Sitting of 7 July 1837

MINUTES.
Bills. Read a third time:—Central Criminal Court; Bank of Ireland; Church Notices; Corporate Property (Ireland).—Read a first time:—Small Debts (Scotland).

DUTY ON FIRE INSURANCE.
Colonel Sibthorpexpressed his regret that on his at length bringing forward a motion of vast importance he should be compelled to do so in so thin a House. The duty now paid on fire insurances was a tax of 200 per cent. upon the rate at which insurances were effected; that its excessive pressure operated as a tax upon common prudence and forethought. It was a fact well known that more than two-fifths of the amount of property in England was insured, not more than one-half in Ireland, and not more than one-third in Scotland. If a reduction were made in the rate of duty of 100 per cent., that was to say from 3s. to 1s. 6d. per cent., he was confident it would lead to an increase of the revenue. The total amount of duty now collected was 802,701 l. At present there were innumerable instances in which insurances were effected in foreign offices. He knew of one case where a single house insured 100,000 l. annually in a French company. The Chancellor of the Exchequer to be sure was in this position, that he was worse off than if he had nothing in his treasury; but let him declare his intention to do something in this matter. The hon. Member concluded by moving "That it is the opinion of this House that the duty now chargeable on all insurances against fire, at the rate of 3s. per cent. on each policy, shall cease; and shall henceforward be at the rate of 1s. 6d. in lieu thereof, on all such policies, being a reduction of one-half of the former amount."
Mr. Humeseconded the motion.
The Chancellor of the Exchequercontended that the very admission of the hon. and gallant Officer that the exchequer

1845
was in a worse position than if there was nothing in it was the best answer that could be given to the motion. There was a deficiency in the last quarter, as compared with the other, of 865,000 l. How could a revenue then of 400,000 l. be given up? If there had been a surplus instead of a deficit in the quarter's revenue, the case would have been widely different. At the same time he must declare as he stated on a former day, that in the circumstance of the present deficit, as compared with the corresponding quarter, he saw nothing to create the least alarm with respect to the stability of the finances of the country.
Dr. Bowringconcurred with the hon. and gallant Member for Lincoln (Colonel Sibthorp) in the propriety of reducing the duty on insurances.
Motion negatived.

CANADA.
Mr. Humeseeing the state of the House did not intend to press the motion of which he had given notice for an Address to her Majesty, that she would be pleased to disagree to an Act of the Legislature of Upper Canada, 7 Wm. 4th., c. 17, entitled, "An act to prevent the dissolution of the Parliament of this province, in the event of a demise of the Crown." But, at the same time, he was anxious to put a question to the noble Lord (Lord John Russell) upon the subject. Was the noble Lord aware that by the act of the provincial Legislature to which his motion referred—an act carried only by a majority of eight—the sitting of the provincial Parliament would be continued for four years after the demise of the Crown, instead of the ordinary constitutional period of six months? On the part of the Canadians he begged to protest against the whole of the conduct pursued by Sir Francis Head with respect to that Bill. In the first place he complained that Sir Francis Head, having by corrupt means got a Parliament to his liking, induced them to pass an act to continue their sitting for four years; and in the next place he complained that Sir Francis Head had exercised an unconstitutional power in giving the assent of the Crown to a Bill which went to deprive the Canadians of that part of their constitution which gave them an election within six months from the demise of the Crown. The conduct of the governor upon that point was, in fact, illegal, be-
1846
cause, as the noble Lord must be well aware, every measure passed by the provincial legislature effecting a change in the constitution of the province required to have the royal assent signified to it, not through the medium of the governor acting for the Crown, but directly from the Crown itself. Therefore, on behalf of the Canadian people, who were highly dissatisfied with the measure, he asked the noble Lord to disagree from it, and to allow the people to have another election within the constitutional period.
Lord John Russellsaid, that the hon. Member was not justified in calling the act of the provincial legislature an illegal act, inasmuch as that it was distinctly within the power of the Houses of Assembly, acting upon former precedents, to determine that the provincial parliament should not cease, notwithstanding the demise of the Crown. The hon. Member was mistaken in supposing that the act of Anne, which applied to this country, and which required a new election within six months after the demise of the Crown, applied also to the colonies. The provinces of Lower Canada and of Nova Scotia had on former occasions agreed to resolutions, and framed and passed acts founded upon those resolutions, declaring that the Parliament should not be dissolved in case of the demise of the Crown; and he (Lord John Russell) confessed that he could see nothing improper or illegal in these acts. Whatever the necessity at home might be, he could not conceive it requisite with respect to those distant provinces that there should be a fresh election immediately on the demise of the Crown. But the hon. Gentleman had raised another question, namely, that Sir Francis Head had exercised an unusual power in sanctioning this act, instead of reserving it for the consent of the Crown. There was no positive law to prevent the governor of the province from signifying the royal assent to an act of this kind; but at the same time he must admit that there was a general instruction, according to which the governor should reserve a measure of this description for the direct consent of the Crown. Sir Francis Head would have acted more wisely if he had guided himself by that general instruction, and had not given the assent of the Crown in his capacity as governor. It was a point, however, merely of discretion—there was nothing unconstitutional or illegal in the

1847
course that had been pursued. He was bound also to state that if the act had been reserved for the direct assent of her Majesty, her Majesty's Ministers would undoubtedly have advised that the regal assent should be given to it. As to the general allegation against Sir Francis Head, of having employed corrupt means to obtain a corrupt and subservient Parliament, he would only observe that inquiry proved that allegation to be perfectly groundless. Sir Francis Head had not been guilty of any one of the corrupt practices of which he had been accused; on the contrary, it distinctly appeared that his conduct had been such as to give general satisfaction.
Motion negatived.

MINUTES.
Bills. Read a second time:—Civil Bill Courts (Ireland); Treasurers of Counties (Ireland); Bills of Exchange.

FINAL REGISTER OF ELECTORS BILL.
The Earl of Radnor The Earl of Radnor moved the second reading of the Final Register of Electors Bill. The chief object of the Bill was to preserve the right of voting to voters who should happen to change their residence
1836
between one registration and another. Now he thought it exceedingly hard that a party under such circumstances should be deprived of the elective franchise. The Bill also provided that votes, which were undisputed before the revising barrister, should not be brought in question before an Election Committee. This he thought a useful arrangement, and fully in accordance with the arrangements provided by the Reform Bill for the registration of voters.
Lord Redesdalemust object to a measure, the principle of which was to give persons a vote who had no qualification, merely because he had happened to have had one at a former time; and, even though he felt no hostility to the principle of the Bill, he should object to its passing on the eve of a general election. He moved as an amendment that the Bill be read a second time that day three months.
The House divided on the original motion: Contents 34; Not-contents 67: Majority 33.
Bill put off for three months.

SUCCESSION TO THE CROWN.
The Lord Chancellor The Lord Chancellor moved the third reading of the Bill to provide for the Government of the country on the demise of the Crown.
Lord Broughamhad, he said, some objections to make to this Bill. Although, he said, the monarchical form of Government might be chargeable with many defects, and from necessity it must be charged with them, yet there were some advantages of a paramount nature connected with it, and which must render it preferable to others. There was, in his opinion, no one advantage connected with monarchy, and especially with a limited monarchy, such as it was happily in this country, greater than this—the certainty of the succession to the Throne. Everything, then, that touched the certainty of the succession was of the utmost possible importance. In considering the proper manner for supplying the royal authority, it was considered to be indispensable that they should recognise the next in succession to the Throne who was of full age and of perfect capacity. In 1705, if there had been a person so situated in this country, there could be no doubt he would have been recognised in the Act then passed for providing for the Government of the country in the absence of the descendants of the electress, Sophia. It

1837
happened, however, at that time, that there was no such person to be found in this country; but in 1751 and 1761, when a person was empowered to act as custos regni, there was fixed upon to be in the council of regency the person next in succession; such person was inserted in the Bills passed upon both occasions, Their Lordships were aware that there was a vast difference between lords justices nominated by the King, and lords justices such as were created by the present Bill. They were only the same in name. In the one case the lords justices were the lieutenants of the King; they acted under his control, and by his instructions, while in this case there was an absolute investment of the royal authority in those persons, subject to the restrictions contained in this Bill. His Majesty, the King of Hanover, could not, until he made the proper declaration, have all the functions of royalty in this country. Until he did that he could only have the powers conferred upon him by the present Bill. The circumstances, however, upon which they were legislating were such as were not likely to happen, and he hoped to God! might not happen—a prayer and a hope in which he was sure he was joined by their Lordships and all her Majesty's subjects. What they were providing for was a remote possibility, but one still which might happen; and if, instead of eight or ten days, his Majesty was to be absent for months from this country, supposing him to be prevented by illness, a case much more likely to occur—certainly not so improbable as his surviving their present Sovereign—supposing him to be absent for three months (for in this case they were going upon possibilities), then they ought to adhere to strict constitutional principles, and they ought not to do anything which was inconsistent with, or repugnant to, those principles—that which he believed they were doing in this Bill, by not including amongst the lords justices the next in succession to the Throne, of full age, and resident in this country. His proposition was not by name to include the Duke of Sussex in the present Bill as the next in succession; his object was not to single out any individual by name, but to take the description of that person as being one of full age, resident in the country, and next in succession to the Throne. It was true that if the son of the King of Hanover,
1838
the Crown Prince, were in this country, and that he was of full age, then he would be the person. If neither he nor the Duke of Sussex were here, then the person to whom the description would apply would be the Duke of Cambridge. What he objected to was the omission of the name of any such person. He had — another objection to urge—it was the insertion of the Lord Chief Justice of the King's Bench as one of the lords justices. He was sure he should not be considered guilty of disrespect in thus arguing upon a matter which, after all, was only one of a bare possibility. As he meant no disrespect to that Sovereign, he was sure his motives could not be misinterpreted, nor that he could be thought guilty of any disrespect to the Chief Justice of the King's Bench, when he objected to the insertion of his name amongst those of the lords justices. He objected to his being vested with high political functions, when at the same time he exercised the highest civil and criminal jurisdiction. It was well known by his noble and learned Friend that the latter was exercised by him with honour to himself, with advantage to the country, and with the greatest credit to the law. But such a junction of offices ought not to be allowed by Parliament to be made in the person of any individual. He had rather see these offices combined in the hands of his noble and learned Friend than in those of any other individual: but he thought it was contrary to the true principles of the constitution to invest a person who exercised such high civil and criminal powers also with the functions of a political regent. What were the consequences of precedents? From one precedent came another;—if it were bad, from the bad came something worse. Thus they found the Act of 1705 was taken as a precedent for that which was done in 1806. What was the main authority upon which was grounded the act of the Government of 1806?—an act upon which he, as an individual, ventured to express his opinion —for they were only the opinions of a private individual—but which were still strongly in opposition to what was then done—that was, placing an eminent judge, the Lord Chief Justice Ellenborough, in the Cabinet formed in 1806. He always thought that a most unfortunate Act on the part of the Administration of the day, and one such as he was sure no one now

1839
would be found to advocate. And yet in that case the putting a Lord Chief Justice in the Cabinet was justified by a precedent—that precedent being chiefly the Act of 1705. He considered that the argument which would exclude a Chief Justice of the King's Bench from the Cabinet ought also to exclude him from the regency. The noble Lord concluded by moving that the next in succession to the Throne, of full age and resident in the country, should be included amongst the lords justices, and also that the Chief Justice of the King's Bench should be excluded from being one of the lords justices.
The Duke of Wellingtonconsidered that there was a clear distinction between the Bill of 1705 and the measures referred to for appointing regencies in this country. These regencies were to provide for a certain event, and were brought into the House under the immediate authority of the Crown, and which it was the duty of the Crown itself to provide for. But now the case was quite different. Here the case to be considered was that of the succession of the next heir, who happened to be absent from this country, and most probably would continue to be absent. They were, then, to look to what Parliament had done formerly, and what they had provided for in that event. Persons were nominated to the regency who possessed all the confidence of Parliament and the public—men of high office—the great officers of State—the Archbishop of Canterbury, and others, known to the country, and known to possess its confidence; and means were also provided for the person who succeeded to the Throne to nominate the persons who possessed his confidence to be also in the regency. But the noble and learned Lord said that they ought to put into the regency the names of certain other persons of a certain description, because their names were introduced into other regencies appointed for another purpose, and in a different manner. Now, provision was made for the Sovereign having such persons in the regency if he thought it right that they should belong to the regency; and if he did not, why should Parliament place such persons in the regency? He, therefore, recommended their Lordships not to adopt the amendment of the noble and learned Lord. With respect to the appointment of the Chief Justice of the King's Bench,
1840
he agreed with the noble and learned Lord that it was highly improper to introduce a Chief Justice into the Cabinet; but in forming a council of regency, where there were six other great officers, with seven or ten others to be named in the absence of the Sovereign, the exercise of his functions could not be attended with any injury to the public. It was to be observed, that in Ireland the Chief Justice had frequently been named one of the lords justices. At this moment the Chief Justice of the Queen's Bench was one of the lords justices, in the absence of the Lord-lieutenant. He did not know but the noble and learned Lord himself had been a party to such appointments of the Chief Justices in that country. He did not see any distinction between a Chief Justice in Ireland being one of the lords justices, and a Chief Justice in England being one of the council of regency in this country.
The Lord Chancellorconsidered that cases of precedent ought to be attended to in matters of this description. Regencies had been appointed on account of the incapacity of the Sovereign, or to provide for the exercise of the royal authority in the absence of the Sovereign. The Bill provided, as far as possible, to put the Government of the country and the Sovereign in the same situation in which they would be if the Sovereign were here at the moment of the demise of the Crown and were about to leave the country: The Bill put it in the power of the Sovereign by anticipation, before the crown descended to him, to specify those individuals in whom he placed confidence, and in whom he wished to vest authority till he could return to this country to exercise it himself. It might happen that the heir presumptive would not exercise the power of selection which the Bill gave him; and that emergency the Bill also provided for, by-appointing certain persons who were holding high offices in the State at the moment to exercise the authority of the Crown. Those individuals would either exercise the authority in conjunction with those who had been named by the Sovereign, or, in default of any others having been named, by themselves. The Bill selected the head of the Church, and it selected the highest permanent officer of the law, persons who might be supposed to be above the contests of party; and those individuals were named, not for the

1841
purpose of permanently exercising the power of royalty, but to preserve things in a proper state till the successor to the Throne should himself appear to assume the authority which belonged to him. The precedents were for the most part regent precedents; they were cases which provided for the incapacity of the Crown. The only precedent in which provision was made during absence was the Act of Queen Anne, on which this measure was founded. He must say taking all the circumstances into consideration, he was in favour of the Bill as it stood. The other precedents alluded to by his noble and learned Friend would be applicable if this case were one of regency; but he must say he could see a very great distinction between Parliament appointing a regency on account of the incapacity of the Sovereign to exercise all his prerogatives, and appointing a regency because of the Sovereign's absence at the time of his succession, and his not being able for that reason to exercise his prerogatives. In his opinion such a Bill as the present ought to leave to the sovereign the full exercise of his authority, and should only interfere to the extent necessary to preserve his authority for him unimpaired till he appeared to assume it. With respect to the other point alluded to by his noble Friend, so far as he strongly objected to the union of political duties with those of the highest permanent law officer of the Crown, he entirely concurred with him; but he thought the provision they were now making not liable to that objection: the two officers appointed by the Act of Queen Anne, viz. the Archbishop of Canterbury and the Lord Chief Justice of the Court of King's Bench, were selected because they were individuals not likely to be influenced by party feelings, and also, in all probability, would possess the confidence of the country.
Lord Denmanthought he might be excused if he said a few words with respect to both the objections urged by his noble Friend. As regarded the first, he could not help thinking it desirable that royal personages should not form a part of the council. He thought it possible to conceive that if they did there might arise a collision of interests which would be more properly guarded against by taking a course which would simply insure that the royal authority, as it existed at the demise pf the Crown, should be handed over by
1842
the lords justices to the successor. That being the sole object of this Bill, it appeared to him better that all persons near the Crown should be excluded from the assumption of any of its powers. The considerations suggesting such a view of the question were obvious. He was of opinion, that it was desirable they should abide by the precedent they had, where it was a clear one, though all the circumstances of the case were not exactly similar. With regard to the observations his noble and learned Friend had made respecting himself he was not disposed to say to him. "Et tu Brute," though he had expressed it as his opinion that the Chief Justice of the King's Bench ought to be excluded; but he thought he might almost be justified in supposing that his Noble and learned Friend had been induced by his personal regard for him to raise this point, in order that he might have the opportunity of speaking of him in those terms of undeserved eulogy which their Lordships had just heard. However that might be, he was quite sure that no proposition which emanated from his noble and Learned Friend could be prompted by anything like an unkind feeling towards him. In whatever manner he as an individual, might be affected by the opinion, he should consider it his duty to say that he thought there were considerable objections to departing on the present occasion from the precedent formerly set, and which, by-the-way, was framed in the best times of the English constitution, and by some of the most eminent of the men of those times—he believed the act was drawn by his revered predecessor, Lord Holt.
Lord Wynfordopposed the amendment, and recommended their Lordships to abide by the precedents which had been referred to.
Lord Ellenborough Lord Ellenborough, as some reference had been made to his noble Father, begged to be allowed to repeat a remark which he remembered to have fallen from him in connection with this subject. He remembered to have heard him say, when it was first proposed to him that he should have a seat in the cabinet, that he recollected Lord Mansfield had been in the Cabinet for a considerable period, and he was not aware of any objection having been urged against it. He accepted the office without much further consideration, with the understanding that his doing so would very much facilitate the formation

1843
of the Government. He said, subsequently, "he thought that those who defended the appointment had the best of the argument;" but he also said, that "if it were to do again he would not do it."
Amendment negatived, Bill read a third time and passed.

PROTEST.
Lord Broughamentered on the Journals, the following protest against the rejection of the motion for placing the Duke of Sussex among the Lords Justices, and leaving out the Lord Chief Justice of the Queen's Bench.
"Dissentient,
"First, Because the greatest recommendation of the Monarchial form of Government is the certainty which it affords of undisputed succession, and, therefore, every thing is most carefully to be avoided which tends, however remotely, to break in upon this governing principle of the regal part of the constitution. When provision was making by Parliament for supplying the defect in the royal authority occasioned by the absence from the realm of the King of Hanover, or other next branch of the Royal Family, on the demise of the Crown, the right of succession in the Duke of Sussex, or other next branch not absent from the realm, ought to have been recognised by naming that branch among the Lords Justices. This could not be done in 1707 (6 Ann, c. 7), because all the other branches of the Royal Family were then settled abroad, and most of them excluded from the succession. But in 1751, (24 Geo. 2d, c. 24, and 1765, 5 Geo. 3rd, c. 27) the sound principle was acted upon, and the Princes next in succession were placed in the Council of Regency then formed by the Legislature. The appointment of Lords Justices by the Sovereign, in contemplation of his temporary absence, has no bearing upon the question, both because that is an arrangement of an entirely different nature, and because it is not effected by the authority of Parliament.
"Secondly, Because the appointment of the Lord Chief Justice of England, the first criminal judge of the realm, to be a political functionary of the highest order, exercising the powers of sovereignty, is contrary to every principle of sound policy. It is likewise repugnant to the whole spirit of our judicial system, though sanctioned by precedents in times when the pure administration of justice was far less an object of care than it happily has at this day become; precedents which are in truth the relics of a much more remote and even a barbarous age. It is the more to be lamented that Parliament should now be called upon to sanction such a proceeding, because in 1806, in defending the more reprehensible measure of placing the Lord Chief Justice in the Cabinet, reliance was placed upon the acts of 1707, 1751, and 1765, as affording legislative authority for uniting in the same
1844
person the incompatible functions of Minister of State, and criminal judge. Nor can it now be contended that we are bound by those precedents, for they have in the present measure been departed from in other important particulars; and, if they had, not a departure should at any rate have been made in this particular, since the example of 1806 has shown the evil consequences of Parliamentary sanction being given to so exceptionable an appointment. BROUGHAM."