Commons Sitting of 19 August 1836

MINUTES.
Petitions presented. By several Hon. MEMBERS, from various places, for Repeal or Poor Law Amendment Act.—By Mr. WAKLEY, from Harrington Mandeville, for Repeal of Newspaper Stamps.— By Mr. ANDERSON PELHAM, from Cranfield, for Common Fields' Inclosure Bill-—By Mr. HUME, from the Freeholders of the City of London, for the extension of the Twopenny Post throughout the Metropolis—By Mr. WAKLEY, from Newcastle-upon-Tyne, and Stoke-upon-Trent, for Repeal of Septennial Act. By Lord MORPETH, from various places, against Poor Laws (Ireland); and from Newry, against the sale of Spirituous Liquors by Grocers; and from Bately and Blackburn, against Factories Regulation Act; and from Myross and Castlehaven, for protection of Fisheries (Ireland); and from various places, against Turnpike Trusts Consolidation Bill; and from St. Paul and St. Nicholas, Dublin, for Relief.

CORPORATION OF LONDON.
Mr. Wilksbegged to ask whether the noble Lord, the Secretary of State for the Home Department, had yet been able to consider the state of the Corporation of the City of London, and to determine on any measure for its reformation? All the other corporate bodies in England of any importance had been reformed by the Act passed last Session; but the great and giant abuse of the Metropolitan Corporation remained unaffected by that measure.
Lord J. Russellwas understood to answer, that he could not prepare a Bill for that object before he received the Report of the Commissioners relative to that particular Corporation.

UPPER CANADA.
Mr. Humepresented a Petition from Mr. Charles Duncombe, Member for Oxford, Upper Canada, in the newly-elected Assembly, transmitted to him on that morning by the petitioner, who had come to this country to represent to his Majesty and the House the dreadful state of affairs in the colony. If the statements made in the Petition could be substantiated, as he believed they could be, it was impossible that Government could allow Sir Francis Head any longer to retain the office of Lieutenant-Governor in Upper Canada. The petition complained of unconstitutional outrages on the electors, sanctioned by Sir F. Head, and those under his immediate control, for the purpose of obtaining a majority in the new House of Assembly. It complained of the new patent votes created by Mr. Ritchie, Government agent for the sale of land, who had given grants of land gratis
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to many persons, for which those individuals immediately voted. It stated, that at several places the reforming candidates had been driven from the hustings by bands of Orangemen, armed with clubs and knives. By these, and many other unconstitutional acts, encouraged by the Governor, the reforming electors had been overpowered, and deterred from exercising their franchise. The petitioner concluded by praying the House to adopt such measures as should give justice to the people of Upper Canada. The hon. Member said, that if the Session had not been at its close, he should have proposed the immediate appointment of a Committee to inquire into the outrages and insults thus offered to the inhabitants of the colony. He trusted, that Government would not refuse the request which he now made, that they would direct one or more of the Commissioners of Inquiry into the state of affairs in Lower Canada to proceed to Upper Canada, and put them in possession of the real facts of the case. It had been declared, that Sir F. Head was acting under the directions of Government; but he should be glad to know if Government would sanction the conduct with which he was charged. He was unwilling to believe that the allegations could be true. He hoped that Government would see the necessity of doing justice to the people of Upper Canada, and that some inquiry would be made into the facts stated in the Petition.
Sir George Greybegged the House to consider on what foundation the charges rested which the hon. Member wished to be investigated. Sir Francis Head had dissolved the Assembly of Upper Canada, in consequence of its refusal to grant the means of carrying on the Government. The result of this appeal to the people was, that a majority of Members had been returned to the new Assembly differing in opinion from the majority of the late House. A gentleman, avowing himself to be a member of the defeated party, though himself a successful candidate, immediately after a contested election, which the House knew was always conducted with circumstances of acrimony which it would be better to suppress, smarting under the consciousness that his party had been beaten, came forward and made allegations respecting the conduct of the Lieutenant-Governor and other authorities in creating illegal votes, and exercising im-

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proper influence, which ought unquestionably to have been made in the House of Assembly, as affecting the validity of the elections to that body, and which, if substantiated before a Committee of that House, might have reversed the state of parties in it, and saved himself the trouble of making a long voyage, to make a statement to a tribunal at an immense distance from the evidence which must necessarily be adduced in order to the investigation of the facts. Sir F. Head, he believed, considered himself strictly bound to act according to his instructions, and had always so acted. Nothing could be more contrary to his instructions than conduct like that of which he stood accused. While acting as representative of his Sovereign, it was his duty to allay the violence and conciliate the differences of contending parties, instead of exciting them to mutual animosity. With regard to the specific charge of the creation of illegal votes, he could not deny it, except on these general grounds, as he now heard it for the first time. He asked the House not to believe the truth of the charges against Sir F. Head, and not even to grant the request that a tribunal should be appointed to inquire into them, as that would be, in point of fact, to condemn him. Where charges were made against a governor, it was always the custom of the Colonial-office to give him an opportunity of seeing them before passing any opinion on his conduct. To that extent only could he promise that an inquiry should take place, and to that extent justice to Sir F. Head required that it should be made. He could not but complain that the petition had not been intrusted to him, as it might have been, but should be brought forward on the last night of the Session, when mouths must necessarily intervene before Sir F. Head could make any reply to the charges preferred against him. He hoped that the hon. Gentleman did not really give credit to the accusation, and had only presented the petition for the sake of an inquiry.
Mr. Humebelieved the charges in a great measure true, though not to the extent stated in the petition. He could not be satisfied with an inquiry by any subordinate tribunal, under the circumstances in which the colony of Upper Canada was placed.
Mr. G. F. Youngthought the course taken by the hon. Member for Middlesex
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in bringing the charges before the House of Commons was most unfair and unjust. If the allegations of the petition were true, the elections to the House of Assembly were vitiated by the law of Upper Canada. It was most unfair, when the charges might be brought under judicial investigation in the proper place, to prejudice the public mind by statements made at a great distance from the colony to which they related, at a time when it was quite impossible to institute an inquiry into them.
Mr. Robinsonobserved, that the petition was completely ex parte, and that if the allegations contained in it were in any degree true, there was a remedy for the evils complained of in Canada itself. He believed that Sir F. Head was quite incapable of the misconduct which the petitioner imputed to him He could not help deprecating the presentation of a petition containing such serious charges just before the prorogation of Parliament, when the party against whom the charges were made could not for a great length of time have an opportunity of replying to them. Was it likely, he would ask, if the charges contained in this petition were true, that they should escape the notice of all but one individual, or rather was it not more likely that, if they really were true, the table of that House would be covered by petitions from the people of Upper Canada?
Mr. Warburtonlooked upon the petitioner as representing the opinions of a large number of the people of Canada. If the facts contained in the petition were true, they ought to be investigated. He would not go the length of saying that Sir F. Head was incapable of being guilty of the charges brought against him, but those charges ought to be inquired into, and if Sir F. Head were guilty, he certainly would deserve to be impeached.
Petition laid on the table.

CHURCH-RATES.
Mr. Harvey, on the first Order of the Day being moved, rose to put a question to the noble Lord, the Secretary of State for the Home Department, which he hoped would receive an answer from the noble Lord. It was upon a subject of growing interest and importance, upon which some recent explanation had been given — he meant Church-rates. The feelings which the Dissenters entertained on this important subject would be best illustrated by read-

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ing the resolutions which a meeting of that body had recently passed in the county of Suffolk. They, on that occasion, passed certain resolutions, one of which was to the effect, that his Majesty's Ministers, by suffering the present Session to close without coming to some satisfactory settlement of this question, had disappointed the just hopes of their best friends—that the late declaration of the noble Lord, as to his future intention of proposing a measure which he did not think would be satisfactory to the Dissenters, and which they believed would merely effect a commutation of the present Church-rates, had caused much alarm; and that a memorial be presented to his Majesty's Government, to remonstrate with them on their conduct towards the Dissenters, and to express their determination not to submit any longer to the infliction of Church-rates. These resolutions, which were adopted at a numerous and respectable meeting sufficiently bespoke the feelings of the Dissenters upon this subject, and he had been requested to inquire whether it was the intention of his Majesty's Government to abolish Church-rates altogether, or whether it was intended to effect a commutation of them, and whether they would be paid out of the revenues of the Church itself, or whether they would call upon those who did not belong to the Church to pay its expenses? He could state this as a fact, that the Dissenters were not more anxious for the extinction of Church-rates, than that a substitute for them should not be found out of the Consolidated Fund.
Lord John Russelldid not think that it was his duty at present to state the nature of the measure which he should have to submit to the House on this subject. That was the only answer he could give to the hon. Gentleman's question.

PRISONERS' COUNSEL BILL.
On the Order of the Day being read, for taking into consideration the amendments made by the House of Lords in this Bill,
Lord John Russellsaid, that the differences which had arisen between the two Houses, with respect to this Bill, were not differences with regard to the principle of allowing counsel to prisoners in cases of felony. This was a very great and important principle, for urging which, and persevering in urging it, on many oc-
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casions, the hon. and learned Member for Liverpool (Mr. Ewart) deserved the greatest credit with that House and the country, and on that important principle which, in cases of felony, allowed counsel to prisoners, as in cases of misdemeanour, the two Houses were in accordance. There was, however, another question put forward by this Bill—namely, whether or not the counsel for the prisoner should have the last word? Upon this subject he must say, that he agreed with the Bill as it had been sent up from the House of Commons, as he thought that, if a second speech were allowed to be made by counsel on behalf of the prosecution, there should be a second speech on behalf of the prisoner. But he thought there was a difference on this question, as it was originally mooted, and that it involved other and separate considerations, and ought to be treated separately. The practice of allowing prisoners counsel in cases of high treason, and misprision of treason, had existed since the year 1688, when it was adopted, on the ground that prisoners, in such cases, were exposed to a powerful prosecution, which rendered it necessary that they should be defended by counsel. This principle was contended for and established, after some differences between the two Houses. He believed, that the practice then established was, that if the counsel for the accused person called witnesses, and the counsel for the prosecution relied on the testimony he had brought forward, there should not be an answer on the part of the prisoner. This, he believed, was the case in cases of high treason. Therefore, if they admitted, as they did, in their last amendment, that in cases of high treason and misprision of treason, the counsel for the accused should not be allowed two speeches, there was no reason why they should have more than one in cases of felony. This question required a good deal more consideration, and though he was in favour of the original Bill, as sent up by the Commons, yet this principle might be separated from the Bill, and form matter of subsequent deliberation. He might state that he had received a letter on this subject, from the Lord Chief Justice of the King's Bench, Lord Denman, in which that noble Lord had stated, that it was a question of considerable anxiety as to the way in which this practice should be brought to a settlement. He would not go into his noble and learned Friend's rea-

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sons, but he could certainly state, as a summary of his opinion, that his noble Friend considered this a separate question, and one which required great deliberation. He did not think the enactment of any particular practice, supposing it to be much better and more just, formed part of the Bill which allowed counsel to prisoners in cases of felony. Lord Denman had always been the advocate, in that House and elsewhere, of the principles of this Bill, and it was his well-known opinion, that it was most desirable that prisoners, in cases of felony, should have the benefit of counsel. Those opinions, that noble and learned Lord had maintained, at a time when they were much less generally entertained than at present. Of the same opinion was his hon. and learned Friend the Attorney-General, and of the same opinion also was the Solicitor-General. With these opinions, therefore, he thought himself justified in coming to the conclusion, that he would be acting advantageously to the country upon the whole, in taking this Bill, without insisting upon those clauses to which the House of Lords had disagreed. Those clauses would form matter for future deliberation. For the reasons he had stated, he should conclude by moving, that a message be sent to the House of Lords, to inform them that this House did not insist upon disagreeing to the amendments made by the Lords in this Bill.
Mr. Ewartreminded the House that the Report of the Commissioners strongly recommended that the prisoner should be allowed the last word. The reasons stated by the Lords for insisting on their amendments were most inconsistent. Although he considered it of the highest importance that the prisoner should have the last word, yet, as there were many valuable principles in this Bill, he would be sorry to reject it. He could, however, assure the House that he would not fail to press the principle of allowing the prisoner to have the last word, in a future Session of Parliament.
Motion agreed to.

STANNARIES COURTS BILL.
The Solicitor-Generalmoved, that the House agree to the Amendments made by the Lords in this Bill.
Mr. Freshfield: Sir, I agree with my hon. and learned Friend and Colleague, that some of the alterations made in the
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Bill, and which we are now called upon to consider, are not improvements; but I cannot agree with him in thinking that there are others which deserve our approbation. I think the clause introduced to confirm the jurisdiction in equity as exercised by the vice-warden, has been most injuriously interfered with; and I am at a loss to account for, and still more to justify, the changes it has suffered. My hon. and learned Friend is disposed to consider the appeal to the House of Lords from the decisions of the Stannary Court as an improvement; but I regret to be compelled to differ from him. It has been the policy of the very few persons, who in private have excited an opposition to the Bill, to withdraw as much as possible of the proper business of the court from its jurisdiction, and at least in the same proportion to increase the expense of the machinery for the administration of justice. Thus, while the opponents of the measure would confine the subjects of litigation to matters of small importance, they have succeeded in introducing an ultimate appeal to the highest judicial tribunal; not to substitute the House of Lords for the Court of Appeal, originally provided by the Bill—namely, the Lord Warden, assisted by three members of the Judicial Committee of the Privy Council—but, retaining that appeal, they have added an appeal from that tribunal to the House of Lords; so that a litigious (and still more if he be a wealthy) man may harass and oppress his opponent, by carrying him through these expensive and dilatory Courts of Appeal, at a cost greatly exceeding, in ninety-nine cases out of a hundred, the object to be attained. Sir, I feel this objection so strongly, and I have so much confidence in the justice of the other branch of the Legislature, that I should resist this amendment if there had been time to enter into explanations upon the subject; but my justification with. those respectable individuals in Cornwall, deeply interested in the objects of this Bill, for now submitting to an alteration so objectionable must be, that the known discretion of the House of Lords, and its just discrimination between fair subjects of appeal and those of a frivolous and vexatious character, afford the strongest reason for believing that the conduct of litigious persons will be restrained by the habit of making them subject to the payment of exemplary costs where the power

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of appeal is improperly used; and thus the vice of the provision will be cured by the soundness of the practice. The new clause, which stands Section 8 in the print I now hold in my hand, is conspicuously objectionable. It proposes to confer upon the vice-warden a power to grant new trials, which could not be necessary, as it must be incident to the authority of the sole judge in a court of record to consider the question not ripe for a final decision until an effective trial has taken place, and therefore to subject the question to one or many inquiries before the jury, until that end is attained; but this unnecessary provision is followed by serious and extraordinary circumstances, as the same clause provides that the orders of the vice-warden upon an application for a new trial shall be subject to such appeal as in the Act is before provided, as to other decrees, orders, and acts of the vice-warden. In other words, the party against whom the vice-warden may have awarded a new trial to take place, or the party to whom he may have refused to grant a new trial—that is, the unsuccessful party—will have a right to argue before the Lord Warden and three members of the Judicial Committee of the Privy Council, the propriety of the vice-warden's decision; and whatever may be the determination of that Court of Appeal, the defeated party may proceed to a second appeal before the House of Lords, not upon the merits of the case—not upon the extent of justice to which the respective parties may be entitled—but upon the mere question, whether a new writ shall or shall not take place; a novel question, surely, for the Privy Council and for the House of Peers. The same clause contains a power to the vice-warden to send a Nisi Prius record from his own county, under special circumstances, to be tried before the Judges of Assize for the county of Devon. I cannot say that such a provision appears to me very well supported in point of precedent, and not very complimentary to the judges of the superior courts. But I will not dwell upon this, or the injury done to the 6th Clause, the sense of which is destroyed; nor upon other alterations which, in my opinion, fail to effect the purposes intended by the framers. I repeat, that with more time before us, I would not recommend the House to accept the Bill in its present state; but seeing the impossibility of ob-
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taining any re-consideration of the subject, and at the same time having the deepest conviction of the necessity of re-establishing the Stannary Courts—of bringing within their jurisdiction, by express provisions, other metals and metallic minerals, in addition to tin; and believing that the great proportion of the landed proprietors and miners of Cornwall are strongly in favour of a local tribunal for the decision of questions affecting their interest, and especially for the means of compelling co-adventurers to do justice, as between themselves; and considering how very few persons are opposed to the Bill, I cannot hesitate, notwithstanding the defects I have pointed out, and of others not detailed, to support the motion of my hon. and learned Friend and Colleague, "That this House do agree to the Amendments made by the Lords."
Motion agreed to.

COUNTY ELECTIONS.
On the Order of the Day being read for taking into consideration the amendments made by the Lords in this Bill.
Lord John Russellsaid, that very considerable alterations had been made in the Bill. The House of Lords had struck out the clause which limited the time for keeping the poll open to one day, which was one of the main points of the Bill. He did not apprehend that any great advantage would be derived from the Bill as it stood at present, but he was willing to profit by any good the other House chose to consent to, and he would therefore move that the House agree to the Lords' amendments.
Mr. Thomas Duncombehoped that the noble Lord would not consent to receive this Bill. They had sent up a Bill for one purpose, and the Bill, as it had been sent back, effected a very different purpose. The alterations made by the Lords would render the county elections more expensive than before.
The Chancellor of the Exchequerthought, that the effect of the Bill would be to shorten the duration of elections.
Sir G. Stricklandwas of opinion that the Bill ought to be rejected.
The House divided:—Ayes 50; Noes 26: Majority 24.

List of the AYES.

Alston, R.

Bernal, R.

Beckett, rt. hon. Sir J,

Biddulph, R.

Bentinck, Lord G.

Bonham, R. F.

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Burrell, Sir C.

Pigot, R.

Byng, rt. hon. G. S.

Reid, Sir J. R.

Chapman, A.

Rice, rt. hon. T. S.

Chetwynd, Captain

Richards, R.

Codrington, C. W.

Robinson, G. R.

Donkin, Sir R.

Rolfe, Sir R. M.

Elley, Sir J.

Ross, C.

Fergusson, rt. hn. R.C.

Russell, Lord J.

Freshfield, J. W.

Seymour, Lord

Goulburn, Sergeant

Smith, B.

Hamilton, G. A.

Steuart, R.

Hoskins, K.

Stormont, Viscount

Labouchere, rt. hn. H.

Stuart, Lord D.

Lennox, Lord G.

Thomson, rt. hn. C. P.

Lincoln, Earl of.

Trench, Sir F.

Lowther, J. H.

Twiss, H.

Lynch, A. H.

Vere, Sir C. B.

Mackinnon, W. A.

Wall, C. B.

Methuen, P.

Yorke, E.

Morpeth, Viscount

Young, G. F.

Neeld, J.

Palmerston, Viscount

TELLERS.

Pelham, hon. C. A.

Maule, hon. F.

Philips, M.

Brotherton, J.

List of the NOES.

Aglionby, H. A.

Pattison, J.

Angerstein, J.

Ponsonby, hon. W.

Bagshaw, J.

Potter, R.

Browne, R. D.

Robarts, A. W.

Chalmers, P.

Smith, R.V.

Ewart, W.

Thompson, Colonel

Fitzroy, Lord C.

Vivian, J. E.

Hawkins, J. H.

Wakley, T.

Hector, C. J.

Warburton, H.

Hume, J.

Wilks, J.

Humphrey, J.

Williams, W. A.

Leader, J. T.

Lennard, T. B.

TELLERS.

Loch, J.

Duncombe, T.

O'Ferrall, R, M.

Strickland, Sir G.

Amendments agreed to.

COMMON FIELDS' ENCLOSURE BILL.
The Solicitor-General The Solicitor-General moved that the amendments of their Lordships to this Bill be taken into further consideration.
On the question that Clause 55 be agreed to,
Mr. Potter Mr. Potter moved that the word five in the clause be struck out, and the word ten be substituted. The clause would then stand thus: that nothing in the Act should authorise the enclosure of any open or common fields being within ten miles of the city of London, or of any open or common field within one mile of any city or town containing 2,000 inhabitants, or within a mile and a half of any city or town containing 5,000 inhabitants, or within two miles of any city or town containing 10,000 inhabitants; or within two miles and a, half of any city or town con-
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taining 20,000 inhabitants; or within three miles of any city or town containing 50,000 inhabitants; or within five miles of any city or town containing 100,000 inhabitants. The number of inhabitants being ascertained by the last Parliamentary census, and the distance measured from the town-hall, cathedral, or church of such place, as the case may be.
The House divided on the original question.—Ayes 51; Noes 6: Majority 45.

List of the AYES.

Aglionby, H. A.

Mackinnon, W. A.

Alston, R.

Murray, rt. hon. J. A.

Angerstein, J.

O'Ferrall, R. M.

Bagshaw J.

Palmerston, Viscount

Beckett, rt. hon. Sir J.

Pelham, hon. C. A.

Bentinck, Lord G.

Philips, M.

Brotherton, J.

Ponsonby, hon. W

Burrell, Sir C.

Rice, rt. hon. T. S.

Byng, rt. hon. G. S.

Richards, R.

Chalmers, P.

Robarts, A. W.

Chapman, A.

Robinson, G. R.

Chetwynd, Captain

Rolfe, Sir R. M.

Codrington, C. W.

Ross, C.

Duncombe, T.

Russell, Lord J.

Elley, Sir J.

Smith, R. V.

Etwall, R.

Smith, V.

Fergusson, rt. hn. R.C.

Stanley, E. J.

Fitzroy, Lord C.

Steuart, R.

Freshfield, J. W.

Stormont, Viscount

Gordon, R.

Strickland, Sir G.

Hawkins, J. H.

Wakley, T.

Hector, C. J.

Warburton, H.

Humphrey, J.

Wilkes, J.

Lennox, Lord G.

Young, G. F.

Lincoln, Earl of

TELLERS.

Loch, J.

Maule, hon. F.

Lowther, J. H.

Seymour, Lord

List of the NOES.

Cave. R. O.

Williams, W.

Ewart, W.

Hume, J.

TELLERS.

Lennard, T. B.

Potter, R.

Thompson, Colonel.

Leader, J. T.

The amendments of the Lords agreed to.

SPAIN.
Mr. Mackinnonwished to ask the noble Secretary for Foreign Affairs whether the statements which had appeared in the morning papers were correct, that the Queen of Spain had been forced by a military insurrection in Madrid to swear, or to declare, her allegiance to the Constitution established in 1812, whereby the Chambers of Peers and of Deputies were abolished, and the Cortes were established? He begged leave to ask whether, in case those statements were correct, the noble

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Lord had received any other information, which he deemed it consistent with his duty to communicate to the House?
Viscount Palmerstonsaid, that he had that morning received a despatch from Mr. Aston, our Chargé d' Affaires at Paris, informing him that a telegraphic message had arrived at Paris from Bayonne, announcing that the Queen-Regent of Spain had accepted the Constitution of 1812. Telegraphic despatches, as the hon. Gentleman well knew, were very concise, and thus he had nothing further to communicate.
Subject dropped.