Sitting of 28 June 1825

DECCAN PRIZE MONEY.
Mr. Humepresented a petition from lieut.-colonel Fitz-Simon, complaining of delay in paying the Deccan prize-money.
The Chancellor of the Exchequerexplained some circumstances which, by taking this booty out of the general law of prize; and thereby causing a particular appeal to the lords of thet Teasury, had, of necessity, delayed the distribution far beyond the usual time. He eulogized the assiduity of the duke of Wellington and Mr. Arbuthnot, to whom the Treasury had referred the business for final regulation. It was not till the 1st June that the persons interested had furnished the list of claimants; upon which alone any distribution could take place.
Dr. Lushingtonsaid, there had never been an instance in which the distribution of prize-money had been so conducted. No sooner were the duke of Wellington and Mr. Arbuthnot appointed trustees, than they took the steps the best calculated to cause delay. In all other cases, trustees of prize-money had kept up a constant Communication with the claimants. The parties had great reason to complain of the contempt and disregard shown to them by the duke, whose conduct, especially in the impudent letters sent by him in answer to sir T. Hislop, .one of the chief claimants, was contrary to all precedent. He knew the facts of this case, having professionally advised with many of the parties. He put it to ministers to say, if there was not at one time an intention of appointing the son of Mr. Arbuthnot as agent; and if that intention had not been put aside upon an opinion given by the law officers of the Crown against the legal capacity of the young gentleman to discharge that duty.
The Chancellor of the Exchequerbegged to say, that the son of Mr. Arbuthnot was never appointed an agent in this case.
The Attorney-Generalsaid, that as the Crown had relinquished its share of the prize-money in favour of the army, it had a right to appoint what trustees it pleased for the management of the property. The trustees had been extremely anxious to effect the distribution, and nothing but the complexity of the business had led to the delay.
Ordered to lie on the table.

CONDUCT OF MR. KENRICK IN THE CASE OF FRANKS.
Mr. Tremaynerose to present a petition from Mr. Kenrick, stating that he had been taken by surprise by the order of the House to examine witnesses upon a charge against him, and praying the indulgence of the House for time

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to prepare for his defence, in the case of Franks.
Mr. Denmansaid, he was by no means certain, that the petition ought to make any difference in the course which he intended to pursue. The examination of the witnesses was relative to certain papers before the House, and of which he had given due notice a fortnight ago. With reference to Mr. Kenrick, he wished to throw no impediment in the way of his having every advantage in drawing up instructions for his counsel. He should therefore propose, that the witnesses should attend on Thursday. It had been intimated to him last night, that it was Mr. Kenrick's intention to call witnesses in his behalf. There would be no time to proceed in such a course during the present session; and if this were the wish of Mr. Kenrick, it would certainly lead to a different arrangement. But he did not think it ought to postpone all inquiry until the next session; it ought only to postpone his answer, and in the mean time the inquiry ought to proceed. It was not certain, that after hearing the whole case, Mr. Kenrick would feel it necessary to call any witnesses at all. Great inconvenience might arise from postponing the examination of witnesses, for it was possible that they might not be forthcoming next session. The papers upon which these proceedings were grounded had been, for a long time, in the hands of members, and must have been well known to Mr. Kenrick. He should therefore move, that the witnesses be called in on Thursday.
Mr. Secretary Peelthought the question important, whether the House ought to institute any inquiry upon the charge and affidavits. It might not, however, be necessary to have any discussion upon that point; but, the most important question: was, that as the charge involved two accusations, each of which might be tried before the ordinary tribunals, whether the House ought to institute any proceedings. If Mr. Kenrick did prefer any charges against Franks from malicious motives, that alone would subject him to prosecution. If Mr. Kenrick had published a malignant libel against Franks, why did not Franks institute legal proceedings against Kenrick? Would it be consistent with justice, for the House to institute a Prosecution against Mr. Kenrick, which would compel him to disclose his defence, while he was still open to a criminal prosecution at law? Until one o'clock that
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day, Mr. Kenrick had received no official information upon the subject; and had therefore had no opportunity of instructing counsel. It might be essential to Mr. Kenrick to call witnesses as to the character of Franks. Mr. Kenrick might be able to prove, that the general bad character of Franks justified those suspicions upon which he had acted as a magistrate. It was impossible for the House to hear the charge against Mr. Kenrick, and suffer the defence to be postponed for six months. The House had no alternative but that of postponing the case altogether, or conducting it at once to its conclusion. If the charge should be substantiated, a case of great moral misconduct would be made out against Mr. Kenrick; but, why should not the inquiry be pursued in a court of justice? When it was considered that many of the facts had been known as far back as October 1824, and all of them before the 1st of February last, surely the learned gentleman was culpable in allowing Mr. Kenrick to go a circuit with this charge hanging over him, and to bring forward his accusations only at this extremely late period of the session. If the learned gentleman proceeded in his motion, it would be impossible to say when the session would terminate; and he, for one, was of opinion, that it would be highly improper to keep parliament sitting so long for this one object.
Mr. Denmanexpressed his desire to meet, as far as he could, what appeared to him to be the prevailing sentiment of the House, as to the inconvenience of proceeding further in this case during the present session. Under this feeling he should withdraw his motion; although he thought it was hardly possible for the right hon. gentleman to preserve his countenance, when he asserted that Mr. Kenrick had that day, for the first time, been made acquainted with the charge. He should, however, certainly bring it forward next session; unless, in the mean time, circumstances should occur very materially to, change his view of the case.
The motion was then withdrawn.

CONDUCT OF MR. KENRICK, IN THE CASE OF CANFOR.
The House having resolved itself into a committee of the whole House, upon the petition of M. M. Canfor against Mr. Kenrick,
Mr. Denmansaid, the committee for which he moved some time ago in order to examine into the case of Mr. Canfor

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having now resumed, he presented himself to their notice, for the purpose of submitting certain resolutions, founded on the evidence which had been adduced in support of that case. He congratulated the committee on having come to no resolution or vote, either of censure or applause, in respect of Mr. Kenrick's conduct. It was to him matter of great satisfaction, that hitherto they had expressed no opinion on the question; and that the evidence which had been taken had now been put into the hands of members, long enough to allow them to form a much more deliberate judgment than they could have arrived at immediately after a meagre debate, or under the recent impression of an eloquent speech from a learned counsel. As some of the questions that had been addressed to the witness seemed to have been directed to the getting-up of this petition, he begged in the first place to say, that he had never heard of the petition until it was put into his hands. The charge which it contained was not brought forward alone, but in conjunction with another charge; and, in his view of the case, the two charges together formed matter of grave accusation against Mr. Kenrick. He now merely alluded to the case of Franks—postponed as he considered it to be, to the next session—in order that he might not be met by the assertion, that he had brought forward an isolated case against Mr. Kenrick. That case charged Mr. Kenrick with having, in the execution of his duty, conducted himself in a manner that had exposed himself to great animadversion. He (Mr. Denman) was quite aware, that he stood in a most peculiar situation with regard to his auditory on this occasion; for he could not help considering the House of Commons as a special jury of magistrates in a case of the kind. A large proportion of the House consisted of gentlemen who filled similar situations to Mr. Kenrick's in the magistracy. It was impossible, almost, that they therefore should not feel something like sympathy for Mr. Kenrick. They might, indeed, from the same cause, be the better enabled to judge of the motives which had influenced the conduct of that gentleman; and far was it from his desire to deprive any one in Mr. Kenrick's situation of the consolation of such a sympathy. With Mr. Canfor he had had no communication until he came to their bar. He thought that upon his testimony the case might very well be. left. He was aware, that
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many hon. gentlemen considered his evidence to have been flippant and unsatisfactory. That there was any thing improper in his manner he could not admit. Yet, however improper might be the motives and the manner of a witness, those considerations would have no effect upon the weight and credit of his testimony, unless there was room to suspect him either of fraud or falsehood in the delivery of his evidence. Now, when this witness came forward to be examined at their bar, he was evidently in a weak and nervous state. This individual came there, endeavouring to screw his courage to a higher pitch than he had ever before found to be necessary; and perceived himself to be in a situation that he had never previously experienced, surrounded as he was by so many gentlemen of the highest rank and distinction in the country. As to flippancy of manner, however, he would take leave to say, that he had never known a simple country witness, for example, after being subjected to a severe cross-examination, who did not leave the witness-box a much more impertinent person than he was when he first came into it, In answer to the statements of Canfor, Mr. Kenrick had himself presented a petition. Now, such facts as had been stated on the one side, and were admitted on the other, must be assumed to be true; and on such, hon. gentlemen might safely proceed to form a deliberate judgment. There were many such admitted facts in this case, which he would presently notice. What had been the situation of this Canfor in the month of May last year? He had a quantity of sheep, marked with a particular mark, feeding on a certain common. He lost about twenty of these sheep, including a particular ram of the South-down breed, of great value. On discovering his loss, he went in search of his sheep, at that particular season of the year when it was most inconvenient for a farmer to leave his premises. After some ten days or a fortnight's rambling about the country, he found one of his rams, under circumstances indicative, on his part, of no small ingenuity. He found on Westwood, common, a man who had seen such a ram, and having managed to get from him the whole history of the animal, he traced it to the possession of one Beale, residing at a considerable distance from Westwood-common. In a field of Beale's he found his ram, with its fleece shorn. Canfor saw Beale, and toll him, that if it

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was his sheep, it had a particular mark, Beale did not deny that it had such a mark, but said, that perhaps the man had put it up with his own. Now, this was an important period of the transaction. Canfor thought he had made a great discovery; Beale refused to produce the fleece when it was called for by Canfor; and Canfor went to a neighbouring magistrate. There he saw the magistrate's butler, who told him that it was not master's custom to transact any justice business after ten o'clock. At length Mr. Kenrick examined him, to ascertain whether or no the fleece was his. Canfor offered to make his deposition to that effect on oath; but Mr. Kenrick refused to take it. Now, this circumstance, especially when coupled with many of the other facts that ensued, was really very singular. It was of itself an extraordinary act. It was, unquestionably, in civil cases, the duty of the magistrate to proceed in that way which might seem best adapted to elicit the truth, and to do justice: but at the same time he should do so with the least possible offence to either of the parties. Canfor was dissatisfied; and Mr. Kenrick took fire at his declaring that he would go and find a solicitor to help him in his business. Mr. Kenrick declined granting the search-warrant, but he gave a note to Canfor, as was set out in the petition. It was said, that that note was given for the purpose of sparing the character of Beale, who was represented to be a very respectable man; but, looking to the contents of the note, it appeared to him to be a very strange way of protecting the character of the party to whom it was addressed. For his own part, he could not see how a search-warrant could affect a man's character more than a note. It was written quite in an official style. How any person could have a stronger weapon of attack against Beale, if he wished to use it, than this identical note, he could not conceive. This, however, was the instrument given by Mr. Kenrick to Canfor, whose deposition he refused to take; and he also declined granting a search-warrant, which certainly ought to have been granted, that Canfor might have been properly prepared, in the event of the note not producing the contemplated effect. When the note was received by Beale, he laughed at it. He refused to give up the fleece, which he claimed. to be his own. Now, if it were really his, surely it was a matter of
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some importance for him to prove that he possessed a ram of the same description as that claimed by Canfor—that they were So nearly alike each other, that a mistake might easily have arisen, and that the mark on the animal said to be Beale's property was similar to the mark on Canfor's ram. No attempt of this kind was, however, made, and the note was treated with contempt. Both the objects for which Canfor waited on Mr. Kenrick were defeated, one of those objects being to recover his property, and the other to prosecute the person who, he supposed, had improperly possessed himself of it. The negation of the charge of felony actually placed Can for in a worse situation than that in which he originally stood. Having failed in procuring the fleece, he then proceeded to another magistrate, who refused to act in a case where a magistrate had already been applied to. He must here observe, that a sort of language had crept into use, in speaking of magistrates, generally, of which he could not approve. He would maintain that one of their most important duties was, to trace out and follow up property. That was the mode by which they could best protect those who were liable to depredations; and therefore the granting a search-warrant was not a matter of indulgence and favour, but it was their duty to grant it, wherever a fair ground of suspicion existed. But, though Mr. Kenrick might refuse the search-warrant, he certainly had no right to decline taking the evidence which was tendered to him on oath. He should have received it, and preserved it to be produced, if necessary, on trial. Canfor went, on the day after, to Mr. Kenrick's, and then he found that the question, as to whom the ram belonged, had been referred to two individuals. This was a strange course of proceeding. Why should a reference have been made, until Beale had shewn that he had lost something?—until he had proved that he possessed a ram similar to that claimed by Canfor? Mr. Kenrick thought that this course would put an end to the business, not recollecting, that another question might remain to be decided, even after the award of the referees—a question necessary to the furtherance of public duty—namely, how the sheep got into the possession of Beale? However, two persons, of the names of Nash and Ede, were appointed as referees. They met together, and the fleece was produced before them in a disguised state. The mark

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was so disguised, that if it had not been for the composition, they could not have judged whether it was or was not Canfor's. But, on examination, they said, "Oh, this belongs to Canfor," and he was suffered to walk off with it. He then proceeded to Mr. Kenrick, and stated, "You see my charge was true. Here are two notes, written by the parties to whom the matter was referred—here is the fleece, which has been given up to me—and therefore I do not stand before you a disgraced man." What did Mr. Kenrick himself say on this part of the subject in his petition? He stated, that Canfor brought two samples of wool with him, to show that it was the same as that of the sheep which he had lost, "but your petitioner is by no means convinced thereof." How, he would ask, was it possible for Mr. Kenrick to suppose that this was not the property of Canfor? He could not imagine how Mr. Kenrick could entertain any suspicion of the matter, when the notes, written by two individuals, perfectly competent to decide the question, declared that the fleece was Canfor's property. If Mr. Kenrick was anxious to preserve the character of Beale on this occasion, he certainly took a very bad way to effect that object. There was a primâ facie case of suspicion against Beale, which could not be cleared up, except by a full and fair investigation. He would ask any magistrate now present, if a charge were made against a respectable neighbour, and he refused a search-warrant to the applicant, whether he would not, on the moment, give notice to the party accused to stand forward, and clear up his character? Mr. Kenrick did not act thus. He washed his hands entirely of the business. He left the complainant to. get his property by means of a foolish note, which Beale disregarded. If there were a responsibility on the part of magistrates to use their best efforts for the restoration of property, then Mr. Kenrick had, in this case, neglected his duty. Canfor stated to him, when he found his representations were unavailing, that there was a solicitor at Reigate to whom he would apply for advice. This appeared to have vexed Mr. Kenrick; and he refused to grant the search-warrant, because the manner of Canfor did not please him. This was not conduct befitting a magistrate, who ought to guard against all capricious feeling. In his opinion, for. Kenrick's conduct was extremely
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reprehensible in letting the case out of his hands without due investigation. This, however, was not the worst part of the case. He was sure no gentleman in that House who was in the commission of the peace would say, that he would act with the same disregard of law and justice as it was admitted Mr. Kenrick had subsequently done. An individual applied to him for the restoration of his property, and instead of being assisted he was himself made a prisoner, and dealt with insolently and outrageously. He was ordered to be searched by Mr. Kenrick's butler, who was made a special constable on the moment for that purpose. A parish constable was then sent for, and was directed, to make an assault on this injured individual, who came before the magistrate for redress. If magistrates the thought proper to behave in this way, they ought to be taught that such conduct was as contrary to law as it was to justice. They should be informed, that they were not to act from the impulse of personal feeling, of offended pride, or wounded dignity. Such feelings ought to be discarded from their minds, the moment they ascended the judgment-seat. What was Mr. Kenrick's justification for this outrageous conduct? Why, he stated that Canfor, when he first came before him, behaved insolently—that he was very impertinent—that he said he, would apply to Mr. Burgess, a magistrate at Reigate; and that he accused Mr. Kenrick with not understanding his duty. Canfor, however, states in his petition, that he said he would apply advice to his solicitor at Reigate. This, he declared, was the only offence he had given; and he distinctly stated that there was no impropriety on his part. If there had been any greater cause given, let the House consider how well supplied Mr. Kenrick was with evidence to prove it His butler, George Adams, William Beale, and Messrs. Nash and Ede, could easily prove whether there was any thing improper in Canfor's conduct. Batchelor, the constable of his own parish, who, astonished and bewildered, proceeded to execute the strange orders of Mr. Kenrick, could also speak to the conduct of Canfor. This last named individual, had not been called to make out a case for Mr. Kenrick; and therefore, he contended, they had that gentleman's evidence against himself. It was however said (and said too, by very learned persons in that House), that no felony had been committed. And why?

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Because the sheep was found straying on a common. He thought the right hon. Secretary would not adopt that line of argument. He surely would not assert, that because a sheep was taken from a common or highway, it was not a felonious offence. The place had nothing to do with the offence; which consisted in taking the property of another, and converting it to your own use. It was said, that when Mr. Kenrick ordered the fleece to be taken from Canfor, he did so because he wanted to place it in the hands of a constable as evidence to further the ends of justice: That, however, was not the fact; for he would have nothing to do with it. What could he want with the fleece, except in his character of magistrate? and as a magistrate he had dismissed the case. The conduct of Mr. Kenrick was the most outrageous he had ever heard of; and his abuse of power in appointing his butler special constable for the purpose of searching Canfor, was most unwarrantable. Suppose Canfor had resisted.—as indeed he did in the first instance when the butler attempted to search him)—suppose he had resisted when the constable came—suppose bloodshed had ensued—what excuse could be made for the conduct of Mr. Kenrick? Was that the conduct which a magistrate should adopt, on account of irritated or offended feelings? This case was one of the most serious importance; and when a case of improper conduct on the part of a magistrate, perpetrated under the colour of law, was brought forward, it ought to be minutely investigated. He knew it was argued, that Mr. Kenrick had paid the penalty of his offence. If the petitioner came to the bar, and demanded 5l. damages more than he had obtained in court, this answer would be complete—"You have accepted a certain sum, and you cannot come here for more." But it was a very different thing when he came to the house to complain or a denial of justice. The question was, whether it was proper that a magistrate should be intrusted with power, who had exhibited to the public So much irritability and violence? Was Mr. Kenrick, because he had been clearly proved guilty of these acts in a court of law, to be therefore continued in a situation where he might still further abuse his authority? Was he to be enabled to the end of his life to deny justice to those who applied for it? Suppose a gentleman's butler had robbed
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his master, and suffered a twelvemonths' imprisonment as the punishment of his offence, would not the gentleman feel greatly astonished if the offending party applied to be reinstated in his situation? If the individual asked him for the keys of his cellar and pantry, would he not say, "Do you not recollect that you robbed me?" The servant might answer, "It is very true; but I suffered the penalty of my crime. I was imprisoned for twelve months, and it is extremely unjust to punish me further by refusing to place me in my old situation." This was precisely akin to the argument used by hon gentlemen, when they said that as Mr. Kenrick had paid the penalty of his offence, he ought to be no further molested. He thought the magistrates of the country were too much above control. When he said this, he deemed it right to declare, that no man could feel more respect or veneration than he did for the magistrate who watched over his neighbourhood with paternal care; who settled petty quarrels and who exerted his authority to preserve the morals of the people, and to add to their comfort. But, he could not approve of that indiscriminate and blind obedience. which some individuals seemed to think ought to be paid to the magistracy in general. He would say, and he thought the government ought to say, when a case or gross misconduct on the part of a magistrate was brought forward, "Here is an offence of a crying nature, let us examine it, and see whether this magistrate shall longer be allowed to exercise the functions of a justice of the peace in the. county where he now acts." When magistrates misbehaved, they ought to be dismissed. That was the course which had been pursued in Ireland, and followed in parts of this country. A magistrate of Hampshire had, in the time of lord Loughborough, been thus treated. An action for false imprisonment was brought against him and 50 l. damages were awarded. It was thought necessary to consider whether the individual was fit to remain in the situation of a magistrate. The lord lieutenant was unwilling to interfere; but lord Loughborough took up the case, and the offending party was removed Government, however, appeared to have lost that wholesome power; Not. a week passed in which complaints were not made against magistrates , but no notice was taken of them. As the power of the magistracy was increased, the super-

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intending control of government appeared to be diminished. With these views and sentiments he had brought this case before the House of Commons. He was influenced by no private or personal motives. He utterly disdained them. With respect to the individual whose conduct was inculpated, he never had the honour of his friendship. He harboured no feelings of animosity towards, and was never, to his knowledge, until the present occasion, under the same roof with him. He acted from a sense of public justice; and it would be deeply degrading to him if it could be supposed that he was influenced by feelings of any other description. It was his intention to submit the following propositions to the House—1st, "That this committee is of opinion, that the allegations contained in the petition of M. M. Canfor have been substantially proved. 2nd, That the said petitioner preferred his complaint to William Kenrick, esq. one of the magistrates for the county of Surrey, relative to the loss of a ram, and required a search-warrant, to recover the ram as well as its fleece, alleging both to be in the possession of William Beale, but that the said William Kenrick refused to grant a search-warrant, or to take the depositions of the petitioner, 3rd, That the said William Kenrick, in this respect, appears to have neglected his duty as a magistrate in not inquiring into facts of a suspicious character; and that his subsequent conduct in causing the said petitioner to be arrested, and detained in his house, and in causing to be taken from his person by force, a certain paper, was illegal, arbitrary, and oppressive, and a gross abuse of his authority as a magistrate."
The first resolution having been read,
Mr. Secretary Peelsaid, he entirely acquitted the learned gentleman of being actuated by any undue motives in bringing this case forward. The high and manly character which he had always maintained, would form a sufficient vindication against any such charge. At the same time, he must observe, that the course which he (Mr. Peel) meant to take on this occasion did not arise from any undue bias towards Mr. Kenrick, with whom he had no acquaintance. He was only anxious that they should decide in the manner most consistent with the forms of parliament, and, above all, agreeably to the principles of equity and justice. In the outset he called on gentle-
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men to divest themselves of all prejudices connected with the other case. Although there were many gentlemen present who held the situation of a magistrate, he was persuaded that they would indulge in no fellow-feeling on that account. On the contrary, if the House interfered, those individuals would, he thought, be more likely to vindicate, by their votes, the situation of magistrate from any imputation that might be cast on it, in consequence of any improper conduct committed by one of their body, The learned gentleman had divided the case into two parts: 1st, the refusal of the search-warrant on the application of Canfor; and 2nd, the conduct of Mr. Kenrick in ordering Canfor to be detained, in appointing his butler as a constable, and in taking from him the note and the fleece. He would pursue the same course, in considering the question, that the learned gentleman had done. It was wholly unnecessary for him to show that Mr. Kenrick had acted with perfect propriety in this transaction, or that no charge of impropriety could be maintained against him. All he would contend for was, that there was no ground for the interference of the House. On the first part of the charge he would say, that whether Mr. Kenrick did or did not act like a perfect magistrate, he must exonerate him from having pursued the course he took from any corrupt or improper motive. He appeared to have been influenced by a desire to act with strict and impartial justice. Whether his note did not contain phrases which ought not to have been found there, he would not enter into an inquiry. The principal accusation was, that Mr. Kenrick had suppressed a case of felony, and that he had done so on account of a corrupt feeling. He denied that any such imputation could attach to him. Here, it appeared, was an individual, living in his neighbourhood, against whom a search-warrant was applied for. Was not the character of W . Beale impeached by this proceeding? Unquestionably it was. Then came the consideration, who was Mr. Beale? It appeared that he was a man of good character, and of some property; for in the fold where the ram was found he had between seventy and eighty sheep. Canfor had lost twenty sheep, and amongst those belonging to Beale a ram was found, which Canfor supposed was his property. Was any concealment attempted? None

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whatever. The sheep were kept in an open field, accessible to all. The learned gentlemen said "the ram was shorn," which he considered as proving a desire of concealment. If it had been at the season of the year when it was unusual for sheep to be shorn, or if the other sheep in the fold were not shorn, then there would be some foundation for assuming that concealment was contemplated. But, as it happened in the shearing season, and as all the other sheep were shorn, how was it possible to maintain the accusation of attempting to conceal the sheep, against W. Beale? When he was asked for the fleece, what would have been easier than for him to have said, "It is not in my possession. I have disposed of it," He, however, at once said, that he had it, but would not give it up. Now, under these circumstances, was it desirable that Mr. Kenrick should issue a search-warrant against a respectable individual, on such light grounds? Besides, Beale claimed the fleece as his property; which formed a very peculiar feature in this case. Canfor was asked, "Did you tell Mr. Kenrick that Beale claimed the ram as his property?" and the petitioner, after a good deal of prevarication, answered, that "he did." This was most important; because, Mr. Kenrick, knowing Beale's character, would naturally say, on receiving this information, "Oh, it is a question of property, and I will not ruin this man's character for ever, by issuing, on such grounds as these, a search-warrant." It was here very material to attend to Canfor's evidence on this point. He was asked, "Did you not tell Mr. Kenrick, Beale insisted it was his ram?—I said he refused to produce the fleece. Did you not tell Mr" Kenrick he said it was his ram?—Certainly; he claimed it. And that he described the marks on the fleece just as you have described them?—I asked him whether the ram he took had not this particular mark, and he said it had, and he thought it was his ram, and that somebody else had taken it, and marked it. afresh. That you told Mr. Kenrick?—I cannot whether I did or not. How much of that did you tell Mr.Kenrick?—I cannot say. Did you tell Mr. Kenrick he claimed it as his ram?—That he would not give it up to me. Did you not tell Mr. Kenrick that he claimed it as his ram? —No." From this specimen the House might see what diffi-
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culty there had been in sifting the witness, as long as the questions had come, which those had done, from his side of the House; as a member on the other side had asked him, "When was the first time you saw Beale? —On Sunday, about one o'clock. How late was it when you saw Mr. Kenrick?—On the Monday, about the same time. On that Sunday Beale maintained the sheep to be his, and the fleece to be his?—Yes. And you told Mr. Kenrick that?—Yes." Under these circumstances, and knowing that Beale had seventy or eighty sheep of his own, he thought Mr. Kenrick in refusing the search-warrant, had acted rightly. In a case of this kind, a number of slight circumstances were often of very great importance in leading to a correct conclusion; and he wished the House to observe, that Mr. Kenrick, who was said to have acted partially on account of a sort of acquaintance with Beale, did not know the Christian name of the person to whom he was so anxious to act favourably. That piece of information he received from the butler. It also appeared that the butler, who was acquainted with Mr. Kenrick's mode of administering justice, handed a search-warrant to him for the purpose of having it filled; but Mr. Kenrick merely stated that he did not think it necessary in this case. On this part of the case the general impression must be, that no undue, corrupt, or improper feeling had been made out which could warrant the House to interfere in the matter.—He now came to Mr. Kenrick's subsequent conduct towards Canfor, and on that he would speak his undisguised sentiments. He thought that Mr. Kenrick, in calling on his servant to act as a constable, and seizing the note he had given to Canfor, had acted in an indefensible manner. A civil action had, however, been brought against him, and a verdict obtained; which proved he had acted improperly. But, his conduct with the severity urged by the learned gentleman, was a question, admitting of very considerable doubt. For his own part, he thought it would lessen the dignified powers of parliament, if they were to proceed in a vindictive manner, because Mr. Kenrick had detained Canfor in his house for one hour, that individual having obtained damages for the false imprisonment. Mr. Kenrick had acted improperly, and he was sorry that he had suffered his temper to be ruffled: but, in estimating a

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moral wrong, they ought not to lose sight of the provacation which he had received. The complainant came before him writhing under feelings of regret for the loss of his ram. He had travelled, it seemed, 500 miles in the middle of summer, until the blood was running out at the knees of his breeches. In this state of heat he might have offered some provocation to Mr. Kenrick, to bear which would require more stoicism than that gentleman possessed. They had been told, that they were to draw no improper conclusion from Canfor's conduct at the bar, because he was so nervous, and so overwhelmed by the novelty of his situation, that he was unable to give evidence so correct as he otherwise might have done. Of course, he was extremely terrified when placed before the Commons of England; but, the House could not forget his demeanour; and, from the specimen they had seen, it was possible that in the heat of summer, and under the feelings which the learned gentleman had described, his conduct to Mr. Kenrick might not have been of the mildest and most conciliatory nature. When it was considered, besides, that Canfor had threatened to hand Mr. Kenrick over to his solicitor, who would tackle with him, he was induced to believe that the whole of his conduct had been offensive and provoking. He did not say, that if the provocation had been greater, it would be a sufficient excuse for Mr. Kenrick's forgetting the moderation and temper which belonged to his situation as a magistrate, but it must be allowed to have some weight when the House came to determine the degree of moral delinquency in the case. A great stress had been laid upon Mr. Kenrick's having thought proper to detain the fleece. He thought the reason which that gentleman gave for having done. so was a very satisfactory one. He said, that believing it would thereafter be made the subject of a civil action, he had taken it into his own possession that it might be forthcoming at the proper time. He knew that Mr. Kenrick was wrong in doing so—he knew that he could not justify his conduct in a court of justice—but still, the motive which had influenced him ought not to be lost sight of by the House when they were called upon to pronounce a censure upon this magistrate. The learned gentleman had said, that because one part of a man's conduct had been the subject of an action in a court .of justice, it was no
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reason why other parts of it should not afterwards be investigated. He agreed with him in the general principle; and he agreed that the criminal conviction of a magistrate was a sufficient ground for the lord chancellor's removing him from the commission; but the question in this case, as in every other, must be, whether such a punishment would not be beyond the offence charged? And here it must be remembered, that there was not only no conviction, but not even a criminal charge. He knew the same thing had been done in Ireland, even without a conviction; but that proceeding was not approved of in that House, and it had been said, that the lord chancellor for Ireland would have done better to follow the English practice. The learned gentleman had alluded to the case of a servant who should rob his master; but, he put it to his candour whether there was the slightest resemblance between that case and the present. Mr. Kenrick's conduct had never been brought before a court of justice. Canfor, the person bringing this charge, had accepted 5l. as a composition for his action; and it was said, that he had now presented his petition to the House solely from a love of public justice, and to prevent an improper person from holding any longer an authority which he had abused. He could not say, that he thought any of the allegations in the petition had been proved. He denied that the charge of felony had been suppressed, or attempted to be suppressed, by Mr. Kenrick. He denied, at least he doubted, that Canfor had been influenced by the motives foisted into his petition. He believed that, hearing of Franks's case, Canfor had thought it was a good opportunity for bringing forward his own complaint; but, while he denied this, he admitted that the House had nothing whatever to do with his motives. He would not, however, have it supposed that Mr. Kenrick was therefore, to have a verdict of applause. Mr. Kenrick's conduct was such as could, in no point of view, be justified; but still he thought it was not such as called for the interference of the House. It should be with the utmost caution that the House permitted itself to express an opinion which might have an ill effect upon the magistracy of the country. If any sufficient case of abuse had been made out, it was the province of the executive power to dismiss the person offending; and it would be in all cases better that the House

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Should not interfere with the exercise Of that power, unless they were satisfied that the case justified it. To him it appeared, in the present case, that such a course was wholly unjustifiable and inconsistent; because the evidence which had been adduced left the charges wholly unsupported. He should therefore conclude by moving a resolution, which although it might be unsatisfactory to some hon. gentlemen, was, in his opinion, consistent with the justice of the case, and with the usual practice of the House of Commons. He then moved, "That the committee, having heard evidence in support of the allegations contained in the petition of Martin Money Canfor, and having heard counsel in behalf of Mr. Kenrick, does not think it necessary to recommend to the House the institution of any further proceeding with reference to the petition of Canfor.
Mr. Tierneysaid, he was glad to hear from the right hon. gentleman, that it was impossible to approve of the conduct of Mr. Kenrick. He went, however, a little further, and thought that the House would lower itself in the estimation of the public, if it did not, in the most unequivocal manner, mark its sense of the outrageous conduct of that gentleman. The first part of the case made out against him, was his refusal to grant a search-warrant on Canfor's application; the second was his imprisonment, of that person in consequence of his refusing to give up the fleece. The right hon. gentleman said, that all attempts to prove any corrupt motives on the part of Mr. Kenrick had failed. Now, it was not necessary to prove any such motive; but, whether any such corrupt motives really existed, or not, still it was obvious, that Mr. Kenrick was unfit any longer to remain a magistrate and a judge. The right hon. gentleman said, that Canfor's manner was calculated to provoke the magistrate. He said, he had rode 500 miles after his ram, until the blood ran out of his breeches-knees. It was no wonder, then, that he should be chafed a little, when he applied to the magistrate: but, when he was imprisoned, he showed no symptoms of violence, he was then extremely temperate, and the violence was all on the side of the magistrate. Let the House consider whether the man had not some excuse for being a little out of temper. He told the magistrate that he had lost his ram, and after going a long time in search of it, he had at length found it
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in the fold of another Man. That man told him he would neither give him his ram nor show him the fleece which had been shorn from its back: and he therefore asked the magistrate to give him a search-warrant, which he thought was the best means of getting possession of his property. And so every man in his situation would have thought. Well, Mr. Kenrick said, "I wont grant you a search-warrant: but I'll give you a note to the man who, you say, has got your ram, and this will operate as a summons and bring him to me." He found no fault with this proceeding, except that Canfor's evidence was not taken on oath. There might be many objections to such a course; it might have thrown an imputation on a man's character, and lowered him in the esteem of his neighbours. To grant a summons, therefore, might have been the best course. Mr. Beale, who had the ram, was said to be an excellent character. A noble lord had given a very high testimony to his respectability. It might be so; but he must be permitted to say, that Beale's conduct with respect to the ram was very extraordinary. Beale lost a ram that had a mark upon its rump. He happened to find another, which had a mark on its side, and he said to himself; that although this was not his, it would do as well as another; so he took it home, and to prevent any mistake about the mark he sheared the fleece off. The owner of the ram saw it; and notwithstanding the change it had undergone, he recognized it to be his, and told Beale so, who refused to give it up. Canfor then said, "Show me the fleece, and Ill convince you that it is mine. "Beale refused this request, and said, "No, that is the very reason why I won't show you the fleece." This made Canfor very angry, and no wonder that it did. He then went to Mr. Kenrick, and applied for a search-warrant. Mr. Kenrick gave him a note instead, and with this he went to Beale again. Beale says still, "I won't show you the fleece, and I don't care for Mr. Kenrick nor his note either." This made Canfor still more angry; and as he found Mr. Kenrick's note of so little use, he went to another magistrate, Mr. Burgess, who, from a regard to etiquette, refused to interfere. Canfor had therefore nothing to do but to go back again to Mr. Kenrick; and then came a very material part of the story. Canfor found Mr. Kenrick's servant, George Adams; who was a principal actor in the drama. This

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person, who was no doubt a very excellent clerk and a worthy butler, said, "My master will have nothing further to do in this business." This singular saying had never been contradicted. Mr. Kenrick, in his petition did not rebut this statement. Was it, therefore, too much to infer that which Mr. Kenrick did not think fit to deny? Did the right hon. gentleman mean to say that he acted correctly here? His objection to grant a warrant might be reasonable enough; but, was there any reason why he should have refused to investigate the affair? All that the poor man got, instead of the redress he went for, was a message through the butler, to the effect that Mr. Kenrick would have nothing more to do with it. Canfor then grumbled; and it was not surprising that he did so; upon which the butler said, that Beale had been there, and that there was a proposition to refer it to Mr. Nash. Canfor said, he did not care to whom it was referred, if the fleece should be produced, because without that it would be impossible to satisfy the referee. Now, although before this Mr. Kenrick knew nothing of Mr. Beale, he had in the interim become acquainted with him through his butler. The matter was then referred, and the result was, that Canfor got both his ram and his fleece. He might then have gone home if he had chosen; but he said, "No. I'll go to Mr. Kenrick again, and show him that I have had an award in my favour." Now this seemed to be praiseworthy conduct on his part. He went to Mr. Kenrick, and there the scene was entirely changed. "Oh, you dog!" said Mr. Kenrick, "you have got back your ram and your fleece, have you! then I'll make a special constable of my butler, and have you taken into custody. And this was what the poor fellow got for calling upon the magistrate to pay him a passing civility. Mr. Kenrick gave as a reason for this, that he wished to keep the fleece, because it might be necessary afterwards to produce it, as it might be the subject of an action. Now, he must take the freedom to say he did not believe this. He said, he desired Canfor to leave the fleece for the purpose for which it had been given to him, and which was that he had stated. Mr. Kenrick, it must be remembered, was a judge. He had no such excuse as other persons might have pleaded. He was well acquainted with the law, and he must have known whether such a pretence was well founded or not. He
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might have produced Ede and Nash, the referees, and Adams and Beale; but he had not done so; and therefore he (Mr. T.) did not believe one word of a statement which was opposed to common sense. Well, Canfor said, he would not give up the fleece, nor the note: upon which, Mr. Kenrick told his butler, whom he had made a special constable, to fetch Batchelor, another constable, to search him; and when the other constable came, Canfor gave up the note. Canfor brought an action for this imprisonment, and Mr. Kenrick, when it came to trial, thought fit to compromise it. The action was put an end to by the payment of 5l. and the costs. A good deal had been said about Canfor's motives. The House had nothing to do with them; but since, by a sort of "God-send," the case had come before them, were they to shut their eyes to it? The right hon. gentleman said, the case was not worthy of the interference of the House. Why, if this was not, he wished to know what case was worthy to be interfered in? If this instance of intemperate use of authority was not a reason why the conduct of a magistrate should be investigated, what case could require an investigation? It was said, that the case of Franks must not now be taken into the account. He did not want to do so; but, the facts of that case had been made so public that no one could forget them. A piece of timber of the value of one shilling had been stolen from Mr. Kenrick, for which he committed Franks to gaol, and afterwards offered to let him out, if the man would plead guilty but he would not. He was ready to believe that, notwithstanding his opposition to the present resolutions, it would not be the right hon. gentleman's fault, if Mr. Kenrick was not persuaded to quit the premises, and not interfere further with the administration of justice. In his opinion, it was the duty of ministers to advise his majesty, to remove Mr. Kenrick. For his own part he declared most conscientiously, that he had never heard of a case more suspicious or more disgusting to his mind than this; and he could not imagine any person less fitted to discharge the duties of a magistrate than one who had conducted himself like Mr. Kenrick. Whether the resolutions of his hon. and learned friend were such as met the case, or not, he did not understand; but this was his firm opinion. He said so without any feeling of ill-will towards Mr. Kenrick, of whom he knew

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nothing. He implored his majesty's ministers to consider the consequences of denying justice to the people, and the necessity of preserving in the minds of all men a good opinion of those who were intrusted with the administration of it [hear].
Mr. Secretary Canningsaid, he fully concurred in the last sentiment of his right hon. friend: but, before the House came to the conclusion which he would press upon them, they would do well to consider whether the case was of so grave a nature as to justify the course proposed by the learned gentleman. Nothing could be more untrue than that, because ministers were not prepared to go all lengths in censuring the conduct of Mr. Kenrick, they therefore admired and approved of it. The question was, whether the case called upon the House to exercise that highest and most transcendent power which parliament possessed; and, if it did not (as he thought it did not), whether they ought to pursue an intermediate course, which would brand Mr. Kenrick with an imputation which would render him powerless in the high office he held, and thereby produce a great public mischief. Without going into the details of the case, he was decidedly of opinion that neither of these courses should be adopted. He had no acquaintance with Mr. Kenrick; he believed he had never been in the same room with him: he was sure he had never exchanged a word with him: he had no partiality in his favour; and yet he must say, that the case appeared to him the most trumpery that was ever heard of. The whole extent to which it reached proved only that Mr. Kenrick had been guilty of a discreditable and culpable want of temper, in his interview with Canfor. With respect to the search-warrant, that part of the charge was abandoned. All that remained was Mr. Kenrick's conduct on the second interview. That he had suffered his temper and his discretion to be overcome, could not be denied, nor could it be justified; but, the complaint and the punishment must be taken together. Was the loss of temper in an interview with that most unprovoking of mankind, who had lately appeared at the bar of that House, so great a crime that it could only be sufficiently punished by removing the person who had committed it from his high office of judge? He could not, in his conscience, say that it deserved any such punishment; and, as
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that was the only one which could be inflicted consistently with the interests of the country, he would not consent to adopt that other measure, as unjust as it was inconsistent with those interests, of blasting the character of the person accused, and yet leaving him in the possession of his office. This was the short view which he had taken of the subject, and, without going any further into it, determined him not to vote for the resolutions of the learned gentleman, which would be nugatory unless they were followed up by an address to his majesty, which the learned gentleman did not contemplate. It could not be denied that flying into a passion—the only charge proved against Mr. Kenrick—was a moral fault; but, the House of Commons must be cautious in inquiring into the private life of persons, because it might happen, that the most venerable characters, whose public conduct was without reproach, might be open to similar imputations in their private habits. The right hon. gentleman concluded, by repeating his opinion that nothing had been proved which could justify the House in passing upon Mr. Kenrick the censure contained in the resolution of the learned gentleman.
Mr. H. Sumnersaid, that, however disgusting the demeanour of Canfor might have been, the allegations in his petition had been substantially proved, and those allegations were perfectly consistent with the statement which had been made to him ten days after the occurrence took place. He was astonished to hear the right hon. Secretary characterize this as the most trumpery case he had ever heard of. Mr. Kenrick had directed an act to be done, which, in the first instance, led to an assault, and which might have led to much more serious consequences. For his part, he could not conceive a case which called more imperatively, for the interference of that House. Mr. Kenrick had called no witnesses to character, but his hon. colleague and a noble lord had represented him as a good husband, father, and friend. So he had always understood him to be; but private character had nothing to do with the matter; although, if he were asked whether Mr. Kenrick were a good neighbour, he should say, no such thing, but a very bad one. [Here the hon. member was about to relate an anecdote of Mr. Kenrick, to illustrate the opinion he had expressed of him, when he was called to order by Mr.

1431
W. Lamb.] He should abstain from going into that case; but could not at all concur in the propriety of postponing Franks's case until the next session. The two charges ought to be heard together; for although each, taken separately, might not be strong enough to warrant the removal of Mr. Kenrick; yet when the entire conduct of the individual was taken into consideration, there might appear abundant reason! And only see the situation in which Mr. Kenrick himself was placed. Upon the last circuit, he was cut by all the gentry. The postponement, therefore, would not enable him to administer justice satisfactorily.
Mr. Denisonsaid, that, as Mr. Kenrick's near neighbour, all he knew of that gentleman was in his favour. On the first night of the present charge being brought forward, Mr. Kenrick had requested him to state to the House, that he was most anxious for the fullest investigation. In the refusal of the search-warrant, he thought Mr. Kenrick had been justified. The taking Canfor into custody was reprehensible. But, as far as warmth of temper was concerned, seeing what the House had seen of Canfor at the bar, if no man was fit to be a magistrate but such as could have patience with that person, very few, he believed, would be in a state of qualification. On the whole he did not quite agree in either of the courses which had been recommended. That suggested by the learned member, he thought, went too far; while the other did not convey that degree of censure which the case deserved.
Sir F. Burdettsaid, he took the short question to be—a question which the House was bound to pursue in any shape, and by all available inquiries—whether Mr. Kenrick had or had not exhibited such qualities of character as deserved to preclude him from filling two such high offices as those of justice of the peace, and judge upon a circuit. In his opinion this had decidedly been the case. He by no means looked at the transaction in the light in which it was attempted to be presented by the gentlemen opposite. But, seeing that it was too late in the session to obtain all the evidence which Mr. Kenrick might think necessary to his justification, he should advise his hon. and learned friend to rest satisfied with the opinion which the House had already expressed; leaving upon ministers the responsibility of deciding how far, upon their own investigation, the resolution moved
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ought to be carried into operation, and reserving to himself the duty, in the next session, of inquiring what discretion had been exercised. In proposing this course, he desired to be understood as being fully ready to go all the length proposed by his hon. and learned friend: and as being decidedly of opinion, that, upon due consideration, there was only one course which the right hon. gentlemen on the other side could adopt.
Mr. W. Courtenaysaid, that the proposition of the hon. baronet appeared to be very extraordinary, as coming from so staunch a champion of constitutional rights. Was it not very singular that the hon. baronet, of all other members, should call on ministers to remove an individual from his offices, whose case had been submitted to the consideration of the House, without their passing any opinion upon it? [Sir F. Burdett said, across the House, that he only called for the dismissal of Mr. K. from the magistracy.] Then, the proposition of the hon. baronet, was still more objectionable; because it supposed the propriety of allowing an individual, who was dismissed for misconduct from the magistracy, to continue unmolested in the exercise of the far more important functions of a judge. The learned member contended, that this was a case in which the House was not called on to interfere.
Mr. Denmansaid, that as nothing like a defence had been set up for Mr. Kenrick, the case of that gentleman might be considered one, respecting which there existed no difference of opinion. "Reprehensible" was the mildest phrase applied to the conduct of Mr. Kenrick. That Mr. Kenrick's conduct was open to great censure no man denied. Indeed, the right hon. gentleman fully admitted it, for although be called this a trumpery case, he had followed up that statement by saying that Mr. Kenrick had displayed "a most discreditable want of temper," and that his conduct was "a fit object of censure." Why was it "discreditable," if he was not unfit for his office, why was he "a fit object of censure," if he did not deserve to be removed. Was there any gentleman in that House who, if lie were asked on his honour or oath whether the charge contained in the resolution had been fully substantiated, would hesitate to admit it; or would deny for a moment that the charge was perfectly true? Under these circumstances, if it was the wish of the House, he should content

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himself with merely having the resolutions put, without troubling them with a decision.
Mr. Crokersaid, that however blamable Mr. Kenrick might have been for his warmth of temper respecting the fleece and the note, still his motive was praiseworthy; namely, to produce them in evidence in a cause which was then considered to be pending; and the best proof that such were his motives was, that they remained in the possession of the constable until the day of the trial.
Mr. Lockhartsaid, there was a great inconvenience in including gentlemen's names in the commission of the peace, who held judicial appointments; and he trusted that in future it would be avoided.
Mr. Wynnadmitted, that there had been some haste and intemperance in Mr. Kenrick's conduct in the present case, but declared that his conduct as a judge in Wales had given the highest satisfaction. With respect to the strictures upon Mr. Kenrick's private character, he thought they might as well have been omitted. As to the charge of intemperance, that was one to which, unfortunately, many persons were liable. What would the hon. member for Surrey think of any member of that House who should be so intemperate as, in a private committee, to resort to personal violence against another hon. member? He believed there had been many excellent judges, whose conduct would not have borne the inquiry which had been inflicted on Mr. Kenrick. If it had been proved that Mr. Kenrick had acted from corrupt motives, that would have been a sufficient ground for addressing the Crown to remove him; but no such fact had been established, and the case, as it at present stood, was too slight to be met by the censure of that House.
The amendment, moved by Mr. Secretary Peel, was then agreed to.

LAW OF MERCHANTS BILL—PRINCIPAL AND FACTOR.
On the order of the day for the third reading of this bill,
Mr. Scarlettrose and said:—
Mr. Speaker; I am sensible that I rise to address you under very great disadvantages. The question before you involves nothing of individual feeling, or of party prejudice; nor does it very obviously affect the personal interest of any portion of this House. It wants every thing, therefore, which usually recommends a discussion to the attention of this House;
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and, had it not been introduced into parliament under the patronage of a minister, would probably not have found an audience. Under these circumstances, if I did not consider this as one of the most important measures of the present session, I should certainly never think of forcing myself upon your notice at so late an hour; more especially after the attention of the House has been exhausted by a very lively and interesting debate, upon a subject of a totally opposite character. It shall be my endeavour, however, to state my objections to the bill with as much brevity as possible; more with the view of redeeming the pledge I have so often given, that I would take some opportunity of explaining my sentiments upon the question fully to the House, than with the vain hope that any opposition from me can prevail against a measure supported in this House by the powerful protection of my right hon. friend, (Mr. Huskisson)—after it has been introduced into the other House of parliament by his majesty's principal minister.
Before I proceed to the consideration of the subject, I beg leave to advert to a topic which has more than once been suggested by some of those who support this measure, in allusion to my known disapprobation of it. Professing a very flattering, and a very unmerited deference to my opinions as an individual, they are so obliging as to ascribe the difference which appears to exist between me and the bankers and merchants who have petitioned for this bill upon the necessity of a change in the law of principal and factor, to the prejudices derived from the profession of which I am a member. It has been the fashion of late, to denounce the lawyers as opposed to every liberal view of policy, and incapable, from the narrow habits of their profession of judging correctly and impartially upon subjects of legislation. I shall not condescend to vindicate the profession of the law from so senseless an imputation, deserving only to be treated with scorn and contempt. I am very far from arrogating to the members of the profession, any sort of advantage over any other class of gentlemen in this House. With respect to the merchants and bankers who adorn it, no person will acknowledge more readily than I do, their liberality, their knowledge, and their capacity for questions of legislation in general; but I can

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not admit that either my education, or the daily habits of my professional life, render me less competent to exercise an enlightened and a liberal judgment upon any proposed rule of commercial law, than if I had enjoyed the good fortune of being brought up in a counting-house, and had been accustomed to view commercial subjects in their practical details with an eye chiefly to my own profit. Few men, indeed, are so much above prejudice as to form an impartial judgment upon the general policy by which their own pursuits of gain ought to be regulated; and I hope I shall give no offence, as I mean none, when I say, that if there be any particular subject on which I should be inclined to pay little deference to the opinions of bankers and merchants, it would be precisely upon the subject of a rule for the regulation of property in which they consider their own peculiar interests to be involved. To the judgment of my right hon. friend I am disposed in all cases to defer. I am ready to own, that if I could persuade myself that he was master of the whole subject, I should feel much hesitation at coming to a conclusion differing from his.
I shall not trouble the House by reading a commentary on each particular clause of this bill. The whole affords a very happy example of the circumlocution and obscurity that distinguish the style of modern legislation. The main object which is discernible through all its mystification, I take to be this; to enable agents and factors to raise money for their own use, or to pay their own debts, by making a binding and lawful pledge of the property of their principals, without their consent or authority. This is the substance of the second clause, and is the only substantial ground of my objection to the measure. With respect to the first clause, which I am aware is but a repetition of part of the act of 1823, though it occupies so considerable a space in the printed bill, its meaning may be stated in very few words, and is perfectly innocent. It amounts to no more than this, that the consignor, or person in whose name goods are consigned by the authority of the true owner, and who is therefore the apparent owner, shall be taken to be the true owner, for the benefit of the consignee to whom they are sent, unless the consignee have notice previously to his advancing any money upon them, that the consignor, in whose name
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they are shipped, is not the true owner; and moreover, that such consignor shall be deemed to have been the true owner; or intrusted therewith for the purpose of consignment or sale by the true owner, unless the contrary shall be shewn in evidence by any person disputing such fact. Whether my learned friends on the other side discover any thing new in this clause, I cannot pretend to judge. The only novelty I can find in it, after much consideration, is the very elaborate and prolix contrivance by which one of the plainest rules of common sense and common law is mystified and obscured; unless, indeed, which I cannot suspect, it was intended darkly to shadow out something of the same object which is explicitly stated in the second clause.
Another part of the bill is also to be found in the act of 1823, namely, that which enables a factor, who has advanced money to his principal, and thereby obtained a lien upon the principal's goods in his hands, to communicate the benefit of that lien to another, by pledging the goods to that extent. This part of the measure always had my approbation. My right hon. friend seems to express some surprise at this. He will surely do me the justice to recollect, that my opposition to the bill introduced by the member for Midhurst in 1823, was confined to such parts of it only as were finally abandoned in that session; and, that so far from opposing this, which considered the only material part of the act which then passed, I communicated. to him the form of a bill for carrying it into effect, which I thought, and which I believe he found, was both much shorter, and more explicit than the bill which was before the House. In truth, I have ever considered that the decision of the judges which denied to the factor the benefit of raising money upon his lien, was founded on too narrow and technical a view of the rule. It is remarkable, that both lord Kenyon and lord Eldon, coming from a court of equity, were each at the first disposed to allow that privilege; they considered that the equitable lien of the factor, though he had parted with the actual possession of the goods, was sufficient to justify the pawnee in detaining them till his own claim, to that extent, was satisfied. But the other judges of their respective courts. applied a well-known rule of law, that he who parts with his possession loses his lien, and held in conseguence, that the

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factor, by giving possession of the goods to the party advancing him money upon them, lost his power of retaining them against his Principal for the satisfaction of his demand. Perhaps they might, without any deviation from this rule, have considered the pawnee of the factor as merely his agent for retaining possession, on his behalf, of the goods till his demand against the principal were satisfied. However, the law on this particular subject, as laid down by them, has been corrected by the act of 1823, which is proposed now to be re-enacted; and I repeat, that to this part of the measure I make no sort of objection.
But it is proposed by the second clause of this bill, which I consider to embrace the substantial object of the whole measure, to enable any person whatever, who shall be intrusted for any purpose whatever, with any bill of lading, warrant, wharfinger's certificate, or order for the delivery of goods to order or bearer, to sell the goods therein mentioned, or to pledge them for the purpose of raising money upon them for his own purposes, or to pay his own debts with them to the prejudice of his principal, the true owner of the goods, and without his authority, consent, or knowledge. And this, though the person intrusted have no lien upon the goods, no claim of any kind upon the owner; nay, even though he may be a debtor of the true owner, or may be his servant, or the clerk or servant of his factor or broker. This I pledge myself to the House is the true meaning and effect of this clause as it now stands. The proposed alteration of the law is not confined to the case of a factor intrusted with goods for sale; but extends to give an express legislative sanction to the fraud of every species of agent or servant whom it may be necessary to trust with the receipts of goods for any purpose whatever, and who may chance to find, as doubtless he always may find, a money-lender discreet enough to accept his pledge of the warrant or order for the delivery of the goods without pressing for any inconvenient information. I own, Sir, that I cannot give my assent to so very important, and so very mischievous a change in the law which regulates property; nor can I persuade myself that my right hon. friend, whose enlightened views, and correct opinions in general, I have ever felt the greatest pleasure in acknowledging, or that the gentlemen who have won him to
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their notions upon this subject, can be aware of all the consequences of a measure which, unless I am greatly deceived, without any necessity or adequate advantage, holds out a premium for fraud, and exposes the whole commercial property of the empire to become the prey of dishonest servants and crafty usurers. Are they aware, that every merchant who has goods in a dock or warehouse, is in the habit of trusting his clerks and his brokers with warrants and orders of the exact description specified in this clause? That the broker in his turn trusts his clerks and inferior agents? In fact, no merchant attends the delivery of his own goods, and hardly any broker personally receives the goods of his principal when he has an order for that purpose. So that when this law shall have come into operation, there will be scarcely any parcel of merchandize in the metropolis, or in the kingdom, that may not find its way into the safe custody of some money-lender by profession; who, under the sanction of an act of parliament, made apparently for his encouragement, may open an honest shop for the reception of all manner of goods without asking any questions.
But it has been said on a former occasion in this House, that the law that a factor cannot pledge the goods of his principal, is of modern introduction in this country; that it is derived from a particular case, of Patterson v. Tash, and that even that case was not properly understood. This statement is, I believe, derived from a very learned and ingenious publication; for the author of which I entertain a high respect and esteem, though I differ from his reasoning and his conclusions. He has been, I conjecture, the original promoter of this bill, and the real source from whence the numerous bankers and merchants, who are so much alarmed at the present state of the law, have gathered the first notions of their danger. I may remark, by the way, that it is somewhat inconsistent to find so much deference paid to the opinions of a lawyer. The course that gentleman has adopted is, to select particular and extreme cases in which the application of the law to innocent parties has produced great hardship; and to dwell upon the feelings which such cases are ever apt to excite, for the purpose of raising a prejudice against the general rule. This mode of reasoning, which is common enough, however captivating, is very fallacious. Most of the

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cases which call for the opinions of the judges, are those in which the facts are of a very complicated nature, of very rare occurrence, and in which a difficulty has been found to ascertain under what precise rule of law they are to be classed. Judges are often bound to apply a rule to a particular case against their own wishes and feelings. They arc compelled to decide by general rules, without regard to particular consequences. The utility of these rules is not to be measured by the extreme and doubtful cases to which they are sometimes applied, but by their influence on the ordinary transactions of mankind. There is no rule, either of property or of morals, which may not in its application to extreme and difficult cases, appear severe and unjust. It is unnecessary to enumerate instances, which abound even in writers upon moral obligation; the whole argument is embodied in the just understanding and application of the well-known maxim "summum jus summa injuria." I shall not dwell further upon this topic, except to observe, that whatever objections my right hon. friend may feel to particular cases of great hardship, I can assert, upon my own experience, that the vast majority of instances to which the rule is applied—instances which do not find their way into printed reports—are those in which the party advancing money to the factor, has had strong reason to suspect that the goods were the property of another; and in which all the feelings of compassion and sense of injury would be awakened on behalf of a defrauded principal.
But it is a great error, to suppose that the rule of law that a factor cannot make a binding pledge of the goods of his principal contrary to his authority is derived from the case of Patterson v. Tash, or from any other case. Decided cases serve to illustrate the law; they do not make it. Neither is the rule in question founded Upon any principle peculiar to the law of England: it is the necessary consequence of the right of property. Amongst savages, possession is the only rule of right. The advantages and the necessity of commerce amongst civilized nations have introduced a different rule. It is impossible that the true owner of personal chattels should always retain the manual possession. He must intrust them to agents; more especially, if they are to be transported to, and exchanged at, a distance from his own residence. Hence, in proportion to
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the extent of commerce in any nation, does the mere right of possession, or the actual possession of, merchandize (that is, of goods not appropriated for consumption, but in an exchangeable state), become less and less to the mercantile world the evidence of property. It is directly contrary to the fact, to assume that any banker or merchant takes it for granted that the holder of merchandize in a warehouse, or of a bill of lading of merchandize in a ship in transitu, which is but a title to receive the possession on arrival, is therefore the true owner. It is perfectly known, that almost every merchant is also a factor; that the bills of lading or other documents authorizing the holder to receive possession of goods, are, upon the question of title, altogether ambiguous, and remain to be explained by the bills of parcels, the invoices, or the letters of advice, of which he is surely in possession if he be the purchaser. I believe this position will not be questioned by any commercial gentleman in this House. Sure I am, that no jury of merchants would believe any man who would venture to deny it, even upon his oath. That I may not, however, be supposed to state this proposition with so much confidence on my own authority, I shall beg permission of the House to read a passage from a judgment of the late lord Rosslyn; to whom I the more willingly appeal upon this occasion, because he was not only most eminent as a lawyer, but possessed all the endowments which a liberal education and a general intercourse with the world could bestow on a gentleman. This distinguished person says, "A bill of lading is the written evidence of a contract for the carriage and delivery of goods sent by sea for freight. In the usual form of the contract, the undertaking is to deliver to the order or assigns of the shipper. By the delivery on board, the shipmaster acquires a special property to support that possession which he holds in right of another, and to enable him to perform his undertaking. The general property remains with the shipper of the goods, until he has disposed of it by some act sufficient in law to transfer property. The endorsement of a bill of lading is simply a direction of the delivery of the goods. When this endorsement is in blanks, the holder of the bill of lading may receive the goods, and his receipt will discharge the shipmaster: but the holder of the bill, if it came into his hands casually, and without

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any just title, can acquire no property in the goods. A special endorsement defines the person appointed to receive the goods. His receipt or order would be a good discharge to the shipmaster: and in this respect the bill of lading is assignable. But what is it that the endorsement of the bill of lading assigns to the holder or endorsee? A right to receive the goods and discharge the shipmaster. If any other effect be attributed to it, the possession of the bill of lading would have greater force than the actual possession of the goods. Possession of the goods is primâ facie evidence of title: but that possession may be precarious, as of a deposit; it may be criminal, as of a thing stolen; it may be qualified, as of things in the possession of a carrier, servant, or factor. Mere possession, without a just title, gives no property; and the person to whom such possession is transferred by delivery, must take his hazard of the title of his author." The correctness of this definition, and of this reasoning, has never been doubted, though the application of the latter to the peculiar facts of the case from which I cite it was erroneous.* Under the shelter, therefore, of so high an authority, I return to the position, that in a civilized and commercial country, the actual possession of merchandise, much less the mere authority to receive the possession, to which alone the second clause of this bill relates, is not to the mercantile world an indication of property, when unaccompanied by invoices or letters of advice from the vendor or consignor. It is, on the contrary, highly probable, that the greater portion of the wholesale exchangeable merchandise in the commercial world is not at any given time in the immediate possession or control of the true owners; it becomes, therefore, absolutely necessary, unless we return to a state of nature, and take possession for the only rule of property, that the law should establish some general rules for the security of property to the owner, when it is not in his possession. Now, it is of the very essence of property, that it should not be changed by force or by fraud, or against the will of the true owner. It is also a rule of common sense, adopted not by the law of England only, but by the civil law which governs the greatest portion of civilized Europe, that an agent shall not bind his principal beyond the
* Lickbarrow v. Mason.
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general scope of his authority. By the obvious application of this rule, and of the most essential notions of property to the relation of principal and factor, it follows that a factor who is intrusted to receive the goods of another for sale, or for any other specific purpose, cannot pledge those goods for the payment of his own debts, or for his own advantage, to the prejudice of the principal and against his will. For otherwise it would be in his power to change the property by a fraud; and without the consent of the owner, and to bind his principal beyond the scope of the authority reposed in him. I am not aware that by the law of any nation in Europe, ancient or modern, property is allowed to be changed or acquired by a direct fraud upon the owner; the general rule is the contrary. The cases where a change of property may be so affected, if they exist at all, are cases of exception depending on very peculiar circumstances. I know very well that it is roundly asserted, that the law respecting principal and factor, as it exists in this country, is peculiar; that the other commercial nations of Europe allow a factor to bind his principal beyond the scope of his authority, and to change the property of the true owner by a direct fraud upon him. To support this assertion, we are favoured with the opinions of learned foreign advocates. But I beg permission to say, that I require much better evidence than the opinions of advocates, to satisfy me of what I must consider so strange an inconsistency with the general rules for the security of property. Certainly nothing short of judicial decisions, upon cases well understood and defined, will satisfy me that the law of any other country in the world is opposed in this particular to the law of England. Nor should I even then be disposed to admit, that this country, to whose decisions on commercial subjects it has been for so many years the habit of the civilized world to defer, and to whose tribunals, vilified as they have lately been, the most enlightened foreigners look for the purest and best administered justice, ought to learn a lesson upon an important branch of commercial law from any nation upon earth. But as far as I have been able to inform myself, the learned advocates who have given these opinions, would not find them supported by judicial decisions. Sure I am, that the general principles to be found in the reported decisions

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of those, countries where commerce most flourished, and where the rules of property were best understood, before England became the most distinguished of nations for both, are in direct contradiction to these opinions. It has occurred to me, also, to have ascertained the opinion of a very eminent foreign judge upon this particular question before it was brought under the notice of parliament. If the House will permit me, I will shortly state the particular case in which the question arose. It does not furnish a bad illustration of the principle; and if I state it incorrectly, it will be in the power of my hon. friend, the member for Taunton, to set me right. Some years ago, the House of Alexander Baring and Co. employed a certain broker, of the name of Coles, to sell for them eighty-four hogsheads of Surinam sugars. Baring and Co. had been in the habit of employing this broker, and of handing to him orders for the delivery of goods from the docks, and of allowing him to deliver the orders or the goods to the purchasers, and to receive the money. Coles was not only a broker, but dealt largely on his own account, as a merchant, in buying and selling goods. In this latter capacity, he had frequent dealings with the House of Corrie and Co. at Liverpool; to which House he was indebted upon his acceptance to a large amount when they became the purchasers of these eighty-four hogsheads of sugars. Coles sold them as his own property on his own account, and transmitted an invoice of them in his own name, accompanied with the dock warrant, or order for delivery, endorsed by the importers, Baring and Co. to be delivered to Coles or order. I must here explain, that goods in the West-India dock are landed and housed in the name of the importing merchant, who receives a warrant from the Dock company, by which he is recognized as the person to whom, or to whose order, the goods are to be delivered. This warrant, like a bill of lading, he may either endorse in blank, which makes the goods deliverable to the bearer, or to the order of any specific person, who may in his turn endorse it again. When the goods are sold, it is usual to hand over the warrant endorsed to the purchaser, or to the broker, or to the bearer, as the parties desire; and it imports, in each case, that the goods are no longer under the control or order of the importer, but of the endorsee or bearer as the case
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may be. It becomes, in fact, when so endorsed, the exact description of warrant or order mentioned in the second clause of this bill. The warrant, in this particular case, was in the hands of Coles in that state which entitled him to receive the sugars himself, or to assign the power of receiving them to any other person, or to the bearer. With the invoice of the sugars, Corrie and Co. received the order endorsed by Coles to them, by virtue of which the sugars were delivered to the agents of Corrie and Co. Before the time when the usual period of credit expired, Coles became bankrupt; after which, Baring and Co., to whom he was a debtor, gave notice to Corrie and Co. not to pay the purchase money to Coles, but to them. In fact, Coles had delivered a contract to Baring and Co. by which he had led them to suppose, that he had sold the sugars in their names as their property. Corrie and Co. being; creditors of Coles, and holding his acceptances over due, insisted upon their right to set the price of the sugars off against these acceptances, they having purchased the goods, without fraud, as the property of Coles, and made no contract with Baring and Co. of whose interest they had no notice by the warrant or otherwise. An action was brought by Baring and Co. to recover the price from Corrie and Co. upon the precise ground of that law, which it is the intention of this act abrogate; namely, that the possession of the warrant did not alter the character of Coles as an agent; that he was not authorized to sell the goods as his own, nor to pay his own debts with them; that by such a sale, he could not bind his principals, who had at any time before payment of the money, a right to intervene. The cause was tried before lord Ellenborough and a special jury of merchants at Guildhall. The jury, who were not then in possession of any new lights upon the subject, without hesitation gave a verdict in favour of Baring and Co. against the inclination of the judge, who thought that this case ranged itself within certain exceptions to the general rule, with which it is not necessary to trouble the House. In consequence of his doubts, the Court granted a new trial, and directed the facts to be stated in a special case for the more solemn consideration of the judges. The case was argued twice. The counsel for the defendants did not fail to urge the popular argument of which the supporters

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of this bill avail themselves; namely, that Baring and Co. trusted Coles with the order for the goods, and to receive the money; that if the bankruptcy had not intervened before the credit expired, the account would have been settled exactly as Corrie and Co. now contended it ought to be; and that Baring and Co. must have looked to Coles alone, in whom they had confided, as their debtor: in fact, that the mere period of the bankruptcy ought not to make a difference in the rights of the parties. The Court, however, finally decided the case, as the jury had done, in favour of Baring and Co. Whilst this case was depending, I had the opportunity of submitting it to a very learned and sagacious judge of the Cour Royale of Paris, who was then in England, and whose talents are known to this nation as well as to his own, by a very distinguished publication upon the judicial proceedings of this country, He was surprised at the doubt entertained on the case by the English judges, and assured me, that the Courts in France would have found no difficulty in deciding, that Coles, being a mere agent, could not bind his principals by a sale of the goods as his own, so as to preclude the principals from asserting their title aid interest in the contract whenever they chose to intervene before actual payment.
Here then, at least, is one unquestionable authority against the learned opinions I have alluded to. With respect to the case, I think it was rightly decided; but I beg to assure the House, that if the proposed law lad then been in existence, Mr. Coles might not only have made a legal and binding sale of the sugars as his own, but might have pledged them to any person for a loan to himself, to the prejudice of his principals, and contrary to the authority reposed in him. For be it observed, that Coles, though not a factor, was precisely in the case of a person intrusted with a warrant or order for the delivery of goods to order; which document gave no notice that any other person was the owner. He would, therefore, in the words of the second clause, have been deemed and taken to be the true owner, so far as to give validity to any contract for the sale or pledge of the goods to any person whatever, to whom he did not think it expedient to give notice that he was not the true owner, and who might think it not expedient to ask for his invoice, or to make any other inquiry.
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I now return to the general question, which may be stated thus: Shall an agent who holds a bill of lading, or other order for receiving the goods of his principal, for the purpose of sale, or for any other specific purpose, having no claim whatever against the principal, have power by law to raise money upon these goods by pledge of the document or order, for his own benefit, or for some object in which the principal has no interest, and thereby, if he becomes bankrupt or insolvent, deprive his principal of the right to reclaim the possession of his property remaining unsold, except upon the condition of redeeming the pledge? This is the main object of the measure, in whatever manner it may be mystified. Now, to determine fairly upon this question, it is necessary to consider who are the parties that can have any interest in it. The first is the principal whose goods are placed in jeopardy; the second is the agent or factor; the third is the money-lender. I am aware of no other. I presume no argument can be necessary to satisfy a common understanding, that the principal or true owner of the goods can never be the advocate of a measure, that has a manifest tendency to diminish his own security. It may be said, and, if I remember right, the topic has been employed in this House, that the facility of raising money upon the pledge of goods has a tendency to prevent their being thrown upon a falling market, and that the owners of goods upon sale have a general interest in this, which outweighs the risk they run of the insolvency of their factors. It is difficult to deal with an argument that presents itself in so abstract a form. I believe that the owner of goods on sale is more apt to consider his own individual hazards and interest, which he can easily comprehend, than the general interests of the extensive class in which the argument places him. If a factor has actually advanced money, or accepted bills for the benefit of his principal, it is admitted that there can be nothing unjust or injurious to the principal in permitting the factor rather to pledge the goods for reimbursing himself, or paying the bills, than to compel him to a forced sale of the goods. This case, when it occurs, every owner of goods. can understand. He can see that his interest is in no way prejudiced, since he must pay the money due to the factor by the sale of the goods or otherwise. But beyond this point, I am persuaded,

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that the general abstract interest of vendors in sustaining high market prices, would never be of sufficient force to induce an owner of particular goods to put them in hazard for the credit of a factor. On the contrary, I believe, that the owner of goods would never trust them with a factor to whom he was not indebted, but upon the understanding that the factor had capital enough to sustain his credit without in any measure sacrificing the property of his principals. It is well known, that in a great variety of trades there exists a competition amongst factors, which induces them to offer various portions of the invoice price by way of advance to their principals, in order to invite a preference. Now, this mode of dealing plainly implies, that the factor holds himself out as in possession of adequate capital to do even more than the strict duties of a factor require. How then can it be assumed, that the principals generally anticipate the possibility of a want of credit in their factors leading to forced sales? But if this general theory of the abstract interests of the owners of goods on sale were founded on truth, it ought to follow, that the factors should be rather encouraged than not, to raise money by pledges; whereas, by an inconsistency somewhat new in legislation, they are by this bill declared criminal, and made liable to fourteen years' transportation, for doing that which the argument supposes to be a general benefit, and which the same bill sanctions and makes binding in law upon innocent parties who are defrauded by it. Moreover, I am not prepared to admit that there is any public benefit resulting from that degree of facility in procuring money upon goods, which tends to raise them to an artificial price. It is far from my intention to embark upon this topic in the present argument; but I think my right hon. friend must agree with me, that the power of turning every commodity in the market into its nominal value in currency, which in effect is the enhancing of prices by an indefinite augmentation of that currency, and not of the real wealth of the country, implies an artificial state of the currency, which can neither be lasting nor advantageous to any community.
The next party whose interest is involved is the factor. Now it may well be doubted, whether a law which carries along with it a penalty upon him, can be intended for its benefit. And it may, I
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think, be assumed, that there is as little of wisdom or policy as there is of morality, in making a law for the express purpose of sanctioning the fraud, and increasing the power of a dishonest agent. It is plain that the law is applicable to such agents only. An honest factor may undoubtedly be reduced by misfortune to the necessity of borrowing money; but I deny that any honest man will borrow money upon the goods of another, in which he has no interest; still less will an honest man make a false representation of his title to the goods on which he seeks to borrow money. These propositions surely cannot be doubted, It follows, then, that the interest of an honest factor cannot be concerned in this law. That it will serve the ends, and gratify the wishes of some factors, I entertain no doubt; but I cannot think it either necessary or wise in the legislature to pass a law for the benefit of that description of factors, to whom alone, I am most confidently of opinion, that this law, when rightly understood, will appear to be beneficial. They will calculate upon the remote risk of prosecution by a principal residing abroad; whom they will always protest they intended to serve, not to defraud, when in a season of necessity, produced by their own imprudent speculations or extravagance, they find it expedient to satisfy their English creditors, by distributing amongst them the goods of their principals; and at all events, to make no enemies of their bankers, with whom, when their difficulties are over, they may desire to open a new account.
The only remaining party whose interest is to be considered" is the lender of the money upon the pledged goods. To him I most freely admit that the proposed law is highly advantageous. Nothing can be more useful or desirable to the lenders of money, than a rule of law which may dispense with all caution about the nature of the title on which they lend. To them it would be highly advantageous to make the mere naked possession of property of all descriptions, and in all cases, a conclusive title against all mankind. They might then accept property of all sorts, and from all manner of persons, upon pledge without risk. It would greatly facilitate all transactions of lending money, and add much to that species of commerce, if it were clearly established that the lender was never called upon to make any inquiry about

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the title of property offered in pledge. It is very well understood, even now, that the shops which buy or advance money upon all manner of goods without asking questions, have a vast superiority of custom. But, Unfortunately, an opinion has hitherto prevailed, which has tended to discredit this species of traffic. It has been thought, perhaps from mere prejudice, that if there were no receivers, there would be fewer thieves; and that one of the best modes of protecting property from fraud and plunder, is to expose the receiver, in some cases, to punishment, and in all cases to the loss of the property which he has received through the felony, the fraud, or the embezzlement of the party from whom he obtained it. It has been thought, moreover, a strong argument against the receiver, that he should have made no proper inquiry of the party offering him property upon pledge or sale. The man who voluntarily turns his eyes away from the light, that he may afterwards seek for shelter in his own ignorance, surely suspects the existence of that which he thinks it not safe to discover too clearly. If this observation be just, it is as applicable at least to the best informed merchants and bankers, as it is to the more ignorant part of mankind. It is, therefore, very fit to be considered, admitting the benefit Of this law to moneylenders, whether it can be of any real advantage to commerce to introduce this sort of morality into it by act of parliament, and to what extent, if once introduced, it must be carried.
Now it is manifest, that a banker or merchant applied to by a factor to lend money upon the pledge of goods, must be aware, that if the borrower is honest, and means to pledge none but his own goods, he cannot possibly have the slightest objection to make his title to the goods known, by producing his invoice, or his letters of advice. The application for money discloses his necessity. The disclosure of his title, if it be a good one, can have no other effect than to strengthen his credit. No man who wants credit can feel any desire more natural or more strong than that of displaying the resources which can best procure him credit. He gains confidence by it, is the more certain of immediately attaining his object, and can by no possibility do himself or any other man any injury by it. In all imaginable eases, therefore, where such an application
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is made by the holder of bills of lading, or other orders for the delivery of goods, without at the same time shewing or offering to shew his invoices or letters of advice, the money-lender has, from that very omission, the more reason to suspect, that the ambiguous documents which are alone produced, are held by the party applying in the character of a factor or agent, and not that of a principal. The plain dictates of honesty and good faith in such a case, surely more imperiously prescribe, that the lender should demand an inspection of the particulars withheld. Wherever he omits to do so, the inference is plain, that he fears he may be pressing for an embarrassing disclosure. Those who are conversant with cases of this kind in courts of law, are well aware of the many shifts to which he who is desirous of lending money to a needy man, upon pledge of goods, without risk, is obliged to resort. The most common of these is a fictitious sale of the goods. The suspicious lender, unwilling to embarrass his friend, or to imply a doubt of his integrity, which he really feels, is not disposed to take goods upon pledge, but he has no objection to purchase them, if he can be sure of a small profit. The borrower has no difficulty in gratifying him; he offers to purchase the goods to be paid for at a future day, at a small increased price. Sometimes a third party intervenes, who becomes the intermediate buyer and seller. I appeal to my hon. and learned friend, the Attorney general, if he has not had very recent experience in the court of King's-bench, of these dexterous expedients. They are, it must be owned, not so convenient a machinery for fraud as the more direct road opened by this bill; and what is worse, they are sometimes, more especially in cases of bankruptcy, found ineffectual. The basis of the transaction is fraud, and it has hitherto been one of the most universal maxims of the common law, that fraud vitiates and avoids all transactions of which it makes a part. But this bill proposes to qualify that maxim, in the particular case in which the fraud and dishonesty of the borrower of the money, is combined with the affected ignorance and real suspicion of the lender. For no advantage then of the principal, for no advantage of the honest factor, but for the mere benefit and security of the careless at least, if not the crafty and suspicious lender of money, a law is to be passed,

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whereby a dishonest factor or agent of any kind may more successfully defraud his principal. Is the necessity of lending money then so urgent, that it must be the paramount object of legislation? Or is it worthy of the character of the law of England that it should lend an express and positive sanction to such transactions? That it should proclaim free liberty of fraud as part of the freedom of trade, and consecrate in the very sanctuary of legislation the principles of treachery and spoliation?
But is has been said, that admitting the factor to be guilty of fraud, and to merit punishment, the question is between two innocent persons, which shall bear the loss resulting from that fraud, the one who has placed confidence in a dishonest factor by trusting him with his goods for sale, or the lender of the money who has placed no confidence, but exacted the security of goods for his loan? It will be easy to show the sophistry of this mode of stating the question. In the first place, it is not true that the lender has placed no confidence in the factor, but just the reverse. The lender, knowing that the true owner of merchandise must always be in possession of documents to prove his title, has chosen to rely upon the representation of the borrower, or upon an ambiguous bill of lading or order for delivery, without demanding those documents. In the next place, the lender was aware, that the borrower was pressed by some urgent call for money, and that a man who is obliged to borrow is never unwilling to show his title to credit if he has any. It is the lender, therefore, who, disregarding circumstances that ought to have excited his suspicion, has placed an unwary confidence in the mere personal character of a necessitous borrower. Whereas the principal, more especially the foreign principal, has less. means of knowing the circumstances of the factor, and has confided to him nothing but what was warranted by the usual course of trade. Every man who carries on a particular branch of business, holds himself out to the world, and may be reasonably presumed by those who deal with him in that line only, to have competent skill, integrity, and resources for his ordinary business. Nor can it be reasonably supposed, that any owner of merchandises would intrust them for sale, to a factor whom he thought deficient in any of these points. But the man who deals
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with a factor, not in the way of his business, but in transactions of lending him money, must surely know best, or at least is bound to know best, what are his resources. Besides, the foreign merchant is under the necessity of trusting his goods to a factor for sale; he cannot otherwise conduct his commerce. But what necessity has any man for lending his money upon the pledge of goods? What obliges him to do so without first ascertaining the title of the borrower? How would commerce suffer if no factor should hereafter ever be able to obtain money upon goods in which he has no claim or interest? The true way, then, of stating the question seems to be this: Whether of the two parties, supposing them equally innocent of fraud, shall the loss fall—upon him who hat lent his money without necessity, without inquiry, and under circumstances that justified suspicion, and called for inquiry; or upon the owner of the goods, who was as under the necessity of trusting an agent with them, who did not know of the embarrassment of that agent, and who has no negligence or want of caution to reproach himself with?
But it is said, that the foreign principal may easily protect himself from the fraud of his factor by inserting his name as agent in the bill of lading. Those who insist upon this topic have not considered, and probably are not aware, how many questions and how much litigation will necessarily arise from the introduction of a new clause into a long-established and well-understood instrument. Many doubts will occur as to the rights of third parties, as well as of the agent himself, under such a bill of lading: at present no doubt exists. I have been endeavouring to shew that no necessity exists for the alteration, and that no advantage can be gained by it. Indeed, I am much disposed to believe, that the benefit expected from this new Law very much depends upon the persuasion that no such alteration is likely to be made. But let it be recollected, that this measure is not confined to a bill of lading, but extends to every warrant or order for delivery of goods. Now, supposing the bill of lading to denote the factor as agent, it must always depend on his pleasure whether his name or that of his principal shall appear at the wharfs, at the docks, or at the brokers, or in any of the subsequent documents which are enumerated in this bill.

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But the true way, as it strikes me, of considering the principle of the law on this subject, is to examine what authority is to be inferred from the actual possession and custody of merchandise; for surely it is a solecism in reasoning, to infer a greater right and power in the. holder of the mere order or authority to receive the possession, than in the actual possessor. To say that the custody of the various documents, which entitle the holder of them to receive possession of merchandise, shall be conclusive evidence of his right to transfer the property, but that the actual possession of the merchandise itself, which is the result and consequence of these documents, and in effect the very consummation of their object, shall confer no such right, is a manifest absurdity. It seems, therefore, that the necessary consequence of this law is to revive the ancient and only rule of property in the first stages of society; namely, possession. Now, it may be worth while to pause for a moment, for the purpose of inquiring to what extent this ancient rule of property may be carried in our present artificial condition. If the possession of personal chattels is in all cases to enable the possessor to make a binding disposition of them, then it follows, that the renter of a ready-furnished house may make a binding pledge of the furniture to a pawnbroker; that a servant intrusted with his master's goods, jewels, or plate, may sell or pawn them to a broker for his own benefit; that a drover, intrusted with a farmer's cattle or sheep for sale in Smithfield (he is properly a factor), may pay his own debts with them, or raise money upon the pledge of them. Nay, why shall not a coachmaker pledge or sell a carriage sent to him for repair? or a stable-keeper, horses standing with him at livery? or a gentleman, his job-carriage and horses? All these, and a thousand other cases, depend on the principle now proposed to be subverted for the benefit of those who have money to lend. It would be more simple and intelligible to declare at once, that possession is in all cases conclusive evidence of title.
It is said, however, that a bill of lading is a negotiable instrument by the custom of merchants, and that there is no reason why it should not circulate like a bill of exchange, the property in which is always transferred by endorsement for a valuable consideration, It is certainly true, that
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by the general rule a bill of exchange is transferred by endorsement, without reference to the title of the endorser. But this rule is subject to certain exceptions in those cases where the bill is offered or endorsed under such circumstances as ought reasonably to have excited the suspicion of the party accepting it. If in such cases he takes it without inquiry, though he gives the full value for it, the property is not transferred to him. But in fact, there is no just analogy between a bill of exchange and a bill of lading, any more than between the things they represent. A bill of lading is a contract. for the carriage and delivery of goods to the shipper, or his order, or the consignee. It entitles the holder to receive the goods. By the custom of merchants, the power or title to receive the goods may be transferred by endorsement; but the property in the goods cannot be transferred by endorsement, except by the true owner. The indorsee of the bill of lading receives the same title as the endorser had, and no more. The title to receive possession cannot give a better right than the actual possession. A bill of exchange, on the contrary, is the acknowledgment of a debt from the acceptor to the drawer. It represents neither specific goods, nor specific monies, but imports a debt which may be paid in any lawful coin, and which, by the custom of merchants, may be transferred to an endorsee. If that endorsee should be but an agent, he would nevertheless be accountable to his principal only in the character of a debtor, and not for the delivery or safe custody of any specific monies. The receipt of money by an agent for his principal, by the laws of all nations, makes him a debtor to his principal, and he may discharge that debt by paying the same amount in any other lawful coin. The currency of a nation, or that which represents the currency, as a bill of exchange, has been deemed of too fugitive a nature to be placed under the same regulations in all respects as other property. As far as I know, the distinction exists in every civilized country. It is founded upon the very nature of the thing. The loan or deposit of a horse, or other specific chattel, implies a contract to return the same individual article: the loan of a guinea, or of a sum of money, implies no such thing; if it did, what would become of the profits of a banker? The cases of a bill of lading and a bill of exchange

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would be more parallel, if the bill, of exchange were for a particular sealed bag of money; but then it would cease to be a bill of exchange, and become an order for a specific bag of money, not intended to circulate, but to be brought to the true owner in that form.
For the purpose of illustrating further the distinction between bills of lading and bills of exchange, and indeed of expressing my own sentiments on the whole subject in language of higher authority, I appeal once more to my lord Rosslyn. In the same judgment from which I before cited a passage, that learned person says, "Bills of exchange can only be used for one given purpose; namely, to extend credit by a speedy transfer of the debt which one person owes to another, to a third person. Bills of lading may be assigned for as many different purposes as goods may be delivered; they may be endorsed to the true owner of the goods by the freighter, who acts merely as his servant; they may be endorsed to a factor to sell for the owner; they may be endorsed by the seller of the goods to the buyer; they are not drawn in any certain form; they sometimes do, and sometimes do not express on whose account and risk the goods are shipped; they often, especially in time of war, express a false account and risk; they seldom, if ever, bear upon the face of them any indication of the purpose of the endorsement. To such an instrument, so various in its use, it seems impossible to apply the same rules as govern the endorsement of bills of exchange. The silence of all authors treating on commercial law, is a strong argument that no general usage has made them negociable as bills. And unless there was a clear established general usage to place the assignment of a bill of lading upon the same footing as the endorsement of a bill of exchange, that country which should first adopt such a law, would lose its credit with the commercial world; for the immediate consequence would be, to prefer the interest of the resident factors, and their creditors, to the fair claim of the foreign consignor. It would not be much less pernicious to its internal commerce; for every case of this nature is founded in a breach of confidence, always attended with a suspicion of collusion, and leads to a dangerous and false credit at the hazard and expense of the fair trader."
Before I conclude, I would call the at
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tention of the House to the very peculiar situation in which an owner of goods may find himself placed by this law. By the laws of Russia, and of some other countries, the owner of goods actually shipped, who may have transmitted bills of lading duly signed by the master of the ship to his factor in London for sale, has a right, if he hears of the insolvency of the factor, to compel the master of the ship, before she quits her final port of departure, to re-land the goods upon paying a reasonable compensation for the freight, or to sign fresh bills of lading. What would be the surprise of such an owner, if he should afterwards accompany his own property to England, to find, that some rich merchant or banker in possession of the first set of bills of lading, pledged by the insolvent factor, not only claims the goods, but is entitled by the law of England to maintain an action against him, the true owner, to recover against him the possession of his own goods? The predicament will be strange, and, I apprehend, will not be very honourable to the commercial code of our country. At present, notwithstanding the appearances that are exhibited of dissatisfaction with the existing law, it is my firm belief, that one, if not the chief cause of the superiority of British commerce, and of its triumph over all the absurd restrictions introduced partly by the supposed necessity of revenue, but chiefly by the narrow views of commercial men themselves, is the undoubted security which the laws of England afford to property. Her tribunals are resorted to by all nations, who repose with confidence upon the protection of her laws, as much as upon the integrity of her merchants. The effect of any alteration which shall enable a factor fraudulently to apply the property of his principal to pay his own debts, or to increase his own resources, must be, as I conceive, inevitably to excite great distrust. The probable result will be, to throw the foreign consignments into the hands of a few of the most eminent and affluent houses, such as the house of my hon. friend, the member for Taunton, perhaps the greatest now in Europe, whose known affluence and resources place them above the possibility of any breach of trust.
Sir, I beg pardon for having troubled you so long on so very dry and uninteresting a subject. Much more may be urged upon it than I think it convenient

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to urge at this hour, and upon a hopeless object. I shall not take advantage of the state of the House by dividing it upon the question, but content myself with giving it my decided negative.
Mr. Huskissoncombatted the arguments of the hon. and learned gentleman. He entered, at considerable length, into the details of the bearing of the law as it at present stood, and stated the absolute necessity of altering it; a necessity the more pressing, as England, under the warehousing system, was now becoming the dépôt of the merchandize passing between the two worlds; and unless they were prepared to renounce all the advantages of that system. Every security ought to be given to advances made on the goods so warehoused. The consign. ors were, in numberless instances, not the owners, but drew their bills against goods, the property of different individuals who employed them to ship them. if, therefore, any person was to come forward and only have to state his ownership to enable him to invalidate the pledge on which money had been raised to enable the consignee to transact the business to the consignors' advantage, it was evident, that an entire bar must be placed to the raising money on any goods whatever; as no one could ascertain the real owner. The bill certainly did place the bill of lading in the situation in which Exchequer bills stood at present; as negociable securities; but the parties might always make the bill of lading special, if they chose so to do. As to the objection of trusting the clerks of brokers and merchants, it was well known that property to an immense amount was daily trusted to the clerks of bankers, from which no inconvenience resulted.
Mr. J. Smithsaid, that this bill originated with the merchants of London, who were exposed to the greatest frauds. For instance, he would suppose a merchant at Calcutta to ship 50,000 l. worth of indigo to a merchant in London: he at the same time draws bills on him for 48,000 l. which are accepted. The indigo does not belong to the Calcutta merchant, for no indigo grows near Calcutta; it belongs to a grower in Bengal, who sends it to Calcutta. The merchant in Calcutta fails, and the owner then comes and demands his goods from the merchant in London, who had already advanced nearly to the amount of their value. The same took place in the corn-trade.
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A corn-merchant at Boston, in shire, ships a cargo of oats to London property of, perhaps, forty or fifty farmers. The corn-merchant draws bills for the amount on the factor at Mark-lane, which are accepted. The merchant at Boston fails, and the former claim their goods from the factor who had already paid for them. Such was the injustice and fraud which resulted from the present law. The only part of the bill that he was displeased with, was the clause postponing its operation till October 1826.
Mr. Huskissonsaid, the extension of the period was necessary, that all the parties whom it might affect should have notice of it.
Mr. J. P. Grantopposed the bill.
Mr. Baringsupported the bill, both on account of its obvious necessity, and on the custom of merchants. All agreed in the inconvenience which resulted from the present state of the law.
Mr. T. Wilsonsupported the bill, and stated that it originated with the merchants of Liverpool two years ago.
The bill was then read a third time.