Commons Sitting of 18 April 1828

NEW SOUTH WALES.
Sir J. Mackintoshsaid, he held in his hand a petition from the gentry, merchants, tradesmen, &c. of the colony of New South Wales, agreed to at a meeting called by the sheriff, and sanctioned by the government of that country. The prayer of the petition was, for popular representation, and for trial by jury. He had been informed by persons well acquainted with the subject, that the two Australian colonies embraced a population of from fifty-five to sixty-thousand persons, of which number, from thirty-five to forty-thousand were free settlers. The amount of the revenue derived by government from these persons was 60,000 l. annually; and the produce of land and labour to 800,000 l. He would say nothing on the prayer of the petition, further than that he knew of no one instance in the history of the English colonies, in which a colony, having attained to such importance as these had done, had been denied those invaluable privileges which belonged to them of right, as being British subjects. There were certainly colonies which had only received a semblance, instead of a reality, of the British constitution; but this had been under peculiar circumstances—such as the colonies in Asia, which, perhaps, could not have had the spirit of the British constitution advantageously engrafted upon them. But with respect to those which were properly the colonies of England, he did not know an instance in which the privileges demanded by this petition had been withheld.
Mr. Huskissonsaid, that according, to the latest returns, the total amount of the population was but forty-nine thousand, and of that number eighteen thousand only were free settlers, the rest having forfeited their civil rights in this country, and being sent there as a punishment. He thought that this fact would not fail to have weight with the House, when it came to consider, whether it would be prudent to grant these two great benefits to the colonies. When an opportunity should occur, he would state to the House the reasons that induced him to think, that, instead of such a concession being a blessing to those colonies at present, it would operate to their disadvantage.
Ordered to lie on the table.

EAST INDIA COMPANY—CASE OF MR. MILES O'REILLY.
Sir J. Mackintoshsaid, he held in his hand a petition containing the application of a private individual for redress. It was the petition of Miles O'Reilly, of Dublin, who had lost a large sum of money, in consequence of certain transactions which occurred at Madras; and he conceived he had a right, in fairness and in conscience, to claim a reparation from the directors of the East-India Company. Mr. O'Reilly had put this petition into his hands several years ago; and he had then told him, that his best course would be, to endeavour to procure redress by quiet and peaceable means. In consequence of that recommendation, he had succeeded in keeping Mr. O'Reilly from having the petition presented for three or four years; and he had done so from a hope, which was not yet extinguished, that the Court of Directors would, in that spirit of justice and fairness which characterized their conduct, attend to the claim of the petitioner. But as that body, no doubt from a sense of public duty, had refused to interfere, all he could do was to lay the petition before the House; and he hoped that the statement contained in it, and the discussion upon it, might have the effect of convincing the high and honourable men to whom one very important branch of the public interest was intrusted, that there was, in this instance, if not a legal at least an equitable claim on them, to pay to Mr. O'Reilly, out of the funds of the company, the sum of which he had been deprived. There was, in a statute passed in the 39th and 40th of the late king, a clause which directed the registrar of the king's court to sue out letters of administration, when any person residing in the presidency happened to die intestate. That clause was intended, and, he believed, had the effect of preventing property thus left from suffering that havoc and destruction, with which it might otherwise be visited; since it was placed in the hands of those whose duty it was to take care of it, and to see that it was given up to the right owners. But when the property of individuals was thus, by a legal enactment, taken out of that course and channel in which otherwise it would naturally flow,—when the care of private money was intrusted to a public officer, —then, not only that public officer, but all the agents of the government by whom he was appointed, were bound to

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watch over the property thus taken from individuals, with the most anxious care. It happened in this case, that colonel O'Reilly, the brother of the petitioner, died in 1816, leaving behind him a moderate property; which, as he died intestate, would descend to his next heir. Mr. Ricketts, the registrar of the court at Madras, took out letters of administration, and then took possession of the colonel's estate, which he invested in the company's treasury at Madras. That act rendered him the trustee of the property, by virtue of the office he held; and those who gave them the authority so to appoint him, namely, the directors, were in fairness and justice, if not in strict law, answerable for any loss which the property might sustain, in consequence of want of due care and vigilance. Soon afterwards, Mr. Ricketts, whose affairs were embarrassed, went to the treasury, and took out a large part of this property. In a short time after he died insolvent, leaving no security for the money, and without any assets. In conquence, the whole of this money, about 3,000 l., was lost. An important circumstance in the case was this, that the treasury paid the money to the registrar without any rule or order of court made to that effect. The judges of the court admitted, by a paper which was still in existence, that there ought to have been an order: and two of the former judges of the court at Madras, now living, sir T. Strange and sir E. Stanley, had declared in the court, that, in consequence of the money being taken from the treasury without an order, the directors became answerable. Surely this was but reasonable. If the treasurer had said, "I cannot pay you without an order from the court; it is not your money; it is vested in me for the benefit of others— go and get a rule authorizing me to pay it," what would have been the consequence? Why, probably, it would have prevented this unfortunate, man from making such an application; or, if he did apply for a rule, the court would have said, "Show us what the money is wanted for; prove to us your solvency and efficiency." Then Mr. Ricketts would have been called on for security; and if he did not lay sufficient grounds before the court, his application would have been refused, and the property saved. If the treasury made itself liable for this money, ought it not to have exercised thus much vigilance? If it were pot vigilant to that extent, why then
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it appeared to him that there was no vigilance at all. Now, he did not think it would be denied, that the Court of Directors, who appointed the government, and the government under whom Mr. Ricketts had been suffered to act in this manner, were responsible for any injury that might be incurred, by want of proper attention. That they were legally responsible, he was not bound to show; but leaving the legality aside, he would contend, that, in liberality and equity, they were bound to consider the case of the family of one of their old and faithful servants, who had sustained a heavy loss by the gross negligence (he would not say moral misconduct), and want of care of the public money. By his advice several statements of the case had been made to the Court of Directors, and all the facts were admitted by their secretary, Mr. Dart, but no redress followed. Another thing that strengthened Mr. O'Reilly's claim for compensation was this—that Mr. Ricketts, by whom the loss was sustained, was appointed to the office contrary to the wish of sir T. Strange, a judge nominated by the king, who wished another gentleman to fill the office. But the mayor and aldermen, who were the servants of the company, outvoted him, and appointed the person who caused this loss. Another circumstance to which he called the attention of the House was this: by the act of parliament, which gave this power to the registrar, it was enacted, that he should publish an account of all monies paid into his hands on account of intestates, first in the India newspapers, and then as soon as possible in the London Gazette, in order to give warning to the relations of individuals so deceased, throughout Europe. Colonel O'Reilly died intestate in 1816, and yet five years elapsed before the advertisement appeared. What could have been the object of inserting the advertisement after such a delay? The whole use of this regulation was, that speedy information should be given to the relatives of the deceased, by which embezzlement or dilapidation of property might be prevented. If this advertisement had been inserted the next year, this small fortune might have been rescued from the hands of the registrar. He only mentioned this as a part of the general grievance which would be removed if the law were adhered to. Under all circumstances, he hoped that the statements he had made, and the discussion that might ensue, would

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have the effect of inducing the East India Company not to depart on the present occasion From that practice of liberality and justice which had generally characterized their conduct.
Mr. Denisonsaid, that a friend of his, a Mr. Sinclair, had a brother who, after residing many Years in India, died without a will. This registrar, who took possession of his property, which amounted to ten thousand pagodas, died insolvent, and his friend had never been able to obtain redress, tie petitioned the Board of Control, who referred him to the East India Company; but they told him that Mr. Ricketts was no officer of theirs, but was appointed by the King's Court at Madras. It was extremely hard that people should thus be deprived of their property, without any fault or neglect of their own. In his opinion, the persons concerned in these two cases had, by every consideration of law, equity, and liberality, a claim upon the East India Company.
Mr. Wynnsaid, that the deficiencies of Mr. Ricketts amounted to 40,000 l., which had been abstracted from the property of the widows and children of the persons whose effects he had, as registrar, administered. The subject was one of great difficulty, and he hardly knew on whom the claim for redress should be made. What the honourable baronet had said of the manner in which Mr. Ricketts had been appointed, had no bearing on the case. By an act which was passed in 1800—an act brought forward by government and not by the East India Company, it was enacted that, as persons in India had commonly few relatives who could undertake the administration of their effects, that office should devolve on a public officer, and the duty was thrown upon the registrar. The judges naturally appointed the existing officer of the Recorder's court. He could not help regretting that when this duty was put upon the registrar, the judges did not take an adequate pecuniary security from him. The practice at present was, that the registrar gave such security, and that no money should be drawn out of the treasury without an order of court. But now came the question, who was to make the loss good? If, a similar case having happened in this country, the government would have had to redress the injured party, then, indeed, he thought the petitioner must be redressed by the East India Company. If not, he did not
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think the petitioner had any claim on the Company. This was not a question of liberality. Unless a sufficient case was made out, the Company could not, consistently with their duty, reimburse the petitioner.
Mr. Courtenayobserved, that in speaking of this case, he would say, as he had said upon another which had been referred to a committee, that where there was a wrong for which there was no remedy, the proper course was to appeal to that House. He was therefore glad that the subject had been brought before them.
Mr. L. Fostercontended, that the money having been lodged in the hand of the Company's own treasurer, this was an appeal to something more than to their liberality. The attention of the Commons of England had been called to a gross wrong, and he hoped that the appeal which had been made to the feelings of the Company would not be lost upon them.
Mr. Lindsaydid not think the Company liable for the actions of an officer whom they had not appointed. The more the case was looked into, the more clearly it would appear, that the Company were not liable for the misdeeds of an officer over whom they had no control.
Mr. Trantsaid, if it could be shown that there had been the slightest neglect on the part of any of the officers of the Company, then it was quite clear that the petitioner had a fair and equitable claim.
The Chancellor of the Exchequerprotested against the supposition, that the petitioner supposing his case to be made out, could have any claim upon the government. If it were found that any thing was due to him, the payment must come out of the territorial revenues.
The petition was read, and sir J. Mackintosh gave notice that he would on Thursday move to refer it to a Select Committee.

NEW SOUTH WALES BILL.
Mr. Huskisson Mr. Huskisson moved the second reading of this bill.
Sir J. Mackintoshsaid, that at a future day he should move two instructions to the committee. The first would be, that the committee should introduce a clause into the bill, extending the trial by jury to criminal and civil cases in the Colony; and the second, that a clause should be received, providing the election of a cer-

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tain number, say one third, of the members of the Legislative Council, by individuals whose incomes from real or personal property should not be less than 50 l. a-year. There were certain points in the bill which he disliked. The trial by jury, for instance, had existed, for the purpose of quarter sessions, before this bill was introduced; but now it was to be abandoned. No mention was made either of the laws relative to insolvency or bankruptcy in the colony, as to which subjects he thought many new regulations might with advantage be made. Upon the whole, he considered the bill as retrograding rather from the spirit of liberality, than taking any step in advance of it.
Mr. N. Calvertdoubted whether the colony was yet in a state to profit by those institutions which the learned member proposed, though there could be no doubt that, as soon as it was in such a state, it ought to receive them.
Mr. Huskissonsaid, that the regulations with respect to bankruptcy and insolvency were omitted in the bill, because he thought the colonial legislature better calculated to regulate those subjects than the House of Commons. His great object had been to meddle as little with details as possible, which were always much better arranged upon the spot. As to the trial by jury, the system had been tried in quarter sessions, and, from the peculiar state of society in that country, found altogether inapplicable. The time was not yet come in which the machinery of that valuable institution could be extended to New South Wales with effect; and to attempt to introduce it would only be to destroy a system which was suited to circumstances, and practically worked well already. No person could be better inclined than he was to give the colony the advantage of every institution which the mother-country possessed; but by attempting to go too fast at first, the progress of the good work would be retarded.
Mr. Brightcomplained that the bill threw too much power into the hands of the Crown and of the privy council, and needlessly limited the other branches of the legislature in their power of interference. There were certain provisions, too, in it, to which he particularly objected; and amongst others, to that which took away the present Court of Appeal, and enacted that all appeals should be direct to the privy council in England. He particularly
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objected to this arrangement, and thought that, if it was to be insisted upon, some change ought to be made in the constitution of the privy council, which was certainly as badly constituted for the purposes of a Court of Appeal, as it was possible to imagine any tribunal to be. He disliked the bill altogether, and would be better pleased that it should be passed for a limited period than be made perpetual.
Mr. Huskissonsaid, that the present measure would not take from the House of Commons the power of future legislation on the subject. As to the intermediate appeal, at the present moment, there was a supreme court of Law in the colony, consisting of barristers of a certain standing, appointed for the purpose of administering the English law. From their decision there was an appeal to the military governor, who could not be supposed to be well acquainted with the principles of law. If his decision confirmed the judgment of the court it would be unnecessary: but if he reversed it, no person would consider that full justice was done, and therefore that absurd practice was to be put an end to, and the appeal would lie in the usual way of appeals from the colonies to this country.
Mr. Spring Riceagreed that it would be desirable to make the measure a temporary one. The colony of New South Wales must be considered in a double light: first, as a penal colony, and then as a colony of increasing wealth and importance, and which ought to be dealt with as a society of free, unpolluted men, of course not subject to that peculiar legislation which befitted a penal colony, Such were the present advantages of the colony, that he had seen many letters from, persons, who had been transported thither, inviting their friends in this country to join them. It is evident that the time must come when New South Wales could no longer be considered as a penal colony, and, therefore, when the whole course of government and legislation with respect to it, must undergo a change. It was on that account that he wished the measure to be a temporary one, in order that a more enlarged and liberal course might in future be taken.
Colonel Daviessaid, it was a mockery to hold out that colony as a place of punishment, seeing that the convicts wrote to their friends to leave no means untried,

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even to the commission of crime, to get themselves sent out thither. What he would suggest would be, that they should send out free labourers to cultivate it. So great was the desire to obtain those free labourers, that an agent of the Agricultural Society had offered to take out five thousand families free of expense, provided proper grants of lands were allotted.
Mr. Wilmot Hortonsaid, that nothing could be more erroneous than the belief that the present state of the convicts in New South Wales was such that they no longer considered it a place of punishment. The very reverse was the fact. So far were the convicts from wishing to induce their friends in this country to qualify themselves for being sent out, by the commission of crime, that their letters were filled with complaints of their altered condition, and of the severity of their treatment. Their condition might have been different before the establishment of the internal secondary punishment.
Mr. Marryatexpressed his satisfaction at finding that the inhabitants of New South Wales were, in the estimation of government, so improved in morals and good conduct as to be deemed worthy of being intrusted with such political privileges as were proposed in the bill. He trusted the new council would restrain those acts of arbitrary power which had too generally characterized the conduct of the governors of our distant colonies; and he hoped that this measure was the commencement of a new and improved system of colonial legislation. He would, however, call the attention of the House to the state of our other foreign possessions, and put in a claim to their being admitted to similar political privileges. The colony of Trinidad had been specially reserved as a field of experimental legislation, and though it certainly was intended to apply merely to the point of the melioration of the slave population, yet that unfortunate colony had been subjected to every possible species of experiment. English governors and judges had been sent out to execute and administer Spanish laws without any previous knowledge of the Spanish language. Orders in council had been issued to adapt English laws to Spanish jurisprudence, and such confusion existed, that on the examination of the two judges before the commissioners of legal inquiry, they differed toto cœlo, as to what was the existing law
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of the colony, there being no collection of these orders open to the public. The governor, moreover, by way of experiment, was invested with powers most extraordinary and unconstitutional. Besides the executive power representing the king, he engrossed the legislative power by his control of the council; and being president of the Cabildo, he levied taxes at will; and, as if these immense privileges were insufficient, he was invested with the high judicial offices of chief judge of many of the courts, and judge of appeal in all. Vested with such unlimited powers, it was not in the nature of man not to abuse them; and, without any personal reflection upon sir Ralph Woodford, the colony under his administration had suffered great oppression; the taxes had been quintupled, new offices had been created at his will and pleasure, for the support of which additional exactions had been imposed. The taxes in that colony amounted to 150,000 l. currency, while in the neighbouring island of Grenada they did not exceed 35,000 l. currency.—The hon. member then referred to the proceedings respecting the Crown lands, in the report of the commissioners. It appeared there, that he, by a simple proclamation, declared all the titles to the estates in the colony to be had or defective, called upon the proprietors to exhibit their title-deeds to the inspection of the Attorney-general for the colony, and directed proceedings to be instituted in the court over which he himself presided as judge, to decide upon their validity. He decreed such lands as were judged to be defective in title liable to confiscation to the Crown, and subjected the proprietors to the payment of heavy fines and quit-rents. In consequence, however, of representations to the government by merchants and planters at home, who did not relish this experiment upon their rights and properties, this proclamation was suspended, and finally annulled. The report of the commissioners completely exposed the conduct of the governor in this proceeding; but, strange to say, it did not recommend any compensation being granted to those proprietors, who, like good and loyal subjects, paid the fines imposed upon them, while those who contumaciously resisted had come off scot free. The commissioners seemed to have felt a professional horror at refunding a fee, however illegally and unjustly exacted. By some informality in the com-

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mission, they were precluded from inquiring into the complaints of the English occupants; many of whose grievances were much greater than those of the Spanish settlers. The foreign colonies were placed in a peculiar situation; they were not represented in parliament, and had yet no legislature of their own. The office of colonial agent had become a sinecure, by the appointment resting with government and not with the colonists: they had no constitutional means of stating their grievances but through their governors to the Colonial office. The governor, however, had influence enough to stifle any such representation in the colony, while merchants and others residing at home were deterred from making remonstrances, which were transmitted abroad by the Colonial office, from the ill-will and vexatious persecutions they led to on the part of the governor and his adherents, towards their connexions and interests there. The present Secretary for the Colonies would signalize his administration by putting an end to the present, system. In the case of Trinidad, a great deal was not asked for; any change almost would be for the better. While the inhabitants were mostly Spanish, some plea existed for retaining Spanish laws; now they were chiefly British; give them British laws, and the benefits of a British constitution; let the colony in future be a field for improvement, and cease to be a field of experiment. There was a Spanish proverb that said, "to the thirsty any thing is wine." Surely it was not too much to ask from a British legislature, civil liberty and personal protection, and habeas corpus, and at least to do away with the horrid possibility of imprisonment for life, which the want of a habeas corpus now vested in the power of the governor.
The bill was then read a second time.

ROMAN CATHOLIC LAND-TAX BILL.
On the order of the day for the further consideration of the Report of this Bill,
The Attorney-generalobserved, that there was no proof that the Roman Catholic suffered by the law as it now stood. Before he could admit that, he must see it proved that the Catholic was assessed higher than his Protestant neighbour.
Mr. G. Bankesobserved, that the remark of his learned friend came at a very late period of the bill, and it was one which he did not expect from him, seeing that he had before assented to the principle of
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the measure. It was true that complaints had been made by Protestants, as well as Catholics, of unequal assessments of the Land-tax. Those complaints were made, in the time of sir Robert Walpole, who had described the tax as being, in many instances, heavy and intolerable, and had added, that more country gentlemen were ruined by it than by any other similar means. Mr. Pitt, when he brought forward his perpetual Land-Tax bill, admitted the inequalities of the rate; but said that the exigencies of the state did not admit of its diminution. The inequality that subsisted, between Protestants in many cases, rendered it difficult for Catholics to show they had been oppressively rated. Much, he thought, depended upon ascertaining the fact, whether the assessments had been made subsequent or previous to the reign of William and Mary. He was inclined to the opinion, that they were made subsequently to that period, and on that ground he argued for their alteration; for if then made, they must have been manifestly made unequally, as regarded the Roman Catholics. If the assessments were made prior to the reign of William 3rd, it might appear unreasonable now to expect their modification or reduction. Government, though not disposed to go the length indicated in the present bill, might be willing to give the Roman Catholics the same degree of relief as it afforded them in 1794; but with that, which was a very inadequate species of relief, they could hardly be expected to be satisfied. The relief of 1794 was founded on the statute of Anne; and, considering the difference that had taken place in the value of money and land in the interval that had elapsed since that period, it could not be considered in the light of relief at the present day. It would be better for the parties to go on as at present, than to be put off with an inefficient remedy.
The Solicitor-generalsaid, that if the subject had been agitated earlier, he was convinced the bill would never have proceeded so far as it had done. No man could be more averse to imposing taxes upon Catholics heavier than upon Protestants; but he would maintain, that with respect to the Land-tax, they laboured under a very slight grievance. In 1794, relief was given to Catholics doubly assessed, and it was continued to them by the bill of 1798, which made the Land-tax perpetual. It was to be supposed that

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all Catholics who felt themselves aggrieved, had availed themselves of the remedy afforded by law. If there were any who had not done so, he should have no objection to their being relieved But the hon. member wished to assume as a principle, that because the Catholics were doubly taxed in the reign of king William, they were to be doubly taxed now; and that half their present assessment being taken off, they would then be on a par with the Protestants. He denied the accuracy of this proposition, and should object to any bill founded upon it. The returns showed that the Catholics were but very little aggrieved, and that the hon. gentleman's views were erroneous.
Mr. G. Bankessaid, he could not, consistently with the instructions of those whose wishes he expressed, accede to the proposition made by the learned member. He would rather hope that, on some future day, the government would have a better opportunity of turning their attention to the subject, and would be satisfied that what he asked for was founded in reason and justice. He did not think, therefore, that he should at present press the matter further. He would, however, consult his friends, and, in the meantime, move that the bill be engrossed, and read a third time on Monday se'nnight.
The motion was agreed to.