Sitting of 13 August 1838

MINUTES.
Petitions presented. By Mr. LEADER, from Colonel Stanhope, and others, to secure the Erection of a Statue of Lord Byron in Westminster Abbey.—By Sir C. STYLE, from Scarborough, against the Tithes (Ireland) Bill.

PRISONS' DISCIPLINE.
Sir E. Wilmotsaid, that the bill for the improvement of discipline in prisons having been thrown out in another place, owing, as it seemed, to some misconception respecting separate confinement and solitary confinement, he wished to ask the noble Lord whether they might look for another bill on the subject early next Session?
Lord J. Russellsaid, it certainly was his intention to bring in a bill on the subject next Session, and notwithstanding that the late bill had been lost elsewhere, be should unquestionably persevere in the endeavour to amend the system of prisons in England and Wales.
Subject dropped.

TITHES IRELAND.
The Order of the Day for taking into consideration the Lords' Amendments on the Irish Tithe Bill was read,
Amendments considered and agreed to.
Lord J. Russellobserved, that understanding that an impression existed that the Lords had altered the conditions upon which the grant of money had been made by the Commons, he felt it necessary to say, that on a minute examination of the money clauses, he found that such was not the case.
Lord Stanleysaid, that an amendment affecting one of those clauses had been proposed in the other House, but was withdrawn, lest it might in any degree embarrass the House of Commons.

CANADA GOVERNMENT ACT DECLARATORY BILL.
Lord J. Russellin moving the first reading of the Canada Government Act Declaratory Bill which had been sent down from the House of Lords, said, he did not think it would be desirable or advisable to consider then the merits of the bill, but he would explain to the House the course which he intended to pursue, which, in his opinion, would afford an opportunity of fair discussion and suit the convenience of hon. Members. The bill was founded on an act to make temporary provision for the government of Lower Canada; and for the purpose of indemnifying those who had issued or acted under a certain ordinance made under colour of the said act, with reference to the transportation of certain persons to the Bermudas. His proposition was, that the bill be read a first and second time that evening, ordered to be

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printed and committed to-morrow, when he would take an opportunity of explaining his views, and the House could then enter into a discussion on its merits.
Mr. Leaderobjected to the summary course about to be pursued by the noble Lord, and would take that opportunity of inquiring whether the noble Lord intended to adopt the bill as sent from the other House, or to introduce any amendments into it, and he should also wish to know whether any despatches with reference to the ordinance, had been received at the Colonial Office, from the Governor-general of Lower Canada? The only official announcement connected with the subject that he had seen, appeared in an article published in the Morning Chronicle of that day, and a more disgraceful or discreditable article it had never fallen to his lot to peruse. An extract of a letter written by Mr. C. Buller was published, by which it would appear "that the prisoners petitioned to be disposed of without trial." Now, this he could most positively deny, as the petitioners merely said they would throw themselves upon the mercy of the crown.
Lord J. Russelldeclined saying anything with respect to the line of conduct he should adopt. The bill had been only just sent down from the Lords, and as there had been no opportunity of reading its details, he could not then say whether he should adopt it, or introduce some amendments. With regard to the despatches from the Governor General of Lower Canada, they had been laid before the House of Lords, and if it were thought desirable, should be laid before that House also.
Lord Stanleywould not offer any opposition to the course laid down by the noble Lord, but nothing, except the advanced period of the Session, could sanction the Government in requesting, or the House in allowing, a bill of so much consequence and such public importance to be passed so speedily through its stages. It was desirable that the discussion should take place before the largest number of Members then in town, and he would therefore assent to the proposition of the noble Lord. He reserved, however, the expression of any opinion as to the Indemnity Act, as to the illegality that called for that indemnity, as to the ordinance itself, and as to the right of any power in the Canadas to interfere with clauses in-
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troduced into the former bill, by the legislature of this country.
The Bill read a first and second time.

MINUTES.
Bills. Read a third time:—County Treasurers (Ireland); Duchies of Cornwall and Lancaster; Slave Treaties; Corporate Property (Ireland); Coal Trade (No. 2); Exchequer Bills; Exchequer Bills (Public Works); Four-and-a-Half per Centum Duties; Personal Diligence (Scotland); Ecclesiastical Appointments Suspension; Valuation of Lands (Ireland); Copyright; and Registration of Electors.
Petitions presented. By Lord BROUGHAM, from the Clergy and Magistrates of Deal, for the Repeal of the Beer Act; from various bodies of Methodists, against the Encouragement of Hindoo Idolatry; and from Colonel Leicester Stanhope, and a Committee of Gentlemen, for a measure to compel the Dean of Westminster to allow the Statue of Lord Byron to be put up in Westminster Abbey.

CANADA—DECLARATORY AND INDEMNITY BILL.
Lord Broughamsaid, that in consequence of what passed on Friday, it became his duty to move the third reading of the Canada Government Act Declaratory and Indemnity Bill, He ought

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to remind their Lordships that he introduced this bill, not so much as one of indemnity, but as a declaratory Act. He thought it absolutely necessary to pass this bill in its latter character; and as to the part which related to indemnity, he should, perhaps, have left those who sanctioned and defended the wrong (he spoke, of course, in a legal sense) to move an indemnity for the proceeding. His object was, no doubt, to indemnify, provided he could obtain a declaratory enactment, but, unquestionably, there were reasons why he should not have been the person to volunteer in such an undertaking, when he might have left it in the hands of the official defenders of the measure which he condemned. But as it had happened, that by accident he became the author of the measure for indemnifying these parties, he had no objection to move the third reading of this bill. No doubt what the noble Duke (the Duke of Wellington) had said as to the hardship of officers, even those high in rank in her Majesty's navy, and also of subaltern officers, being placed in a position either of disobeying an order clothed in the form of law, or doing what was absolutely illegal, was very true. He, therefore, thought there was great reason for giving protection to those who were so circumstanced. Protection in this case ought to be much more readily given than in that of a civil wrong, because if the motives were pure, and the party had offended through zeal or rashness, that would be a ground for pardon if a conviction had taken place, and, of course, it would be one for giving indemnity against a criminal prosecution. But where the question was one of civil remedy, and there was no doubt the wrong was done, it was, in his opinion, not perfectly justifiable to take away the party's means of procuring his own indemnity where he not only had meant no ill but done no ill. Such a party was certainly entitled to his compensation in the shape of damages. Notwithstanding these reasons, as he had become accidentally mixed up with the business, he did not hesitate to move the third reading of the bill, sensible as he was that he was making a motion on the part of her Majesty's Government.
Lord Denmanfelt very strong objections to this measure. He had attended to what had taken place on this subject, and had given to it his best consideration. The question arose out of a certain ordi-
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nance issued by Lord Durham, and he was of opinion, that that ordinance was perfectly indefensible in point of law. Whatever powers the Legislature meant to invest Lord Durham with, it was quite clear to him, that they never intended that Lord Durham should carry those powers to the enormous extent to which they had been carried by him. A clause had been introduced into the bill by Sir W. Follett, which, it appeared to him, was wholly incompatible with the exercise of such despotic powers. To declare persons who were absent guilty of high treason, and subject them to the penalty of high treason if they returned to Canada, appeared to him to be a most rash and imprudent proceeding. He entirely acquitted Lord Durham of any improper motive. His object, no doubt, was to prevent the return of those persons to Canada, and his Lordship, he was convinced, believed that return they would not. But surely every one must see, that it would be attended with the very worst effects if laws were passed on the probability of their not being disobeyed. His objection to the ordinance was not founded on a technical point of law, but it arose from his feeling that it was a gross violation of the first principles of the constitution. As to the right of ordering transportation to Bermuda, he found that it was universally given up. But, for his own part, he could not come to a decision on that point; he could not decide whether Lord Durham possessed that power or not, until he had made a thorough examination of all the Acts of Parliament which related to transportation from the colonies. He conceived it to be very rash to come at once to a decision on that point; he thought it wrong for Parliament immediately to declare the illegality of this proceeding, because if a question arising out of any such deportation came before one of her Majesty's courts of justice, it must be decided by a reference to the different Acts of Parliament which were in existence at the time when the matter complained of occurred; and he thought it rather unlikely that Lord Durham, and those who advised him, would have assumed that power unless they felt that they possessed it in some sort of way. He had no doubt that those parties thought so; and he had no means of denying the proposition, until he had read all the Acts of Parliament connected with the subject. To

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that part of the bill, therefore, he felt very great objections—since such an enactment would fetter the judges of her Majesty's courts, when matters connected with those proceedings in Canada came before them. As to the indemnity which the bill provided, he was entirely opposed to it. The passing of indemnity bills he looked upon to be one of the most unjustifiable proceedings that Parliament ever adopted, even in the worst and most corrupt times. He remembered, some years ago, when the Habeas Corpus Act was grossly violated, the parties aggrieved were told that they might appeal to the law of the land for redress. But a bill of indemnity was immediately passed, by which those parties were debarred of that legal redress. He could conceive, that public officers might be justified by their good intentions in taking certain and extraordinary steps, or even that they might be justified in the course which they had taken by its fortunate and successful result. But he did not know, and could not feel, that Parliament had a right to say to a party injured by such proceedings, "You shall not have redress against those people who have done you wrong. We think it proper to indemnify them." In his opinion such a measure should not be resorted to without the clearest, the most urgent necessity being demonstrated. If Parliament were of opinion, that individuals had done wrong with a good and upright intention, why, let them be indemnified, if cast in actions, out of the public purse; but let them not leave the parties injured without remedy. Feeling strongly on this subject, he felt it necessary to make these observations. In 1818, he found, that a bill was brought into the House of Commons for the purpose of indemnifying parties who had acted in violation of the Habeas Corpus Act. It was strenuously and powerfully opposed, and the leader of that opposition was Mr. Lambton. Now, he thought, that if Lord Durham were present he would object to this bill, and would enter on his justification. That noble Lord was not aware of what had passed on this subject, nor were they aware of what defence he would be able to offer. Yet they were prepared to say to him by Act of Parliament, "You have done that which is not justified by law." Now, he (Lord Denman) did not know, that such was the fact. At all events, he conceived, that those who had infringed
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the law ought to answer for the infraction of it; and the parties injured ought not to be deprived of their remedy. His noble and learned Friend had drawn a just distinction between the propriety of indemnifying parties in a civil and parties in a criminal suit. He, however, could not see the propriety of granting indemnity in either case. In the latter, that of a criminal prosecution, the Crown might put a stop to the proceedings by a noli prosequi, or if the party were convicted the Crown might grant a free pardon. But in a case of civil action, he would ask, what good reason could exist for debarring an individual from his right of redress? A man might be brought to the greatest misery and distress; and was that man to be told when he sought for reparation, that, because the individual through whose acts he had suffered had done nothing but for the good of the public service, he was therefore to be debarred from all remedy? If such a course was permitted in one case, it might be done in another whenever the conduct of a magistrate was called in question. Then, although the individual might have been ruined by imprisonment or fine, a bill of indemnity might be called for on the ground, that the magistrate had acted for the good of the public service. On these grounds he thought the proposition highly objectionable and unconstitutional.
Lord Broughamsaid, he felt the force of what had fallen from his noble and learned Friend, coming as it did from one of the first legal authorities in the country. At the same time, his noble and learned Friend would forgive him if he most respectfully submitted to him and to the House a few observations, which would, he thought, blunt the edge of his noble and learned Friend's remarks on this course of proceeding. He would not say, that he was greatly rejoiced, or that he was surprised, for it gave him no surprise at all; but it would have been matter to him of never-ceasing regret to the end of his life, and of unceasing and indescribable astonishment, if his noble and learned Friend had not expressed the opinion which he had expressed on the material part of this question—namely, the outrage on law, on justice, on humanity, and on common sense, in condemning persons unheard, untried, and even unwarned, to death, if they returned to their native country. The innocent were included in

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this proscription as well as the guilty. Here was Mr. Perrault, who had left the country three weeks before the revolt happened; he could not possibly have been implicated in that proceeding, and yet he was marked out as one of those who, if he returned, should be punished with death. Inauditum indefensi tanquam innocentes periêre was the language of the historian in describing the worst part of the worst times, and the very worst of the most tyrannic acts of those monsters who were a disgrace to that dark and despotic age; and such language would equally apply to the proceeding which had called for this bill. Suppose it had been enacted, that the Governor in council might pass bills of attainder against whom he pleased, still, what he had done would not have been justified under such a power, because a bill of attainder was never passed until the parties had been heard. The Chief Justice of the Queen's Bench or of the Common Pleas, had a right to try offenders brought before them. That was a legal act, they were authorised to proceed, they were obliged to hear evidence. But if they condemned a man without hearing him—if they said, "You shall not open your mouth, and you shall suffer death if you attempt to leave the dock," would not such conduct be execrated as a monstrous outrage on the feelings of mankind? Yet such was the course that had been adopted in Canada. This bill had nothing to do with the outrage and injustice sanctioned by the ordinance. What the bill touched was the conduct of those who issued the order; and, above all, as the noble Duke opposite had stated the other night, the proceedings of those who had acted under that order. His noble and learned Friend's first objection was, that he knew not whether the Governor-general of Canada might not possess the power of sending individuals to Bermuda. Possibly the Governor-general might have that power, but that power could only extend to the transportation of convicts, of persons who had been found guilty on proper evidence. The Governor-general had not the power of sending away into banishment those nine persons who had not been tried, and who, therefore, were not convicts. He was somewhat staggered by what had fallen from his noble and learned Friend respecting the indemnity, and by so doing declaring the acts and ordinances illegal in the absence of the parties; but he did
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not care about that declaration, so long as at the same time, they granted and gave a full indemnity from all possible penalties both civil and criminal. His noble and learned Friend had said, that with respect to criminal proceedings, there was no necessity for indemnity, because the Crown might enter a noli prosequi, or in the event of conviction, grant a pardon. But his noble and learned Friend ought to recollect that the Council might be impeached for their acts, and, by the Bill of Rights, the pardon of the Crown could not be pleaded in bar of an impeachment. He agreed entirely with his noble Friend in one part of his observations, where he stated his objections, on principle, to bills of indemnity. He was of opinion, certainly, that this was a dangerous precedent, but it was not, it should be observed, the first example of the kind. On a former occasion, in 1818, a similar measure was resorted to, and had, as his noble and learned Friend observed, been met by a powerful opposition. But, long before that period, a similar course was taken, when bills of indemnity were passed in favour of Lord Mansfield and the Earl of Chatham.
Bill read a third time and passed.

TIN DUTIES.—
Viscount Melbournemoved the second reading of the Tin Duties Bill, which would be of equal advantage to the Crown and to the trade and commerce of the country.
The Duke of Wellingtonobjected to the bill, because, as one affecting the property of the Crown, it ought to have been brought in earlier in the Session, when the House could investigate the returns on the subject, to see that the calculations upon which it was framed were correct. He should like particularly to see that the arrangement entered into with the Crown was a fair one.
The Earl of Wicklowconcurred that the House should have ample means of inquiring into all measures brought before it. In the present instance, however, he did not think that any objection could rest on this ground. This bill related almost exclusively to the remission of a tax, and was, therefore, within the privileges of the House of Commons, where it had been unanimously agreed to.
Lord Broughamsaid, that this bill, so far from remitting taxation, imposed 19,000 l. upon the consolidated fund for

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the immediate advantage of a particular interest. He thought also that there would be a great risk of difficulty and injustice in passing this measure, on account of the manner in which it would affect the rights of a Duke of Cornwall whenever he should be in esse. He had not as yet seen any sufficient grounds for their Lordships concurring in this bill.
The Marquess of Lansdownesaid, that if there was any reason to apprehend that the interests of the Crown, or of the Duke of Cornwall when in esse, were injuriously dealt with in this bill, their lordships would do right to pause before they passed it. But he believed, that there was not the slightest danger of this kind, the Crown being amply indemnified upon an average of the net receipts of the last ten years. With respect to the imposition of 19,000 l. a-year upon the consolidated fund, he thought it very well applied as a substitute for two taxes very odious in character, and very detrimental in their effects—the one a local tax regarding Cornwall, the other a general tax affecting the whole community, and tending naturally to keep up the price of an article of very common use. He urged their lordships, therefore, not to refuse a remission of taxation which the House of Commons had almost unanimously acquiesced in, and which was looked forward to with confidence by all the commercial interests affected by it.
Bill read a second time.

BUSINESS OF THE HOUSE.
The Marquess of Salisburysaid, that as a motion had been made in the other House of Parliament for a return of the number of bills rejected by their Lordships, the only object of which would be to cast a slur upon their Lordships, it became their duty to show, that they had not been unduly negligent or precipitate in the examination of those measures which had been submitted to them for consideration. Their Lordships, it was true, had very few opportunities of properly considering the bills which were sent up to them from the Commons. It was perfectly notorious, that most of the Commons' bills required their Lordships' serious attention, if it were only for the purpose of carrying into effect the intentions of the framers. The public unfortunately suffered the greatest inconvenience in consequence of the postponement till next Session of measures of great importance. That was not the
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fault of their Lordships. It was the only course left open to them to take. The returns would show the times at which the different bills were sent up. He found, that during the present year there had been 103 bills sent up. Fifty-eight of these had been sent up within the last six weeks, or rather up to the 8th of August, for several had been since brought up. During the whole of the preceding part of the Session there had been only forty-five sent up. The blame did not rest with their Lordships, nor so much, indeed, with the other House. When he recollected the number of days upon which there was no House formed, it occurred to him, that, perhaps, the Government might have an object in keeping bills back till a late period of the Session, in order to give themselves the opportunity of making a charge against their Lordships for either rejecting or postponing them. The noble Marquess concluded by moving for a return of the number of bills brought up from the House of Commons during the present Session, distinguishing the months and the number brought up in each.
Viscount Melbournedid not believe, that the motion which had been made in the other House was made with the view or intention of casting any slur or imputation upon their Lordships. The mere rejection of a number of bills was nothing in itself; the question was, whether they were wisely rejected or not. He entirely denied, upon the part of the Government, that there was any intention to take advantage of their Lordships, by bringing in bills at a late period of the Session. The delay was altogether unavoidable, and arose from a variety of causes—from the nature of the business, from the nature of the constitution, and of popular assemblies, and chiefly from the great increase of business which had taken place within the last few years. Then came the great party battles of the Session, which were generally fought within the last weeks. These necessarily absorbed and arrested all attention, and business became suspended until it was decided who the Government was to be.
The Earl of Wicklowobserved, that the return moved for in the other House was not for the bills which had been brought up, but for those which had been rejected. Coupling that with various other little circumstances, it was easy to collect what the animus was which influenced the mover of that return. So far, however, from

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such a return implying any censure upon their Lordships, in his opinion, there was nothing which was likely to confer upon them greater credit. He thought it was likely to reflect the greatest credit upon their Lordships for their watchfulness and attention to public business, and he was convinced, that Members of the House of Commons would not so readily agree to many of the bills, if they were not sure that they would receive attention and consideration from their Lordships. During his experience, the practice had been very much the same, and he did not blame the present Government for it. Being in a minority in their Lordships' House, it was, perhaps, natural, that they should wish to obtain the sanction of the other House for their bills, before they sent them up to their Lordships.
Motion agreed to.

IMPRISONMENT FOR DEBT.
The Lord Chancellormoved the further consideration of the amendments of the Commons to this Bill.
Lord Broughamconsidered, it would be a very great hardship, if debtors, confined on mesne process, were to suffer a continuation of their imprisonment until the judges had drawn up the rules and orders, the day of liberation, as fixed by the bill as it now stood, being the 1st of December. Now, those rules and orders applied to writs of execution only, and he thought it would be highly desirable, looking to the immense number of persons in confinement who had expected to be liberated on the 1st of October, that they should make an amendment on the Commons' amendment, fixing the latter as the day the Act should come into operation; or, if necessary, to introduce a short bill to effect that object, which might, by suspending the standing orders, be passed within the short period that remained of the present Session. With respect also to the advertisement clause, by which it was enacted, that three shillings only should be paid for advertising the schedules of insolvents in the country newspapers—this was fraught with monstrous injustice. He had received numerous communications from various parts of the country, from persons interested in this, certainly not the least respectable portion of that department of literature, which conveyed important intelligence and information to the public, in which it was stated, that this clause would
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be actually ruinous, from the number of advertisements which would necessarily flow in, in consequence of the Act coming into operation, to the journals in which these parties were interested.
Lord Lyndhurstsaid, if a second bill were necessary for the first object his noble and learned friend had in view, could he not introduce a clause into it with respect to the advertisements?
The Lord Chancellorbegged to remind his noble and learned Friend, that the price of the advertisement was the same as had existed for a great number of years, though he admitted, under somewhat different circumstances. But, inasmuch as the bill would not come into operation for some time, he thought the inconvenience that would arise would be but trifling as regarded the interval which would elapse between the period of the Act coming into operation and the next Session of Parliament, at the earliest period of which he should be prepared to bring in a bill to amend the Act in this respect. With regard to that part of the bill which the Commons had amended, as to the period at which the Act should come into operation, as founded upon the rules and orders to be made by the judges, he did not think a new bill was necessary on that ground, because he did not see why the Act, as regarded proceedings on mesne process, should not come into operation anteriorly to the rules and orders of the judges with respect to the judgment writs. He should therefore propose to fix the dates for the act coming into operation for the 1st October, as the bill originally stood. The effect of that amendment would be to let those out of custody on that day who were confined on mesne process which would be a great object to attain.
Amendments of the Commons, with a verbal amendment agreed to.
Lord Lyndhurstwas glad to hear that his noble and learned Friend (the Lord Chancellor) would bring in a bill early next session to amend the advertisement clause.
Lord Brougham: but the mischief would be done in the meantime. On the act coming into operation there would be from three to four thousand persons who would immediately apply to the Insolvent Court for their liberation, and the advertising their schedules at three shillings each would be ruinous to those newspapers in which they must of necessity

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appear. Besides, if there was the slightest mistake or error in an advertisement, inasmuch as it would be considered a misdescription by the court, and the parties must remain in prison until the error was rectified, the consequence would be that every one of the proprietors of these newspapers in which such unintentional and merely clerical error might occur, would be subject to actions for damages at the suit of debtors, the hearing of whose cases might thus be delayed. It was monstrous, and contrary to every principle of justice, that such a state of things should exist between the period of the act coming into operation and the next session of Parliament.
Lord Lyndhurst: could not his noble and learned Friend amend the clause by stating that if the advertisement should exceed a certain number of words that it should be paid for at a particular rate not exceeding a certain sum?
Lord Broughamsaid, that could not be done, because it was one of the original clauses of the bill, and, therefore, was one which, according to the forms of Parliament, could not be amended. It had, however, been suggested to him by his noble Friend (Lord Holland) that the better way would be at once to present a bill, inasmuch as the Imprisonment for Debt Bill could pass first, enacting that the price of the advertisements of insolvents' schedules should be fixed at a certain amount or scale, notwithstanding any act which had passed during the present Session. This would remove every difficulty.
Lord Lyndhurst: Who is to draw it?
Lord Brougham: I will. The noble and learned Lord then took a sheet of paper from the table, placed it on his knee, and proceeded to draw the bill. In three or four minutes the noble and learned Lord said: I have to present to your Lordships a bill to amend that portion of the Imprisonment for Debt Bill which relates to the advertising of insolvents' schedules in England.
Bill read a first time.