Sitting of 20 June 1815

REPORT ON WRITS OF HABEAS CORPUS AD SUBJICIENDUM.
Mr. Serjeant Onslowbrought up the following Report:

REPORT FROM THE SELECT COMMITTEE ON WRITS OF HABEAS CORPUS AD SUBJICIENDUM.
The COMMITTEE appointed to consider of the Slate of the Law, respecting the Writ of Habeas Corpus ad Subjiciendum, and to report their opinion thereon to the House; and who were empowered to report the Minutes of the Evidence taken before them:—Have, pursuant to the order of the House, considered the matter to them referred; and agreed upon the following Report:
Your Committee have proceeded to examine officers of the several Courts in
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Westminster-hall, and have called for divers returns relative to the matter referred to them; and have also examined witnesses respecting delays in paying obedience to writs of Habeas Corpus ad Subjiciendum. They find that writs of Habeas Corpus ad Subjiciendum, returnable in vacation, have been disobeyed; and that there is no power to compel obedience to them, nor to punish such disobedience in vacation; and they are of opinion, that such power is essential to the satisfactory administration of the law relative to writs of Habeas Corpus ad Subjiciendum, both, when issued at common law, and when issued under the directions of the statute 31 Car. 2, cap. 2. And your Committee beg leave to mention, that the want of such-power, has strongly appeared in two cases, of which evidence has been given before them: in one of which a man was imprisoned on board a ship belonging to or pretended to belong to a foreign state, and treated with great severity, and only escaped, from being carried out of the kingdom by the interposition of the Board of Customs, who prevented the sailing of the ship: and in the other case, a girl of sixteen years' of age being detained from her mother under circumstances of great aggravation, and the judge before whom the writ was returned, not having power to compel the production of the girl in vacation, it was necessary to commences suit in Chancery, in order to make her a ward of court, and by that mode to obtain the delivery up of her person; a remedy in itself expensive and circuitous, and which could not have been, resorted to, had not the minor been entitled to property.
Your Committee also submit their opinion, that provision should be made for the summary inquiring into the truth of the facts contained in the return to a writ of Habeas Corpus ad Subjiciendum, where the detention is admitted and justified and that power should be given to the Court or to the Judge before whom such writ is returnable, to discharge the person imprisoned or detained, on bail, during such examination or inquiry, or in cases that may appear to require it, to make such order for the care, custody, or disposition of the person so imprisoned or detained, as the Court or Judge shall think proper.
Your Committee are also of opinion; that all the judges of his Majesty's Courts at Westminster, should be empowered to

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issue writs of Habeas Corpus ad Subjiciendum in vacation time, in cases not within the statute 31 Car. 2, cap. 2.

APPENDIX.
MINUTES OF EVIDENCE.—Select Committee on the Laws respecting the Writ of Habeas Corpus ad Subjiciendum.
Mercurii, 7° die Junii, 1815.
Mr. SERJEANT ONSLOW in the chair.
David Burton Fowler, Esq. called in, and examined.
What office do you hold?—lam second Secondary of the King's Remembrancer's-office in the revenue department of the Exchequer; I have held my office fifty years.
Have you ever issued during that period, any Writs of Habeas Corpus ad Subjiciendum, except where the party was under a criminal charge?—Never, except when he is under a criminal charge; I refer to the case of a person detained in charge as a smuggler; such persons have been brought up on various occasions to testify, and to be charged in execution; and except in civil suits, where the party was in the custody of a sheriff.
Out of what office in the Exchequer does the prerogative process issue?—Out of the King's Remembrancer's office.
Thomas Platt, Esq. called in, and examined.
You are head clerk to the Lord Chief Justice of the King's bench?—I am.
How long have you been conversant with the business of that office?—Five-and-thirty years.
Do you know of any case in which a Writ of Habeas Corpus ad Subjiciendum has issued in vacation, where the party was not under criminal charge, obedience to which has been refused or delayed?—None.
Do you know a case where a woman was under confinement, and the party delayed obedience for a fortnight?—I apprehend the case of Jane Groves must be the case alluded to, for I can find no other; that was in March last, but the facts were not as is supposed: an application was made on the 16th of March last by Messrs. Aubrey and Curtis, on behalf of Thomas Groves, of Cambridge, who was stated to be a tailor, who stated himself in his affidavit to be the brother of Jane Groves, who was of the age of seven-
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teen years or thereabouts, and that she was seduced and carried away from Cambridge, or a place called Milton, near Cambridge, on Sunday the 5th day of March, by one M'Cann, who was then or had lately been a gentleman commoner of Christ's College, Cambridge; the affidavit, which I have in my hand, went on to state the belief of the deponent that she was detained against her will, and that an application had been made to M'Cann, to restore her to her friends, and which he had refused to do, upon which the Chief Justice signed a Writ of Habeas Corpus to M'Cann to bring before him Jane Groves: shortly afterwards an application was made to me by Mr. Richard Hill, an attorney resident in Chancery-lane, for a copy of this affidavit; he acted as the attorney for M'Cann; a copy of the affidavit was granted to him, and after, that I heard no more of it; and it would certainly appear that obedience had not been paid to the Writ of Habeas Corpus, although it would be supposed that, if it had not, an application would have been made to the Court for an attachment: I made inquiry yesterday into the case, I went to Mr. Hill, and was informed by him that within four days after M'Cann was served with the writ, he brought the female to his (Mr. Hill's) house, notice having been previously given to the solicitors who applied for the writ, who met them there; that the brother who had applied for this writ had an opportunity of an interview with the girl, and that the result was, the delivery up of the girl there to her brother; so that so far the effect of the writ was obtained; she was taken to some place which the brother had to take her to, and was to have set off next morning with him at seven o'clock, but she thought proper to get up at six and run away again, and return to Mr. M'Cann, the person who had taken her away from Cambridge, and with him she at present resides, her relations finding that she is not to be controlled: That is the only case I am aware of, to which the question can allude.
Mr. James Rooker called in, and examined.
You are clerk to Messrs. Kaye, Fresh-field, and Kaye?—I am.
Do you remember the case of an Habeas Corpus directed to Jose Berestien, to bring up the body of Ludwig Hoffman?—Perfectly.
State the particulars of that case?—

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Ludwig, Hoffman was master of the ship Charlotta; she was freighted by British merchants to Havre-de-Grace, under licence of his Majesty's government, with sugar and coffee; she sailed in April or May 1813, under Danish colours; after be left Portsmouth, she was captured by a vessel under Spanish colours, assuming to be a Spanish privateer, called the San Juan Baptista, in which Mr. Berestien was, I believe, the chief mate; the Charlotta was brought into Portsmouth in the month of July 1813, as prize to the San Juan Baptista: no control whatever was exorcised over the person of captain Hoffman; he came to London, and occasionally went down to Portsmouth, and went on board his ship, until the month of April, 1814; on the 6th of April 1814; he went on board for the purpose of superintending the delivery of the cargo out of the Charlotta into warehouses under the Custom-house locks, an application having been made by the proprietors, that, pending the proceedings going on between the captors and the proprietors (her character of a Spanish privateer being denied) the cargo might be delivered into their warehouses; captain Hoffman was seized on going on board, by the prize-master and the Spaniards on board his ship, and thrown into a boat along-side the vessel, Without either hat or shoes, carried on board the San Juan Baptista, and there put into irons; information was immediately given to the proprietors of the cargo, and on the 7th of April, application was made to Mr. Justice Bayley for a writ of Habeas Corpus, and the writ was granted by Mr. Justice Bayley on the same day, and forwarded to Portsmouth that night by express: I think on the 8th or 9th, the writ was served on Jose Berestien, the person having the command of the San Juan Baptista, who refused obedience to the writ, disclaiming the authority of the Court, and stating that Hoffman was his prisoner; and in fact he entered a protest with the Spanish Consul at Portsmouth, against the process of the Court; an affidavit of the service was transmitted to town, accompanied with a statement of the refusal of the commanding officer to deliver up Hoffman; in consequence of which an application was made to Mr. Justice Bayley, to enforce obedience to the writ; he had a conference with Mr. Justice Dampier, at which Mr. Dealtry of the Crown-office was present and a letter
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was addressed by them, or one of them, to lord Ellenborough, stating the circumstances of this case, and the imminent peril in which Hoffman's life was considered to be from the violence of the conduct of this man; for I should state, it was exceedingly difficult even to serve the process, for the crew of the San Juan Baptista came on the deck with cutlasses and daggers, and threatened the life of any person who should come on board: application was made, as I understood, from Mr. Justice Bayley to lord Ellenborough, on the 12th; on the 15th we received lord Ellenborough's answer, that obedience could not be enforced till the succeeding term, which commenced on the 27th of April; many delays took place after the commencement of the term, and he was not released in fact till the 15th of May: they obtained a rule to show cause why the writ of Habeas Corpus should not be quashed; and Berestien made an affidavit, claiming Hoffman as a prisoner of war; affidavits were made to rebut that statement; and on the hearing of the case on the two sets of affidavits, the Court ordered Hoffman to be discharged.
Was any attachment ordered against Berestein?—An attachment was ordered to lie in the Crown-office.
How came it not to be enforced?—He delivered up Hoffman, and allowed him to be taken on shore.
Was any compensation obtained?—Only the costs: I have omitted to slate, that so fully were Mr. Justice Bayley and Mr. Justice Dampier aware of the danger in which this man was placed, and the importance, if possible, of enforcing obedience to the writ, that when they wrote to lord Ellenborough, they also directed Mr. Dealtry to write to the Commissioners of the Customs in their names, requesting their interference to prevent, if possible, Hoffman being taken out of the San Juan Baptista, or the sailing of the Sao Juan Baptista, or in fact to control the conduct of the Spaniards respecting him.
The Judges were of opinion they could not issue process of contempt in vacation?—Yes, that was the impression upon their own minds; and they stated the case to, lord Ellenborough, in order to have the sanction of his opinion.
Was any action afterwards commenced for the damages?—No, there was not.
Mr. John Alexander Berry called in, and examined.
In what office are you?—In the Six Clerks Office in Chancery; I am agent to Mr. Shaddick; I have been in the office between 30 and 40 years.
Have you ever known writs of Habeas Corpus ad Subjiciendum issued out of the Chancery in vacation, except where the party was under a criminal charge, or was an infant?—I have; I recollect one instance where a Habeas Corpus was made out to bring in the body of a married woman returnable in vacation; but it was made out in the term.
Have you known of any instance of such a writ being issued in vacation?—No, I have not; and I have taken pains to ascertain whether such a thing has been known in the office, and cannot find chat any other person is aware of such a circumstance: I have applied at the Register's Office, to know whether they have ever drawn up an order for an Habeas Corpus in the vacation; and they have no recollection of having done so.
Do you know of many applications having been made for writs of Habeas Corpus?—I never knew but of two applications for Habeas Corpus; the one in the case of a married woman, and the other in the case of a child.
Henry Dealtry, esq. called in, and examined.
When was the writ issued in the case of Berestien?—On the 7th of April 1814. That was in vacation?—It was.
When was the attachment moved for?—On the 28th of April, which was the second day of term.
What was the issue of that matter?— The Court granted a rule to show cause why an attachment should not issue; on the 6th of May Berestien obtained a rule to show cause why the Habeas Corpus should not be quashed; on the 14th of May, the Court discharged the rule Nisi for quashing the Habeas Corpus, and made the rule absolute for the attachment, but directed the attachment to lie in the office till the further order of the Court.
Would it be in the course of the Court to give any directions with respect to costs in such a case?—No, I think not; in regular course they might have discharged the rule Nisi for the attachment on the payment of costs; the only other way, I apprehend, in which they could give the
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costs, would be by mitigating the sentence for the contempt, in consideration of the payment of costs.
Is or is not an attachment for not returning a writ of Habeas Corpus bailable by a Judge?—I have always considered it to be so.
Does the Court of King's-bench, upon a return to a Habeas Corpus ad Subjiciendum at common law, examine by affidavit into the truth of the facts contained in the return?—I apprehend not.
Are the applications made to the Court of King's-bench for writs of Habeas Corpus ad Subjiciendum not within the statute of Charles 2nd, numerous?—They are more numerous in time of war than of peace; but I am not prepared to give the number, not having an individual knowledge of all the applications, each clerk in court issuing those for which application is made to him.
What do you conceive to be the proportion of those issued under the statute, to those under the common law?—I cannot speak to the proportion, but I conceive very few indeed are issued under the statute.
In time of war is not a large proportion in the case of impressed seamen?—It is.
Have you known instances of applications made in the case of infants detained?—Yes.
Have there been many such cases within your experience?—Not many.
Have there been any in the case of married women?—There have.
Have there been any in cases of lunacy?— There have been several applications; and I think there have been one or two granted in the cases of persons confined as lunatics.
Do you happen to recollect within, your own experience, instances occurring in vacation time, of an application for at writ in any of those cases, of lunatics, infants, or married women?—Yes; the instances of such applications have been very few.
Lunœ, 12° die Junii, 1815.
Mr. Serjeant ONSLOW in the Chair.
Mr. William Cook, called in, and examined.
I am partner with Abraham Rhodes and Thomas Handley, as solicitors and attornies, and was employed in October 1803, by Wm. Woodward, and Fanny Woodward, the brother and mother of Elizabeth Woodward, a minor of the age of sixteen years,

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to sue out a writ of Habeas Corpus directed to William Wilson, of Basingstoke, in the county of Hants, inn-keeper, having the custody of Elizabeth Woodward, to bring her up before Lord Ellenborough on the receipt of that writ; she left her mother's house at Winchester on Sunday 9th Oct.; she lived with her mother, who, I believe, lived on her fortune; on her being missed, she was traced, after great trouble, through various stages, to London, as accompanied by Wilson, in whose custody she remained: the writ of Habeas Corpus was served on Wilson on the 18th Oct., he was served at Basingstoke, and her abode could not be discovered; on the 22d October he returned the writ before Mr. Justice Laurence, stating that Elizabeth Woodward was not, at the time of serving the writ, nor at any time since, in his custody or power, and that she was free from his control, and that therefore he could not produce her: I objected to the return, as untrue in the fact of her not being in his custody; but the Judge was of opinion that he could not enter into that inquiry: on that a bill in Chancery was filed, and she was made a ward of court; and by an order of the Lord Chancellor she was delivered up to her friends: term commenced the 6th Nov.; application was made to the Court of King's-bench against William Wilson, for not having paid due obedience to the writ of Habeas Corpus; and it appearing to the Court that he had wilfully disobeyed the writ, he was in the Hilary Term following committed to the custody of the Marshal of that Court, and being brought up again in the same term for judgment, he was by the said Court ordered to be imprisoned in his Majesty's gaol of Newgate for six calendar months, and to pay a fine of fifty pounds.
Jovis, 15° die Junii 1815.
Mr. Serjeant ONSLOW, in the Chair.
Thomas Johnson,esq. called in, and examined.
I am partner with James Farrer, esq. the principal secretary of the Lord Chancellor; in the situation of secretaries, we have not made out any writs of Habeas Corpus ad Subjiciendum since Mr. Farrer held the office, during eight years: we have caused inquiries to be made at the Six Clerks Office, at the Petty Bag Office, Crown and Cursitors Office of the Court of Chancery, and have not been able to ascertain that such a writ has issued in the
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Court of Chancery within the last ten years.
Henry Dealtry, esq. further examined.
Did you, by the desire of Mr. Justice Dampier, Mr. Justice Bayley, or either of them, address any letter to the Commissioners of the Customs, respecting the case of Ludwig Hoffman?—I did, by the desire of Mr. Justice Bayley, address a letter to the Commissioners of the Customs, of which the following is a copy.
[Copy of Letter, and also a return of the number of writs of Habeas Corpus, &c. delivered in, and read.]
To the Honourable the Commissioners of his Majesty's Customs.
I am directed by Mr. Justice Bayley to state to your honours, that a Writ of Habeas Corpus being issued out of the Court of King's-bench, requiring the person having charge of the ship San Juan Baptista, or other person having the custody of Ludgwig Hoffman, to have the body of the said Ludgwig Hoffman before the Lord Chief Justice of the said Court: and it being represented to Mr. Justice Bayley that the said ship is now at Portsmouth, under the charge of officers of the Customs; and that Jose Berestien, first mate of the said ship, is the person who has the custody of the said Ludgwig Hoffman; and that he has refused to pay present obedience to the said writ: it appears to Mr. Justice Bayley that it may conduce to the furtherance of justice if the said ship was not permitted to sail, or the said Ludgwig Hoffman to be removed by the said Jose Bereslien, until the said Writ has been obeyed.—I am, with great respect, your honours most obedient servant,
Crown-office, Temple, H. DEALTRY.
April 12, 1814.
A Return of the Number of Writs of Habeas Corpus ad Subjiciendum issued On the Crown Side of the Court of King's-bench, during the year preceding the first day of last Michaelmas Term.
Writs of Habeas Corpus ad Subjiciendum have issued for bringing up eighty-six persons—exclusive of eleven such Writs, issued for bringing up sheriffs.
Crown-office, Temple, H. DEALTRY.
June 8, 1815.
Mr. Serjeant Onslowgave notice, that it was his intention, early in the next session,

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to submit a motion to the House on the subject of the preceding Report.

MOTION RESPECTING THE GRANT OF CERTAIN PENSIONS.
Mr. H. Martinrose, in pursuance of his notice, to submit a motion to the House relative to the grant of certain pensions which he conceived were irregular. The pensions in question were, one to the family of a member of Parliament, which was granted on the 1st of February, 1806, and charged on the establishment of the Foreign Secretary; and two others, granted to two highly meritorious officers (colonels Congreve and Shrapnell) by a private intimation from the Crown to the Master-general of the Ordnance, and charged on the Ordnance establishment. The first grant which he had mentioned he contended was illegal, as would be perceived if the consequences of it were examined. The revenue of the Foreign Secretary's office consisted of fees, which were taxes raised in an indirect manner on the subject; and if these were not sufficient, the deficiency was supplied out of the Civil List. Therefore, if the pension was paid out of the fees, it was a diversion of indirect taxes to purposes not sanctioned by Parliament; if out of the Civil List, what became of the provisions of Mr. Burke's Bill? These pensions also being granted for life were, in effect, a charge upon the Civil List for a longer time than it was in the power of the monarch to grant—his power being restricted to grants during his own life. The grant was, therefore, invalid, as no similar grant had ever been expressly sanctioned by Parliament; and indeed if such grants were ever made formerly, they could not have come to the knowledge of the House, as the practice of laying before the House all increase of salaries and grants of pensions had not been customary before it was enacted by the 50th of the King. No negligence on the part of Parliament could authorize usurpation; and it was therefore the duty of the House to express its sense as to the grant in question, even if it should be proved that such grants had been before made. This grant was first made known to the House by the Committee on Public Expenditure of 1807; by which it also appeared that the Crown had usurped the power of granting pensions out of the produce of old stores, which was disapproved of by the House, on the express ground that the Crown had no right to charge indirectly the revenue
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by such grants. The other grants which he had alluded to were two pensions of 1200 l. each, to two distinguished officers; and though the House should not behold with jealous eye the rewards given to merit, it should exercise vigilance as to the manner in which they were conferred. These pensions were granted by an intimation of the Royal pleasure to the Master-general of the Ordnance on the 14th of January, 1814, though not communicated to Parliament till the month of April. Such a proceeding he conceived to involve a complete deviation from the object of Mr. Burke's Bill. That Act must indeed become nugatory if it were competent to Royal authority to charge a pension upon any of the public offices without reference to Parliament. In the case of colonel Congreve the order of the sign manual to the Master-general of the Ordnance was simply this, that 1200 l. a year should from year to year be charged among the Ordnance estimates for that officer. Thus this grant was clearly during pleasure; for what was to prevent the Prince Regent from revoking such a grant, and issuing an order accordingly to the Master-general of the Ordnance? In this view, then, it appeared that the Act of Anne was violated, for according to that Act any member of that House accepting a pension during pleasure was called upon to vacate his seat. The hon. and learned gentleman observed, that it was not his wish to disturb any of the grants alluded to; but merely to propose a Resolution, the object of which would be to put a check upon such, grants in future, and to prevent any charge from being made upon any of the public offices, other than such establishments were usually liable to, without first obtaining the consent of that House.—He concluded with proposing his Resolution, namely,
"That it appearing to this House that certain pensions have been granted by warrants under the Royal sign manual, payable out of the establishment of the office of Secretary of State for Foreign Affairs, and the monies to be appropriated for the service of the Ordnance, it is necessary to declare that the funds upon which such pensions are charged constitute no part of the revenue of the Crown, and that the said pensions ought not to have been granted without the express consent and authority of this House previously obtained."
On the motion being put,
Mr. R. Wardrose, and first addressed

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his observations to that pension which was granted from the office with which he was connected; and while he felt that this grant was made to an officer (colonel Congreve) of indisputable merit, he was prepared to maintain that the grant itself involved no unusual exercise of the Royal prerogative, but that, on the contrary, it was fully agreeable to ancient practice. There were, indeed, various sources of revenue which formed no part of the hereditary revenue included in the commutation with respect to the Civil List, upon which the Crown had been in the habit of charging pensions for the reward of public services. Among those sources were certain fees and gratuities received in the public offices; and upon such funds it had been an old custom to assign pensions for the compensation of retired officers, or as a remuneration to persons rendering some public service in such departments. Upon the Post-office, for instance, between 6 and 7,000 l. a year were so charged, including an annuity of 3,000 l. to Mr. Palmer. But it would seem, from the strain of the hon. and learned gentleman's observations, that the pensions to which he referred were really smuggled cases, which now, for the first time, had come to light; whereas the fact was, that above thirty such pensions had been granted within 35 years, which had never been animadverted upon or pronounced illegal, although such grants had come under the consideration of the Finance Committees of 1785 and 1797. Nay, although such grants had been noticed in the Committee on Public Expenditure in 1807, of which the hon. mover was himself a member, the subject had not been brought under the consideration of the House until the present moment. How came it, then, that the subject had for nine years been allowed to sleep, and how came it, also, that although the hon. and learned mover's notice referred only to one case, he had this night brought forward three cases? But where, he would ask, was the law, written or unwritten, that forbad this mode of granting pensions by the Crown? The hon. and learned mover had stated, that those pensions were virtually granted out of the Civil List, and that being granted without the previous consent of that House, they involved a violation of Mr. Burke's Act. But he denied the hon. and learned member's fact, and his inference also. He denied his fact, because those pensions were not
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granted out of funds included in the commutation of the Civil List for the hereditary revenue. But even admitting his act, his inference was incorrect; for according to Mr. Burke's Act, the Crown was authorized to grant pensions out of he Civil List, to the amount of 95,000 l. a fear; and the fact was, that up to February last, only 87,000 l. had been so granted—so that as only the pension of colonel Congreve, and 700 l. a year to that meritorious servant of the public, Mr. Cooke [Hear, hear! from lord Castlereagh]; it followed of course, that Mr. Burke's Act had not been in any degree violated, even supposing colonel Congreve's pension to have been granted without the previous consent of that House. But, in truth, the prerogative of the Crown was competent to order the allowance alluded to, to be granted to colonel Congreve, for his services in the Ordnance department, in which department no other grant had been made for some time, but one to himself (Mr. Ward), for which he did not think it necessary to offer any justification, as he had made a sacrifice by accepting office in that department. As to the alleged illegality, however, of such grants, it was evident from Mr. Perceval's Act of the 50th of the King, that that allegation was unfounded. For this Act was avowedly brought forward and drawn up to regulate office pensions, which of course was a clear admission of the legality of such grants as those under consideration. But it was obvious, that the order of the Crown with respect to the grant to colonel Congreve, was made with, the consent of that House, for it was included in the Ordnance estimates, which, were voted by the House; therefore it appeared that the hon. and learned mover's complaint was totally unfounded. Then, as to the hon. and learned mover's reference to the Act of Anne, there was not one word in the order of the Crown addressed to the Master-general of the Ordnance, which implied that the pension to colonel Congreve was granted during pleasure. Or course this pension did not come at all within the meaning of that Act; for it was not granted with any view to create undue influence upon the mind of a member of that House, but to remunerate eminent public services.
Sir J. Beresfordbore testimony to the great benefits which were derived from the use of colonel Congreve's rockets, as he had himself witnessed in actual service.
Mr. H. Martinin reply stated, that his reason for abstaining from bringing forward any motion earlier, respecting the particular pension which had been alluded to, was because he thought the Report of the Committee of Public Expenditure would have effectually checked all such grants; but when he found two other pensions granted, of precisely a similar description, he thought it right to bring the whole subject under the notice of the House, lest the thing should, at last, swell into an intolerable grievance. With regard to the Post-office revenue, that was distinctly commuted upon the accession of his present Majesty, and the Crown, therefore, had no right to charge pensions upon it. As to what had fallen from the hon. gentleman respecting the application to that House in the way of estimate, for its concurrence, if he was correctly informed, that pension had been paid to the individual for at least ten years, out of different offices, and which they were now called upon to continue. He apprehended, however, that the constitutional way of granting a pension, was not by foisting it into an estimate, but by a message from the Crown. The hon. gentleman said, that the seat of colonel Congreve in that House was not affected by his pension, because it did not come within the meaning of the statute of Anne; but upon the above points, and especially the latter, he differed from the hon. gentleman. What was the intention of the Parliament that passed that Act? To prevent the extension of the influence of the Crown, not surely so far only as related to granting pensions from the Civil List, but in every other way. Was it probable, indeed, that Parliament would leave the Crown in possession of numerous offices, with the power to grant pensions upon those offices in any manner, except from the hereditary revenue? He apprehended, therefore, that the hon. gentleman was a little incorrect in his view of the effect which the pension ought to have upon the seat of colonel Congreve.
The House then divided, when the numbers were—Ayes, 13; Noes, 71.

MOTION RESPECTING THE PETITION OF ME. FIRTH.
Mr. Marshrose, pursuant to notice, to move that the Petition of Mr. Firth, his Majesty's Attorney-general in the province of Upper Canada, be referred to a select committee, to inquire into its allegations, and report thereon. He said he should content himself with merely
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stating the circumstances of the Petition, and leaving it to the judgment of the House to determine upon what course ought to be pursued. He begged leave, however, to say, that he was in no manner influenced by the feelings which actuated the petitioner, who was goaded and stung, no doubt, by a deep sense of injuries which he believed himself to have sustained. Who was the petitioner? Not an obscure, not an ignorant individual; not a person, who, from his condition in society, or his conduct, was likely to be disaffected to the Government; but a gentleman educated to the bar in this country, and selected by the Crown as a fit person to execute the duties of an important legal appointment in one of our most important colonies. He understood that he owed his appointment to the late Mr. Windham, a patronage which, of itself, was sufficient to confer no mean dignity. He understood, from the Petition, that Mr. Firth went out in 1808, at a considerable expense, to take possession of his office. Shortly after his arrival, governor Gore thought proper to let loose a number of petty vexations against Mr. Firth, and which continued during the last two years of his residence in that province. Those minor persecutions were not indeed exactly specified in the Petition; bat it did not require any very deep knowledge of human nature to know that the combined effect of a series of petty mortifications, incessantly repeated, was often as great, and greater, than that produced by persecutions of greater magnitude and severity. It did appear, however, that the grievances complained of, were not all of that minor description. A plan was devised to get rid of the Attorney-general, by depriving him of the emoluments of his office and in order to accomplish this, he was prevented, by governor Gore, from carrying on various public prosecutions, by which his income was diminished one-sixth, and all the dignity and efficiency of his office abolished. Another mode of persecuting him was also resorted to. When, from, some peculiar circumstances in which the province happened to be placed, no servants except soldiers could be procured, a special exemption of the Attorney-general, as entitled to a servant of that description, was made by governor Gore, and he was reduced to the necessity of performing all the menial offices and drudgery of domestic life himself. Here again he begged to remind the House,

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that he did not state these things as facts, but merely as allegations contained in the Petition, brought forward by a man who had held a high station, and, primâ facie, therefore entitled to belief. They were such, in his opinion, as ought to produce inquiry, not only that the character of general Gore might be vindicated, if he was innocent, but that the shame and disgrace of having made such allegations, might fall with tenfold aggravation upon the head of their author, if they were false. There was another most important charge in the petition, in so far as it went to the declaration of a serious change having been introduced into the administrative justice of the country. It appeared that a very mysterious case of child-murder had occurred in that province, into which the Attorney-general thought it his duly to inquire; but during the preliminary investigation which he instituted, general Gore interfered, and expressing his aversion to the inquiry, ordered it to be stopped. In consequence of that proceeding, and being besides worn out and wearied with these multiplied persecutions, Mr. Firth applied for leave to return to England, which was not granted; but his residence in the province became so utterly impossible, that he was obliged to leave the country without obtaining the consent of Government, and he now applied to the justice and compassion of that House for redress: Such were the allegations contained in the Petition; and they were of a description which most make general Gore himself, and his friends, anxious for an inquiry, that they might be repelled, if unfounded. In presenting the Petition to that House, he had reluctantly undertaken a task which he was far from seeking, because it was an unpleasant thing to appear as the accuser of any man without knowing all the merits of a case. He had, however, long been acquainted with the petitioner, and he could vouch for his general honour and integrity of character; and he should have been subject to the reproach of his own feelings and conscience, if he had deserted an old and early friend by refusing to present his petition when he stated that he had been seriously aggrieved. He should conclude with moving, "That the Petition be referred to the consideration of a Committee, to examine the matter thereof, and report the same, as it shall appear to them, to the House."
Sir J. Beresfordspoke strongly in behalf of general Gore's character and conduct, both as governor of Bermuda, and in his present station. On his arrival in this country, he was asked if he knew any reason why governor Gore had dismissed the Attorney-general, and his answer was, that before he left America there was not a voice in that country which did not say that governor Gore had done right, and that it was impossible the colony could go on with such an Attorney-general. He was sure general Gore had acted from the most honourable motives.
Mr. W. Smithsaid, he could not support the motion for inquiry, and he would state his reasons why he could not. With respect to the petitioner, he knew him well and long; he believed him to be a man of strict integrity, and he was sure the Petition did not contain a single allegation but what he believed to be well founded. When he returned from Canada, he requested him (Mr. Smith) to lay a memorial before the Secretary of State, which, after reading it, he did, together with as strong a recommendation as he felt himself justified in using. That memorial procured to him a certain degree of relief as to certain points which were urged in it: but that relief did not satisfy him, and he then requested him to present his Petition to the House. Upon looking into the Petition, however, and finding the allegations extremely vague, and many of them such as must have existed in the imagination only of the petitioner, he told him he could not undertake to present it, unless he also felt disposed to move something like an impeachment against the Secretary of State, for not paying more attention to the first, memorial, which he certainly was not inclined to do. Upon those grounds, therefore, he should feel it his duty to vote against the motion.
Mr. Forbessaid, that the conduct of governors, both in the West and in the East, was often such as would stamp their characters as petty tyrants. To them might well be applied what Buonaparté addressed to certain of his generals—that by being made governors their brains were turned. He had often witnessed such persons as he had just described, and was proceeding to lament that a notice entered some time ago on a similar case had not been pressed on the House, when
The Speakerinterrupted him, by observing that he was wandering from the question.
Mr. Forbesresumed, and declared his entire concurrence in the motion; at the same time hoping, that, on an inquiry, the allegations in the Petition would be satisfactorily explained.
Mr. Goulburncould not accede to the proposition, although perfectly satisfied that nothing could afford general Gore more sincere pleasure than having an opportunity afforded him to bring forward the many proofs of innocence of which he was possessed. But, notwithstanding this circumstance, the House should in all cases act on public principles, without any regard to the individual feelings of those concerned. He said, that if on every trifling complaint an inquiry should be instituted to investigate grievances, either imaginary or true to a small extent, no other business could be transacted in that House. Mr. Firth, he would acknowledge, was a man of high respectability; but if his elevated situation was a presumptive argument in favour of his allegations, it was but fair to allow general Gore to derive a similar advantage when objecting to them. General Gore was chosen by Mr. Windham to fill his high and arduous situation—not from private or party reasons, but from the experience of his former government, which was well administered. At the time of his being sent to Canada, the colony was a scene of angry confusion, which was soon appeased by his authority. He then alluded to the charge made in the Petition against general Gore, as if he had hushed up a crime so heinous as child-murder. This charge required a distinct statement of the facts. The wife of a soldier in the 100th regiment was delivered of a child, whose death she attributed to the surgeon of the regiment. The case was investigated by the magistrates of the district in which it was said to have occurred. On this investigation Mr. Firth intruded, but was not permitted by the magistrates to be present during its continuance. The case appearing clear to them, the surgeon was dicharged, and his exculpation read in the general orders at the head of the regiment—not as a violent attack on Mr. Firth, but as an act of justice to the gentleman concerned.
Mr. P. Moorestated, that the petitioner was ready with witnesses to prove all the allegations in the Petition. Were he in governor Gore's situation, he should strenuously urge his friends to institute an inquiry into his conduct. The case of
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Mr. Firth was not singular. He had in his possession a variety of other cases. Among them was one of a gentleman, Mr. Wyatt, who was almost as dear to him as a son. Mr. Wyatt had been appointed Surveyor-general of the province of Upper Canada, and by his commission was rendered wholly independent of the Governor, being directed to communicate immediately with the Treasury. Mr. Wyatt had gone on for a considerable time in surveying the province, and in the more difficult task, the location of it, when—
Sir C. Burrellspoke to order. The hon. member, he said, was going into statements which had nothing to do with the question before the House.
The Speakerobserved, that in strict order the hon. member must confine himself to the allegations of the Petition.
Mr. P. Mooreresumed. He said, that it appeared, that when governor Gore arrived in Upper Canada, all was harmony and conciliation, but that shortly after the different public officers were turned out to make way for persons of his selection. Thus Mr. Firth was replaced by a youth. Mr. Wyatt having refused to appoint, a deputy of the governor's choosing, was dismissed in three days. The governor made every effort to reduce his government to a simple despotism. The Judge, the Attorney-general, the Sheriffs, all suffered. Even the Speaker of the Lower House had been so intimidated, that, on a proposition for an address to remove the Governor, he gave the casting vote in favour of the Governor; an occurrence which he thought would not have happened in the British Parliament. There was another instance—[Order].
The Speakerreminded the hon. gentleman that he must confine himself to the question before the House.
Mr. P. Mooreconcluded by observing, that it was for the honour of governor Gore, that an inquiry should be instituted.
Lord Castlereaghconcurred with his hon. friend near him in the opinion, that no case of this nature should be gone into, except where such corruption or oppression appeared as called for the high jurisdiction of Parliament. The case had been successively before three secretaries of state—himself, lord Liverpool, and lord Bathurst; who all entertained the same opinion of the high character of governor Gore, and of the unsupported character of the charges adduced against him. With respect to Mr. Wyatt, in advising his re-

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moval from Upper Canada in consequence of his differences with the Governor, he had accompanied that advice to the Treasury with a representation that there was nothing whatever in that gentleman's conduct which ought to prevent his being employed in some other colony. With respect to governor Gore, he had been selected for his great ability and integrity, and placed in Upper Canada by Mr. Windham. He knew nothing of him except officially; but thinking that his government was unfairly embarrassed by the interference of individuals, he had thought it his duty to interpose. If Parliament were to be called upon to inquire into all the little cases of difference arising in the colonies, no governor could return to this country without the occurrence of a multitude of applications similar to the present.
Mr. Benson, from the long intimacy he had with governor Gore, was unwilling to give a silent vote upon this occasion; but from what had fallen from the noble Secretary of State, and the Under Secretary of State for the Colonial department, it would be unnecessary for him to trespass on the House at any length. Had the hon. Secretary for the Colonial department been induced to entertain the motion for referring the Petition to a committee, he should have been prompted to a full investigation of the allegations of this extraordinary Petition. As to the memorial which the hon. member for Coventry (Mr. P. Moore) had stated to have been sent over from some of the inhabitants of Upper Canada, thanking his royal highness the Prince Regent for the recall of general Gore from his government, he (Mr. Benson) was not disposed to dispute its existence; but he was perfectly aware of the class of people from whom such memorial came:—as well might this country judge of the true sentiments of the loyal inhabitants of the good cities of London and Westminster, by a memorial from the worthies of Palace-yard, as to decide by the memorial alluded to by the hon. member for Coventry, of the sentiments of the respectable body of inhabitants of Upper Canada towards governor Gore. In order to draw the true contrast, he would, with the permission of the House, read part of the Address of the House of Assembly of Upper Canada, unanimously voted to governor Gore on his leaving that country, when his influence there might be considered at an end.—He then
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read the following Extract from the Address referred to:—"May it please your, excellency—We his Majesty's dutiful and loyal subjects, the Commons of Upper Canada, beg leave to assure your excellency of our approbation of your excellency's administration of the government of this province, which, since your arrival among us, has increased in wealth, prosperity, and commerce, far exceeding our most sanguine expectations, aided by your wise and liberal exertions to promote the same."—From his long intimacy with, governor Gore, he considered him incapable of an act of oppression, or an illiberal sentiment.
Mr. Gordonstated, that he had in his possession a letter in the hand-writing of the noble lord, in which he expressed himself perfectly satisfied with Mr. Wyatt's conduct.
Lord Castlereaghsaid, that he was perfectly satisfied with Mr. Wyatt's conduct in his situation; but that he thought his conduct towards the Governor ill-judged, to say the least of it.
Mr. Marsh, in the course of a short reply, observed, that he had never heard, until that moment, that Mr. Firth's petition had been offered to the member for Norwich, the suffrage of whose intelligent mind against it almost shook his own opinion. Still, however, he maintained, that if any one member in the House entertained sentiments unfavourable to governor Gore, it would be to the governor's honour to have the case fully investigated.
The motion was then negatived without a division.

EAST INDIA SHIPS REGISTRY BILL.
The Earl of Buckinghamshire having moved the committal of the East India Ships Registry Bill, the Petition of the London Ship-builders against the Bill was read, and counsel were called in. Mr. Harrison appeared for the petitioners. Mr. Spankie, and Mr. Grant, also appeared in favour of the Bill; but no petition on that side having been presented, they could not be heard.
Mr. Harrison, for the petitioners, contended, that the admission of ships built in India to British registry would be mischievous to the public, and ruinous to the petitioners. The great principle of the Navigation laws was to encourage, the
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belligerent navy of the country, and this could not be done without encouraging the ship-builders of Great Britain, and especially those of London, who alone were capable of affording adequate assistance to the navy upon emergencies, when the requisite number of ships could not be built in the King's yards. If the India-built ships were admitted to British registry, the whole India trade would soon be carried on in India-built ships, and the London ship-builders would be almost ruined. If the ship-building were transferred to India, the manufactures depending upon it would also be removed from this country, such as the manufactures of sails, cordage, iron, copper, &c. for all which, India, or countries in the neighbourhood, possessed the raw material, and, therefore, the builders there would not come to this country for these articles. The apprehensions of a scarcity of timber owing to the demands of the merchant yards were, he said, unfounded, as the timber in several counties had not been touched for the supply of the navy. A similar apprehension was entertained in 1792, but never realized. As for the trade from India, it might very well be carried on by British ships; and even if it were thought that India ought to have the advantage of exporting in their own ships, the reason did not apply to the China trade. In the case of an independent power, it was necessary or reasonable that the subjects of that power should be allowed to bring their own produce to this country in their own ships, and a duty might be imposed to prevent any injury from this to the British shipping interest: but the object now was to admit India-built ships on the same terms as British-built ships. At a time when a new naval power was rising up, and when there might be so great a demand of ships for the navy beyond what the King's yards could supply, it must be contrary to the soundest public policy to ruin the shipbuilding establishments of the Thames.
The counsel having been ordered to withdraw,
The Earl of Donaughmoresaid, he had heard nothing that could justify the House in proceeding any further with the measure. It was taken up not on public grounds, but with a view to create partial advantages to a particular class, at the expense of the East India ship-builders. He thought an adjournment of the question was necessary, in order to give time

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for a full consideration of the subject, which he conceived should be permitted to lie over for that purpose.
The Earl of Buckinghamshiresaid, that if the noble earl had not risen with such precipitation, he was about to have made a short statement to their lordships on the subject, which he hoped would prove satisfactory. The learned counsel had avoided any very direct allusion to the Jaw as it stood, and for a very good reason, which was this,—that when the law as it stood was stated, it would necessarily appear that the petitioners not only had no reason to complain, but that this Bill was favourable to their interests. Under the Act of the 26th of the King, India ships were admitted to British registry; and had been so admitted for thirty years. Such was the actual state of the law: but, from reasons of policy, it had been thought proper to confine India-built ships to the trade between India and. this country; so that the Bill was rather a bill of restriction upon the building of ships in India, which must be so far favourable to the British ship-building interest. Then, with respect to the scarcity of timber, the evidence taken in the other House, and laid, on their lordships table, was contradictory; but it appeared that the proportion of foreign timber procured for the navy had been increasing of late, which showed a falling-off in the home supply. The proportion of foreign timber had been, not long ago, one-half: but it had since increased to two-thirds. Then, as to the India trade, his lordship quoted the authority of a commissioner of the navy, and others, to show that unless the India trade was permitted to be carried on with this country in India-built ships, that trade would be in a great measure engrossed by foreigners: so that the British ship-builders would not be injured by this measure, but rather benefitted in that view of the subject. They would also have the repairs of the India-built ships here, which otherwise they would be deprived of. As for the sails, cordage, &c. it was provided by law that these articles should be, in a great measure, supplied from this country. Upon the whole this was a measure of great advantage in a public view; and it would not be injurious, but the contrary, to the ship-building interests of Great Britain, though he admitted that it might prove disadvantageous to the Thames ship-builders. But it would not be disadvantageous even to them in
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the degree which they held cut; and at any rate, the interests of individuals must sometimes give way to those of the public. It was a great object for the East India Company to have this Bill passed; for then a competition would be created, and they might choose where to purchase their ships, instead of being confined to the Thames ship-builders, who had been enabled to make their own terms.
Earl Stanhopesaid, that the noble earl who spoke last had laid great stress on the law as it stood; but in considering a question of this magnitude, they ought not merely to take into view the law as it stood, but the law as it ought to be. The noble earl seemed to hint that his noble friend had not read the evidence; but his noble friend, he believed, might give the answer, which was returned on a certain occasion by a French curé to an ignorant bishop who could not read. "Have you read my charge?" said the bishop: "No," replied the curé, "and I doubt whether you have read it yourself." It appeased doubtful whether the noble earl himself had read the evidence; but if he had read it, it was quite clear, he had it not at his fingers' ends. Then the noble earl talked of the scarcity of timber: but it you reduced the demand for timber, the supply must fail in proportion; and besides, there was a new method invented, for seasoning oak so as to make it last much longer, though the Admiralty had not paid the attention to it which it deserved. The noble earl said nothing about teak wood, but it had been said, that it was the most durable of all timber. The noble earl had, however, said that the Thames ship-builders would have the repair of these teak ships, and so they might console themselves by the chance of having the repair of ships which required no repair. Then the noble earl adverted to the India trade, and read authorities to show how advantageous the measure would be in that view. But who were these authorities? Persons connected with India. Rare authorities! Did you ever hear a fishmonger call out slinking fish? that was not to be expected. But their, lordships ought also to consider, that it was possible that India might be separated from this country; and where, then, was the soundness of that policy which went to transfer our naval establishments to that country? Our laws, our religion, our existence as a nation, depended on our navy; and it ought to be a matter of para-

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mount policy to confine our ship-building establishments as much as possible to this country. Before the first American war, no one would have believed in a separation. The same language, the same habits, laws, religion, &c. bound us together, and yet the separation took place; and we ought not therefore to reckon too securely on India. The policy was altogether monstrous. Show me such politicians, said his lordship, and I will show you the description of statesmen mentioned by Dr. Franklin—those who have found out the secret to make of a great state a very small one.
The Earl of Donoughmoresaid, he wanted to hear something in justification of the Bill before their lordships. His opinion was not merely that the Bill ought not to be permitted to go any farther, but that it had already gone too far. Not one argument, not one word of the noble lord's speech went to justify the measure; He had stated nothing to show in what way, or upon what principle, the restraint which it imposed could be useful. The proceeding, he did not hesitate to say, was new; stud being so, was at least entitled to a single argument, or a short explanation. The Bill went to restrain a right which was not only exercised at present, but had existed for the space of 30 years. Between the year 1794 and the present time, 283 ships were built in India and registered. The Bill went to abridge that right. Would it be wrong to require time to read over the evidence, and enable ministers to do the same? The noble earl, in particular, ought to be fully aware of the evidence in support of his own case; yet not a word on that subject had escaped him. He thought that India should be permitted to remain as it was in point of shipping. All they wanted was, to be left as they were before; and yet his Majesty's ministers conceived themselves justified in withholding every information on a Bill of two years standing in the other House of Parliament. The authority of a noble person, well acquainted with East India affairs (the marquis Wellesley), had been quoted. He respected that authority much; but there was also another to which no allusion had been made, and whose weight could not be inconsiderable. He alluded to a speech that was spoken by the late lord Melville in the year 1801, in which that nobleman expressed a hope that he would live to see the day when India-built ships would
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be admitted into the ports of Great Britain, not only as merchant vessels, but as ships of war. He did not conceive why that right should be taken from them. It seemed to be taken for granted hat some restriction should be applied—why? no reason was assigned. And was this a season to refuse considering such important topics? Ought they not to observe the decency of some appearance of deliberation? The Indian empire had stood well and firmly, and he hoped would long stand so, under the regulations that had existed for 30 years. Some further delay would enable him to understand the subject better himself, and would afford the noble earl an opportunity of reviving his recollection and increasing his knowledge. His lordship concluded with moving, That the debate be adjourned.
The Earl of Buckinghamshireassured the noble lord and the House, that he had read every word of the evidence, nine-tenths of which did not apply to the question. At the time of the renewal of the East India Company's Charter, it was deemed necessary to introduce a clause to the same effect as the present Bill. Some misrepresentations, however, having gone abroad, and persons being desirous to be heard in evidence at the bar, time was given to produce them. It was afterwards determined that the clause should be taken out of the Bill, and made the subject of a distinct measure. A temporary enactment was then passed for the year, and the permanent one postponed to the present session. The misrepresentations had now abated, and the persons who before complained regarded it rather as a relief than an injury. If the shipbuilders of India were themselves satisfied with the Bill, the naval defence of this country was of such importance as to render the restraint imposed OH them a useful policy.
The question wag put on the adjournment, and negatived without a division. The House then went into a committee on the Bill.
Lord Torringtonobjected to the large proportion of Lascars beyond British seamen, as dangerous to the commercial and naval interests of the country, and proposed a clause for excluding East India ships not built and registered in this kingdom from the privileges of British-built ships.
The Earl of Buckinghamshiresaid, he

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should oppose the clause, on the ground he had stated before.
The Earl of Donoughmoresaid, that the Bill was intended to gratify the Thames ship-builders; yet, while it injured those of India, it did not satisfy these at home. The argument of counsel went to drive out India-built ships altogether. He saw no reason why we should embank in bad bottoms because they were our own, when we could get better from one of our own dependencies. According to that Bill the whole crew might be Lascars, on a certificate from the officers on the station. They were fonder of British ships than of British hands, and in that respect had abandoned the principle of the Navigation Act. He did not want the Bill amended, for he hoped it would not last long; and though the noble earl had read the evidence, it was desirable that when he next came forward, he should be better prepared to defend his own measure against a system which was sanctioned by the experience of thirty years.
The Earl of Liverpoolmaintained that the provisions of the Bill gave general satisfaction to the shipping interests. India was not under colonial restrictions, and the same principle did not apply to her as to the other colonies. A noble earl had supposed the case that India was independent; but even in that Case India-built ships would be admitted on the principle of the Navigation Laws.
The clause was negatived, and the report received without any amendment.