Sitting of 1 April 1830

MINUTES.
The Tanjore Commissioners' Bill was read a third time and passed. A message from the Lords announced that their lordships had assented to Catterick Bridge, and Durham Road Bill, and several other Private Bills without Amendment:— On the Motion of the SOLICITOR GENERAL, a Bill for the Relief of Insolvent Debtors

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was read a first time; ordered to be printed, and read a second time on the 27th of April:—Mr. GEOROE MOORE obtained leave to bring in a Bill to extend to Ireland the provisions of 58 Geo. III., for the due Administration of assets:—Mr. DAWSON brought in a Bill for tranferring the Four per Cent Annuities, which was read a first and second time. The Drainage of Bogs (Ireland) Bill read a second time. A Bill to render more effectual the provisions of divers Acts, for securing to certain Artificers, Workmen, and Labourers, the due payment of their Wages in Money, was brought in and read a first time✶ Sir C. WETHERELL gave notice, that if it were proposed to add a Judge to the Court of Chancery, he would move for an inquiry and an examination of witnesses, with a view to ascertain if a necessity did exist for such an appointment.
Returns Presented. By Mr. Secretary PEEL, the Convention of Commerce and Navigation between Great Britain and Austria:—By Mr. G. DAWSON, the correspondence between the Commissioners of Charities, and the Trustees of Morden College.
Returns ordered. On the Motion of Mr. HOME DRUMMOND, of the quantity of Home-made Spirits that paid Duty in England in each of the four years preceding January 5th, 1826, and in each of the four years subsequent to that date:—Of the quantities of Rum which paid Duty during each of the years in the same two periods:—Of the reserved Hereditary Revenues of the Civil Establishment of Scotland in each year, from 10th October, 1821, to 10th October, 1829, with the payments made there out, distinguishing Pensions:—A Copy of a Report made by the Committee of the Trustees for the encouragement of Manufactures of Scotland, to the Trustees during the last six months, containing a Statement of the establishment and Funds of the Board.
Petitions Presented. By Mr. MARSHALL, from the Tallow Chandlers of Leeds, against the Excise Duties on Tallow, from the Inhabitants of Stanningley and Mirfield, against the Renewal of the East India Charter—Referred to the Committee.

ST. GEORGE'S AND ST. GILES'S SELECT VESTRY BILL.
Lord J. Russellbrought up the Report of the Committee on this Bill.
On the Question that the Report be agreed to,
Mr. Hume Mr. Hume moved as an Amendment, that every rate-payer assessed at 15 l. should have a vote. The Bill, as it then stood, made 30 l. the minimum, and contrary to the principles of Mr. Sturges Bourne's Bill, by that regulation more than one half of the inhabitants of the populous Parishes of St. Giles and St. George were actually disfranchised, though they paid a rental of 30,000 l. per annum; and he saw no reason why they should be so. He should like to hear on what principles the noble Lord who brought up the report, and who was an advocate of reform so far as the elective franchise was concerned, could justify the regulation by which so large a number of rate-payers should be deprived of their vote at Parish Vestries?
Mr. Hobhousebegged leave to second
✶ This is Mr. Littleton's Hill, and it WAS suffered to be brought in without the Debate on the subject, which stood adjorned to this day, having been resumed. The Motion for leave to bring it in was assented to without any division. —See ante p. 461
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the Amendment, on the ground advanced by his hon. friend, and because he knew that the Parish would never be pacified till the right of voting at Vestry was extended to the majority of the ratepayers. He had presented a petition from those assessed under 30 l. who would be disfranchised by the present Bill, which was signed by 2,000 inhabitants, and he conceived that they would be very hardly treated unless the Amendment were adopted; the rather, as it was more than probable that the Committee, of which he had the honour of being chairman, would propose a general measure of reform of Select-Vestries.
Sir T. Fremantlecould not agree with the hon. Members, as the measure in all its bearings had been thoroughly discussed in the committee above stairs. He trusted that the House would refuse to alter the rate fixed upon by that committee. In another part of the Bill it was arranged, that where houses were rated under 30 l. the landlord, and not the tenant, should be rated; and he, therefore, thought it objectionable that, in favour of these persons, the rate, as now fixed, should be lowered.
Sir R. Wilsonobjected to the principle of the rate fixed by the Bill, as it was an undue attempt to do away with the franchise of a large body of inhabitants. The Select Vestry Committee was to make a Report that night, and he therefore looked upon the present attempt to pass this peculiar Bill, before the general Report was brought up, as an attempt to take an unfair advantage of the ignorance of the House. He was so opposed to the Bill, that he should propose, in the event of his hon. friend's Amendment not being successful, that the Bill should be read that day six months. The Bill was one of so aristocratic and unjust a nature to the poorer rate-payers, that he trusted the House would not sanction it.
Mr. Wardwould vote for the Bill as it stood, confident that its principles were the most advantageous to the parishes at large. The Bill, at present, was absolutely necessary, because, as the affairs of the parish stood, no rates could be raised to pay the poor, and he believed it to be well calculated also to meet the differences that had so long existed in the parish.
Lord J. Russellsaid, that there had never been an Elective Vestry in these parishes, and therefore the present Bill

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was a great improvement on what existed before. He could not adopt the recommendation of the hon. member for Mont-rose, because the question of disfranchisement was, even according to his Amendment, merely one of degree. It was true, that by making 30 l. the minimum rate of voting, many rate-payers would be deprived of the right of voting; but it was equally true that the same objection would exist if 15 l. were made the minimum. If his own feeling had been consulted, he should perhaps have fixed upon a lower rate than 30 l., though not so low as that proposed by the hon. member for Montrose; but the question had undergone great debate in the Committee, and 30 l. was the rate fixed upon by that body; and as Chairman of the Committee, he looked upon himself as bound by that decision.
The House then divided on the Amendment. For it 23; Against it 57;—Majority in favour of the original Bill 34;
Mr. Hume Mr. Hume moved that the Bill be read a third time that day six months.
Mr. Hobhousebegged leave to suggest to his hon. friend, that as the House would appear to be against the Bill, it might be as well to withdraw his Amendment, and propose another, by which every ratepayer should have but one vote. By the Bill, as it. stood, the payer of 30/. had one vote, he of 60 l. two votes, and so on, to four votes; while, according to Mr. S. Bourne's Bill, no elector should have more than one vote when there was a minimum rate. Such a regulation would in some degree compensate for depriving 1,856 individuals—the number under 30 l. assessed—of their vote.
Mr. Humewould adopt the suggestion of his hon. friend, and would propose that no voter, be his rate what it might, should have more than one vote under the present Bill.
The Gallery was cleared for a division.
During the absence of strangers from the gallery three divisions took place, the first on the question that 30 l. be the sum which gave a vote, carried in the affirmative, Ayes 63; Noes 21; the second, on an Amendment that no Voter should have more than three votes, which passed in the negative; and a third, that, the Bill be re-committed, for which there appeared —38 Ayes, and 86 Noes—Majorityagainst the re-committal 48.
The Bill ordered to be engrossed and read a third time to-morrow.

ELLENBOROUGH DIVORCE BILL.
The House then resolved itself into a Committee of the whole House, to take into further consideration the Ellenborough Divorce Bill—Sir George Clerk in the Chair. The following witnesses were examined, Miss Margaret Steele, Mr. Freshfield, John King, and Thomas Kaims. After the examination of these witnesses was concluded, and it being understood that no further witnesses would be examined,
Mr. Humesaid, he supposed that the Chairman would now report progress, and lay the evidence before the House, in order to have it printed. He presumed that after what had taken place, after such contradictions and inconsistencies as had been extorted from the different witnesses, nobody would think of pressing this matter to an immediate decision. For his own part he was so astounded by the inconsistency of the testimony of the different witnesses, not only with the statements of one another, but also with their own statements, that he knew not at present on what part of it he ought to rest. He could not see how far each witness was to be credited or discredited; and therefore, considering the hurried manner in which the evidence had been elicited from the witnesses, and the indistinct and almost inaudible tones in which several of their answers had been given, he submitted that it would be better that the evidence should be printed, with a view of giving, not only those who were present at the examination of the witnesses, but also those who were absent, an opportunity of judging how far the evidence bore out the allegations in the Bill.
The Chairmansaid, that the usual practice in cases of this kind was, to report the Bill as amended to the House, and to bring up the evidence along with it. When that was done, then it was competent for any hon. Member to move, first that the evidence be laid on the Table, and then that it be printed. If the House should be of opinion that the evidence ought to be printed, they must wait till it was printed before a day could be fixed for the third reading of the Bill.
Sir Henry Hardinge Sir Henry Hardinge moved, that the Bill be reported to the House without amendments.
On the Chairman putting this question,
Mr. Robert Gordonasked whether there was a clause in the Bill making a provision for Lady Ellenborough?
Sir H. Hardingeanswered in the negative.
Dr. Phillimoresaid, that it was not customary to introduce such a clause as that the hon. Member alluded to.
Mr. Humesaid, that if he had made up his mind on the various points which were suggested by the evidence which had arisen in the course of this investigation, he might be inclined to make no objection to this Motion. But he begged leave to remind the Committee, that it was competent for them to strikeout of this Bill the clause giving the relief which the noble individual prayed for. He thought that it was necessary to report progress, in order to get the evidence printed. Any other course would be like stealing a stage in the progress of the Bill.
Sir H. Hardingecame forward to the Table with great warmth, and striking it forcibly, expressed his surprise at hearing any hon. Member talk about stages in a bill of this description. To use any unnecessary delay in passing this Bill, after it had been sifted in so unusual—he might almost say, in so unprecedented—a way, would be hurting the feelings and trifling with the honour of both the noble families who were interested in its progress. He did not mean to blame the course which the examination had taken: he was highly satisfied with the part which the relatives of Lady Ellenborough had taken in the course of it: but still, recollecting the peculiar constitution of that House, its popular construction, and its incompetency to examine witnesses upon oath, he was convinced that it was not proper to let a Bill like the present hang in its progress through it. They ought, therefore, to report this Bill without amendment to the House: and if there was any part of it to which the hon. member for Montrose was inclined to object, he could move to strike it out upon the motion for its third reading.
Mr. Humeassured the Committee that he had no wish to hurt the feelings, or to trifle with the honour, of cither of the noble parties who were interested in the progress of this Bill. He had stated yesterday, that when he entered the House he had not the slightest acquaintance with any of the circumstances connected with the present case. He had no previous intention of taking any part in it. The course which he had pursued he had taken almost involuntarily, in consequence of
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facts which had transpired in the course of the examination of the different witnesses. The gallant officer need not express his surprise at the course which he had felt it to be his duty to pursue, though his manner seemed to indicate that he thought offence was willingly and intentionally given to the noble parties who were then before the House. If the gallant officer entertained such an opinion he was sorry for it; for the gallant officer did not do him justice. Feelings of delicacy, however, upon the matter must not induce the Commons to overlook the great public considerations which were connected with the Bill, now that it was regularly brought before them; and therefore he contended that they ought to see the evidence printed before they proceeded further in their legislation upon it.
The Chancellor of the Exchequerthought that this discussion was quite unnecessary, as the question had been already decided, that the bill should be reported to the House. [Cries of "No."]
The Chairmansaid, that he had put the question, and that he understood it to have been carried; but, as there appeared to be some doubt upon the subject, the best plan which he could follow would be to put the question again. On his doing so,
Mr. Tennysonsaid, that he rose to express his concurrence in the feelings which had been so properly expressed by his hon. friend, the member for Aberdeen. He came into the House yesterday in complete ignorance of the circumstances of this case: but owing to the facts which were then elicited from the various witnesses, he felt it to be his duty to take a part in the investigation. He hoped that he had quite as much delicacy towards the noble parties implicated in this transaction as the gallant officer had; but he could not lose sight of the singular fact, that there had been no investigation into the circumstances of this case in a Court of Common Law, and that it was an unprecedented occurrence that a Divorce Bill should come under their consideration without its resting upon a previous verdict, with damages in favour of the applicant. That occurrence devolved upon the House a most serious and important duty. It bound them to institute a severe and rigorous inquiry into the whole transaction. He did not mean to blame Lord Ellenborough for not instituting such an inquiry, it was

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perhaps out of his power to do so; but it was not out of the power of the House, and being within its power, it ought to be instituted. He had felt it necessary to say this much in defence of his own conduct, for if his hon. friend the member for Aberdeen was to blame in this transaction, so too was he.
The Chancellor of the Exchequerwas sure that nothing was farther from the intention of his right hon. and gallant friend than to impute improper motives to any of the hon. Members who had taken part in this investigation. He was quite willing to admit that, as there was no opposing party to this Bill, it became a duty incumbent upon the House to see that there were the ordinary circumstances deemed necessary to justify a legislative measure of this description. The hon. Gentleman opposite had told them that it was unprecedented to introduce a Bill of this nature into the House unsupported by the verdict of a jury. He believed that the rule in these cases was, that the record of such a verdict should be produced, or that good reason should be shown why it was not. Last year there was a case of precisely the same sort with the present, and that arose from the party against whom the action for damages should have been brought having left England, as in this case, before it was possible to serve him with the necessary process. No one appeared upon that occasion to show cause against the Bill, and it passed accordingly. With respect to the Bill before them, he knew no more of the transaction than hon. Members opposite till he came into the House yesterday. He had interposed upon this occasion, because he was quite certain that his right hon. friend had no wish to cast any imputations upon others.
Sir H. Hardingeobserved, that in what he had said when he last addressed the Committee, he had no intention to cast any imputation upon hon. Members. He had cast no imputation upon the mode of examination, though it was unusual; indeed he should have been glad if it had been carried further; for the further it was carried, the more honourable would the conduct of Lord Ellenborough appear. He had only complained that the hon. member for Aberdeen had proposed a delay, which in his opinion was quite unnecessary.
Sir C. Wetherellcommenced his obser-
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vations by stating, that his right hon. friend (the Chancellor of the Exchequer) was quite correct in stating that this Bill was not the first Divorce Bill which had been introduced into Parliament without resting on the basis of the verdict of the jury. It certainly was not the first case,—it might be the second: if it was not the second, it was, beyond all question, not further down in the list than the third. Letting that point pass, he wished to call the attention of the House to the particular obligation which had devolved upon it, in consequence of its not having the antecedent verdict of a jury in the present instance. In all other cases they had two preliminary measures on which they founded their legislation. The sentence of divorce in the Ecclesiastical courts was the first preliminary; and a verdict in one of the courts of Common Law, awarding damages to the husband, was the second. Now it was obvious, that if one of the delinquent parties—the adulterer, for instance—was out of the kingdom at the time of the first discovery of the adultery, and remained out afterwards, that this second preliminary could not be obtained. One could easily suppose a case in which a delinquent had left England in order to prevent a husband from recovering a verdict against him. One could also suppose a case, in which the delinquent had been induced to leave England in order to prevent any of those disclosures of the husband's conduct from being made, which must come out in case he sought to recover damages in any of our Common Law courts. He did not mean to say that any thing like this had occurred in this particular instance; but still he could not forget that the House laboured in it under this disadvantage—that the Bill having come down to it from the other House without those sufficient guarantees required for the preservation of public morality and justice, it was imperatively called upon to go through that searching inquiry which in ordinary cases was rendered unnecessary by the existence of those important guarantees which he had already named. The scrutiny into the conduct of the husband, as well as into the conduct of the wife, which always took place before a jury on the trial of the action for damages,—that scrutiny, which let in the whole question of collusion, connivance, negligence, and misconduct on the part of the husband,— had not been bad in the present case. The

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Bill, therefore, was not accompanied by the ordinary guarantee which the House received as the basis of its legislation on subjects like the present. He was sure that the right hon. and gallant officer, who had seemed to throw blame upon those who bad taken an active part in this critical inquiry [Cries of "No, no; that has been explained."]
Sir H. Hardingesaid, he had already disclaimed any such intention.
Sir C. Wetherell: Well, as the gallant officer had been misunderstood, he would not press his observations on that point any further. The gallant officer had said that this inquiry was uncommon, but he seemed to have forgotten that the circumstances which had given rise to it were also uncommon, and that it was precisely on account of the peculiarity of those circumstances that it was necessary to make it. He believed that every Gentleman who then heard him would agree with him, that to add one moment's pain unnecessarily to either of the noble parties to this Bill, was a course which would give quite as much pain to the hon. Member who made such addition, as to the noble parties themselves, and would meet with the severest reprobation and contempt from the House itself. He could not, however, refrain from stating, that though this case came before them labouring under a defect under which no case could labour which came to them based upon the verdict of a jury, it was even now, at the conclusion of the examination of the witnesses, left so naked with respect to the conduct of the husband, as to render it the duty of every member of Parliament to make himself a juror to try that question which, in ordinary cases, was decided by a jury for him. "We are here, Sir," continued Sir C. Wetherell, "as a jury empannelled to try all the circumstances of this case. That is clearly the path of our duty, and I trust that we should not shrink from pursuing it. Participating, as I do most fully, in all the delicacy of feeling for which the right hon. and gallant officer takes to himself so much credit, I must still be permitted to protest against pursuing the course which he has chalked out for us. I beg most particularly to point out to the House that it is its clear, its paramount, its absolute and undeniable duty, to investigate this case fully, freely, fairly and impartially. I am glad that the inquiry has been pushed as far as it has
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been in this House; and as I may not have an opportunity of expressing my opinion upon this Bill at a future stage of it, I will take this opportunity of stating, that of the connexion between Lady Ellenborough and Prince Schwartzenberg, I entertain no doubt whatever. With the same freedom of judgment with which I have already expressed myself on other points of this case, I must now express my regret that more extensive and more explicit evidence has not been given of the nature of the relation existing between Lord and Lady Ellenborough previously to her delinquency. I do lament—I repeat it with pain—but I do lament excessively, that fuller and clearer evidence has not been adduced upon that point at our Bar, than that which has been extracted from these witnesses. On the subject of divorce, I beg leave to add, that every man has a right, where an act of adultery is proved against his wife, to obtain a sentence of divorce in the Ecclesiastical courts; not so, however, with respect to a parliamentary divorce. That rests not on the mere proof of an act of adultery: other, and scarcely less important matters, are required to be satisfactorily proved by the individual who applies for it; and one most indispensable ingredient is, the total absence of all neglect, misconduct, connivance, or collusion on the part of the husband, who complains of his wife's adultery. By the Ecclesiastical Law, as laid down by some writers, and by the divine law, as explained by all, adultery does not, of itself, give to the husband the right to marry again; and scarcely more than a hundred years have elapsed since it was first established in this country that a man may, after the commission of adultery by his wife, marry again. All writers on the subject agree, that of itself adultery docs not give any right to parliamentary divorce. To his proof of his wife's adultery, the applicant must add the further proof, that he has not by any act of commission or omission been so far a delinquent as to deserve to forfeit that been (for it is nothing but a boon), and that parliamentary indulgence (for it is nothing but an indulgence from Parliament) which he asks, when he sues for a bill 'to dissolve his marriage with his now wife, and to enable him to marry again.' In all Divorce bills, the question of the good conduct of the husband is as important a consideration as the question of the misconduct of the wife,

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Under these circumstances, I hope that I shall not be considered as having protracted this discussion longer than was necessary, in stating my sentiments frankly to the Committee. I have stated my opinion that the act of adultery in this case is fully proved; and I have only now to express my regret once more, that fuller evidence has not been given to us of the nature of the connexion in which these noble individuals lived together previously to the commission of the offence which forms the ground-work of the present Bill.
Lord Nugentthought, that as the case was now closed in evidence, every Gentleman who had listened to that evidence would feel that he owed it no. less to his own feelings, than to the honour of the parties implicated, to take the earliest opportunity of stating his opinion as to its effects. He did not regret that the Committee had entered into this investigation; for though he had come into the House in total ignorance of the evidence which was to be laid before it, he now felt himself called upon to declare, that it had left upon his mind, as far as that evidence went, the most satisfactory conviction that not even the shadow of a charge of collusion or misconduct was imputable to Lord Ellenborough. As far, therefore, as his opinion was concerned, he was prepared to give to his Lordship the relief which he now sought, and he trusted that that relief would be given with as little delay as possible.
Mr. Humeprotested against being called upon at this period to give any opinion on the last point mentioned by the noble Lord who preceded him. Hearing the evidence as rapidly and as indistinctly as every Member of the House must have heard it, he confessed his inability to give any opinion upon it at that moment. He must read it over before he could pretend to be roaster of its voluminous and contradictory character.
The Bill, with the evidence taken before the Committee, was ordered to be Reported.
The Speakerhaving resumed the Chair,
Sir G. Clerkbrought up the Report, and laid the evidence on the Table of the House.
Mr. Humethen moved, that the evidence taken before the Committee on Lord Ellenborough's Divorce Bill should be printed. He was not aware that any objection could be taken to this proposition,
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especially as a great part of the evidence had been taken in a very thin House, when there were not forty Members present. As the case would have to be submitted to the House at large, the evidence ought to be made known to every Member. That could only be done by printing it; and he could not imagine that any rational objection could be urged to so reasonable a proposition.
Mr. Warburtonseconded the Motion. He could have wished to have been spared the pain of this investigation; but as it had been commenced, it was necessary, for the sake of public morality, to proceed with it, and to have the evidence printed. He had been in the House last night, and had witnessed the singular series of contradictions which the witnesses for the Bill had given to each other's testimony; and he therefore was of opinion, that unless the question was to be decided by the twenty Members who heard the evidence of last night, and by those twenty Members only, it was indispensable to print the evidence which had been taken by the Committee.
Sir Henry Hardingesaid, that in his opinion this was a case which addressed itself particularly to the feelings of the House. As to the point of form, this Motion was clearly in contravention of it: yet if it should be the feeling of the House that the evidence ought to be printed, he would not object to it, even though the delay of printing it would add three or four days of suspense and anguish to the families of the noble Lord and Lady whose interests the Bill affected. He saw no necessity for printing the evidence, but he would not oppose the Motion.
Mr. R. Grantdeclared it as his opinion, that in a case of this peculiar importance to the moral welfare of the community, (he House would scarcely perform its duty if it did not order the evidence to be printed. Deprecating the idea of adding the slightest degree of torture and suspense to any party, he must say that not only the most ample and cautious deliberation, but also the appearance of it, was due to themselves, to public morality, to public justice, to the gravity of their proceedings, and to the feelings of the parties concerned and their immediate relations. The want of a verdict in a jury court gave the case a peculiarity which called for more than ordinary circumspection and deliberation.
The Chancellor of the Exchequersaid,

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that he did not rise to oppose the general feeling of the House, if the general feeling should be in favour of printing this evidence. He merely rose to state his own private opinion on the Motion. He could not concur with those who thought, that when the House heard witnesses at its Bar stating evidence to it, it could come to a juster conclusion by having that evidence printed. The best judgment, in his opinion, would be formed by those parties who had heard the evidence given, and seen the demeanour of those who gave it — parties who, if they had attended to it, were as capable of forming an opinion upon it at present as they would be after they had read it. That was his own individual feeling on the subject, and, what was more important, it was in strict conformity with the rule observed towards jurors in courts of law. As far as he was individually concerned, he saw no reason for printing this evidence.
Mr. Tennysonsaid, that the right hon. Gentleman would be correct in his opinion, if only those who heard the evidence were to vote upon the Bill; but twenty Members alone were present when the evidence was given, and he need not say that a great many more would decide the question. The evidence ought to be printed. Divorce was a remedy out of the reach of the lower classes, and naturally regarded on this account with jealousy by the great body of the people. It ought to be recollected, too, that Lord Ellenborough was a member of that other House whose decision was the only suggestion to precede their judgment. He hoped, therefore, that the right hon. Gentleman would not oppose the printing of the evidence, without which it would be unbecoming in them to give a vote upon the question.
Sir Henry Hardingedeclared, in explanation, that his only wish was, to prevent unnecessary exposure, and that more for the sake of the unfortunate lady, whom he had formerly known well, than from any consideration in the remotest degree connected with his Lordship, that he had raised his voice upon the occasion; but if it were the general sense and feeling of the House that this evidence should be printed, he certainly would not oppose it.
Mr. Nicolson Calvertdeclared himself quite satisfied with the evidence, and stated that the sooner the affair was concluded the better it would be for all parties.
Mr. Lennardsaid, his mind was made
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up as to the fact of her Ladyship having uniformly received kind treatment from Lord Ellenborough. This was proved by four witnesses—by the brother of his Lordship, by the butler, another servant, and the early friend of Lady Ellenborough, and he did not think it could be established by other or better evidence in a Court of Justice. He was satisfied respecting the criminality of Lady E., and consequently did not deem it necessary to print the evidence; but if such was the general feeling of the House, he had no objection.
Mr. Harrison Batleydid not think it would be right for the House to give their decision without having the evidence printed.
Mr. Home Drummondobserved, that the House was acting judicially, and thought that in deference to the opinions of many Members, and the dignity of their proceedings, they ought to make these proceedings as judicial as possible. He had no doubt upon the case; but he wished to have the evidence printed.
Sir G. Clerksaid, his right hon. friend and he had no objection to the evidence being printed. He could state most broadly, that no friend of Lord Ellenborough's could do otherwise, as far as he was concerned, than wish for a publication of the entire transaction.
Sir H. Hardingehad expressed himself most infelicitously if he had given the House to understand that in consideration of his Lordship's interests or feelings he had any objection to having the evidence printed.
An Hon. Member declared himself satisfied of her Ladyship's guilt; but regretted that no provision was made for her. He suggested the introduction of a clause which should prevent her from being in the condition of a pauper.
Sir G. Clerksaid, that such a clause was never introduced into such Bills.
Sir H. Hardinge, as one of the Cotrustees to Lord Ellenborough's marriage settlement, said, that such a provision had been made as had received the approbation of the lady's family.
Evidence to be printed.

TRIAL BY JURY IN SCOTLAND.
he Lord Advocatesaid, the subject which it was his duty to introduce to the consideration of the House was one of the utmost importance, It affected the general ad-

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ministration of justice in a large portion of the United Kingdom, and he hoped consequently that it would not be deemed unworthy of their notice. The object of the Bill which, with the permission of the House he meant then to bring forward, had been, at an early period of the Session, explained, so far as regarded its principles and bearing, by his right hon. friend, the Secretary of State, who declared the intention upon the part of the Government to propose those changes which it embraced, and which were destined for the improvement of the administration of justice in Scotland. He regretted that he had been prevented by circumstances from introducing this measure until the present advanced period, though the House must be aware that the delay was no fault of his. Having said this, he would now observe, that the statement of his right hon. friend was general, and consequently, that it devolved on him to detail more minutely the objects and principles of the. Bill, that they might be better understood by the House and the country. In doing this, however, he would not fatigue the House by touching upon unnecessary points. He would briefly address himself to the principles of the Bill, and these were twofold; the first and chief was the improvement in the administration of justice in Scotland, which was essentially and continually kept in view; and the other was the effecting of a considerable saving in the public expenditure. These were the two ruling principles of the measure; and if it should further appear that in carrying them into effect there would be a great sacrifice of patronage, he trusted it would not render them less acceptable to the House. The first and most important part of the measure was to give to Scotland the form of Trial by Jury in civil process, by uniting it with the proceeding in the Court of Session. Some Members might not be, perhaps, aware that it was not yet fifteen years since Trial by Jury was introduced into Scotland. Previous to that period the practice was, before trial, when any difference as to a point of fact was involved, to appoint a commission to examine witnesses, and take down their depositions in writing, without any means of examining into the relative situation or motives of the witnesses, and without any limitation in respect of the nature of the evidence which was to be taken. Now, the peculiar
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inconveniences of this system were very great, particularly in Appeal cases brought before the House of Lords, which being overwhelmed with the mass of papers laid before it, had the best opportunity of observing the evils it induced, and were consequently most anxious to provide some remedy. Accordingly, in 1815, an Act was passed to remedy this by substituting parole evidence and Trial by Jury for the old plan of examining witnesses by a commission. That Act first gave Trial by Jury to Scotland in civil causes. In doing so, however, they found it necessary to proceed with extreme caution, for the people were wedded to old forms; and therefore it was only brought forward in a separate court, at the head of which was placed an individual of great general knowledge, who was well acquainted with the process of Trial by Jury in England, and who was also known to unite to the highest good feeling towards Scotland a great knowledge of its laws. The jurisdiction of his court was for four years confined to special issues, sent to it as a Jury Court from the Courts of Law. But it having been afterwards found that Scotland was not so averse from this form of trial as had been at first imagined, a new Act was passed in 1819, which permitted not merely issues, or points in particular causes, but the whole cause to be sent from the Court of Session before the Jury Court. Thus did Trial by Jury go on from year to year till it became acceptable to all classes of Scotsmen. And he wished it specially to be remarked that, during this whole period, it was intended, upon the part of Government, that Trial by Jury should be united with the proceedings of the ordinary courts. This appeared in all the Reports, and in all the Acts of Parliament; and even so late as 1825 an Act had passed, which extended the powers of the Jury Court in a variety of ways, and bringing under: its jurisdiction a much greater number of causes cognizable by that mode of trial alone than before. By that Act also it was determined, in order that the union of the Jury Court with the Court of Session might take place on the 30th of June, 1830, that the New Court should exist only to that time. A commission having been appointed to inquire at what time the union might be made, and in what manner it might be best effected, reported, in 1827, that it might be made at any time after June 30th, 1830, and

1141
that union it was now his intention to propose. He could lake upon himself to say, that the people of Scotland were now perfectly reconciled to it, and the only difficulty in its way was the very existence of that separate court which had been created as an experiment of the system of Trial by Jury; and which, in consequence of the number of causes referred to it from other courts, was attended with considerable delay and expense. He was convinced, that when the powers of Trial by Jury were extended, all these objections would disappear. He did not calculate on opposition from any hon. Member present—the benefits of the system were so obvious, and so dearly prized by those who had the happiness to enjoy them. He was prepared to say a great deal on the subject, but it would be a mere waste of words, because he was sure the House was already disposed to go with him, and because he could state that it was the general desire of Scotland that the change should take place. This he declared was in accordance with the feeling expressed by the Scottish bar, and by the people of the country. And if there were one opinion whereby the House ought to be influenced more than by any other, it was that of the chief of the jury Court, who, for a period of fifteen years, by his great talents, impartiality, temper, and accommodating spirit, had laid the prejudices of the country under his feet, and had bestowed such a been on her, that Scotland, he was well convinced, would continue to honour his memory to the latest times. For himself, there was nothing he was not disposed to say in his praise—nothing which he would not amply deserve. And when it was stated that this gentleman had declared in evidence that the Trial by Jury might be taken from his hands, and out of his court, and made comparatively general, he conceived that he had laid before the House a most powerful reason for according with his proposition. He would now detail the general provisions of the Bill. The first was, that it should come into operation on the 5th of October, which might be considered as the close of their year, the Circuits being over, and the proceedings for another year not commenced. The second point was, to send all causes now triable in the Jury Court before the Court of Session, but to try them there after the same fashion; namely, by a Jury. No choice was to be admitted
1142
in this case, and means were to be taken to increase, instead of diminishing, the number of causes in which Jury Trial might be had of the Court of Session. Next, it was proposed to confine the trial of issues to the presidents of the first and second division, who alone were to preside in all such trials, because they were men of the highest talent, well read in the law, and intimately acquainted with practice. Besides, advantage was to be taken of the services of the Chief Commissioner, the Judge who now presided in the Jury Court. His days were unfortunately drawing to a close in the ordinary course of nature; he was now fourscore; but while he lived, no trial of issues would take place, unless he (the Chief Commissioner) or one of the two Presidents, was on the Bench. This was to last for a period of three years subsequent to the appointed time, and on these terms he believed the union would be more satisfactorily accomplished than it could be upon any other. It was the Lord President of the Court of Session who had suggested this to him; and he was certain of success in the prosecution of the general measure, from the good feeling which existed between the two Courts. Next, he proposed by the Bill to abolish all the separate Clerkships of the Jury Court, and attach the Clerks to the Court of Session. These alterations would undoubtedly be useful to the country, and occasion a great saving of expense. Further, he intended that the Court of Admiralty, as it was then constituted, should cease to exist. Scotland had, in days of yore, like England, her Lord High Admiral, who administered justice, and presided in this Court. At the time of the Union between the countries, however, this Court was, by a special clause, placed under the English Court of Admiralty, and it was thus declared that "the Court of Admiralty of Scotland is to remain in the same manner after the Union as now, until the Parliament of Great Britain shall make such regulations and alterations as shall be judged expedient for the whole United Kingdom, so as there be always continued in Scotland a Court of Admiralty, such as that in England, for determination of all maritime eases relating to private rights in Scotland, competent to the jurisdiction of the Admiralty Court, subject nevertheless to such regulations and alterations as shall be thought proper to be made by the Parliament of Great Britain,"

1143
Matters remained in this state until the present time. The Vice-admiral of Scotland had appointed his Deputy, but in 1784 he was appointed for life by the Crown, and the Court had a jurisdiction in mercantile as well as criminal cases. The judgments of this Court of Admiralty, however, were liable to the revision of the Courts of Common Law. Thus, it appeared it was an inferior Court, for other Courts had a concurrent jurisdiction, as well in the trial of crimes and misdemeanours committed on the high seas as in mercantile cases. It could not, therefore, be advocated as useful. It was not a superior Court, nor had it the advantages of a local Court in cheapness or convenience, because all men, even from the remotest parts of Scotland, must come to Edinburgh, if concerned in proceedings of that Court respecting a matter from 30s. to 5l. It was, therefore, the intention of Government to do away with this Court altogether. There were some cases in which the sum in dispute was under 25 l. where the parties went before the Sheriff, who judged them as in ordinary cases; but when the sum in dispute exceeded 25 l. it went before the Judges of the Court of Session. He thought that what he was now about to propose was an obvious improvement upon the present system of the administration of justice in Scotland; and that among its other advantages it would save both delay and trouble to the suitor. He thought it right to mention in this place that what he proposed was not such an alteration as would be a violation of any article of the Union: by some persons it was imagined to be so; but he had read the article of Union relating to this subject, and he was entirely of a different opinion. That article stated, "that the Court of Session, or College of Justice, do after the Union, and notwithstanding thereof, remain in all time coming within Scotland;" and it made the same provision with respect to the Court of Justiciary and the Admiralty Jurisdiction, and then further provided "that no causes in Scotland be cognoscible by the Court of Chancery, Queen's Bench, Common Pleas, or any other Court in Westminster Hall; and that none of these Courts should have the power to alter or review the judgments of the Courts of Scotland." It was clear, therefore, that the object of the Legislatures of the two countries was, that parties should not be obliged to come to
1144
England to obtain justice. In that respect he should not violate the articles of the Union, for what he was prepared to do was, to give to the people a more useful Court than that which they now enjoyed. On these grounds he proposed to do away entirely with the Court of Admiralty, and to substitute the jurisdiction of the Courts of Common Law, the Sheriff's Court, and the Court of Session for it. The next point in which he intended to introduce any alteration was, in what might be called the Consistorial Court of Scotland. That Court was originally an Ecclesiastical Court; it afterwards exercised a jurisdiction not strictly Ecclesiastical, but it resembled that species of tribunal more than any other. It was not, however, confined to cases that properly came within an Ecclesiastical jurisdiction, as in England, but decided on other causes, and was subject to have its decisions reviewed by the Court of Session. In making these appeals, the course had been, after obtaining the judgment of this Court, to go to what is called the Outer Court, and then again to the Inner House, so that, in fact, the case was decided on three times before it was finally settled. The jurisdiction which this Court possessed was of a two-fold nature. In the first place, it had the power of granting administrations of wills, or grants and confirmations, as they were called in Scotland—by which executors were named, and received their authority to carry into effect the directions of the deceased. These proceedings, of course, took place during all limes of the year. That part of its jurisdiction which related to grants and confirmations would not be altered; it was well enough in its operation as it stood at present: but there were other parts of its jurisdiction which required revision. The Court of Commissaries, or Consistorial Court as he might call it, gave judgment in a most important class of cases. It decided in all cases upon questions relating to the civil condition of individuals, on questions relating to legitimacy or illegitimacy; and in that Court alone could suits brought to determine such questions be instituted. It decided, too, upon questions relating to the validity of marriages, it declared whether they were good or bad, valid or null; and it possessed the power, not only of awarding a decree of divorce a mensa et thoro, but of issuing a decree of actual divorce—a power, which in this

1145
country (as the proceedings of that night had furnished an example) required all the authority of Parliament. The decision of the Court of Commissaries of Scotland was subject to the review of the higher tribunals; and it was now meant to refer the jurisdiction of all the classes of cases he had mentioned from that Court to the Court of Session. That was the measure which he now proposed to carry into execution. He contended that that proposition was in no way unconstitutional, but on every ground highly expedient. He admitted that this Court did not stand on exactly the same ground with the other; but in all an appeal lay to the Court of Session. He proposed to place the decision of all these cases in the hands of the Judges of the Court of Session. That the Court of Session was originally intended to possess that power was clear from the Act of Parliament passed in Scotland relative to this subject. In the Act of Parliament made in Scotland for the purpose of defining the jurisdiction of this Court, it was said, that if the Commissaries did not do their duty in the matters brought before them, the Lords of Session should have the power to determine the same, and that because the Lords of Session were his Majesty's great Consistory for cases of this description, and possessed the highest jurisdiction to hear and determine the same. Such was the language of the Scotch Act of Parliament, and in his opinion it showed most clearly, that, according to the original intention of the Legislature, these powers were to be exercised by the Court of Session. Considering the great importance of the class of cases he had referred to, he trusted that the House would see at once that their decision should be confided to the hands of those most fit to determine them. He saw the necessity of this alteration the more particularly, as in the present state of opinion in this country relative to questions of marriage and legitimacy, he was convinced that if some change did not take place, and a steady principle were not adopted in the decision of these cases, there would be, some day or other, a remedy applied very different from that which he proposed to adopt. Though he had not the slightest wish to do any injustice to the individuals who composed that Court, and though he was most anxious to say that they discharged their duty with the utmost possible attention, he was yet
1146
convinced (and it was no fault of theirs) that many actions of collusion took place in the Court. He would refer to a return, which would go some way to justify him in this assertion. During the last two years, forty-eight claims for divorce were entered, and in only nine of these cases was appearance entered for the defenders, so that in thirty-nine cases of divorce, they were carried on entirely at the instance of only one of the parties; and when, besides this, it was recollected that divorces were granted for more than one cause in Scotland, that they were granted not only for adultery but for what was called non-adherence; that is, that if a man and his wife did not live together for four years, that would be a ground for obtaining a divorce; he said, when the House recollected all this, they would see in how many cases of divorce it was likely that collusive actions would arise. By coming to the Court of Session, he thought a check would be imposed upon the practice. From the publicity that would then be necessary, and from the mode in which the cases would be treated, in all probability the parties who now brought these collusive actions would abstain from them in future, and that a number of these cases would never appear; or, if they did appear, the verdict would be founded upon examinations more strict than hitherto. He repeated that, in making these observations, he meant to throw no imputation upon the learned individuals who now composed that Court, for the evil was beyond their power of preventing. The only exception that was even hinted to the plan he had now proposed was, that it would be cruel in its operation upon the poorer classes, for that they could not, but at a great expense, obtain a divorce, if these alterations were effected. He did not think that this objection was valid, for even if it were true that great expense would be necessary in order to obtain a divorce, he was not sure but that, in such actions as these, increased expense would operate beneficially rather than otherwise. But he thought that the merits of the measure could not be disputed on these grounds; for it must be granted to him, that in cases of appeal from the Consistory Court to the Court of Session, the expense must be greater than it could be if the suit were commenced in the Court of Session. From a return which had been communicated to him by a gentleman well acquainted with the

1147
subject, he believed that the expense would be found to amount, under the operation of the measure he now proposed, to a sum of 53 l. 19 s., at present it was upwards of 20 l., and he thought, that if a decree for a divorce could be obtained at such an expense, there could be little objection, on that score, to his plan. The other point that required attention, as to the measure he now proposed, was as to the mode of proof to be adopted in these cases. It would be a question whether it would be right to remit these cases to the decision of a Jury Trial? He did not mean to exclude that mode of trial altogether, but he thought it would be expedient to leave the Court to judge what were the cases in which it was fitting that the decision should be by that mode of inquiry. With this view, he should propose to reserve one of the Commissaries out of the four now appointed, in order that he might examine the nature of the proofs submitted, and then remit them to the Court of Session. Such was the plan he now proposed for the adoption of the House—a plan by which the Court of Commissaries would not be entirely done away, but three out of four of their number might be dispensed with. He begged to apologise to the House for the length of detail into which he had gone, but he had felt bound to do so, as the subject was one of great interest in that part of the country to which he belonged. Having thus proposed to give the Court of Session a great additional duty connected with the Jury Trial, and with the decision of cases now determined in the Admiralty Court, or in the Commissaries Court, he should proceed to state an alteration of another kind which he also proposed to effect. Notwithstanding all these additional duties, he was prepared to propose a reduction of two of the Judges of the Court of Session. He was under the necessity here of explaining the reasons why two of these Judges could be reduced, and why only two were to be reduced. The House might probably not require a reason for the last of these propositions; but as in Scotland there was a feeling, and a strong feeling, that this ancient Court ought not to consist of a less number of persons than had hitherto composed it, the explanation was strictly necessary. The Court of Session owed its origin to the Privy Council of Scotland. James 5th, in the year 1537, constituted fifteen persons Judges of the
1148
Court of Session; the Lord Chancellor was a member of the Court, and the Judges were to have the power of adding four of the great men of his household to their number. At the time of the Union the Court did consist of all these persons—of the Lord Chancellor, the Lord President, and fourteen Judges, together with the four additional Judges of whom he had already spoken. At that time they sat at what would now be considered an extraordinary hour—they sat at eight o'clock in the morning and rose at eleven. The objection made to that part of his plan which he was now discussing was the same he had before adverted to—namely, that it was contrary to the Articles of Union. Now, on referring to the Articles of Union, he found that the Courts then in existence were to remain in Scotland, "with the same authority and privileges as before the Union, subject, nevertheless, to such regulations for the better administration of justice as shall be made by the Parliament of Great Britain." Under that power, it was quite clear that the Government was fully warranted in reducing the number of Judges as Parliament might think fit. The terms of the Article were, that the Courts should remain as they were then constituted; but it was clear that that did not refer to the number of the Judges; and the power of Parliament to making any alteration in that respect at least, was proved by what had happened within a few years after the Union. In the year 1723 an Act was passed for the purpose of declaring that whenever the places of the four Extraordinary Lords of Session, or any one or more of them, should become vacant, no presentation or nomination to fill up the vacancy or vacancies should be made by his Majesty. That enactment showed what was the sense of Parliament as to their competency to make a reduction in the number of the Judges of the Court. Other changes had occurred since. The one Court had been divided into two Courts, at first consisting of five Judges each, and now of four; the remaining Judges being employed upon a totally different duty. He regretted that he was obliged to go into these details, which were very tiresome he was afraid; but it was necessary for the due understanding of the case. All trials were first held before one of the Judges of the Court of Session-; and if the case was terminated there to the satisfaction of the parties, there was an

1149
end of the matter; if not, there was an appeal to the other Judges of the Court. In 1813 an Act of Parliament was passed for separating the Court into two divisions of five Judges each, and appointing the remaining five Judges permanent Lords Ordinary. It so continued down to 1825; but at that lime the number of permanent Lords Ordinary was increased from five to seven. It had appeared since, that that addition was totally unnecessary, and the object of the measure now proposed was, to reduce the number to what it had been before. It was clear that they might be spared; for it appeared from a return which he held in his hand, that the same quantity of business had been performed by five as was now performed by seven. Indeed, not only the same, but a greater quantity of business had been performed by the lesser number. He would read a return, from which it appeared that on the average of the ten years previous to the year 1828, the number of new causes entered amounted to 2,308, while the average number of new causes entered within the last ten years amounted only to 1,564. So that more business had been, in fact, done by five Judges than by seven, and he apprehended that two of the number might well be saved to the country. In that opinion he was confirmed by Judges who had done much of the duty that fell to the lot of Lords of Session, Under these circumstances it was, that he proposed this reduction. But there was another reason why the number should be reduced; and that was, the difficulty that would be found in obtaining the attendance of the Bar. That difficulty had, indeed, been already felt. Each of these seven individuals might hold a separate Court; and with one Bar, the greatest confusion must then prevail in obtaining the proper attendance of Counsel. To remedy that inconvenience these Lords Ordinary only sat two days in the week. But there was another evil connected with this part of the system, and that was, the difficulty of filling up the places of these Judges. Great and powerful as were the talents of the Bar of Scotland, it certainly would not be found sufficient to supply the present number of Judges, at least upon the principle on which they were now selected. The time was, when Judges were chosen for a different reason from that of the possession of legal talent and knowledge, when country gentlemen, on account of their fortune, were
1150
appointed to fill the Judicial situations of the country, and when only a few eminent lawyers were put upon the Bench; but since his right hon. friend had had the management of that department no such thing had occurred; and he repeated, that in the present mode of appointing the Judges, the Bar of Scotland would not afford the necessary number, without at least leaving that Bar in such a state that it ought not to be left, for there ought always to be men of such experience and learning as were qualified to advocate the causes of the lieges with due effect. No more, however, than two Judges could be spared. There were now two divisions of the Court, consisting of four members each, and they would not admit of further reduction. Four had been the number of the Judges in the English Courts, and when the experiment was tried in Scotland it was found to answer there. Any further reduction, therefore, must be made out of the remaining five. Now of these one was appointed to determine on applications to stay the service of writs, a duty which required the immediate operation of judicial authority. Those matters which were heard in the Courts of Equity here, were in Scotland determined by one of the Lords Ordinary; such as interdicts, injunctions, and other questions immediately affecting the personal liberty and rights of the subject. Two of the Lords Ordinary attended each division of the Court. No more, therefore, than two of these Judges could be reduced, unless there was a total alteration in the formation of the Courts of Scotland, an alteration which that House certainly would not think of attempting in a country where the people were so well satisfied with the administration of justice, and where the question had been so fully discussed as this had been, by a Commission, composed of the Chief Justice of the Common Pleas, of the Chief Baron of the Exchequer, of Mr. Justice Littledale, of Mr. Courtenay, Sir Samuel Shepherd, and Mr. Adam; by whom no such alteration had been deemed necessary. As he proposed to impose new duties upon the Lords of Session, so he should find it necessary to lengthen the period of their Session. He therefore submitted that one month ought to be added to their time of sitting. They now sat six months, with the exception of a small vacation at Christmas; of which, however, they had almost been deprived by the time now occupied in Civil and

1151
Criminal Trials before a Jury. It must not be forgotten that the same Judges sat to decide upon both civil and criminal matters; and he regretted to be obliged to state that their business, in the latter department, had much increased of late years. There were returns on the Table which showed the amount of this increase. In the three years preceding 1810 the average number of criminal trials in the High Court of Justiciary at Edinburgh amounted to fourteen; on the Circuits the number was ninety-one, making a total of 105; while the average of the last three years showed that the criminal trials in the High Court at Edinburgh amounted to ninety-three, and on the Circuits they reached as high as 227, making a total of 320. When there were so many criminal trials, the House would perceive that a considerable portion of the time of the Judges must be devoted to this purpose, for the trials of criminals in Scotland were conducted in a different manner from the same trials in this country. Not only were Counsel allowed to the prisoner, but as it was a fixed principle in the Scotch law that more than one witness was necessary to prove a criminal charge, a considerable space of time was often employed when only one witness could be procured to swear to the direct charge, in order to examine others as to the circumstances which would be sufficient to make up for the want of the other witness. He should not go too far if he asserted that in addition to the six months occupied by trials in the Court of Session, one fortnight was devoted to each sitting on civil trials. Four weeks were employed in civil, two weeks in criminal cases, and the Circuit occupied six weeks, making a total of three months; and if to these was added the month of lengthened Session proposed by his Bill, the House would see that out of the year the Judges were only allowed two months' leisure. Even that time, however, was not a time of leisure; for, from the course of proceeding in the Courts, from the circumstance of the pleadings being all in writing, and requiring to be studied at home, the Judges were, in reality, during a great part of these two months occupied in preparing for the trials that were afterwards to come before them; so that, in fact, they would only have the time absolutely necessary for men of their age to enjoy that relaxation that, was necessary to fit them for the discharge of their active duties. He was glad to say that he was
1152
now hastening to a close; but there was still a further subject of reduction which he had to notice. He referred to the office of Lord Justice-general of Scotland, the duties of whose office he proposed to transfer to the Lord President of the Court of Session. That noble person (for the office was held by the Duke of Montrose) was the practical head of the Criminal Judges of Scotland. The noble Duke might, if he so pleased (but he had never done so), go down to Scotland, and assume the chief authority in the Criminal Courts there. The House would agree with him that there was nothing so unfitting as that an individual, not educated to the law, should possess all the chief power of administering the criminal law of the country. It was proper, therefore, that this office should cease, and that the authority belonging to it should be transferred to other hands. It was now in fact a sinecure, and a sinecure meant an office to which no duty, but a large salary, was attached. In transferring the office, as he proposed to do, they would act upon an exactly opposite principle; for they would impose a large duty, but accompany it by no grant of any salary whatever. It was quite impossible that the Lord Justice Clerk could discharge the whole of the duties that would thus devolve upon him; and he had accordingly joined with him, for their due performance, the Lord President, who was to undertake a part of them. Before he proceeded to the last Court to which this Bill would apply, he wished to state that he thought he had shown that the Lord Justice Clerk and the Lord President would have ample occupation. They must be well acquainted with every case, as the country looked especially to their opinions. When once the union, of which he had spoken, was completed, and the country became more acquainted with the nature of the Trial by Jury, and its advantages, he was confident that the number of civil cases would be increased, while the criminal business would not be diminished. It remained for him only to advert to the Court of Exchequer, the origin of which in Scotland might be traced back upwards of 400 years. This was the oldest of all the Courts we knew in Scotland, and indeed from its nature must be so in every country—the Exchequer would be almost coeval with the history of taxation. By the Act of Union it had been preserved to Scotland, with the same powers as the Court of Exchequer of

1153
England, and it received its particular shape principally from an Act of Queen Anne. So anxious were the Cramers of the Union to preserve the jurisdiction over revenue cases in the Exchequer, that they distinctly recognized its authority; and the Articles of Union themselves, with unusual particularity, set out the precise amount of revenue derived in Scotland from the Customs and Excise, at that period. By the 15th Article it appeared that the whole amount of the receipts in the Customs' department was 30,000 l., and the whole amount of the receipts in the Excise Department was 33,500 l., making- in the whole, 63,500 l. Since that date the produce of the Customs and Excise had increased in a remarkable degree. It was as follows:—

Customs

£1,376,000

Excise

2,839,000

Making a total of

£4,215,000

If then it was thought, at the date of the Union, that a Court of Exchequer was necessary to Scotland, it could not now probably be disputed that that necessity was not diminished. At the same time, under the existing arrangements, it had been found by Government, after the fullest inquiry, that the number of Judges of the Exchequer might be reduced without disadvantage. Those Judges were formerly four Puisne Barons, besides a Chief Baron; but about nine years since the number had been lessened to three Puisne Barons, and a Chief Baron. It was now proposed to abolish two more of the Puisne Barons, so as to reduce the Court to one Puisne Baron, and the Chief Baron. He contended that the business of this department could not properly be confided to one individual, however competent; and he thought it would be admitted that two were the smallest number of Judges that the Court ought to consist of. If one Judge were absent from accident or illness, there would still remain another to discharge the duties of the situation; whereas, if only one Judge were provided, no such resource would be left. In order to provide against contingencies, a clause could be introduced to enable the Chief Baron and Puisne Baron to call to their assistance one of the Judges of the Court of Session. He was prepared to expect that some hon. Member would argue that the Court of Exchequer in Scot-land might be entirely abolished; he in-
1154
sisted, on the contrary, Scotland was entitled to a Court of Exchequer in some shape or other, even if some grounds could be shown why it ought not to exist; she had a just claim, by the terms of the Act of Union, that her Court of Exchequer should not be wholly abolished. He made this assertion with confidence, and with some knowledge of the subject, having for eleven long years attended that Court, and argued every case there under discussion before the Lord Chief Baron, Sir Samuel Shepherd, that most learned and enlightened lawyer. He maintained, also, that to throw the business of the Exchequer into the Court of Session, would not only be most inexpedient but most unjust; neither would it produce any saving of expense, if that were the object, inasmuch as additional labour could not be thrown upon individuals without additional emolument. In such a change, no advantages that he could contemplate would by any means counterbalance the disadvantages. He was happy to say, and no doubt the House would be happy to hear, that he had arrived at the close of his explanation; he had endeavoured to point out, as clearly and as succinctly as he could, the different alterations he proposed to make; but he was aware that he had been necessarily led into some minute and tedious details. He believed that all who heard him would bear him out in the opinion, that the changes were calculated to promote the due administration of jus-lice in Scotland; he was prepared to defend them upon that score, and if they were not so defensible, he, for one, was ready to abandon them, for considerations of expense in such a case were entirely secondary and inferior. It could not, however, be disputed, that if these beneficial reforms were attended also with a saving of the public money, it was an additional recommendation, and that saving might be stated as follows:—

In the Jury Court the saving would be

£11,000

In the salary of the Judge Admiral

800

In the salaries of three Judges in the Commissary Court

1,800

In the salary of the Justice General

2,000

In the salaries of two Judges of the Court of Session

4,000

In the salaries of two Judges of the Court of Exchequer

4,000

£23,600

In a pecuniary point of view, therefore, the gain to the country would not be inconsiderable; and it would also be ob-

1155
vious, that by this arrangement the Government would sustain a loss of patronage, and that not eventual, but immediate: in fact, in some respects, it might be even said to have been forestalled. Eighteen high officers were to be abolished, all connected with the Bar of Scotland—that most influential body, whom, if Ministers were anxious to maintain their popularity, they ought by every means to conciliate. That object would certainly not be accomplished by the plan he now proposed; and be might say that he knew that in the part of the kingdom with which he was best acquainted, this part of the measure would not be well received; the state of the public mind there, was materially different from the state of the public mind here; but he trusted that when the real merits of the Bill were understood, the good sense of the people of Scotland would enable them to value the proposed changes at their real worth. At present they reprobated all changes in the judicial system; and he was aware that some part of the odium attending this measure must rest upon himself. Of this, however, he was quite sure—and it afforded him great satisfaction—that nobody in Scotland or out of it would question the purity of his motives; they might disapprove of the new system, but they would be convinced that his only wish was, to benefit his country; they must, indeed, be short-sighted who thought he could possibly be actuated by any but the most disinterested intentions. He trusted that the measure would be followed by all the benefits anticipated, and that it would reflect upon the Government the just degree of credit due to its exertions and its wishes to improve the administration of justice. After thanking the House for the patience with which it had listened, the learned Lord moved for leave to bring in "A Bill for uniting the Benefits of Jury Trial in Civil Causes with the ordinary Jurisdiction of the Court of Session, and for making certain other Alterations and Reductions in the Judicial Establishments of Scotland."
The Question was put from the Chair.
Sir Michael Shaw Stewartsaid, although he could not but regret the delay that had taken place since notice was first given for the introduction of this bill—a delay that could not but be inconvenient to the Lord Advocate himself, and to all the Members connected with Scotland, as
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well as displeasing to the people of Scotland, who are so deeply interested in this Bill, yet he must confess that he had heard with much satisfaction the details as far as they went, and as he understood them, of the bill as now proposed to be introduced by his learned friend, the Lord Advocate, who, he must say, had upon all occasions within his experience always shown much candour and readiness in promoting any measure of public improvement that he felt himself, in the exercise of his great official responsibility, justified in consenting to. But there was something so new and so liberal in the proposed improvements and curtailments in the system and expenditure of the administration of the law in Scotland, that he could not but mainly attribute them to the enlightened mind of his right hon. friend the Secretary of State for the Home Department, in conjunction with the noble and learned Lord at the head of the administration of justice in this country; and under this conviction, he could not help expressing an anxious hope, that when the multiplied and important public claims that pressed so heavily upon his right hon. friend would allow him leisure to look more and more into the details of the courts of law in Scotland, that he would be disposed to feel the incumbent propriety of carrying the effects of his salutary revision considerably beyond the scope of the Bill now before the House; and he could assure him (and he wished to speak with becoming moderation on the subject, and with sincere veneration for the institutions of his own country, and for the able and excellent individuals who preside over them), yet he could assure his right hon. friend, that he would have for his recompense the gratitude of the people of Scotland, for it was a revision that in some important respects was, he believed, much required. Without presuming to enter at present, prematurely and imperfectly as he must always under any circumstances do, into the details of the Bill, he might be permitted to say that he thought there could be but one opinion as to the great advantage of promoting the extension of Trial by Jury in Scotland; for although, limited as it had hitherto been to a separate court, its benefits may have appeared doubtful to some, yet when it becomes co-extensive and united with the jurisdiction of the Court of Session in all civil causes, as he understood it to be the

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object of this Bill to make it, its beneficial effects in shortening' the length, and thereby diminishing the expense, as well as in giving more exactness and certainty to the proceedings of the courts of law, would, he was persuaded, be speedily and gratefully experienced; and he trusted that these benefits of Trial by Jury would not be limited to the Court of Session, but that, in conformity with a very general wish among the people of Scotland, it would be found expedient and just to extend it to every provincial Sheriff Court in that part of the kingdom. As a very effectual means of reducing the great expense of law proceedings in Scotland, not included in the Bill, but to which he would entreat the particular attention of the right hon. the Secretary of State, and the Lord Advocate, viz. a revision of the Fees to Clerks of Courts, which were, he believed, a ceaseless source of heavy expense to every litigant in Scotland. These fees were, he was aware, regulated and sanctioned by the Court of Session; and it was for this very reason that he asked his right hon. friend to take them under his own immediate revision; for he was convinced of his sincere desire, as he forcibly expressed it in his able statement on a former night in developing the proposed law reforms, to make justice as cheap and also as expeditious as possible; and he had indeed given substantial and beneficial proofs of the sincerity of that desire, and of his great ability to carry it into effect. Perhaps the House would permit him to read a part of a letter he had received, among others, from a most respectable and experienced professional gentleman in Edinburgh, as it would convey some information on the subject much more concisely than he could relate it: — "The first improvement in the Court of Session, and the one which would diminish expense most, would be to abolish all fees to Clerks of Court, and let Government pay the salaries of the necessary Clerks as well as of the Judges. If this were clone, it would not cost above one-fourth for Clerks of what it does at present. The six principal Clerks and six Depute Clerks of Session are nearly sinecures, and for them the litigants are charged with a fee-fund of about 9,000 l. a-year. There is a second fee-fund for fifteen Lords' Clerks, whose fees were introduced by Sir Islay Campbell, and cost the litigants about 6,000 l. Then there are
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closet-keepers, extractors, &c. all paid by fees on every step of procedure in the Court, so as to cost the litigants upwards of 20,000 l. for Clerks of Court. If Government were to remodel the Clerks, they could get the business better done for about 5,000 l. or 6,000 l. They might continue as much of the fee-fund as would pay the present Clerks till they die out. The expense of litigation is so great, that it soon exceeds the amount of the sum in dispute, if it be of moderate amount; and it becomes often better to acquiesce in an unjust demand than incur the risk and expense of a law-suit. There seems no reason why the litigants should be taxed to pay the Clerks of Court more than the Judges; and Government have set the example in the Jury Court, where they pay all the Clerks. If they were to new model the Clerks, and fix moderate salaries for no more than are absolutly necessary, they would confer a great benefit on the country at a very moderate cost to Government." He would only beg to add, that whether Government would consent to pay the fees of Court or not, he trusted the result of a revision would be, a great reduction of these fees, and a greater reduction of the Clerks than was proposed by the bill before the House. There was another point to which he must advert, and not mentioned in the Bill, yet entailing-great expense and greater inconvenience on the people of Scotland, and he hoped the learned Lord would give his immediate consideration to it—he meant the cumbrous and multifarious forms of deeds and writings at present in use for the transmission of heritable property from one individual to another, and for mortgaging the same. He was convinced that the good sense of the country at large, and he believed the majority of the learned profession, were impatient to have these forms superseded by forms drawn in simple and precise terms, and divested of all that technical tautology which leads, from the mere inaccuracy of clerks in a single word in copying these complicated forms, to consequences the most serious and severe. He trusted that the learned Lord would yield to the general feeling of Scotland, and would bring in a bill to abolish altogether infeoffments and seisins, and enact that the deeds of transfer of heritable property and heritable securities be publicly registered in their stead, letting the regulated fees of seisins be paid on

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these deeds, so protecting the invested: interests, and he trusted also, thus muffling, if not altogether arresting, any opposition to this great improvement from the principal keeper of seisins and all his subordinates. He thought that the practice of introducing into many recent Acts of Parliament condensed forms of writing for the purchase of land for rail-roads, canals, &c. and for borrowing money on the credit of these, afforded a direct and useful precedent for what he had ventured to suggest, He believed that bequests left to public bodies and heritable institutions were worded in very concise terms, which were held to be binding on executors, and to be good in law; and if he were not mistaken, the largest mercantile transactions were securely completed, simply by an invoice and a bill of exchange. It seemed, therefore, very hard and absurd to his unprofessional mind, that land should be the only species of property that in its transmission should not enjoy the great benefit of concise and secure forms. But he was persuaded that his learned friend must feel the necessity of an alteration in this respect, and he trusted he would, with his usual liberality, undertake and effect it. There was one other point to which he would beg leave at present to allude, and as it was one of heavy expense and complaint among the people of Scotland, he should feel that he was not doing his duty were he to omit it on this occasion: he- alluded to the high rate of Writers' charges. These charges were a heavy tax on all the property of Scotland, and he called upon his hon. friends, the representatives and gentlemen of Scotland, to refute or confirm what he now stated; and he begged to say, that he made this statement with all due respect for that able and intelligent body of gentlemen, the Writers to the Signet of Scotland. He blamed not them, for these fees were, he understood, regulated and sanctioned by the Court of Session, and that being the case, he felt that he ought not, as a trustee of the people's money, to consent to any augmentation to the salaries of these controlling judges, until he had received some assurance from the learned Lord that there should be a revision and reduction of these charges of which he complained in the name of the people of Scotland. And abundant reason the people had to seek every possible reduction of legal expense; for the sum annually
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consumed by law, in all its gradations, shapes, and varieties, in Scotland, was, he believed, truly enormous. Leaving to other opportunities, and to abler and more experienced minds, the mote serious duty of going into the details of this Bill, and suggesting such amendments as might be thought practically advisable,—and many such, he trusted, would be matured and adopted on this most vitally important measure for Scotland—he would only at present beg leave further to express his unfeigned respect for the very able and distinguished individuals that now presided in the courts of law in Scotland. He believed the bench altogether never was more ably filled; and the truly efficient Judges of the outer House—all of whom were, he believed, appointed by his right hon. friend (and their appointment reflected the highest credit upon him), have given great, and general satisfaction in the country. And it was because the Judges were so efficient that he rejoiced to see, by the provisions of this bill—although he would have liked it better had the number of Judges been reduced to twelve—yet he rejoiced to see that, henceforth, Scotland was likely to derive a fuller and a juster share of benefit from the labours, the learning, and the talents of the eminent persons who now administered her laws [cheers].
Sir G. Warrendersaid, unless the effect of the present measure were to produce a considerable improvement and reduction in the judicial establishments of Scotland, he should be the last man to concur in its adoption. But he thought it would be beneficial as far as it went, and felt grateful for it. He fully concurred in what had fallen from the hon. Baronet on the subject of Fees: he himself had received communications, stating that the middle classes in Scotland wore frequently deterred from applying for justice in consequence of the enormous amount of fees. The salaries to clerks derived from fees amounted to 24,000 l. a year. Another system with regard to fees should be adopted, and the clerk, instead of being paid by fees as at present, should be remunerated in a different manner. There was no point which the people of Scotland were more desirous of having altered than this, for the extent of the Clerks' fees in Scotland amounted in many cases almost to a denial of justice. He did not quite concur with the learned Lord in

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what he had said regarding the degree of patronage relinquished by Government in the present Bill, because, in his opinion, judicial appointments ought never to be made the subject of patronage. Such had been once the case, but the practice was now changed, and public opinion would not allow it. It had been said that the Scotch bar had been exhausted by the existing judicial appointments, and he thought he could point out to the learned Lord ten or twelve individuals now at the bar well qualified to fill the situation of Judges. He concurred entirely with what had fallen from the hon. Member for Knaresborough on a former occasion— that men might be found in the middle classes of the Scotch bar fully competent to act in a judicial capacity; and it was to be observed in confirmation, that two of the Judges, whose decisions had given most satisfaction, had not enjoyed practice to the extent of 800 l. a year at the time they were appointed. The measure, as far as it went, was good, and he, therefore, thought that they ought to be grateful to the Government for having adopted it. It was a plan that had for many years been suggested, and he had the fullest expectation that it would be found in every respect to succeed. They were all agreed, he believed, that it was proper to decrease the number of Judges, and he hoped that question would be discussed on its own merits, and without any reference to any proposition for increasing the salaries of those who remain. His right hon. friend (the Lord Advocate) had staled, that though the Judges were now employed six months, their work would be increased. He had also stated that fresh labours were to be added by the Admiralty and Consistorial Courts, and by the Jury Court being united to the Court of Session. With respect to the Consistorial Court, his right hon. friend has answered himself, because he had himself stated that all the important cases in the Consistorial Court came by appeal before the Court of Session. But before the House entered into the supposition that the labours of these Judges were to be increased, it would be as well to look at what their duties now were. By the statute they were required to sit 114 days in the year; but how many hours in those days did they sit? Sometimes not more than one hour, and he believed that if he took the average at three hours, he should, make a
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very fair allowance. If they took their present labour at 300 hours in the year, he believed that, with the proposed additions, it would not amount to more than 438 hours in the year. His right hon. friend had also stated, that the office of Justice-general, which was now a sinecure, was to become, by the new arrangement, an office of business, but without a salary. He believed, from what had been said on a former occasion, that it was the understanding of Parliament, that at the expiration of the existing interest, the office was to be abolished, and he therefore thought that the giving this office to the Lord President was unnecessary. At the same time he was ready to admit, that crime was unfortunately on the increase in Scotland, though he nevertheless thought that the six criminal Judges were fully sufficient to discharge all the duties consequent upon that increase. His right hon. friend, in the course of his speech, had stated the history of the Court of Session pretty fully, as it was constituted in the year 1537, but he had omitted one point of information which, in these times of general distress, was of general interest. When James 5th had instituted the Court of Session, at that period it was observable that he neither imposed a tax on the people for its support, nor exacted any fees from the suitors of the Court. Instead of this, he applied to the Pope, who in this instance acted the part of the reformer, and with his consent he applied some of the ecclesiastical revenues of Scotland for the purpose of discharging the salaries of the officers of the Court. Since that time the expense incurred by this Court had gradually increased; though, as he had stated before, he felt grateful for what the Government had shown itself disposed to do, yet he could not express himself satisfied with even that amount of reduction. Since the year 1799 the whole establishment of that Court had more than doubled. In making this statement, he would not go to the year 1797, nor by that means into the whole question, of the currency, but, at all events, he would venture to state, that the whole expenditure of that establishment had increased 120 per cent since the year 1799. By returns which were in his possession—and which, though they were not on the Table of the House, might be, if they were moved for—it appeared that the whole amount paid by the Receiver-general of

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Scotland for judicial and civil service, from the 5th January 1828 to the 5th January 1829, was 176,476 l., to which 24,700 l. were to be added as fees paid to the Clerks of Court by the suitors, which made a total of upwards of 201,000 l. Nor was this all, for in addition to those sums there was a number of those officers to which the suitors paid considerable sums in the shape of fees; and with regard to the Court of Session, the increase had been from 18,100 l. to 37,300 l., which, as he had already stated, was more than double. Now he believed, that though nothing had been said upon the subject, it was well understood that the present measure would be followed up by one proposing to increase the salary of the Scotch Judges. He therefore thought, considering that the additional work proposed was not so great as had been imagined, and that the prices of all things now had so much fallen, that it was out of the question to consent to such an increase. If the returns to landed property were compared with the salary of the Judges in Scotland, it would be found that the Judge was now 1,000 l. a year better than the Landholder, in reference to the amount of the emoluments of the Judge in 1810, and the income from land in the same year. An estate which produced 2,000 l. a year in 1810, produced now only from 1,000 l. to 1,300/. a year. It would be but fair and candid, therefore, on his part to state, that whenever a measure was brought forward to increase the salary of the Judges he should strenuously oppose it—not that he had any wish to embarrass or perplex the Government, but because he thought that, in justice to the pockets of the people, he was bound to set his face against such a course. With regard to the Court of Exchequer, he was ready to admit that a great reduction there, was not to be expected. There was no doubt but that that Court ought to be maintained, for it was most useful in its operations; and though he was disposed to say that a general revision as to salaries was not an unfit thing, yet he did not so much wish to push that point to the Court of Exchequer; though, if additional labours were to be imposed upon the Judges of that Court, he thought that they would be fully compensated by allowing them to remain at the really increased salaries which they had already got. Having said thus much, he would not detain the House any
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longer, but would reserve any further remarks he had to make to the period when the details should be more before the House. He had only, in conclusion, to beg that the Lord Advocate would seriously consider the fee-fund. No tax could be more heavy than that which produced a denial of justice, and of such a nature was this.
Mr. Fergussonsaid, he should abstain at the present moment from giving any opinion on most of the subjects that had been brought before the House by the learned Lord; for, unlearned as he was in the laws of his country—he meant Scotland—he should like to be better acquainted with the opinions of professional men before he hazarded his own. He was capable, however, of forming an opinion of the Lord Advocate, and he begged to say that no one could doubt that the motives of that learned Lord were as pure and as honourable as his exertions were praiseworthy. At the same time he might observe, that he could hardly conceive of any form of case, in aid of which the trial by twelve jurymen as to points of fact, would not be most useful: he therefore thought that it was worthy the attention of the learned Lord to consider whether these trials should be confined to the presidency of two Judges only, as it could not be denied that many of the other Judges were quite competent to the task of presiding over a jury trial. With respect to the reduction of the Court of Admiralty, he thought that that might safely be accomplished, as the causes that came before that Court might as well be tried by the Sheriff or the Court of Session; and, indeed, with respect to maritime cases, it was much more fit that they should come before the last-mentioned Court. With respect to the alterations in the Ecclesiastical Court he was not so well satisfied, as he thought that two Judges ought to be left there in order to give them a jurisdiction. He did not think that the Judges of the Court of Session any more than the Judges of Westminster-hall, could try and determine ecclesiastical causes as well as men who had been trained in that particular department. He did not think that questions of marriage, divorce, and legitimacy, could be safely transferred to such Judges. He, for one, could not agree in the proposition laid down by the learned Lord, that they ought to check litigation by adding to the expense; and as long as

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the law of Scotland permitted divorce without application to Parliament, he thought that it ought to be as open to the poor as to the rich. Unfortunately such was not the case in this country,—but that was no reason for extending the same measure of injustice to Scotland. The legitimacy of his children was as important to the poor man as it was to the rich man; and he could see no reason for distinguishing between poverty and wealth in such a case. Now in the Consistorial Court the expense to the suitor was not more than 10 l. or 15 l., while in the Court of Session the expense would be not less than 54 l. But the learned Lord had put it upon the footing that all divorce cases were open to collusion. Even if this were so, the Court did all in its power to prevent that collusion, and in so doing discharged its duty. The learned Lord knew that an oath, denying collusion, was administered in the most solemn manner to parties applying for divorce in Scotland; and the learned Lord also knew, that if collusion could be subsequently proved, the sentence and all the proceedings were null and void. There was no such precaution in this country. He should be inclined to reduce the number of the Judges of the Consistorial Court to two; but he was not at present prepared to agree that the Court should be abolished. With respect to the office of Justice-general, it was one which reflected discredit on every Government that had supported it. It was the patronage with which previous Governments could not afford to part. He, however, sincerely believed that that was not the object of the present Government, but that, as far as they could venture, they were willing to steer a more patriotic course; and he therefore trusted that this night that office would be abolished for ever. As to the reduction of the number of Judges, that would of course depend upon whether the proposed number could transact the business. He was not competent to form an opinion on this subject. With respect to the Court of Exchequer, he thought no further reduction than that proposed could be made in it, if the Court were to exist at all. The hon. Baronet who had preceded him had endeavoured to give the House an account of the number of hours during which the Lords of Session were employed. It might be very true that the Judges were in Court for those hours only, but was that all the time they were occu-
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pied? So far from it, there were a vast variety of legal proceedings, which, by the time they came before the Judges, assumed a most voluminous shape, and every word of which was to be read by those learned persons before they could safely come to a conclusion as to their judgment. These documents formed the "record" which came before them, and was very unlike what was usually called the "record" in England. The principal occupation of the Judges of the Court of Session, therefore, was out of Court; and if they sat only a few hours a day in Court, that did not prove that they had little to do. He therefore thought that he was safely warranted in saying that those Judges in Scotland had full as much employment and labour as the Puisne Judges of this country. Looking to the extent to which the Judges in Scotland laboured, and to the fact that they gave up their whole time to the duties of their office—looking, too, at the sacrifice they generally made, in giving up large incomes as barristers, he thought that their salaries ought to be increased. This was his deliberate opinion; and whenever the question came before the House, he should support a motion for increasing their salaries.
Mr. Home Drummondsaid, he could not give a silent vote on that occasion; the measures now brought forward were so much in accordance with those he had recommended last session, that he should give them his cordial support. It gave him great satisfaction to see those measures introduced; and he thought they reflected the highest credit on his hon. and learned friend and the right hon. Secretary of State. They could not justly be charged with being rash innovations, for almost all of them had been under discussion for half a century. Upwards of forty years ago the three points of dividing the Court of Session, of introducing into it trial by jury, and reducing the number of Judges, had been recommended in a very able pamphlet, by a Judge of that Court, the late Lord Swinton, than whom no man ever wrote from a more sincere desire to discover the truth, or more uninfluenced by every other consideration than the public good. The measures introduced by his hon. and learned friend, however, had met with so much approbation in the House, that he did not think it necessary to enter into any arguments to enforce their claims to

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support. There was only one point to-which the hon. and learned Gentleman who spoke last had objected, on which he would say a few words. Every part of the measures had met with that hon. Member's approbation, except the abolition of the Commissary Court, and his objection to the abolition of that Court was, that the Judges of the Court of Session were not so well qualified to decide the peculiar description of cases now decided by the Commissaries as judges more particularly conversant in that department of the law. But the hon. and learned Member seemed to have forgotten that the Judges of the Court of Session received all the most important decisions of the Commissaries, and if they were capable of deciding them on appeal, they must be presumed to understand them in the first instance. He thought there was no doubt of the propriety of giving this. jurisdiction to the Court of Session. He was sorry to differ from the learned Lord in his view of the Scotch Court of Exchequer; the Barons of that Court had two descriptions of duties to perform, which he thought it improper to have united in the same bond. They had not only their Judicial duties, but also the duties of Lords of the Treasury, and such duties as arc discharged in England by the Commissioners of Woods and Forests. This was a bad arrangement, and the latter ought not to continue united to the Judicial Office. The former did not occupy much of their time, and were chiefly such causes as were daily disposed of without difficulty by the English magistrates at their ordinary Sessions of the Peace. He thought one or two of the Lords of Session might be employed to hear causes in the Court of Exchequer without interfering in the least with their other duties. The argument of the learned Lord against the abolition of this Court was chiefly founded on the Union, which he had been accustomed, from the use he had seen made of it in that House, to consider as a last resource in a bad cause. The learned Lord had no objection to remove the Admiralty Court, but the argument drawn from the Treaty of Union was as strong in favour of the Admiralty Court as in favour of the Court of Exchequer. The great object of that part of the Treaty of Union, was, he believed, to prevent the Administration of Justice being removed from Scotland to England. The people of
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Scotland were afraid that their Courts might be removed, and therefore it was provided, that "the Administration of Justice should not be taken from them, and given to others," in what they considered a foreign country. It was stipulated that there should be a Court of Exchequer at Edinburgh, but it was not stipulated that Judges who had other duties to discharge, should not also discharge the Judicial duties of the Exchequer as well as those of the Admiralty and Commissary Court; and the Lords of Session would not find the Judicial duties of the Exchequer any great addition to their labours. He concurred in what had been said as to the Fees of Courts, and expenses of Law proceedings, and of conveyances of landed property. But he did not think it expedient, even independently of the burden it would throw upon the country, that clerks and other inferior officers should be entirely paid by salaries. The same principle did not apply here as in the case of Judges, as to whom he was happy to say, there was not one in Scotland, from the highest to the lowest, who had any thing to do with Fees, or with the sale of offices, excepting only one instance of the latter, which would soon be abolished by the measures now in progress. He agreed, however, that it was highly desirable that the Fees of Court and of the practitioners, should be revised, and he hoped the subject would meet with due consideration. He should only add that the grounds on which he had urged the postponement of the question of Salaries last year, being removed by the Motion of the learned Lord, he considered himself pledged to give that measure his support, when it should come before the House.
Colonal Lindsaywas understood also to approve of the measures, but to dissent from the objections which had been made to increasing the Judges' salary. He did not believe that the rent of land in Scotland had fallen 40-per-eent; and when ever the proposition to increase the Judges' salaries came before the House, he should give it his strenuous support. The salary ought to be raised so as to tempt men of the highest talents to accept the office, and enable them to subsist like gentlemen while they devoted their time to the public service. He was anxious to see public men well paid.
Mr. Humewas also anxious to see public men well paid, but he was afraid that

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his rule for paying public men well differed from that of the hon. Member. There were, at present, he believed, but very few public officers who were not well paid; and should the Administration propose to increase the salaries of the Scotch Judges, they would act very unadvisedly. The test of a sufficient salary was, would it buy the best or sufficiently good services? He should be prepared to show, when the question came before the Mouse, that the Scotch Judges were amply paid. It had been already stated, and correctly stated, that the increase of expense in this department had been greater than in any other. He congratulated the right hon. Gentleman on the measures introduced, and hoped they were only the beginning of improvements. When they were making professions of economy, however, and had these reductions in view, he must express his surprise that they should have lately appointed a Lord Chief Baron, an appointment which was totally uncalled for. There was no man in England who more deserved the appointment than the present Lord Chief Baron; but if he were his own brother, he could not approve of the appointment. That act of the Ministers very much weakened his confidence in their expressions of economy: for at the very moment that they were making the strongest professions, they appointed a Chief Baron, knowing that they meant to reduce two of the Barons of the Exchequer. The duties of the Treasury which were performed in Scotland by the Barons of the Exchequer, were totally inconsistent with their character of Judges. Edinburgh had been brought within forty-eight hours of London; every other public department had been removed, and he did not know why the Treasury should not be removed. The Barons of the Exchequer were at present chiefly employed in managing the business, and dispensing the patronage of the Crown. He in-treated the right hon. Gentleman to look at this matter for himself, and not take the opinion of the learned Lord. If he took the advice of some practical men, he was sure that the right hon. Gentleman would take all the patronage of the Treasury out of the hands of the Barons of the Exchequer. All their judicial duties were very light, and might be done with ease; in fact, the duties of the Judges in Scotland were so light, that, unlike the English Judges, they mixed in all sorts of
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business," and entered into various Societies. They were Directors and Managers of Infirmaries, Commissioners of Bridges and Gaols, Presidents of Public Charities, and members of the Royal Commission to inquire into Academical Instruction in Scotland. The hon. Member quoted the Edinburgh Almanack to show the different offices of this description filled by the Scotch Judges. He did not find English Judges so engaged. The learned Gentleman, who had stated as a reason for augmenting the Judges' salaries that they had a great deal to do, had forgotten that in 1825, the labour of the Judges had been much diminished by the Act which regulated the Courts. The quantity they had now to read was not excessive, and was not a sufficient reason for augmenting their salaries. They had not more labour now than they had when their salary was 922 l. each, and now they had 2,500 l. The fees demanded attention, and the sum of 20,000 l. now paid as fees was enormous. It made justice dear, which ought to be cheap. In conclusion, the hon. Member expressed his satisfaction with the measures proposed, but could not avoid regretting and blaming the appointment of the Chief Baron.
Mr. Secretary Peelwas happy to find the system so good, that the hon. Member could find out nothing else to blame but that the Judges of Scotland mixed with other classes of society, and engaged in some other business. Among the employments to which the learned Member objected was the being appointed on the Commission to inquire into Academical Instruction; and he stated as an aggravated offence that they were the presidents of charitable Institutions, and the Managers of Infirmaries. All the fault he could find with them was, that they mixed with their fellow citizens. The hon. Gentle-man said, that English Judges did not do such things; but he had sent for the Red Book, and on opening it at the Lying-in-Hospital, he found that Mr. Justice Park and Mr. Justice Gazelee were Vice-Presidents [honorary, said Mr. Hume}. He found that among the six Vice-Presidents of the Foundling Hospital, there were Lord Tenterden, Mr. Justice Gazelee, and Sir John Nicholl.
Mr. Humesaid, he could show that they went farther; some of them might be found amongst the Members of Select Vestries.
Mr. Peelresumed; the hon. Gentleman charged the Scotch Judges with addicting themselves to secular employments, and instituted comparisons between them and the English Judges, unfavourable to the former, and then he sought to aggravate the charge by saying that the English Judges went a length the Scotch Judges had never been known to go. If that were really and seriously brought as a charge, and sustained in the manner which he had just described, he must be allowed to say that his experience afforded but few parallels to such a mode of parliamentary discussion. It was indeed new to him to hear it brought as matter of accusation against judicial persons, that they were found mixing in deeds of charity with their fellow-citizens at large. The case of the English Judges, to which he had adverted, was certainly such as lay open to no reasonable objection; and he was quite satisfied that the hon. Member for Westminster, who sat opposite, could bear testimony to the benefits which their interference conferred upon the charities with which they were connected. It happened that in Scotland some of them had been appointed Commissioners for the purpose of inquiring into the state of Academical Education, and he should gladly learn what there was in the judicial office to unfit them for such a situation; and he might be allowed to add, that they deserved great credit for the willingness with which they undertook those duties, and the efficiency with which they discharged them. As to the immediate object of the present Motion, he should reserve to himself the right of addressing the House on it at some future occasion —possibly when it came to be discussed in the Committee. As he had a Motion of his own to bring on that night, he might be excused from then saying more.
Mr. Hume, in explanation, said, that he did not find fault with the manner in which the right hon. Secretary had treated his argument, seeing that he was himself much in the habit of treating the reasonings of his own opponents with quite as little ceremony; but he hoped the House would allow him to re-state his argument in a manner that would protect it from the attack of the right hon. Gentleman. He instanced the way in which the Scotch Judges spent their leisure as a proof that they had too much idle time on their hands—or if not too much, that they had
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plenty of leisure, and that the facility which they possessed of engaging in secular matters tended to produce amongst them an indifference respecting the performance of their Judicial duties—their attention was taken off from their Judicial employments.
Sir C. Forbescertainly thought it not fair that Scotch Judges should be kept at a salary of 2,500 l., while the English Judges had 5,500 l. As to the present Motion, it had his fullest support, for something like it had been brought forward by himself some years ago, at which time a sort of pledge was given that a measure like the present should obtain the support of his Majesty's Government. He confessed he heard with much surprise the hon. Member opposite say so much to the disparagement of Scotland and of Scotch Functionaries. He could not have believed it possible that the hon. Member would have so endeavoured to lower Scotland in the estimation of his hearers. Scotland, in his opinion, was well entitled to the consideration and respect of the rest of the empire—it paid as much taxes in proportion to its population as any other portion of the United Kingdom. He regretted to say that of late years it had become too much the custom to press upon Scotland—its interests were by no means so well protected as formerly —the English and Irish Members in the Cabinet seemed to him quite to overpower the Scotchmen, and the consequences were, he thought, deeply injurious to the northern part of the island. The hon. Member then defended the Scotch system of jurisprudence, asserting that very rarely did it happen that an innocent man was condemned in any of the Criminal Courts in Scotland. The vote he should give on the present occasion would be in perfect accordance with the whole tenour of his political life. He was not a man to be convinced in despite of his understanding, and he should always support Ministers when he thought their measures right and expedient.
Mr. Maxwellsaid, that the people of Scotland would have reason to feel deeply indebted to Government for having lent their aid in bringing forward the present measure. No doubt there were those who would regard it with distrust and alarm— for some minds were so constituted that they could not help regarding every reform as an innovation, and every change

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as a deterioration. He thought the Government entitled to high praise for supporting a measure which tended to diminish its own patronage. A reduction of the number of Scotch Judges could not be regarded otherwise than an exercise of self-denial, and a sacrifice on the part of the Government; and he hoped that the general feelings of the Members of that House, and of the country, would do them justice for the noble and better part they had enacted, rather doing what they conceived to be for the public good, than directing their conduct to the advancement of their private ends.
The Solicitor Generalfelt great pleasure at witnessing the introduction of the present measure. He wished to see the time of the Scotch Judges fairly occupied; but it would be unjust towards them, and mischievous to the public, to overpower them with business. It was not to be disputed that they, like all men, were entitled to that fair allowance of time for their domestic concerns, and for their amusements, he would add, which was alike just towards them and advantageous to the public, The salaries could never be such as would equal the sums obtained by the very highest men at the Bar; but neither should the Judges be selected from the middle classes of the bar: the public ought to have the services of eminent men in the profession, and of the best lawyers, and that could not be had without liberal payment. It was also important that not only should they live respectably, and in such a style as would command the respect of those whose interest they had to decide on, but they should possess such an income as would enable them to effect such savings as might place them above all anxiety with respect to their families, and enable them to devote themselves solely and exclusively to the duties of their situation—giving themselves, head and heart, to the public service. He entirely approved of that part of the measure which went to put an end to the Commissary Court; it would obviously be most convenient and advantageous to transfer its jurisdiction to a superior Court. Besides, by putting an end to that Court, the public service was relieved from the charge of the various Officers and Ministers belonging to that Court. Something had been said of the Court of Exchequer in Scotland; he was not favourable to its abolition—it was the most ancient Court in
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Scotland, and he thought that something was due to the feelings of the Scotch Nation. Many hon. Members of that House, who were natives of Scotland, had been heard to say that they would not stand upon the strict letter of the Act of Union in any case where what was proposed appeared to be for the public good: since, then, they acted upon the generous principle and the wise principle of not too closely demanding' an observance of the letter of the Act, it behaved the English portion of the Legislature to see that its spirit was in no case violated. Further, he thought it would be not at all conducive to the ends of public justice that the Revenue Laws should be administered in several courts. With respect to the recent appointment to the office of Chief Baron, he could not help reverting to it with extreme satisfaction. The right hon. Gentleman on whom that appointment was conferred, though always in opposition, was chosen by his Majesty's Government to fill the office, and, as might be in the recollection of all who heard him, the appointment was received with universal cheers. Some observations had been made upon the subject of patronage—but surely the House must see that in the present case there was nothing of corrupt or discreditable exercise of patronage. The bar naturally looked up, and so long as human nature remained what it was, would continue to look up to the Government, which had much to bestow—and would continue to look up to it, and be more or less subservient to its wishes, so long as hopes of preferment could reasonably be cherished, and the patronage so producing submission might all the while be exercised with the most perfect correctness; for so long as the matter remained a question of selection between two or three individuals, all equally, or nearly equally qualified, favour might be shown to one or other without the slightest detriment to the public service. A reduction, then, of the number of situations in the gift of the Crown, which might be disposed of in some degree for the purposes of influence, without any disadvantage to the public, was a sacrifice of patronage, for which his Majesty's Government were entitled to unmixed praise. For relinquishing the patronage in the case of the Welsh Judges also, he thought them entitled to unqualified approbation. Upon the subject of the Scotch appeals, he expressed much satisfaction at perceiving that means were to,

1175
be taken for reducing their amount. At one period a considerable portion of his business lay amongst Scotch appeals, from which he had since retired; but then and now, he confessed, the great number of Scotch appeals, did appear to him most extraordinary, the value of the subjects of the appeal never appeared to his mind to have any thing to do in influencing the minds of the litigants—whether four pounds or four thousand, great or small, they prosecuted their appeal with equal energy. Though he was not able to discover it, there must nevertheless be some cause for that astonishing disproportion between the Scotch appeals and those which were from other parts of the United Kingdom. If the cause were found out, something might probably be done to lessen, without injury to any person, the quantity of business arising from these appeals.
Mr. R. Gordondenied, that Ministers were entitled to much praise for having given their support to the present measure. In doing so they did nothing more than their duty—it was their first and most imperative duty to get rid of unnecessary offices, and more especially was it the duty of the present Government, seeing the circumstances of the country and the pledges which the Ministers of the Crown had given to Parliament. An hon. Member, on the opposite side of the House, had said, that the happy days of Scotland had passed away—that it no longer possessed those prompt and powerful advocates so devotedly at its service in former times; hereby the removal from Scotland of the means of corruption was calculated rather to raise than to depress that country. They had been told of the recent appointment of the Lord Chief Baron, and it was stated as a circumstance highly meritorious in that appointment, and cancelling all the evils of the office, that the person appointed to fill it was in the habit of sitting on that side of the House. It was of little importance, in his opinion, whether the individual appointed to that place were a Whig or a Tory—if the office were a useless office it ought to be abolished, no matter who filled it; whether it were conferred as a reward for past services, or a lure for future sub-serviency, If the office were useless it ought to be abolished. As to the particular measure then under consideration, he hoped and believed that it would give general satisfaction; he was
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quite sure that the intentions of his Majesty's Ministers were good, and he hoped that, while they were reducing one set of offices, pretexts would not be found for the creation of others.
The Lord-Advocate, in reply, expressed his gratification that the measure had appeared so generally satisfactory. The most important suggestion that bad been thrown out was, the remark of his hon. and learned friend, the Solicitor-general, respecting appeals. He (the Lord Advocate) should certainly look into the subject; but he could tell him that one main cause of the number of Scotch appeals arose from the advantages which appellants had in carrying a cause from a court where the Scotch law was known and easily applied, to a tribunal where it was, comparatively speaking, unknown. With respect to the proposed augmentation of the Judges salaries, in his opinion that was necessary, and would be beneficial to the country.
Leave given and Bill brought in under the following title: "A Bill for uniting the benefits of Jury Trial in Civil Causes with the ordinary jurisdiction of the Court of Session, and for making certain other alterations and reductions in the Judicial Establishments of Scotland."

LAW OF FORGERY.
Mr. Secretary Peelwas not disposed at that hour to persevere in the Motion with respect to the Law of Forgery, of which he had given notice, but that he felt it absolutely necessary to do so in order to the successful introduction of any Legislative measure which might have the chance of passing into a law during the present Session. In the course of the prosecution of the task he had undertaken,—namely, the Revision and Amendment of the Criminal Law— the crime of forgery had appeared to him to occupy a most important station in the list of offences, and to it he was now anxious to direct the attention of the Legislature. Before he stated the object he had in view in the amendment of the laws respecting forgery, he hoped the House would permit him to present them with a slight view of the existing laws on that subject, and the way in which they arrived at their present extent. Originally there was no statute law relating to forgery. Up to the time of queen Elizabeth the punishments for forgery were inflicted under the common law; and it was not until the fifth year of the reign of that Queen that a

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statute was passed inflicting a penalty on the offence of forging documents relating to real property. That penalty, however, did not extend to the punishment of death. The statute authorised imprisonment for life, the pillory, branding and loss of ears, according to the nature of the offence. It was not, indeed, until the reign of king William that any statute imposed the punishment of death. At that time the Bank of England was established, and the punishment of death was awarded to those who forged the negociable securities of that establishment, but in all other respects the punishments for forgery remained the same from the time of queen Elizabeth until the reign of George 2nd. In the year 1728, however, in that reign, a very material addition was made to the list of offences punishable as forgeries—the issuing of forged promissory notes and bills of exchange being made a capital offence. He believed there could be very little doubt that the extreme rigour adopted at this particular time on the subject of forgery, was owing to the alarms created by the very extensive and somewhat extraordinary forgeries of an individual, a full account of whose depredations would be found in the State Trials of that period. It appeared that this person, whose name was Hale, committed a number of forgeries on a Member of that House, named Gibson. One bill was for 1.600 l., another for 400 l., another for 700 l and one for 6,500 l. At that lime it was the practice of a Member, in franking a letter, to write his name with the word "free "in the corner, leaving the superscription to be filled up in the writing of the person sending the letter. Hale, it appeared, procured a number of these franks, and having changed the words "free" into "for R. Gibson," and then filled up the blank at pleasure, he was thus able to commit the forgery with ease. He had little doubt that the indignation and alarm produced by this forgery were the principal causes of the enactment of the laws to which he alluded; but in consequence of the extension of trade, the statutes on the subject of forgery were subsequently increased to a great extent, each department bringing in, with very little consideration, an Act to punish the forgeries applicable to their own business. To such a magnitude had this evil arisen at the time Mr. Justice Blackstone wrote his Commentaries, that he observes, with respect to the Law of Forgery— "In
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addition to the number of general and special commissions, there was not a forgery which could be practised on a real or a fictitious person, for which a law did not exist which made the crime a capital offence." He believed, indeed, that the whole number of statutes on the subject amounted to 120. These statutes might be divided properly into two classes. Those relating to public and general affairs, and those relating to official and departmental. In the first class might be comprised all documents relating to the public funds and to negociable securities—to bills of exchange and promissory notes, and all documents connected with the transfer of property—all papers relating to marriage settlements and testamentary bequests, and registers in public offices. Under the second head, the official and departmental, might be included all documents connected with the Navy and the Army, the Customs, the Excise, the Post-office, and Greenwich or Chelsea Hospitals—every Act relating to which contained some enactments on the subject of forgery. In attempting, then, to consider what course was to be pursued, he felt there were not many difficulties to be overcome with reference to the general and public securities which were transferable and negociable, but that there were very great difficulties in the way when they came to deal with the official and departmental. To take, for instance, of the latter class, the Act relating to the land-tax. In that Act there were 200 separate clauses, although only one of them related to forgery, but then that clause, the 194th section, overruled and referred to the whole of the other clauses, and expressly declared, that the penalty affixed to the crime of forgery attached to forging the documents referred to in the preceding clauses. In the same manner the Navy Pay Act contained twenty clauses, and the clause relating to the forgeries of orders for pensions and other documents referred to all the clauses contained in the Act. If, therefore, he merely took out the forgery clause, and did not alter the whole of the Act, he did nothing in the way of a consolidation of the Law of Forgery, and left the offences unprovided for. Now he proposed to meet the difficulty in this way. He proposed to leave to each department the task of revising and altering the Acts connected with it. The Customs had 360 acts connected with that department, and they had already re-

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duced them to the number of ten. The Stamp-office was engaged in the same task. The Navy Pay-office, and those connected with the hospitals, were engaged in the same task, and he was informed that in a short time the whole of the Acts relating to them would be reduced into a very small compass. He proposed then to repeal all the Acts which inflicted a capital punishment for forgery, whether the offence be either public or departmental, and to name a certain description of offences for which, and no other, the punishment of death was to be inflicted. Of the 120 statutes to which he had alluded, 61 inflicted the punishment of death. The Bill he proposed would contain only four clauses, and in them he proposed to consolidate the whole statute law relating to forgery. It would contain in one clause a distinct enumeration of all forgeries for which the punishment of death was to be inflicted, whether the offence was committed on the general or the departmental class, and the Act would, therefore, consolidate the whole of the laws relating to forgery in all public and private affairs. He thought it a most important object to diminish, as much as possible, the number of offences to which the punishment of death had been attached. He had, indeed, no hesitation in avowing, that he was a strong advocate for the mitigation of capital punishments. He wished to remove, in all cases where it was practicable, the punishment of death; for it was impossible to conceal from ourselves, that capital punishments were more frequent, and the criminal code more severe, on the whole, in this country, than in any country in the world. It was better, however, to proceed cautiously, so as not to embarrass their judicial functions, in the event of any increase of crime taking place, and that increase being attributed to the laxity of punishment they had introduced. They had, however, both reduced the number of offences for which death was inflicted; and that punishment had also, in all cases, been more sparingly applied. On a comparison of the number of executions in London and Middlesex, in time of war and peace, it appeared they were much more numerous in time of peace. Whether it was, that dishonest and profligate persons were carried off by the demands of war, or that the quantity of employment was greater for all, it was impossible to say; but the fact was so, as the return suffi-
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ciently proved. In the seven years of peace which succeeded the year 1783, although the number of the population was less and the number of crimes less, yet the executions were much more numerous than at any former or succeeding period. The executions in the seven years amounted to 378, or 56 on an average in each year. In 1787, 97 executions. And now, taking the seven years from 1816 to 1822 both inclusive, the executions were only l92, or an average of 27each year; and in the last seven years, from 1822 to 1829, there were only 122 executions, making an average of 17 each year, or about one-third of the executions of 1784. He would now proceed to state the offences on which he proposed to remit the punishment of death. The great principle to which he adhered was, to confine that punishment to the forgery of negociable and transferable securities, and to everything which represented money. He might add to them the forgery of the Great Seal, the Privy Seal, and the Sign Manual. He should also add the forgery of wills of personal property. In documents of that kind no witnesses were necessary, and as they were generally not produced till the death of the parties, and might therefore be made the instruments of great deception, and cause great injury to families, he had thought it right with regard to them to retain the capital punishment. He added to these all false entries relative to public stocks. All forgeries of promissory notes—all fraudulent attempts to procure money— all forgeries of the notes of the Bank of England—in fact, all documents representing money, or which came under the denomination of negociable or transferable securities. In the cases where he remitted the punishment of death, he was confident there would be much difference of opinion as to their propriety, and that some persons would be inclined to suppose he had not gone far enough, and others much too far; but he was of opinion that there would be more security in that course, and that a great deal of good might be done by the increased caution which these exceptions would introduce. He proposed, therefore, to except from the punishment of death all forgeries of receipts for money and goods—all issuing of forged stamps, or forgeries of stamps— all attempts to defraud by forged orders— all fabrications of bank paper, that is, the paper on which notes are stamped—all

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forgeries of deeds and bonds, and every document which did not come under the class he had named, and which were not negociable or transferable securities. For these offences death was now very rarely inflicted, and he was ready to admit that it ought not to be inflicted. He had been guided in this course by the opinion of the Committee which sat to inquire into the Criminal Code in 1819. The Report of that Committee says, "it has sometimes been said, that the abolition of penal laws, which have fallen into disuse, is of little advantage to the community. Your Committee consider this opinion as an error. They forbear to enlarge on the striking-remark of Lord Bacon, that all such laws weaken and disarm other parts of the criminal system. The frequent occurrence of the unexecuted threat of death in a criminal code tends to rob that punishment of all its terrors, and to enervate the general authority of the government and the laws. The multiplication of this threat in the laws of England has brought on them and the nation a character of harshness and cruelty which evidence of a mild administration of them will not entirely remove. Repeal silences the objection. Reasoning, founded on lenient exercise of authority, whatever its force may be, is not calculated to make a general and deep impression. The removal of disuses is a preliminary operation which greatly facilitates a just estimate (and where it is necessary), an effectual reform of those laws which are to remain in activity. Were capital punishments reduced to the comparatively small number of cases in which they are usually inflicted, it would become a much simpler operation to form a right judgment of their propriety or necessity. Another consideration of still greater moment presents itself on this part of the subject; penal laws are sometimes called into activity after long disuse, and in cases where their very existence may be unknown to the best-informed part of the community; malicious prosecutors set them in motion; a mistaken administration of the law may apply them to purposes for which they were not intended, and which they are calculated more to defeat than to promote; such seems to have been the case of the person who in the year 1814, at the assizes of Essex, was capitally convicted of the offence of cutting down trees, and who, in spite of the earnest applications for mercy from the prosecutor,
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the committing magistrate, and the whole neighbourhood, was executed, apparently because he was believed to be habitually engaged in other offences, for none of which however he had been convicted or tried." The right hon. Gentleman then eulogised Lord Bacon, who contended in his works for the principles he now asserted; and having adverted to the wonderful sagacity which that great man displayed, he expressed his surprise that any persons in authority could have perused his recommendations, and left it to the present day to carry them into effect. He confessed he never heard the name of Lord Bacon without feeling the force of those lines of Cowley, which he thought very preferable to those celebrated verses of Pope, in which he described him connecting together his glory and his disgrace, as at once the greatest and the meanest of mankind. Cowley's commendation was contained in his Address to the Royal Society, and his comparison of Bacon to Moses might be extended beyond the bounds of learning and philosophy. If he had not led statesmen and society out of the wilderness, he had pointed out the path. That glory was his, the neglect was his successors.
"Bacon, like Moses, led us forth at last,
The barren Wilderness he past,
Did on the very border stand
Of the blest Promised Land,
And from the mountain-top of his exalted wit,
Saw it himself, and showed us it."'
Before making his present proposition, he had referred to the Bill of 1821, which had been read a third time in that House, but did not pass into a law, and he found that there was no very material variation in the principle of the two measures. He had also referred to the Code Napoleon, and he also found that there was no very material variation in the principle of his proposition and that of the Code Napoleon. There was one peculiar reason for being cautious in their advances towards the mitigation of the punishment of forgery: it was an offence chiefly committed by persons of ability and information, and whose ability and information frequently gave them the means of committing it to a great extent: for instance, in the case of Fauntleroy, the forgeries which he committed amounted to above 400,000 l. If the capital punishment were entirely remitted, some secondary punishment must be substituted. Now, however mischievous

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and extensive was the crime of Fauntleroy, he was quite sure that if such a person had been sentenced to such a punishment as two years' hard labour on the public roads, the sympathy of the public would soon have been excited at seeing him degraded to the condition of associating with the commonest and vulgarest criminals. If he had been sent to New South Wales, such a man in that colony would have found that transportation was the slightest punishment that could have been inflicted on him. Looking at these and other considerations, he must deprecate the sudden and entire cessation of the punishment of death for forgery. Let the effect of the measure which he was now proposing be watched. Desirous as they all were of gradually mitigating the severity of our criminal code, he entreated the House not to load such a disposition with the opprobrium which might be cast upon it, should premature efforts prove injurious. Let the progress be gradual and cautious, and he was confident that the object would eventually be attained. It ought to be recollected that the number of offences to which the present law applied was very considerable. Upon the average, every one of the sixty-one Acts which he had described comprehended five distinct offences. Of this, however, he was persuaded, that the mitigation of the punishment would diminish the present facilities which the offender had of escape. It would insure his conviction. There were offences connected with forgery which the existing law did not touch. One, and that a very great one, was the forging of acceptances of individuals on foreign bills of exchange: he doubted if any penalty whatever attached at present to such a crime. It was his intention, however, to remove that doubt, by comprehending the offence in the provisions of his Bill. There were several other offences, the punishment of which was at least doubtful. If an English person dying at Paris made a will, and another will was forged, that offence ought to be subjected to the same punishment as the forging of a will in this country. He meant, therefore, to propose, that it be enacted, that wherever a document of that nature was executed, the punishment of forging it should be the same as if it had been executed in this country. He proposed also to remove a great imperfection in the law, by proposing to alter the law of venue; and to dispense with
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the necessity of proving the place where the forgery was committed, provided the fact itself were proved. He was ashamed to trespass so long on the attention of the House; but he trusted the importance of the subject would be his apology. The right hon. Gentleman here briefly recapitulated the objects, as they regarded forgery, which his Bill contemplated. Connected with the Law of Forgery was the Law of Coining. It was his intention to propose the consolidation of all the laws having reference to Coining, and to mitigate the law with respect to capital punishment, as it affected one offence, in the same manner as he proposed to mitigate it as it affected the other. Should these Bills pass during the present Session of Parliament, little would remain to be done in the consolidation of the Criminal Law. He had been encouraged to pursue the course which he was pursuing, by the fact, that in no single instance had what had hitherto been done proved injurious. Although so many statutes had been repealed by his former measures, no evil consequence whatever had resulted. He could not conclude without repeating his deep obligations to the two gentlemen whose invaluable assistance he had obtained in the preparation of his measure. The one was Mr. Hob-house, who, having fulfilled the duties of Under Secretary of State for several years with great zeal and ability, had retired into private life, retaining his disposition to be serviceable to the public. The other was his friend Mr. Gregson, whose aid had been most material. Nothing could exceed the zeal of that gentleman in the work; and to him and to Mr. Hobhouse the country was greatly indebted for their persevering exertions. The right hon. Gentleman concluded by asking leave to bring in a Bill to amend the Law relating to Forgery.
Mr. Fowell Buxtonsaid, that though he could not but be disappointed at some parts of the speech of the right hon. Gentleman, there was much in his statements which met with his cordial approbation. It was but justice to him to declare, that he had introduced very many, and very great improvements into our criminal law. The right hon. Gentleman had, in former years, swept away a multitude of capital enactments, in which the crime on the one hand, and the penalty on the other, were so utterly at variance, and in such monstrous disproportion, that those laws never

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were, and never could be, carried into execution. Again, he had rendered the law clear and definite, by collecting into one statute enactments which had previously been scattered over many. Again, he had given us a vigilant and effective police. He had improved the discipline of our gaols, and to such an extent, that while in former times England stood as low, or lower than any nation of Europe, in that respect, it was not, perhaps, too much to say that now she equalled, perhaps surpassed, every other country. Finally, he had rendered our secondary punishments efficient; transportation had in former days been a bounty upon crimes; the condition of those who were so fortunate as to be convicted of a transportable offence was positively improved. Under the administration of the right hon. Gentleman, this was no longer the case. For these benefits, he, for one, felt grateful; but nothing that had been said or done by the right hon. Gentleman had afforded him so much satisfaction as the language and the sentiments which he had this night promulgated. Not that he (Mr. Buxton) thought that the right hon. Gentleman had gone far enough,—not that he thought that right hon. Gentleman had acted up to his own principles, still less to those of Lord Bacon,—not that he thought that the law as to forgery, after passing through his hands, would not retain a great deal too much of its original ferocity,—but this was his satisfaction, that the enlightened mind of the right hon. Gentleman was turned to the consideration of the question; and he knew that that inquiry, if pursued, would inevitably lead him to the conclusion, that excessive severity defeats its own purpose, and causes the crimes which it is intended to repress. His hon. friend (Sir James Mackintosh) much lamented his inability to attend in the discussion of a question in which he felt so deep an interest, and in the advancement of which he had so large a share. He had commissioned him (Mr. Buxton) to announce his intention of introducing a bill, repealing the penalty of death for forgery. He was also disposed to introduce one sweeping measure, confining punishment of death to cases of murderous violence. Whenever he introduced those measures, Sir J. Mackintosh should have his cordial support. Whether he would persevere in his intentions this Session, after the concessions of the right hon.
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Gentleman, it was not for him to determine. Understanding that what had been done to-night by the right hon. Gentleman was only a forerunner of larger improvements, he should be not dissatisfied if the matter were left for the present in the hands of the right hon. Gentleman, and he could not but confess, that the country had gained a great deal, if they gained no more during this Session than what had been conceded this night.
Mr. Lennardalso expressed the great satisfaction with which he had listened to' the right hon. Gentleman. At the same time he regretted that the right hon. Gentleman had not gone further. He did not, however, distrust the right hon. Gentleman, and therefore looked forward with hope to a future period when more would be done. The right hon. Gentleman had spoken of the difficulty of fixing on a secondary punishment as an obstacle in the way of abolishing the punishment of death. Now, although hard labour in the country might not be a fitting punishment, he did not see why hard labour in the West Indies, or other colonies, might not be so. In his opinion, the fear of it would operate more effectually to deter from the commission of crime than the fear of capital punishment. Among other things, the country was greatly indebted to the right hon. Gentleman for this, that he had relieved the question of the mitigation of the Penal Code from the odium of being considered a party question. He remembered the time when every proposition similar to that of the right hon. Gentleman was considered to be made in hostility to the Government and the laws. The right hon. Gentleman had the high credit of having destroyed all such prejudices.
Mr. Spring Rice Mr. Spring Rice, entertaining the same feelings which had been expressed by his hon. friends who preceded him, could not remain entirely silent on an occasion so interesting to humanity and the public good, He thought that the mode which the right hon. Gentleman had adopted was very ingenious, and was well calculated to diminish the obstacles in the way of the attainment of his wish. For his exertion the right hon. Gentleman would receive that most gratifying reward, the approbation and applause of every man in the country whose approbation and applause were valuable. He hoped, however, that the right hon. Gentleman

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would attend to the Departmental Bill as well as to that for which he had that evening moved. While, however, he admitted the great obligations which the country owed to the right hon. Gentleman for what he had already done, and while he was anxious not to urge him beyond a wholesome speed, being satisfied, on the contrary, that to outrun the public feeling, or to create an alarm out of doors, would be most pernicious to a system which could be advantageously supported only by public opinion—he regretted that the right hon. Gentleman had not at once determined to go further. But although the right hon. Gentleman had postponed the consummation for which he (Mr. Spring Rice) wished, he was persuaded that he had not postponed it indefinitely; but that his object was, to approach it by degrees and with caution. On one point, however, in the proposed measure, he would take the liberty of remarking. The right hon. Gentleman proposed to retain the capital punishment as applicable to the forging of Promissory Notes and Bills of Exchange. Now, in his opinion, Bills of Exchange and Promissory Notes stood on different grounds; and however grave the offence of forging Bills of Exchange, it was not to be compared to the offence of forging Promissory Notes, which passed at once, and without difficulty, from hand to hand. He confessed, therefore, that he should think the right hon. Gentleman's Bill more perfect if it removed capital punishment from the offence of forging Bills of Exchange. He wished that the discussion had come on earlier, that he might have entered more into the question.
Mr. Alderman Thompsonwould not acknowledge any difference in the offences of forging Bank Notes and Bills of Exchange. Immense sums were employed in London in the discount of bills, and every protection ought to be given to them against forgery.
Mr. Trantthought, the country would be disappointed on learning that a greater mitigation, or rather the total abolition of the punishment of death, had not been proposed. He declared that were he a juryman, and had to give his verdict on a man who had been guilty of sheep-stealing, he would rather commit the minor crime of perjury, by giving a verdict contrary to his oath, than, by condemning the man, be accessory to what he considered nothing short of the crime of murder.
Mr. Martincould not make up his mind to the total abolition of the punishment of death; but if such a measure were to be adopted, it should at all events be carried slowly into effect. He had, therefore, heard the right hon. Gentleman's statement with great satisfaction.
The Solicitor Generalsaid, he should be sorry if the measure of his right hon. friend should be construed into a preliminary for abolishing the punishment of death. He believed great alarm would be excited in the country if it was understood that this was only a preparatory step to that measure. Whatever might be the opinions of enlightened persons, the country at large was not prepared for the abolition of capital punishments. If the measure was found to work well, then the House might go a little further.
Mr. Bensonwas of opinion that the right hon. Gentleman had gone as far as the state of feeling in the country would allow him.
Leave was then given to bring in the Bill, which being done by Mr. Peel, it was read a first time, and the second reading fixed for Monday, the 26th of April.

MINUTES.
Returns Presented. Account of the weekly amount of Wheat purchased in the Markets of Liverpool and Manchester; with weekly Returns of Wheat from Lancaster, Preston, Wigan, and Warrington. Account of the number of Vessels which had passed the Sound during 1829.
Lord STANLEY, General GASCOYNE, Sir T. ACLAND, and Mr. BASTARD, brought up a Bill for amending the Liverpool Harbour and Pocks, together with several other Private Bills, to which the House of Commons had agreed; all of which were read a first time.
Petitions Presented. By the Earl of DERBY, from the Owners of Victualling Houses in Great and Little Bolton, Lancashire against any alteration in the Licensing System, By the same noble Lord, from the Protestant Dissenters of Hanover-street Chapel, Pall-mall Chapel, Cockspur-street Chapel, and twenty other Meeting-house Congregations in Liverpool, praying for the abolition of Burning of Widows in India, and other unchristian practices—By the Bishop of Chester, similar Petitions from Congregations of Dissenters at Rochdale and Bretherton. By Lord KING, against the Com Laws, from the inhabitants of Kidderminster. By Earl GOWER, from Newcastle-under-Lyme. and other places in Staffordshire, praying that the Trade to China, might be thrown open. By the same noble Lord, from Shelton, Burslem, and other places, for the abolition of Slavery. And by Lord HOLLAND, from Protestant Dissenting Congregations at Over-Darwen, Lancashire, against the Burning of Hindoo Widows; and also for throwing open the Trade to China.— Referred to the Committee on East-Indian affairs.
Returns Ordered. On the Motion of the Earl of MALMESBURY, of Commitments and Criminal Convictions, in the different counties of Ireland during the last seven years; and also of the different counties of Scotland.

ADMINISTRATION OF JUSTICE.
Lord Kingsaid, he had been intrusted with a Petition respecting the Administration of Justice in this country, which for several reasons was entitled to an attentive and serious consideration. It was most numerously signed, and by persons of the highest respectability, resident in the metropolis. Amongst the signatures would be found that of the most eminent lawyer at the Irish bar, (Mr. O'Connell) and the peti-

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tion, he was given to understand, had been drawn up by the celebrated author of the "Fragment on Government," and of the "Defence of Usury,"(Mr. Jeremy Bentham), whose knowledge of jurisprudence was so eminently conspicuous in his writings. The terms in which this document was couched, furnished abundant internal evidence of its literary parentage, as the style which distinguished the writer's former productions was discoverable throughout. It set forth, that the petitioners, when they sought for information concerning (he legal Administration of Justice in England, were referred to the Statute Law and the Common Law as the sources to which they should look for wherewithal to satisfy there inquiry. They found, however, on examination, that the Statute Law covered more letter-press than it was possible to lift, and that the Common Law was sufficient to fill libraries not capable of being contained within that House. The noble Lord concluded with expressing his own opinion, that a proper division of labour in the Administration of Justice, would be found to produce as beneficial a result as the adoption of the principle had already effected in the mechanical arts and manufactures; the facilities which it afforded in the interesting process of pin-making sufficiently attested the practical advantages which would generally accrue from a division of labour.
Petition laid on the Table.

IRELAND.—DUTY ON COALS.
The Marquis of Angleseysaid, he should solicit the attention of the House, and of his Majesty's Ministers more particularly, to a Petition which he had the honour to present from the inhabitants of the parish of St. Catherine, Dublin, signed by 111 Merchants, Manufacturers, and Traders of that City, praying for a remission of the duty on Coals imported into Ireland. That such a petition should have been intrusted to him was matter of regret, as he could not, without pain to himself, and without risk of his health, address their Lordships at any length upon the subject, whereas other noble Lords would have been more efficient in its advocacy, although none could be move sincere in zeal. It ought to be recollected that Ireland had not the advantage of those inexhaustible collieries which this country enjoyed, as the ablest engineers had given it as their opinion that in Ireland, though not destitute of Coals, the Coal-mines were scarce, and that the fuel
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which they produced was of bad quality, and for the most part unfit for consumption. With the knowledge of this fact ever before them, it appeared to him to be their duty in point of policy alone, to give every encouragement to the importation of Coal from Great Britain into Ireland. It would be in the highest degree advantageous to themselves that a material should thus be transferred to that country, which would furnish the means of employment to its idle population. Of the Irish people he would venture from experience to assert, that a more industrious or ingenious race, who were anxious to obtain honest bread by the sweat of their brow, was not to be found under the sun. There was no measure for the remission of this tax, he believed, at present under the consideration of Government: but he could not conceive what possible objection could be suggested, except only the reduction of the Revenue to the extent to which this tax had increased it. But the repeal of the duty he had no doubt would create, even within a single year, such a stimulus to the manufacturing interest of the country, that all the advantage so lost would be recovered. The amount of the tax on the importation of Coal was but 50,000 l., and a substitute for that sum could be very easily procured. He would propose one which he had turned in his own mind, and was satisfied that it might be adopted without inconvenience. They could make a reduction to that amount from the public payment made for the constabulary force, and fix it on the counties, which would be responsible for their respective proportions to supply the deficiency of the Revenue, which would be occasioned by abolishing the duty on Coals. He moreover felt assured, from the manner in which the people had gone on since the bestowal of the great been which had been last year conferred on them, that the counties would not long have to endure this additional burthen, as the constabulary force might very soon be considerably reduced. Great as that been was on all hands admitted to have been, it was impossible that it could have done all for Ireland which the circumstances of Ireland required. It certainly appeared that the interests of their Irish fellow-subjects had been entirely overlooked throughout the whole of those arrangements which a Minister of the Crown had lately announced in another place. By the reductions pro-

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posed, Ireland would benefit only to the amount of the 50,000 l. annually which the repeal of the Leather duty remitted, while there was an increase of duty on Spirits of not less than 150,000 l.; and an additional tax was likewise imposed upon Stamps; so that whilst this country, in consideration of its distresses, was relieved to the amount of 3,500,000 l, the people of Ireland were told that their burthens, which aggrieved them but too much before, were to be increased by 100,000 l. annually. The present Petition was the first which had been brought before the Legislature, but he had reason to believe that many of a similar nature were in preparation. Of this he was most certain—the been prayed for, if conferred, would be received with the gratitude which constituted a proverbial characteristic of the people.
Petition read and laid on the Table.

TITHES.
The Marquis of Anglesey, presented a Petition from certain landowners in Wexford, against the present Tithe-system, as it existed in Ireland. The Petitioners complained of the hardship of being compelled to pay the ministers of a Church with which they had no connection, and from which they derived no benefit. The Tithe-system in Ireland was of no use, as the petitioners thought, except to enable the Clergy of the Established Church to wallow in wealth, luxury, and extravagance, inconsistent with their Christian profession. The system, as it operated in Ireland, had also a most mischievous effect on the morals of the people, for it was the source of many assassinations and other crimes.
The Petition laid on the Table.

DISTRESS.
The Bishop of Bath and Wellspresented a Petition from Shepton Mallet, complaining of Distress, and praying for Relief. The right rev. Prelate supported the prayer of the Petition, and vouched for the correctness of its statements. By every principle of humanity and justice that House was bound, he said, to institute an inquiry into the causes of the distress, for the legislature should treat the people as a father would treat his children, Sound policy also demanded it, for by doing so, the legislature would earn the gratitude of the people. It was impossible for any language of his to do justice to the heroic fortitude with which they had submitted to their distress;
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uttering no sound of complaint, and being guilty of no breach of the law. Their conduct strengthened their claims to be heard, and he could not conceive it possible that an inquiry by their Lordships should not lead to some means of giving them relief. Such a supposition was a satire upon legislature. He had, on a former occasion, presented a similar petition to their Lordships, and had accompanied it by a statement of the distress which existed in his own immediate neighbourhood, and sorry he was to observe, that there the distress was unabated. He felt it his duty to be on the spot, to do what an individual could to relieve the distress; but he must say, it required a more powerful arm than his.
Petition laid on the Table.
Earl Beauchamppresented a Petition from Worcester, signed by 2,800 persons, complaining of Distress, and praying for a revision of the Currency, and Parliamentary Reform.
Earl Stanhopebore testimony to the general existence of the distress complained of, and read extracts from a letter, which, he said, was written by one of the cleverest men he was acquainted with, to justify his opinion. One-third of the unentailed estates in Scotland, he was informed, might be found in the market; and Scotland, instead of being prosperous, as had been stated, was in great distress. The people about Glasgow, he was informed, were living chiefly on provisions imported from Ireland; and on a line of road near Berwick, there were several estates unoccupied. The distress at Leeds had been denied in the teeth of a petition signed by 50,000 persons; and the writer of the letter informed him, that the statements of that petition were too true. The increase of Tolls, which had been quoted in another place as a sign of prosperity, had no foundation; in fact, during the last four years the Tolls in the neighbourhood of Birmingham had decreased from 3,990 l. to 2,809 l. The increase which had been referred to of licensed traders, was also a proof of distress; for people who could not live by their usual business took out licenses to sell tea and tobacco, in the hopes of eking out their scanty means of subsistence. As to Birmingham not being distressed, the number of paupers who received relief in January 1829, was 2,103, and in January last, 3,276, being an increase of 1,173.

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Much of this distress was undoubtedly owing to the want of protection, by which the English artizan was exposed to foreign competition. He had never attributed, however, the distress of the country to Free Trade exclusively: it resulted, he had no doubt, from a combination of causes, of which the Currency appeared to him the principal cause, judging as he did from the universality of depression which had existed since the operation of the bill of 1819. The noble Earl then took a brief review of the state of the currency between 1774 and Mr. Peel's bill of 1819, contending that before that measure was passed, silver was always the standard of value, and that that measure was founded in delusion; that none of those who were advocates for a return to a metallic currency had contemplated that it would occasion a depression of more than four or five percent in prices; that Mr. Ricardo had stated, that if the return to a metallic currency should produce a depression of twelve per cent, the attempt would be one of great peril; but if he could contemplate such a reduction as twenty-five per cent, from a return to a metallic currency, he should consider the attempt an act of insanity. The noble Earl, after pointing out a variety of ways by which the defects of the present system might be remedied, the principal of which were making silver at its present standard a legal tender to any amount, and allowing the issue of a small-note circulation by licensed bankers, they giving security cither in land or bullion for the amount of paper issued, proceeded to state, that in France, in Austria, and Prussia, the governments had given encouragement to paper issues, by which great benefit had been derived to those countries. In France, a bank on the Scotch principle had been established, which issued notes for 20-francs; and in Prussia the government had issued notes of the value of 5s. These measures had been productive of great benefit, and nothing, he contended, could relieve the distress of this country but some similar measures. He hoped that their Lordships would have an opportunity at no distant day of discussing the currency question at length, for it was impossible that it could be suffered to rest. His Lordship moved that the Petition be laid on the Table.
The Marquis of Butedenied that distress existed so generally in the country as the noble Earl (Stanhope) seemed to
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believe. There was distress he admitted, but neither so severe nor so general as was said; and wherever he went he heard from every one who spoke of the state of the country, that "the worst was past." With respect to Scotland, he could state, from his own knowledge, that the condition of the labouring poor was not so bad as many had represented, and he must deny that one-third of the unentailed estates of that country were in the market for sale. He admitted that the number of estates at present offered for sale in Scotland was greater than usual, because land was a better medium of investment there than in England, and a considerable amount of British capital was employed in that way. The reason why so many were in the market together was this,—that those about, to become purchasers were advised to wait, to try whether a lower price than at present demanded might not be accepted.
Earl Stanhope, in reply, said no doubt land was a better mode of investment in Scotland; but it was not a little singular that, under those circumstances, so large a number of landed proprietors in that country should be anxious to sell their estates. He repeated there was great distress in the country, and in one county (Worcester) there existed great irritation and exasperation amongst the lower orders against the higher, and if some remedy was not found to remove the distress, that exasperation would increase to an extent to be dreaded.
Petition to he on the Table.

POOR-LAWS (SCOTLAND.)
Lord Napierbrought in a Bill for the better regulation of the Poor Laws in Scotland. The noble Lord said, as some misunderstanding-existed with respect to the object of this Bill, he wished to state, that there was nothing whatever in it subversive of the fundamental principle of the Scotch system of Poor-laws. He had brought in a bill on the subject last Session, but had since remodelled the whole; and introduced a variety of improvements.
Bill read a first time, and to be printed.