Lords Sitting of 15 July 1836

MINUTES.
Bills. Read a third time:—Prisoners' Counsel; Judges' Chambers; Fisheries' Company (Ireland).—Read a second time:—Arms' (Ireland).
Petitions presented. By several NOBLE LORDS, from various Places, against all attempts to interfere with the Privileges of the House of Lords.—By the Earl of HADDINGTON, from Haddington, against Universities' (Scotland) Bill.

SOUTH DURHAM RAILWAY.
The Earl of Radnorpresented a Petition from one of the Directors of the South Durham Railway Company, complaining of the rejection of that Bill by their Lordships. He thought that the petitioner, and the other parties concerned, had much reason to complain of this Bill having been rejected without inquiry.
Lord Wharncliffeobserved, that what he had stated was, that this railroad would confer no public benefit, while it would injure the interests of individuals, through whose property it was to be forced against their consent; whereas, in every other case of collieries, the owners of these collieries were obliged to obtain the leave of the proprietors through whose
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land the railroad was to pass, and were even then obliged to pay a considerable sum for such permission. The principle he contended for was, that those who chose to speculate should be compelled to pursue that course—a course which had hitherto been always adopted. Whether the Bill originated in that or the other House of Parliament, he thought it most unjust that by it persons should be permitted to speculate with great and unfair advantages over those already engaged in the same trade. He had also voted against the Bill upon the ground that it would be of no public benefit, inasmuch as it did not establish a communication between two populous parts of the country.
The Marquess of Clanricardewas opposed to making any general rule for rejecting every Railroad Bill, unless the railroad were to pass from one populous town to another. He would venture to say, that most of the railroads first established in this country were from various quarries, for conveying minerals. He did not think it fair to say, that this Bill would confer no public advantage, for if the speculators in it could work a good coalfield, and bring coals into the market at a reduced price, surely that would be an advantage to the metropolis and public generally. What he objected to was, that the opinion and decision of a Committee had not been taken upon it. The case that went before the public was this—two noble Lords, personally interested by the situation of their property, and, according to public Report, deeply interested in the price of coals, had opposed the Bill on one public ground only—as giving an unfair advantage over those who had to pay a way-leave rent. He really thought it a most unusual course to reject this Bill on the second reading.
Lord Hathertonhad voted with the majority against this Bill, and if it were again to come before the House he would act similarly, upon the grounds stated by the noble Lord (Wharncliffe.) To the principles laid down by that noble Lord he entirely subscribed. He conceived it to be most unjust to attempt to force, by Act of Parliament, a rail road for the conveyance of coals, not only through the lands of dissentient proprietors, without a way-leave, but through the very works of those proprietors, which he had known to have cost 5,000 l. or 6,000 l. With regard to the advantage which the noble Marquess

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said would accrue from the additional supply of coal, he had reason to believe that the supply was at present so large, that if even every man in the district were to work at prime cost, the quantity would not be consumed. There was, therefore, no necessity for bringing an additional supply into the market.
The Marquess of Londonderryobserved, that the noble Lord (Radnor) had evinced so much partiality for the Bill, that he began to suspect he must have some shares in the undertaking. After so decisive a majority on the subject, he did not feel it necessary to enter again upon particulars, and he really thought that the discussion should not have been renewed. Though the case might have been particularly strong as regarded himself, it was also strong as affecting all the great landed proprietors in the county.
The Earl of Radnorsaid, that as he had been intrusted with the petition, he had felt it his duty to present it. He denied, however, having any share or interest whatever in the undertaking, but he still thought it unusual for the noble Lords opposite to oppose the Bill on the second reading.
Petition laid on the table.

TIMBER DUTIES.
Viscount Strangfordpresented three petitions, the first from the Legislative Council of Lower Canada, in provincial assembly, relative to the general question of any alteration in the Timber Duties; the second from the Members of the United Colonial Shipping Committee of the city of London, stating the injurious operation which any change in the ad-measurement of deals would have on the shipping interest; and the third from the North American Association connected with the port of Liverpool, as to the effect which would also be produced on the colonial exports of the country. As to the first point, he had already, in a former part of the Session, received some information from the noble Lord at the head of the Colonial Department; but with respect to the second, some of the petitioners with whom he had been in communication, were apprehensive lest the matter should be taken out of the hands of Parliament by the effect of some sudden diplomatic arrangement elsewhere, and, therefore, he hoped the noble Lord at the head of the department, would now give him some satisfactory assurance on the subject.
Lord Glenelgsaid, that having already given an answer to the first question on a former occasion, he was happy now to be enabled to relieve the anxiety of those who were interested in the second point alluded to by the noble Viscount (Strangford), by stating, that it was not the intention of Government to propose any alteration with respect to the admeasurement of deals, or the mode of levying the duties, during the present Session. On the other point, he begged to assure the noble Viscount the parties need be under no apprehension whatever.
Vicount Strangfordwas much obliged to the noble Lord for the satisfactory answer he had given; but he ventured to express a hope, that before any alterations were introduced, due notice would be given to the parties interested in the matter.

PRISONERS' COUNSEL.
On the motion of Lord Lyndhurst, the Prisoners' Counsel Bill was read a third time.
On the question that the Bill do pass,
The Earl of Radnor The Earl of Radnor moved, that the second clause be restored, with the view of giving the Prisoner's Counsel the last word.
The House divided—Contents 14; Not-contents 24—Majority 10.
The Duke of Richmond, in rising to move the re-insertion of the 4th Clause, (giving to prisoners the right to require copies of depositions taken before a magistrate) said, he would not trouble the House by going over again the arguments which he had upon a former occasion urged in support of that provision of the Bill. It was the opinion of the Attorney and Solicitor-General, Sir William Follett, and many other of the most distinguished lawyers in this country, that prisoners should have the power of inspecting copies of depositions made against them. He (the Duke of Richmond) asked their Lordships to re-insert this clause as an act of justice to the prisoners; for he contended that without it they could not have a fair trial. There would be this injustice done if this clause were not re-inserted in the Bill;—a clever person, one, perhaps, who had been often before in Courts of Justice, would be able to remember what was sworn against him; whereas, the inexperienced—the ignorant—perhaps, the innocent, prisoner, who probably never be-

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fore was brought before a magistrate, confounded by the danger and disgrace attending his situation, and unaccustomed to the forms of law, would be unable to follow the depositions as they were read, so as to recollect what was necessary, in order to enable him to instruct his counsel or attorney fully and properly. The hardened offender would thus, in fact, gain a great advantage over the innocent prisoner. Nor was this all, the final omission of the 4th Clause from this Bill would do the poor great injustice. A person able to pay an attorney, might employ him to attend and take notes of the depositions as they were read. The poor, on the other hand, would be left to their own unaided recollection, which would probably very little, if at all, assist them. He (the Duke of Richmond) should move, without detaining their Lordships further, that the 4th Clause be reinserted in the Bill.
Lord Abingerobjected to this clause. It empowered a prisoner to claim copies of depositions from the person in whose care and custody they were. Now, in many cases, the judges held them in their possession; they were returned to the judges by the clerk. Was the judge to be bound, at the prayer of any prisoner, to take copies of any deposition? That was impossible. He had enough to do, as it was, to read them. Was he to employ clerks for the purpose? What provision was made in the Bill for their remuneration? He (Lord Abinger) did not see how this clause was to be carried into effect. Did not the noble Duke know, that as the law now stood, further evidence was often procured after a prisoner was committed. The magistrate was authorised to commit on prima facie evidence; and if, after committal, fresh proof should be adduced, who ever heard of the magistrate's clerk being compelled to send to the prisoner copies of any depositions that might be sworn against him in his absence. If the prisoner was allowed to inspect copies of all depositions taken against him, he would be enabled between the time of his committal and trial, in many cases, by the aid of those persons who are always ready, for pecuniary remuneration, to swear to any facts, to concoct a defence which might defeat the ends of justice by contradicting some facts deposed to by the prosecutors. A case of this kind indeed came under his
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own notice not long ago in the Court of Exchequer. He (Lord Abinger) did not see upon what principle this clause was to be re-inserted. In civil suits defendants were not allowed to inspect copies of all depositions filed against them. He did not see in what way the clause was to be carried into effect when admitted, and he should, therefore, oppose the motion of the noble Duke.
The Duke of Richmondwas perfectly astonished at what the noble Baron had just said as to depositions being taken after the committal of prisoners. What! evidence taken against a man in his absence! He (the Duke of Richmond) never heard of such a thing! It was contrary to any principle of British law! As to what the noble Baron had said respecting the impropriety of giving this power to prisoners, because they would be thereby enabled to concoct defences which would defeat the ends of justice,—did not the noble Baron know that at the present moment a prisoner's attorney was at liberty to take notes of the depositions, and was perfectly as able to make an unfair use of them as he would be under this clause? The only difference was, that this clause extended to the poor a power and advantage already possessed by those who were able to fee a professional man.
Lord Wynford: The object of the Bill professedly was, to do justice to the prisoner. By inserting this clause, however, their Lordships would, in his opinion, be doing more than justice required. They would be placing prisoners in a better situation than defendants in civil suits, and they would be enabling prisoners, as suggested by his noble and learned Friend (Lord Abinger), to get up defences which would defeat the ends of justice, and to gain acquittals to which they were not entitled, by the assistance of those low and disreputable attornies who were always ready to enter into such disgraceful proceedings. He should therefore vote against the reinsertion of this clause.
The Earl of Radnorshould support the clause. The argument of the noble and learned Lord opposite (Wynford) was inconsistent with his former argument in Committee upon this clause. He then contended it was unnecessary, for that at present the prisoner always heard the depositions read to him before he was committed. Now his argument would go to the extent of preventing the prisoner from having any knowledge of what was sworn against him;

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because to those who were able to employ an attorney to take notes, or to do so themselves, the same facilities were afforded for fraudulent defences which had been alluded to by two noble and learned Lords opposite, as would be afforded by this clause.
Lord Holland. My Lords, if the law upon this point at present be as the noble Baron opposite has stated it to be, it is clear it ought not to be so any longer; it is quite contrary to the whole spirit of the British constitution, contrary to the genius of the English law,—contrary to the first principles of justice! My Lords, I must say, that through the whole of this discussion one great object to be considered in the administration of justice has been lost sight of. It is true, that one very important object is to arrive at truth. But there is another, little if at all inferior in importance: it is, that truth should be arrived at in a manner satisfactory to the public. And if in one case the truth be sought after in one mode, and in another case it be sought after in a different mode, be assured, my Lords, that the best mode, notwithstanding that the same result may be arrived at in both cases, is that which is most satisfactory to the public. These remarks, my Lords, though not perhaps immediately, are generally applicable to the particular clause before you. With respect to this clause there seems to be no real objection to it. There are, it is true, many objections started to it; but they are inconsistent, and destroy each other. One is, that it is unnecessary: another that it will be injurious; that it will give a prisoner more than he is justified in demanding. The objections, my Lords, are clearly incompatible with each other, and both coming from the same person, they are singularly inconsistent. Now applying the principle I have just laid down, that the truth will be arrived at by the best possible means when arrived at in the manner most satisfactory to the public, I am for re-inserting this clause, and thus assuring the public, that the prisoner, having had a full knowledge of the charges brought against him, the verdict, when given, was arrived at upon the best possible grounds, after the best possible consideration.
The Lord Chancellorsaid, he quite agreed in the propriety of introducing some clause to obtain the object of the noble Duke; but as he did not consider this clause the best calculated to effect that object, he suggested that the passing of this Bill should be postponed, to give time for considering the subject fully, and fram-
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ing some provision which might be free from objection. He must say the intimation which the noble and learned Lord (Abinger) had given as to the practice of magistrates, of taking evidence against a prisoner after his committal, had astonished him exceedingly. He could tell the noble and learned Lord, that if his account were true, those magistrates, who had acted as he had stated, had transgressed the line of their duty. It was no part of the duty of a magistrate to assist in getting up a prosecution. His duty was merely, upon primâ facie evidence to secure a prisoner's person against the day of trial. The question for the magistrate to decide, is only whether he is justified, on the evidence brought before him, in committing the prisoner. That question once decided his jurisdiction ceases. He could conceive nothing more injurious to the right administration of justice, than the practice alluded to by the noble and learned Lord. If it really existed, it was high time that it was put an end to; and it formed an additional reason for enacting some such provision as the clause now proposed to be re-inserted.
The Earl of Shaftesburyhaving suggested that the proper proceeding would be to adjourn the debate,
The Duke of Richmond, in moving, that the debate be adjourned, expressed his opinion that the practice which had been alluded to of taking depositions against a prisoner in his absence was more fitted for the meridian of Spain than to that of this free country.
Debate adjourned.