commons Sitting of 17 May 1827

ADMINISTRATION OF THE CAPE OF GOOD HOPE.
Mr. Wilmot Hortonrose to move for certain papers relative to the Administration of the Cape of Good Hope, and particularly for the correspondence which had passed on that subject between the Colonial Office and sir Butane Donkin. He would have thought it unnecessary to have said much at present, since it would obviously be much better to postpone all discussion until the whole of the proper documents should be on the table of the House, had it not been for the publication of a pamphlet by sir R. Donkin, which had been widely and very industriously circulated. He would, however, abstain from entering at that time into any discussion of the merits of the administration of the Cape, as the proper opportunity would be afforded, when the motion relative to the coal-administration of the Cape, of which notice had been given for
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the 18th of June, should be brought forward. But it was on account of the circulation of the charges against lord C. Somerset, by sir R. Donkin, that he thought it highly expedient that the House and the public should immediately know the nature of those charges, and the situation in which they at present stand. Sir R. Donkin denied strongly that he was actuated by any acrimonius motives against lord C. Somerset, and asserted that he (Mr. W. Horton) was sorry in having said that he was so actuated; observing, that it was a new system of tactics, to charge those who complained of any malversation on the part of government officers, with personal hostility against the individual; whereas, sir H. Donkin, as he said, had always disclaimed all idea of personal animosity. With respect to that matter, he had only to repeat what he had said before, that it appeared to him, that sir R. Donkin had been actuated by acrimonius and personal motives against lord C. Somerset; and he was mistaken if sir R. Donkin would not find himself obliged to own it. But what had all this to do with charges against lord C. Somerset, or any other officer of government? The only question was, whether the charges were well or ill founded, without any reference to motives; but, if it should turn out that the accusations against lord C. Somerset were ill-founded, sir R. Donkin could not expect to escape from the consequences which might result from the preferring of such accusations. The House would please to observe, that on the 17th of June, 1823, sir R. Donkin had expressed himself to lord Bathurst to this effect, that he could make disclosures relative to the administration of lord C. Somerset at the Cape, that would shock the noble earl, and lead to the utter ruin of lord Charles. This communication, coming from such a quarter, could not be passed over without an investigation into the circumstances; and therefore, under the direction of lord Bathurst, he (Mr. Horton) had, on the 21st of June, written to sir R. Donkin, informing him that lord Bathurst called upon him to substantiate the charges which he had made against lord C. Somerset, on account of the mal-administration of the Cape; in order that the matter might be thoroughly investigated. In answer to this, sir . Donkin had, on the 23rd of June, written to lord Bathurst to the effect—that until

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he (sir R. Donkin) was willing to make disclosures to the government on the subject of the mal-administration of the Cape, he did not wish to censure, or mean to attack, an individual, with whom he had little acquaintance. After the receipt of this communication, he again wrote to sir R. Donkin, stating that lord Bathurst still thought that the charges must be brought under investigation, and put to the proof, unless sir R. Donkin meant to retract them. So that the government, and especially lord Bathurst, so far from showing any disposition to stifle inquiry, most earnestly called upon sir R. Donkin to proceed with his charges against lord C. Somerset. Sir R. Donkin again wrote to the Colonial Office, stating in substance, that he could not retract any allegations which he had made, so far as the truth of them was concerned, as that would be unworthy of a gentleman, and of the situation which he held in his majesty's service; but that he had no objection to say, that, upon further consideration, he would retract the particular words in which the charge had been advanced; and sir R, Dunkin also added these words, "I feel, on due reflection, that my coming forward just now, in any official way, on such a subject, would appear like an ill-timed interposition on my part between the commissioners now at the Cape of Good Hope and the object of their inquiries; and I trust that this explanation will be satisfactory to lord Bathurst, and will render unnecessary the urging of the other part of the alternative to which your letter points; namely, my preferring charges, in consequence of the turn which this matter had taken." The only course of proceeding which appeared most proper was, to send to the commissioners at the Cape of Good Hope all the information which they had been able to procure from sir R. Donkin, or any other quarter, with instructions to investigate every thing to the utmost of their power. To this course sir R. Donkin surely could not object, after having made the proceedings of the commissioners one of his reasons for not interposing; and, considering the conflicting charges brought forward, sir R. Donkin complaining that lord C. Somerset had upset his measures for the good government of the Cape; and lord Charles, on the other hand, complaining that sir R. Donkin had, while his locum tenens at the Cape, upset his measures
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for the same purpose. The Colonial Secretary was of opinion, that this reference of the whole matter to the commissioners was the most satisfactory course of proceeding which, under the present circumstances, could be adopted. The commissioners had, accordingly, investigated the matter, and he had their Report now ready to be presented to the House. It would be recollected, that, in 1825, when charges were brought forward against lord C. Somerset, it was the unanimous feeling of the House, that lord Charles should not be allowed to remain at the Cape, but should be brought home to face his accusers, when they chose to come forward; and he had now come over. But the government, and lord Bathurst particularly, felt themselves bound, in common justice, not to take any measures against lord C. Somerset, before the charges against him had been thoroughly investigated. Various charges had been made against lord C. Somerset, besides that of Mr. Bishop Burnet, but nobody could be found to bring them regularly forward; and, under these circumstances, it was fitting that the whole of the matter should be laid before the House, in some shape or other, that the question might be at length finally set at rest. With regard to the notice of motion for the 18th of June, he hoped the hon. Member who had given that notice would state its object, with somewhat more precision than belonged to the general term mal-administration. He hoped the hon. member would take care to bring the whole matter before the House, and, in the meantime, state what was the specific nature of the motion which he intended to submit to the House. Sir R. Donkin had said, that some material papers had not been submitted to the commissioners. This was a mistake; for all the material papers had been sent to the commissioners, both relative to the defence of the country against the Caffres, and every other matter about which the government had obtained any information. The Report of the commissioners would be laid before the House, with the opinion of major Holloway, about the defence of the colony, which was a very material document.—The hon. gentleman then commented on the impropriety of publishing official documents in this manner, in which the parties accused had no opportunity of reply. Among the charges brought against lord C. Somerset by sir

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R. Donkin, was one, that Mr. Parker had been sent back to this country, in order to criminate colonel Bird and himself, and that the Colonial Department had lent itself to that purpose. To refute this charge, the hon. gentleman read the letter of lord C. Somerset to lord Bathurst, accompanying Mr. Parker on his return. In this letter, Mr. Parker was described as an individual who, from his disposition and turn of mind, appeared to be of all others the least calculated to superintend the work of emigration. Lord C. Somerset further described Mr. Parker as a man sanguine in all his views, prone to blame public measures, and an enthusiast in the cause of Protestantism. The candor and fairness of sir R. Donkin might be judged of by the fact, that when he had been twelve or fourteen months at the Cape, he stated in a letter to lord Bathurst, that he had directed his efforts to follow up the plans of his noble predecessor, lord C. Somerset. What was to be thought of a public officer capable of acting in this way? Was it his duty, if he then believed lord C. Somerset's measures to have been wrong, to induce lord Bathurst to think they were the best he could have selected as a rule for his own guidance? Sir R. Donkin complained, that he had received no information respecting the plans he felt it his duty to adopt in the colony, and that in consequence of lord C. Somerset's personal conduct towards him, he was prevented from acting upon them. He complained also that lord C. Somerset would hold no communication with him. Now, this was not a true representation of the case. Lord C. Somerset had requested a visit from him; but sit R. Donkin replied, that personally he could have no intercourse with the noble lord. This was clearly a violation of his duty. As an official man, whatever his feelings might have been personally, he ought to have disregarded them on such an occasion as this. Yet his answer was distinctly, that he had no official communication to make. This note was dated 1st December, 1821. He had thus placed the colonial office in the unpleasant situation of being unable to do justice between the parties. The hon. gentleman said, that the papers he should present consisted of a variety of documents bearing on the general subject of the affairs of the Cape, and on the particular accusation which sir R. Donkin had thought fit to
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publish to the world against lord C. Somerset. Sir R. Donkin complained also that he had not been allowed an interview with lord Bathurst. The fact was, that he had not asked for one in such a manner as implied that he had any circumstances to discuss, connected with the Cape of Good Hope. But he had claimed from that noble lord some mark of royal favour, in reward for his services as head of the government of that colony. Now, his government had lasted only a year and a half; and, during that time, he was but locum tenens and not absolutely the governor. Any body who thought that a period of service which called for any mark of royal favour, held a most exaggerated opinion of the estimate usually formed of colonial labours. Sir R. Don-kin had received the approbation of the Colonial-office; but it was another of his charges, that even this had been withheld from him. It was the constant practice, known to every clerk, that when any general officer, or other person, mislaid a letter of this kind, he was furnished with a private copy, which he substituted instead of the original until that could be obtained. The honourable gentleman declared of his own knowledge, that there never was an idea of withholding this letter which lord Bathurst had transmitted, as a meed due to the services of sir R. Donkin. There was, undoubtedly, no distinct proof that a private copy had been sent to him, but he (Mr. W. Horton) firmly believed such to be the fact. That charge, therefore, like the rest, was wholly without foundation. With regard to the general subject of the affairs of the Cape, he could assure the House, that the inquiry had been commenced in the spirit of improvement towards all the institutions in the colony. The commissioners had been sent out with that view; and, if their time had not been so much employed in investigating charges of a personal character, the delay that had taken place would have been avoided. The intention was, that the improvements should be extended to all the range of departments—judicial, financial, and administrative; and they would, by this time, but for the cause to which he had referred, have been more or less in operation. There was nothing connected with the welfare of the Cape which had not been delegated to these commissioners. As to the merits of lord C. Somerset's government, or the com-

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parative merits of that of sir R. Donkin he would not say one word. The papers he was about to present would give an ample opportunity to the House to form a correct judgment on that subject. This step had become necessary, on account of the increasing charges brought by sir R. Donkin, who had published a second edition of his pamphlet, with postscripts and other additions, which had been copied into the daily newspapers, accompanied by a multitude of comments. Sir R. Donkin had first brought an accusation against lord C. Somerset; he had then denied that he was an accuser; and finally he had retracted the denial, and revived his accusation. Among these papers would be found the reports of the commissioners; and by them and the other documents, the House would be able to decide the question of the comparative merits of the two governments, as well as to judge the course most proper to be pursued for the permanent welfare of the Cape. The hon. gentleman concluded by moving, that the papers be brought up.
Mr. Maberlysaid, he should not exercise the duty of a friend to justice, if, in seconding this motion, he did not put the House in possession of some facts, which they could not gather from the statement of the hon. gentleman. His gallant friend, sir R. Donkin, had brought no accusation against lord C. Somerset. He had been again and again invited to become a public accuser, and again and again he had refused. In the pamphlet he had published, he had not acted the part of an accuser; but he had been obliged to defend himself from a variety of reports in circulation respecting his own conduct; and his defence was taken to he an accusation of the noble lord. He could state positively, that his gallant friend never intended to be an accuser, nor had offered himself to lord Bathurst in that capacity, It was true, he had offered to communicate with lord Bathurst, but not to lay accusations against any one. In his pamphlet, sir R. Donkin had stated his views as distinctly as possible. The hon. gentleman read some extracts in support of this statement. These passages, he contended, were at variance with the idea of his gallant friend becoming an accuser. His own character had suffered, and he felt bound to offer some explanation. In the beginning of the pamphlet, he stated, that he should not have adopted that course, if he could have
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obtained an interview with lord Bathurst. In what he should further say in defence of his gallant friend, he should refer only to public documents. As evidence of the public merits of sir R. Donkin, he would read the letter of approbation written to him by lord Bathurst; the address of the chief justice, and other members of the judicial body, on his resigning his government; and some addresses, on the same occasion, from the merchants and principal inhabitants of the colony. He eulogized the measures of sir R. Donkin's government. It had produced security, and was administered with economy. The moment he had resigned it, insecurity, murder, plunder, dissatisfaction, and, in fact, utter ruin ensued.
Lord Edward Somersetwas not disposed to detain the House upon the present occasion, but he could not avoid expressing the satisfaction he felt in seeing the hon. Secretary lay those papers on the table of the House, which would at last enable it to go into a full and fair investigation of all the charges which had been put forth against his noble relative; and, at the same time, tend to place the character of lord C. Somerset in that honourable light before the public, to which he was satisfied it was entitled. The House would now, perhaps, be able to judge, as well from the observations of his hon. friend, as from the letters and extracts to be laid on the table, in what kind of a spirit, the accusations against hls noble relation had been preferred. They would be able to judge, whether the spirit of the one had been rancorous, or whether the other had fulfilled his duty as a public accuser. The House would now be able to pronounce an impartial judgment upon the conduct of lord Bathurst and his noble relation. There were but two courses which lord Bathurst could pursue, under the circumstances. One was, to believe all the charges to be true, to the prejudice of lord C. Somerset; the other, to disbelieve them, and to call upon the accuser to substantiate them, if it was in his power. Lord Bathurst had called upon sir R. Donkin to maintain his charges, and he had abandoned them. He would not trouble the House with any further observations upon the inferences to be drawn from this conduct. The proper time for remark must be when the House came to consider the nature of the charges; and he would, therefore, beseech the House not to allow

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itself to be influenced by those reports which had been, for years, circulated from all quarters, and reiterated in the public prints. When they had the whole of the papers containing these charges before them, he was satisfied they would see reason to exonerate lord Charles from the accusations which had been preferred against him.
Mr. Freemantleexpressed his regret that the charges against the noble lord had been allowed to remain so long hanging over his head. When the subject was last before the House, he was both surprised and pained at hearing the then Secretary of State for Foreign Affairs state to the House, that his majesty's government had sent out a commission to that noble lord to return home. What could the House or the country conclude from such a statement, but that there was a very strong case, in the opinion of the government, made out against him? It was a thing very much to be regretted, that his hon. friend had not, two years ago, laid these documents upon the table of the House; for if the case against the noble lord was so groundless that the facts of every petition to that House had, upon inquiry before the commissioners, been fully disproved, he thought the noble lord had been very ill used.
Mr. Humesaid, the question was not at present, whether they were to go into the inquiry upon the conduct of lord C. Somerset, but whether certain papers should be laid on the table of the House. When the question of lord Charles's conduct came to be discussed, he doubted not that there were many gentlemen ready to give their opinions, and state the grounds of those opinions. A great deal had been said of the conduct of general Donkin; and he now hoped, that as the hon. gentleman had at last laid the correspondence on the table, he would consent to produce all the papers which might be wanting for a thorough examination of every thing connected with the question. He did not, he hope, misunderstand the hon. member, who asserted that every petition which had been laid on the table of that House, implicating the conduct of lord Charles, had been regularly sent out to the commissioners at the Cape, and made the subject of inquiry. Now, if that was really the case, it was not a little extraordinary that the House had never been put in possession of the result. The hon, member then de-
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fended the conduct of sir R. Donkin, and declared his opinion that he had acted rightly in leaving the matter to the commissioners. If the hon. Secretary had read that letter in which sir Rufane declared he had charges which, if preferred against lord Charles, would cover him with infamy and ruin, he would find, that when he was asked to become the accuser on those charges, he at once said he could not retract what he had said; but he would rather wait and hear the result of the inquiry before the commissioners, than at once come forward in that capacity. That was in 1823; and it was no wonder, therefore, that the gallant officer expressed his surprise at the delay which had taken place.
Mr. Broughamsaid, he could not avoid making one or two observations upon some expressions which had fallen from hon. gentlemen, with respect to the course he had pursued. It had been said, that he had brought a charge against lord Charles Somerset, and that it had failed. Now, the fact was, that he presented a petition; and he thought it due to the noble lord, who had on that occasion, as well as on every other, when the case had been mentioned, defended his noble relation with the greatest regard to honour and propriety, as well as with the greatest spirit; and it was but fair also to himself, to declare, that he had never taken any step upon the case, except in presenting that petition. He had then stated most distinctly, that he desired not to be under the slightest responsibility for the veracity of any thing contained in that petition—a fact of which he was the more certain, as he had, in addition to his own distinct recollection of the circumstances, even looked into the debates of the period, which he found to be, as they almost always were, exceedingly correct. He had then, he repeated, most distinctly guarded himself, in opening the charges of Mr. Bishop Burnett against lord C., from being considered answerable for one tittle of the allegations; but he had, at the same time, felt himself bound to say, that he had seen the accuser, and examined him upon the facts—that he had, upon the strictest cross-examination he had been able to give him, adhered to those facts—that he had been consistent in his statements, and clear in his answers; and he had concluded by observing, without saying any thing further, that all these circumstances were

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primâ facie evidences of the truth of the accusations—slender proofs, he allowed, but that still they went somewhat to support the allegations. The presentation of that petition was the only act of his connected with the question. As to the progress which the commissioners had made, or as to the failure of the charges, he knew nothing; nor did he wish, without further information, to say any thing of those commissioners. One of them, Mr. Bigg, had been a most esteemed friend of his for many years; and he certainly felt disposed to speak with respect of any commission which included him as a member. All he would say at present was, that if the charges had been, as it was said, disproved, then lord C. Somerset had not been fairly dealt with. The charges ought not to have been left hanging over his head so long. If they were capable of being disproved, he would say at once that they ought to be disproved, or totally abandoned. Mr. Bishop Burnett persisted in these charges, and had even given publication to several additional accusations; and he agreed, therefore, most fully with the noble lord, that these charges ought to be either dismissed if they were false, or proved if they were capable of proof. It had been said, however, that he had pledged himself, on the occasion of that debate, to impeach lord C. Somerset. The House had that night heard, that all the charges against lord Charles had been inquired into, save one; but that one he considered to be the only grave charge among all those preferred against the noble lord. The charge was no less than one of judicial corruption—the taking a bribe in a court of appeal, where he sat as a judge. It had been his opinion at the time, that the charge could not be true: he had said, he could not believe it to be true. He had felt himself hound also to say, when the noble lord, on that occasion as on this, repelled the idea of such guilt—that the charge was to be found certainly in a parenthesis only of Mr. Bishop Burnett's statement, and did not form an integral part of the accusations. Now, the commissioners might have been right, or they might have been wrong, in saying that lord C. Somerset was not guilty, and that the charges of Bishop Burnett had been disproved, but this charge had not been inquired into; and, although he thought lord Charles could not be guilty, yet, if he thought that the statement was founded in
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fact, it was his duty to impeach the person who had been guilty of such an offence. It had been his determination, then, to have the whole matter investigated, because he thought it due to himself, as well as to others; hut, within four or five days after that debate, he was called upon to appear before the privy council in his professional character, upon a case which very much surprised him. He had the brief, he believed, for ten days before, and previous to the evening of the debate; but every one knew well, that it was not the practice of lawyers to look much into their briefs before the time they were called upon to argue them, and in the pressure of business, he had not opened it until the time he mentioned. He was therefore not a little surprised to find, that he was a counsel in the very cause which was founded upon that grave charge against lord C. Somerset. It was an appeal cause from the Cape of Good Hope against a decision pronounced by lord Charles, sitting, by one of the ridiculous regulations which prevailed in the colonies and most of our foreign possessions, as a judge or chancellor—a regulation, by-the bye, just as absurd as if the duke of Wellington were to be made lord chancellor. The appeal was against the decision of lord Charles as a judge, and he was counsel for the respondent. The appellant objected to the decision, among other things, upon the very ground stated by Bishop Burnett in his charges—that of corruption; and it was the part of the respondent to repel by every means in his power, the charge of that corruption. Now, he would put it to any hon. member to say, whether, while he was arguing in one place that there was no corruption in the case, and that lord Charles was innocent, he could appear in another place, for the purpose of attempting to support charges proving him not innocent? He thought he was bound to keep separate the duties of the judge and the advocate, and he had therefore thought it right to cease from any further prosecution of those charges, while he remained in that condition. He now, however, agreed most fully with the noble lord, that the time was come, when they ought to determine whether lord Charles was guilty or innocent; so that the House might be at once able to determine whether he was to be confirmed in, or dismissed from, the government in which he was placed.

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The motion for the several papers was agreed to.

SPRING-GUNS' BILL.
The Order of the day for taking into consideration the Lords' Amendments to the Spring-Guns' Bill having been read,
Mr. Charles Calvertobserved, that, by the amendments which had been introduced into the bill in the House of Lords, it was rendered general; and Spring-guns were prohibited from being set for the protection of any property, except in houses. In houses they might be set both clay and night; which latter permission seemed to him to be an extraordinary one, and calculated to produce accident. Some time ago, at the request of a number of market-gardeners in the neighbourhood of London, he had presented a petition on the subject in their behalf; and, at their further request, he was now prepared to move an amendment to the amendments introduced into the bill by the Lords. It was well known that there were large gardens in the neighbourhood of the metropolis, which, although walled, were accessible; and, to deter from the robbery of which by boys and others, the appearance of spring-guns was the surest means. The market-gardeners declared, that, unless they were allowed to set spring-guns and man-traps, they could not adequately protect their property. He meant, therefore, to move as an amendment to that amendment of the Lords—that nothing in the act should be construed to render illegal the setting of spring-guns or mantraps in houses—the addition of the words, "or in any garden, hot-house, or conservatory, enclosed by a wall seven feet high; due notice being conspicuously given of their being so set."
Mr. W. Bankessaid, that this bill had come back from the Lords, different not only in its details, but in principle. He was one of those who agreed that such deadly engines as spring-guns were hardly justifiable for the protection of game, but he was far from thinking that it was right to carry the principle of their abolition so far as to withdraw them from other and more valuable property. Their very existence inspired a salutary terror in trespassers, and he trembled at the consequences of its being known that they were withdrawn altogether. For these reasons, he should dissent from these amendments.
Mr. Peeladmitted that game, as a
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source of amusement, was a species of property which ought to be protected, but he was far from thinking that it was justifiable to use means for that protection destructive of human life. Upon that principle, therefore, he had supported the present bill in its progress through the House, and more particularly because it took away that wide arena which existed of woods and plantations, in which such engines were before permitted. But there appeared to be a broad distinction between the use of spring-guns in uninclosed and extensive grounds, where their deadly effects might be visited upon inadvertent trespassers, and such places as market-gardens, by the security of which from robbers a large class of men obtained their subsistence. When a man inclosed his ground by a wall seven feet high, and thus took the best precaution in his power to exclude trespassers, his case was most undoubtedly different from those, where there was nothing to protect but a pheasant, and no safeguard but a fence. He therefore dissented from the Lords' amendment in this respect. And really the House should know that there was no class of men which required protection more than these market-gardeners, for in no place was the police more lax than in the immediate neighbourhood of large towns. Within the towns themselves the police was generally well-regulated; but this strictness drove the vagabonds out a few miles upon the roads, about the places where these market-gardens were situated. He had, early in the session, without reference to this question, moved for a committee to inquire into the state of the police near the metropolis; for he had reason to know, that the consequence of having horse and foot patrols in London was, that the bad characters were banished four or five miles out upon the roads. In order, therefore, to an effectual suppression of crime, it would be necessary to place that particular branch of the police upon a more efficient footing. In many places it was most mischievously ineffective. Throughout the whole of that extensive district comprehending Twickenham and Richmond, the peace of the county almost depended upon the individual activity of colonel Clitheroe. Many of the market-gardens were situated in that district; and, until a better police was set on foot, he thought it not unreasonable that the market-gardens should be protected by spring-guns. At the same time, he

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thought it would be better if the market-gardeners were called upon to provide for the protection of their grounds by taking into pay a sufficient number of ordinary constables, who, if they did their duty, would be sufficient for all purposes. He had not the smallest doubt but that if an investigation took place into the causes of the increase of crime, it would turn out to be closely connected with depredations upon such property. Whilst the amount of great crimes was diminished, the sum of offences against property had greatly increased. This he ascribed to the defective state of the police in the neighbourhood of the metropolis. Until something else was done, he could not dispense with this species of protection to the market-gardeners.
Mr. C. N. Pallmeragreed, that, until some other protection was afforded the market-gardeners by a more efficient police, they ought to be allowed to protect their grounds by spring-guns. The subject seemed to have been viewed in rather a curious light in another place, for the only instance in which they permitted the setting of spring-guns was that in which a man was most unlikely to use them; namely, in his dwelling-house. The market-gardens were a species of property especially subject to depredation, from being so near town, and they were therefore entitled to special protection.
Lord Althorpsaid, he had supported the bill originally, upon the ground, not that spring-guns were unjustifiable for the protection of game only, but because he would not permit such deadly weapons to be used in any case in which a man would not be warranted in firing a gun from his hand. He did not understand that a market-gardener would be justified in firing upon a trespasser with a gun; and therefore he would not allow the use of spring-guns in such cases.
Mr. Tennysondenied the validity of the arguments which had been urged by the hon. member for Corfe castle. The principle of the bill had undergone great extension in the House of Lords; and, in his opinion, the improvement was commensurate with the extension. If the House adopted the amendment proposed by the hon. member for Southwark, they would make a material change in the criminal jurisprudence of the country. It ought also to be recollected, that the same amendment had been ineffectually proposed in another place.
Mr. Monckopposed the amendment.
Lord Miltonobserved, that the real question for the House to consider was, whether, by disagreeing to the Lords' amendments, they would postpone for a year the advantages to be derived from the bill; or, by agreeing to those amendments, would merely subject the market-gardeners to a temporary inconvenience, which might be remedied next session.
Mr. FranklandLewis remonstrated against any allusion to the opinions of the other House. Those opinions ought never to influence the decisions of the House of Commons. By its merits, and by its merits alone, ought the bill under consideration to be tried. It ought to be recollected, that the market-gardens were the property of a very large and industrious class of individuals, who ought to be encouraged to supply the London market as cheaply as possible. It was impossible that they could fence round their extensive grounds so securely as to prevent persons who were determined to get over the fence from doing so; although the fence were such that no person could violate it by accident. That was the distinction between gardens and woods. No case had been made out of any individual having suffered from spring-guns set in these gardens. The only objection to them therefore was theoretical. It would be most unjust to deprive the persons in question of protection, and to put their property in jeopardy without any grievance having been shown to exist. On all these grounds he supported the amendment.
Dr. Lushingtonobserved, that there was much good sense in taking all the benefits that could be obtained from any measure, when all that it was desirable to obtain could not be secured. He who adhered rigidly to what was called principles, frequently lost opportunities of accomplishing much practical good. He was disposed to assent to the amendments which had been made by the Lords; first, because they were in conformity to the general principles of our law; and, secondly, because they were in conformity to the view which, in his opinion, the legislature should take of the manner in which property ought to be protected. He said "ought;" because he believed the security of property in this country by severe enactments was carried much further than it ought to be carried. Although the acquisition and the just security of property were advantageous to

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the community as well as to the possessor, there were limits beyond which neither the acquisition nor the possession ought to be protected. Property was only one means of happiness; the happiness of all was the end of the security of property. They who maintained the justice of setting spring-guns in woods for the protection of game, might as well say that it would be justifiable at any hour of the night to fire guns through the wood, in the hope that if any poachers were there they would be killed. Such an act, however, would be murder. An hon. friend of his, lately a member of the House, had the misfortune, during his absence from home, to have a spring-gun set in his garden. He had the still greater misfortune of having a man killed by that spring-gun. He (Dr. L.) had been an eye-witness of the misery in which this accident had involved his excellent friend. The loss of his garden, or of his whole property, would not have inflicted upon him half the pain that he endured for weeks and months; and yet he was not to blame, for he had given strict orders to his gardener to load the spring-gun only with powder—an order which was, unhappily, disobeyed. This example was sufficient to show, that, if the setting of spring-guns were allowed at all, it would frequently happen that the indiscretion of inferior persons, who were reckless or thoughtless of consequences, would be the cause of the loss of human life. With respect to gardens, where was the necessity for this kind of protection? Large gardens were watched. He spoke of his own knowledge, of such large gardens as those at the bottom of Highgate-hill. Those gardens had persons to guard them at night. It would be otherwise impossible to prevent the intrusion of stragglers. If persons would have valuable property in open fields, easy of access, it was their duty to guard it against depredation; and if they did not do so, they must bear the loss. It was on this principle that some of the wisest and best men in this country had reprobated the practice of tradesmen who left their goods exposed at their shop-doors. The expense of guarding these gardens was nothing as compared with the profit derived from them. Had any hon. gentleman an idea of the advance in the retail price of garden-stuff sold in the market? It was a thousand-fold. The small increase of expense, therefore, which the employment of watch-
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men would occasion, would be comparatively trifling. Justice and humanity called for the total abolition of the practice of setting spring-guns. The House ought to consider, that on this subject they were legislating with respect to a description of offence which no member of it was likely to commit. There was, therefore, no community of feeling between the legislature and the criminal; and that consideration ought to induce them to pass the bill in its present state, by acclamation.
Sir C. Wetherellopposed the lords' amendments, and fully concurred in all the views of his right hon. friend. He contended, that, according to the law of England, protection to property from injury was justifiable.
Lord Sandonasked, if it was justifiable by the common law, for a person to do that by agency which he would not do by himself. If a person could not shoot a man climbing a wall, could he do so by a spring-gun, or any other engine? He contended, he could not. Such doctrine was alike repugnant to the common law and natural law, which was anterior to it.
The amendment was agreed to.
Mr. C. Calvertmoved, respecting the setting of Spring-guns in the next clause, that after "continued," there be added, "from sun-set to sun-rise."—Agreed to.
Mr. W. Bankesmoved the next amendment, on the lords' amendment, which rendered the bill general in its operation, with the exception of dwelling-houses; he proposed, with the intention of bringing the bill back to its general form, that instead of dwelling-house, there be inserted, "unless in woods, under-woods, greenhouses," &c.
Mr. S. Riceurged the inexpediency of altering the lords' amendments, which were, perhaps, made in the very expectation of their being rejected here. He hoped the House would not be seduced to lose the bill altogether, by now negativing some objectionable clauses, but would carry the bill in its present shape, and trust to chance for future improvements.
Lord Miltonconcurred in these suggestions. They had no right to look on the amendments made in the bill in the Lords, in any other light than as the amendments of the lords generally; although, out of that House, if he were asked the question, he could point out the author of those amendments. Let the House take the bill as they found it,

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and not take on themselves the odium of throwing it out altogether, which would in all probability be the result of pressing these amendments. The House then divided; For the amendment 24; Against it 46; Majority for the bill as it was 22.
Mr. C. Calvertsubmitted an amendment for permission of spring-guns to the owners of gardens, hot-houses, or conservatories, surrounded by a wall seven feet high, by setting a conspicuous notice on the wall.
Lord Miltonsaid, that persons who could keep such places, could also keep a watchman to protect them.
Mr. C. Calvertsaid, that it was not so; as many of the persons for whose benefit this clause was proposed were market-gardeners, who cultivated the gardens and conservatories attached to large houses which had been dilapidated. The House divided: For the Amendment 23; Against it 40; Majority against it 17.
The other lords' amendments, with amendments, were agreed to, and ordered to be sent back to the Lords.