Sitting of 14 February 1821

ATTORNEYS AND SOLICITORS.
Mr. Serjeant Onslowrose to move for a committee to inquire into the laws respecting the admission of Attorneys and Solicitors in England. The measure he had in contemplation was not intended to apply

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either to Scotland or Ireland. As the law now stood, no individual could act as an attorney or solicitor, who had not served for the term of five years; and his object was, to strike off two years from the five, provided the person desirous of becoming an attorney or solicitor had taken a degree at the University. This would have the effect of imparting additional respectability to the profession, while the knowledge of the individual would be considerably improved. The judgment of persons thus situated would be much more matured than that of others who had not received an equally liberal education; for it was perfectly clear that a well-cultivated mind would learn more of the legal profession in three years, than a raw and uncultivated one could imbibe in the course of five.
The motion was agreed to, and a committee appointed.

CONDUCT OF SHERIFFS.
Mr. Beaumontrose to call the attention of the House to the conduct of Sheriffs in refusing to call county meetings. It would be in the recollection of the House, that on Friday last a petition was presented by the noble lord who was member for Chester complaining of the conduct of the sheriff of the county, at a public meeting, in two instances. In the first place, it was alleged that he had prevented an amendment from being put; and, in the next, that he had not proposed the negative question on the original motion. In bringing forward this motion it was not his intention to discuss the particular conduct of this sheriff, nor to propose any vote of censure on him, in consequence of the course he had adopted. All he meant to do was, to state the general inconvenience which arose from the conduct of sheriffs, under certain circumstances, which inconvenience had been experienced in Northumberland, in Gloucester, in Kent, and in some other counties, and to endeavour to procure some legislative measure to prevent the recurrence of the evil in future. He would briefly introduce the subject to the House. With respect to the conduct that had been immediately complained of, it was most obvious that if a sheriff had the power of declaring to a public meeting what should and what should not be received—what he thought proper to permit and what he pleased to prevent—the inconvenience and injustice would be, that
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all discussion would be precluded. Again, if when a public meeting was assembled, the sheriff refused to put the negative question on any proposition, it was quite evident that the real sense of that meeting could not be collected, when its opinion was not asked both affirmatively and negatively. He should not trouble the House with a detail of all the examples which had been recently set by sheriffs who had refused to call county meetings, but would confine himself to one; namely, that of the high sheriff of Northumberland. The case was this—a number of gentlemen of rank and property in that county had signed a requisition, calling upon the high sheriff to convene a county meeting. The object was unequivocally legal, and the parties indisputably entitled to address the sheriff upon such an occasion. In any view of the case there could be no possible or reasonable objection to comply with their request, nevertheless the sheriff thought fit to return a refusal, and to decline assigning any reasons, except that he acted in the exercise of his own discretion. Now, it could never have been contemplated by the legislature, in passing the late act, that the sheriff should set up his own will and pleasure against the sense of a large number of respectable persons in the county, who desired a public meeting—quite the contrary; for he well recollected, when that act was pending, a minister of the Crown declared that the power vested in the sheriff was calculated more to promote than prevent real county meetings, for they would, according to the new regulation, have the additional dignity of the presence of their constitutional officer whenever they assembled. So that it was clear parliament never intended by the enactment to restrict the right of petition; although, after the use which made of the act, they should be extremely cautious how they did any thing that was calculated to be misconstrued into the power of restricting so valuable a right. In the committee, he should propose, cither to repeal or amend the former act, or to affix some specific and clearly defined boundary to the discretion of the sheriff respecting county meetings. In making this motion he had no wish to keep alive any subject which was calculated to keep alive the agitated state of the country. He conceived, however, that any question involving the exercise of the right of petition was of such vast importance

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as to require consideration. They ought to ascertain if that right had been restricted, and, if so, to adopt such measures as would prevent a recurrence of the evil. He concluded by moving, "That the petition of certain inhabitants of the county of Chester, presented to this House on the 9th instant, and complaining of the conduct of the sheriff at the last county meeting, be referred to a select committee, to examine the matter thereof, and report their observations thereupon to the House."
Mr. Davenportrequested to know what was the difference between the present motion and a motion of which notice had been given by the member for Appleby.
Mr. Beaumontsaid, that the present motion was directed towards a general legislative measure, while that of his hon. friend referred to some particular in stance.
Mr. Creeveysaid, he thought that the motion of his hon. friend would have been for a general inquiry into the conduct of sheriffs as to the exercise of their discretion in refusing to call county meetings. His object, in giving the notice of last night, was to bring the conduct of the sheriff of Chester before the House, with a view, in case it should appear that he had acted improperly, of having him censured.
Lord Castlereaghsaid, it appeared to him that both motions were of the same tendency, and went to affect, in the first instance, the conduct of an individual. Both were, in his view of them, anomalous; for they called upon an individual—and without, at the outset, showing the fullest necessity—to encounter the expense of defending himself at the bar of that House from an imputation. It was a serious thing to put a gentleman under the reprehension of that House, without previously affording him the opportunity of showing whether or no he could justify his conduct. Although his majesty's government had no desire to obstruct any inquiry which had for its object the removal of any supposed impediment to the right of petition, yet he thought it too much to call upon that House, at the outset, to erect itself into a tribunal over the exercise of the discretion of a high sheriff, whose deliberate powers were recognised by the control vested in him over the arrangements of the county courts. Let the House be put in possession of the particular acts on which the charge of de-
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linquency was grounded, and then let it be seen what explanation or justification could be applied to these facts. With respect to the present motion he should wish to ask the hon. mover whether he thought it wise to press it, when on Tuesday they were promised a fuller statement of the particular case?
Mr. Beaumontsaid, that nothing was farther from his wish than to take the House by surprise upon this subject, or to interfere with the motion of his hon. friend. He was ready, therefore, to withdraw his motion for the present.
The motion was then withdrawn.

SCOTCH JURIES BILL.
Mr. Kennedyrose and apologised to his honourable friend, the member, for Northumberland, for his apparent inattention to the arrangement which had been made on a former evening—that of allowing his notice to take precedence—but he (Mr. K.) was extremely unwilling to proceed in the absence of the learned lord-advocate of Scotland. At the same time, having waited until the last moment, he was sure the House would feel with him, that, however reluctantly, he must now proceed—The subject to which he was about to call the attention of the House was one of which he had given notice nearly two years ago. He had abstained during the last session from introducing it, owing to peculiar circumstances in the condition of the country. But, having done this, he was the more anxious to propose the measure with which he should conclude, early in the present year—and particularly as he could not be aware how long it might be convenient to the learned lord to attend his duty in that House. He ought perhaps to apologise to the House for the nature of the motion at a moment when the temper of the House and of the country was scarcely tranquillized, or withdrawn from a subject which had so much occupied its attention—but it did appear to him that the time was come to proceed to other important matters. It was not so interesting as a measure affecting the financial, agricultural or commercial embarrassments of the country—subjects to which he should be happy to see the attention of the House directed and especially—by honourable members on the other side of the House, under whose auspices success and advantage were more probable—but he could not think the amelioration of the criminal law or

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of the judicial system of its administration at any moment uninteresting or unimportant. To make such attempts on any extended principle he was himself incapable, but his present object was not beyond the capacity of any man.
It was most important to correct any imperfection in the administration of that law; to remove the possibility of imputation upon the sacred character of the judges.—He begged to be understood as speaking of the supreme criminal court in Scotland with all respect—he did not come there to attack the conduct of the learned persons who composed it.—His wishes were of a very opposite character, by removing all risk of misconstruction or imputation to place them above the possibility of suspicion, an object at any time laudable, but particularly so at a time when it was not unusual to say that a disposition to degrade the valuable and dignified institutions of the country was characteristic of the times in which we lived. If such was the case, each proposal of improvement was their best defence, and if defects did exist in them, their security consisted in a watchful observation which would lead to a well-timed remedy of such imperfections. He understood that some general measure was contemplated; but he well knew how little weight he could have in recommending particular points as parts of such measure. For this reason he had resolved to submit his present motion for the specific purpose he had in view.
The hon. member proceeded to state that there were many points in the judicial system of the criminal law of Scotland and in the law itself, which he conceived to be defective, and referred in the first place to the stat. 1701, cap. 6, which was to be considered as the Habeas Corpus act of Scotland. A construction of that act, and a practice following upon it had arisen which was undoubtedly hostile to the intention and spirit of that salutary law. By that law, every criminal indicted for a crime of high degree, could compel the public prosecutor to bring him to trial within a limited time It seemed clear that the time had been unduly extended by the modern construction of the law, so that all the benefit intended was not enjoyed. The provisions of the act ought to be amended.
Another point was, that while certain amounts of bail proportioned to the con-
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dition of the party, were provided and which had been raised to larger sums in modern times, no proportional increase had been made in the amount of the penalties to which parties were entitled upon successful prosecution for wrongous imprisonment—Such disproportion was unfit. If the rates of bail were raised, so ought the penalties for wrongous imprisonment to be augmented.
It was also an evil, that "Letters of Intimation—which were the instrument by which a prisoner forced on his trial, were more expensive than suited the means of most persons in that unhappy condition, such he was assured was the fact. The expense of such a proceeding ought to be so moderate as to present no impediment to the attaintment of the benevolent object of the law in behalf of the meanest criminal in the realm. Moreover the act of 1701, did not apply to persons not in prison, to those who were alleged to have committed crimes for which bail is received.—Persons could qualify themselves to receive the benefit of the act only by going to jail. There could scarcely be any propriety in denying to the offender of smaller magnitude the same privilege of expediting the determination of his own guilt or innocence as was given to the person accused of crimes of the greatest enormity. Each should have the like means of limiting the time within which the public prosecutor should be able to arraign him as guilty. To the public service no injury could arise from this extension of the enlightened spirit of the laws. [Hear.]
Another subject was worthy of the attention of the House, viz: the power of the court of justiciary to award punishments for offences which were not provided for by statute, which are aptly termed arbitrary punishments the power possessed approached to a legislative authority; a power of forming a practice, where statute does not provide, varying from the most inconsiderable punishments to the highest penalties of the law, short of capital condemnation. He did not, indeed, mean to say, that severity was characteristic of the punishments so inflicted, but the system did produce a want of uniformity in punishment, an I uncertainty of degree in punishment, varying with the character of persons, and the spirit of the times, which could not be considered beneficial. The state of the law respecting the punishment of

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offences against the state was unquestionably a great grievance. In Scotland, a person found guilty of sedition, for a first offence was liable to transportation for seven years, for fourteen years, or for life. In England, for a first offence, he was liable only to fine and imprisonment: and it had been deemed a measure of great severity when the judges were empowered by the act of 1819, for a second offence, to banish for seven years. Such disparity of punishment for the same offence, in two portions of a country which ought to be considered one, could not be considered just or expedient. [Hear, hear.] Yet Scotland suffers under this rigorous exercise of power, of the existence of which grave and high authorities doubt, but while they express their doubts, it is without scruple exercised. So within a year, a person of the name of Macleod, convicted (a first offence) of a seditious libel was transported for five years, and his sentence was considered a measure of leniency, while in England he could only have been condemned to fine and imprisonment [Hear, hear]. Such was the state of the law affecting the liberty of the Press; to Scotland the comparison was most unfavourable.
He would next advert to the office of lord advocate of Scotland, to the extraordinary accumulation of powers attached to it: 1st, the lord advocate had an unlimited power in the nature of ex officio information, in crimes of every description and degree, with the single exception of treason. Even that exception did not exist before the union, but at that time the English law of treason was introduced into Scotland. And it was in example of a beneficial alteration in the law. Nothing in the nature of a grand jury existed in Scotland, with the exception stated; and without any desire to state that the powers of the lord advocate, vast as they are, were in general vexatiously exercised, it was impossible not to be of opinion that some control of them was called for, and that the great interests of public justice would be better consulted by an abridgment of those powers, which could not fail to be looked upon with some degree of suspicion and alarm. [Hear.]
Another power belonging to the lord advocate was, in all cases, at the moment a prisoner was brought to the bar, to pray the court, as it was termed, "to
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desert the diet pro loco et tempore," that is, to delay the trial and remand the prisoner until a future occasion, either from the proceedings being inaccurately prepared, the absence of a witness, or any other cause. Such desertion of diet is no doubt the act of the court, but it is an act so constantly practised upon the application of the lord advocate or even his deputy upon circuits, as to be in fact the act of the public prosecutor. That it may be usefully exercised is certain but that it may be abused and has been the means of prosecution is not less true. Cases of minor importance constantly occur, but a remarkable case was that of Mackinlay, a few years since indicted for sedition, his indictment was drawn with such want of skill, that he was either three or four times brought to the bar for the same offence, the diet deserted, and he remanded to prison. The court certainly did not exceed its absolute power, but no one could contemplate that proceeding without feeling that it was a disgrace to the country in which it took place and to the public prosecutor to whose incapacity it was attributable. [Hear, hear.] The hon. member said that he called the attention of the House to those topics to shew that in his opinion he did not seek to direct the attention of parliament and the country to the practice of the criminal law in Scotland on light grounds, and unquestionably the office of lord advocate had attached to it a most dangerous and anomalous complication of power. It ought to be re-modelled, and in it's scope ought not to exceed the powers which belong to the attorney general in England, all the points to which he had shortly adverted were most important, and he hoped that the general measures intended to originate with official persons in Scotland would not fail to embrace many if not all of them. [Hear, hear.]
The hon. member proceeded to state, that the measure he was about to propose, was limited to a single, but most palpable and crying evil; the manner in which juries are chosen in all criminal cases, excepting in treason in Scotland. The law and practice now existing were most unfit. It was not his intention to say any thing of the system by which the sheriffs provided the persons from among whom juries were chosen, farther than that he believed it to be by no means perfect: but the sheriffs acted upon their

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responsibility, and on another occasion the result might be enquired into. It was enough to state that whether to the supreme court of justiciary at Edinburgh or to its circuits throughout the country, 45 persons were sent as jurors, composing a body called the great assize. And here it was impossible not to keep in view a fact, that in the composition of the 45, the judge had something approaching to a nomination. At Edinburgh, cases were tried that arose from a certain number of adjoining counties; and so at circuits, it might be said, that there were contributary counties to each circuit town. From each contributary county previous to each circuit, a list of 45 persons is sent to the justiciary office at Edinburgh, and from the lists of 45 persons so sent from each county, amounting to 90, 135, or 180, as there may be 2, 3, or 4 counties contributory, the rectified list of jurors, who are to compose the great assize, is selected by the judge, who is appointed subsequently to proceed on the circuit. Thus much as to the 45 persons who appear in court on the day of trial, and who have thus undergone a preparatory examination and selection by the judge. It may be here noticed, that when they do appear in court, there is no challenge of the array. From the 45 persons so appearing, 15 are chosen by the same judge to try the case; and it may be observed here, that in Scotland, in criminal cases, the jury decides by a majority; so that not unfrequently, a single voice condemns or acquits.
The bill for which the hon. member was about to move, went to alter the mode in which the jury of 15 is chosen from the 45, or great assize. He did not wish to attempt any change, or to remedy any other part of what he might consider a defective system: but to restrict the measure to so moderate and obvious an improvement, as would reconcile all to the useful and simple measure, which in conclusion, he would propose to the House. Mr. Hume, who was the great authority on the criminal law of Scotland in treating of the constitution of juries, says, "They are named by the presiding judge from the Roll of 45; and are presented, five by five to the panel; who is asked if he have any objection why they, or any of them, should not pass on his assize." He proceeds to state the causes of objection which are admitted, such as a juror being
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insane, deaf and dumb, an infamous person, an outlaw, or having committed a grievous injury against prisoner, or in the case of prosecution at the instance of a private party, the juror being nearly related to the prosecutor. That such causes of challenge are sustained, but that "our custom allows him not that freedom, which the prisoner has in England, of setting aside so many of the jurymen, by a peremptory challenge, or without assigning any cause." Mr. Hume, indeed, says, that such being the uniform and unquestionable practice, it is strange how sir George Mackenzie, in his vindication of Charles 2nd, states, that a statute passed in that reign, giving the prisoner the power of peremptory challenge, to the number of 30. Mr. K. said, that such was the statement of the greatest authority on the subject, but it was not his intention to found his measure upon the result of antiquarian research; the state of the law and practice was undoubted, and he ventured to think it equally clear, that that law and practice was altogether unfit to be continued. He did not found this opinion upon any new or theoretical principle, but upon a practice which was familiar to the House, which prevailed universally, with the exception of the criminal law of Scotland. He had the sanction of the law of England, of the law of treason in Scotland, of the court of Exchequer in Scotland, of the trial by jury in civil causes in Scotland, and of local and personal acts, which applied to that country. In such circumstances, he was sure that he should not appeal in vain to a British parliament, which would be disposed to extend to Scotland in this I particular point, that pure and perfect system of the administration of criminal justice, which constituted so considerable a portion of the just renown and glory of the nation at large. [Hear, hear.]
The remedy which the hon. member meant to propose, was, 1st, That the jury should be constituted by ballot, instead of by the nomination of the presiding judge. 2dly, That a challenge without cause, should be afforded to prisoner and: prosecutor, three to each. For the ballot, he had the example of the universal practice of England, supported by the most obvious expediency, and sanctioned by the principle, which must regulate all judicial establishments, viz. the most complete and unquestionable impartiality. He had, in like manner, the law of

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treason in Scotland. Also the court of Exchequer, which, although it was a court administering a law, common both to England and Scotland, was a Scotch court; and lastly, he had the important example of the jury trial in civil causes in Scotland, a branch of the judicature of Scotland, of modern date indeed, but, happily introduced in the first instance, by a temporary act of the 55th, and subsequently rendered permanent by the 59th Geo. 3rd.
On the second branch of the proposed remedy, he had in a great degree the same authorities. The treason law, common to both countries, where peremptory challenge to the amount of 35, was the right of the prisoner. The practice of England on capital felonies, where the right of challenge was limited to 20; and the valuable practical, although not statutory challenge in all cases, by which it was admitted, he understood, to any extent, so long as it did not interfere with procuring a jury.
The jury trial in civil causes, was again a decisive authority to be appealed to, because, had the right of peremptory challenge been found objectionable under the temporary constitution of the system, it might have been omitted; but it was never objected to, and was made permanent by the act of 1819. Upon principle, a certain amount of peremptory challenge seems to follow, as a necessary consequence of a jury being chosen by ballot, which might be said to create a necessity for it, quite as much to the prosecutor as to the prisoner. But in proposing this part of the measure, he meant to ask the smallest number of challenges which could be considered beneficial. He wished to steer clear of all technical difficulties;—as little as possible to disturb present arrangements. He meant to propose a right of three peremptory challenges to the prosecutor and the same number to each prisoner. He was aware that three might appear a very small number, but he understood that four in the jury court was found to answer well; and if it should be deemed proper, he should not object to the number being made four in the measure he proposed. But limitation of the number he did consider necessary; because, although it is stated by lord Royston, that a great assize of 60 had been summoned, they never in fact did now exceed 45. He did not mean to propose
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the introduction of talesmen, and it was his earnest wish to interfere as little as possible with the dispatch of business. As far as his own opinion went, he saw no sufficient reason against the number of the great assize being increased; but he wished, in introducing his measure, to avoid even any alteration in that particular. Such was the substance of the measure, which was, in the opinion of the hon. member, as little as possible liable to objection, on the ground of being an innovation, or a dangerous theory, because it was, if a theory at all, also a practice existing in every case, excepting the particular instance in which it was his wish to make the alteration. He wished to take away the only case in which the practice varied from the theory, in what was undoubtedly wise and useful; and to render the practice of the Scotch criminal law, similar to the practice of jury trial, throughout every other branch of British judicature. He could not resist again noticing the peculiarity in the Scotch criminal law, that the jury consists of 15, and decides by a majority; so that eight persons may condemn to transportation, while seven desire to acquit; so that a prisoner may suffer by the voice of one roan, and that man he could not prevent being one of the 15, who were to try him. The judge names, and the prisoner cannot object; at least the power of objection cannot be said to be worth the having, and is never almost attempted to be used, and still more rarely sustained. Very different is the case in England, where a prisoner may, and does, every day challenge numbers proportioned to the degree of his crime, and after he has made his challenges and obtained a jury as favourable as he thinks he can, 12 men must agree in their verdict of guilt and condemnation, before he can be convicted. [Hear, hear.] This was, indeed, a striking contrast between the condition of a prisoner in the two countries; he stated it not to undervalue the law of Scotland, which embraced many great and admirable provisions, but to show that it was most important to remove defects, and to select a moment for safe and judicious amelioration, when it could be done without the slightest imputation upon the conduct of any one. He most anxiously wished, in proposing this measure, to gain what he deemed a great and valuable object for his country, and to do so with the least possible change in its institu-

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tions. He made this attempt in the firm belief, that all judges who were invested with a power which he proposed to withdraw from them, would be grateful to the legislature, for a measure which relieved them from an odious responsibility. In all cases of crime, the present practice was at least inexpedient; but in offences against the state, the law was monstrous and anomalous, and coupled with the power of the court to award punishments, for political offences; modelled on the practice of times, which did no honour to Scotland. It was indeed, important to rescue the sacred tribunals of criminal justice, from the possibility of future reproach [Hear, hear.] He understood, that other improvements were contemplated by official persons. He had long wished to call the attention of parliament to this subject, and he did not choose to surrender it to any one; and had the learned lord been present, he was well assured that he would have had every disposition to give the measure his most favourable consideration. [Hear, hear.] The hon. gentleman concluded by moving "for leave to bring in a bill, to alter the mode of choosing juries, to serve on criminal trials in Scotland."
Lord Binningassured the hon. member who had brought forward this motion, that he felt as deeply as he did, the necessity of the regulations and improvements he suggested, but he lamented he had thought it necessary to introduce into his speech so many topics unconected with the subject matter of it. He lamented particularly that he had entered so minutely into the nature of the office and appointments of his hon. and learned friend, the lord advocate, at a time when that noble lord was absent from his place. He did not feel himself competent to answer the hon. gentleman either in the extraneous matter he had indulged in, or in his legal argument; but there was one part of his hon. friend's preliminary matter to which he would advert, and he was only induced to do so by the formidable sound of the words "arbitrary punishment," on which his hon. friend had commented. This arbitrary punishment, as it was called, consisted only in the court being empowered to pronounce sentence of transportation on a prisoner who had been put to the bar to be tried, perhaps for his life, but in whose case the lord advocate had restricted the libel to an arbitrary punishment, thus taking from the
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court the power of pronouncing sentence of death. Having said thus much, he should not follow his hon. friend through the other topics to which he had adverted. With respect to the bill, he had no objection whatever to its being brought in and read a first time. The subject was unquestionably one of very great importance; and in what his hon. friend had said respecting the impropriety of having juries impartially appointed, he fully concurred. But he would suggest to his hon. friend, that, if he had a practical object in view, he should content himself at present with reading the bill a first time, and having it printed, and then letting it lie over until it should have received that mature consideration which its importance required.
Mr. M. A. Taylorsaid, it was rather unparliamentary that his hon. friend should be assailed because he brought forward the motion in the absence of the learned lord, whose duty it was to be present. He did not see why, if the lord advocate was absent, their tongues were to be tied; the noble lord should rather have apologised for the learned lord than have inculpated his hon. friend. His hon. friend had brought to view the arbitrary power exercised by the court of Justiciary, to instances of which he (Mr. T.) had happened to be witness in a case, the details of which were printed, and which was also to be found in the debates of that House: he meant the case of Mr. Muir and Mr. Palmer. He (Mr. T.) had been in the House at the time of the debate, as well as in Edinburgh at the time of the trial, and certainly, in common with many others, he did not think the verdict was that which would have been given by an English jury. He had on this point the testimony of a man of no mean authority, who was present the whole time, he meant the late sir S. Romilly. Mr. Erskine, a lawyer of the very first eminence, had told him, that on that occasion the Court of Justiciary had misunderstood the law, when they sentenced the prisoners to transportation. The law said that persons convicted of sedition should be banished from their "pleasant fields and native homes." But this never had been understood, or could be honestly interpreted, as giving a power to transport the prisoner to a particular place, as they did those prisoners to Botany Bay. The case was brought before the House of Commons by the present commissioner of the

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Jury Court (Mr. Adam); the Judges escaped censure with very great difficulty, and no one who heard that debate, * could suppose that the law gave the power assumed of banishing beyond the seas for sedition and libel. But, forsooth, they were not to speak of Scots law, unless the lord advocate was present! In the House of Lords, the chancellor decided on Scots law, though no Scots lawyer, and in that House, even if the lord advocate had been present, he should take on himself to decide according to his own judgment.
Mr. J. P. Grantregretted the absence of the lord advocate. He rose solely for the purpose of correcting the noble lord in what he had said respecting the arbitrary power of the Judges of justiciary in Scotland. The noble lord had represented that power as being confined to the pronouncing of sentence of transportation, in cases where the public prosecutor had restricted the libel to an arbitrary punishment. But the truth was, that this was a modern assumption of power on the part of the judges, which he was prepared to prove they did not legally possess. The utmost extent of their power being merely to banish forth from Scotland, they had assumed the same power of transporting to a foreign settlement as was allowed under the statutes of England. In a very recent case, in the face of a unanimous recommendation from the jury, the court, in the exercise of its lenity, had sentenced an individual to five years' transportation.
Lord Binningexplained. He had not said that the court of justiciary never exercised the power of sentencing to transportation, unless where the offence was a capital one. What he had stated was, that what was called an "arbitrary punishment" was in fact a leniency, because the punishment was only so restricted in cases of capital offence.
Leave was given to bring in the bill.

SMUGGLING-PREVENTIVE SERVICE.
Mr. Warrewished to receive some information as to the intentions of his majesty's government with respect to the mode generally pursued throughout the country, for the Prevention of Smuggling. He understood that the chancellor of the
*For the Debate on Mr. Adam's Motion respecting the Trials of Mr. Muir and Mr. Palmer, See New Parl. Hist. v. 30 p. 1480.
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exchequer was not dissatisfied with it, but he (Mr. W.) had many objections to it. A peculiar and new system prevailed on one part of the coast. From Beechy-head to the mouth of the Thames, he believed there were armed patroles stationed all along the coast. These patroles were under the command of naval officers, principally midshipmen. This system might have the effect of suppressing smuggling; but he thought it injurious to our naval officers. He wished to ask any of the lords of the Admiralty opposite, whether of all services this was not the worst to employ a midshipman in? He had no society, and was subjected to every species of temptation. There were some provisions in the act for the prevention of smuggling, of which the House was perhaps not aware:—for instance, a person found in the act of landing one pint of foreign spirits, was liable to a penalty of 100 l. An instance of the impropriety of this clause had come within his knowledge: a mariner who had been absent on the sea for two days, on landing on his return to his wife and family, was detected by one of these lieutenants with a single pint of spirits in his pocket. He was immediately conveyed before a magistrate, who was called upon to inflict the fine. The magistrate, who under this act, had not the power to mitigate the fine, knowing the man to be perfectly honest, and knowing that he must go to jail if he complied with the provisions of this act, absolutely refused to do so. He hoped this act would be revised.
Sir G. Cockburnstated, in reply to the representation of the hon. gentleman with respect to the midshipmen in the Preventive Service, that one of the lords of the Admiralty had lately been sent to inspect and report on the state of these officers and the service in general, and the report made with respect to them was of the most gratifying nature. The midshipmen were found to conduct themselves in the most respectable manner; they messed together as the officers in the army did, and were in every respect in a state of the most perfect discipline. These midshipmen had passed their examination for lieutenants, and had therefore already learned their business. They now conducted this service in a manner that could not be excelled, and it was satisfactory to the Admiralty to be able to give them this employment in time of peace, at the same time that they became valuable to

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their country by protecting its revenue. They had also achieved man; gallant actions. The smugglers now-a-days came down upon them in armies, and they had had regular battles, in which some of these midshipmen had been killed and wounded. From every information they had been able to obtain, it was impossible that they could conduct themselves better, or the duty be better performed.

MALT DUTIES BILL.
On the order of the day, That this Bill be now read a second time,"
Mr. Creeveyrose to oppose the motion. He had, he said, two or three short reasons for resisting any bill of supply under existing circumstances. The first reason was, that although the House had been sitting for three weeks, no estimate of the public expense had yet been presented to the House from any department of the administration; and he would not consent to grant the public money to any department, until a clear statement of the ground of its application were previously communicated to the House. In this resolution, indeed, he was the more confirmed by the language which he understood was unreservedly used about the Treasury, and which was generally believed by its adherents—namely, that the present would be a very short session, that all the public business would be over before Easter; that is, that ministers were safe, that the Queen was sacrificed, and that nobody cared about money. The estimates then should have been sooner presented. They ought, indeed, to be two or three weeks before the House, in order that such members as were disposed to attend to their duty, might have ample opportunity of examining those very voluminous and complicated documents, which, according to the existing practice, were seldom above a night or two on the table before the House was called upon to pronounce a final vote respecting them. Upon this, and upon other grounds, he felt it his duty to oppose the grant of any supply, until the will and the wants of the public were attended to by ministers. He had been told, that a certain lay-lord of the Admiralty (sir G. Warrender) as he was called by some, but whom he would call a sinecure and sham lord, had been heard to declare, in those circles of which this lord was such a splendid ornament, that he would come down and inflict signal punishment upon him, if he
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persevered in his purpose to resist the supplies: but still he was determined to persevere, notwithstanding this frightful denunciation, for he had already found that some good resulted from his perseverance. The chancellor of the exchequer had endeavoured in some degree to satisfy the public desire for economy and retrenchment, by stating that within this year there would be a reduction of one million in the national expenditure. It had not, however, been stated by the right hon. gentleman, in what department such reduction would take place. But to return to the threat of the lay-lord of the Admiralty; he begged to express a hope before the friends whom this lay-lord had invited to attend his benefit, that he would be graciously pleased to carry his threat into execution with some clemency, that he would condescend to mitigate his punishment for old-acquaintance-sake, and from a recollection that he was once himself a tip-top patriot, and one who com-batted much for retrenchment.
The Chancellor of the Exchequersaid, that the House had already considered the number of seamen, for instance, to be voted for the service of the year. Would it not then be something inconsistent if the House were afterwards to withhold the means of paying their wages The present were not new taxes; they were part of those which were usually granted. As to the estimates, the utmost haste was making to have them ready, and he hoped they would be laid before the House next week. No measure would be introduced respecting them, until they should have been a sufficient time in the hands of members.
Sir R. Wilsonthought it was the duty of members to oppose any grants of supply while ministers continued to act in opposition to the declared wish of the people. It would not be regular to say that the majority of the House had, by last night's vote, declared war upon the people; but he would maintain that, as a majority on the other side persisted in not listening to the prayers of the people, it was but a fair exercise of their privilege, for members on his side to retaliate by refusing to grant any supplies.
Sir T. Lethbridgesaid, he had as much of that constitutional jealousy with which the grant of supplies ought to be exercised, as could be found on the other side of the House; but still he could not concur in the objection to the present bill.

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He thought it necessary to support ministers on that occasion, and he could not but regard the opposition now given as vexatious. At the same time, as an independent member of parliament, he wished every possible saving should be made in the present distressed state of the country, and would concur in any measure which should have that effect.
Colonel Davieswas glad to hear such Sentiments as those which had fallen from the hon. baronet. He could assure him that the objection to the present motion arose solely from the wish to correct a grievance. He, and his friends wished to have it understood, what retrenchments it was the intention of ministers to make, In their present course they only exercised the undoubted privilege of the House to refuse all supplies, where a grievance complained of was not remedied. But for such refusals of supplies they might not now be existing as a House of Commons. When he saw ministers wholly regardless of the prayers of the people, he thought it the duty of members who had the interest of their country at heart to exercise their constitutional privilege in opposing the money grants.
Mr. Humewas surprised to hear the term "factious" applied to gentlemen on his side of the House. He considered that the term would be more applicable to the other side, and that the majority of last night was factious in the highest degree. [Order, Chair.]
The Speakersaid, he would first remind the hon. gentleman that the word factious had not been used by any member. If such word had been applied to any portion of the House, he would have considered it disorderly; but certainly to apply the term factious to a majority of that House was still more disorderly,
Mr. Humesaid, he was sorry for having: used the word, which he had mistaken for the word vexatious. But he begged to say that he did consider the majority of last night as most vexatious, being calculated only to produce vexation and disappointment in the country. He prophesied that the vexation would not end here, nor end at all, unless measures of a conciliatory nature were adopted. That decision he had no hesitation in saying, was in opposition to the declared opinions of nine-tenths of the people. Under these circumstances he considered it his duty to oppose the granting of any supplies.
Mr. Mansfielddid not consider the hon. member was justified in applying the words "factious and vexatious" to the majority of the preceding evening. He was one of that majority—and would say, that to the best of his judgment, in voting as he did, he had used an honest and a sound discretion, and did not deserve to be called either factious or vexatious. He perfectly differed from the hon. member too, when he declared that that House did not speak the sense of the majority of the people. He knew that in the place he came from, a party not interior in numbers, but infinitely superior in respectability, held opinions directly opposite to those of the hon. gentleman. He had no wish to say any thing that might hurt the feelings of an unfortunate lady whatever he might think of her conduct, and he had therefore carefully abstained from saying any thing on the subject on several occasions, but it was too much to sit there night after night, and hear it asserted that, deciding as they had done, the House had voted against the wishes of the people. He did not believe any thing of the kind. If, however, he did believe it, he would still contend, that it was the duty of members of that House conscientiously to act on their own opinions. This, however, was not his argument. What he meant to assert was, that if the voices of his constituents could be collected from one end of the county of Leicester to the other, he was confident the majority, in numbers and in respectability, would approve of the decisions come to in that House.
Sir J. Newport,though he thought it desirable to look carefully at the conduct of ministers in order to find out where retrenchment could be effected, did not see why the supply being already voted, the means should be withheld. He however thought the estimates ought to be laid before the House in the first week after the meeting of parliament. In war time this might not be easily done; but during peace there was no cause for not doing it. He should feel disposed to resist any new motion for supplies before the estimates were produced.
Mr. J. Martinwas determined not to vote away any more of the public money until a more clear mode of keeping the accounts should be adopted.
The question being put, "That the bill be now read a second time," the House divided: Ayes, 71. Noes, 22.

List of the Minority.

Barrett, S. M.

Martin, R.

Bennet, H. G.

Monck, J. B.

Bernal, R.

Palmer, C. F.

Davies, T. H.

Parnell Sir R.

Denman, T.

Pryse, P.

Fergusson, sir R.

Ricardo, D.

Folkestone, lord

Sefton, lord

Hobhouse, J.C

Western, C. C.

Hume, J.

Wyvill, M.

Hutchinson, hon. C,

TELLERS.

Kennedy, T. F.

Creevey. T.

Lambton, J. G.

Wilson, sir R.

Lloyd, sir E.