Lords Sitting of 1 August 1844

MINUTES.
BILLS. Public.—1a. Piccadilly Improvement; Slaughtering Horses; Clerks to Attorneys; Tralee Navigation and Harbour; Spirits (Ireland); Savings' Banks; Woods and Forests Accounts; Grand Canal (Ireland); Consolidated Fund (Appropriation).
2a. Militia Pay; Joint Stock Companies Remedies at Law and in Equity; Poor Law Amendment; Joint Stock Banks Regulation; Criminal Justice (Middlesex); Municipal Corporations; Customs (New South Wales); Books and Engravings; Protection of Purchasers, etc. (Ireland).
Reported.—Railways; Turnpike Trusts (South Wales).
3a. and passed:—Transfer of Licenses (Post Horses); Roman Catholic Penal Acts Repeal; Law Courts (Ireland); Ecclesiastical Jurisdictions; Clerk of the Crown in Chancery.
Private.—Reported.—Duke of Hamilton and Brandon's Estate; London and Croydon Railway; Swansea Improvement.
3a. and passed:—Duke of Hamilton and Brandon's Estate.
PETITIONS PRESENTED. From Banbridge, and Stranorlar Unions, against the Poor Laws (Ireland).—From G. C. Rapier, of Newcastle, against the Poor Law Amendment Act; and from Guardians of Holywell Union, for Alteration of Bastardy Clauses.—From British-born Jews of Portsmouth, for Removal of Disabilities.—From Debtor Prisoners in Durham Gaol, and Queen's Bench, in favour of the Debtors and Creditors Bill.—From Bishop, Clergy, and Lay Members of the United Church of England and Ireland in Dioceses of Down and Connor, for Educating the Children of the Poor in the principles of the Established Church.—From Guardians of the United District of Montgomery and Pool, against any Alteration of the Local Acts of said District.

THE COURTS OF COMMON LAW PROCESS BILL, AND THE COURTS OF COMMON LAW (IRELAND) PROCESS BILL.
Lord Campbellwished to draw their Lordships' attention to the Amendments made by the Commons in these Bills respecting the right of suing parties residing abroad for debt, which had been sent down from their Lordships' House and were now returned. The first Amendment, as it merely explained more fully what he considered the intention of the Bill to be, namely, that the Act should apply only to parties who were actually domiciled abroad, he did not object to, and he would advise their Lordships to agree to it. But the second was a very strange one, and excluded persons domiciled in Scotland from the operation of the Bill. In this he could not conceive that there was any reason, and he therefore should recommend their Lordships not to agree to it. He supposed that a conference with the other House would be necessary.
First Amendment agreed to; a conference with the Commons to be requested as to the second.

INSOLVENT DEBTORS.
Lord Brougham(on presenting a Petition) said, that in consequence of the expectation which prevailed for some time past, that a Bill would immediately be passed for the alteration of the laws affecting Insolvent Debtors, many persons had neglected to give the necessary notices, under the existing law, and they were now under the impression that they would be obliged to remain in prison until December next, before they could obtain relief. The best way to dissipate the apprehensions of these poor people would be to make public the effect of the Bill which had passed their Lordships' House, and was now in progress through the House of Commons. Under its provisions, there would be no necessity for any person to remain several months in prison, as it would only require a sheet of paper and a stamp for a statement of any case, which being sent to the Commissioners would insure
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a hearing. All the debtor would have to do, under this measure, was, to frame a petition, and to send it in to the Commissioners. All the rest would be done by the Commissioners, without any expense at all. He should draw up a short statement of this nature, and have it printed and universally circulated through the press, in order that parties might not suffer any hardship through ignorance of the fact.

THE GAME ACT.
Lord Lilfordsaid, he had given notice of his intention to put a question to the noble Lord opposite, in reference to a letter addressed to the governor of the gaol of Northampton, by the Secretary for the Home Department, requiring a statement of all summary convictions under the Game Act, which had taken place in that county. That letter had created considerable observation; and he wished to know under what circumstances it was written, and whether it was intended to cast any imputation on the Magistrates who had made these summary convictions.
Lord Wharncliffesaid, certainly no such intention existed. That letter had been addressed to others besides the governor of Northampton Gaol; he believed, indeed, that it was a general circular which had been sent to all the counties. The fact was, that the Secretary for the Home Department found that a great number of convictions took place under the Game Laws, and that many irregularities had occurred. He therefore was anxious to obtain a correct return of convictions under those laws, according to the form pointed out in the letter, in order that such irregularities might be corrected.

THE FRENCH PROTECTORATE OF TAHITI.
The Marquess of Clanricardesaid, he had given notice to his noble Friend the Secretary for Foreign Affairs, of his intention to ask a question relative to the extraordinary proceedings that had lately taken place in one of the South Sea Islands, when a British subject was seized and confined; but, in consequence of what had fallen from a right hon Gentleman in another place, that question had been rendered almost superfluous. Still, as their Lordships ought not to be dependent for information on reports from other quarters, and as the subject was certainly not unworthy of further notice, he would ask his noble Friend the Secretary for Foreign Affairs, whether the accounts which had been made public of these transactions were correct,

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and whether any reparation had been made for the outrages therein stated to have been offered; and, if not, whether any measures had been taken to obtain it?
The Earl of Aberdeen: It is undoubtedly true, that a gross outrage has been committed against the person of a British subject; indeed, so flagrant an outrage, that, if I had not received an authentc account of the transaction, it would have appeared to me almost incredible. But I wish to observe to the House that this proceeding has taken place, not only without the possible knowledge, or instruction, or participation, of the French Government, but under a state of things which has been disavowed by them. It will be recollected that, in the month of September last, the French authorities in the island of Tahiti dethroned the Queen, and took absolute possession of, and exercised the full rights of sovereignty over that island. As soon as a representation on the subject was made by this country, the proceeding was promptly disavowed by the French Government, just about the time that the transaction at present complained of took place, in the month of March last. But during the intervening months, it is clear that a state of things existed that would account for certain acts which it would be impossible to anticipate under another and a more satisfactory state of things. Now, the gentleman to whom the noble Marquess has referred—at the time when the French took actual possession of the island, and proceeded to exercise all the rights of Sovereignty—that gentleman immediately hauled down his flag, and gave an official intimation or notice to the authorities that he was no longer Her Britannic Majesty's Consul there—that the Queen having been dethroned, he had no longer any official character. So that, in point of fact, however improper and unjust the proceedings might be which placed him under the necessity of abandoning his official position, he was not, at the time when the recent transactions occurred, occupying any, and was not recognized as occupying any official situation. Now, although the power which has been exercised and the arbitrary and unprecedented proceedings that have taken place could not be justified against any British subject, having an official character or not, still the circumstances under which the transaction took place must make some difference in the manner in which it is to be received. I said before that this proceeding had taken
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place without the slightest knowledge or encouragement of the French Government, and I have no doubt that they will regard it with as much concern as we do. I am afraid, however, that the late transaction will prove a godsend to the enemies of peace between the two countries, and I have do doubt that it will be turned to a good account in furthering their views, but I trust, and have every reason to believe, that by the exercise of a spirit of justice and moderation, will lead to no serious consequences. I have every reason to believe that the French Government will regard it in the manner in which such a transaction should be viewed; and I can only say, that not a moment has been lost in making such representations to that Government as appeared to me to be suitable to the circumstances of the case.
The Earl of Mintoobserved, that nothing could be more satisfactory than the noble Earl's assurance on that point, which, indeed, he believed they were all prepared to expect, namely, that the acts of those officers were wholly unauthorized by the French Government, and were totally foreign to their wishes. It was impossible to imagine that a Government which had the same deep interest with ourselves in the preservation of peace should have lent its authority to an act so calculated to lead to its interruption. He was entirely satisfied, therefore, with all the noble Earl had said as to the feeling of France; and he was satisfied, also, that the noble Earl would be content with nothing less from France than the full atonement for the outrage, which it was the noble Earl's duty to demand. There was one point, however, upon which he did desire some further information, a question which, however, he ought rather to put to the noble Earl of First Lord of the Admiralty, as to the means which had been taken by the Government to provide against the recurrence of any such misfortune. Aware as the Government were of the violent nature of the proceedings of France at an earlier period, he should like to be assured that they had taken proper measures to maintain our naval force at Tahiti in such strength as was necessary to protect the honour and interests of the nation. He hoped he should not find that at the time these outrages occurred we were inadequately represented in the seas of the Pacific? He (the Earl of Minto) would not enter further into the question, unless the answer which he should receive from his noble Friend should satisfy

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him and lead him to believe that little or no force whatever was stationed at that island. He knew that when the French took possession of the island we had a very considerable force there, and that, in consequence of some correspondence which had passed between the Captain of the Vindictive and the French authorities there, that frigate had been recalled. He (the Earl of Minto) should like to be informed of the cause of that proceeding, and whether, pending such discussions, and in the circumstances in which that country was placed, the Vindictive was recalled and the island left unprotected by a sufficient force? He should now conclude by asking his noble Friend if there was any, and what force, at the island of Tahiti?
The Earl of Haddingtonreplied, that at the time this proceeding took place, in March last, Tahiti was not, and indeed it never had been, devoid of the presence of a British ship of war. He was not able at the moment to give full information upon the point, but his opinion was that last March there was present there a frigate of a minor class. His noble Friend appeared to have made himself master of the precise dates, and he (the Earl of Haddington) could not pretend to follow him as the question had been put to him entirely without notice. The Vindictive was out there formerly; she was succeeded by the Dublin, a large fifty gun ship which was present when the French took possession of the island. When the Dublin left, every thing was quiet, and she was succeeded by a frigate of a smaller size; whether it was the Carysfort or the Talbot, he could not at that moment recollect. The Vindictive was recalled simply because her time for foreign service had expired. Captain Toup Nicholas had been ordered a considerable time since to return home, but he was kept on the station by the Admiral, entirely with the approbation of the home authorities. The America, had since gone out to replace the Vindictive, and the Collingwood was just about to sail for the station with the flag of Admiral Sir George Seymour.
The Earl of Mintowished to know this—was not the Vindictive removed from Tahiti by the order of the Home Government? Was she not removed without any measures being taken to replace her? It was said that Queen Pomare sought refuge on board the Basilisk. Was that the "frigate of a smaller class," to which allusion had been made? If so, she was "a frigate of a smaller class" indeed.
The Earl of Haddington'simpression was, that there was a larger vessel at Tahiti than the Basilisk. The Basilisk was only a ketch.
Lord Kinnairdfelt entirely satisfied that the French Government never had sanctioned, and never could sanction, what had taken place at Tahiti. He thought, however, that some blame attached to our Government for ever letting them take it under their "protection" at all. If there had been any sort of protectorate, it should have been a joint protectorate. He should be glad to know also, if Queen Pomare had not been restored after the first outrage? If that were the case, Mr. Pritchard of course resumed his post as British Consul, and was British Consul when the last act of violence took place.
The Earl of Aberdeensaid, that in dealing with occurrences at the antipodes it was difficult to say precisely when or under what circumstances certain acts took place, but he believed that about the present time, and not before, Queen Pomare would be restored. It was in March last that the French Government repudiated the acts of their officers at Tahiti, and as he had just received accounts from Tahiti, dated in March, it was probable that about this time, and not before, the instructions of the French Government would reach its officers in the Southern Seas. Queen Pomare would then be immediately restored, not to all her rights, but to the same position in which she was placed under the former protectorate. With regard to the joint protectorate of which the noble Lord spoke, he should know that offers of a protectorate of these islands had been on two or three different occasions offered to the British Government, and as invariably refused.
The Earl of Mintoasked, whether the French Admiral had been recalled?
The Earl of Aberdeensaid, that Admiral Dupetit Thouars had been recalled in March last, in consequence of his assumption of the sovereignty of the island. He had been succeeded by Admiral Hamelin, who was now, he believed, on his way out.

RAILWAYS BILL.
Order of the Day for the House to be put into Committee, read.
The Earl of Dalhousiemoved, that the House do now resolve itself into Committee on this Bill. His Lordship having referred to the evidence taken before the Railways Committee of the House of Commons, on the Report of which the measure

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was founded, and having adverted to the high rate of fares on English Railways as compared with those of France, Germany, and Belgium—the want of accommodation for third class passengers—the tendency of Railways to put an end to all competition, and by shutting out from the public all other means of conveyance, to become monopolies, contrary to the intentions of the Legislature—and the necessity for Parliamentary interference, for which no time was so opportune as the present, when there were so many Railway speculations in contemplation—proceeded to describe the various leading provisions of the Bill. He understood that it was objected to the measure that the principle it contained of limiting the profits of Railway Companies was novel and inexpedient; he contended, however, that the principle was not new, for it had been applied by Parliament to other bodies; he would mention in particular, that it was customary for the Legislature to interfere with the Gas and other Companies and limit their profits, and to require that the public should not be required to pay a price beyond that which was sufficient to pay the projectors of the speculation a fair remuneration for the capital they embarked; and as to the inexpediency of that interference, he believed the necessity for it in the cases to which it had hitherto been applied was generally admitted by the public. It was also objected, that in consequence of the Government having the power of revision, Railway Companies would resort to some delusions in declaring their dividends; but with the precautions the Government had taken, and their power of inspection and supervision, he had no fears upon that head. Again, it was said, that the Companies would expend their money unnecessarily and wastefully, in order to diminish their profits, and reduce their dividends below the standard at which Government acquired their right of interference, viz., 10 per cent. But he thought it a sufficient answer that they would never do that, knowing that they would thereby reduce the annual rate of profit upon which the amount of purchase money, supposing the Government should interfere to purchase, would be calculated. Another objection to this power of revision was, that it was calculated to discourage Railway enterprise; judging, however, from the number of applications that had lately been made to Parliament for new Railway Bills, he was convinced there was not the slightest
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foundation for such an objection. As to the provision for securing to the poorer class of travellers the means of travelling at moderate fares, he was sure their Lordships must all concur with him in thinking that it was the duty of the Government to introduce Clauses into this Bill in order to effect this object. He had heard it recommended that all Railway Companies, as well those already incorporated as those hereafter to be incorporated, should be compelled to provide third-class carriages by every train. On almost all Railways in the neighbourhood of large towns he thought third-class trains might be provided; but on many of the business lines he considered the enforcement of such a provision would be productive of the greatest loss to the proprietors. He had, therefore, provided by the 6th Clause, that on all future Railways and on all Railways applying for alterations in their powers, there should be a train started once a day, at a convenient hour, provided with seats and protection from the weather, and at fair and moderate charges—in two years, in fact, all Railways would in all probability be subject to this provision. In recommending this measure to their Lordships he did not wish to be thought as reproaching Railway Companies for the manner in which they had hitherto acted; on the contrary, they had, in his opinion, been of inestimable benefit to the community, and he thought it was impossible to estimate too highly their enterprise and their skill, which had combined to produce such marvellous results, accompanied with such immense public advantages. The Government now deemed it their duty to look to the future, and to endeavour, whilst they secured to the proprietors of Railway undertakings a full remuneration for the capital they had embarked and the risks they had encountered, to guard the interests of the public from encroachment, and to insure to them a participation in the benefits of the system.
The Bishop of Lichfieldgave notice, on behalf of the Bishop of London, that it was the intention of his right rev. Friend, on the third reading of the Bill, to move as an Amendment to the 6th Clause, to leave out the words "on every day," and to insert these words, "On every weekday, except Christmas-day and Good Friday."
House in Committee.
Bill reported without Amendments.

LAW COURTS (IRELAND) BILL.
Lord Wharncliffemoved the third reading (according to Order).
The Lord Chancellorhad still an objection to make to this Bill, which had just been proposed by his noble Friend. By the Common Law of this country, the appointments were in the Judges of those Courts, and he should now read a passage from Lord Coke, for the purpose of showing that that was the law, and also giving reason for it. The passage was to be found in the Second Institute and had reference to the Statute of Westminster. There it was stated, that, by the Common Law, the Judges of the Courts had the appointment of their officers, and the reason given for this was, that it was more their duty to select proper officers, who would faithfully perform the duties imposed upon them—and if these officers did not do that it would be a reproach to the judges themselves, who were responsible for the proper keeping of the records of these Courts. This was the course in England from the earliest periods, and within the last few years when an Act was brought in, similar to that which was then before their Lordships, it was provided, that the appointments should be in the Chief Justices and Chief Baron. That was the course in England. Why were they to deviate from that course in Ireland? The Common Law of England was the Common Law of Ireland, and until a very late period the practice in this respect was the same in both countries. By 1st of Geo. IV. the appointments were taken from the Judges, and given to the Lord Lieutenant. No reason was stated for doing that; but for some particular purpose, which was not stated on the face of the Act, these appointments were taken from the Chief Justices and given to the Lord Lieutenant. It was rather remarkable that two years ago an Act of Parliament for the purpose of remodelling the offices in these Courts was proposed by the same person who brought in this Bill, and in that Bill there was a Clause corresponding with the law in England, by which the appointments were transferred back from the Lord lieutenant to the Judges of the Courts in Ireland, from whom they ought never to have been taken. Now, however, they had the Bill of two years ago again before them, but by it the appointment of officers were continued to the Lord Lieutenant, and not restored, as they should be to the Judges. Under these circumstances, he trusted that their Lordships would be of opinion that
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the Clause ought to be altered, and the Bill made to correspond with the English Act. Why, then, was Ireland to be put on a different footing from England? Were they not continually saying that they would administer the same law and the same justice to Ireland where they could be applied? If, then, they laid that down as a principle of legislation, the moment they made an exception to it, they reflected upon the parties against whom the exception was made. If they did not give to the Judges in Ireland that which the Judges in England had, they said that the Irish Judges were undeserving of exercising that authority—that they would be likely to abuse it—and they drew a distinction between the Judges in England and the Judges in Ireland, who so well performed their duties, and were utterly undeserving of any reflection being cast upon them. In his opinion nothing could be more unwise, nothing could be more impolitic in the present state of Ireland than this, and he might also add, nothing could be more prejudicial to the interest of the United Empire. He proposed, then, that the Clause be struck out. [Lord Campbell said he had a Motion to the same effect.] He had forgotten his noble and learned Friend had a Motion to that effect. If his noble and learned Friend would have the kindness to propose it, he should have great pleasure in supporting it.
Lord Campbellsaid, he had heard with most sincere pleasure, the sentiments which had fallen from his noble and learned Friend, and the irrefragable arguments by which he had supported the views he had expressed. He had likewise with much pleasure heard his noble Friend (Lord Fortescue), who had been Lord Lieutenant of Ireland, cheer the sentiments of his noble and learned Friend. He should move that for the words "Lord Lieutenant or other Chief Governor of Ireland," in the 7th section, should be substituted the words, "Lord Chief Justice of the Queen's Bench, Lord Chief Justice of the Common Pleas, and Lord Chief Baron of the Court of Exchequer, as the same shall be in the Court of Queen's Bench, Common Pleas or Exchequer."
The Lord Chancellorbegged to supply an omission of his, and to state that the Bill went so far as to take away the appointment to some minor offices which had been allowed to remain with the Chief Justices.
Lord Wharncliffesaid, it was quite impossible

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possible for him to contend against the high law authorities who had addressed the House, but the truth was, that the facts of the case were not as they were stated by either one or the other of the noble and learned Lords. He (Lord Wharncliffe) believed that at no time in Ireland were the appointments in the hands of the Judges of the great Courts. The offices were sinecure offices, and persons were appointed by the holders of them to do the duties, so that the appointment to the duties of these offices was never in the hands of the Judges. The Act of Parliament was twenty-three years old. It had up to this time been acted on, and the present Judges had accepted their situations with a perfect knowledge of the conditions with respect to these appointments. He wished, however, to have time to consult with the law officers of the Crown before he decided upon the proposed Amendments.
The Lord Chancellor: If the appointments are by the Common Law of England in the hands of the Judges, why should not the Common Law of Ireland and of England be the same? Perhaps the authorities of the Crown may have usurped from the Judges what the Law and Constitution gave the latter. I do not deny the possibility,
The Marquess of Clanricardesaid, he had had the honour of having been in communication with some of the high legal authorities at the other side of the water, and their idea as to the Common Law on this point entirely corresponded with the high authority of the noble and learned Lord on the Woolsack. At the same time he must say, that his noble Friend opposite (Lord Wharncliffe) was quite correct in what he had stated. The Crown had the appointment to these great offices. He knew that the learned Judges on the opposite side of the water were most anxious that they should not be placed on a different footing from the Judges in England, and if no strong reason should be shown against it, he hoped their Lordships would in a prompt and gracious manner accept the Amendment.
Lord Cottenhamsaid, it appeared to him immaterial whether the appointments had formerly been in the hands of the Crown or of the Judges. If it was proper that a particular course should be adopted for the future, it was no argument against it to say, that a different and an erroneous one had teen pursued for a century or half a century.
Lord Campbellsaid, he would withdraw his Amendment as he understood the noble Lord (Lord Wharncliffe) was prepared to assent to the suggestion made by his noble and learned Friend on the Woolsack.
Lord Wharncliffewished to have the Bill now read a third time. He would consult his noble and learned and right hon. Friends and he had no doubt they would be prepared to pay every deference to what appeared to be the opinion of their Lordships.
Lord Campbell, however, said, as the noble Lord could not agree to the suggestion, he (Lord Campbell) would at once proceed with his Amendment.
Debate adjourned.
The House adjourned.