Lords Sitting of 19 February 1841

MINUTES.
Bill. Read a first time:—For the more effectual Administration of Justice.
Petitions presented. By Lord Ellenborough, from Glasgow, for an Equalization of the Duties on Colonial Produce.— By the Marquess of Normanby, from Doneaster, in favour of the Drainage and Buildings Bill.—By Lord Brougham, from Chester, for the Abolition of the Punishment of Death except for Murder and Treason.

TRIAL OF THE EARL OF CARDIGAN.— DUELLING.
The Earl of Shaftesburymoved that the trial of the Earl of Cardigan be forthwith printed and published.
The Earl of Eldonsaid, there were some matters connected with the subject of the noble Earl's motion, that he could not allow to pass without notice. On the occasion of the trial of the noble Earl it appeared that an order was issued calling on those who had business at the House to attend in their places. Now, by an order of the House, which was on their Lordships' table, it appeared that Masters in Chancery were considered in the light of messengers to their Lordships, and were therefore included in the order to attend on that occasion. One of the Masters had, in consequence, come down to the House, and applied for admission, but he was refused, on the ground that he had no order from the Lord Chamberlain. One would suppose, that standing in such a situation, he did not require such an order. There was another point, which he conceived demanded the attention of the House. It would be perceived, by the statement of the proceedings on that day, that the right rev. Prelates towards the latter part of the trial asked permission to withdraw, and withdrew accordingly. In a portion of the address made by the Attorney-general to their Lordships, the learned Gentleman made use of a certain expression, no doubt out of his kind regard towards the noble Earl at the bar, in which his feelings seemed to have carried him a little beyond what he originally intended. The expression to which he alluded was this—" That he (the Attorney-general) was glad that nothing of moral delinquency had occurred in this case." He was perfectly prepared to say, that in the present state of society in this country, it was difficult to suppose that it could go on as it now did, unless certain allowances were made for the feelings of respectable individuals placed in situations of great difficulty, where, perhaps, their sentiments differed materially from the line of conduct which they were pursuing. No man was more ready to make that allowance than he himself was. But, even admitting that, it appeared to him that the Attorney-general, in making the observation to which he had alluded, had gone a little beyond the true line of duty. Now, as the trial had gone off on matter totally irrelevant to that point—as no opinion of their Lordships had been given on the subject—as, in point of fact, the matter was now placed before the public

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in this state—and as, at the latter part of the day, the right rev. Prelates as well as several noble Lords had retired from the House,—he thought it right to notice the subject, lest it might be supposed that their Lordships concurred in the sentiment to which he had referred. He believed, that their Lordships would concur with him in saying, that, in whatever situation a Gentleman might be placed, when driven to have recourse to duelling, it was not a custom that was sanctioned either by the law or by the moral principles of the country. Each specific case must stand between the individual, his conscience, and his God; but he could not conceive it possible how any man could pursue such a course without some delinquency being attached to the act, however the circumstances in each particular case might diminish the amount of delinquency. He begged pardon for calling their Lordships' attention to this subject, but he deemed it to be his duty to notice it.
The Bishop of Londonhoped it would not go forth to the public, that if the right rev. Prelates had been present at the conclusion of the trial they would have considered themselves, more than any other Member of their Lordships' House, implicated in any expression of sentiment made use of by the Attorney-general. If he had been present on the occasion, he should have listened to the expression of those sentiments to which reference had been made with deep regret; and he felt it his duty to state, that there was not, in the matter before their Lordships, anything, in his opinion, that called for the expression of any such sentiments on the part of the legal officer of the Crown who filled the situation of public prosecutor on that occasion; and who, it appeared to him, had gone beyond the limits of his province in making them. The noble Earl having alluded to the absence of the right rev. bench (the reasons for which absence their Lordships would no doubt justly appreciate), he felt himself bound to say that he entirely concurred in the sentiments which the noble Earl had expressed; and although, had he been present on the occasion, he should have forborne from any attempt to give expression to his own sentiments (because, looking to the whole princip'e of the proceeding, it was hardly competent for their Lordships to enter into discussion on such a subject), yet he now expressed a strong hope that the recent unfortunate occurrence, together with other cases which had occurred during the last few years,
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would induce their Lordships, as the chief component part of the Legislature, to take the question into their deep and serious consideration, and to say whether something could not he done to put an end to that which was a shame and a scandal. It was a custom derived from the barbarous ages. It was the remains of that system of chivalry which, though perhaps it might have been of great use at the time when it prevailed, was utterly inconsistent with the manners and customs of the present day. The system in which it originated had long passed by, but it had unhappily left behind it one of its worst features, in the barbarous, wicked, and unchristian practice of duelling.
The Earl of Shaftesburysaid, with reference to the statement made by the noble Earl (Eldon), that all the peers and judges were ordered to attend on the trial; but the Masters in Chancery, by virtue of their office, as messengers of the House, had no claim to attend on that occasion.
The Marquess of Lansdownesaid, that the right rev. bench in retiring from the House had acted, on this occasion, in accordance with the established practice. It was customary for them in criminal cases to hear the evidence on both sides, but to ask leave to retire when the verdict was about to be considered and given.
Lord Ellenboroughwas of opinion, that the bishops were no more compelled to ask for leave to quit the House, in cases of trials for criminal offences, than any other members of it. The House, it was true, could compel the attendance of peers at all its proceedings, but the House had no power to compel any Peer to give his vote. Cases might arise when a noble Lord could not conscientiously give an opinion on the subject before the House, and he was at perfect liberty to retire. He well recollected, at what was called the Queen's trial, the understanding was, that any peer who thought proper might withdraw from the decision.
The Marquess of Lansdownehad no doubt that a peer had a right to withdraw, and not to vote, if he pleased. But he apprehended the reason why the bishops, when they wished to retire, did so under protest was, lest, if they did not adopt that course, it might be inferred, that they retired because they had no right to vote. Their object was to assert and maintain their right of sitting at all proceedings, and of giving their votes, if they deemed it necessary.
Lord Redesdalesaid, the bishops, in the case of the Duchess of Kingston, had retired under a similar protest. He believed the Lords spiritual always put in this claim, by protest, because the Peers denied their right of sitting in judgment on Peers.
The Earl of Shaftesburybelieved the proceedings would be found to have been conducted in the usual form. It was customary for the bishops to ask leave to retire, without voting, on criminal cases, and it had been done on this occasion as on former trials. The question was put to their Lordships not on any interlocutory point, but when they approached a verdict of guilty or not guilty. It was at that period that the Archbishop of Canterbury asked leave for the Lords spiritual to retire.
Trial ordered to be printed.
The Earl of Mountcashellwished to put a question to her Majesty's Government on the subject which had recently been brought under their Lordships' attention. He wished to know whether the act of the 1st of Victoria was framed with intent to put an end to duelling? If so, the trial which had occurred, could only be considered a mockery of justice. If their Lordships were really of opinion that duelling ought to be put an end to, then another measure, stronger than that now in existence, ought to be adopted. No later than yesterday morning, he found by the public prints, a duel had been fought between a Mr. Marsden and a Colonel Paterson, in which one of the parties was severely wounded. He, therefore, thought, that this was a proper occasion for noticing the subject. He was one of those who held the opinion, that by proper means duelling might be put a stop to, the more especially if measures were taken to afford just redress for different offences, out of which duels frequently arose. Some mode, he conceived, ought to be adopted, to give due satisfaction in cases of minor offences, as well as those of a more grave and serious nature. For instance, a man received some degree of insult, and immediately called the aggressor out. Why did he thus call him out? Because the law afforded him no proper satisfaction. There was no law to prevent or punish the offence under which the challenger felt himself aggrieved. In this respect the law was extremely defective. Again, if a man's daughter were seduced, he could only sue the seducer for the worth of her services; and who would be satisfied with such a
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mockery of justice as that? So long, therefore, as this defective state of the law remained, so long would the system of duelling prevail. The law, it was said, demanded reform in many respects; but certainly in that point as much as in any other. He believed there were many noble Lords who felt as he did on this subject. Under the circumstances which he had stated, men really did not know how to act. For instance, an officer in the army received an affront. His brother officers expected that he should go out. What was he to do? On the one side, if he went out he was threatened with the 1st of Victoria; on the other, if he refused, he was obnoxious to the contempt of his brother officers. The unfortunate man had to choose between these two evils. He hoped and trusted that her Majesty's Government would take this matter up, and that he would not be told by the noble Viscount that he ought to introduce some measure himself. Ministers owed it to the nation itself, which called for some measure on the subject. The responsibility, in his opinion, lay entirely with Ministers; and, therefore, he called on them to produce a measure that would meet the evil. If they were not prepared, let them appoint a committee to inquire into the subject. Let that committee investigate the matter as closely as possible, and report on it to the House; but let not the question be left in the state in which it was at present, for, while it thus remained, no man in the country was safe—no man was exempt from being placed in fearful jeopardy. He should conclude by asking, whether it were the intention of her Majesty's Government to propose any measure to Parliament for the more effectual prevention of duelling?
Viscount Melbournewas fully sensible of the great importance of the subject to which the noble Earl had directed the attention of the House; but, in answer to his question, had only to state, that her Majesty's Ministers did not mean to bring forward any measure of such a nature as the noble Earl had referred to. He apprehended that the noble Earl on a more mature consideration of the subject, would find that the actual state of the law, as it now existed, was not deficient in force, and that it was hardly capable of being made more stringent than it was at present.

POOR-LAW (IRELAND)—ELECTION OF GUARDIANS.
The Earl of Glengallwished to ask a question of the noble

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Marquess opposite—namely, whether it was the intention of her Majesty's Ministers to propose an alteration of the Irish Poor-law with respect to the voting by papers for guardians, and as to the manner in which the returns were afterwards made. The present system gave rise to much confusion, and it opened the door to personation and perjury.
The Marquess of Normanbywas perfectly ready to say, that the attention of her Majesty's Government had already been turned to this point, and care would be taken that the future elections should, as far as possible, be placed on an unobjectionable footing. He saw no reason to alter the law; but the resident commissioner, Mr. Nicholls, had suggested that the clerks of the unions, as in many cases in England, should be employed as returning officers, and they would perform the duty without any party or political feeling. The elections would take place next month, and he had every confidence that the result would be found satisfactory.
The Earl of Glengallfelt, that in many respects the clerks of the unions were as objectionable as any other parties. It was his intention, in a few days, to bring the whole subject before the House.
The Marquess of Westmeathsaid, the substitution of the clerks of the unions for special returning officers would not remove the difficulty complained of by the counties. The mode of voting by papers was highly objectionable. It would be very desirable that the mode of voting should be open—that the names should, in fact, be taken down, so that it might be properly ascertained whether those who came forward had any right whatsoever to vote. One of the worst parts of the system was, that where improper persons were elected there was no remedy. There was no mode by which they could be removed. The number of petitions that was presented last year on this subject sufficiently proved the dissatisfaction that prevailed.
The Marquess of Normanbysaid, he had no recollection of the petitions to which the noble Earl alluded. All he could say was, that although the law might be liable to occasional abuse, every intention existed on the part of the Government to remedy the evil.
The Earl of Fingalldid not think the system was liable to that degree of abuse
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which noble Lords opposite seemed to suppose.
Lord Fitzgeraldsuggested, that instead of converting the clerks of unions into returning officers, it would be better to adopt a stricter method for the election of special returning officers.
The Marquess of Normanbyadmitted that the point was well worthy of consideration, but the suggestion of Mr. Nicholls would be acted on in the meantime as an experiment.
Lord Fitzgerald and Veseyreminded the noble Marquess that the duties of clerks of unions in England were so different from those in Ireland as to afford no analogy whatever in this matter.
Lord Glengallsaid, the experiment had already been tried in Tipperary, where a protest had been signed against it by upwards of eighty rate-payers, and a considerable number of the board of guardians.

DELAY IN ADMINISTERING JUSTICE
Lord Broughampresented a petition from Isaac Winter, of Wilton, in the county of Somerset, complaining of delays in the courts of law. The petitioner stated, that having attained the age of 70, he had been a litigant for the last twenty years in the courts of Westminster, and during the greater part of that time in their Lordships' House, The proceedings arose out of an action of ejectment, which was tried twenty years ago, and still remained undecided. The case involved points of extreme difficulty, upon which arguments were held repeatedly in the courts below, where great difference of opinion prevailed. When brought before their Lordships by writ of error, the assistance of the judges was given; it was again argued at great length, but the difference of opinion among the judges was by no means lessened. A second argument was ordered about a year and-a-half since; but the doubts and difficulties of the case were not apparently lessened, for the learned judges had not yet made up their minds upon the subject. Without imputing blame to any person, he hoped the long delay which had taken place was drawing towards an end, and that shortly after the return of the learned judges from circuit this most difficult and embarrassing case would be finally disposed of.

JURISDICTION OF THE PRIVY COUNCIL.
Lord Brougham,in moving that

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certain returns relative to the sittings of the Privy Council be printed, took that opportunity of observing, that great misconception prevailed as to the state of business in that very important court. These returns, for which he had moved some time since, and which had now been laid on the Table, would show the utter groundlessness of the statements which had been made on this subject. Instead of sitting for eighteen days only, as had been represented, the Judicial Committee of the Privy Council had sat thirty-six days in 1840; and, in other years, twenty-eight, thirty-four, forty three, and even forty-eight days, an amount of sittings amply sufficient to despatch all the business of the court. He remembered the time when they sat only nine, twelve, and thirteen days in the year. With respect to the state of the business, since the constitution of the Judicial Committee from 310 to 320 cases, all of great length and importance, had been disposed of, and the present arrear, if such it could be called, was smaller than perhaps any other court could boast. Exclusive of those from the native courts of India, there were only six appeals standing ready for hearing from all the colonies of the empire. Of appeals from the Indian courts there were only six, and of those from the Consistorial and Admiralty Courts a like number, making a total of but eighteen; and that these formed nothing like an arrear would be still further apparent when the dates were considered at which they were first ready for hearing. Before the month of November, there were only five cases, exclusive of Indian appeals, ready for hearing, every one of which had been got ready subsequent to last March. Of the appeals from the native Indian courts thee were forty years' arrears when the Judicial Committee commenced their labours, none of which could ever have come to a hearing, having been sent over by parties ignorant of the legal proceedings of this country, and without instructions to any one to prosecute them; but the committee having been authorized to hear and determine them, with the consent of the East-India Company, whose conduct had been most unexceptionable, most of those cases, chiefly at their expense, had been heard, so that comparatively but a small number remained; and, as he had stated, but six of them were now ready for a hearing. In justice to the court and to the learned
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judges who devoted so large a portion of their time to the public without the slightest remuneration, he thought it but fair that these details should be known.
Returns to be printed.

POOR-LAW (IRELAND)—VALUATIONS.
Lord Glengallrose to move for copies of the letters addressed by Mr. Nicholls to the Assistant Poor-law Commissioners of Ireland, respecting inquiries they were directed to make regarding the valuations of unions, in obedience to the directions of the Irish government. It appeared by a letter published in the newspapers, that Mr. Nicholls, the resident commissioner, had written to the other Poor-law Commissioners, desiring them to give every facility to Messrs. Decie and Haig, "in comparing the number and description of rate-payers entered on the valuation with the persons registered as being entitled to exercise the Parliamentary franchise." He had no doubt, from facts which had come to his knowledge, that the letter was authentic, and his reason for moving for its production was, that any calculations which could be founded on such inspection of the valuations must be fallacious. Few valuations had been completed in any of the Irish unions; in the south, with very few exceptions, there were none, and where they did exist, so many objections had been lodged, that it would be impossible to form any calculation until the appeals had been disposed of. There was another point deserving of some notice. It appeared that these inspections were to be conducted with the greatest possible secresy. The letter concluded thus:—
"It is very important that these examinations and comparisons should be conducted as quietly as possible, and in a way to excite the least attention and remark; and you are requested to be particularly guarded on that head in your communications with the union functionaries, and with any other persons to whom you may have occasion to apply."
He could not conjecture why the injunction of secresy had been given; but this he would say, that much which had been done relative to the administration of Poor-laws in Ireland had given rise to very unpleasant suspicions, that the commissioners were in some respects used for political purposes.
The Marquess of Normanbyhad no objection to the production of the corres-

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pondence. The object of the Government was to collect from their own officers authentic information as to the best means of discovering some permanent basis of the franchise, by reference to the valuations under the Irish Poor-law; and the only motive for the secresy enjoined was, that expectations should not be excited which they might be unable to realize.
The Earl of Devonbegged to know from the noble Marquess the Secretary of State for the Home Department, whether he had received any information relative to the books of the valuators of the Poor law Union of Cloghereen, in the county of Tipperary, several of the names in which, it was alleged, as he had stated a few evenings ago, had been marked by distinctive words, such as "Tory" and "Disturber?"
The Marquess of Normanbysaid, he had lost no time in making inquiry into this very extraordinary proceeding; and he had found that on the very day the noble Earl had directed his attention to it, a communication had been forwarded from the board of guardians to the Poor-law commissioners, stating, that they had discovered that such interpolations as those referred to by the noble Earl, had been made in the valuation papers; that they acquitted the valuators of any share in the proceeding; and that they had traced it to one of the clerks, whom they had in consequence severely reprimanded. The board of guardians expressed themselves very strongly upon the subject. The Poor-law commissioners followed in the same strain, adding, that the valuation papers in question had been prepared by a clerk named John O'Donnell, who had inserted the objectionable terms without the knowledge of the valuators; that they had approved of the course adopted by the board of guardians in reprehending the conduct of the person who had committed the offence, and they trusted that the board of guardians would continue upon all occasions to discountenance political and party distinctions of every description by those who might be employed under them, as otherwise the law could not have the good effect it was intended to produce. He had likewise heard from Mr. Nicholls, who said that they had felt it their duty to require Mr. O'Donoghue, the assistant-commissioner, to make further inquiry upon the subject, the result of which he would make known to their Lordships.
The Marquess of Westmeathcould not help thinking, that if the individual in fault had had no compunction in committing the act complained of, he would be likely to feel very little upon being reprimanded. In his opinion he ought to have been dismissed.
The Marquess of Salisburysaid, it appeared to him that the guardians themselves ought to be held responsible for the acts of those persons whom they appointed.
The Marquess of Normanbyadmitted that, but as further inquiry was now being made, he did not wish to say anything more upon the subject until that inquiry was completed.
The Earl of Devonwould decline, for the same reason, to offer any opinion upon the matter at present.
The Earl of Glengallobserved, that five of the persons to whose names those distinctive terms had been attached were tenants of his, holding 10 l. freeholds, and, considering that the union of Cloghereen was in the county of Tipperary, he must say, that such a notice placed them in a situation which was far from enviable or safe. Indeed, he very much apprehended that their lives as well as property would be endangered by having such political distinctions attached to their names in a public document, as they were thereby held up to public odium and remark. He confessed that he viewed this matter with feelings of deep apprehension. The valuators might have been ignorant of it, it was true; but that they should have neglected to look over this schedule after it had been delivered in was certainly rather extraordinary. The clerk who had made these interpolations could scarcely have imagined that the valuators would have omitted to do so; he must have been aware at the time of what he was doing, and it was not therefore unreasonable to conclude that he believed it would not be unpalatable to the valuators, or to the majority of the board of guardians. He would tell their Lordships for what purpose he conceived it had been done. Party spirit ran very high at present in the county of Tipperary, as it was well known it would be contested at the next election; the Radical and Repeal committees were making every exertion to ascertain from the valuators' books what the number, and who the persons were, whom those books would show to be on the re-

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gister; and he had no doubt that the clerk was making out a list of the Conservative 10 l. freeholders, which he intended to transmit to those Radical committees. The 50 l. freeholders were so well known that it was not necessary to attach any mark to their names.
The Marquess of Normanbyhad only to observe, in consequence of the noble Earl having said, that the conduct of the clerk was not unpalatable to the majority of the board of guardians, that they had expressed their strongest disapprobation of all such proceedings. He agreed with his noble Friend that the valuators had evinced great neglect in not having looked over the books; but he could only repeat that the Poor-law commissioners, who were fully persuaded of the impropriety of the proceedings, were at this moment investigating it. He was aware how very invidious it was, to attach party distinctions to names contained in public documents; but while they all knew what was meant by the word "Tory," he should wish his noble Friend would give them a definition of the word "Disturber."
Returns ordered.
Adjourned.