Sitting of 24 June 1824

REGULATIONS OF SURREY MAGISTRATES—PETITION OF DEBTORS IN HORSEMONGER-LANE GAOL.
Mr. Hobhousesaid, he had a petition to present on a subject of considerable importance. It was from the whole of the debtors confined in the gaol for the county of Surrey; complaining of the regulations to which, under the orders of the magistrates of that county, the gaol was subjected. In the first place, the petitioners complained, that the act of the 4th of his present majesty, commonly called the Gaol act, laid down certain rules for the regulation of gaols, which were very undefined in their character. He was of opinion that the House ought to interfere, and to correct the indiscretions which, under this act, the unpaid magistracy of the country were prone to commit. It appeared that by the 4th and 12th sections of the act, the justices of peace assembled at the quarter sessions, were empowered to make such rules with respect to gaols as to them might seem expedient. It was impossible to know how far such a power might be carried. If the justices of peace, assembled at the quarter sessions, chose to direct that every prisoner should have only a single ounce of bread, and a single glass of water per day, there was nothing in the act of parliament to prevent them from issuing such an order. Although many of the Surrey magistrates were men of the highest respectability, and among them his hon. friend (Mr. Denison), and the noble lord opposite (Eastnor), who was recently the Chairman of the quarter sessions; yet, after the treatment which, by their directions, had lately been experienced by a gentleman, whose case had made a good deal of noise—he meant captain O'Callaghan—it was impossible not to look at their proceedings with considerable suspicion and jealousy. The petitioners complained that, in consequence of the regulations of the magistrates, only one hour in the day was allowed for the debtors to provide themselves with food, bedding, clothes, and other necessaries. Now, as many of the friends of the petitioners lived at a distance from the gaol, and were engaged in business of various kinds, it must frequently happen, that the hour appointed for the purpose which he had just mentioned, which hour was from eleven to twelve o'clock, was inconvenient and in-
1494
sufficient. If, however, the unfortunate debtor did not receive the supply of which he might stand in need, in the course of that hour, the consequence was, that he might be without food for the next four-and-twenty-hours. The act under which this regulation was made stated, that the prisoners might receive food at proper hours. But, as he had already said, only one hour was allowed for that purpose at Horsemonger gaol; and this restriction in point of time was attended with great inconvenience and hardship. The act also said, that the magistrates should be empowered to make such regulations and restrictions under which food was to be permitted to enter the prison as to them might seem expedient. But, at Horse-monger gaol, in addition to the rule by which only one hour in the day was allowed for the admission of food, it was ordered that the food should be of the plainest kind, and nothing but water was allowed even to those debtors who could afford to pay for other beverage. This regulation was so cruel, that the very gaoler had relaxed its severity, and allowed each prisoner, if he chose it, a quart of porter a day. It must be recollected, that no huxter's or other shop, in which food, drink, bedding, clothes, &c. might be purchased, was allowed within the walls of the prison. Even if a prisoner were desirous of sending out for a little bread and cheese, the turnkey was not permitted to procure it for him. This regulation was enforced so strictly, that he understood a bun had been taken out of the hands of a child entering the prison, lest it should be given to its mother, who was confined in it. Such a law, if not wicked, was at least foolish, and very apt to be abused. The petitioners complained of another regulation, which was, that no visitor should be allowed to remain in the prison after five o'clock in the evening. The consequence was, that many small tradesmen, who were friends of the petitioners; and, which was of much more importance to them, the lawyers who practised in the Insolvent Debtor's court, were frequently prevented from seeing the prisoners at all. Similar regulations, not even that respecting food, did not exist in the Marshalsea and other prisons. Another complaint of the petitioners was, the grievance of shutting up the wards in summer at six o'clock in the evening. Those gentlemen who knew any thing of the situation of Horsemonger-lane gaol,

1495
would be aware, that the sun struck fiercely upon it throughout the clay, and that the evening was the only time in which it was possible for the prisoners to indulge in a refreshing walk. To prevent them from doing so was a severe punishment; more especially when it was considered, that the persons on whom it was inflicted were debtors, and were not persons contemplated by the law as criminals. The jet of the petition (and an extremely well drawn petition it was) was to beg that the House would amend the Gaol act. He hoped that in the next session, the House would take the subject into their serious consideration. It was impossible to go on allowing a discretionary power to magistrates. He certainly entertained a strong opinion with respect to the conduct of magistrates generally. Not that he believed that they wished to be oppressive, but that he thought the power of being so led them into error. He begged to entreat the right hon. secretary in the name of the petitioners, as it was too late in the session to amend the act of which they complained, to consider the expediency of interfering in his official capacity, with a view to mitigate the severity of the regulations of the county gaol of Surrey. He did not exactly know how the law stood. It appeared as if it enabled the magistrates at large to deprive themselves of their authority; for when, in the extraordinary case of captain O'Callaghan, that gentleman applied to the court of quarter sessions for relief from the hardships under which he was suffering, the justices of the quarter sessions said, that they could not take the case out of the hands of the visiting magistrates, although the latter were intrusted with their power, by the court of quarter sessions themselves! He did not know, therefore, whether the right hon. gentleman could interfere; but he was persuaded that he would do it if possible, if he read the regulations of the Horsemonger gaol, and saw how contrary they were to the spirit, and to the letter, of the Gaol act. They were regulations peculiar to Horsemonger gaol. None such existed at the King's-bench, the Marshalsea, or the Fleet.
Mr. Denisonsaid, that, in many points, he perfectly agreed with his hon. friend. He condemned the Gaol act: he hoped it would be repealed, and that the old law on the subject would be renewed. But, with many thanks to his hon. friend for the
1496
personal compliment which he had paid him, he could not accept it at the expense of his brother magistrates. Like other men, they were liable to err; and he certainly did think that they had erred with respect to captain O'Callaghan; but he was persuaded that no magistrates could exert themselves more earnestly for whatever they thought conducive to the welfare of the county to which they belonged. With respect to the state of the gaol in Horsemonger-lane, the complaints of the petitioners were, in some degree, well-founded. But they had directed their battery against the wrong quarter. It was the law of the land that was in fault. There were two grievances consequent on that law which required redress. The one was, that no fermented or spirituous liquors could be introduced into a prison, except by the directions of the surgeon; the other, that the prisoners had not a choice between accepting the gaol allowance and furnishing their own food. He was perfectly ready to allow that there was a wide difference between prisoners confined for debt and criminal prisoners. The former were, in many instances, the victims of misfortune, and ought not to be subjected to punishment. There were two of the regulations of which the petitioners complained, which he frankly allowed were hardships. The first was, the restriction of the time during which food might be brought into the prison; and which certainly ought to be during two or three hours, instead of only during one hour in the day. The second was, the restraint on the intercourse of the prisoners with their friends. As the regulations now stood, the prison gates were closed at three o'clock in winter, and at five in summer. Perhaps the hour might be advantageously extended to four in winter, and six or seven in summer. A further opportunity ought also to be afforded to the prisoners to enjoy fresh air in the evening. It was his intention tomorrow morning to bring these points under the consideration of the visiting magistrates. As to the case of captain O'Callaghan, he had not read the trial of that gentleman, nor did he know any thing of the parties. He had heard the case mentioned by an hon. member on last Saturday night. The first thing he did on Monday morning was to go to the gaol, and tell the gaoler, that he thought there must be some mistake in the business, and that he conceived the prisoner might have what food he required, as

1497
well as the newspapers, and every thing else that he wanted, with the exception of wine, which, in conformity with the law, could be introduced only through the means of the surgeon of the prison. With regard to the trial, his noble friend, the member for Hereford, who presided on that occasion, to whom the county of Surrey was so deeply obliged for his valuable services, and than whom no man could be found of greater humanity and discretion, never understood or thought that the prisoner would be treated in the manner in which he had been treated; or supposed that he would not have received all the indulgence that his situation required. He agreed with his hon. friend, with respect to the new powers which the Gaol act had vested in the magistrates. He had doubts also, if individuals, having seats in that House, should be also magistrates, whether the same persons should make the laws, and execute them also. He trusted, that after what had been stated, respecting captain O'Callaghan, the right hon. gentleman opposite would take the case into consideration, and with the humane feelings which distinguished him, extend the mercy of the Crown to an individual whom it was never intended should be punished so severely as he had been. He rather thought that that individual himself had committed a mistake, so fully confident was he of his acquittal under the circumstances of the gross insult and provocation that he had received, that he did not, as he might have done, bring his case before the court of King's-bench; in which case, he would have received every kind of indulgence. But the justices of the court of quarter sessions had no power to order him to any prison but the county gaol; a place which certainly was not fit for a person of his description. As far as he could, he would endeavour to remedy the two hardships to which he had adverted. The others were, he feared, beyond his power.
Mr. Maberlyobserved, that as the magistrates of Surrey had delegated their authority to the visiting magistrates, he hoped the error, if any, would be imputed to the latter alone. He should feel it his bounden duty, however, to bring the subject before the magistrates generally. They knew nothing of what had occurred. At least, he might say, as one of them, that he knew nothing about it.
Mr. Secretary Peelsaid, that with regard to the existing law on the subject of
1498
the petition, before hon. members blamed it, they would do well to see what the old law was for which it had become a substitute. As compared with that old law, there was not a single provision in the new law which was not favourable to the prisoners. He apprehended that he had no direct power to interfere on the points of which the petitioners complained. In fact, the less the Executive government interfered in such matters the better. The regulations of every gaol must be first agreed to at a general meeting of magistrates, and then submitted for the approbation of two judges of assize, before they could be carried into effect. He had the greatest confidence also in the magistrates of the country, and was convinced, that if any hardship sustained by a prisoner was submitted to them, they would immediately listen to the complaint, and, if it should appear a reasonable one, redress the evil. Interference, therefore, on his part, did not appear to be necessary. As to the case of Mr. O'Callaghan, he had made inquiries respecting it. He had had an interview yesterday with the noble lord who had presided at the trial, and he confessed that that noble lord had satisfied him of the propriety of the conviction. The case having been brought before the proper tribunal, and submitted to the investigation of a jury, a verdict of guilty was found; in consequence of which the magistrates sentenced the defendant to a fine of 20 l. and to a month's imprisonment. He (Mr. Peel) had asked the noble lord, whether in considering the sentence they should pronounce, the magistrates had taken into the account the recommendation of the Jury? His lordship replied in the affirmative. Under all the circumstances, therefore, he did not think the sentence unjust and severe, and did not feel it to be his duty to recommend to his majesty to remit it. Understanding that Mr. O'Callaghan complained of the treatment which he experienced in the prison, he (Mr. P.) had that morning required the attendance of the gaoler, and had directed that Mr. O'Callaghan should be at liberty to supply himself with whatever provisions he might wish for; and that his friends should have free access to him.
Sir R. Wilsonobserved, that they were informed by the right hon. secretary, that he had asked lord Eastnor whether the court had taken into consideration the recommendation of the jury: but, there was another question which the right hon.

1499
secretary ought to have put to the noble lord; and it was, whether the court had considered that the punishment to which their sentence had consigned the defendant, would have subjected him to such punishment as he had endured during the first eight days of his imprisonment.
Lord Eastnorexpressed his regret that he was not in the House when this petition was presented, but as he understood that a petition was to be presented from Mr. O' Callaghan, he would reserve any observations he had to make until that petition came before the House.
Sir F. Burdettwas sure, that his hon. colleague had not meant to cast any imputation upon the conduct of the noble chairman of the quarter sessions. He was likewise sure, that the humanity and liberality which always distinguished the conduct of his hon. friend, the member for Surrey, would lead him to mitigate the hardships of this prison law by every means in his power. He could not, however, help saying, that the case which was then before the House, showed that the alteration which had recently been made in the law of the country was a very grievous alteration; and he did not know how it was possible for any man with the ideas of a gentleman, to avoid experiencing the strongest disgust, on viewing the risk which he now ran of being subjected to the utmost degradation and insult for an offence which any of them might be urged to commit under the impulse of exasperated feelings. For his own part, he would declare, upon his honour, that he would rather be sentenced to be hanged at once, than to undergo the insults which captain O'Callaghan had suffered in the gaol to which he had been committed. He would ask whether any greater mental torture, any more flagrant mental degradation, could be inflicted upon any man who moved in the sphere of a gentleman, than to be placed behind iron railings, and to be compelled to communicate with his friends, not only upon the same terms, but also in the very company of a set of felons? He allowed that the present was an inconvenient time for entering into a discussion on the state of the prison laws; but, nevertheless, he could not refrain from expressing a hope, that the House would soon see the propriety of recurring to the old English law regarding gaols—of taking the management of them from the magistrates—of restricting the magistrates to their ancient jurisdiction—
1500
and of giving the custody of gaols to the sheriff, the old constitutional officer, to whom it had originally belonged [hear, hear].
Mr. Hobhouse,in reply, observed, that the law itself was so absurd and wicked, and gave so great a latitude to the magistrates by whom it was administered, that no man could be safe while it remained in the Statute-book. He was glad to find that his hon. friend, the member for Surrey, owned that three of the complaints made by the petitioners were well-founded. He had no doubt that in consequence of what had passed that evening, all those hardships would be remedied. Justice required it. He repeated that it would be much better to abandon the new-fangled system of gaol management, and to go back to the old practice, even with all the vices which belonged to it. As to the case of Mr. O'Callaghan, he would make only one remark. There was not a member in that House who did not recollect a C3se some years ago perfectly similar. He was far from meaning to say any thing personally unpleasant to the right hon. gentleman opposite. On the contrary, had he been in the situation of that right hon. gentleman's brother, on the occasion to which he alluded, he would have done just what he did. The act, however, was an assault similar to that which had been committed by Mr. O'Callaghan. But, what was the punishment? A month's imprisonment in the King's-bench. How different from the punishment of Mr. O'Callaghan! He had seen the prison, and the particular place in which the gentleman he alluded to was confined. He had his friends to dine with him every day, had any kind of food, had every indulgence he wished for, and walked about at his ease. But, Mr. O'Callaghan was shut up in a solitary cell twelve hours out of the twenty-four, compelled to live on bread and water, and, exposed to the most painful mental degradation. He knew the gentleman, and a more respectable man he never saw. The sentence, hard in itself, was rendered infinitely more so by the mode in which the gaoler thought he was called upon to carry it into execution. He had a right to say that the sentence was hard. Chief Justice Best had, the other day, declared, with reference to a respectable individual who had given another two slaps in the face, that the jury could not give more than a farthing damages. He would ask the

1501
noble lord, if the bench of magistrates intended that Mr. O'Callaghan should be punished as he had been; and he was sure the noble lord would reply in the negative. As therefore that gentleman had received a more severe punishment than the court intended, he did think that the right hon. gentleman was called upon to recommend the remission of the remaining term of his imprisonment.
Mr. Peelsaid, the hon. gentleman ought to bear in mind, that, in the instance to which he had adverted, the sentence, besides a month's imprisonment, was a fine of 500 l., and to enter into recognizances to the amount of 8,000 l. to keep the peace for five years. The law was, that a person committing a misdemeanour, should be subjected to a certain punishment; but it provided, that under special circumstances that punishment might be modified by the visiting magistrates.
Ordered to lie on the table.

PETITION OF LUKE CARLOS O'CALLAGHAN, COMPLAINING OF ILL-TREATMENT IN THE SURREY COUNTY GAOL.
Mr. Abercrombystated, that he had to present a petition from the individual whose name had been so often alluded to in the course of the late discussion; he meant Mr. O'Callaghan. The case of that gentleman had excited great public attention, and the only reason which he could find for its having done so was this—that when the public looked to the offence which Mr. O'Callaghan had committed, to the provocation which he had received, to the recommendation which the jury had given him for mercy, and to the treatment to which he had subsequently been subjected in consequence of his sentence, they saw that there was such a difference between the offence and the punishment, as compelled them to withhold their sympathy from the punishment, and to give it to the person on whom the punishment was inflicted. The petition was, in his opinion, well deserving the attention of the House; and he thought that the right hon. secretary, if he took it under his consideration, would see, that the petitioner had suffered a degree of punishment for the space of a week, which neither the noble chairman who passed the sentence, nor the bench who concurred in it, intended him to suffer. The hon. member then went into the particulars of Mr. O'Callaghan's case, reading them from the petition. After he had
1502
finished them, he called the attention of the House to the fact, that Mr. O'Callaghan had been obliged to submit to this extraordinary treatment for a week, and that he had not ceased to suffer from it until his hon. friend (the member for Surrey), with a humanity that was highly creditable to him, had interposed his authority to put an end to it. He asked whether any person, looking at the provocation which Mr. O'Callaghan had received, the offence he had committed, and the condition of life in which he moved, would have subjected him to all the severities which he had undergone? It had been said, that the bench, in passing sentence on Mr. O'Callaghan, had taken the recommendation of the jury into their consideration: but, in reply to that assertion, he asked, whether the bench would have passed the sentence which it had done, supposing they had known the different aggravations which it was to receive from the gaol regulations? Looking at all the circumstances of the case, he thought that strong grounds were laid for the interference of the House, and for its calling on the right hon. secretary to recommend the petitioner to the mercy of his majesty. The petition did not so much apply to the sufferings of the petitioner as it called upon the House to prevent similar severities from being inflicted on others.
Lord Eastnorassured the House, that he never undertook a more painful duty in his life, than that of presiding at the late quarter sessions for the county of Surrey. He undertook it not from any wish of his own, but at the request of his hon. friend the member for the county, in order to give the magistrates time to select a proper successor to their late worthy chairman, Mr. Harrison. He could assure them that he had given his best attention to this case, and that the rest of the bench had done so too. They did not wish to do any thing harsh, but they thought that they were bound by their sentence to mark their opinion of the assault which had been committed. He did feel that without a strong case, it was improper to allude in that House to what occurred before the judicial tribunals of the country; but, after what had fallen on the present occasion from hon. members, he felt himself bound to state, that the provocation which Mr. O' Callaghan received did not appear to be such as warranted, the assault he had made on the prosecutor.

1503
He did not feel it necessary to say more upon that part of the subject. If he had felt the sentence to be harsh, he certainly should not have passed it; but he did not feel it to be harsh at the time, and upon the reflection which he had since given to it he was confirmed in the opinion that he had done nothing more than his duty. There were, it was true, facts stated by the learned counsel for the defence, which if they had been proved, would have formed a provocation sufficient to justify the assault; but, so far were those facts from being proved, that there was even evidence on the other side to negative their existence. A defence, which added insult to injury, was considered by the bench as an aggravation of the original offence.
Mr. Maberlytrusted, that as there was to be a meeting of the Surrey magistrates to-morrow, they would resolve to appeal to the right hon. secretary to shorten the duration of captain O' Callaghan's imprisonment, in consequence of the aggravation it had received from the very hard discipline which they had imposed upon the prison. For the honour of Surrey, he hoped that nobody would in future suffer in any of the county gaols a greater punishment than that to which the bench intended to consign him.
Lord Eastnorsaid, he was anxious to make one observation which had before escaped him. He was not, when the sentence was passed on this gentleman, aware of the precise nature of the prison regulations; and when he was told of the privations to which Mr. O' Callaghan had been subjected, he doubted the statement, and said, that there must be some mistake. He, however, learnt, that the statement was true. He was afterwards informed, that those restrictions were removed, and every fair and reasonable indulgencegiven, and he was glad of it.
The Petition was ordered to be printed, It was as follows i—
"The humble Petition of Luke Carlos O' Callaghan, a prisoner now confined in the Surrey Gaol,
"Humbly showeth—That your Petitioner was on Monday the 14th instant tried at the quarter sessions for the county of Surrey, for an assault on the rev. James Saurin; that on the trial it appeared that your petitioner had some ladies under his protection, and that it was in resenting what he conceived to be, and what he
1504
still believes to have been,, a wanton insult to those ladies by the prosecutor, that your petitioner committed the act which the jury on the trial found to be a breach of the peace.
"That the jury, impressed with the feeling that the conduct of the prosecutor had provoked the assault, did, in pronouncing your petitioner guilty, strongly recommend him to the mercy of the court; but that, notwithstanding such recommendation, the court sentenced him to an imprisonment of one month in the county gaol, and to pay a fine of 20 l.
"That from the time of his imprisonment your petitioner was limited (with the exception of part of one day) to the county allowance of course brown bread and water; that though he repeatedly asked permission to provide himself at his own expense, such permission was constantly refused by order of the visiting justices. Your petitioner was, during the above time confined for 12 hours in each day in a solitary cell, 8 feet 6 by 6 feet 4, having no other sleeping place than a mattress spread on a plank 20 inches and a half wide, with a covering of two rugs and exposed in this situation to the damp night air, there being no glass within the iron grating of his cell; that in the daytime he is confined to a court about eight yards by six; that in the sitting or day-room there is neither table or chair, or any resting place except a narrow bench close to the wall.
"That your petitioner has been prevented from holding any communication with the friends who visited him in prison, except through two iron gratings, placed several feet apart, exposed to the inclemency of the weather, and liable to have all that passed between them heard by the surrounding prisoners. That your petitioner was, during this time, not allowed even permission to receive or read a newspaper.
"That notwithstanding that your petitioner memorialed first the magistrates, in court of quarter sessions, and afterwards the visiting justices, stating his case, and praying for redress, your petitioner received no relief from either source; and that he continued to be treated (as he respectfully submits) more like a felon, than a mere misdemeanant, up to Monday the 2lst, when, by the humane interposition of Mr. Denison, a member of your honourable House (and one of the visiting justices), some relaxation took place in,

1505
the severity of your petitioner's treatment but that he is still subjected to many restrictions and privations, not called for, as he humbly submits, by the nature of his case.
"That your petitioner has transmitted a memorial to the right hon. the secretary of state for the Home Department, stating the nature of his sufferings, and imploring a remission of his sentence.
"That this memorial was accompanied by one from the jury who tried your petitioner, in which they earnestly recommended your petitioner to the mercy of the Crown, on the ground of the provocation given by the prosecutor.
"That your petitioner has every confidence that the humane disposition of the right hon. secretary of state for the Home Department will lead him to give to your petitioner the most merciful consideration; but your petitioner, believing that, as faithful guardians of the public liberty, your honourable House will feel disposed to give effect to the prayer of one in whose case that liberty has been violated, most humbly implores,
"That your honourable House, taking all the circumstances of his case into consideration, may be pleased to support the prayer of your petitioner's memorial in such a manner as to your honourable House shall seem proper.
"Your petitioner further most humbly begs, that your honourable House may be pleased to institute an inquiry into the conduct of the visiting justices with respect to your petitioner's treatment, and also into the manner in which prisoners generally are treated in the Surrey gaol in order that timely steps may be taken to remedy such abuses as those under which he now suffers. And your petitioner, as in duty bound, will ever pray."

RECOGNITION OF THE INDEPENDENCE OF SOUTH AMERICA.
The Marquis of Lansdown,before the order of the day was gone into, would take the opportunity of this last sitting of the House, to ask some information from the noble earl opposite on a very important object. Having, early in the present session, called their lordships' attention to the situation in which this country stood with respect to South America, and having heard the declaration made by his majesty's ministers on that subject, he had reason to expect, that that declaration would before now have been followed up by some public measure. But, after that declaration, four months had elapsed without any step having been taken towards the establishment of those relations with the states of South America which it was the general wish of parliament and the country to see formed. In the motion he had then made he did not rely on any other principles than those which were maintained on the question by his majesty's ministers; it was to be expected, that, in consistency with those principles, and with the declaration which ministers had made in January last, that no long time would have elapsed without a recognition of the independence of some of the states of South America. An opening had been left for Spain to take the priority in the recognition; but if Spain did not avail herself of that opening, it was understood that this country was relieved from the necessity of any longer delaying the taking of that step herself. It was a course which ought, above all, to be adopted, in consistency with those principles which in this country ought to make it desirable to establish intimate relations with those states which enjoy a system of liberty in every part of the world. Such had heretofore been the conduct of the government of this country with respect to the free states of Europe, and he thought it ought to be extended to America. He therefore now called
1480
on the noble earl opposite to explain what were the intentions of his majesty's government on this important matter. After all that had been said and done on the subject, it perhaps, might be advanced that the recognition of the independence of South America was but a form: it was, however, a form which the law of nations required, and there could not be one law for one part of the world, and another for another. Besides, the relations of countries often turned on matters of etiquette, which could not be dispensed with with-out great inconvenience: and their lordships must bear in mind the opinion which this country entertained of the importance of establishing relations with South America, If there were no objection to the principle on which relations of political intercourse were to be established, why was the recognition so long delayed after the independence had, in fact, been so fully asserted? He did not mean to say that every part of South America had fully established its independence; but he should not be contradicted when he confined himself to two of the states, namely, Colombia and Buenos Ayres. Few if any of the states of the continent of Europe had a better claim to be regarded as independent. The independence of Colombia and Buenos Ayres stood on a more firm foundation than that of the state, respect to which had caused, whether properly or pot he should not now discuss, delay in doing that act which the interests and the policy of this country so obviously seemed to call for. He must express his confident hope that, previous to the next meeting of parliament, full effect would be given to the declaration which his majesty's ministers made, by the recognition of such of the states of South America as might be in a condition to maintain their independence.
The Earl of Liverpoolfelt it necessary to say something on what had fallen from the noble marquis; and what he had to state would be perfectly plain, explicit, and distinct, as to the course which the king's government had pursued on this subject. When the noble marquis formerly brought this matter under the consideration of their lordships, he reduced the question to three points—1. Whether there was any connexion between this, country and any states of Europe (Spain excepted) which rendered it necessary to withhold the recognition of the South American states, At that time, he took

1481
upon himself to state to the noble marquis that this country was under no engagement, expressed or implied, which could prevent this country from acknowledging the independence of the states of South America, whensoever such a measure should be thought proper; that the government were completely free to exercise their own judgment, and that whatever the result of that exercise might be, the subject would be treated purely as a British question, determined upon British interests. The next point was, how matters stood with regard to Spain. In answer to that, he had stated, that it was very desirable, if it possibly could be accomplished, to induce Spain to be the first to make the recognition: and every thing which had since passed had only tended to confirm him in the propriety of this view. The recognition of a colony could only emanate de jure from the mother country; and until that event did happen, there would always be some degree of inconvenience in the relations which other countries might establish with a new state. This was obvious: he had never stated that this inconvenience was a reason for refusing the recognition, but that it was one which made it desirable to induce the mother country to take the first step. He had hoped from what had passed that that would have been done; but every effort to induce the government of Spain to take that step having failed, the government of this country did not consider itself precluded, whenever the proper time should arrive for recognizing the independence of South America, by any obligation or engagement, moral or other. His majesty's ministers considered themselves! perfectly free on this question, as well with respect to the government of Spain as with every other. The third point was, whether measures had been taken, by sending out commissioners, to form a judgment whether the governments of those states were in such a condition of reasonable perniauency as to render it advisable to carry into effect a recognition of the independence of those states. This last was the only question that now remained to be answered. Their lordships knew that commissioners had been sent out; and when he stated, that no information on the subject of their mission had yet reached this country, he was sure he said enough to account for a recognition not having taken place. He had only to repeat that his majesty's government
1482
was under no obligation whatever which could prevent the recognition of the states of South America, whenever it should appear to be consistent with the interests and character of the country to make such recognition; and that his majesty's ministers had taken means to obtain the necessary information respecting those states, and would act upon that information as soon as they recaived it.

PROTEST AGAINST THE EARL MARSHAL'S BILL.
Lord Hollandbefore' he proceeded to the motion of which he had given notice, was desirous that the minutes of the 18th, 19th, and 21st instant should be read. He could not but express his satisfaction at seeing, on the last day previous to the prorogation, that the delicate matter—for delicate he could not but call it—which he was about to bring forward, would receive the consideration of so full a House. He felt satisfaction also, that, if his recollection should fail him as to facts, he spoke in the presence of many noble persons who witnessed what had passed, and he was sure would acknowledge the correctness of his statements where they were correct, or set him right if he should in any respect be in error. But if there lordships should not agree to adopt his proposition, they would at least bear this in mind—that it was not impossible, even at the shortest notice, to procure a numerous meeting of that House. Their lordships had given a practical proof that at that very late period of the session, a full attendance of peers could be obtained on four and twenty hours' notice. Those persons, therefore, who had such a feverish apprehension on all subjects connected with this important bill as it was called, must have had full opportunity to attend if they pleased. He then moved that the minutes be read. [Here the minutes were read by the clerk.] His lordship also moved the reading of the following Protest.
"DISSENTIENT.—Because, on general principles, I object to any concession to Roman Catholics, cither collectively or individually; and the bill violates the constitution, by enabling a Papist to hold high office near the person of a Protestant king, and dispenses with those oaths which Protestants are bound to take. Because the practical effect of dispensing with the oath of supremacy to Papists must of necessity create a constitutional jealousy on the part of the Protestants, thereby ge-

1483
nerating feuds and animosities, most especially at the present time, when Papists avow their intentions by language and acts so undisguised, that they cannot be misunderstood.
"Because, to sanction the separation of the oaths of allegiance and supremacy, is to establish a most dangerous and alarming precedent, inasmuch as the union of church and state forms the basis of our constitutional greatness and excellence, freedom and security. And lastly, because at this very late period of the session, and at the early hour of five o'clock, before peers arrived at the House, the present decision cannot be considered to be the sense of this House, many peers being absent, and the House taken quite unawares. For these reasons, and having the welfare of my country indelibly at at heart, I solemnly protest against this bill, and other measures of a similar nature which are in a constant course of progression.
(Signed)
"NEWCASTLE
"ABINGDON."
Lord Hollandnow rose to complain to their lordships of this protest. Their lordships would perhaps think it strange that he should consider himself called upon to make any animadversion on a protest, more than any other noble lord had who thought it his duty to be very free in tendering protests against the decisions of the House. Before he sat down he would conclude with a motion, conceived in words on hearing which he believed their lordships would acknowledge, that at no period in the last 120 years would such a protest have passed without a more severe censure. He complained of this protest on two grounds; in the first place, that it left a general impression on the minds of those who heard it exactly the reverse of what the facts accurately stated would produce; and that of the seven propositions which it contained, one only expressed a fair difference of opinion; and that the other six were misapprehensions of the orders and practice of their lordships' House, or proceeded from a want of right recollection of facts and circumstances, or constituted a direct attack on the honour of the House—an attack, which tended to subvert all respect for the laws of the country and those regulations upon which all deference to the proceedings of that House rested. He referred more particularly to these words —" And lastly, because at this very late pe-
1484
riod of the session, and at the early hour of 5 o'clock, before peers arrived at the House, the present decision cannot be considered to be the sense of this House, many peers being absent, and the House taken quite unawares." Now, he would ask their lordships what would be thought on reading this protest, by any man not conversant with the hours of attending in this House, or by any individual who was not present at the transaction to which it referred? He would ask whether the impression would not be, that the subject was quite new to the House, and had not been beard of in the course of the session—that it had been taken suddenly up and contrary to the regular course of business—that the bill had been hurried through in a manner quite unusual—that no pains had been taken to procure due attention to the subject from their lordships who could attend, and that no opportunity had been afforded to those who could not attend to send their proxies? Was not all this likely to be the impression on any man's mind who was not acquainted with the facts? So far, however, from this being the general complexion of the transaction, that the bill which had been passed was one which related to, and had for its object, a matter which had been very recently under their consideration; that it came recommended by persons of high authority, both agreeing and disagreeing on the great question of Catholic emancipation; that the measure was in no one instance objected to, except on the ground of form; that it was not hurried through the house; and that ample opportunity was given for the attendance of such of their lordships as chose to be present. He must confess, that the most difficult part of the task which he had that day imposed upon himself, consisted in noticing such frivolous objections—objections which applied more to the bill brought in by the noble earl opposite, and which had also received the sanction of parliament. That noble earl gave notice of the bill he introduced, and there was some expectation that the Earl Marshal's office would have been included in the measure. The House was then taken by surprise; but it was the surprise that that measure was not included. The noble earl, however, explained his conduct satisfactorily but did he object to the object of the bill against which the protest was directed? By no means He stated, that he refrained from including that office

1485
on three grounds; 1st, that from the dignity of the Earl Marshal's office, it would not be proper to make it a part of a bill relating to officers of the revenue; second, that the urgency of the case required the immediate passing of the bill; third, that he had doubts, whether the noble Earl Marshal would like to be restored to his office in the manner proposed. Now, would any man say, after this, that his bringing in the bill could be taking the House by surprise? It was not perfectly regular to take notice of any conversation which passed in that House, except such as occurred openly at that table; but he would say, that after the discussion to which he had referred, scarcely a day had passed without some conversation having taken place on the propriety of bringing forward this measure. In the mean time, a stroke of Providence deprived his excellent and illustrious friend, the noble duke, of a near relation, and left him without any person to whom he could immediately wish to delegate the exercise of his office. It was then felt that this was the proper time to bring forward the measure on which the general sense of the House had previously been expressed. He should show that the House had not been taken by surprise, and that no one had any right to say so. At the same time, he wished it to be understood that he would always stand up for the right of a minority to enter a protest against any proceeding to which they objected. They were always entitled to exercise the privilege of recording their opinion. With regard to the objectionable part of this protest, the statement, that the bill was brought in at a late period of the session was correct. If that statement had stood alone, there would have been no objection to it; except that the circumstance complained of was not unusual. But what would be thought of this objection if their lordships referred to what had passed in other years? He wished they would consider what sort of bills were brought up and passed at the close of the session. In the present year a very unconstitutional act—The Irish Insurrection act—had been passed with as thin an attendance, and less notice, than the bill protested against. If their lordships looked at the Journals at the latter period of almost every session, they would find that coercive measures, and bills which had for their object pains and penalties, were then generally introduced,
1486
and very little attended to. Were they then to understand, that whenever a bill, infringing on the liberties of the people was proposed, they might pass it in' as thin a House, and with as little consideration, as they pleased; but that when a bill of boons and concessions was proposed, every absent peer ought to be consulted? The next clause of the protest censured the passing of the bill at the early hour of five o'clock. In this statement there were two propositions, both unfounded— first that five o'clock was an early hour; and secondly, that the bill did pass at five o'clock. In the first place, five o'clock, so far from being an early hour, was the period which, by general agreement, had been appropriated to the transaction of public business. It was wrong, therefore, to say that this particular business came on at an early hour. It was the duty of every noble lord to attend when the House was sitting. Every noble peer was entitled to bring forward a subject whenever he pleased. It was merely in consequence of the usual courtesy that he did not stand up yesterday and make the motion he now intended to make, instead of giving a notice as he had done. It was a little too much, then, to be accused of an irregularity, when the courtesy and forms of the House had been strictly adhered to. The general rule was, to proceed to public business at five o'clock. Exactly as the minute-hand came upon the number twelve, he took the bill in his hand and went up to the table. Some person near him said, "Go on, move;" but, observing that some noble lords had petitions in their hands, he said, "Let the petitions be first presented." Accordingly, eight petitions were immediately presented. A short conversation afterwards took place at the table. A noble relation and friend of his, if the noble duke (Richmond) would allow him to call him so, also presented several petitions. One petition was also presented by another noble lord. A noble friend of his (earl Grosvenor) adverted to a measure which had occupied the attention of their lordships, and actually made a motion. After all this had been done, he again rose, and moved, that the order of the day be read; which being done, he proceeded to move the third reading of the bill. He introduced that motion by two or three sentences. He did not think it necessary to say much; but it must be in the recollection of many of their lordships that he stated enough to apprize the

1487
House of what was going on. The next proposition to' which he should advert Was, "that no peers hart arrived." Now, he must assert that many peers had arrived, and he declared, upon his honour, that if any noble lord had proposed to postpone the third reading, or to adjourn the proceedings on it for a short time, during pleasure, he would have consented. He did not say that he would have agreed to have given precedency to any bill which would have been likely to have caused discussion, because, if a bill were viased late in the night, the chance of its passing that same night through one stage of the Commons might be lost. But, he had another reason for not giving the precedency to any other bill which might have caused delay. He wished to take the opportunity of a full attendance, and he could, from his own experience, assert, that the House was generally a good deal better attended at five o'clock than at seven. Five o'clock, then, was not an hour by which the House could be taken by surprise; such surprise was, indeed, more likely to occur at the latter hour, when noble peers absented themselves for some cause which he should not attempt to describe. He was not here talking of theory, but of practice: for, on that very day, at a later hour, a bill of great importance had passed—a bill enacting severe punishments on subjects of this country. He had voted for that bill because he had thought it was necessary. It passed at a quarter before seven: the Earl Marshal's bill soon after five o'clock. What occurred then would substantiate all that he had before said—that when the liberty of the subject was in question, no anxiety was shown as to the state of the House. The minutes of the House would prove, that upon the third reading of the Welch judicature bill, the numbers of the division had been only eight to three. If the noble lords who signed the protest had chosen to divide the House when he moved the third reading of the Earl Marshal's bill, they would have found at least three times the number present. The noble lords, however, seemed to think nothing of a measure imposing penalties, while the Earl Marshal's office Was, in their opinion, a subject which, like the Queen's trial, required the attendance of every peer. It was true, the forms of the House allowed absent peers to express their opinions by proxy; but that opinion was not given from what was heard in the debate. The
1488
noble lord who voted by proxy, confided it to one whom he singled out, on the ground that he was likely to hold the same opinion as himself. This proceeding was consistent with the practice of parliament. He did not condemn it; but he wished noble lords who were so anxious for attendance, to consider well on what basis it was that tranquillity and submission to the laws depended. He wished to ask those noble lords who were so fond of appealing to the constitution and the laws, what they considered to be the foundation of that constitution and those laws? Did not the authority given to the laws depend on the consent of the two Houses of parliament, and the assent given to them by the king? There was an act of parliament for which the noble lords had great respect—that law which excluded Roman Catholics from seats in that House. He wished they would read what Protestant writers had said on the subject of that law. He wished they would read what the historian Ralph, who was a zealous Protestant, had said of the manner in which that law passed through both Mouses of parliament. Writing seventy years after the transaction, he described it to have been carried in the midst of riot, and in a manner more like the violence of a mob than what ought to be expected from a senate-house, or the representatives of the people. Would it be said, then, that this law was not to be called the sense of the House? How was that sense to be known, but by the state of the votes? Sense or nonsense, that act was now the law of the land: and every time that their lordships took their seats in that House, they had to take the oaths and sign the declaration which it required. More had been done this session in calling together the peers than had ever been the practice. Now, his own opinion of that practice was, that it was a great advantage and convenience to their lordships; but, con-stitutionally speaking, he was not sure that it was not a great innovation; certainly it was a greater innovation on the constitution than permitting the Earl Marshal to perform his own functions rather than by deputy. It might be that on this occasion many lords were absent; in fact, he had never known but on the occasion of one bill that the majority of lords were present: 351 was, he believed, the number of which their lordships' House consisted, and he certainly never recollected 176 on a division but once. He

1489
had thought it his duty on presenting the bill, to explain his motives for it, and the reasons which existed for expediting it through the House. Every person, therefore, who attended the House had ample notice that such a measure was in progress, and that a disposition existed to expedite it through the House: and those who knew how very near it was to the close of the session, must have been aware of the necessity there was for the bill to pass early in the day. When first his attention was called to this subject, he had looked for precedents, and he found that in 1701 a protest which had been entered was so effectually expunged, that no records of it remained either in the Journals or in any of the publications of the time; but it must have been one in which the majority thought an incorrect statement of facts had been made. The next instance was one of a bill connected with this question, brought up from the other House of parliament, and a very long and able protest was signed by those who were called the Jacobite peers. The earl of Sunderland complained of it, and then up jumped the then duke of Newcastle, and what did he do?—what he (lord Holland) now proposed to do? No, but with "one fell swoop" he took off from the Journals the whole of the reasons. What was the consequence? A long struggle took place between the expungers and the enterers of protests; and he had the satisfaction of stating that the minority beat the majority on that subject; they proved that expunging the protests was not only wrong in itself, but that it defeated its own purpose. They went on protesting, and the whole thing was virtually given up, as the majority did not expunge the reasons against expunging. This precedent at least showed that, in the year 1722, the majority thought there were reasons for expunging. In adverting to a more ancient and more reasonable precedent, he had a little malicious pleasure; as it was a protest against that bill which was brought in, and which infringed for the first time the birthright of the peerage of this country, by exacting an oath previous to discharging their duty in that House. That bill was called, or nicknamed, the Bishop's Test. It was lost in that House, and was objected to by lord Shaftesbury, and by all the eminent men of the time, on the principle, that the birthright of the peerage was too sacred to be touched by the authority of
1490
that House. It was thought, and perhaps rightly, that that was denying the authority of an act of parliament. In conclusion, the noble lord said, that the course which he proposed to adopt on the present occasion was, to submit a resolution, containing a statement of facts, and ending with a permission to the noble lords who had signed the protest, to withdraw that protest, if they thought proper. After reading the protest, his lordship concluded, by moving, "That their Lordships had been duly summoned to attend on Friday, to take into consideration the Standing Orders on the occasion of the Earl Marshal's Bill; that the House came to no resolution thereon, but discharged the order; that the Bill was read for the second time on Saturday, the Committee being dispensed with; and that on Monday, the 2lst instant, it was read the third time, after five o'clock, some of the Lords present having said not content, but none of them having called for a division, nor objected to the hour at which the question for the passing of the Bill was proposed."
The Earl of Abingdonsaid, that as one of those who had signed the protest, he felt it incumbent on him to explain the principle upon which he had acted. Conceiving that the bill was perfectly unconstitutional, he had opened the Journals of the House to see if any protest had been entered against it, and finding that there was, he did not hesitate to affix his signature under a conviction that the bill was one which ought not to have passed. The object of the bill was, to enable the Earl Marshal to enter upon the duties of his office without taking the oath of supremacy —an oath which he (the earl of A.) conceived to be necessary to the protection of the constitution. In the oath of allegiance to his majesty, as taken by the Catholics, the words "he being Protestant" were left out, and great danger might arise hereafter from the omission of expressions that went to recognise and secure the Protestant ascendancy. If their lordships were to infer from what he had stated, or from what he had done, that he held the Roman Catholics in detestation, they would commit a great mistake. It was not from any feeling of animosity towards them, but from a disinclination to countenance any infringement of the constitution, that he had signed the protest which he had foundalready written. It was in this sense alone that he wished his protest to be understood, and he would

1491
have no objection to amend it in such a manner as would confine it simply to that interpretation.
The Duke of Newcastlesaid, he rose with considerable embarrassment to address their lordships, being very little accustomed to speak in public. He would not enter at length into the various topics which the noble lord had introduced, but would confine himself altogether to the facts of the case. He wished, however, before he did so, to express his thanks to the noble lord for the temper in which he had brought forward his motion, avoiding every thing that could hurt his feelings, though intending to invalidate his protest. He could assure the House, on his own part, that he entertained no feeling inimical to the earl marshal, but directly the reverse. His objection to the bill was, not from any disrespect towards him, but because it was a favour, and a dangerous favour, granted to the Roman Catholics. It was, as he conceived, unconstitutional, and contrary to those principles which ought to be held most sacred. He begged to observe to the House, that every thing alleged in his protest he believed to be true; if he did not believe every word of it to be true, he was not the man who would wish to insert it on the Journals of the House. Like other men, he might have fallen into error. He might at present be labouring under an erroneous impression, though he did not think he was; but if such was the opinion of the House, he would willingly submit to the adoption of any course which they might think proper to recommend. He would take leave to repeat his opinion, that the bill had been hurried with indecent rapidity through its stages. It first came down on the Friday, on the Saturday it was read a second time, the committee having been dispensed with; and on Monday it was read the third time, and passed, as he thought, before five o'clock; but of that he could not be positive after what he had heard. It was passed however at an unusual hour, for a measure of such importance, and in the absence of many noble lords who wished to speak and to the against it. Convinced that what he had stated was right, he was unwilling to retract. But, if the general sense of the House was otherwise, he would not oppose himself to their opinions. Throwing himself, therefore, entirely on the mercy of their lordships, he would be directed by them.
The Duke of Richmondsaid, that as he
1492
had been called on by the noble lord to bear testimony to one fact, he was bound to state that it was past five o'clock on Monday when he presented several petitions.
The Lord Chancellorobserved, that after a bill had once passed, the sense of the House must be considered as having been distinctly pronounced upon it; whatever might pass out of doors, such was the doctrine that must be maintained within. If upon any occasion the sense of the House was supposed to have been too hastily taken, there was one way of enabling them to retrace their steps—by moving for the repeal of the bill. He was far from insinuating that such a course ought to be pursued in the present case: his opinion was decidedly otherwise; and as for the question of hours, if their lordships thought proper to pass a bill at eleven o'clock in the morning, instead of five in the afternoon, still no one could deny that it would be the sense of the House. With respect to the oath of allegiance, he must say, as a lawyer, that it contained in it every thing included in the oath of supremacy: that the oath of supremacy was, in fact, added as an explanation of the oath of allegiance, or as lord Hale had expressed it, was passed to unravel the errors that had crept in. It was his intention to move an amendment, stating the facts more fully than they were detailed in the motion of the noble lord. Among other circumstances, his amendment would notice, that the Welch judicature bill stood before the Earl Marshal's bill on the orders. He did not mean to have it inferred from this, that their lordships were bound to take the orders in the succession in which they stood, but to shew that others might naturally fall into that mistake, on recollecting the usual practice of the House.
The Earl of Lauderdaleprotested against the inference, that the House was bound by any rule in such cases.
Lord Hollandsaid, he should have no objection to the amendment suggested by the learned lord, but he should introduce one which he thought would meet with the concurrence of the House, especially after the candid manner in which one noble lord had explained the grounds of his protest. His lordship concluded by moving, "That the noble lords who had dissented, should be allowed to confine their dissent to such reasons, or parts of the reasons, as they thought proper."
The motion was agreed to nem dis.