Lords Sitting of 15 February 1838

MINUTES.
Bill. Read a first time:—Custody of Insane Persons.
Petitions presented. By Lord DACRE, from Melbourne Cambridgeshire), and other places, by the Earl of MINTO, from Royston, and another place, and by Lord BROUGHAM, from Milverton, Diss, Holt, the Corporation of Liverpool, Bromyard, Pier-head (Cumberland), Ockendon, Dissenters' Meeting in Oxford-street (London), Walsall, Dissenters of Devonshire-square Chapel (London), Kilmarnock, Corporation of Hereford, Dudley, Lichfield, and many other places, for the abolition of Negro Apprenticeship.—By Lord BROUGHAM, from the Gorbals (Glasgow), from Berwick-on-Tweed, Canterbury, Cupar, Glanplyngan (Carmarthenshire), Lewes, Yeovil, Ludlow, Biddlescombe, East Chiverton, the Reform Society of Sandwich, Barwick (Somerset), West Colling (Somerset), Cupar-in-Angus, Shrewsbury (three petitions), Ro-
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chester, Chatham and Stroud, Margate, Frome, Selwood, Dumfries, Maxwelltown, Wakefield, Hereford, and several other places, for Vote by Ballot.

GLASGOW COTTON SPINNERS.
Lord Broughamhad petitions to present from bookbinders of London and Westminster. The petitioners strongly recommended to their Lordships to take some steps for the purpose of extending the mercy of the Crown to the recently-convicted Glasgow cotton-spinners. In consequence of what had passed in that House the other night, and in consequence of some defence which had been entered on elsewhere with a very great degree of zeal, and no doubt with a very good intention towards the parties to whom he had deemed it to be his duty to allude, he found it necessary to make a few observations. It might be said, that he was misinformed on the subject to which, on a previous evening, he had drawn their Lordships' attention. Now, he wished it to be known that he made his statement, as he always did, from the petition that had been put into his hands, and for the facts set forth in that petition he was not answerable. He, however, would not stop there, but would say, after inquiry, that he believed entirely every one tittle of those facts. He stated at the time, and he still believed, that every one of those facts was correct. With that feeling, the strong conviction of his mind was, that he had actually understated the case, and that the facts, when they came to be fully disclosed to their Lordships, would prove, that he might with strict justice, have made his comments more stringent. On that occasion he had made no allusion to the learned Friend who had taken up this subject—he had never attacked him, he had never referred to him. He knew that his learned Friend was not present when that which he complained of had occurred. He had spoken distinctly of the Crown lawyers of Scotland as being to blame. He was well aware, that at the time to which he referred, his learned Friend was attending his Parliamentary and political duties elsewhere. Now, if he were misinformed, he would bring the matter to issue at once by moving for certain papers. He was accused of having made certain observations, he having been misinformed on the subject. Now, the production of these papers would at once show whether that was the case or not. He should ask their Lordships for the production of those

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documents. If they were refused, it would be an admission that he was correct in his statement. If they were granted, it would then be seen wherein he was misinformed. His statement was, that these men were imprisoned on an indictment containing wrong charges, which indictment had been deserted; that they were kept in prison till a right indictment was drawn up, in which, to make it more right, the law officers included the wrong indictment, adding three right counts to ten that were wrong. That was his statement—all the rest was matter of inference. He should now move for the following papers, which would at once prove whether there was the least error in his statement:—1st, a copy of the indictment, or criminal letters, raised at the instance of her Majesty's Advocate against the prisoners; 2nd, a copy of the interlocutor pronounced by the High Court of Justiciary, allowing the indictment to be deserted pro loco et tempore (if he bad been wrong, the return with respect to those would be nil); 3rd, a copy of the second indictment (if there was one) or criminal letters against the same persons; 4th, the dates of the arrest of the same persons respectively, and of their subsequent liberation; 5th, the dates of their subsequent arrest on the second indictment, and their subsequent trial and conviction (here there were dates, and the return would not be nil); and copies of the record, verdict, and sentence of the Court of Justiciary, with reference to the same persons at the same trial. These five documents, if produced, would show whether he were or were not wrong. He took it for granted that the Home-office was in possession of all these documents, which no doubt had been sent up to London from Scotland. These unfortunate men had been now seven months in prison, on the right and wrong indictment, and they were at present on board the hulks, which was a grievous aggravation of imprisonment—the most grievous that men could be subjected to. Therefore he inferred that the Home-office, before these men were sent to the hulks, was in possession of these documents. These men had now suffered more than twice as much imprisonment as they would have been subjected to had they been found guilty of the same offence in this country. Before concluding he must admit that he was wrong the other night in stating, that
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two months' imprisonment was ail the punishment they could have undergone by the laws of this country. Three months' imprisonment, however, was all they could have been subjected to, if they had been tried and convicted in Cumberland or Yorkshire for the same offence.
Viscount Melbournewas of opinion that the noble and learned Lord would have acted more in accordance with the usage of their Lordships' House, if he had given notice of his intention to move for these papers. At the same time, considering that they only related to judicial proceedings, he felt no objection to their being produced. He should not, therefore, offer any opposition to the motion of the noble and learned Lord, but he entirely denied the inference which the noble and learned Lord wished to draw as to the law officers of Scotland not having performed their duty, with reference to the production or non-production of any of these papers. He did not know whether those documents were in the Home-office or not. It was not necessary that they should be there in order to justify the Secretary of State in causing the convicted persons to be brought up from Scotland. It was only necessary that he should be apprised that the conviction had taken place, and that sentence had been formally passed upon them by the court. As to the question whether the punishment awarded for such offences by the law of Scotland was not too severe, and whether that provided by the law of England was not more properly apportioned to the crime, he admitted it to be a matter of difference between the noble and learned Lord and himself. This was a misdemeanour, punishable by the law of Scotland with fine and imprisonment, and he did not think that the punishment inflicted in this instance was too great. He was decidedly of opinion that the law of Scotland was not too severe, and in his opinion the sentence ought in this case to be enforced. The offence was most prejudicial to the interests of the working classes, and to the interests of society at large. It gave him great concern that the noble and learned Lord should take such a view of this question. He was sorry that the high character and authority of the noble and learned Lord, and the high character of the situation which he had held, should be lent to the condemnation of the law

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officers of the Crown, to the condemnation of the courts of justice in Scotland, and to the condemnation of the law itself. The noble and learned Lord's declarations on this occasion would give greater encouragement to the offences of which these persons had been convicted, and would do more injury to the working classes themselves than could possibly be counteracted by his lectures on political economy, or by any rebukes which he might administer in that House.
Lord Broughamsaid, the observations of the noble Lord on his conduct should never prevent him from standing up in his place to do what he conceived to be his duty, whether freely to administer rebuke to Ministers or to the law officers of the Crown, who were amenable to Parliament like the Ministers of the Crown; or even to the judges of the land themselves, when they appeared to him to deserve that rebuke. The judges of the land knew, and if they did not it was time they should know, that they were not placed above the law which it was their duty to administer. They would be the last to deny the position; they knew also that they were amenable to Parliament, from which that law emanated—that their conduct was, in fact, open at every step to the consideration and animadversion of the Legislature. They knew that they were not in this country an exempted set of public functionaries, who alone of all her Majesty's subjects had a right to act without suffering observation or remark, and who might discharge their duty as they pleased, free from the animadversion of Members of either House of Parliament. An insinuation had been made as if he, who had held the highest judicial functions, should be the last person to take this course, or to make such remarks as he had offered. He denied the truth of the observation. On the contrary, he, who had held the highest judicial functions, and ought to know what the duty of a judge was—he, above all others, ought to state his opinion when he thought other judges acted wrongly, as he knew and felt that, with respect to himself, he would be the last person who would shrink from any observation or any remark on his conduct. While he was on the bench, and before he ascended it, he held himself amenable for his conduct to the free and unfettered discussion of his fellow subjects: and he should have felt himself
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not exalted, but degraded, if, when he held a judicial situation, he had shrunk behind the defence of a Ministerial advocate, or if he had maintained that the conduct of the judges was not open to animadversion. On the former occasion he said, that he arraigned not the judges of the Scotch court, but the Crown lawyers. On that point they were at issue, and the production of those papers would show whether he was right or wrong. He was accused with having arraigned the law. To this he should answer, that he was a law-maker for England as well as Scotland; and if he found that a man on the north side of the Tweed was likely to be sent to Botany-bay for seven years, after having been imprisoned before trial for seven months, on account of an offence which, on the south bank of the Tweed, would only entail on him an imprisonment of three months, why might he not state the fact, and point out this extraordinary diversity, without the necessity of blaming one or the other of these two diverse, discrepant, and contrasted systems? In touching upon this subject he was placed in this dilemma—he could not praise the two systems. If he spoke favourably of that of Scotland, he might be considered as blaming that of England for its too great lenity; and if he praised that of England, he might be supposed as casting a reproach on that of Scotland for its too great severity. It was clear, that if he praised the one he must needs condemn the other. It certainly was not recommending to the affection and love of the people of Scotland that system of law under which they lived, to tell them that for the same offence punishment by imprisonment in the hulks and transportation for seven years—it might be for life—was inflicted on one side of the Tweed, while their brethren on the other side of the Tweed were punishable with three months' imprisonment, and no more. There was another way of defending the law of Scotland, very different from that which had been taken—another way more likely to escape censure and unpleasant observation—yes, there was another way of recommending to the esteem, love, and affection of the people of Scotland, that law under which they lived, and acted, and suffered. There was another way somewhat more likely to prove effective than that of sneering at ex-Chancellors for lecturing on political economy—than

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that of blaming ex-judges for challenging legal decisions—than that of charging legislators with a breach of duty for declaring their opinion on the defects of the law. What that line was which would be better for the law which the noble Viscount defended, and more likely to secure the affections of the people who under that law passed their lives, would be to admit the discrepancy that existed (which none could deny), and to assimilate the laws of the two parts of the kingdom, so that no longer the cries for justice should be confined to England, and not extended to Scotland; that they should no longer confine it to one part of the kingdom, and not grant it to the other (for this was not like the Irish municipal or Irish tithe question), but that they should assimilate the laws of Scotland and England in this particular, and not allow this anomaly, this monstrous anomaly, to continue, by which the self-same offence was considered on one side of the Tweed as a trivial trespass, and on the other, as it might happen to be, as the worst of felonies.
The Duke of Wellingtonrose to state his satisfaction that this subject had been taken into discussion in the other House, and that a Committee had been appointed to consider the combination laws in general. He could not help expressing his satisfaction that this subject had come thus early under the consideration of Parliament, because he believed that there was no grievance existing in any country which equalled the extent of abuses that were carrying on in all parts of the United, and, hitherto called, civilized, Kingdom, that equalled the abuses and grievances that were inflicted on the labouring classes by this system of combination. He really believed from the accounts he had seen, that there was scarcely any individual who was dependent on his labour for subsistence, and that there was scarcely any one who employed him, who had not reason to complain of these combinations. Under these circumstances, he earnestly entreated the noble Lords opposite, who held the Government of the country in their hands, to be so kind as to turn their early attention to this subject, to consider what might appear in evidence before the House of Commons, and to propose to Parliament measures to put down this system of combination throughout the country, which had been carried to an
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extent that was quite horrible, and to bring the laws to the state in which they ought to be in every part of the country.

BANKING JOINT-STOCK COMPANIES.
The Lord Chancellor, in moving the second reading of the Banking and Trading (Clerical) Copartnership Bill, would briefly state its object. According to the law as it now stood, and as it was laid down in a recent decision of the Court of Exchequer, none of the large joint-stock companies, which were now so common, were enabled to recover any sum of money which was due to them, if by chance any one of the shareholders should happen to be a clergyman, and sharing in its profits. By the 57th George 3rd, all clergymen were prohibited from dealing at all. They were not prohibited from buying and selling as in the former Act, but they were absolutely prohibited from dealing. That was not found out till the recent proceedings in the Court of Exchequer. A company brought an action upon a bill of exchange against the drawer; the defendant pleaded that two clergymen were shareholders in the company, and that therefore all contracts made with the company were void, and that he was not liable to pay. The case was fully argued, and in the month of January last the judges unanimously pronounced their opinion that, by the 57th George 3rd, they were left no option but to decide that the transaction was illegal. There had been no appeal from the decision, and, therefore, their Lordships were bound to take it as the state of the law. The Bill was not intended to put parties into a different situation than they intended—it was merely to prevent them departing from their contract. He trusted their Lordships would have no objection to make the act retrospective, so as to put an end to all actions now pending of the nature contemplated by the Bill, giving at the same time the defendant the full costs of his defence connected with the legal point embraced in the Bill. The Bill was limited only to next session of Parliament, and the reason of that was, that there was a Bill for abolishing, and for regulating pluralities, now before the other House, which would provide for the manner in which clergymen might deal; of course it would never be allowed that they might buy and sell; but, on the other hand, it was impossible that they could debar

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clergymen from holding bank stock, or from insuring their lives in any company which divided the profits among the insured. He trusted their Lordships would cordially give the second reading to that relief Bill.
Lord Denmanthought, it was absolutely necessary this Bill should pass, although he was not an advocate for ex post facto law. But this Bill was requisite, in order to prevent a dishonest man getting rid of his own liabilities by means of particular enactments in an act brought in for other purposes. This case differed from that of a common informer, who was set in motion by the Legislature, and if he, in obedience to the law, sued a person for that which was made an offence, it was hard that he should be deprived of his costs. He thought that persons who had set up a dishonest defence to actions already commenced relating to this matter ought not to have their costs; but, at the same time, he should be sorry to risk the fate of the Bill by proposing any amendment of that sort. He would, however, submit to the consideration of their Lordships whether it was not proper in such a case to refuse the costs.
Lord Ellenboroughsaid, it was necessary to pass the Bill, but he thought it would have been advisable if the preamble had contained the grounds upon which the alteration of the law was made.
Bill read a second time.