Lords Sitting of 6 June 1853

Preamble
MINUTES. PUBLIC BILL.—3a Evidence Amendment.

CRIMINAL CODE OF MALTA.
The EARL of SHAFTESBURYsaid, a rumour had reached this country that the Maltese criminal code, which had been recently revised, contained terms derogatory to the dignity of the Church of England, and of all other denominations which were not in communion with the Chinch of Rome.
1196
He wished to ask whether the revised code, or any documents on the subject, had yet reached this country; and, if so, whether the noble Duke opposite would consent to lay them on the table? He also wished to know whether any opportunity would be afforded to Parliament of expressing an opinion upon the matter before the revised code received the final sanction of the Government?
The DUKE of NEWCASTLEreplied, that the Governor of Malta had not yet transmitted to Her Majesty's Government a copy of the revised criminal code; but he had informed the Government that he had delayed doing so until the code, which was in the Italian language, had been translated and printed. He (the Duke of Newcastle) was not at present prepared to say whether he could lay upon the fable the whole criminal code of Malta; but full opportunity would be afforded the noble Earl for ascertaining the bearings of the alterations which had been made before any conclusion was come to on the subject. He might, however, without entering into the merits of the case, take this opportunity of earnestly pressing the noble Earl not to allow his feelings to carry him away in this matter, or to take any rash steps with regard to the proposed criminal code until he was fully acquainted with the bearing of the case on both sides, as there were strong religious feelings engaged in the question.

EVIDENCE AMENDMENT BILL.
LORD BROUGHAM LORD BROUGHAM moved the Third Reading of the Law of Evidence Amendment Bill. He had, as their Lordships might recollect, omitted the provisions which were not so universally agreed to as those now retained, reserving the omitted ones for another Bill which had been read a second time. They were, he trusted, likely to be finally adopted, for, with one exception—the provision respecting self-crimination—all of them had received the support of the Common Law Commissioners, whose second Report now lay upon their Lordships' table. Those provisions, in his opinion, were calculated to effect a great improvement in the law both of Evidence and Procedure. It was not to be denied that they effected a very considerable change in the law; and it was most satisfactory to find that the learned Commissioners had arrived at the opinion which they pronounced in favour of them. This they had done without any communication with him. He had described them in the

1197
letter addressed to Lord Denman last August, and which was subsequently published. The Commissioners were probably about the same time prosecuting those inquiries which had led to their most able report; a report which it was impossible too highly to commend both for its sound practical sense, its cogent reasoning, and its enlarged, but moderate and rational views, He had reason to expect that the Bill founded upon this report would not be long delayed, as his noble and learned Friend on the woolsack had announced that it was in preparation. He ventured to hope that in framing its provisions the learned Commissioners would take into their consideration those of the Bill to which their Lordships had given a second reading, Not because he had the least partiality to his own draft—for he had drawn the Bill last autumn in the country, at a distance from his professional brethren—but because he had submitted that draft to some of the ablest and most experienced among them; and the Bill, as presented to the House, was the result of their labours, on which he set great store after his own, to which he attached very little importance. It would be wholly unworthy of the Commissioners to reject the provisions framed, from the mere desire to have a draft differently framed. When the substance of all the proposed enactments was the same, nothing should have prevented him from urging their Lordships to pass the Bill already advanced to its last stages, but the desire to see its provisions adopted by the Commissioners in their more comprehensive measure. With this view he had separated the original Bill into two; and the clauses for completing the great measure of 1851, allowing parties to be both competent and compellable to give evidence, were the only ones retained in the Bill to which he now asked their Lordships to give a third reading—clauses, namely, respecting the examination of husband and wife, already passed in the Scotch Evidence Act.
The LORD CHANCELLORsaid, he was deeply indebted to his noble and learned Friend for his efforts to put the law upon the subject of evidence upon the only rational foundation on which it could be based, namely, that all persons capable of giving useful information should be capable of being examined. He was willing to admit that he had been one of those who were opposed to the provisions of a measure similar to the present two or three
1198
years ago; but his doubts were now settled, and he was convinced, from seeing the way in which the existing law had, worked, that they were without foundation, particularly as the husband and wife now stood in the same relation, as to evidence, as attorney and client. Whatever passed between attorney and client was professional confidence, and whatever passed between husband and wife was domestic confidence, and protected in the same way as professional confidence. He therefore approved of the Bill, and thought the public were greatly indebted to his noble and learned Friend for it.
LORD CAMPBELLentirely approved of the present measure, and said he was glad to see that his noble and learned Friend did not expect to carry his other measure for the abolition of trial by jury in civil cases. The trial by jury in civil cases had an admirable effect. It was conducive of good to the litigants and to the public; yet his noble and learned Friend proposed that it should be substantially abolished, because he proposed to abolish it in all cases without exception, unless the parties expressly and positively required it. Now, he was convinced it was infinitely better to try cases by a Judge and a jury, than by a Judge without a jury, When we talked of trial by jury, we must always consider that it meant trial by a Judge and a jury. In the great majority of cases the jury were always willing to take the view of the case which the Judge recommended; still juries were a most important, necessary, and useful check upon the Judge; and, according to his experience, where the Judge and jury had differed, it had generally happened that the jury were right, and the Judge wrong.
LORD BROUGHAMsaid, his noble and learned Friend might just as accurately have described the Bill to which he referred as a measure for abolishing trial by Judges as for abolishing trial by jury— which God forbid! He did not think he had ever heard, even from the ingenuity of his noble and learned Friend—and that was saying a great deal—so great a misrepresentation of the case as that which he had now heard; for, instead of being a Bill for abolishing trial by jury, it was rather a Bill to perpetuate all that was good in trial by jury. However, when the measure came down to their Lordships, recommended by the learning and weight of the Commissioners who were now considering the subject, he was not without a hope that it

1199
would receive the concurrence even of his noble and learned Friend.
Bill read 3a.
An Amendment made; Bill passed, and sent to the Commons.

BURMESE WAR.
The EARL of ELLENBOROUGHsaid, that before putting the question of which he had given notice, with respect to the war in Ava, he hoped to be allowed to recall to their Lordships' recollection some important circumstances that had taken place since he last addressed the House on the subject, on the 24th of February. Very soon after that date information was received of a revolution having taken place at Ava; that a conflict had occurred between the Sovereign and one of his relatives; and that in consequence of that revolution all the troops which were in front of the position taken up by our army at Promo, had been withdrawn towards the capital; likewise all the forces which were between the Arracan mountains and the Irrawaddy, were withdrawn, as also the forces which had attacked our detachments in occupation of Pegu; and at that moment there undoubtedly would have been no organised resistance to the march of General Godwin upon Ava, had it been possible for him to effect that march, destitute as he was of the means of movement. He (the Earl of Ellenborough) apprehended that at that time he had about 3,500 troops disposable for that march; but being destitute of the means of moving on land, and the water in the river being so low that steamers would have had very great difficulty in accompanying him in his march, he was obliged to give up the idea of marching upon Ava, and to remain where he was when the alteration took place. Under these circumstances General Godwin detached only a small body of men somewhat in advance; but with that exception he had remained stationary during rather more than three months. He knew it had been frequently observed, both here and in India, that the first measure to be adopted by the Government of India in case of war with Ava would be to advance up the Irrawaddy with troops embarked in steamers, so as to make a demonstration against the capital itself. The Governor General expressed in very strong terms his objection to that measure; and he (the Earl of Ellenborough would say that he entirely concurred in the justice of his objections. He believed that such a measure would
1200
have been at the time one full of peril; that at no time could the limited force at his disposal be embarked with safety; and that there was no probability whatever of its producing the effect that had been anticipated from it. General Godwin remained, then, stationary at Prome. He (the Earl of Ellenborough) would now mention what changes had taken place in other parts of the theatre of war. A very enterprising officer, Captain Nuthal, having taken possession—the enemy not being on his guard —of a fortified stockade on the summit of a pass which led from Aeng to the Irrawaddy, some 147 elephants had been passed through the valley of the Irrawaddy direct to Prome. That pass in former wars was considered impracticable for animals; but the elephants had been passed through and arrived at Prome, so that to that extent there were the means of moving. However, unfortunately at the time the troops moved out to facilitate the advance of the elephants to Prome, the Burmese got possession of our draft bullocks, owing to which circumstance the means of moving were not materially improved—for although they had gained considerable facilities by the possession of the 147 elephants, it was obvious that that means of carriage must have been totally insufficient for moving the whole army. A force was also despatched under General Steele from Martaban, and the forces of the enemy having been withdrawn from the intervening country, he, without difficulty, advanced from Martaban to the position now held by him with a body of some 800 men at Tonghoo —having scattered his force in three different places on the banks of the river. That being the position of General Godwin at Prome, and General Steele being posted on his right flank, there had occurred two occasions, he regretted to say, in which we were repulsed with very considerable loss. The first was one in which our naval forces were alone engaged; and the second one, in which a considerable military and naval force, to the extent of about 600 men, were engaged. On the last occasion the repulse was attended with very considerable loss. He regretted again to remind the noble Earl the President of the Council of a circumstance which he had learned from one of the Indian newspapers—that immediately after the second repulse, our Commissioner offered a reward for the head of the Burmese officer who had defeated us. He regretted to have heard of the circumstance; but as he had heard no denial given to it, he must conclude

1201
that the statement was well founded. Now he (the Earl of Ellenborough) had never heard a reason stated why a Burmese alone should be exempted from the general rule which governed the practice of war. He also regretted to observe that nearly about the same period, at the desire expressed by some villagers, in the neighbourhood of a hostile town, the English Commissioner had consented to burn the town, containing 3,000 houses, and thus to render destitute a vast number of the inhabitants. Such circumstances as these tended to barbarise war, and to create a feeling of animosity in the country, which was certain to last for ages, and to make it impracticable for us for a long period to tranquilly and properly govern the country. So serious was the last repulse that it was considered necessary by General Godwin to despatch Sir J. Cheape, with S00 men from Prome, for the purpose of dislodging, with the assistance of the naval force, the Burmese officer previously mentioned. It was expected that operation would last a few days; but when Sir John Cheape arrived within some twenty miles of the Burmese chief's position, he found that that position was so much stronger than he expected, and the force so much greater, that he was compelled to send to Rangoon for 500 additional men. He subsequently landed with these 1,300 men, and encountered very great obstacles. He had no tents, and sure every day to have a fog which lasted from two o'clock in the morning until nine o'clock, during which time it was next to impossible to work. They were afterwards compelled to work all day under the sun in cutting down jungle, exposed to the fire of the enemy, and, what was still more dangerous, to the fire of the sun. They succeeded in expelling the troops of the Burmese commander, but again with considerable loss, that loss being more attributable to sickness than 'to the fire of the enemy. By the last accounts it would appear that the Commissioner at Rangoon had despatched a steamer to Calcutta to bring instanter a reinforcement of Europeans to protect the communications with General Steele; and if the reports in the India newspapers were to be trusted, Martaban was at this moment garrisoned by the crew of one of the steamers, and he supposed that the naval force had been detached in order to assist the few troops which were sent to maintain the communication with Beling. At that place the per-
1202
sons who had surrendered at the first occupancy rose again in arms, so that communication with General Steele was altogether suspended, He (the Earl of Ellen-borough) was not certain that there might not have been some degree of panic leading to the sudden despatch of that steamer and the demand of reinforcement, because no persons were more liable to panic than those who were most confident; and unless he was greatly mistaken, the Commissioner, who had been obliged to send on a sudden for a reinforcement of Europeans, was the very individual whom he always considered to be the principal author of this war. Such, then, was our position. We had a force at Prome that could not move; our communications were attacked both on the side of General Steele and the Irrawaddy. We had not sufficient troops to maintain our position in advance, and at the same time to protect our communications with the base of our operations. He (the Earl of Ellenborough) had always understood that to protect communication between the army in advance and the base of operation, and to have the moans of moving in all directions that the exigencies of warfare required—these he always understood to be the A B C of war; and it really would appear as if those who had the conduct of the war in Ava had actually not yet learned the very first letters of their alphabet. He predicted from the first the danger that would arise from not providing our troops with the moans of movement. He ventured to say it was impossible to beat an enemy and subdue an empire with troops that had no power of motion; and yet more, to attempt so great an operation with troops so deficient in numbers as not to be able to protect their communications. In fact, the Government and the army were in a false position, and until they got out of it, nothing could be well done. The positions taken up had been taken from political, not military, motives. It was decided to declare what was called the "annexation of Pegu;" and in order to afford a pretext or justification for that measure, it was necessary to appear to occupy that country; and hence the march of General Steele, and the attempt to accomplish more than our troops were equal to, the result being that we had brought ourselves into a position of imminent danger. The first thing to do was to beat an enemy; and if an army were placed in a position to effect that, all the difficulties were then overcome, and the desired political results followed. If, on

1203
the other hand, we should take a position not justified by military considerations, we should endanger our army, and leave ourselves no chance of succeeding in our political objects. He thought it was absolutely necessary for us to reconsider our position, which had been materially altered by circumstances which had recently occurred, and to determine altogether to relieve ourselves from the false position in which we were placed. There should be no false pride in that matter. It was much too serious a matter for the indulgence of false pride. Neither should any complaints made by commissioners or deputy commissioners, who, by an alteration of the plan, would lose their situations, be attended to. Nor should any complaints of speculators in timber, who desired to cut down the forests of Pegu, after having cut down the forests of Tenasserim, be attended to; and neither should any of those persons who, in the public press in India, had been hallooing on the Government to that most unfortunate war, be attended to. The Government should look seriously to their own position. They should abandon all illusions; they should look to stern realities, and prepare themselves for the difficulties they would have to encounter. He confessed he saw no safety whatever for us but in concentrating in Prome, Rangoon, and Moulmein, all the detached bodies which were scattered through the province of Pegu, and withdrawing altogether from the left bank of the river. That which it was desirable for us to find was a clear military obstacle between us and the enemy. We could not rest where we were, or where the Government of India had endeavoured to place us, because, in order to occupy the province of Pegu, we should occupy a false position—we should scatter our forces, and be continually in danger. We could not in time of peace occupy that position with security, even if the Burmese Government were prepared to surrender to us that territory, because, having no natural frontier whatever, but one which might be entered at any time, or at any point, by any body of men, we should be continually engaged in new collisions and new wars, and we could look forward to no other termination of our proceedings than the total destruction of the Burmese empire. He said, therefore, it was absolutely necessary for us to alter the plan, to withdraw altogether from the left bank of the Irrawaddy, except it might be necessary on that bank to
1204
retain Rangoon, and that narrow slip of land which adjoins the Irrawaddy, just before the commencement of the Delta, and extends nearly to Rangoon, and which it might be necessary for us to keep for the purpose of protecting the passage of out-steamers on the river. It might also, perhaps, be desirable that we should retain the town of Prome as a sort of tâte de pont; but we should generally retire altogether from the left bank of the river. Then it would be necessary to do that which the Duke of Wellington counselled as far back as the year 1829—namely, to make good roads between our own provinces and Arracan; and it would be necessary to make thoroughly passable at all times, and for all arms, the pass leading from Sandoway to Prome, and also the pass leading from Aeng to the Irrawaddy. Prom those passes there should be formed roads to every portion of the river, and all the military points of those roads should be protected by stockaded positions. We should then occupy every point between the mountains of Arracan and the river. To the left we should take a territory which we did not at present claim; and on the other hand we should give up the province of Pegu. We should then be placed in a position militarily strong, which we could hold against all the powers of the Court of Ava, and which, simply by our remaining there, would enable us to compel that Court to submit to any terms we might think proper to dictate; and if we should from that position determine on making a forward march to Ava, we could do so from a base so secure that we could carry on our operations with the greatest facility, and without incurring the slightest danger. He knew no other way in which we could obtain security than by adopting that modified plan. He must say that he thought the war had become one of a very serious character. He knew what had been the expense of the Chinese war. We had as many steamers employed in the present Burmese war as in the Chinese war. In the present war our steamers were constantly employed, and the expenditure of their coals and their wear and tear must be very great. The number of men engaged in the war was greater than the number which had succeeded in dictating peace in China; and he was fully satisfied that, whatever might be the representations which had been made upon the subject, when the accounts were all rendered it would be found that the ex-

1205
pense of the present war could not by any possibility be less than from 1,000,000 l. to 1,200,000 l. a year. The cost of the last Burmese war, which had lasted for two years and a half, had been 12,000,000 l. It was true that a larger force had then been employed; but it was also true that we should at present employ a larger force than that with which our operations had hitherto been conducted, for with that force it would be impossible to bring the war to a close. He had always regretted that the war had been undertaken. He admitted that there were colourable grounds for the war; and he should not be deterred from undertaking a war on merely colourable grounds, if he saw a clear, decided, great political advantage to be gained by this country. But he should say that in a case in which no possible advantage could be derived from war, and in which the greatest possible success could only lead to increased embarrassment and ultimate danger, he thought that every colourable pretext should have been seized for the purpose of avoiding a war, and that, in fact, we ought never to have entered into it at all. That had always been his opinion upon the subject. He did not think that that war could be terminated—and until it should be terminated, India could not be placed in a position of security—unless her Majesty's Ministers determined on making a very large addition to the European force at the disposal of the Indian Government. There were at present employed in Ava not less than six European regiments. Now, that force could not be detached from India without impairing our strength in many most important positions. At the present moment, in order to supply the place of a European regiment at Fort William, of which regiment a portion had been removed to Moulmein, and of which the rest was to follow, it had been found necessary to order up from Dinapore a European regiment which had always been stationed there. That was not a position from which a European regiment ought ever to be removed. It watched almost the only portion of the Mahomedan population of India that was always desirable for us to look after. It was not safe to denude Dinapore of a European regiment. He was satisfied that the addition to the European force in India ought to be equal at least to the European force at present in Ava. He had touched on the change which had taken place in our position since the war had commenced, and he entreated Her Ma-
1206
jesty's Ministers to take the subject into-their serious consideration. That which in this country was called the Eastern question was not without an important bearing on India. It was quite impossible that events could take place in Turkey, threatening with dissolution that empire, or leading to its dismemberment, which would not to a very great extent affect the security of our position in India. We were a great Asiatic Power. We should view what was at present passing in Turkey, not merely as a European, but also as an Asiatic State; and he did feel satisfied that it was absolutely necessary for us to take timely precautions, and make timely provisions-to be strong in India as everywhere else, and to be prepared at once to meet the difficulties and dangers which appeared to-be impending over us. In conclusion, he had only to ask the noble Earl the President of the Council whether Her Majesty's Government were prepared to give-papers explanatory of the present state of the war in Burmah, and of the negotiations entered into with the Burmese Government?
EARL GRANVILLEreplied, that the Government were not at that moment in possession of any further papers respecting this subject. He assured the House that it was their earnest wish to give every information in their power on this grave and important question, and that, as soon as-any additional papers were in their possession, they would lay them on the table. Under these circumstances he did not think it would be convenient to reply to the remarks which had just fallen from the noble-Earl.
The EARL of ELLENBOROUGHsaid, that it might be convenient, in order to facilitate the arrival of intelligence from India, that the authorities at Rangoon and Ava should be directed, whenever an opportunity offered, to send duplicates of their despatches to Madras.
The EARL of ALBEMARLErose to suggest to the Government that they should avail themselves of any opportunity that presented itself of relieving our Indian empire of the incumbrance which would follow from the annexation of this new territory. He did not mean to say there was no necessity for the annexation, but it was a most painful necessity if it existed, and one that must entail a serious pecuniary loss upon the country. There was no one of their Lordships how present who could ever hope to see the day when this annexed

1207
territory would pay its own expenses; the seaport was 500 miles distant from the nearest portion of our territory, and the frontier was open and wide, on any point of which an arrogant, barbarous, and implacable foe might bring his whole force, whenever it suited him to do so. What he would suggest was, that the province of Pegu should be converted into an independent State, under an independent sovereign, who might be chosen from amongst the Peguan chiefs. At the close of the last Burmese war, the Peguans did elect a chief to govern them, and under him they made a very respectable stand against their Burmese conquerors without our assistance or advice, which if they had had, it was very possible they would have achieved their independence. If one of their chiefs were now appointed as their head, and assistance were given in advice and by the presence of a small force, they would be able to maintain their position, and form a friendly Power between our territories and Burmah.
After a few words from Lord BEAUMONT, Earl GRANVILLE, and the Earl of ELLENBOROUGH, the subject dropped.
House adjourned till To-morrow.