Sitting of 18 May 1809

MONUMENT TO CAPT. HARDINGE.
Mr. R. Ward, in rising to address the house
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on this subject, moved, that the entry on the Journals respecting a motion to the same effect as the present be read. (Here the Clerk read from the Journals an account of the debate which ensued upon the motion for erecting a monument to capt. Faulkner, of the Blanche, frigate, who fell in action in the year 1795. Upon the ground of a claim from general services the motion was rejected; but upon being amended by stating his services as performed towards the islands of Martinique and Guadaloupe, it was agreed to). The hon. gent, said, that on this occasion he rose to move a great national honour to a great national hero. He trusted no one would impute to him any affectation of doing himself honour by coming forward as he did. With reluctance he undertook the task, and was only led to do so from the adventitious circumstances of situation. He felt it here necessary to call the attention of the house to the gallant services of capt. Hardinge. Though he was but a stripling in years, yet he was a veteran in achievements. His short career was marked by the most brilliant exploits, and in every service and upon every occasion he met with merited approbation from his commanders, He had served under that distinguished officer sir S. Smith, at the siege of Acre. He next served with capt. Miller, and was reserved by fate for more important services to his country at the time that brave officer was blown up in his vessel. The next situation in which capt. Hardinge would be found was the command of a gun-boat on the coast of Egypt, and here his peculiar merits acquired for him the reward of a gold medal. After this he was raised to the command of the Terror bomb, at the bombardment of Granville, on the coast of France. To his zeal and ability on this occasion sir J. Saumarez bore the most ample testimony in the report which he made of it. The vessel in which he served having been rendered unfit by the damages she received, capt. Hardinge was next promoted to the Scorpion sloop of war. In this vessel he acquired considerable fame by cutting out from a port on the coast of Holland the Atalanta gun-brig, a vessel of far superior force. This service was the more brilliant as it was performed by his boats only. And here it would be an act of injustice to pass over the merits of capt. Perry, who assisted in the enterprize, having put himself under the command of capt. Hardinge. The modesty of capt.

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Hardinge, in his account of this transaction, did not form the least worthy trait in it. But his commanding officer (lord Keith) did not however overlook the service performed, because it was modestly represented, and accordingly it would be found that in his dispatch on that occasion he gave full scope to the dictates of his feeling, in the representation which he made of the service performed by captains Hardinge and Perry. There was another circumstance in this transaction which the hon. gent, could not help mentioning. It seems that the Dutch captain having defended with conduct and valour his vessel to the last extremity, refused every proffer of safety which was made to him, and died like a hero in the discharge of his duty. Such was the assimilation of feeling, that the gallant capt. Hardinge could never mention this occurrence without bursting into tears. The subsequent, and unfortunately for his country, the last service performed by this brave officer, was when in command of the San Fiorenzo frigate, he was placed under the orders of sir Edward Pellew in the Indian seas, for the protection of our commerce in that quarter. The enemy had employed in those seas for a long time, a class of frigates whose object was not so much directed to special hostile encounters with the same description of force, as to a general system of commercial depredation. Of these frigates there was one (La Piedmoutaise) mounting fifty guns, and furnished with a complement of French sailors and Lascars, not less than 566. She was in fact the terror of those seas. In the month of March, 1808, the good fortune of capt. Hardinge brought him near this vessel, in his ship of a far inferior force, mounting no more than 38 guns, and manned with no more than 150 men. The action which ensued was not one in which either victory or death was the consequence of a moment, for it lasted three days. On the first day, in consequence of her damages, the ship under capt. Hardinge's command was obliged to fall back in order to repair. The Frenchman did the same, and took that occasion to sheer off". On other minds this circumstance may have operated far differently than it did on the mind of capt. Hardinge. After having refitted, he proceeded not out of the enemy's course, but again came up with and engaged him. The result of this action deprived the service of a most gallant and distinguished officer. The hon.
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gent. could not here, he said, neglect to pay the deserved tribute to the exertions of lieut. Dawson, who seconded with vigour and effect the operations of his lamented officer. The hon. gent, felt that the address he was now making was directed to an assembly composed of those who were acquainted with the acts by which a gratitude for and admiration of such acts were to be created in posterity. They were men who knew how to appreciate the incentives to casting off a life of luxurious ease, and embracing the rugged duties of a life devoted to the service. It was well known also what feelings were entertained on this head at periods of the remotest antiquity.—After having read the account of this last gallant exploit performed by capt. Hardinge, as transmitted officially by sir Edward Pellew, the hon. gent, called the attention of the house to the request mad* by sir J. Mackenzie, a man, who well knew how to estimate true glory and great achievements; that the inhabitants of Bombay would erect a monument to the gallant capt. Hardinge. He also noticed the letter of gen. Maitland, governor of Ceylon, which spoke in the strongest commendatory terms of the services performed by the fallen hero. Those testimonials must be highly pleasing to the friends of capt. Hardinge. Admiral Tyler stated his ardent wish that a monument should be erected to the memory of this distinguished officer. A great and illustrious commander (earl St. Vincent), in his letter on this occasion, broke out into most rapturous expressions on the bravery and conduct of so young a man. The hon. gent. felt it necessary to state what he did, as some dissent to his proposition might arise. He trusted, however, that if any dissent did take place, it would be only created by an adherence to the cold forms of office. It would be seen that capt. Faulkner was rewarded for a single action. It was not his wish by extending the grant of honours by any means to cheapen them.—The hon. gent, concluded by moving, "That an humble Address be presented to his majesty, praying that he would be graciously pleased to direct that a monument be erected in the cathedral church of St. Paul, London, to the memory of capt. George Nicholas Hardinge, of the San Fiorenzo frigate, as a reward for ihe services performed by him in the course of a short but gallant life, and particularly for the protection he afforded to the Indian trade, in successive Actions with a

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vessel of superior force, in the month, of March 1808; and his majesty's faithful Commons will make good the expellees attendant on the same."
Mr. Windhamfelt himself under the necessity, however reluctantly, of opposing the motion; because, if once the principle were to grow into practice of voting a monument to every officer whose valour might lead to a loss of his life in actions with single ships or frigates, not only Would the claims upon the country become innumerable (such was the prominent valour of our naval officers), but the thing from its frequency would cease to be, what it now was, an honourable distinction, the very rarity of which constituted its chief value. This was not the kind of case in which the country had been accustomed to vote monuments; it was not that great and signal victory of vast national importance, by which the gratitude and the enthusiasm of the country were wound up to such a pitch, as in fact to run before the house in the wish of distinguishing the memory of the deceased.
Lord Castlereaghsaid, that on occasions such as the present, it had been the invariable practice of parliament to vote its thanks to those who distinguished themselves in the service. There was a class of actions which he said was not at all inferior in importance to those of a general nature, he meant actions between individual vessels. There was no species of merit greater than that of individuals, on such occasions. In the present instance, death ensued to the individual, but it was death connected with victory, and met by the opposition of an inferior to a superior force. The principle of the present motion he should consider not only as fair, but extremely advantageous to the interests of the navy. Had it not been brought forward by his hon. friend, he would himself most eagerly have undertaken it.
Mr. Wilberforceconcurred in the original motion, and thought the country had no ground for disagreeable sensations, in the apprehension of such a consequence as that predicted by the right hon. gent.; namely, that if we were to vote too frequently distinctions of this sort, we were in danger of being overwhelmed with monuments to the brave, whose valour would call for such honourable distinction in death. On the contrary, he feared we were rather too niggardly of our honourable distinctions to the army and navy,
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and he only regretted that the plan for stablishing distinct orders of honour in the navy, which was arranged, digested, and every thing but adopted by his late right hon. friend (Mr. Pitt) previous to his death, was not now in operation.
Mr. W. Adamfollowed upon the same side, and said, that it had been admitted that since the year 1760, there had been but four instances of the same service. Had captain Hardinge survived that glorious victory, his majesty no doubt would have made him an object of the royal favour: as he had fallen, that house ought not to refuse him the only mark of public gratitude, that they now could confer upon his memory.
Mr. Marryatthought, that if they were to erect monuments to every heroic officer that fell in the service, they would have to raise buildings, in the first instance, to contain their monuments.
Mr. C. Wynnprofessed as high a sense of the merits of captain Hardinge, as any gentlemen who heard him; but he thought it necessary to draw some line of distinction. Captain Cook had got no monument; captain Farmer, who was blown up in his ship, the Quebec, disdaining to quit his post, though inevitable death was the result, had got no monument. He could not agree to this motion, though at the same time he did not wish to give it a direct negative. He should therefore move the previous question.
Mr. Longsupported the original motion.
Mr. Curwenthought it would be cruel to stop the practice in this particular case. The respect of the country to their memories was the only reward which the brave men who fell in its defence could receive.
Mr. W. Smithdid not conceive by the present vote, that the value of the honour would be at all diminished. He thought the monument ought to be voted, and that unanimously and honourably.
Admiral Markhambore his testimony to the particular merits of captain Hardinge. After a few words from sir C. Pole, and Mr. Whitbread, the previous question was negatived without a division, and the vote for the monument was carried nem. con.

DIVORCE BILLS.
Lord Porchesterrose to move, that a committee be appointed to inspect the Journals of the house of lords as far as related to any Standing Order with respect to the introduction of Divorce Bills into the upper house. He commented at some length on the hard-

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ship of prohibiting any Divorce Bill from being admitted into the house of lords, unless such bill contained a clause prohibiting the intermarriage of the criminal parties. This, the noble lord contended, was calling upon an individual to mix and confound his own particular interests with an alledged great public object; it was violating that just principle of regulation observed in the lower house, by which a certain time was appropriated to private business, and the rest to public. He thought, too, that it was a measure of unparalleled cruelty to some individuals, who would be thereby deprived of all hope, and abandoned to a life of despair, exclusion and penance, that the hardiest of their seducers would shrink from the bare contemplation of; besides that, there was in the nature of such an Order an unwarrantable interference with the privileges of that house. He concluded by moving, "That a Committee be appointed to inspect the Lords' Journals for any Standing Order adopted in the present session on the subject of Divorce Bills."
The Chancellor of the Exchequercould not follow the noble lord's argument to the conclusion which had been drawn from it. The alarm which the noble lord desired to excite on this subject appeared to him most unfounded. There could be no doubt that the lords had the power to introduce such a clause into a bill, without any Standing Order; and this house had nothing further to do with it than to canvass the propriety of the clause when it came up in any bill. The order, he said, did not provide that the bill should not go out of the house without such a clause; but went merely to regulate the mode in which Divorce Bills should be introduced. The lords had nothing more than abridge their own privileges to a certain extent. Both houses were perfectly competent to regulate their own modes of proceeding. They had nothing to do with bills till they came before them. This was a regulation binding merely upon the lords themselves. He therefore objected to the motion.
Mr. Ponsonbythought the stile of argument of the right hon. gent, very extraordinary. He said that it was a regulation as to the introduction of bills; but the meaning was, that no bill should go out of the house of lords without such a clause. The object was, to compel this house either to do individual injustice by rejecting a bill, or to pass it with this clause. This,
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therefore, was an attempt to force legislation on the house of commons. It was a general measure of legislation; and an attempt to force this house to legislate according to the views of the house of lords. This was a most unconstitutional proceeding, highly derogatory to the other branches of parliament, and ought to be resented by this house.
Mr. Windhamcontended, that the motion ought to be adopted, in order to see what the exact nature of the order was. If it should be found that it had any effect on the privileges of this house, then this house would have to consider how it should defend itself. He argued strongly upon the unfairness of not being permitted to discuss any individual case, without being shackled by such a clause as this. No evil could arise from an inquiry into the nature of the case; and there was sufficient ground to authorize such an inquiry.
Mr. Bathurstsaid, that the house would have to discuss every bill on its own merits. If the clause in question should be rejected, than the lords themselves, would have to consider whether they would sacrifice the principle or the views of the parties. The inconvenience rested with the lords themselves, and not with this house.
Mr. C. Wynnobserved, that while this was confined to bills originating in the house of lords, he saw no objection to it. Both houses had a right to regulate its own proceedings. But these bills might originate in this house; and the words of the order were, that the lords would not entertain any bill without such a clause. It was possible, therefore, that they might apply to bills sent from this house. For this reason he would vote for the motion.
Sir S. Romillycontended, that the spirit of the order must be, that the lords would not in any way entertain a bill of Divorce without such a clause. To prove this, he quoted the rules with respect to Naturalization Bills. If it could be supposed that this was the meaning of the order, then it was a most serious measure, and ought to be examined. The difficulty on this house would be extreme, as they would be called upon in every particular case, to beware, because, if they rejected this clause the bill would be thrown out. He was surprised at the objection of his right hon. friend the Chancellor of the Exchequer. The object was to see what the order was. At present it appeared to be an attempt

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by the house of lords to legislate on an important point, without the concurrence of the other branches. The house was highly obliged to the noble lord who was so careful of its privileges, when by the course of nature he had a prospect of spending so great a portion of his life in the other house.
Mr. H. Smithdeprecated the injury to which individual parties might be subject by a difference of opinion between the two houses of parliament on an abstract question. With a view of giving an opportunity for an assimilation of their sentiments, he should vote for the motion of the noble lord.
Mr. Hawkins Browneobserved, that although the lords, by their Standing Order, declared that they would not receive a Divorce Bill without a clause to prevent the guilty parties from intermarrying, they had not declared that they would not receive such a bill from the house of commons. It was fairly to be presumed that they meant to confine the influence of their Order to bills originating in their own house. Conceiving that the noble lord had not made out any breach of the privileges of the house, as having been attempted by the lords, he should give his negative to the motion.
Mr. Barhamcould not conceive that the lords would have been so foolish as to make a Standing Order without intending that it should have its effect. That purposed effect appeared to him evidently to be, that no Divorce Bill should pass them without such a clause as the one alluded to. If, however, their object were confined to prevent the introduction merely of a Divorce Bill, without the clause in question, till he conceived that the step taken by them was highly objectionable. Adverting to the principle of the standing order itself, he expressed his disapprobation of it, and his conviction that it would not contribute to the cause of morality.

After a short reply from lord Porchester, and a few words from Mr. G. Johnstone in favour of the motion, a division took place, For the motion

43

Against it

67

Majority against the Committee

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BILL FOR PREVENTING SEDITIOUS MEETINGS.
The Attorney-General rose, in pursuance of his notice, to move for leave to bring in a bill to amend the Act of the 39th of Geo. 3, which respected Seditious and Treasonable Societies. His object would be to strike out of that act certain
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words which referred to the act of the 36th George 3, respecting houses where debating societies were held, on subjects therein specified, and where money was received at the doors without a licence; which houses were declared disorderly.
Mr. Ponsonbysupposed that the hon. and learned gentleman would not have brought forward a proposition of this nature without having some good end in view; although he professed himself perfectly at a loss to comprehend his meaning, and requested he would have the goodness, for the benefit of himself and his friends near him, to be a little more explicit.
The Attorney Generalentered into a more detailed explanation of his object. By the act of the 36th of George 3, it had been enacted, that houses where debating societies were held on certain subjects therein described, and where money was received at the doors, should be licenced; and that those houses in which such debates were held, and where money was received at the doors, without a licence, should be punished as disorderly. By the act of 39 Geo. 3, it was enacted, that where debating societies of the description alluded to were held, and money received, and where the houses in which they were held had no licence, those houses should be deemed disorderly, "within the meaning of the 30th of George 3."—Now, if the 30th of George 3, had created the offence of disorderly houses, then the signification of those words would have been plain, and it would have only been necessary to refer to the 36th for a definition of the term; but that was not the case. The 39th of George 3, had full operation, as declaring what was disorderly, and what was punishable, although the 36th were out of the case. But as he understood that by the introduction of the words referring to the 39th, doubts had arisen with respect to the meaning of the 39th, his object was to repeat those words, and leave the 39th without them.
Mr. Whitbreadwould have an opportunity, on the second reading, of stating his opinion of the bill. At the same time he must observe, that he thought the honourable and learned gentleman must have some cases to state to the house as the ground of his motion, or he would not, after the lapse often years, touch so delicate a question. He did not mean to dissent from the motion for bringing in the bill; but he begged not to be understood as

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precluded by that from opposing the measure in any future stage, if it should appear to him to be objectionable.—Leave was then given to bring in the bill.

MR. CURWEN'S REFORM BILL.
Mr. Curwenmoved the second reading of the Seats in Parliament Bill. The bill was then read a second time, and on the question that it be committed,
The Chancellor of the Exchequerstated, that he thought it right to take that opportunity of mentioning to the hon. gentleman, and to the house, the objections which pressed upon his mind as to this bill. He should not say that these objections might not be obviated; but he felt it desirable to state them in that instance, in order to give gentlemen an opportunity of turning them in their minds, with a view to obviate them if possible. His first objection applied to the manner in which the bill described the offence; his next objection was, to the manner in which the offence was to be punished; and his third objection was against the manner, in which by a precautionary provision, it was proposed to prevent the recurrence of the offence. If the bill were to pass in its then form, it would comprehend a variety both of acts and conduct, which he was persuaded had never been in contemplation of the honourable framer. It would apply not only to the sale of seats in that house, but to the sale of property or interests, which might give influence in the return of members to that house. If this bill were to pass, no burgage tenures could be sold, nor any property that would carry with it influence at an election, without incurring the penalties of the bill. This was an insurmountable objection to it in its present form. Besides, it would act prospectively and retrospectively, directly and indirectly, so that no man who had a vote at an election, could at any time receive a favour from a member. This was an operation of the bill, which he was convinced had never entered into the mind of the honourable gentleman. He had himself turned his thoughts to the bill, and discovered difficulties which could not be obviated without getting rid of several clauses which the honourable member wished to retain. It was not a satisfactory answer to say that a jury would not construe the act to extend to such cases as were not obviously intended to bias the particular election. The house should not leave that to a jury to decide, and besides it was highly ob-
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jectionable to legislate penalty without a precise and definite exactment. With respect to the manner in which the punishment was to be regulated, he could not conceive, until the blanks should be filled up, how that was to be settled; whether the question was to be sent to the courts of law, without any limitation of time, and not referred to a committee of that house. But he doubted, whether that house would consent, under any circumstances, to commit questions of that description concerning the validity of seats within its walls, to the jurisdiction of the courts of common law. His next objection was to the oath. If an oath was to be introduced, it ought to be precise, so that what members were to swear should be clearly and distinctly known, and he was sure the house would not admit any other form into the bill. What would have been the situation of members under the treating act, if there had been such an oath as first proposed in this bill, when what one committee decided not to be an offence against the act, another committee declared to be an offence, so that if the oath were to have been imposed, the same act would in one case prove perjury, which in another would be wholly innocent. He had thought it incumbent upon him to state these objections to the house, not with any idea of giving opposition to the bill, but for the purpose of giving gentlemen an opportunity of obviating them if possible.
Mr. Curwencongratulated the house that the objections of the right hon. gent, were not to the principle of the bill. What the right hon. gent. said, had certainly considerable weight with him. It was never in his intention to destroy the right of disposing of burgage tenure, because that would lead to the destruction of the right to dispose of freeholds. But when the bill should come into the committee, he hoped that means would be devised to get rid of all the difficulties stated by the right hon. gent. As to the Oath, he thought it ought not to be imposed in the detail, if not in the wholesale. At all events, nothing could tend so much to set that house right with the public, as to shew that no persons could get improperly into it. If parliament did not reform itself, it would, according to the saying of a great man, be reformed with a vengeance from without. When abuses were proved to exist, it would add to the dissatisfaction of the people, if the necessary remedies should not be applied to correct them.
Mr. Windhamthought, that his honourable friend, when his bill had been suffered to take its chance for a second reading, had no occasion to make the harangue he had delivered, or to utter the menaces against that house with which his speech concluded. He had himself determined to remain till the question of the second reading of this bill, though he was jealous of its progress. He would not admit that parliament had lost the confidence of the public, at least of the thinking part of the public; and he did not allow that the corruptions alluded to by his hon. friend existed, at any rate not in the sense in which his hon. friend said they did. He had risen only to protest against the harangue of his hon. friend, and to lay in his claim to an unfettered exercise of his judgment upon the merits of his bill.
Mr. Bathurstthought, that when the house had agreed to the second reading, it sanctioned the principle of the bill; and that they had a right to know from his right hon. friends, whether they thought the abuses proposed to be remedied by this bill were such as ought to be corrected. He considered the house as placed in a situation in which it had never been before. It was new to parliament to have the practices proposed to be corrected by this bill admitted within that house. This bill was not to interfere with the sale of property; neither would it touch, in the remotest degree, the question respecting a reform in the representation in that house. It was intended to correct an evil acknowledged to exist, and upon which the house had a right to expect an opinion from his majesty's ministers. As to the first objection of his right hon. friend, it might be got over by leaving out a few words. The other objections also, he was of opinion, might be got rid of in the committee.
Mr. Dennis Brownewas of opinion that parliament had not lost the confidence of the public; and if it had, this bill was not calculated to retrieve it, for it had not met with the approbation of the Solon and Lycurgus of the Crown and Anchor.
Mr. Curwen, in explanation, stated, that he had not been present at the meeting at the Crown and Anchor.
Lord Folkestonedid not think it necessary to argue with the right hon. gent, whether the house had or had not lost the confidence of the country. The right hon. gent, had not lately been found in attendance on the debates of the house, and probably from that circumstance, and
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from his having spent more of his time, among the public, he esteemed himself better qualified to speak as to the degree of confidence the public reposed in that house. The light hon. gent. probably knew that the house, by the votes they had lately come to, had procured universal approbation and applause, and stood higher than it had ever done at any former period in the public estimation. His lordship doubted not the right hon. gent. had found all this to be the case, during the time he had been absent from the house. He (lord Folkestone) however would tell him what had passed here during the interval of his absence. A question had been brought forward, charging some of his majesty's ministers with bargaining for and selling Seats in that house; and so far from being denied, the offence was endeavoured to be palliated and extenuated. Farther, various, members professed their belief of the existence of a train of abuses of the kind, and the investigation into them was not gone into, because it was even held out that all the public men in the house would be found to have been implicated. If the right hon. gent. had beard these things, and moreover had been informed, that they were as clear and notorious as the sun at noon day, the noble lord left it to him to say, if the present bill was the effect of popular clamour.
Mr. Lockhartshould object to this measure if it were intended to stop here, and allow the rotten boroughs to be held by their present tenures. He had always been of opinion that a moderate reform was necessary.
Mr. Ponsonbyunderstood the discussion of the principle of the bill to have been postponed till the question for the Speaker's leaving the chair. Many members, he was convinced, were now absent on that understanding.
The bill was then ordered to be committed for to-morrow.

LOTTERIES.
Mr. Wharton brought up the Report of the Committee of Ways and Means of yesterday.
Mr. Whitbreadrestated his objections to Lotteries, and declared his determination to take the sense of the house on the Resolution on this subject. A Committee had been appointed to consider the subject, and after a laborious investigation their report had been unfavourable. There was an argument advanced on the other side, that such was the spirit of gambling existing in the country, that whether parliament

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sanctioned it or not, it must produce the effect complained of. For his part, he thought that as far as this spirit of gambling was directed to Lotteries, parliament could easily devise a remedy, as they themselves were the cause of the mischief. It was the government themselves who encouraged the spirit of adventure in lotteries, which had produced all the evils stated in the Report of the Committee. Nothing could be more injurious in a country where habits of economy and sober industry were instilled into young people as the sure means of arriving at wealth, than to have in view a scheme where wealth was not to be earned by labour or industry; but to come merely from fortune. It must be evident to ministers that no real wealth was produced to the country by those adventurers in the Lottery. In a sober and religious view of the subject he thought it most improper that government should countenance the distribution of wealth in any other manner than as the reward of merit. The government not only held out encouragement to the idle to hope for wealth without labour, but also held out encouragement to part with all they had, with all that honestly or dishonestly they could appropriate, in order to be in fortune's way. The many evils that resulted from lotteries were sufficiently apparent, but the little good that was to be derived from them he should now take into his consideration. When it was proposed that 300,000 l. should be raised in the way of lottery, it must be considered, that a million, or at least six hundred thousand pounds were actually taken out of the pockets of the public, and that in the most distressing way that, was possible. In that point of view alone the tax would be inexpedient, if it were not productive of vice and immorality; but it would be observed that a very great degree of vice and immorality were always produced by the lottery, in the encouragement they gave to insurance, and other speculations contrary to law. This was a defect which Mr. Pitt was never able to remedy, and he could tell the right hon. the Chancellor of the Exchequer, that to his certain knowledge there were persons in this town who would outstrip him in calculations to evade the penalties of any legislative provisions he could propose. If the Chancellor of the Exchequer would but put off his lottery scheme for a single year, he would venture to say, that it would be easy to provide for any defi-
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ciency that might be occasioned by it. When it was recollected, that our whole expence was near seventy millions, it could not be supposed that a deficiency of 300,000 l. could be seriously felt, or if it was felt, it could be easily supplied from some source that did not affect the morals of the country. There were now many widows and orphans who bewailed the ruin that was brought upon them by the lottery. Without expatiating on the quality of vice that was produced, on the number of servants and apprentices who were tempted to rob their masters, on the number of fathers of families who were induced to spend upon wild speculations the fund which ought to have provided for their children; he would say, that there was a sufficient quantity of vice and immorality proved to result from the lottery, that the right hon. gent. should decline to propose such a measure. There was a society existing for the Suppression of Vice, and he understood that one of the rules of this society was, that no man should be a suppressor of vice unless he was a member of the established church. This regulation would certainly be highly relished by the No-Popery gentlemen of the present administration; but if they were to set their faces against minor offences, and yet countenance the lottery, it would be like casting out seven devils from a man, when a legion of other devils were immediately to enter. He believed that there was no sin pointed at in the Decalogue which was not encouraged by the lottery. It was a speculation which always began in covetousness, and often led to theft. The instances were not new, where murders, and particularly self murder, had been instigated by losses in the lottery. A person had been introduced to him that was said to he perfectly acquainted with lotteries. The man, however, would not confess to him that he knew any thing about insurances, although those that were acquainted with him declared, that he had been three times ruined in the lottery. The lower class of the people were dreadfully deluded by such men as publicans and waiters in public houses, who were always ready to persuade the idle to adventure in the lottery. The profanation of the Sabbath, and many other evils much to be regretted, often proceeded from the same source. Besides these publicans and their waiters, there were dreamers of dreams and calculators of horoscopes, who also deluded the ignorant with respect to lotteries. The whole

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gain that was stated as a balance for so much mischief, was the 300,000 l. that was to be gained by the lottery. Now, he earnestly recommended that this sum should be left unprovided for until the end of the year, and if it were then found that there was a deficiency, other means could be taken to provide for it. There was no possibility of remedying the evils of lotteries. It might be said that insurances might be stopped by cunning informers, on the principle of "set a thief to catch a thief," but in the case of lotteries, this maxim did not hold, for from the highest to the lowest, all were concerned in the delusive scheme. If one walked in the public streets, we were sure to meet lottery-offices that called themselves peculiarly lucky, and enticed the ignorant to lay out their money with them. This, and all the other artifices by which the public were entrapped, appeared to him to be evils far beyond all the good that lotteries produced. He should therefore oppose, this Resolution.
Sir T. Turtonreplied to the arguments of the last speaker. He did not conceive him warranted, on good grounds, to state that all the ills he detailed arose from the lottery. Neither was he right in stating the sum accruing to government, from the lottery, at 300,000 l. as with the duties on stamps, &c. it amounted to 700,000 l. All the evils mentioned were to be traced to insurances, and these the hon. gent. would find from his own authorities had been almost done away within the last few years.
Mr. Windhamsaid he did not wish to detain the house by going into a detail of the measure, but he believed it to be a most scandalous and injurious way of raising money upon the public. That a lottery engendered vice no man could deny; the seductions were strong and numerous, and calculated to catch the lower orders of the people, whose minds were as weak as their passions were strong. A guinea for a shilling, and twenty thousand pounds for twenty were allurements they could not with stand. His feeling had ever been uniform on the subject, and he thought the evil so great that nothing but the necessities of the state could justify the resorting to lotteries. If it were at an earlier period of the practice, he should certainly vote against it, but as it was now become so interwoven with the system of finance, he saw no particular advantage in opposing it at present.
The Chancellor of the Exchequerdefended
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the measure, and said the hon. gent. who opposed it (Mr. Whitbread) seemed to argue, that if this species of gambling was put an end to, it would stop all kind of vice. This was, however, straining the argument much further than it would bear. The circumstances of misery which had been alluded to, arose not out of lotteries, but from insurances, and could never be the effect even of insurance if the lottery-were drawn in one day. That end he thought he could effect, and the course he proposed to follow was to confine the drawing to that period. The Little Goes were much more mischievous than the lottery, and if that was given up those would be greatly multiplied. He had considered the Report of the Committee with great attention, and he could by no means see the mischievous results which the hon. gent. who opposed the resolution seemed always to have in his view.
Mr. Wilberforceconsidered the Lottery peculiarly objectionable, because it diffused a spirit of gambling among the people, while it produced no benefit to the public treasury in any degree commensurate to the injury it inflicted upon the interest of the community, by the number of victims which it produced; by the crowds which it deprived of the means, and detached from the pursuit of industry. With regard to the argument that gambling would still go on, if this licensed course were put an end to, and therefore that it was better to continue the Lottery, and thus place the system under certain regulations, it appeared to be quite of the same nature, and equally fallacious with the reasons advanced to palliate the Slave Trade. For there it was urged, that if we discontinued the traffic, that it would be prosecuted by others without the mitigation of our regulated system. But such pretences could never reconcile his mind to the existence of a law for the toleration of that which was obviously wrong.
Sir S. Romillywould not have obtruded himself on their notice at that late hour, had he not thought the arguments of his right hon. friend opposite, sophisticated and fallacious. The right hon. gent. had stated, that if Lotteries were abolished, Little Goes would still exist, and cause all those evils to fall on the lower orders, which were deplored as resulting from State Lotteries. Had not public Lotteries been countenanced, Little Ones would never have been so general. The latter, however, were only sought after by per-

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sons who had imbibed an itch for gaming. They did publicly hold out a temptation to seduce the honest and industrious from the paths of rectitude and sobriety, as is common with every State Lottery.
Mr. Bahingtonmade a few remarks on the bad effects of Lotteries.—After which the house divided, when the numbers appeared,

For Lotteries

90

Against them

36

Majority in favour of Lotteries

54

WRIT OF ERROR IN THE CASE OF WHITE AND HAHT.
Their lordships met at two o'clock, and most of the Judges attended.
The Solicitor General(Sir Thomas Plomer), spoke for about two hours in defence of the right of the court of King's Bench to pronounce such a sentence as it had done in the case of White and Hart, the editor and printer of the weekly newspaper called the "Independent Whig," who had been convicted of a libel on that court in the administration of justice. He contended that there was no foundation for the theory laid down by the learned gentleman (Mr. Clifford) on the other side, on Tuesday last, when he attempted to maintain that the court of King's Bench had no right to execute its sentence except in a gaol of the county wherein the offence was committed, a gaol in a county where the court actually sat, or their own peculiar gaol. He reviewed the historical part of that learned gentleman's speech, and examined his arguments as drawn from the instances of distant imprisonment in virtue of sentences passed by the court of Star Chamber. He controverted the statement that the court of Star Chamber owed its abolition in any principal degree to such punishments. The punishment which gave offence to parliament of this nature, was not one that sentenced to distant prisons (as they were called) in England, but, in the cases of Prynne, Bastwick, and others, who were sent to the islands of Jersey, Guernsey, and Scilly. It was not correct in historical fact, to say, that the abolition of the jurisdiction of that court was owing

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to such causes. There were other and weightier causes assigned for that measure. It was in point of fact, not the sentences passed, bat the whole proceedings of that court previous to the passing of such sentences, that alarmed the fears, awakened the jealousies, and procured the votes of parliament which effected its abolition. In support of his observations, he referred to lord Clarendon. He noticed some expressions which had fallen from the learned gentleman, respecting words used by Bastwick when undergoing his sentence in Palace-yard, and desired to know by what modern lights it was discovered that the sayings of a man in Palace-yard, addressed to the mob, were to be introduced by lawyers, or received in a grave and learned assembly as matter of illustration, reference, or precedent. He observed that the cases in which the learned gentleman attempted to make out any thing in his support were all anterior to the Revolution. That learned gentleman, he contended, was, from various instances, of which he cited several from which he endeavoured to shew the weakness of his arguments, erroneous in his notions respecting the right of the court of King's Bench, even previous to the era of the Revolution. There was much said about good times and bad times; but he should like to know into what political dictionary he was to look for a definition of which were the good times, and which were the bad times. There was always enough of that sort of argument to be met with whenever legal precedents were resorted to, whatever be the nature and necessity of the case. Coming down, however, to the period of the Revolution, he believed it would be obvious that in these best times, the mode of punishment now asserted to be illegal, was most frequently practised, and yet no doubts had then been raised as to its propriety and its legality. The learned solicitor then asserted that in the times of seven chief justices and twenty-two judges, he had not less than twenty-one cases in point to offer to the notice of their lordships. Beginning with lord chief justice. Holt, he continued with other instances from lord chief justice Parker, lord chief justice Mansfield, lord chief justice Kenyon, &c. up to the present time, during all which course so many excellent constitutional puisne judges had also sat on the bench in that high criminal court; in all which cases judgment had been given and executed wrongfully and illegally, if the judgment
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in the present case were to be deemed illegal. He dwelt particularly on several individual cases, especially one in which a man was found guilty of perjury before a committee of the house of commons on the Hindon election, and was sent to Hindon to be set upon the pillory in that place, where his example was likely to produce the most beneficial effects; and another, in which for a crime committed in Wales, the convicted person suffered at Kennington, in Surrey. He mentioned another case of a distant crime, for which the execution took place at St. Thomas Watering, Kent, and an old instance of a man sent to Portsmouth to be executed for desertion or cowardice, because that was the place where the execution of that sentence would probably be most exemplary and beneficial. He recited all the cases mentioned on Tuesday by Mr. Attorney General, and contended for the strict applicability of the more recent instances. But it was not merely on the cases he had cited, but on the general principles of the question that it ought to be decided. The court of King's Bench was the chief criminal court in the kingdom. It was so described by all the ancient, as well as modern lawyers of repute. It was so called by Coke, who stated its antiquity and its power. It had a great part of the ancient Justiciarum Angliæ. Its jurisdiction was called capitanus and generalis, to shew its universality and general superintendence. Hawkins, in his Pleas of the Crown (one of the best writers and authorities) had fully stated its extensive powers. It could, he contended, be restricted by none of those restrictions which confined the powers of inferior county courts. And were the decisions of the judges of such a court to be treated like the practices of the office of a secretary of state, and such arguments supported merely by what lord Camden had said of the usage of such offices; usage that had never before been made the subject of a solemn decision in a court of law, or by any arguments against the exploded practice of the exploded court of Star Chamber? In the many recent instances of imprisonment in distant gaols, was it to be believed, that the poverty of the individuals was the reason that prevented them from trying the merits of the practice of the judges? Had they not always sufficient legal assistance? Was there not a learned lord then at that bar of which he was the great ornament, who had so often exerted the greatest ele-

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quence the bar ever knew in defence of such individuals, and who left nothing undone that zeal and talents could effect? And would he have left a stone unturned on behalf of his clients, if he had conceived the possibility of attacking the legality of the sentences pronounced upon them? With respect to the demand of securities for good behaviour, the practice was old, and used in the best times. It was absurd to talk of its operating as a perpetual imprisonment. The prolongation of imprisonment would depend on the bad character of the individual, whose friends could not trust to his good behaviour, even after the experience that had been taught him by his confinement. As to the difficulty of understanding what was meant by good behaviour, he could not enter fully enough into the motives, views, and dispositions of certain persons to understand their difficulties on that subject. Good behaviour was what they might not easily understand, and cared little to learn. But they might easily enough learn it. There was a chapter in an elementary work, (sir William Blackstone's) that would explain to them what was necessary to know on that subject. All the instances he had noticed were viewed by the other side as too recent. They must go up to higher antiquity, they must mount up to the conquest or beyond that period. Every thing he and his learned friend had to offer was too young for the modern school, they would begin ab ovo. The learned gentleman must know that they could not investigate accurately the nature of the sentence. The whole object of this appeal was to depreciate the character of our courts. "Humanitas," for that was the name signed to a libellous letter in the "Independent Whig," had considered the popular notion concerning the administration of our laws by juries as too exalted. These lovers of freedom, in their new discoveries, attacked the institutions best calculated to preserve it. The object was only to raise a ferment in men's minds, to throw discredit upon the judges of the land, and to take from our wisest establishments that public respect in which they had been held, and which they so much deserved. But the decision of our chief courts of justice, and not the speech of a man to a mob in Palace-yard, would influence that decree which their lordships, he trusted, would then, in their wisdom, give. After a number of other remarks, the hon. gent, concluded.
Mr. Cliffordbegan his reply by animadverting on the conduct of the Attorney and Solicitor General, in the bad motives they had presumed, so liberally but so unjustly, to impute to those who had advised, or were concerned in bringing before their lordships the present appeal. He solemnly denied that it was done with any intention to depreciate the character of the judges of the court of King's Bench, at which bar he himself practised, and where the present judges, he was sure, if they had done any thing in the exercise of their judicial functions which was founded on a mistake, would be quite as willing to rectify that mistake, on being shewn the error, as any that had preceded them on that bench. He was confident that so far from this measure being considered as bearing the character attributed to it, it must be seen as one which gave the best and fairest opportunity for bringing this great question to an issue, by appealing to their lordships en dernier ressort. Nothing more was attempted to be done but what the law of the land authorised, and what the cases of the individuals required. While he should forbear from following the Attorney-General and the Solicitor-General in the field of declamation and invective into which they had wandered, he must express in some degree, his gratitude to them for the greater part of the speeches they had delivered. They put him in mind of a fable which was lately quoted by a person of eminent abilities and character, in noticing the speech of a learned gentleman in some other place; it was the fable of the ass, who went into a field attracted by a thistle, but who went round and round about the thistle, fearful of touching it. The learned gentlemen, in like manner, went about and about it, but were extremely shy of touching on the principle of the question then before their lordships. He begged to re-state to their lordships, that the constitutional and legal principle he laid down with respect to the power of the court of King's Bench, was this: that they had no right to send persons into imprisonment, in execution of a sentence pronounced by that court, except to the jail of the county where the offence was committed, the jail of the county where that court sat, or their own jail. He maintained that no case had been cited to destroy the truth of his positions. The exceptions were not such as could furnish a rule.

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Hardly a case could they bring to bear on the subject that had not occurred since the Revolution, and he contended that if it was not legal to do so previous to that event, that event could not possibly make it legal. He had been told to produce an enactment to make it illegal; but he asserted that the liberties of the subject depended not upon enactments. Enactments ought to be produced to him to shew him and their lordships that the practice had been rendered legal. This was the true principle of the constitution on such subjects. What he had said of the case of Bastwick had been observed upon with a triumphant sneer, as a foolish saying addressed to the people, who are styled by the learned gentleman the mob. But he had seen quoted the expression of an individual suffering a punishment as a precedent on a legal opinion. He had only quoted it as an illustration of what was the general feeling at that time, for it was scarcely in human nature that Bastwick should have used the expressions he did, had they been founded in falsehood, since his hearers must have very well known whether the practice was a new one or an old custom. Bastwick, in the spirit of those times, while he complained of the practice of sending persons to distant jails, attributed the origin of the practice to the Jesuits. As to the opinion of lord Clarendon, it should be recollected, that the fourth article of impeachment against that nobleman, stated this as one of his offences; and his lordship, long afterwards, in noticing this circumstance, states, that he thought it a hard case for him to be charged and tried for an offence which he had only been guilty of, in common with others of the privy council. This was that noble lord's excuse. Reverting to the case of the abolition of the Star Chamber, which was said by the learned gentlemen to have been occasioned by an objection to their proceedings, and not to their sentences, he shewed by a quotation from the parliamentary resolution, that the sentences, as well as the proceedings, formed the grounds of the abolition of that oppressive court. The authority he had quoted from lord Camden had been sneered at, the memory of that learned and venerable lord depreciated, and the hallowed precincts of the tomb violated by viperous slander. It was asked, What! would lord Camden have spoken of the decisions
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of the court of King's Bench, as he did of the usage of the Secretary of State's office? No! but the house of lords were then in the same situation relative to that court, as lord Camden, when a judge, was to the Secretary of State's office! With respect to the Hindon election, he stated a question that arose, respecting the payment of the expences, which the sheriff refused, and the court of King's Bench could not compel him to make them good. He wished the learned gentlemen to look into the general principles of our laws more accurately, they would see reasons for his view of the nature of county jails, and the authority of courts. These jails were the county jails; they were built, repaired, and maintained at their own expence. They were obliged to keep the prisoners, they were liable to fines for offences committed within their county limits, which it was presumed they ought to have prevented. All the jails were the king jails, it was perfectly true, and so were all the courts of justice, but yet this was so, for the purposes of public benefit and public protection, and was limited by a variety of restrictions, conditions, and limitations. All the high roads, in the same way, were the king's roads, (though much of these might be private property;) but they were the king's, for the convenience and protection of his subjects in passing from place to place. The cases of imprisonment or execution in the city of London, pursuant to sentences passed in Westminster, presented no difficulty, since in fact the sheriffs of London were sheriffs of Middlesex, and the prison of Newgate was the prison of both. The learned gentleman went through a wide field of argument and illustration in support of the principles which he had asserted. He shewed the hardships of the practice of requiring sureties for a length of time after the expiration of imprisonment. He quoted the declaration of the Bill of Rights against excessive bail, and unusual and cruel punishments, and concluded after a variety of other observations, a very argumentative and ingenious speech by protesting against the imputation of evil designs in this case, and deprecating such insinuations against the people of this country.
The Counsel having left the bar, the Lord Chancellor rose, and briefly stated that he had no doubt on his mind re-

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specting this question. Important as it was, it was not attended with much difficulty. It was his intention to move a question to be put to the learned Judges upon the subject. His lordship then moved, That a question be referred to the Judges for their opinion, Whether the court of King's Bench could send any person convicted in their court at Westminster to any jail in England?
Earl Stanhopesaid, that having been unfortunately and unavoidably absent, and consequently not having heard the counsel who stated the case of the plaintiffs to the house, nor the answer of the Attorney-General, he should not give a vote on the present occasion; but still there was a certain principle to which the house should conform, and it should proceed with the utmost regularity and deliberation to the decision of the point at issue before them, and particularly as to the severity of the punishment. He had always understood that it was a fundamental principle of the law of England that the parties were precisely on a level, that the scales of justice should be kept even, and that no improper questioning or application of motives should be tolerated in the counsel on either side.—The learned counsel for the prosecution had not charged the counsel for the crown with any improper motives; but on the other hand he must say, that the counsel for the crown, one of whom he personally and highly respected, as a most diligent and able man in his profession, (Mr. Solicitor General,) had no right, at the bar of the house of lords, to impute improper motives to a counsel who came to perform his professional duty. The present was not a charge of cruelty, it was a charge of error! and, according to an act of parliament passed in the first year of William and Mary, the Bill of Rights—it was, at least, an erroneous judgment. The 10th article of that important statute says, that excessive bail shall not be required; nor excessive fines imposed, nor cruel and unusual punishments inflicted! And would the Solicitor General say, that a thing done contrary to the prescriptions of this statute was not error, at the least. He did not mean to argue or to give an opinion upon the particular case before the house, but he thought before it decided it should have been better informed as to the precedents referred to in support of the arguments advanced at the bar, and that
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the house ought to have laid before it an account of the different judgments which, had been given, touching the case, down to a certain period. With respect to the nature of the security required in such a case as the present, he could not help contrasting it with that of the persons who were some time since convicted of attempting to blow up the King's Bench Prison, they were sentenced; as the present parties before them, to three years imprisonment. But what was the security required of them for their good behaviour after the expiration of their imprisonment—of persons convicted of an offence in which the commission of deliberate murder must be contemplated? None; not to the amount of one shilling! In a conviction of perjury, no later than November last; an offence so injurious to the well-being of the community, what was the sentence of the court? It was, that the offender be fined one shilling, imprisoned for three months, and farther until the said fine should be paid! Their lordships should bear in mind, in deciding on the case, that there was a scale of punishments, and take care, as far as in them lay, to render the punishment commensurate to the offence.
The Lord Chancellorobserved that the crime, as it appeared on the face of the matter on which those two prisoners were convicted, was one of the most dangerous description. He referred to several instances of punishments early after the Revolution, for libels, and shewed that punishments in such cases of latter times were, comparatively speaking, far from being severe. His lordship, after some farther observation, amended the question to the following effect: "That it be referred to the judges to know their opinion Whether the court of King's Bench, in the case of the conviction of a person at Westminster, could legally send such person to any prison in England, other than the prison belonging to the court, the county prison where the offence was committed, or that where the court held its sittings? And also to know whether sureties for a reasonable time, for the good behaviour of such person, could be legally required?"
On the question being handed to the Judges, their Opinion was delivered to the house by sir James Mansfield, lord chief justice of the Common Pleas. His lordship began by observing, that it was now fifty years since he had been mode a

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member of the profession of the law, and he had never during all that time doubted or heard a doubt started of the right of the court of King's Bench now called in question. Many cases had been cited which it was not his intention, or that of his brothers, to enter into. A sufficient number of instances both in ancient and in modern times, had been shown to prove the practice. The removal of persons from their friends by imprisonment was often unavoidable, and might occur in either of the cases specified. The judges had no doubt whatever upon the authority of the court to send persons to prisons in England, other than those specified in the question referred to them. As to the second point they were equally of opinion unanimously, that the court possessed authority legally to require such sureties for a reasonable time.
Lord Erskinecould not act so unmanly a part as to avoid giving his opinion. He considered the appeal by writ of error as a grand proof of the excellence of our constitution, which in so many ways provided checks upon the constituted authorities of the land. The case of libel law had been brought as near perfection, as was perhaps, possible: though, in earlier life, he did not think that the practice of the courts was right and legal in some points, yet he lived to see it remedied. He could not pretend to enter into the merits of the particular case of punishment, as that was not before him, though he must say that it was a strange thing to be forward in condemning an acquitting jury. He had not been so long in the profession as the venerable judge who had just delivered the opinion of the Bench; but he had never entertained a doubt of the power of the court of King's Bench upon this point. Had he even done so, he should most certainly have availed himself of many opportunities in his professional practice, for the sake of those clients who had put themselves under his protection, to bring the question to a solemn discussion.
After a few words from the Lord Cancellor, his lordship put the question, and the Judgment of the Court of King's Bench was unanimously affirmed.