Lords Sitting of 12 August 1839

MINUTES.
Bills. Read a first time:—Soap Duties; Metropolis Improvements; Stage Carriages; Bastardy.—Read a second time:—Assaults (Ireland); Constabulary Force; Admiralty Court; Slave-Trade Treaties.
Petitions presented. By the Earl of Stanhope, from Vestrymen of Marylebone, and Inhabitants of Yeovil, for the Total Repeal of the New Poor-law Act; from Electors, and Rate-payers of the Metropolis, against the Poor-law Commission Continuance Bill; and from Inhabitants of Yeovil, against a Rural Police.

NAVIGATION OF THE SHANNON.
House in Committee on the Shannon Navigation Bill.
Lord Ellenboroughthought that little effect would be produced by the bill upon the market of labour in Ireland, as not more than 80,000 l. a year would be expended.
The Marquess of Lansdownesaid, that while the public works would be beneficial, from the employment which they would afford as far as they went, there could be little doubt but that they would give rise to a great number of other undertakings, not under the control of the Government, and thus produce indirectly, a great additional demand for labour.
Viscount Duncannonwished to make an observation, with reference to a question put to him on a former evening, upon the subject of a new commission having been appointed to superintend these works,

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A noble and learned Lord opposite (Lord Lyndhurst) had, on a former evening, read part of a letter, from which he inferred that this new commission was not in conformity with the recommendations of Sir J. Burgoyne. He would read to the House passages from letters of Sir J. Burgoyne, showing that his suggestions could not have been carried into effect without the appointment of a new commission. The noble Lord proceeded to read the passages to which he referred, and which confirmed his statement.
The Marquess of Lansdownesaid, that it was entirely in consequence of the advice of Colonel Burgoyne that a separate commission had been appointed to discharge the functions which were to be performed under the present bill. To impose these additional functions on the Board of Works would be extremely injudicious, for that board had too much to do already.
Lord Lyndhurstsaid, that he would not oppose the bill, if the noble Viscount would assure him that Colonel Burgoyne would be one of the commissioners under the bill, that there would be but one paid commissioner, and the only other officer a paid secretary.
Viscount Duncannonassured the noble and learned Baron that this would be the case, and that no expense would be incurred for an office, inasmuch as an apartment would be provided for the use of the commissioners under the roof of the Custom-house.
House resumed; Bill reported.

METROPOLITAN POLICE COURTS.
Upon the Order of the Day for the House to resolve itself into Committee on the Metropolitan Police Courts Bill being moved,
Lord Broughamobjected to the principle of the measure, as conferring an entirely new jurisdiction upon the police magistrates. He alluded to the power which it was proposed by the bill to concede to them of trying parties on charges of what was described as petty theft, without the intervention of either a grand or petit jury, and of either inflicting a fine to the extent of 5l., or sending the parties to prison for three months, with or without hard labour. Their Lordships never could pass this bill. He further objected to the 17th clause, which gave new powers to the Secretary of State to regulate the whole administration of the law in these
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prisons, without being at all subject to the supervision of the judges. The 27th section was also most objectionable, which subjected any man, in whose house goods might be deposited without his knowledge, to be treated as a receiver of stolen goods. Was not this almost incredible? Nobody ever heard of so monstrous a law. He had objections to the other provisions of the bill, and he would certainly take the sense of the House upon them.
Viscount Duncannonobserved, that with respect to the power given by the bill to the Secretary of State to remove police magistrate; he could only say that tie believed, both in the report of the committee of this and the other House of Parliament, it was considered that some alteration was necessary to adapt the police-offices and police magistrates to the metropolitan districts. Therefore it was, that power was now proposed to be given to the Secretary of State to remove the whole of those magistrates on superannuations. It was only by some clause of this description that superannuations could be given, for under the present law there was no power to grant superannuations. It could not be supposed that the Secretary of State would, on his responsibility, remove the whole of the present magistrates. It was only intended to remove some of them, and to appoint others of a different class,—barristers, with salaries of 1,200 l. per annum, an amount which could not be considered too much, when it is remembered, that their labours would be much increased, and still further increased by the Small Debts Bill, under which it was contemplated they should sit as judges, and which would be brought in next Session. With regard to expense, this bill enacted, that there should be only two, instead of three magistrates, at each police-office; and, therefore, if the number of police-offices remained the same, the proposed additional salary would not increase the present expense; but, owing to the increased population, it was proposed to add new districts, such as Kensington and Hackney, and thus increase the number of offices; in that case, of course, the expense would be greater than at present. On the subject of the alteration of the criminal jurisdiction of these magistrates, he was not able to enter into a discussion with his noble and learned Friend, and he must, therefore, leave that objection to be answered by his noble and. learned Friend on

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the woolsack. He would only repeat, that the bill was founded on the reports of two committees of the House of Commons, and, he believed, of one Committee of this House.
Lord Broughamwished to know if there had been any communication with the learned judges on the subject of the summary powers given to justices by this bill? Such communication ought to have been had. At all events, there was no need to pass this bill at present; it would be better to continue the old law, and have the question open until next Session.
Viscount Duncannonsaid, that the old law would not be sufficient, because the Metropolis Police Bill, which had passed, completely altered the jurisdiction of the police magistrates. In support of the summary powers proposed to be given by the 25th clause, he would read an extract from a letter of an intelligent and able police magistrate, who said, that if I he summary jurisdiction in the 25th clause was rejected or withdrawn, every petty case must be sent to the Central Criminal Court for trial. This would lead to a general outcry, for he ventured to predict, such was the increase of population, and, consequently, of petty offences, that there would be not less than 1,250 cases for trial every session.
House in Committee.
Lord Broughamsaid, his first objection was to the whole of the third clause. He must repeat, that the bill ought to have been brought in last year, for if the House of Commons had this Session voted money without the assent of the other branches of the constitution, or done any other act which called for a dissolution, the prerogative of the Crown in that respect could not have been exercised, because at that instant all the police-offices would have been shut up at once. This second clause authorized the appointment of 27 magistrates—the old ones to be got rid of by retiring pensions—and he could almost, from the quickness with which the clause had passed in the other House, tell the very persons that would be named.
The Lord Chancellorremarked, that at present the police magistrates held their offices during the pleasure of the Crown, and might at any time be dismissed altogether; that, however, was a course which no responsible Minister would wish to advise, and, therefore, the object was to get rid of officers, no longer fit to perform the
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active duties of police magistrates, by giving them retiring pensions, and to secure active officers on the vacancies so created. The retiring pensions proposed by the third clause were not large; they were not to exceed two-thirds of the present salary, and it might be less; but if the clause was struck out altogether, the police magistrates at present in office must either be continued in office, whether fit or unfit, or they might be removed without any means of subsistence at all. This was a hardship to which they ought not to be subjected.
Lord Lyndhurstsaid, it was clear to him, from the phraseology of the clause, that much more was meant to be done than his noble and learned Friend opposite (the Lord Chancellor) contemplated. The framer of the bill evidently considered that, if it passed, these police magistrates would, ipso facto, be at once out of office, and that the Secretary of State might make a selection of as many of them as he thought fit, and complete the number of 27 from others, as he chose. That was the scheme and plan of the bill. Now, considering the time at which the bill had come up from the other House, was it not reasonable to ask to continue for another year the present system, which could be done by leaving out all the clauses but the first? The present magistrates might, under this clause, all resign on their retiring pensions; so that, if he pushed the point to the extreme, he might say the clause would lay an additional charge of upwards of 27.000l. per annum upon the public.
The Lord Chancellorthought, there was no danger of their all resigning on two thirds only of what they now received. He had always found that parties entitled to retiring pensions did not resign quite soon enough.
Lord Lyndhurstdiffered from his noble and learned Friend. These magistrates were confined from ten o'clock to four in the discharge of laborious duties, and if he was in that situation he certainly should get rid of the duty, and. take two-thirds salary.
Viscount Duncannonremarked that they could not do that without the consent of the Secretary of State.
Lord Lyndhurstreplied, that might be the case, but still he contended, that the existing system ought to be continued until next Session. If this bill really was founded upon the reports of the Commit-

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tee of this and the other House of Parliament, it ought to have been brought forward at an earlier period, so that its provisions might have been compared with those reports, and the evidence on which they were founded.
Lord Brougham: When the money was voted by the House of Commons, 600 Members, at least, had gone away; in fact, it was voted by a House which hardly existed but by a bare quorum. If their Lordships consented to pass this bill, they could never complain of the lateness of the period at which any bills may be brought up.
Viscount Duncannonsaid the bill had been a long time before the other House, and he never remembered any bill to have undergone more discussion.
Lord Brougham: I beg my noble Friend's pardon. The bill got into committee in the other House only n fortnight since, and it was then discussed. The state of the House at that discussion was shown by the divisions upon it, which consisted of, ten or fifteen to thirty Members.
The Committee divided on the third clause:—Contents 34; Not-contents 33: Majority 1.

List of the CONTENTS.

DUKES.

Melbourne

Argyll

Mountford.

Richmond

LORDS.

Somerset.

The Lord Chancellor

MARQUESSES.

Barham

Conyngham

Colborne

Lansdowne

De Freyne

Normanby.

Dinorben

EARLS.

Foley

Clarendon

Gardner

Devon

Holland

Ilchester

Lilford

Leitrim

Methuen

Minto

Plunkett

Morley

Seaford

Uxbridge.

Stafford

VISCOUNTS.

Stanley

Duncannon

Sudeley.

Falkland

BISHOP.

Lismore

Peterborough

List of the NOT-CONTENTS.

DUKE.

Bathurst

Wellington.

Beverley

MARQUESSES.

Liverpool

Thomond

Roden

Ormonde.

Wicklow

EARLS.

Rosslyn

Abingdon

Harrowby

Galloway

Verulam

Hopetoun

Beauchamp

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Glengall

Calthorpe

Falmouth

Redesdale

Ripon.

Ellenborough

VISCOUNTS.

Bexley

Hawarden

Fitzgerald

Canterbury.

Lyndhurst

LORDS.

Tenterden

Colville

Cowley

Sondes

Brougham

Boston

De L'Isle.

Bill read a second time.

Clause agreed to.
On clause 25, giving summary jurisdiction in cases of felony,
Lord Lyndhurststrongly objected to this clause, and thought it impossible that their Lordships would agree to it. It was surprising how men's views had been recently let loose on the subject of the administration of justice. It was but in the last Session of Parliament that a liberal supporter of the Government in the other House introduced a bill to dispense with the mode of proceeding by grand juries, which had always been considered a great defence for her Majesty's subjects; and now, for the first time in the history of this country a clause was introduced into this bill to take away trial by jury in cases of felony—a thing never before attempted, not even in the worst times of the history of this country. Trial by jury was to be taken away, and the power of trying and convicting solely vested in an individual appointed by the Crown, and removable at the pleasure of the Crown. But this was not all; it was to be left to the magistrate to say whether he would try the prisoner or not; therefore, they would open the door to delay and partiality, and every species of mischief by adopting this clause. Furthermore, the magistrate was not obliged to decide in the first instance, he might proceed to the very verge of conviction, and just previously to conviction he might say to the accused—"Your case is of such a description that I will not decide it." And thus it would, after much delay, be sent to be tried in the ordinary manner. Such a combination of the violation of every principle which had hitherto been held sacred in the administration of criminal justice, he was persuaded, had been never before united in any one clause of any one bill. Yet such a clause was thrust incidentally into a police bill—a bill said to be founded on a report of a committee of their Lordship's House, but not following it in any one particular, and on a report of the committee of the other House, but not following it in any one

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particular. He knew, that it was said in support of this clause that the principle was only to be applied to trifling matters; but if the principle were once adopted, they would not be able to say where it would end. He would take the liberty to refer to a grave authority on this subject, whose opinions were correspondent with his own. He quoted from Mr. Justice Blackstone, one of the highest authorities i that could be quoted, who said, speaking of trial by jury:—
"The liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all open attacks (which none will be so hardy to make), but also from all secret machinations, which may sap and undermine it, by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays and little inconveniencies in forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern."
Upon that principle, he should propose the omission of the clause.
The Earl of Devonsaid, that as under the present state of the law, persons might be committed to prison for four or five months before trial, it would be an act of justice to them, to have their guilt or innocence decided at once, without waiting so long in gaol; and that as persons might now be summarily convicted, even for going into a garden and pulling up a carrot, or for taking an apple, it would only be consistent with common sense, that summary jurisdiction should be given to magistrates in other trifling cases of theft.
Lord Broughamsaid, this was a monstrous proposition. For the first time since England had been England, was that House called upon to make a great change in the law—to give power to try felonies to a single magistrate, without a jury—a single justice of the peace appointed by, and removable at, the pleasure of the Crown. Why, even if it were fitting at all to introduce this extraordinary change, still it would not follow that it
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was fitting to introduce it in this manner, and at this time—that was to say, in the shape of a clause in a local act which the Metropolitan Police Courts Bill certainly would be if it passed, and at the end of a very long Session. He denied that his noble Friend who had just spoken, had made out any case at all to justify the change. It was true, that the Common Law Commissioners had recommended summary jurisdiction, but they confined it to cases of juvenile offenders, and they also limited the amount; but this clause was unlimited, for although, from the words of the margin, it might be imagined to extend only to petty thefts, the words of the clause were, "Any chattel, money, or valuable security." What would be the result of conviction? Not merely a penalty of 5l., or three months' imprisonment, with hard labour, but supposing he was charged before a single justice with taking a chattel worth 5,000 l., without going to a jury, that single justice might inflict not only the penalty of 5l., but the value of the chattel, and thus a man might be ruined by the single justice, without being tried by his peers, and stamped as a felon for the residue f his days. Was it not monstrous that such a clause should be introduced into this bill, without that discussion which it would have undergone at an earlier period of the Session in that House and elsewhere? But most probably indeed for the object of those who introduced it, had it been introduced experimentally, as part of the plan for totally altering the entire criminal law, and utterly abolishing trial by jury. Was ever mortal man so bewildered as his noble Friend, in trying to prove from Sir R. Peel's bill, that there was some reason for this change? Sir R. Peel's bill gave summary jurisdiction in cases of wilful trespass; but his noble Friend saw very little difference between felonies and trespasses. A line must be drawn somewhere, and it did not follow, when a line was drawn, that there were not inside the line on both sides, great differences and degrees, and that there was not a substantial difference between a felony and a trespass. But his noble Friend contended, that because stealing apples in an orchard, was summarily punishable by Sir R. Peel's bill, there was no reason why magistrates might not try every case of larceny and felony. Such a power, as his noble and learned Friend

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(Lord Lyndhurst) had justly said, would be most dangerous to the subject. It would not necessarily secure speedy justice; for, after hearing all the witnesses at the eleventh hour, in the twelfth hour the justice might say—"Upon second thoughts, I shall send this case to a jury." So the case must after all go to the grand jury, and then before the petty jury, and the accused must there be tried, after having been once, all but tried already. He could not think it possible, that their lordships would submit to this clause, even if they could command a no greater majority, than a majority of one against it. He could not conceive what possible reason there was for introducing this proposition this year, or why it could not even be deferred till next Session, for more searching discussion and mature deliberation. Never let it be said, that their Lordships had agreed to abolish trial by jury in cases of felony, and in such circumstances, and at such a period of the Session.
The Lord-Chancellorsaid, no one was less disposed than he was to abolish trial by jury, or to do anything approximating to it. But he would take the liberty of warning noble Lords, lest they did injustice to the very principle they wished to maintain. At the same time, he must say he thought the clause was larger in its terms, than its object required. Any one acquainted with the operation of the criminal law, must be aware that it was a great hardship for a man to be subjected to a long imprisonment before his trial, particularly when committed for some trifling offence. It would be much better for him to be subjected to summary punishment before a magistrate. There was no one who saw what took place every day, but must feel anxious to remedy evils of that description, if it could be done without detriment to the due administration of justice. Two modes were proposed: one was to limit the jurisdiction with respect to the value of the thing stolen—a very bad test, because the circumstances under which thefts were committed, greatly varied. The other mode, which he confessed appeared to him to be a better mode, was to make a limitation with regard to the age of the offender. Under all the circumstances, he suggested that the clause should be allowed to remain, and that some limitations might be inserted in a future stage of the bill.
Lord Broughamsaid, the remarks of his noble and learned Friend were applicable, perhaps, to every other place in the country, but certainly not to London, where only the bill was to operate; for in London, no man could ever remain a fortnight untried, because the sessions of the Central Criminal Court, when they finished in one week, commenced again in a week after, or ten days, or, at the outside, in a fortnight. Therefore, in London, there was not a shadow of a chance of that mischief occurring, to remedy which, his noble and learned Friend on the woolsack, supported this notable clause, the extent of which, he believed, he was not aware of, or he would not support it.
The committee divided on the clause:—Contents 31; Not-contents 34: Majority 3.
Clause lost.
On clause 26,
Lord Broughamobjected to its provisions as being contrary to the fundamental principles of jurisprudence. Those principles might be wrong, but they ought to be well considered before they were altered. It was also, he thought, highly improper to make that felony in London, which was felony in no other part of the country. At so advanced a period of the Session, there was no time to give this subject the attention which it deserved. He should propose that the clause be struck out.
Clause struck out.
Clause 27 having been read,
Lord Broughamsaid, this clause was consequent upon the former, and it was therefore necessary that it should be struck out.
Lord Lyndhurstsaid, that by this clause any person in whose house any article of stolen property was found, might be brought before a magistrate, and if the owner of the house could not show that it came into his house in a lawful manner, the magistrate was bound to convict him of a misdemeanour. There might be no proof that the owner knew anything of the article having been stolen, or that he knew of it being in his house, yet, if he could not show before the magistrate, that it had come lawfully into his dwelling, the magistrate was bound to convict him. That was a power, certainly, which ought not to be granted without restrictions. He should not, however, propose to strike

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out the clause altogether, and he would suggest that it be amended on the report.
Clause to stand.
Remaining clauses were gone through.
House resumed—Bill to be reported.

SALE OF SPIRITS (IRELAND).
Viscount Duncannon Viscount Duncannon moved the second reading of this bill. He understood that there was one clause in the bill to which some objection would be made, but he hoped that their Lordships would allow the bill to go into committee.
The Earl of Wicklowcertainly would not allow the bill to be read a second time, without calling the attention of their Lordships to the clause to which his noble Friend had alluded. With regard to the bill generally, he had no particular objection. The history of the clause was this:—There came up last Session to their Lordships' House, a bill containing the clause to which his noble Friend had referred; but when it came there, no individual Member of the House could be found to move the second reading, and it therefore fell to the ground. The object of that bill was this—to repeal a bill which some time back the Government passed into a law, for they had considered, and very properly considered, that a power given to the grocers to sell spirits by retail, must lead to immoral and improper practices. Yet, notwithstanding that, because a certain individual of great influence with Her Majesty's Ministers, who wished to keep well with the lower portion of grocers in Dublin, pressed the measure, the bill was allowed to pass through the House of Commons. That bill, however, having failed last Session, it was re-introduced this Session into the House of Commons, but the hon. and learned Gentleman could not get the bill read a second time, and he had therefore prevailed upon the Government to let him ingraft a clause upon the bill now before the House, in order to carry into effect the objects which he had in view. The bill originally introduced by the Government, contained no such clause, and he had the bill in his possession, which the hon. and learned Gentleman had tried to pass, which was exactly in accordance with the clause to which he had referred. He looked upon this as a gross fraud and imposition on the part of the Government, and he really thought that their Lordships ought to refuse to give a second reading
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to the bill, in order to make an example of those who brought in the bill, that they might impose upon their Lordships.
Viscount Duncannonsaid, that when his noble Friend talked of making an example of those who brought in the bill, he must make an example of the public, for it was for their benefit that it was brought forward in the Commons. He really thought it would be a very hard case, if their Lordships should do what his noble Friend called on them to do, for the sake of making an example of particular individuals, and he hoped the House would allow the bill to go into committee.

SHEEP-STEALERS (IRELAND).
Viscount Duncannon, in moving the second reading of the Sheep-stealer's (Ireland) bill, said, that since the bill was first brought before the House, he had made some inquiries into the subject, and he found that the proposed enactments were not exactly the same as those which were repealed by Sir R. Peel's Act. The present bill was much amended, and was intended to protect the poor people in mountainous districts, who had no means of finding out those who stole their sheep, except through the medium of some such process as that detailed in the bill.
The Duke of Richmondobserved, that the bill was extremely badly drawn up, but that defect might be altered in committee, and he should therefore offer no objection to the second reading on that ground. He did not, however, see any sufficient reason why there should be a different law for sheep stealing in Ireland, from that which was in force in England. The law formerly in force relative to sheep stealing, was repealed when Sir R. Peel consolidated the criminal law, and repealed after a great deal of consideration; and he wanted to know why that law should now be re-enacted in Ireland, with very little consideration at all?
The Earl of Wicklowwould always be willing to do what he could to assimilate the law in both countries; and if this were a good law, which he thought it was, he should be happy to do all in his power to get it extended to England. The law was very necessary in that part of the country with which he was connected. The evil of sheep stealing had increased so much, and it was so utterly impossible to detect the stealers of sheep at present,

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that unless some such measure as this was passed into a law, the farmers of the country must give up the feeding of sheep altogether.