Lords Sitting of 28 February 1845

MINUTES.
BILLS. Public.—2a. Constables (Scotland); Bail in Error.
Private.—3a. Britten's Divorce.
PETITIONS PRESENTED. By the Bishop of Norwich, from Llanerchymeda and 2 other places, for the Adoption of Measures for the better Suppression of Intemperance.—From Female Inhabitants of Downham Market, for adopting Measures for suppressing Seduction and Prostitution.—By the Earl of Minto, from Dumbarton, for Improving the condition of Schoolmasters (Scotland).

SUGAR DUTIES.
Lord Monteaglerose to move for the Papers relating to Discriminating Duties on Sugar of which he had given notice, to which he believed there was no objection. When a discussion took place on a former occasion, his noble Friend opposite (Lord Stanley) seemed to consider him premature in offering any observations on a measure which was to come before their Lordships in the shape of a Bill; now it was precisely on that very account that he was anxious to make a few observations, because they were informed that the Resolutions about to be proposed in the other House would take effect from the date of the Motion passing, and therefore any objection to them if raised against the Bill would come too late for consideration. He had, on a former occasion, taken the liberty of saying, that if the reported intentions of Her Majesty's Government were to be depended upon, their scheme was open to the greatest possible objection, on the ground that although in every year since 1836, the question of the Sugar Duties had undergone Parliamentary discussion, it was now for the first time proposed to depart from the principle of perfect equality between the advantages conceded to the dominions of Her Majesty in the East and West Indies. A perfect equalization of duties was the principle of the Act introduced by himself in 1836, against which, from the time of its enactment to the present, he had never heard any one complaint or objection. He thought it still more necessary that this principle should be adhered to in conse-
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quence of the proceedings of the Legislature during the last year; it would be in the recollection of their Lordships that the measure then proposed by Her Majesty's Government, so far from being brought forward as a final measure, was stated to be only intended as a notice to the parties of the principles on which future legislation would be founded. That was repeated over and over again in both Houses of Parliament. The Bill of last Session contained no provision which could alter the effect of the Equalization Act of 1836; and after both parties, especially the East Indians, had, on the faith of the Act of 1836, invested a greater amount of capital in the cultivation of sugar, and had augmented their produce greatly to the advantage, not only of the consumer, but of the Treasury, it would be the grossest injustice to them to abandon from the principle of that Act by a proposition which would have the effect of imposing a higher duty on East Indian than on West Indian sugars. He had exceedingly rejoiced to hear on a former occasion from his noble Friend opposite that it was the intention of Government to adhere to the principle of equality throughout their present measure. He hoped he was warranted in assuming that that principle would be fairly and effectively carried out, and would be something more than mere words; but if a measure were proposed which would in its operation, in fact, impose a discriminating duty on sugar which was for the most part the produce of the East Indies, and that of the West Indies, it was practically immaterial whether or not this discriminating duty were imposed in express terms or were imposed indirectly—the fact was precisely the same, if the produce of the one country were really taxed more highly than that of the other. An artifice of this kind, he would not call it a fraud, was once attempted to be carried into effect by the Government of France with respect to the duties on iron. It was proposed by the French Government that there should be a higher duty upon the iron brought by sea than on that which was brought by land into France. Undoubtedly, no mention was made in name, either of England or Belgium, but the effect was the same, because English iron must necessarily come by sea, and Belgian by land. If the proposition of the Government in reference to the Sugar Duties should be carried out in the terms in which it was propounded, an inequality of a similar

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nature would be the practical result, or he certainly was in error, and he was in error in common with many of those who had the best means of forming a sound practical opinion. Since the former discussion occurred, he had communicated with several of the most eminent persons engaged in the East India trade, and undoubtedly the impression on his mind, from the replies he had received, was, that the plan of the Government would have the effect he had stated. One very considerable merchant stated that he was persuaded all the East India sugar would be called clayed, or equivalent to clayed, and would, therefore, have to pay a higher duty than Muscovado; another stated, that if colour was to be the only criterion, it would operate most unjustly against the East Indians. If colour and quality were taken into account, there were other insuperable objections to the plan. But that which showed most strongly the objections felt throughout the commercial world to the plan of the Government was a petition addressed to Parliament by the East India and China Association, a body comprehending, he believed, all the most eminent traders and merchants concerned in this branch of commerce. It was true that two very respectable firms dissented from the terms of that memorial; but, with that exception, it was unanimously adopted. The petition stated,—
"That your Petitioners believe it to be notorious that nearly the whole of the sugars imported from the British West Indies and the Mauritius are Muscovado sugars, and would be subject to the duty of 14 s. per cwt. only; whilst from the East Indies, sugars, having undergone some process of purification by which their appearance more nearly approaches to what is technically called 'clayed sugar,' (although that process does not exist in India) the great bulk of the Bengal and other East India sugars would, from their whiteness, be classed 'as equal to clayed.' But your Petitioners submit, that although Bengal sugars gain in colour and appearance, they are rendered inferior in strength and grain by the process they undergo, and that your Petitioners are able to show that in the home market the average prices of West India, Mauritius, and East India sugars are nearly the same, and that, in point of fact, the Muscovado sugars from the West Indies bear an equal, and in some cases a higher price in the market than white East India sugar. Your Petitioners therefore submit, that practically, the introduction of the proposed discriminating duties, would subject India sugars of equal or less value than West India sugars to an additional duty of 2s. 4d. per cwt., thereby
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destroying that principle of equal duties upon sugar which was solemnly established after years of elaborate discussion, and inflicting severe injury upon the people of India, who, on the faith of the existing equality in duties, have entered extensively into the cultivation and manufacture of sugars, and oblige them either to relinquish the unequal competition, or to stop the progressive improvement in their manufucture; the discriminating duty offering a bonus to the export from India of coarse and inferior sugars."
The general impression among those interested in commerce was, that the effect of the intended measure would be, to impose new and increased duties on East Indian sugar, as compared with the duties on West Indian sugar. If it were the intention of Government to impose additional discriminating duties, the mode they were about to adopt was the very worst they could employ. Their measure might be intended to remove the inequality that was objected to in the existing duties, and to substitute something approaching an ad valorem rate. But if so, it would utterly fail, as the papers he intended to move for would prove to demonstration. The Government of Earl Grey made a similar attempt with respect to tea, and had introduced a classification of that article, the arguments in defence of which were very plausible. It was adhered to for a certain number of years, but it utterly and entirely failed, and for a reason which would make the Government scheme in respect to sugar fail in a similar manner; for, draw the line as they might with respect to sugar, whatever might be the definition they would always find that the highest quality of the second class would be worth more than the lowest of the first class; and there would thus be imposed on the lowest qualities of sugar a higher duty than on the higher and better qualities. The fact was, that tea could be more easily classified than sugar, Bohea being distinguishable from Congou, but yet the maintenance of a classification had been found impracticable, and it was found necessary to revert to the imposition of a uniform rate of duty—the only possible plan, though it might sometimes operate unequally. But this was not all. The very experiment now about to be tried with regard to sugar had been tried and had signally failed on a previous occasion. In 1821, an additional duty of 5s. per cwt. was imposed on sugar, clayed or equivalent to clayed; that measure, however, created such dissatisfaction that Parliament

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was obliged to retrace its steps: nay, before Parliament could repeal the Act, the Treasury was obliged to interpose, and allow the smaller duty to be received on bonded sugar. On this subject he had with him the high authority of Mr. Huskisson. In 1823, on a motion by Mr. Woolryche Whitmore, for the equalization of the sugar duties, Mr. Huskisson stated—
"That he was willing to take off the duty of 5s. which had been laid, two years ago, on a particular sort of sugars coming from the East Indies, which was thought to be equal to the clayed sugars of the West Indies. Considerable difficulty was found in appreciating this particular sugar. The best judges were often unable to say whether it was a clayed sugar or not. To obviate the inconvenience to which the East India planters were subject, from having to send their sugars sometimes to this country, uncertain whether the protecting duty charged upon them would be 10 s. or 15 s., he was disposed to do away with that extra 5s. altogether."
He (Lord Monteagle) saw no possible reason why the proposed measure of the Government, if carried, should not lead to all those irregularities and complaints which had induced Mr. Huskisson to repeal a similar duty. It could not be expected that landing waiters and surveyors could discriminate accurately in reference to the saccharine matter contained in particular parcels of sugar; this would be exceedingly difficult even for Dr. Ure, in his laboratory, to determine, and as a point of Custom House regulation it was utterly preposterous. An experiment of this kind must of necessity end in disappointment of the worst kind, as it would be sure to produce constantly reviving collisions between the officers of Government and the importers. Nothing was so bad for a trade as a perpetual state of contention and of uncertainty; and if circumstances had admitted of the Sugar Duties being made permanent, by the enactment of a well-considered law, a greater boon to a great interest could not have been conferred. By the Papers which he should now move for, they would be enabled to see the whole working of the former discriminating duty, the grounds on which it was abandoned, and the grounds on which a duty similar in its character and nature was proposed. The noble Lord concluded by moving for the Returns.
Lord Stanleysaid, that his noble Friend must be aware that the Papers he moved for had already been laid on the Table of the other House, and, therefore, there
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could be no objection to afford to their Lordships the same information. Under these circumstances he could have wished that his noble Friend would have abstained from what he considered the somewhat irregular course of making observations on a measure not at present before their Lordships. He protested against this premature discussion of a Bill which was thereafter to come before their Lordships, but with respect to which even the preliminary Resolutions had not been adopted by the other House. If there were any doubt as to the inconvenience of the course adopted by his noble Friend, he thought the speech of his noble Friend contained full evidence of that inconvenience, because, to found his opposition to the measure, he had been obliged to take many alternatives, so that whatever might be the character of the measure, he might object to it. If the qualification were to be colour, that would not be a satisfactory test; if the qualification were to be the saccharine matter, that would be equally unsatisfactory; if the qualification were to be a chymical test, that would not be satisfactory. He ventured, therefore, respectfully to submit to his noble Friend that he should furnish himself with all matters of official detail, and with all details which might enable him to discuss the principle of the measure, and then that he should reserve his objections till all the facts and proposals were made, and then see against what point he could most effectually direct his artillery. He would have no objection to furnish his noble Friend with the particulars he desired; and when the Bill itself should be before their Lordships, he would be most anxious to submit the principle and the details to the most rigid and active discussion and examination; but he did deprecate any discussion on the Bill before the Resolutions on which it must be based were adopted by the other House of Parliament. He could not admit the statement of his noble Friend, that there would be no opportunity for discussion, though his noble Friend said, he knew from authority that the duties would take effect immediately after the House of Commons should have agreed to the Resolutions. This was true to a certain extent, but the duties would take effect on the Resolutions of the House of Commons, only subject to a confirmation by the Parliament. It would be just as competent for their

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Lordships to discuss the Bill which must be brought forward after the Resolutions were agreed to, for after those Resolutions they could only be carried into effect subject to future confirmation by Act of Parliament. The consequence would be that there would be no inconvenience in postponing the discussion till after the details should be before the House. He would repeat again the declaration, and he begged that he might be correctly understood—it was the intention of Her Majesty's Government with respect to the produce of equal quality, whether it was East India or West India sugar, not to make any distinction of duties: it was the intention of Her Majesty's Government to give to sugar of equal quality in the East Indies the same advantages as to West Indian sugars of like quality; and it was their intention to give a protective duty to sugars of a superior quality, whether they were the produce of the West Indies or of the East Indies; but they did not intend to give, and the proposal of Her Majesty's Government did not give, any advantage to the sugars of one or of the other. And he thought he should be able to prove to his noble Friend that his apprehensions were unfounded, and that, in point of fact, a large proportion of East Indian sugars would be admitted for home consumption at the lowest rate of duty.
Returns agreed to.

BAIL IN ERROR.
The Lord Chancellor: I rise, my Lords, to propose the Second Reading of the Bail in Error Bill, and, as I do not expect any objection to the second reading, it will not be necessary for me to do more than state in a few words the object of this Bill. That object is to enable a party who may be found guilty of a misdemeanour, on bringing a writ of error to reverse the judgment pronounced against him, to suspend the exetion of that judgment by giving bail to surrender himself and submit himself to the execution of the judgment of the Court, if that sentence shall afterwards be affirmed. This bare statement of the purpose of the Bill will, I apprehend, be sufficient to induce your Lordships to give it your concurrence; but if I state an instance or two of the most striking defects of the law as it now stands, I shall obtain a general assent to my proposal. Suppose, my Lords, that a person be charged with a misdemeanour, and be found guilty of
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the offence; suppose the sentence should be that the party be imprisoned, say for three or six months—it is important to mention, that imprisonment is the ordinary punishment in cases of misdemeanour; suppose the party is advised by his counsel that the judgment is erroneous, and that he has good grounds for reversing it by writ of error: but immediately upon being pronounced that sentence is carried into execution; the party is put into confinement; he then brings his writ of error. Any one who knows this course of proceeding, knows that a considerable time must elapse before the writ of error can be heard and the decision revised. In the meantime the party would be suffering the sentence of the law; and if the imprisonment be not long, the judgment will be complete, and the sentence will have been fully executed before the judgment on the writ of error is given. It is quite impossible that your Lordships can justify such a state of the law—it is, in point of fact, to deny to this party the benefit of the writ of error. Will it be supposed that any party sentenced to imprisonment for a short period—it may be of not more than two or three months—will bring his writ of error, when it is almost necessary that before the hearing of the writ of error the judgment which has been pronounced will have been fully executed? The party will be urged to go on with his writ of error, whilst his sentence will have been fully undergone. What interest will such a person have in bringing his writ of error? Is it not obvious, that unless a change be made in the law, you deprive such parties of the benefit of their writs of error? It will be idle for them to prosecute any writ, if the consequence be that they have suffered the whole sentence. It is obvious, therefore, that it is the duty of your Lordships to protect the parties suing out the writ of error from the consequences I have stated. Now, my Lords, it is important to consider what is the state of the law with respect to civil proceedings. At the Common Law, if a judgment be impugned, and if a writ of error be brought, the writ of error suspends the judgment of the Court. It was not even necessary by the Common Law that the party bringing the writ should give bail. Some inconvenience was felt to result from this state of the law by parties bringing writs of error merely to delay the execution of the judgment. Many contrivances were attempted to obviate that inconvenience,

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till at last, in the reign of James I., it was required that a party in a civil suit, before a writ of error is brought, shall enter into recognizances by himself, and sufficient sureties, to secure the debt, costs, and damages for the delay in the execution, if the judgment should be affirmed. This is the state of the law, with some alterations, as it remains at the present time. If this be right in the case of civil proceedings, à fortiori it must be right in criminal cases; and for this plain and obvious reason,—because in civil proceedings a sum is recovered by the judgment, and if that sum be handed over and the judgment be set aside, the amount may be recovered back; or, at least, there is the possibility of its being recovered; but, if in criminal cases the sentence of imprisonment be carried out, there is no possibility of the party being restored to his original position, because his case admits of no subsequent remedy. Therefore, if this course be pursued with respect to civil proceedings, à fortiori it ought to be followed in criminal cases. If we turn to the Courts of Equity, we shall find that a similar course is taken. If the decision of a Court of Equity be appealed against, that appeal does not of necessity suspend the execution of the judgment; but application may be made to the Court to suspend the execution of the judgment, and the Court does, in its discretion, and if it deems it a proper case, assent to the Motion, and suspend such execution. There is, therefore, an analogy between the course in civil proceedings generally; and, as there is still stronger reason in favour of a like course in criminal cases, your Lordships will, I am sure, be of opinion that the Bill I now propose ought to be passed into a law. It is a singular circumstance, most certainly, that there should have been so many eminent lawyers in both Houses of Parliament, and that the law should have continued in this state down to the present time; but the fact is, that when we are accustomed to a certain practice, unless there be some occurrence which shall call for the exercise of our energy, we are apt to slumber on our duty, and we allow the defect to continue till at length we acknowledge it, and make an alteration in the law of the country. It has happened, my Lords, that circumstances have occurred which drew the attention of my noble Friend (Lord Campbell) to the state of the law on this subject. For the purpose of amending the law my noble and learned Friend brought
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in a Bill last year which did not appear to me to be at that time free from objection; I therefore opposed it on the second reading for reasons which I stated to your Lordships, and in the propriety of which your Lordships concurred; but I stated at the same time that on some future occasion, in case my noble and learned Friend should seek to carry out the object of the Bill he had introduced, I would give him my support, and that if he did not introduce his Bill I would bring forward a measure the principle of which met with my entire approbation. I also stated at the same time that other Bills were under the consideration of the Government; they are now preparing, and I hope that at no very distant period I shall be able to lay them on your Lordships' Table. I will say no more now than propose to your Lordships to give a second reading to the Bill for allowing bail in error in cases of misdemeanour.
Lord Campbell: My Lords, I do not rise to oppose the second reading of this Bill, for I have not changed my opinions on this subject, although my noble and learned Friend has entirely changed his; and, as it appears to me, my noble and learned Friend has utterly forgotten the course he took last year, and has not refreshed his memory by a reference to the pages of Hansard. The two Bills introduced last year and now are precisely the same — they are both called "Bail in Error Bill;" they are both entitled in the same way, "A Bill for staying the Execution of Judgment in Cases of Misdemeanour, and for Allowing Bail in Error;" but the great difference is, that the one was presented by my Lord Campbell, and the other is presented by the Lord Chancellor. I am very glad that my noble and learned Friend has not followed the example of the Gipsies, who, when they take children which are not their own, and endeavour to pass them off as their own, are sometimes accused of mutilating and disguising them. My noble and learned Friend has spared me that; his Bill is ipsissimis verbis the same as mine; there is only one alteration which my noble and learned Friend may be disposed to swear by. My Bill suspended the execution of the judgment "till the performance of a condition;" and this Bill suspends the execution of the judgment "if the condition is performed." That is the difference between the two Bills. My noble

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and learned Friend has made—and it is not the first time that he has made—a most admirable speech in favour of a bill which upon a former occasion he had most strenuously opposed, and which he has caused to be rejected. Upon the present occasion my noble and learned Friend did much better justice to the topics which I formerly ventured to bring before your Lordships; but the same topics—and I am flattered to hear almost in the same words — have now been brought before your Lordships by my noble and learned Friend. I have no reason to believe that there are any sound objections to such a Bill, but there was an objection to the circumstances under which mine was introduced. I know it generally happens that some particular case of this sort shows the defect and the abuse, and demands that the remedy should be applied — it was the case of Jaques which produced the Habeas Corpus Act; and Mr. Justice Blackstone, in his "Commentaries," says, that if we examine the history of our country, we shall find, that it is some case of hardship or oppression—I do not mean to say that there was any oppression in this case; I do not wish to excite any unpleasant feelings in any quarter,—but Mr. Justice Blackstone says that it is not till some case of hardship or oppression occurs that the defects of the law are discovered, and the proper remedy applied. It must be a just reflection of the necessity of the case, which induces my noble and learned Friend to introduce this Bill; but I must tell your Lordships how the Bill introduced by me last Session was received by my noble and learned Friend. He was not contented with his objection to the particular occasion on which it was introduced, but he strenuously opposed the whole Bill; he objected not merely to the principle of the Bill, but also to all its details. After pointing out his objection to the principle of the measure, my noble and learned Friend asked — "But, after all, what is the principle of this Bill?"—the very Bill now brought in by the Lord Chancellor himself. "What a miserable little specimen of legislation it is when we come to consider it." This little miserable specimen is now produced by the Lord Chancellor of England. He then goes on to say—"In the first place, it is a law for the rich, and not for the poor." That is my noble and learned Friend's objection—for
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it will not be made by your Lordships—to the Bill which he now proposes. My noble and learned Friend then added, "Does it not recall forcibly the saying of the sage, that 'laws are like cobwebs;' the small flies are caught, but the big ones break through and escape?'" My noble and learned Friend then proceeds to say, with great force, that if the Bill passed, the law would be extremely injurious in a large class of offences of the worst description, by enabling the party to escape, particularly with respect to infamous offences, where the offender would escape and the law would be defeated. My noble and learned Friend said those infamous offenders would escape,—"whether the judgment be confirmed or reversed, they equally set the law at defiance." And then the noble and learned Lord summed up by saying, "Such are the consequences of this measure," which the noble and learned Lord now asks your Lordships at once to enact. Then there was another point on which my Bill was objected to. "Why do you not include felonies?" asked my noble and learned Friend; and he then went into a long enumeration of felonies, and showed that if bail were to be allowed in cases of misdemeanour, it ought to be in some cases of felony. When, therefore, I saw the Bill brought in by the Lord Chancellor himself, I thought, at least, that there would be an additional clause, extending its operation to the felonies he had enumerated, such as killing deer and cutting trees; I thought that at all events it would be extended to these offences; but the Bill which the noble and learned Lord has brought forward does not include a single felony; it is confined wholly to misdemeanours. It may be, my Lords, that notwithstanding this opinion, my noble and learned Friend has seen a new light, that he extols now what before he reprobated with so much severity. I only hope, my Lords, that upon some future occasion, if I do bring in a Bill, and if my noble and learned Friend attacks it with all his ingenuity and force, that your Lordships will not decide conclusively that my Bill ought to be rejected, because my noble and learned Friend opposes it—remembering that the next revolving Session may hear him say, as he says to-night, how marvellous it is that in the middle of the nineteenth century, in the eighth year of the reign of Her Majesty Queen Victoria, and after so many eminent

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lawyers have sat in both Houses of Parliament, the law should have been allowed so long to remain in its present state. I hope that hereafter your Lordships will treat me with some forbearance; and that you will not take the word of my noble and learned Friend, that the measure I may propose is fraught with such mischief, and is so contrary to reason and principle, that it ought not to be adopted, because your Lordships may afterwards find a renewal by my noble and learned Friend of that very Bill, and a strong recommendation of it as a great improvement in the institutions of the country.
The Lord Chancellor: I must say, my Lords, that my noble and learned Friend has made a very singular return for the favour I have bestowed upon his proposal. Certainly, he has made a most ungrateful return for a kind action. In the early part of the present Session, my noble Friend stated his wish to re-introduce his Bill, but asked me if I would bring in a measure, knowing that if I adopted it there would be a better chance of its success. I immediately assented to his suggestion. I adopted the noble Lord's bantling; and in introducing it to your Lordships' House I did not think it proper, as it resembled so much its parent, to mutilate it—I made only a slight alteration in its dress; but that does not prevent me from making in Committee such alteration as the case may seem to require. I must recall to your Lordships' recollection the grounds on which I opposed the Bill of last year. I thought that Bill was introduced to meet a particular case; that it was introduced with a political view and with a political object, and what the noble and learned Lord has stated in the present instance has confirmed that opinion, because he has stated the name of the Gentleman who brought up the Bill, a Member of the other House of Parliament — Mr. More O'Ferrall, who canvassed the Members of both Houses in its support. This has confirmed the conclusion I then drew, that the Bill was introduced last year with a political view, and that it was directed to meet a particular case, which was the main ground why I then opposed the Bill. I also opposed the Bill, because I did not think it sufficiently extensive. I have since turned my attention more closely to that part of the question, and I have seen reason to convince me why the Bill should not be extended to cases of felony; but I am not sure with respect to particular offences that there may not be an objection to this Bill
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on the same grounds as the objection to its extension to cases of felony, on account of the gravity of the charge, and the inducements to fly from justice. I only now propose, my Lords, to read this Bill a second time. I adopted it at the suggestion and request of my noble and learned Friend, and I must say that I think it is very ungrateful of him to make me such a return as he has done.
The Marquess of Lansdowne: The Bill of the noble and learned Lord on the Woolsack has my approbation in as great a degree as that accorded to it by my noble and learned Friend (Lord Campbell). I did venture to say, on the first day of the Session, in adverting to the state of Ireland, and to the circumstances which recently arose in that country, that after what had passed in this House—and what I maintained then I shall repeat now—fortunately passed for the vindication of the character of this House, the time was at last arrived when my noble and learned Friend might with advantage again produce the Bill tendered to their Lordships in a former Session; and I hesitated not to call on my noble and learned Friend, in the exercise of a public duty, to propose such a Bill. But the result of that call has far exceeded my utmost expectations, because I ventured to appeal to my noble and learned Friend, knowing what his sentiments were; but I should have thought it an offence to call on the noble and learned Lord on the Woolsack to introduce such a measure, when I knew his sentiments were recorded as directly opposed to it. But as I have said, the noble and learned Lord has surpassed my expectations, and introduced a Bill not founded on the objections which he before urged so strenuously, but on the statements of my noble and learned Friend. One of those objections of the noble and learned Lord was, that the Bill was introduced with a political object. Now, my Lords, I must take this opportunity of saying, that an act of justice cannot with fairness be relinquished, because the objection is raised to it, that it has a political object. I see no reason whatever why a Bill which would have the effect of doing an act of justice to an individual, be he whom he may, should not be received by your Lordships, because it is liable to the objection that its framers have a political object. I should be much more inclined to say, that the opposition to such a Bill proceeded from a political purpose. If it be an act of justice that such a measure should pass

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(and the noble and learned Lord has given most convincing proofs that it is), then no such interpretation of the motives of its proposers as that alluded to should be allowed to stand in the way of its progress. I think, circumstances in the recent history of this country must have satisfied your Lordships of the inexpediency of debarring particular individuals from a right which they might fairly claim; and I am satisfied that the experience of that unjust exclusion will not encourage your Lordships to repeat such an attempt, but that the law will in future be administered to all on the same broad and general principles. To those principles your Lordships are now disposed to assent. It does not require the eloquence of the noble and learned Lord to show that it is most unjust to punish a man until he knows whether his sentence be well founded. It is at all events a fortunate consequence of the occurrences of last year, that there will be inserted in the Statute Book a redress which every individual, be he Englishman or Irishman, be his conduct, sentiments, and situation what they may, is equally entitled to. I hope this Bill will receive the unanimous assent of the House.
Lord Broughamentirely agreed in the observations of his noble Friend. It was well known that the measure before their Lordships had been put into his hands in the course of the last Session; but, being obliged to go abroad, he had referred it to his noble and learned Friend on the Woolsack, whose observation to him was, that it was a very awkward moment to bring forward such a Bill, and for the very obvious reasons that were then apparent. He entirely agreed with the general observation of his noble Friend (the Marquess of Lansdowne) that the particular circumstances which then existed offered no reason why justice should not be done to persons charged with political offences. But there was another reason against such a Bill being proceeded in then, which his noble Friend had overlooked, namely, that it was obviously inexpedient to legislate on a political case whilst that case was still pending before their Lordships; and his noble and learned Friend on the Woolsack would recollect that he had then observed that the Bill of the noble and learned Lord (Lord Campbell) was expressly framed to meet the particular case then pending. He (Lord Brougham) had observed to his noble and
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learned Friend that he thought he was mistaken, and that the Bill came from the opposite party to the traversers. He appealed to his noble and learned Friend on the Woolsack as to the facts which he stated.
The Lord Chancellor: I stated to my noble and learned Friend my belief that the Bill had proceeded from the traversers.
Lord Brougham: My noble and learned Friend expressly termed it an "O'Connell Bill," meaning to convey by that expression that it emanated from the friends of that Gentleman: and he (Lord Brougham) had asserted it to come from the prosecutors; had said, in fact, that it was what might be called a "Smith Bill," as coming from the prosecutor, the Attorney General for Ireland. He had subsequently found that such was not the case, and that his noble and learned Friend had assigned a correct origin to the Bill; but that was the objection then stated, and, as far as the circumstances went, it was a good objection. He (Lord Brougham) had a recollection of the general objections stated by his noble and learned Friend, but he did not think he had gone so much into the details as his noble and learned Friend near him had shown was done. But, notwithstanding the undeniable principles on which the Bill was founded, there were cases in which bail in error would be highly objectionable. It might afford an opportunity to parties to escape from the consequences of a misdemeanour, provided they were rich enough to be able to sacrifice the amount of their bail. Means ought, therefore, to be taken to prevent such a misapplication of the proposed law as this would be. As the measure was at present framed the Attorney General must give his fiat to prosecute the writ in error, and if he did not do so then bail would not be allowed. But many persons would, he doubted, object to lodge such a power in the hands of a functionary like the Attorney General. Such a power must be lodged somewhere. It might either be given to the public prosecutor, the Crown, or the Judge who tried the cause. There was an objection to give it to the Crown, and therefore the alternative rested between the public prosecutor and the Judge who tried the indictment. No such machinery as that to which he referred was to be found in the

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Equity Courts. He had not made up his mind on the subject, but he was of opinion that the Judges would be unwilling to exercise so invidious a power as that to which he referred. He merely said this by way of drawing attention to the subject. He should apply his mind to its consideration before the Bill passed through the Committee. In the meantime, he entirely concurred in it, notwithstanding he did not think any hardship had been inflicted on the traversers who had lately appeared before their Lordships, for he thought that they had only taken that course which would have been adopted towards any individuals whatsoever who had come before them under similar circumstances.
Lord Denmanheartily agreed in the propriety of the measure, and hoped it would pass into a law. At the same time, he must express his hope and expectation that its provisions would very rarely be called into operation. His own belief was, that writs of error in criminal cases ought to be of very rare occurrence; as indictments should be so framed as to afford no proper grounds for granting a writ of error. It had only become common since indictments had assumed such a length, and had been so widely and so loosely framed; and he must express his opinion that it was a real scandal and an oppression that writs of error should ever be necessary upon such grounds. In the case which had been referred to, the indictment was so vague—its accusations were so general—the counts were even clothed in phraseology so unlike the language of the law, that some of them were undoubtedly not to be sustained; and the result in their Lordships' House was inevitable—namely, the setting aside of the whole proceeding. And in regard to such offences as were included under the term "political," their Lordships were aware that the accumulation of charges often rendered it extremely difficult for the accused to understand what he had to meet. He certainly considered it as an objection to allowing bail in error in cases of misdemeanour, that offences which called for the infliction of prompt punishment upon men who had been found guilty, might remain unpunished till the wholesome effect of the sentence would be lost; or might, through the dexterous application of money, evade punishment altogether. Hence, he apprehended that the best way of putting a stop to the evils aimed at by this Bill, would be to revert in all cases to the ancient
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simplicity which had prevailed in framing indictments. Though the present Bill would, as he hoped, come rarely into operation, its principle was just, and might be usefully applied. He understood last Session that something more comprehensive was designed; and it hardly seemed fit to legislate on error in criminal cases without considering whether the Attorney General's power of withholding his fiat ought to continue. He did not, however, fear any abuse of that power; and approving the proposal generally, he offered his thanks to his noble and learned Friend who suggested it last year, and to his noble and learned Friend on the Woolsack, who now brought it forward with the advantages arising from his position. He had heard his noble and learned Friend with great satisfaction, when he spoke on this question on the general grounds of legislative reform. It was true that indefensible practices have existed, and have been tolerated, because they were overlooked till the discovery of an abuse brought them to light, or some accident forces public attention upon them, and a legislative remedy is found to be indispensable. He could enumerate many examples of this course of proceeding; and many where it would still be most desirable. One of pre-eminent importance he could not refrain from adverting to—the present practice of opening letters at the Post Office. A Bill had been introduced by a noble Friend of his (the Earl of Radnor) for placing it on a reasonable footing; their Lordships had hardly deigned to give it a moment's consideration; yet, encouraged by the precedent before the House, he did not despair of seeing it adopted by the Government itself, at no distant period.
The Lord Chancellorobserved that the noble and learned Lord (Lord Campbell) had been so conscious that the ground upon which he (the Lord Chancellor) had opposed the Bill last year was a weighty one, as to state to their Lordships in the course of his address, that he had not brought it forward with a view to any particular proceedings that were then going on.
Lord Broughamexpressed a hope that the next time his noble and learned Friend on the Woolsack brought forward a measure he would avoid the trap that had been so adroitly set for him by the noble and learned Lord (Lord Campbell) on the first day of the Session, in which he had undoubtedly been caught.
Lord Campbellsaid, there was so much

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sympathy shown by his two noble and learned Friends for each other, and one was always so ready to start up and defend the other, when any observation was passed upon either, that he could only compare them to the Siamese twins. But as to the objections that had been brought by his noble and learned Friend near him (Lord Brougham) with respect to the evasion of punishment for misdemeanours under the operation of the Bill, he must, in order to prevent any misapprehension getting abroad on that point, state that the provisions of the measure could not be abused in the way described, for the execution of a sentence under such a conviction could not be suspended until the fiat of the Attorney General had been previously obtained; for a Writ of Error could not be executed until that fiat was granted, and an indictment for an offence coming within the description of misdemeanour was much too simple to afford ground for a Writ of Error.
Bill read 2a.
House adjourned.