Sitting of 26 April 1842

Preamble
MINUTES.} BILLS. Public.—1° Parish Constables; Exchequer Bills; Pentonville Prison; Law of Merchants Act Amendment; Ecclesiastical Residences; Incumbents Leasing; Ecclesiastical Corporations Leasing.
Reported.—Soap Duties Drawback.
3° and passed:—Copyright.
Private.—1° Imperial Insurance Company} Fierville'S Naturalization. 2° South Metropolitan Gas.
Reported.—London and Blackwall Railway; Buckland Inclosure; Huish Champflower Inclosure; Sheffield, Ashton-under-Lyne, and Manchester Railway; Saundersfoot Railway.
3° and passed:—Bolton and Westhaughton Road; Bolton and Preston Railway.
PETITIONS PRESENTED. From St. Martin's-in-the-Fields, for an Equal Imposition of Probate and Legaey Duties on Property of every description.

SOUTHWARK IMPROVEMENT (NO. 2) BILL.
Mr. It. Palmermoved the re-

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sumption of the adjourned debate on the clause of the Southwark Improvement Bill which he had proposed on Tuesday last. Question again put that the clause be read a second time.
Mr. Lambtonhaving presented an important petition from many church leaseholders in the county of Durham, praying the Legislature not to sanction any compulsory sale of church leasehold property without a clause to ensure compensation to the church lessees for their right of renewal, must contend that this was the most proper and fitting time to discuss the important principle involved in this bill; for this bill was the first attempt in the new Parliament to upset—to reverse the most important decisions that took place in the last Parliament, with regard to the principle of compensation to church lessees, for their right of renewal; and it was clear that if this bill passed without such a clause as was now asked, it would be used as a dangerous precedent for future violations of the principle in future legislation; and it would be seen how very important this subject was, and how very large the amount of property was, that might be affected, when he reminded the House that the average annual rental of the church leases was 1,323,000 l., and that not only thousands but hundreds of thousands were laid out expressly on the faith of this renewal. He particularly called upon all those Members of the new Parliament who were not in the last, to observe what were the decisions of the last Parliament on the subject. On the Irish Temporalities Bill —it was argued in the debate on the great church-rate proposition of the late Government, when the Chancellor of the Exchequer admitted the principle; and it was ably and admirably argued by the present Solicitor-general and the hon. and learned Member for Ripon—it was minutely enquired into by the church-lease committee, when able witnesses were examined from all parts of the country—and one of them was so important as to induce him to read one of his answers. Mr. Hodgson, Receiver-general to the Archbishop of Canterbury, and Auditor to the Bishop of London, was asked this question —:
" You have found, in your own experience that the amount of the purchase money is a great excess above the value of the lease, computed as an annuity?"
Answer;—
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"I should say, that the church property I have sold, I sold with some increase of value, by there being considered a sort of tacit consent allowed by the lawyers and the public— what is termed the tenants' right of renewal; I find it even spoken of in the law books."
The hon. Member then quoted from Wood fall's Landlord and Tenant, and from Butler's Notes on Coke upon Littleton, to show the very important light in which the highest authorities of law-books regarded this subject. This principle was again discussed in the Farnham Rectory case, when the noble Lord, the present Secretary for the Colonies, ably advocated the principle; and lastly, this very Southwark Improvement Bill, with the very clause of compensation, passed this House, but was not discussed by the Lords on account of the dissolution of Parliament. He did not pretend to argue the question as a lawyer; but he did pretend to take a common sense view, and a common justice view of the question—and what was it? Why, here were parties coming to this House to ask for a compulsory sale of church leasehold property. The church lessees say—" If you take our property, give us the fair marketable value of our property: this right of renewal has a distinc marketable value: and therefore we ask for it." And it surely would be a manifest gross injustice to refuse them this demand. They cannot get it by a common compensation clause: it had been tried before: it was tried in the case of the Liverpool and Manchester Railway Company in 1837. There was no difference of opinion among the judges as to the marketable value of the right of renewal; but as it was not what is called a strict legal interest, and as the clause of the act of Parliament was not sufficiently comprehensive, the judges could not decide in favour of the church lessee; but Mr. Justice Littledale said,—
"There are no words in this act sufficiently comprehensive to include an interest of this description: there were such in the Hunger-ford Market Act."
Now the case of this Hungerford Market was an important illustration for what the House was now discussing. The claimant insisted on his compensation for the "right of good-will"—all the judge gave it in his favour, because the clause of the Act of Parliament was sufficiently comprehensive to allow them to do so, it is remarkable to see how evidently anxious the judges

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were to do justice to this peculiar kind of interest, when the act of Parliament allowed them. The right of good will is a similar kind of interest to the right of renewal—a practical interest, but not a strictly legal interest; but the right of renewal rests on much stronger grounds; because it rests on the uniform practice of three centuries, and is upheld by different acts of Parliament. Upon the Hungerford Market case, Mr. Justice Littledale says,—
"It is perhaps strictly true there may be no interest in a good-will; but we know that there is practically such an interest, which is usually a subject of sale; that interest the Legislature seems to have contemplated in this section."
All the judges agreed. It is clearly the duty of the Legislature to contemplate and guard with the greatest carefulness, all such peculiar interests as these. It is the peculiar province of the House to see that in these private acts no injustice is done to any one. Lord Eldon had expressed a remarkable opinion on this point: and doubtless Lord Cottenham and Lord Lyndhurst would agree with it. It was in some case, in 1824, when some individual went before him on account of an injustice done to him by a private act. Lord Eldon thus speaks of private acts of Parliament;—
"When I look upon these acts of Parliament, I regard them all in the light of contracts made by the Legislature, on behalf of every person interested in any thing to be done under them; and I have no hesitation in asserting, that unless that principle is applied in construing statutes of this description, they become instruments, of greater oppression than anything in the whole system of administration under our constitution."
Apply this to the case before the House. The Legislature is called upon to make this contract, so that the church lessees shall have the same marketable value for their property that they would have had if the proposed act had not passed. The hon. Member, after calling upon the House to support the principle, observed that he should propose to alter a good deal of the wording of the clause of the hon. Member for Berkshire.
The Speakerinformed the hon. Member that he could not then propose his amendment.
Captain' Fitzroysaid, it was undoubtedly the anxious intention of the com-
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mittee to do the fullest justice to the lessees. The jury clause, he conceived, proved this. That clause set forth—
"That if any dispute shall arise as to the value of such houses with the commissioners, or if any dispute shall arise with the said commissioners, as to the value of any interest therein, the same shall be decided by a jury summoned for that purpose."
Now, when those cases were brought before a jury of honest men, was it not a sufficient warrant, that they would take into full consideration the probability of the renewal of those leases, and that they would award proportionate compensation? Much had been said about marketable value, and the words were introduced in the proposed amendment of the hon. Member for Durham (Mr. Lambton). But were there not two marketable values? Might not the property be taken into the market with a distinct understanding, that a renewal of the leases would be granted —or might it not be brought into the market with a distinct notification, that the Bishop refused to renew the leases? And he should like to know whether in the latter case, the marketable value would not be very different from the marketable value in the former, although, according to the amendment, the marketable value was to be set down at the same amount as if this bill had not passed. He should oppose the clause, as he deemed it unnecessary.
Mr. Thesigersaid, as the hon. and gallant Member who had just sat down, had declared, that it was the anxious intention of the committee to give to the lessees every fair and just advantage which they could claim, he could not see why the hon. and gallant Member should object to the clause of the hon. Member for Berkshire, which only went to carry out the principle of due compensation. It was said, that this bill was intended to effect a great public improvement. Now, as the bill stood, it appeared to him, that it was calculated to work much injustice, and, in his opinion, if a measure having public improvement for its object, could not be carried into effect, without inflicting injustice on individuals, it would be better to abandon it.
Lord G. Somersetsaid, he should prefer the clause as it was proposed to be amended by the hon. Member for North Durham (Mr. Lambton), and he, therefore, wished to have the opinion of the

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Speaker whether it could be substituted for that before the House.
The Speakersaid, that notice should have been given by the hon. Member for North Durham of his intention to propose the clause. It was impossible to receive the clause now, but if the House should assent to the second reading of the one before them, it would be possible to amend it in such a manner, as to make it like that proposed by the hon. Member for North Durham; or further proceeding's son the present clause might be adjourned, and another brought forward after proper notice.
Sir R. Inglissaid, he saw no reason for giving to the complaining parties in this case any greater right than the law at present gave them. If a wrong were committed, for such wrong the law provided a remedy. It could not be said, that in this country there was any wrong without a remedy. But those who supported the clause would not only leave to these parties the benefit of the operation of the existing law, but would grant to them a right which the law never intended or contemplated. He knew with what an invidious feeling church property was viewed by many eyes in that House. But, let him remind the right hon. and learned Gentleman, who had cheered when it was stated, that the Church received annually 1,300,000 l. that much of that property was in the hands of lay lessees—that it did not, by any means, all go to the Church and the hierarchy—that gentlemen in blue coats, as well as in black coats were interested in it. He could not conceive why any additional power should be granted to those parties to profit, especially by that property. If they possessed a right, which the law conferred on them, why, let them use it; but he could see no reason why a special law should be made in their favour. In conclusion, he would observe, that it was contrary to all precedents, in cases of this nature, to take a private bill out of the hands of its promoters, for the purpose of introducing a clause of which they wholly disapproved.
Sir T. Wildesaid, the hon. Baronet; called on the House not to give to those parties a right that was not now in existence; and he had quoted a maxim which sounded very well, but which few practical lawyers would admit to be a correct one,—namely, that there was no wrong without a remedy, Now, the opponents
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of this bill demanded nothing of the kind; they did not require, that any new right should be given to these parties. All they said was, "Leave the possessors of these church leases as they are, and they ask for no further right." The question was not to give them a right they did not now possess; but the real question was, "Will you take from them their property at less than its full and just value?"— that value which the property was likely to command, when it was brought into the market in connection with a promise of renewal that was never refused. If the promoters of the bill were anxious to effect a great public improvement, why should those parties who were interested in this property be saddled with the expense of it? The lessees had no legal right against the Church; but the interest of the Church was at present their security; and that security would cease, if this bill were passed. He could not look at the claims of these parties in the light of compensation for an imaginary right. They demanded the price of an article; they demanded, that their property should not be taken away, without receiving the full value for it.
The Solicitor-Generalsaid, that he was not disposed to vote for the clause that had been printed and circulated with the votes, but he concurred in the substantial part of the clause of the hon. Member for Durham. He would suggest, that the hon. Member for Berkshire should withdraw the clause, and bring up an amended clause on the third reading of the bill.
Motion to read the clause a second time, withdrawn.
Clause withdrawn.—Further proceedings on the third reading of the bill postponed.

ELECTION COMMITTEES—WITNESSES.
Mr. Divettwished to consult the right hon. Baronet (Sir R. Peel) as to a question of the proper construction of the 71 st clause of the Controverted Election Petitions Trial Act, before the committee on the Lichfield election, of which he was chairman. It had been found, that the attendance of certain persons as witnesses was required, those persons being at present prisoners in her Majesty's gaols of Newgate and the Fleet. They were stated to be important witnesses, and the question was, whether it was competent for the chairman under the section he had

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mentioned, to issue his summons for the attendance of those persons to give evidence before the committee. Some of the authorities about the House whom he had consulted, were clearly of opinion, that the chairman of an election committee had such power; while other persons of great authority thought that there was nothing in the act to enable a chairman to issue a summons in such a case, but they thought that the proper mode of proceeding was, that according to the ancient practice, the chairman should report to the House, and that the Speaker would then, by order of the House, issue his warrant to bring up the witnesses. Under these circumstances, he had thought it better to bring the matter under the consideration of the House, and he begged, therefore, to ask the right hon. Gentleman (Sir R. Peel) what was the proper construction of the 71st clause? In compliance with the forms of the House, he moved—
"That Mr. Speaker do issue his warrant to the keeper of her Majesty's gaol of Newgate to bring up Thomas Grew, a prisoner in the said gaol, to-morrow, in order that he might attend and give evidence before the Lichfield Election Committee, and so from time to time, as often as his attendance may be wanted."
Sir R. Peelsaid, that he delivered an opinion on the point with the greatest diffidence, particularly as he had not had a moment to consider it in. However, he thought the hon. Gentleman had taken the best course, because the clause spoke of any person summoned by the said committee, or by the warrant of the Speaker. As it appeared to him, the summons of the chairman would hardly be a sufficient authority to the keeper of Newgate to bring up a prisoner to give evidence; it must be done, he thought, by the Speaker's warrant. The act did not appear to him to contemplate the case of a person being necessary as a witness who was already in custody. It appeared, however, that cases had formerly occurred where witnesses, who were in prison, were required to be brought up, and that it had been done by the Speaker's warrant. Having, as he had said, had no time to consider the question, he spoke with great diffidence, but he thought the hon. Gentleman had done right in the course he had taken of moving that the Speaker should issue his warrant.
Mr. Roebuckdoubted, whether the parties could be brought up without a habeas corpus.
The Solicitor-Generalsaid, that the gaoler was in the habit of obeying the orders of that House conveyed through the Speaker; and, no doubt, if the summons were not obeyed, the House would treat the disobedience as a contempt.
Motion agreed to.
It was ordered on this, and on a similar case, on the motion of Mr. Divett, as follows:—
"That the keeper of her Majesty's gaol of Newgate do bring Thomas Grew in safe custody to-morrow, to the select committee appointed by this House to try and determine the matter of the Lichfield Election Petition, in order to his being examined as a witness, and so from time to time as often as his attendance shall be thought necessary; and that Mr. Speaker do issue his warrant accordingly.
"That the warden of the Fleet prison do bring Francis Sharratt in safe custody tomorrow, to the select committee appointed by this House to try and determine the matter of the Lichfield Election Petition, in order to his being examined as a witness, and so from time to time as often as his attendance shall be thought necessary; and that Mr. Speaker do issue his warrant accordingly."

SOUTHAMPTON ELECTION COMMITTEE — MR. FLEMING.
Mr. Redingtonappeared at the bar, and reported from the select committee appointed to try and determine the merits of the petitions, complaining of an undue election and return for the borough of Southampton,
That John Fleming, Esq., a Member of this House, in the course of examination before the committee, had refused to answer a question put to him by counsel, on the ground that "it would be a betrayal of confidence, which would be improper and dishonourable on his part, and degrading to him as a gentleman, and that he could not conceive how his answer to the question could, in any way, affect this investigation;" and that the committee having decided, that the witness could not refuse to answer the question on the grounds which he had thus assigned, that the witness still persisted in his refusal.
Mr. Redington,as Chairman of the committee said, he had no doubt that the House would feel that, under the circumstances, the committee had done what the act required. With respect to the witness, to whose conduct they had thought it necessary to call the attention of the House, they could not deal with him as they had done with the witnesses to whose cases attention had yesterday been directed—they could not commit the hon. Member, whose name had been mentioned

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in the report which he had just presented; but it now became his duty to ask the House to interfere in the same manner that they had done with respect to other witnesses who were not Members of that House. He should move, that the hon. Member be required by the House to appear before the committee, and give the evidence required; previously, however, he should move, that Mr. Speaker do inquire of the hon. Member, whether he persisted in refusing to answer the questions which had been put to him by the committee. If the hon. Member should so persist in his refusal, then he intended to move that the same course be adopted respecting him that had been taken with regard to the witnesses yesterday.
Ordered—
That John Fleming, Esq., a Member of this House, be asked by Mr. Speaker, whether he persists in refusing to give evidence.
Mr. Fleming,in his place, stated, that as a man of honour and a gentleman, he continued to object to answer the question which had been put to him in the committee, and that the facts of the case were these:—Upon his return from Ireland, six weeks after the election, he was informed, that a considerable sum was due to the agent for legal expenses at the last Southampton election; that he thereupon stated the case to his friends, and collected a sum of money for what he considered the legal expenses of the election;—that he considers that the answer to the question cannot have any bearing upon the trial of the election petition; and that the question was only asked for the purpose of introducing honourable names before the public to peck at and comment upon.
The Speakerthen suggested, that the hon. Member ought to withdraw.
Mr. Flemingbegged to inquire if he might be allowed to offer any explanation of the course which, after the best consideration he could give the subject, he had resolved to pursue?
The Speakersaid, that doubtless the House would be ready to hear any explanation which the hon. Member might desire to give.
Mr. Flemingbegged to assure the House how very painful it was to his feelings that any action of his should be reported to them with a view to its being censured, but he wished in the first place to say, that in refusing to answer the questions put to him, he had not intended the slightest dis-
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respect to the hon. Chairman, or to any Member of the committee. If he were guilty of the conduct imputed to him by the petitioners, he should be utterly unworthy of holding a seat in that House, and he must say, that he did not think his answering those questions would in the least degree, assist the committee in coming to a right conclusion, touching the matter on which they had to decide. He should now trouble the House with only a very few words. Immediately after the termination of the election for Southampton, he went with his family to Ireland, and there he remained till the assembling of Parliament. When he returned, he was told by several persons at Southampton, that a considerable portion of the expenses of the election yet remained unpaid, that they consisted merely of the legal expenses, the money due to agents, strictly legal expenses. He then wrote to some of his friends, and subscriptions were forwarded to him, which he paid in at the Bank to the account of the parties by whom the election was conducted. This occurred not before, but six weeks after the election—it could therefore serve no purpose of corruption, and he conceived that in the course he had taken, he had done nothing wrong. The communications which he received in reply to his letters were of a confidential nature—he could not with honour disclose them, and he confessed he did not see the use of disclosing them. It would almost seem, that the object was to gratify an impertinent curiosity, or perhaps to lay hold of some honourable names to peck at. Could he as a gentleman betray the confidence that had been reposed in him by private friends for no public object? As a man of honour and a gentleman, he should be unworthy to retain his seat in that House if he did so.
The hon. Member left the House.
Mr. Redingtontrusted that, as Chairman of the Southampton Election Committee, every hon. Member would do him the justice to believe that he acted upon this occasion only in discharge of his duty. The committee were perfectly willing to respect those feelings which every gentleman must have with regard to confidential communications made to him; but still when called upon to do their duty as judges, and to decide as to the legality or illegality of the course pursued by a witness, they must not let personal feelings interfere with the proper execu-

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tion of their public duty. He could not, of course, go into the matter which arose before that committee, but he might state that a question was put by counsel to the hon. Member. The hon. Member refused to answer that question. That was in the report before the House. The usual course was for the committee to deliberate amongst themselves as to whether the witness had a right to refuse to answer the question; and after deliberation the committee decided unanimously that the hon. Member ought to answer the question. On the part of the committee, then, he would now only turn to the House and ask them, since they had said on the previous evening that select committees appointed to try election petitions were the sole judges as to whether or not parties under examination should answer the questions put to them, to say the same now. But as the individual who appeared at the Bar of the House on Monday evening was not a Member of the House, as in the present case, it would be necessary to make one alteration; he could not move that the hon. Member for Southampton be called to the bar of the House, but that he remain in his place,
"And be informed that the legal tribunal to decide upon his obligation to answer questions is the select committee appointed under an act of Parliament to try the matter of the petition; and that Mr. Speaker do also inform him, that any objection he has to urge must be submitted to the committee, and determined by them."
Dr. Bowringseconded the motion.
The Speakerhaving put the question,
The Attorney Generalrose and said, there could be no doubt that whatever might be the private feelings of any Gentleman with regard to the obligations of honour and confidence upon his conduct in private life, all those considerations must vanish before the demands of justice, for the support of which, his evidence might be called. That had been so abundantly set forth in a variety of cases that it was hardly necessary for him to cite any case in particular; but he might be excused for mentioning a single one amongst the most remarkable— one indeed which was rather an historical than a legal case—that of Lord Barrington, who being called upon during the proceedings before the House of Lords against the Duchess of Kingston, to state whether he had not heard from her in the course of conversa-
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tion that she had been married to Captain Harvey, refused to make any answer, upon the ground that by so doing he should violate that honourable confidence which was held sacred in the intercourse of private society. The House of Lords adjourned, the judges were consulted, and the decision was, that the witness must answer the question; and Lord Barrington then gave the best answer he could in relation to a conversation which had taken twenty years before. There could be no doubt that the committee had the right to put the question to the hon. Member if they thought it material, and in that case the hon. Member was bound to answer it. The hon. Member having objected to give an answer, he thought the committee was quite right in referring the matter to the House, instead of in the first instance exercising any other power which might be vested in them as a judicial tribunal. If, however, he were asked the question, he must say, that any hon. Member attending as a witness before an election committee was in the same position as a witness in a court of justice, and was liable to like penalties for refusing to give evidence. But while it was the province of the committee to commit a witness refusing to answer a question into the custody of the Sergeant-at-Arms, it was also their province, if they pleased, to remit that, and instead of taking that course, to make a report to the House, through their Chairman, of any person who should refuse to give evidence, and to leave the case for the interposition of the House. He was disposed to think, therefore, that the committee had exercised a discretion in the case consistent with the respect which was due to the House by abstaining in the first instance from committing the hon. Member for Hants into the custody of the Sergeant-at-Arms, and when the hon. Member perceived what was the opinion of the House, and what he (the Attorney-general) was certain must be the opinion of every hon. and learned Gentleman connected with the legal profession, that he was under a legal obligation to answer the question which had been put to him, and that no sentiment of honour such as that upon which he relied was sufficient to exonerate him from the social duty which he owed to the community—he trusted that the hon. Gentleman would take a different view of the position in which he stood, and that he would conform himself to the

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decision of the committee: for after all, it would be for the committee to decide what course the hon. Gentleman should take in respect to the question which had been put to him by the counsel. Where a witness was under examination in a court of justice, and a question was put to him which he declined to answer, he had repeatedly known an inquiry take place as to whether that particular question was pertinent to the subject matter of the inquiry or not, and the court, having decided that point, would direct the witness accordingly. And in the present case it was not because a particular question was asked by the counsel that the committee were bound to enforce it. It was for the committee to say, whether the question was relevant or not, and he would recommend the hon. Gentleman and the House to place implicit confidence in their decision. If the committee had not vested in them that power which the law gave them, he was quite sure that the House would repose full confidence in their discretion. He was sure the committee would do their duty; but he thought it was quite right to intimate to them that it by no means followed that because any particular question was put to a witness by the counsel in the case, and was pressed by him, that therefore an answer ought to be enforced. If the committee felt that the object of the question was not the furtherance of justice, but to obtain some disclosure that might be painful to the party under examination, they would not call upon the hon. Gentleman to answer. He, however, had a perfect reliance that they would exercise their discretion properly, and with a due regard to the justice of the case and the feelings of the party.
Mr. Roebucksaid, that humble as he was, he supposed he might say that he agreed with the law laid down by the hon. and learned Gentleman. But he wanted to know—because he recollected the position in which they were—why they were made a court of appeal. Was it not so? Why, then, were they appealed to? He would not be asked to act as a judge as a matter of courtesy. Before he acted as a judge he must have evidence; and he wished to know whether a witness before a committee of the House of Commons was to be placed in a situation in which he could not be placed before any other tribunal? If he were before the Court of Queen's Bench, and a man were to ask him if he had committed a
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murder, and if he were guilty, he should say, that he did not intend to criminate himself, and therefore he would not answer the question, the Court would say that it was an improper question to put, because it tended to criminate the witness, and therefore it must not be put. Now, he did not know that in the present case there was a danger of crimination, nor did he put the question in an invidious form as touching the hon. Member, for he was rather with him than against him; but he put it in this extraordinary way to carry out the principle he wished to enforce on the attention of the House. Was a witness to be asked a question, and forced to answer it upon pain of imprisonment, which would tend to criminate himself? He knew that a bill had been brought into Parliament to meet this difficulty, but it was thrown out by the House of Lords. He did not want to mix up this question with party politics. He cared not about what party was concerned in this case, though he was glad that it was an hon. Member on the other side. ["Hear" from Mr. Leader.] He wished the hon. Member would not interrupt him. He wished to discuss the question upon purely legal grounds. He wished to know from the law officers of the Crown, and those Gentlemen who were connected with that honourable profession on both sides of the House, whether any one of them, would be bold enough to say that it was the law of England, acknowledged by the judges, and expounded by them, who had hitherto been above all imputation—that a man coming before any tribunal in this kingdom was bound to answer any question which might tend to criminate himself? [" No, no. "J The learned Attorney-General said "no." Now then came the question,—how was that House to determine that any hon. Gentleman, or any private citizen, must be compelled to answer a question unless they knew whether it would criminate himself? They could not know it until they knew what the question was. Therefore he, for one, would protest against being called upon to decide upon any matter of which he knew nothing. He would not vote blindly upon any question whatever. He therefore wanted to know what the question was.
Mr. O'Connellsaid the hon. and learned Gentleman had argued the question very emphatically, but without the least appli-

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cation to the facts of the case. The hon. Member for South Hampshire bad not said that he entertained any apprehension that his answer to the question would criminate him; on the contrary, he said directly the reverse, and he made a merit of it, instead of considering it an error. Therefore the House must not be led away by the supposition that the object of the committee was to compel a man to answer a question which would tend to criminate him. The person who should judge in such a case was the witness himself; he alone must know whether his conduct was bonâ fide or not. Suppose that this were an action in the Court of Queen's Bench, and that the hon. Gentleman were produced as a witness and said, not that he would criminate himself by answering the question put to him, but that from motives of Gentlemanly honour, and of the purest and most delicate nature, he declined, being unwilling to violate private confidence—would the Court of Queen's Bench hesitate one moment? Would any lawyer say, that the Court of Queen's Bench would not at once reply, "We are very sorry to trespass upon your feelings, but the reason is insufficient for not giving the answer?" As to the case of Lord Barrington, that was one of a private conversation with a lady. It was, therefore, one of extreme delicacy. But even the objection of Lord Barrington was overruled. And did not the House know that medical gentlemen, the first in their profession, whom no bribe of property, however large, or personal advantages, however tempting, could compel to disclose facts confided to them, had been forced, notwithstanding their honourable reluctance, to reveal all they knew, and to violate the confidence reposed in them in the course of their professional engagements? When a man was sworn to give evidence, he was sworn to speak the whole truth respecting every thing concerning which the law inquired of him, as far as he possessed any knowledge of the facts. With great respect, therefore, for the hon. Member for South Hampshire, he must tell him that he was really violating his oath in refusing to give an answer to the question. He had not the honour of being acquainted with the hon. Member, but he believed him to be, it was manifest from his manner, as incapable as any other human being of wilfully violating his oath; but still he was doing it in the face of the
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tribunal which had decided that the question ought to be put. Of course the committee would reconsider the question, and not enforce an answer if they felt that any gentlemanly confidence would be violated, unless the answer was necessary to deal with the merits of the case. He respectfully submitted to the hon. and learned Member for Bath that he had raised a question which was not then in discussion; indeed, there was no question at all to discuss, but whether or not the motion of the hon. Chairman of the committee should be agreed to.
Sir R. Inglissaid, he had risen at the same time with the hon. and learned Member for Bath to object to the sweeping position laid down by the learned Attorney-general that a witness was bound to answer every question put to him. Every question should be qualified, certainly, by the relevancy of the question, by the consideration of its affecting the individual witness himself, by that which every student at law must know—the confidence that must be maintained between a professional agent and his client, and lastly, by the relation of the question to the matter in issue. He, for one, greatly regretted the introduction of such questions as this into the House; but now they were called upon to consider, not whether the question was pertinent or not, but whether the witness did or did not refuse to answer the question. What they decided on the previous day, and what they must decide on that day, was not as to the relevancy of the question, nor whether the question should be put or not, but whether or not the committee was the only tribunal which should decide both those points. He objected to that House making decisions upon questions before the appointed election tribunals; and he much regretted that appeals were made from election committees to that House. All that he understood to have been done on Monday was, that the witness was not directed to answer any particular question, but to go back and submit himself to the authority of the committee; and he thought that all that would be now required of the hon. Member for South Hampshire was, that when he returned to the committee, whether the question were relevant or not, he would urge his objection to it, and by the decision of that committee the hon. Gentleman and that House must be bound.
Mr. Forbeswished to know what the

1127
committee would enforce in case the hon. Member persisted in his refusal to answer the question.
Question agreed to and an order made in the words of Mr. Redington's motion.
Mr. Flemingimmediately attended, and stood up in his place.
The Speakeraddressing him said, I feel that I shall best discharge my duty on this occasion by reading to you the resolution which the House has just agreed to—
"That John Fleming, Esq., be desired to attend in his place forthwith, and informed that the legal tribunal to decide upon his obligation to answer questions is the select committee appointed under an act of Parliament to try the matter of the petition; and that Mr. Speaker do also inform him that any objection he has to urge must be submitted to the committee, and determined by them."
The hon. Member bowed and resumed his seat.

IPSWICH ELECTION — MR. LUCAS.
On the motion of Mr. PakingtonElizabeth Anne Cullen was ordered to appear at the bar to give evidence with reference to the state of mind of Obadiah Lucas, who had been committed by the Ipswich election committee to her Majesty's gaol of Newgate.
In answer to a question put to her by the Speaker, she stated that she was sister to Obadiah Lucas, and that in consequence of a friend of his having committed suicide his mind had been in a very excited state, so much so, that it was not thought prudent to leave him by himself. She represented that his mind had never recovered from the mental shock which it had received. His memory was also much impaired,
Mr. Macmurdo,the surgeon of Newgate gaol, was also called to the bar. He said that Obadiah Lucas's mind had been in a very excited state, and that his powers of memory were much affected.
Witnesses withdrew.
Mr. Pakingtonmoved, that Obadiah Lucas be discharged.
Motion agreeed to, Mr. Lucas ordered to be discharged.

TEXAS.
Mr. O'Connellwished to ask a question of the right hon. Baronet. He wished to know whether the treaties between England and the Government of Texas had been formally ratified?
Sir R. Peelin reply, said that there
1128
were three treaties with respect to which this country and the Government of Texas were concerned. The first was of a commercial character; the second had relation to the abolition of slavery; and the third referred to a guarantee for the payment of a loan from Texas to the Mexican Government under the mediation of this country. These treaties, were to be ratified simultaneously. The day fixed for the ratification was the first of August. The commercial treaty had been signed by the proper authorities. He had every reason to believe, that the senate of Texas had consented to the abolition of the slave-trade. The treaty, with reference to the guarantee, bad been signed, and this country was prepared to ratify it. The day fixed for the ratification was the first of August.
Mr. O'Connell,are the papers relating to this subject ready to be laid upon the Table of the House.
Sir R. Peel:No.
Mr. O'Connellsaid, that the other question which he wished to put to the right hon. Baronet, related to the conduct of the British Minister at Mexico. It appeared by certain documents that a proposal had been made to the Mexican Government by General Hamilton to pay a certain sum of money if Mexico would recognize the independence of Texas. There was also another sum offered by way of bribe to General Santa Anna, now at the head of the Mexican republic. This was stated to have taken place through the instrumentality of the British Minister at Mexico, through whom it was alleged, the offer was sent. He wished to ask the right hon. Baronet whether he had received any information from Mexico in corroboration of these facts, which he knew to be true, which would tend to exonerate the British Minister from the charge of having participated in the transaction.
Sir R. Peelwished it to be understood as a general rule that notice should be given of an intention to put a question relating to a matter of such importance as the personal conduct of a British Minister, especially when placed at so great a distance, in order that he might be enabled to answer it with accuracy, and correct any erroneous information which might have gone abroad on the subject. It so happened, however, in the present instance he recollected having

1129
read, within the last three or four days, a despatch from the British Minister at Mexico, which gave an account of the transaction. The Minister declared, that he was requested by a party, whom he need not name, to deliver a communication to the Mexican authorities, having every reason to believe that the letter related to a different subject. The letter, he believed, was written in England. He was perfectly unaware of the contents of the letter, and as soon as he was made acquainted with the nature of its contents, he wrote immediately to the Secretary for Foreign Affairs, expressing his regret that he should unfortunately have been made the instrument of making such a proposition. He could assure the right hon. and learned Gentleman that the British Minister was as far from all participation in the matter as he was. He was not merely ignorant of the contents of the letter, but was actually led to suppose that they related to something else.
Here the conversation dropped.

APPLOTMENT COMMISSIONERS (IRELAND).
Mr. F. Frenchbegged to be allowed to put a question to the right hon. the Chancellor of the Exchequer. Under the 1st and 2nd Victoria, cap. 101, a power was given to the Lord-Lieutenant of Ireland to appoint gentlemen to applot parishes which were not under the Tithe Commutation Act. A number of gentlemen had been appointed, and they had performed their work to the satisfaction of all parties. They had also obtained certificates to that effect, but they had as yet been unable to get the money due to them. He wished to know when the money would be forthcoming.
The Chancellor of the Exchequerwas aware, that the gentlemen's certificates had been sent in, but as no fund was provided from which they were to be paid, he had written over to Ireland in order to know how many had been employed, and the sum it would be necessary for him to ask of the House. No time would be lost on his part in settling the claims as soon as he received the information.

CATHOLIC SOLDIERS IN INDIA.
Mr. O'Connellsaid, he rose to call the attention of the House to a subject of great importance. He begged to assure the House that he brought the question forward with the greatest reluctance, not being willing
1130
to trouble the House upon such a matter if he could have avoided it. He had received communications upon the subject from various quarters—some of which came from humble but much interested individuals, such as private and non-commissioned officers serving in India. He had also received communications from persons in a higher rank and station in society to the same effect. His motion related to Catholic soldiers serving in India and the East generally, and their religious instruction. He did not include in his motion anything that related to the state of the army in other parts of the British dominions. There was a sum of 11,000 l. allocated to the purposes of religious instruction in the British army, but no part of that sum it appeared was laid out in India; it was entirely confined to other parts of the British empire; 700 l. he believed was the only sum allowed for religious instruction in the East. His present motion related to the soldiers in India and China, where months and years were passing over them without ever receiving any instructions from their clergy, which instruction was much more urgently demanded at a period when that army was actively engaged. With respect to the army in China, he had received a communication from a gentleman who was situated in that quarter, and whose name was the hon. Capt. Jerningham, an officer who had been serving there with much distinction. This gentleman stated, that the situation and sufferings of the Catholic soldiers there, were not to be disregarded, as they were willing to go as readily into danger as their comrades, and were as anxious to share the same perils and were exposed to the same effects of the climate as the most gallant amongst the army, and they fought in the field with the same undaunted valour. Many of these soldiers however perished more from disease than any thing else, and this gentleman, the hon. Capt. Jerningham, was ready to give to the House an account of the great privations and sufferings which had been undergone by this class of soldiers from the causes he had already alluded to. The Protestant Soldiers were treated with the greatest humanity, not only with regard to their temporal wants, but everything was done to alleviate the miseries of their situation. All he had to regret was, that the Catholic soldiers were wholly deprived of the benefit of similar assist-

1131
ance to that which the Protestant soldiers possessed. It was a case of the most complete religious destitution, and he was totally misinformed of the fact if it was not true that no Catholic clergyman attended these troops to China; and, with the exception of Macao, where one or two missionaries might be met with, the Catholic soldiers were altogether deprived of the consolations of their religion. Every person who knew the nature of the Roman Catholic religion—of that religion which he professed—must be aware that the necessity for the assistance of a clergyman of that faith was much more important to a Roman Catholic than to a person of any other religion. The administration of the sacraments was solely confided to them, which sacraments afforded the Roman Catholics the greatest consolation and mental relief. He was quite warranted in saying that as far as the troops in China were concerned, they were totally destitute of that which he supposed every hon. Member in that House believed must be of the utmost importance. In India, also, the troops were scattered in such a remote degree from each other that they could hardly receive the assistance of a single Catholic clergyman. He had received a letter from a Catholic clergyman, dated the 19th February, 1842, an extract from which he was now induced to quote. [The right hon. Gentleman read an extract from this letter, which stated that, to the honour of the poor soldiers at Cabool, the great majority of whom were Roman Catholics, they, though perishing by hunger as well as by their wounds, never for one moment abandoned Captain Sturt (the son-in-law of General Sale) while he was living, but remained with their unfortunate officer until the very last of them was sacrificed. Not one of them escaped. The writer then lamented the religious destitution to which these Catholic soldiers were reduced, which added considerably to the misery with which they were surrounded.] He had experienced considerable disappointment upon this subject. The late Government had given him a pledge that something should be done to remedy the evil of which he complained, but nothing, he was sorry to say, had ever been done. It was very well known that an interview had taken place between several Roman Catholic gentlemen and Mr. Grant (afterwards Lord Glenelg) and Mr. Gordon, the Secretary
1132
to the Treasury; and it was understood from this interview that money would have been advanced to meet the circumstances of the case. That pledge he had urged upon the late Government, and be was promised that something should be done. He was, however, sorry to say that nothing had ever been done in the matter, and the evil remained the same. When he had asked the right hon. Baronet opposite whether any thing was in contemplation by the present Government to remedy this defect, the right hon. Gentleman was pleased to refer him to a document which had been laid on the Table by Lord Ashley, in the month of March, 1839. He felt that he had a right to facilitate very much the increase of the army in India, if some redress in this respect was likely to be afforded. With respect to the document alluded to, he was led to believe that there was nothing at all consolotary in the real state of things as described in this document. He found from this document, that in Madras there were nineteen Protestant and Presbyterian stations, and only in twelve stations had the Roman Catholics any opportunity of receiving religious instruction. The Protestant stations were supported by a sum of 22,010 l. a year, and the Presbyterian by a sum of 2,080 l. But for the Roman Catholics the whole sum afforded to dispense religious instruction was 770 l. There was then something approaching to the sum of 1,200 l. a year allowed for each of the Protestant clergymen, so that one Protestant clergyman received more than was paid for the entire support of the Roman Catholic clergymen. In Bombay there were twenty stations for Protestant clergymen, but only seven for Roman Catholics. The Protestant clergyman received a salary of 950 l. a year, but only one Catholic clergyman received 200 l. a year, and all the rest of the Catholic clergymen only 60 l. a year. In Bengal the number of Protestant stations was twenty, and Roman Catholics only seven. The minimum salary of a Protestant clergyman was 900 l. a year, and the entire of the Roman Catholic clergymen had only 60 l. a year, with the exception of one who had a salary of 250 l. a year. This state of the army in India was the subject of constant remonstrance by the different commanders who had served in that part of the world. The Marquess of Hastings in his despatches strongly recommended

1133
the consideration of this matter to the Government of that time, and every commander-in-chief down to Sir Henry Fane repeated from time to time the same recommendation. Sir Henry Fane at first refused to concur in any suggestion of this nature, and when requested by the people who were interested in the question to submit their claims to this assistance upon the British Government he peremptorily refused to do so. The regiment in whose behalf this favour was asked was that which so nobly distinguished itself in the capture of Ghuznee; and there was this singular fact connected with it, that, having been quartered for some years at Kurnaul, some persons suggested the propriety of raising a subscription for the building of a chapel. The privates and non-commissioned officers then subscribed a sum of 6,000 rupees, about 600 l. to that purpose. With respect to the asylum for Catholic children at Bengal, there was a practice followed which was most afflicting to the religious feelings of a Catholic soldier—namely, being often compelled to send his children to those schools, where they were obliged to learn the Protestant catechism, and not allowed to read any Catholic books. In this particular many of the officers quartered there had behaved most harshly. There was one gallant officer, however, Lieut.-Colonel Bretton, who conducted himself on the contrary most humanely, and with a due respect to the conscientious opinions of the Roman Catholic soldiers. This gallant officer gave them every opportunity of having those persons the soldiers liked to teach them their own religion. Grievances of a most afflicting nature, and of such a character as he had described, the soldiers in the east were suffering under. In the immense territories of the East Indies it was almost impossible under the present system for a Catholic soldier to get any relief. There were some sixteen or eighteen stations in the Burmese Empire where the Protestant soldiers alone were attended to. Considering the immense tract of country in that quarter of the globe, and the great distance between the regiments, the religious assistance to the army partook more of the character of a mockery than any real relief from religious instruction. He perceived among the papers before the House repeated reports of commanding officers. There were General O'Halloran's reports, and General Sale's reports,
1134
all of which showed that where soldiers had clergymen of their own religious opinion to instruct them there was a marked difference in their character. They were celebrated for their sobriety, obedience, attention to their officers, and all those characteristics by which a good soldier should be marked. He was, therefore, strongly confident in the belief that it was but necessary to let those facts be known to have the remedy for the evils complained of applied. The papers talked of their being one half of the army Roman Catholics in the east; he would, however, only take it at one-fourth. A notion had gone abroad, that in the army the Irish soldiers were more apt than any others to be sent out to India. He presumed, that this was a great mistake, as he did not think that there was any such design on the part of the Government. At all events, it was true that a considerable portion of these soldiers were Roman Catholics, and he would ask, why should not those persons have every opportunity of meeting their clergymen? Whenever he thought there was a sufficient number of Roman Catholics in any of these regiments to want such assistance, a chaplain of the same religion should be appointed. He submitted, that a Christian community ought not anywhere to be left destitute of this means of spiritual relief, consolation, and religious instruction. He did not say, that the Protestant clergymen received a shilling too much for the instruction afforded by them to the soldier professing the Protestant religion; nor did he wish to diminish their stipends. All he wished was to remove the grievances of which he complained. It was not his intention to press the motion to a division, if he received an assurance from the Government that the subject would be taken into their serious consideration with a view of remedying the evils which now existed. He submitted, that he had made out a sufficient case for the inquiry, and he should therefore move the appointment of a select committee to consider and report upon the state of spiritual destitution of the Catholic soldiers serving in India and China.
Mr. B. Baringsaid, that so far from denying the claim of the Roman Catholic soldiers to have their material and spiritual comforts considered, he was of opinion they were entitled to as much consideration as the Protestant soldiers. The

1135
principle upon which the Government of India had acted was this. They had never, upon any occasion, that he was aware of, denied a salary to a Roman Catholic chaplain, appointed by a competent authority in that country; and moreover, with the view of encouraging the services of Europeans in that capacity, they had increased the pay of those chaplains. In the provinces of Penaang and Malacca, the salary was 250 l. a-year. In other parts, some of the salaries certainly did not exceed 60 l. a-year; but the chaplains so paid were paid in consideration of the services which they rendered, and the number of persons to whose spiritual instruction they gave their superintendence. The right hon. and learned Gentleman had drawn a comparison between the amount paid to the Presbyterian church and the Roman Catholic church. This was not the time to enter into that question, inasmuch as it involved the expediency of a church establishment, and the complaint was not that the clergy of the church were overpaid, but that the Roman Catholic clergy were underpaid. When troops were spread over a large extent of country, it was extremely inconvenient to give them spiritual instruction; but the governor of India had uniformly acted on the principle which he had mentioned, and had, on all occasions, afforded all the spiritual instruction in his power. The governor of India had also subscribed towards the repairs of Roman Catholic chapels, and had facilitated the introduction of building materials, prayer-books, and other articles necessary for the performance of divine worship. The right hon. and learned Gentleman alluded to certain hardships experienced in the asylum at Bengal, and complained of the capricious interference of the commanding officers, and the attempts made to force the Roman Catholics to receive instruction in a form of worship, not in accordance with their religious principles. This matter was represented to the Governor-general, by whom it was referred to the commander-in-chief, and no time was lost by the latter authority in issuing such instructions as must render it impossible for such practices to be continued. He believed, that the appointment of the committee which had been moved for by the right hon. and learned Gentleman, would not have the effect of bringing any material information before the House, and he
1136
trusted, that the motion would not be pressed, as the system now in operation would remedy the evils of which the right hon. and learned Gentleman had complained.
Mr. Humesaid, when he was in India, the ordinary troops were in cantonments in considerable numbers, and great attention was generally paid to them. At the present moment, when the troops were scattered about, as they must necessarily be in time of war, it was almost impossible to prevent the occurrences of which his right hon. and learned Friend had complained; and no one who had attended to the conduct of the Indian Government, and the care which it usually bestowed on the troops, could hesitate to say that any representations made by the Roman Catholics would be readily attended to, for their own interests would induce the Government in India to make those troops as comfortable as possible.
Sir H. Hardingewas glad that the right hon. and learned Gentleman had brought forward his motion in such a temperate tone, and there could be no doubt that his statements would receive the full consideration which they deserved. At the same time he was bound to say that some of the complaints made had arisen from accidental causes, and such occurrences would now and then take place when regiments were very much dispersed. He could state, on behalf of the Army generally, that in every regiment there was a desire on the part of the officers to pay every attention to the wishes of their Roman Catholic brethren. He would call the attention of the right hon. and learned Gentleman to what took place the year before last. Mr. Langdale brought forward a motion with respect to the conduct of the commissioners of the school at Chelsea. The commissioners,- one of whom was the Bishop of London,—afterwards met, and they decided that it was not proper, nor was it the intention of any of the parties to compel the children of Roman Catholic soldiers to be taught the church catechism; on the contrary, there was to be in that asylum the most perfect liberty of conscience, and the resolution passed by the commissioners was to this effect—that, subject to some minor restrictions, every child of a Roman Catholic soldier, or belonging to any sect of Protestant dissenters, should be exempted from the duty of learning the church

1137
catechism, and should be suffered, under the regulations of the asylum, to attend the public worship of the religious persuasion of such soldier, and every application for the relaxation of the rules in the case of such child should be made by the father, if living, or by the mother. The whole question was settled to the satisfaction of Mr. Langdale, a Roman Catholic Member of the House, and a most respectable gentleman; and he felt convinced that the same system, the same rules, and the same principle pervaded the whole of the army. This country received the benefit of the assistance of Roman Catholic soldiers, and he believed there was not an officer in the British service, who would not admit that their religious feelings ought to be respected in every possible way. The right hon. and learned Gentleman said that the Protestant soldier in China when labouring under disease had the opportunity of receiving that spiritual consolation of which the Roman Catholic soldier was deprived. Now he very much feared that the Protestant and Roman Catholic soldiers were both on the same footing in this respect. He feared that there were no longer chaplains in our regiments in China. Of late years it had not been the custom to send chaplains out with the army; and even in the Peninsular war in 1813 there were only ten to the whole army. Both at home and abroad the soldier was invited to attend religious worship according to his own creed either in church or chapel. And the principle laid down was, that the soldier, wherever it was practicable, should be accommodated in the parish church, and there receive his religious instruction; but where there was not sufficient accommodation a separate service was paid for, and a large portion of the 20,000 l. to which the right hon. and learned Gentleman had referred was paid to the clergymen of the Established Church, as well as to the Members of the Roman Catholic religion, for separate services given to soldiers. Now in this state of things it appeared to him that it was better for the soldiers to receive instruction in the parish church or chapel, than to have a chaplain for every regiment. He did not see in what way the existing arrangements could be altered, nor did he see what would be gained by the appointment of a committee. He thought the return to the old system of having regimental chaplains,
1138
either for Protestants-or Roman Catholies, would be full of inconvenience. The greatest cordiality and good fellowship at present existed in our regiments; but if two clergymen of different denominations or creeds should be appointed in the same regiment, he was confident the discipline of the British Army would materially suffer; and if such a system should be adopted on board our ships, it would not only be full of inconvenience, but would be dangerous to the efficiency of her Majesty's navy. He entirely concurred in all that had been said with respect to the merits of the Roman Catholic soldiers, who were entitled to every consideration on the part of the Indian Government, and he trusted, after what had been stated by his hon. Friend, who was connected with the Board of Control, that the motion would not be pressed to a division.
Sir R. Inglissaid, that he would not interrupt the temperate tone of the debate by hazarding a harsh observation on the subject; he knew how much easier it was to conciliate a little peace by the abandonment of a principle; but he could not adopt that course, and he must, therefore, say that he had heard something from both sides of the House to which he could not assent. He therefore hoped that, in a tone of equal calmness, he might be permitted to state wherein he differed from the hon. and learned Member. The principle contended for by the hon. and learned Member would, if carried out, introduce into the army not only Roman Catholic chaplains, but by a parity of reasoning chaplains belonging to every sect of Dissenters, he felt it necessary, therefore, to object to the principle upon which the demand was made. He did not consider it necessary to enter further into those other conscientious objections to such a motion as the present, which it was well known that he entertained, as he would not willingly give offence to the hon. and learned, Member. It was sufficient for him to state, that unless the House was prepared not only to maintain one established clergy, but also to maintain an Established Church in the shape of every variety of creed which any individual could possibly entertain, they could not in principle accede to the present motion.
Mr. O'Connellreplied. He admitted, that he did not know that a better system could be adopted than that which prevailed in Europe, and most of our colonies; but

1139
India was one of the exceptions. In that country, no religious instruction could be obtained from the localities. The troops were surrounded by the heathen. He could not conceive, that he should be violating Christian principles if he went the length which the hon. Baronet (Sir R. H. Inglis), thought so shocking,— namely, that when a considerable number of soldiers of any one persuasion entered a regiment, they should be enabled to attend divine worship without giving up their own religion. On the whole, he did not see that any good could arise from his dividing on the question. The replies of the right hon. Gentleman (Mr. Baring) and the hon. and gallant Officer were so consolatory as to warrant him in withdrawing his motion.
Motion withdrawn.

TAX ON THE DESCENT or LANDED PRO-PERTY.
Mr. Elphinstonesaid, that in asking the House to take into their consideration the propriety of imposing the same amount of duties on succession to freehold and copyhold property as is now paid on leasehold and personal property, he should endeavour, as concisely as he could, to point out to the public the anomalies and injustice of the present system, and then estimate the amount of revenue which might be obtained for the public service if the change he proposed were carried into effect. If he required any authority for the proposition he now made, he might quote that of a statesman, whose opinions were always looked up to with respect by hon. Members on the other side of the House, he meant Mr. Pitt, who, when he originally introduced the present plan of imposing probate duties in 1796 on personal property, also advocated the propriety of imposing similar duties on real estate. Mr. Pitt introduced a bill for this purpose, which he carried through every stage in this House; but it was carried Only by a majority of one on the third reading, and he was ultimately compelled to withdraw it on the question, that the bill do pass, the numbers being equal on a division. The House was probably aware, that the principal statutes now in force in relation to this subject were the 36th, and 45th, and 55th of George 3rd; and the effect of the law as it now stood was this, that if a person died possessed of any leasehold or personal property of any description, a heavy ad valorem tax called a
1140
probate duty was imposed; but if the person died possessed of freehold or copyhold property, no tax whatever was imposed; in addition to this, a duty called a legacy duty (which varied according to the degree of relationship of the parties receiving the property to the deceased) was imposed on leasehold and personal property, and also on charges on real estate. But if the testator chose to make a bequest of the land itself, then no legacy duty was chargeable on such land; so that while the land might be of great value, and the charges upon it of inconsiderable amount, the new owners of the land were exempted, while the poor man, who only received some small annuity out of the estate, was liable to the legacy duty. It appeared to him, that this state of the law was most unjust to the public at large. The public were continually told of the enormous value of landed property. If it be so much more valuable than other descriptions of property, why should it not contribute its just share of the burdens of the state? He could not understand on what fair principle it was that one man, by investing his savings in freehold property, was to relieve his children from contributing to the exigencies of the State, while another man, who chose to invest his money in the funds, was to render his descendants for ever liable. Could it be reconciled to the commonest principles of justice that the poor man, who saves by his industry a few hundred pounds, was to have his savings taxed, while the rich and wealthy heir to landed property of enormous value was to escape? Why was leasehold property to be subject to this tax, if copyhold was not to be subject? And if copyhold was to escape, on what principle was leasehold to be charged? Why was a reversionary interest in property in the funds to be taxed, while the entailed estate was to escape? On what principle could you exempt a farm, directed to be sold, from probate duty, while it was subjected to the legacy duty? Since he had first mentioned the subject he had received various communications from different parts of the country, pointing out the unfairness of the present system. He would read to the House, as most pertinent to the question, an extract of a letter from a gentleman residing at Leamington;—
"I was compelled to pay probate and legacy

1141
duty on the death of my father, whilst, about the same time, the whole of the very large parish of Beaulieu (containing 13,000 acres of laud, and in value nearly half a million) passed from the late Duchess of Buccleuch to her son, the present Lord Montague; and also a large estate in this and two adjoining parishes (worth nearly 100,000 l.), which passed from the late Bishop of Winchester to his son, the late Mr. Tomline—in both cases without payment of probate and legacy duty, because the properties were freehold. I feel naturally galled, that my relatives and myself should be compelled to pay this tax on our personal property, derived from the savings of a long, laborious life, whilst those who imposed this tax on us did, whilst they so taxed us, exempt their own freehold estates of enormous value from similar taxation."
Since those taxes were imposed, in 1797, they had produced to the revenue no less a sum than 62,329,084 l., as appeared by the following account:—

TOTAL DUTY RECEIVED SINCE 1797.

Legacies.

Probates and Administrations.

England

£32,136,634

0

7

£25,504,823

18

8

Scotland

1,862,755

19

4

1,274,941

0

2

Ireland

609,840

5

3

940,089

7

11

£34,609,230

5

2

£27,719,854

6

9

Total.

£62,329,084

11

11

And during the financial year ending in January, 1842, they have produced upwards of 2,000,000 l., according to the following table:—

AMOUNT OF REVENUE RECEIVED IN THE YEAR ENDING JAN. 5,1842, FOR STAMPS ON LEGACIES AND PROBATES, AND LETTERS OF ADMINISTRATION.

Legacies.

Probates and Administrations.

England

£1,109,317

1

7

£915,351

19

6

Scotland

69,787

15

7

57,955

0

0

Ireland

30,020

14

7

38,564

4

0

£1,209,125

11

9

£1,011,874

3

6

Total.

£2,220,999

15

3

It must, of course, be difficult to estimate accurately the amount that would be received if those duties were imposed on landed property; but he thought they would produce between 1¼ and 1½ millions. He arrived at this result by referring to the figures made use of by the right hon Baronet, the Member for Tamworth, in the course of his financial statement. The right hon.' Baronet had estimated the rental of land at about 40,000,000 l. per
1142
annum, and he had estimated the rental of houses at 25,000,000 l., and income from British and foreign funds at 30,000,000 l., making a total of 95,000,000 l. As the personal property of which the estimated income was 95,000,000 l., had produced upwards of 2,000,000 l. of duty, it was fair to estimate that the 40,000,000 l. of rental would produce upwards of 1,000,000 l. of duty; and though, on the one hand, part of the rental was probably entailed, yet, on the other, some of the houses were freehold, so that their incomes would probably compensate each other. He could obtain the same result by another calculation—the duration of life in the easy classes of society might be reckoned at fifty years, and it might also be calculated, that persons came into possession of their property when about thirty years of age, which would show a change in the ownership of landed property every twenty years; which would show (assuming the rental to be 40,000,000 l.), that a rental of about 2,000,000 l. would be every year subject to the tax. Now, at twenty-five years' purchase, the fee simple of this would be 50,000,000 l. It had been estimated by a gentleman well acquainted with these matters (the late Mr. Gwynne, comptroller of the legacy duties), that, on an average, the amount received from legacy and probate duties, was about 3 per cent, on the value of the personal property subject to these duties in each year; and applying this calculation to the 50,000,000 l. worth of land which would be subject to the tax, you would get a revenue of 1,500,000 l. He ought to add, that these calculations were the lowest amount that would be received—in all probability the produce of the new tax would be much more. During the late debates on the Income-tax, the right hon. Gentleman, the Chancellor of the Exchequer, and the noble Lord, the Secretary for the Colonies, had expressed an unfavourable opinion to the motion he now made. He ventured to say, that the arguments made use of by those right hon. Gentlemen were without foundation. To begin with the right hon. Gentleman the Chancellor of the Exchequer; that Gentleman bad stated, that the legacy duty received on personal property in six years, from 1796 to 1803, was 5,109,635l., and that the act of 1805 (the 45th George 3rd) having imposed a legacy duty on the

1143
charges on land, he found that in the six succeeding years the legacy duty rose to 14,700,000 l.; and, therefore, there remained 8,900,000 l. as a legacy duty paid by land. He thought that the right hon. Gentleman had stated too much for the purposes of his argument. In the first place, these figures were not strictly correct, as part of the increase had been occasioned by the legacy duties on personal property being raised. But even admitting that the whole rise had been occasioned by making charges on land liable to the duty, still, as the right hon. Gentleman had forgotten to state to the House that the land so chargeable was not subject to probate duty, and as the probate duty bore to legacy duty the proportion of one to one, the right hon. Gentleman had shown by his own figures that there was a loss to the revenue of at least 8,900,000 l., in consequence of probate duty not having been charged during the period he had alluded to. The next fallacy of the right hon. Gentleman the Chancellor of the Exchequer was this. The right hon. Gentleman had stated, that the stamps on deeds amounted to no less a sum than, in England, 1,443,043 l.; in Scotland, 103,671 l.; in Ireland, 118,580 l. —total, 1,665,294 l.; and, consequently, that the landed property of this country was subject to a very heavy tax from which other property was exempt. No doubt, if the facts stated by the Chancellor of the Exchequer were true, his inference would be correct; but what would the House think when it turned out, on inquiry, that this amount of 1,665,294 l. included not only stamps on conveyances and mortgages, but every species of legal deed to which personal property was liable, and was therefore totally inapplicable to the argument. He would mention a few of the items, comprising this sum of 1,665,294 l., and the House could judge for itself. There were admissions to the learned professions, affidavits, agreements, bonds, charter parties, leaseholds and leases, certificates on drawbacks, deeds of all sorts, and declarations of trusts, grants and letters patent, powers and warrants of attorney, duties on law proceedings, mortgages, stamps on policies of life assurance, and settlements of personal property. He certainly had never heard a statement made in that House more calculated to mislead than that of the right hon. Gentleman, the Chancellor of the Exchequer.
1144
He would venture to assert, that out of the 1,680,000 l. so confidently alluded to by the right hon. Gentleman, not more than 400,000 l. at the very outside was paid as stamp duty on the conveyance of freehold or copyhold property. It also ought to be recollected, that the chief part of these conveyances took place in the neighbourhood of large towns, where plots of ground were required for the purposes of building, and did not, in fact, fall upon the landed gentleman, but on the tradesman and merchant who required the ground. In corroboration of this he might say, that the late Mr. Humfreys, the conveyancer, estimated that in Middlesex almost the whole of the land changed owners every fourteen years. If the stamps on conveyances are too high, the proper course for the House to adopt would be to reduce them. He did not, however, believe them to be more unjust to the landowner than receipt stamps to the tradesman. He thanked the right hon. Gentleman for alluding to mortgages. There was no duty in the whole of the Stamp Act which more clearly demonstrated that the laws in this country were made for the rich, and not for the poor. If a needy tradesman requires to borrow for the purposes of his trade the sum of 50 l., he has to pay 1l. as duty, while the rich landowner who wishes, for the purpose of improving his property by making roads or canals, to borrow 10,000 l., only pays a duty of 12 l., while if he were charged at the same rate as the needy borrower of 50 l., he ought to be taxed 200 l. If the sum of 1l. is a fair tax on 50 l., the following table would show the loss to the public by the existing system:—

Sum borrowed.

Stamp duty now paid by law.

Correct stamp duty.

Loss to revenue.

£

£

s

d.

£

s.

d.

£

s

d

50

1

0

0

1

0

0

0

0

0

100

1

10

0

2

0

0

0

10

0

200

2

0

0

4

0

0

2

0

0

300

3

0

0

6

0

0

3

0

0

500

4

0

0

10

0

0

6

0

0

1,000

5

0

0

20

0

0

15

0

0

2,000

6

0

0

40

0

0

34

0

0

3,000

7

0

0

60

0

0

53

0

0

4,000

8

0

0

80

0

0

72

0

0

5,000

9

0

0

100

0

0

91

0

0

10,000

12

0

0

200

0

0

188

0

0

15,000

15

0

0

300

0

0

285

0

0

20,000

20

0

0

400

0

0

380

0

0

61,000

93

10

0

1,223

0

0

1,129

10

0

So that the country lost no less a sum than 1,129 l. on thirteen mortgages. The

1145
noble Lord, the Secretary for the Colonies had said that hon. Members on this side of the House had forgotten the charges on marriages or family settlements. Really the noble Lord could not have made accurate inquiries on the subject, if he thought the charges on marriage settlements were a reason for exempting real property from legacy and probate duties. What were the facts? Why, that personal property paid more in proportion than land in case of a settlement. Supposing A and B were desirous of settling 20,000 l. on the marriage of their daughters on the usual trusts, A being a landowner and B a fundholder; did the noble Lord know what the stamp duties would be? In the case of A (the landowner) he would have to pay

l

s

d

1

15

0 deed stamp

6

5

0 five skins.

£8

0

0

but in case of B (the fundholder) he would have to pay

l

s.

d.

25

0

0 duty on 20,000 l

6

5

0 five skins.

£31

5

0

being the large sum of 23 l. 5s. more than the landowner had to pay. He was sorry to trouble the House with these details; but the only way of answering the fallacies that had been brought forward in defence of the present unjust system was by pointing out the mistakes that had been made. He did not think the present scale of probate duties on personal property a good one; but still, if probate duties were imposed on landed property, the inequalities of the scale might be altered. He thought, on the whole a tax falling on property after death was a good tax; it was in the nature of such tax to be unavoidable. If a tax were laid on wine, or on any article of consumption, the public might evade the tax, by not using the article; but as every man must die, and leave his property behind him, the whole property in the United Kingdom must sooner or later become subject to the tax. He would no longer trespass on the attention of the House, but, repeating that he believed the proposition he had made was founded on justice and reason, he would leave it in
1146
the hands of the House to decide as they might think best for the interests of all classes of society in the United Empire. The hon. Member concluded by moving,
"That it will he expedient for this House, at an early period, to resolve itself into a Committee of the whole House, for the purpose of considering the act 55 George 3rd, c. 184, with the view of imposing legacy and probate duties on succession to real estates, of the same amount as are now imposed by the said act on succession to personal property."
The Chancellor of the Exchequerwas sure, that every hon. Member who had heard the hon. Gentleman would be convinced, that this motion was brought forward more with the view of discussion than for any practical result. As far as the probable effect of such a change went, the House had practically discussed the subject when the noble Lord, the Member for London, had moved his resolutions. He had then stated, that by imposing the same duties on real and personal property, they would not produce so large a revenue as was anticipated, neither would it place the two properties on an equal footing. The hon. Gentleman proposed by his motion "to consider only the act of 55 George 3rd, c. 184, with a view of imposing legacy and probate duties on succession to real estates of the same amount as are now imposed by the said act on succession to personal property." Now, the hon. Gentleman was well aware that his motion merely meant to deal with real property, which was not under settlement—for the act which imposed the legacy and probate duties dealt with no personal property under settlement; if a party divested himself in his life-time of all property that could pass by devise, his estate paid no legacy or probate duty. It was clearly the view, therefore, of the hon. Member to apply his proposed enactment only to unsettled landed property. He was anxious to impress this upon the House, because it would have an extensive influence on the amount which the hon. Gentleman calculated he should obtain; and was important in determining whether the tax would really have the effect suggested. He had stated on a former night—and his statement had not been controverted— that the great bulk of the landed property of this country was under settlement; and if the same duty that was now applied to personal property were extended to real property unsettled, a large portion of the.

1147
landed property of this country would be as much exempted from the payment of this duty as it now was. He had stated then, and he had been since confirmed in the opinion, that the largest part of the unsettled landed property belonged to the small proprietors, and the effect, therefore, of the hon. Member's motion would be to exempt the bulk of landed property, which belonged to the large holders, and impose the duty on the smaller, superadding the legacy and probate duties to the charges to which they were at present subject. He, therefore, conceived, that the tax would upon this ground alone disappoint the hon. Gentleman, so far as the amount of revenue to be derived from it went. With regard to the property of the Duchess of Buccleugh, of which the hon. Gentleman's correspondent complained as not being liable to duty on its passing to Lord John Scott, no duty would have been paid under the present proposal, for the property did not pass by devise, but under a settlement made many years before by a former owner. So also was it with respect to the other property of large amount, to which the hon. Gentleman had adverted. Then, said the hon. Gentleman, "Your stamp duties are generally liable to the charge of committing great injustice, and operate most unequally." He would not then defend the stamp duties; he did not deny that they were imperfect; he had some years since himself endeavoured to effect a general reform, but he had been impeded by the numerous objections made by hon. Gentlemen to different parts of his plan. His successor, Lord Monteagle, had also attempted a reform; but he, too, was assailed by such general objections, that he was glad to retire from the fire under the shelter of a reduction of the duty upon newspapers. Although he thought that some improvement might be made, and although he was willing to look, after due consideration, to a change for the better, yet of course the power of doing this must depend, not only upon persons in office under Government, but also upon those who had thought upon this subject, and who were willing with a view to general benefit, to waive individual objections. Equal, or unequal, however, as the stamp duties might be, they had no very material bearing upon the question before the House. Inequality there assuredly was, but certain circumstances must be taken into account, and it must
1148
be recollected, that as they were laid on for the purposes of revenue, if they were theoretically equal, they might, for that purpose, be practically inefficient. The hon. Gentleman had stated, that personal property was subject to the probate and legacy duties, which had no reference whatever to land. It was true, that the act which passed in 1796 did not relate to landed property, and that Mr. Pitt was defeated in his attempt to include land; but Mr. Pitt returned to the attack, and not only succeeded in imposing the legacy duty upon personal property, but also on all real property directed to be sold. He thought, that he had shown the proportion between the amount of legacy duty paid on personal property and real property to be as eight to five. He admitted there was an inequality as to the probate duty, but the legacy duty was paid in the proportion he had mentioned. He would now consider a little what was the effect of investing money in land and in the funds, so far as the payment of taxes to the revenue was concerned. Suppose a man having 10,000l. of property wished to invest 5,000 l. in the funds, and 5,000 l. in land; if he purchased land he would be subject to a considerable amount of charge. It was difficult to say what was the relative amount of stamp duties paid on personal property and on real, but he had procured from the stamp-office a return of what would be the amount of charge imposed on an individual who laid out 5,000 l. upon land. First, there was the duty on the contract of 1l; on the lease for years the charge was 1l. 15 s.; on the principal skin of the covenant the duty was 55 l., and there was also a duty upon every succeeding skin, amounting on all to 6l.; there was a charge of 2l. 10 s. on the attested copies; and a charge of 1l. 15 s. upon the outstanding term. And thus a total charge of 68 l. upon the transfer of land was made, which was to be paid down in the first instance. But he would now see what it would cost a man to invest his money to the same amount in the funds. It would cost him nothing; for he might walk into the city, and without any expence on account of stamp-duty, his money might be invested, and become immediately profitable. Returning now to the case of a landed proprietor, he would suppose that he lived for twenty years, and that at the expiration of that period he

1149
died, leaving his lands to his son. The 68 l. which he had paid in the first instance, if he had retained it in his own hands, would in the course of that time, have become more than doubled, but he would now be called upon to make no fresh payment in respect of his property. Supposing the man possessed of personal property to have also died at the expiration of the same period, also leaving his money to his son, a charge of 50 l. would be made upon the 5,000 l. which he had supposed him to possess, and thus the transfer of the personal property would be effected at a cost far less than that which would attend the disposal of landed property from one individual to another. Undoubtedly if the personal property of the deceased person was bequeathed by him to his brother or to a stranger, the charge for legacy duty would be considerably greater than he had suggested, though still smaller than the accumulated amount which the 68 l. the landed proprietor would be liable to pay would have amounted to, had he been exempted from payment for the same period; but in arguing cases of this description he thought that it was more fair and just to take the ordinary course of succession to the son, than the more unusual one of bequest to a stranger. So much, then, for instances of particular estates. The hon. Member had said that a large proportion of the deeds in respect of which stamp duties were payable, were not, in truth, applicable to real property, but applied rather to matters relating to personal property; but from inquiries which he had made of those who were best able to afford information, and to draw just calculations, he found that a very large proportion of the duty derivable from this source was, in truth, paid in respect of deeds which affected or related to landed property, and not personal property, many of the latter being found to produce very little or no revenue on their being taken into account. The difficulty in arguing this question was, that they had no precise data to go upon, and that they could only found their conclusions upon general calculations; for, to go through the whole of the stamp laws with a view to the arrival at minute results, was a task the accomplishment of which would require the application of the force of a very large establishment. Those who were best acquainted with this subject calculated the total amount of these deeds
1150
at 1,700,000 l., and of this a sum of 1,100,000 l. had reference to landed property; while 600,000 l. only was the amount in regard of personal property. But if the hon. Member was induced to suppose that he had calculated this at an improper ratio, he would take the comparative amount to be as two to one. [Mr. Ewart: You include leases which are personal property.] A lease on a landed estate was said by the hon. Member to be a chattel—a mere matter of personal property; but although this might be perfectly true, he said that it was a charge upon the landed estate. He did not know whether there were any other points in reference to this subject to which it was necessary for him to refer, but he must say, that the view which he took of this question remained unaltered after all that he had heard in the course of this evening. He did not deny that the stamp duties might and did require amendment, and that it was difficult, without a very careful and a very minute examination of them, to ascertain which of them applied to landed and which to personal property; but he contended that if this motion was carried, the effect of it would not be to produce that revenue which it was said would be realised from it; but that it would operate only on the small class of landed proprietors; but considering that they had among them some of the most independent and useful members of the community, he should be indisposed to press upon them with any undue measure of increased taxation.
Mr. Humethought, that the right hon. Gentleman who had just sat down had made out so strong a case as to induce the House to vote in favour of his hon. Friend's motion. The right hon. Gentleman had said, that there was great inequality in the operation of the stamp laws, and he had admitted, that the burdens on personal, were as eight to five on real property. He told the House, however, that if this motion was carried, the existing law of settlement of land would prevent its being liable to the taxation, which was expected from it, but to that he said, that an act of Parliament might easily rectify this. He contended, that if any such exceptions existed, inquiry ought to be made, and these should be removed, as what was really wanted in this country was equality of taxation. He had received many letters complaining of the

1151
inequality of the existing taxation upon what was considered real and personal property. As an example, in a letter from Devonport, he learned, that the estate of Sir John St. Aubyn, in that borough, worth 16.000 l. per annum, was leased for lives, and that the whole of those leases would be charged probate and legacy duty, while the freehold estate of Sir John St. Aubyn adjoining would go by descent without the payment of any duty at all. The right hon. Gentleman had stated, that the proposed tax on real property by descent, would fall upon the small landed proprietors. Why, that was the complaint under the existing law, for in ninety-nine out of 100 cases, the property of the poorer class was sold to be divided amongst children or relations and thus paid legacy duty, while in 999 out of 1,000 cases the real estate of the aristocracy went direct to the heir-at-law, and did not contribute any duty to the Exchequer. With regard to the complicated nature of the stamp duties and the alleged difficulty of getting data on which to assess real property by descent, he submitted it as the duty of Parliament, in the present state of the nation, to ascertain and define accurately the distinct burdens of taxation, and how they pressed on every class of the people. The right hon. Baronet at the head of the Government had taken fire or six months maturely to consider and digest his views and propositions, before submitting them to the House. Why had he not appointed a commission at the close of the last Session to inquire into the nature of the burdens on real and personal property, and then he would have been enabled to furnish full information on this very subject about which so much difficulty was said to exist —information upon which Parliament and the Government might have acted. If Mr. Pitt had wished to tax real property, he would have had no difficulty in providing that the settlement of estates should not escape the fair burden; and, while mentioning the name of that Statesman, he could not avoid stating to the House, that there never was an act of the Legislature which proved more clearly the influence of class legislation than that by which the legacy duty on personal was first imposed, and real property exempted. He had, on a former occasion, adverted to the history of that bill, as it was found in the Journals of the House. It ap-
1152
peared, that a message from the Crown, on the 8th December, 1795, called upon the House to make provision for the extraordinary expenses of the public service, and two resolutions were proposed and passed by the House, expressing their opinion, that the duty should be charged equally upon real and personal property. The first of the resolutions was as follows:—
"Resolved, that it is the opinion of this committee, that towards raising the supply granted to his Majesty, a duty be charged upon the clear value of any real estate, that upon the death of any person, shall descend, or pass by devise, or by force of any gift, grant, or conveyance, or by act or operation of law, to, or to the use of, or in trust for, any person or persons of the kindred of the deceased in the several degrees hereinafter mentioned (except purchasers for valuable consideration actually paid), in fee simple, fee tail, or for term of life or lives, according to the rates following."
The second resolution was in the following terms:—
"Resolved, that it is the opinion of this committee, that towards raising the supply granted to his Majesty, a duty be charged upon every legacy, and upon every share or residue of the personal estate of any person dying and leaving such estate of the clear value of 100 l. or upwards, which shall pass either by devise or by force of the statute of distributions, or the custom of any province or place, to any of the kindred of the deceased in the several degrees hereinafter mentioned, according to the rates following."
These were the resolutions on which Mr. Pitt proposed to levy an income-tax, equally on real and on personal property; and on the 8th of February, 1796, two bills were introduced founded upon these resolutions. On the 10th of the same month the bill for taxing personal property was read a second time, and ordered to be committed for the 12th. It was considered in committee on the 17th; and on subsequent occasions up to the 17th of March, when the report was considered; the third reading was carried on the 5th of April, by sixty - four to sixteen votes, the bill passed, and eventually received the royal assent on the 21st of April, 1796. With respect to the tax upon real property, however, the course was far different. The second reading of that bill was fixed for the 21st of April; on the 22nd it was committed; on the 25th and 26th it was also considered in committee; on

1153
the 5th of May the report was considered; on the 9th of May it was moved, that the reception of the report be deferred for three months, which was negatived by a majority of eighty-one to fifty-one; on the 12th and 13th of May the third reading was discussed, and the motion, that the bill be now read a third time, was lost by two, the numbers being for the third reading forty-six, against it forty-eight. A motion was then made, "that the bill be read a third time to-morrow," on which the numbers were fifty-four to fifty-three; and on the main motion for the third reading the House again divided, fifty-four to fifty-four. The Speaker gave his casting vote in favour of the third reading; but, upon the bill being brought forward the next night, it was postponed for three months, without any division or any cause being assigned, and nothing more was heard of it. He had been informed, that the cause of that course being adopted was, that certain of Mr. Pitt's supporters had visited him in the morning, and had told him, that if he pressed on the bill he should no longer receive their assistance; and the personal property had paid upwards of 62,000,000 l. sterling as legacy and probate duty in these forty-six years; whilst real property had not paid one farthing. He (Mr. Hume) contended, that the cause of this class legislation was, that the people were not represented in the House; and it must be evident to every person, that to refer such a question as this to the House(of Commons as at present constituted, was to refer it to a jury of landowners, whose interests were opposed to those of the country at large. He contended, that the right hon. Baronet was maintaining the interests of the landed proprietors in opposition to those of the country in general, and he thought, that the right hon. Baronet would have some difficulty in proving to the House, that he was treating these with equal justice. He believed, that the right hon. Baronet was in a position of great difficulty—that he had hard taskmasters over him, and that he was unable to do that which he really thought would be for the interest of the country. But it should become a question for the right hon. Baronet soon to do justice to all interests: he differed altogether as to the amount of the tax which would be derived from the real property of the country. He took the value of
1154
landed property, as it was stated at a meeting of landed proprietors, in the course of last year, that the capital employed in land was three thousand millions sterling in amount. The average time for which that property would remain in the hands of the same proprietor, he was told, was thirty-three years, so that if this property were subjected to a tax of only 3½percent, on its transfer, an annual return of two and a half millions would be produced. Why, then, should the House be called upon to impose this obnoxious Income-tax upon traders and others, and thereby twice to tax personal property, when so just a tax as one on real property by descent, was capable of realising the total amount of the deficiency complained of? He contended, that there was no man in that House, who was desirous of doing justice to the people of this country, who ought not to concur in the view which he had presented to the House. He thought, that his hon. Friend was fully justified in bringing this subject before the House, and he hoped, that he would be supported in it. Instead of an Income-tax to add to the burdens of the people, this was a time when they were called upon to effect a reduction by economy and retrenchment in the expenditure of the country. Her Majesty, in her Speech from the Throne, had called their attention to that subject, but as yet nothing had been done to effect that object, and he should like to be informed what steps had been taken by the right hon. Baronet towards that end? He maintained, that they were not acting honourably in pressing the partial and unjust Income-tax bill, and on that ground he should divide in favour of his hon. Friend's motion.
Mr. Ewartthought that the right hon. Gentleman, the Chancellor of the Exchequer, had argued upon a fallacious ground, when he had treated this question as if landed property and real property were convertible terms. There was a distinction between them which he thought he should be able to point out, for leasehold property was landed property, while it was not real property. The right hon. Gentleman, by a skilful species of legerdemain, had contrived to leave the case before the House as if the two kinds of property were of the same character. Leasehold property, however, did not partake of the quality of real properly, but was of the

1155
nature of personalty. There was a second point to which he would also refer. Leasehold property, in its character of personal property, paid the probate and legacy duty; but it was not only subjected to this burden, but, by reason of its connection with land, it was also called upon to bear the additional charge of stamps in transitu. This was the effect of a law which had been made by a predominant majority, but which, he thought, ought not to be continued after it was once pointed out.
Mr. Wallacesaid, that in the country to which he belonged, the probate duty was the most tyrannical, disgraceful, and the most stringent perhaps of any enactment known in that country; it was, however, a little more genteel in England, and a little more prompt than in Scotland; and whilst the House was arguing the question as related to England, he demanded that the inquiry should also be applied to the country of which he spoke. If landed property paid its fair proportion of duty, the owners of the property would take care that the law should not act as it did at present. He attributed the present evil state of things to that horrid system of class legislation which prevailed in this country. Class-legislation prevailed to a great extent in that House, as was manifested in the passing of the Corn-law Bill; for he repeated that that bill was wholly made to assist that part of England which grew the best wheat. It was great injustice to make any distinction between the taxation of real and personal property. But this was the result of class-legislation. He hoped every man on his side of the House would denounce class-legislation; and whenever he got to the other side along with his friends, whenever that time might be, he hoped their opposition to that system would be unceasing, for it was class-legislation that had caused the present depressed state of our trade, manufactures, the shipping interest, and our foreign and domestic commerce. Hence there was no investment for capital, and consequently money was crowded into the funds and the Bank. The fact that the interest of money was never so low proved this. He affirmed that the rise in the funds, of which the right hon. Baronet boasted as a triumphant indication of his policy, was not produced by his measures, but by the general stagnation of trade, &c.; and he
1156
was sure that if what he then said should go before the public, many would join him in defying the right hon. Baronet to contradict his assertion.
Lord J. Russellsaid, that there appeared to him to have been two strong objections stated to the present motion, one of which was that made to the words of the motion by the Chancellor of the Exchequer, who told the House that if this tax were imposed upon real property, were imposed upon the succession to real estates to the same amount as was now imposed upon personal property, in the first place it would not effect the object in view, of making an equality in those duties, and in the next place it would give but a small amount to the revenue. The reason given by the right hon. Gentleman was, that personal property which was settled was not liable to the probate and legacy duties, and therefore that a tax upon real property to the same amount would not affect that portion of it which was settled. He thought that a sound objection to the motion; but he owned that he did not see, and he heard no reason advanced why, if they had a tax upon the succession to property, that tax should not be equally imposed, or why it should not be applied to settled as well as to other property. He could understand the objection to a tax upon the succession to property, that it amounted to something very like a confiscation of the whole property; but if they agreed that it should be to a moderate extent only, and used it as one of the sources of taxation, he could not see the justice of saying, "We will impose that tax upon all property which is not settled, but large estates, which are settled, shall not be made to contribute to the revenue of the country in this way." The hon. Member for Dumfries stated, and he believed truly, that leasehold property, which was chargeable with and paid part of these legacy and probate duties, was likewise liable to stamp duty on conveyance, and was thereby liable in both characters to this tax. He believed also, that it was quite true that there was a great portion of property settled in families, and descending from father to son, or from one relation to another, which did not come within the operation of this tax, and which was entirely exempted from the bill of the right hon. Baronet; and therefore did he think, that although the objection to the terms of the motion might be sound, it did

1157
not take away the value of the general principle of the motion. If it were said that these taxes should be rendered productive to the revenue, and that they should be made equal—that great estates should not be exempted while small estates and small properties were subject to them, then would he agree to the proposition. There was also another reason why he could not vote for the motion, a reason to which the Chancellor of the Exchequer very naturally had not adverted. He thought the Government had a fair right to call upon them to agree to some system regarding the finances of the country. The system they had proposed was to impose a large amount of taxation on property and income. He had already stated it as his opinion that that was a measure to which they ought not to resort—that they had other means at their command of supplying the Exchequer, and amongst them an increase of the assessed taxes and an arrangement of the probate and legacy duties. The House had refused to agree to his proposition, and had since upon two occasions affirmed the principles of the right hon. Baronet's bill. That being the case, he did not think it would be advisable in him to aid by his vote a proposition for imposing additional taxes upon the country. He regarded an Income-tax as unadvisable and unnecessary, but he did not think it would be at all amending the condition of the country if, in addition to that tax, they were to consent to impose an additional burden on the country in the shape of probate and legacy duties. He thought it would be very fit when the Income-tax was passed to go into a revision of those probate and legacy duties, to say that so much was collected by them, that they would not increase that amount, but that it should be fairly levied upon all species of property. He would diminish taxation upon one kind and increase it on another kind of property, so as to make the tax fall more equally. As the motion stood on the paper, therefore, he could not give it his consent. As one of those who considered taxes as well as commercial restrictions in themselves an evil, he should not feel himself warranted, from any abstract love of this tax of probate and legacy duties, in giving his vote in favour of such a tax. Although he agreed, therefore, that there should be an amendment made in the present system, and that the hon. Gentleman's case had
1158
not been answered by the Chancellor of the Exchequer, yet he could not upon a division vote in favour of the proposition. He, however, hoped that the question might be reconsidered at a future period, and that justice would be introduced into this species of taxation. The right hon. Gentleman himself admitted that the stamp duties were not altogether what they ought to be.
Sir R. Peelsaid, he thought that the hon. Member for Montrose had given proof during the short period of time which had elapsed since his return to that House that he had returned to it like a giant refreshed. It would really appear from the charges which the hon. Member had brought against him that the hon. Member was not aware of what had been passing during his absence. The charge against him was, that he had deluded the agricultural interest, that he had conciliated their favour by false praise, that he had misused the power and the confidence that had been placed in him, and that if he were now to appeal to the country, such would be the indignation of the agricultural classes, on account of the deception practised towards them by him, that he should assuredly be left in a small minority. An attempt was thus made by those who supported the hon. Member, to excite dissatisfaction in the agricultural friends and supporters of the Government, on the ground that he had grossly betrayed the trust reposed in him and shown himself peculiarly unfavourable to them. Such had been the charge. The hon. Member now stated that he ought to be convicted of the grossest partiality, that he was the advocate of class interests, that he sacrificed the general interests of the community to a landed monopoly, and that he ought to be sentenced to condign punishment for so acting. Now, he felt convinced that a large portion of the community would believe that he had endeavoured to discharge his duty; that he had discouraged other considerations than those which a conscientious sense of public duty had dictated, and that he had attempted to do justice to all classes in the State. Thus was he on the one hand accused of having deceived the aricultural interests, and on the other of sacrificing every other interest for the sake of their class interests and for their peculiar benefit. He was surprised that during the absence of the hon. Member for Montrose

1159
from that House he had not meditated a little on the course which he himself pursued last Session; because, when the hon. Member denounced a property-tax as the most unjust of all taxes, that it seriously affected the industrious classes, and that it was in its very nature an odious tax. [Mr. Hume: The inquisition.] But the inquisition would apply to property. The hon. Member said, that the tax would diminish the funds of labour. [Mr. Hume: No.] Now, stop. He found that the hon. Member voted last year in favour of a motion stating "that the assessment of all property, real and personal, within the United Kingdom;" he apprehended that funded property was personal property. But the hon. Member contended last night that there never was a more iniquitous breach of public faith than in the taxation of personal property. He had heard the hon. Member say that parties who incurred debts and then taxed their creditors were guilty of a shameful violation of public duty; that all those who lent money were clearly entitled to an exemption; that it was perfectly right to tax the landowners, but that he objected altogether to taxation upon incomes derived from professions or trades. Last night the hon. Member said that any tax upon personal property was a violation of public faith, and yet he understood that the hon. Member voted last Session "that the assessment of all property, real and personal, in the United Kingdom, would be a fit and proper substitution for the excise and customs' duties." Would you tax funded property for that purpose? If it were at all a violation of public faith, it was as much so to tax funded property for the purpose of relieving the industrious classes of the people from the excise duties as it was to tax it for the purpose of redeeming the country from a great political emergency. If it were a violation of public faith to tax property it must be as great a violation in one case as the other. He could not consider this motion in any other light than as a renewal of the debate on the second reading of the Property-tax Bill. He did not mean to say that it was not perfectly fair, but it was quite clear that the motion and discussion on it was an obstruction, and an intentional obstruction, to the progress of that bill. He did not mean to say that it was a vexatious or factious obstruction, but that practically it was an obstruction. If the hon.
1160
Member denied that it was a practical obstruction to the progress of the public business, then was the hon. Member good enough to propose an additional taxation on the country of 1,500,000 l. [Mr. Elphinston: No; as a substitute for schedule D.] The hon. Mover only proposed a reduction of one-half of schedule D. He proposed its omission, but he also proposed that the landed property of the country should remain in schedules A and B, and be liable to the legacy and probate duties. When they got to schedule D a discussion would arise as to the propriety of exempting incomes derived from professions and trades, and he should then be prepared to contend that in proposing a tax upon property it was just to tax income so derived as well as income derived from landed property. He should contend against the hon. Gentleman's proposition on more advantageous terms. The hon. Gentleman said, that a property-tax was perfectly justifiable—not only justifiable, but that there should be an additional impost in the shape of legacy and probate duties. As justly observed by the noble Lord, the hon. Gentleman's motion, according to its terms, implied only this—that real property should be subject to the legacy and probate duties upon the same conditions as those upon which personal property was now taxed; personal property being the subject of settlement was now exempted from those duties, and consequently that if the hon. Gentleman succeeded in carrying his motion, and if the conditions on which it was founded were strictly adhered to, he would exempt from the liability to legacy and probate duties all large estates in this country which were the subject of settlement. It might be open to discussion whether the fact of settlement should prevail against those duties either in the case of real or personal property; but all the hon. Gentleman proposed was, that real property was to be subject to the same conditions that personal property was now subject to. It being exempted, it was quite clear that the only cases in which the hon. Gentleman would effect his object were those of landed estates which were not the subject of settlement, and consequently those which probably did not constitute the great mass of property in this country, or, at least, which were not the property of the great landed proprietors of this country. He trusted that the House, having given its assent to the

1161
principle of the Income-tax, having again and again affirmed that principle—he trusted that the majority of the House would not consent to a motion which evidently disturbed the arrangement to which the House had already agreed. The noble Lord had referred to the legacy and probate duties; but he believed that the noble Lord had not included them in his own motion. The noble Lord mentioned other taxes which he thought might be tried— taxes upon articles of consumption, many of which would be reduced by the measure of the Government; but he was rather surprised that the noble Lord, who had expressed so strong an opinion upon the legacy and probate duties, did not leave that opinion on record in the resolutions he recently proposed to the House. The noble Lord made a faint, indistinct allusion to the question of sugar and corn, and some reference also to assessed taxes, but this great principle of legacy and probate duties, as applied to real property, was not embodied in the formal resolutions of the noble Lord, a kind of record which was supposed to be peculiarly applicable to the opinions of great statesmen. The opinion of the Government was, that a tax upon income, objectionable as it might be, was still liable, on the whole, to less objections than any other imposition by which such sum of 3,700,000 l. could be raised. The House having affirmed that point, he felt himself exempted from the necessity of entering into the details of this particular proposition before the House—a proposition for additional taxation which he was sure the House would not affirm. Whether he had asked for taxes enough or not, he was not prepared positively to declare. He could only say, that the question was a most extensive and complicated one; that no just conclusion could be drawn without looking to the whole of the stamp duties and taxes upon conveyances; and he did trust, if at any time a modification of the existing system should be made, that there would be a Government sufficiently in the possession of the confidence of the House to be entrusted with the review of the whole question, rather than it should be devolved upon a select committee. Any modification of the probate and legacy duties, or an extension of them to other property, could not take place without a change in other burdens that bore in a different way on different kinds of property. He would
1162
not pronounce a decided opinion against the consideration of a question of this kind. He should give his decided vote in favour of the imposition of an Income-tax in preference to an alteration of the probate and legacy duties. He thought it was unwise for persons in public situations, unless they were required by necessity, to give positive pledges of opinion on any subject so complicated in its details as this. Look to the probabilities of evasion which would arise on the imposition of such a tax, from the facilities which persons had for divesting themselves during life of the property which, unless the proposed tax were imposed, they would transfer by legacy. As the House had already recorded its vote in favour of that property-tax for which the tax proposed by the hon. Gentleman was put forward as a substitute, he did hope that it would be negatived by a large majority, and that the House would be allowed to proceed with the details of the measure which the Government had proposed to meet the financial difficulties of the country, and the principle of which the House had, after repeated discussions, affirmed by large majorities.
Mr. Ellicehoped, that he should be acquitted by the right hon. Baronet from all implication in his charge of a desire to obstruct the measure he had proposed, if he voted for the present motion, for reasons which he would explain. He should do so, not because he wished to add this tax to that which the right hon. Baronet already proposed to raise by his bill; not because he wished, as the hon. Member himself did, to substitute it for schedule D; but simply because he did hope, that by agreeing to this motion, they would be advancing one step towards a reconsideration of the whole system of the duties affecting property in this country. Those duties stood on a most unequal, unfair, and unjust footing at present. He entirely agreed with the right hon. Baronet in one thing—that it was impossible to replace the revenue in an efficient state without a direct appeal, in the shape of taxation, to the property of the country. He did not oppose the present measures of the right hon. Baronet on the grounds taken by some Gentlemen on his side of the House; show him a necessity for the tax proposed, and whether we were at war or at peace he would not flinch from voting for it. He was well aware of the

1163
force of the right hon. Baronet's objection to this motion—that it only embraced one-half of the subject; he was fully aware of the necessity of extending the principle, not merely to legacy and probate duty, but to other modes of transferring property. Many schemes were resorted to to evade the duty. One case had come under his knowledge, where a person, wishing to transfer some stock to a stranger in blood, a declaration was made on half a sheet of paper that the stock in question was held for the benefit of the one person during his life, and after his death of the other. By this means the 10 per cent, duty was evaded. He was fully aware of the weight of the right hon. Baronet's objection, but still he voted for the motion in the hope that it might lead to a full review of the present duties on property with regard to all contingencies. The commercial interest did not wish property to bear any unfair share of taxation; all they required was, that it should bear its full fair share of the public burdens. He must always regret to take a course differing from that of his noble Friend, but looking to the state of the country, and the manner in which public opinion was brought to bear upon their proceedings, he did think it was of the utmost importance that they should endeavour to preserve equity and equality in all their proceedings with regard to taxation.
Dr. Bowringhad listened with great pleasure to the doubting, hesitating manner in which the right hon. Baronet expressed his opposition to the motion before the House. It appeared to him that the right hon. Baronet had not clearly understood the opinions of his hon. Friend the Member for Montrose (Mr. Hume), who had merely said that if foreigners with money vested in the funds of this country, were to be exempted from the payment of a percentage on these funds, on the same principle they should exempt the English fund-holder. But his hon. Friend had not expressed any positive opinion as to the propriety or impropriety of taxing funded property in general. He admitted that there might be some just objection taken to the wording of the motion before the House, and he should therefore move as an amendment the following words, in addition to the motion as it then stood:—
"As a substitute for some of those taxes which weigh most oppressively on the country."
Viscount Howicksaid, that all sides of the House seemed to agree with his noble Friend as to the inequality of the taxation on real and personal property as it at present stood, but the motion now before the House, with the addition just made to it, would not by any means do away with that inequality. To effect that purpose, there would be required a much more comprehensive measure, and in the absence of any such measure the present proposition would only introduce new anomalies and impose new burdens on the people. He certainly agreed in the axiom that the business of an Opposition was, not to propose taxes, but to object to them, and he had himself never yet voted for a tax unless when proposed by a Government. He certainly was not now prepared to vote for a tax which he regarded as an addition to the burdens of the people without its securing a commensurate advantage. A legacy duty was in its nature a peculiarly offensive and oppressive duty, operating as it did at times when families were suffering distresses, and adding to their personal afflictions, by the inquiries and investigations it led to as regarded the amount of the property of the deceased that would be affected by it. He would himself have been much better prepared to vote for the taking off the legacy duty on personal property. For if they were to submit to the annoyance of an Income-tax with all its offensive inquisition into private affairs and its expensive machinery, surely it would have been better to have had a larger per centage at once, and so have got rid of some taxes in the Excise and Customs which pressed heavily on the industry of the people, as well as of the legacy duty on personal property. But, taking the motion as he found it, he must vote against it.
Dr. Bowringwithdrew his amendment.
House divided—Ayes 77; Noes 221: Majority 144.

List of the AYES.

Aldam, W.

Chapman, B.

Barnard, E. G.

Christie, W. D.

Bernal, Captain

Clay, Sir W.

Blewitt, R. J.

Colebrooke, Sir T. E.

Bowring, Dr.

Crawford, W. S.

Brocklehurst, J.

Dalmeny, Lord

Brodie, W. B.

Dawson, hon. T. V.

Brotherton, J.

Duke, Sir J.

Browne, hon. W.

Duncan, G.

Bulkeley, Sir R. B. W.

Duncombe, T.

Busfeild, W.

Ellice, rt. hon. E,

1165

Ellice, E.

Plumridge, Capt,

Ellis, W.

Rice, E. R.

Evans, W.

Roebuck, J. A.

Ewart, W.

Rumbold, C. E.

Fielden, J.

Rundle, J.

Forster, M.

Rutherford, A.

Fox, C. R.

Scholefield, J.

Gill, T.

Smith, B.

Granger, T. C.

Stansfield, W. R. C.

Hall, Sir B.

Stewart, P. M.

Hatton, Capt. V,

Stuart, Lord J.

Heathcoat, J.

Strutt, E.

Humphery, Mr. Ald.

Tancred, H. W.

Hutt, W.

Thornely, T.

Jardine, W.

Tuite, H. M.

Jervis, J.

Turner, E.

Leader, J. T.

Villiers, hon. C.

Marjoribanks, S.

Wakley, T.

Marshall, W.

Wallace, R.

Martin, J.

Ward, H. G.

Mitcalfe, H.

Wawn, J. T.

Murphy, F. S.

Williams, W.

Napier, Sir C.

Winnington, Sir T. E.

O'Brien, J.

Wood, B.

Ogle, S. C. H.

Wood, G. W.

Paget, Lord A.

Yorke, H. R.

parker, J.

TELLERS.

Pechell, Capt.

Elphinstone, H.

Philips, M.

Hume, J.

List of the NOES.

A'Court, Capt.

Buckley, E.

Acton, Col.

Buller, E.

Adderley, C. B.

Buller, Sir J. Y.

Ainsworth, P.

Bunbury, T.

Alford, Visct.

Burrell, Sir C. M.

Arbuthnott, hon. H.

Burroughes, H. N.

Arkwright, G.

Campbell, A.

Bailey, J.

Cardwell, E.

Bailey, J., jun.

Carnegie, hon. Capt.

Baillie, Col.

Cavendish, hon. G. H.

Baillie, H. J.

Chelsea, Visct.

Baldwin, B.

Chetwode, Sir J.

Bankes, G.

Cholmondeley, hn. H.

Baring, hon. W. B.

Christmas, W.

Baring, rt. hon. F. T.

Christopher, R. A.

Barneby, J.

Chute, W. L. W.

Barrington, Visct.

Clayton, R. R.

Baskerville, T. B. M.

Clements, H. J.

Beckett, W.

Clerk, Sir G.

Bell, M.

Clive, E. B.

Bell, J.

Clive, hon. R. H.

Beresford, Capt.

Cockburn, rt. hn. Sir G.

Beresford, Major

Collett, W. R.

Bernard, Visct.

Colvile, C. R.

Blackburne J. I.

Connolly, Col.

Blakemore, R.

Coote, Sir C. H.

Bodkin, W. H.

Corry, rt. hon. H.

Boldero, H. G.

Cripps, W.

Borthwick, P.

Dalrymple, Capt.

Botfield, B.

Damer, hon. Col.

Bramston, T. W.

Darby, G.

Broadley, H.

Denison, E. B.

Brooke, Sir A. B.

Dickinson, F. H.

Bruce, Lord E.

Douglas, Sir C. E.

Bruce, C. L. C.

Douglas, J. D. S.

Buck, L. W.

Douro, Marquess of

1166

Drummond, H. H.

Lockhart, W.

Duncombe, hon. A.

Long, W.

Du Pre, C. G.

Lopes, Sir R.

East, J. B.

Lowther, hon. Col.

Eaton, R. J.

Lygon, hon. General

Egerton, W. T.

Mackenzie, T.

Eliot, Lord

Mackenzie, W. F.

Emlyn, Visct.

M'Geachy, F. A.

Escott, B.

Mahon, Visct.

Estcourt, T. G. B.

Mainwaring, T.

Farnham, E. B.

Marsham, Visct.

Fellowes, E.

Martin, C. W.

Filmer, Sir E.

Marton, G.

Fitzroy, hon. H.

Master, T. W. C.

Follett, Sir W. W.

Masterman, J.

Forbes, W.

Meynell, Capt.

Fuller, A. E.

Miles, P. W. S.

Gaskell, J. Milnes

Miles, W.

Gladstone, rt. hn. W.E,

Mordaunt, Sir J.

Godson, R.

Mundy, E. M.

Gordon, hn. Capt.

Murray, C. R. S.

Gore, M.

Murray, A.

Gore, W. O.

Neeld, J.

Gore, W. R. O.

Newport, Visct.

Goring, C.

Nicholl, rt. hon. J.

Goulburn, rt. hon. H.

Norreys, Lord

Graham, rt. hn. Sir J.

Paget, Lord W.

Granby, Marquess of

Pakington, J. S.

Greene, T.

Palmer, R.

Grogan, E.

Patten, J. W.

Grosvenor, Lord R.

Peel, rt. hon. Sir R.

Halford, H.

Pemberton, T.

Hamilton, J.

Pigot, Sir R.

Hamilton, Lord C.

Planta, rt. hon. J,

Hampden, R.

Plumptre, J. P.

Harcourt, G. G.

Pollock, Sir F.

Hardinge, rt. hn. Sir H.

Praed, W. T.

Hardy, J.

Pringle, A.

Heathcote, G. J.

Pusey, P.

Henley, J. W.

Rashleigh, W.

Hepburn, Sir T. B.

Reade, W. M.

Herbert, hon. S.

Reid, Sir J. R.

Hillsborough, Earl of

Richards, R,

Hodgson, R.

Rose, rt. hon. Sir G.

Hope, hon. C.

Round, C. G.

Hornby, J.

Rushbrooke, Col.

Howard, P. H.

Russell, Lord J.

Howick, Visct.

Sanderson, R.

Inglis, Sir R. H.

Scarlett, hon. R. C.

Jackson, J. D.

Seymour, Lord

James, W.

Sheppard, T.

Jermyn, Earl

Shirley, E. J.

Jocelyn, Visct.

Sibthorp, Col.

Johnson, W. G.

Smith, A.

Johnstone, Sir J.

Smith, rt. hon. R. V.

Jones, Capt.

Smollett, A.

Kemble, H.

Somerset, Lord G.

Knatchbull, rt. hon.

Sotheron, T. H. S.

Sir E.

Stanley, Lord

Labouchere, rt. hn. H.

Stanley, hon. W. O.

Lascelles. hon. W. S.

Stuart, H.

Law, hon. C. E.

Stock, Mr. Serjt.

Lawson, A.

Sturt, H. C.

Lefroy, A.

Sutton, hon. H M.

Legh, G. C.

Tennent, J. E.

Liddell, hon. H. T.

Thornhill, G.

Lincoln, Earl of,

Tollemache, J.

1167

Tomline, G.

Wood, Col.

Trench, Sir F. W.

Wood, Col. T.

Trotter, J.

Wortley, hn. J.S.

Turnor, C.

Wyndham, Col. C

Tyrell, Sir J. T.

Yorke, hon. E.T.

Vane, Lord H.

Young, J.

Vere, Sir C. B.

Vivian, hon. Capt.

TELLERS.

Welby, G. E.

Fremantle, Sir T.

Williams, T. P.

Baring, H.

PORT NATAL—THE BOERS.
Colonel Fox roseto move
"That an humble Address be presented to her Majesty, that she will be graciously pleased to give directions that there be laid before this House, Copies or Extracts from any recent official information received by her Majesty's Government from the Cape of Good Hope, respecting the present relations of the colony with the Independent Boers who established themselves at Port Natal, together with any information as to the treatment of the Natives of South Africa by the said Boers.
"Also any Instructions that may have been sent to the Governor of the Cape of Good Hope on these subjects, by Her Majesty's Government."
The hon. and gallant Member said, that in moving for these papers, it would not be necessary for him to make any lengthened statement. Many hon. Members were, no doubt, aware, that after the termination of the Caffre war in 1836 great numbers of the Dutch boers, occupying farms in our colony at the Cape of Good Hope, seceded from our Government, in consequence, as they alleged, of their not receiving sufficient protection against the native tribes, with whom, after the manner of their forefathers, they had been pursuing a system of warfare, which, although its particulars had probably been exaggerated, was, no doubt, a warfare of a very cruel character. The boers who then migrated from our territory proceeded to occupy the country about Port Natal, which was to us a very important possession, inasmuch as it was the only harbour for many hundred miles on the eastern coast of Africa. There could be no doubt as to our authority over the country thus occupied, as it had not only been made over to us at a very early period, but had been confirmed to us by treaty in 1814. The Government, with the intention of maintaining this territory, had on two occasions taken measures for the occupation of Port Natal; but, at the present time, he understood that the only force stationed in that part of the country was a small
1168
detachment of about 100 men, whose principal duty appeared to be the protection of the aborigines. The points he desired principally to arrive at were— first, whether it was intended to recognize the independence of the boers; and, secondly, whether they would be permitted, as it was stated that they wished, to place themselves under the authority of the Dutch or some other foreign European Government? He thought it desirable, that the House and the country should be informed on these points, and he also thought, that it would be well that the matter should be settled as speedily as possible.
Lord Stanleysaid, the case to which the hon. and gallant Member had called attention presented one of the most singular passages in modern history. It was the case of a class of persons chiefly of Dutch origin, whose number had been variously stated at from 4,000 to 10,000, including women and children, who having for a lengthened period been peaceable subjects of the British dominions, chose, in consequence of some supposed injury or injustice, to migrate from the lands they occupied, to cross a hostile territory, and to declare their hostility to the Government which for a long period they had acknowledged and obeyed. It was in 1837 that this migration took place. The boers had been previously extremely dissatisfied with the abolition of slavery at the Cape, they had objected to the amount of compensation awarded to them, and being, as they were described, a brave and warlike race of people, they were also extremely dissatisfied at not being allowed to carry on a sort of predatory warfare on the boundaries in which they previously had been engaged with the Caffres, and which had occasioned great loss and bloodshed to both parties. Shortly after this warfare was put a stop to the boers raised a complaint of want of protection from native depredation, and soon after, collecting together their cattle and their goods, by an extraordinary effort they penetrated through the Caffre country, settled themselves in Natal, which was nearly 600 miles distant from the British colony, and there declared their entire independence of the British authority. As the hon. and gallant Officer had stated, various military occupations of Port Natal took place, but the forces had in such case been withdrawn, and at the present time

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there was no absolute occupation. The fact was, that although, as had been correctly assumed, Port Natal was the only harbour on that part of the east coast of the territory of the Cape, it was, nevertheless, by no means a good or commodious harbour, or one that was suited to purposes of commerce; and the territory being so far as 600 miles off, no inducements were offered to found a second colony there, especially as our colonists at the Cape were already unfortunately too widely dispersed. The boers having settled themselves at Port Natal claimed to be recognised as an independent nation, and having seceded from the British, set up a claim to be treated with the rights appertaining to independent sovereignty. Such a pretence it was quite impossible to accede to, and public notice was at once given to the boers that her Majesty's Government would not listen to any such claim, and further, that they intended to protect from molestation all such tribes as might sign amicable treaties with the Cape authorities. By the last accounts, he understood that a force had been placed at a considerable distance entirely from Port Natal, but still on the east side of the Caffre territory, which force would at once protect the Caffres against the boers, and the boers against the Caffres. An occupation of Port Natal had also, he understood, been ordered, but he should here state, that he had no reason to think that there was any prospect of a collision between our forces and the boers. Indeed, serious discords were said to have arisen among the boers themselves, and it was hoped that it would be quite unnecessary to take violent measures, and that in a short time the boers would themselves see that they had been wrong in occupying the Natal territory without licence, and the more so, as they could only hope to be engaged in perpetual warfare with hostile tribes, and that too, in the face of the proclaimed intention of the British Government to protect their native allies from any molestation. The hon. and gallant Officer had asked, whether it was intended to permit the boers to place themselves under the sovereignty of any foreign European power. To this he would reply, certainly not. Looking at the position of our Cape colony, he did not think that the boers could be permitted to enter into an alliance of such a kind with safety to the integrity of our dependencies on that part of the coast. He, therefore,
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should most distinctly say, that her Majesty's Government would not recognise, would not acknowledge, and would effectually resist, any attempt on the part of the boers to place themselves under a foreign protection. With regard to the papers moved for, he thought it quite fitting that all documents connected with the historical view of the question should be placed before the House, but he trusted the hon. and gallant Officer would agree with him, that after the explanation he had given, it would be inexpedient that any instructions recently sent out, and which, referring to the future rather than to the past, could not yet have been acted on, should be published whilst the acts to which they had reference were necessarily incomplete. He would also take leave to recommend one or two verbal alterations in the motion. He did not think it right or judicious to recognise the independence of the boers, who, in fact, were mere trespassers on our soil, and entitled to no such title. He should, therefore, propose, that the word "independent" be omitted. With this, and some other slight alterations, however, he should have no objection to offer to the motion, which, in its amended form would, he thought, fully answer all the views of the hon. and gallant Mover.
Lord J.Russellwas sure that his hon. and gallant Friend would have no objection to the alteration proposed by the noble Lord. There were, however, a few circumstances connected with the transactions referred to, which were calculated to afford considerable satisfaction. One of these was, that there did not now exist the constant hostility between the Caffre tribes and our troops and settlers which was formerly the case. This was partly owing to the weakness of the tribes themselves, partly to the influence of the missionaries, and partly to the attacks of the migrated boers. From these circumstances the relations between our people and the Caffres were more friendly last year than they had been previously. Another source of satisfaction was, that the boers themselves, finding their flag refused by the European states, would be more anxious to form amicable connexions with the Cape. Whilst on this subject he wished to ascertain from the noble Lord opposite, whether it was true that the force at the Cape was to be weakened by half a regiment to be sent to India.
Mr. Hume,before the question was

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answered, wished to learn from the noble Lord whether Port Natal was claimed as English territory before the boers settled there?
Lord Stanleywas understood to reply in the affirmative, and added, that it was not the intention of Government to admit its occupation by the subjects of other powers. As to the question of the noble Lord, it was the intention to send troops from the Cape to India, but the deficiency would, in some measure, be made up by part of a regiment which had formerly been in St. Helena. It was, however, at present impossible to say what would be the permanent force stationed at the Cape.
Lord J. Russell:But for the present?
Lord Stanley:For the present it would be, as he had stated, the portion of the regiment from St. Helena.
Mr. Humethought the noble Lord had evaded his question, which was, whether England had claimed Port Natal before its occupation by the boers?
Lord Stanleysaid, it certainly had been claimed by Britain before that occupation, but he could not. say whether any settlers from the mother country had gone out before the boers came there.
Colonel Foxstated, that the English Government claimed the place by inheritance from the Dutch East India Company, who had purchased it from the Dutch Government.
Colonel Fox'smotion withdrawn, and the following motion substituted for it by Lord Stanley, was agreed to.
"Address for copies or extracts of any official information received by her Majesty's Government in reference to the emigration of the Dutch Boers from the Cape of Good Hope to the neighbourhood of Port Natal, in the year 1837, and to the subsequent relations of those Boers with the colony, and with the native tribes."

NORFOLK CONSTABULARY.
Mr. Burroughesin rising to bring forward the motion of which he had given notice, for an
"Address for copy of a letter from Colonel Oakes, chief constable of the Norfolk Constabulary, to the chairman of Quarter Sessions, dated the 8th day of April 1842, with enclosures,"
said, that he felt it to be his duty to trouble the House with a few observations; and he doubted not that he would be able satisfactorily to explain the charge which had been made against the constabulary
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force in Norfolk by the hon. Member for Finsbury. The House would recollect the circumstances of the case as stated by the hon. Member. Now, he would not justify the chaining of a man to a stable, but the manger had not been used for a long time except as a place in which to put clean straw, and it was twenty-two feet long, and sixteen feet broad. The nearest lock-up house was much smaller, and any human being would, in the month of May —by-the-by, the only fine month during the whole of last year—prefer the manger to the dungeon. As to there being no lock-up house in the county, it had arisen from a resolution on the part of the county police committee, not to do anything in consequence of the motion of the right hon. the Secretary of State on the subject of the constabulary force. As to the conduct of Superintendent Smith, be wished that the hon. Member for Finsbury could hear the testimony to his conduct and character, which every person joined in giving. The day on which the man was apprehended was Saturday—the market day; and on that day the farmer's houses were particularly exposed to the burglaries of vagrants. On Saturday Mr. Smith apprehended the man, and he very properly took him to the house of the nearest constable, and found that the constable was out. What could he do with him? He conveyed him to the stable, which was in the neighbourhood, and which was a very fitting place. He had chained him, and he confessed that Mr. Smith had been wrong in doing so. The hon. Member for Finsbury had laid great stress on the order, "Feed him at two," and he talked of this as a very great hardship. Now, the man had only been apprehended at half-past eleven, and he was ordered to be fed at two; but he was fed long before that time, for the person who came to his relief had given him food at half-past twelve. He was again fed at two, and several times by passers-by during the course of the afternoon. In fact, the treatment which this man had received put him in mind of the mode in which turkeys were fattened in Norfolk. As to the case of the other man, he had been taken by the policeman to his own house, in consequence of the filthy state in which the lock-up house was; and being very fatigued, the policeman went to bed, and handcuffed the man to the bedpost. The next day was Sunday, and he could not take the man before a magistrate; so on the same night he took him into his

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own bed, and the man acknowledged he never lived better than on that day. The hon. Gentleman had attacked Mr. Borton, because it was necessary to have a shot at some one; but he could tell the hon. Gentleman, that there was no magistrate in the country more upright and excellent than that rev. gentleman. He had been a magistrate for twenty years, and employed in various high magisterial functions in the country. The hon. Member then read extracts from several entries in the lunatic asylum books, Mr. Borton being one of the visiting justices, to show the state of excellence in which that institution was maintained. He had also filled every post of honour in the college to which he belonged in the University of Cambridge; and it was only on finding that there was no other magistrate in the district that he consented to have his name put on the commission of the peace. With respect to Colonel Okes, nothing could exceed his desire for all the facts of the case being made public; and he therefore moved for this additional correspondence.
Mr. T. Duncombeknew something of the merits of a Norfolk capon, but until then he did not know the exact value of a Norfolk magistrate. The right hon. Baronet had often complained of Members on the Opposition side, obstructing, by their motions, that most popular measure of his, the Income-tax. He hoped the right hon. Baronet would make no more such complaints, when he found himself thus obstructed, by one of his own Friends, in order, that he might listen to a eulogy pronounced upon the great merits of sub-constable Smith. The hon. Member was commissioned by the right hon. Baronet to inquire into this case, and they found that during the recess, the hon. Member had gone to see the stable in which the vagrant had been confined by Smith. He hoped the hon. Member did not venture into the stable with sub-constable Smith. The hon. Member could not tell what the vagrant had suffered, unless, like him, he had been chained short to the manger. The hon. Member had said, he had over-coloured his statement. In what respect? He asserted he had rather under-coloured than over-coloured it. What was the case? Smith was going from Yarmouth to Norwich, when he met the unfortunate man on the road. Smith jumped off his horse. He asked the man where he was going? He said, to Norwich. Smith asked him what he had about him? The other re-
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plied, he had no right to inquire. On this, Smith searched the man, and found on him a few religious tracts. He asked him what he was going to do with those religious tracts? He replied, to try and sell them. Smith then demanded his licence. The man confessed he had none. On this, Smith brought the man to the stable, and lashed him to the manger, between eleven and twelve in the day. He desired the constable's wife, to bring him food, and it was not until between seven and eight in the evening, the constable returned. The same policeman also confessed, that he was in the habit of chaining prisoners to the manger, if he thought it necessary, and that he had chained a prisoner to a bedpost to prevent his escape, and that he had once taken a prisoner to bed with him, and handcuffed him to himself to prevent his escape. These circumstances were reported to the Secretary of State for the Home Department; and what did the magistrates state? They said, that there was no just cause of complaint, in this instance, against superintendent Smith. This decision of the magistrates was signed by the Rev. J. D. Borton, as chairman of the committee. He, however, found, that the right hon. Baronet took the same view of the matter as himself. He was not aware, until about an hour ago, that the hon. Member for East Norfolk was about to contradict any part of the statement which he had made to the House a few weeks ago. It appeared, that the hon. Member acted with the Rev. Mr. Borton, in expressing approbation of the policeman's conduct, but what did the right hon. Baronet, the Secretary for the Home Department say, after the investigation which the magistrates had made into the conduct of the policeman? From the language of the authorities of the Home Office, the magistrates of Norfolk would be able to learn whether or not this sort of conduct was sanctioned by the Government. He found, in the papers laid before the House, that Mr. Phillips made the following communication from the Secretary of the Home Office to Colonel Oakes, the chief constable of Norfolk, on this subject:—
" Whitehall, December 10,1841.
Sir, I am directed by Secretary Sir James Graham to inform you that he has carefully considered your report, and the documents which accompanied it, relative to the complaint made by Mr. Palmer, of the improper 1 treatment of prisoners by the Norfolk consta-

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bulary. Sir James Graham is of opinion that the superintendent ought not to have chained his prisoner, and left him chained to a manger in a stable, nor was the constable justified in chaining a prisoner to a bedpost; and Sir James Graham requests that you will give strict orders to the constables of your force to prevent the recurrence of such a practice."
The magistrates in their report, said that there was no just cause of complaint in this instance against the policeman, superintendent Smith. Sir J. Graham, however, was of opinion that the policeman should not pursue such conduct as chaining prisoners to mangers or bedposts, and that they would not be justified in such proceedings, and he gave something like general orders notwithstanding the opinion of the magistrates of Norfolk—of whom the hon. Gentleman was one—that such a proceeding was justifiable, that nothing of the kind should take place again. This he thought was a complete answer to the case which the hon. Member wished to make out in defence of the proceedings which had taken place.
The motion was then agreed to.

PUBLIC BUSINESS.
Lord J. Russellwished to know whether, at that late hour the right hon. Baronet would bring forward his motion as to the precedence of orders of the day to notices of motion on Tuesdays.
Sir R. Peelwas anxious to obtain the opinion of the House on the subject, but he would not press the matter to a conclusion, unless there was something like a general consent on both sides. The noble Lord must be fully aware that a similar course had been proposed on former occasions in cases of emergency. On the present occasion the notice of motion which he had given, had been suggested to him by Gentlemen opposite last night, as they were anxious to proceed with the Incometax, so that the tariff might be taken into consideration. He would not, however, persist in his motion if it did not receive a general assent, as it might interfere with the general course of business. He should be glad to hear the opinion of the noble Lord on the subject, not only individually but as the organ of a great party in that House, as he must be fully aware that at that season of the year it was a matter of great importance to come to a decision on the great questions before it with as little delay as possible. At the same time he admitted that under ordinary circumstances it was
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inexpedient to depart from the established course of proceedings in that House; but he was desirous of having the decided opinion of the noble Lord on the subject. If the motion was seriously and strenuously objected to, he would not persist in it.
Lord J. Russelldid not think that it would be advisable to press the motion at present, unless it met with the general assent of the House, but at any rate he should not be prepared that night to give an opinion on the subject. He would recommend the right hon. Baronet to renew the subject early on the next general night, and in the mean time he should have an opportunity of conversing with other Members on the subject, and should then be prepared to give an opinion.
Sir R. Peeldid not intend to persist in his notice of motion that night. If the noble Lord wished to have the opinion of the House when it was fuller than it was at present, he would postpone the matter until Thursday at 5 o'clock.
Mr. T. Duncombewished to know whether it were to be understood whether or not the adoption of the proposition of the right hon. Baronet would interfere with existing notices of motions for Tuesdays.
Sir R. Peelreplied, that his motion distinctly applied to all Tuesdays after the next fortnight, on which nights of course, no notice of motions existed.
Mr. Redingtonshould object to any proposition of the kind. As Chairman of the Sudbury election committee, he had been instructed to bring in a bill to disfranchise that borough, but if there was only one day in the week allowed for motions he feared that he should have to postpone it until an indefinite period. He had intended to bring forward his motion on the 5th of May, but he found a notice on the orders which would take precedence of his own, which would probably take up the whole of the evening.

PENTONVILLE PRISON.
Sir J. Grahamwould not detain the House in rising to move for leave to bring in a bill, to carry into effect a. recommendation contained in the report of a commission issued from the Home-office, when the noble Lord the Member for the City of London was at the head of it, on the subject of prison discipline. The object of the recommendation was the formation of a model prison. The House was aware that that prison had been in the course of erection for some time, and

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that it would be ready for the reception of prisoners in the course of July next, but it was requisite before it was occupied that an act of Parliament should be passed, enacting the regulations under which it was to be governed. By the bill which he proposed it was intended that there should not be less than seven, or more than sixteen commissioners, and that they should be empowered to make rules for the regulation of the prison, and that they also should appoint the subordinate officers of it. It also enacted that they should lay an annual report before Parliament, stating the rules which they had adopted, and also the effects which the system of discipline had had on the persons confined in the prison. He might add that the works for this prison which had been estimated at 90,000 l., had cost less than that sum, and that it would contain the means of confinement for 510 prisoners. The right hon. Baronet concluded with moving for leave to bring in a bill for the regulation of the Pentonville prison.
Motion agreed to. Bill read a first time.

PARISH CONSTABLES.
Sir J. Grahamthen rose to move for leave to bring in a bill for the appointment and payment of parish constables. He would very shortly state the object of the bill. In the first place, he did not by his measure intend to interfere with the rural constabulary force. The object of the measure was to allow the magistrates of each county or petty sessions to hold annually a court for the appointment of parish constables. He proposed that this should take place on the ratepayers consenting to defray the salary of the constable so appointed for the parish or district. The constable so appointed was to be placed under the control of the superintendent of the rural police for the county. He did not propose to make the act compulsory in the first instance, but that it should be left to the rate-payers to adopt it or not, as the Highway Bill. The right hon. Baronet concluded by making his motion.
Leave given.
Bill brought in and read a first time.
The House adjourned.

Preamble
MINUTES.] BILLS. Private.—la Tulloch's Estate (Davidson's); Bolton and Preston Railway J Bolton and West Haughton Road.
2a. Elegg's Divorce; Castlerigg and Derwentwater Inclosure.
Reported.—St. Austell Market; Birmingham and Liver-pool Junction Canal.
PETITIONS PRESENTED. By the Duke of Buccleugh, from the Agricultural Society of Nithsdale, in the county of Dumfries, for Protection to the Agricultural Interest-By the Marquess of Downshire, from Donaghadee, Antrim, Donadea, Seapatrick, and other places, in favour of Church Education in Ireland.—By a noble Lord, from the Beverley Mechanics Institute, praying for Exemption of Taxation on such Institutions.