Commons Sitting of 30 May 1832

MINUTES.
Papers ordered. On the Motion of Lord TULLAMORE, Copies of all Memorials or Petitions presented to the Lord Lieutenant or the Lord Chancellor of Ireland, or the Twelve Judges in Ireland, from the year 1829 to the present time, relating to holding the Assizes for the King's County in Ireland, at Tullamore, instead of Philipstown, and to the Building of a Court-house at Tullamore, with the Proceedings had therein.
Bills. Read a second time:—Army Prize Money; Militia Ballot Suspension; Clandestine Marriages (Ireland).—Read a third timer—King's Bench (Ireland).
Petitions presented. By Mr. ANDREW JOHNSTONE, from Haddington; and by Mr. WEYLAND, from King's Lynn,—against the Ministerial Plan of Education (Ireland.)—By Lord WILLIAM LENNOX, from King's Lynn; and by Mr. O'CONNOR, from Mayo,—in favour of the same Plan.—By Mr. DIXON, from Glasgow;—by Mr. LEE LEE, from Ilminster; and by Lord WILLIAM LENNOX, from Holywell (Flint),—for Stopping the Supplies.—By Mr. DIXON, from Reading and from Beverley (Yorkshire);—by Mr. O'CONNOR, from Roserea;—by the ATTORNEY GENERAL, from Nottingham;—and by Mr. HUGHES HUGHES, from Oxford,—against the Punishment of Death.—By Mr. WEYLAND, from Mostinei, in favour of the Poor Allotments Bill.—By Lord TULLAMORE from King's County, for removing the Assizes to Tullamore.—By Mr. EWART, from the Owners of a Theatre at Liverpool, for Repealing the Laws relative to Dramatic Performances.—By Mr. HUNT, from Individuals confined in Lancaster Gaol, Complaining of the Cruelty of the Jailor.

DISTRESS IN THE WEST INDIES.
Mr. Marryatpresented Petitions from the Island of Grenada, from St. Lucia and Trinidad, Crown colonies, praying more extensive Protection to the interests of the West-Indian planters, for a reduction of the Duty on Sugar, and against all further interference with the Slaves. The situation of these Crown colonies formed an anomaly in the history of the British Constitution. That a class of people, whom. the law recognizes as British subjects, should be practically shut out from the pale of the British Constitution; that they should be deprived of the inestimable advantages of British laws and Trial by Jury, taxed without Representation, and governed by foreign laws, which invest the Governor

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with arbitrary and despotic authority, appeared a case of hardship and injustice which would scarcely be supposed to exist in the British dominions; yet such was the actual state of the Crown colonies. They continued to be governed by the laws of the nations from whom they were conquered, and those laws were modified by Orders in Council, often framed in utter ignorance of the peculiar habits and customs of the people. The Crown, by its representatives, levied taxes at pleasure, and appropriated the revenues of the colonies without any control on the part of the inhabitants. The practical effect of taxation, without representation was exemplified in the enormous amount of taxes which were there levied, in comparison with those colonies which, through their local legislatures, taxed themselves. The colony of Trinidad was taxed treble the amount of Grenada, its equal in resources and population: and a similar comparison existed between St. Lucia and St. Vincent. The greatest absurdity, however was, that these colonies were still governed by the laws of foreign countries. St. Lucia had in no way fared better than the other colonies. Since the conquest, she had been governed by that most obsolete and absurd code of laws such as existed in France previously to the French Revolution—a code which was not in existence in any other part of the world. The administration of the law was no less absurd than the law itself. The present Chief Judge was profoundly ignorant of the French laws, and of the French language; and a Puisne Judge had been appointed to assist him, who neither spoke French, nor knew any thing of the French laws; and, in consequence, no criminal court for the gaol delivery had been held since Mr. Jeremie, the late Chief President, left the colony. The present Government had shown a disposition to redress these grievances, having reduced many expenses, and reformed many abuses; much, however, remained to be done; and he trusted that the settlement of the Reform Question would give them leisure to afford that redress which these colonists had a right to demand. Regarding the Order in Council, he could not go the length of the petitioners in calling for its repeal, but lie concurred in praying for the modification of its provisions. It was a crude and indigested code of legislation, equally unpopular with the slave and the master, and almost impossible to be carried into execution. The colonists justly complained, that in a time of unpa-
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ralleled distress, they were called upon both to increase the expenses of cultivation, and to diminish production. They were already taxed to the utmost extent they could bear; and they could not, out of their own resources, pay the expense of Protectors, who, being appointed by the Government at home, for public purposes, should be paid out of the public purse. He wished to draw the attention of the House for one moment to a "Statement of the decrease of the slave population in the sugar colonies," signed and circulated by the hon. member for Weymouth. The object of that statement was, to show that a large decrease had annually taken place in the slave-population in a certain number of years, namely; 52,887 in eleven years: and the inference the hon. Member drew was, that the slave-population was annually decreasing at this average ratio, and that in order to prevent their utter extinction, no remedy remained but the immediate abolition of slavery. But the mortality of which the hon. Member complained was decreasing. In Demerara, the decrease in the number of slaves in 1820 was 2,272; in 1829, it had diminished to 1,045, more than one-half; and the Registrar, in his report, stated it to be his opinion, that his next return would show an increase of population in that colony. In Grenada, where the annual decrease, on an average of twelve years, was stated at 216, the return of 1829 shewed a decrease of fifty-nine only, and the births in that year exceeded the deaths, being 736 to 730. In Trinidad, where the average mortality was stated at 400, the decrease by the last returns was only 180. In St. Lucia, where the annual decrease was stated at 150, he had the authority of the noble Lord, the Under Secretary of State for the Colonies, for stating an increase of ten per cent in the population, and moreover, an increase in the production of sugar also, which showed that sugar cultivation had not the devastating effects ascribed to it by the hon. member for Weymouth. He moved that the petition be read.
Lord Howickobserved, that if hon. Gentlemen would take the trouble to look at the papers that had been printed upon the subject, they would there have an opportunity of making themselves acquainted with the reasons which had influenced the conduct of his Majesty's Government. His hon. friend had made a mistake in saying that the Judges could not speak French, and knew nothing of the French

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laws, for they were both taken, he believed, from the Bar of Guernsey. The salaries, however, were so small that it was difficult to get proper persons to accept the situations. He could also assure the House, that the Government had the greatest desire possible to curtail the expenditure of these colonies, and as his hon. friend said, had already done something to establish economy in the administration.
Mr. Huntinquired of the noble Lord opposite, whether it was a fact that the House of Assembly in Jamaica had refused the supplies?
Lord Howicksaid, that some despatches had been received, though not precisely to the effect stated. Some clauses had been introduced in the bill relating to the poll-tax, and considerable discussion had taken place; but no step had been definitively taken at the time the last communications were despatched.
Mr. Burgewished to know if there were not other colonies which bath refused the supplies?
Lord Howickadmitted, that in one or two of the colonies refusals had taken place.
Petition to be printed.

BREACH OF PRIVILEGE—CASE OF PROCEEDINGS OF COMMITTEES.
Mr. Stanleycalled the attention of the House to a breach of the privileges of that House, which had been committed, and which had been attended with consequences of the most serious kind. A Committee of that House had been sitting above-stairs, and a draft of their report had been prepared: that draft—not the report itself—but the draft had found its way into the public papers. The Committee had taken steps to discover how that Breach of Privilege had been committed, and in consequence of the information which reached them, they called before them a Mr. Sheehan, who was at present in London, and who was one of the proprietors of The Dublin Evening Mail, the first paper in which the document in question was published. Mr. Sheehan, when called before the Committee, acknowledged that it was through him the document in question obtained publicity. He further stated, that he had obtained a copy of it not from or by means of any member of the Committee; but he declined giving any further information on the subject. He (Mr. Stanley) therefore moved, that, Thomas Sheehan be called to the Bar to-morrow.
Mr. Humeinquired whether or not the
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publication in question was an exact copy, or merely an abstract of the draft of the Report?
Mr. Stanleysaid, it was nearly a correct copy, but some part of it had been omitted; at all events, it was not the Report of the Committee, though it was published.
Mr. O'Connellwished to know how such a publication was a Breach of Privilege?
Mr. Stanleysaid, it purported to be a Report of a Select Committee of that House, and was not so.
Mr. Humeobserved, that they every day saw instances of speeches and proceedings of that House purporting to be what they were not. Publications were to be found which put forth falsehoods of that description; and were they to call for the Editor on every such occasion? Whatever rule was to govern their conduct, he wished it to be fixed and understood.
The Speakerobserved, that such publications would be Breaches of Privilege, whether correct or incorrect, though it might not be always convenient to notice them: that the hon. Member knew as well as any one.
Mr. Stanleysaid, it was a matter of the very highest importance that that House should see that none of its officers, intrusted with papers for private circulation, had been guilty of misconduct. Nothing could be more inconvenient than the publication of such papers, and under such circumstances. There was, for example, the Committee on the affairs of the Bank, sitting: It the present moment, and any disclosure of their proceedings could not but lead to pecuniary speculations of the most unjust and most injurious character. Respecting the very draft of a Report to which he had alluded, it was upon a subject as to which the greatest excitement prevailed; and it was not to be endured that the publication of it, purporting to be the Report actually agreed to by the Committee, should take place in Ireland, and that such a document should be criticised in every journal, front one end of Ireland to the other, as the deliberate and recorded decision of a Committee of that House on a subject of the utmost delicacy and importance. In justice he was bound to state, that the printer to tile House, the moment the matter was mentioned, came forward and declared that no copy could have been surreptitiously obtained through his office, and expressed an earnest desire that the whole matter should, without delay, be fully investigated. some negligence, or through some

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criminality, a copy had been surreptitiously obtained; and it was also ascertained that one of the members of the Committee had not received his copy of the draft.
Mr. Ruthvendeprecated any interference on the part of the House.
Lord Miltonsaid, that the House must come to some decided understanding, either to punish in the way which was open to them, or to connive at and sanction the publication of such documents. The right hon. Gentleman (Mr. Stanley) had pronounced these disclosures inconvenient to the public service, but he would say, that they were most injurious, and would add, that no Committee could deliberate fairly and safely if documents of this description were circulated before they were agreed to by a Committee.
Question agreed to.

ABOLITION OF CAPITAL PUNISHMENTS.
The House, on the Motion of Mr. Ewart, in Committee on the Bill for Abolishing Capital Punishments in certain cases.
Sir Robert Peel, to a certain extent, agreed in the principle of the Bill; he was, at the same time, bound to say, with respect to one particular offence, from which the punishment of death was removed by this Bill, that he apprehended great evil might possibly arise from such a provision: he alluded to the offence of stealing in a dwelling-house, which stood on a very different footing from other offences enumerated in the Bill. There was a wide distinction between stealing in a dwelling-house, and stealing cattle. In the latter case, he had ever been an advocate for modifying; the severity of the law. At the same time, his view had always been, that such a modification to be effectual and permanent, should he gradual; the country then became reconciled to it, and the Legislature was enabled to judge of the effect of mitigation by cautious and safe experiments. He was by no means decided as to the policy of an immediate and absolute remission of capital punishment in the case of horse-stealing. That offence stood on different grounds from the offence of cattle-stealing. The moral guilt, indeed, was the same; but the inducements to the commission of the two offences did materially differ. In the case of the horse, the property was frequently more valuable, the protection less, and the chance of detection smaller; not only because the animal stolen offered the means of escape, but because from the demand for horses
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in foreign countries—the facilities of exportation were at hand. However, if the House was of opinion that the punishment of death was too heavy for horse-stealing, he should not press any doubts that he might entertain upon the subject. It was impossible to deny that, in every case of an experiment in legal enactments, the result might turn out to be very different from what general expectation supposed it would be. Take the case of the Game Bill. He was as fully convinced as any one else that the time had arrived when the experiment should be made; but that experiment had not, he feared, proved satisfactory. To be sure, in consequence of the recent passing of the Act, an encouragement might have been given to poaching, which would soon diminish, and perhaps sufficient time had not yet elapsed to justify a comparison of the state of crime under the new law with the state of it under the old. There appeared, however, reason to doubt whether the legalizing of the sale of game would have the effect in diminishing poaching, which it was expected and intended to have. With respect to taking away the punishment of death for stealing in a dwelling-house above 5l., he was apprehensive that that might prove a dangerous experiment, and that the removal of the capital punishment might hold out a temptation to offenders. It should be remembered, that this was sometimes a very aggravated crime, accompanied with gross breach of trust, especially in such a city as London, where property to an enormous amount was frequently left in the care of servants. Such a case as this, for instance, might possibly arise—a gang of robbers might be admitted into a house, through the privity of a servant; they might be prepared for the commission of acts of the greatest violence (though, by accident, none in might take place), and vet, as there was no burglarious entry of the house, whatever might be the amount of property stolen, the lives of the guilty parties would not be hazarded. For his own part, he could hardly conceive a more serious offence than that which he had described; and when lie considered the facility with which crime was committed in the metropolis, he must say, that he looked upon this as a most dangerous experiment. He therefore trusted that hon. Gentlemen would reserve for themselves the power of making an alteration in the Bill, if it should be deemed proper.
Lord Althorpadmitted the importance

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of the subject to which the right hon. Baronet had called attention. Stealing in a dwelling-house was certainly a very grave offence, but he did not think that the number of offences of that description would be diminished by rejecting the, proposed Measure. After giving it all the consideration in his power, he was of opinion, that the abolition of the punishment of death for stealing in dwelling-houses would not he productive of any of the mischievous Consequences anticipated by the right hon. Baronet. To have capital punishments multiplied on our Statute-books, for crimes for which the punishment was seldom or never enforced, was, in his opinion, highly objectionable; and it was chiefly on that ground he supported the Bill Dow under consideration. With respect to the Game laws, he thought there had not yet been time to ascertain the effects of the bill of last Session.
Mr. Weylandsaid, that in Norfolk the new Game law had answered very well.
Mr. O'Connellbegged to give his best thanks to the hon. Gentleman who had introduced this Bill, which, he believed, would prove highly beneficial. He knew a good deal of the criminal practice in Ireland, and he could state, that for many years there had scarcely been a case of the crimes included within this Bill that had been punished with death. Indeed, he knew but of one person who had been executed for horse-stealing; and that was more than twenty years ago: that was a very melancholy instance: the Jury had recommended the man to mercy; but it so happened that the Judge at that very time resigned; and there being, therefore, nothing to require his return to Dublin, he neglected to transmit the recommendation to the proper quarter, and the man was, in consequence, executed. This was, certainly, a reason with him against leaving the punishment of the offender in the discretion of the Judge.
Sir Robert Inglisthought, that stealing in a dwelling-house was no longer a capital offence, and that this part of the Bill was unnecessary.
The Attorney Generalsaid, as the law stood at present, all stealing in the dwelling house was not punishable with death. Supposing that a servant let in a gang, and they found nothing to the value of 5l., that servant could not be capitally punished, though, surely, his offence would he quite as great as if the gang obtained a 10 l. booty. It might be a fit question to con-
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sider of a proper punishment to be awarded to such a conspiracy on the part of the servant; but he stated the law as it stood at present. Taking the law upon its general principle, he had always thought that its severity defeated itself. The right hon. Baronet had supposed a case, and he (the Attorney General), therefore, would suppose another. Supposing a man passed by, and saw the hall-door of a house standing open, and he went in and stole a great coat worth 6l. or 7l., that man's life would be forfeited according to the law; but, what was still more singular, if a servant was convicted, as a servant, of the same offence, the punishment would not be capital.
Sir Robert Peelsaid, that it was impossible to look at the state of the criminal law, and of the prosecutions in this country, without, feeling a strong desire to improve the whole system connected with criminal prosecutions: but he must confess that he had found the greatest difficulties in the way of such general improvement. In looking at the state of the criminal law in Scotland, he had always considered that both the theory and the practice of it had much to recommend them; but then, again, the difficulty of introducing the customs of another country into this would be very great; so that it did not follow, even though it was conceded that the system was better in Scotland than in England, that it admitted of adaptation to the latter country. In Scotland there was this great advantage—that there was a public prosecutor, or, in other words, a person who never acted from feelings of anger or irritation—who never prosecuted vaguely or lightly, or allowed a person charged to escape through favour or partiality, or the unwillingness to incur the trouble and expense of prosecution. In this country, on the other hand, persons were generally disinclined to prosecute: when a man was robbed, his first impulse was probably to punish the offender; but, after three or four days' reflection, he began to weigh the cost of prosecution, both in money and time, and speedily came to the conclusion, that to exert himself for the purpose of convicting the culprit would be (to adopt a vulgar saying) throwing good money after had; and the consequence was, that there were few men so public-spirited as willingly to undertake the vindication of the law. Surely that was a defective system which threw upon an individual, already aggrieved by the loss of property, the serious additional expense of making a

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public example of the thief. With respect to another branch of the subject, it was impossible to deny, that our state of secondary punishment was most inefficient. But, though it was very easy to make that assertion, it was, on the other hand, very difficult to introduce a more effective system. In the first place, he could not admit that the fear of death had no effect on the mind of a man about to commit an offence; it surely had, at least, as much effect in deterring him from the crime as it could have in deterring an aggrieved party from prosecution. But in what did the secondary punishments of this country consist? In imprisonment, and in transportation. Now, take the case of Fauntleroy, for instance. Would his case have been adequately met by either of these punishments? Supposing he had been imprisoned, and supposing he had contrived to retain (which was extremely likely) a large portion of his ill-gotten property, it would have been difficult to prevent the application of it, in some way or other, to his advantage. If he was visited with more than ordinary severity, and he conducted himself plausibly, he would become an object of public sympathy, and of constant solicitation in his favour. If, on the other hand, he had been sent to New South Wales, could he have been subjected there to any degrading species of servitude? Would it not have revolted public feeling to sec a man of talent and education filling a menial office? The immediate spectacle of inflictions so unsuitable to the previous habits and acquirements of an offender soon awakens a sympathy, which is more powerful than the feeling of resentment at his crime, or even than the sense of the abstract justice of the punishment. With respect to the proper punishment for stealing in a dwelling-house, he must again take an opportunity of saying, that, in his opinion, the Legislature ought to take the matter most seriously into its consideration before it consented to abolish the punishment of death in all cases coming under this head. Supposing a servant opened his master's door to a gang of thieves, and 3,000 l., or 4,000 l. worth of property was stolen; was not that a most serious case? If the same robbery was committed by means of a burglary, it would subject the offender to capital punishment; was not the moral guilt, at least, as great in the case which he supposed, wherein there was a gross breach of trust; and was not the danger to society, at least, equal? The hon. and learned Gentleman
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had put the case of a man stealing a great coat: that that offence should be punished with death was, certainly, very revolting; and he, for one, would give his ready consent to such an alteration of the law as would preclude the possibility of such an infliction. But this Bill went much further; it attempted no distinction, but exempted, without qualification, the crime of stealing in a dwelling-house, however aggravated, from the punishment of death. From his experience of the state of crime in London, of the desperate characters it contained, and of the inefficiency of secondary punishment, as at present administered, he certainly must confess, that he viewed this alteration in the law with apprehension; and he thought that the evil of retaining the capital punishment, at least for the most aggravated cases of robbery in a dwelling-house, was less than the probable evil of encouraging desperate offenders to the commission of a very serious crime, by the assurance of complete indemnity so far as their lives were concerned.
Mr. Godsonthought it was highly desirable to remove any punishment from the Statute-book which was never carried into execution.
Mr. Fowell Buxtonsaid, the right hon. Baronet had spoken of prosecutors being influenced by two motives, and that it was difficult to say how much either of these induced them to save the life of a criminal. These were, their respect for human life, and the desire to save their own pockets. But what could the right hon. Baronet say of Judges and Jurors who also agreed in many cases to do what they could to spare a criminal? In their case their pocket was not concerned, and they could only be actuated by the desire of saving human life. He had formerly quoted in that House many instances in which Jurors and Judges combined to bring in the value of an article which really was worth 30 l. or 40 l., to be of the value of 10 d. or 15 d. or 20 d. In all such cases—and it was well known that they were numerous—there could be no other motive than that of the desire to save human life. He supported the Bill.
Mr. Charles W. Wynnhoped that the anxiety he had always displayed to promote the success of those laws which went to spare human life, would be an apology to the Committee for his trespassing during a short time on their attention. The arguments which he had heard on time subject, seemed to him rather to prove the ne-

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cessity of a more specific classification of crimes, and adaptation of punishment, than the propriety of altogether abolishing the punishment of death. In general, he thought that punishment ought not to be inflicted; but now to abolish it, to repeal all the laws which inflicted it, would be acting not a bit more wisely than the Legislature formerly acted, when it inflicted death indiscriminately on the boy who put his hand through a hole in a window, or the man who quietly opened a door to steal, and the midnight burglar who broke into a dwelling, and was ready to assassinate those who opposed him. He agreed, therefore, with his right hon. friend (Sir Robert Peel), that it was not desirable to take away the capital punishment from all offences, but it was desirable to limit it to those burglaries which were committed by night. As to horse-stealing, which was a capital offence, the punishment was made great in proportion to the facility with which the offence could be committed, and the greatness of the temptation. That was not, in his opinion, a correct principle. Those circumstances showed that the crime might be committed without much depravity, and consequently, they were arguments for making the punishment comparatively small. As a means of preventing this crime, he thought it was desirable that horses should only be exported from particular places, and that books should be kept, describing every horse exported. He was aware that such precautions would not wholly prevent the crime, but they might render the successful commission of the offence much more difficult. In his time he only remembered one case of the punishment of death for horse-stealing being inflicted, and that was inflicted rather for other offences than for the crime of horse-stealing—that was the case of the man Probert, who had stolen, he believed, but one horse, while other persons who had more frequently stolen horses were pardoned. He objected to the principle of making value the criterion of offences. To every plan of remedying these evils, however, some objections might be made. Secondary punishments might be applied, but objections were made to exposing a well-educated man to work with felons; and the circumstances which were really an aggravation of such a man's offences, were pleaded in mitigation of his punishment. Perhaps branding might be usefully employed as a secondary punishment, and it might
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be particularly applicable to such a person's offences. Solitary confinement was only a punishment in some cases, and in some was found to be no punishment at all. Imprisonment with other felons only led to a general corruption of manners, and to the commission of greater offences. The propriety, however, of abolishing the punishment of death in all the cases stated in the Bill, must depend on the efficacy of the secondary punishments recommended by the Committee now sitting on that subject. On the whole, he was favourable to the Bill.
Mr. Lambagreed with the right hon. Baronet (Sir Robert Peel), that the general increase of crime deserved the most serious attention of Government, but those offences which were enumerated in the Bill had not increased. In cattle and horse-stealing, for instance, there was some decrease since 1825. This was a consolatory reflection, for those offences were carried on in general by gangs of men, who entered into combinations, and were prepared for other offences. Their schemes showed deliberate wickedness. Sheep-stealing certainly had increased, but that was a crime which might be perpetrated without any combination, and by labourers, tempted by a state of temporary distress. He was happy to say, notwithstanding the increase of crimes, that the number of female malefactors had not increased; and, indeed, since 1829 the number had rather decreased. This was, also consolatory; for when the female part of the community was in a wholesome and sound state, there was good reason to hope, their influence was so extensive, that the whole would improve. In general he approved of the Bill; but with respect to stealing in a dwelling-house to the value of 5l., he admitted that he had entertained some doubts as to the propriety of taking away the punishment of death for that offence. That crime was the only one depending on the criterion of value that was now punished with death; and it would be, he thought, desirable to get rid of that. Nothing was, in his mind, more disgusting than the shifts to which Judges and Jurors had recourse in order to reduce the value of the articles stolen. It had been suggested that it would be a good plan to raise the value to 100 l.; but he doubted if that would answer. In all cases it was assumed, that the punishment of death prevented crimes. Admitting that it did in some cases, did no worse consequences follow from it? If it were

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not inflicted according to the public sentiments, did it not revolt the people against the law itself? If it in no case prevented crimes, of course it ought in no case to be inflicted. Under such circumstances, let them, he would say, at least sweep away the punishment of death in every case in which its infliction was not supported by the public sentiments. After much reflection, and after admitting that he once had some doubt on the subject, he was prepared, without any reluctance, to vote for the repeal of the punishment of death in the whole of the cases mentioned in the Bill.
Mr. Shaw, had never before heard of the case mentioned by the hon. and learned member for Kerry, and he was quite sure the conviction in that case could not have taken place from the motives assigned by that hon. and learned Member. He gave his support to the measure.
Mr. John Campbell, after much experience, was prepared to say, that he thought this Bill highly beneficial. The law was now in a bad state. The capital punishments were not ordered, as some hon. Members seemed to suppose, to be remitted at the pleasure of the Judges. During the reigns of Anne, of George 1st, George 2nd, and the early part of George 3rd, almost all the persons convicted under these laws were executed; but it was not found that the crimes decreased. With respect to sheep-stealing, it was said of Mr. Justice Heath, that he always left a sheep-stealer for execution, from which it came to be rumoured that the learned Judge himself had a favourite flock of sheep, to save which from depredation he adopted this course. This, in fact, was not true, for the circumstance arose from that learned Judge being always rather fond of severe punishments. With respect to horse-stealing, he knew of but one case of death being inflicted for that, and that occurred at Stafford. He believed the Judge ordered the punishment to be inflicted because the man was found with a pistol in his possession, though that arose from an accidental circumstance, and it was not proved that he had any intention of using it. With respect to stealing in a dwelling-house, if a servant got up in the middle of the night, and admitted a gang of thieves, he contended that both he and they were guilty of burglary; because, the servant having no authority to open the door, all the parties stood in the same situation as if they had broken into the house; so that the objection on the
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score of there being no adequate punishment for the servant's breach of trust, did not hold good. But, at all events, the Legislature was bound to choose the lesser of two evils; and he would ask hon. Gentlemen, whether they were content that the punishment of death should be awarded against a man who ran in at an open street-door and stole a great coat from the hall? Since he had gone the Oxford circuit, it had been melancholy to observe how much crime had increased; though from what cause that increase had arisen, he would not take upon himself to pronounce. With respect to secondary punishments, there was a great difficulty experienced. Branding would, he believed, only excite the commiseration of the public, and it would for ever exclude a man from society.
Mr. Lennardsaid, that the observations which had been made by the right hon. Baronet opposite pointed to a great defect in our mode of legislation, namely, that of classing a variety of crimes, differing in degree, under one common denomination. For instance, it seemed absurd that he who entered a house armed at night, prepared to commit murder, if necessary, in the execution of his purpose, should come under the same class of offenders as a child would who, after dark, should break a pane of glass and steal a cake. This was a point well worthy the attention of Government, and he hoped that something would be done to improve the laws, by making the punishments enacted by them bear some proportion to the nature and character of the crime. With respect to the particular crime which had been alluded to principally in the course of the Debate, namely, the crime of stealing in a dwelling-house—he admitted there were cases of aggravation, such as were stated by the right hon. Baronet; but still it must be recollected, that the crime was not one likely to lead to personal violence, and as he was averse to making the amount of value a criterion in case of life, he should support the Bill in its present state. With reference to what had been stated by the right hon. Baronet, in regard to secondary punishments he thought the difficulty of making them effective had been over-rated. In the case of Mr. Fauntleroy, of whom it had been said, that under any system of secondary punishments he would be living in luxury, he would ask, could no law be devised which should prevent that? and further, how could these luxuries be obtained, when it was known, that by the commis-

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sion of such an offence as that for which he suffered, his property would have boon forfeited? He felt a great objection to the present law, on account of the large discretion vested by it in the Judge. Practically, the law was exactly in the same state as if it were to be enacted that the punishments for the crimes of horse-stealing, sheep-stealing, and stealing in a dwelling-house should be transportation, but with a proviso that the Judge at his discretion might increase the punishment to death, Would the House consent now to enact such a law? If it would not, why retain a lays which, in practice, did the same thing? Allusion had been made to the difficulty of finding prosecutors. He believed that the Bill of his hon. friend tended to remove that difficulty, by making the enactment of the law more conformable to the enactment of the and humane spirit of the people of the country.
Mr. Cutlar Fergussonsaid, it had beet proved by Sir S. Romilly, that in the early period of the history of these laws two-thirds of all the persons convicted under them were executed, while at a later period not one-eighth of the person convicted were capitally punished. He thought it extremely desirable to limit the discretion of Judges, which must be done by classifying the laws. They were necessarily intrusted with mach discretion, because the Legislature had jumbled many different offences under one head. That system was defended on the ground taken up by Dr. Paley, who praised the English law because it swept into the net of crime every offence which merited the punishment of death. But Sir S. Romilly had demolished that statement by showing that such was not the object of these statutes, but it was intended to carry them into execution. Sir S. Romilly had mentioned a curious instance of the manner in which these laws were executed. It occurred on the Norfolk circuit. Two men broke into a poultry-yard, and stole some fowls; one of them was apprehended, and the other absconded. The one who was taken up was tried before Lord Loughborough, and sentenced to a few months in prisonment. The other, who had absconded on hearing this, surrendered. Mr. Justice Gould presided at this trial, who was amiable and humane man, but he had for med a theory that persons who began by these small crimes generally ended by committing great crimes, and he sentenced the second man to seven years' transportation.
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What a spectacle of the law did this afford to the public of that place, who saw as one man was coming out of prison the other sent off to Botany Bay. The system he considered every way wrong. To how much perjury, too, did our system in this respect lead? Parties in the witness-box did not give a true account of the transactions which they were to speak to, in order that the criminal might escape the capital punishment; and the Jury often violated their oaths by finding a thing to he worth only 39 s., which they knew to be worth more than 40 s. Such practices must produce the most injurious effects, by accustoming the public to perjury. It was most important, therefore, that this Bill should follow up the labours of the right hon. member for Tamworth. to whom he (Mr. Fergusson) gave infinite credit for what he had done. He had been the first successfully to attack old abuses. At one time, every amendment of the law was declared, even by Judges of the land, to be revolutionary. When the Bills of that great man, Sir Samuel Romilly, were introduced into the House of Lord they were denounced as having a revolutionary tendency, which would prove to be destructive of all property. That great man did not live to see his plans carried into effect; but the labours of his (Mr. Fergusson's) hon. friend would now give the country that satisfaction. He rejoiced that the House had received this measure without a dissentient voice; and he trusted that the Bill would not fail to pass into a law. He would recall to the recollection of the Committee that this was not the first time the House had assented to the principle of this; for Sir Samuel Romilly's Bills had passed that House, and were only lost in the Lords. This principle was now well understood by the country, and its success would give general satisfaction. He was not one of those who pretended to say, that society had no right to visit any crime with punishment; for society had a manifest right to do what was necessary for its own preservation; but a proper case ought always to be made out, to justify the infliction of a given punishment. In his opinion, the stealing of horses or cattle might be accompanied with circumstances that should call for the punishment of death; and, in point of fact, horse and cattle stealers never suffered death for those specific offences, but for something else which they had done. The Judge indicted the punish-

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ment, but he was guided by the representations of the Magistrates or others, as to the general character of the prisoner. If a man were tried for some offence, and acquitted, should he be supposed guilty by the people, his character became bad; and if he were afterwards convicted of horse-stealing, he did not suffer death for that offence, but on account of his previous bad character. This must confound all notions of right and wrong in the public mind. The right hon. member for Tamworth had done much to classify offences, but Sir Samuel Romilly was the first who had entered into the philosophy of our legislation. He trusted that this would only prove the commencement of the adoption of his plans, and that we should have a criminal code, as remarkable for its mildness as for its efficiency. With respect to what had been said on the subject of a public prosecutor, there could not be a doubt, that in many instances, such an officer would be of exceeding great use. At present a man was indicted for grand larceny, petty larceny, or a misdemeanor, just as it might please the person prosecuting him. Hints in this and other respects might advantageously be taken from the law of Scotland. There a public officer was responsible for all crimes being punished; but allowed no person to prosecute from mere vindictive motives. He would recommend Government to follow that example and appoint a public prosecutor.
Mr. Cramptonwished to observe that the cruelty which had been justly attributed to our criminal code was alien to the common law of England. It was by the statute law alone that such misappropriate punishments had been enacted; and experience had proved, that the effect of extreme punishments was an increase rather than a diminution of crime.
Mr. Humewished to draw the attention of the House to the beneficial effects of mild but certain punishments, as exemplified in the United States of America. There the punishment of death was never inflicted, except for murder; and perhaps in no country did there exist so little crime. When it was found in England that crimes increased, notwithstanding the severity of our punishments, why did we not take instruction from the example set us by America. Entertaining these sentiments, he was happy that the Bill on the Table was about to pass into a law. He must take that opportunity of com-
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plaining of the manner in which the colonial authorities remitted the punishment of those who were transported to New South Wales. If it were known that every individual who was transported to that country would be compelled to serve out the time of his sentence, and would be kept to hard labour during the whole of that period, the rigid enforcement of that secondary punishment would have so salutary an operation upon the fears of offenders, as to do away with the necessity for the punishment of death altogether. He was not one of those who would object to the abolition of the punishment of death because our secondary punishments were defective, inasmuch as he firmly believed those defects to be mainly attributable to those whose duty it was to enforce those punishments.
Mr. Ewartconcurred in the praise which the hon. member for Middlesex had bestowed upon the criminal code of America, and hoped that we should follow her example, by almost entirely abolishing those capital punishments which had proved to be so inefficacious.
Mr. Humebegged to ask the hon. Member opposite, who was connected with the Home Office, a question relative to the mode in which the sentences of transportation were carried into effect in New South Wales and Van Diemen's Land. The hon. Member would probably be surprised when he told him, that he had received such information on this subject as to impress him with the belief, that in a great number of cases where individuals were sentenced to transportation, they found means to make interest with the Governor, in some way or other, and, in nine cases out of ten, the punishment to which they were sentenced was rendered wholly ineffective, and they escaped from it altogether. In making this statement he must be allowed to observe, that his remarks applied chiefly to that class of persons who were supposed to belong to the respectable and middle classes in England, and who were sentenced to transportation for such crimes as forgery and the like. If, however, such a system were suffered to go on, he no longer would credit the view which some persons in England took of a sentence of transportation. He trusted, therefore, that if it was the intention of the present Government to sanction the introduction of a system of secondary punishments, they would take care that no means should be used to render that system inoperative.
Mr. Lambwas not aware of the existence of any partiality which had been shown towards persons who, having moved in a respectable circle in this country, became subject to a sentence of transportation to Sydney. He was of opinion, that those persons who, from such crimes as forgery and the like, had incurred the penalty of the law and of transportation, ought not to be sent to the colony of New South Wales; sonic other mode of punishment ought to be adopted towards them, either in the Penitentiary, or in some other of the home prisons, for at present, when a person who had once moved in a respectable circle was convicted of forgery or fraud, he generally looked forward to his sentence of transportation as a means of enabling bin' to fly from a country where he met with shame on every side.
Clauses agreed to. House resumed.

KING'S COUNTY ASSIZES' BILL.
Lord Tullamore moved that the House resolve itself into a Committee on this Bill.
Mr. O'Ferrallsaid, that Bill would do a great injustice to Philipstown, and he moved that the Bill be referred to a Committee, Ever since 1786 there had been a family dispute between the noble Lord connected with Philipstown, and the noble Lord connected with Tullamore, and the whole business seemed to him a sort of family job. The question ought to be left to the Chancellor and the Judges. If the Bill were carried, a considerable expense would be entailed on the county.
Lord Tullamoresaid, that the Bill was necessary for the convenience of the King's County, and he could assure the House that he did not take it up as a family affair. He was ill abroad when the gentlemen of the county began the business.
Mr. Cramptonthought that the Bill ought not to be passed without inquiry as to the existence of the inconvenience which it proposed to remove.
Mr. O'Connellthought that the transfer of the Court-house of Tullamore was necessary.
Mr. Henry Grattansaid that the removal of the Court-house was unnecessary.
Mr. Baringthought that, to prevent wranglings in that House on local and personal questions, the best course would be, to extend to Ireland the law, which in England leaves it to the Lord Chancellor and the Judges to determine where the Assizes should be held.
Mr. Robert Grantdid not think that
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there was any occasion for a Committee. The facts which were admitted showed the necessity of the removal.
The House divided on the Original Motion Ayes 50; Noes 38:—Majority 12.
The House resolved into a Committee; the Bill having been considered, the House resumed.

EXCHEQUER COURT (SCOTLAND).
The Lord Advocate moved that the House resolve itself into Committee on this Bill.
Sir William Raehad, on former occasions, opposed this Bill, and meant then to assign the reasons which would induce him to move, "that, no sufficient investigation having been made by the Select Committee into the regarding the Court of Exchequer proposed by this Bill, or any inquiries entered into respecting the matters contained in the special instructions given by the House on the 1st February, 1832, this Bill be again referred to a Select Committee." The House would perceive that by this Motion he meant to imply that the late Committee did not do its duty. The House was now called upon to make provision for the performance of the business done in the Court of Exchequer, Scotland. It was proposed that the duties performed by the Lord Chief Baron and Puisne Judge of the present Court, should, for the future, be executed by one of the Judges of the Court of Session, who should receive an addition of 600 l. a-year to his present salary, while the Lord Chief Baron was to obtain a retiring allowance of 2,000 l. This course was subject to the most serious objections. The Bill embraced two propositions, which required separate considerations; one to dispense with the services of the learned Judges in the present Court of Exchequer; the other to impose the duties of this Court on one of the Judges of the Court of Session. The latter consideration was of much more importance than the former, and the House ought not to consent to this change until after the most careful investigation. In the establishment of this Court, at the period of the Union, it was made a special provision that the Judge who presided in it should be an English barrister: and, since that time, an English lawyer had always been a member of that Court. Formerly, not only the Chief Baron, but all the Puisne Barons, were English lawyers. Two years ago be had the honour of submitting to the House a large measure of Reform in the Scotch judicial establish-

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ments, by which fifteen judicial offices were abolished, besides a multitude of clerks and inferior officers. These included the Jury Court, the Admiralty Court, the Consistorial Court, two Judges of the Court of Session, and two Barons of Exchequer. By this means a saving was made to the amount of between 20,000 l. and 30,000 l. yearly. At that time there were a Chief Baron, and three Puisne Barons in the Court of Exchequer; but, from the nature of the business transacted in this Court, it was thought that the Chief Baron, being an English lawyer, and one Puisne, being a Scotch lawyer, would be sufficient. It had appeared to him that considerable advantage would be derived from this change, and that it would be much better than getting rid of the Court altogether, and transferring the business to other Courts. He had considered that this was a Court regulated exclusively by English law; that the cases were always between the King and the subject; that, on the part of the prosecution, the proceedings were carried on at the public expense, aided by the talents of a Crown counsel, and supported by the testimony of persons generally interested in the result; while, on the part of the defendant, there was seldom anything but poverty, accompanied by the knowledge that, with the best defence, no expenses could be awarded. For such causes, a Judge of high station and character was indispensably required, and one fully versed in the English law; and in order to make provision for the occasional absence of such Judge and for the performance of the duties where a knowledge of Scotch law was necessary, one Puisne Baron, selected from the Scotch Bar, was also retained. In so far as regarded the administration of justice, this arrangement was admitted to have been perfect; it was fully discussed in that House, and met with the express approval of the present Lord Chancellor. The clauses respecting the Exchequer were submitted to Chief Baron Abercromby, and changes suggested by him were introduced; but no idea was ever expressed at that time of abolishing the Court. The Bill only received the royal assent in July, 1830; and in August, 1831, the present Bill made its appearance in the House of Lords. The preamble did not pretend that it was intended to improve the administration of justice, but only to save expense. It was a mere money bill; and its appearance excited the astonishment of every person connected with the
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law in Scotland. When he came down to the House, he had the utmost difficulty in finding out who had the charge of it. On the second reading of the Bill, his right hon. friend opposite, and the noble Chancellor of the Exchequer, both denied all knowledge of it; and, at length, he found that the management of the Bill was placed in the hands of the Attorney General for England. He proposed that the Bill should be referred to a Select Committee, and a discussion of two nights took place upon this question. The inquiry was resisted by all the hon. Gentlemen opposite, and, on a division, he was defeated, and the Bill was read a second time. The present Bill was subsequently introduced into Parliament. When his right hon. friend moved for leave to bring in this Bill, he (Sir W. Rae) asked whether an inquiry was to be allowed? The noble Lord, knowing what had passed before, said that he would not oppose an inquiry; nay, he went further, and said, that he himself would move for a Committee. This proceeding could not be objected to, although it was not consonant with the usual practice of the I louse; and it placed the appointment of the Committee, not in his (Sir W. Rae's) hands, who bad been anxious for inquiry, but in the hands of those who disliked inquiry, and had done everything in their power to prevent it. The noble Lord proposed the names of twenty-four persons to constitute a Committee, of whom eighteen were the direct adherents of the Government. The member for the county of Edinburgh subsequently proposed that four additional Members should be placed upon the Committee. The Government would only consent to the admission of two of that number, while they afterwards, without any intimation, caused another friend of their own—namely, the Member for the northern boroughs, to be added to the number. Seeing the manner in which the Committee was constituted, he thought it right not to trust the inquiry to their own discretion; and, therefore, he moved an instruction to the Committee to this effect:—That they do "inquire into the powers and duties of the Court of Exchequer, or how far there are other duties which might, with public advantage, be devolved upon that Court." The motion was agreed to, and the instruction was sent to the Committee. The Chairman proceeded to call the witnesses whom he thought necessary; and the first witness was the present Chief Baron of Scotland.

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It was, most likely, intended that the examination of witnesses should terminate with the evidence of the Chief Baron; but it was suggested that Sir Samuel Shepherd, who had been for ten years Chief Baron of Scotland, should be also examined, and he, accordingly, was sent for, and his evidence receive, as was also that of Sir Henry ardine. He had proposed that the head of the bar of Scotland, the Dean of the Faculty of Advocates, should be examined; but that proposal, as well as every other of a similar nature, was negatived; and there was not a tittle of evidence on the subject to which the attention of the Committee ought to have been directed. He must protest against this course of proceeding. The House was called upon to form a judgment upon the merits of this Bill, without having any information to guide it. The excuse for the conduct pursued by the Committee was, that the Bill was the chief matter referred to them, and being satisfied that it should pass, they were not called on to attend to the instruction. But of what use would it be for that House, in any case, to vote an instruction to a Committee, if such resolutions could be so contemned? The Committee, no doubt, had evidence respecting the abilities of the present Court, but with respect to the substitute for the performance of its duties, not one witness had been examined who could afford any information on the subject. But the House was not only called on to judge, without materials, on most essential points, but on very discordant testimony, in so far as there was any evidence. Any person who read the evidence of Sir Samuel Shepherd must see that he was strongly opposed to the appointment of a single Judge of the Court of Session to discharge the ditties of the Court of Exchequer. Without meaning any disrespect to the present Chief Baron, he could not for a moment put his opinion in competition with that of so eminent a lawyer as Sir Samuel Shepherd, who held the offices of Solicitor and Attorney General in this country, and would have been Chief Justice of England but for an unfortunate deafness, which disabled him from filling that station. His opinion was also entitled to more weight than that of the present Chief Baron, on account of his greater experience in the Court. Mr. Abercromby had held the office for hardly two years; whereas Sir Samuel Shepherd filled it for nearly ten years, and was intimately acquainted with the constitution and duties of the Court. If, again, the
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House was to look to which of these witnesses was the most disinterested, how could they be put in comparison? The present Chief' Baron was the person for whose accommodation this Bill was obviously intended. It had been prepared under his eye and direction, and he supported it by his testimony. Sir Samuel Shepherd had retired from public life, and could have no conceivable temptation but to give the most honest and true account of all he knew on the subject. If his evidence was to be relied on there was an end of the question, in so far, at least, as the proposed substitute was concerned. The business of the Court of Exchequer in Scotland was divided into two parts—the one, judicial, and the other Ministerial; and the Report Of the Committee suggested that the latter should be entirely removed to the department of the Treasury. Sir Samuel Shepherd, however, said, 'I think great delay would be created, that it would be absolutely necessary for the Treasury to have somebody in Scotland to inquire into particular and specific facts there. They could only have a re presentation on paper, the truth of which they have no means of inquiring into here.' And also, 'I thought it was a great advantage to Scotland—if I may use the phrase, at least to the poor people in Scotland—that they knew they had a tribunal to which they could offer their complaints, such as they were.' In these sentiments he (Sir W. Rae) fully concurred. If such a change should take place, it was evident that hereafter all would depend on the fiat of an inferior officer in Scotland, subject to all the influence that might be there brought to bear upon him. Even his answer could not be obtained without great trouble and expense. The poor people of Scotland, instead of at once going to the Court of Exchequer, and being there heard and dismissed, satisfied that they had obtained justice from a high and independent tribunal, must hereafter employ persons in London to ask redress at the Treasury; must wait, no one knew how long, for a deliverance proceeding from persons who could know nothing of the matter, and must be guided by the views of inferior Scotch officers. Again, what was to happen in regard to applications for money grants to Scotland? On these the Barons had hitherto been called to report. But where was the Government hereafter to find so able, so disinterested, so high-minded a quarter to which to apply for advice? The only alleged recommendation to all these changes was, a saving of expense.

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But was this saving quite certain? Sir Henry Jardine said, that as everything must hereafter be done by correspondence, more duty would have to be performed in his office, and more persons must be paid to perform it. Besides, the duty discharged in London would require additional officers. The Chief Baron even pointed at the necessity of a Scotch Lord of the Treasury. When these were added to the salary of the Judge who was to do the duty, he was convinced that the saving would be nominal, and not for a moment to be put in competition with the satisfactory administration of justice. After all, the Bill did not provide for the separation thus recommended, but left the whole duty, ministerial as well as judicial, to be performed by the Court of Session Judge. Why was this? Solely because the inquiries of the Committee were not such as to enable them to legislate on the subject, and because the real object in view was, to abolish the Court of Exchequer, as a matter of accommodation to the Chief Baron, without regard to what was afterwards to become of the business of the Court. In regard to the judicial duties, they were various, numerous, and important; but it was said, that the quantity of business before the Court had fallen off lately, and particularly within the last three years, and, in proof of this, reference was made to certain Returns produced before the Committee. Now, in the first place, these Returns were incomplete; they were confined altogether to the judicial duties, and did not include the ministerial, which were of considerable importance. The Returns formerly made to the Parliamentary Commissions, showed that, on an average of three years, these were numerous. But these Returns were inaccurate, and not to be relied on; they were not made from any record, but from statements furnished by attornies, and were totally at variance with other returns, which showed, that during the last three years there had been an increase instead of a diminution of the suits instituted in the Exchequer. One object of his Motion was, to investigate this important part of the case, and, if inquiry was granted, the alleged reduction would prove altogether fallacious. Doubtless the number of trials had recently been few, but that was owing to the practice of compounding every case of penalty, which was assuredly reprehensible. The whole statements as to the reduction of business, if inquired into, would be shown to be greatly exaggerated. It was obviously im-
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possible, with a revenue of 5,113,000 l., but there must be many actions, and they must all be tried according to the forms of English law; there appeared a strong reason for keeping up this Court. Further he proposed to examine evidence to prove that many important duties might be transferred to the Court. In the Minutes of the Committee now before the House it would be seen, that four classes of duties were proposed as meriting inquiry; and the Scotch Reform Bill had suggested a fifth, as the appeals from the sentences of Sheriffs regarding the qualification of voters, would be better referred to the Exchequer than to the Court of Session. These matters merited inquiry. If, however, for the sake of argument, it was to be admitted that the Court of Exchequer might be abolished, his right hon. friend was bound to make out this proposition, that one Judge of the Court of Session was the fittest person to discharge the duties which this Bill would impose upon him. But his right hon. friend could not propose that any of the six senior Judges of that Court should fill this office, being necessarily men above seventy years of age, and very ill fitted to commence the study of English Law. The appointment must, therefore, be limited to the five junior Judges, who, it was known, were so overloaded with business, that either an increase of their number, or an extension of the sittings of the Court was expected. But supposing the Judge to have time, was he otherwise qualified? How could he become possessed of the knowledge of English law which he was to administer? How could he direct a Jury in regard to a law of which he knew nothing—who was an entire stranger to the rules of evidence, and to the forms requiring to be observed; and where every term made use of must to him be altogether unintelligible? If his attention was to be exclusively directed to such proceedings no doubt in time he might become familiar with them; but, instead of this, his whole time was to be occupied in Court of Session duties, which were entirely foreign to those of Exchequer. But what was to be done if any of his near relations should be presented as debtors to the Crown, and he in consequence disqualified from judging? Again, how were his judgments to be reviewed, as in the event of a new trial being moved for? Surely these points ought to be looked to; and it ought to be considered whether Scotch forms might not be substituted for English; whether the whole Court of Session

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would not form a better tribunal than a single Judge; whether, at all events, two Judges of the Court, instead of one, would not constitute an important improvement on the proposed plan? On all these points he wanted a full inquiry, which was due to the importance of the question; due to the House, whose instructions had been contemned; and due to the country, in order that no suspicions might exist as to this being a measure for the accommodation of an individual rather than the good of the public. He might appeal to the course of his public conduct in proof that he was none of those who wished to retain any unnecessary judicial situations; and if the alteration proposed by the Bill should be proved expedient, he should be the first to vote for it; but, without full inquiry, he could not consent to the dismemberment of the most ancient supreme judicature of Scotland. He would move to leave out from the word "that" to the end of the question, in order to add the words—"no sufficient investigation having been made by the Select Committee into the changes regarding the Court of Exchequer proposed by this Bill, or any inquiry entered into respecting the matters contained in the special instructions given by this House on the 1st of February, 1832, this Bill be again referred to a Select Committee," instead thereof.
The Lord Advocatesaid, it must be apparent to the House that the scope of his right hon. and learned friend's motion was, to impeach the propriety of proceeding with this Bill upon the authority of the Committee which had considered the subject to which it related. His right hon. friend rested his case upon two grounds; first that the Committee adjudicated without doe inquiry; and, secondly, that this precipitation was aggravated by a contumacious neglect of the instruction of the House. He trusted he should be able to show that his right hon. and learned friend's objections were unfounded. The substance of this Bill was, prospectively to abolish the Scotch Court of Exchequer, now consisting of a Chief Baron and two Puisne Barons, drawing salaries amounting altogether to 6,000 l. a-year, and to transfer the small portion of business it had, to a single judicial person of very high rank and station; namely, a Judge of the Court of Session. It was matter of notoriety that there was not business performed by the Scotch Court of Exchequer sufficient to justify the maintenance of so expensive a tribunal. It
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must also be borne in mind, that his right hon. and learned friend, in 1830, led the way in that work, in reforming the Scotch judicature, in which he (the Lord Advocate, was a humble and very inefficient follower. It must be recollected how he abolished some Courts and curtailed others. The Consistorial Court he entirely did away with; the Admiralty Court (the only one in Scotland) he completely abolished; and the Jury Court, then consisting of four or five Judges, he annihilated, and transferred its duties to the Court of Session, from which he, at the same time, struck off two Judges. Nay, more: his unhallowed hand was stretched forth even against the Court of Exchequer—to reduce the number of its Judges from four to three; although the House was now told it must be field quite sacred. This extirpator—this slaughterer of ancient Judges—"bore no brother rival near his throne," and was offended when he (the Lord Advocate) humbly following in his track, attempted to gather gleanings in a field from which he had reaped so ample a harvest; and called out that it was an insult to Scotland for the House to sanction the course he (the Lord Advocate) had pursued. What were the facts? It was stated at the time, from certain documents before the House, that there was no business at all before the Court of Exchequer. His learned friend, the Judge-killer, who knocked the Admiralty, Commissary, and Jury Courts on the head—who dismembered the Court of Exchequer and Court of Session of a part of their Judges—did he think it necessary to have an investigation before a Committee ere committing all these slaughters? No such thing; but upon certain returns, he did lightly what he (the Lord Advocate) proposed to do solemnly. It was notorious that there was no business in the Court of Exchequer; and that statement was corroborated by the returns. It appeared by them, that for the last twenty years, there had not been above five or six defended cases in each year; that was, not quite one and a-half in each year; and in the latter part of that period, there had not been above four or five in each year, or one case in each Term. The number of undefended eases it, which, as was well known, a few witnesses were examined, ex parte, whose examination occupied no more time than was sufficient to convince the Judge, either that the defendant was innocent or had no case, was only seventeen in the

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course of the year. This, then, was the whole amount of the judicial business of the Court of Exchequer. His learned friend truly stated, that the Judges of the Court had some employment, also, as Lords of the Treasury; that was to say, as the Deputies of the Treasury in London, from which they received orders, and to which they made reports, and transmitted all they received. Now the Acts under which they transacted this business, provided that they should transact such business in the Treasury as they might be directed to transact by the Minutes of the Lords of the Treasury in London. Of course, then, as soon as these Minutes transferred their duties to others, their business in the Treasury ceased, and, in point of fact, he was informed that a considerable part of the Treasury business which they used to transact had been taken from them, and by Treasury Minutes transferred to other; and no difficulty would be experienced, in the whole of the Treasury business they had performed being transferred to others; for it could scarcely be made to occupy four days in the year. With respect to their judicial business, the Judge of the Court of Session, who would be appointed to it, would be able to dispose of it in four short sederunts. The returns showed that up to the present time, the judicial days of the Court of Exchequer had been eight or ten in the course of the year; and those only of three or four hours each. The Judges of the Court of Session never sat on a Monday; so that if the Mondays were taken, the whole of the Treasury business of the Court of Exchequer of Scotland might be done by the Judge of the Court of Session, to whom its judicial business might be confided, and all without trenching upon his other duties. But then his learned friend said, that the Court of Exchequer could have had other business added to that which it had at present to discharge. Now, every one of the witnesses was asked, whether the different additions to the duties of the Court which were suggested could be advantageously made, and they all answered in the negative. Certainly, the Committee was averse to seeking for pretences to keep this Court up, or it would not have been difficult to have got speculative individuals, who might by taking business from hence and business from thence, have made up a sufficient quantity of patch-work duty for the Court to discharge. He said, of
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patch-work duty; for it was remarkable, that neither as regarded the bankruptcy business, the adjustment of tithes, the duties performed by the Justices of the Peace, nor any other, was a suggestion made to transfer a whole branch of proceeding into the Court of Exchequer; the suggestions being for it to settle the accounts of one, or overlook a particular detail of part of the business of another Court, which did not want any such relief'. Having taken evidence which convinced the Committee that there was no pretence for keeping up the Court of Exchequer as a revenue Court, for it never had any general business (like the Court of Exchequer in England), the Committee came to the conclusion, also, that there was no foundation upon which to increase its jurisdiction—indeed, that it had no jurisdiction which could be extended—and that, if any were given to it, it would have to be created for the purpose. They under stood the instruction of the House to mean such an enlargement of its jurisdiction as would bring into the Court the same kind of business it already possessed. There were only two suggestions founded upon this principle. The first went upon the possibility of diminishing the number of compounded cases, and, by going through the Court with them, so to increase its business; the second was, to make the Judges go circuits. Upon the first subject, Sir Samuel Shepherd stated, that composition was not only an allowed practice in both parts of the island, but was necessary for the proper execution of the laws. The Committee, therefore, had no evidence before them to warrant a recommendation o a change in the present practice. With respect to a transfer of a part of the business done by the Justices of the Peace, the best law authorities in Scotland, including the Chief Baron, concurred in stating, that there was not the least reason to expect that the business would be better done in the Court of Exchequer, and that no dissatisfaction was felt at the manner in which that business was at present transacted. The whole evidence, therefore, with respect to the transfer to the Court of Exchequer of the only business bearing any analogy to that at present transacted in it, instead of being with, was against, his right hon. and learned friend. He would not enter further into details, but simply say, looking to the facts, that this was an unnecessary Court, and that to maintain it was a waste of the public money.

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His right hon. and learned friend seemed to think 6,000 l. per annum a very trifling sum; but, independently of the waste of this sum, they had the evil—if they kept up that Court—of maintaining several pieces of undue patronage, and of gilding sinecures with the name of judicial offices. His right hon. and learned friend said, that it was a great thing to have the benefit of the decision of a Judge of high character and rank—by which he meant with a high-sounding title—to adjudicate between the King and his subjects. He (the Lord Advocate) proposed to substitute for the Court of Exchequer, a Judge of the highest rank—a Judge of the Court of Session—the supreme civil tribunal of Scotland—a Judge as much entitled to, and as much possessing, respectful attention as any other Judge, whatever his denomination might be. It must be recollected, that this Judge would be a member of an efficient and important Court—that his judicial habits would be kept in perpetual exercise, his faculties sharpened by constant practice, which certainly could not be alleged to be the case with the Judges of the Court of Exchequer, who tried, perhaps, only one cause in the course of every half year, and whose faculties must become, to a certain extent, rusty. The business of the Judges was not of such a nature as to render it inexpedient to make this addition to their labours. The ordinary business of the Judges was for fifty-six days, and they commenced their sittings at eleven, and closed them at two or three. Any Judge might get through the quantity of business now transacted in the Court of Exchequer in the course of six days. He did not think, as was stated by his learned friend, that the necessary condition of pass-sing this Bill should be, that the Treasury business should be transacted in another way. He could not help feeling that the segregation of the business of the Court was most improper. He looked forward with some anxiety to the separation of the business, and if the plan now suggested was acted upon, all the other causes and suits which it would be necessary to determine in this Court would he not the work of twenty five or fifty days, but of only eight or ten days. At present, a great number of the cases connected with the revenue were heard and determined by the Justices of the Peace, to the satisfaction of the public. Forty-nine out of every fifty cases of this sort were finally and satisfactorily set-
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tled by the Justices of the Peace, although an appeal might be made from the decision of these justices to the Court of Session. But the truth was, that, for the most part, the interpretation of the statutes was so clear, that there could be little or no difficulty in applying them. It was on this account that the Justices were able in nine-tenths, or rather ninety-nine hundredths of the cases for determination, to give as satisfactory if decision as the superior Court. He must admit, that there was one part of the business of the Court which made it necessary that the Judge should he a Scotch lawyer. He meant that part relating to the preparation of the charters. There was, however, a provision in this Bill which would prevent any inconvenience on this account arising to the public from the abolition of this Court. As for the cases at Nisi Prius, it appeared that they might be got through in two days in the year, and surely, on this account, it was not worth while to keep up a Court with two Judges at enormous salaries. The House was, therefore, acting properly in getting rid of that which appeared to be a shameful, unnecessary, and extravagant expenditure of the public money. The right hon. and learned Lord, undoubtedly, did much in his bill for remodeling the Court, but he did not go far enough, and had left that behind him to do, which he (the Lord Advocate), on behalf of the Government, now had the honour of submitting to the House. The plan which he had to propose would be beneficial to the public; and to the administration of justice. Igor the reasons he had already stated, it was unnecessary again to send the matter to the consideration of a Select Committee; he, therefore, must oppose the motion of his right hon. and learned friend.
Mr. Pringlesaid, the speech of the earned Lord Advocate had been so discursive, and he had frequently wandered so widely from the true question before the House, that he (Mr. Pringle) should find it very difficult to follow him, without being led into discussions which would be out of in the present stage of the proceedings. The only question which they had to consider was, whether the Committee had exhausted the inquiry which was remitted to them by the House, and to that he should endeavour to confine himself. The learned Lord set out by complaining, that the scope of his right hon. friend's Motion was to impeach the conduct

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of the Committee. It was so. It was exactly the complaint that the Committee had not discharged the duty devolved upon it, and therefore, the motion was made to have the Bill recommitted. He charged the Committee with not only refusing to go through the case, and making a report on imperfect information, but of actually stifling inquiry. The Committee was called upon, first, to inquire whether, in all the circumstances of the case, the Court of Exchequer could be dispensed with; secondly, supposing it to be abolished, was the mode by which the Bill provided for the discharge of its duties, by transferring them to one Judge of the Court of Session, a proper mode; and, thirdly, would it not be more expedient to continue the Court of Exchequer, and add to it other judicial business, which was not at present provided for in the most satisfactory manner. The two first of these belonged to the very essence of the Bill. Unless they were satisfactorily and clearly made out, the Bill must be inexpedient, and ought not on any account to be passed by the Legislature. The third was also important, though less essential to the merits of the question. Of these three subjects of investigation, only the first was taken up by the Committee, and that very imperfectly; and as the necessity of inquiry was admitted, the Bill itself could not, on any ground, be justified without a full investigation. There were only three witnesses examined. The first of these was the present Lord Chief Baron of Scotland. The second, the late Lord Chief Baron, Sir Samuel Shepherd; and the third, the King's Remembrancer, Sir Henry Jardine. Of these, the evidence of the first was favourable to the Bill—that of the second decidedly against it, and from the third, perhaps, either party might gather something to countenance their views; but, upon the whole, it would be found substantially to agree with the evidence of Sir Samuel Shepherd. He feared he must not presume that many Members had taken the pains to peruse the whole of the Report. To such as had, he might confidently appeal, and ask them if their impression was not, that so far as the inquiry was gone into, the result did by no means justify the Report of the Committee. If, therefore, the House were to legislate upon such evidence as they already had, he should be justified in calling upon them to reject the Bill. He maintained that the inquiry was not
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exhausted, and ought again to be resumed. The question of the utility of the court even was not gone into. If the two principal witnesses differed, more testimony should have been brought up. There were other persons, such as the solicitors of Excise and Customs, the learned gentlemen who had filled the offices of Crown Counsel, and perhaps other persons connected with the Court of Exchequer, who could have given very important information, and probably knew a great deal more of the subject than a Judge who had not filled his office but for two years. In particular there ought to have been a very full investigation into the causes of the recent diminution of cases. The learned Lord had alluded to the practice of compounding, which might be one principal cause. Of this he did not complain to a certain extent; but he suspected that it had been carried greatly too far; and he wished that so responsible a faculty had been vested in the highest officers of the Crown, rather than inferior ones, as was the case in Scotland. He had never maintained, that the Court of Exchequer had full employment; but other duties might have been devolved upon it with advantage to the country. Not one witness had been examined who was competent to speak as to the propriety of devolving the duties of the Court on a lord of Session. It was true, as had been stated by the learned Lord, that questions relating to it were asked of the several learned persons whom the Committee examined; but both Lord Chief Baron Abercrombie and Sir Samuel Shepherd very properly answered, that never having had any practical acquaintance with the business of a Court of Session, they were not competent to answer these questions: neither was Sir Henry Jardine so bold as to offer any positive opinion upon a subject which was not within his range of experience; so there was no witness called before the Committee who really could give any sound information as to this part of the Bill. It was a very difficult question; he hardly pretended to form an opinion of it. Sonic of the difficulties had been pointed out by his right hon. friend, especially those of having questions of English law decided by a person who had never practised either as Advocate or Judge in an English law court, and the anomaly of appointing a single Judge to review his own decisions. If the Committee had not been willing to stifle inquiry, they ought to have examined some persons connected with the Court of Session. It was proposed to call

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the Dean of Faculty. A more competent witness, in every point of view, could not have been found, as he added to considerable experience in the ditties of a common counsel, which necessarily gave him much Exchequer practice, a thorough acquaintance with the Court of Session. What did the members of the Committee know of the Court of Session?—and yet, without any evidence before them, from any persons at all competent to give them information, they had presumed to pronounce an opinion on a matter which would occasion great anxiety to any Scotch lawyer who might be called to make up his mind upon it. The learned Lord had said, that many of the questions of law brought before the Court of Exchequer were questions which the Legislature had even committed to the Justices of Peace; but did he forget that the Justices of Peace had a line prescribed to them by all those statutes, from which they must not travel? Their duty was distinct and precise, and if they erred there was at present an appeal for redress to the Barons. But he was not going to stand out on his own opinion for retaining the Court of Exchequer in Scotland; all that he insisted on was, full and complete inquiry, which this Committee had refused to make. If the result of such inquiry should be unfavourable to the expediency of continuing the Court, and if he should find that proper means were provided for satisfactorily discharging its business, he should readily give way; but he could not discharge his duty to Scotland without insisting that justice should be done to her interests. The only argument for the change proposed was economy. The saving was not very large, but he was by no means insensible to the propriety of making even the smallest saving. He doubted very much whether, after all, it would prove any real saving; but let not the saving of expense be the only consideration. Scotland had a good claim that her business should be well done, and he entreated the House not to grudge her the means of securing this.
Mr. Huntsaid, the House had been engaged for upwards of two hours discussing this Bill; the object of which was, to get rid of an expensive Court of Justice, in which little or no business was done. It appeared that the Court of Exchequer in Scotland cost between 10,000 l. and 12,000 l. a-year, and that the average number of causes tried in this court in a year, did not exceed twelve; that was to say, that it cost the country at
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the rate of about 1,000 l. a cause. It was really surprising that any one should defend the keeping up the present Court. Allusions had been made to the able lawyers who had presided in this Court, and, among others, to Sir Samuel Shepherd, who, no doubt, was a very able man, and a very good lawyer; but he did not see why he should be sent to Scotland, as to a refuge for the destitute, and take from the country no less than 40,000 l. for doing nothing. He trusted that this Bill would pass, and they should hear no more of the Court of Exchequer in Scotland.
Sir George Clerkwas aware that this was not a question of any great interest to the majority of hon. Members, and he was not surprised at their extreme eagerness to come to a vote in favour of this Bill; but he could assure them that it was looked upon as a matter of considerable importance to the people of Scotland. He had been a member of the Committee up-stairs, to which the consideration of this subject was referred, and shortly after that Committee was appointed, he had felt it his duty to call the attention of the House to the constitution of that Committee, and the result had fulfilled the anticipations he then formed. He had proposed an addition of four or five hon. Members to this Committee, who had taken part in the discussions on the subject: his proposition, however was rejected. He had then stated, that many members of the Committee were not likely to feel greatly interested in the matter to be submitted to their consideration. This turned out to be the case; but the inquiry that took place before the Committee was not of that nature to throw any great light on the subject: and, although several Members were anxious that additional evidence should be called, all motions to that effect were rejected; and a Report was made, which was founded on a very narrow basis. For his own part, he thought it most inexpedient to abolish this Court, for there were various judicial duties in Scotland, which it could have performed, greatly to the advantage of the public. The Committee ought to have taken all these circumstances into consideration; but it was determined that this was unnecessary. He was convinced that the transferring the business of this Court to the management of one of the Judges of the Court of Session, would be attended with great public inconvenience. Much of the business of the Court of Exchequer in Scotland was diminished by the practice of

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compounding revenue cases, instead of bringing the parties before a Jury. He should content himself however with entering his protest against going into the present Committee, because, whether the measure was right or wrong, it was a case which ought to be inquired into; and the Select Committee had not done their duty in stopping that inquiry just at the point at which it was so essentially necessary to have the fullest information.
The House went into a Committee; and the clauses of the Bill having been agreed to, the House resumed.

PRIVILEGE OF PARLIAMENT (BILL).
Mr. Baring moved the Order of the Day for the second reading of the Privilege of Parliament Bill.
Mr. Lambertobjected to the House proceeding at that period of the night with a measure so important.
Mr. Lennardgave his hearty support to the Bill of the hon. Gentleman, so far as it went to take away a privilege which it was neither useful nor creditable to the House to retain. But he was disappointed that the Bill did not extend to Peers as well as to Members of the House of Commons. It ought to be made to do so. On all former occasions, when the House of Commons relinquished a privilege, the House of Peers did the same. It was well known that formerly Privilege of Parliament and of Peerage extended to the lands, the goods, and the domestics of Peers and Members of the House of Commons; by degrees these privileges had been restrained at the same time in the case both of Peers and Members. He thought that a similar course should be pursued on the present occasion; for he was sure, that so long as the present law of arrest continued, by which a poor tradesman might be dragged away from his family and imprisoned, no class of persons ought to claim an exemption, or be privileged to defraud his creditors with impunity. He hoped what he was saving would not be construed into any approval of the present law of arrest. He thought the present state of the law in that respect most objectionable, and he hoped that it would be soon changed; but while it was suffered to exist, he thought all persons ought to he equally affected by it. He therefore hoped the hon. Gentleman would consent to give his Bill greater extension, so as to include peers as well as Members of that House.
Mr. Huntwas astonished to find that
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the Bill only affected Members of that House, and if it went on he should move a clause to embrace the Members of the House of Peers.
Mr. Baringthought all objections to the details of the Bill should be reserved till it was in the Committee.
Mr. Ruthvenwould not oppose the second reading, but would certainly extend its application if he were able; otherwise the Bill would be partial and oppressive to the Members of that House.
The House divided:—for the second reading 38; Against it 4—Majority 34.
The Bill was then ordered to be committed.