Lords Sitting of 13 February 1852

MINUTES.
Sat first.—Viscount Hutchinson, after the Death of his Father.
PUBLIC BILLS.—1a Patent Law Amendment.
2a County Courts Further Extension.

SALE OF ARMS AND AMMUNITION TO THE KAFIRS.
The EARL of MALMESBURYmoved, pursuant to notice, for a Return of the Customs accounts of Gunpowder and Arms imported since 1847 into the colony of the Cape; and for an Address for a Return of all Ordinances published at the Cape as to the sale of the same previous to November 17,1851. The noble Earl then said: When I addressed your Lordships upon the subject the other night, I confined myself to the only fact which had then come to my knowledge. In reading the blue book, however, laid upon the table by the noble Earl the Secretary for the Colonies, I find that since the war broke out at the Cape, certain British merchants have not been ashamed to export from this country and others to the Cape, and have not been ashamed even of selling to our enemies, the Kafirs, arms and gunpowder, to the prejudice of our best interests both at home and the colony itself. The noble Earl has reprobated this practice; and it having come to the knowledge of the Governor in November, he published an Ordinance to prevent, as far as he could, further dealing and smuggling in arms and ammunition. My Lords, I am not astonished at the indignation the noble Earl expressed in his letter at such a practice;

477
and I give the noble Earl credit for not having had what I should have deemed the false delicacy, of not bringing forward the names of those men who have been concerned in this detestable traffic. They have carried out, indeed, the principle of "free trade," though to an extent which I am sure none of your Lordships can possibly defend. They acted quite up to the favourite axiom of free-traders, that "capital owns no allegiance." But, my Lords, I think I should not be doing my duty if I confined myself only to that part of the subject; for I have since heard that the trade in gunpowder and arms has been carried on with the Kafirs in the Cape colony for years; and I cannot but think that the enormous quantity of arms and gunpowder I can show your Lordships has been introduced into that colony for several years, has been one of the main causes, if not the main cause, of the war being protracted to such length, and of the comparative failure of Her Majesty's troops in that period. It appears that for the first time in November last, it came under the observation of the Governor that this traffic was extensively carried on, and he then, on November 17th, issued an ordinance—severe, but not too severe—for the purpose of putting a stop to it; and he then for the first time informed the noble Earl the Secretary for the Colonies that not only had the trade been carried on in the colony, but through Port Natal, and along the eastern side of the colony, and that he believed it was also carried on viâ Delagoa, a station belonging to the Portuguese. The letter from the Governor to the noble Earl appears to have crossed one from the noble Earl—a confidential letter, which had been written about the same time—for on the 14th January we find a despatch in which the noble Earl says—
"In my confidential despatch of the 14th November I informed you that I had learned from the Customs department that largo shipments of gunpowder had been made from this country to the Cape of Good Hope, and I instructed you to adopt the most effectual means in your power to prevent this powder from finding its way into the hands of the Kafirs. It is with a degree of surprise, which I am altogether at a loss to describe, that I have now learned from Mr. Commissary-General Miller, who arrived in this country by the last steamer, that for some months previously to his departure from the Cape it had been matter of general notoriety and common conversation in the colony, that there had been shipped coastwise from Cape Town large quantities of gunpowder, which could be intended for no other purpose than that of carrying on a trade—if not directly, with the Kafirs, who are now in arms against Her Ma-
478
jesty's forces—at all events with persons who are in immediate communication with our enemies, and supply them with this most essential article for carrying on the war. Mr. Miller has mentioned to me, as one instance of the open manner in which this trade has been carried on, that to his own knowledge, Messrs. Walton and Bushell, in October or November last, shipped for the west coast of the colony 100 barrels of powder, taken from the store in the custody of the Ordnance officers."
I thank the noble Earl for giving the names of the guilty parties in this transaction, and they will now meet the infamy they deserve. The despatch proceeds:—
"This powder would, as he informs me, be landed either at St. Helen's Bay or at the mouth of the Orange River, from either of which points it could with the utmost facility he conveyed to the hostile Kafirs. Were it not impossible to doubt information resting upon such high authority as that of Mr. Miller, to whose merits you have frequently borne the strongest testimony, I should have been unable to believe that an extensive trade in gunpowder, for the supply of those who are engaged in deadly hostility with Her Majesty's forces and with the colony, could have been allowed for a long time after the breaking out of the war to be thus openly carried on from Cape Town, without any complaint being made to me on the subject. I have always supposed that almost the very first object which in every war must engage the attention of the person charged with conducting it, is that of cutting off, if possible, the enemy's supply of ammunition; and in the case of savages like the Kafirs, who are supposed to be unable to manufacture gunpowder, the importance of preventing them from obtaining it by traders were particularly obvious. I am the less able to understand why a trade in gunpowder was allowed to be carried on, because I am informed that from the nature of the coast there would have been no difficulty in preventing it; and even supposing that the existing law conferred upon you no legal power of interrupting the trade, and that it had been impossible to have supplied the deficiency, you would have been fully justified, or rather, you would only have done what was your obvious duty, had you exercised a power beyond the law for the purpose of effectually preventing gunpowder from being conveyed by any channel it was in your power to close to those by whom it has been used for the slaughter of Her Majesty's faithful subjects and troops. I trust that long before this despatch can reach you, all that is requisite will have been done on this important subject; but I must request you to explain why it was so long neglected, and why no information as to the trade that was going on was sent to me either by yourself or Mr. Montagu."
The noble Earl here expresses his astonishment that he should have been kept in ignorance of all this—that none of the servants of the Crown in the colony should have informed him of it. Well might the noble Earl, indeed, have been displeased with them if he had received no information on the subject. But is it not

479
astonishing that in the eleven months during which the war had then continued, the noble Earl should have been uninformed of a matter on which its duration so essentially depended? Your Lordships, however, will be yet more surprised when I say that the noble Earl was one of the few public men who did not know that this traffic was going on. Your Lordships, I say, will be still more astonished when I tell you that as far back as June a Committee of the House of Commons sat on this very question of the Kafir war, and that every witness who was examined before this Committee bore testimony to the long-continued exercise of this disgraceful traffic, so dangerous to the safety of the colony—and that upon that Committee sat the colleague of the noble Earl, Mr. Labouchere, President of the Board of Trade; Mr. Fox Maule, now a Cabinet Minister, and then Secretary at War; and the noble Earl's alter ego, Mr. Hawes, Under Secretary for the Colonies. Is it more marvellous that Sir H. Smith and Mr. Montague should have omitted to inform the noble Earl of all this (one being at the frontier of Kafraria, and the other at Cape Town), than that the noble Earl should not have heard of it from his own colleagues, from his own Under Secretary, from the evidence before a Committee of the House of Commons? Although, however, the noble Earl may say that he personally did not know this traffic was going on, still his responsible officers knew, and their neglect must be visited upon him. One of the first witnesses examined before the Committee was asked questions upon this subject, Major Bissett, who had been all his life in the colony, and for fifteen years an officer in the service:—
"In what respect are the Kafirs more formidable now than they used to be?—You may say in numbers, but particularly in bravery and their possession of fire-arms. You say the Kafirs are now better supplied with arms and ammunition, and are much more formidable than they were in preceding wars?—Yes; very much so. Are you aware how those arms and ammunition have been supplied to them?—No. Are the traders forbidden to carry arms and powder for sale?—Yes. Are they supplied by the traders?—No; except in the case of smuggling. But gunpowder must be introduced in considerable quantities?—Yes, it is so; there is no end of it. Is there any possibility of the Kafirs manufacturing powder if we could stop its exportation to them?—None. Then we should put a stop to further war if we could put a stop to the introduction of powder?—Yes. Could we stop the introduction of powder into that country?—Not unless you extended the operation to Natal.
480
Would not that be too great an extent of country to undertake operations over?—There would always be smuggling; there are so many little bays and means of landing anything on the coast of Kafirland. You spoke of many of the Kafirs having fire-arms: have you any idea of the proportion as far as you can judge from what you saw of them?—Probably one-fourth or one-fifth of the whole may possess fire-arms. Do you think if the war continues they will be able to keep up the supply of powder which is necessary?—No; I do not think they have any means of obtaining powder except what they capture, or the rebels take to them.—Are the arms which they have of English manufacture?—All of them, I think. English?—Yes, I think so."
M. de Stockenstroom gives similar evidence:—
"Are you aware whether the Kafirs are better armed now than they were?—Yes. How did they obtain those arms?—From the Colony. The Custom House returns will show what import of ammunition and fire-arms there is. Is it forbidden?—The importation into the colony is legal; it is unlawful to send them into Kafirland. You think that the trade in arms and ammunition comes from our own colony?—The greatest part of it. Some may come from Natal, and some from the petty ports on the coast. The import of fire-arms and ammunition in the Cape Colony is fearful."
So Lieut. Colonel Smith bore the same testimony:—
"You say the Kafirs are becoming more and more formidable by reason of being better armed and disciplined?—Yos. Have they facilities for obtaining arms and ammunition?—Yes, very great. They are imported into the colony by merchants, and the traders continue to smuggle them along the frontier. Would there be any great difficulty in preventing that trade?—Possibly not; but more stringent regulations should be adopted. Do you think it would be expedient to check it?—I think very expedient. From Algoa Bay to Port Natal there is scarcely any creek or place where it is easy for a vessel to have communication with the shore?—There are places where vessels could have communication, but not many, and with considerable difficulty. That being the case, would there be likely to be much smuggling going on: could a vessel go and smuggle powder and arms without having any previous communication with the shore, and knowing to whom they were to sell?—I do not think that the arms that find their way into the colony are smuggled that way: they are imported by the merchants to a large extent."
And, in short, all the witnesses confirmed this evidence. Now, my Lords, one might imagine that if the noble Earl had been aware of this state of things having existed before the war, he would have attempted to put an end to it before the war broke forth—upon the plainest principles of self-preservation. It is proved, then, that his colleagues and the subordinates even of his own department, have been

481
remiss in their duties in not informing him of facts which they themselves were not only cognisant of, but had themselves elicited upon this Committee. My Lords, I have thus, therefore, laid the grievance before you, and I now ask the noble Earl what remedy he proposes to apply? On a former occasion I understood the noble Karl to say that a steamer had been sent to blockade the coast, and prevent, these supplies from being landed. [Earl GREY was understood to dissent.] If the noble Earl has not done so, I do not think it of much importance, for I think the sending of a single steamer would have been a very insufficient measure. The coast from Delagoa Bay to Algoa Bay is upwards of 600 miles in extent, and although there is a difference of opinion among the witnesses as to the number of places on which powder could be landed on that sea-board, it is impossible to believe that on a coast of such extent, there must not be several places fit for the purpose; so that a solitary steamer could not be sufficient to guard the entire coast. Indeed, the noble Earl himself, in his letter of January, states that there are two places—St. Helen's Bay, or the mouth of the Orange River—at either of which points the powder could be landed, and with the utmost facility be conveyed to the hostile Kafirs; and to protect these two places alone, of course two steamers would be required. It appears, however, from the returns, that there are but three steamers on the Cape station, of which the largest is engaged in taking out the new Governor; and it is proved by the very servants of the Government that the present system is insufficient to check the evil. I think, then, my Lords, under such circumstances, that I am not departing from my duty in suggesting to the noble Earl that we should, now when the slave trade has been in a great degree suppressed, send to the southern coast some of the steamers now uselessly stationed on the western, and protect our interests in that quarter from the danger to which they are at present exposed. The question which I now propose to ask the noble Earl is this—what means, naval or military, has he taken to prevent the increased exportation of gunpowder and arms from this country to the colony of the Cape of Good Hope, and the increased exportation of them from the frontiers of that colony to the nations beyond them, and what hopes he entertains that the reduction of the exporta-
482
tion will bear sensibly on the fate of the war?
EARL GREYsaid, if the noble Earl had had a little more acquaintance with the affairs of the Cape, he would have quite understood the apparent contradiction between his (Earl Grey's) despatch and the fact that the existence of the trade in gunpowder at the Cape was mentioned by various witnesses before, the Committee of last year. That a trade in arms and gunpowder had been carried on between the colony and the native tribes, in ordinary limes of peace, to a very great extent, and that in spite of a very stringent law a large amount of the gunpowder introduced into the Cape was contraband, had been notorious to every one for many years. It was not the fault of the law; because there existed a law of a very stringent character, requiring all gunpowder going into that country to pass through the hands of the Ordnance officers and other Government functionaries, and that the full sanction of the public authorities for its importation should he obtained. No gunpowder could be landed at the Cape without notice given to the colonial authorities; none could be removed without certain formalities, which interposed great difficulties in the way of its failing into the hands of other than proper persons. But it had for many years been notorious that, in spite of that law, this trade was very actively carried on; and he found that, in 1842, the question was submitted to the Executive Council of the Cape, whether more stringent measures ought not to be taken for the purpose of stopping the trade in powder for the supply of the natives to the north of the Orange Liver. The report made by the Committee of the Executive Council was to the following effect: "That no further measures were necessary with respect to the trade in gunpowder, because the restrictions already imposed appeared perfectly sufficient, if put in force, to prevent such illicit traffic; and the entire prohibition of the sale of gunpowder within the country would be injurious to the interests of the inhabitants, particularly on the frontier, who required it to defend themselves and their property from the attacks of marauding natives. The difficulties to be encountered in the attempt to put a stop to the illicit traffic were to be traced, not to the want of a law for the purpose, but to the physical difficulties of the country, and the scattered nature of the population on the frontier, and to the want of a sufficient body of troops or a

483
well-organised police force along the northern boundary, comprehending an extent of country some hundred miles in length, and passable at so many different points." This report was sent home with the Minutes of the Executive Council; but nothing was done. The noble Earl opposite (the Earl of Derby) was then Secretary of State for the Colonies, and as he took no measures in consequence, it was fairly to be inferred that he acquiesced in the decision, and considered that it was impossible to take any further measures. He believed the noble Earl (the Earl of Malmesbury), if he would only consider the extent of the African Coast to which these regulations applied, the defective means of communication through the Portuguese colonies, and the length of the frontier, would be obliged to acknowledge that it was utterly impossible to stop this smuggling trade. If he considered, further, that it was absolutely necessary that every farmer on the frontier should be supplied, as well as his servants, with powder and ammunition for his own defence and that of his household, and that, in fact, half the food of the frontier population was derived from the game they shot; and, again, that a profit so great was made by exchanging a pound of powder, which might be bought at Cape Town for 8d., against an ox, which was worth 5l.; to suppose that any restriction applicable to a state of peace could prevent that trade from going on would appear absolutely futile. The law had now conferred additional powers on the Governor applicable to a state of war, by which he could at any time stop the issue of powder from any and every private gunpowder magazine within the colony, until further proclamation. This power was exercised by Sir George Napier, in 1838; and again, in 1842, he republished his first proclamation, and warned the inhabitants of the penalties to which they were liable for the infraction of it. If the noble Earl would look attentively at the evidence taken before the Committee of last year, he would see that it applied to the supply of the Kafirs in time of peace, although it was now to be feared that they were supplying themselves, then, for the warfare which they subsequently made, and were now making. Looking back to the former situation of things, he did not believe that any measure that could have been taken would have been effectual for the purpose of preventing this traffic from being carried on. But, undoubtedly, it appeared to him that, with so stringent a
484
law on the Statute-book, when the war broke out, the first thing that should have occurred to the local authorities would have been to adopt every means in their power to put a stop to the trade. It was as natural to suppose that instructions to that effect would have been given to all the subordinate officers of the Government, as it was to suppose that in time of war every captain of a ship had power in his instructions to burn, sink, and destroy the vessels of the enemy. The evidence of Major Bisset quoted by the noble Earl, seemed to confirm this view of the case. He was asked, "Are the Kafirs replenishing their stores?" and stated, in answer, that he thought they had already supplied themselves by stealth, but that during the war care would be taken to cut off the supply. Major Bisset, having been desperately wounded soon after the commencement of hostilities, knew nothing of what had subsequently taken place. The Commissary General, Mr. Miller, after his arrival in this country, had told him (Earl Grey) that he did not believe a single pound of powder had gone to the Kafirs, except what bad been landed openly and avowedly in our own ports, where it was the great article of supply. Some powder was derived, undoubtedly, from the Portuguese settlement at Delagoa Bay; but the trade by this roundabout route was not speedily carried on, and was of very trifling extent. The main supply to the Kafirs had, undoubtedly, come through Cape Town and the frontier. With respect to blockading the coast, he was informed that there was no coast in the world where it was so utterly impossible to carry on the smuggling trade. Mr. Miller told him that the best landing-place for troops and stores was East London, where arrangements were made by Sir Harry Smith, during the last Kafir war, for landing stores; but even at that point the difficulty was so great that a considerable number of persons had lost their lives, even with all the appliances which could be afforded by the British Navy for landing goods; it was necessary to stretch a line from the vessel to the shore, and by using peculiarly-shaped boats small quantities might be conveyed to land. Within our own dominions it was impossible that arms and ammunition could be landed without the knowledge of the Government authorities. Except at one or two of the small harbours, where no illegal trade was carried on, he believed it was impossible that gunpowder could be landed. On the west

485
coast there are difficulties of a similar character; there being only one or two points where they could land, and it could only be done by small vessels, that are not fitted for the voyage from Europe, and which almost invariably take their cargoes from Cape Town. He believed that the Commodore, hearing that it was probable the attempt would be made to land certain quantities of powder at the mouth of the Orange River, had ordered certain vessels to be sent to watch that part of the coast. But it was the opinion of those who were best acquainted with the colony, that it was not through these attempts to land that the real danger arose, because it was impossible to smuggle there, but that the real difficulty was to prevent the powder which was necessary in the colony from finding its way from those persons who, seeing the immense profit to be obtained, would sell it to the Kafirs; and if their Lordships would look at the ordinance lately passed at the Cape, they would perceive that it was entirely directed to that end. It was not the evil of smuggling, properly so called—meaning by that the landing on the coast by stealth from vessels not duly entered at the Custom-house—that was the true source of mischief; but the real danger arose from powder being taken from the legal and authorised stores, and then sold to the Kafirs. The new ordinance increased the severity of the regulations to check that offence; and he hoped it would do it successfully, This was undoubtedly a very painful subject, and naturally excited much interest among their Lordships. With regard to the return which the noble Earl had moved for, of course there would be no objection in granting it. He would only suggest that its designation should be slightly changed, to prevent the delay that would otherwise ensue, and that instead of asking for the quantity of powder imported into the Cape since 1847—for that return could not be made without communication with the Cape—he should call for a return of the powder exported from this country to that colony, which would afford precisely the same information, and in a more speedy manner. It would afford the same information, because powder was practically only introduced to the Cape, from the United Kingdom and the British possessions.
LORD MONTEAGLEthought that little of the gunpowder used by the Kafirs was imported either from or through the Portuguese or any other foreign possessions in
486
Africa, and therefore it was obvious that it was furnished to them by British merchants at Cape Town, who sent it with a knowledge that it would be used for the purpose of slaughtering their own fellow countrymen. The noble Earl (Earl Grey) was quite correct in saying that the colonists on the frontier must have arms and gunpowder to protect themselves with from the Kafirs and from wild beasts; but the frontier colonists were the last persons in the world who would part with their arms and ammunition to the Kafirs, who were their enemies. The powder and muskets obtained by the enemy did not proceed from the settlers on the frontier, but from the merchants at Cape Town itself. It was the capitalist at Cape Town who supplied the enemy with the means of destruction, by pursuing the trade which was described by the noble Earl as being so very profitable. No effectual step had been taken till the late ordinance to check this atrocious traffic. The very contrary was the case. The fact was, the Government had been struggling for years to reconcile two things which were totally incompatible, namely, an enormous extent of, frontier, with a greatly reduced army; and this impracticable attempt was the root of all the difficulty. We had unwisely abandoned the system established, he believed by Sir Richard Bourke, of limiting our commercial intercourse with the Kaffirs within certain times and places fixed and limited by law. The moment we allowed individual traders to pass the frontier with their commodities, it became impossible to prevent the sale of arms and powder to the Kafirs. He wished to call their Lordships' attention for a few moments to the evidence contained in the papers which had been laid upon their table. At page. 344, Major Sir James Anderson, speaking on the 3rd of July, 1851, said, he thought a change might be effected in the habits of the Kafirs—first, by establishing military posts, and then by inducing them to attend fairs, where they might exchange their cattle for British goods. At question 2,722, he gave his opinion that although there might be men of good character who supplied the goods to the Kafirs, yet they were obliged to employ persons of very inferior character to sell them, sometimes British deserters; and at question 2,725 he added that, by preventing the traders from going into the country, and by making the inhabitants resort to the fairs, the introduction of arms and

487
ammunition might be considerably checked, but not altogether suppressed. He (Lord Monteagle) would next refer to the testimony given by General Sir George Napier on the 23rd of June, 1851, who, in answer to question 1,617, stated that the traders introduce gunpowder and arms, brandy, and everything that is bad among the Kafirs—that they smuggle very much—that things were better under the system established by Lord Charles Somerset (or rather by Sir Richard Bourke), when there were fairs held, at which the Kafirs met the traders, and bought what they wanted—that that system seemed to work well; but that now the traders take gunpowder and arms into Kafirland, which were supplied by the merchants at Cape Town and Graham's Town, who purchased large quantities of arms in England—that he (Sir George Napier) had tried to stop the gunpowder from going to the Kafirs, but found it impossible to do so. Again, at question 1,619, the same witness added, "Do not let the traders go into Kafirland, except as formerly. Put a stop to itinerant traders." Now, if all this evidence was entitled to any weight, and he thought it was entitled to the very greatest, it pointed out the course which the Government ought to pursue in accomplishing an object that he could not consider so entirely hopeless as the noble Earl the Secretary for the Colonies seemed to suppose. Experience proved that it was perfectly practicable. At the same time, he could not find language strong enough to express his abhorrence of the merchants, whether in England or at Cape Town, who made use of a time of calamity like the present to draw from an infamous commerce the profits that the noble Earl had described. Their conduct recalled to his mind the language of the Dutch merchants, who, when reproached by Louis XIV. for carrying on a somewhat similar traffic, frankly told that monarch that if they could make a good profit from a trade with the infernal regions, they would not hesitate to do so though at the risk of burning their sails.
The EARL of MALMESBURYreplied. He referred to the evidence of an officer of engineers to show that powder could be landed on the coast, notwithstanding the opinion to the contrary of the noble Earl the Secretary for the Colonies. He agreed to the suggestion of the noble Earl for altering the terms of his Motion for the returns.
EARL GREYadded, that the collector
488
of Customs at Cape Town believed that nearly all the powder obtained by the Kafirs paid duty, and went through the Custom House at Cape Town. The noble Earl also expressed his belief that it would be impossible to prevent the landing of gunpowder in time of peace; and remarked that from certain quantities of saltpetre and sulphur that had been sent to the frontier settlers, he inferred that the manufacture of gunpowder was being introduced into the colony.
The EARL of ELLENBOROUGHthought the Colonial Office ought to be able to produce the returns now asked for by his noble Friend, according to the original terms of his Motion. It only required a little attention to system and method in taking the statistics of the imports at the Cape.
EARL GREYdefended the alteration he had suggested in the wording of the Motion, as the more convenient and speedy mode of attaining the same end.
Motion, as amended, agreed to.

COUNTY COURTS FURTHER EXTENSION BILL.
Order of the Day for the Second Reading, read.
LORD BROUGHAMthen moved the Second Reading of this Bill, and explained that it was the same as the one which was sent down by their Lordships to the other House of Parliament last Session, and returned from thence the last day of the Session, with one or two slight exceptions. Some alterations were made on the Bill in its progress through the other House, not in its substance and import, but in the mode of carrying its objects into effect; and considering most of these to be improvements, he had retained them. There was, however, one material alteration which the House of Commons had introduced, namely, the clause which had been inserted in the Bill as presented by him, and which their Lordships struck out last year, enabling barristers, whether instructed by attorneys or not, to appear on behalf of parties. Considerable difference of opinion existed in their Lordships' House with respect to that clause, and eventually it was struck out. He had restored the clause in the present Bill; the object of the clause was to repeal a provision in the County Courts Act of 1846, which prohibited the counsel who practised in those courts from taking briefs from the suitors themselves, and required that they should be

489
instructed by an attorney. He would remind their Lordships that probably, in the County Courts, the same practice prevailed as in the Superior Courts, namely, that counsel were not in the habit of taking-briefs from the clients themselves, but from attorneys. He, however, thought that it was desirable that an option should be given upon the matter, and therefore it was that he bad reinserted this clause in the Bill. With respect to the Superior Courts, there was no inflexible statute law or common law which prohibited counsel from taking briefs from the clients themselves; but they had always been prevented from doing so by usage or custom, the etiquette of the Bar. In the Superior Courts, generally speaking, no counsel took a brief in a cause, unless he had been instructed by an attorney—a practice which in most cases he (Lord Brougham) approved of. He thought it expedient that both in the superior and inferior courts a line should be drawn between the two branches of the profession, and that, as a general rule, no barrister should appear on behalf of parties in either the courts at Westminster or in County Courts without being instructed by an attorney or solicitor. But he also thought that the same freedom upon that point which existed in the Superior Courts might be extended to the County Courts without any fear of its being abused. His objection to passing a law which would prevent counsel from taking a brief in a County Court directly from a client was, that circumstances might arise when the ordinary rule should be departed from. The professional etiquette was a flexible rule; it went to circumstances; it admitted of exceptions in cases of necessity. The statutes' prohibition was inflexible and allowed no exception, however urgent the necessity for the barrister's protection. The Bill which had passed their Lordships' House last Session upon this subject, and which had been sent down to the House of Commons, might appear, from the number of Amendments which that House had made, to have undergone considerable alteration. That, however, was not the case, for the other House had adhered to the substantial portions of the Bill, and only embodied its enactments in a different form. The noble Lord concluded by moving that the Bill be read a second time.
LORD CAMPBELLsaid, he always had been and still was a warm friend to the
490
Comity Courts, and he was sure their establishment had most materially improved the administration of justice in this country. He rejoiced to see a Bill again brought; in which improved the Acts that had been previously passed. [Lord BROUGHAM: Improved and extended.] But he regretted that an alteration had been made in this Bill after it left their Lordships' House last Session—an alteration not only materially affecting the profession to which he belonged, but—what was infinitely more important still—affecting the due administration of justice. He believed we were greatly indebted in this country to the distinction which had been drawn from time immemorial between the functions of attorneys and the functions of barristers, and he thought that that distinction ought to be sacredly preserved. With one exception, this distinction had been instituted not by law but by usage; but when the County Courts were established, it was felt that an exception should be made with regard to those courts, and that it should be made by a positive enactment on the subject. With respect to the Courts at Westminster Hall and on circuit, there was a superintendence and a discipline abundantly sufficient to keep up all wise and salutary rules regarding the profession, without any legal enactment; but it was felt that in the County Courts such discipline and superintendence would not exist, and must be supplied by the Legislature. It was therefore provided by the 91st section of the County Courts Act, that; no barrister should appear in any of those; courts unless instructed by an attorney. That he believed was a judicious and salutary rule, and most earnestly would he advise their Lordships to continue it; because if that rule or custom were not maintained, the distinction between the two branches of the profession in the County Courts would be entirely obliterated; litigation would be stirred up and multiplied to an indefinite extent among the lower orders, by having every stage from the beginning to the end of the suit conducted by a spurious barrister; the profession would be degraded, and, what was still worse, the most serious evils would be entailed upon the public. Such a class degraded the order to which they belonged; and the serious objection he entertained to the 24th clause of the noble and learned Lord's Bill was, that it would have a tendency to increase the evil. He knew that there was an idea abroad in fa-

491
vour of what was called "free trade in law." Now, although there were many things to which the principle of free trade was well adapted, he could not think that the law was one of them. It was his opinion that it was highly desirable that this prohibition against counsel practising in the County Courts without being instructed by attorneys or solicitors, should continue. It was said, indeed, that it was at present competent for a barrister to decline practice which was not accompanied by instructions from an attorney; but if it were for the general good that such a usage should prevail, surely there could he no objection to its being enforced by legal enactment. The barrister, too, ought to be guarded against a practice which now prevailed, namely, that of attorneys acting in court, not on their account, but in the capacity of advocates, and instructed by other attorneys. He was ready to second any measure which should put an end to such a practice. If a suitor were contented with one law agent, he might choose an attorney to act for him; but if he thought proper to have two law agents, an advocate as well as an attorney, that advocate ought to be a barrister, both for the sake of the suitor himself, and also for the sake of the Bar. The question was one with which the interests of justice were very intimately connected, and he could not help regretting that his noble and learned Friend had not allowed himself to be guided by the strong opinion expressed in their Lordships' House last Session, that a clause of this kind was necessary. He (Lord Campbell) trusted that it would be introduced in Committee, and in that hope he would give his entire and cordial support to the Bill.
LORD CRANWORTHdid not rise for the purpose of protracting the discussion on this subject. He only wished to say that he reserved for himself the full power of expressing in Committee, when the Bill should reach that stage, the opinion which he expressed last year upon the same point, and which, it would be remembered, was generally to the same effect as that which had just been given by his noble and learned Friend beside him (Lord Campbell), though he did not anticipate quite the extent of evil contemplated by his noble and learned Friend. His object in now rising was to make a remark upon the general frame of the Bill. Though, as their Lordships were aware, it was only one Bill, it had, in fact, two distinct
492
objects—one half of the Bill related to the extension of jurisdiction of the County Courts over those subjects in which they had jurisdiction at present, and which he would call common law jurisdiction; the other half of the Bill conferred upon them powers for assisting the Court of Chancery in carrying into execution such decrees and orders as it might issue, and to a certain extent to enable them to discharge the functions of the Masters in Chancery. On the importance of both these objects he entirely concurred with his noble and learned Friend last year, and he concurred with him still; but he owned he entertained considerable doubt as to the policy of now proceeding with that part of the Bill which related to the Court of Chancery, when they knew—or, at least, had been informed upon authority which they could not doubt the accuracy of—that there was soon to be brought into the other House, and he hoped before the end of the Session would be brought before their Lordships, a Bill which would grapple with this and all the other difficulties of the Court of Chancery. In those circumstances he doubted the propriety of running the risk which would be occasioned by the passing of this Bill, of increasing the difficulties which existed in carrying into execution the recommendations of the Commissioners with respect to the very matter which formed the subject of one half of this Bill. He thought it would be more expedient to strike the part relating to the Court of Chancery out of the present Bill, and introduce it as a separate measure, which they could either pass or not, according as they might be satisfied or otherwise with the larger measure with reference to the Court of Chancery.
LORD BROUGHAMsaid, that the point urged by his noble and learned Friend had not escaped him. He was aware that when the measure to which his noble Friend alluded came before the other House, it might be found to contain some provisions respecting the taking of evidence, and the transactions of other business belonging to the Masters' Offices, on which he now proposed to give powers to the County Courts. But still he could not help thinking, from the best attention which he had bestowed upon the Report of the Commissioners, that it would be found not to dispense with the necessity of some such provision as should give the County Courts certain of the functions now performed by the Masters in Chancery. It would still

493
be necessary to take evidence in the country, and have other matters there transacted, without bringing parties or their agents up to London. That, however, would be more easily considered at a future stage of the measure; but he entirely concurred with his noble and learned Friend in deprecating any proceeding which might have the effect of retarding or impeding reforms of a more extensive and important nature. With respect to what had fallen from the Lord Chief Justice, he (Lord Brougham) could not think that his noble and learned Friend had fully or sufficiently considered the subject on which he had spoken, he had argued that the difference between the County Courts and the Superior Courts was such as well to justify a particular enactment in the case of the former. Now, it was not merely the influence of the Bench, or of usage, and etiquette connected with that usage, in the Superior Courts, which served to prevent the confounding together of the two branches of the profession, because in the country Courts of Bankruptcy and in all other courts except the County Courts—in the more obscure as well as the higher courts, the barrister was left at perfect liberty, and there was nothing to prevent him from taking practice without the intervention of an attorney or solicitor. The etiquette which prevailed in the Superior Courts was not universally recognised, and there was no confusion, not withstanding, between the two branches of the legal profession. And was it not right to throw around the barrister a protection by which he might be enabled to defend himself against combinations by solicitors and attorneys? That such combinations had at times existed, there could be no doubt whatever. In one instance, of which he (Lord Brougham) had some recollection, a member of his profession, in consequence of what he believed to be the faithful discharge of his duty in the other House of Parliament, incurred for a season the displeasure of the other branch of the profession, and a circular was issued to that part of the country in which the barrister practised, giving a plain intimation of the opinion of the principal attorneys and solicitors that he should be visited with the displeasure of the profession for what he had said in his place in Parliament. That displeasure was exercised not only affirmatively but negatively, by withholding all professional intercourse from the obnoxious party; but the barrister in question, know-
494
ing that it was usage alone which prevented him from throwing open his chambers, and taking practice without the intervention of attorneys, gave an intimation that he would resort to this course. By these means room was afforded for explanations, and the circular was ultimately withdrawn. Other combinations had also existed at times upon different and perhaps less important questions. What would their Lordships think of combinations among attorneys and solicitors not, to give a brief to a barrister in any Court if he should presume to attend the County Courts, that branch of the profession being minded to have a monopoly of those courts? In such a case, if etiquette were the only prohibition, a barrister might protect himself against such a combination. He (Lord Brougham) threw out these remarks by way of illustration of the view which he had submitted to their Lordships, and he commended them to the candid consideration of his noble and learned Friend. Another subject had again been pressed on his attention. A proposal had been made now, as last Session, to vest in the County Courts a general equitable jurisdiction, and a petition had been presented to that House, praying that they might be given an equitable jurisdiction in the case of sums of money not exceeding 500 l. He wished to take that opportunity of saying that he had given the suggestion his best and most attentive consideration, and he had arrived at the opinion that it was entirely impossible to fix any such rule. He should, however, continue to direct his attention to the subject, as he was aware of the interest which it excited in many parts of the country. He bad presented a Bill to the House last Session which embraced this subject; and, its it appeared to him, without the manifold objections to which the plan of giving the equitable jurisdiction under a certain amount was plainly liable. Last Session the Bill had been much considered, but it had not passed their Lordships' House, although it had never been rejected by them.
LORD CAMPBELL, referring to the instance of combination mentioned by his noble and learned Friend, observed that there was little danger of the attempt of the solicitors and attorneys prevailing against an individual whose splendid talents and profound learning were such as to make him generally sought after by suitors. No one could be more proud of his profession than he (Lord Campbell)

495
was; but there must be in every rank and profession some members not so remarkable as others for delicacy and propriety; and in the present case he feared that there might be a class of barristers, who never came to London, who were not in the slightest degree under the influence of the leaders of the profession, and who, unless they were restrained by positive enactment, would be liable to be tempted into improper proceedings. He had observed that his noble and learned Friend (Lord Brougham) was by no means confident in the correctness of the opinion which he had expressed upon this subject, and he implored him to be guided by the decision which their Lordships had already arrived at.
Bill read 2a.

PATENT LAW AMENDMENT BILL.
LORD BROUGHAM presented a Bill for the further Amendment of the Law touching Letters Patent for Inventions. His Lordship, who spoke in a scarcely audible tone, was understood to say, that the measure was similar in principle to that which had been under the consideration of Parliament last Session, but that it did not embody the Amendments introduced into the Bill of last year by the House of Commons.
LORD CAMPBELL: I hope my noble and learned Friend retains the clause in the Bill of last year which gives the Courts of Law a power to grant an injunction in case of infringement of patent.
LORD BROUGHAM: Yes, certainly I do.
Bill read 1a.
House adjourned to Monday next.