Lords Sitting of 4 August 1831

MINUTES.
Coal Duties Bill, read a second time.

AFFIDAVITS' IN CHANCERY SUITS.
The Lord Chancellor The Lord Chancellor moved the second reading of the Chancery Affidavits' Bill. When the Bill had been read a second time, he should move the suspension of the Standing Orders, in order to allow it to pass through the rest of its stages that day.
The Earl of Eldonopposed the Bill, on the ground that it was totally unnecessary, because the Lord Chancellor had the power, of his own authority, to have affidavits read either before or after Seals, or at any time that he chose, from the first day of January to the last day of December. He had power, even in the time usually called the long vacation, to proceed with causes in any stage, and to hear affidavits read, or carry on any proceeding touching the suit, and to call counsel and solicitors before him to proceed with the business of the Court. He had sat a long time in the Court of Chancery, and never had the least doubt as to the Lord Chancellor's powers in this respect. There was, therefore, in his opinion, no occasion whatever for passing this Bill; and as there was no occasion for it, that was a sufficient objection to its passing. He had sometimes sat from six o'clock in the morning till eleven at night; and, at all times of the day, and at all times of the year, he had permitted applications to be made on important matters requiring despatch, and had heard affidavits read, without any doubt of his power to do so, in case he had thought it proper. The Courts of Chancery were open during the whole year, and their business might at any time be transacted, without regard to its being before or after Seals, which were appointed merely as matters of convenience. He should be sorry, therefore, that a Bill should be passed to enable the Lord Chancellor to do that which he himself had ample jurisdiction to do of his own authority.
The Lord Chancellorneed scarcely say, how highly gratifying to him it was, to hear it laid down as an undeniable proposition, by the highest living authority, that it was competent to the Lord Chancellor to hear affidavits read, and to proceed with the business of his Court at any time of the year, without any other regard to times or seasons than that which might arise from the convenience of the suitors and the Court, and the proper despatch of business. But the objection had been taken by parties in Court; and where there was a losing party, and that party was in possession of the Court, it often happened that he was anxious to protract the final decision of the cause, and with that view to take advantage of every real or supposed formality calculated to suit his purpose. A delay of this kind had been attempted the other day, and he had asked the most experienced members of the Bar, whether there was any good and valid objection to the reading of an affidavit after the last Seal? The general opinion was, that it could not be done. He had asked, upon what principle this practice was founded, of not having affidavits read in cases of this kind, after the last Seal; but, as to this, he could get no satisfactory explanation: but it was said, that in practice it had not been done. He then applied to one of the Registrars, a gentleman of great experience, and his observation was, that it never had been done before. He had then consulted another Registrar, also a gentleman of great experience, who said, that it had never been done; but he could give no satisfactory account of any principle, and was rather of opinion that it might be done, although there was no precedent for it. In the absence of precedent, and seeing no principle for his refusal to hear affidavits read, in cases of the nature then before him, he drew up an order, and caused it to be fixed up in proper places, to give notice, that he would hear affidavits read, and proceed with the business. But still parties insisted on the objection, and one of them refused on that ground to appear. Seeing, then, that some doubts were entertained, and that the objection might be taken advantage of in case of prosecution for perjury, he thought the best way would be, to put an end to all doubt by means of an Act of Parliament. He, however, gratefully acknowledged the assistance which he had received from his
726
noble and learned friend, and as his noble and learned friend, the highest living authority—and a higher there could not be, whether living or dead—was so decidedly of opinion, that a Statute was totally unnecessary, he could have no object in proceeding with his Bill. He took it for granted, upon an authority as high as that of any of the decided cases, that the Lord Chancellor had the power which was required, and that, therefore, a Statute was unnecesssry. If it was unnecessary, it was, of course, inexpedient. Again thanking his noble and learned friend for the assistance which he had given on the present occasion, he would decline proceeding further with the Bill. He would, with the permission of their Lordships, allow the matter to stand over, that, if any difficulty should hereafter be thrown in the way of the Court, such a measure might, as speedily as possible, be passed into a law.
The Earl of Eldonwas quite clear as to the authority of the Lord Chancellor, and that there was no ground for doubt on the subject; but he begged to disclaim any intention to dictate to the noble Lord on the Woolsack.
The Lord Chancellorhad not said, that he himself had any doubt on the subject. His opinion certainly was, that he had the authority; but, as others, high in the profession, doubted his authority, he had introduced the Bill, chiefly out of deference to their opinions. He would mention what the real doubt was. There was no doubt as to whether affidavits might be generally read; but the doubt was, whether affidavits could be read in cases of appeal entered after the last Seal after Term. An appeal was entered, and notice of the circumstance was served, and then the question came to be, whether, as the appeal was entered after the last Seal, the affidavit of service could be read? The entry of the appeal after the last Seal, made the difference, as they said; and, although he had himself little or no doubt as to the power of the Lord Chancellor, he had introduced the Bill out of deference to the opinions of others of great experience. Now, however, he would not proceed further with the Bill at present; but would still retain it in the House, when it might be proceeded with, in case it should hereafter appear that there were any reasonable grounds of doubt.—Bill read a second time.

DONNA MARIA OF PORTUGAL.
The Marquis of Londonderryhad, the other day, asked a question of the noble Earl at the head of his Majesty's Government, relative to the reception at Portsmouth of little Donna Maria; and it was with pain that he felt himself justified in complaining of the want of candour in the noble Earl's answer to that question. He had asked the noble Earl, what orders had been sent to the authorities at Portsmouth, to receive Donna Maria as Queen of Portugal? And the noble Earl had answered, that he did not know what orders had been sent as to her reception; and that he did not know whether any orders at all had been given on the subject; and with that answer he (the Marquis of Londonderry) was bound to be satisfied. But, after having received this answer, he was surprised to see in the Evening Papers, a statement, apparently founded on good authority, that orders had been sent to the proper official persons at Portsmouth, to receive the Emperor Don Pedro, and his daughter, the little Pretender, as he must call her, Donna Maria, with all the honours usually paid to crowned heads; and then there was a detailed account of what these honours were to be. Now he really did think it very extraordinary, that, if the noble Earl was apprised of the intended arrival of the little Pretender, and had made preparations for that arrival, no orders should have been sent respecting her reception, or that, if any orders were sent, they should have been sent without the knowledge of the noble Earl at the head of the Administration. It appeared, then, that the noble Earl was so little in the confidence of some members of his own Cabinet, that they really did not think it worth while to apprise him of what steps they were taking in matters of high importance. They sent the orders, it appeared, without thinking it necessary to consult the noble Earl at all about the matter, so that there was a want of confidence between the noble Earl and some of his colleagues, on other subjects besides the Reform Bill. Since, then, it appeared, that orders had been sent to receive the little Donna Maria, with all the honours usually paid to crowned heads, he wished to know whether the noble Earl had any objection to produce the orders, or to lay copies of them on the Table?
Earl Greydid not know upon what
728
grounds the noble Marquis imputed to him a want of candour in the answer which he had given to the noble Marquis's question. The noble Marquis had asked, what orders had been sent to the proper authorities at Portsmouth, to receive Donna Maria as Queen of Portugal; and his answer was simply, that he did not know what orders had been given for her reception, or whether any orders at all had been given on the subject. That was the fact. It might be culpable in him to be ignorant of what had been done about the reception of the Emperor Don Pedro, and his daughter, Donna Maria; but, at the same time, when the noble Marquis put the question, he was not aware what orders had been given, or whether any orders had been given on the subject. In consequence of the noble Marquis's question, however, he had made inquiries; and the result was, that he found that no letter, or written direction, had been sent by the Secretary of State on the subject, but that some verbal conference had taken place between the Secretary of State and the Commander-in-chief of the Army, and the First Lord of the Admiralty, relative to the reception of the Emperor, Don Pedro, and his daughter. But the orders went to her reception with the honours generally paid to royalty, without the least reference to her title as Queen of Portugal. The honours directed to be paid, were merely the honours usually accorded to the royal station, without any political recognition or reference to the title of Donna Maria, as Queen of Portugal. The noble Marquis had thought proper to designate her as a Pretender. But the noble Marquis could scarcely have forgotten, that Donna Maria had been received and recognised by his late Majesty, and by the late Government, as Queen of Portugal, and had been treated as such with royal honours. But her late reception at Portsmouth had nothing to do with her title as Queen of Portugal, but was merely the usual reception afforded to royalty. Notwithstanding, then, the solemn questions and threatening denunciations of the noble Marquis, with regard to this reception, the noble Marquis had only, after all, discovered what was vulgarly called a mare's nest.
The Earl of Aberdeenwas glad that his Majesty's Ministers had not given any orders which implied a political recognition of the title of Donna Maria, as

729
Queen of Portugal; and he agreed with the noble Earl, that the directions given as to the reception, really did not amount to more, than that Donna Maria was to be received with the honours usually, in courtesy, paid to persons holding the royal station. The noble Earl had remarked, that his late Majesty had acknowledged Donna Maria as the heiress of the Portuguese Crown, and had received her as Queen of Portugal. He did not mean to give any opinion as to the validity of the title of Donna Maria to the Throne of Portugal; but he did say, that the question as to whether her title was valid or not, was one beyond our jurisdiction. It was a question for the Portuguese, and for them only, to decide. If we were to interfere, and take upon ourselves to say, that Donna Maria was Queen of Portugal, we might just as well take upon ourselves to say, that Henry the 5th should be king of France.
The Marquis of Londonderrywas much gratified to find, that the orders given as to the reception of Donna Maria, did not imply any acquiescence in her assumed title of Queen of Portugal. As to what the noble Earl had said, relative to the recognition of Donna Maria as Queen of Portugal, by his late Majesty, it ought to be kept in view, that three years had elapsed since that time, and that circumstances were now entirely different from what they were then. The Portuguese, with whom alone the matter rested, had chosen their own Sovereign. He did not mean to say anything as to the character of that Sovereign. On that point there was much difference of opinion. But it was sufficient that he was recognised by the Portuguese nation as their Sovereign, and received by them as such, with as much obedience, affection, and attachment, as ever sovereign was received in any country. It was impossible, then, that a Ministry which laid so much weight on the principle of non-interference, could attempt to set up a sovereign of Portugal, contrary to the one whom the Portuguese had chosen. The noble Earl (Earl Grey) had, some time ago, made a speech in favour of the principle of non-interference, to which speech he would have the opportunity of adverting in a few days; but, in the mean time, he was glad, that he had forced the noble Earl to give a satisfactory answer to his question.

GROWTH OF TOBACCO (IRELAND) PROHIBITION BILL.
Lord Auckland Lord Auckland moved, that their Lordships should resolve themselves into a Committee on the Bill prohibiting the growth of Tobacco in Ireland. The object of it was, to extend the prohibition which already existed in England and Scotland, as to the growth of Tobacco, to Ireland. It appeared, from evidence given before a Committee of the other House of Parliament, that it could not be grown with advantage there, unless the growth were protected as it had hitherto been, by a duty of 1,200 per cent on the cost price of foreign Tobacco, the duty being 3s. per pound. The permission to grow tobacco in Ireland would be unjust to other parts of the empire in which it was prohibited, while, if the duty on foreign tobacco was diminished, it would come into competition with tobacco of Irish growth. He, therefore, trusted their Lordships would allow the Bill to proceed, as all the persons whose opinions were embodied in the Report of the Committee, were unanimously of opinion, that the prohibition would be beneficial to Ireland; and if their Lordships required any further inducement, he could assure them, that the measure, with a view to the revenue, was highly expedient, if not necessary.
Lord Teynhamapprehended, the last sentence of the noble Lord who preceded him, was the cause of the Bill being brought forward. The revenue, it was expected, would be increased by the prohibition to grow tobacco in Ireland. He wished the question to be looked at under a more enlarged view. Noble Lords were, no doubt, aware, that beet root had been extensively cultivated in France in order to obtain sugar; he believed a similar process might be advantageously adopted in Ireland, but then the cry would arise, "the revenue will suffer from the import and export of sugar being lost." He considered this idea was important to all persons interested in the welfare of Ireland, as he most sincerely was. Unless the welfare of the country was preferred to the revenue laws, he was persuaded, that Ireland would never be prosperous or contented.
The Earl of Wicklowthought, that the Bill was contrary to the principles of free trade, on which the Ministers professed to act. The measures for promoting the cultivation of tobacco in Ireland, was brought forward by Lord North, for the encouragement

731
of the agriculturists, and, therefore, they had a right to a full explanation of the causes why the growth should now be prohibited. The noble Lord, however, had confined his remarks to the question of revenue; but, under that view, he should have shown, that it was impossible to collect a tax on tobacco grown in Ireland. He could not suppose, that any greater difficulty would exist, than in collecting a revenue from hops or malt—on this subject he entertained strong feelings, because he lived in a part of Ireland, in which that cultivation had prevailed; he had lately, by way of experiment, put three acres under Tobacco, and the experiment succeeded beyond his expectation. He found, that in cultivating this article, he could give a great deal of employment to the poor, and make a reasonable profit.
The Marquis of Lansdownobserved, that, undoubtedly, this was a question of revenue, but from all the evidence given, it appeared that the growth of tobacco in Ireland could not be carried on in competition with other countries, without a bounty of 1,200 l. per cent. At present, the cultivation was confined to two counties, and unless they were prepared to grant the same permission to England, the culture of tobacco must be stopped in Ireland, or the revenue would suffer materially. The permission to grow tobacco in Ireland was granted by Lord North during the American War, not for the sake of Ireland, but out of hostility to Virginia. It was now found, however, that the extension of its cultivation in Ireland would be very injurious to the revenue, without being of any thing like corresponding advantage to Ireland, and it would be better to prohibit its growth in limine. A culture which could not be supported without such an enormous bounty, was clearly contrary to the principle of free trade.
The Earl of Wicklowmust beg to correct the noble Marquis on the subject of Lord North's Bill, which was introduced in 1778, for the express purpose of ameliorating the condition of the Irish people. He would further wish to call the attention of hon. Ministers to the Excise Laws, by the operation of which, great disadvantages were thrown on tobacco grown in Ireland.
Lord Farnhamwas sorry, that the first Act brought forward by the present Secretary for Ireland should be one of prohibition. He did not mean to say, that the provision made by the Bill was a bad one,
732
but it ought to have been accompanied by other enactments, favourable to Ireland. Until that question of paramount importance, now before the other House, came up to their Lordships, they could not, perhaps, be better employed, than in considering what penal Statutes could be removed, to better the condition of that country.
Lord Aucklandbegged to assure noble Lords, this measure was not brought forward as an act of severity to Ireland, but was simply an act of finance, which had long been under consideration, and which had met with the concurrence of all parties in that country. The quantity of land occupied at present by the growth of tobacco, did not exceed 600 or 700 acres, but if the growth was extended to the three kingdoms, the land most likely to be employed in its cultivation would not exceed 5,000 or 6,000 acres, the produce of which could not be expected to amount to 350,000 l.
The Bill went through a Committee— their Lordships resumed.

INDICTMENT OF MR. O'CONNELL.
The Earl of Eldon The Earl of Eldon rose to move, pursuant to notice, "That an humble Address be presented to his Majesty, praying that his Majesty would be graciously pleased to lay on the Table, a copy of the Indictment lately preferred in the Court of King's Bench in Ireland, against Daniel O'Connell, and others, on which Indictment the accused had been convicted." He begged leave distinctly to state, that, in making this Motion, he did not mean to cast the slightest imputation on the conduct of the Irish Law Officers. He could say from his own observation, that the Irish Bar was eminent for ability, and that the Irish Law Officers generally did their duty well. His Motion had regard, not to the past, but to the future, and his purpose was, to bring in a bill, providing that when a temporary law was enacted, any prosecution commenced while the law was in force should not be abated by the expiration of the law, but should be carried on to its full termination, in the same manner as if the law had still remained in force. It certainly was not a suitable state of things, that persons most properly prosecuted and convicted under such temporary Act, should be allowed to escape punishment, merely owing to the expiration of the Act before the punishment could be inflicted. In the indictment in question,

733
counts might have been inserted, as he conceived, on the Common Law; but, however, his only object at present was, to lay the foundation for a bill to the effect which he had stated. He was not aware that there was any objection to the Motion. —Motion agreed to.