Sitting of 23 March 1819

ROYAL BURGHS OF SCOTLAND.
On a petition being presented from the royal borough of Dundee, against the present system of governing the Scotch burghs,
Lord A. Hamiltontook an opportunity of contradicting a statement which had been made during the last session by the lord advocate that the people of Scotland were perfectly satisfied with the reform which his bill had provided. The reverse was clearly proved to be the case, by the number of petitions presented to the House.
The Lord Advocatesaid, he saw no reason to alter any opinion he had expressed on the subject. He did not think the wish for reform was by any means general.
Mr. Humecontended, that the people of Scotland had a right to expect some redress. The situation of the very borough from which this petition came proved the necessity of a reform. He had a list in his hand of the magistrates of that town for the last twenty years, and he found that one set of magistrates presided this year, and the other set presided the next; and that the public property of Dundee had been let at half its value to friends of the magistrates. The petition was signed by nine-tenths of the population.
Lord A. Hamiltonpresented (similar petitions from Crail, Hawick, and Elgin.
Mr. Broughamsaid, the learned lord had stated that the people of Scotland were satisfied with the present state of the burgh system. When petitions however came in signed by so many, he thought his learned friend should make some exception to that observation.
The Lord Advocatesaid, he was still persuaded that the great body of the Scots population did not desire any such alteration. Were they unanimous, it would be different, but they were not, and besides the petition from Hawick just presented, was not from a royal burgh. Much dependence could not be placed on those petitions, which came from a few interested persons.
Sir James Mackintoshsaid, that of all the speeches he had ever heard, with re-

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spect to the presentation of petitions, that of the learned lord was the most extraordinary, and to him the most unintelligible, he had ever listened to. On all former occasions when his majesty's subjects applied to that House for a redress of grievances, the House particularly wished to see petitions from those persons who really were aggrieved; whose interests were injured; who demanded a definite redress, for a definite evil. But, if he received the learned lord's doctrine, he must relinquish all these principles. He seemed to say, that the petitions were not worthy the attention of parliament, because the statements contained in them were made by persons who were suffering under the grievance of which they complained, and whose situation enabled them to point out the most effectual remedy. Because persons, who had no specific connexion with these transactions, did not appear at the bar of the House, he argued, that no evil existed. If he had said, that the great body of burgesses had not petitioned, and had inferred from that circumstance, that they were satisfied, he would have understood him. He, however, had said no such thing; but had observed that the great body of the people of Scotland had not petitioned. He had proceeded on a sort of universal suffrage principle, and seemed to suppose, that the great body of the Scotch people were the proper persons to judge of the constitution of the burghs, instead of those who really understood the subject, and who suffered from the existing system. Tomorrow Or next day he should have the honour of presenting three or four petitions, praying for an alteration of that system, and he believed the learned lord would find, that a great majority, in point of property, character, and numbers, would very shortly appear before the House, complaining of the grievances under which they laboured in consequence of the mischievous manner in which their affairs were managed.
Mr. W. Douglassaid, that much of the confusion which had arisen in the funds of the Scots burghs was occasioned by the self election of the magistracy, and the want of control which the inhabitants had over the receipts and expenditure. The bill introduced last year was by no means adequate to remedy the evil. The expectation of the different incorporated trades in Scotland had been much excited by the charter given to Montrose; and he could
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not help thinking it a very extraordinary thing in government to act as they had done to the burgh of Aberdeen, thereby crushing all the hopes they had formerly excited.
Sir R. Fergussoncontended against the impolicy of government in refusing the same charter to the trades of Aberdeen, as they had granted to those in Montrose. In the latter borough the happy effects of such reform had been already felt.
Mr. Boswellimpressed upon the House the necessity of not placing the fullest reliance on petitions of this description, particularly when they called for what the petitioners were pleased to consider their inalienable rights. Had they confined themselves to a control over the expenditure of the burghs, or what was termed the common good, he was disposed to give his co-operation to the success of their application. A bill to that effect, he understood, was in preparation; and to that extent it should have his support.
Mr. F. Douglasstated, that under the present management of the royal burghs, the inhabitants were not only robbed of their rights, but almost of the power of giving expression to their grievances.
Ordered to lie on the table.

NEW SOUTH WALES—CONDUCT OF GOVERNOR MACQUARRIE.
Mr. Broughamsaid, he rose for the purpose of presenting two petitions from two individuals named Blake and Williams, free settlers at New South Wales, complaining of the conduct of governor Macquarrie. He felt it his duty to present them, having satisfied himself that they were couched: in respectful language. The truth of the allegations sat forth, must rest with the persons who signed them, but he must add, that he had made an inquiry respecting the petitioners, and the result satisfied him that they bore good characters, and were not likely wilfully to mislead the House. With respect to the conduct of governor Macquarrie he should say, that if culpable, he was disposed to consider such conduct rather as a fault of the system than of the man. He was placed in a situation of high and uncontrolled authority, in a distant settlement, under very peculiar circumstances—not alone peculiar from its distance, but from the character of a great portion of the people subject to his government, they consisting principally, on the arrival of governor Macquarrie, of convicts, although a very

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material alteration on that head had subsequently taken place. Of the present population of New South Wales, consisting of 20,000 souls, one half were free settlers; while the annual amount of the births was in the proportion of two-thirds to the number of convicts sent out annually from this country. From all this he inferred, that in an investigation of the conduct of a person exercising such a trust, the House would deal leniently in judging of any act, even though it exceeded the bounds which a sound discretion and a moderate temper would prescribe. Undoubtedly, the question at present would be, whether governor Macquarrie had far exceeded those bounds. If the House could place reliance on the accuracy of the allegations of the petitioners, it would be seen that those bounds governor Macquarrie had far exceeded. Amongst other allegations, the petitioners stated that taxes to the amount of 24,000 l. a year were imposed by governor Macquarrie, without his having any warrant in his commission to authorise such an act. Indeed he (Mr. B.) was of opinion that no commission for the Crown could delegate such a power to levy taxes in any colony, save a conquered one, not in the possession of a civil constitution. But whether the Crown had the power or not, was not the question here, as no such authority was given to governor Macquarrie by his commission. These taxes were levied on the imports, particularly on the article of rum, which was taxed at 10 s. per gallon. Whether governor Macquarrie was the first to introduce this system, he did not know, but he rather thought he was; at all events, by him the great bulk of the charge was imposed. The system of auditing the public accounts was also extraordinary. The money was issued by the local treasury on the warrants of the governor. All that the auditors did, was to compare the disbursements of the treasurer with the drafts of the governor, and if these corresponded, it was considered sufficient. Again, it was stated, that governor Macquarrie not only levied those contributions, but that he granted exemptions to his favourites amongst his household and connexions. A turnpike duty was another impost levied by him; and here also it was alleged he granted exemptions in a similar manner. There were also charges stated against him of general oppression, and for inflicting punishment for acts, that as offences were unknown to
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the law of this country. Mr. Blake, one of the petitioners, had complained of what he called the outrages of the governor. It was necessary to state, that as to this outrage, this was the third time that the petitioner had laid his grievances before that House. The outrage consisted in the governor having issued his order to the common hangman to punish Blake and two other persons, who were convicts, by the infliction of 25 lashes on the bare back, for only having gone over a certain piece of ground belonging to the governor. These men were thus punished, not only without any previous inquiry, but without any examination before any thing in the shape of a tribunal. No witness was examined. The men punished did not know with what they were charged, but were at once thrown into confinement, and from thence removed to the place where the punishment was inflicted. This accusation rested only on the assertion of the petitioner; but, recollecting that it was brought to the knowledge of ministers two, years ago, and that they had had time to inquire whether the statement was or was not exaggerated, if no contradiction or explanation were given it would go far in confirmation. Williams, the other petitioner, had also been a severe sufferer, by the unjust proceedings of governor Macquarrie. He had been a printer at the Cape of Good Hope; but being desirous of quitting it, he had obtained permission from lord Bathurst, with a promise of a grant of land in New South Wales; governor Macquarrie, however, asserted the contrary. When Williams arrived in New South Wales, he obtained employment in the office of Mr. Howe, the government printer, and was one of those who had signed a former petition to parliament, complaining of the conduct of the governor towards Blake. The consequence was, that as soon as governor Macquarrie heard of the fact, he sent a peremptory order to Howe to turn Williams out of his situation at a very short notice, alleging the fact, that he had signed the petition. Williams stated in the petition now before the House, that he had seen the original letter, or proclamation, and that he recollected its terms so accurately as to be able to set them out. It was dated the 17th of February, signed by the governor, and was addressed to Mr. George Howe in these words:—"Understanding that you have in your service a man named George Williams, who came last from the

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Cape of Good Hope without sanction, but whom from motives of humanity I permitted to become a settler, and it coming since to my knowledge that George Williams did affix his signature to a scandalous, rebellious, and libellous petition directed to the House of Commons against my person and government; now, it being my determination that such infamous incendiaries shall not be employed in any department under government, I hereby Command and direct you not to retain him in your service after the lapse of one week." He was disposed to make very great allowance for the situation of the person governing the colony. Much that was blameworthy in his conduct was undoubtedly to be attributed to the peculiarities of that situation, and to be excused on the same account. It was well known that the colony of late years had materially changed its character. If that governor, who had been sent out at a time, when almost the whole of the population of the settlement were convicts, had acted erroneously towards it, when it had so decidedly altered its description, it was not to be wondered at. What he wished to impress upon the attention of the House was, the imperative necessity of directing their consideration vigorously and forthwith to the subject before them. No time could be more proper for such consideration than the present. The colony in question was extremely important, and might very soon become the most so of all our foreign colonies. This was the very time for inquiry, when its governor appeared to be just entering upon a wrong course, and might therefore be the more easily set right. He thought that any charges which could justify a parliamentary inquiry into his conduct, would also justify his recall. His majesty's subjects in that distant colony had an indefeasible, and, till now, an unquestioned right to ask parliament to redress their wrongs. It might be urged, that the individual of whim they complained was absent; that was his misfortune; unless against that misfortune, he chose to set off his being the governor of the settlement. While he continued to exercise his functions as governor, the petitioners could not enter actions against him; if he quitted the government, but did not come home, they were still incapacitated from bringing their actions against him, because no process could be served upon him; it only
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remained for them, therefore, to come before parliament as they had done. On the other hand, he was quite aware of the difficulties which attended a matter of this kind, and that there might be circumstances which would make the inquiry possibly not quite advisable. The only question for present consideration was, whether, after the communications which had been received in the course of the two last years, it was not proper to give the complainants an opportunity of coming before parliament. If ministers, after petitions had been preferred during the two last years against the governor, meant to affirm that they remained still in ignorance on the subject, the only mode of proceeding left to the parties was, to ask of the House redress; all they demanded was an opportunity of soliciting that redress.
Mr. Moneysaid, that he had known general Macquarrie for several years, and was much surprised to hear such charges brought against him. If the allegations contained in the petitions were true, he could only say that general Macquarrie must have completely and essentially abandoned all those principles which had regulated his conduct during a long and honourable service. On his first arrival out he immediately set himself to ameliorate the condition of the people whom he was called upon to govern, and whose affections and attachment he very soon conciliated. He found the colony in a state of revolt, and both the civil and military departments in declared insubordination; the male and female convicts living together in a state of concubinage, and all the sacred ordinances of religion neglected. He applied himself to reform these abuses, and to enforce the observance of the sabbath day. It was not therefore to be expected, that under such circumstances, a people so disposed and composed should view the exertions of the governor with a friendly eye, or submit quietly to a new state of things. He felt that every person in that House, whether actuated by a love of justice, or by sentiments of regard for general Macquarrie, must feel anxious that the most minute investigation should immediately take place into the subject of the petitions. He would, however, claim this much for governor Macquarrie—that the House should not make a premature judgment upon his conduct, on an ex parte statement. All those interested in the prosperity and advancement of that distant

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colony would, he was sure, feel a great anxiety that the proposed inquiry should be made.
Mr. Manningobserved, it was not difficult to make accusations of the nature of those now under consideration, when the object of them was many thousand miles distant, and unable to offer any defence. Governor Macquarrie, to his knowledge, was a man of high honour and character. He had served in the Bombay army for eighteen years with distinguished reputation, and had also been for some years under the earl of Harrington on the staff of the London district, where he was well known and greatly respected. It ought to be considered that the greatest subordination was indispensable among such persons as those who resided in New South Wales. Under all the circumstances, therefore, he trusted gentlemen would suspend their judgment, until a full opportunity was allowed for the development of the facts of the case.
General Harthad been acquainted for thirty years with the gallant officer in question, and declared that he had never known a man of more unquestionable character, or one who appeared to him to be less capable of any unjust or harsh proceeding.
Mr. Forbestrusted that the most vigorous and expeditious measures would be taken, in order to inquire into the conduct of governor Macquarrie. Such measures, it had been intimated, had been taken: whether or not they might not have been more effectually taken than they had been, or been instituted through a better channel than that adopted, he would not now inquire. He had only one observation at present to make; it was a most extraordinary circumstance that the House was informed, one day, of oppressions said to have been exercised by the governor as against the free settlers; and, on another day, of oppressions against the convicts. He thought it fair to infer, therefore, that in point of fact the governor had acted impartially to them both. The hon. and learned gentleman had alluded to the governor's having laid a restriction on the importation of spirits into New South Wales, which restriction he appeared to consider unwarrantable. It would be obvious how necessary such a restriction was for the welfare of the colony. He himself knew of one instance of this nature. A vessel had sailed from India for New South Wales, laden entirely
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with spirits, and on her arrival she was refused admittance into the port, and obliged to return without discharging her cargo. Now, that vessel was partly owned by persons who had been long on a most intimate footing with governor Macquarrie; this at least bore testimony to his impartiality. There was one circumstance that he would mention, as it served to set the governor's conduct in a just light, in regard to his determination to protect the convicts against the free-settlers. When he first went out, he found that there was a regulation, which was observed by the judge, that no person who had been a convict, should ever be permitted to practise in the courts, either as a solicitor or barrister. It happened, however, that many persons of talent, who had unfortunately paid the forfeit of the laws, were at that time free, and resident in the settlement. This regulation would have thrown a monopoly of all the business and practice of the courts into the hands of one person, who had gone out thither with the judge. Governor Macquarrie resolved to allow individuals who had been hitherto excluded, to practise; and in the exercise of his authority, ordered the judge to receive them as barristers and solicitors accordingly. This measure was afterwards communicated to his majesty's government, and received its approbation. On the part of governor Macquarrie, he felt convinced, that that gentleman would be most solicitous to meet every inquiry it might be deemed proper to institute. The petitioners would, he hoped, very soon be able to seek for redress in any manner that might seem good to them; as, if he was not misinformed, governor Macquarrie had long expressed his wish to be allowed to return home.
Mr. Wilberforceentirely concurred with the hon. and learned gentleman, in the general principles laid down by him in his speech. At the same time, he could not deny to the hon. gentleman who had spoken last, the force of many of the arguments he had advanced, as to the oppressions stated to have been exercised by the governor against the settlers and the convicts. It was very possible that he might ultimately prove to have held a middle course between them; but he could not infer the same presumption of impartiality on the governor's part, on account of his having been said to have oppressed both parties. He had the pleasure of a short acquaintance with gover-

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nor Macquarrie before he went out to New South Wales, and he was impressed with a most favourable opinion of the goodness of his intentions, and of his fitness for his appointment. The conversations which he had had with that gentleman, had afforded him much gratification, and he always struck him as being a gallant soldier, well qualified for the service he was about to undertake. If he recurred with pleasure to those conversations, at the same time he could not forget the principles which he had imbibed under the protection of the British constitution, which he had been taught to identify with that constitution—principles which habit and experience had taught him to reverence, and which had been inculcated from his earliest childhood. From those he had learned, that the possession of absolute power was at all times one of the most dangerous gifts that could be intrusted to an individual; and with all his respect for governor Macquarrie, he would confess, that he should think him something more than human, if, vested with almost uncontrolled authority, his conduct had not been in some degree affected by that circumstance. It commonly had the dangerous effect of shutting up, or of corrupting, the channels of information to him who was so unhappy as to possess it.—The hon. gentleman then detailed the circumstances of a prosecution for a gross libel brought by a captain in New South Wales, against the secretary to the colony, and in which, though a verdict had been found against the defendant, with damages for 200 l. which by law was irreversible, the secretary had, after trial, given notice that he would appeal to the governor. Of the issue of the business he had not received an account; but he had learned, that the captain had been turned out of the barracks in a most disgraceful manner. The hon. gentleman then proceeded to observe, that he understood that the commission proposed to be sent out consisted of one person only. Now, really, that individual must have more than mortal powers of discernment, if he was to decide at once upon what was the real state of the case, in matters upon Which there had been a difference of statement. A greater, a more impossible task he could not conceive. The petition stated several grievances, which, if true, the House, he was sure, would feel itself called upon instantly to remedy. But what would that House say, if he should
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proceed to state the horrible state of the female convicts, who were wandering about the settlement literally without food or shelter, associating with the male convicts, who were in a state little better than themselves? Those wretched and unhappy women, with tears in their eyes, had repeatedly applied to the magistrates for relief, expressing their detestation of that dreadful subsistence which poverty and want compelled the them to resort to. But the best evidence of their deplorable situation would be found in the feeling letter of a magistrate, who had declared, that he would prefer following the many-victims which disease and want carried to the grave, than find himself unable to alleviate their sufferings. It had been proposed, some time back, to build a barrack for them; and in February last he (Mr. W.) had received a letter, stating that it was in progress; but what was to be done for their future provision? Unhappily, there were at this moment in the river, 150 female convicts going out to New South Wales. He was anxious for inquiry also, on this additional ground, that governor Macquarrie might be made acquainted with all that was known in this country. It might be, that he had expressed himself with too much warmth respecting that gentleman, and he must frankly state, that it was within his own knowledge that he had been appointed by his noble friend (lord Bathurst) upon nothing like what was called the interest made for him, but solely because he was deemed an able, active, and disinterested man. The House, he was sure, would not fail to keep in mind the difficulties of his situation, and the many examples there had been of good and humane men, who, when placed in offices of great authority, and under little control, had been; led into acts altogether incompatible with their former character. It had been remarked, in ancient times, of an eminent individual, "major privato visus dum privatus fuit, et omnium consensu capax imperii, nisi imperasset.' Who was so ignorant as not to know, that this was too generally characteristic of human nature? But it was also to be recollected, that the condition of the persons sent to that colony demanded also their serious consideration. One of the objects for which they were sent was, their amendment, under a system of government which should at least afford some image of the British constitution. It appeared to him, that it would

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be prudent to make it an instruction to the committee now sitting, to investigate the state of gaols, to receive information also respecting the circumstances of the settlement in New South Wales. The consequence of such an instruction, he would undertake to say, would be to procure a fund of knowledge in a very few days, which would do more to qualify the commissioner who was going out, for the execution of his office, than any directions that he might receive. He could not forget that we were still sending out cargoes of miserable beings to that distant colony, and it was most important that their passage should be freed, as much as was possible, from those causes of suffering that were in themselves inimical to moral reformation. This remark was not made without some knowledge, that great good had been already effected by the exertions of one or two individuals. He had not intended to say any thing harsh of governor Macquarrie, whom he believed to be a gallant and respectable officer, but the House had a duty to perform, not only to governors and officers in high command, but to those helpless and unhappy persons who could look to no other protection. Upon the whole view of the subject, he concurred in thinking, that the call for investigation was urgent and irresistible.
Sir James Mackintoshsaid, he should consider himself inexcusable, if, after what had taken place, he prolonged the conversation on the subject. The circumstances of the case were such as to call for an immediate and efficient inquiry. The friends of governor Macquarrie, as became their regard for his reputation and their zeal for his honour were loud and unanimous in their call for inquiry. To say a single word more in aid of the argument for inquiry, would be merely a waste of the time of the House. He rose, therefore, for the sole object of avoiding being misunderstood, to repeat his testimony in favour of governor Macquarrie. Having long and intimately known that gentleman, he was bound to state (what he had indeed before stated), that he always considered him a man of high honour and humanity. From all the observations which he had been able to make of governor Macquarries's conduct during the period of his acquaintance with him, he did not think it likely that he would ever be induced to deviate from those principles and from that character, which be maintained at the period to which he alluded.
Mr. Goulburnthought it his duty to offer a few observations on the subject. All were agreed as to the propriety of an inquiry into the condition of the colony. The only difference of opinion was, with respect to the precise mode in which that inquiry ought to be conducted. The learned gentleman had stated, and truly stated, that the condition of New South Wales was such as to render some reform necessary; to which, however, the learned gentleman had most justly added, that the imperfections existing in the administration of that colony were attributable more to the peculiar circumstances in which it was placed than to the character of the individual placed at the head of the government. It had been truly observed by the learned gentleman, that at the outset of governor Macquarrie's administration the state of the colony was such as rendered it necessary to invest the governor with greater authority than that possessed by the governor of any other colony. The materials of which that colony was composed were so extremely combustible that it required a strong compressive force to prevent them from bursting into flames. When the learned gentleman drew a distinction between the conduct that ought to be observed towards the convicts and the free settlers, he begged him to recollect, that if it was necessary to discipline with severity those who were sent to the colony for crime, it was necessary that, the free part of the inhabitants should be placed under great restraint, with the view of enforcing the regulations against the offending part of the community. He would not enter into the reasons for this. It was evident that if, without any regard to circumstances, the free part of the community were left with power to administer to the vices, or to the excitement of the convict portion of the community, the tranquillity of the colony could not long be maintained. The fact was, that when an insurrection did break out in the colony, the greater part of those by whom it was instigated and conducted were of the class of free settlers. He stated this, not with any view to exempt the governor from the consequences of making any improper, use of the authority vested in him, if such improper use had been made; but he wished to impress on the House, that when the laws of the colony were broken, either by settler or by convict, the settler had no right to complain if he was subject

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to the same punishment as the convict in similar circumstances. This brought him to the case of one of the petitioners Valentine Blake, a free settler, who with two associates (convicts) was subjected to punishment for a violation of the law of the colony. It had been truly observed, by the teamed gentleman, that the grievance of that person had been before stated in the House. If, therefore, it had not been inquired into by the department of hug majesty's government in which he had the honour to serve, that department would have been guilty of great neglect. An inquiry had however been instituted. The circumstances appeared to be these: there was a large place in the colony with walls and gates similar to Hyde Park, to which the inhabitants had free access at stated periods. The walls of this park, however, were frequently broken down, and all kinds of improprieties and irregularities were in consequence committed. This practice prevailed for a considerable time without notice; but at last the governor thought it proper to issue a proclamation, that any person found in the act of breaking down the wall, and thereby committing a trespass, should be punished, the punishment for such an offence being in New South Wales corporal punishment. It so happened that this Blake, with his two convict associates, were some time after caught in the act of breaking down the wall, and the governor immediately ordered the denunciation which had been issued to be carried into effect. He repeated that it was, and had been, the constant practice in the colony, to inflict corporal punishment for offences which undoubtedly were not liable to punishment of that nature in this country. This fact was stated in the report of the committee of 1812. As no observation was made on that report, it was natural for governor Macquarrie to conclude, that there was no objection to the practice. He was sure that if the learned gentleman were to ask, as he (Mr. Goulburn) had repeatedly done, those settlers who came from the colony, whether punishment was moderately or immoderately inflicted, he would find their invariable opinion to be, that if any error existed, it was that the punishments were too mild.—With respect to Williams, he had no knowledge whatever of that person's case. It would very properly become one of the subjects of the inquiry about to be instituted. He came now to the topic of the tax-
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ation of the colony. As to the duty on spirits, the House perhaps were not aware, that from the very first establishment of the colony it had been considered of great importance to subject them to a heavy impost; just as in this country the necessity was evident of preventing the introduction of spirits into our gaols and penitentiary houses. That duty in New South Wales was raised or lowered according to the particular circumstances of the time. On a late occasion, several persons had refused to pay the duty, and their representations brought the matter for the first time under the consideration of his majesty's government. He might be accused of negligence in not having sooner adverted to the circumstance. The fact was, however, that when he came to the office which he had the honour to fill, he found those duties in existence, and not understanding that any complaint had been made respecting them, he did not deem it necessary to institute any inquiry as to their legality. When, however, the representations to which he had alluded were made to the colonial department, his noble friend at the head of that department, directed that the case should be referred to the consideration of the law officers of the Crown. Their opinion was consonant to that delivered by the learned gentleman, namely, that the levying of the duty in question was illegal. That opinion had been given only within the last fortnight; and it would be his duty in a short time to submit to the House a measure by which the necessary restraints on the importation of spirits into New South Wales might be legally imposed. In answer to the questions of the learned gentleman with respect to the amount and disposal of the duties, he had to say, that he was not prepared to state the amount; but that the disposal was the same as that in every other colony. In every colony there was a treasurer, who was bound to issue money only on the warrant of the governor. The governor was responsible for the warrants which he gave to his majesty's government, who determined whether the expenses authorised by him were justifiable or not. This had been the practice at New South Wales, as well as at every other colony, and in no case had any inconvenience, resulted from it.—Adverting to the commission of inquiry about to proceed to New South Wales, he observed, that the hon. member for Bramber seemed to think that if that commission

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were composed of three members, instead of consisting of one, the objects contemplated by it would with more facility be accomplished. He would say nothing of the objection arising to the appointment of many persons in a commission for an inquiry into the state of a distant colony, inconsequence of the probability of their disagreement; for of that objection the hon. gentleman appeared to be aware. But he would state to the hon. gentleman what he thought the hon. gentleman had known, namely, the extreme difficulty of procuring any persons for the office who were qualified to execute it. The commission about to be issued was thought of so long ago as 1817. It was then determined upon, and he declared most solemnly that the delay had arisen from the difficulty which his noble friend had experienced in procuring a person who would accept of the office in question. He did not mean to say that there were not plenty of persons who would gladly have accepted the office of commissioner; but the object was, to select an individual who would discharge the duties of that office efficiently. Such a man had been found in the gentleman appointed, and such a man he did not believe the hon. member for Bramber would be able to find, were he to be allowed another year and a half in the search. The secretary to the commission also was so well qualified for the undertaking, that even if any accident were to happen to Mr. Biggs, which he was sure would be deeply to be lamented, that gentleman would be quite competent to complete the object of the commission.
Mr. Bennetdenied that the governor had the power of punishing civil offences by corporal punishment. By the act of parliament crimes committed in New South Wales could be punished only as similar crimes were punished in this country. The single difference was, that in New South Wales trial by jury was not necessary if the alleged crime were committed by a convict. Corporal punishment was illegally inflicted for a trespass, or for any other civil offence. Having exercised an arbitrary power of taxation for upwards of twenty years, the hon. gentleman new came forward and said, at length we find we have been wrong, we ought to have bad tie sanction of an act of parliament for what we have been doing. For himself, he highly approved of the tax on spirits; hit only objection was, to the mode of imposing that tax.
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He was ready to allow that the tax on spirits was imposed for the purpose of maintaining an orphan school, and other charitable objects; but, however, praise-worthy this object might be, still it did not give a right to take money from the pockets of the subjects. There were also port duties levied. What right had the harbour master to collect any such duties? Did not the hon. gentleman know that a tax was levied on each ship that entered the colony, and on each seaman? At all events, the governor ought not to be suffered to possess the arbitrary power which he had hitherto had. If the governor had had a council, none of the objectionable acts of which they had heard would, he believed, have taken place. A better natured, or a better disposed man than Mr. Macquarrie, he believed, did not exist; this was allowed even by those who complained of having been injured by him. There was something, however, in the nature of arbitrary power that tended to corrupt even the best men. As long as arbitrary power was vested in any individual at the other side of the globe, the House would necessarily be besieged with complaints. Feeling with his hon. friend the necessity of an immediate inquiry into the state of this colony, he gave notice that on Friday next he should move that it be an instruction to the committee on gaols to enter immediately on this investigation.
Mr. Broughamsaid, the common law was the law of New South Wales, as well as of England, with one exception, namely, as to the mode of trial, which was peculiar to that colony, and which it had under an act of parliament. This was not the case in matters of taxation only, but also in all other subjects whatever. The case was different when the Crown conquered a colony jure belli, which belligerent right remained in force till the Crown was divested of it. But when Englishmen discovered a country either uninhabited or inhabited only by a handful of people, like New South Wales, these Englishmen carried out with them the law of England. The common law was the birth-right of every Englishman.
Ordered to lie on the table.

STATUTE LAW OF SCOTLAND IN DESUETUDE.
Sir John Newportsaid, the subject to which he was about to call the attention of the House was one of very great importance. The object of his rac-

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tion was to obtain information as to the state of the law of Scotland, as to what acts of the legislature were deemed by the courts of that country to be in force, and what acts were deemed to be in desuetude. When he had last brought the subject before the House, the learned Lord Advocate had read him a lecture on his ignorance of the laws of Scotland. It had astonished him, and he thought it would astonish every person who did not belong that part of the empire, to learn that its judges united in themselves judicial and legislative powers; that they had, as was stated by the learned lord, the power of declaring what acts of the legislature were now binding on the people, and what were no longer in force; and that they exercised this power without control. The House ought to know what limits there were to this power of the courts of session and justiciary in Scotland, and whether these acts were binding in the other courts of judicature. He proposed to bring the whole subject before the House, that they might see whether this power, which if exercised at all, ought to be exercised only under the control of the legislature, was really assumed by the courts of session and justiciary. He had adopted the course of moving an address to the Prince Regent to derect an inquiry to be made into this subject. This would leave the subject with government. He could anticipate no objection to his motion. He thought that so valuable a part of the empire of which the people were distinguished by their ability, intelligence, spirit and gallantry, ought not to be at the mercy of a court of judicature. He had been told that the judges of Scotland not only declared entire statutes to be in a state of desuetude, but also declared parts of statutes to be in desuetude, while other parts remained in force. Was it to be tolerated, that a great portion of the united kingdom should remain in a state like this? He should therefore move, "That an humble address be presented to his royal highness the Prince Regent, praying that his Royal Highness may be pleased to direct an inquiry to be instituded into the nature, extent, and limits of the power exercised by the lords of session, judges of the court of justiciary, and barons of the exchequer, in Scotland, of declaring any part of the statute law of the land remaining with-out repeal on the statute book, to be in
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desuetude, or obsolete, and no longer of force to bind his majesty's subjects of that part of the united kingdom; and, in particular, into the authority from whence such power is derived, into the manner in which the courts of justice promulgate their decisions upon these Questions to the people of Scotland, and how far the decisions of any court of justice thereupon are held to bind their successors in such court, and the judges in the other courts of justice, finally and irrevocably; and to pray his royal highness, that the result of such inquiry, together with a list of such statutes, or parts of statutes, as have been declared to be in desuetude, may be laid before the House."
The Lord Advocatethought, considering the eulogium which the right hon. baronet had passed on the natives of Scotland, it might have been expected, that if the power so reprobated had been of that grievous description, at least some one of those natives would ere this have raised his voice against it in that House. But, since the year 1707, up to the present moment, no person belonging to that country had ever complained of the power in question. The right hon. baronet had proceeded altogether under a misapprehension. In the first place, the courts of session and justiciary never declared that statutes were no longer binding on the natives of Scotland; but it was a fundamental principle, coeval with the law of that country, and a principle in that great code on which the law of Scotland was founded, and which was the law of all the countries of Europe, with the exception of England, namely the civil law, that laws enacted by the legislature, by contrary consuetude fell into desuetude, or became obsolete. The right hon. baronet had stated this as an assumed power contrary to law. But he would read a passage from the principle institutional writer of that country, Mr. Erskine, who stated the law in these terms [Here the learned lord read a passage in which it was declared, that as a posterior statute explained or repealed a former statute, so a posterior custom derogated from the authority of a prior statute.] This principle was also laid down by lord Stair, one of the most constitutional writers Scotland had ever produced. But this matter did not rest with institutional writers, nor the decisions of courts, recognized by the House of Lords; but it was also recognized in the great foundation of

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the constitutional liberties of Scotland, the claim of rights, in which one of the grounds on which the parliament of Scot-land declared king James had forfeited his crown, was his having prosecuted his subjects on old and obsolete laws. This power was not a subject of complaint with the people of Scotland. They had never raised their voices against it. The judges of Scotland had never yet issued one decree pronouncing any law of the united parliament to be in desuetude; and if gentlemen would look into the statute law of Scotland, which was all contained in three small pocket volumes, they would find many of the statutes not very applicable to the present state of affairs. There was one law which he believed the right hon. baronet was not ambitious of violating; but it did not accord with the sentiments of many of his countrymen, who frequently honoured the people of Scotland with their visits. There was a statute against the importation of the Irish; and every Scotchman was liable to pains and penalties for importing them into the country [a laugh]. There were also laws against the exportation of black cattle or eggs.
Mr. Humeconsidered the inhabitants of Scotland as greatly obliged to the right hon. baronet for the pains he had taken in bringing the laws of Scotland before the House. He was far from thinking that, because no individuals from Scotland had raised their voice against the power in question, there were therefore no grounds of complaint against it. Such was the state of the law of Scotland at this moment, that it was impossible for any man before he went into court to know whether any law was in force or not. But the court of session not only decided what laws were, or were not in force; they passed what were called acts of sederunt, setting aside the law of the land. Lord president Hope had declared that acts of sederunt suspended the law of the land. It had also been stated from the Bench, as appeared from Buchanan's Reports of Remarkable Cases—"I do not Care what an act of parliament says on the subject, for I know there is a power paramount to acts of parliament," namely, the court of session. In several cases great injustice had taken place, from the court of session having, by acts of sederunt, declared the provisions of acts of parliament no longer in force. By the Scotch
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act of 1540, the subjects had a tight to bring their grievances before the courts in person; but in consequence of an act of sederunt, no man could go into court with a petition in his hands which had not the signature of a counsel. There were many of the Scots acts which deserved the character given them by the learned lord; but that was an argument for the inquiry proposed by the right hon. baronet.
The Lord Advocateexplained.
Mr. Boswellsaid, he happened to have the third part of the Scots acts in his pocket; and the hon. gentleman then read a passage from an act of Chas. 2nd, to show that the principle of acts of parliament being derogated by custom was recognized in these statutes themselves. It was one of the evils under which that country had suffered, that statute after statute was passed, without any one having ever been repealed. It had been said, that no individual of Scotland ever complained of this. He, as an individual, and many others, complained of this evil, namely, that a certain body of laws and acts were left in that sort of dubious state, that no person could say what act of parliament was in force and what was not, till it was brought before the court of session, and the matter was argued and the custom proved. It had been said by the learned lord, that many of the laws were absurd; but this was the Very objection he had to the system—if these laws were absurd, there was no doubt they ought to be repealed. As every man was bound to know what the law was, he ought to have it in as explicit a state as possible.
Lord Binningopposed the motion. If the custom of the judges of declaring laws in desuetude was monstrous, yet it was coeval with the existence of law in Scotland. If lord president Hope had used the expression imputed to him, he was certainly unfit to sit upon the bench. Statutes were declared in desuetude, not by acts of sederunt, but by decisions on special cases, argued by counsel. With those decisions the people of Scotland, the only persons interested, were well satisfied. Not a petition from them had been presented to the House on the subject: whereas, if the laws of Scotland had been attacked in that. House, the table would have been covered by petitions.
Lord A. Hamiltonobserved that if the laws which were liable to be affected by

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the power thus exercised by the judges of Scotland, were comprised in three small volumes, it was the more inexcusable hat the parliament did not reduce to a Certainty what parts should be obeyed, and what should be disregarded. To leave to the judges the facility of doing this, was to invest them with legislative power.
Mr. Forbespaid a compliment to the right hon. mover, to whom he thought Scotland was indebted for the inquiry into its courts of justice. The inquiry proposed might do good, and could be productive of no evil.
Mr. Kennedysaid, that though he was of opinion that the exercise of this power on the part of the Scots judges had been beneficial to the liberties of the people, yet the practice was such an outrage on principle, and so liable to abuse, that he thought the House bound at least to inquire into it.
The House divided: Ayes, 15; Noes, 33.