Commons Sitting of 5 March 1840

MINUTES.
Bill. Read a first time:—Union Workhouses. Petitions presented. By Mr. Broadley, from Hendon (York), against the Inland Warehousing Bill.

FOREIGN POSTAGE.
Mr. Fitzroywished to put a question to the right hon. Gentleman, the Chancellor of the Exchequer, on the subject of the new postage regulations. He found that if a letter were sent to Dover, it was charged a penny; but if the letter were sent to Paris, the postage as far as Dover was charged as formerly, 10 d. He wanted to know the reason for this distinction. Again, he found it was allowed, if he posted the votes of the House, and put his name on the cover, that they went free; but if he absented himself from London, he could not receive them postage free. Now he wished to ask whether Members would be allowed to receive the votes alone free from postage?
The Chancellor of the Exchequersaid, that the hon. Gentleman was quite correct in stating that the home postage to Dover was a penny, but the postage on a foreign letter was fixed under a treaty, and by that treaty the postage to Dover was 10 d. The subject of the foreign postages had not escaped the attention of the Government, and more especially with regard to France, with whom we were now in negotiation, the object being to obtain from foreign governments a reduction in their rate of postage.
Mr. H. Fitzroybegged the right hon. Gentleman's pardon, but he had misapprehended the purport of his first question. His question did not relate to the rate of postage on the other side of the water, but to the charge to and from Dover in this country, and he saw no reason why the same rate should not be paid in all cases.
The Chancellor of the Exchequerre-

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plied, that this was just what he did not want to do. His object was to have something to give the French government in return; and both governments were now in a friendly way settling what reductions should be made. With regard to what the hon. Gentleman had stated respecting the transmission of the votes, he should be very glad if he could find any one who would enter into an inquiry upon the subject with him, to whom he could explain the reasons for the regulations which had been adopted; but he was sure that when the privilege of franking was given up, it was never intended that it should be renewed for the benefit of that House alone.
Subject dropped.

APPOINTMENT OF MR. STEVENSON.
Lord G. Somersetrose to move for certain papers relating to the appointment of Mr. Stevenson to the offices of commissioner of Arbitration, and commissioner of Excise; and in so doing said, he would briefly explain the reasons which had induced him to call for those papers. He was well aware that the motion he was about to submit to the House was not one involving great pecuniary considerations; it went rather to an inquiry into the inefficient and improper system under which the revenues of this country were conducted, than to any specific amount. It involved questions of a serious nature, touching public economy and public justice; and if he was correctly informed, the course which had been followed in respect to the case referred to in the papers, was so contrary to all the rules which had been laid down by the House and other authorities, and to all the practice recommended by every commission of inquiry into these subjects, that he felt it very difficult to bring himself to believe it. Indeed, if he had not heard from the right hon. Gentleman, the Chancellor of the Exchequer himself, that Mr. Stevenson had received a salary, both as commissioner of Excise, and a commissioner of Arbitration, the statement would have appeared quite incredible to him. As far as he understood the facts of the case, they were these:—For about two years Mr. Stevenson had been engaged in both offices, and for a portion of that period he had received the salaries of both these offices. When the commission of Arbitration was first appointed, it consisted of five unpaid, and three paid commissioners; they were Gen-
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tlemen connected with official business, and very competent for the duty they had to discharge, which was a most important one, the apportionment of the 20,000,000 l. of money granted as compensation to the proprietors of slaves in the West Indies for their liberation. They were armed, therefore, with large powers; in fact, they were placed more in the position and authority of judge and jury than any other commission. He intended to make no complaint of the manner in which they had performed their task; he believed that they had given general satisfaction, and he had not one word to say against their decisions. The three paid commissioners were Mr. Lewis, Mr. Elwin, and Mr. Stevenson, up to the latter end of the year 1838, when one of the Gentlemen, Mr. Stevenson, was appointed a commissioner of Excise. It was natural to suppose that he would, on receiving that appointment, have taken his farewell at the board of Arbitration; but that did not turn out to be the fact. In the month of October, 1838, Mr. Amyot, who had hitherto been unpaid, received an intimation that he was to be a paid commissioner; and it was understood that Mr. Stevenson, whose removal had made the vacancy for him, received the fraction of salary due to him as commissioner of Arbitration. Subsequently, however, the appointment of Mr. Amyot, which had never been officially announced, it was believed, was recalled by Lord Glenelg. Last winter it happened that a sudden stoppage of the payment of the salaries of those gentlemen took place, and some inquiry took place, which led to the knowledge of the fact that Mr. Stevenson was to receive the whole year's salary, from October 1838 to October 1839, as commissioner of Arbitration. So that, in point of fact, he was in the receipt of 1,200 l. a year as commissioner of Excise, and 1,000 l. a year as commissioner of Arbitration, contemporaneously. Now, if rumour could be depended on, the right hon. Gentleman opposite had taken the same view of this subject as he did, and had made the most vigorous, though ineffectual, efforts to withstand the pressure put on him, to make him allow Mr. Stevenson the additional salary of 1,000 l. It was a fact admitting of no sort of dispute, that the duties which Mr. Stevenson had to discharge were duties of a judicial nature. They consisted in determining legal questions—they consisted in the examination of witnesses—they consisted in balancing the value of separate pieces of evidence, do-

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cumentary, and other. This statement was not founded upon mere matters of opinion, or matters of conjecture; they were simple statements of facts, notorious in every quarter where the affair in question had ever become a subject of interest. Now, he wanted to know how any one could discharge such duties as those, and be at the same time constantly absent from that place, and that only place at which they could be discharged? It might as well be said that the judges of the courts at Westminster could walk in and walk out while an important legal argument was going forward, as that any person efficiently and properly discharging the duties intrusted to Mr. Stevenson, could be as frequently, and for as long periods, absent, as that gentleman was well known to have been. How could it be otherwise, seeing that he at the same time filled the office of a commissioner of Excise? If the services of Mr. Stevenson were so exceedingly valuable as a commissioner of Arbitration, why was he not kept exclusively to that office? Why was his time taken up, and his attention diverted, by the duties which belonged to the Board of Excise? He begged the House to consider the hours of attendance given at the places where Mr. Stevenson, according to the prescribed rules and regulations of his two offices, was bound to be present. In the first place, the hours of attendance at the Excise-office were from ten o'clock in the morning till three in the afternoon: secondly, the attendance at the office of the commissioners of arbitration was to be from eleven o'clock till four; the House then must see the obvious incompatibility of the two offices. If, as he had already said, the services of Mr. Stevenson were of such high importance in the one, why was he appointed to the other? It was clear that no person could, at one and the same time, discharge the duties of both. No man would attempt to say that the commissioners of Arbitration ought at any time to be absent from their posts. Was the right hon. Gentleman opposite, (the Chancellor of the Exchequer) prepared to assert that the Commissioners of the Excise had no duties to perform—was it not, on the contrary, a matter well known to the generality of the Members of that House, that the duties of the Board of Excise were peculiarly onerous? He need hardly observe, that it would be impossible for Mr. Stephenson to attend to both places at once; and it was equally unnecessary for him to say, that no Government had openly, at least, sanctioned such
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a combination of obviously incompatible situations. In the year 1833 the Board of Treasury expressly pronounced an opinion adverse to such a practice, and at the same period stated the ground upon which the salaries of the Commissioners of Excise were fixed at so high a rate, viz. the onerous nature of the duties which they had to perform. It might be liberal remuneration for a gentleman who held two offices, to receive for one 1,000 l. a year, and for the other 1,200 l., but the question was, how could he discharge the duties of both? There was rather a curious point connected with this subject, to which he should now take the liberty of directing the attention of hon. Members. The commissioners of Arbitration were, as the House knew, appointed under an Act of Parliament. Had the Board of Treasury attended to the express provisions of that act, the grounds of complaint upon which he rested his motion would, in all probability, not have arisen. If they had carried out, as they ought to have done, the provisions of that act, one very remarkable feature would be removed from the present case: the act declared, that annually an account should be rendered of the expenses incurred under the authority of that act. Now, no such account had, in the present instance, been rendered. He should not say, that the account was withheld for the purpose of effecting any such object as that which he now made the subject of complaint, but this he would say, that if a job were intended, nothing could be more favourable to its accomplishment than the circumstance of the account never having been furnished. He again would say that he imputed the absence of the account to no such motive, but nevertheless, he could not help noticing it as exceedingly suspicious; he did not accuse her Majesty's Government of withholding the account for the purpose of perpetrating the job, but he did accuse them of not complying with the clear and distinct provisions of the Act of Parliament, which had immediate and direct reference to the matter in question. The provision to which he had alluded, had been introduced for the purpose of checking the evil of which he then complained; the act regulated the salaries of the commissioners of Arbitration; it required that an account should be produced, and yet no account had ever appeared; the provisions of the act would, if they had been complied with, have prevented practically the payment of the double salaries. He could not help very much regretting that Mr. Ste-

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venson should ever have been induced to accept the second situation; it would have been much better if he had never taken the additional salary; but he hoped that this would be the last instance of one individual holding two offices so manifestly incompatible. As regarded the Board of Treasury, he could not but consider their conduct in this matter as a monstrous dereliction of duty. A great fault had been committed by the Board of Treasury, a great want had been betrayed on their part, of a disposition to prevent the needless expenditure of the public money; but there was more than that, there was an evident and undeniable disobedience of an Act of Parliament. If, when he had done, the right hon. Gentleman opposite, the Chancellor of the Exchequer, should get up in his place, and tell the House that the whole accusation originated in, and was founded upon, a mistake, then he should reply, that the mistake must have arisen from the fault of the Board of Treasury—that fault being, their not having complied with the terms of the Act of Parliament. The Commissioners of Excise were bound to dedicate their time to the service of that department; all the time and attention which they could give to it, consistently with a reasonable care of their private affairs, and a fair allowance for recreation, the whole of their thoughts and exertions ought to be given up to the duties of their office; yet it was presumed that Mr. Stevenson had a quantity of spare time on his hands, of the value of 1,000 l. a year, and accordingly he received for one year's salary as much as 2,200 l. Never, since any attention had been paid by Parliament to the expenditure of the public money—certainly never within the last five-and-twenty years—had anything of the sort occurred. No doubt there had been instances of men holding more than one situation, but then they were situations in which the duties were small, and the emoluments small; therefore, the precedent which they supplied could be of no value in the consideration of such a case as that of Mr. Stevenson, who held situations so important, so lucrative, and obviously so incompatible with each other. Had Mr. Amyot, who received 800 l. a year, been appointed to the office which Mr. Stevenson held, then there would have been a saving to the country of that sum of 800 l. a year, his salary as registrar of slaves, which would have merged in the salary of 1,000 l. He trusted that in thus bringing this question under the consideration of the
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House, it would be felt that he had done so without practising any exaggeration he trusted that when the papers were laid upon the table of the House, it would be seen that he was fully borne out in the assertion which he had made, that the course pursued by the Board of Treasury was in all respects inexpedient, and that in one particular, it was clearly in contravention of the express provisions of an Act of Parliament. The noble Lord concluded by moving an address for a
"Return of all persons appointed to be paid commissioners of Arbitration under the powers of the act 3 and 4 William 4th, c. 73; stating their names, the dates of their appointments, the salaries and emoluments to be paid to each of them, and the payments made to them respectively on account thereof; the dates of the said payments, and the authority under which such payments have been made. Return of any other office (if any) in the public service held by each of the said paid commissioners of arbitration; specifying the date of appointment to each office respectively, the salaries and emoluments payable, and the salaries and emoluments paid, in consequence of such other office; together with the dates of payment in each case. Copy of any warrant or warrants by which any payments may have been made to Mr. Stevenson, as commissioner of Arbitration, since the appointment of Mr. Stevenson to be a commissioner of the Board of Excise. Copies of any communications from the Secretary of the Colonies, Lord Glenelg, to the Board of Treasury, or to the Board of Arbitration Commissioners, in reference to the appointment of Mr. Amyot to be a paid commissioner of Arbitration."
The Chancellor of the Exchequersaid, the House must be perfectly aware, as no doubt the noble Lord opposite was, that there could be no objection to producing the papers for which he moved, or any other documents connected with the subject which could afford the House the least information. He could not, however, but observe that the noble Lord, without the least reason to anticipate a refusal of the documents, argued the case before he procured the evidence. He (the Chancellor of the Exchequer) would necessarily be obliged to allude to transactions, the documents respecting which, were not before the House; but when the papers were on the table they would find every word which he intended to address to them fully borne out by the indisputable statements which those papers contained. As the noble Lord had thought proper to address them at such length, he must beg permission to make a few remarks upon what had fallen

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from the noble Lord. In the first place, no remuneration in the nature of salary had ever been given to Mr. Stevenson; remuneration was promised for the whole work, but not in the shape of annual salary. At the commencement of his labours their exact nature and extent could not be very precisely calculated. The commissioners of arbitration were to report from time to time, and the Treasury were occasionally to issue money in proportion to the work done. A sum had been paid to Mr. Stevenson for his labours in one year, which did amount to 1,000 l., and in that sense only could he ever have been said to have received 1,000 l., but he got no annual salary. It was no more than justice to say, that the labours of the commissioners of arbitration had been well and efficiently performed there was no one connected with the West India interest who would gainsay that statement; but, on the contrary, he was sure that the Members of that body would readily bear testimony to the truth of the observation. No men could attend more assiduously than they did to the duties of their situation, or give more satisfaction to the country. The duty which they had to perform, was one which required a legal education; they must, therefore, of necessity, belong to the profession of the law, and he must say that he thought the mode in which those gentlemen had conducted their proceedings in every way deserving the attention and perhaps the imitation of other courts of law. The transaction as to Mr. Stevenson was this:—In the year 1838 he was engaged in his duties as a commissioner of arbitration. In the autumn of 1839 the commissioners made their report, and applied for such payment on account as the Treasury might think proper to award. Two points then came before him (the Chancellor of the Exchequer) for his consideration—the first was the state of the business before the commissioners; on that point he thought it advisable that a notice should issue, intimating that it was intended to bring the business before those commissioners to a speedy termination, and stating that they would close their labours on the 1st of January, 1841. The second point was, whether Mr. Stevenson should receive any payment as commissioner of arbitration, together with his salary as commissioner of Excise. To this he felt an objection and wrote accordingly to his noble Friend at the head of the Government, stating the course which he proposed to pursue; and
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so far was his noble Friend from remonstrating with him, as had been supposed, that he recommended him to proceed as he had proposed. He then sent for Mr. Stevenson, and stated to him that he did not consider it right that he should continue to receive emoluments for one office and a salary for another at the same time; and in the most honourable and creditable manner Mr. Stevenson proposed to continue his labours gratuitously. He naturally wished himself to assist to the last in bringing the labours of the board to a close—labours which had done him and those with whom he had been associated much credit. He (Mr. Baring) had then decided that Mr. Stevenson should receive the remuneration applied for in the year 1839, and certain dues for the remuneration of the commission, to act without further remuneration. If, then, there had been any impropriety in the transaction, it proceeded altogether from him, and not from Mr. Stevenson. He would proceed to state the grounds of his decision. The House must be aware that the duties which the commissioners had to discharge were of a most laborious character—they were remunerated in proportion to the importance and the severity of those labours. Mr. Stevenson had gone through the most burdensome portion of the work, and it was not fair to judge of his merits by the portion of time which had elapsed t he might be wrong in this view of the question, but he did think it ought to form a principal ingredient in the proper estimation of the whole case. He thought, also, that though Mr. Stevenson held a seat at the Board of Excise, it would still be better to continue him at the other board, than introduce to it a fresh commissioner, who could not be familiar with its duties or previous proceedings; who could not, therefore, be so well qualified as Mr. Stevenson to get through the remaining portion of the business before the board, and who must either sit there as a cipher, or impede its operations. Looking, then, at the labour to be performed, and at the advantage to the public from the continuance of Mr. Stevenson's services, he must say, that if he had the same question again to decide, he should come to the same decision, and supposing the appointment of Mr. Stevenson to have been made by the predecessors of the present Government in office, he still could not avoid taking the same course. It was never the practice of any Government to go

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back and deprive any gentleman of money to which, under such circumstances, he had established a just right, or disappoint any expectations which he might reasonably have been led to form. With respect to Mr. Amyot, he had been appointed by Lord Glenelg under a mistake, and the letter authorizing his appointment was immediately withdrawn. As had been before said, the commissioners sat as judges, they had legal questions to determine, and, without meaning the slightest disrespect to Mr. Amyot, he might be permitted to say, that not being a lawyer, he was unqualified, whatever might be his talents and attainments, to take a seat at the board of arbitration. It was further necessary he should observe, that the nature of the business at this board did not require constant attendance; when once a principle was laid down, it extended to a great many cases. It had been argued, that the office of a commissioner of Excise was inconsistent with that of a commissioner of arbitration; be knew not upon what principle such a position could be maintained. Lord George Seymour was first commissioner and chairman of the Revenue Board at the same time that he held the office of chief wharfinger of Ireland. Sir Francis Hastings Doyle was deputy-lieutenant of the Tower, with a salary of 300 l., and chairman of the Board of Excise, with a salary of 1,700 l. a-year, and that state of things existed in the year 1826, when the noble Lord who made the present motion was a Lord of the Treasury. There was also Mr. Greville, who held the offices of Comptroller of the Excise and Receiver of Taxes for Nottingham, and who was, moreover, Secretary for the Island of Tobago. He would not go beyond the department of the Excise; it was unnecessary to do so. He found that during the Administration of which the noble Lord was a Member, Mr. Finch Hatton was inspector of teas in the Excise, and also a commissioner of Stamps. Again, Mr. Jenkinson was registrar of Excise—that was, registrar of the decisions of the board when they sat judicially; also a receiver of Stamps, and Lieutenant of Dover Castle. There was also Mr. Wilimott, who was distributor of stamps in the Excise, with a salary of 1,000 l. per annum, and also Receiver-general of the Post-office with 800 l. a-year. All these transactions had taken place during the administration with which the noble Lord was connected. He trusted that the explanation which he had given would be considered satisfactory,
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and he was quite sure that when the papers were before the House, and it was found that it did not rest merely on his word, but that the arrangement was made on a Treasury minute, all doubt would be put an end to at once. The right hon. Gentleman concluded by moving as an addition to the motion of the noble Lord, for a return of the Treasury minutes relating to the payment of any sums of money to Mr. Stevenson as commissioner of arbitration since his appointment of commissioner of Excise.
Mr. Goulburnobserved that as there was no objection to the production of the papers for which his noble Friend had moved, he would not, on the present occasion, enter into any discussion upon the general merits of the case. But he could not refrain from expressing his surprise that his right hon. Friend, the Chancellor of the Exchequer, should have thought it necessary to complain of the statement which his noble Friend had made in support of his motion. If his noble Friend had merely brought forward the case, without stating the grounds for so doing, he would have been open to the accusation of having submitted a motion for which he could not make out a case. His noble Friend, therefore, was, in his opinion, fully justified in the course he had thought proper to pursue. His noble Friend had stated very explicitly and very accurately the grounds of the charge against the Government; and he must, with all respect, add that his right hon. Friend, the Chancellor of the Exchequer, had made a very feeble and insufficient reply. He would state his reasons for saying so. If he correctly understood his right hon. Friend's argument, he did not deny that it was the practice to allow to the commissioners of arbitration a certain amount of money on account in the month of October, and that when Mr. Stevenson applied to him, he having been appointed to the Excise commissionership in September, 1838, his right hon. Friend considered that he was entitled to a larger proportion of remuneration, because the business of the Board of Arbitration up to the middle of 1838, had been far more laborious than it could be from thence to the expiration of the commission. He thought this reply showed a sufficient reason for asking the grounds upon which the payment had been made. But the charge was not that the Treasury bad paid Mr. Stevenson for business done up to the middle of the year 1838—important as every one admitted that business to

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be. The charge was, that in 1839 Mr. Stevenson, having in the meantime discharged his duty as a commissioner of excise, the Government had made him a further payment as a commissioner of arbitration. That was the charge, and to that no reply had been given. The right hon. Gentleman, had told them that much inconvenience would have arisen if they had introduced as the successor of Mr. Stevenson at that subsequent period of the commission a stranger to the office. But Lord Glenelg had guarded expressly against that contingency when he appointed Mr. Amyot, who was a man of great ability and talent, and in every way a most efficient person, and who had, moreover, been for some time acting at the board as an unpaid commissioner. He therefore, thought with Lord Glenelg that Mr. Amyot was the person best calculated to supply the place of Mr. Stevenson; and, if he had been appointed, the country would have been saved a salary of 800 l. a year. But that was not done, and Mr. Stevenson was retained in his office, and was then receiving the double salary. The right hon. the Chancellor of the Exchequer had endeavoured to get rid of the charge by a sort of tu quoque argument, in saying that the Opposition had done the same thing when in office. But the cases the right hon. Gentleman had quoted did not bear him out. Lord George Seymour had certainly held the sinecure office of Wharfinger of Ireland, in addition to the commissionership of excise. It was the custom when those large sinecure offices existed for them to descend in reversion to the children of the holders; and it was in that way that Lord George Seymour had held the office in question. Such was the custom at the period to which he alluded. He was not maintaining that that custom was correct, he was merely showing that the sinecure office which he had named had been given to the Hertford family—improperly perhaps—but like any other gift for length of service or some particular cause. And the principle had been recognised by the Legislature when they allowed compensation for the loss of such offices. But no analogy could be drawn between the cases of Mr. Stevenson and Lord George Seymour, because to the office which the latter held when he was appointed chairman of the Excise Board there were no duties attached. He had no occasion to go to Dublin to attend to the duties of his office there; he had, in
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fact, nothing to do. But if hon. Gentlemen opposite were now to make the holding of such offices by public servants in former days a plea for conferring upon persons a plurality of offices now, they would inflict a far greater evil on the public than it suffered under the old practice, because at that time the duties of the one office were sufficiently performed, but under the system the right hon. Gentleman would introduce, the duties of the one office would so interfere with those of the other, that it would be impossible for the officer to perform either well. With respect to Sir Francis Doyle, who had also been referred to by his right hon. Friend, the office of Lieutenant of the Tower which he held merely required that he should reside in the Tower during a certain part of the year. And he might argue that while residing there Sir Francis Doyle was very near to" his duties in the Excise-office. But it was also to be remembered that the Lieutenant of the Tower was an officer appointed not by the Crown, but by the Governor of the Tower, and Sir Francis Doyle had been appointed to that office by Lord Hastings who was the governor at the time. He would merely add on this point that Parliament in its wisdom had thought fit to abolish sinecure offices, and he would ask were they now prepared to establish a new precedent by giving to one officer two appointments and a double salary, when, as he maintained, it was absolutely impossible for that officer to perform the double duty. He would not enter further into the discussion of the subject until the papers should be laid before the House.
Mr. Humedid not think the House was then in a condition to pronounce an opinion upon the subject. He thought, however, that if, as had been said by the right hon. the Chancellor of the Exchequer, a commissioner of excise had sufficient leisure; to enable him to perform the duties of another office, it was a sufficient reason for reducing the number of those commissioners. There were now seven commissioners in the excise, and he (Mr. Hume) considered that three would be amply sufficient. He also thought that the number of commissioners of customs should also be reduced to three, and that the present number of stamp commissioners might also very properly be reduced by one half. There were now, he believed, in the three departments he had mentioned, twenty-two commissioners, he believed that nine would be

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sufficient, and was of opinion that the work would be much better done by that reduced number of commissioners than it was at present, for he had always found that the fewer the number of persons in any office, the more efficiently were the duties of that office performed. He believed that many of the appointments that had been made in the various departments of the revenue had been made on the ground of political influence, and not on the ground of fitness of the parties.
Lord J. Russellthought that the noble Lord was mistaken as to the conduct of Lord Glenelg, in reference to his intention to appoint Mr. Amyot. The fact he understood to be, that Mr. Stevenson, having said that he did not think he could go on with the business as a commissioner of compensations if he continued to hold the two offices, that then Lord Glenelg sent the appointment to Mr. Amyot. He did consider that this was not the holding of a double office, but the appointment of a gentleman to a commission which had already gone through an immense deal of business. He would not enter into the question whether such services ought to be paid for or not, but he thought that his right hon. Friend, the Chancellor of the Exchequer, had given a very satisfactory answer on that point. Now the right hon. Gentleman opposite (Mr. Goulburn) seemed to think that, if a person had nothing to do, there was no objection to his holding two offices. It did so happen that this commission of compensation to the West India proprietors had been appointed on the recommendation of the noble Lord who was then Secretary for the Colonies It was well known that that commission had certainly performed its duties in a manner not only creditable to the commissioners, but in a very exemplary manner. In proof of this remark, the noble Lord read four extracts from an ably-written pamphlet on the subject of the labours of the arbitration commission, showing the multitude of claims that were received and disposed of between the years 1835 and 1840. Now, he thought when this had been the case, and they took into their consideration the delays which always arose in our courts of law and equity in respect to claims for compensation or disputed property, he thought Lord Glenelg had made a most judicious appointment in the person of Mr. Steven-
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son. He did not know what course the noble Lord opposite might hereafter take, but he believed it to be notorious that there were many persons holding two offices, some of them involving considerable duties; and he begged to assure the hon. Member for Kilkenny (Mr. Hume), who seemed to imagine that the public service was neglected, that, in respect to those who were placed in the subordinate situations in the public departments, he did feel sometimes, not that he had to reproach those persons for not giving a greater portion of their time to the public service, but that on the contrary he found their attachment to the public service was such that many gentlemen undertook a degree of labour which had frequently drawn from him the observation that they must be ruining their healths.
Mr. Irvingcould not help giving his-testimony to the conduct of the three commissioners of compensation. He had himself received a variety of claims from the Crown colonies, the West Indies, and particularly from the Mauritius, all of which had been decided with a despatch and in a manner which was highly creditable to the commission. He knew that it had been under discussion to present a memorial to her Majesty's Government to represent that the remuneration which these gentlemen were about to receive was quite inadequate to the value and extent of their services; and if such a memorial were adopted, he should be glad to present it himself.
Motion, as amended, agreed to.

ABOLITION OF CAPITAL PUNISHMENTS.
Mr. Ewartrose, pursuant to his notice, to move for the entire Abolition of the Punishment of Death. He confessed he did not rise to make the proposition without emotion. Nor would he have ventured to make the attempt but for two reasons; in the first place, on account of the deep conviction which he entertained on the subject; and in the second place, because he knew that, in making it, he was supported by many of the best, and by some of the wisest, persons in the community. In approaching this question he should discard the religious view of the subject; he held that religion was too sacred a topic to be profaned by the heats and animosities of a political assembly. He should also discard the abstract view of the question. Those who wished

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to pursue it in a theoretical point of view might be referred, on each side of the question, to the writings of Beccaria and Filangieri, with their commentators, Benjamin Constant and Voltaire. The simple position which he should assume was this; that society had a right to inflict such an amount of punishment as was necessary to its safety and preservation, but no more. The necessary amount of punishment changed at different periods of society. It was a varying term. The question, therefore, now before the House was, whether the punishment awarded in extreme cases was any longer necessary for the safety and existence of society. He would then at once proceed into the practical and statistical view of the subject; and he would first endeavour to show that, by the mitigations which had taken place in the criminal law, crime had not increased, and that in almost all cases it had been diminished. Hon. Gentlemen who looked back to a period of ten years would find, that in the ten years preceding that period, in this capital alone, 221 persons had been sacrificed to the sanguinary laws then in existence; on the other hand they would find that, in the ten years which had elapsed since, instead of 221, only twenty-one persons had fallen victims to the law; yet persons and property were safe, and society was more tranquil in the latter period than before. The first evidence which he should adduce to show that a diminution of crime had been the consequence of the abolition of capital punishments was derived from returns having reference to England and Wales, recently laid before the House. Hon. Gentlemen would recollect that a great abolition of capital punishments took place about the year 1833. The number of executions in the five years ending at the close of the year 1833, amounted to 259; the number of executions for the five years ending at the end of the year 1838, amounted only to 99, being a diminution in the two corresponding periods of no less than 160 executions. Yet so far was crime from increasing, that the commitments for crimes which were capital at the beginning of the two periods, were 650 less during the years of mitigation, than during the years of capital punishment. The fact could not be disputed. The next proof he would bring forward to show that the abolition of capital punishments led to a diminution of crime, was derived from the criminal returns for London and Middlesex. In the
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statistics for London and Middlesex, as in those for England and Wales, the executions had greatly diminished from 1830 to 1836. The executions in three years, ending with 1830, were 52. In three years, ending with 1836, for London and Middlesex, there were no executions; yet the convictions for crime, heretofore capitally punished, were less in the latter period by 127, showing thus a remarkable diminution of crime consequent upon the abolition of capital punishment. In the three years after the abolition of capital punishment there was not a single execution. He would now refer to a later period, after the bill effecting a considerable abolition of capital punishments had been introduced in 1837, by the noble Lord, the Member for Stroud. It would be seen that, though executions had greatly diminished, in consequence of this change, crime had also diminished. During the three years previous to the passing of the bill, there were 85 executions. During a similar period, after the passing of the bill, there were but 25 executions, yet the commitments of the latter period for offences which were capitally punished were less by 115 than the commitments of the period when capital punishments were in existence. In these statements he had shown that the abolition of capital punishments had tended towards the diminution of crime, and he would now proceed to prove that commutation of punishment produced, in an equal ratio, a diminution of crime. This would principally apply to murder, that being nearly the only crime to which the penalty of death was virtually retained. In a certain number of years, when capital punishments were inflicted, the average was 15 executions for murder. In a similar number of years, when mitigated punishments were substituted, the yearly average was only seven. The average of crime was thus less, in a considerable ratio, during the period of mitigation. This statement applied to England and Wales; but the returns for London and Middlesex would further show that crime had diminished one-fourth in a relative period, after the law had been mitigated. Those returns had been laid before the House a few days ago, and they afforded a most satisfactory confirmation of the truth of his assertion—that the commutation of the punishment of death led to a diminution of crime. The returns showed that during five years the commutations

917
amounted to 39, and that, in no single instance, was commutation attended with an increase of crime, but, on the contrary, that a decrease had taken place. It appeared that the year after the commutation the commitments were reduced from 83 to 33, thus affording a gratifying proof of the consequences attendant on commutation of capital punishments. The effect then of mitigation had been the same as the effect of the abolition of capital punishment. He had hitherto confined himself to this point, that both the abolition of capital punishment and the mitigation of punishment had been followed by a diminution of crime. He would now proceed further, to show that the mitigation had been followed by a greater certainty of punishment. This was the rule laid down by Beccaria, Blackstone, and Romilly, that the mitigation of the punishment increased the certainty of the punishment. He would take four species of of crime which had been much mitigated by the bill of 1837, as an evidence of the truth of his position. The crimes were burning, attempt to murder (such as cutting and maiming), robbery, and burglary. He would take the proportion of commitments of the twenty years previous to the mitigation, and compare it with a like period after the mitigation had been conceded. The proportion of the convictions to the committals would prove that the abolition of the punishment of death had rendered the substituted punishment more certain. During the period while capital punishments remained, there were between 2,000 and 3,000 acquittals, so that in reality impunity of crime was the offspring of the punishment of death. Those therefore who advocated the continuance of the punishment of death were the real encouragers of the impunity of crime, and not those who wish to abolish capital punishments. The next proof he should bring forward was from the returns furnished in the present week. By those returns the fact would be proved that in a given period since 1837 a larger number of convictions had taken place than in a corresponding period before the abolition of the punishment of death. The executions before the abolition, in such given period, were eighty-five; in a similar period after the abolition, only twenty-five, showing thus a diminution of sixty. Yet, after the abolition of capital punishments the convictions increased in the stated period from 1,536 to 1,788. A great increase of convictions had thus occurred, proving, that punishment
918
had become more certain, since the punishment of death had been abolished. The mitigation of the law had thus ensured a greater certainty of punishment. He would now proceed to show, that in cases of murder, such crimes became fewer as the punishment was made milder. In twenty-six years, ending with 1835, the executions for murder were fifteen yearly, and the proportion of persons convicted was twenty-five. In three years ending with 1838, there were only seven executions yearly, a diminution of more than one-half; but the convictions amounted to twenty-nine. The ratio of twenty-nine to twenty-five proved, even in the case of murder, that the certainty of the punishment was increased, although the penalty of death was diminished. In the returns for England and Wales the same results would be found. In twenty-one years, before 1830, the executions were thirty-eight, and the proportion of convictions eighteen. In eight years, ending with 1838, the executions were seven, but the proportion of convictions was thirty-two. In the proportion of thirty-two to eighteen had the convictions increased since the law had been mitigated. These returns, which he had necessarily condensed, placed the subject in a clear light before the House and the country. He might have made more copious extracts from them; but his object had been to afford a distinct, and yet a comprehensive view of the subject. A reference to foreign countries would also show that a diminution of crime was followed by a greater certainty of punishment. In France a result similar to what had occurred in England had taken place. The present king of the French had early in his reign declared himself an enemy to capital punishments. When M. Lucas, the celebrated jurist, headed a deputation from the Société de Morale Chrètienne, he received this assurance from the sovereign; and the reign of Louis Philippe had been marked by a diminution of the punishment of death. In cases of murder in France the same result had occurred as in England, as would be seen from the Government tables. In two years before 1827, the number of capital punishments was 124. In two years, before 1837, the executions amount to but thirty-three. Yet the crimes of assassination fell from the number of 434 to 407, while on the other hand the convictions increased in the second term over the first term in the proportion of sixty-eight to fifty-eight. Here again

919
it was proved, that mitigation had at once diminished crime, and increased the certainty of punishment. He who consulted the French returns would find that a still stronger case could be made out with respect to the crime of poisoning in France. The present very enlightened sovereign of Belgium was also the avowed enemy of capital punishments. They would find that in Belgium also, with the diminution of capital punishment for murder the crime of murder diminished, and that too in times of great excitement. In the four years ending in 1829 there were executed seventeen persons. In the four years ending in 1834, none. Yet the number of murders tried fell from forty-five to forty-one, and they had the authority of an eminent Belgic jurist, M. Ducpetiaux, for the fact that certainty of punishment was increased (as in France) by the mitigation of penal legislation. This experience was not of modern origin. Need he remind the House of the testimony of Leopold, Duke of Tuscany, and cite his celebrated Edict?
"With the utmost satisfaction to our paternal feelings we have at length perceived that the mitigation of punishment, joined to a most scrupulous attention to prevent crimes, and also a great despatch in the trials, together with a certainty and suddenness of punishment to real delinquents, has, instead of increasing the number of crimes, considerably diminished that of the smaller ones, and rendered those of an atrocious nature very rare."
An Hon. Member—But the punishment of death was afterwards introduced.
Mr. Ewart.—It was introduced after the French revolution, but he had a high authority for saying, that the crime of assassination was more rare before the re-introduction of the capital punishment than afterwards. This testimony was given by Berlinghieri, who expressly stated that "assassination of all sorts had been much less frequent during the period of mitigation than since capital punishment had been revived."
On the important subject now before the House he was of opinion the experience gained in our distant possessions ought not to be overlooked. They would show the successful result of the remission of capital punishment. He would advert to that period when Sir J. Mackintosh presided at Bombay. During the seven years that Sir J. Mackintosh presided as Judge of the Supreme Court of Bombay, there was no capital execution whatever. Yet crimes very considerably diminished. And
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Sir J. Mackintosh thus concluded his farewell address to the grand jury at Bombay:—
"This small experiment has been made without any diminution of the security of the lives and properties of men. Two hundred thousand men have been governed for seven years without a capital punishment, and without any increase of crimes."
In another part of India also the abolition of capital punishment had been accompanied with a diminution of crime. In his communications from India, Sir C. Metcalfe, the government officer at Delhi, in the year 1815, said, that in that district they never punished with death. He added his belief that it was not necessary for the good of the community. Even in the case of murder (he added), the certainty of severe punishment operated more severely than the possibility of capital punishment. "Capital punishment," (he continued) "is the least certain of any. He had thus briefly gone over several of the statistics and details derivable from our own and from foreign countries. He should feel that he had not dealt justly with the subject if he did not allude—as nearly all the petitions before the House had alluded—to the demoralising and degrading effects produced on those before whom the awful exhibition of an execution took place. Could it, he would ask, possibly take place without violating the feelings, and tainting the principles of the spectator? Such scenes were scenes of profligacy and impiety; the ribald jest—the profane oath-—this was almost the only language heard at what he would call the Salurnalia of the gallows. Nor was it only on the guiltless spectator that this bad effeet was produced—the effect was equally pernicious on the minds of criminals themselves. He had before him the unexceptionable evidence of a respectable clergyman, who stated that he had attended 167 persons doomed to execution; that he positively ascertained how many of them had themselves witnessed executions before. He found that out of the 167, 164 had repeatedly been present at executions. On stating this fact to Mr. Wontner and Mr. Cotton, at Newgate, they assured him that it was very rarely that any one suffered the penalty of death there who had not seen the same punishment repeatedly inflicted. So far from such spectacles diminishing crime, they appeared to augment it. With these facts as well as these figures before them, he asked the House on what grounds they retained capital punishment in their tables of criminal legisla-

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tion? He ventured to ask hon. Gentlemen how many they could find, if they searched, among all, that were most distinguished in the annals of this country, who were friends of capital punishment? Had not Dr. Johnson, who was the last man to adopt any speculative theory; had not Mr. Burke, Mr. Wilberforce, Mr. Pitt, Mr. Canning, Sir J. Mackintosh, Sir Samuel Romilly, the enlightenment of whose understandings were equal to the benevolence of their hearts, advocated the discontinuance of capital punishment? With these figures, with these facts, with these authorities before them—he maintained that on those who insisted upon the continuance of these inflictions lay the onus probandi of justifying them, not upon him, who had shewn that they had failed, not upon him and those who with him asked for their extinction. He called upon the House to say why, with this primâ facie case against them, they retained such a form of punishment unsupported at once by evidence and by opinion? Why, having abolished capital punishment in other cases, did they retain it in the case of murder? They had abolished it in other cases because public opinion had made its way into that House, and demanded that abolition for which the enlightened few had so long pleaded in vain. But if they had conceded so much to public opinion, would not that same public opinion be now still more disinclined from executions, when, instead of being frequent as formerly, they had become much more rare? Would the public patiently endure this contrast between obsolete usages and modern feelings? The effect of the rarity of capital punishments would be to render them more intolerable to the people. Public opinion would act with still greater force in demanding their repeal than when such punishments were more frequent and consequently less revolting. But let him be permitted to ask, were we not in a better state to abolish capital punishments than we had been some years ago? We had now an improved police, an improved system of prison discipline, and the extended benefits of general education. These were so many safeguards of person and property—so many securities against violence and disorder. If ever there was a period when the Legislature could afford to put this great experiment to a trial, it was now, when go many more securities against crime existed, than when they first commenced their career of mitigation. Let him be permitted to ask
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why, above all, capital punishment should be retained in the case of murder, which might almost be said to be the only case in which it was now inflicted? The man who committed that dreadful crime did so either from calculation made beforehand, or from the impulse of a moment. It might generally be attributed to impulse, but he would take either point of the dilemma. If a man committed murder from calculation, it was quite clear that capital punishment had not the power of restraining him, because he had calculated all results beforehand, and proceeded wilfully to commit the act. In that case, therefore, capital punishment was not effectual. On the other hand, if he acted from impulse, he overlooked the consequence, and here again capital punishment was found to be of no avail. In the one case, the criminal acted from forethought, and deliberately despised the punishment; in the other he acted upon impulse, and overlooked it. If the arguments used against capital punishment had any weight in common cases, they were infinitely stronger in cases of murder, where impulse predominated, and swayed the criminal far more than in other crimes. He saw the right hon. Member for Cambridge smile, but he could assure him that the argument which he treated so lightly, was supported by one of the most eminent writers at present in existence. He (Mr. Ewart) expected that the old apology would make its appearance, that before we got rid of the punishment of death, we ought to be prepared with some efficient substitute. He (Mr. Ewart) did not think such a consideration ought to stand in the way of the great principle of the abolition of capital punishment. We had already imprisonment and transportation to the penal settlement as substitutes. They were punishments as strong as any which existed in many foreign countries. But it was idle to say that we could not immediately find more severe punishments than these. It could be easily and briefly done. This, therefore, he considered an insufficient argument. But then it was contended that if we abolished the punishment of death, the consequence of our reform must be the immediate substitution of a punishment still more severe than death. It was not, however, the severity of capital punishment, but its peculiar nature which prohibited its infliction. It was the responsibility which attached to it—it was its irrevocability if it should happen to be unjust,

923
at which mankind paused, shuddered, and recoiled. The same jury which hesitated at pronouncing a man liable to the punishment of death, would have no scruple to inflict a punishment which some might deem justly more severe; since it was the nature of the punishment, not the degree of its severity, which caused the dislike, the resistance, and the horror of the public. But it was not only the jury, (so justly denominated the conscience of society) Which, by its repugnance to this mode of punishment, uttered a faithful echo to the voice of the public. Consult the whole course of our criminal proceedings, from their commencement to their termination, it would be found that, from the commitment of an offender to his conviction, and even beyond it, a constant action of public feeling against capital punishment was prevailing which repelled the power of the law from the dale of the indictment to the period of execution. It had often been said that the prosecutor might be unwilling to prosecute, the witnesses to give evidence, the jurors to convict. Any one of these obstacles was sufficient to denote the general feeling of society, and to suspend the execution of the law. But there were other impediments besides. The judge himself might be scrupulous in awarding an irrevocable punishment. But, even then, the resistance to capital punishment did not cease. The Home Office was besieged with applications for mercy, petitions were poured into the House of Commons (they had just seen it done in the case of the Monmouthshire insurgents), and in the last resort the Crown was appealed to for pardon. The opposition to capital punishment thus dictated by public opinion acted in every stage of our criminal proceedings; and in every stage it tended to enfeeble justice and embolden crime. But if public opinion were brought to work in favour of the punishment decreed by law, we should then have crime suppressed, not only by the force of the law, but also by the weight of public opinion coming in support and sanction of the law. He entreated the House to consider the advantages which would arise from bringing public opinion to co-operate with, instead of counteracting, the law of the country. Justice would then act steadily and uniformly; it would move in its prescribed orbit undisturbed by that centifrugal force which now constantly controlled its movements, and disinclined it from its course of consistency and truth.
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Consider, too, that the maintenance of capital punishment was the maintenance of the old principle of revenge—the lex lalionis—for which we were substituting repentance and reform. The ancient system had been one of vindictiveness and retaliation, while our more modern system was one of prison-discipline and amendment. Could they continue a system, involving a principle contradicted by their own recent practice? Whatever difference of opinion might prevail as to the extent to which the modern and more merciful principle ought to be carried, it could not be denied that the principle of revenge was recognised by the existing law: In spirit, though not in extent, it sanctioned the retaliatory, the vindictive, the sanguinary principle—soon, he trusted, about to be exploded—
"The lifted axe, the agonising wheel,
Luke's iron crown, and Damien's bed of steel."
He could not conceive a duty more important in a Legislature, than to impress upon the people the sacred inviolability of human life; nor a duty more imperative upon it, than to set an example of regard for that inviolability in its acts of legislation. How could we expect the people to turn from scenes of horror and blood while they were legalised and sanctioned by the laws of the land? Let us abolish such dreadful inflictions, and we should diminish crime. Let us humanise our punishments, and we should humanise our people. He had ever thought that the people should be imbued with a horror of scenes of bloodshed, and that it was the duty of the state, in the words of our own immortal Milton, "to imbreed and cherish in a people the seeds of civility and public virtue; to allay the perturbations of the mind, and set the affections in right tune." Laws which should have the effect of disusing the people from the contemplation of sanguinary punishments, while they were the best safeguards against despotism and tyranny, would also be the best security against crime and disorder. A nation disused to the sight of blood would be the less disposed to engage in enterprises which might lead to its effusion when scenes of disorder or anarchy arose. The people would shrink from exhibitions of horror and bloodshed, and the Legislature would thus give an additional guarantee for the execution of justice in mercy, the preservation of the good order and peace of society, and the extension of feelings of benevolence and justice. Hitherto, only for short intervals, and in smaller states, the abolition of capi-

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tal punishment had been tried. He confessed he wished that ours should be the first of modern nations entirely and lastingly to abolish it. Such a course would be worthy of the fame, the intelligence, and the Christianity of our country. Impressed with these reasons, impelled by these feelings, he called upon the House to assent to the proposition which he now laid before them, and to resign the awful attribute of dispensing with human life into the hands of Him who gave it. The hon. Gentleman concluded, by proposing a resolution for the entire abolition of the punishment of death.
Lord J. Russellsaid, that paying, as he was ready to pay a tribute of respect to the motives of the hon. Gentleman in bringing forward this motion, and to the ability with which he had introduced it—he could not admit that, with that object in view, the hon. Member had adopted the proper course in submitting a resolution on the subject. It appeared to him that if a matter of this grave importance was to be decided by that House, it ought to be according to the ordinary forms and proceedings. Leave ought to have been asked to bring in a bill, and if the House recognised the principle so far as to allow of the bill being brought in, it might have been discussed in its subsequent stages, and the attention of the House would have been fully called to it. If the hon. Member had moved for a bill, and had obtained the permission of the House to introduce it, that would have been so far a recognition of the principle; if, on the contrary, the House did not assent to the introduction of the measure, there would still have been a decision of the House against it; but proceeding by resolution might be productive of this inconvenience, that a certain principle would have been affirmed by that House, while the judges and the executive, presiding over the administration of the law, would be bound to act upon a different principle. The resolution, if carried, might have a very popular effect, while, at the same time, neither the judges nor the executive would feel themselves authorised by the letter of the law in acting upon a resolution of that House. He, therefore, thought that the hon. Gentleman ought not have proceeded by way of resolution, but ought to have adhered to the ordinary course in seeking an alter-
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ation of the law. With respect to the motion itself, he (Lord J. Russell) was unwilling to enter into a discussion against the arguments in favour of the abolition of the punishment of death, because, when capital punishments were more frequent, he had entertained the opinion that those punishments ought to be inflicted with less frequency, and the number of capital crimes constituted by our penal code ought to be lessened, and he could not help feeling that many of the arguments advanced when he had the honour of acting upon a committee, of which Sir Jas. Mackintosh was the chairman, and when he had the honour of voting with Sir Samuel Romilly on this subject, were in accordance with the spirit with which the hon. Gentleman now brought forward this motion. With regard to those arguments, and in the first place the statistical details submitted to the House, they must be so far satisfactory and consolatory to the House, as they showed that what had hitherto been done, had not been imprudently or unsuccessfully done—that it had not the effect of increasing crime, or of rendering less certain the punishment of crime when proved. On the contrary, the changes which had been made, had tended to diminish the general amount of crime, and where crime was brought before a court they ensured conviction in cases where it ought before to have taken place, but where a sentiment of humanity had induced juries, not certainly in conformity with their oaths, but with an overpowering feeling, to acquit those who were accused before them. But, while the hon. Gentleman's statistical details, proved this much, he did not think they entitled the House to infer that if they ventured to make a similar change with regard to other and graver crimes—more especially with regard to that one which the hon. Gentleman said was the only one to which, in practice, the punishment of death was applied—the effect would be similar. It should be observed, in the first instance, that many of the crimes to which the punishment of death had formerly been affixed, such as sheep stealing and stealing in a dwelling-house, were not considered crimes of such horror that they ought to be punishable with death, and therefore a sympathy was excited in favour of those who suffered that extreme visitation of the law; but with regard to

927
murder, the crime itself created the greatest horror. If any dreadful and atrocious murder were committed, it excited in the public mind a feeling very different from that which was excited by the circumstance of a sheep being stolen, or a larceny being committed in a dwelling-house. The former offence naturally excited a very great degree of horror. The hon. Gentleman said, that the crime of murder was one of calculation, and, if so, he argued that the very existence of the crime showed that the laws were not effectual. That argument was, in his opinion, not good; for the same argument might be used in reference to any species of crime. It might be said of those crimes to which the slightest punishment was apportioned, that the existence of those crimes proved that the punishment was not sufficient. Taking into consideration all the circumstances, he thought they could not lead one to the supposition that the punishment of death should be abolished, for it appeared that the hon. Gentleman was not prepared to propose a substitute, by means of which murder would be at once done away with, for if not at once done away with, the same argument might be used against his proposition, for it might be said, that it had failed in its effect, as the crime still existed. The real question was, whether a number of persons, besides those who actually committed the crime, were not deterred from committing it by the existence of the punishment of death. His opinion was, that there were a greater number of persons deterred from the crime by the fear of this punishment than would have been deterred by the fear of any punishment of a minor character. This was a matter certainly which was incapable of proof; but those who committed the crime well knew that they could have no expectation that these cases would excite the sympathy of the public, or that they could escape by the sympathy of the jury. He would take some atrocious case of murder—that, for instance of Greenacre. Was there any feeling of sympathy in the public mind towards him?—or that it was thought the punishment of death at all disproportioned to the enormity of his offence. He was aware that there was a portion of the community which conceived that there should be no such punishment as that of death, but the great mass of the public was of
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opinion that murder was properly punished by death, in order to deter others from the crime. He wished it were possible to frame a law to separate the atrocious cases from those of a more mitigated nature, for such cases as the latter came frequently before him, when it became his painful duty to investigate their character. There were many cases where great provocation was given, and which involved a very different offence from that of wilful murder; but, on the other hand, there were murders arising from revenge, from malignant passions, and from the hope of gain, and from deliberate plots of plunder. He should be glad, indeed, if he could come to the conclusion that society would be sufficiently protected by not taking the lives even of such offenders as these; but he thought the risk was sufficient to induce him not to assent to the proposition, conceiving it to be the paramount duty of the Government to protect the innocent and unoffending portion of the community. There had been already an immense change with respect to the mitigation of the criminal law. By the last tables laid before the House, the number of persons executed in 1818, was ninety-seven; in 1828 fifty-nine; and in 1838, only six; being about one-tenth of the number in 1828, and one sixteenth of the number in 1818. That was an immense change in the law in the course of a few years in favour of humanity and improved legislation; and when the hon. Gentleman said, that the spectacle of an execution brutalised the people who witnessed it, he thought the objection was removed by the change already made in the number of executions. The frequency of these executions might be said to harden and brutalise the people, but when the number of executions were small, he thought the effect would be greater, as being the solemn award of justice in cases of grave and atrocious crime. The hon. Member had said that the persons who went to these executions indulged in the most reckless gaiety and unconcern. He agreed with the hon. Member that such might, in some instances, be the case, but he did not think that that effect was produced by witnessing the execution; for if that feeling had not been manifested in that way it would be in some other equally objectionable. This, then, was his opinion as to the total abolition of the punishment of

929
dealh; but he was far from saying that he did not indulge hopes that the condition of society would become yet so far improved, that the aversion to the shedding of blood would gain such strength, that, without danger to the innocent and unoffending, the abolition of death as a punishment might be effected. Such, however, was not the state of society at the present period, and if the punishment of death were abolished, he feared the effect would not correspond with their wishes. He would ask the House to consider the great peril of an unsuccessful attempt to abolish the punishment of death. Hon. Gentlemen must know, that as far as they had hitherto gone, the friends of humanity had no reason to complain; but if they were entirely to abolish the punishment of death, and if some cases of revolting offences should occur, a revulsion of public feeling might take place in the public mind, and instead of hastening the permanent abolition, they might have to admit that they had gone too far, and be forced to go back further than where they now stood. For these reasons he could not at once agree to the abolition of capital punishment. He regretted to have come to that decision, but he differed in opinion from a large portion of the community, and he thought it prudent to pause, rather than at once to decide upon the entire abolition of capital punishment.
Sir Stephen Lushingtonagreed with the noble Lord that nothing could be more detrimental to the due course of justice than that the House should agree to a resolution that capital punishments ought to be abolished without taking any steps towards legislating on the subject, leaving the Home-office to carry out the laws under the ban of an expressed opinion of the House. The course of the hon. Member ought to be to move for leave to bring in a bill, and it was his intention, in order to remove that objection, to move, as an amendment to the motion, that leave be given to bring in a bill. Having had no intention of taking any share in the discussion, he yet felt himself constrained to make some observations upon the arguments adduced by his noble Friend. A considerable number of persons in the kingdom were of opinion that punishment by death is contrary to the law of God. The theological part of the argument he would not meddle with—his argument
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to the House of Commons would be upon, a very different and a very distinct principle. He knew no reason why there should be any punishment save for the prevention of offences or for the reformation of the offender. With respect, then, to the prevention, he would say, that if he thought capital punishments were necessary in order to prevent crime, they should hear from him no argument against the lawfulness of such punishments. The prevention of the offence was the very question at issue, and what had his noble Friend said in reference to this point? The chief part of his argument rested upon the readiness of juries to convict, and he quite agreed with him as to the fact, but he drew a very different inference. He believed, if a crime of atrocious character—if a horrible murder—were displayed before a jury, there would be always a disposition to convict whatever might be the testimony. He remembered having been told by an eminent judge of the present day, Mr. Baron Gurney, that in proportion to the atrocity of the crime was the facilty of conviction. This was the very matter which alarmed his mind. There may be cases in which conviction might be obtained on other than conclusive evidence. Though this disposition to convict was the feeling of juries, yet it was not the feeling of witnesses. No witness ever went into the box who did not endeavour to weaken and modify his testimony. He knew that the life of man was dependent upon his words, and he, in consequence, was apt to hesitate and doubt about matters of which he was previously certain, lest he should be mistaken, and be thus the occasion of death to a fellow-creature. Let them, also, consider what must be the feelings of the judges who had such an awful responsibility upon them. A judge well knew, that upon his summing up depended the life of a fellow-creature, and he therefore displayed a laudable astuteness in searching out those points which were calculated to acquit the prisoner. Would this be so if the punishment were less than death—if time were left for subsequent investigation? The judge well knew, that when sentence was once passed, it was quickly executed, and there was then an end to all human power of examination into the testimony. To prove that cases happened in which convictions improperly took place, he would

931
mention, that he had known two cases in one sessions, in which free pardons were given after conviction; and yet, in the face of such facts, and looking at the uncertainty of all human evidence, would they shut the door against all subsequent inquiry, by executing on such convictions as those to which he had referred. Let them not say to him, that it was indispensable for the safety of society, that they should be under the painful necessity of occasionally sacrificing an innocent life. Where was their proof of any such necessity? They had evidence to the contrary. When he first commenced his examination into the criminal laws, some twenty-five years back, the scaffolds throughout the country were reeking with blood. Since that period, by very slow degrees—far, far too slow—they had in many cases abolished capital punishments, and he would ask them boldly, had that experiment failed? or rather, had it not been attended with the most signal success? They had prevented impunity for crime—they had protected the interests of society, and they had saved the country the spectacle of such a vast number of executions. In the midst of their power and authority they had one limit, and that limit was prevention of crime, and the reformation of the criminal. If they attempted to punish guilt, they stepped beyond those limits, and were trespassers on the authority of him who said "Vengeance is mine." His noble Friend had said that there might be a change of public opinion, and that such change might be adverse to the views of those who sought the entire abolition of capital punishments; but it should be remembered that they had originally fought up against public opinion. The bankers and merchants of London were all against them originally, and yet now that capital punishments for forgery are done away with, he asked a most eminent banker, a few months since, as to the effect of the mitigated punishment, and the answer was, that they knew nothing of forgery in the city of London now. The reason was obvious—it was, because every offender was prosecuted, and every witness spoke the truth without hesitation, for he was no longer terrified with the idea of consigning a fellow-creature to the scaffold. While they endeavoured to accomplish what was proposed by his amendment, or by the object of the present discussion, they made a great experiment
932
in favour of humanity, upon the good feelings of the people of England, which hitherto had upborne them in their efforts in this respect; and as they now experienced the benefit of the abolishing of the punishment of death for some crimes to which it had previously been attached, it was not likely that the people of England would turn round upon them then, and oppose them in their further efforts to ameliorate the penal criminal code of this country. Not a single execution now ever took place in a provincial town in England, that every respectable individual resident in it, or its neighbourhood, did not remove their wives and daughters and families, lest they might be disgusted by that horrible and awful exhibition of the extreme penalty of the law. He would call upon them to consider the crime of murder, then, horrible and atrocious and revolting as it might and should be deemed, but he begged of them not to fall into the fallacy of supposing that the frequency of an offence was a cause for continuing the punishment attached to it. They could not deny but that the commission of some crimes heretofore adjudged in the highest degree penal, had been rendered more infrequent by the abolition of the punishment of death. He believed even should more murders unfortunately follow, the abolishment of the present punishment, that their commission might result more from circumstances over which they could have no control—from circumstances by which weak, erring humanity, was likely to be influenced—than from the cause that others might assign—namely, the removal of the legal punishment hitherto attached to that crime. But then another totally different question here arose, and that was, whether it were not the more fitting duty—and this he would wish to impress upon them—whether it were not the more legitimate object of the House of Commons to look more to the prevention of crime than its punishment. Would it not be more deserving for that House to endeavour to improve the general moral condition of the people at large to educate them, to impress upon their minds the great doctrines of the Christian religion, the great social obligations they had to perform, and the final future consequences of departing from those great principles which the Author of that religion inculcated. Much had been given to man for his redemption; and

933
much they might do in ameliorating his condition by explanation, example, and instruction; but it could hardly be denied, that the fear of punishment went but a very small way in preventing the increase of guilt. His opinions differed from much that had fallen from his noble Friend near him; but he agreed in that particular part of his noble Friend's speech where allusion had been made to the dreadful and brutalising effects upon the minds of the community produced by the frequency of public executions. He agreed, and they all should agree, that these public executions—these exhibitions of scaffolds and human blood pouring forth—did debase, and lower, and brutalise the public morals, and the public mind. But the noble Lord had gone on to argue, that, because now the number of those executions had been considerably diminished, the mischief arising from them was not so great. Now, for his own part, be did not agree with his noble Friend in that proposition, but thought that the mischief was proportionally greater in consequence of the executions being fewer. He thought, that if one hundred executions in a year brutalised the public mind, six would do so in a twenty-fold greater degree. What was the case now if an execution was to take place in any part of the country? Why crowds, thousands of the lowest, and almost entirely the lowest order of people, from the most remote and distant parts hurried them to witness it. There might, indeed, be a few amongst whom the depraved curiosity to witness the death of a fellow-creature brought there, but by far the greater number was composed of the lowest classes, who were thus familiarised with the sight of blood, and thus was made known to them the very last extent of human suffering; and that sort of awful feeling which God had spread over the face of death, was, in some degree, abolished by such an exhibition as a public execution. He would ask them to remember the last execution in London. A short time subsequent to that an unfortunate and wretched woman had appeared to sustain a false accusation against some person. She had alleged, that she had been ill-used in some barracks, but on subsequent examination she had been discovered to have foresworn herself; and it had turned out, that on the morning of the very day on which she had falsely stated the offence to have been committed,
934
she had been to witness the public execution he had alluded to. Thus it appeared, that the very fact of having seen that exhibition had been a sort of inducement or temptation to her to commit the crime of perjury; or, at least, it had not deterred her from that guilt. He could tell his noble Friend, that the people became more depraved and hardened from the sight of public executions, and would tell him, that during the time that executions for forgery had occurred he had himself known an instance where a young man of previously good character and unimpeachable morals, who having for the first time attended one of those executions, had committed the offence of forgery within forty-eight hours after. They might depend upon it, that so long as human life was at stake, and the likelihood of considerations being entertained for the ordinary failings which actuated the criminal by jurors, so long would there be a strong objection to find a verdict of guilty. And he addressed himself, then to every individual in that House, and called upon them to answer the question upon their honour as men, would they not, as jurors, require in such a case longer time for deliberation and more complete evidence before they came to a verdict when the life of a human being was at stake than when the punishment was simply transportation? He conceived he had in some degree demonstrated to them, that capital punishments were injurious to the public mind, and interfered with the course of justice, because the latter was frequently not so fully carried into effect, because jurors did not while considering the consequences of their verdict, wish to torture their minds by the danger of hereafter considering the possibility that they had in some degree been instrumental in causing the innocent to suffer. He would, without trespassing any longer on the attention of the House, implore it earnestly not to look at the present question merely with a view of saving the lives of a few innocent persons, though he was sure that was a most important and worthy consideration, but he besought it to keep most particularly in view the necessity of protecting the minds of so large a portion of the community as formed the then innocent part of it, from the contamination and the brutalizing and demoralising effect of public executions. He concluded by moving, as an amendment upon Mr. Ewart's motion, that leave

935
should be given to bring in a bill, which would have for its object the abolition of capital punishments.
Mr. Ewarthad no objection to withdraw his motion, as the amendment would fully meet his views; his principal wish having been to bring on a discussion on this matter, and test the opinion of that House concerning it.
Mr. Goulburnsaid, although by the form of the motion as it then stood, one of the chief objections which the noble Lord opposite had urged against it might have been removed, yet he could not avoid addressing a few words to the House on the present question. In much that had fallen from the right hon. Gentleman who had just addressed the House, he fully agreed. He entirely agreed with that right hon. Gentleman that the real and true questions to be then considered were, whether by the proposed alteration of the laws, they should lessen the quantity of guilt, whether by doing away with the punishment of death, they should diminish the frequency of the crime of murder. He (Mr. Goulburn) could not avoid saying, however, that the right hon. Gentleman appeared to him to have mixed up two questions in his speech upon the present matter, and that he had led away the feelings of the House most particularly in favour of that one, which did not, perhaps, belong legitimately to the present consideration. The right hon. Gentleman had alluded to the bad effects resulting from public executions, and had contended that these bad effects were increased by the fewness of the number of those executions. That was a proposition in which he confessed he could not acquiesce. That was an argument which he did not think sustained the motion before the House, or rather the principle contended for by the right hon. Gentleman opposite. Might not the punishment of death he inflicted in a mode otherwise than that calculated to produce those effects which were condemned as so injurious to the public mind? He was not for a moment going to say that secret punishment was not objectionable, and would, perhaps, be considered generally unpopular; but if they found that the punishment of death could not be dispensed with in the case of the commission of murder, and if it was ascertained that public executions had those evil effects on the public mind which had been ascribed to them, it was possible to have the punish-
936
ment inflicted in a different manner. For his own part, as far as he could come, after most serious consideration, to a conclusion upon the question, he confessed, that having made the fullest inquiry he could into this matter, his opinions were in accordance with those that had fallen from the noble Lord opposite, the Secretary for the colonies. The right hon. Gentleman who had last spoken had told the House that he agreed with the noble Lord that murder stood in a manner apart, stood in a higher distinction, a more prominent position of guilt than any other crime. He had also told them that juries were not generally so unwilling to convict in such cases as in any other description of crime. He had also told them that in proportion to the aggravating circumstances of the offence was their readiness to convict the offender. He argued that persons were more frequently convicted in such cases than in those of minor atrocity. He had told them, however, immediately after, that the judges themselves were so affected by their fears of the consequences of conviction that they even endeavoured to strain a point to turn the scale in favour of the prisoner. The right hon. Gentleman had told them that the witnesses came on the Table not so much with feeling a horror of the crime of murder, or commiseration for the family of the victim, as a strong preception of the fate of the murderer if convicted, and that generally they gave their testimony in a manner that denoted their doubts of their own recollection and memory as to the facts which they had seen. It appeared to him that there was some considerable degree of inconsistency in those several allegations, and for his part he could not conceive how the right hon. Gentleman could come to the conclusions which he had come to upon this matter. He thought if he was in the place of a juror, and was called upon to decide in a criminal matter of the description alluded to, that he should be, perhaps, even more cautious in coming to a final opinion upon the question before him, and more careful in weighing the evidence, than he would be as a witness in giving it. The right hon. Gentleman had even said that the judges themselves would act somewhat in such a manner as it might be calculated jurors ought to act in serious cases; and that on the whole matter, capital convictions were calculated to produce an improper influence on the public mind. The right hon. Gentleman proposed to make an experiment in favour of human

937
life. He thought that was begging the question. He thought that the favourableness of the proposition to humanity depended entirely upon the success of the experiment; and if it was not successful, it would, perhaps, have quite a contrary effect from that mentioned. Instead of being an experiment which would be favourable to human life, it might turn out one exceedingly injurious to it, by removing the re straint and the dread of such a punishment as was now attached to murder. He had at that moment fully before his mind all the arguments used on a former occasion for the remission of capital punishments in offences of a minor description, and he thought all those arguments fully supported the principle that for the crime of murder the punishment of death should be continued. When it had been contended that the punishment of death should be removed as the consequence of the crime of burglary, it had been argued that they held out an inducement, as the law then stood, to the housebreaker to commit murder, in order to prevent himself from the consequences of his offence in case of detection and prosecution. He would ask the right hon. Gentleman, would not his own argument tell, then, in an opposite direction? It appeared to him that, by the adoption of the principle proposed, they held out an inducement to the robber to commit murder, when the penalty attached to both crimes was only the same. By doing this, they destroyed the distinction between crime, and they took away one of the most natural feelings of mankind—natural because inculcated from the highest authority—namely, that when blood had been shed, blood should be shed in return, if it were carried out on a proper and just principle. It was briefly for these reasons that he was induced to coincide in the views of the noble Lord; not, indeed, from any desire to maintain a sanguinary code of laws, but from a firm conviction that by removing the punishment of death from the crime of murder they ran the greatest possible risk, not only of inducing the commission of that crime, but, perhaps, of creating its repetition under circumstances of a considerably aggravated character.
Mr. Hobhousesaid, in rising to second the motion of his right hon. Friend, the only difficulty he felt was, that the subject had been so exhausted by its mover, that very little remained for him to add to what had been already said. He could not forbear, however, making some comment
938
upon the speech of the right hon. Gentleman opposite, who had just sat down. That right hon. Gentleman had observed, indeed, that there were inconsistencies in the speech of Dr. Lushington, bat while he animadverted upon those alleged inconsistencies, the right hon. Gentleman had been guilty of some inconsistencies himself. He entirely agreed with those who had said, that it was better to approach the consideration of the present matter on grounds totally unconnected with religious feelings; that it would have been more advisable to leave scriptural allusion out of that debate; but as the right hon. Gentleman opposite had stated, upon the authority of Scripture, that "whoso sheddeth man's blood, by man shall his blood be shed," he would only ask the right hon. Gentleman, in reply to that observation, were there not many circumstances under which that precept could not be fully acted upon or borne out; and he would also beg to remind him of the punishment that awaited the first murderer. The right hon. Gentleman had also told them, that in cases of robbery there would not be greater punishment than in cases of murder. He had yet to learn that there were not various gradations of imprisonment; and it seemed to him, that the only punishment in which there were no gradations, was that of death. As to what the noble Lord (Lord J. Russell) had said with respect to the willingness of juries to convict in cases of murder, he (Mr. Hobhouse) was sorry to say, that he entertained altogether a different opinion. He believed, that the severity of the punishment tended to prevent conviction. The hon. Gentleman then went on to refer to a number of statistical returns, before the House shewed, that in all cases where the severity of punishment had been mitigated, the number of convictions had increased, and the amount of crime diminished. This applied even to cases of manslaughter and murder. If any one considered the nature of the punishment of death, and looked at the impression made upon the throng assembled round the scaffold, he believed it would uniformly be found that the feeling that obtained there was not one of horror, not one of fear, but a feeling by which the multitude became hardened, and literally acquired a taste for blood. Was this a desirable state of things?—was it one likely to tend to the prevention or

939
the diminution of crime? There was another view which had not been taken of this subject, but which he wished briefly to impress upon the consideration of the House. If the Legislature did not punish murder capitally, it would show, by the example of the state, the inviolability, the sacred estimation in which it held human life, He believed, that this would operate most beneficially. In his opinion the question before the House was-, not whether murder merited the punishment of death, but whether the taking away of a man's life was the best and only means of preventing that horrid crime. That the crime of murder did merit the highest degree of punishment, he did not for a moment question, but he greatly questioned the effect produced by public executions upon the minds of all those who, whether it were by accident or whether it were by choice, became the spectators of these bloody scenes. The lesson afforded by history was in favour of the course which he advocated. The time for putting it into full force was most opportune, inasmuch as the public, being wholly unaccustomed to the frightful exhibition of an execution, would gladly witness the adoption of a principle of legislation, by which the recurrence of such scenes of bloodshed would for ever be put an end to.
Mr. Plumptresaid, that he had voted with the hon. Gentleman in 1837, though he owned, with some doubt and difficulty, when he proposed that death should cease to be the punishment for all crimes, except murder; but, as he now proposed, that capital punishment should be abolished for murder also, he differed from him, and felt bound to vote against his motion.
Mr. Muntzobserved, that it had been forcibly and truly stated by a moralist, that the worst use to which a man could be put, was that of hanging him, and he fully agreed in the truth of this axiom. The great excuse urged by those who advocated the punishment of death for murder, was, that the Mosaic law commanded that blood should be the forfeit for blood; but if that reasoning were adopted, the punishment of death ought to be awarded to adultery, and many other crimes as the same law declared that to be the penalty of such offences. The fact, however, was, that all such pleas or defences, for the perpetration of the infliction of death were wholly and totally without any scriptural foundation. Society
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was framed altogether under a different dispensation from the Mosaic code of laws, and the principles of the Gospel upon which our religion is founded were to return good for evil. But there was another consideration to be taken into account, which was the question whether death was the greatest punishment that could be inflicted; and of this he entertained the very strongest doubts. What else could prompt men to commit suicide if death were the greatest of all evils? Suicide proved, that there was a fear that was greater than the fear of death, the fear, namely, of life; and a man often committed suicide because he feared, not death, but the evils which he apprehended a further existence would entail upon him. In many cases the punishment of imprisonment, or of transportation, would prove infinitely more insupportable than the extinction of life, and experience showed this to be the case. There was one other argument which he should just touch upon before he concluded, and that was to ask the House how it could be reconciled to the belief of the doctrines of Christianity to sanction any longer the commission of an act whereby the individual put to death was for ever deprived of an opportunity for seeking pardon by repentance and prayer of an offended Deity for the crime committed by him, although he required time for such repentance more than others did. He for one could not reconcile to his mind the doctrines of Christianity and a future state, with the practice of putting criminals to death for their offences, and he should, therefore, warmly espouse the motion of the right hon. and learned Gentleman.
Mr. Fitzroywas of the same opinion; as that entertained by the hon. Member for Kent. He believed, that they were only fulfilling their duty in obeying the command conveyed in the text of scripture already quoted, that "Whoso sheddeth man's blood, by man shall his blood be shed." The only course which he could conscientiously pursue was to oppose the motion.
Mr. Brothertonwould ask the hon. Member who had last spoken if he were to carry out his principle where it would end. He had risen for the purpose of recording his sentiments in favour of the abolition of capital punishment, as he held it as a principle that no man had a right in any case to take away the life of his-fellow man. Therefore, when he saw laws

941
enacted for the purpose of carrying into effect a punishment so shocking to the feelings of society, he could not help entering his protest against them as being in contradiction to every principle of humanity and sound policy. It had been shown that capital punishment did not prevent crime, and that crime had not increased in consequence of the mitigation of the severity of the law, and therefore he believed, that they were bound to show how sacred they held human life in their estimation by not daring, under any circumstances, to take it away. If the object were to prevent crime, let them instruct the people in their duty, and teach them the true principles of religion, which would ever be found in accordance with justice, humanity, reason, and common sense. The law of God was simple; it said plainly, "Thou shah not kill," and until the clergy and Bishops turned their attention to this subject, so as to instruct the people according to right principles, they would never produce that effect which they ought to produce. The Mosaic law had been quoted in support of this vindictive and retaliatory punishment, but the same law said, if an ox should gore a man or a woman, the owner of the ox, should suffer death.—["No, no."] He said—Yes, yes—and he said what was true; but that punishment in such a case might be commuted by the owner being mulcted in a sum of money, and that showed that the Scripture in this instance did not bear the usual interpretation; and he stated, on the authority of Mr. Bellamy, who had devoted fifty years to the study of Hebrew, and from whom he had presented a petition two years ago, on the subject of the new translation of the Scriptures, that that interpretation was not in accordance with the original Hebrew. He therefore thought they were called upon, by every principle of religion, of reason, of humanity, and of sound policy, to abolish the punishment of death.
Sir R. Ingliswas not one of those who were disposed to take away the life of one human being more than was necessary for the protection of others. The single question before the House was, in what cases could the infliction of death as a punishment be safely dispensed with most securely to the lives and properties of other men. That wonderful ameliorations had taken place in this respect he was sure he need
942
not remind the House; for within the memory of many hon. Gentlemen who heard him, a case had happened where a woman was sentenced to be burnt alive for the offence of coining, and she only escaped this horrible death by the hazardous mercy of he public executioner, who dexterously strangled her ere he set fire to the wood around the stake; but, as far as the spectators were concerned, the law which sentenced her to be burnt to death was complied with, for, at the distance at which they were from the spot where she was executed, the observers could not distinguish whether she were dead or alive whilst being consumed, the belief being, that the law was actually and literally enforced. This fact, melancholy as it was, would show how very much public feeling had been improved since that period; and this very improvement in the state of public feeling, which rendered such scenes alike impossible and revolting, would also, in his apprehension, render it inexpedient to abolish the punishment of death by a sweeping measure, which, whilst it deprived the crown of one of its dearest and most distinguished prerogatives, that of mercy, would also take away from the executive power all possibility of awarding an appropriate punishment to crimes of an extraordinary magnitude, which unhappily for the credit of humanity, did occasionally protrude themselves on public attention to the general horror of mankind. During the last twenty years executions had decreased in the proportions of ten to one; yet there had been no alteration in the law; the change had been entirely effected by the modification public opinion had undergone, or rather double change—one in the public mind, by which human life was rated at a higher value, the other in the administration, on the ground that the great mass of capital punishments had been found ineffectual. Upon the influence of public opinion he thought the House might safely rely. He trusted the motion of the hon. Member for Wigan would be resisted; and as hon. Members opposite had referred to other countries, he would remind them that there was no instance of a state, with one single exception, in which the punishment of death was entirely abolished. As the hon. Member for Salford had referred to the words of the sacred scriptures, he could not but think that whatever construction might be put upon these words, and though it might be stated that the Almighty did not personally inflict the punishment ex-

943
pressed by these words, still it could not be denied that in the code which he had prescribed, there was such an instruction as to the infliction of the punishment of death as must for ever exclude from censure any legislation which should make it a foundation for their laws.
Mr. O'Connelldid not think the right hon. Baronet opposite had paid himself any great compliment, when he said, that when it was not necessary be would not be for putting a man to death. He should wish to know who it was that would? He would submit to the hon. Baronet, that he could have no right to put a man to death unless it were absolutely necessary, for if he did it would be murder. Now, what the noble Lord, and the right hon. Gentleman, and the right hon. Baronet, had to prove was, that it was necessary to put a man to death for murder—the burden rested on them. They ought to be able to demonstrate its necessity, if it were demonstrable; for those who were for the motion had already shown that every modification of the law of capital punishments had been followed by a diminution of crime. Now that was a consolatory fact. The only proofs admissible were from experience to probabilities, that those things which had happened would occur again. And what had happened already? Why in every country in which punishment by death had been diminished, that every crime, including murder, had also decreased. And with these diminutions had also diminished the disposition of the human mind to commit murder, for thus you mitigated the heart of man; the more you legislated in a spirit of humanity, the more you induced mankind to respect each other, and to spare each other's blood. The right hon. Gentleman had argued, that though they had been so far successful, that was no reason they should expect to succeed if they abolished capital punishments. But they had experience entirely on their side, and this fact authorized them to assume that the probabilities were also with them. References had been made to texts from Scripture. He did not consider this a fit arena for such discussions; for there were in that House men of different persuasions, who had been taught to put different constructions upon the same passages. Moreover, those Gentlemen who referred to those Scriptures were inconsistent, for according to those, one life must be taken
944
for another, and thus the prerogative of mercy must be entirely taken away from the Crown, and they should bring in a bill to take away the distinction between murder and manslaughter. This would be the result of the argument of the hon. Baronet and the hon. Member for Lewes. But even in the Scriptures themselves they would fail to find uniformity. Was not Uriah murdered under circumstances of great atrocity? And yet his murderer did not suffer death. But now we did not live under the stern rule of the Old Testament. We now lived under a more charitable dispensation, in which the principle of revenge was abolished, and that of brotherly love was inculcated above all. Such, therefore, should be the principles that should guide our legislation—the benevolence of Christian charity, not the harsh feelings of the Jewish code. Let them remember, when they argued for the continuation of capital punishment, that when once they put an individual unjustly to death, there was no room for repentance or reparation. A remarkable instance had occurred within his own experience. A man was committed at the Limerick assizes and left for execution. He was by accident enabled to procure from Mr. Justice Burke, the judge who tried him, a respite for a week. Before the week had elapsed it was proved that the man was as innocent as the judge. But if he (Mr. O'Connell) had not obtained that week, the man would have been executed. Would they risk the chance of committing such murders? What reparation could have been made if that man had been executed a week before the day fixed for his death? Did the House forget the remarkable case that lately occurred at Monmouth? Three gipsies were seen in company with a pensioner, who shortly after, on the same day, was robbed, and so severely beaten, that he was left for dead. The gipsies were tried, and convicted of the robbery, and transported to New South Wales, but the Home-office soon found that they were innocent, and had them brought back. Now, if the pensioner had died, the gipsies would have been executed, and then the House would have been the murderers. As for leaving it to judges to mitigate sentences, this would be but throwing dice for the chances of human life. One judge might be severe from a sense of duty, and another might have a serious objection to the sentencing

945
of a criminal to die. Both would be equally conscientious, yet the chances of a man's life or death would frequently depend upon the temperament of those individuals. They should, therefore, put it out of the power of a judge to tamper with human life. Experience had shown them that they should not stop in their course of mitigation. But if it should turn out that one step more would be dangerous to the State, surely, they might in one night pass a bill through both Houses to remedy it. In the name of justice and humanity, he entreated them to agree to the motion for leave to bring in a bill.
Mr. John Jonesthought there would be found great difficulty in devising a secondary punishment for the crime of murder, if the punishment of death were to be abolished. It happened to him to be at one time detained at a foreign port while the ship was performing quarantine, when he took the opportunity of watching the galley slaves. Observing that one of them, after a few days, was absent, he inquired into the cause, and he was told that the man had been guilty of murdering two of his fellow-convicts. He then, inquired what was the first offence of that man, when he was informed that while acting in the capacity of a servant to a monk at Rome, he murdered his master. Now, in Tuscany, the punishment of death had been abolished; this murderer, consequently, could not be more severely treated after his second offence than he was for his first. This constituted with him the difficulty he experienced. He certainly was willing to give his vote for the abolition of the punishment of death in every case, except that of murder.
Lord Worsleywas afraid that the punishment of transportation was not sufficiently dreaded by that class of persons in this country who were likely to be guilty of great offences; he, therefore, thought that the total abolition of the punishment of death would, in the present state of the education of the people, be attended with danger.
Mr. Ewartreplied. It appeared that, in the returns laid before the House, there were recorded thirty-nine cases, in which sentence of death was commuted; yet, this commutation did not induce the relatives of the murdered parties to take vengeance on the perpetrators. However,
946
without dwelling further on such facts, he would beg of those who would oppose his motion to support that of his right hon. Friend, and then they might discuss whatever alterations they wished to propose in committee.
The House divided on Sir S. Lushington's motion:—Ayes 90; Noes 161:—Majority 71.

List of the AYES.

Aglionby, H. A.

James, W.

Aglionby, Major

Jervis, S.

Ainsworth, P.

Kelly, F.

Alston, R.

Leader, J. T.

Archbold, R.

Lister, E. C.

Bainbridge, E. T.

Lushington, C.

Baines, E.

Melgund, Visct.

Barnard, E. G.

Milnes, R. M.

Barron, H. W.

Muntz, G. F.

Barry, G. S.

Muskett, G. A.

Boldero, H. G.

O'Connell, D.

Brabazon, Sir W.

O'Connell, J.

Bridgeman, H.

O'Conor, Don

Briscoe, J. I.

Paget, F.

Brotherton, J.

Pattison, J.

Bulwer, Sir L.

Pechell, Captain

Busfeild, W.

Rice, E. R.

Castlereagh, Visct.

Roche, W.

Clive, E. B.

Rundle, J.

Craig, W. G.

Salwey, Colonel

Currie, R.

Sanford, E.A.

Dennistoun, J.

Scholefield, J.

Divett, E.

Smith, J. A.

Duke, Sir J.

Smith, B.

Easthope, J.

Stanley, M.

Elliot, hon. J. E.

Stanley, hon. W. O.

Ellis, W.

Stewart, J.

Fielden, J.

Stock, Doctor

Fenton, J.

Strickland, Sir G.

Finch, F.

Tancred, H. W.

Fitzroy, Lord C.

Thornely, T.

Fort, J.

Turner, E.

Freshfield, J. W.

Turner W.

Greg, R H.

Vigors, N. A.

Greig, D.

Villiers, hon. C. P.

Hall, Sir B.

Wall, C. B.

Hawes, B.

Wallace, R.

Hayter, W. G.

Warburton, H.

Hill, Lord A. M. C.

Ward, H. G.

Hinde, J. H.

White, A.

Hindley, C.

Williams, W.

Hobhouse, T. B.

Wilmot, Sir J. E.

Hodges, T. L.

Wood, B.

Hodgson, R.

Yates, J. A.

Hume, J.

TELLERS.

Humphery, J.

Ewart, W.

Hutchins, E. J.

Lushington, rt. hon. S.

List of the NOES.

Acland, Sir T. D.

Baillie, Colonel

A'Court, Captain

Baker, E.

Alsager, Captain

Baring, right hn. F. T.

Attwood, W.

Barrington, Visct.

Bagge, W.

Berkeley, hon. C.

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Bewes, T.

Howard, Sir R.

Blackett, C.

Howick, Visct.

Blair, J.

Hurt, F.

Blake, W. J.

Hutton, R.

Bolling, W.

Ingestrie, Visct.

Bowes, J.

Inglis, Sir R. H.

Broadley, H.

Jones, J.

Brocklehurst, J.

Kemble, H.

Brodie, W. B.

Knight, H. G.

Brownrigg, S.

Lascelles, hon. W. S.

Bruges, W. H. L.

Law, hon. C. E.

Burrell, Sir C.

Lemon, Sir C.

Clay, W.

Liddell, hon. H. T.

Clerk, Sir G.

Loch, J.

Clive, hon. R. H.

Lockhart, A. M.

Collier, J.

Macaulay, rt. hon. T. B.

Copeland, Mr. Ald.

Mackenzie, T.

Corbally, M. E.

Mc Taggart, J.

Courtenay, P.

Mahon, Visct.

Cripps, J.

Martin, J.

Curry, Mr. Serjeant

Maxwell, hon. S. R.

Darlington, Earl of

Mildmay, P. St. John

Davies, Colonel

Miles, P. W. S.

Denison, W. J.

Mordaunt, Sir J.

Douglas, Sir C. E.

Morpeth, Visct.

Dowdeswell, W.

Morris, D.

Dugdale, W. S.

Neeld, J.

Duncombe T.

Nicholl, J.

Dundas, F.

O'Ferrall, R. M.

Egerton, W. T.

Ord, W.

Eliot, Lord

Packe, C. W.

Evans, W.

Pakington, J. S.

Farnham, E. B.

Palmer, R.

Feilden, W.

Palmer, G.

Filmer, Sir E.

Parnell, rt. hon. Sir H.

Fitzalan, Lord

Peel, J.

Fitzroy, hon. H.

Pemberton, T.

Fremantle, Sir T.

Pendarves, E. W. W.

Glynne, Sir S. R.

Pinney, W.

Goddard, A.

Plumptre, J. P.

Gordon, R.

Polhill, F.

Gordon, hon. Captain

Powerscourt, Visct.

Gore, O. J. R.

Praed, W. T.

Goulburn, rt. hon. H.

Price, R.

Graham, rt. hon Sir J.

Protheroe, E.

Grey, rt. hon. Sir C.

Pusey, P.

Grimsditch, T.

Rae, rt. hon. Sir W.

Grimston, Visct.

Richards, R.

Grimston, hon. E. H.

Rickford, W.

Halford, H.

Round, C. G.

Hamilton, Lord C.

Rushbrooke, Colonel

Harcourt, G. G.

Rushout, G.

Harcourt, G. S.

Russell, Lord J.

Harland, W. C.

Rutherfurd, rt. hon. A

Hastie, A.

Sheppard, T.

Hawkins, J. H.

Shirley, E. J.

Heathcote, Sir W.

Smith, A.

Hector, C. J.

Smith, R. V.

Heneage, G. W.

Smyth, Sir G. H.

Henniker, Lord

Somerset, Lord G.

Herbert, hon. S.

Spry, Sir S. T.

Herries, rt. hon. J. C.

Stanley, Lord

Hodgson, F.

Stansfield, W. R. C.

Hope, G. W.

Staunton, Sir G. T.

Houldsworth, T.

Stuart, Lord J.

Howard, hon. E.G. G.

Strutt, E.

Howard, F. J.

Sturt, H. C.

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Style, Sir C.

Williams, R.

Sugden, rt. hon. Sir E.

Wood, C.

Surrey, Earl of

Wood, Sir M.

Sutton, hon. J. H. T. M.

Wood, Colonel T.

Teignmouth, Lord

Worsley, Lord

Troubridge, Sir E. T.

Wyse, T.

Tyrell, Sir J. T.

Young, J.

Vere, Sir C. B.

TELLERS.

Vernon, G. H.

Stanley, hon. E. J.

Wakley, T.

Parker, J.

PRIVILEGE. BILL TO SECURE PUBLICATION.
Sir E. Sugdensaid, that in bringing forward the motion of which he had given notice, "for the appointment of a committee to consider and report to the House what steps should be taken in order to guard against the reports and other papers of the House which the House may-think it necessary to publish, containing matter criminatory of individuals; and whether it be expedient to discontinue, or to place under any and what restrictions, the sale of such of the proceedings of the House as may be published," he had intended to lay before the House a distinct view of what had in former times taken place in the House of Commons on the subject, and the operation of the practice, and what had latterly taken place, and the operation of that practice, in order to show that it was absolutely necessary some new rules should be adopted with a view to prevent the publications of the House containing matter injurious to individuals, and that it required grave consideration whether, consistently with that view, there could or could not be a safe sale by the House of copies of any of its proceedings. If any scheme could be adopted to prevent their publications containing matter criminatory of the character of individuals, then of course they might be sold. But he was rather deterred from entering upon any discussion by the mode in which the noble Lord (Lord John Russell) had given his notice, which was to move, as an amendment to his motion, that leave be given to bring in a bill to give summary protection to persons employed in the publication of Parliamentary papers. The noble Lord had thus taken him rather at a disadvantage in making his motion as an amendment to his, because they were altogether consistent with each other as he understood them. He regarded his own motion to be intended only to facilitate any measure of legislation that might be deemed necessary; or if legislation were not resorted to, then, to give the public all the benefit without the injury of publication.

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He could not anticipate the course which the noble Lord was about to take. If he proposed to provide against any injury being done by the publication of papers by the House, whether by sale or not, accompanying that provision by a protection of the officer of the House in the sale of such publications, then the noble Lord might not find in him an opponent; but if the noble Lord was going to ask the legislature to give to the House greater powers than it now possessed in the publication of its papers, leaving the resolutions of 1837 altogether untouched, by which the House claimed the right to declare what should be its own privileges, and made it a breach of those privileges if any court of law should entertain any action relating to the publications of the House; and leaving, too, all the assertions of the powers of the House as against the question of law untouched, and making no provision that, in the publication of their papers, the House should take care that nothing should affect the rights and characters of individuals, then he would at once declare that the noble Lord would not have a more strenuous opposer to his bill than he would find in him on this occasion. He had thought that it would be better to clear away the difficulties which surrounded the question by moving for a Committee, but it would perhaps better consult the convenience of the House if he now postponed his own motion, and gave the noble Lord an opportunity of bringing his intended amendment before the House as a substantive proposition. He had no wish to embarrass the House by the simultaneous discussion of cross motions; and as the noble Lord's bill might render it inexpedient for him to bring forward this proposal for a Committee, he would postpone his notice till that day se'nnight, when he would certainly bring it forward, if the noble Lord intended by his bill to take greater power for the protection of the House against the people; for he certainly should oppose the bill if the noble Lord did not place upon the right of publication those guards to which the public were entitled.
Lord John Russellsaid, that as the right hon. Gentleman in deferring his present motion had wished him to bring forward his own motion for leave to bring in a bill upon this subject, perhaps the House would allow him then to make the motion which he had intended to submit to the House as an amendment. What the right hon. Gentleman had said in
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favour of his own proposition, had only confirmed him in the opinion that he was right in bringing forward the bill which he would afterwards introduce. The right hon. Gentleman seemed to think that they ought to examine their right of publication, with the view of restraining it by some legislative measure. [Sir E. Sugden did not contemplate a legislative measure]. He thanked the right hon. Gentleman for the correction, because, it appeared to him that the right hon. Gentleman had evidently expected a bill to place some restriction on the publication, and on the sale of parliamentary papers. It was his opinion, however, that there ought not to be any bill introduced upon this subject which should place any restriction on the right of publication possessed by that House, whatever might be the determination of the House as to the mode in which that publication should be made. And for himself, he had no hesitation in saying that if it were shown that the mode which the House had adopted of late years, that the mode which had been in use since 1835 had led to the distribution of papers, wantonly calumniating any individual, without, indeed, being of opinion that they ought to rescind the resolutions to which they had already come; yet that if any measure should be proposed to that House which should prevent any improper or calumniating publication, he should be perfectly ready to listen to it. At the same time he did not know of any more difficult subject to be undertaken, because there were many publications of reports of evidence and of accounts of proceedings, which, though not intended injuriously to affect any individuals, did bring in the names of many parties, and which were necessary as the foundation of bills, to remedy those general evils, the existence of which was proved by particular cases. It must, however, have become evident to the House, whatever might be the opinion which was entertained with respect to the power and the privilege of the House to regulate its own publications, that it was desirable to provide some more immediate and more effectual means of exercising its powers. His own opinion was, that the powers of the House were very large, and that if they were used to their utmost extent, they would be quite commensurate to effect an observance of the law of Parliament; but the mode in which they could exercise tho6e powers was liable to great

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objection, and when put into practical operation it produced considerable inconvenience. Let him take the case that had now occurred. Suppose there were proceedings taken during the recess—that an action should be commenced, in which, there being no defence, judgment would at once be given, and the sheriffs would proceed without delay to levy the damages—they would be bound on their meeting to direct their immediate attention to the proceedings, to send for the sheriffs, and to punish them for the breach of privilege; and yet this course was liable to these defects, that it did not stop the action, and they were forced to deal with officers who had been no parties to the proceedings till after they had been before the courts of law; and he, in fact, was the only officer with whom the House could deal to prevent the full execution of the judgment. With respect to any action that might be brought during the sitting of Parliament, there was a more immediate remedy by proceeding against the parties. They might take the plaintiff and the attorney before they had gone far enough to entitle them to call upon the sheriff to execute the writ; but in this latter case, also, it was impossible to exercise the powers of the House without having the time of the House taken up and the attention of Parliament occupied by motions relating to individuals who were endeavouring to oppose the orders of the House. He did not indeed, think, that if they had to deal with persons who were claiming bonâ fide protection from charges at which they were really aggrieved—that those persons would not submit themselves to the authority of the House when they were told that any action they might bring would be a breach of privilege, or that the individuals who were injured would fail to ask the House to give such redress as to the House should seem proper for the damage done to their characters, thus unnecessarily and improperly assailed; but they must recollect that the persons with whom they had to deal were not of that character, that they were persons who did not seek any such compensation as the House could make, that like Mr. Stockdale they might be mentioned in the report of persons acting in the execution of their duty, and that they would immediately seek to derive some advantage by entering into a contest with the House, and by vexatiously con-
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tinuing to bring actions against the officers of the House. In such cases, although they might punish the individual, although they might proceed upon their resolution and commit him, yet serious inconvenience would arise from the consumption of the time of the House, which was necessarily so valuable, as well in regard to all measures of legislation as to the control that was to be exercised over the executive administration; and, indeed, the whole Session might be occupied in discussions on the cases of individuals, on questions whether they should or should not commit this or that officer, or whether they should or should not discharge this or that prisoner. That was a great public evil; and there were other evils with which the House had not as yet had to contend, but with which, if they were determined to use their powers to the utmost, they must contend; it would be a great evil for instance, if they were forced to come more directly into collision with the courts of law than they had hitherto done. Differing, as he did, from the opinions of the judges in the case of Mr. Stockdale, conceiving, as he did, that the judgment of the Court of Queen's Bench was generally erroneous, and that it was not founded upon a correct appreciation of the privileges of Parliament, yet he must say, upon public grounds, if the House of Commons were to be respected on the one side, and her Majesty's judges on the other were to be held in that estimation and veneration which was necessary to add weight to the administration of the law; that there would be great evil from a more direct collision, and, therefore, that if the House agreed to any proceeding which should bring two parties in the community to take opposite sides, so that one part should be vindicating the House of Commons, whilst another should be adhering to and defending the judges, it would be a misfortune in a public point of view. He thought, therefore, that these were reasons why at that period, having shown that they were determined not to part with any of their necessary powers, they should attempt, by the aid of legislation, to prevent a recurrence and a continuance of those evils to which he had adverted. He felt, at the same time, that there was great force in the objection that any legislation whatever would add strength to the arguments of those who contended that they would thus weaken the privileges of

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the House; that if any legislative enactments with regard to them were assented to, they must consent to bring all their privileges before the Legislature; and that any enactment would convert all the privileges of the House to such a state as would materially diminish them. Still, he could not but see that at all periods in our history, whatever might have been the subject, whether it regarded the privileges of Parliament or the rights of the Crown, or of any of the constituted authorities, whenever any great public difficulty had arisen, the Parliament, in its collective sense, meaning the Crown, the House of Commons, and the House of Lords, had been called upon to solve those difficulties. This was, as he conceived, the original intention of the constitution of Parliament. He was far from thinking that the constitution of Parliament as it originally stood, rude as it was in its general provisions, did not exhibit great sense in the general distribution of power. It was, as he conceived, among the functions of Parliament, not only to provide for the executive administration of the country, and to pass such laws as should be from time to time required, but also in general to declare what was the state of the law existing at the period, and which declaration was taken as law for ever afterwards. That was done at a remote period, as a part of the inherent power of Parliament; and although it might have been little used lately, yet it still was both within the power and the duty of Parliament to meet any great evils or difficulties of this kind, and to provide for them by its general authority. With respect to these cases of privilege in particular, it could not be denied that when difficulties had been found, the Parliament had provided for them by enactments, declaring what was the law. In the commencement of the reign of James 1st, when it was found that the warden of the Fleet was unwilling to discharge from prison a Member of that House, stating that he feared he should have to pay the penalties for an escape, although the House of Commons interposed, and obtained the release of the Member, still he did not think it inconsistent with the maintenance of its privileges, nor a dereliction of its high duty, as one branch of the Legislature, to pass an act, providing that all suits brought against Members should revive when Parliament should cease to sit, depriving Members of
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exemption from suits; and, secondly, that no sheriff or other officer should be liable to any punishment for discharging from custody a Member that was entitled to the privilege. After the resolution, when the Members of the House, and when even the Speaker had become liable to actions and prosecutions fordoing their duty in that House, the Parliament had declared, by legislative enactment, that no person should be called in question for any proceeding within the walls of Parliament. So, likewise, when it was found in the course of experience that the privileges which were possessed by the Members of the House, that the personal privileges, such as that exempting their servants from suits for the recovery of debts, could be dispensed with, without doing the least injury to the efficacy of Parliament, the House agreed to several acts, the latest of which was the act of the 10th George 3rd, which allowed the suits to proceed, and which had limited these personal privileges of the Members. All this showed that when there was sufficient cause, and when there was a good public motive, the House had not hesitated upon all suitable occasions to derogate from the general privileges of the House. At the same time he knew that it might be said, that when they entered upon a course of legislation on one privilege, various other privileges might be attacked, and they would be ultimately obliged to resort to legislative enactments for all. He did not, he admitted, feel certain that such attacks would not take place; but there were none of their privileges which were so much exposed to attack as this particular privilege of publication—at all events, that was the particular privilege now called in question. On many of their privileges he saw, by the judgment of the Court of Queen's Bench, there was no difference between the House of Commons and the courts of law: there were many privileges which were ascertained, and which were generally allowed, as Mr. Chief Justice Pemberton had allowed certain privileges of the House of Commons, when he was called to their bar to answer for an offence against the privilege of the House. If, however, there should come to be any further question with the judges of the Court of Queen's Bench—if they should not be disposed to allow that the House had the right to decide what the privileges of the House were—

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he should be ready to maintain, in that case, what he had maintained in the present case, that the House was, and of right ought to be, the judge of its own privileges. The right hon. Gentleman differed from him upon that subject. It was one on which he thought there was a great deal of popular misapprehension. It was said that the House could declare anything that it pleased to be privilege, and it was presumed that anything that was most extravagant was within its power, and that the House would claim it as a privilege. This was a most exaggerated way of putting the question. It had been said, equally extravagantly, by counsel before Lord Ellenborough, "Does your Lordship say, that the House might take any person into the lobby and there execute him?" To which Lord Ellenborough replied, "In such case the courts would do their duty." If a person were convicted of a capital crime, and were sentenced to death, he might be legally executed; and the counsel might just as well have asked whether a person not legally convicted could be executed. And what he meant when he said that the House had the power to judge of its own privileges was, that it could best judge what privileges it was necessary to assume to enable it to discharge its duty. He might be asked what there was to check and to limit this power, and he must answer that there was the same check and the same limit as there was upon all the different bodies in the state; there was the same check and the same limit as there was on the prerogative of the Crown; the same as there was on the power and the authority of the House of Lords, or of the Court of Chancery, or the courts of common law, namely, that having certain powers necessary to maintain the particular functions of the body, it must be supposed, if it were a constitutional proceeding, that there could be no extravagant assumption of powers, going beyond the necessity of the case. If this were so, the case was clear, there was no difficulty in deciding the question whether the House of Commons or the Queen's Bench was the proper judge of what was necessary for the due performance of the duty of the House. He had no hesitation in saying, that it was the House; if the House was perfectly conversant with the business which it had to perform, it was aware from day to day of what was neces-
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sary to perform that duty, and it was more likely to come to a correct decision upon this question than the Court of Queen's Bench. It might be said on the one side, that the House of Commons would carry this power of judging what were its own privileges to an excess, and it might just as well be said on the other side, that the Court of Queen's Bench would be most likely to limit what was really necessary. Therefore, whatever they did with reference to this point, they would not get rid of the power essential to their functions. Elected as that House was by the people, and as they were threatened the other night by an hon. Gentleman, that that House would have to go back to the people to give an account of their proceedings, he did not think that any act of exorbitant tyranny would ever be exercised by the House in defence of its privileges. He now came to the measure which he had to submit to the House; he did not intend to propose a measure that would impose any restrictions on the power or right of publication by that House; on the contrary, he should take care that it was stated in the preamble of the bill, that the privilege of the House, as well in this as in any other respect, was only known by the interpretation of the House itself. He intended to propose that publications authorised by either House of Parliament should be protected, and that merely the certificate of such publication being authorised, signed, for the House of Peers by the Lord Chancellor, or by the Speaker of that House, and for the House of Commons by the Speaker, should be held to be a restriction of any proceedings for such publication in any court of common law. That was, that any person having the authority of either House of Parliament for the publication of any paper, in case of any proceeding being instituted in any court, that a certificate of this should be sufficient to stay all proceedings by a mode which was described in the bill he proposed to introduce. He would not proceed to explain the mode by which it was intended this should be done, for he feared if he entered upon an explanation of the legal proceeding, he might lead hon. Members into error. He, therefore, thought that it would be better for him to abstain, and to be allowed to introduce his bill, and let hon. Gentlemen see the details of it. The object of the bill, he repeated,

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would be to give protection in a court of law to the publications of either House of Parliament, and this not merely during the time Parliament was sitting, but during a recess or dissolution. He did not propose to limit the right of publication, for, as he had said before, he agreed that it was essential that they should maintain it to the fullest extent; but if he could give greater security than before to the publications of the House, by the proposition that he was about to make, he should be extremely glad. He was anxious that the authority for such publications should be maintained in the House itself, by the means that he proposed, as he thought that the functions of that House were of too important a character to be submitted to any other tribunal. He would not say a single word on what had so often been dwelt on in the discussions on this subject—namely, that the House should have the right and the power of publication, for he believed that they could not beneficially exercise their functions without the right of publication. He, therefore, should only now ask for leave to bring in a bill, hoping that it would be the means of putting an end to the evils which were now experienced by the House; and, after what had passed, he did not think that it was too much to ask the House of Lords to concur with them on this subject. He was sure that the House of Lords must be aware that this conflict in which the House of Commons was engaged might be injurious to the other branch of the Legislature; and with regard to the publications of the other House, although they might not now be called in question as those of that House had been, still persons might have recourse to these vexatious actions against the servants of the other House for publications authorised by it, and it should be recollected, that one of the publications of that House which had been threatened with an action was a reprint of a document of the House of Lords, and arose out of the examination of witnesses who gave evidence before a committee of the other House. The House of Lords only did their duty, and proceeded in the investigation in question with the view of giving information to the people of this country. The evidence was not to be confined to the House of Lords or to the House of Commons, but it intended to give information to the country as to the state of New Zealand, so that those who might feel dis-
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posed to emigrate might be made acquainted with the state of things there. It, undoubtedly, might be made a ground of action against that House, as it was threatened against this House, that the publication containing this information, involved a libellous attack upon individuals. He thought, also, that the committee lately appointed on the subject of the printed publications of the House, would, in its report, lay before the House all the facts of the case with regard to the publications, and he believed that the House would be satisfied that means were taken practically to place a check on the publication of works of anything like a libellous character printed under the authority of the House. The House would find that they placed checks on the publication of libels, and when the report was laid on the table, it would see what these checks were, and how they were to operate, before the House sanctioned the publication of papers, and it would be for hon. Members to say whether these checks were effective or not. He would not occupy the time of the House at greater length, but conclude with moving, that leave be given to bring in a bill to give summary protection to persons employed in the publication of parliamentary papers.
Sir E. Sugdenwould not detain the House for more than a few minutes, while he expressed his opinion on the motion just submitted to the House. He was not at all satisfied with the explanation of the noble Lord as to the course that he proposed to adopt with reference to the publications of the House. The noble Lord had given notice of his motion as an amendment to the one which he had intended to submit to the House; and he had been induced to give way to the noble Lord. He was by no means satisfied with the statement of the noble Lord, who concluded with telling the House that the Printed Publications Committee would report on the facts to the House. Now if he had not been stopped by the noble Lord's announcement, he should have shortly stated what they were. But, he would now ask, was this Committee prepared to report on measures which should be adopted, that would afford security against the characters of persons being attacked in the publications of the House? The Committee would only look to the nature of the publications, as they would give information to the House, and to the number that would be

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necessary; and they would not examine the character of the publications, independent of the nature of the information, or of the number required for distribution and sale. There could be no doubt that the primary object of ordering the sale of parliamentary papers was to save expense, without regard to the character of the publication. The noble Lord had completely misunderstood him as to the right of publication; he had never disputed it; all that he wished to see was, the publication of papers conducted with the greatest possible caution, and within the strictest forms. He feared the public would think that they did not intend to assert or to adhere to any such principle, and that they would have no regard to anything like a proper or sufficient caution in the publication of their papers. The noble Lord stated that there were many mistakes out of doors as to the power they claimed, for all, he said, that he asked was, a sufficient power to carry on the business of the country. In the resolution of the House in 1837, there were no words that would justify any such interpretation as was assumed by the noble Lord of this rule. What were the words of that resolution?
"That, by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges, and that the institution or prosecution of any action, suit, or other proceeding, for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament, is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon. That for any court or tribunal to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament thereon, is contrary to the law of Parliament, and is a breach and contempt of the privileges of Parliament."
There was no limitation, then, of the right of publication, but here was a positive declaration of the House that they had a right to publish what they thought fit, and of this assumption of right the people of England were afraid. It was not fair to the public that this extraordinary claim of the right of publication by the House of Commons should be sanctioned, or that merely an announcement of it should stop all proceedings in any court. He admitted that there might be extraordinary cases where the liberties of the country were at peril, where the extreme right of publica-
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tion might be necessary; but it never was the law of Parliament, or the law of the land, of which the law of Parliament was a part, to deal with these extreme cases as of common occurrence. The noble Lord, in his speech, endeavoured to explain away this resolution; but he left his resolution still in force, pregnant with all the dangers that would continue to result from it. The noble Lord said, that if they allowed these contests to go on, they would greatly endanger and peril the other privileges of the House. He did not object to a legislative measure on this subject, but he objected to the exercise of the great power, the possession of which was claimed by the House with regard to publications, until they framed satisfactory restrictions which would have the effect of securing a guard against improper publications by that House. With respect to Mr. Stockdale, he must observe that it was an unfortunate case to try the question of their privileges by, for there was no doubt he took advantage of the situation in which he saw the House placed, and he had not been damaged in the slightest degree by the publication in question. He felt convinced that no jury, on the merits of the case, would have given damages for a libel. He entertained no sympathy whatever for Mr. Stockdale, but there was a great principle involved in the matter, independent of the case of any individual. He would only add, that he trusted that the noble Lord would adopt some means of affording something like security against the privilege of that House being made the means of protecting improper publications, and he felt that this would not be the case by the bill which he proposed to introduce.
The Solicitor-Generalrose, shortly to state to the House why he found it to be his duty to oppose the motion of the noble Lord. He entertained no doubt but the House would credit him when he stated, that all his inclinations and wishes were, that he might be able to support the noble Lord and the Government of which he was a member. He felt this the more strongly, as he had so lately been called upon to take office under them, and he did so in perfect conformity with his inclinations and feelings; but he also felt that his duty as a Member of Parliament, was paramount to his duty as a humble member of the Government. Therefore, under the influence of a sense of duty, and feeling that duty to be imperative on him, he felt that he could not conscientiously discharge that

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duty, without rising to state his objections to the adoption of the course that night proposed. He could not but be sensible of the extreme difficulty of the situation in which the House and the Government were involved in connection with this subject, for it was the duty of the latter to maintain, in every possible way, the privileges of the House. He was anxious, while he endeavoured to guard them against doing anything prejudicial to the public interests of the country, to abstain from offering anything likely to embarrass the course of the Government; but after reflecting on this subject, he could not but feel the most painful apprehension as to the result that he feared would follow from the course proposed. He could not but feel strongly, because he believed that the Government was mistaken on this subject, and that the measure that night proposed, so far from relieving them from the embarrassment in which they were placed, would tend greatly to aggravate and increase that embarrassment, and also tend to inflict a deep and permanent wound on the privileges of that House. The proceedings which had taken place on the part of Stockdale, would by no means be prevented in consequence of an enactment on the score of asserting their privilege; for they had already determined that the power was in themselves to vindicate and protect their privilege, and he did not believe that this was the proper time for them to agree to such a course as that proposed. He placed great confidence in the opinion of his right hon. and learned Friend opposite, but he was sure that his right hon. Friend would excuse him for saying, that having paid some attention to the subject, he could not help entertaining the opinion that the resolutions which had been alluded to, were well-founded, and were essential to the preserving the legislative power of the House. He was prepared to shew that they were not only well-founded as he believed, in parliamentary law, and that they could be supported by the sanction of the greatest constitutional authorities; but that the maintenance of the privilege involved in the resolution, was essential to the due discharge of the functions of Parliament; and he did not go one iota beyond what he believed to be absolutely essential when he asserted this. Gentlemen who did not look to the consequences of their proceedings, might look to the propriety of limiting these resolutions. He, however, begged the House to look to the proceedings
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in the Court of Queen's Bench, which gave rise to these resolutions. When the first action was brought, the House was called upon to vindicate its privileges. They, in consequence of the proceedings then taken, adopted the resolutions which he contended were in conformity with the first principles of parliamentary law. He did not think that this was exactly the opportunity of going into this question; but he contended that the principle involved in them was essential to the House. He would pass them by for the present, but he contended that they could be maintained without the bill proposed by the noble Lord, which, so far from being calculated to relieve the House from the difficulty in which it was placed, would, he was convinced, involve them in proceedings of an embarrassing nature, far beyond any thing that would be gained by it. He believed that the effect of it would be deeply and permanently injurious to the privileges of that House and to the public. On the first action, as he was about to state, a few months since, the House chose to plead in bar their privileges, and that the acts or publications that Mr. Stockdale complained of, were performed under the sanction of the privilege of that House. That plea was overruled. He entertained great respect for the opinion of the Court of Queen's Bench, but as an independent Member of that House, forming an opinion on part of the law of Parliament, he did not hesitate to express a confident belief, that that judgment was wrong and unfounded. He was, therefore, only anxious that the House should not do anything that would appear to adopt or sanction that judgment of the Court of Queen's Bench. That court stated that it did not consider that the order of the House was any defence, and that it could not be pleaded in bar to an action. He, therefore, cautioned the House to take care, since that judgment had been pronounced, that they did not adopt any course by which it might appear that they gave judgment against themselves in pronouncing such an opinion as admitted in any way the validity of that judgment. The bill proposed by the noble Lord, had for its object the stopping, by a summary proceeding, any actions that might be brought for publications authorised by the House, and when they enacted this, did they not virtually admit, that in the former case the plea of the privileges of that House, was not a plea in bar to an action? Did they not admit that the Court of

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Queen's Bench had a right to overrule that plea, which was only put in at the third stage of the action, instead of coming at a very early part of it? By passing a legislative measure to stop future proceedings in a summary manner, the inference would be that the House admitted that it could not set up its order as a plea in bar, but that it was found that something further was necessary, and that the House must get a legislative authority to enable it to stop their proceedings. He was sure that the noble Lord by his bill did not intend to affect, in any way, the privileges of the House. The noble Lord thought that by resorting to a legislative measure, the House would only sanction its former judgment, but he contended that by it, the former decisions of the House would be impugned, and that its privileges would be endangered. It would be considered that there was no stability in its judgment, and that it looked back with some degree of doubt on its former proceedings. The conclusion would be, that they would not have left the judgment of the court unimpugned, if they could have dissented from it. Therefore it was that he contended that the introduction of the bill into the House, would only tend to increase the present embarrassments. The bill, as it appeared to him, when he considered the nature of the judgment of the court, was calculated to increase, and encourage, and give rise to attacks on their privileges. He did not believe that many Members of the House were precisely aware of the numerous instances in which privileges were now conceded to them, and of which the public had the benefit, but which might be called in question. How many important acts of legislation in that House had passed by small majorities? The Act of Settlement passed by a majority of one. How easily might it happen, when a debate was likely to take place, if Members of Parliament were liable to be subpœnaed to the counties of Northumberland or Cornwall, that parties might withdraw a few of the most efficient Members? How often would one person or another be disposed to summon some right hon. Baronet, or some noble Lord to a distance on certain occasions? It was not disputed now—the question had not arisen regarding the exemptions of Members of Parliament from answering such summons. But Members might be called to serve on juries—they might be made liable to serve the office of sheriffs, There was an infinite variety of
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offices from which they were exempted by Parliamentary privilege—not for the individual benefit of the Member, but in order that the public service might proceed. In every one of those instances the question of privilege might arise, and on the most important occasions. Had they a right to call for papers? Had they a right to summon witnesses? Had they a right to the exemptions from various offices? But it would be endless to repeat the instances in which questions of privilege might arise. A. refused to answer a question, or a party refused to produce papers, or refused to attend. All these might give rise to discussions in courts of law, where the jugdes should judge of the necessity of the examination of the witness, of the relevancy of the papers, and of every other circumstance which could be connected with the discharge of Parliamentary duty. Let the House not fancy that while Parliament had been deemed paramount—while that had been conceded for ages which the Court of Queen's Bench denied—conceded, too, by the brightest names that adorned English history by judge after judge—that while the House of Commons was deemed co-ordinate with the House of Lords, superior to the courts of law, and judges of their own privileges—let them not fancy that what they possessed under these circumstances they would retain when their position was changed—let them not fancy that they had a fee simple in all their privileges, when they were only tenants at will of this one. The Court of Queen's Bench had displaced the constitutional position of the House. That House was no longer, according to the judgment of the court, a co-ordinate authority with the House of Lords. That balance and constitutional check, which had been the pride of those who had investigated and expressed opinions on the British Constitution, was gone. If that House might have every one of its privileges decided by the House of Lords, the independence, and honour, and authority of the Legislative body was diminished. It was important that respect should be paid to the courts of law who executed the law. It was not less important that respect should be paid, and dignity enjoyed by those who made the laws. He only regretted, when he looked back to the language expressed in the House, to see that those who valued old institutions, and above all valued the institutions which formed the British Constitution, should have forgotten that the

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House of Commons was one of those. With a House of Commons subordinate to the House of Lords, the Constitution was lost—the best safeguard was gone which had convoyed their liberties through times of the greatest danger and difficulty, in which the Constitution would have perished but for the authority of the House of Commons. They were about passing an Act of Parliament, leaving untouched the judgment which had displaced them, which tended to destroy the respect which gave effect to their acts, by making them subordinate to the lowest court of justice in the kingdom. What was it that invited such men as the country had reason to be proud of—men who adorn the House—to become its Members? It was the rank, and station, and authority of the House. Alter the Constitution—change the condition of the House, and it would cease to invite men of that class. It was from its importance, its rank, and station, that all men were ambitious to become Members of the House. He said, then, that whatever was its present condition, let but a short time pass, and let the judgment of the court receive the sanction of the House—let the House become subordinate to the House of Lords—remove it from being what it had ever been—the check, control, and balance of the other power of the state, and it would sink in esteem and dignity, as it must do when every one of its own resolutions regarding its own powers would be liable to be reversed by the lowest court of justice in the kingdom. His objection to the bill was, that when they did not venture to assert their privileges—when they did not express the slightest dissent from the judgment pronounced by the Court of Queen's Bench, they in effect affirmed that judgment for practical purposes. He knew very well that there was no reason to hope or believe at the present moment that a bill which was not open to these objections would pass both Houses of Parliament. That in his mind was the reason why they should not legislate at all. He was anxious—most anxious, desirous, if possible, to put an end to the present state of difficulty and embarrassment by legislation, if a settlement could be obtained consistently with the usefulness, by which he meant the authority, the dignity, and the station of the House. He believed that no such bill could be obtained, but he would not on that account take a bill pregnant with more difficulty and danger than it was intended to remove, He conceived that no
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man could look at the state of circumstances which now existed, without perceiving that the course of proceeding by legislative measures must most seriously affect the permanent station and character of the House. He had before occupied the attention of the House at such length that it was his most anxious desire to spare them on the present occasion, and therefore he only wished to call the attention of the House to those matters which impressed his own mind, and which led him to think that he was only discharging a duty in opposing the bringing in of the bill. He conceived that they were doing a great evil in bringing in such a bill. In the first place, he did not believe that it would pass even in its present form. He believed it would undergo alteration, which in all probability would render it more objectionable. He did not believe it would come back to the House such a bill as the noble Lord would himself accept. He could not consent to send up a bill which he knew would be the subject of discussion not calculated to increase the dignity of the House—not calculated to put down resistance to the House, but calculated rather, though no such intention might be entertained, to stimulate resistance, and to encourage defiance in those who were disposed to resist the authority of the House. He considered that, the House being at present divided as it was in opinion on this subject, that sending up a bill to be the subject of discussion was not likely to ease or terminate their difficulties, but to increase them. There was no ground to anticipate with any such degree of certainty as would warrant their increasing the hazard of their position. But suppose the bill passed. Suppose it passed in u shape which the noble Lord, consistently with his anxiety to preserve the honour and usefulness of the House, could recommend to the adoption of the House. If he was at all right in the consequences which he ascribed as likely to follow from this bill, they would have announced by it that they required other powers than they possessed to maintain their privileges. His opinion was, that they were asking this in respect of the privilege least likely to be called in question. His right hon. Friend who had addressed the House with the caution that belonged to his intelligence, spoke of the care they ought to take regarding their publications. Much had been said regarding the want of care on that subject. But those who made such charges would do

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Well to remember that no complaint had been made in a course of two hundred years, the House having, during that time, passed through inquiries of the most important, and, in many cases, of the most distressing nature: having examined into abuses of the South Sea schemes, of the slave-trade, of municipal corporations—into all the subjects which filled their voluminous papers, containing so many of a criminatory nature, and all published with a view to legislation. Surely something might be said on behalf of the House, when it appeared that the only individual who, in a course of 300 years, had complained of its publication was Stockdale, regarding whom there had been a verdict, that all that was said of him was true. He could not help thinking that this circumstance gave pretty good assurance that there had not been so much falsehood—there had not been such an over abundance of slander—published by the House as some folks were apt to imagine. He could conceive very many privileges much more likely to be challenged than the privilege of publication—such as that of examining witnesses, or calling for papers. If these privileges were challenged, how would they proceed? The Court of Queen's Bench had placed them in a new position. Three judges thought that what was necessary for the discharge of the duties of the House was privilege. Mr. Justice Coleridge, however, said, it was not enough to make out that power was necessary. They went also to show that it had been allowed—by allowed, meaning anciently allowed. They were then told by one of the judges that they had not the power necessary for the discharge of their functions, and by the others that what was required for the performance of its functions belonged to it as privilege, but it lay with the judges to decide whether a privilege claimed was necessary or not. He had taken the opportunity of moving for a return, for the information of the House, of the writs of error brought from the judgment of the Court of Queen's Bench in the last four years. There had been twenty writs of error brought in that time, and ten judgments reversed, judgments in which the court had been unanimous. What a bonus did this hold out to those who were disposed to enter into a legal contest with the House! What uncertainty would attend the decisions of the court, and what an opportunity of accomplishing their ends would be afforded to those disposed to resist the House? It was no mat-
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ter about the result—whether the court sustained the privilege or not—the time was gone by when the information which the House might want was required, and they would be compelled to act without it. The great evil of uncertainty must attend every step of their proceedings. A great bounty would be afforded to those who were disposed to resist every step, in the hope of succeeding by the judgment of some court or other in the kingdom. There would be no certainty in any one of their privileges, and a privilege so little questionable as that of the circulation of paper having been attacked, it was reasonable to expect that their other privileges would be called in question. He thought such attempts would be encouraged by the bill, because it would have the effect, to a very considerable extent, of confirming the judgment. But how did they stand at that moment? They might stop Mr. Stock-dale's action in the manner proposed, by lodging a certificate forthwith, and under the authority of the Act, legal proceedings would be stayed; but how did they stand with regard to Mr. Howard, who had brought an action against the Sergeant-at-Arms? Would the bill stop his action? He did not so understand it. If it would so stop him, and if the bill were made general, there would be no objection to it, but Mr. Howard would remain, and they would still have all the difficulties, all the embarrassment, all the waste of time in discussing and maintaining their privileges, which they had without the bill. They would be relieved from none of the discussions which for great public purposes they wished to avoid by the bill. He could not help thinking that Mr. Howard's would not be the only action which would be brought. Whether the occasions existed at that moment which might give rise to actions he would not say, but if the opposition and resistance to the privileges were to lead to a violent contest with the House of Commons the sooner they made a determined stand the better; there was no use in delaying what could not be avoided; and it was better to show at once, by this conduct, that they were determined to exert the powers which the Constitution gave them. He would only repeat, regarding such powers, that there was not a court of justice in the kingdom that could or did exist except mainly by them; and the Houses of Parliament had only existed by them. The pressure of personal imprisonment was the most important and extensive means by

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which they were protected. To say it was not sufficient with regard to the House was to speak contrary to experience, which had manifested its sufficiency in the House of Commons hitherto, as well as in every court in the kingdom. The question in which they were involved had arisen from no fault of the House. It could not be avoided in the performance of their duties. The House had no reason to expect that an attack would be made on such an exercise of their power by the Lord Chief Justice of the Queen's Bench. When that attack was made, the House had no choice, no resource, but to meet it by a prompt declaration. And what were the grounds on which the court rested its judgment? Mainly the dicta of other judges uncontradicted by the House. They said it was impossible that Parliament would have passed them by, unless it had been satisfied that they were correct. Look at the striking judgment of the Lord Chief Justice. If they passed by that, would it not be a ground for asserting that it was correct also? The House took the course which it had taken from its duty to the public, for whose benefit the privilege existed—most of whom little perceived the consequences which were involved—little perceived that the question was, whether the independence and efficiency of the House of Commons should continue to exist. But let them look to the effect of making one branch of the Legislature subordinate to another, and to all courts of justice, and they would perceive the true character of the contest. He said that House had acted as tenderly as it could in the maintenance of its privileges. It had not in any one commitment gone further than former Houses of Commons, and those not in bad times. He did not know whether the functions of the House were less important now; but he would venture to assert that their efficient existence was never more seriously threatened than at that moment. He would repeat that he was ready on a proper occasion to meet the right hon. Gentleman (Sir E. Sugden) and show that the House had acted tenderly in the course which it had pursued. On the ground, therefore, that they could not legislate effectually even on their own views—that they could not by legislation relieve themselves from the embarrassments in which they were involved—that they had no resource but a firm reliance on their own power and authority, on the ground that the bill, while it would relieve them from
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none of their difficulties, would greatly increase some, and create new ones,—he submitted to the House that it was inexpedient to attempt meeting those difficulties by legislation. It was a course which presented only fallacious hopes of escape. In this instance, as in most others, the most direct and firm mode of meeting the difficulty was the surest path to safety and honour.
Lord Stanleyhad not at any previous time felt justified in trespassing on the attention of the House, even by a single observation on the subject of privilege, but had sat during almost every discussion a silent but by no means inattentive or un-anxious auditor of what had taken place. The present time, the hour of the night, and the deference which he felt for the hon. and learned Gentleman who had just sat down, admonished him to be as short as possible in stating to the House simply the grounds of the vote he was about to give in favour of the measure which the noble Lord had proposed to introduce. He was well aware that the motion was liable to attack from both the one and the other side of the House. He had not listened to the discussions, and still more he had not attended the Committee which had been sedulously and laboriously investigating the case up stairs, without perceiving distinctly how many plausible arguments, how many sound reasons might be urged on the one side and the other; and how important it was, for the best interests of the country, that they should come to a sound conclusion, free from passion and prejudice, on the subject; and, at the same time, how difficult it was, nay, how daily and hourly it was rendered more difficult, by circumstances pressing upon them, irritating their feelings, and warping their judgments, to come to a sound, unprejudiced and impartial conclusion. The noble Lord had been attacked by Gentlemen sitting upon both sides of the House, but upon most opposite grounds, and arguments of the most conflicting nature had been made use of. The noble Lord's proposition had been opposed alike by those who wished to preserve, and those who wished to abandon the privilege of publication, and it was really most difficult to frame arguments to meet the opposite views of Gentlemen with such different notions. But he confessed at once, without any hesitation, that he felt as strongly as the hon. and learned Member could do, the absolute necessity of maintaining the privilege of

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publication, and of preserving it in full action, subject only to that discretion and restriction which the House might think fit to impose upon its own powers of publishing information on those subjects which, being the grounds of legislation, it was its duty as a representative and legislative body to place before the cognizance and the judgment of the public. No man could contend more strongly than he was prepared to do for the full maintenance of the privileges of that House, and if he thought with the hon. and learned Gentleman, that the adoption of the bill of the noble Lord would tend to destroy those privileges, to defeat their own objects, and to superinduce a danger more prejudicial in its consequences, the House would find him as prepared to oppose the noble Lord, as he was now prepared to support him. At the same time he did not agree with his right hon. and learned Friend, the Member for Ripon, in thinking that it was unfortunate that the case of Mr. Stockdale should have been the one on which the question of privilege had been brought to issue, because if the issue had been taken upon a weaker case it would then have been said, that upon such a case no practical question would arise, as no jury would give damages in such, nor would the Court of Queen's Bench rule against the course pursued by the House of Commons. For this reason he did rejoice, that the question had been brought to issue upon precisely such a case as the present. The House was proceeded against by a man of notoriously infamous character on account of statements published in a document which had been ordered by the Queen to be laid before both Houses—a document which was nothing less than a report of commissioners who had investigated gross abuses, in answer to allegations that such abuses did not exist, and to a challenge to produce the facts in proof of such allegations. Was the subject of these investigations an important one? No; for it related to no less a subject than the management of the principal prison of the metropolis. What was the effect of the report? That in the hands of the prisoners in that prison, had been found obscene books. Did the matter rest there? No; for a public body came to that House with an allegation denying the facts and questioning the report of the Commissioners; and in consequence of that denial the, Commissioners returned to the House a further report, in which they vindicated the accuracy of their former report, and stated
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that an obscene publication of a person named Stockdale, who was well known, had been found there. Upon this justificatory re" port of the commissioners proceeded subsequent legislation. If, then, in a case so strong as this, the Court of Queen's Bench had thought fit to step in and to say they did not admit the right of the House to publish what was so essential to the public good, but classed such publication with an ordinary libellous letter of an individual, without inquiring whether the publication was justifiable or not—if each individual ease of publication was to be subjected to the investigation of any tribunal in the world, there was an end, and for ever, of their independence. With every respect for the laws, and for the authority of courts of justice, he at the same time entertained a respect for the authority of Parliament, and for the privilege which they exercised, not for individual advantage, but for the instruction of the people, to whom it was most essential to know on what grounds their representatives in the Legislature in their behoof, and for their benefit, proceeded in their legislation. Of the privilege of publishing information to the extent which the House might think fit, he would not abate one jot—he would maintain the rights and privileges of Parliament in that respect to the utmost. But while he did this, did he deny that Parliament ought at the same lime to exercise the strictest vigilance as regarded the use made by them of that privilege of publication? On the one hand, he maintained the House of Commons ought to have the privilege of publishing defamatory matter, where the publishing of such matter was for the public good, in the same manner as he who gave a character of his servant was protected from any consequences, even if that character were libellous, because such statement came under the class of privileged communications. So Parliament might be and was called upon to become a wholesale libeller in consequence of the duties it owed to the public; and in like manner it must be protected against the consequences of pain inflicted on individuals, not maliciously or wilfully, but in discharge of a public duty. Nay, he maintained that the duties of Parliament could not be performed without this privilege; for their most important acts were frequently founded on a succession of libels, in which individuals might be subjected to injury or punishment, Should be, then, submit such.

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a privilege to the judgment of any court in the world? With every possible respect for the judges now presiding in the Court of Queen's Bench, he said that they ought not to subject a privilege of such high importance to the possibly political views of any particular chief justice? As to the powers which Parliament ought to exercise, he agreed with the lion, and learned Gentleman that if any concession were admitted, the next privileges that would be attacked would be their freedom of speech, and afterwards that all the other privileges which they enjoyed, in order the better to enable them to perform their duties to the public, would be impugned. But he did not agree with the right hon. Member for Ripon, that no care had been taken by Parliament to impose a check on the possible undue exercise of the power of publication. The right hon. Gentleman had to-night given notice of a motion for the appointment of a committee to inquire whether any restriction was imposed upon the publication of printed papers by that House. This was an alteration of his original motion, for on a former day the right hon. Gentleman had given notice of a motion to rescind the order for the publication and sale of the printed papers. Now he was not about to argue with the right hon. Gentleman, that the public and general sale indiscriminately of the printed papers of that House did not produce an effect upon the public mind with regard to the bearing of this question. But at the same time the right hon. Gentleman would not deny that, as regarded the strictly legal offence, such as constituted a pretext for the interference of a court of law, the publication by public and general sale indiscriminately did not at all differ from the mode of publication which took place prior to the year 1834, when any Member could obtain half-a-dozen copies of any publication and send them down into the country. He quite admitted the distinction in the popular sense, but maintained that in a legal sense the old and the new mode of publication were one and the same. He regretted the course taken by the right hon. Gentleman, in giving a notice which was only for the present suspended, to inquire into the practice that had existed and did exist, the restrictions that bad been imposed, were imposed, and which ought to be imposed. It was only a few days ago that the right hon. Gentleman withdrew from a committee appointed expressly to inquire into the same subject, and if he
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had remained on the committee, he would have known that they gave the subject their especial attention. The right hon. Gentleman, however, did not object to the bill, provided some restriction were placed on the sale of the printed papers. That proposal was nothing less than a begging of the whole question. But suppose such a restriction were imposed by the present House of Commons, what was to prevent some future House of Commons from withdrawing it? The right hon. Gentleman thought, that when he had got that House to impose a restriction, he could then get an act of Parliament. Such a restriction, however, he did not think necessary. Whatever might now be the popular impression on the subject, he did not doubt that when the report of the committee in question was published, they would see that every precaution that could be taken, was taken, to prevent the infliction of unnecessary pain upon individuals. No man could feel more strongly than he did the evils entailed on individuals by some of the statements contained in the printed publications of the House of Commons; but at the same time he must say, on balancing the evils, he could not but think that the injury to individuals was outweighed by the advantage conferred upon the public generally by the exercise of the privilege of publication. He would now return to the hon. and learned Gentleman opposite, with whom he was prepared to assert to the fullest extent the principle of publication. The hon. and learned Gentleman called upon them not to pass the bill, first, because he did not think that it would produce the advantages expected from it and, secondly, because of the ulterior consequences arising out of the resort to a declaratory act. The hon. and learned Member said, that the judgment of the Court of Queen's Bench was wrong. He hesitated to pronounce judgment upon those who were so much better qualified than he was to lead the House aright; but he hoped that, sanctioned by the opinion of the hon. and learned Gentleman, and of other eminent lawyers in the House, he might be permitted to say, that in his judgment that decision was as wrong in law as he believed it to be unsound, constitutionally speaking. But, said the hon. and learned Gentleman, take care that you do not by your proceedings now confirm that judgment of the Court of Queen's Bench. The hon. and learned Gentleman, however, had failed to show how the bill proposed to be introduced by the noble

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Lord went to confirm that judgment. There was not in the bill any affirmation confirming the view of the law contained in that judgment, nor was there any affirmation denying it. The bill of the noble Lord, simply admitted the importance of maintaining the privilege of publication enjoyed by the House of Commons; and, while it admitted the hardship to which individuals had been put, it confirmed by a parliamentary enactment the doctrine under which these individuals had been subjected to that hardship, and gave the House of Commons certain powers which enabled it to exercise that privilege without running the risk of inflicting more hardships upon individuals. Nothing could be more necessary than such a measure, in order to prevent the renewal of the necessity to which the House had been put of keeping the sheriff's in confinement. Of the many votes he had cheerfully given in support of the motion of the noble Lord on this question, for none had he voted with greater regret (while he admitted the necessity of the vote) than for that which condemned to confinement two gentlemen of unexceptionable private character, against whose general conduct no charge had been made, but who, from being placed between two jurisdictions, could not escape the dilemma of disobeying one or the other. Why did he vote for their confinement? He was reminded of the hardship of subjecting to confinement two persons whose only fault was that of obeying that which they conceived to be the law. But the authority of the House of Commons was co-equal with that of the court of law; and if it did not maintain its privileges it would cease to be co-ordinate with it. [Hear, from Sir E. Sugden.] The right hon. Gentleman cried "hear," but did he mean to say, if there was a contest between two co-ordinate authorities, one of whom had imprisoned the servants of the other, that if one of those authorities from a desire not to inflict hardship on individuals, gave way, that such conduct would not amount to a giving way by the party so acting to the other? Would it not subject the party so giving way to contempt? Why, this ground of hardship to individuals was alone reason enough for the interposition of the Legislature to prevent the repetition of such occurrences in future. He repeated, that he did not propose to abandon one iota of their privileges; but at present, though their privileges were great, their power of enforcing them was
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very limited. Though during the Session they had an unlimited power of imprisonment, yet when the Session closed, that power ended; during the recess they had at present no power whatever to protect those who obeyed their orders. But for such a law as that proposed by the noble Lord, nothing could avert their gradually approaching that point where law ceases and the dominion of force begins. The continual exercise of their power of imprisonment could lead to nothing else, nor could any other result follow the painful conflict of two co-ordinate authorities, with powers pushed to the extreme; and it was for these reasons that he supported the bill, and was anxious to secure the House from the consequences. In what other way than by such a measure could the House continue to maintain their privilege of publishing? Their power of imprisonment extended only during the Session, and their only means of punishing those who had commenced actions and been instrumental in the receiving of damages during the recess was, by imprisoning them at the next meeting of Parliament. And how was this to be done? By committing every person who had been at all instrumental in bringing or conducting the actions—the plaintiff, the solicitor, the barrister, and, ultimately, the judges themselves. And after all the House must submit to be plundered and to propose a vote to indemnify their own officers out of the public purse. While punishing with the one hand, the House would be paying damages with the other. The bill provided for a due investigation into the nature of the papers published, so as to prevent the abuses that were likely to arise from the indiscriminate publication of Parliamentary papers; while, at the same time, it reserved within the breast of Parliament to decide what the extent of that restriction should be. The right hon. Gentleman the Member for Ripon did not see that the bill provided for the exercise of that restriction, but the effect of the bill was to enable the House to impose certain restraints, to be decided on by itself, upon the exercise of the privilege of publication. But the main effect of the bill was to remove one of the great objections of the people of England and the courts of law to the exercise of this privilege—the impossibility of duly supporting it without inflicting undue hardship on individuals who might be placed between two jurisdictions, The bill by confirming

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(not giving) the powers claimed by the House of Commons, would enable the House to support those privileges, and at the same time give the judges a locus slandi. They would be able to say, "Here are privileges asserted, confirmed, and supported by law, and a course laid down which we are bound to obey;" and then would be removed the most formidable objection that had now been raised against this privilege. Whatever might be the result of this bill in another place—and God forbid that in another place there should not be sufficient temper, or good sense, or candour to deal with it with the earnest desire to come to a satisfactory settlement of it—at all events, they in that House would feel that they had done their duty; and while they maintained and enforced their privileges, they would seek at the same time earnestly to place them on the basis of satisfactory legislation.
Debate adjourned.