Lords Sitting of 6 February 1844

MINUTES.
BILLS. Public.—1a. Gaming Actions Discontinuance.
PETITIONS PRESENTED. By Lord Redesdale, from Boston, and 28 places, for Protection of Agricultural Interest.—By the Marquess of Normanby, from Belfast, complaining of omission of Roman Catholics from Jury (Dublin).

PROPERTY OF FELONS.
The Duke of Richmondsaid, he rose, in consequence of the notice which he had given yesterday, to call the attention of the House to a circular letter addressed by the Lords of the Treasury to the clerks of the peace of the different counties, on the subject of property belonging to felons. It was dated the 2nd of December, 1843, and was signed by the assistant-secretary of that body. In bringing forward this subject he did so without meaning to impute blame to any one; but at the same time he must observe that all matters of this kind were formerly settled by application to the Secretary for the Home Department, to which department this subject naturally belonged, and he thought that the course taken by the Lords of the Treasury would not have been adopted if the question had been duly considered. As the law at present existed, the property of every person convicted of felony went to the Crown. Under these circumstances, those whose duty it was to look after these matters were naturally

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anxious to seize as much of such property as they could; but, in acting on that principle, they ought undoubtedly to adhere strictly to the law. Still, the magistrates and the ratepayers in counties thought it very hard upon them that they should have to maintain the prisoners, and yet receive no part of the expense out of any property of which, at the time of conviction, they might be possessed. They felt it to be very hard indeed that all the property should go to the Crown, and nothing should be set aside to repay the county for the expense that had been incurred. The circular letter, however, went further, and he was sorry that the Lords of the Treasury were not better advised than to send it forth. The first paragraph of the circular directed,
"That in every case of committal for trial, either at the quarter or general Sessions or to the Assizes, the Magistrate should state on the back of the warrant of commitment what money, goods, or effects have been found in the possession of the prisoner, and in whose hands deposited; so that the same may be entered in the quarterly return sent to their Lordships by the clerk of the peace, and be duly accounted for to the Sheriff."
Now, he had no objection to that, for at present the governor of every gaol was bound to take an inventory of all property in the possession of persona committed for trial, and they were responsible for its not being made away with; but to the second paragraph he felt the strongest objection. That paragraph ran thus:—
"I am further directed to suggest, that in cases where there is reason to believe that persons accused of felony have any property whatever other than that found in their immediate possession, inquiry should be made at the residence of the prisoner, or at any other place known to have been frequented by him, for the purpose of ascertaining the particulars and value of such property, and the result communicated to the clerk of the peace, in order that the same may be included in the quarterly return above-mentioned."
How was this order to be carried into effect? Why, if a constable were to enter a house for the purpose of making such an inquiry, he would be liable to an action for trespass; but, supposing he were allowed to enter the House, how could he distinguish whether the property there belonged to the prisoner or not? How could he tell who had, or who had not, a legal claim to the property? Would he be allowed to examine partnership accounts? Such a proceeding was not recognized by the law of the land; and if such inquiries were made,
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he would go to the prisoners as a visiting magistrate, and tell them to make over their property to some person before their conviction, for it did not become the property of the Crown until that conviction took place. He trusted that the noble Lord (Lord Wharncliffe) would agree with him, that the second paragraph of the letter had better be omitted, that the Lords of the Treasury should withdraw it altogether, or that it should be amended. The noble Duke concluded by moving for the production of the letter.
Lord Wharncliffehad no objection to the production of the letter. By the common law of the land, as the noble Duke had correctly stated, the goods of convicted felons were forfeited to the Crown; and, until a few years ago, a regular return of such goods was made. Some very strong instances had, however, arisen, where the property of prisoners had fallen into other persons hands illegally, and had been retained by those persons. One occurred at Brighton, when 40 sovereigns were taken from a prisoner, and not given up. A still stronger case had occurred in Westmoreland, when no less a sum than 2,000 l. was kept back, and was with difficulty, and after a long lapse of time recovered. He admitted, that in particular cases, the recommendation contained in the second clause of the letter could not be acted upon; the first clause was perfectly right; the constables were bound to state the amount of money found on the persons of prisoners, and magistrates ought to attend to that suggestion. The second clause he did not think the Treasury expected to be obeyed in the way the noble Lord suggested; it was not intended to put the magistrates or clerks of the peace or of assize to any expense; but was intended as a suggestion to the magistrates that they should do something more than merely commit the prisoners. The object of the principal recommendation was, that on every apprehension the officer should be compelled to mark on the back of the commitment the amount of money found upon the prisoner. He thought that it would be well for the magistrates to attend to that suggestion, which he conceived would be attended with beneficial results. It was also recommended, that when the constable took the prisoner into custody he should inquire into the property possessed by the prisoner; but he knew not on what principle

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his noble Friend could suppose that it was thereby intended that the constable should inquire into the undivided profits of partners.
Lord Broughamwas very glad that this subject had been brought under their Lordships' notice. It was quite impossible to defend the second paragraph of the letter, which was directly contrary to law. It was there recommended, that the constable should inquire into the amount of property belonging, or which he had "reason to believe," belonged to a prisoner. It was utterly impossible to defend such a clause, inasmuch as it encouraged an officer to commit a trespass.
Lord Campbellconceived, that it was the duty of the Secretary for the Home Department, or the Lords of the Treasury, to have submitted this letter to his noble and learned Friend the Lord Chancellor, or to the Attorney-general before it was issued. The second paragraph was evidently contrary to law. With respect to the forfeiture of the property of felons, he was of opinion, that the sooner the law relative to it was revised the better. As the law stood, if a convicted felon were possessed of 100,000 l., it was all forfeited to the Crown. Now, surely, some portion of it ought to be reserved to meet prosecution or other expenses.
The Duke of Richmondthought it would be desirable to have a letter written to the different clerks of the peace, directing that the second clause (which he thought ought to be omitted) should not be acted on.

CHINESE TREATY.
The Earl of Clarendonsaid, he should take that opportunity to ask the noble Lord, the Secretary for Foreign Affairs, some questions with reference to one or two points connected with the Treaty recently entered into with the Chinese—an explanation respecting which would render that important document complete and intelligible. That Treaty was, he thought, one of the very utmost importance, and it ought consequently to be well understood. Under that Treaty they were about to enter on anew field of commerce—under that Treaty they looked forward to a great intercourse of trade; and, as much of its success must depend on a strict adherence, on our part, to the terms of that Treaty, and the condition by which their future intercourse with the Chinese was to be regulated, it was essential that no misunderstanding should exist. And this was equally
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important also to foreign nations, who would in all probability be expected by the Chinese government to adhere to the whole of the regulations entered into by us. He was sure that their Lordships had heard with great satisfaction the declaration contained in the Speech delivered by Her Majesty at the opening of the Session, in which Her Majesty stated, that in her negotiations with China, she had "uniformly disclaimed a wish for any exclusive advantages;" and that it had been Her Majesty's desire, "that equal favour should be shown to the industry and commercial enterprise of all nations" with China as that which was granted to us. And their Lordships had no doubt understood from that announcement, that Her Majesty's desire had not been expressed in vain; and that in future the commerce of China would be opened to all countries. But there was no evidence in the Treaty then before their Lordships to prove to foreign countries that this was the case. British subjects, British ships, and British commerce were alone adverted to; and he looked in vain for any proof of those liberal feelings towards other countries which Her Majesty had expressed. He had no doubt the noble Lord would be able to inform their Lordships, that this was owing to some accidental omission or temporary delay, but it was desirable that no misapprehension even for a moment should rest upon a transaction which reflected so much honour upon this country, and established such an important principle of free competition for the whole world, in that which might possibly become the greatest market of the world, under a tariff so wise and liberal as that which the Chinese had adopted with respect to our manufactures, and the benefits of which would probably be extended to the produce of other countries, For this candour and liberality, and all the advantages they would derive from it, the Chinese were of course indebted to the instructions given by Her Majesty's Government to the eminent and enlightened officer by whom the Treaty had been negociated; and he was sure they could make us no better return than by undertaking to frame a tariff for us upon the same model as the one they had just accepted at our hands, and infusing into our commercial legislation the same spirit that would henceforth animate their own. The regulations appeared to him to be framed most carefully with a due regard to the customs of the Chinese, and with a view to prevent those insults and frauds

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on their side, and the quarrels and disorders on ours, by which the intercourse between the two nations had been so frequently interrupted. These regulations, he apprehended, must be considered as part of the Treaty, equally binding with and having the same force as the Treaty; because in the second article of the Treaty they were referred to, and thus formed an integral part of it. But as this was no where positively affirmed, it was desirable to know that they were so understood and intended by Her Majesty's Government, whether British subjects were bound to obey those regulations, and whether Her Majesty's representatives in China had authority to enforce those regulations, as a portion of the Treaty engagements between the two countries? Some of those regulations were of a very stringent character, and they ought to be well known in this country, because on their due observance depended perhaps the continuance of our peaceful intercourse with China. The third regulation, respecting masters of ships, provided for the imposition of various fines for different offences. One of them imposed a fine of 500 dollars, and the confiscation of the whole cargo for unlading without a proper permission being first given; but nowhere did he find it stated, in these regulations, by whom or how these fines were to be levied, nor how they were to be applied. The next question he wished to ask, referred to the thirteenth regulation, which was one of the most important of the whole Treaty; but which did not appear to him to be expressed with sufficient clearness. It said, "Regarding the punishment of English criminals, the English Government will enact the laws necessary to that end." It had been stated, that Her Majesty's Government had framed a code of laws for this purpose, and the public should be made aware from authority if the fact were so; and therefore he wished to ask, whether Her Majesty's Government had drawn up any code of laws for the punishment of British criminals in China, in fulfilment of the regulation, and, if not, when those laws would be framed and in force? as it might be of urgent necessity, that Her Majesty's representatives in China should be empowered to enforce the provision of this regulation as early as possible. He wished also to know, whether, when the code was framed, all the consuls at each of the five ports where British subjects are now permitted to trade, were to have the
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power of executing and carrying into effect those laws, or whether that duty was to devolve only on the Consul-general or chief authority at Hongkong? The fourteenth regulation was the next to which he would refer, which was to the effect, that an English cruiser would anchor at each of the five ports that were now opened to us in China. He regarded this as a wise regulation, and necessary for upholding the power of the consul, as well as for keeping the Chinese authorities in check. He hoped, therefore, that the provision would not be of a temporary but permanent character, and as for the expense, he was sure it would be well bestowed, and he thought that money applied for the maintenance of peaceful relations between the two countries, would never be grudged by the people of England. He found it stated in the fifteenth regulation, that the British consul would henceforth be security for all British merchant ships entering any of the five ports; but it did not appear whether this meant security for the good conduct of the ship's company or for the payment of the duties to the Chinese Government; but whether it was the one or the other, he could conceive circumstances under which this security would place the consul in a position of considerable embarrassment. These were the questions he had to ask of his noble Friend. He was afraid that he had somewhat exceeded in length what the notice he bad given might have led his noble Friend to expect, but these doubts had occurred to others as well as to himself, and he was anxious that no misapprehension should exist respecting a Treaty, which would not fail to produce satisfaction throughout Her Majesty's dominions.
The Earl of Aberdeensaid, the regulations to which his noble Friend referred had been drawn up jointly by Sir H. Pottinger and the Chinese Commissioners, and therefore, certainly might be taken as a part of the Treaty. First, with respect to the punishment of criminal offences, two bills had been passed in the course of last Session—the Chinese Courts Bill, and the Foreign Jurisdictions Bill, by the operation of which Her Majesty's Government were empowered to frame laws for this purpose, and to carry them into execution. The governor and council of Hongkong had been accordingly empowered to frame laws for this purpose, and under one or both of these acts the governor of Hongkong would appoint persons to carry out the regulations, and it was intended that at

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each of the five ports the consuls should execute the regulations applicable to each port. With respect to the presence of a British cruiser at each of the ports, he quite agreed with his noble Friend, that it was a regulation of the greatest importance; but he did not wish to be understood to say, that at no time should any port be without a British cruiser anchored there, but no port should be long without, and he trusted that each port would always have one, except when the exigencies of the naval service might require their temporary absence. The 15th clause certainly did present some difficulties, which he was not surprised that his noble Friend had misunderstood. During our former intercourse with China, as noble Lords would remember, the Hong merchants gave security to the Chinese Government for the payment of the duties. That body no longer existed, and the question, therefore, when this Treaty came to be settled, was, how the security to the Chinese Government was to be given? It was done in this manner—there was not a direct pecuniary security on the part of the consul; but if his noble Friend would refer to the third regulation, he would find it provided, that
"Whenever a British vessel shall have cast anchor at any one of the above-mentioned ports, the captain will, within four-and-twenty hours after arrival, proceed to the British consulate, and deposit his ship's papers, bills of lading, manifest, &c., in the hands of the consul. The consul, having taken possession of the ship's papers, will immediately send a written communication to the superintendent of customs, specifying the register tonnage of the ship, and the particulars of the cargo she has on board; all of which being done in due form, permission will then be given to discharge, and the duties levied as provided for in the tariff."
When the Chinese officer at the port was satisfied with the payment of the duties he would grant the port clearance, which being shown to the consul, the captain would have his papers returned to him, and the ship would then, but not till then, be ready to sail. The consul, therefore, would incur no pecuniary responsibility, but would exercise that degree of authority which would practically give security for the duties to the Chinese government. He begged to say, with respect to the principle which had actuated Her Majesty's present Government in their negotiations with the government of China, that it had always been their desire; that the privileges ac-
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quired by this country should be extended to all nations alike. It was true, that did not appear in this treaty, but Sir H. Pottinger was aware from the first of the desire of Her Majesty's Government on the point, and a Supplementary Treaty had been signed by Sir H. Pottinger and the Chinese Commissioners, in which he had no doubt the clause had been inserted, although it had not been transmitted to this country. Sir H. Pottinger had undoubtedly done his work very well, but he was not quite a diplomatist, and had been somewhat unmethodical in his communications with the Government at home. For this reason, though Sir Henry had written to say, that the Treaty had been signed, he (the Earl of Aberdeen) could not undertake to say, that the article would be found in it, though he had reason to believe it would. They all knew, by a proclamation of the Chinese government, that the tariff had been extended to all nations, and that this had been done by an edict of the Chinese government. To show how justified was Her Majesty in declaring what had been our principle with regard to these negotiations, he had only to quote a paragraph from one of the first of his communications to Sir Henry made early on his coming into office. On the 4th of November, 1841, Sir Henry was told, that a secure and well regulated trade was all that the Government desired, and that he should constantly bear in mind, that we sought for no exclusive advantage, and demanded nothing which we were not willing to see enjoyed by the subjects of all other states. With that knowledge in his possession at so early a period, it was exceedingly probable, that there might be an article to that effect in the Supplementary Treaty. As soon as that Supplementary Treaty arrived, it would be laid before the House, and he trusted that it would be found to be as satisfactory to their Lordships and the public as the original Treaty would be.

CORN-LAWS.
The Duke of Roxburghesaid, he was prevented from making a few observations on the first evening of the Session by his desire not to introduce any topic which might interfere with the unanimity which prevailed on that occasion. He had then intended to put a question to the Government with regard to their intentions on a subject which, although not distinctly mentioned, was yet alluded to by the noble Earl who moved the

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Address—he meant the subject of the Corn-laws. As, however, on the same evening a declaration was made in the other House of Parliament to the effect that it was not the intention of the Government to make any alteration in those laws, he now merely rose for the purpose of stating the sincere gratification he felt, in common with many of their Lordships, at that announcement. He felt satisfied that it would tend to remove much of that state of doubt and uncertainty which had prevailed so long, and had weighed down an interest already sorely depressed and well nigh ruined, and that it would restore confidence to the agriculturists and enable them to resist the attacks so unscrupulously and unjustly made against them when they saw the Government stand forward so nobly as it had done in defence of their rights. He was satisfied it would gain for them the support of the agriculturists of this country; and, for his own part, he begged to express his thanks to Her Majesty's Government for the announcement they had made.

BANK OF ENGLAND AND BANK OF IRELAND.
Lord Monteaglein rising to move for the returns of which he had given notice, relating to the liabilities and assets of the Bank of England, said he would first remind their Lordships how the matter now stood. When his noble friend Earl Spencer—then Lord Althorp—introduced the bill for the renewal of the Bank charter, he accompanied that bill with another relating to the circulation. From the state of the public business, and also from the misapprehension which prevailed at that period, the second and most important bill did not pass into a law. The Bank charter having been conclusively settled for ten years, no further measure of importance had since been introduced to Parliament. In the course of last Session he took the liberty of adverting to the subject, when the noble Duke opposite said the present Session would be the most convenient time for entering upon this discussion. In that opinion he concurred entirely, but in exact proportion as it was contrary to the public interest to have a premature discussion, it became important that all the information that could properly be given, should now be laid before Parliament, to enable them to discuss it with advantage; and as a question of this description was likely to
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originate in the house of Commons, it was necessary to consider in what position the two Houses would stand on the subject. In the other House, during the time of the late and present Governments, there had been a mass of most important evidence taken before a Parliamentary committee; that evidence had been partly communicated to the House of Lords, and it was, therefore, important to know whether it was the intention of the Government to institute any inquiry by means of a select committee of that House. In putting the question he was far from expressing an opinion in favour of that course, for he thought the information at present before Parliament was quite sufficient for all purposes of useful legislation; but if a committee were to be appointed, it was clear that it should be done as soon as possible. His question, therefore, was whether it was intended to institute any such supplemental enquiry, and next whether in the event of there being no inquiry of this description instituted, it was the intention of the Government to lay before Parliament any documentary evidence stating the negotiations they had had on the subject with the Bank of England. It was possible, that it might be impolitic to produce some of this correspondence, but if there were any papers in it which indicated the course intended to be taken by the Government and the reasons on which they had come to their conclusion, and were prepared hereafter to defend it, he thought the sooner they could be produced consistently with the public service the better. In the course of the last inquiry, most important and valuable information had been given by men who were qualified, not only as men of learning and science, but also from their practical experience, to form a sound opinion on the subject. Among them were Mr. Horsley Palmer, Mr. Loyd, and others, and these gentlemen advocated most strongly the principle of looking to a central issue of notes. This was, however, misunderstood, and a great outcry was raised on the part of some persons against any measure which contemplated a central issue as being the creation of a monopoly of banking. These Gentlemen, however, and those who agreed with them never dreamed of creating a monopoly of banking. Banking as such ought to be as free as any other trade; but the issue of money, the transfer to a paper cur-

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rency, the exercise of what in simpler times was a prerogative of the Crown, the power of restraining and regulating by paper the circulation of money throughout the land, was no creation of a monopoly of banking, but only the exercise of that species of general regulation on the part of the supreme authority in the State without which no monetary system could be considered safe, and without which they would cast undue responsibility on the Bank of England. Nothing could be clearer than that if, in a time of exigency, they could reduce the amount of circulation, the effect would be to enhance the value of money; and if all over the land banking establishments existed with unlimited power to issue a paper circulation, the enhancement of the value of money by the Bank of England would be an additional motive for such banks to counteract the action of the central bank, and render the exchanges more unfavourable to the country than it would otherwise be. This doctrine and the prejudices of the public bad hitherto stood in the way of a settlement of the question; but he thought the sooner the terms agreed to between the Government and the Bank were made known, the more likely there was to be produced in the public mind a feeling of satisfaction on the subject. He did not now wish to elicit what the proposition was, nor did he throw out these suggestions with any other view than that of assisting the measure when it should be brought forward. The third question be wished to ask was, whether the alteration in the law which was contemplated on the subject of banking, would apply to Ireland as well as to England. He did not mean as part of the same bill, but contemporaneously, and on the same principle. He was sure, that whatever the plan was, it was important, especially at the present time, to show that the system recommended for this country was of the same character and founded on the same principles as that which was about to be introduced in Ireland. The noble Lord concluded by moving for an
"Account of the average liabilities and assets of the Bank of England, during the years 1842 and 1843; balance sheet of the public income and expenditure for October, 1843, and 2nd January, 1844; and an account of the sums received from sale of stock, remittances from China, and from property tax, during the years 1841, 1842, and 1843."
The Duke of Wellingtonreplied to the first question of the noble Lord, that, upon the information at present in possession of the Government, it was not intended to recommend to their Lordships the appointment of a committee of inquiry on the subject, the information already before Parliament being considered sufficient. With regard to the second question, he had to answer that he was not aware of any documents being prepared which it would be desirable to lay before the House; but the noble Lord might rely upon it, that as soon as any documents were in a state to be laid before Parliament, it should be done at once. Upon the last question, the noble Lord was perfectly aware, that the renewal of the charter of the Bank of Ireland depended on entirely different circumstances and different principles from those on which the renewal of the Charter of the Bank of England depended. But it was the intention in the present Session of Parliament to adopt measures for the renewal of the Bank of Ireland charter on the same principles as the Bank of England. He must say, that the noble Lord had clearly shown that he perfectly understood the principles upon which the renewal ought to be carried into execution; but he (the Duke of Wellington) hoped to be excused if he did not then enter into the discussion of a measure the principles of which must be first stated in the other House.
Motion agreed to.

THE IRISH POOR-LAW.
Lord Monteagleasked if it was intended by the Government to propose any committee of inquiry into the Irish Poor-law during the current Session of Parliament.
The Duke of Wellingtonhad stated in the last Session that there would be no objection to such an inquiry. Since that the Government had obtained important information with regard to new buildings in Ireland, and he himself hereafter should have no hesitation in moving the appointment of a committee: but he desired to postpone it until the return of those noble Peers who were connected with Ireland, and who, in consequence of their anxiety to be in Ireland under existing circumstances, were now absent.
Adjourned.