Lords Sitting of 7 July 1845

MINUTES.
BILLS. Public.—1a. Foreign Lotteries; Law of Defamation and Libel Act Amendment.
2a. Drainage by Tenants for Life; Brazil Slave Trade; Arrestment of Wages (Scotland); Dog Stealing; Administration of Criminal Justice; Timber Ships; Unions (Ireland).
3a. and passed:—Real Property Conveyance (No. 2).
Private.—1a. Aberdare Railway; Erewash Valley Railway; Bristol Parochial Rates; Saint Helen's Canal and Railway.
2a. Liverpool and Bury Railway (Bolton, Wigan, and Liverpool Railway and Bury Extension); Middlesbro' and Redcar Railway; West London Railway Extension and Lease; North Union and Ribble Navigation Branch Railway.
Reported.— Edinburgh and Northern Railway; Wear Valley Railway; Shepley Lane Head and Barnsley Road.
3a. and passed:—Trent Valley Railway; Lyme Regis Improvement, Market, and Water Works.
PETITIONS PRESENTED. From Samuel Gordon, Esq., Dublin, for the Insertion of certain Clauses in the Tenants' Compensation (Ireland) Bill.—By Marquess of Londonderry, from Landowners of Upper and Lower Castlereagh, against the Tenants' Compensation (Ireland) Bill.—By Marquess of Clanricarde, from Stockholders and others of Bathurst (New South Wales), complaining of Proclamation issued by the Governor of the Colony relating to Regulations touching Depasturing Licenses.—From Landowners and others of Midsomer Norton, against the Real Property Deeds Registration Bill.—From Mark Silverston, of Duke Street, Aldgate, complaining that Proceedings have been commenced against him for selling Bread in the City of London, without being free of the Bakers' Company, and praying for Inquiry and Relief.—From Provost and others of Musselburgh, against certain parts of the Infeftments (Scotland) Bill.—From Freeholders of County of Kerry, for Alteration of Law relating to Juries (Ireland).—From Eliza Price, complaining of conduct of Samuel Stone Brisco, Esquire, (a Magistrate,) and others, and praying for Inquiry and Relief.

DRAINAGE BY TENANT FOR LIFE BILL.
The Duke of Richmondmoved the Second Reading of the Bill to amend an Act of 3rd and 4th Victoria, and enable the owners of settled estates to defray the expenses of draining the same by way of mortgage. The Bill was now drawn as directed by the Committee, and related solely to draining; there were other questions, such as giving a power of leasing for nineteen or twenty years, and also a power of exchange, which was very desirable, particularly now railroads severed property, so that twenty acres might be left on one side of the rail belonging to one owner, and twenty acres belonging to another might be left on the other side: these subjects, however, might be the subject of legislative enactment hereafter. It had been thought desirable by the Committee to extend the Bill to Ireland as well as to England; and it simplified the proceedings by enacting that a Master in Chancery, on being satisfied of the outlay, should give a certificate which is to operate as a rent-charge, and as the application was to be made in the first instance to the Master, much expense would be spared.
The Marquess of Salisburydid not mean to oppose a Bill which was likely to afford employment to the poor; but he hoped his noble Friend would give

55
them a fair opportunity of discussing the details of the Bill, particularly with regard to the part which permitted persons to raise money upon settled estates for the purposes of building.
Lord Beaumontsaid, that question was much discussed in the Committee, and in his opinion buildings must be included, or the Bill would not be effective. He did not intend ornamental buildings, but such as sheds for cattle, which had always been considered permanent improvements, and which must be increased if there was increased produce. He never knew a Bill on which he felt less difficulty in giving a vote in its support. It improved the position as well of the tenant for life as of the remainder-man; it would benefit the occupier as well as the holder. It was an attempt also to simplify the legal proceedings, and render unnecessary those heavy law expenses for petitions, a specimen of which was given to the Committee, which extended to two closely printed pages of items.
The Earl of Devon, as a Member of the Committee, supported the Bill, which preserved the control of the Court of Chancery, and at the same time reduced the expense. He hoped that it might be made appendant to the Bill relating to tenants' rights in Ireland. It pointed out the objects which it was the desire of the Legislature to obtain, and was of the utmost importance to the general improvement of the agriculture, not only of this country but of Ireland.
The Earl of Wicklowapproved of the extension to Ireland, and hoped that powers would be given to the guardians of infants to effect these improvements.
Lord Campbellalso approved of the principle of the Bill, and rejoiced that it was extended to Ireland. For more than half a century they had had such a Bill for Scotland, and in all respects as the Bill now stood he highly approved of it.
The Duke of Richmondsaid there was a clause in the Bill which would, he believed, have the effect of enabling guardians to drain.
The Lord Chancellorhad not till now read the Bill; there were several details in it with respect to the Court of Chancery; he did not object to the second reading then; but he would communicate with his noble Friend the noble Duke any
56
suggestions which occurred to him with regard to that part of the Bill.
Bill read 2a.

STANDING ORDERS — RAILWAYS.
The Marquess of Clanricardemoved that there be inserted in every future Railway Bill, a Clause to enact—
"That the Directors appointed shall continue in Office until the First Ordinary Meeting to be held after the passing of the Act, and at such Meeting the Shareholders present, personally or by Proxy, may either continue in Office the Directors appointed by this Act, or any Member of them, or may elect a new Body of Directors, or Directors to supply the Places of those continued in Office; the Directors appointed by this Act being eligible as Members of such new Body."
On Question, agreed to, and ordered to be added to the Roll of Standing Orders.

COMMITTEES ON PRIVATE BILLS AND SELECT COMMITTEES.
The Marquess of Lansdownesaid he would take that opportunity, which was not altogether irregular, of stating some circumstances connected with railways deeply affecting the interests of all their Lordships and of every man in the country, and which must call for another addition to the Standing Orders, for the purpose of affording a sufficient protection to Members of Parliament. It might be known to their Lordships, and if it were not it would appear strange, that an hon. Gentleman, now a Member of the other House of Parliament, was placed at this moment in a situation in which any of their Lordships might be placed also. This hon. Gentleman, about seven years ago, was invited to become a subscriber and director in a Company for establishing steam navigation to India by the Cape of Good Hope. After looking at the nature of the undertaking, he advisedly declined to become a subscriber or director of the Company. Of course he then dismissed the Company from his mind, and neither directly nor indirectly had he done any act as a director. Notwithstanding this, after five years had elapsed, a demand was made, in consequence of his name being inserted as a director without his knowledge or consent in the Act of Parliament obtained by the Company. The demand made on him was for the amount of all the claims for which the Company had become liable, as the other persons whose names

57
had been mentioned had turned out mere men of straw. His name being found in the Act gave grounds for proceedings being commenced against him in a court of law; and although he could prove that he had refused to be a director of the Company, and although he had never acted as such, an opinion obtained from a high legal authority stated that, inasmuch as the Act of Parliament itself was a legal publication, he was legally represented as a director. Now he (the Marquess of Lansdowne) begged to ask their Lordships whether they were not all in the same situation? Were not all their names inserted in one form or another in all the local Acts that had passed through the Legislature? And were they not all liable to be made a subject of action? To show the extent of the impudence and the audacity of the parties engaged in getting up trading companies, he would state a fact which had come to his knowledge. A Gentleman, a Member of Parliament for one of the counties, was asked to become a director of one of these projected companies, and he refused. A short time afterwards he was told that he had attended at a meeting in the county with which he was connected, and had spoken in favour of the projected scheme. His attention being called to the Report of this meeting, he found not only that he was stated to have attended, which he did not, but he found also that many other persons were asserted to have been there, and to have made speeches, although they did not attend such meeting. The whole of the parties went to the bankers, advertised in a body, and gave notice to them not to pay any money that should be received by them on account of the said scheme after the meeting in question; and it turned out that a very large sum had been subscribed after that meeting, solely upon the belief, and in consequence of its having been publicly reported that the persons to whom he referred had attended it, and had sanctioned its objects. Now, in what a situation might not their Lordships be placed if such things as this were allowed? He could not pretend to point out what ought to be done; but he would merely say that they ought to protect themselves from being involved in such schemes. By what means he left it to their Lordships to consider. But what he did say was, that the names of the consenting individuals to any future schemes
58
ought to be required to be set forth by a Standing Order as having given such consent. He should take an early opportunity of presenting a Standing Order for the purpose of effecting what he had pointed out as necessary.
Lord Broughamwas sure that the public would be much obliged to his noble Friend for adverting to this class of cases. The difficulty would be how to afford a remedy in the particular instance. He would willingly have concurred in passing an Act in order to relieve a person in the situation described by the noble Marquess, but that in so doing there arose a difficulty which was to him insuperable; namely, that the House, having originally passed a Bill in a negligent and careless manner, could not, by any subsequent Act, reach the cheat who had beguiled them; but any such measure would only affect an industrious and honest person who might have lent his money on the strength of their Lordships' legislation. The man who sued the hon. Gentleman whose situation was described by the noble Marquess, might be, and probably was, as bonâ fide a sufferer as that honourable person himself was; and, consequently, what would relieve the one, would oppress the other. He thought, if the Houses of Legislature passed Acts so thoughtlessly, they ought each to pay their respective portions of the pecuniary losses which they inflicted thereby. This showed the caution that was necessary to be exercised by their Lordships in passing Railway Bills; and the immense consequences that might be involved by their not repressing rather than facilitating this gambling disease under which the country laboured. It was the greatest mistake to suppose that these undertakings were bonâ fide on the part of those who put them forward. All that those parties sought, was to give them an appearance of outward semblance of a bonâ fide railway project, in order that they might go and job in the railway market; and Parliament, from a very honest and conscientious feeling, wishing to give every facility possible, omitted to take any pains to inquire into the real merits of the scheme. Had they done so in the present case, they would have found that Mr. Berkeley had not given his sanction to this measure. Every day showed the ruinous consequences to which this gambling system inevitably tended. Men could not

59
do two opposite things at once. They could not employ their capital in gambling speculations, and at the same time employ it in the legitimate course of trade. Look at your Returns of the Revenue this quarter Within the last two or three months they would find a very great falling off in the amount of revenue derived from the Customs and Excise.
Lord Stanley: That is in consequence of the great reduction of duties. The quantities consumed are increased.
Lord Broughamwas not aware that the reductions to which the noble Lord alluded had taken place. He was very glad to find that the deficiency in the revenue had not arisen from a falling off of the consumption of customs and excise articles. His observations were, however, intended to apply to the frauds practised by speculators in railways, who, as one mode of warding off opposition to their schemes, would undertake to insert clauses in their Bills which they never did insert. The whole matter was an evil which demanded their Lordships' serious consideration.
The Marquess of Lansdowneexplained. He had omitted to state, which he now did distinctly, that the hon. Gentleman to whose case he alluded, had no knowledge of the Bill subsequently to the application made to him; and he did not know that it was passing through Parliament until it had received the Royal Assent.
Earl Fitzhardingesaid, he had been informed by his brother (Mr. Berkeley) that when this Committee was first conceived, a proposal was made to him to join in it. After consideration he declined, and from that time he had no interference with it; he never attended any meeting of its concoctors, and knew nothing of it until he was sued by a party, who was a shipbuilder, for an amount exceeding 35,000 l. To show the hardship of his brother's case, he was informed that the expenses already incurred amounted to 400 l., let the case turn out as it might.

BRAZIL SLAVE TRADE BILL.
The Earl of Aberdeensaid, that in moving the Second Reading of the Brazil Slave Trade Bill, he would endeavour to explain as briefly as possible, the reasons why Her Majesty's Government had thought it necessary to introduce that measure to their
60
Lordships. Their Lordships were aware that a Treaty was concluded between this country and Brazil, in the year 1826, for the abolition of the Slave Trade. By the First Article of that Treaty, the contracting parties stipulated that—
"At the expiration of three years, to be reckoned from the exchange of the ratifications of the present Treaty, it shall not be lawful for the subjects of the Emperor of Brazil to be concerned in the carrying on of the African Slave Trade, under any pretext or in any manner whatever; and the carrying on of such trade after that period by any person, subject of his Imperial Majesty, shall be deemed and treated as piracy."
By the Second and Third Articles of the Treaty, the contracting parties mutually agreed, with a view to provide for the regulation of the said trade, till the time of its final abolition—
"To adopt and renew, as effectually as if the same were inserted, the several Articles and provisions of the Treaties concluded between His Britannic Majesty and the King of Portugal on this subject, on the 22nd of January, 1815, and on the 28th of July, 1817, and the several explanatory Articles which had been added thereto."
The last Treaty with Portugal, in the year 1817, contained a provision from which it appeared that the contracting parties contemplated the possible termination of that Convention. By a separate Article, it was agreed that as soon as the total abolition of the Slave Trade on the part of the subjects of the Crown of Portugal should have taken place, the two parties would adapt themselves to the state of circumstances contemplated by the stipulations of the Convention concluded on the 28th July, 1817; but in default of any such regulation, then the conditions of the said Convention should continue in force for fifteen years from the day when the ratifications of the Treaty should take place. The ratifications were exchanged between Brazil and this country on the 13th March, 1827; consequently in three years after that period, the Slave Trade was finally abolished in the Empire of Brazil. Fifteen years from that period had now elapsed; and the Government of Brazil, on the 12th of March last, gave notice to Her Majesty's Minister at Brazil, that on the following day, the Treaty between this country and Brazil would expire, and that the Mixed Commission, and all the instructions connected with it, would be at an end. It might admit of some doubt how far the contingency contemplated by the separate Article had ar-

61
rived, to entitle the Brazilian Government to put an end to the Treaty. But in a correspondence between Her Majesty's late Government and the Government of Brazil, it appeared that there had been an anticipation of the probability of terminating the provisions within the time specified; and the present Government were, on the whole, disposed to acquiesce in the interpretation put upon the Convention by the Brazilian Government. This country was therefore reduced to the First Article of the Treaty, by which the contracting parties declared that slave trading by any subject of the Brazils should be deemed piracy. That declaration could not, of course, render the Slave Trade piracy by the law of nations; but as between Great Britain and Brazil it became illegal by virtue of that compact. If any State constituted an act illegal or criminal by its own municipal laws, other States were undoubtedly not accustomed to take notice of such act, nor would their tribunals enforce their municipal law; but an act made illegal by virtue of a mutual compact, gave a right to the State entering into such compact to consider the act illegal, and, in consequence, Her Majesty had, by the stipulation in question, acquired the right to order the seizure of all Brazilian subjects found on the high seas engaged in the Slave Trade, of punishing the parties so engaged, and of disposing of their vessels and the goods therein as bona piratorum. When the Act 7th and 8th George IV. was passed, carrying into execution this Convention, care was taken to restrict the power of the Courts of Admiralty and other courts, except the Courts of Mixed Commission appointed for the purpose of carrying the Treaty into effect. Those Mixed Courts had ceased, in consequence of the decision of the Brazilian Government, and it had now become necessary to renew the provisions of the Act of George IV., giving power of exercising jurisdiction in cases of capture. It had been, in effect, necessary to exclude the Courts of Admiralty, because otherwise they might have been called upon, and indeed it would have been necessary for them to exercise jurisdiction under the Convention; but by repealing that part of the Act which prohibited the Courts of Admiralty from taking cognizance of such matters, they would be enabled to exercise this jurisdiction as before. It appeared that the Brazilian Government itself had contemplated this act on the part of the British Government.
62
Shortly after the conclusion of the Treaty, and when he (Lord Aberdeen) held the same office he had now the honour to fill, the Brazilian Minister made application to him that vessels should be permitted to come from the coast of Africa, having sailed before the 13th of March, 1830, without being liable to be detained and treated as pirates, notwithstanding they were met with on the high seas after the 13th of March. In that request Her Majesty's Government acquiesced, and vessels which had sailed from the African coast before that date were not detained. Again, the Brazilian Minister, after three years had elapsed from the signature of the Treaty, and the trade had been finally abolished, maintained that the Courts of Mixed Commission ought to cease, as they only provided for acts done in that trade during the time of its continuance. The Brazilian Government accordingly remonstrated against these courts, and desired that they should cease on the 13th of March, 1830. This application was made to him (the Earl of Aberdeen), but was answered by the noble Lord who succeeded him in office; and he demurred to the abolition of the Courts of Mixed Commission, giving as a reason, that some considerable time must elapse before tribunals could be constituted for exercising jurisdiction in cases of piracy; and therefore he recommended that the Courts of Mixed Commission should continue. The Brazilian Government still seriously remonstrated against the continuance of these courts, declaring that they were of only a temporary character, instituted with a view of judging of the legality of the detention of vessels engaged in the Slave Trade; but that then (in 1830), as all traffic in slaves had ceased, the tribunals for taking cognizance of acts done in that trade, could not possibly be required for an object which was no longer in existence. The Brazilian Government, therefore, urged that these courts should cease. The British Government of that day, however, remarked that these courts might still have duties to perform, notwithstanding that the Slave Trade had become illegal, and had been declared piracy, and maintained the point that the courts should be allowed to continue. It appeared, then, that the abolition of the Mixed Commission Courts was looked upon as possible in a period of fifteen years, according to the terms specified in the Treaty with Portugal. The object of the present Bill was to remove from the Courts of

63
Admiralty the restrictions thrown upon them by the 7th and 8th George IV. passed for carrying into execution the Treaty with Brazil. It was only recently that he (the Earl of Aberdeen) had himself called the attention of the Brazilian Government to the necessity under which Her Majesty's Government might find themselves of appealing to the First Article of the Treaty as he had described it. Their Lordships were aware that the Brazilian Government had always declined to fulfil their general engagements to co-operate with the British Government for the effectual abolition of the Slave Trade. In a note which he addressed to that Government in July, 1843, after strongly remonstrating with them, he declared that the time had arrived when it became Her Majesty's Government distinctly to declare that if the abolition which had been contracted for by the Convention should fail for want of that co-operation so continually asked for by the British at the hands of the Brazilian Government, and if the latter still declined to enter into arrangements to give effect to that Convention, it would remain for Her Majesty alone, and by Her own means, to carry into full effect the abolition imposed upon Her by the First Article of the Treaty. It had, therefore, in consequence of the Courts of Mixed Commission being put an end to, been found necessary to repeal that part of the Act which prohibited the Courts of Admiralty from taking cognizance of these cases. He did not know that it was necessary for him to allude to the course pursued since the conclusion of the Treaty by the Brazilian Government generally. With rare and short exceptions the Treaty had been by them systematically violated from the period of its conclusion to the present time. Cargoes of slaves had been landed in open day in the streets of the capita], and bought and sold like cattle, without any obstacle whatsoever being imposed upon the traffic. Our officers had been waylaid, maltreated, and even assassinated while in the execution of their duty; and justice, in such cases, if not actually denied, had never been fairly granted. No doubt much had happened in the course of the last ten or twelve years, which would have justified, and almost called for, an expression of national resentment; but Her Majesty's Government had no wish save to provide for the effectual execution of the Treaty as stipulated for by the First Article; and with that view he had brought forward
64
the present Bill, which had been approved of by the highest authorities in such matters, and he now moved their Lordships to give it a second reading.
Bill read 2a.

ADMINISTRATION OF CRIMINAL JUSTICE BILL.
Lord Broughammoved the Second Reading of the Administration of Criminal Justice Bill. His noble and Learned Friend on the Woolsack, and all their Lordships, were aware of the great inconvenience which arose in the trial of prisoners in different counties, in consequence of the provision of the law which required that all prisoners should be tried in the same part of the country in which the offences they were charged with had been committed. Now, it had occurred to learned persons who had considered the subject, that if certain towns were fixed upon as assize towns, to be declared by the Queen in Council, and the prisoners in each of the counties within a certain ambit were taken to be tried in those towns, the same Judge could deliver them out of gaol. The only objection he had heard urged against the proposal was, that it would be hard for prisoners to be obliged to bring their witnesses from a distance. But the treasurer of the county might be required, on receiving the certificate of the Judge, to pay the expense of conveying the witnesses of prisoners. If this measure was not adopted, more Judges must be appointed, as the present number could not deliver the gaols, and no mortal man could go four circuits in the year. Could anything be more ridiculously absurd, than that those who had committed offences within the ambit of the Central Criminal Court should not be kept in prison before trial longer than eight or ten days, whilst those who had committed the same offences, or much lighter, in Hertfordshire, or Berks, or Surrey, should be kept eight months in prison?—and they might be innocent all the while, or, if guilty, their offence might be punishable with only six months' imprisonment. There was only one of two courses to be adopted—either to pass the Bill with such alterations as might be suggested, or to appoint a greater number of Judges, to which there was always this objection—it would not be easy to devise means of employing the additional Judges during the rest of the year, after the circuits were over. He considered that, by

65
two additional Judges, an improvement might be made in the mode of doing chamber business, which was now done in a way highly unsatisfactory to the suitor. The two Judges might sit permanently in a court, with the check and advice of a Bar. A single Judge now in chambers hardly could be said to have full possession of his faculties, during the hurry and heat of a mob of attorneys' clerks. He wished that chamber practice were brought more into public, and if the number of Judges were increased, one objection, as to the want of employment for them in some parts of the year, might thereby be obviated.
The Duke of Richmondsaid, that one objection to the Bill was the increase it would cause to the county rates. Why, he would ask, were the charges required for the purposes of the Bill to be imposed on the county rates, and not to be paid out of the Consolidated Fund? He liked his noble and learned Friend's latter proposition much better.
Lord Campbellwas very far from being adverse to the principle of his noble and learned Friend's Bill. He was ready to agree that it might be found expedient to consolidate counties, and work on the principle of the Central Criminal Court Bill, which had been found most beneficial in its operation. He would, however, advise his noble and learned Friend to postpone the Bill for the present Session, because he doubted whether, as it now stood, it would work at all, and whether is could be framed during the present Session so as to be carried into effect. There were many parts of the present Bill—the apportionment of the expenses, the places whence the jury were to be summoned, and where the prisoner was to be tried, how the judgment was to be carried into execution—which would require the most careful consideration. He should say that the consolidation should be carried into effect rather by Act of Parliamnet than by the Sovereign in Council. If a power of removing the prisoner from one county to another for trial were to be granted, it was not difficult to see that it might prove one of a very dangerous nature in many cases, as, for instance, in Ireland, if a prisoner were removed from Cork to Monaghan; it would be well, therefore, that the boundaries of the districts to be created should be defined by Act of Parliament. He would suggest that another
66
Commission should be issued by the Crown, to consider the whole subject, and, as part of it, the distribution of England and Ireland into circuits, and the division of the year between term and vacation. What he (Lord Campbell) anxiously desired was, that there should be a joint consideration of what should be done in England, and what should be done in Ireland. His noble and learned Friend on the Woolsack would find no difficulty in selecting a number of Irish Judges and barristers to join with English Judges and barristers for this purpose. He had on a former occasion ventured to suggest to their Lordships, that most important measure which, in his humble opinion, would do more to consolidate the Union than anything that had been done since the Act of Parliament passed—that was, as his noble Friend on the cross bench (the Duke of Richmond) remarked, in a loud whisper (he hoped it was heard all over the House, for it would not increase the county rates)—that there should be an interchange of Judges between England and Ireland. The law was the same in both countries; there was not the smallest doubt that the Irish Judges were as learned and as competent in all respects as the English to administer the law, and the people of England would be perfectly satisfied with their decisions. The English Judges, again, going into Ireland, and carrying the authority that belonged to them, he believed that their decisions would be received without suspicion, and with the most implicit reverence. A great deal had been said about additional Judges. There were two spare Judges in Ireland, who might be brought over, and sent a circuit. In Ireland there were now six circuits, several of them so short that they might be got over in three weeks. The Irish circuits, therefore, might be consolidated, and reduced to five, so that ten Judges would be quite sufficient for the administration of justice in that country, and two spare Judges would be left, who might have an English circuit assigned to them. A joint Commission would examine this point among others, and see what could be effected by the whole of the judicial staff both in England and Ireland. He (Lord Campbell) had it from undoubted authority, that that most enlightened statesman and devoted friend of Ireland, the Marquess Wellesley, had a long-deliberated plan for the purpose of amalgamating the law, and

67
having Irishmen appointed to judicial situations in England, and Englishmen to judicial situations in Ireland. He knew from undoubted authority that that plan had occupied much of his thoughts, and that he was of opinion that it would be practicable and beneficial. If a Joint Commission of English and Irish lawyers, and intelligent country gentlemen, were appointed, he was sure the greatest benefit would be derived from their labours. The Bill was at present in an imperfect and crude state; to carry it into effect would be very difficult; the better plan would be, not to press it in the meantime, and for Government to issue such a Commission as he had suggested. With respect to the Commission lately issued to determine the circuits, it turned out that their powers were much more limited than was desirable with a view to their utility. He understood that they had consulted the right hon. Gentleman the Secretary for the Home Department, though it might have been supposed that they would act on their own view of their powers; and Sir James Graham then intimated to them that they had no power to do more than they had done. They laid all the blame at his door; but, however that was, it was agreed on all hands that the Commission had been a miscarriage. The Report was universally condemned. It could not be acted upon, and the right course would be to issue another Commission, with extensive powers, applying to Ireland as well as England; from which he thought the most beneficial consequences might be expected.
The Lord Chancellorsaid, with regard to the suggestion of an interchange of Judges between England and Ireland, with which they had been favoured by his noble and learned Friend, perhaps he meant that it should also extend to an exchange of Chancellors, the judicial force of one country being substituted for the other, somewhat in the manner an exchange of militia was effected. It was a matter which would require a great deal of inquiry, examination, and reflection, before they acceded to that part of his noble and learned Friend's proposition. He was ready to admit that the Irish Judges were individuals who possessed a great knowledge of law, and who were in no respect inferior to those of this country; yet their acquaintance with the habits and manners of the persons to whom they
68
were to administer justice was a very important consideration. He agreed in that part of his noble and learned Friend's observations which referred to the Report of the Commissioners. He was bound to say, that he thought it an unsatisfactory document. He was not exactly acquainted with the circumstances of their reference to the right hon. Gentleman to whom his noble and learned Friend had alluded. Upon some points he (the Lord Chancellor) would have thought that they might more naturally have referred to himself; but having limited their inquiries within the narrow definition given to their powers, the result undoubtedly was, that their Report was entirely unsatisfactory. He might state, therefore, that he had felt it his duty to advise Her Majesty to issue a new Commission, with fresh and extensive powers, for the purpose of reporting on the ten questions which had been submitted for the opinion of those learned Commissioners, and also on others of very great magnitude connected with them, including the subjects brought under their Lordships' notice by this very Bill. With respect to the present measure, he did not see how it would satisfactorily meet the object which his noble and learned Friend had in view. Instead of going to four or five counties in succession to hold the assizes, the Judges were to assemble in one particular county, and the prisoners were to be brought from the surrounding counties to that central point. He did not know that the time now occupied by the Judges in travelling was very important; but the only time saved by the new arrangement would be that occupied in going from the one county to the other. He had always thought it better that the Judges should go to different districts in succession, than that the jurors, witnesses, prisoners, and all other persons obliged to attend the courts, should be brought from several counties round to one central point. The Bill did not provide as to the mode of summoning the juries, nor from what quarters they were to come, nor how they were to manage with respect to grand juries. Another point, of which they should not omit the consideration, was, how the prisoners on trial were to procure the attendance of their witnesses. It was a matter of very great importance to a man, generally a very poor man, on trial, perhaps, for his life. It would be

69
no satisfaction to them were the Bill to provide that they should have their expenses reimbursed, for they had not the means of advancing the money in the first instance; and the consequence would be, that these persons would find themselves at a distance from those acquainted with the circumstances of the case, helpless, and without defence or resources. He would suggest to his noble and learned Friend, that the best course would be to let the Bill stand over for further consideration, in order to see whether the Government could meet the difficulties to which his noble and learned Friend had adverted.
Lord Denmanfeared their Lordships would have a long time to wait if they wailed till the Commission made a satisfactory Report on all the subjects to which their attention would be called, and more particularly if they included the proposal of any interchange of circuits between Ireland and England. With respect to that proposal of his noble and learned Friend, if the Government should think it right to call upon the Irish Judges to assist those of England in the performance of their duties, he was sure that no persons would receive a heartier welcome. But he thought that this Bill gave an opportunity of doing that with effect; and if they waited to see the Report of the Commission, no man could tell how few of their Lordships might live to see it. He entirely approved of his noble and learned Friend's measure: there was only one respect in which he would wish to see it amended, by following the example set in a Bill also introduced by his noble and learned Friend—that most useful and expedient measure, the Central Criminal Court Bill—and by giving power to form convenient districts for the trial of offences. That Bill offered a complete model by which this might be done in any part of England, and the machinery might fitly be borrowed, since it was capable of being brought into practice at the earliest possible period. He thought his noble and learned Friend, in preparing his Bill, made out a case which must find its way to every man's conviction. The time of imprisonment before trial, was already too long; it ought not to be extended in any case. In his opinion, even four months might be too long; and that not merely with a view to the feelings of the prisoners. Nothing could be more inconvenient
70
than to bring up a man for trial, and have him acquitted by the jury, from a misplaced feeling, no doubt, but still a very natural one, in consequence of his having been so long in prison, or have him sentenced to a shorter term of imprisonment than he would otherwise have received. His opinion was, that there ought to be very frequent deliveries of jails, but that there ought not to be a third circuit. In his opinion a third winter circuit, established as a regular part of the machinery of justice in the country, would be a most enormous evil. He quite agreed that it was much more reasonable that Judges should travel, than jurors, witnesses and others connected with the administration of justice. But deliveries of jails, beyond those now provided by the regular course of procedure, ought, in his view, to be occasional, and regulated by a regard to the pressure of the particular circumstances. Suppose there was an absolute necessity, from the state of the country, for sending a Commission to deliver the jails in the county of Leicester, there might be persons from Derby, Nottingham, Lincolnshire even, who were to be tried at the same time. Would it not be an immense convenience for all parties that a Central Criminal Court should dispose of that business? This travelling of Judges was not worth thinking of; but if the Commission had to be opened at several places, a great deal of time was occupied at each, and the witnesses generally came very much farther than they would have to do under the system he recommended. The last winter circuit, was, he believed, appointed with very little consideration by his noble and learned Friend on the Woolsack, and after very little consultation with the Judges. The effect was, to put a stop to some of the most important business of the country going on in Westminster Hall; the Courts of Error were obliged to suspend their business. The Court of Queen's Bench had acted on a Bill passed in the year 1838, which enabled them to dispose of their arrears, at that time amounting to considerably upwards of 400 cases. They had gone on for eight years, the Judges giving up their leisure for the purpose of getting rid of the arrears, and at the end of last year they had brought the list of arrears down to very little more than 100 cases. The whole of that was sacrificed, and the arrears had risen again. This, it

71
could not be denied, was a most serious evil; a great improvement was prevented, and the whole system was deranged by a winter circuit interfering, and taking three of the Judges. If the power of creating new districts were to be given, the Crown might exercise it according to its discretion, and the necessities of the case, in such a way as not to interfere with any important business proceedings; and so far from persons being put to increased expense, he thought a considerable saving would be effected. If their Lordships should be of opinion that the Bill was not at present in such a state that it could be brought satisfactorily into operation, if passed before the expiring of the present Session, then they must hope that the improved state of the country, and, he was very happy to add, the great diminution of crime in every part, might make it less necessary that any particular measure should be adopted. But he (Lord Denman) thought that some further measure ought to be taken, and thus the pressure—not on the Judges, who did not care where they were, provided they were serving the public, since, as they said, they must be somewhere — but on the public interested in the administration of justice, might be prevented. A single instance would show, better than anything, the waste of time and money under the present system. If a man, convicted of stealing a faggot worth one penny, in a parish where he was perfectly well known, was taken before a magistrate, and pleaded guilty, expressing his sorrow for what he had done, the result was, that he might be sent eighty or 100 miles, if in the county of York, to the assize town, to take his trial, the whole county being summoned to hear the statement he had made before the magistrate; while, perhaps, in the absolute mockery of justice, he might be acquitted after all, when he had been detained in prison for six months, and the whole county put to enormous expense. Even the quarter sessions might impose the same penalty on him. There ought to be a simpler process for cases of this description, and many minor matters might be suggested, by which a great deal of trouble and expense would be saved.
Lord Broughamsaid, what his noble and learned Friend on the Woolsack had stated, determined him not to press the Bill beyond a second reading until the issue of the Commission, by which, no
72
doubt, much good would be effected. His noble and learned Friend's (Lord Denman's) opinion seemed to be to have consolidations of the counties, and that, besides the ordinary circuits, occasional Commissions should be sent, according to the exigencies of the case. He (Lord Brougham) was disposed rather in favour of permanent circuits. With respect to the Commission—he did not mean the last one, for that was deceased, and he would say nothing against the dead, it had gone the way of the Railway Board—he hoped it would be altogether a new one, for he did not like to see learned Judges employed on a Commission, and thought it much better that they should be employed in the administration of the law. As to the question of the circuits, he was decidedly against employing practising barristers who went the circuits; for he found by late Reports that all the practising barristers had voted one way, naturally enough voting according to their predilections and conscientious opinions; but he would take persons who would not have to decide upon matters affecting their own business. There could be no difficulty whatever in appointing other professional men on the Commission, not connected with the administration of justice in those districts with respect to which the questions arose. He concurred with all that had been said in praise of the manner in which the Irish Judges discharged their duties; and he must add, that what came under his own cognizance of their proceedings, confirmed his opinion as to their eminent ability. The only objection to their coming in aid of the English Judges, and the latter being occasionally transferred to Ireland, was the great apprehension with which any one must undertake the trial of a cause, when he was unacquainted with the habits, manners, and character of the people amongst whom it arose. If the Irish Judges did come, he agreed with his noble Friend (Lord Denman) that these virtuous, able men, would meet with a hearty welcome. As to the disposal of the arrear, he must say that he was not satisfied with the account given by his noble Friend (Lord Denman), of 700 cases being cleared off in seven years.
Lord Denman: But all the other business was performed at, the same time.
Lord Brougham: Well, this was very creditable to the Judges of the Queen's Bench: but he though the real rem-

73
edy for the evil of an excessive arrear would be the addition of two Judges. He hoped the Committee about to be appointed would turn its attention to this point, as well as to another which was really as absurd as the old notion of the choice of the jury from the vicinage—he meant depriving the plaintiff of the choice of his court. Why should not the plaintiff and defendant be exactly on the same footing in this respect, particularly as the nominal plaintiff was very often the real defendant, as in an action by the person in possession for an easement?
Bill read 2a.

ADMINISTRATION OF CRIMINAL JUSTICE BILL—LORD DENMAN.
Lord Denmanmoved the committal of this Bill.
The Duke of Richmondsaid, he agreed with the principle of the Bill; but wished to suggest two Amendments—first, that persons convicted of bestial offences should be whipped as often as the Judge should direct; and also that no imprisonment should last longer than two years. As to the first, he thought that such a punishment might well be inflicted on the men who were generally found to commit such offences, and who were abandoned profligates, lost to all sense of shame. As to the second suggestion, he thought no man ought to be imprisoned for a longer period than two years.
Lord Denmanpromised to consider these suggestions, with the view of inserting them in the Bill on the bringing up of the Report.
Bill committed.
House adjourned.