Lords Sitting of 14 June 1853

Preamble
MINUTES. PUBLIC BILL.—1a Bankruptcy (Scotland).
ROYAL ASSENT—Consolidated Fund (£4,000,000); Burghs (Scotland); Sheriff and Commissary Courts (Berwickshire); County Election Polls (Scotland); Sales of Bullion; Aggravated Assaults.

LONDON DOCKS BILL.
LORD REDESDALEmoved, that the Bill be now read 2a.
The EARL of SHAFTESBURYsaid, he was anxious to call the attention of the House to the first result of their new Standing Order. The London Docks Company stated that the number of houses proposed to be pulled down was 322, and that the number of inhabitants to be displaced was 2,274. No provision had been made to accommodate them. He had, however, received a letter from the secretary to the company, which stated, that although the company were indisposed to become builders, they were prepared to erect on the ground they held dwellings for all their workpeople, and so relieve the pressure on those displaced by the removal from dwellings already occupied of all engaged in their service. This was, he said, an admirable example, which he trusted would be imitated by all improvement companies.
Bill read 2a, and committed,

APPOINTMENT OF MR. KEOGH.
The EARL of EGLINTON: It will be in your Lordships' recollection that a few nights ago the noble Duke the Secretary for the Colonies (the Duke of Newcastle) charged a noble Lord connected with the late Government with having offered office to Mr. Keogh; and it may also be remembered that the name of Lord Naas was mentioned. I have to state on the part of that noble Lord that he distinctly and un-equivocally denies ever having made, or been authorised to make, an offer of office to Mr. Keogh or to any of hit political friends.

GREAT EXTRAMURAL CEMETERY ASSOCIATION BILL.
LORD REDESDALEmoved that the Bill be now read 2a.
The EARL of HARROWBYmoved, as an Amendment, that the Bill be read a second time that day three months. He objected to this Bill because it was in contravention to the general policy of the measure which had been adopted by Parliament last year, which authorised the Secretary of State to cause all the burial grounds within the Metropolis to be closed, and to enable new cemeteries to be opened without the metropolitan districts. The site proposed under this Bill was in the parish of Willesden, and was therefore comprised within the prohibited limits.
Amendment moved, to leave out ("now") and insert ("this day Three Months.")
The BISHOP of LONDONsupported the Amendment on the ground stated by the noble Earl, namely, that the Bill contravened the general policy of their legislation with respect to intramural interments. The previous Secretary of State (Mr. Walpole) had the scheme of the promoters of this Bill submitted to him, and refused to give it his approval; and he (the Bishop of London) could not but think that the noble Viscount the present Home Secretary had been grievously imposed upon by the statements which had been made with regard to this Bill, and which had induced him to give it his sanction.
LORD BEAUMONTadmitted that there might be defects in the Bill, which could, however, be remedied in Committee; but he maintained that by rejecting the measure altogether, they would defeat the object of their sanitary legislation of last year with regard to extramural interments. In London, up to the present moment, comparatively few of the obnoxious graveyards had been closed, the reason assigned being that no other sites could be procured at which the accommodation of cheap burials for the poorer classes could be obtained; but the power which had been given to the Secretary of State last year of authorising the establishment of cemeteries as private speculations at a certain distance from London, would facilitate the closing of metropolitan graveyards by providing places for the interment of the dead. Here, then, was a private company coming forward to supply what was wanted. The cemetery to which this Bill referred, was, he understood, at a considerable distance from any habitation, and was some
134
miles further from London than the Kensall Green cemetery. He had been informed that the right rev. Prelate (the Bishop of London) had given a quasi consent to this Bill on a former occasion, provided a clause which he suggested was introduced. It was therefore fair to infer that unless there had been very strong recommendations in favour of this measure, and very few objections to it, the Secretary of State would not have adopted an exceptional course, and have allowed the promoters to proceed with the Bill. It was objected that, by sanctioning the establishment of private cemeteries, they would discourage parishes from providing such receptacles for the dead; hut he believed that if the competition of private companies was prohibited, the accomplishment of this important species of sanitary reform would be materially retarded.
The BISHOP of LONDONsaid, it seemed the noble Lord had been informed that he had given, not his consent, but his quasi consent to this Bill. He (the Bishop of London) did not exactly understand what the noble Lord meant by a quasi-consent, unless it was the sort of consent which a young lady gave to an offer when it was first made to her. When the Bill was submitted to him, he had recommended the clergy of his diocese to look after their own interests, and promised to support them as far as he could; but he never gave his consent to the measure.
LORD BEAUMONThad merely concluded that the Bill had the assent of the right rev. Prelate, from the circumstance that he had sent a clause to its promoters for insertion in their Bill.
LORD REDESDALEwished to say, that when the parties came before him, they assured him that they had the consent of the Secretary of State to the Bill, and he therefore pursued the ordinary course, and gave his consent to proceeding with the Bill.
The EARL of WICKLOWconsidered, that by assenting to this Bill, the House would violate the engagements into which they had entered by the measure of last year, and would commit an act of gross injustice towards the parishes of London, many of which had, he believed, already made arrangements for obtaining extramural burial grounds.
The EARL of SHAFTESBURYthought, that although this Bill was not in consistency with the spirit of the Act of last year, it was quite in consistency with the

135
letter of that Act. One section of the Act provided that no new burial ground, parochial or non-parochial, should be provided or used in the Metropolis, or within two miles of any part thereof, without the previous approval of the Secretary of State. The place in which this cemetery was to be established was within the prohibited distance; but the consent of the Secretary of State had been obtained to the measure. Dr. Sutherland, who had been appointed by the Secretary of State to examine the locality and report upon its fitness for a burial ground, had expressed his opinion that, although there was no habitation near the place, and although the access to it was easy, the clayey nature of the soil rendered it objectionable as a place of interment. He (the Earl of Shaftesbury) would suggest, however, after what had taken place, whether the best course would not be to afford the Company an opportunity of explaining their case before a Committee?
On Question, That ("now") stand part of the Motion, their Lordships divided:—Content 37; Not Content 36: Majority 1.
Resolved in the Affirmative. Bill read 2a accordingly, and committed.

HACKNEY CARRIAGES (METROPOLIS) BILL.
Amendments reported.
The EARL of WALDEGRAVEmoved the omission of the 15th clause, which prohibited hackney-carriage drivers from receiving into their vehicles any persons suffering from infectious, cutaneous, or contagious diseases.
LORD STANLEY OF ALDERLEYsaid, the clause had been introduced in consequence of representations made to the Government that persons suffering from various infectious disorders, such as smallpox, were frequently conveyed to hospitals in public cabs—a practice which tended greatly to disseminate disease; and it was to meet that evil that the clause was framed. Some of the hospitals and a few parishes had provided conveyances, by which persons afflicted with contagious diseases were removed—a far better plan than risking the health of the community by permitting the indiscriminate use of the public vehicles.
The EARL of DERBYhad no doubt that the object of the clause was well intended, but he questioned whether it would not be productive of greater evil than it proposed to remedy. The clause would render im-
136
possible the conveyance of any person attacked by dangerous disease, for every cabman would feel obliged to refuse to admit him into his carriage. If there had been such provision generally existing as the noble Lord (Lord Stanley) said existed in some parishes, of special conveyances for diseased persons, the clause would not be objectionable; but under the present circumstances it would be sometimes attended with cruelty, and would place drivers of public carriages in an invidious position by requiring them to ask of every passenger if they had any fever, or to stare in the faces of their fares, in order to ascertain whether they were afflicted with any cutaneous disorder. The object of the clause was, no doubt, good; but it was carrying legislation beyond just bounds, and he begged to suggest its withdrawal.
LORD CAMPBELL,as one of Her Majesty's Judges, begged to observe, that if they passed the clause it would be difficult to find out what were infectious diseases. If the question were to come before the Judges, he suspected that six of them might be found on one side, and half-a-dozen on the other. Some people said there was no such thing as infectious diseases. How was it intended that the question should be decided? Was it to be decided by a jury, or how?
LORD STANLEY OF ALDERLEYsaid, he would withdraw the clause.
Clause withdrawn; Report received; further Amendments made; Bill to be read 3a on Thursday next.

SOUTH CAROLINA.
LORD BEAUMONT,in rising to move that an humble Address be presented to Her Majesty for Correspondence respecting the Law of the State of South Carolina oft Coloured Seamen arriving in Port, said, that in bringing this subject before their Lordships, he had no intention of renewing in this country the angry discussions which had taken place in reference to it on the other side of the Atlantic; nor did he wish to avail himself of the present opportunity for declaiming on the wretched condition of the slave population generally. His sole object was to introduce the exact state of the case to the notice of their Lordships, and to show that means existed for removing the difficulty, without doing anything offensive to the State of South Carolina. He also desired to express a hope that the inhabitants and authorities

137
of that State would themselves take steps of their own goodwill for bringing about that result which all desired to see effected. Their Lordships were no doubt aware of the severe laws which existed in South Carolina with respect to men of colour arriving at the ports of that State. A law now stood on the Statute-book of that State which empowered the sheriff of the district to go on board any ship which arrived in their ports from any quarter of the world, whether putting in from stress of weather, or from any other cause; to seize all the coloured men whom he might find in the vessel, and to imprison them in the public gaol during the whole period the ships remained, and then to march them back again to the vessel when she was again about to leave the port. Several laws had been passed upon this subject by the State; but the one to which he wished more particularly to refer upon the present occasion was enacted in the year 1835, and he must ask their Lordships to pay attention to the date, because upon it a most important question turned. The Act was entitled "An Act for more effectually preventing free negroes and other persons of colour from entering into the State of South Carolina." The first section set forth that it should not be lawful for any free negro or other person of colour to be brought into the State under any pretext whatever, either by land or by water; and it went on to enact that any free negro or other coloured person refusing to leave the State should be subject to such corporal punishment as the courts might think fit to award; and it further enacted that, if he still remained after the infliction of such corporal punishment, he should then be sold in public sale as a slave. The second section enacted that it should not be lawful for any free negro or other person of colour to enter the State on board of any ship, as cook, steward, or mariner, or in any other employment, and it empowered the sheriff to seize such free negroes and other persons of colour as might be brought into the State by captains of vessels, and to detain them until the ships were again ready to put to sea. Now, as their Lordships were aware, the small craft which carried on the trade between the West Indies and certain portions of the State of South Carolina were necessarily, for the sake of economy, manned by mixed crews, consisting partly of coloured and partly of
138
white men. When these small vessels arrived at Charleston, they were regularly boarded by the sheriff, and the whole of the negro sailors were taken away, the captains being thereby compelled to employ slave labour for discharging and loading their vessels, in substitution for the free labour of which they were thus deprived. Of course, that materially interfered with the commerce of the West Indies; and he regretted to say that the evil had recently been still further aggravated by a decision of the courts, to the effect that no person apprehended under the Act was entitled to a writ of Habeas Corpus. Such, then, was the law of South Carolina; and the object for which it had been instituted was avowedly the protection of the State from the dangers which might arise if free negroes were allowed to associate with the slaves, and if nothing were done to prevent such communication. There was, however, an existing treaty between this country and the United States, which gave certain privileges to our merchants, shipowners, and captains of vessels trading with these States; and the question naturally arose—what was the effect of that treaty upon the municipal law of South Carolina? If the treaty was made subsequently to the passing of the municipal law, then it was entered into by both parties with a full knowledge of the nature and object of that law, and it could not be permitted to override or influence the operation of that law in any way, unless such was specially provided in the treaty itself. No doubt, a treaty, when once ratified, became the supreme law of the countries entering into it, but the understanding always was, that it should not affect existing laws; though, on the other hand, if an attempt were made by one of the parties, after the ratification of the treaty, to defeat its object by the passing of a municipal law, the other contracting party would have a right to demand that the terms of the treaty should be adhered to. Now, it seemed that a commercial treaty was entered into between Great Britain and the United States, as far back as 1815. In that treaty it was declared that between the territories of the United States and the European possessions of His Britannic Majesty, there should be a reciprocal liberty of commerce, and that the merchants of both countries should enjoy complete and perfect security for their trade, subject to the laws and statutes of

139
each. This treaty was finally renewed in 1827, and by an Act of Congress itself, in 1830, the commercial privileges which were enjoyed by the European possessions of His Britannic Majesty were extended to the British West Indies. Such being the case, it seemed that some parties in this country—he supposed the Government of the day—interpreted the State law of South Carolina and the treaty together, in such a manner as convinced them that the latter overrode and neutralised the former—that the treaty had been in force before the passing of the State law—and that it could not be set at defiance by any subsequent municipal law of South Carolina. Instructions were accordingly sent to the British Consul at Charleston, directing him, in the first place, to endeavour by amicable means to get the State law altered, and if that failed, to bring the matter before the supreme tribunals of the United States. Now, he (Lord Beaument) would not, himself give any opinion with regard to the point, whether the treaty overrode the State law, or the State law the treaty, because, after looking carefully at the subject, he thought a good deal might be said in favour of the view taken by South Carolina, while strong arguments might also be adduced on the other side. However that might be, the British Consul at Charleston in 1850, addressed a communication to the Legislature of South Carolina on the subject. A committee was appointed to consider it, and that committee reported against any modification of the municipal law, though certain hints were thrown out at the same time that it was possible the law might be altered at some future period. Affairs stood in that position when, in 1852, a coloured seaman (Manual Pereira), belonging to a vessel driven into Charleston, the port of South Carolina, was taken by the sheriff from his ship, and detained in gaol. A motion was immediately made in one of the courts of that place, on the part of the British Consul, for a writ of Habeas Corpus; but the application was rejected, and the Governor of the State went the length of declaring that he would have instructed the sheriff, under any circumstances, not to give up his prisoner. These proceedings, as a matter of course, led to much excitement, and he believed a great deal of ill blood was excited on the occasion. However, the British Consul thought it his duty to proceed in his opposition to the State
140
law; and accordingly he took advantage of the case of a coloured seaman, named Roberts, to bring the question before the Supreme Courts of the United States, actually serving a writ of trespass and false imprisonment upon the sheriff. There the case stood at present. No further steps had been taken in the matter. He was sorry to say that a great deal of bad feeling had been shown in Charleston towards the British Consul, from whose proceedings no result had come, nor was likely to come, and, indeed, it was much more probable that a remedy would be applied by South Carolina itself, than that the Federal Government would endeavour to force its opinion upon that State. He was induced to say so from a passage in one of the reports of the Governor of South Carolina on the subject, where he recommended, should the question be fairly raised, a modification of the law, so as to require captains to confine their coloured seamen to their vessels, and to prevent their landing without a ticket of leave from the sheriff. He (Lord Beaumont) believed a modification to that extent would remove the grievance complained of at all events it would be a step in the right direction. He should be sorry to see instructions sent out likely to cause any further irritation, without leading to positive good; and he trusted our Consul would be instructed not to let the subject drop, hut attempt to induce the Legislature of South Carolina to take the initiative in correcting the evil. He trusted they would, of their wish and inclination, commence a modification of this severe law, rather than leave us to obtain it from them as a right, and bring the action of the Federal Government to bear upon the Government of South Carolina. Having placed the matter fairly before their Lordships, he would conclude by moving for a copy of the correspondence which had taken place on the subject.
The EARL of CLARENDONsaid, that he had listened with the utmost attention to the speech of his noble Friend, and that he felt extremely glad that the subject with which it dealt had been brought before their Lordships with so much moderation, and which certainly contrasted in a striking manner with the extreme irritation which the subject had excited in the State referred to. He believed his noble Friend had in that speech truly described the state of the law which now prevailed in the State of South Carolina. Since his noble Friend

141
had given notice of his Motion, he (the Earl of Clarendon) had looked over the correspondence to which it referred. That correspondence was very voluminous, since it extended over a period of 30 years, and exhibited not only the great difficulties which this country had to contend with in connexion with the subject to which it related, but also the very considerable difficulties by which that subject was in other respects surrounded. The principal difficulty which lay in the way of a satisfactory settlement of the question was the tenor of the treaty of commerce between this country and the United States. By that treaty the utmost freedom of commercial intercourse between the two countries had been stipulated for and guaranteed; but in addition to that stipulation there was a provision which had reference to the particular laws of the individual States. Under that proviso it was that South Carolina insisted upon the maintenance of the municipal law to which his noble Friend had alluded; and he (the Earl of Clarendon) had no hesitation in saying that the question had been referred to different gentlemen who had acted as the law advisers of the Crown, and that the opinion of those gentlemen was, that, however unjustifiable the present law might be, the Government of this country; had no right to demand its supercession under the treaty, nor to seek for compensation for the injuries which might be inflicted upon Her Majesty's subjects under its operation. Remonstrances, however, had been used upon the subject, and an appeal had been made to the Government of the United States, not only with respect to what Her Majesty's Ministers considered the unconstitutional character of the existing law, but also with regard to the spirit of the treaties which subsisted between the two countries. The views of Her Majesty's Government upon the subject were shared by the Government of the United States, and by many of the highest constitutional and legal authorities of that country; and upon one occasion a Judge of the Supreme Court in that country had pronounced the law unconstitutional and unjust. The same opinion had been given in this respect by the Attorney General of the United States; and a distinct representation had been made by the Federal Government to the Legislature of South Carolina of the unconstitutional and severe character of the law. That representation had been met, upon the part of the Legislature of South Carolina, by a
142
message so violent in its nature, and by a resolution so angry and defiant, that a stop had been put to the renewal of all interference in the matter upon the part of the United States Government. The British Minister at Washington had subsequently protested against the law being put into operation; but he had been told by the Foreign Secretary of the United States that if England insisted upon the abrogation of the law, the United States Government would have no other course left open to them, but to give notice determining the treaty itself. The British Consul in South Carolina had been instructed to bring an action for false imprisonment against the authorities in that State, in order to test the validity of the law; but the result of the efforts which he had made had seemed only to demonstrate that the more we exerted ourselves to get rid of that law, the more determined did the Legislature of South Carolina appear to be to maintain it. Great Britain, he might add, was not the only sufferer by this law of South Carolina, which applied equally to all the States of the Union; and he (the Earl of Clarendon) learned from a despatch which had been written by Sir Henry Bulwer in the year 1850, that the inhabitants of the State of Massachusetts had complained of the existence of the law in question, but that they had never been able to make the least way in redressing it. He felt that so far as the interference of this country was concerned, there was still less chance of bringing the matter to a satisfactory conclusion, because such interference upon the part of England with the internal affairs of another State, would naturally be looked upon with a jealous eye. He was quite willing to give the papers moved for; but he must, in doing so, express the hope that they would not lead to any irritating discussions, or to the treatment of the matter by the press in a tone of which some persons seemed to be apprehensive. The grievance was one which would not be remedied by discussions in this country. The proper mode of proceeding would be by remonstrances, by timely and discreet representations by our agents on the spot, and by manifesting our readiness to give such guarantees as should secure the State of South Carolina from any disturbance of its public and social tranquillity. By such means he still trusted that we should be able to obtain from South Carolina the same modification—abrogation he did not expect—of the law which had been con-

143
ceded by North Carolina and by Louisiana, without the least inconvenience to these States.
On Question, agreed to.
House adjourned to Thursday next.