Sitting of 29 April 1819

SALT LAWS.
On the motion of Dr. Phillimore, the resolutions of the salt duties committee were then read. They stated the repeal of the laws on this subject to be highly expedient; and that the then state of the finances alone prevented the committee's recommending that repeal.
Dr. Phillimoresaid, he conceived that the resolutions just read would furnish the best apology for his obtruding himself on the attention of the House. They had heard that nothing short of the state of the finances prevented the committee appointed to examine into this question recommending the immediate repeal of these duties. The income of the country within the last year was increased 3,000,000 l.: if the committee, then, came to so strong a resolution last year, he was unwilling to think the House would be now disinclined to enter on the subject. In the spirit of those very resolutions, he

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meant to call upon the House to record upon their Journals, that it is highly expedient, at an early day, to take into their consideration the propriety of repealing the salt duties. When that committee first met, it was under circumstances which promised very little unanimity in their report; but the evidence before them was so unanswerable, that they came to the resolution now before the House. He was aware of the disinclination which at all times existed to entertain a question that excited no party feeling. It possessed, indeed, little party interest; but it was one every way important, not merely to the agriculturist, but in its relative operation on the poorer classes. This was a decided tax upon the necessaries of the poor; one which effected every article of their subsistence: in short, it operated with immense hardship upon them, the bushel of salt being taxed at 40 times its value. No tax operated more on their morals; and it had been found, that wherever it prevailed, it was the sure forerunner of crime. It was distinctly stated in an address of the grand jury for the county of Chester, that the profit derived from selling untaxed salt was so great, and operated so powerfully, as to taint the morals of that part of the community. The evidence before the committee, derived from various sources, all tended to establish the same conclusion. The temptation to steal, and conceal what was stolen, was such as to cause the practice too generally to prevail. But another argument, equally pressing, might be derived from the effect of these duties on the fisheries of the country, and on that spirit of maritime enterprise and achievement which they were so naturally fitted to promote. To these injurious and discouraging duties might, in a great degree, be ascribed the misfortune of this country being for many years precluded from the enjoyment of a commerce properly belonging to herself, but actually beneficial to her neighbours alone. The fault could not be traced to any change in the character of our fishermen, and sprang entirely from the operation of those duties, which threw that important branch of trade into the hands of capitalists and monopolizers. The Dutch, by their capital, and the Norwegians by their activity, were Carrying off all the advantages which it was easy for this country to retain in her own hands. They were,
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in fact, underselling us in our own markets, from the comparative cheapness of salt. He was apprized of the indulgencies extended to persons engaged in the fisheries; but he knew also that they were attended with restrictions and conditions, which greatly detracted from the relief that might otherwise be afforded. There were few who heard him who were not aware of the severity of the excise laws, and the heavy expense which might attend a supposed infringement of them. The collection of any tax on such an article as salt must be a matter of difficulty, and perhaps could only be enforced by severe enactments, Amongst the innumerable cases that attracted the notice or awakened the vigilance of excise officers, many instances of hardship and oppression might be discovered. Such cases, although their example might have no effect on minds of great force or cultivation, had a bad general tendency. It was indeed a sufficient objection to a tax of this description, that its necessary operation was to produce such cases as those to which he had alluded. In these cases the bonds and securities required were enormous in their amount. Upon inquiry he found that during the last three years the penalties included within these securities amounted to the almost incredible sum of 107,844,707 l. He did not wish to fatigue the House; but he thought it necessary to draw its attention to one part of the evidence respecting the fishery on the west coat of Scotland. The agent for lord Seaforth and Mr. Macdonald, of Clanronald, declared, that he had heard frequent complaints of the state of the fishery, and that in his opinion it was impossible for the common islander to preserve fish on his own account. The only object of justification of the duties must be the extraordinary revenue which they produced; and here he might be allowed to quote the authority of one of the secretaries of the Admiralty, who had frankly avowed his opinion, that if the duties were removed 20,000 additional seamen would be employed. It was satisfactory also to witness the accordance of opinion on this subject between the committee which sat in 1801 on the herring fishery, and the committee of 1807, on this subject of the salt duties. The chancellor of the exchequer, was chairman of one of those committees, and its report had only expressed the opinions of all who had turned their minds to the subject,

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or well-considered the situation of the country. He knew that it was a question with many, whether such a tax ought to be continued under any circumstances; but his own immediate views were limited to the placing on their Journals, a record of opinions which might serve as a guide for future judgment, and the substratum for practical measures hereafter. He conceived this course of proceeding to be more expedient than the adoption of another project which he had in contemplation—that of framing a scale of diminishing duties, the result of which would be to increase their positive amount. It was to the dispassionate judgment of the House that he now appealed, and he deprecated the interference of any party spirit on a question so nearly involving the best interests of the country. He should conclude by moving, "That, considering the severe pressure of the salt duties upon the lower orders of the community, and the great advantages which would accrue to the fisheries, agriculture, and manufactures of the United Kingdom, from the unrestrained and unlimited use of salt, it is highly expedient that the earliest practicable opportunity should be taken for the gradual reduction, or total repeal, of the said duties."
Mr. Davenportsaid, that the question was so narrowed by the inquiries which had been already instituted, that all that was necessary appeared to him to be to refer the House to the reports of the committees. Those reports, in common with the doctrines of all modern writers of authority on the subject, agreed in pronouncing this to be the worst of all bad taxes. It originated in a blind policy, and was in its operation as injurious to the poor, as it was discouraging to agriculture, and destructive of the fisheries. Foreigners were enriching themselves from the greatest source of wealth that Providence in its bounty had bestowed upon us. By an enormous duty on an article of necessary subsistence, we at once deprived ourselves of a nursery for seamen, and held out an irresistible temptation to fraudulent practices.
Mr. Wallacecould not perceive the advantage of passing a resolution, which, without repealing a tax, should cause the people to be dissatisfied with it. Impolitic as the measure might appear, one thing was certain—that in every state in Europe there was a tax on salt, and there was no reason to believe that in any of them it
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was considered as oppressive. He agreed that in France it was considered by some classes of the community as burthensome; but in that country it was not so much the tax itself that was complained of, as the manner in which it was levied. There the higher orders were exempted from its operation almost entirely; for the tax was not laid on the actual consumption, but every man was obliged to account to the government for so much, whether he consumed it or not. These objections, however, were not applicable to the tax as levied in this country. It ought also to be remembered, that this tax had been long borne by us; it had been laid on soon after the Revolution, and though increased from time to time, it had been borne without even a murmur, until the feelings of the public had been excited by the exertions of an hon. baronet now no more (sir T. Bernard) who, although he represented it as an evil which had long blighted the prospects of the country, never paid any attention to it till he himself felt it attended with a personal inconvenience. But was it possible that this grievance, if it was so great as it had been represented, should have so long escaped the observation of so many men of talents in that House? Was it possible that it could have escaped the observation of the people themselves, who were said to suffer so severely under its pressure? He was far from saying that the sentiments of the people were always to be collected from the petitions which were laid before that House; yet he thought that as no petitions had been presented, and no complaints made, it might fairly be assumed that the practical grievance was not great. He admitted that the laws on this subject had considerable defects, and of these the greatest was the temptation which they held out to evasion; but although in some respects this temptation was strong, yet in certain points of view it was not so much so as in other taxes. In general, the facility of defrauding the revenue was the great temptation to smuggling, and he admitted that it was easy to elude this tax; yet in smuggling salt, the evasion must be great indeed before the profit could be considerable, while in many other cases immense profit was derived from a small evasion. Another objection was, the necessity of guarding this tax with severe penalties. But that these penalties were not severely exacted appeared from the report of the committee, in which

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it was stated, that the number of prosecutions during a period of 20 years did nut exceed 11 each year. Whatever severity there might appear in the spirit of these regulations, it could not be denied that they were highly beneficial, since they secured a revenue of 1,500,000 l. a year. The principle of this tax was perfectly equitable, because it fell alike on all classes; it was easily collected for the expense did not exceed 2½d. per cent.; and its pressure was imperceptible, it being paid in small sums. In this last point of view it bad been alluded to by Adam Smith, as a tax that might be carried to a great extent without being much felt. He believed, indeed, that there was no tax of which the poorer classes were beard to complain so little. He was surprised the hon. gentleman should say that the operation of this tax was to make the poor pay a greater proportion than they ought. If the labourer paid in the first instance, it was clear that he must be repaid by his employer, and that in fact the former only advanced so much in the course of the week to be reimbursed by the latter at the end of it. [The hon. member contended, at considerable length that neither the labourer, the cottager, the agriculturist, nor the manufacturer, felt any inconvenience from this tax.] The fisheries, it was worthy of remark, bad been improving, even under these severe restrictions. There never was a more prosperous year for the fish-curers than the last, the quantity of salt, used had been greater than at any former period. The quantity of herrings caught last season on the east coast of Scotland, was so great that every market was glutted with fish, and not one herring had been uncured that could have found a market. The price obtained left only a profit of 3s. 6d. on each barrel, which was ruinous to the parties engaged in the business. Here was the effect of extending the fisheries: all the markets were glutted and the curers were obliged to sell at a price that ruined them. Yet to have heard the hon. gentleman one would have supposed that we had only to extend our fisheries, either by the repeal of the salt tax, or by any other means, and numberless advantages would instantly follow; we should have 20,000 seamen ready at the call of their country, and every acre of the sea would become as productive as an acre of land. The hon. gentleman had said that we were prevented from competing with
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the Dutch, by the cheap price at which they sold their fish; but if the hon. gentleman had looked at the evidence he would have found that Dutch fish sold at a price one-third higher than ours. He fully admitted the evils that resulted from smuggling, or from evading the duties; but they were not greater in this case than in others. The smuggling was not greater in evading the salt duties, than in the introduction of lace, gloves, and other articles from abroad. Neither was there any symptom of demoralization arising from this source evident in those districts where most salt was used in the fisheries, and where there was the greatest opportunity of evading the duty. He might appeal to the state of Scotland, of Cornwall, and of other fishing districts, for a proof of this remark. In the course of 7 years there had been in Cheshire, one of the great salt-mine districts, 1880 committals for all offences, but only ten of them for transgressions of the salt laws. The right hon. gentleman concluded by several other observations in defence of this duty, and contended that at this time, though it were even more liable to objections than it had been shown to he, the country could not surrender such a valuable source of revenue.
Mr. Curwensaid, that the right hon. gentleman observed, that the tax was fair and equitable, because it was general; but did he not know that it pressed much more grievously on the lower than on the higher classes of society? Did not the right hon. gentleman know that four ounces of salt were required for every stone of flour used in bread, which constituted so large a portion of the subsistence of the poor? From the income of the rich the tax on salt did not take more than a thousandth part, while from the wages of labour it cut off a twenty-sixth. The right hon. gentleman had asked, why, when this impost was borne so long, it was now objected to, adding that it was not, more intolerable now than for some time past? The fact was not as he had stated. The tax was more oppressive now than formerly, as other taxes had increased, while the ability of the people to pay them had not increased in proportion. The right hon. gentleman ought to have known, that the wages of labour had not risen according to the price of the taxed articles of consumption, and that they were regulated, not so much by the necessities of life, as by the demand for labour. It had been said,

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that as the peer man was enabled to give 8l. food of his pig, he could add 5s. more to salt it. This was not always the case fend many poor men sold their pig because they could not afford to pay for salt to preserve it. The right hon. gentleman had stated, that there had been only twenty prosecutions within a certain period far transgressions of the salt laws; but he would ask were there not thousands coin-promised? The fact was, that these prosecutions had become to some parties, somehow of other a monstrous source of revenue. The hon. gentleman went on to mention the advantage that would result, not only to the lower orders, but to the agriculture, commerce, and industry of the country, from the repeal of the salt-duties. The unlimited use of this article in agriculture would produce an immense effect. The quantity used would amount to 3,000,000 l. of money in value. It would be used in the fattening of stock, in manure, and for various other purposes. To show this he needed only to state, that in the first year after the late change in the salt duties, 8 tons only had been consumed in agriculture, while the quantity now was 120 tons. The importance of salt to the prosperity of our fisheries, and the consequent propriety of removing those restrictions by which the supply to the fish curers was restrained, were evident to every one who took the slightest view of the subject. In the last year we had paid 10,000,000 l. sterling to foreigners for food, a circumstance which showed the wisdom of granting every facility to a species of labour like that employed in the fisheries, by which food could be abundantly procured. The consumption of fish was increasing at home, and the people who formerly were averse to it were now compelled to use it. He knew that government could not well do without the tax; but he was convinced that less oppressive substitutes might be found. Five per cent on the rack rent of land, and half that sum on houses, would produce a greater revenue, and would not lead to to hurtful consequences. It was vain to talk of any relief to the lower orders from an alteration of the poor-laws. All the alteration would be merely matter of regulation. He would beg his hon. and learned friend to allow an alteration in his resolution, and to word it to the effect of a total repeal, and not a gradual reduction of the tax. The great evil were the regulations which would remain
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with any reduction. About 50,000 tons now paid duty, but more than double that quantity would be used if the tax were repealed.
Dr. Phillimoresaid, that his resolution gave the alternative of a reduction or a repeal.
Lord Ebringtonthought the House indebted to his hon. and learned friend, for bringing the question before them; for after two committees had been appointed to inquire into the subject, the country would have felt disappointed if the House had separated without expressing any opinion. He was astonished to hear the manner in which that tax had been defended; for it was reserved to them that night to hear, that a tax so heavy as this, on a necessary of life, could be endured without difficulty, and was on its merits fit to be continued. It was one of the first acts of lord Sidmoath's administration to declare that it was fit that this tax should be repealed on the first opportunity, and on the renewal of the war the same declaration was again made. It had been said, that till the late sir T. Barnard moved the subject, the burthen of the tax had never been felt. Those who made this assertion knew little of the lower orders; it had always been considered as a grievance; and how was it possible that this should not be the case, when a labourer in husbandry, with a wife and three children, whose wages in many parts of the country did not exceed from 18 to 20 l. a year, paid nearly 27 s. for salt alone? As to the indulgence, as it was called, which had been granted to the fisheries, by the bill of 1817, it had been productive to those for whose benefit it was expressly intended, of distress and inconveniences; as he in common with other gentlemen connected with the Western Fisheries, had stated that it would be when the chancellor of the exchequer brought in that bill. He cordially supported the Resolution.
The Chancellor of the Exchequersaid, that he had not, after the able speech of his right hon. friend, intended to trespass on the attention of the House, but having been alluded to as chairman of a Commit-tee connected with the subject in a former administration, he felt it right to explain the reasons why he held an opinion now which might seem different from that which was then entertained. The circumstances of the country were since wholly changed, at least so much that it

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would not be advisable to carry into effect the resolution then agreed to. It had been stated, that in consequence of our great increase of duties upon salt, the Dutch were able to undersell us considerably in the market; but it should be recollected that in the 16th and 17th centuries, when we had no duties at all upon the article, the Dutch fisheries surpassed ours; and it would not be said that our ancestors were less bold or adventurous than their neighbours. The present tax could not be considered excessive in proportion to the increase in our manufactures, agriculture, &c. In the number of prosecutions under the salt laws, which had been alluded to, there should have been included the compositions which had been made. He contended that the operation of the tax within the last few years had not diminished the fisheries, or our exports in that article; that they were rather increased, compared with recent years; and that the fishermen, by the productiveness of the trade, were enabled to increase their number of boats, and consequently to give employment to a greater number of hands. In conclusion, he observed, that if he were now of the same opinion which he formerly held, he should still oppose the motion, because he thought the only effect of condemning a tax, without repealing it, would be to render it more oppressive and less productive. He should therefore move the previous question.
Earl Comptainsaid, he should vote for the previous question—not because he coincided with the views of the chancellor of the exchequer respecting the tax, but because it was imprudent for the House to pledge itself to do hereafter what it was unable to do at this time. He should however be glad to vote directly for the abolition of the tax, and to replace it by the best substitute, a direct tax,
Mr. Davies Gilbertobserved, that in maritime places the regulations with regard to the salt permitted to be used for home consumption, were so vexatious that no person of property would become responsible for the dealers. The hon. member dwelt upon the various disadvantages resulting from the operation of the salt duties, and therefore he was an advocate for their total repeal. But yet, in the present circumstances of the country, he could not accede to the destruction of the resource arising out of these duties; nor could, he admit the policy of their gradual reduction, because such a course
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would be productive of confusion in the collection of the revenue, without any commensurate advantage to the people. But still he felt it his duty to vote for the resolution, in order that the House should stand pledged to repeal the duties alluded to, as soon as the circumstances of the country might admit of such repeal.
Mr. Protheroespoke in favour of the resolutions, and urged the necessity of considering the means of collecting the revenues of the country generally in a less vexatious and expensive manner than at present prevailed.
Mr. Alderman Heygatesaid, that when he considered the state of the revenue, which was so far from overflowing, that the sinking fund, to which the faith of the country had been so often pledged, might almost be said to exist only in name, combined with the difficulty of laying on any new tax in lieu of the duty on salt, he felt it impossible to vote for the motion.
The House divided on the previous question: Ayes, 50; Noes, 127: —Majority against the motion, 77.

List of the Minority.

Althorp, vis.

Gipps, G.

Allen, J. H.

Hollywood, W. P

Bennet, hon. H. G.

Hutchinson, hon. C.

Burnett, James

Holdsworth, A. H.

Barham, J. F.

Lamb, hon. G.

Browne, Dom.

Lemon, sir W.

Becher, W. W.

Maule, hon. W.

Bastard, E. P.

Methuen, Paul

Belgrave, vis.

Morland, S. B.

Bernal, Ralph

Monck, sir C.

Burrell, sir C.

Primrose, hon. F. W.

Clifford, capt

Parnell, sir H.

Clifton, vis.

Protheroe, Edward

Crompton, Samuel

Pares, Thomas

Curwen, J. C.

Ridley, sir M. W.

Colborne, N. R.

Rumbold,C.

Deerhurst, vis.

Robarts, Abraham

Douglas, hon. F. S.

Smith, Wm.

Davis, T. H.

Smith, hon. R.

Duncannon, vis.

Strathaven, lord.

Ebrington, visc.

Tremayne, J. H.

Egerton, W.

Webb, Edw.

Fremantle, W.

Wynn, C. W.

Fellowes, hon. N.

TELLERS.

Grenfell, Pascoe

Phillimore, Dr.

Gurney, R. H.

Davenport, D.

Gaskell, Benj.

PAIRED OFF

Gilbert, D. G.

Wilson, sir R.

INDICTMENT OF EDWARD BURKE— CONDUCT OF BARON M'CLELLAND.
Mr. Martin, of Galway, rose to bring forward the motion of which he had given notice, with respect to the conduct of baron M'Clelland in the trial of Edward

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Burke, an Irish attorney. That the character of a judge should be treated with all due deference, he was ready to admit, but when any judge was fairly chargeable with misconduct, it was the peculiar duty of that House to investigate such charge. He would read the resolution which he meant to submit, and which was as follows:—"That the proper officer do lay before this House a copy of the bill of indictment found against Edward Burke for wilful and corrupt perjury, at the session of oyer and terminer held for the city of Dublin in December 1814, together with the verdict of the jury on the trial of the said indictment, and copies of the affidavits that were made for the postponement of the trial."—He should briefly state the case which, in his judgment, called for the interposition of the House. At a commission of oyer and terminer in Dublin, in 1814, a bill of indictment was found against Edward Burke for perjury, but to prevent the cause from being brought to trial at that commission, Burke made an affidavit, deposing that he called at the house of Mr. Browne, whom he described as a material witness in his defence, and that he understood Mr. B. was so unwell as to be unable to attend the court. In consequence of this affidavit, he (Mr. M.) made an affidavit, that Mr. Browne, who was stated by Burke to be material to the elucidation of his case, because a party to a certain reference was by no means an active member of that reference, while the two gentlemen, who were really the referees upon that occasion, were ready to be examined—Yet it was the pleasure of the judge M'Clelland to order the postponement of the trial upon Burke's affidavit, which merely stated, that having called at the House of Mr. Browne, he heard and believed that gentleman was so unwell as to be unable to attend in court. Of this postponement, however, it was not now his object to complain, although at the time he was fully ready to prosecute the trial, But the trial was put oft' until the February commission following. On that occasion, however, he was himself under the necessity of applying for the postponement of the trial, in consequence of the absence of Mr. Simcocks and Mr. Killery of Galway, who although served with the usual process on his part, declined to attend. Mr. Coneys, also an eminent lawyer, whose evidence was peculiarly material to his case, could not attend the
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court but at the imminent hazard of his life. Of these facts he made an affidavit, but still he did not call for any more postponement of the trial than from day to day, in order to see whether Mr. Coneys would sufficiently recover to be able to attend the court, proposing, however, that if that recovery should not take place before the conclusion of the commission, the trial should be postponed until the commission following. That affidavit, he thought it would be admitted, ought to have put off the trial. But the proof did not rest there. Dr. Crampton, at the head of the Medical Institute in the university of Dublin, was in court, and made a similar declaration; not certainly upon oath at that moment, but he subsequently in court made an affidavit to that effect. The brother of Dr. Crampton also swore, that Mr. Coneys could not leave his bed without imminent hazard to his life. He would put it to the law officers of the Crown to say whether, if they were elevated to the bench, they would act as baron M'Clelland had ventured to act. He held in his hand the brief of the affidavits. He would tender them to the consideration of the House, and ask it to decide, whether such conduct on the part of a judge, should pass without inquiry, unless, indeed, it was meant to be inferred, that every act of an Irish judge should be absolved from censure.—What would be the result of such a course of conduct? Was there any case wherein the Crown could put off a trial? If there were any such case he felt confident there was not in his application for a postponement no one ingredient wanting which would justify a similar course. Had he not a right, then, to complain of the arbitrary manner in which baron M'Clelland forced on a trial against an individual whom he, as the prosecutor, might be allowed to think was guilty?
Sir G. Hillsaid, that this was a case of the very first importance; it affected the fame and character of a judge of the land; and there was no class or description of public functionaries, in whose uprightness of conduct the interests of the Crown, and the safety and liberties of the people, were so deeply concerned, as in that of those who filled the judicial bench. This principle, in good and former times, had been powerfully felt, and amply provided for. By the 12th and 13th Will 3rd., the judges are rendered independent of the

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Crown, to hold their situations during the life of the sovereign, and are removable only upon the Address of both Houses of parliament; and, by the first of Geo. 3rd., their independency is still farther secured, as their commissions are made to continue in force not with standing even the demise of the Crown. And, by the 21st and 22nd Geo. 3rd., the provisions of both these statutes were embodied, and made law in Ireland by the parliament of that country. Thus, the legal bench was placed beyond all undue influence or control. As already stated, a judge is removable only upon an address from both Houses; but such an address, he was bold to state, would only be justifiable upon a serious case, clearly made out against the judge, either of palpable incompetency on his part, of violent infringement of the liberty of the subject, or of gross partiality or Corruption. On the other hand, he insisted, that mere error of judgment, mere misapprehension of the law, to which the fallibility of man is liable, form no just grounds for such address; to such error, however, the learned judge had not, in this case, been liable, and against whom the hon. member had not ventured to insinuate the slightest suspicion of partiality or corruption. It would, therefore, be a most monstrous innovation, if the House were to countenance an application like the present for its interference, upon such trifling, stale, and insufficient grounds as the hon. member for Galway had brought forward. To what does the charge amount? That at the commission of oyer and terminer in Dublin, in February 1815, baron M'Clelland, being one of the Judges in the commission, refused to postpone a trial for perjury against a Mr. Burke, in which the hon. member was the prosecutor. If the House entertained such an appeal, there was not a common case of Nisi Prius in a civil court, nor the most trifling case of assault in a criminal court, that might not henceforth be brought before them for revision. He had the honour of knowing baron M'Clelland intimately, and a more intelligent, laborious, of upright judge did not adorn the bench of either country; justly confident in his knowledge and experience, and from his decisions, baron M'Clelland was incapable of partiality, or corruption. Learning that he was to be thus accused before the House of Commons, he had transmitted to a few friends, and to the right hon. baronet, as one of them, a
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statement of facts, bearing on this and another case—the first of which related to a trial at Galway, in 1813, when the hon. member was prosecuted before baron M'Clelland for challenging a gentleman of that county, and was convicted; and to which case the hon. member had not thought proper to allude. The other, which is the one at present complained of, occurred above four years since. Now, trivial, and out of time, and unjustified as this complaint appeared to be; yet, inasmuch as it had been made the medium of unworthy attack against this roost excellent judge, it was fit that he should be defended. He was sure the House would be gratified to hear an authentic statement of the facts which bore upon the trial detailed by the hon. member; they were furnished to him by baron M'Clelland himself. But, previous to making this statement, the House must be surprised to learn, that the hon. member had abstained from stating, that if injustice was done to him at the trial in question, another judge had concurred with baron M'Clelland in tiding him that injury. The late Mr. Justice Osborne, revered, esteemed, and lamented by all good men who knew him, was associated in the commission of oyer and terminer in Dublin with baron M'Clelland, when the trial of Burke for perjury in February 1815, at the prosecution of the hon. member, was brought forward; and Mr. Justice Osborne fully concurred with baron M'Clelland in refusing the application of the hon. member to postpone the trial of Burke to a future commission; and the House would-form its own opinion for what reason this fact had been suppressed by the hon. member. The particulars were as follow:—Mr. Martin, in 1814, commenced a prosecution against a Mr. Burke, an attorney, for perjury, alleged to have been committed by Burke in an answer to a bill filed against him by Mr. Martin. The bill of indictment was found by the grand jury of Dublin, in Dec 1814, on the testimony of Mr. Martin and a Mr. Leonard. At that sitting of the commission court, in Dec. 1814, the trial was postponed until the next sitting of the court in Feb. 1815, on the motion of Mr. Burke, grounded on two affidavits, stating the illness of Mr. Browne, a material witness, under a paralytic attack, and his inability to attend; and one of these affidavits was made by the medical gentleman who attended Mr. Browne, the witness. The

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next adjournment of the commission court was held in Feb. 1815, before Mr. Justice Osborne and Mr. Baron M'Clelland. It began on the 18th Feb, and ended on the 24th. The trial of Burke, as one postponed from the preceding commission, would naturally have had precedence; but in having been intimated to the court, that Mr. Martin was not ready for the prosecution, the trial was postponed from day to day, and was the last trial that took place at that commission; yet Mr. Martin hag ventured to state to the House, that he applied to have this case put last in the list of trials; that such request was refused, and that the trial was immediately called on. On the 23rd Feb., Mr. Martin, and a Mr. Coneys made each an affidavit to postpone the trial. Mr. Martin, in his affidavit, stated the absence of three material witnesses, and that two of them, a Mr. Killery, and a Mr. Simcocks, had been served with crown summonses, "as Martin believed," and referred to the affidavits of the service thereof; but no such affidavits were produced, nor are any such to be found in the Crown office. Judge Osborne, and baron M'Clelland then decided, that as there was no affidavit, stating positively the service of a crown summons on these two witnesses, or either of them, their absence was not a sufficient ground to postpone the trial, the prosecutor not having used due diligence to compel their attendance. As to the third witness, Mr. Coneys, the barrister, the affidavits, both of Mr. Martin and Mr. Coneys, brother of the witness, stated, that the witness lived in Dorset-street, adjoining the Court-house; that he was confined by a feverish complaint, and was attended by Dr. Crampton, and that they believed the witness could not attend on account of this illness: and Martin swore that he believed the witness could not attend during that commission. On these two affidavits, viz., that of Mr. Martin and that of Mr. Coneys, the counsel for Mr. Martin, on the 24th Feb., at the close of the commission, and when all the other business was finished, moved the Court to postpone the trial until the next commission, in the month of June following, according to the fact sworn by Martin, that the witness could not attend until the next commission—and not for two or three days, as Mr. Martin has ventured to state to the House. This motion was opposed by Mr. Burke's counsel, on the defects in the affidavit; namely, the want of any positive allega-
[1498
tions of the service of the crown summonses on the witnesses, and that no affidavit was made by the physician who at-tended Mr. Coneys, who was alone competent to swear to the inability of the witness to attend without hazard to his life. The counsel of Mr. Burke also urged, that the affidavits were made on the 23rd, and that no account was given of the state of the health of Mr. Coneys on the 24th, although he lived close to the Court house. The counsel also urged the hardship it would he inflicting on Mr. Burke to postpone the trial on such defective affidavits, and to keep so serious a charge hanging over the head of a professional man for four months; and the counsel for Mr. Burke then stated, that Mr. Coneys, then alleged to be ill, had been examined by Mr. Martin, as a wit ness in the equity cause, to support his case against Mr. Burke's answer, in which the perjury was said to have been committed; and counsel then offered, on the part of Burke, to consent that the said depositions of Mr. Coaeys should be read as evidence against him (Burke) on the trial, as if sworn in open court by Coneys. This offer was rejected by Mr. Martin. Judge Osborne and baron M'Clelland, on taking these arguments of counsel, and the affidavits into consideration, were of opinion, that, by the settled rules of practice, they were bound to refuse the motion. Mr. Martin has ventured to state that the affidavit of the physician who attended Mr. Coneys was produced, and that it stated his inability to attend; such statement of Mr. Martin is utterly unfounded; no such affidavit was ever produced to the Court, nor is any such affidavit in the Crown office. The Court having, refused the motion, Mr. Burke was given in charge to the Jury. Mr. Martin then rose and stated, that he was deserted by his counsel (the counsel had retired some minutes before, obviously being sent away by Mr. Martin), and proceeded to state the case for the prosecution, which he did at length, reflecting, with great severity, on the conduct and character of Mr. Burke, and detailing a variety of dealings between him and Burke on the points on which the perjury was assigned, and which he (Mr. Martin) stated to be within his own knowledge. As soon as Mr. Martin concluded his statements, he left the court, as did also Mr. Leonard, his witness, on whose testimony, and that of Mr. Martin, the bill of indictment was

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found. After waiting for some time, and having Mr. Martin, the prosecutor repeatedly called, and he not appearing, or any witness for the prosecution, the Court directed the jury to acquit the prisoner, which was accordingly done. The counsel for the prisoner then complained of the great hardship imposed on their client, by the Court having permitted Mr. Martin to make such a violent statement against Mr. Burke, and then to go away, as he had done; whereby the prisoner was precluded from all vindication of his character from the aspersions of Mr. Martin. The Court stated their regret at what had happened; but that they could never have foreseen such an occurrence as a gentleman making such a statement as within his own knowledge, and then shrinking from confirming that statement on his oath, and submitting to a cross-examination. The right hon. baronet then referred to an official certificate of Benjamin Riky, deputy-clerk of the crown in Dublin, from which it appeared, that the only affidavits produced at the trial alluded to, in February, 1815, were those of Martin and Coneys, to postpone the trial of Burke, and none from Dr. Crampton nor any other person. The right hon. baronet said. it was his duty now to expose to the House a most extraordinary proceeding of the member for Galway towards baron M'Clelland an account of which he had also received from the baron himself. On the 13th November, 1818, while baron M'Clelland was standing in the anti-chamber of the chief secretary, in the Castle of Dublin, Mr. Martin came in, and addressed baron M'Clelland, saying—"Sir, the last time I met you, was at Galway, where you tried me for challenging Mr. Bowes Daly." Baron M'Clelland replied, "It was a long time ago, and that the subject was an unpleasant one"—he wishing to stop the conversation. Mr. Martin then said, "Sir, you dealt me a hard measure of justice in that case, in refusing to hear me." Baron M'Clelland observed, that Mr. Martin having appeared and defended himself by his counsel, he (baron M'Clelland) had acted on that occasion according to the settled practice of the courts, and a decision of lord Ellenborough on the point. Mr. Martin then said, he had been called to the bar, and therefore was entitled to be heard. Baron M'Clelland replied, he never heard of that fact before. Mr. Martin then said, "Sir, I now give
*
[1500
you notice, that I will complain to the House of Commons of this conduct of your's." Baron M'Clelland replied, he was at liberty to do so whenever he pleased. Mr. Martin then observed, "Sir, what you did at Galway against me was a trifle, to what you did on the trial of Burke, the attorney, for perjury." Baron M'Clelland replied, whatever decision was made on that trial, was made by Mr. Justice Osborne as well as by him. Mr. Martin then said, "Sir, that don't signify; I now tell you, that your conduct, as a judge, on both these trials, was outrageous and unwarrantable." Baron M'Clelland then cautioned Mr. Martin from using such language to a judge, as it would compel him to apply to the court of King's-bench for redress—on which Mr. Martin, approaching close to the baron, and extending his arm towards him, said, "Sir, I tell you again, that your conduct as a judge, on both these trials, was outrageous and unwarrantable;" on which baron M'Clelland observed, that all further conversation between them must cease, and he left the room. Baron M'Clelland would have immediately applied to the court of King's-bench for an information against Mr. Martin, had it not been for Mr. Martin's declaration, that he intended to complain to parliament of the judicial conduct of the baron. On this account, the baron decided to take no proceeding which could be construed into any wish on his part to avoid that investigation. Shielded as the character of a judge ought to be, and protected as it was by the laws of decorum and decency, as well as by those of the land, from personal insult, the House, without further comment from him, would estimate the propriety of such conduct towards baron M'Clelland. The House would also observe the prudence, the judgment, and the patriotic anxiety of the hon. member for the constitutional interests of his country, manifested by him in preferring this accusation to the House. Who was there to support the hon. member? Amongst his friends, had he no one who would undertake this case of attack for him—so very personally concerned as, from his own showing, he appeared to be, was he reduced to the necessity of being his own advocate? But now, against his detailed accusation, the House would weigh and contrast the statement and character of baron M'Clelland, to whose value and excellence the gentlemen of Ireland

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would bear ample and ready testimony; and although he might have feebly discharged his duty in advocating the learned baron's defence, yet he hoped and expected that this House would not be contented to pass over the motion now before them by voting the previous question, but concur with him in expressing their disapprobation of the proceeding of the hon. member for Galway, and pronounce their direct negative upon his proposition.
Mr. Brownlowobserved that, although he had the honour to be personally acquainted with the learned judge, now under the public notice of the House, he should not speak of him with regard to those private virtues which, independent of his situation, would render him so incapable of an act of injustice or bad feeling. He begged to assure the hon. member who had made this motion, that he supposed him to be acting on feelings of the greatest propriety—either imagining himself individually aggrieved by the award of judgment, and, therefore, seeking redress from the impartiality of this House; or, induced by the motive of serving the public, in bringing to light and conviction instances of abuse on the bench. In either case, that hon. member must be aware of the importance, that an unsullied and un impeached reputation should attach to the judges of this land; and, therefore, he was bound to believe that this was not an accusation lightly made, and that a high judicial character had not been wantonly dragged to solemn examination before that House. He felt himself bound to state, diffidently on his own judgment and experience, but authoritatively on the uncontradicted testimony of all whom he had consulted on this occasion, that never was there a man more fortified by his character than the learned judge against accusations of this kind, both by his abilities as a lawyer, and the active, unceasing, uncompromising discharge of his duty as a judge. But, what was shortly the circumstance that had been attributed to the learned judge, and not singly to him, but to the late judge Osborne, who presided with him, and whose name had been suppressed. At a commission where these two learned judges presided, the hon. member for Galway was himself the prosecutor of an attorney of the name of Burke, for corrupt perjury; and no evidence appearing to substantiate the charge, the prisoner was about to be given in charge to the jury, when the pro-
[1502
secutor moved for a postponement of the trial till the following commission, on the natural grounds of the alleged illness of his principal witness; but this was supported by his affidavit alone, unaccompanied by that of a physician, who, in courts of justice, was alone acknowledged to be the proper judge of the sufficiency of the reason, when that was said to be illness; and why was the hon. member's affidavit to make an exception to this rule, to detain a professional man for several months longer, under the odious imputation of perjury? But the prisoner did not wish to avail himself of this contingency, and his counsel offered to admit the deposition of the sick witness. This was also refused. Therefore, in the absence of evidence to substantiate the charge, the want of a proper testimonial to the alleged illness, and a refusal to admit the deposition, the prisoner, as a matter of course, was tried and acquitted; and on these grounds was the learned judge outraged in his feelings as a gentleman, and was now before the House for arbitrary and precipitate conduct as a judge. The hon. member observed, that, could he fancy abuse existed, he should be anxious to bring it to light; but to him there was not the presumption of inadvertence; and if such should appear to the House, he trusted they would bear in mind, that the very impeachment of unsubstantiated guilt was a hardship, and that the learned judge could not but have been much harassed in his feelings by this impending motion; and that they would make some remuneration to his feelings, and to the injured memory of a judge now no more able to defend himself, by a full and honourable acquittal.
Mr. C. Grantsaid, he would not enter into the statements made. He hoped the House would decide this question on higher grounds. No principle was better understood than this, that a judge, in his judicial capacity was not accountable for any involuntary error. He hoped there was no reason for departing from this principle. There was not here the slightest imputation of partiality or corruption-there was not then the slightest shadow for such a charge. He much regretted that the hon. gentleman should have brought forward this motion. The high character of the learned judge should have protected him from a charge for which there was no foundation whatever.
Mr. Leslie Fostersaid, that parliament

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could not entertain the motion; it would turn the House into a court of appeal.
The Attorney Generalsaid, that on principle the motion could not be sustained, and that it was altogether unsupported by facts. There was nothing in the Conduct of the learned judge that could expose him even to the suspicion of partiality or corruption.
Mr. Martinrose to reply. He said, it bad been asserted, that he had not imputed corrupt motives to the learned gentleman; he would now say, that the conduct of baron M'Clelland was corrupt. He applied the term in the legal and proper sense of the word. He might not have been corrupt for money; but he acted on the seat of justice from motives of personal resentment. He therefore charged baron M'Clelland with corruption, and he would prove the charge, if the papers he moved For should be given. When these papers should be granted, he would then consider what course to take, whether he should move for the dismissal of baron M'Clelland for weakness and incapacity, or whether he should move that he be dismissed and censured for corruption. As for the transaction that took place in Galway, he would state it to the House. Here the hon. gentleman entered into a detail of the facts connected with a dispute he had with a Mr. Daly, which he described in so very theatrical a manner as to keep the House in a continued roar of laughter. He complained that at a prosecution which took place in consequence of this dispute before the learned judge, he was prevented, though a party, either to cross examine Mr. Daly, or to speak to evidence. As to the trial of Burke, his (Mr. Martin's) counsel publicly stated, mat if the arguments they had urged could have no weight with the judge, it would be no use to urge any thing further; and Mr. Grampton satirically said, that his lordship was about to non-suit the crown. Baron M'Clelland had an accommodating disposition. He would not reply to Mr. Crampton, because he knew that gentleman was connected with Mr. solicitor general Bus he. The baron had been always remarkable for his attentions to the great; he partook of the qualities of the hare and the tiger-he had all the timidity of the one, and all the ferocity of the other; he had been, through life, remark able for his submission to those above him, and to those below him, if any person could be below him, he was harsh, arro-
[1504
gant and supercilious. His conduct had been the more criminal, because he could not be accused of mere ignorance. he had not indeed an enlarged, but he had a technical mind.
The motion was negatived without a division.