Sold by Charles B. Davis, Washington Street INDIANAPOLIS, la. THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SPEECHES HENRY LORD BROUGHAM, UPON QUESTIONS RELATING TO PUBLIC RIGHTS, DUTIES, AND INTERESTS HISTORICAL INTRODUCTIONS IN TWO VOLUMES VOL. I. PHILADELPHIA: LEA AND U L A N C H A R D . 1841. T. K. 4 P. O. COLLINS, Printert. No. 1 Lodge Alley. 8 7 IS 4 V. I TO THE MOST NOBLE RICHARD MARQUESS WELLESLEY, SUCCESSIVELY THE GOVERNOR-GENERAL OF INDIA, BRITISH AMBASSADOR IN SPAIN, SECRETARY OF STATE FOR FOREIGN AFFAIRS, AND LORD-LIEUTENANT OF IRELAND, THESE VOLUMES ARE INSCRIBED AS A TRIBUTE MOST JUSTLY DUE TO SO ILLUSTRIOUS A STATESMAN; AND IN COMMEMORATION OF THE RARE FELICITY OF ENGLAND, SO RICH IN GENIUS AND CAPACITY FOR AFFAIRS, THAT SHE CAN SPARE FROM HER SERVICE SUCH MEN AS HIM. PREFACE. THE plan of the present publication is sufficiently obvious. The Introductions to the different Speeches are intended to elucidate the history of the measures discussed, and of the periods to which they relate. But the most satisfactory, indeed the only accurate, manner of giving the history of the times, must always be to give an account of the persons who bore the chief part in their transactions. This is more or less true of all annals; but it is peculiarly so of political annals. The course of state affairs, their posture at any given period, and the nature of the different mea- sures propounded from time to time, can only be well understood, by giving an accurate representation of the characters of those who figured most remarkably upon the scene. It is not, however, by those pieces of composition which abound in many histories, under the name of " characters," that anything like this knowledge can be conveyed. Without any regard to fine writing, mea- sured and balanced periods, or neat and pointed anti- theses, the personages must be described such as they really w r ere, by a just mixture of general remarks, and i* VI PREFACE. reference to particular passages in their lives. In no other way can they be made known ; in no other way. indeed, can the very first requisite of such sketches he attained the exhibition of the peculiarities that marked the originals the preservation of the individuality of each. The works of some of our most celebrated writers, both ancient and modern, deserve to be studied, with the view of avoiding as much as it is possible their manner of performing this most important of the his- torian's duties. The main object in those compositions plainly is, to turn sentences, and not to paint characters. The same plan is pursued in all cases. Is an able ruler, and one of virtuous life, to be described ? The author considers what qualities are wanting to constitute great capacity for affairs. So he hangs together the epithets of wise, and prudent, and vigorous, and provident; and never fails to bestow on the individual great caution in forming his plans, and much promptitude in executing them. But discrimination must be shown. So the author reflects how the excess of a virtue may become a vice; and therefore the hero of the tale has prudence without timidity boldness without rashness and a great many things without a great many other things. Accordingly, we find the produce of a workmanship as useless as it is easy, to be a set of characters all made nearly in the same mould, without distinction of colour, or feature, or stature ; displaying the mere abstractions of human nature, and applying, almost equally, one set PREFACE. Vll to any able or virtuous person, and the other to any person of inferior capacity and of wicked life. The speeches put into the mouths of great men by the an- cient historians are from the same kind of workshop Cato is made to deliver himself exactly like Caesar; that is, they both speak as Sallust wrote. In the attempts which these volumes contain, to represent individuals, for the purpose of recording the history of their times, all ambition of fine writing has been laid aside, and nothing, but the facts of each case, and the impressions actually left upon the writer's me- mory, has ever been regarded in the least degree. With one only exception, the sketches are the result of per- sonal observation, and in general of intimate acquaint- ance; so that each individual maybe said to have sitten for his picture. No sacrifice has ever been made to attain the unsubstantial and unavailing praise of felici- tous composition. Nor has any the least door been left open to feelings of a worse kind, whether amicable or hostile. The relations of friendship and enmity, whe- ther political or personal, have been wholly disregarded, and one only object kept steadily in view the likeness of the picture, whether critical or moral.* * In describing the persons who mainly contributed to abolish the slave trade, the reader will perceive that, the much-honoured name of Z. Macau lay is omitted. He had not, in fact, ceased to live when that Introduction was printed, and hopes were still entertained of his remaining some time longer amongst us. This great omission, therefore, cannot now be supplied. But it may still be recorded, that after Wilberforce and Clarkson, there is no one whose services in the cause as well of Emancipation as of Abolition, Vlll PREFACE. It is conceived that some good service may be ren- dered to the cause of human improvement, which the author has ever had so much at heart, by the present publication, because its tendency is to fix the public attention upon some of the subjects most important to the interests of mankind. The repression, or at least the subjugation, of party feelings, must be always of material benefit to the community, and tend to remove a very serious obstruction from the great course in which legislation is advancing. Party connection is indeed beneficial as long as it only bands together those who, having formed their opinions for themselves, are desirous of giving them full effect. But so much of abuse has generally attended such leagues, that reflect- ing men are now induced to reject them altogether. Their greatest evil certainly is the one most difficult to be shunned their tendency to deliver over the many to the guidance of the few, in matters where no domi- nion ever should be exercised to make the opinions have been more valuable. It is indeed saying all, to say, as with strict accuracy we may, that of Emancipation he was the Clarkson. His practical acquaintance, too, with the whole question, from actual residence both in Africa and the West Indies, was of material use through every part of the great controversy which he almost lived to see happily closed. But his laborious habits, his singularly calm judgment, his great acuteness, the abso- lute self-denial which he ever showed in all that related to it, and the self- devotion with which he sacrificed his life to its promotion, can only be con- ceived by his fellow-labourers who witnessed these rare merits; and still less is it possible to represent adequately the entire want of all care about the glory of his good works, which made him indeed prefer doing his duty in silence, in obscurity, and in all but neglect. PREFACE. adopted by leading men pass current, without any re- flection, among their followers to enfeeble and corrupt the public mind, by discouraging men from thinking for themselves and to lead multitudes into courses which they have no kind of interest in pursuing, in order that some designing individuals may gain by their folly or their crimes. As society advances, such delu- sions will become more and more difficult to practise ; and it may safely be affirmed, that hundreds now-a-days discharge the sacred duty to themselves and their coun- try, of forming their own opinions upon reflection, for one that had disenthralled himself thirty years ago. CONTENTS. VOL. I. MILITARY FLOGGING. PAOB Introduction, ..... .13 Case of J. Hunt and J. L. Hunt, ..... 18 Case of John Drakard, ...... 38 QUEEN CAROLINE. Introduction, ....... 57 Speech in the Queen's Case, ..... 62 Account of Mr. Denman's Speech, .... 136 Argument for the Queen's Coronation, . . . .145 CASE OF THE REV. RICHARD BLACOW. Introduction, ....... 163 Speech, ........ 167 LIBELS ON THE DURHAM CLERGY. Introduction, ....... 171 Argument in the Case of J. A. Williams, .... 174 Speech at Durham Assizes, ..... 183 DISSERTATION ON THE LAW OF LIBEL, ..... 205 COMMERCE AND MANUFACTURES. Introduction, ....... 215 Speech on Commerce and Manufactures, and the Orders in Council, 224 Introduction, ....... 251 Speech at Liverpool Ejection, ..... 256 AGRICULTURAL AND MANUFACTURING DISTRESS. Introduction, ....... 261 Speech on State of Agriculture, ..... 2G5 Speech on Manufacturing Distress, . . . .291 Xll CONTENTS. ARMY ESTIMATES. P AOE Introduction, ....... 323 Speech, ........ 324 HOLY ALLIANCE. Introduction, ....... 335 Speech, ........ 344 SLAVERY. Introduction, ....... 359 Slave Trade, 1810, ...... 365 Introduction, ....... 377 Missionary Smith, ....... 379 Negro Slavery, 1830, ...... 424 Slave Trade, 1838, ...... 439 Negro Apprenticeship, ...... 449 Eastern Slave Trade, ...... 473 LAW REFORM. Introduction, ....... 505 Present State of the Law, . . . . .516 Local Courts, ....... 608 SPEECHES IN TRIALS FOR LIBELS CONNECTED WITH MILITARY FLOGGING. INTRODUCTION. STATE OF OPINION. MR. WILLIAM COBBETT. AN opinion had for some j'cars begun to prevail among political reasoners, and had found its way also into the army, that the punishment of flogging, to which our troops alone of all the European soldiery are snhject, was cruel in its nature, hurtful to the military character in its effects, and ill calculated to attain the reat ends of all penal infliction the reformation of the offender, and the prevention of other offences by the force of example. Several tracts had been published, chiefly by military officers, in which the subject was discussed; and among these the pam- phlets of Generals Money, Stewart and Sir Robert \Vilson were the most dis- tinguished, both for their own merits, and the rank and services of their authors, who had never borne any part in political controversy, or, in as far as they had been led by accidental circumstances to declare their opinions, had been found the supporters of the old established order of things in all its branches. In 1810 Mr. Cobbett, who, having himself served in North America, had witnessed the effects of this species of punishment, and had naturally a strong feeling for the character of the profession, published some strictures on the subject in his " Political Regis- ter." That work enjoyed in those days a great circulation and influence. It was always one of extraordinary ability, and distinguished by a vigorous and generally pure Knglish style; but it was disfigured by coarseness, and rendered a very unsafe guide by the author's violent prejudices his intolerance of all opinions but his own, and indeed his contempt of all persons but himself his habitual want of fairness towards his adversaries bis constant disregard of facts in his statements and the unblushing changes which he made in his opinions upon things, from extreme to extreme, and in his comments upon men, from the extravagance of praise to the excess of vituperation. These great defects, above all, the want of any fixed system of settled principle, almost entirely destroyed his influence as a periodical writer, and extremely reduced the circulation of his paper, long before his death and its discontinuance, which were contemporaneous; he having for the unexampled period of five and thirty years carried on this weekly publication unassisted by any one, although lie was interrupted by his removal to America, whence he transmitted it regularly for several years, and was likewise both ham- pered by difficulties arising out of farming speculations, and occupied occasionally by several other lilt r.uy works. Hut in 1H10 his \vright with the public, had Buffered little if any diminution, and a vi ry large number of his Re;ji>ter was VOL. I. ii 14 INTRODUCTION. printed. The strictures on flogging were not distinguished by any of Mr. Cobbett's higher qualities of writing. They were a mere effusion of virulence upon the occasion of a punishment having taken place in the local militia of Ely. They were addressed not to the understanding nor even to the feelings of the reader; but rather to those of the soldiery who suffered the infliction, and of the bystanders who witnessed it; their tone and terms being, " You well deserve to be treated like brutes, if by submitting to it you show yourselves to be brutes." Such was the spirit in which the few remarks in question were conceived; and indeed this was their substance, although these were not the words employed. According to the notions in those days entertained of the law of libel, it could excite no surprise that the government prosecuted the author and publisher; Sir Vicary Gibbs, then Attorney-general, having frequently filed informations for remarks as calm and temperate as these w T ere coarse and violent. Mr. Cobbett was accordingly brought to trial in the month of June, 1810. He defended him- self; and, appearing then for the first time before a public audience, exhibited a new but by no means a rare example of the difference between writing and speaking; for nothing could be more dull and unimpressive than his speech, nothing less clear and distinct than its reasoning, more feeble than its style, or more embar- rassed and inefficient than its delivery. The writer and the speaker could hardly be recognised as the same individual such is the effect of embarrassment, or such the influence of manner. But he afterwards defended himself in 1820 against actions brought by private parties whom he had slandered; and then, having by practice during the interval, acquired considerable ease of speaking, his appear- ance was more than respectable it was very effective. His style was also abun- dantly characteristic and racy; it had great originality it suited the man it pos- sessed nearly all the merits of his written productions, and it was set off by a kind of easy, good-humored, comic delivery, with no little archness both of look and phrase, that made it clear he was a speaker calculated to take with a popular assembly out of doors, and by no means certain that he would not succeed even in the House of Commons; where when he afterwards came, he certainly did not fail, and would have had very considerable success had he entered it at an earlier age. In 1810 he was convicted, (as in 1820, he had verdicts with heavy damages against him,) and his sentence was a fine of 1000/. and two years imprisonment in New- gate; a punishment which may well make us doubt, if we now, seeing the pro- ductions of the periodical press, live in the same country and under the same system of laws. In the month of August immediately following, the subject was taken up by a writer of great powers, the late Mr. John Scott, who afterwards conducted a weekly paper, published in London, called the "Champion." He was honorably distin- guished by several literary works, and unfortunately fell in a duel, occasioned by some observations upon a gentleman whose conduct had come in question. In 1810 he was a contributor to the "Stamford News," a Lincolnshire paper, distinguished for its constant adherence to the cause of civil and religious liberty. Its publisher, Mr. John Drakard, was a person of great respectability, and showed at once his high sense of honor, and his devotion to his principles, by steadily refusing to give up the author's name, when menaced with a prosecution. These remarks of Mr. Scott were soon afterwards copied into the " Examiner," a London paper, then conducted by Messrs. J. and J. L. Hunt; and the Attorney-general filed informa- tions both against them, for the publication in London, and against Mr. Drakard, for the original publication in the country a species of vindictive proceeding not without its effect, in bringing all state prosecutions for libel soon afterwards into a degree of discredit which lias led to their disuse. The remarks were as follows: " ONE THOUSAND LASHES ! ! " "The aggressors were not dealt with as Buonaparte would have treated his refractory troops." SPEECH OF THE ATTORNEY-GENERAL. " Corporal Curtis was sentenced to receive ONE THOUSAND LASHES, but, after receiving Two Hundred, was, on his own petition, permitted to volunteer into a regiment on INTRODUCTION. 15 foreign service. William Clifford, a private in the Till royal veteran battalion, waa lately sentenced to receive ONE THOUSAND LASHES, for repeatedly striking and kicking his superior officer. He underwent part of his sentence, by receiving seven hundred and fifty lashes, at Canterbury, in presence of the whole garrison. A garrison court- martial has been held on board the Metcalf transport, at Spithead, on some men of the fourth regiment of foot, for disrespectful behaviour to their ofliccrs. Two THOU- SAND six HUNDRED LASHES were to be inflicted among them. Robert Chillinan, a private in the Bearsted and Mulling regiment of local militia, who was lately tried by a court-martial for disobedience of orders, and mutinous and improper behaviour, while the regiment was embodied, has been found guilty of all the charges and sentenced to receive EIGHT HUNDRED LASHES, which are to be inflicted on him at Chatham, to which garrison he is to be marched for that purpose." London Newspapers. " The Attorney-general said what was very true these aggressors have certainly not been dealt with as Buonaparte would have treated his refractory troops; nor, indeed, as refractory troops would be treated in any civilised country whatever, save and except only this country. Here alone, in this land of liberty, in this age of refinement, by a people who, with their usual consistency, have been in the habit of reproaching their neighbors with the cruelty of their punishment is still inflicted a species of tor- ture, at least as exquisite as any that was ever devised by the infernal ingenuity of the Inquisition. No, as the Attorney-general justly says, Buonaparte docs not treat his refrac- tory troops in this manner; there is not a man in his ranks whose back is seamed with the lacerating cut-o'-nine-tails; his soldiers have never yet been brought up to view one of their comrades stripped naked; his limbs tied with ropes to a triangular machine; his back torn to the bone by the merciless cutting whipcord, applied by persons who relieve each other at short intervals, that they may bring the full unexhausted strength of a man to the work of scourging. Buonaparte's soldiers have never yet with tingling cars listened to the piercing screams of a human creature so tortured; they have never seen the blood oozing from his rent flesh; they have never beheld a surgeon, with dubious look, pressing the agonised victim's pulse, and calmly calculating, to an odd blow, how far suf- fering may be extended, until in its extremity it encroach upon life. In short, Buona- parte's soldiers cannot form any notion of that most heart-rending of all exhibitions on this .side hell an English military flogging, "Let it not be supposed that we intend these remarks to excite a vague and indiscrimi- nating sentiment against punishment by military law; no, when it is considered that disci- pline forms the soul of an army, without which it would at once degenerate into a. mob; when the description of persons which compose the body of what is called an army, and the situations in which it is frequently placed, arc also taken into account, it will, we are afraid, appear but too evident, that the military code must still be kept distinct from the civil, and distinguished by greater promptitude and severity. Buonaparte is no favorite of ours, Clod wot; but if we come to balance accounts with him on this particular head, let us see how matters will stand. He recruits his ranks by force so do we. \\'cjlog those whom we have forced fie does not. It may be said he punishes them in some man- ner; that is very true. He imprisons his refractory troops, occasionally in chains, and in aggravated cases he puts them to death. But any of these severities is preferable to tying a human creature up like a dog, and cutting his flesh to pieces with whipcord. Who would not go to prison for two years, or indeed for almost any term, rather than bear the exquisite, the almost insupport iblc torment occasioned by the infliction of seven hundred or a thousand lashes? De.ith is mercy compared with such sufferings. Besides, what is a man go'id for after he has the cat-o'-nine-tails across his baek? Can he ever again hold up his head among his fellows? One of the poor wretches executed at Lincoln last Friday, is stated to have been severely punished in some regiment. The probability is, that to this odious, ignominious flogging, may be traced his sad end; and it cannot be doubted that he found the gallows less cruel than the halberts. Surely then, the Attorney- general ought not to stroke his chin with such complacency, when he refers to the manner in which Buonaparte treats his soldiers. We despise and detest those who would tell us that there is as much liberty now enjoyed in 1'Yaneo as there is left in this country. Wo give all credit to the wishes of some of our great men; yet while anything remains to us in the shape of free discussion, it is impossible that we should sink into the abject slavery in which the French people are plunged. But although we do not envy the general con- dition of Buonaparte's subjects, we really (and we speak the honest conviction of our hearts) sec nothing peculiarly pitiable in the lot of his soldiers, when compared with th.it of our own. Were we called upon to make our election between the services, the whip- cord would at once decide us. No advantage! whatever can compensate lor, or render tolerable to a mind but one degree removed from brutality, u liability to be lashed like a 16 INTRODUCTION. beast. It is idle to talk about rendering the situation of a British soldier pleasant to him- self, or desirable, far less honorable, in the estimation of others, while the whip is held over his head, and over his head alone; for in no other country in Europe (with the excep- tion, perhaps of Russia, which is yet in a state of barbarity) is the military character so degraded. We once heard of an army of slaves, who had bravely withstood the swords of their masters being defeated and dispersed by the bare shaking of the instrument of flagellation in their faces. This brought so forcibly to their minds their former state of servitude and disgrace, that every honorable impulse at once forsook their bosoms, and they betook themselves to flight' and to howling. We entertain no anxiety about the character of our countrymen in Portugal, when we contemplate their meeting the bayonets of Massena's troops; but we must own that we should tremble for the result, were the French general to despatch against them a few hundred drummers, each brandishing a cat-ai 1 -nine-tails" The Middlesex jury in Westminster, where the first of these two trials took place, after retiring for two hours, acquitted the defendants, Messrs. Hunt, although Lord Ellenborough had given a very powerful charge to them, in favor of the pro- secution, and declared his opinion without any doubt to be, that the publication was made with the intentions imputed to it in the Information, of exciting disaffec- tion in the army, and deterring persons from entering it. Sir Robert Wilson, who had been subprenaed as a witness by the defendants, but was not examined, sat on the bench by Lord Ellenborough during the whole proceedings, in the course of which allusion was made to his Tract, not only by the counsel on both sides, but by the learned judge, who, entertaining no doubt at all of the perfect purity of his intentions, expressed, but respectfully expressed, a wish that lie had used more guarded language; and indeed, his lordship thought that all officers, instead of publishing on so delicate a subject, ought to have pri- vately given their opinions to the government. At Lincoln, where Mr. Brougham went on a special retainer, three weeks after- wards, to defend Mr. Drakard, the difference between a provincial jury and one in the metropolis was seen; for there a conviction took place, and the worthy and independent publisher was afterwards, by the Court of King's Bench, where he was brought up for judgment, sentenced to eighteen months' imprisonment. These trials were not without their influence upon the great question to which they related. The speeches delivered, the discussion of the merits of the case in the public papers, the conversation to which, in the course of the next session, they gave rise in Parliament,,bronght, for the first time, this subject before the country, and also turned the attention of military men to it much more than it had heretofore been, among a class always prone to abide by existing usages, and hardly capable, indeed, of conceiving tilings to be other than as they have always found them. A subject which has since been discussed with the most unrestricted free- dom of comment in al! cin-les in every kind of publication in meetings of the people, as well as in the, chambers of Parliament before the troops themselves, as well as where only ci:i/.ens were congregated and which has finally been made matter of investigation by a military board can at this time of day hardly be conceived to have excited, less than thirty years ago, so much apprehension, that the broaching it at all, even in very measured terms, drew down censure from the bench upon general officers who had been so adventurous as to handle it; and the approaches to its consideration were carefully fenced by all the terrors with which the law of libel, v.iguc and ill-defined, arms the executive government in this country. There seemed to prevail a general anxiety and alarm, lest by the discus- sion, feelings of a dangerous kind should be excited in the soldiery. A mysterious awe hung over men's minds, and forbade them to break in upon the question. A fence was drawn around the ground, tti/nxi'i/ as it were by military engines, and other symbols of mere force. A spellbound the public mind, like that invisible power which, on board of ship, keeps all men's limbs, with their minds, under the control of a single voice. The dissolving of this spell, and the dissipation for ever of all these apprehensions, must be traced to the trials of Drakard and the Hunts. The light is now let in upon this as upon all other questions, whether of civil, or criminal, or military polity,- and the reign of the lash is no more privi- INTRODUCTION. 17 leged from the control of public opinion, and the wholesome irritation of free dis- cussion, than that of the hulks or the gibbet. Men may still form various opinions upon the subject. Enlightened statesmen and experienced captains may differ widely in the conclusions to which their observation and their reasoning have led them. It is still, perhaps, far from being demonstrated, that a punishment whicli such high authorities as the Duke of Wellington regard as indispensable to a cer- tain extent, can bo all at once safely abandoned. But whatever may be the result of the inquiry, it is no'.v an entirely open question. Its being thus thrown open, and placed on the same footing with every other chapter of our penal code, will assuredly lead to its being rightly settled in the end; and the trials to which we have adverted, mainly contributed to this salutary result. CASE JOHN HUNT AND JOHN LEIGH HUNT. JANUARY 22, 1811. SPEECH, MAY IT PLEASE YOUR LoRDSHIP GENTLEMEN OF THE JuRYI In rising to support the cause of these defendants, I feel abundantly sensible of the difficulties under which they labor. It is not that they have to contend, with such unequal force on my part, against the talents and learning of the Attorney-general, and the high influence of his office; nor is it merely that they stand in the situation of defendants prosecuted by the crown, for in ordinary cases they would have the common presumption of innocence to work in their favor; but the hardship of their case originates in the nature of the charge on which they are brought before you a charge of libel, at a time when the licentiousness of the press has reached to a height which it certainly never attained in any other country, nor even in this at any other time. That licentiousness, indeed, has of late years appeared to despise all the bounds which had once been prescribed to the attacks on private character, insomuch that there is not only no per- sonage so important or exalted for of that I do not complain but, no person so humble, harmless, and retired, as to escape the defama- tion which is daily and hourly poured forth by a venal tribe, to gratify the idle curiosity, or the less excusable malignity, of the public. To mark out for the indulgence of that propensity, individuals retiring into the privacy of domestic life to hunt them down for the gratifi- cation of their enemies, and drag them forth as a laughing-stock to the vulgar, has become in our days, with some men, the road even to popularity; but with multitudes, the means of earning a base sub- sistence. Gentlemen, the nature and the causes of this evil it is unnecessary for me to point out. Indeed, I am far from saying that there is nothing to extenuate it; I am ready even to admit that this abuse of the press in defaming private characters, does derive no small apology from the insatiable love of publicity which preys upon MILITARY FLOGGING. 19 a great part of the community; leading them scarcely to value exist- ence itself, if it is not passed in the eyes of the world, and to care but little what they do, so they be only stared at, or talked of. It fur- nishes somewhat of excuse, too, that the public itself is insatiable in its thirst for slander; swallows it with a foul, indiscriminate appetite; and, liberal at least in its patronage of this species of merit, largely rewards those whom it sends forth to pander for those depraved tastes. But, in whatever way arising, or however palliated, the fact of the abuse of the press is certain, and the consequences are fatal to the press itself; for the licentiousness of which I complain has been the means of alienating the affections of those who had ever stood forward as its fastest friends and its firmest defenders. It has led them to doubt the uses of that which they have seen so perverted and abused. It has made them, instead of blessing "the useful light" of that great source of improvement, see in it only an instru- ment of real mischief, or doubtful good; and when they find, that instead of being kept pure, for the instruction of the world; instead of being confined to questioning the conduct of men in high situa- tions, canvassing public measures, and discussing great general ques- tions of policy; when they find that, instead of such, its legitimate objects, this inestimable blessing has been made subservient to the purposes of secret malice, perverted to the torture of private feelings, and the ruin of individual reputation those men have at last come to view it, if not with hostility, at least with doubtful friendship, and relaxed zeal for its privileges. It is no small aggravation of this pre- judice, that the defendants come into court to answer this charge, after other libels of a more general description have been published and prosecuted; after those, to which the Attorney-general has so forcibly alluded in the opening of this case, have so lately been brought before the court, and their authors and circulators convicted. At first sight, and upon merely stating the subject of this publication, it is but natural for you to imagine that there is some similarity between those other cases and the present; and that a publication on the general subject of military punishment (which is the only point of resemblance), belongs to the same class of libels with those so anxiously alluded to by my learned friend with those particularly for which Mr. Cobbett, and probably some others, are suffering the sentence of the law. The Attorney-general did not put these circumstances in the back- ground; he was anxious to draw a parallel between this case and Mr. Cobbelt's. It will be unnecessary for me to follow this comparison; all I say in the outset is, that I confidently predict, I shall not proceed far before I shall have convinced you, gentlemen, that light is not more different from darkness than the publication set forth in this record is different from all and each of the former publications brought before the court by the Attorney-general for conviction, and now again brought forward for argument. The consequence of all these prepos- sessions, in whatever way arising, is, I will not say fatal, but extremely hurtful to these defendants. It places them in a torrent of prejudice. 20 MILITARY FLOGGING. in which they would in vain have attempted, and I should not have counselled them to stand, had they not rested on the firm footing of the merits of their individual case, and the confidence that his lord- ship and you will cheerfully stretch forth an helping arm in the only way in which you can help them; in the only way in which they ask your aid that you will do strict justice between the Crown and them, by entering into an examination of their single individual case. Gentlemen, you have to try whether the particular publication, set forth in this record, has manifestly, upon the bare appearance of it, been composed and published with the evil intention, and with the bad purpose and hurtful tendency alleged in the information. If their intention has apparently been good, or, whether laudable or not, if it has been innocent and not blameworthy, then, whatever you may think of the opinions contained in the work even though you may think them utterly false and unfounded in whatever light you may view it critically as a piece of composition though you may consider the language as much too weak or as far too strong for the occasion O still if you are convinced there is nothing blameable in the intention which appears to have actuated the author and publisher, (for I will take the question on the footing that the author himself is before you, though the evidence, on the face it, bears me out in distinctly asserting that these defendants did not write this article, but copied it from another work which they particularly specify, yet, in order to argue the question more freely, I will suppose it is the case of the original composer, which you are now to try, and I am sure my learned friend cannot desire me to meet him on higher or fairer ground,) I say then, that if you are not convinced if, upon reading the composition at- tentively, you are not, every one of you, fully and thoroughly con- vinced that the author had a blameable, a most guilty intention in writing it, and that he wrote it for a wicked purpose, you must acquit those defendants who republished it. This, gentlemen, is the particu- lar question you have to try; but I will not disguise from you, that you are now trying a more general and important question than this. You are now to determine, whether an Englishman still enjoys the privilege, of freely discussing public measures whether an English- man still possesses the privilege of impeaching (for if he has a right to discuss, he has a right to espouse whichever side his sentiments lead him to adopt, and may speak or write against, as well as for), whether he has still a right to impeach, not one individual character, not one or two public men, not a single error in policy, not any par- ticular abuse of an established system I do not deny that he has the right to do all this, and more than this, but it is not necessary for me now to maintain it but the question for you to try is, whether an Englishman shall any longer have the power of making comments on a system of policy, of discussing a general, I had almost said an abstract, political proposition, of communicating to his countrymen his opinion upon the merits, not of a particular measure, or even a line of conduct pursued by this or that administration, (though no man ever dreamt of denying him this also,) but of a general system MILITARY FLOGGING. 21 of policy, which it has pleased the government to adopt at all times: Whether a person, devoted to the interests of his country, warm in his attachment to its cause, vehemently impelled by a love of its hap- piness and glory, has a right to endeavor, by his own individual exertions, to make that perfect which he so greatly admires, by point- ing out tfiose little defects in its constitution which are the only spots whereupon his partial eyes can rest for blame: Whether an English- man, anxious for the honor and renown of the army, and deeply feeling how much the safety of his country depends upon the perfec- tion of its military system, has a right to endeavor to promote the good of the service, by showing wherein the present system is detri- mental to it, by marking out for correction those imperfections which bear, indeed, no proportion to the general excellence of the establish- ment, those ilaws which he is convinced alone prevent it from attain- ing absolute perfection? Whether a person, anxious for the welfare of the individual soldier; intimately persuaded that on the feelings and the honor of the soldier depend the honor and glory of our arms; sensible that upon those feelings and that honor hinges the safety of the country at all times, but never so closely as at present whether, imbued with such sentiments, and urged by these motives, a man has not a right to make his opinions as public as is necessary to give them effect? Whether he may not innocently, nay, laudably, seek to make converts to his own views, by giving them publicity, and endeavor to realise his wishes for the good of the state, and the honor of its arms, by proving, in the face of his fellow-citizens, the truth of the doctrines to which he is himself conscientiously attached? These, gentlemen, are the questions put to you by this record; and your verdict, when it shall be entered upon it, will decide such questions as these. Gentlemen, it is, I am persuaded, known to all of you, that for many years past, the anxious attention of the government of this country has been directed (at times, indeed, to the exclusion of all other con- siderations) towards the improvement of our military establishment. It would be endless, and it would be unnecessary for me to enter into the various projects for its improvement, which from time to time have been entertained by our rulers, and adopted or rejected by the legislature: it is enough that I should state, in one short sentence, that all those plans have had the same common objects to protect and benefit the private soldier, to encourage the recruiting of the army, and to improve the character of those who compose it, by bettering the condition of the soldier himself. In the prosecution of these grand leading designs, various plans have been suggested by different statesmen of great name; plans which I need not particularise, but to some of which, in so far as they relate to the present information, it is necessary that I should direct your attention. One of the chief means suggested for improving the condition of the soldier, is shorten- ing the duration of his service; and upon that important subject it is unnecessary for me to use words of my own, when I have, in a pub- lication which is before the world, and I dare say has been before you, 22 MILITARY FLOGGING. (at least yon cannot be unacquainted with the name and the fame of the author,) that which better expresses my sentiments than any lan- guage I could use myself. The arguments are there so forcibly stated, and the subject is altogether placed in so luminous a point of view, that it is better for me to give them in the words of the respectable writer, the gallant officer I have alluded to. It is Sir Robert Wilson, gentlemen, whose presence here as a witness, should it be necessary to call him, prevents me from saying, so strongly as I could wish, what, in common with every one, I do most sincerely feel that there is not among all the brave men of whom the corps of officers in the British army is composed, one, to whom the country, considering his rank and the time of his service, is more indebted one who has more dis- tinguished himself by his enthusiastic, I had almost said romantic, love of the service one who has shown himself a more determined, I may really say personal, enemy of the ruler of France, or a faster friend to the cause and the person of his own Sovereign, and of his Royal Allies. This gallant officer, in the year 1794, published a tract " On the means of improving and re-organising the Military Force of this Empire." It was addressed to Mr. Pitt, then minister of the country, and whose attention, as well as that of the author, was at that time directed to whatever was likely to improve our military sys- tem to encourage the obedience, and exalt the character of the sol- dier already in the army arid to promote the recruiting of it from among those who had not yet entered into the service. He mentions a great variety of circumstances which deter men from enlisting, and render those who do enter of less value to the profession. Among others, he mentions the term, the duration of their service. He says, in a language powerful indeed, and strong, but anything rather than libellous, " It is strange that in a free country, a custom so repugnant to freedom, as enlisting for life, and to the particular character of the British constitution, should ever have been introduced; but more sin- gular, that the practice should have been continued after every other nation in Europe had abandoned it as impolitic, and as too severe an imposition upon the subject." " If in those countries," he proceeds, " where the inferior orders of society are born in vassalage, and where the will of the sovereign is immediate law, this power has been relin- quished, in order to incline rnen voluntarily to enlist, surely there is strong presumptive evidence that the general interests of the service are improved, instead of being injured, by this more liberal considera- tion." He then goes on to illustrate the same topic in terms still more expressive of the warmth of his feelings upon so interesting a ques- tion "The independence of an Englishman," says he, " naturally recoils at the prospect of bondage, which gradually produces discon- tent against the bent even of inclination." " How many men," he adds, in yet more glowing words but which I am far from blaming for I should have held him cheap, indeed, if, instead of giving vent to his sentiments in this free and appropriate manner, he had offered them as coldly and as drily as if he were drawing out a regimental return. "How many men are there who have not now the faintest MILITARY FLOGGING. 23 wish to leave their own estates, even for a journey into another county, but who, if restrained by any edict from quitting England, would find this island too narrow to contain them, would draw their breath convulsively, as if they craved free air, and feel all the mental anguish of a prisoner in a dungeon? What is the inference to be now fairly drawn from the perseverance in the system of enlisting for life? Is it not that the British service is so obnoxious and little conciliating, that, if the permission to retire were accorded, the ranks would be alto- gether abandoned, and the skeleton only remain, as an eternal and mournful monument of the wretchedness of a soldier's condition? Is it not a declaration to the world, that the service is so ungrateful to the feelings of the soldiery, that when once the unfortunate victim is entrapped, it is necessary to secure his allegiance by a perpetual state of confinement?" He then advances, in the course of his inquiry, to another topic; and in language as strong, as expressive of his honest feelings, and therefore as appropriate and praise worthy, lie talks' of the service in the West India islands, and even goes so far as to wish those colonies were abandoned. I am net disposed to follow him in this opinion; I cannot go so far. But God forbid I should blame him for holding it; or that, for making his sentiments public, I should accuse him of having written a libel on that service, of which he is at once the distinguished ornament and the zealous friend. It might bear, perhaps, an insinuation that such a topic was inflammatory that it had a tendency to excite discontent among the soldiers and to deter men from entering into the service. But far from imputing that to the gallant officer, I respect him the more for publishing a bold and downright opinion for expressing his feelings strongly; it is the best proof that he felt keenly. lie proposes no less than that the West India islands should be given up, in order to improve our means of defence at home. He says, " It is, however, to be hoped, that the day is not remote, when our colonies shall cease to be such a claim upon the active population of this country: that charnel-house must be closed for ever against the British troops. The soldier who dies in the field is wrapped in the mantle of honor, and the paM of glory is extended over his relatives; but in a warfare against climate, the energy of the man is destroyed before life is extinguished; he wastes into an inglorious grave, and the calamitous termination of his exist- ence offers no cheering recollection to relieve the affliction of his loss." Did Sir Robert Wilson mean to excite the brave and ill-fiitcd regiments to mutiny and revolt, who were already enclosed in those charnel- houses? or did he mean to deter persons from enlisting in those regi- ments, who might otherwise have been inclined to join them? Did he mean to address any of the regiments under actual orders for the West India service, and to excite revolt among them, by telling every one who read the passage I have cited, that which it so forcibly puts to all soldiers under such ordrrs " Whither arc you going? You arc rushing into a charnel-house!" Far be it from me to impute such motives it is impossible! The words I have read arc uttered in the discussion of a general question a question on which he speaks 24 MILITARY FLOGGING. warmly, because he feels strongly. And pursuing the same course of reasoning in the same animated style, he comes to another and an important part, both of his argument and of the question in which we are now engaged. In considering the nature of the tenure by which a soldier wears his sword; in considering that honor is to him what our all is to every body else; he views several parts of our military system as clashing in some sort with the respect due to a soldier's character; and, fired with a subject so near his heart, he at once enters into the question of military punishments, paints in language not at at all weaker nor less eloquent than that of the publication before you in language that does him the highest honor the evils that result from the system of flogging, as practised in our army. He says, " The second and equal- ly strong check to the recruiting of the army, is the frequency of cor- poral punishment." Proceeding to enlarge on this most interesting point, in the course of his observations he uses such expressions as these. After judiciously telling us, that "it is in vain to expect a radical reform, until the principle of the practice is combated by argu- ment, and all its evil consequences exposed by reasoning," he adds this assertion, for which every one must give him credit "Be this, however, as it may, I feel convinced that I have no object but the good of the service." He says, that " Sir Ralph Abercrombie was also an enemy to corporal punishments for light offences; his noble and worthy successor, whose judgment must have great influence, Lord Moira, General Simcoe, and almost every general officer in the army, express the same aversion continually, but they have no power of interference." Of that interference, then, he thinks there is no prospect, unless by reason and argument, and by freely discussing it, we can influence the opinions of the country and the legislature a proposition to which all of us must readily assent. And he thus pur- sues " I feel convinced that I have no object but the good of the service, and, consequently, to promote the commander-in-chief's views, and that my feelings are solely influenced by love of humanity, a grateful sense of duty to brave men, and not by a false ambition of acquiring popularity," a motive which I am sure no one will im- pute to him. "If," he adds, "I did not think the subject of the most essential importance, no motive should induce me to bring it forward; if I was not aware that, however eager the commander-in-chief was to interpose his authority, the correction of the abuse does not alto- gether depend upon his veto, and cannot, with due regard to the pe- culiar circumstances of his situation, be required to emanate abruptly from him. My appeal is made to the officers of the army and militia, for there must be no marked discrimination between these two services, notwithstanding there may be great difference in their different modes of treating the soldiery. I shall sedulously avoid all personal allu- sions the object in view is of greater magnitude than the accusation of individual malefactors. I shall not enter into particulars of that excess of punishment which has, in many instances, been attended with the most fatal consequences. I will not. by quoting examples, MILITARY FLOGGING. 25 represent a picture in too frightful a coloring for patient examination." He then says, " The present age is a remarkable epoch in the history of the world civilisation is daily making the most rapid progress, and humanity is triumphing hourly over the last enemies of mankind; but whilst the African excites the compassion of the nation, and engages the attention of the British legislature, the British soldier, their fellow-countryman, the gallant, faithful protector of their liberties, and champion of their honor, is daily exposed to suffer under the abuse of that power with which ignorance or bad disposition may be armed." "There is no mode of punishment so disgraceful as flog- ging, and none more inconsistent with the military character, winch should be esteemed as the essence of honor and the pride of manhood; but when what should be used but in very extreme cases, as the ultimum supplicium, producing the moral death of the criminal, becomes the common penalty for offences in which there is no moral turpitude, or but a petty violation of martial law, the evil requires serious attention." Here he appeals with a proud and exulting recol- lection to the practice of the regiment in which he had begun his military life. " Educated," says he, " in the 15th light dragoons, I was early instructed to respect the soldier; that was a corps before which the triangles were never planted;" meaning the triangles against which men are tied up when they receive the punishment of flogging. "There," he adds, in the same language of glowing satis- faction, contrasting the character of his favorite corps with that debasement which the system of flogging elsewhere engenders " There," he exclaims, "each man felt an individual spirit of indepen- dence; walked erect, as if conscious of his value as a man and a soldier; where affection for his officer, and pride in his corps, were so blended, that duty became a satisfactory employment, and to acquire, for each new distinction, the chief object of their wishes. With such men every enterprise was to be attempted, which could be exe- cuted by courage and devotion, and there was a satisfaction in commanding them which could never have been derived from a sys- tem of severity." He proceeds, "There is no maxim more true than that cruelty is generated in cowardice, and that humanity is insepara- ble from courage. The ingenuity of officers should be exercised to devise a mode of mitigating the punishment, and yet maintaining discipline. If the heart be well disposed, a thousand different methods of treating offences will suggest themselves; but to prescribe positive penalties for breaches of duty is impossible, since no two cases are ever exactly alike. Unfortunately, many officers will not give them- selves the trouble to consider how they can be merciful; and if a return was published of all regimental punishments within the last two years, the number would be as much a subject of astonishment as regret. I knew a colonel of Irish militia, happily now dead, who flogged, in one day, seventy of his men, and I believe punished several more the next morning; but, notwithstanding this extensive correction, the regiment was by no means improved. Corporal punishments never yet reformed a corps; but they have totally ruined many a man VOL. i. 3 26 MILITARY FLOGGING. who would have proved under milder treatment, a meritorious soldier. They break the spirit, without amending the disposition; whilst the lash strips the back, despair writhes round the heart, and the miserable culprit, viewing himself as fallen below the rank of his fellow-species, can no longer attempt the recovery of his station in society. Can the brave man, and he endowed with any generosity of feeling, forget the mortifying vile condition in which he was exposed? Does not, therefore, the cat-o-nine-tails defeat the chief object of punishment, and is not a mode of punishment too severe, which forever degrades and renders abject? Instead of upholding the character of the soldier, as entitled to the respect of the community, this system renders him despicable in his own eyes, and the object of opprobrium in the state, or of mortifying commiseration." He is now about to touch upon a topic which I admit to be of some delicacy. It is one of the topics introduced into the composition before you: but a man of principle and courage, who feels that he has a grave duty to perform, will not shrink from it, even if it be of a delicate nature, through the fear of having motives imputed to him by which he was never actuated, or lest some foolish person should accuse him of acting with views by which he was never swayed. Accordingly, Sir Robert Wilson is not deterred from the performance of his duty by such childish apprehensions; and, having gone through all his remarks of which I have read only a small part, and having eloquently, feelingly, and most forcibly summed it up in the passage I have just quoted, he says, " It is a melancholy truth, that punish- ments have considerably augmented, that ignorant and fatal notions of discipline have been introduced into the service, subduing all the amiable emotions of human nature. Gentlemen who justly boast the most liberal education in the world, have familiarised themselves to a degree of punishment which characterises no other nation in Europe." " England," (he adds pursuing the same comparative argument on which so much has this day been said,) " England should not be the last nation to adopt humane improvements;" and then, coming to the very point of comparison which has been felt by the Attorney-general as the most offensive, Sir Robert Wilson says: "France allows of flogging only in her marine; for men confined together on board ship require a peculiar discipline, and the punish- ment is very different from military severity. The Germans make great criminals run the gauntlet;" thus illustrating the principle lhat in no country, save and except England alone (to use the words of those defendants), is this mode of punishment by flogging adopted. Gentlemen, it is not from the writings of this gallant officer alone that I can produce similar passages, though, perhaps, in none could I find language so admirable and so strong as his. I shall trouble you, however, with no more references, excepting to an able publication of another officer, who is an ornament to his profession, and whose name, I dare say, is well known amongst you; I mean brigadier- general Stewart, of the 95th regiment, the brother of my Lord Gal- loway. This work was written while the plans, which 1 have already MILITARY FLOGGING. 27 mentioned, were in agitation for the improvement of the army; and the object of it is the same with that of Sir Robert Wilson, to show the defects of the present system, and to point out the proper reme- dies. "Without (he begins) a radical change in our present military system, Britain will certainly not long continue to be either formidable abroad, or secure at home." This radical change in our system is merely that which I have already detailed. Pie says, after laying down some general remarks, "If this view of the subject be correct, how will the several parts of our present military system be recon- ciled to common sense, or to any insight into men and things?" He then mentions the chief defects in. the system, such as perpetuity of service, and the frequency of corporal punishments; and in discussing the latter subject, he says, "No circumstance can mark a want of just discrimination more than the very general recurrence, in any stage of society, to that description of punishment which, among the same class of men, and with the alteration of the profession alone, bears the stamp of infamy in the estimate of every man. The fre- quent infliction of corporal punishment in our armies, tends strongly to debase the minds and destroy the high spirit of the soldiery. It renders a system of increasing rigor necessary; it deprives discipline of honor, and destroys the subordination of the heart, which can alone add voluntary zeal to the cold obligations of duty. Soldiers of natu- rally correct minds, having been once punished corporally, generally become negligent and unworthy of any confidence. Discipline re- quires the intervention of strong acts to maintain it, and to impress it on vulgar minds; punishment may be formidable, but must not be familiar; generosity, or solemn severity must at times be equally recurred to; pardon or death have been resorted to with equal success; but the perpetual recurrence to the infliction of infamy on a soldier by the punishment of flogging, is one of the most mistaken modes for enforcing discipline which can be conceived." And then, alluding to the same delicate topic of comparison, which, somehow or other, it does appear no man can write on this subject without introducing I mean the comparative state of the enemy's discipline and our own he says: " In the French army a soldier is often shot, but lie rarely receives corporal punishment; and in no other service is discipline preserved on truer principles." Gentlemen, I like not the custom, which is too prevalent with some men, of being over-prone to praise the enemy, of having no eyes for the merits and advantages of their own country, and only feeling gratified when they can find food for censure at home, while abroad all is praiseworthy and perfect. I love not this propensity to make such a comparison; however it is sometimes absolutely necessary, though it may always be liable to abuse: but in an oflicer like General Stewart or Sir Robert Wilson, it has the merit not only of being applicable to the argument, but in those men who have fought against that enemy, and who, in spite of his superior system, have beaten him, (as beat him we always do, when we meet him on any thing like fair terms,) in such men it has the grace of liberality as well as the value of truth; and it not only 28 MILITARY FLOGGING. adds a powerful reason to their own, but shows them to be above little paltry feuds shows them combating with a manly hostility and proves that the way in which they choose to fight an enemy, is confronting him like soldiers in the field, and not effeminately railing at him. In the French army, General Stewart says, a soldier is often shot, but he rarely receives corporal punishment, and "in no other service," he adds, "is discipline preserved on truer principles." "I know the service," he means to say; "I have had occasion to see it in practice I have served with Austrians, Prussians, and Swedes but in no service is discipline preserved on truer principles than in the French; and, therefore, it is that I quote the example of the French, whose discipline is preserved on principles too true, alas! for our ill- fated allies. It is, therefore, I quote the French army, and in order to show that the change I recommend in our own, is necessary for the perfection of its discipline, and to save us from the fate of those allies." Such are the opinions of these gallant officers, but whether they are right or wrong I care not such are the opinions of other brave and experienced officers, expressed in language similar to that which you have heard; in such terms as they deemed proper for supporting the opinions they held. Do I mean to argue, because these officers have published what is unfit and improper, that, therefore, the defendants have a right to do the same? Am I foolish enough? Do I know so little of the respect due to your understandings? Am I so little aware of the interruption I should instantly and justly meet from the learned and noble judge, who presides at this trial, were I to attempt urging such a topic as this? Do I really dare to advance what would amount to no less than the absurd, the insane proposition, that if one man has published a libel, another man may do so too? On the contrary, my whole argument is at an end, if these are libels. If General Stewart and Sir Robert Wilson have exceeded the bounds of propriety, and those passages which I have read from their works are libels, their publication by them would form not only no excuse for the defendants, but would be an aggravation of their fault, if I, their counsel, had ventured, in defending one libel, to bring other libels before you. But it is because I hold, and you must too, that these officers are incapable of a libellous intention; because you well know, that these officers, when they wrote in such terms, were inca- pable of the design of sowing dissension among the troops, and deter- ring men from entering into the army; it is because you know that, of all men in this court and in this nation, there are no two persons more enthusiastically attached to the country and the service; it is because you know as well as I do, that no two men in England are more entirely devoted to the interests of the British army, or bear a deadlier hate to all its enemies; it is because you must feel that there is not an atom of pretext for charging them with such wicked inten- tions, or for accusing them of a libellous publication; it is for this reason, and for this alone, that I have laid before you what they have thought and written upon the subject matter of the composition which MILITARY FLOGGING. 29 yon are now trying. I entertain no small confidence that you are prepared to go along with me, in my conclusion, that, if they conld publish such tilings, without the possibility of any man accusing them of libel, the mere fact of these things being published is no evidence of a wicked or seditious intention: that you are, therefore, prepared to view the publication on its own merits; and, considering how others, who could not by possibility be accused of improper motives, have treated the same subject, you will feel it your duty to acquit the defendants of evil intention, when they shall appear to have handled it in a similar manner. Gentlemen, I entreat you now to look a little towards the composi- tion itself on which the Attorney-general has commented so amply, With respect to the motto, which is taken from an eloquent address of his to a jury upon a former occasion, there is nothing in that, which makes it necessary for me to detain you. In whatever way these words may have originally been spoken, and however the context may have qualified them, even if they bore originally a meaning quite different from that which in their insulated state they now appear to have; I apprehend, that a person assuming, as is the fashion of the day, a quotation from the words of another as a text, may fairly take the passage in whatever sense suits his own purpose. Such at least has been the practice, certainly, from the time of the Spectator I believe much earlier; nor can the compliance with this custom prove any intention good or bad. A writer takes the words which he finds best adapted to serve for a text, and makes them his motto: some take a line, and even twist it to another meaning, a sense quite oppo- site to its original signification; it is the most common device, a mere matter of taste and ornament, and is every day practised. Let us now come to the introduction, which follows the text or motto. The writer, meaning to discuss the subject of military punish- ments, and wishing to oiler his observations on the system of punish- ment adopted in our army, in order to lay a ground-work for his argument, and in case any reader should say, "You have no facts to produce; this is all mere declamation" for the purpose of securing such a ground work of fact as should anticipate and remove this objec- tion; to show that these military punishments were actually inflicted in various instances, and to prove from those instances the necessity of entering into the inquiry; he states fairly and candidly several cases of the punishments which he is going to comment upon, lie says, " Corporal Curtis was sentenced to receive one thousand lashes, but after receiving two hundred, was on his own petition permitted to volunteer into a regiment on foreign service." Enough would it have been for the argument to have said, that Corporal Curtis had been sentenced to receive one thousand lashes; but the author owns candidly that on receiving two hundred, the prisoner was allowed, and at his own request, to enter into a regiment on foreign service. Then he mentions the case of William Clifford, a private in the seventh royal veteran battalion, who was lately sentenced to receive one thou- sand lashes; does he stop there? No, he adds the reason; and the 3* 30 MILITARY FLOGGING. reason turns out to be one which, if anything can justify such a punish- ment, you will admit would be a justification. He says, candidly, what makes against his own argument; he says it was " for repeatedly striking and kicking his superior officer." He adds, that he under- went part of his sentence, by receiving seven hundred and fifty lashes at Canterbury, in presence of the whole garrison. He next mentions another instance of some persons of the 4th regiment of foot, being sentenced to receive two thousand six hundred lashes, and giving the reason, he says, it was " for disrespectful behavior to their officers." He then states the case of Robert Chilman,a private in the Bearstead and Mailing regiment of local militia, who was lately tried, this author tells us, by a court-martial, "for disobedience of orders and mutinous and improper behavior while the regiment was embodied." His offence he thus sets forth almost as fully as if he was drawing up the charge; nay, I will venture to say, the charge upon which the court- martial proceeded to trial, was not drawn up more strongly and dis- tinctly. He subjoins to these facts the notice, that his authorities are, the London Newspapers. Having thus laid the foundation and ground-work of his reasoning, he comments upon the subject in words which, as they have been read twice over, once by the Attorney-general, and once by Mr. Low- ten, it is unnecessary for me to repeat; I would only beg of you to observe, that, in the course of his argument, he has by no means departed from the rule of fairness and candor which he had laid down for himself in the outset. He brings forward that which makes against him, as well as that which makes for him; and he qualifies and guards his propositions in a way strongly indicative of the candor and fair- ness of his motives. After having stated his opinion in warm language, in language such as the subject was calculated to call forth: after having poured out his strong feelings in a vehement manner, (and surely you will not say that a man shall feel strongly and not strongly express himself,) must he be blamed for expressing himself as these two gallant officers have done, though, perhaps, in language not quite so strong as theirs? Having thus expressed himself, he becomes afraid of his reader falling into the mistaken notion of his meaning, an error which, notwithstanding the warning, it would seem the Attorney-general has really fallen into, the error of supposing that he had been too much inclined to overlook the errors in the French system, and that he who had argued against our discipline, and in favor of the enemy's, might be supposed too generally fond of the latter. Apprehensive of a mistake so injurious to him, and feeling that it was necessary to qualify his observations, in order to protect himself from such a misconception, he first says, " Let it not be sup- posed that we intend these remarks to excite a vague and indiscri- minate sentiment against punishment by military law." You perceive, gentlemen, that before proceeding to guard his reader against the idea of his general partiality to the French system, he stops for the pur- pose of correcting another misrepresentation another mistake of his meaning into which also the Attorney-general has repeatedly been MILITARY FLOGGING. 31 betrayed this day. The writer, fearing lest he should not have guarded his reader, and especially his military reader if lie should have one, against the supposition of his being an enemy to military punishment, in the general, states distinctly, that severe punishment is absolutely necessary in the army; and he proceeds to express him- self in words which are nearly the same as those used by the Attorney- general, for the purpose of showing that there was something enor- mous in attacking the system of corporal punishment. The Attorney- general says, he is endeavoring to inflame the subjects of this country against the whole penal code of the army; he is endeavoring to take away the confidence of the soldier in those military regulations which must be enforced, while we have an army at all. All this is mere rhetoric exactly so thought the author of this work. He was afraid some person might fall into the same mistake, and accordingly he warns them against this error; he says, " Let it not be supposed that we intend these remarks to excite a vague and indiscriminate senti- ment against punishment by military law; no; when it is considered that discipline forms the soul of an army, without which it would at once degenerate into a mob; when the description of persons which compose the body of what is called an army, and the situation in which it is frequently placed, are also taken into account, it will, we are afraid, appear but too evident that the military code must still be kept distinct from the civil, and distinguished by great promptitude and severity. Buonaparte is no favorite of ours, God wot!" Then, with respect to the French mode of punishment and our own, he observes, " It may be said he (Buonaparte) punishes them (his troops) in some manner. That is very true; he imprisons his refractory troops, occasionally in chains, and in aggravated cases he puts them to death." Is this not dealing fairly with the subject? Is this keeping out of sight every thing that makes against his argument, and stating only what makes for it? Is he here mentioning the French military punish- ments, to prove that we ought to abandon the means of enforcing our military discipline? No! he does not argue so unfairly, so absurdly. His argument did not require it; he states that the French punish their soldiers in a manner which I have no doubt some will think more severe than flogging: he states, that Buonaparte punishes his refractory troops with chains, and with the highest species of all human punish- ment with death. This is exactly the argument of the defendants, or of the author of this composition; and it is the argument of all those who reprobate the practice of flogging. They contend that he (Buonaparte) does not, and that we ought not to flog soldiers; but that he punishes them with chains or death, and so ought we. They maintain, and many of the first authorities in this country maintain, and always have maintained, that for those offences for which one thousand lashes are inflicted, death itself should be inflicted, but not flogging; that the more severe but more safe and appropriate punish- ment is to be preferred. The argument is not used out of compassion to the soldier, not for the purpose of taking part with him. He Joes not tell him who has been guilty of mutiny, " Your back is torn by 32 MILITARY FLOGGING. the lash; you are an injured man, and suffering unmerited hardships: you who have kicked and beat your officer, ought not to be punished in so cruel a way, as by being tied to the triangles and lacerated with whipcords;" this is not what he tells the soldier. No! He says, "The punishment you receive is an improper punishment altogether, because it is hurtful to military discipline because it wounds the feelings of the soldier, arid degrades him in his own estimation because it ruins irretrievably many a man who might be reclaimed from irregular courses, and saves the life only, but without retaining the worth of him who, like you, has committed the highest offences; therefore such a punishment is in no instance fit to be inflicted. But do not think that you are to get off without the severest punishment, you, who have been guilty of mutiny; do not think that military punishments ought not to be more severe than the civil; my opinion, indeed, is, that you ought not to be flogged, because there are reasons against that practice, wholly independent of any regard for you; but then I think that you ought for your offences to be confined in chains, or put to death. 7 ' It is not tenderness towards the soldier; it is not holding up his grievances as the ground for mutiny; it is a doctrine which has for its object the honor of all soldiers; it proceeds from a love of the military service; it is calculated to raise that service, and by raising it, to promote the good of the country. These are the motives, these are the views of this train of argument. Instead of holding out the idle dream, that the soldier ought not to be punished, he addresses himself to the subject, solely on account of the system of which the soldier forms a part; solely on account of the effect which his punishment may produce on the army: but as to the individual soldier himself, he holds the very language of severity and discipline; he tells him in pretty plain, nay, in somewhat harsh terms, that strictness is necessary in his case, and that he must be treated far more rigorously than any other class of the community. Furthermore, he tells him, that a severer punishment than even flogging, is requisite, and that, instead of being scourged, he ought to be imprisoned for life, or shot. He then goes to another topic, but it is almost unnecessary to proceed farther with the qualifications of his opinion; he says, " We despise and detest those who would tell us, that there is as much liberty now enjoyed in France as there is left in this country." Is this the argu- ment is this the language of a person who would hold up to admira- tion what our enemies do, and fix the eye of blame only on what happens at home? Is this the argument, from which we are to infer, that he looked across the channel to pry out the blessings enjoyed by our enemies in order to stir up discontent among ourselves? If such had been his intention, was this vehement expression of contemptuous indignation against those who are over-forward to praise the French, likely to accomplish such a purpose? Surely such expressions were more than his argument required. He goes out of his way to repro- bate men of unpatriotic feelings; men whose hearts are warm towards the enemies of their country. It was the gist of his argument to show that the French discipline being superior to ours (as in the opinion of MILITARY FLOGGING. 33 Sir Robert Wilson and General Stewart, it appears to be), we ought to seek the amendment of our system by availing ourselves of the example of our enemies; but he says, " Do not believe I am against punishing the soldier because I am averse to flogging him, or that I belong to the description of persons who can see nothing in the con- duct of our enemies deserving censure." On the contrary lie warns the soldier that rigor of discipline is his lot, and that he must expect the severest infliction of punishment which man can endure; and he purposely, though I admit unnecessarily for his argument, inveighs against too indiscriminate an admiration of France, in words which I shall repeat, because they are important, and because my learned friend passed hastily over them; "We despise and detest those who would tell us, that there is as much liberty now enjoyed in France as there is left in this country." Such, gentlemen, is the publication on which you are called upon to decide. It is an argument qualified by restrictions and limitations, upon an important branch of the military policy of this country. In pursuing this argument, it was necessary the writer should choose a topic liable to misconception the comparison of the system of the French army with our own. His argument could not be conducted without a reference to this point. But to preserve it from abuse, he guards it by the passage I have read, and by others which are to be found in the body of the composition. And he is now brought before you for a libel, on this single ground, that he has chosen such topics as the conduct of his argument obviously required; and used such language as the expression of his opinions naturally called forth. Gentlemen, I pray you not to be led away by any appearance of warmth, or even of violence, which you may think you perceive, merely upon cursorily looking over this composition. I pray you to consider the things I have been stating to you, when you are reflect- ing upon the able and eloquent remarks of the Attorney-general; more especially upon the observations which he directed to the peculiarly delicate and invidious topics necessarily involved in the argument. The writer might have used these topics without the qualifications, and still I should not have been afraid for his case. But he has not so used them; he has not exceeded the bounds which anything that deserves the name of free discussion must allow him. He has touch- ed, and only touched, those points which it was absolutely impossible to pass over, if he wished to trace the scope of his opinions; and those points he had a right to touch, nay, to dwell upon, (which he has not done,) unless you are prepared to say that free discussion means this that I shall have the choice of my opinion, but not of the argu- ments whereby I may support and enforce it or that I shall have the choice of my topics, but must only choose such as my adversary pleases to select for me; unless you are prepared to say that that is a full permission freely to discuss public measures, which prescribes not merely the topics by which my sentiments are to be maintained, but also tho language in which my feelings are to be conveyed. If there is a difference in the importance of different subjects if one person 34 MILITARY FLOGGING. naturally feels more strongly than another upon the same matter if there are some subjects on which all men, who in point of animation are above the level of a stock or a stone, do feel warmly; have they not a right to express themselves in proportion to the interest which the question naturally possesses, and to the strength of the feelings it excites in them? If they have no such power as this, to what, I de- mand, amounts the boasted privilege? It is the free privilege of a fettered discussion; it is the unrestrained choice of topics which an- other selects; it is the liberty of an enslaved press; it is the native vigor of impotent argument. The grant is not qualified, but resumed by the conditions. The rule is eaten up with the exceptions; and he who gives you such a boon, and calls it a privilege or a franchise, either has very little knowledge of the language he uses, or but a slight regard for the understandings of those whom he addresses. I say, that in the work before you, no individual instance of cruelty has been selected for exaggerated description, or even for remark; no spe- cific facts are commented on, no statements alluded to in detail. Scarcely are the abuses of the system pointed out; though the elo- quent author might well have urged them as arguments against a system thus open to abuse. It is the system itself which is impeached in the mass; it is the general policy of that system which is called in question; and it is an essential part of the argument, a part necessary to the prosecution of the inquiry, to state that the system itself leads to cruelty, and that cruelty cannot fail to be exercised under it. This is among the most important of the arguments by which the subject must needs be discussed: and if he has a right to hold, and publicly to state an opinion on this subject at all, he has not only a right, but it is his duty to enter into this argument. But then the Attorney-general maintains, that it tends to excite mu- tiny, and to deter persons from enlisting in the army. Now, gentle- men, I say, that this fear is chimerical; and I now desire you to lay out of your view everything I have stated from the high authorities whose sentiments you have heard. I request you to leave out of your sight the former arguments urged by me, that you cannot impute any evil intention to their books, because you cannot to their authors. I ask you to consider, whether there is any visible limit to the argument which the Attorney-general has pressed on you, when he asserts that the tendency of this publication is, to excite disaffection among the soldiers, and to prevent the recruiting of the army? I ask you whe- ther any one of those points which are the most frequently discussed, at all times, and by persons of every rank, can in any conceivable way be discussed, if we are liable to be told, that in arguing, or in remarking upon them, our arguments have a tendency to excite sedi- tion and revolt? What are the most ordinary of all political topics? Taxes, wars, expeditions. If a tax is imposed, which in my conscience I believe to be fraught with injustice in its principle, to originate in the most perverse impolicy, and to produce the most galling oppression in the manner of its collection; can I speak otherwise than severely? or, however moderately I may express myself, can I speak otherwise MILITARY FLOGGING. 35 than most unfavorably of it, even after the legislature has sanctioned it, and laid it on the country? And yet the Attorney-general may say, " What are you about? You are exciting the people to resistance; you are touching the multitude in the tenderest point, and stirring them up to revolt against the tax-gatherers, by persuading them that the collection of the imposts is cruel and oppressive, and that the go- vernment has acted unwisely or unjustly, in laying such burthens on the people." Is it rebellious to speak one's sentiments of the ex- peditions sent from this country? If a man should say, " You are despatching our gallant troops to leave their bones in those charnel- houses, as Sir Robert Wilson calls them, which you are constantly pur- chasing in the West Indies with the best blood of England; you are sending forth your armies to meet, not the forces of the enemy, but the yellow fever; you are pouring your whole forces into Walcheren, to assail, not the might of France, nor the iron walls of Flanders, but the pestilential vapors of her marshes." Such things have been uttered again and again, from one end of the empire to the other, not merely in the hearing of the country, but in the hearing of the troops themselves; but did any man ever dream of sedition, or a wish to excite mutiny being imputed to those millions by whom such remarks have been urged? Do those persons of exalted rank, and of all ranks, (for we all have a right to discuss such measures, as well as the states- men who rule us;) do those men within the walls of Parliament, and without its walls, (for surely all have equally the right of political dis- cussion, whether they have privilege of Parliament or no;) do all who thus treat these subjects purposely mean to excite sedition? Did any one ever think of imputing to the arguments of persons discussing in this way those matters of first-rate national importance, that their re- marks had a tendency to produce revolt, and excite the soldiers to mutiny? There is another subject of discussion which instantly strikes one; it is suggested to you immediately by the passage which I formerly read from Sir Robert Wilson; indeed he introduces it in lamenting the treatment of the soldier. I am referring to those signal, and I rejoice to say, successful efforts made by our best statesmen of all parties, on behalf of the West Indian slaves. Could there be a more delicate topic than this? a more dangerous subject of eloquence or description? Can the imagination of man picture one that ought to be more cautiously, more scrupulously handled, if this doctrine is to prevail, that no person must publish what any person may suspect of having a tendency to excite discontent and rebellion? And yet were not all the speeches of Mr. Pitt, (to take but one example,) from beginning to end, pictures of the horrors of West Indian slavery? And did any one in the utmost heat of the controversy, or in the other contentions of party or personal animosity, ever think of ac- cusing that celebrated statesman of a design to raise discontent, or shake the tranquillity of the colonies, although lie was addressing his vehement and impassioned oratory to islands where the oppressed blacks were to the tyrannizing whites, as the whole population, com- 36 MILITARY FLOGGING. pared with a few hundred individuals scattered over the West Indian seas? I say, if this argument is good for any thing, it is good for all; and if it proves that we have no right to discuss this subject, it proves that we have no right to discuss any other which can interest the feelings of mankind. But I dare say, that one circumstance will have struck yon, upon hearing the eloquent address of my learned friend. I think you must have been struck with something which he would fain have kept out of sight. He forgot to tell you that no discontent had been perceived, that no revolt had taken place, that no fears of mutiny had arisen that, in short, no man dreamt of any sort of danger from the inflic- tion of the punishment itself! The men therefore are to see their comrades tied up, and to behold the flesh stripped off from their bodies, aye, bared to the bone! they are to see the very ribs and bones from which the mangled flesh has been scourged away without a sentiment of discontent, without one feeling of horror, without any emotion but that of tranquil satisfaction? And all this the bystanders are also to witness, without the smallest risk of thinking twice, after such a scene, whether they shall enter into such a service! There are no fears entertained of exciting dissatisfaction among the soldiers themselves by the sight of their comrades thus treated: there is, it seems, no danger of begetting a disinclination to enlist, among the surrounding peasantry, the whole fund from which the resources for recruiting your army are derived! All this, yon say, is a chimerical fear; perhaps it is: I think quite otherwise; but be it even so; let their eyes devour such sights, let their ears be filled with the cries of their suffering comrades; all is safe; there is no chance of their being moved; no complaint, no indignation, not the slightest emotion of pity, or blame, or disgust, or indignation can reach their hearts from the spectacle before them. But have a care how, at a distance from the scene, and long after its horrors have closed, you say one word upon the subject! See that you do not describe these things (we have not described them); take care how you comment upon them (we have not commented upon them); beware of alluding to what has been enacting (we have scarcely touched any one individual scene); but above all, take care how you say a word on the general question of the policy of the system; because, if you should attempt to express your opinions upon that subject, a single word of argument one accidental remark will rouse the whole army into open revolt! The very persons upon whom the flogging was inflicted, who were not to be excited to discontent at the torture and disgrace of their sufferings; they will rebel at once, if you say a word upon the policy of such punishments. Take no precautions for concealing such sights from those whom you would entice into the service; do not stop up their ears while the air rings with the lash; let them read the horrors of the spectacle in the faces of those who have endured it. Such things cannot move a man: but description, remark, commentary, argument, who can hear without instantaneous rebellion? Gentlemen, I think I have answered the argument of the Attorney- MILITARY FLOGGING. 37 general upon the dangers of such discussions; and in answering it, I have removed the essential part of the information, without which this prosecution cannot be sustained; I mean the allegation of evil, ma- licious, and seditious intention, on the part of the author and publisher of the work. I have done I will detain you no longer; even if I could, I would not go further into the case. The whole composition is before you. The question which you are to try, as far as I am able to bring it before you, is also submitted to you; and that question is, whether, on the most important and most interesting subjects, an Englishman still has the privilege of expressing himself as his feelings and his opinions dictate? VOL. i. 4 CASE OF JOHN DRAKARD MARCH 13, 1811. SPEECH, MAY IT PLEASE YOUR LORDSHIP GENTLEMEN OF THE JURY Yoil have all of you listened with that attention which the importance of the trial demands, to the very able and ingenious opening of the counsel for the prosecution; and you have heard the various com- ments which he deemed necessary to support his case, upon the alleged meaning which they have been pleased to impute, and on the various tendencies they have ascribed to the publication whose merits you are to try. I confess I was struck in various parts of that learned gentleman's speech, with the remarkable ingenuity required to twist and press into his service the different passages of the composition on which he commented; and although from knowing as I do, the con- text of those passages, with which, however, you were not made acquainted; and from knowing, as many of you may, the character of the person accused; and from having besides a little knowledge of the general question of military policy; I had no doubt that the learned counsel would fail to make out the intention which he has imputed to the defendant's publication; yet I am ready to admit, that every thing which ingenuity could do in this way lie has done. I shall not, gentlemen, follow the learned counsel through the dif- ferent parts of his speech; but in conformity to my own wishes, and in compliance with the positive injunctions of the defendant, I shall attempt to lay before you the composition itself, and to make for him a plain, a candid, and a downright defence. Even if I had the same power of twisting and perverting passages in a direction favorable to my client, which my learned friend has shown in torturing them against him, I am precluded from using it, not merely by the instruc- tions I have received, but also by my own intimate persuasion that such a line of conduct is far from necessary that it would be even hurtful to my case. MILITARY FLOGGING. 39 For the same reason, I shall abstain from following another example set me by the learned counsel for the prosecution. He alluded, and that pointedly, to a case distantly hinted at in this publication that of Cobbett, who was convicted by a jury of publishing a libel; my learned friend took care to remind you of this circumstance, and from a line or two of the publication which you are now to try, he inferred that the subject of that libel was connected with the subject of mili- tary punishment. Perhaps, gentlemen, I might with equal justice, and even with better reason, allude to another case more directly con- nected with the one now in our view. Were I so disposed, I might go out of my way, and leave the merits of the present question; I might find no difficulty, since the example has been set me by my learned friend, and his conduct would justify me should I follow it in calling your attention to a case of libel more resembling the pre- sent; a case which was very recently tried, but in which a conviction was not obtained. If I were so disposed, I might refer you to a case, in which twelve honest men, unbiassed by any interest, determined that the great bulk of the present publication is not libellous nor wicked. But I will not avail myself of this advantage; I will rather suffer the experiment to be tried, in the person of this defendant, of the uniformity of juries; whether that which has been shown by a judicial decision to be innocent at Westminster can be adjudged guilty at Lincoln. I might put it to you whether the intentions of this defendant can be so wicked as they have been represented by my learned friend, when twelve upright men in another court have held his publication to be not only lawful, but innocent have solemnly pronounced it to be by no means libellous. But, gentlemen, I will waive all these advantages in the outset, and confine your attention exclusively to that which is stated to be the evil of this publication. I beg you not only to lay out of your view the case of Cobbett, who was tried for a libel that has no possible connection with the present case, but I will also ask you to lay out of your view the acquittal of the Hunts, who have been tried for publishing at least three-fourths, and that which is called the most obnoxious part, of the contents of what you are now to try. All this 1 desire you to lay out of your view. I beg you to confine your attention solely to the merits of this newspaper; and if you shall be of opinion, after I have gone through the publication much less particularly than my learned friend, and without any of his ingenious, and, he must pardom me if I say, his sophistical comments; if, after collecting the defendant's intentions, from comparing the different parts of his dissertation, you should be of opinion that he has wished fairly to discuss a question of great importance and interest to the country; that in discussing this ques- tion he has not merely propounded his arguments, but also given vent to those feelings which are utterly inseparable from the consideration of his subject; if, in doing so, he has only used the right and privilege which all men in this free country possess, of discussing and investi- gating every subject, and of calling to account the rulers of the country, (which indeed he has not done); if, in discussing the manner 40 MILITARY FLOGGING. in which our rulers, not of the present day only, but of past times also, have conducted themselves, he has only exercised an unques- tionable and unquestioned right the right of delivering his senti- ments and of enforcing them; if this shall appear, you will be instructed by a higher authority than mine, and it will. I am sure, be your pleasure, as it will be your duty, to pronounce the defendant not guilty. This, gentlemen, then, is the question you have to try; and that you may be enabled to decide it, I shall have little more to do than to request your attention to the publication itself. I do not wish you to forget the comments of the counsel for the prosecution, but I shall take the liberty of laying the defendant's discussion before you more fairly and impartially than it has already been laid before you by that learned gentleman. It was the intention of the writer to take up a subject of high importance a question universally interesting a case that has often been alluded to by different writers. Gentlemen, he had a right to form his opinion upon this question; he had a right to form it, although it happened to be inconsistent with the policy of the country. I do not say that his is a just opinion; that it is a cor- rect opinion; but it happens to be his opinion, and he has a right to maintain it. If he thinks that the practice which he reprobates is detrimental to the service of this country; that it produces reluctance among the inhabitants to enter into the military state; nay, that it has the worst effect on the country itself; I have yet to learn that there is any guilt in entertaining such an opinion I have yet to learn that it is criminal to promulgate such an opinion on such a subject. And if, in support of his sentiments, he resorts to topics of various descrip- tions, I shall hold him innocent for so doing, until I am informed from good authority, that a person may hold an opinion, but that he must be mute upon the subject of it; that he may see the question only in a certain point of view; that he must look at it through a certain par- ticular medium; that he must measure the strength of his argument by a scale which my learned friend alone seems to have in his pos- session till I learn all this from a higher authority than the learned counsel, I shall continue to hold the doctrine that it is the privilege of a subject of this country to promulgate such fair and honest argu- ments as appear to him best adapted to enforce his fair and honest sentiments. Gentlemen, how does the publisher of this piece proceed to declare and maintain what he believes? He begins, " ONE THOUSAND LASHES." This is a short head, as it were, to the article. It is headed in capital letters, in the same way as other articles in the newspapers are usu- ally headed. If you will look into this very paper, gentlemen, you will find that other articles begin in the same way. Here is " SPAIN AND PORTUGAL," and another article has "FRANCE" for its head, and another " MISCELLANEOUS NEWS." Then follows a motto, or text, which the author has chosen to give force to what was to follow; and, according to the practice of newspaper writers, he took it from the speech of a celebrated law officer, choosing to quote him, because MILITARY FLOGGING. 41 he differed from his opinion. Meaning, therefore, to argue with that officer, he could not have done hetter than seize hold of a passage from his speech; and lie then proceeds to give a statement of the facts and sentiments which are connected with that passage; using various arguments, sometimes even a pleasantry or two, as is no uncommon method when we wish to come at the truth. lie then states various instances of the punishment which he condemns, because he is about to discuss or rather to show the impolicy of the particular mode in which military punishments are now so frequently inflicted. The learned counsel for the prosecution told you, that in order to obtain this collection of facts, the defendant had ransacked all the newspapers. Unquestionably, gentlemen, he had ransacked the papers; and if he had not brought together a statement of facts if he had not in this way laid the groundwork for what was to follow what would the ingenuity of that learned gentleman have suggested? You would have been told that all the defendant had said was mere vindictive turbulent clamor against a practice long received, yet but seldom put in force, and that the author had found it impossible to produce any instances of the infliction of that punish- ment. The author was aware that ingenious men would start this objection against him, and that it would have been a fair one there- fore he gets rid of it by laying the groundwork of his argument in a statement of facts. The language of what he has done is then simply this. " Do not think that what I am writing about is a mere chimera. You have the real existence of it before your eyes. It is taking place every day." Gentlemen, the manner in which he states these facts deserves particular attention. Had it been his desire to put the thing in the worst point of view, in order to support his opinion, he would not have written as he has done: for when a man is heated by his subject, and is looking out for arguments, he seldom finds those that are un- favorable to his opinion; if they are of that complexion, he turns his eyes away from them; and I might refer you to the speech of the learned counsel for the prosecution as a proof of this. That learned gentleman very carefully turned his eyes off from those passages which would have given a different character to the piece from that which he imputes to it; or if he did not entirely omit them, he read them over to you in a low tone of voice, which was certainly not the general pitch of his speech. It does appear, then, that this gentle- man is not without the very fault which he charges, but charges wrongfully, upon my client. Had the defendant been anxious to im- press the opinion upon his readers, that the punishments which he instances were inflicted without cause; had he wished to raise forcibly the indignation of his readers against such punishments punishments which he thinks injurious to the army he would not have dwelt as he has done on the faults of the offenders. But he lias not taken such an advantage of the question he was agitating as my friend has taken of him. He has told the circumstances which made against the offenders, and lias, in so doing, offered a justification of the uunisli- 4* 42 MILITARY FLOGGING. ment. In the first instance, it must be notorious to all of you, gentle- men, that in the case of corporal Curtis, the world was ignorant of the transaction, but that rumors of so unfriendly a kind were abroad, as to induce a patriotic and honorable member to bring the case before the House of Commons. He conceived its circumstances to be diffe- rent from what they really were, and that great blame attached to the persons who sat on the court-martial. Now, might not the writer of this article have availed himself of the ignorance of the people, in order to give point to his case, and a false interpretation to the con- duct of the court-martial? But he does nothing of the kind; for being ignorant of the true state of the case, he avows his ignorance. The case was unknown till Colonel Wardle brought it before Parliament nine or ten days ago. The defendant could not, therefore, have told you why the sentence was passed upon Curtis, but he could have told you the rumors that were then in circulation, and which now appear to have been ill-founded, but which were then so feasible, as to have become the subject of a motion in Parliament. This case, then, the defendant left on its own merits; in all the other cases he has told you distinctly the occasion that gave rise to the punishment, and so explicitly, that my learned friend, with his usual ingenuity, was desi- rous of founding a charge upon his statement. Of Clifford he observes, that he was sentenced to receive a thousand lashes, for repeatedly strik- ing and kicking his superior officer, "Onethosand lashes!" Forwhat? Might he not have stopped here? Had he been disposed to arraign the sentence of the court-martial as any thing rather than candid and fair, he would have stopped here, and not advanced to mention the occasion of the punishment; but, by the mention of it, he fritters away the whole force of the case that my learned friend would feign make out. He says " for kicking and striking his officer;" and for such an offence no punishment can be too severe, although a particular mode of punishment may be improper. In one point of view the author loses by this statement, and undoes what he had been attempting to do; but the subject is taken up again in the course of his discussion, and then he tells you, with apparent reasonableness, that whatever the demerit of the offender may be, though he may deserve death, though he may deserve worse than death, yet the punishment appoint- ed for him is wrong in point of policy, though not in point of justice. Other cases also he mentions in his motto, where the men had been found guilty of all the charges against them; and, in the last case, instead of stopping short when he mentions the sentence, which would have aggravated the statement, and left the presumption that it had been executed, he fairly tells you that the lashes were not inflicted, and that the man was marched to Chatham. It appears, then, that these instances are necessarily given as the groundwork of the discussion, and are given in the fairest manner. Then comes the discussion itself. I shall not trouble you with again reading much of it, because it has been repeated to you so often. On the perusal you will find that the writer supports his opinion by argu- ments which are present to the mind of every man who has consid- MILITARY FLOGGING. 43 ered the subject. If they were not so now, they might be by a little recollection, because they have been so forcibly urged out of Parlia- ment and in Parliament, where many members have eloquently spoken against that mode of punishment which prevails in our army, and, it is a melancholy truth, in our army alone. The statement made by this writer is copied, but not copied closely, after that which has proceeded from the pens of some of the ablest officers that have adorn- ed our service. It is an echo, but not a full one, of what has been repeatedly said in the House of Commons. His arguments have been used over and over again, and are, in fact, embodied in the sys- tem which the late administration carried into practice. The argu- ments then used are now employed by the writer, but in a mitigated form, in support of an opinion which he deems it incumbent on him to state strongly to his countrymen. These arguments are various, and are not only applicable to his discussion, but I might state that his discussion could not have been carried on without them. Some of them may be dangerous, but the subject required that the danger should be incurred. One of them is founded on a comparison of ours with the French service. Gentlemen, it is true, and it is a deplorable truth, that the latter is one of the first services in the woild in point of discipline, in point of valor, and of every thing that constitutes a great army. Next to our army, there is none in the world that has gained so many victories, that has been so constantly sure of success; none in which the discipline is so well observed, and where more is made out of the discipline. This is a deplorable fact, and every Euro- pean power but our own has suffered grievously from its truth. Now, was it not natural, nay, necessary to the argument of this writer, that he should appeal to the French discipline, and ask in the outset, if such punishments as he condemns are inflicted by it? If he had not said that in the French army the practice of flogging is unknown, nothing could have made up for so great and obvious a deficiency in his state- ment. Would not the answer have been ready in the mouth of every one, u Do not other armies flog as well as we?" Would any who approves of flogging in our army, and is capable of reading two lines, read thus far, and not stop to exclaim, " Ours is not the only army that flogs its soldiers. France does the same, and a great deal worse; it is a necessary measure; it isvlhe lot of a soldier, he must submit to it; there is no arguing against it." This would have been the answer of all the military men, and of all others who are favorable to the practice. After the writer of this discourse had introduced his statement, aware that it was of a delicate nature, that he had got upon danger- ous ground, and that his motives might be abused, he limits his asser- tions by the plainest qualifications. " Here," said he, " I enter my protest against any unfair deduction from what I have advanced;" and if anything surprised me more than the rest in the speech of my learned friend, it was the manner in which he passed over the limita- tions of the writer. I shall not go through the whole of them, but will give you a specimen or two. He says, "Let it not be supposed 44 MILITARY FLOGGING. that we intend these remarks to excite a vague and indiscriminating sentiment against punishment by military law; no, when it is consi- dered that discipline forms the soul of an army, without which it would at once degenerate into a mob when the description of persons which compose the body of what is called an army, and the situations in which it is frequently placed, are also taken into account, it will, we are afraid, appear but too evident, that the military code must still be kept distinct from the civil, and distinguished by greater promptitude and severity." Thus it is that he vindicates himself, and I should have thought he had protected himself from misrepresentation, had I not heard the remarks of-the learned counsel, who, with his usual ingenuity, twisted against him the whole of his argument respecting the hardships to which the soldier is exposed. What could he by this proviso have thought to protect himself against, if not against the insinuation that he was exciting the soldiers to mutiny, by telling them that they are hardly dealt by in being placed under military law, in having no trial by jury, and in being subject to such punishments as are known in our army alone? He had this in his eye; he was aware of the pro- bability of the charge; and to protect himself from it, he protests in plain terms against such a construction being put upon his asser- tions. In like manner, he was aware of a certain class of men ever ready to cry out, that he was one of those persons who are ever officious in promoting the wishes of the enemy, who are always dissatisfied with what is done at home, who love nothing but what is French, and who are fond of raising a comparison, that they may exhibit French customs in a favorable light. In order to caution his readers against such a construction of his words, on the one hand, and to guard them on the other, against entertaining such wrong, such un- English sentiments, he proceeds in the words I shall now read to you. "Buonaparte is no favorite of ours, God wot! But if we were to balance accounts with him on this particular head, let us see how matters will stand." lie might have appealed to his general conduct since he edited this newspaper; he might have appealed to the bold and manly tone with which lie has frequently guarded his readers against the designs and character of Buonaparte; but not satisfied with this, he says explicitly, " Do not think that I am holding up the enemy to your approbation; it is upon this one subject, and on this one alone, that 1 am of opinion there is not so great a difference against his, and in favor of our system." This is the sum and sub- stance of his argument, and this it is both loyal and laudable in him to maintain. Had he been the evil-minded, seditious, libellous person he is described to be, would he have taken occasion to state this? Had he been disposed to hold up Buonaparte's conduct to the admira- tion of the soldiers, would he, in the passage which I am now going to read to you, have dwelt unnecessarily on the severities of the French discipline? Alluding to the French ruler's treatment of his soldiers, he observes, " It may be said, that he punishes them in MILITARY FLOGGING. 45 some manner that is very true; he imprisons his refractory troops, occasionally in chains, and in aggravated cases he puts them to death." Need this writer have told his readers all this? Might he not have stopped when he said that it was true the French soldier was punished in some manner? Need he have particularised the awful punishments which are inflicted upon that soldier in proportion to his crime? He does, in fact, mention punishments existing under the French discipline, which, in the opinion of the majority, will, I am afraid, appear more severe than Hogging. Although it may he his idea that hogging is worse than death, yet I believe, were we to poll the country around, we should find but few who would not rather take the punishment of the lash than be sent out to be shot. It may be very well in talk to give the preference to death, but if it come to the point, I believe that there are but few men, nay, but few soldiers, who would not gladly commute it for flogging. How, then, can it be said of this writer, that he holds up to admiration the system Buonaparte? Not content with stating that he punishes his troops in some manner, he must add, and unnecessarily for his argument, that he imprisons them in chains, and puts them to death; that is to say, he inflicts upon them the most awful of human punishments. One would have thought, gentlemen, that this might have been enough to vindicate the writer's intentions, and save him from misre- presentation. Even supposing he had no other readers than soldiers, one would have thought that he had taken precaution enough to pre- vent mistakes; but ho adds another passage, which puts his intentions beyond all doubt, " We despise and detest those who would tell us that there is as much freedom now enjoyed by France as there is left in this country." This, gentlemen, I will read again, because it was hurried over by the learned counsel. " We despise and detest those who would tell us that there is as much liberty now enjoyed in France as there is left in this country. We give all credit to the wishes of some of our great men, yet while anything remains to us in the shape of free discussion, it is impossible that we can sink into the abject slavery in which the French people are plunged." Gentlemen, can this writer be called a favorer of France? Could stronger language against the system of the French government have been used? He speaks of the " abject slavery" in which the French people are plunged; and he adds in the same strain, and indeed as a very natural conse- quence, " we do not envy the general condition of French subjects." There are many other passages in this publication, the general pur- port of which is, that if ever a man had a strong opinion against the character and measures of the ruler of France, at the same time thinking highly of his military discipline an opinion which many of our greatest men have held equally and conscientiously if ever a man sent such an opinion forth to the world guarded by explanation, and coupled with undeniable facts to support and illustrate it it is the person on whose conduct you are now to pronounce your judg- ment. With respect to the passage in the middle of this publication, on 46 MILITARY FLOGGING. which much stress has been laid by the counsel for the prosecution, because it was not included in the article for publishing which the Hunts were tried; it contains a statement of the whole of the general arguments usually urged against punishment by flogging, as applied to the case of the militia force. These arguments have been often discussed; they have been heard from the month of a Windham downwards; and it has been usually admitted, that whatever may be said for the punishment of flogging in the line, it is peculiarly inappli- cable to the militia service. The usual arguments on this subject are forcibly stated by the writer of this piece. In order to illustrate them, lie takes an instance, and as the name of Chilman came in his way, he makes use of it. But he guards his readers against supposing that he imputes any blame to the court-martial which tried this man. The writer has no sooner stated a case, and traced the description of it, than he represents it, not as an individual instance, but " as being the probable effects of the system." His language is this, " Do not imagine that I have held up to your particular notice the court-martial which has thus sentenced Chilman. I do not mean to confine your attention to this particular instance. I take him as I should John-a- Noakes, or anyone of the militia who is exposed to the same tempta- tion, who, having been taken from his family by force, after commit- ting certain irregularities, is punished in this dreadful and impolitic way.-'' And by so doing the writer has only followed the example of all the great authorities that have gone before him; their arguments have turned upon the manner in which the militiamen are taken from their homes, and the hardship of exposing them to this odious and cruel punishment, when it was not their choice to enter or not to enter the service; men who, having been accustomed to live under the privileges of the civil law, are dragged away from its protection. And worse words than these have been applied to the practice by our own authorities. The writer, following the example of others, asks you whether it be fair and humane to treat such men with the same severity for a venial offence committed with a friend and companion, as you inflict on him who enters voluntarily into the service, and him who chooses to abandon for the rigors of the military, the mercies of the civil law? Whether it is equal and just to visit both these with the same cruel punishment? This is the drift and jet of this writer's argu- ment. This is the way in which he was obliged to treat his subject; and in this way he has followed the steps of the great characters in our army who have written before him. Gentlemen, before I go any farther, I will ask you to consider how far we have already got in the case you are trying? It is admitted, indeed it cannot be denied, that an Englishman has a right, which no power on earth can take away from him, to form an opinion, I do not say on the measures and character of our rulers; that right he certainly has, but it is not involved in the present question, for this author has done no such thing; it cannot, I say, be denied that an Englishman has the privilege of forming his own opinion upon the policy, expe- diency, and justice of the system that is adopted by his rulers. Having MILITARY FLOGGING. 47 formed this opinion, it cannot be denied that he has a right to promul- gate it; and surely it can no more be denied than the two first proposi- tions can be disputed, that he has a right to support his own opinion by his own arguments, and to recommend its adoption in what he may deem the most efficacious manner. And, gentlemen, let me ask you fur- ther, if you will withhold from him the privilege of appealing to such topics as suggest themselves to his mind for the enforcement of his opin- ion, and even for the ornament of his discourse? Are you to tie him down to any particular set of subjects? Will you say to him, " Have your opinion, but take care how yon make it known to the world?" Will you say to him, " Support your argument, but in so doing, you must choose those we shall point out to you; you must steer clear of every thing that we do not approve of; you must take care to state no- thing forcibly, to argue dully, to support your argument feebly, to illus- trate it stupidly." Is this free discussion? Is this the way in which you would have that which is done in this country compared with that which is done in France? If we have any privilege more important than another, gentlemen, it is, that we may discuss freely. And is it by this straitened this confined this emasculated mode of discuss- ing subjects, that every one of us must be regulated, who, when he looks first at home, and then looks to France, is so thankful for being born in this country? But, gentlemen, I should like to ask, if this is to be the extent of privilege which we are to enjoy? I have hitherto merely inquired how far a man may go in support of his arguments by illustrating them; but if I were to go a step farther, I should not much exceed the bounds of my duty. Has not a person in this country a right to express his feelings too? Since when is it (I would ask, that we may know the era for the purpose of cursing it! by whom was the change brought about, that we may know the author and execrate his memory), that an Englishman, feeling strongly on interesting subjects, is prevented from strongly and forcibly expressing his feelings? And are the sufferings of British soldiers the only subject from which the feelings of compassion should be excluded? Living as we do in an age when charity has a wide and an undisputed dominion; in an age when we see nothing but monuments of compassionate feeling from one end of the country to the other; in which, not only at home, but as though that was too confined a sphere, we are ransacking foreign climes for new objects of relief; when no land is so remote, no place so secluded, as not to have a claim on our assistance; no people so barbarous or so strange as not to excite our sympathy: is this a period in which we are to be told that our own soldiers may not claim our mercy? Granting that they arc not barbarians granting that they are not strangers, but are born among us, that they are our kinsmen, our friends, inhabiting the same country, and worshiping at the same altars granting that far from being unknown to us, we know them by the benefits they have rendered us, and by the feeling that we owe them a debt of gratitude never to be repaid I put it to you, gentlemen, whether wo are to exclude them from what we give to all 48 MILITARY FLOGGING. mankind; from the benefit of our feelings and our sympathy; from that universal law of nature which gives to all the victims of cruelty, however distant, however estranged, a home, a settlement, in every compassionate heart? Is this a discovery of the present time? But it is unnecessary to put it more home to your bosoms. If any one subject is nearer to our hearts than another, or ought to be so to British subjects, it is the condition and treatment of our brave troops, to whom we owe so much, to whom we owe a load of gratitude which was never so heavy as it is at present, and in whom now all our hopes aie centered. How, gentlemen, can you visit a person with two years' imprisonment in a dungeon, who, feeling strongly upon a subject of so much interest, expresses his feelings with that warmth which he cannot but feel, and which it becomes him to show? If he had no such feeling he would have been unworthy of his subject, and having such feeling, had he shrunk from giving vent to it, he would have proved his cowardice; he has, however, been particularly cautious; he has done little more than reason the point; he has not given full vent to his sentiments, but in as much as he has connected his emo- tions with his argument, you are to take what he has said as a proof of a sincere and an honest heart. I have already stated to you that the opinions expressed in this publication are not the sentiments of this author alone; but that they were originally broached by the ablest men of the country; men whose high rank in the army render them not the worst witnesses for the defendant. I have now in my hand a work by Sir Robert Wilson an officer whom to name is to praise but who, to describe him in proper colors, ought to be traced through his whole career of service, from the day he first entered the army, up to the present time; whose fame stands upon record in almost every land where a battle has been fought by the English troops, whether in this or in the last war. It is perfectly well known to you that on one occasion by his own personal prowess he saved the life of the Emperor of Germany, for which service he received the honor of knighthood. You must all know that afterwards through the campaign in Germany, when serving with the allied armies, he rendered himself celebrated by his skill and courage, as well as with our gallant army in Egypt. Bat not merely is he an ardent friend to the British cause; ho is known throughout the whole of the British army as one of its most enthu- siastic defenders. Far from being a friend to Buonaparte of whom and of his friends you have heard so much to-day nothing more distinguishes him than an implacable hatred to that enemy of his country. To so great a length has he carried this, that I believe there is no spot of European ground, except England and Portugal, in which he would be secure of his life; so hostile has been his conduct and so plain and direct his charges against Buonaparte, that from the period when he published his well-known work (containing aspersions against that person, which for the honor of human nature one would fain hope are unfounded) he has been held in an abhorrence by the ruler of France, equal to that which Sir Robert Wilson has displayed MILITARY FLOGGING. 49 against him. From 1816, when the plans for the regulation of the army were in agitation, and when he published those opinions which the defendant has now republished, up to the present time, he lias not received any marks of the displeasure of the government, but on the contrary has been promoted to higher and to higher honors; and has at length been placed in a distinguished situation near the king himself. During the discussions on our military system, when all men of liberal minds were turning their attention to the subject, with laudable promptitude and public spirit, he addressed a letter to Mr. Pitt, and entitled it, "An Inquiry into the present State of the Military Force of the British Empire, with a view to its Reorganisation" that is to say, with a view to its improvement, Sir Robert Wilson, with, perhaps objectionable taste, using the word reorganisation, which is derived from the French. In this publication, the gallant officer, animated by love for the army, and zeal for the cause of his country, points out what he conceives to be the great defects of our military system; and the greatest of all these lie holds to be the prac- tice of flogging. He describes this punishment to be the great cause which prevents the recruiting of the army, and which in one word, produces all manner of mischief to the service ruining the character of the soldier, and chilling his zeal. I dare say, gentlemen, that you already begin to recollect something which you have heard this day; I dare say you recollect that the defendant is expressly charged with a wish to deter persons from enlisting, and to create dissatisfaction in the minds of the soldiery because he wrote against flogging. But Sir Robert Wilson, you now see, thinks that very opposite effects are to be produced by altering the system. There are fifteen or twenty pages of the pamphlet in my hand which contain an argument to support this opinion. And when you shall hear how the subject is treated by Sir Robert, you will perceive how impossible it is for a person who feels, to avoid, in such a discussion, the use of strong expressions. You will, as I read, see that Sir Robert comes from generals to particulars at once, and describes all the mimitix of mili- tary punishment. He first states that, "corporal punishment is a check upon the recruiting of the army;" he then goes on, "My appeal is made to the officers of the army and the militia, for there must be no marked discrimination between these two services, notwithstanding there maybe a great difference in their different modes of treating the soldiery. I shall sedulously avoid all personal allusion," (and, gen- tlemen, you will observe the present defendant has been equally cautious not a single personal allusion is to be found throughout his discussion.) "The object in view is of greater magnitude than the accusation of individual malefactors." (Malefactors, gentlemen, a much stronger word than can be found in the publication of the defendant.) "I shall not enter into particulars of that excess of punish- ment, which in many instances has been attended with the most fatal consequences. I will not, by quoting examples, represent a picture in too frightful a coloring for patient examination." Sir Robert Wil- son then alludes to the crimes for which this dreadful punishment is VOL. i. 5 50 MILITARY FLOGGING. inflicted. He says, "How many soldiers whose prime of life has been passed in the service, and who have behaved with unexceptionable conduct, have been whipped eventually for an accidental indiscretion. Intoxication is an odious vice, and, since the Duke of York has been at the head of the army, officers have ceased to pride themselves upon the insensate capability of drinking; but, nevertheless, flogging is too severe as a general punishment for what has been the practice of officers." Here, you see, gentlemen, the gallant writer brings in aid of his argument an allusion of a much more delicate nature than any that has been made by the defendant. He speaks of the misconduct of officers, and leads the mind to contrast the trivial consequences of misconduct to them with the severe punishment that awaits the sol- dier guilty of the same offence. A more delicate subject than this cannot be imagined. It is as much as if he said, "Do not punish the poor private so cruelly for a fault which his superior does not scruple frequently to permit, and for which no chastisement is awarded to him." Sir Robert proceeds "Absence from quarters is a great fault and must be checked: but is there no allowance to be made for young men, and the temptations which may occur to seduce such an occasional neglect of duty?" Gentlemen, do you not immediately, on hearing this, recur to the language used by the defendant when describing the imaginary case of Robert Chilman? This is exactly his argument; he too, thinks that allowance ought to be made for a young man, particularly one forced into the service, who may, as he says, after a hard day's exercise, meet with some of his companions, and indulge somewhat beyond the bounds of sobriety; and he also thinks what Sir Robert Wilson has thought and published before him, that flogging is a very improper punishment to be inflicted on such a person for such an indiscretion. The pamphlet then in glowing lan- guage language much more forcible than that of the publication which you have to try describes the ill effects of flogging. "Cor- poral punishments never yet reformed a corps, but they have totally ruined many a man, who would have proved, under milder treatment, a meritorious soldier. They break the spirit without amending the disposition." And now, I beseech you, mark the high coloring of this officer, after all you have heard denounced against the description of the defendant. " Whilst the lash strips the back, despair writhes round the heart, and the miserable culprit viewing himself as fallen below the rank of his fellow species, can no longer attempt the re- covery of his station in society. Can the brave man, and he endowed with any generosity of feeling, forget the mortifying, vile condition in which he was exposed? Does not, therefore, the cat-o-nine-tails defeat the chief object of punishment?" Sir Robert Wilson then comes to the comparison between the French military discipline and ours, on which so much stress has been laid in support of the prosecution, and you will hear that this defendant has said nothing on this subject which had not before appeared in the pamphlet I have now in my hand. He says. " Gen- tlemen who justly boast the most liberal education in the world, have MILITARY FLOGGING. 51 familiarised themselves to a degree of punishment which characterises no other nation in Europe," thus, in fact, supplying the defendant with the words of this publication: " Here alone is still perpetrated," &c. In a subsequent paragraph Sir Robert Wilson specifies France by name, so essential was the notice of the French discipline to his argument. He says, " England should not be the last nation to adopt humane improvements. France allows of flogging only in her ma- rine." In conclusion, the gallant officer appeals to the character of the present age. which he says, " is a remarkable epoch in the history of the world. Civilisation is daily making the most rapid progress, and humanity is triumphing hourly over the last enemies of mankind. But whilst the African excites the compassion of the nation, and engages the attention of the British legislature the British soldier their fellow-countryman the gallant, faithful protector of their liberties, and champion of their honor, is daily exposed to suffer under an abuse of that power, with which ignorance or a bad disposition may be armed." Gentlemen, I think, I may venture to say, that in this passage also you recognise something which you have this day heard before. You may recollect the humble attempt of the humble individual who now addresses you, and who asked you whether those who feel so much for strangers, might not be allowed to feel a little for the defenders of their country. The only difference is, that Sir Robert Wilson's lan- guage is more forcible more impressive. His picture stands more boldly out, his language throughout is more glowing than that used by the defendant, or by his advocate. [Mr. Brougham then alluded to the opinions of General Stewart, of the 95th regiment, who, when a brigadier-general, published a pamphlet, entitled, " Outlines of a Plan for the General Reform of the British Land Forces."] This officer first asks, " How will the several parts of our present military discipline be reconciled to common sense, or to any insight into men and things?" and then proceeds to specify the errors in our system which cannot be so reconciled. The chief of these is the mode of punishment, which, it should seem, every friend to the British army unites to condemn. He says, "The frequent infliction of corporal punishment in our armies tends strongly to debase the minds and destroy the high spirit of the soldiery; it renders a system of increasing rigor necessary; it deprives discipline of the influence of honor, and destroys the subordination of the heart, which can alone add voluntary zeal to the cold obligations of duty." Again "The perpetual recurrence to the infliction of infamy on a soldier by the punishment of flogging, is one of the most mistaken modes for enforcing discipline which can be conceived." And then, gentlemen, as if there were some fatality attending the discussion of this question as if there was something which prevented any one's touching the subject without comparing the military discipline of France; with our own General Stewart is scarcely entered on his argument before he is in the middle of this comparison, lie says, ' In the French army 52 MILITARY FLOGGING. a soldier is often shot, but he rarely receives corporal punishment, and in no other service is discipline preserved on truer principles." You thus hear, gentlemen, what General Stewart says upon the superior discipline of the French army; he holds it up as a pattern to our service a service in which he is one of the most distinguished individuals. But lest it should be said that these were young officers (although were we to reckon their campaigns, or even their victories, we might esteem them old) lest deference may be denied to their opinions because deficient inexperience and, above all, to show you that this subject, the more it is considered, the more does it teem with vindi- cations of the defendant to show you, that it is a subject calculated not only to animate the feelings of the young, but even to melt the chill of age to satisfy you that although emotion may have gene- rally become blunt under the pressure of years, yet this is more than compensated for by the longer experience of the mischiefs which arise from the horrible system of flogging, an experience which occa- sions the deliberate judgment of the old to rival the indignation of the youthful I will now produce to you the publication of a veteran a publication also intended to point out, for the purpose of doing away with them, these defects which tarnish our military discipline. I allude to a work from the pen of an officer in the highest ranks of the service Lieutenant-general Money who, since the writing of that work, has been promoted to the station of a full general. You shall now hear what he says on the subject of flogging; he whose years are numerous as his services, and who is esteemed one of the strictest disciplinarians on the staff: an officer to whom the command of a district has been entrusted, a signal proof of the confidence reposed by government in his honor and military skill. You have been told that attacking the scourge as applied to the backs of our soldiers, has a tendency to injure the army, and to deter persons from entering into it; General Money, you will find, speaks directly to these points, and you will find him declaring, that this practice which our author condemns, does itself occasion desertion, and deters persons from en- tering into the military service of their country. The publication to which I allude is, " A letter to the right honorable William Windham, on the defence of the country at the present crisis, by Lieutenant-ge- neral Money." He says, '' I beg leave, Sir, to submit to you, and to his Majesty's ministers a measure, the adoption of which will, in the opinion of every military man I have conversed with on the sub- ject, bid fair to put a stop to desertion." This measure, which in the opinion of every military man is likely to produce so desirable an effect, you will find to be neither more nor less than the measure which this defendant recommends, and has exerted himself to bring about, namely the discontinuance of flogging. He goes on "When a man deserts, and he is taken, he is liable to be shot: that, indeed, is seldom inflicted for the first offence, but he is punished in a manner that is not only a disgrace to a nation that boasts of freedom and its humanity, but is an injury to the recruiting our army. It strikes such MILITARY FLOGGING. 53 a terror into the peasantry of the country. The culprit is tied up to the halberis, in the presence of the whole regiment, and receives six or eight hundred lashes, sometimes a thousand. He faints! he recovers, and faints again!! and some expire soon after the punish- ment! It wounds my feelings when I rellect on the dreadful suffer- ings of men I have seen and been obliged to see, thus cruelly punished; and what other epithet can be used than cruel? I have told men that I wished the sentence had been death; and true it is, that there are men who have preferred death to the disgrace and punishment." Gentlemen, I put to you these passages out of the different publi- cations, published by those gallant, distinguished, and experienced officers; and I ask you, whether you will send the defendant to a dungeon for doing that which has procured them the highest honors the favor of their sovereign, and the approbation of their country? I inlreat you to reflect on the publication which is charged in the indictment with being libellous; and which has been commented on by the gentleman opposite; and I beg you would recall to mind the comments he lias made upon it. He has told you it lias a tendency, and must have been published with an intention to excite mutiny and disaffection in our army, by drawing a contrast unfavorable to our service when compared with the French; that it will induce the soldiers to join the standard of France and to rebel against their offi- cers; and lastly, that it will prevent persons from entering into the service. Can Sir Robert Wilson, gentlemen, can General Stewart, or can the veteran officer whose very expressions the writer has used, by any stretch of fancy, be conceived to have been actuated by such intentions? Were they such madmen as to desire to alienate the men from their officers, and to disincline others from entering into the army of which they were commanders, and of which they were the firmest friends; to indispose men towards the defence of their own country, and lead them to wish fora foreign and a French yoke? Can you stretch your fancy to the thought of imputing to them such motives as these? You see the opinions they have given to the world; with what argu- ments, and with what glowing, I will even say violent language, they have expressed themselves. And shall it be said that this defendant, who uses language not nearly so strong, has published a work which has such a fatal tendency, or that he was actuated by so infernal an intention? An intention which in these officers would arue down- right madness; but an intention which, in the author of this publi- cation, would show him fit only for the society of demons! Unless you are convinced, not only that what is innocent at Westminster is libellous here, but, that what is commendable in these officers is dia- bolical in the defendant, you cannot sentence him to a dungeon for doing that which has obtained the kindness of the sovereign and the gratitude of the country for those distinguished men. I have just heard so much about invidious topics, about dangerous subjects of discussion; I have seen so much twisting of expressions to give them a tendency to produce disaffection, and 1 know not what besides, in the people of this country that I am utterly at u loss to 5* 54 MILITARY FLOGGING. conceive any one subject, whether it relate to military discipline or to civil polity, that is not liable to the same objection. I will put my defence on this ground: If any one of those subjects which are com- monly discussed in this country, and particularly of those relative to the army, can be handled in a way to prevent expressions from being twisted by ingenuity, or conceived by some to have a tendency to produce discontent if any mode of treating such subjects can be pointed out to me, in which we shall be safe, allowing the argument of my learned friend to be just I will give up this case, and confess that the intention of the defendant was that which is imputed to him. Is there, to take an obvious instance, a subject more common-place than that of the miserable defects which now exist in the commissa- riat of our army? I only select this because it comes first to my thoughts. Has it not always happened that in the unfortunate ne- cessity of a retreat, all mouths have resounded with the ill conduct of the commissary? Has it not been said in the hearing of the army and of the country, that the distresses of our troops on a retreat were increased by their want of food, owing to the inadequacy of our com- missariat staff? But we have not only been in the habit of blaming particular instances of neglect we have also taken upon ourselves to blame the system itself. Nay, we have gone farther; we have placed our commissariat in comparison with that of France, and we have openly and loudly given the preference to the enemy's sys- tem. And why may not the defendant do the same with reference to another point of military discipline? Can you fancy a subject more dangerous, or which is more likely to occasion mutiny and revolt, than that of provisions, if you tell the soldier that through the neglect of his government he runs the risk of being starved, while in the same breath you add, that Bounaparte's troops are well supplied, through the attention which he pays to this most important branch of a general's duty? Yet, gentlemen, no one has ever been censured, nor has it been said that it was his intention to excite confusion, be- cause he has condemned that delicate part of our military system which relates to providing the soldiers with food. In truth, we must submit to these discussions, if we would have any discussion at all. Strong expressions may, indeed, be pointed out here and there in a publication on such topics, and one may be more strong than another. When he is heated, a man will express himself warmly. And, am I to be told, that in discussing a subject which interests all men, no man is to express himself with force? Is it the inflammatory tendency of this publication, or is it, in one word, the eloquence with which the writer has treated his subject, that has excited alarm and instigated the present prosecution? If he had handled the matter dully, coldly, stupidly, he might have gone on to the end of time; he would never have heard a breath of censure, seen a line of information, or produced an atom of effect. If warmth is not to be pardoned in discussing such topics, to what are the feel- ings of men to be confined? I shall, perhaps, hear Confine yourselves to such subjects as do MILITARY FLOGGING. 55 not affect the feelings to matters that are indifferent alike to all men; go to arithmetic take up abstract points of law "tear passion to tatters" upon questions in addition and subtraction be as warm as you please on special pleading there is time sufficient for the work- ings of the heart: but beware of what interests all mankind, more especially your own countrymen; touch not the fate and fortune of the British army. Beware of those subjects which concern the men who advance but to cover themselves with victory, and who retreat but to eclipse the fame of their valor by the yet higher glory of their patient endurance; men who then return to their homes clothed in laurels, to receive the punishment of the lash, which you inflict on the meanest and most unnatural malefactors! Let us hear nothing of the " charnel houses of the West Indies," as Sir Robert Wilson calls them, that yawn to receive the conquerors of Corunna! Beware of touching on these points; beware of every thing that would animate every heart; that would make the very stones shudder as they re-echo your sound, and awaken the rocks to listen and to weep! You must not treat such subjects at all, or else you must do it coolly, regularly, gra- dually, allowing yourselves to glow by some scale, of which my learned friend is no doubt in possession; you must keep to a line which is so fine that no eye but his can perceive it. This may not be! this must not be! While we continue to live in England it may not be, while we remain unsubdued by that egregious tyrant, who persecutes all freedom, with a rancor which only op- pressors can know; that tyrant against whom the distinguished officers I have been quoting, wage a noble and an efficient resistance, and against whom this defendant, in his humbler sphere, has been zealous in his opposition; that tyrant whose last and most highly prized victory is that which he has gained over the liberty of discus- sion. Yes, gentlemen, while that tyrant enslaves his own subjects, and turns them loose to enslave others, no man under his sway dares attempt more than calmly and temperately to discuss his measures. Writers in his dominions must guage their productions according to the standard established by my learned friend, of which he has one duplicate and Buonaparte's Attorney-general the other; they must square their argument according to that rule; and adjust the warmth of their language to a certain defined temperature. When they treat of the tyrant's ambitious and oppressive policy; when they treat of the rigors of his military conscription; they must keep to the line which has this day been marked out in this court. Should they go beyond that line should they engage in their subject with an honest zeal, and treat it with a force likely to gain conviction that is to say, should they treat it after the manner of the writer of this com- position which is now before you they may lay their account with being dragged forth to be shot without a trial, like the unhappy book- seller of Nuremberg, or with being led in mockery to a court, and after the forms of a judicial investigation are gone through, consigned by the decision of the judges to years of imprisonment. And yet, gentlemen, there is some excuse for Buonaparte, when he 56 MILITARY FLOGGING. acts in this manner. His government, as he well knows, is bottomed in injustice and cruelty. If you search and lay bare its foundation, you must necessarily shake it to its centre its safety consists in silence and obscurity! Above all, is it essential to its power that the cruelty of his military system should not be attacked, for on it does he rest his greatness. The writer, therefore, who should treat in a nervous style of the rigor of his conscription, could expect nothing but severe pun- ishment. But happily, things in this country are a little different. Our con- stitution is bottomed in law and in justice, and in the great and deep foundation of universal liberty! It may, therefore, court inquiry. Our establishments thrive in open day they even flourish surrounded and assailed by the clamor of faction. Our rulers may continue to dis- charge their several duties, and to regulate the affairs of the state, while their ears are dinned with tumult. They have nothing to fear from the inquiries of men. Let the public discuss so much the bet- ter. Even uproar is wholesome in England, while a whisper may be fatal in France. But you must take it with you, in deciding on the merits of this publication, that it is not upon our military system that the defendant has passed his reflections it is not our military system that he con- demns. His exertions are directed to remove a single flaw which exists on the surface of that system a speck of rottenness which mars its beauty, and is destructive of its strength. Our military sys- tem in general, he admires in common with us all; he animadverts upon a taint and not upon its essence; upon a blot which disfigures it, and not upon a part of its structure. He wishes you to remove an excrescence which may be pulled away without loosening the founda- tion, and the rest will appear the fairer, and remain so much the sounder and more secure. You are now, gentlemen, to say by your verdict whether the mere reading of this publication taking all its parts together not casting aside its limitations and qualifications, but taking it as it appears in this paper, you are now to say, whether the mere perusal of it in this shape is likely to produce those effects which have been described by the counsel for the prosecution effects which have never yet been produced by the infliction of the punishment itself. This considera- tion, gentlemen, seems to deserve your very particular attention. If you can say aye to this, you will then bring your verdict against the defendant and not only against him, but against me. his advocate, who have spoken to you much more freely than he has done and against those gallant officers who have so ably condemned the practice which he condemns and against the country which loudly and right- fully demands an attention to its best interests and against the stabi- lity of the British Constitution! SPEECHES IN DEFENCE OF HER MAJESTY QUEEN CAROLINE. INTRODUCTION. STATE OP PUBLIC OPINION. THE MILAN COMMISSION. FEW events have excited a more deep and general interest among the people of England, than the arrival of Queen Caroline in June 1820, and the proceedings which the king, her hushand, immediately compelled his ministers, most reluctantly, most clearly against their own fixed opinions, and therefore most certainly against their duty, to institute against Her Majesty, for the purpose of degrading her and dissolving the marriage. Nor was there the least difference of opinion in the coun- try, whether among those who sided with the Queen, or those who blamed her most, upon the injustice and intolerable cruelty of this conduct on the King's part. No one pretended to doubt that, from the time of her first coming to England, and her marriage with the Prince of Wales, she had been treated as no wife before ever was, and that afterti few months' permission to reside nominally under the same roof, but without enjoying any other rights of a wife, she had been compelled to live apart from her husband, and had even received a written notice from him that this separation must be considered as for life. That every engine of annoyance had been set in motion to render her life miserable was also universally known; and every one was aware, that, after all temptations had been thrown in the way to seduce her from her conjugal duty, that a pretext might be obtained for justifying the continual ill treatment of which she was the victim, she had triumphed over all those arts, escaped those snares, and been declared guiltless by a secret tribunal appointed in 1800, to try her behind her back, without any one present on her part, and composed of the political and personal friends of the Prince. Wherefore, when it was asserted that during her residence on the continent, whither she had by a continuance of the same persecution been at last driven, her conduct had been watched and found incorrect, all men said, that if blame there was, a far larger share of it fell on her royal husband than on herself. 15ut when it was found that he, the wrong-doer, was resolved to vent upon his victim the con- sequences of his own offences wheu it was known that he whose whole life since his marriage, had been a violation of his marriage vows, was determined to destroy his consort after deserting and ill-using her and when it was announced that his design was, to obtain a release from the nuptial ties, which had never for an hour held him fast, on the pretence of the party so deeply injured by his incon- stancy and his oppressions having at length fallen into the snares set for her the public indignation knew no bounds, and all the people with ono voice exclaimed against a proceeding so indecently outraging every principle of humanity and of justice. Whether the facts alleged were true or false, the people never gave them- selves a moment's trouble to inquire; and if the whole case should be confessed or should be proved, it was quite the same thing; he who had done the wrong had no right to take advantage of it, and if every one tittle of the charges made, had liecn admitted by the party accused, the peoplo were resolved to stand between her and her persecutor's injustice. 58 INTRODUCTION. An attempt was made to hurry the House of Commons into the consideration of the subject, before time could be given for that expression of feeling in the country, which the King's friends were well aware must speedily become loud and general. But the Queen's friends were not to be thrown off their guard. Messrs. Broug- ham and Denman, her Attorney and Solicitor-general, were fully prepared for this sudden movement. It was most signally discomfited. A delay of some days was forced upon the government by the Queen's Attorney-general entering unexpectedly at large into the whole case; and Mr. Canning, to his infinite honor, bore such testi- mony to the virtues and accomplishments of the illustrious princess, whose honor, whose station, and indeed whose life was assailed, that a division among the ministers was plainly indicated. The temper and disposition of the house on this memorable occasion, was observed to be anxiously watched by the King's friends; and the Duke of Wel- lington sat the whole night under the gallery an attentive listener, and with frequent communications to and from those more immediately engaged in the conflict. All men now felt deep regret that this illustrious person had only of late betaken him- self to the pursuits of civil life; for his penetrating sagacity, as well as his honorable feelings, would have been an ample security against suffering such a course as the King seemed bent upon pursuing, had his Grace been in a position to exercise his proper authority over his colleagues and his master, and to sway their councils as he has since done upon the most important occasions. Nor would the same security have been wanting for the country, had Lord Wellesley fortu- nately been in his appropriate position, at the helm of affairs. No one was calculated to have such influence over the royal mind; and no one would more certainly have exerted it in the direction which the best interests of the country, as well as the King's own honor, so plainly pointed out. But the counsels of inferior men prevailed; or rather, the resistance of inferior minds only was opposed to the vehemence of the royal will; and it was determined that a hill of pains and penal- ties should he introduced with all the influence of the crown, for the purpose of dissolving the marriage and degrading the Queen-consort from her exalted station. The offence alleged against her, being adultery, would have *een high treason had it been committed within the realm. There were doubts among lawyers whether or not it could be so considered if committed abroad, and certainly the whole proceeding was sufficiently encumbered with difficulties to make its authors anxious that whatever provision loaded it with additional obstacles should be avoided. Accordingly no question was made of higher penalties than degradation and divorce. It would be needless to enter into the details of this unparalleled and most dis- fraceful affair. It is enough if we run over the heads merely of its history. The ecided repugnance of the House of Commons to the whole proceeding, compelled the ministers to defer the appointment of a select committee, for which they had moved in both houses. Mr. Wilberforce, whose patriotism, matured wisdom, and superiority to all factious views, pointed him out as the fit person to resist the threatened mischief, and dictate the terms which should bind all parties, brought forward a proposition for addressing the Queen, after the negotiation between the Duke of Wellington and Lord Castlereagh on the King's part, Messrs. Brougham and Denman on Her Majesty's, had failed; and the House having agreed to the motion, he as mover, accompanied by Mr. Stuart Wortly,* the seconder, Mr. Bankes, and Sir T. Acland, proceeded to wait upon her with the House's resolutions, declar- ing its opinion that the Queen might, without any sacrifice of her honor, accede to the King's proposal of leaving the country, upon full security being given of enjoying her revenue under the sanction of parliament. Her Majesty received the deputa- tion of the Commons with that great dignity of demeanor which was so habitual to her upon proper occasions, and was altogether unmixed with haughtiness or insolence; but she declined in decided, though kindly terms, acceding to a request which must leave her conduct exposed to suspicion. "As a subject of the state," she said " I shall bow with deference, and, if possible, without a murmur, to every act of the sovereign authority. But as an accused and injured Queen, I owe to the * Now Lord Wharncliffc. INTRODUCTION. 59 King, to myself, and to all my fellow-subjects, not to consent to tho sacrifice of any essential privileges, or withdraw my appeal to those principles of puhlic justice, which are alike the safeguard of the highest and the humblest individuals." It now became apparent that the inquiry preparatory to the bill must proceed. Her Miijestj' petitioned the House of Lords to be heard by her counsel against a secret committee being appointed to examine her conduct in her absence; and the counsel were at half an hour's notice heard, but in vain. It was on this occasion that Mr. Denman, in allusion to the well-known adviser of the Milan Commission, Sir John Leach, whose counsels, so pleasing to the King, were supposed to be guided by the desire of supplanting Lord Eldon and obtaining the Great Seal, made that memorable quotation from Shakspoare, which was so manifestly delight- ful to Lord Eldon, and certainly as distasteful to Sir John. Some busy and insinuating rogue, Some cogging cozening knave, to get some office, Hath devised this slander. The lords then appointed a secret committee, to whom papers in a sealed green bag were delivered. After examining these in secret, they reported that a Bill of Degradation and Divorce should be brought in, which was accordingly done; and it was read a first time on the 5th of July. After rejecting an application from the Queen to be furnished with lists of the witnesses against her, the 17th of August was fixed for proceeding with the case. On that day this unexampled proceeding commenced a proceeding in which the forms of the constitution were observed, while its spirit was outraged at every step a proceeding over which the ferocious tyranny of Henry VIII presided, although the customs of parliament were observed throughout, and which afforded a practical proof, that influence may, with a little delay, effect in the nineteenth century almost all that undisguised and unmitigated prerogative could accomplish in the sixteenth. The first movement of the Queen's counsel was to demur, as it were, to the bill, and called upon the House to reject it upon the ground of justice and of all con- stitutional principles, whether the statements in the preamble were true or false. In this preliminary argument, Mr. Denman was universally allowed to have prin- cipally distinguished himself; and his great display of eloquence raised high ex- pectations of what might be accomplished by him during the subsequent stages of the cause expectations which, however high, were surpassed by the performance. Every effort, however, was for the present unavailing, either to stop the government in its course, or animate and alarm the peers into a resistance on behalf of the con- stitution and the country. All without perhaps one exception, both of the govern- ment and of both Houses, abhorred the measure; and if they could have been sure that throwing it out immediately, would not have occasioned a change of ministry, assuredly the bill never would have remained one hour in existence. But then, as in much later times, the great fear was of letting in the opposition; and Tories were daily seen abandoning their whole principles, upon the pretence that they had no other way of preventing what, to their eyes, seemed the most formidable of all events exactly as in the present day we have seen Whigs giving up their most sacred opinions one after another, and attaching not the weight of a feather to retrenchment, and popular rights, and the progress of reform, and the rights of colonies, and the maintenance of peace, and the extinction of Slavery, and the pre- vention of the Slave Trade itself, when weighed in the balance against the one evil of a change Which should let in their adversaries, and turn out their patrons from the dispensation of court favor. The preliminary objection, in the nature of a demurrer, being overruled, tho bill proceeded; that is, the case against the Queen was opened, and witnesses WHO examined to prove it, after tho Attorney-general had opened the charge in a long speech of minute detail a course which was extremely ill considered by the advo- cates of the bill, who could not ntall trust their foreign witnesses: for being guided in their detailed statements wholly by the result of the Milan commission, the manifest discrepancies between the answers which their questions showed that 60 INTRODUCTION. they expected to get, and those actually given, afforded constant occasion to their adversaries to cast discredit upon the testimony. It ought to be mentioned, as one of the manifold irregularities of this proceeding, that now for the first time mem- bers of one house acted as counsel at the bar of the other, in a bill on which they must, if it passed that other, themselves come to sit as judges. But the extreme inconvenience of the Attorneys and Solicitors-general of both King and Queen going out of Parliament during so many months as the case might last, suggested the expediency of the House of Commons passing a resolution which permitted its members to appear as counsel in this bill; and Mr. Williams and Dr. Lushington, who were of counsel for her Majesty, availed themselves of this leave, as well as Mr. Brougham and Mr. Denman. Mr. Sergeant Wilde was not then a member of Parliament. There is no occasion to characterise the evidence which was produced for the bill, otherwise than as it has been since described, in colors which, though they may be strong, are only so because they are so strong as to retain their likeness to the original they represent. "The Milan Commission proceeded under this superintendence; and as its labors so were their fruits exactly what might have been expected. It is the first impres- sion always arising from any work undertaken by English hands and paid for by English money, that an inexhaustible fund is employed, and with boundless pro- fusion; and a thirst of gold is straightway excited which no extravagance of libe- rality can slake. The knowledge that a board was sitting to collect evidence against the Queen, immediately gave such testimony a high value in the market of Italian perjury; and happy was the individual who had ever been in her house or admitted to her presence: his fortune was counted to be made. Nor were they who had viewed her mansion, or had only known the arrangements of her villa, without hopes of sharing in the golden prize. To have seen her pass, and noted who attended her person, was a piece of good luck. In short, nothing, however remotely connected with herself, or her family, or her residence, or her habits, was without its value among a poor, a sanguine, and an imaginative people. It is cer- tain that no more ready way of proving a case, like the charge of criminal inter- course, can be found, than to have it first broadly asserted for a fact; because this being once believed, every motion, gesture, and look is at once taken as proof of the accusation, and the two most innocent of human beings may be overwhelmed with a mass of circumstances, almost all of which, as well as the inferences drawn from them, are really believed to be true by those who recount or record them. As the treachery of servants was the portion of this testimony which bore the highest value, that, of course, was not difficult to procure; and the accusers soon possessed what, in such a case, may most truly be said to be accusatori maxime optandum not indeed confitentes reos, but the man-servant of the one, and the maid-servant of the other supposed paramour. Nor can we look back upon these scenes without some little wonder how they should not have added even the confiteniem reum; for surely in a country so fertile of intriguing men and abandoned women where false oaths, too, grow natural!}*, or with only the culture of a gross ignorance and a superstitious faith it might have been easy, we should imagine, to find some youth, like Smeatton in the original Harry the Eighth's time, ready to make his fortune, both in money and female favors, by pretending to have enjoyed the affec- tions of one whose good nature and easy manners made the approach to her person no difficult matter at any time. This defect in the case can only be accounted for by supposing that the production of such a witness before the English public might have appeared somewhat perilous, both to himself and to the cause he was brought to prop with his perjuries. Accordingly, recourse was had to spies, who watched all the parties did, and when they could not find a circumstance, would make one; men who chronicled the dinners and the suppers that were eaten, the walks and the sails that were enjoyed, the arrangements of rooms and the position of bowers, and who, never doubting that these were the occasions and the scenes of endearment and of enjoyment, pretended to have witnessed the one, in order that the other might be supposed; but with that inattention to particulars which Providence has appointed as the snare for the false witness, and the safeguard of innocence, pre- tended to have seen in such directions as would have required the rays of light to INTRODUCTION. 61 move not straightforward, but round about. Couriers that pried into carriages where the travellers were, asleep at gray day-light, or saw in the dusk of dewy eve what their own fancy pictured sailors who believed that all persons could gratify their animal appetites on the public deck, where themselves had so often played the beast's part lying waiting-women, capable of repaying the kindness and charity that had laid the foundation of their fortune, with the treachery that could rear it to the height of^their sordid desires chambermaids, the refuse of the streets, and the common food of wayfaring licentiousness, whose foul fancy could devour every mark that beds might but did not, present to their practised eye lechers of either sex, who would fain have gloated over the realities of what their liquorish imagina- tion alone bodied forth pimps of hideous aspect, whose prurient glance could penetrate through the keyhole of rooms where the rat shared with the bug the silence of the deserted place these were the performers whose exploits the com- missioners chronicled, whose narratives they collected, and whose exhibition upon the great stage of the first tribunal of all the earth, they sedulously and zealously prepared by frequent rehearsal. Yet with all these helps to success with the un- limited supply of fancy and of falsehood which the character of the people furnished with the very body-servants of the parties hired by their wages, if not bought with a price such an array could only be produced, as the whole world pronounced insufficient to prove any case, and as even the most prejudiced of assemblies in the accuser's favor turned from with disgust." Edinburgh lleview, vol. Ixvii. 41 13. On the 9th of September an adjournment was resolved on of about three weeks, and on the 3d of October the House again met, when the counsel for the Queen were heard, and witnesses called on her part. The following speech is Mr. Broug- ham's defence of her Majesty, which he opened on the first day after the adjourn- ment, and finished on the next. Mr. Uenman's summing up of the evidence, and application of it to answer the charges, was a magnificent effort of genius. But there is no possibility of giving more than the justly celebrated peroration, and one or two other passages. The last sentence of all was the subject of much misre- presentation at the time, and has been occasionally since. Nor can it be denied that the want of a few words, especially in a spoken composition on such a subject, rendered this unavoidable. Whoever attentively considers the structure of the sentence, and weighs the force of the words, can have no doubt of the sense; but it is not safe to throw so much upon a single particle, as was thus cast upon the word " even;" and a sentence was wanting to bring home the meaning, by pointing the hearer's attention to the contrast exhibited by our Savior towards convicted guilt, and human injustice towards proved innocence. The proceedings of 1820, though they ended in the signal discomfiture of the Queen's enemies, by no means put an end to their persecutions. Although declared innocent by the fate of the bill, which was withdrawn on the 10th of November, after the second reading had been carried by only nine votes, and when it became manifest that it must he Hung out on the next stage, the usual insertion of her Majesty's name in the liturgy was still withheld, and a motion on the subject sug- gested by Sir Charles Wetherel, a determined, but most honest and consistent, as well as highly-gifted member of the Tory party, was rejected in the House of Com- mons. In the following summer, the coronation of George IV was proceeded with, and of course the Queen claimed to be crowned, as all her royal predecessors had been; but this, too, was peremptorily refused, and the annoyance occasioned by these vexatious proceedings, coining after so long a life of ill-treatment, is generally believed to have hastened her end. The mournful inscription which she desired to have plaord upon her coflin is well known " Caroline of Brunswick, the murdered Queen of Knoland." The last of the following speeches relates to the subject of the coronation, her Majesty's claim having been referred to the Privy Council, which heard tlio argu- ment at a very crowded meeting, attended by the Attorney and Solicitor-general for the King, as well as those for the Queen, the former law-officers, however, acting as assessors to the board, the latter appearing at the bar. The Karl of Harrowby, as Lord President, was in the chair; but besides many lay lords, he was assisted by the Lord Chancellor, the Chief Justices, and other heads of the law who belonged to the Privy Cumu-il. VOL. I. SPEECH CASE OF QUEEN CAROLINE. MAY IT PLEASE YOUR LORDSHIPS: The time is now come when I feel that I shall truly stand in need of all your indulgence. It is not merely the august presence of this assembly which embarrasses me, for I have oftentimes had experience of its condescension nor the novelty of this proceeding that perplexes me, for the mind gradually gets reconciled to the strangest things nor the magnitude of this cause that oppresses me, for I am borne up and cheered by that conviction of its justice, which I share with all mankind; but, my lords, it is the very force of that conviction, the knowledge that it operates univer- sally, the feeling that it operates rightly, which now dismays me with the apprehension, that my unworthy mode of handling it, may, for the first time, injure it; and, while others have trembled for a guilty client, or been anxious in a doubtful case, or crippled with a consciousness of some hidden weakness, or chilled by the influence, or dismayed by the hostility, of public opinion, I, knowing that here is no guiltiness to conceal, nor anything, save the resources of perjury, to dread, am haunted with the apprehension that my feeble discharge of this duty may for the first time cast that cause into doubt, and may turn against me for condemnation those millions of your lordships' countrymen whose jealous eyes are now watching us, and who will not fail to impute it to me, if your lordships should reverse the judgment which the case for the charge has extorted from them. And I feel, my lords, under such a weight so troubled, that I can hardly at this moment, with all the reflection which the indulgence of your lordships has accorded to me, compose my spirits to the discharge of my professional duty, under the pressure of that grave responsibility which accompa- nies it. It is no light addition to this feeling, that I foresee, though happily at some distance, that before these proceedings close, it may be my unexampled lot to discharge a duty, in which the loyalty of a good subject may, among the ignorant, among the thoughtless certainly not with your lordships for a moment suffer an impeach- ment. My lords, the Princess Caroline of Brunswick arrived in this country in the year 1795 the niece of our sovereign, the intended consort of QUEEN CAROLINE. 63 his heir-apparent, and herself not a very remote heir to the crown of these realms. But I now go back to that period, only for the purpose of passing over all the interval which elapsed between her arrival then and her departure in 1814. I rejoice that, for the present at least, the most faithful discharge of my duty permits me to draw this veil; but I cannot do so without pausing for an instant, to guard myself against a misrepresentation to which I know this cause may not unnaturally be exposed, and to assure your lordships most solemnly, that if I did not think that the cause of the Queen, as attempted to be established by the evidence against her, not only does not require recrimination at present not only imposes no duty of even uttering one whisper, whether by way of attack, or by way of insinuation, against the conduct of her illustrious husband; but that it rather prescribes to me, for the present, silence upon this great and painful head of the case I solemnly assure your lordships, that but for this conviction, my lips on that branch would NOT be closed; for, in discretionally aban- doning the exercise of the power which I feel I have, in postponing for the present the statement of that case of which I am possessed, I feel confident that I am waiving a right which I possess, and abstain- ing from the use of materials which are mine. And let it not be thought, my lords, that if either now I did conceive, or if hereafter I should so far be disappointed in my expectation that the case against me will fail, as to feel it necessary to exercise that right let no man vainly suppose, that not only I, but that any, the youngest member of the profession would hesitate one moment in the fearless discharge of his paramount duty. I once before took leave to remind your lordships which was unnecessary, but there are many whom it may be needful to remind that an advocate, by the sacred duty which he owes his client, knows, in the discharge of that office, but one person in the world, THAT CLIENT AND NONE OTIIEK. To save that client by all expedient means to protect that client at all hazards and costs to all others, and among others to himself is the highest and most unquestioned of his duties; and he must not regard the alarm the suffering the torment the destruction which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client's protection! But, rny lords, I am not reduced to this painful necessity. I feel that if I were to touch this branch of the case now, until any event shall afterwards show that unhappily I am deceiving myself I feel that if I were now to approach the great subject of recrimination, I should seem to give up the higher ground of innocence on which I rest my cause; I should seem to be justifying when I plead Not Guilty; I should seem to argue in extenuation and in palliation of offences, or levities, or improprieties, the least and the lightest of which I stand here utterly to deny. For it is false, as has been said it is foul and false as those have dared to say, who, pretending to discharge, the higher duties to God, have shown, that they know not the first ol their 64 QUEEN CAROLINE. duties to their fellow-creatures it is foul, and false, and scandalous in those who have said (and they know that it is so who have dared to say), that there are improprieties admitted in the conduct of the Queen. I deny that the admission has been made. I contend that the evidence does not prove them. I will show you that the evidence disproves them. One admission, doubtless, I do make; and let my learned friends who are of counsel for the Bill take all the benefit of it, for it is all that they have proved by their evidence. I grant that her Majasty left this country and went to reside in Italy. I grant that her society was chiefly foreign. I grant that it was an inferior society to that which she once enlightened and graced with her presence in this country. I admit, my lords, that while here, and while happy in the protection not perhaps of her own family, after the fatal event which deprived it of its head; but while enjoying the society of your lordships and the families of your lordships I grant that the Queen moved in a more choice, in perhaps a more dignified society, than she afterwards adorned in Italy. And the charge against her is, that she has associated with Italians, instead of her own countrymen and countrywomen; and, that instead of the peeresses of England, she has sometimes lived with Italian nobility, and sometimes with persons of the commonalty of that country. But, who are they that bring this charge, and above all, before whom do they urge it? Others may accuse her others may blame her for going abroad others may tell tales of the consequences of living among Italians, and of not associ- ating with the women of her country, or of her adopted country: but it is not your lordships that have any right to say so. It is not yon, my lords, that can fling this stone at Her Majesty. You are the last persons in the world you, who now presume to judge her, are the last persons in the world so to charge her; for you are the witnesses whom she must call to vindicate her from that charge. You are the last persons who can so charge her; for you, being her witnesses, have been also the insti- gators of that only admitted crime. While she was here, she courteously opened the doors of her palace to the families of your lordships. She graciously condescended to mix herself in the habits of most familiar life, with those virtuous and distinguished persons. She condescended to court your society, and, as long as it suited purposes not of hers as long as it was subservient to views not of her own as long as it served interests in which she had no concern she did not court that society in vain. But when changes took place when other views arose when that power was to be retained which she had been made the instrument of grasping when that lust of power and place was to be continued its gratification, to the first gratification of winch she had been made the victim then her doors were opened in vain; then that society of the peeresses of England was withholden from her; then she was reduced to the alternative, humiliating indeed, for I say that her condescension to you and yours was no humiliation. She was only lowering herself, by overlooking the distinctions of rank to enjoy the first society in the world but then it pleased you to reduce her to what was really humiliation either to acknowledge that you QUEEN CAROLINE. 65 had deserted her to seek the company of those who now made it a favor which she saw they unwillingly granted, or to leave the country and have recourse to other society inferior to yours. I say, then, my lords, that this is not the place where I must be told it is not in the presence of your lordships I must expect to hear any one lift his voice to complain that the Princess of Wales went to reside in Italy, and associated with those whose society she neither ought to have chosen, nor would have chosen certainly would not have chosen, perhaps ought not to have chosen had she been in other and happier cir- cumstances. In the midst of this, and of so much suffering as to an ingenious mind such conduct could not fail to cause, she still had one resource, and which, for a space, was allowed to remain to her I need hardly say I mean the comfort of knowing that she still possessed the undi- minished attachment and grateful respect of her justly respected and deeply lamented daughter. An event now took place which, of all others, most excites the feelings of a parent: that daughter was about to form a union upon which the happiness upon which alas! the Queen knew too well how much the happiness, or the misery, of her future life must depend. No announcement was made to her Majesty of the projected alliance. All England occupied with the subject Europe looking on with an interest which it certainly had in so great an event England had it announced to her; Europe had it announc- ed to her each petty German prince had it announced to him; but the one person to whom no notice of it was given, was the mother of the bride who was to be espoused; and all that she had done then to deserve this treatment was, with respect to one of the illustrious parties, that she had been proved, by his evidence against her, to be not guilty of the charge he launched at her behind her back; and, with respect to his servants, that they had formerly used her as the tool by which their ambition was to be gratified. The marriage itself was consummated. Still, no notice was communicated to the Queen. She heard it accidentally by a courier who was going to announce the intelligence to the Pope, that ancient, intimate, much-valued ally of the Protestant Crown of these realms, and with whose close friendship the title of the Brunswicks to our crown is so interwoven. A pros- pect grateful to the whole nation, interesting to all Europe, was now afforded, that the marriage would be a fruitful source of stability to the royal family of these realms. The whole of that period, painfully interesting to a parent as well as to a husband, was passed without the slightest communication; arid if the Princess Charlotte's own feel- ings had prompted her to open one, she was in a state of anxiety of mind and of delicacy of frame, in consequence of that her first pregnancy, which made it dangerous to have maintained a struggle between power and authority on the one hand, and affection and duty on the other. An event most fatal followed which plunged the whole of England into grief; one in which all our foreign neighbors sympa- thised, and while, with a due regard to the feelings of those fon-iirn allies, and even of strange powers and princes with whom we had 66 QUEEN CAROLINE. no alliance, that event was speedily communicated by particular mes- sengers to each, the person in all the world who had the deepest interest in the event the person whose feelings, above those of all the rest of mankind, were most overwhelmed and stunned by it was left to be stunned and overwhelmed by it accidentally; as she had, by accident, heard of the marriage. Bat if she' had not heard of the dreadful event by accident, she would, ere long have felt it; for the decease of the Princess Charlotte was communicated to her mother, by the issuing of the Milan Commission and the commence- ment of the proceedings for the third time against her character and her life. See, my lords, the unhappy fate of this illustrious woman! It has been her lot always to lose her surest stay, her best protector, when the dangers most thickened around her; and, by a coincidence almost miraculous, there has hardly been one of her defenders withdrawn from her, that his loss has not been the signal for an attack upon her existence. Mr. Pitt was her earliest defender and friend in this country. He died in 1806; and, but a few week safterwards, the first inquiry into the conduct of Her Royal Highness began. He left her a legacy to Mr. Percival, her firm, dauntless, and most able advocate. And, no sooner had the hand of an assassin laid Mr. Percival low, than she felt the calamity of his death, in the renewal of the attacks, which his gallantry, his skill, and his invariable constancy had discomfitted. Mr. Whitbread then undertook her defence; and, when that catastro- phe happened, which all good men lament without any distinction of party or sect, again commenced the distant growling of the storm; for it then, happily, was never allowed to approach her, because her daughter stood her friend, and some there were who worshipped the rising sun. But, when she lost that amiable and beloved child, all which might have been expected here all which might have been dreaded by her if she had not been innocent all she did dread because, who, innocent or guilty, loves persecution? who delights in trial, even when character and honor are safe? all was at once allowed to burst upon her head; and the operations began with the Milan Commission. And, as if there were no possibility of the Queen losing a protector without some most important scene against her being played in this too real drama, the day which saw the venera- ble remains of our revered sovereign consigned to the tomb of that sovereign who, from the first outset of the Princess in English life, had been her constant and steady defender that same sun ushered the ringleader of the band of perjured witnesses into the palace of his illustrious successor! Why do I mention these things! Not for the sake of making so trite a remark, as that trading politicians are sel- fish that spite is twin-brother to ingratitude that nothing will bind base natures that favors conferred, and the duty of gratitude neglect- ed, only make those natures the more spiteful and malignant. My lords, the topic would be trite and general, and I should be ashamed to trouble you with it; but I say this, in order to express once more my deep sense of the un worthiness with which I now succeed such QUEEN CAROLINE. 67 powerful defenders, and my alarm lest my exertions should fail to do what theirs must have accomplished had they survived. My lords, I pray your attention for a few moments, to what all this has resulted in. It has ended in the getting up of a story, to the general features of which I am now first about to direct the attention of your lordships. But I must begin by praying you to recollect what the evidence has not only not proved, but is very likely to have discharged from the memory of your lordships I mean the opening of my learned friend, the Attorney-general. Now, he shall himself describe, in his own words, the plan and the construction of that opening state- ment. It is most material for your lordships to direct your attention to this; because much of the argument rests on this comparative view. He did not, then, make a general speech, without book, without di- rection or instruction; but his speech was the spoken evidence; it was the transcript of that which he had before him; and the way in which that transcript was prepared, I leave your lordships to conjec- ture, even uninformed to a certain degree as you now must needs be. " I will," said my learned friend and every one who heard him make the promise, and who knows his strictly honorable nature, must have expected its exact fulfilment "I will most carefully state nothing which I do not, in my conscience, believe I shall be able to substan- tiate in proof; but I will also withhold nothing, upon which I have that conviction." I believed the Attorney-general when I heard him promise. I knew that he spoke from his conscience; and now that I see he has failed in the fulfilment, I equally well know that there is but one cause for the failure that he told you what he had in his brief, and what had found its way into his brief from the mouths of the witnesses. He could get it in no other way but that. The witnesses who had told falsehoods before in private, were scared from repeating them here, before your lordships. Now, I will give your lordships one or two specimens of this; because I think these samples will enable you to form a pretty accurate estimate, not only of the value of that evidence, where it comes not up to rny learned friend's open- ing, but also to form a pretty good guess of the manner in which that part of it which did succeed was prepared for the purpose. I will merely take one or two of the leading witnesses, and compare one or two of the matters which my learned friend opened, and will not tire you with the manner in which they told you the story. First, my learned friend said, that the evidence of the Queen's improper conduct would come down almost "to the time at which I have now the honor of addressing your lordships." I am quoting the words of my learned friend, from the short-hand writer's notes. In fuct, by the Evidence, ihsit " a/most" means up to the present time, all but three years; that is to say, all but a space of time exactly equal to that space of time over which the other parts of the evidence extend. At Naples, where the scene is laid which is first so sedulously brought before your lordships, as if the first con- nection between the two parties began upon that occasion as if that were the night when the guilty intentions, which they long had been 68 QUEEN CAROLINE. harboring, but for want of opportunity had not been able to fulfil, were at length gratified at Naples, I pray your lordships to attend to the manner in which he opened this first and most important of his whole case, and which if it fails, that failure must affect the statement of circumstances, not only in this part of the evidence, but in all the subsequent stages of it. How does my learned friend open that part of his case? " I shall show you," says he, " that there are clear, decisive marks of two persons having slept in the bed, the night that the Queen came home; the second night she was at Naples, she returned early from the opera; she went to her own room, from thence she repaired to Bergami's room, where Bergami himself was; the next day she was not visible till an unusually late hour, and was inaccessible to the nobility of Naples." Every one of these asser- tions, rising one above another in succession and importance, but even the lowest of them of great moment to the case against her Majesty every one of them not only is false, but is negatived by the witness produced to support them. Demont gives no "decisive marks," she gives a doubtful and hesitating story. With one ex- ception, there is nothing specific, even in what she swears; and with that I shall afterwards come to deal. But she denies that she knew where the Queen went when she first left her own bed-room. She denies that she knew where Bergami was at the time. She says affirmatively that the next morning the Queen was up and alert by the usual time. Not one tittle of evidence does she give, or any body else, of her having refused access to any one person who called: nor is any evidence given (to make the whole more complete) that any body called that morning at all. Then come we to that which my learned friend opened with more than even his wonted precision. We know that all the rest was from his instructions. It could be from no other source. He had never been in Italy. Neither he nor my learned friend, the Solicitor-gene- ral, have given us any idea of their knowing what sort of country it is; that they know any thing of a masquerade; that they know any thing of a cassino. My learned friend has represented as if the being black-balled at that cassino were ruin to a person's character; forgetting who may be the members of the society at that cassino; that there may be a Colonel Brown; that it is held at the very place where the Milan Commission was held. "But," says my learned friend, the Solicitor-general, " who ever heard of the wife of a royal prince of this country going disguised to a masquerade?" Who would have thought that, being disguised, and on her way to a masquerade, she did not go in her own state coach, with her livery servants, with a coachman bedizened, with lacqueys plastered, with all the "pomp, pride, and circumstance" of a court or a birth-day, but that she went in a common hired carriage, without the royal arms, without splendor or garb, coming out at the back door, instead of issuing out at the front door, with all the world spectators? Nay, I only wonder that my learned friend did not state, as an enormity unheard of and inex- plicable, that she went to a masquerade in a domino and with a false QUEEN CAROLINE. 69 face! My lords, it was not, therefore, from their own personal observation, certainly not from having been present at these royal recreations of Murat's conrt, that my learned friends obtained their knowledge of this cause; they have it from Detnont or Mujoochi, the witnesses who have been examined again and again; and who have again and again told the same story; but which story being in part founded in fact, they now recollect only the portion that is true, and forget what is untrue. "Then," says my learned friend, in this instance which I am now going to state, leaving us to our general suspicions as to where he got his knowledge upon the other circumstances, and coming to some- thing more specific " I am instructed to state," and in another instance, "the witness says" so and so, showing he was reading the witness's deposition. " I am instructed to state, that the dress which the Prin- cess had assumed, or rather the want of it in part, was extremely indecent and disgusting;" and lie adds afterwards, in commenting upon it, that it was of the "most indecent description;" so that she was, on account of that indecency, on account of the disgusting nature of it, by those who actually saw it, hooted from the public theatre. Your lordships will recollect what it came to that the Princess was there in a dress that was exceedingly ugly the maid Demont said, in a " very ugly" dress; and that was all my learned friend could get her now to assert that it was without form and ugly; masques came about her and she, unknown in her own masque, for strange as it may appear to my learned friend, a personal a masquerade endeavors to be disguised was attacked from joke or from spite oftener from joke than from spite; her own dress being of that ugly description for what reason is left to this moment unexplained. My lords, I should fatigue your lordships if I were to go over other instances I shall only mention that at Messina. Voices are said to have been heard. The Attorney-general opened, that at Messina he should prove the Princess and Bergami to have been locked up in the same room, and to have been heard speaking together. That is now reduced, by the evidence, to certain voices being heard, the witness cannot say whose. At Savona, where my learned friend gives you, as he generally does in his speech, the very day of the month, the 12th of April, he stated that the only access to the Prin- cess's room was through Bergarni's, where there was no bed, but that in the Princess's room there was a large bed. The witness proved only one of those particulars out of three. Passing over a variety of particulars, I shall give only one or two instances from Majoochi's and Sacchi's evidence. " The Princess remained in Bcrgami's room a very considerable time," the night that Majoochi swore she went into his room, " and there the witness heard them kissing each other," says the Attorney-general. Majoochi says, she remained there one of the times ten minutes, the other fifteen; and that he only heard a whispering. Now, as to Sacchi. The story as told by my learned friend, from the brief in his hand, and which therefore Sacchi must have told before at Milan, is, that a courier one 70 QUEEN CAROLINE. night returned from Milan, that is, that he, Sacchi, returned as a cou- rier from Milan, for it was he whom he meant that finding Bergami out of his own room, he looked about and saw him come out of the Queen's room undressed that all the family were in bed that he observed him that he spoke to him and that Bergami explained it by saying he had gone, hearing his child cry, to see what was the matter, and desired him not to mention any thing about it. Sacchi negatives this, as far as a man speaking to so unusual a circumstance, which, if it had happened, must have forcibly impressed his recollec- tion, can do so. He denies it as strongly as a man can, by denying all recollection of any such particulars, although not for want of examination; for my learned friend, the Solicitor-general, questions'him over and over again, and he cannot get him to come within a mile of such a fact. Then come we to the disgraceful scenes, as the Attorney-general describes them, at the Barona, which he said and if they had been as they were represented to him, 1 doubt not he used a very fair ex- pression he did not tell us what they were, but " they were so dis- graceful, that it rather made that house deserve the name of a brothel, than of a palace, or a place fit for the reception of Her Majesty, or any person of the least virtue or delicacy." Here there is a most entire failure of proof from all the witnesses. Then we are told that at Naples the attendants were shocked and surprised by the conduct of the Queen that in Sicily no doubt was entertained by them, from what they saw of the familiarities between the parties, that a criminal intercourse was going on there. Not one of those attendants describes that effect to have been produced upon their minds by what they saw. I shall afterwards come to what they did see; but they do not tell you this, though frequently urged and kindly prompted to do it. Then, as to the visiting of the nobility that the Queen's society was given up by the ladies of rank of her own country, from the moment she left this country that they all fell away in short, that she was treated abroad, I know not from what motive, with something of the same abandonment with which she was treated in this country I well know from what motive. All this is disproved by the evidence. How came my learned friend to forget the fact of that most respectable woman, Lady Charlotte Lindsay, joining her at Naples, after her conduct had been obser- ved by all the servants; with which servants Lady Charlotte Lindsay's waiting woman naturally lived on terms of intimacy, and between which servants and her, I have no idea that any thing of that grave-like secrecy existed which each of them has represented to have existed between themselves up to the time they came to the Cotton Garden depot, and up to the moment that they conveyed from that depot to your lordships' bar, the resources of their perjury. Lady Charlotte Lindsay, Lord and Lady Glenbervie, Mrs. Falconet, and others, had no doubt some intercourse with those Neapolitanjservants, either directly or through their own attendants, all of whom are rep- resented as having been perfectly astounded with the impropriety, QUEEN CAROLINE. 71 nay, the indecency of the conduct of their royal mistress; and yet those noble and virtuous persons are proved to have joined her, some at Naples some at Rome some at Leghorn, and to have associated with her, in spite of all his open and avowed and ostentatious indecorum. But, even to a much later period, and in higher quarters, the Queen's company has been proved, by my learned friend's case, not to have been treated abroad with the neglect which it experienced here. She has been, in the first place, courteously received, even after her return from the long voyage, by the legitimate sovereign prince of Baden, a prince with a very legitimate origin, though with a some- what revolutionary accession to his territory. Equally well received was she by the still more legitimate Bourbons at Palermo; but court- ed was her society by the legitimate Stuarts of Sardinia, the heirs legitimate, as contra-distinguished from the heirs of liberty and of right, to the throne of this realm the illegitimate and ousted heirs I call them; but the true legitimates of the world, as some are dis- posed to term them, who do not hold that allegiance, at least who disguise that allegiance to the house of Brunswick, which, as good subjects, we all cherish. Nay, even a prince who, I doubt not, will rank in point of antiquity and family even higher than the legitimate Bourbons and legitimate Stuarts I mean his highness the Dey of Tunis, the paragon of Moorish legitimacy received her Majesty as if she was respected by all his lighter-colored brethren in the other parts of the globe. And she was also received in the same respectful manner by the representative of the King at Constantinople. So that wherever she has gone, she has met with respect from all ranks, and has associated with the only persons of authority and note whom she could have had as her vindicators. She was received by all those per- sons of authority and note, not only not as my learned friend expected to prove, but in the very reverse manner, and as from the evidence I have now described her reception and her treatment. Suffer me now, my lords, to solicit your indulgence, while I look a little more narrowly into the case which was thus opened, and thus partly not proved, partly disproved, by the Attorney-general. The first remark which must strike any one who attends to this discussion is one which pervades the whole case, and is of no small importance. Is it not remarkable, that such a case, possessed as they are of such witnesses, should have been left so lame and short as they must admit it to be left, when contrasted with their opening? Was ever a cause of criminal conversation brought into court under such favorable auspi- ces? Who are your witnesses? The very two who, of all men and womankind, must know most of this oflence, not only if it were in the daily course of being committed, but if committed at all I mean, the body servants of the two parties, the valet of the man, and the lady's own waiting maid. Why, in common cases, these are the very witnesses the counsel are panting to have and to bring into court. From tho form of the action, they can hardly ever venture to bring the man's servant; but if they can get hold of one by good fortune, they consider their case must be proved; and then the only question 72 QUEEN CAROLINE. comes to be as to mitigation of damages, for as to the fact, no defen- dant would any longer hold out and resist. And if you believe any part of their case, it was not from over caution of the parties; it was not from any great restraint they impose on themselves; it was not that knowing they were watched, they took care to give the world nothing to see; because, if you believe the evidence, they had flung off all regard to decorum, all trammels of restraint, all ordinary pru- dence, and had given up the reins to this guilty passion, as if they were still in the hey-day of youthful blood, and as if they were justified by those ties which render its indulgence a virtue rather than a crime. Yet, with all this want of caution, all these exhibitions of want of circumspection, the man's serving man, and the lady's waiting woman have not been able to prove more than these meagre facts, which, it is pretended, make out the charge. When I said, however, there was no caution or circumspection, I mis-stated the case. If you believe the evidence and it is the great circumstance of improbability to which I solicit your attention if you believe the evidence, there was every caution used by the parties themselves, to insure discovery, which the wishes and ingenuity of their most malignant adversary could have devised to work their ruin and promote his own designs. Observe how every part of the case is subject to this remark; and then I leave to your lordships confidently the inference that must arise from the observation. You will even find, that just in proportion as the dif- ferent acts alleged are of a doubtful, or of a suspicious, or of an atro- cious nature, in exactly the same proportion do the parties take especial care that there shall be good witnesses, and many of them, in order to prove it. It would be a horrible case, if such features did not belong to it; but such features we have here abundantly; and if the witnesses are to be believed, no mortal ever acted as the Queen is represented to have done. Walking arm in arm is a most light thing; it seldom takes place except in the presence of witnesses, and of those some speak most accurately respecting it; but sitting together in an attitude of familiar proximity, which is somewhat less equivocal, is proved by several witnesses; and those who slate it to have been done by the aid of placing the arms round the neck, or behind the back, and which accordingly raises it a step higher the witnesses show you that this happened when the doors were open, in the height of the sun, in a villa where hundreds of persons were walking, and when the house and the grounds were filled with common workmen. Several salutes were given; and, as this stands still higher in the scale, it appears that never was a kiss to pass between these lovers without especial pains being taken that a third person should be by to tell the story to those who did not see the deed done. One witness is out of the room while Bergami is about to take his departure on a journey from the Queen, while in Sicily. They wait until he comes in, and then they kiss. When at Terracina, Bergami is going to land; the whole party are on deck; the Princess and Bergami retire to a cabin; but they patiently wait till Majoochi enters, and then the act is per- petrated. Sitting on a gun or near the mast of the ship, on the knees QUEEN CAROLINE. 73 of the paramour, is an act still higher in the scale of licentiousness. It is only proved scantily by one witness; but of that hereafter. Care is taken that it should be perpetrated before eleven persons. But sitting upon a gun with the arms entwined, is such an act as leaves nothing to the imagination, except, the granting of the last favor the full accomplishment of the purposes of desire this must be done in the presence of all the crew, of all the servants, and all the compa- nions, both by day and in the evening. The parties might be alone at night then, of course, it is not done; but at all other times it is done before all the passengers and all the crew. But the case is not left here. As your lordships might easily sup- pose, with persons so wary against themselves such firm and useful allies of their accusers such implacable enemies to themselves indisputable proofs of the case against them are not wanting to prove the last favor in the presence of good witnesses; and accordingly, sleeping together is not only said to have taken place habitually, nightly in the presence of all the company and all the passengers on board, but always, by land as well as by sea, did every body see it, that belonged to the party of pilgrims to Jerusalem. Nay, so far is this carried, that Bergarni cannot retire into the anti-chamber where the Princess is to change her clothes, or for any other purpose, without special care being taken, that the trusty, silent, honest, unintriguing Swiss waiting-maid shall be placed at the door of that anti-room, and told, " You wait here; we have occasion to retire for an hour or two, and be naked together;" or at least she is at liberty to draw what inferences she pleases from the fact. But, my lords, I wish I could stop here. There are features of peculiar enormity in the other parts of this case; and in proportion as these disgusting scenes, are of a nature to annoy every one, however unconcerned in the case, who hears them; to disgust and almost con- taminate the mind of every one who is condemned to listen to them; in that proportion is especial care taken that they shall not be done in a corner. The place for them is not chosen in the hidden recesses of those receptacles of abomination with which the continent abounds, under the debased and vilified name of palaces; the place is not chosen in the hidden haunts which lust has degraded to its own purposes, some island where vice concealed itself from the public eye of ancient times; it is not in those palaces, in those Capreas of old, that the parties choose to commit such abominations; but they do it before witnesses, in the light of open day, when the sun is at the meridian. And that is not enough; the doing those deeds of unnatural sin in the public high-ways is not enough; but they must have a courier of their own to witness them, without the veil of any one part of the furniture of a carriage, or of their own dress, to conceal from his eye their dis- graceful situation! My lords, I ask your lordships whether vice was ever known before so unwary; whether folly was ever known so extravagant; whether unthinking passion, even in the most youthful period, when the passions swell high, and the blood boils in the veins, was ever known to act so thoughtlessly, so recklessly, so madly, as VOL. i. 7 74 QUEEN CAROLINE. this case compels me to fancy, as these shameless witnesses pretend to represent? And when you have put the facts to your minds, let this consideration dwell there, and let it operate as a check when you come to examine the evidence hy which the case is supported. But all this is nothing. Their kindness to the enemy their faith- fulness to the plot against themselves their determination to work their own ruin would be left short indeed, if it had gone no further than this; for it would then depend upon the good fortune of their adversary in getting hold of the witnesses; at least it might be ques- tionable, whether the greater part of their precautions for their own destruction might not have been thrown away. Therefore, every one of these witnesses, without any exception, is either dismissed without a cause, for I say the causes are mere flimsiness personified, or is refused to be taken back, upon his earnest and humble solicitations, when there was every human inducement to restore them to favor. Even this is not all. Knowing what she had done; recollecting her own contrivances; aware of all these cunning and elaborate devices towards her own undoing; having before her eyes the picture of all those schemes to render detection inevitable and concealment impos- sible; reflecting that she had given the last finishing stroke to this conspiracy of her own, by turning off these witnesses causelessly, and putting them into the power of her enemy; knowing that that enemy had taken advantage of her; knowing the witnesses were here to destroy her, and told that if she faced them she was undone; and desired, and counselled, and implored, again and again, to bethink her well before she ran so enormous a risk: the Queen comes to England, and is here, on this spot, and confronts those witnesses whom she had herself enabled to undo her. Menaced with degra- dation and divorce knowing it was not an empty threat that was held out and seeing the denunciation was about to be accomplished up to this hour she refuses all endeavors towards a compromise of her honor and her rights; she refuses a magnificent retreat and the opportunity of an unrestrained indulgence. in all her criminal propen- sities, and even a safeguard and protection from the court of England, and a vindication of her honor from the two Houses of Parliament. If, my lords, this is the conduct of guilt; if these are the lineaments by which vice is to be traced in the human frame; if these are the symptoms of that worst of all states, dereliction of principle carried to excess, when it almost becomes a mental disease; then I have misread human nature; then I have weakly and groundlessly come to my conclusion; for 1 have always uu lerstood that guilt was wary, and innocence alone improvident. Attend now, my lords, I beseech you, with these comments upon the general features of the case, to the sort of evidence by which all these miracles, these self-contradictions, these impossibilities, are attempted to be established. I should exhaust myself, besides fatigu- ing your lordships, if I were to pause here and make a few of the cogent remarks which so readily offer themselves, upon the connec- tion of that part of the case which I have now gone through, with QUEEN CAROLINE. 75 the part I am coming to. But there are one or two points so mate- rial, that I cannot omit all mention of them before I proceed further. I will make this observation, that if an ordinary case could not be proved by such evidence as I am now to comment upon; if it would require very different proofs in the most common story; if there were even none of the improbabilities which I have shown a case, such as that I have now described, ought to be proved by the most con- vincing, the most pure, the most immaculate testimony. My lords, I do not intend to assert, I have no interest in stating it, that a conspiracy has been forming against the Queen, by those who are the managers of the present proceeding. I say not such a thing. I only show your lordships, that if there had been such a measure resorted to; that if any persons had been minded to ruin her Majesty by such a device: they could not have taken a better course, and pro- bably they would not have taken a different course, from that which I think the case of the prosecution proves them already to have pur- sued. In any such design, the first thing to be looked to is the agents, who are to make attacks against the domestic peace of an individual, and to produce evidence of misconduct which never took place. Who are those persons I am fancying to exist, if their existence be conceivable who are those that they would have recourse to, to make up a story against the victim of their spiteful vengeance? First of all they would get the servants who have lived in the house. Without them, it is almost impossible to succeed: with them, there is the most brilliant prospect of a triumphant result. Servants who have lived in the family were, in fact, all that could be desired. But, if those servants were foreigners who were to be well tutored in their part abroad, and had to deliver their story where they were unknown, to be brought to a place whither they might never return all their days, and to speak before a tribunal who knew no more of them than they cared for it; whose threat they had no reason to dread, whose good opinion they were utterly careless of; living tem- porarily in a country to which they did not care two rushes whether they returned or not, and indeed knew they never could return; those were the identical persons such conspirators would have recourse to. But, there is a choice among foreigners. All foreigners are not made of the same materials; but, if any one country under heaven is marked out more than all the rest as the OJ/icina gcntis for supply- ing such a race, I say that country is the country of Augustus, Clo- dius, and Borgia. I speak of its perfidies, without imputing them to the people at large; but there in all ages perfidy could be had for money, while there was interest to be satisfied, or spite to bo indulged. I grant that there are in Italy, as every where else, most respect- able individuals. I have myself the happiness of knowing many Italian gentlemen in whose hands I should think my life or my honor as safe as in the hands of your lordships. But I speak of those who have not been brought here, when I make this favorable admission. Those who have been brought over and produced at your bar, are of a far other description: " Sunt in illo numero multi boni, docti, 76 QUEEN CAROLINE. pudentes, qni ad hoc judicium deducti nou sunt: multi irapudentes, iiliterati, leves, quos, variis de causis, video concitatos. Vernm tamen hoc dico de toto genere Grsecomm; quibus jusjurandum jocus est; testimonium Indus; existimatio vestra tenebrse; laus, merces, gratia, gratulatio proposita est omnis in impudent! mendacio." My lords, persons of this latter description were to be gotten by various means, which the carelessness of the one party, which the wealth and power of the supposed conspirators, placed within their reach. Money, accordingly, has been given, with a liberality unheard of in any other case, even of conspiracy; and where, by some marvel, money could not operate, power has been called in to its aid. Having thus procured their agents; having thus intrusted them; how were they to be marshalled to compass the common design? Uniformity of statement is above all things necessary in conspiracy. Accordingly, they are taken, one by one, and carefully examined be- fore one and the same person, assisted by the same coadjutors and even the same clerks; they are moved in bodies along the country, by even the same couriers; and these couriers are not the ordinary runners of the Foreign Office of a country which shall be nameless, who had some connection with the spot, but special messengers, whose attention is devoted peculiarly to this department. Many of the persons intended to be used themselves as witnesses, are employ- ed as messengers; which keeps the different witnesses in the duo recollection of their lesson, and has the effect of encouraging the zeal of those witnesses, by giving them an office, an interest a concern in the plot that is going on. Observe, then, how the drilling goes on. It is not done in a day, nor in a week, hardly in a year: but it extends over a long space of time; it is going on for months and years. The Board is sitting at Milan. There they sit at the receipt of perjury; there they carry on their operations, themselves ignorant, no doubt, of its being perjury; but then, so long as it continues, so much the more likely is the crop of gross perjury to be produced. The witnesses are paid for their evidence: the tale is propagated by the person receiving the money carrying it to his own neighborhood: and he becomes the parent of a thousand tales, to be equally paid as they deserve; and of which one is as false as the other. You mark the care with which the operation is conducted; there is not a witness (I mean an Italian witness) brought to this country, without previously passing through the Milan drill; because, if they had not passed through that preparatory discipline, there would be want of union and agreement; so that even the mate of the polacca, Paturzo, who was brought here to be examined on the morning after his arrival, was brought through Milan, and passed his examination before the same persons who had taken the former examinations. Aye, and the captain too, who was examined by the Board, more than a year ago, is carried by the way of Milan, to have a conversation with his old friends there, who the year before had examined him to the same story. Here, then, by these means recruited with this skill mar- shalled, with all this apparatus and preparation made ready to come to QUEEN CAROLINE. 77 the field where they are to act you have the witnesses safely land- ed in England; and in order that they may be removed from thence suddenly, all in a mass, they are living together while here; then they are carried over to Holland, and afterwards returned here; and finally deposited, a day or two before their well-earned sustenance and well- earned money require them to appear before your lordships. They are now kept together in masses; formerly they lived in separate rooms; it was necessary not to bring them together before; but those of feeble recollection it was necessary afterwards to keep together, for the convenience of constant mutual communication. There they were, communicating to each other their experiences, animated by the same feelings and hopes, prompted by the same motives to fur- ther the same common cause. But not only this; according to the parts of the story which they were to make out before your lordships, they were put together. There are two Piedmontese: they did not associate together in this contubcrnium, (for I know of no other name by which to denote the place they occupied,) but one of them kept company with the mate and captain of the polacca, because lie tells the same story with themselves. It is needless to add, that they are here cooped up in a state of confinement; here they are without communicating with any body but themselves, ignorant of every thing that is going on around them, and brought from that prison by these means, in order to tell to your lordships the story which by such means, has been got up among them. My lords, I fear I may appear to have undervalued the character of these Italians. Suffer me, then, to fortify myself upon the subject, by saying, that I am not the person who has formed such an estimate of the lowest orders of that country. And perhaps it may be some assistance to your lordships, possibly some relief from the tedium of these comments on the character of the evidence in support of the bill, if I carry you back to a former period of the history of this coun- try, and I shall take care not to choose any remote period, or resort to circumstances very dissimilar from those which mark the present day. Your lordships, I perceive, anticipate me. I naturally go back to the reign of Henry VIII, and the proceedings against Catharine of Arragon. And I shall show your lordships in what way we have a right to view Italian testimony, though proceeding from sources calculated to beget impressions very different from the statements of discarded servants. You will find in the records of that age, in Ry- mer's Collection, some curious documents with respect to the process of Henry VIII. The great object, as your lordships know, was, to procure and consult the opinions the free, unbiassed opinions of the Italian jurists, in favor of his divorce. Rymer gives us the opin- ions of the professors and doctors of several of the Italian universities; and from them you will sec that, by a strange coincidence, these Docti gave their " free, unbiassed opinions," in nearly the same words. I shall select that of the most celebrated city of the whole, which is known by the appellation of Hologna the Learned. The doctors there say, one and all, that in compliance with the request of the King, they 7* 73 QUEEN CAROLINE. each separately and unconnected with his fellows, had examined the case; they had taken all the care which your lordships are taking on the present occasion; and then, having well weighed the matter, " Censemus, judicamus, dicimus, constantissime testamur, et indubie affirmarnus," they say, that having sifted the question, they are one and all of opinion, that Henry VIII has a right to divorce his queen. But it seems that, from the great similarity of the opinions of the doctors, and of the language in which these were expressed, there existed at that time much the same suspicion of a previous drilling, as appears to have prevailed in a certain other case which I shall not now mention; and that to repel this suspicion, pretty nearly the same precautions were used as in the other case. Indeed by a singular coin- cidence, these Doctissimi Doctores of the sixteenth century were di- rected to swear, which they might do with a safe conscience, that they had never opened their mouths to one another on the subject, in, the same manner as the illiterati et impudentes of the present proceed- ing swore, that they had never talked to one another on the subject of what each had to swear. The doctors and divines of Italy swore on the Holy Gospel, " that they never had, directly or indirectly, com- municated their sentence, or any word or thing concerning the same, by sign, word, deed, or hint, until a certain day;" which was the day they all came to understand the matter. Now, my lords, all this appeared ^rz'wza facie, a very sound and specious case; as every security had been taken to guard against cap- tious objections; and with that character it would probably have passed down to posterity, if there had been no such thing as a good historian and honest man, in the person of Bishop Burnet; and he, with his usual innocence, being a great advocate of Harry VI II, in consequence of his exertions in support of the Reformation, tells the tale in the way which I am now going to state; still leaning towards that king, but undoubtedly letting out a little that is rather against himself. Harry first provided himself with an able agent; and it was necessary that he should also be a learned one. He took one, then, to whom my learned friend, the Solicitor-general's eulogium on the head of the Milan com- mission, would apply in some of the words; a man of great probity, and singularly skilled in the laws of his country; and, by a still more curious coincidence, the name of Harry's agent happened to be Cooke. " He went up and down," says Burnet, " procuring hands; and he told them he came to, that he desired they would write their conclu- sions, according to learning and conscience," [as I hope has been done at Milan,] " without any respect or favor, as they would answer it at the last day; and he protested," [just as I have heard some other per- sons do,] " that he never gave nor promised any divine anything, till he had first freely written his mind;" and he says, that " what he then gave, was rather an honorable present than a reward;" a compensation, not a recompense, (to use the language of a right reverend interpreter.)* * Bishop Marsh, being a great Germanic scholar, aided the House in explaining this distinction taken by some witnesses. QUEEN CAROLINE. 79 These were the very words used in that country at that time, as they have been recently in this. Then, we have a letter from this agent, as who knows two hun- dred years hence, there may not be letters from Milan? There is extant a letter of Cooke's to" Henry VIII, dated the 1st of July 1530, in which he says, " My fidelity bindeth me to advantage your high- ness, that all Lutherans be utterly against yonr highness in this cause, and have told as much, with their wrelched power, malice without reason or authority, as they could and might; but I doubt not," says he, "that all Christian universities," (Christian contradistinguished from Lutheran!) " that all Christian ministers, if they be well handled, will earnestly conclude with yonr highness. Albeit, gracious lord," now comes he to expound what he means by the well-handling of the Christian universities; " albeit, gracious lord, if that I had in time been sufficiently furnished with money; albeit, I have, beside this seal, pro- cured unto yonr highness 110 subscriptions; yet, it had been nothing, in comparison of that that I might easily and would have done. And herein I inclose a bill specifying by whom and to whom I directed my said letters, in most humble wise beseeching your most royal clemency to ponder my true love and good endeavoring, and not sutler me to be destitute of money, to my undoing, and the utter loss of your most high causes here." Now this, my lords, undoubtedly is the outward history of the transaction; but we have only seen the accounts of Bishop Burnet and of the agent Cooke. Happily, however, the Italian agent employed by Henry VIII, one Peter a Ghinnuciis, the Vimercati of that day, left his papers behind him, and we are furnished with the original tariff, by which the value of the opinions of these Italian doc- tors and divines was estimated. "Item, to a Servate friar, when he subscribed, one crown; to a Jew, one crown; to the doctor of the Ser- vites, two crowns; to the observant friars, two crowns; Item, to the prior of St. John's and St. Paul's who wrote for the king's cause, fif- teen crowns," the author was better paid than the advocate, as often happens in better times. "Item, given to John Maira, for his expense of going to Milan, and for rewarding the doctors there, thirty crowns." There is a letter also from the bishop of Worcester to Cooke, directing that lie should not promise rewards, " except to them that lived by them, to the canonists who did not use to give their opinions without a fee." The others he might get cheaper, those he must open his hand to; because, he says, the canonists, the civilians, did not use to give an opinion without a fee. Bishop Burnet, with the native sim- plicity and honesty of his character, sums up all this with remarking, that these Italian doctors " must have had very prostituted consciences, when they could be hired so cheap. It is true that Cooke, in many of his letters, says, that if he had had money enough, he could get the hands of all the divines in Italy; for he found the greatest part of them were mercenary." My lords, the descendants of those divines and doctors, I am sorry to say, have rather improved than backslidden from the virtues of their ancestors; and, accordingly, I trust your lordships will permit me 80 QUEEN CAROLINE. to bring the tale down to the present day, and to connect the present proceeding with the divorce of Harry the Eighth's time. I trust your lordships will allow me to read to you the testimony, given in the year 1792. of a native of Italy, of distinguished family, who was em- ployed in a diplomatic character, by an august individual, who was near being the victim of an Italian conspiracy: he published a letter, and it is evidence, I say, because it was published before the whole Italian nation in their own tongue, and it states what Italian evidence is made of; and he addressed it, with his name, to the prime minister of the country, that minister enjoying the highest civil and military authority there, and being by descent a subject of the British crown I mean General Acton. " To the dishonor of human nature," says the writer, " there is nothing at Naples so notorious as the free and public sale of false evidence. Their ordinary tariff is three or four ducats, according to the necessities of those wh > sell, and the occasions of those who buy it. If, then, you would support a suit, alter a will, or forge a hand-writing, you have only to castaway remorse and open your purse, the shop of perjury is ever open " It poured in upon him in a full tide: he made his appeal in such words as I have now read: he and his royal master, who was implicated in the charge, were ac- quitted by such an appeal; and I now repeal it, when such evidence is brought to support charges as atrocious, as ruinous, and far more incredible in themselves, than that an Italian should have suborned an agent to injure a fellow-creature. My lords, I have been drawn aside from the observations I was making, generally, of the manner in which this case has been prepared. I pray your lordships to observe how these witnesses all act after they come into court; and the first thing that must strike an observer here, is the way in which they mend their evidence how one improves upon the other after an interval of time and how each improves, when required, upon himself. I can only proceed, my lords, in dealing with this subject of conspiracy and false swearing, by sample: but I will take the one that first strikes me; and I think it will effectually illustrate my proposition. Your lordships must remember the manner in which my learned friend, the Attorney-general, opened the case of Mahomet, the dancer. Again, I take his own words: " A man of the most brutal and depraved habits, who at the Villa d'Este exhibited the greatest indecencies at various times, in the presence of her Ma- jesty and Bergami exhibitions which are too disgusting to be more than alluded to the most indecent attempts to imitate the sexual in- tercourse. This person deserves not the name of a man," said the Attorney-general. Now, my lords, I take this instance, because it proves the proposition which I was stating to your lordships, better, perhaps, than any other. All show it, to a degree; but this, best of all; because I have shown your lordships how careful the Attorney-gen- eral is in opening the case, and how strong his expressions are; con- sequently, he felt the importance of this fact; he was aware how damaging it would be to the Queen; he knew it was important to state this, and he felt determined not to be disappointed when he had QUEEN CAROLINE. 81 once and again failed he brought three witnesses; and if one would not swear the first time, he brought him again. Now, my lords, if I show the symptoms of mending and patching in one part of such a case, it operates as volumes against the whole of that case; if your lordships find it here, you may guess it is not wanting elsewhere. But here it is most manifestly to be seen. Your lordships plainly per- ceived what it was that these witnesses were intended and expected to say. You no sooner heard the first question put you no sooner heard the grossly leading questions with which the Solicitor-general followed it than you must have known it was expected that an in- decent act would be sworn to that an exhibition would be sworn to of the most gross and indecent description; and one part of the evidence I can hardly recount to your lordships. Now see, my lords, how the first witness swore; this is their first and main witness, who is brought to prove their whole case Majocchi. He will only allow and this is the first stage in which this deity of theirs is brought before your lordships he will only allow it was a dance. " Did you observe any thing else?" the usual answer, " Noil mi ricordo;" but " if there was, I have not seen it," and l< I do not know." Was any thing done by Mahomet, upon that occasion, with any part of his dress?" says the Solicitor-general, evidently speaking from what he had before him written down; " He made use of the linen of his large pantaloons." How did he use his trowsers? Did he do any thing with the linen of his pantaloons or trowsers?" " His trowsers were always in the same state as usual." Here, then, was a complete failure no shadow of proof of those mysteries which this witness was expected to divulge. This was when he was examined on the Tuesday. On the Friday, with the interval of two days and your lordships, for reasons best known to yourselves, but which must have been bottomed in justice guided by wisdom wisdom never more seen or better evidenced than in varying the course of conduct, and adapting to now circumstances the actions we perform wisdom which will not, if it be perfect in its kind, and absolute in its degree, ever sustain any loss by the devia- tion for this reason alone, in order that injustice might not be done, (for what, in one case, may be injurious to a defendant, may be ex- pected mainly to assist a defendant in another) your lordships, not with a view to injure the Queen your lordships, with a view to fur- ther not to frustrate, the ends of justice allowed the evidence to be printed, which afforded to the witnesses, if they wished it, means to mend and improve upon their testimony. Your lordships allowed this, solely with the intention of gaining for the Queen that unanimous verdict, which the country has pronounced in her favor, by looking at the case, against her; your lordships, however, whatever might be your motive, did, in point of fact, allow all the evidence against her to he published from day to day. Accordingly, about two days inter- vened between Majocchi's evidence, and the evidence of Uirollo; dur- ing which lime, Dirollo had access to Majocchi's deposition, as well as to his person; and it is no little assistance, if we have not only access to the witness but to his testimony; because he may forget what ho 83 QUEEN CAROLINE. has sworn, and it is something that he himself, as well as the second, the following, the mending, the patching witness, should see the story first told. Accordingly, with the facility which this gave him, forward Birollo comes, after two days' interval, and improves upon the story; from a dance, and from the usual handling, or ordinary use of the trowsers, he first makes a rotulo or roll. The witness then begins to hint at some indecency; but he does not mention it. He starts and draws back. For my part I cannot tell what he meant; and he really adds something, which lie, in his awn wicked imagination, might think indecent, but he is forced to admit he does not know what it meant. But, on the Wednesday following, a third witness comes, the second of the patchers, and he finishes it altogether. He improves even upon Birollo; and he tells you, in plain, downright terms, that which I have a right to say is, because I can prove it to be, false which I have a right to say, before proving it, is false; because I know the same dance was witnessed by wives and daughters, as modest and pure as any of your lordships have the happiness of possessing by wives and daugh- ters of your lordships in those countries. Now, another improvement, and mending, and patching, suffer me, my lords, to advert to; for it runs through he whole case. I do not even stop to offer any comment upon the non mi ricordovf Majocchi; nor on the extraordinary fact of that answer being regularly dropped by the other witnesses, as soon as the impression which the repetition had made on the public mind was fully understood; but I wish to call your lordships' attention to the more important point of money. No sooner had Gargiuolo the captain, and Paturzo the mate of the polacca, proved that they were brought here by sums so dispropor- tioned to the service, by sums so infinitely beyond the most ample remuneration for their work; that they were bribed by sums such as Italians in their situation never dreamed of no sooner had this fact dropped out, than one arid all of them are turned into disinterested witnesses, not one of whom ever received a shilling by way of com- pensation for what they did. " Half-a-crown a day for the loss of my time my travelling expenses and a few stivers to feed my family!" The expectation of his expenses being paid, began in the instance of of the cook, Birollo, He told you he had nothing at all but his trouble for coming here. " Do you expect nothing?" " I hope to go soon home to find my master." The cook at first was offered and refused money. The others had nothing offered; Demont nothing! Sacchi nothing! though true, he, a courier, turns out to be a man of large property, and says, " thank God! I have always been in easy circumstances;" thank God! with a pious gratitude truly edifying. A man who must have a servant of his own who had one in Eng- land who must live here at the expense of four or five hundred pounds a year, which is equal to fourteen or fifteen hundred in Italy goes to be a courier, is angry at being turned off, and is anxious to return to that situation! I believe the captain and the mate. They avowed that what they had was enormous payment; and the other witnesses, hearing of the effect of that confession, have one and all QUEEN CAROLINE. 83 denied having received any tiling, and would not even confess (hat they had any expectations for the fun ire. The last of these general observations with which I shall trouble your lordships, and which I own I think your lordships must have been impatient I should come to, regards the great blanks among the witnesses for the prosecution I mean the fewness of those witnesses compared with whattl>eir own testimony, and their own statement that introduced it show your lordships the advocates of the Bill ought to have called. My lords, I conjure you to attend to this circumstance, for it is a most important point in the whole of the case. I say, that if I had not another argument to urge I should stand confidently upon this ground. If the case were as ordinary as it is extravagant if it were as probable as it is loaded in every feature with the gross- est improbabilities if it were as much in the common course of human events, that such occurrences as those which have been alleged should have happened, as it is the very reverse I should still stand confidently and firmly upon that part of the case to which I have now happily arrived. I know, my lords, that it is bold; I know that it is bold even to rashness, to say so much of any point before I have begun even to hint at it; but I feel so perfectly, so intimately convinced, that in such a case as the present, the circumstances to which I refer ought to be fatal to the Bill before your lordships, that I consider myself as even acting prudently, in declaring, by anticipa- tion, what I hold to be its character. My lords, the Attorney-general told us that there were rumors at Naples pointing to reasons why the Queen's ladies left her; it turned out, that instead of leaving her, one had joined her at Naples, one had joined her at Leghorn, and another at Genoa, afterwards; but my learned friend said, that one left her, and one or two others stayed behind, and rumors were not wanting that their doing so was owing to the impropriety of her Majesty's conduct. Humors! My learned friend may say, that these were rumors which he was unable to prove. But if they were rumors which had any foundation what- ever; if they were such rumors as my learned friend had a right to allude to, (even if he had a right to refer to rumor at all, which I deny); if there was a shadow of foundation for those rumors; why did he not call the obvious witnesses to prove it? Where were those ladies, women of high rank and elevated station in society, well- known in their own country, loved, esteemed, and respected, as wo- men upon whoso character not a vestige of imputation has ever rested women of talents as well as character the very persons to have brought forward, if he had dared to bring them forward why were all of these kept back, each of whom formed the very signal, and I had almost said extravagant, contrast to all the witnesses, but two, whom my learned friend did venture to call to your lordships' bar? Why were those noble ladies not produced to your lordships? Why had not your lordships, why had not we, the benefit of having the case proved against us in the manner in which any judge sitting at the Old Bailey would command, upon pain of an acquittal, any prose- 84 QUEEN CAROLINE. cuter to prove his charge against an ordinary felon? Certainly they were in onr employment; they were in some way connected with our interest; they received salaries from the Queen, and might be sup- posed to be amicably disposed towards her. My lords, is there in all that the shadow of a shade of a reason why they should not have been adduced? I am not speaking in a civil action. I am not deal- ing with a plaintiff's case, in a suit upon a bill of exchange for twenty pounds. I am not even speaking in a case of misdemeanor, or a case of felony, or the highest crime known in the law, between which and the act alleged to have been committed by my illustrious client it is difficult to draw even a technical distinction. But I stand here on a Bill of Pains and Penalties, which your lordships are not bound to pass; which you may give the go-by to; which you are not bound to say aye or no to. Your lordships are not sitting as commis- sioners of Oyer and Terminer to try a case of high treason. Gracious God! is this a case in which the prosecutor is to be allowed to bring forward half a case? Is this an occasion on which the prosecutor is to be allowed to say, " These witnesses I will not call. True it is, that they are respectable; and that they are unimpeachable, no man can deny. If they swear against the Queen she is utterly undone. But I will not call them. I will leave them for you to call. They are not my witnesses, but yours. You may call them. They corne from your vicinity. They are not tenants of the Cotton Garden, and therefore I dare not, I will not produce them; but when you call them, we shall see what they state; and if you do not call them'-' in the name of justice, what? Say! Say! For shame in this temple this highest temple of Justice, to have her most sacred rules so pro- faned, that I am to be condemned in the plenitude of proof, if guilt is; that I am to be condemned unless I run counter to the presump- tion which bears sway in all courts of justice, that I am innocent un- til I am proved guilty; and that my case is to be considered as utterly ruined, unless I call my adversary's witnesses! Oh most monstrous! most incredible! My lords, rny lords! if you mean ever to show the face of those symbols by which Justice is known to your country, without making them stand an eternal condemnation of yourselves, I call upon you instantly to dismiss this case, and for this single reason; and I will say not another word upon the subject. Having gone over the features of this portentous case, I am now to solicit the attention of your lordships, and I am afraid at greater length than any thing could justify but the unparalleled importance of the occasion, to a consideration more in detail, of the evidence by which it has been supported. And in point of time as indeed of importance, the first figure that was presented to your lordships in the group, must naturally have arisen to your recollection the moment I an- nounced my intention of touching upon the merits of the different witnesses I mean Theodore Majocchi, of happy memory, who will be long known in this country, and every where else, much after the manner in which ancient sages have reached our day, whose names are lost in the celebrity of the little saying by which each is now dis- QUEEN CAROLINE. 85 tinguished by mankind, and in which they were known to have em- bodied the practical result of their own experience and wisdom; and, as long as those words which he so often used in the practice of that art and skill which he had acquired by long experience and much care as long as those words shall be known among men, the image of Majocchi, without naming him will arise to their remembrance. My lords, this person is a witness of great importance; he was the first called, and the latest examined; beginning with the case continu- ing by it, and accompanying it throughout. His evidence almost extended over the whole of the period through which the case and the charge itself extends. If indeed you believe him, he was only dismissed or rather retired from the Queen's service and refused to be taken back, about the time when the transactions in the charge closed. He and Demont stand aloof from the rest of the witnesses, and resemble each other in this particular, that they go through the whole case. They are, indeed, the great witnesses to prove it; they are emphatically the witnesses for the Bill, the others being confirma- tory only of them; but, as willing witnesses are wont to do as those who have received much and been promised more, may be expected to do they were zealous on behalf of their employers, and did not stop short of the two main witnesses, but they each carried the case a great deal further. This is generally, with a view to their relative importance, the character of all the witnesses. Now, only let me entreat your lordships' attention, while I enter on this branch of the subject a little more in detail. I have often heard it remarked, that the great prevailing feature of Majocchi's evidence his want of recollection signifies, in truth, but little; because a man may forget memories differ. I grant that they do. Memory differs, as well as honesty, in man. I do not deny that. But I think I shall succeed in showing your lordships, that there is a sort of memory which is utterly inconsistent with any degree of honesty in any man, which I can figure to myself. But why do I talk of fancy? for I have only to recollect Majocchi; and I know cases, in which I defy the wit of man to conceive stronger or more palpable instances of false swearing, than may be conveyed to the hearers and to the court in the remarkable words, " Non mi ricordo I do not remember." I will not detain your lordships, by pointing out cases, where the answer, " I do not remember," would be inno- cent, where it might be meritorious, where it might be confirmatory of his evidence, and a support to his credit. Neither need I adduce cases where such an answer would be the reverse of this where it would be destructive to his credit, and the utter demolition of his testimony. I will not quote any of those cases. I shall content my- self with taking the evidence of Majocchi as it stands; for if I had been lecturing on evidence, I should have said, as the innocent for- getfulness is familiar to every man, so is the guilty forgetfulness; and in giving an instance, I should just have found it all in Majocchi's actual evidence. At once, then, to give your lordships proof positive that this man VOL. i. 8 86 QUEEN CAROLINE. is perjured proof which I shall show to be positive, from his mode of forgetting. In the first place, I beg your lordships' attention to the way in which this witness swore hardily in chief, eke as hardily in cross-examination, to the position of the rooms of her Majesty and Bergami. The great object of the Attorney-general, as shown by his opening, was that for which the previous concoction of this plan by these witnesses had prepared him; namely, to prove the position of the Queen's and Bergami's rooms always to have been favorable to the commission of adultery, by showing that they were near, and had a mutual communication; whereas, the rooms of all the rest of the suite were distant and cut off; and the second part of that state- ment was just as essential as the first, to make it the foundation of an inference of guilt, which it was meant to support. Accordingly, the first witness who was to go over their whole case, appears to have been better prepared on this point, than any ten that followed; he showed more memory of inferences more forgeifulness of details perfect recollection to attack the Queen utter forgetfulness to protect himself from the sifting of a cross-examination. "Where did the Queen and Bergami sleep?" " Her Majesty slept in an apartment near that of Bergami." " Were those apartments near or remote?" for it was often so good a thing to get them near and communicating with each other, that it was press.ed again and again. " Where were the rest of the suite; were they distant or near?" says the Solicitor- general. This was at Naples; and this is a specimen of the rest for more was made of that proximity at Naples than any where else "Were they near or distant?" " They were apart." The word in Italian was lontano, which was interpreted " apart." I remarked, however, at the time, that it meant "distant," and distant it meant, or it meant nothing. Here, then, the witness had sworn distinctly, from his positive recollection, and had staked his credit on the truth of a fact, and also of his recollection of it upon this fact, whether or not the Queen's room was near Bergami's, with a communication? But no less had he put his credit upon this other branch of his state- ment, essential to the first, in order to make both combined the found- ation of a charge of criminal intercourse, "that the rest of the suite were lodged apart a;;d distant." There is an end, then, of innocent forgetfulness, if, when I come to ask where the rest slept, he either tells me, "I do not know," or " I do not recollect;" because he had known and must have recollected, that when he presumed to say to my learned friends, these two rooms were alone of all the apartments near and connected, that the others were distant and apart; when he said that, he affirmed at once his recollection of the proximity of those rooms and his recollection of the remoteness of the others. He swore that at first, and afterwards said, " I know not," or " I recollect not," and perjured himself as plainly as if he had told your lordships one day that he saw a person, and the next said he never saw him in his life; the one is not a more gross or diametrical contradiction than the other. Trace him, my lords, in his recollection and forgetfulness observe where he remembers and where he forgets and you will QUEEN CAROLINE. 87 find the same conclusion following you every where, and forcing upon you the same conviction. I will give one specimen from the evi- dence itself, to show your lordships he has no lack of memory when it is to suit his purpose; when it is to prove a story where he has learned his lesson, and when he is examined in chief. When, in short, he knows who is dealing with him, and is only anxious to carry on the attack, I will show your lordships what his recollection is made of. You shall have a fair sample of his recollection here. I asked him, " Have you ever seen the villa d'Este since the time you came back from the long voyage?" He had been examined in chief upon this, and had stated distinctly with respect to the villa d'Este, the state of the rooms; and I wanted to show the accuracy of his recollection on those parts where he was well drilled " Have you ever seen the villa d'Este since the time you came back from the long voyage?" " I have." " Was the position of the rooms the same as it had been before, with respect to the Queen and Berganii?" "They were not in the same situation as before." Then the witness gives a very minute particular of the alterations. A small corridor was on one side of the .Princess's room on her return. " Was there a sitting room on the other side of it, not opposite, but on one of the other sides of it?" Now attend, my lords, to the particularity "There was a small corridor, on the left of which there was a door that led into the room of the Princess, which was only locked; and then going a little farther on in the corridor, there was on the left hand a small room, and opposite to this small room there was another door which led into the room where they supped in the evening. There was this supping-room on the right, there was a door which led intoBergami's room, and on the same right hand of the same room there was a small alcove, where there was the bed of Bartolomeo Bergami." Again: "How many doors were there in the small sitting-room where they supped?" "I saw two doors open always, but there was a third stopped by a picture." "Where did her royal highness's maid sleep?" " On the other side, in another apartment." Now, my lords, can any recollection be more minute, more accurate, more perfect in every respect, than Majocchi's recollection is of all these minute details, which he thinks it subservient to his purpose to give distinctly, be they true or be they not? I do not deny them my case is, that much of what is true is brought forward; but they graft falsehood on it. If an individual were to invent a story entirely; if he were to form it completely of falsehoods; the result would be his inevitable detection; but if he build a structure of falsehood on the foundation of a little truth, he may raise a tale which, with a good deal of drilling, may put an honest man's life, or an illustrious Princess's reputation, in jeopardy. If the whole edifice, from top to bottom, should be built on fiction, it is sure to fall; but if it be built on a mixture of facts, it may put an honest man's life or reputation in jeopardy. Now, I only wish your lordships to contrast this accu- racy of recollection upon this subject, and upon many other points a few of which I shall give you specimens of with his not having 88 QUEEN CAROLINE. the slightest recollection of a whole new wing having been added to the Princess's villa. He recollects the smallest alteration of a bed- room or a door; but he has not the sligthest recollection of the throw- ing up a new wing to the house. This memory of his at the least is a capricious memory. But I will show your lordships that it is a dishonest one also. Of the same nature is his evidence, when any calculation of time is required. He observes the most trifling distinc- tion of time when it suits his purpose; and he recollects nothing of time when it is inconvenient for his object. In proof of this, I request your lordships to refer again to the celebrated scene at Naples. There this witness remembers down to minutes, the exact time which her Majesty passes, upon two occasions, in Bergami's room: upon the first occasion, she remains from ten to fifteen minutes; on the second, from fifteen to eighteen minutes; that is to say, taking the medium, sixteen-and-a-half minutes, true time. Upon another occasion, he tells you an affair lasted a quarter of a n hour. Upon another occasion he fired a gun, and then altogether fifteen minutes elapse a quarter of an hour there. He is equally accurate about three quarters of an hour in another instance; that is, at Genoa, which I have spoken of before. The other instance was on the voyage. All this fulness of memory this complete accuracy as to time was in answer to my learned friend; all this was in the examination in chief; all this was thought by the witness essential to his story; all this garnished the detail of which the story is made up, and gave it that appearance of accuracy which was essential to the witness's purpose. But when it was my turn to question when I came to ask him the time, and when the answer would be of use to the Queen; when it was of use, not to the prosecution, but to the defence see how totally he is lost! Then he does not know whether they travelled all night whether they travelled for four hours or eight hours. In answer to a question upon that subject, he says, " I had no watch, I do not know the length of time." No watch! Possibly. And do not know the length of time! Very likely. But had you a watch when you saw the Queen go into the room of Bergami? Did you accidentally know the time when it suited your purpose to know it to a minute? Why know the precise time so accurately on one occasion, and be so totally ignorant of it on another? He pleads the want of a watch only when it would suit the purpose of the defence, and bring out the truth; or, what comes to the same thing, would convict himself, were he to know the time. With respect to the category of numbers, he cannot tell whether there were two or two-and-twenty sailors aboard the Polacca. He cannot tell more with respect to place, that other category of his deposition. Although he slept in the hold, he does not know where the others slept; he cannot tell where they were by night or by day; he knows perhaps that they were on deck in the day, but he cannot say where they were at night. In short, I ask your lordships, whether a witness with a more flexible and conve- nient memory ever appeared in a court of justice? But this is not all, my lords. There is much in the evidence of this QUEEN CAROLINE. 89 man, in which the answer," I do not recollect," or, " I do not know," cannot, by possibility, be true, if the answers given in the examination in chief be true: as in the first instance which I gave you at Naples. If the minuteness sworn to in his examination in chief was true, and founded in fact, it is impossible that he should have no recollection of the matters to which he was cross-examined. If it was true that the rooms and doors were as he described them, he could not, by possi- bility, know and recollect that fact, and yet be in total ignorance of the other parts of the house. In the same manner, when I examine him respecting Mr. Hughes, a banker's clerk at Bristol, he knows nothing of the name nothing of his being a banker's clerk never knew a ban- ker's clerk has no recollection of him. But when he sees that I have got hold of a letter of his which he knew nothing about at that time, and which he perhaps forgot having committed himself by; the moment he sees that, and before I ask him a single word to refresh his memory you plainly see by his demeanor and the tone of his answer, that he had never forgotten Mr. Hughes at all, and that he never had forgotten his being a banker's clerk. " Oh!" he says, " I was in the habit of calling him brother, it was a joke on account of the familiarity in which we were." Thus it appears, that the familiarity makes him forget a man of that kind, although he says that familiarity was the ground of his calling him familiarly and habitually brother. It was manifest that Ma- jocchiwasnot very well pleased to recollect all that passed in that family, he being a married man, and having made a proposal of marriage to a female there, which he attempted to laugh off, with what success, I leave your lordships to judge. He was not willing to recollect the name, or trade, or connection with that family, until he knew that all was known. But, my lords, before we have done with Majocchi, we have other instances of that extraordinary instrument, as it has been called, I mean, memory; we have other instances of the caprices of which it is susceptible. Your lordships recollect the shuffling, prevaricating an- swers he gave respecting the receipt of money. He first said, he had received money from Lord Stewart to carry him to Milan. He after- wards, twice over, swore he never received money at Vienna from any person. Then comes the answer which I can only give in his own words; for none other will convey an adequate idea of his style. lie says," I remember to have received no money when I arrived at Milan; I remember 1 did not: <non so;' I do not know; ' piu no die si;' more no than yes; ' non mi ricordo;' I do not remember." Now, my lords, I have a little guess what sort of an evidence this Majocchi gave when he was laying the foundation of that favor which he has since uninterruptedly enjoyed in the councils of our adversaries, I mean, the Attorney and Solicitor general. When, during his pre- vious examination, he was laying these foundations, deep and wide, upon which his fortune was to be built, your lordships will perceive, that he recollected a great deal which he is now ignorant of. In the opening speech of my learned friend much was stated which this wit- ness was expected to prove, and of which 1 have before given your 8* 90 QUEEN CAROLINE. lordships an instance or two, and which I will not repeat further than to remind your lordships, that Majocchi was to have proved the kissing in the room between that of the Princess and Bergami at Naples. On the contrary, the witness negatives it in the completest manner, by his saying it was only " whispering," and not kissing. This single in- stance shows the whole character of this man's testimony; but I will remind your lordships of one or two others, not so striking from the nature of them, but just as fatal to the credit of the witness; because they all show, that he had told one story to the instructors of my learned friends, a story recorded in the briefs from which they put their questions, and another story Xo your lordships. When ques- tioned here as to those points, he was staggered for some reason, pos- sibly from knowing the facts and documents which I had got in my possession, but more probably from having forgotten part of his story. This is just one of the means by which to detect a contrived plot. Such partial forgetfulness is much more likely to take place, where the whole is an invention, than where there is truth at the foundation of the testimony. So it is in this case. Majocchi recollects part of his testimony. "Yes," is ready for the question: but parts of it does not recollect. For it is perfectly evident, that what a person has actually seen is more intensely impressed on his mind and more firmly retained in his recollection, than what he has invented and imagined. I am referring, my lords, to the Solicitor general's examination of Majocchi He is asked, " Did you bring Bergami any broth?" " Often," is the answer. He then states, that he was ordered to sleep in a cabinet ad- joining Bergami's room, and that when there, pretending to be asleep, the Princess passed through to the room of Bergami; and then he is asked, " After the Princess had entered the bedroom of Bergami, did you hear any conversation?" That would have been enough; it is not a leading question, but it would have been enough to make the witness recollect; but conversation was not what my learned friend was after; "Did you hear any conversation, or any thing else?" That was a broad hint. The man had said something before, which had been taken down, and was in my learned friend's hand. Now, there was something there which he had said before elsewhere, and my learned friend wanted to get that out here. If it had been true, why should not the man recollect it? But he forgot it. He forgot part of his own invention; a situation to which a certain class of men, that I shall not now mention, are often exposed a class whom the old proverb advises to have good memories. So my learned friend, skilfully enough, said, " Did you hear any conversation or any thing else, pass between them?" " Only some whispers." Now, do your lordships want to know whether my learned friend meant whispering I say, No. I say, I read as much as if I saw the printed paper which was in his hand.* My learned friend, the Attorney-general had opened very differently; but, besides, from the examination of the So- * The Briefs of the Crown counsel were all printed at a private press, being drawn frem the collections of the Milan Commission. QUEEN CAROLINE. 91 licitor-general, it is evident, that by his "something else," more than whispering was expected to come out, had the witness taken the hint. If Majocchi had never before said, that something more than whis- pering had passed between the parties, my learned friend would have been satisfied. But he proceeds to ask him, " Do you recollect having heard or observed any thing when the Princess was in Bergami's room the second time!" "Whispering conversation," says he again. Another instance of the same sort occurs, and I hope it will not be thought too minute to go into it; for it is only in this way that con- spiracies are detected, that perjury is exposed, that wickedness is dis- appointed. My lords, there was a story told about the Princess riding upon an ass. " At Genoa, you saw her royal highness riding on an ass?" " Yes." There was a great deal more in his former statement than he dared say now. " Did you, upon these occasions, make any obser- vations as to any thing that passed between the Princess and Bergami?" " Yes." My learned friend thought he was quite secure there. It is not a thing that happens every day to see a Princess of Wales riding about on an ass. " State what passed at the time she was riding on an ass?" " He took her round her waist to put her upon the ass." My learned friend thought he was safe landed. " What else?" " He held her" Aye, that will do very well; a great deal may be done with the word "holding;" a great deal depends on the tenure "He held her hand lest her royal highness should fall." Ah! that won't do. My learned friend is not satisfied with that. Indeed, he must have been satisfied easily, if that had contented him. But, having something in his hand which the witness had sworn to before con- vinced it must be brought to his recollection again not knowing he was trying to do a very difficult thing, namely to make a false swearer recollect his fiction, but, trying, as he thought, to make a true man re- collect what he had actually seen, my learned friend proceeded "Did you make any other observation?" " I have made no other observa- tion; they spoke; they discoursed." The failure of my learned friend was thus complete. And there are a number of anecdotes of the same sort the breakfast at the Benedictine convent, and other things, which were equally inventions, with this difference, that, as always happens to men engaged in such a vilo concern, they forget parts that are just as specific and clear as the parts they recollect; and which, if they had been true, they would have recollected just as well. I might remind your lordships, upon this head of Majocchi's evi- dence, of the incredible nature of his story respecting what took place at Naples. He would have you to believe, that having free access to the bed-room of Bergami through other rooms in which no persons slept, which free access he was compelled, after repeated prevarications, much equivocal swearing, and several positive denials, at length to admit after a very pressing examination that having this secret, easy, safe access to that place of guilt, the bed-room of Bergami, the Princess preferred the other way, through the room where she knew Majocchi slept, where she saw that he slept in a bed without curtains, in a room so small that she could not go through 92 QUEEN CAROLINE. it without almost touching his bed in a room too in which there was a fire to give light, and show her passing through it. But, what is the most monstrous thing of all, he tells you that Her Majesty, in order to make her detection inevitable, as she passed through the room, went to the bed and looked him in the face, to ascertain wheth- er or not he was asleep! Now, this story defeats itself and discredits the teller. You cannot believe it; no! it carries its own refutation along with it. What, my lords! are you to suppose that Her Majesty voluntarily passed through a room where she must have been seen if the person was awake, when she knew she might have gone an- other way, where she could not possibly have been seen? She knew that Majocchi slept in that room she knew the disposition of his bed she knew that there was a fire kept in the room knowing all this, she voluntarily passed through it, stopping in her way to look the witness straight in the face, and make her detection certain if he chanced to be awake ! My lords, I say that this is a plain invention, an invention natural enough to come into the head of a person who lives in a country where nightly robberies are committed. I will not say that this witness is a person who had known more nearly that offence, and the precautions taken by those who commit it; but he, at least, was surrounded by adepts in the art, and we generally find in stories of robbers, that identical particular inserted. The robber comes to the bed of the lady, and looks with a candle near her face to ascer- tain whether she is asleep. If she is asleep it is all well and safe; but if she is awake, and might give the alarm, he does not care about the alarm, and coolly retires. It is very wise and prudent in the robber to take this precaution, to which he adds that of a dark-lantern. But, for a person who is going to commit adultery in the next room, whose face is as well known to the man in bed as any face that can be shown, to go up to his bed-side with a candle, and not a dark- lantern, in order to discover whether he is asleep or not, is a proceed- ing altogether incredible. To what would not the simple fact of Her Majesty having been seen in that room, under such circumstances have exposed her? Would not the fact of being detected looking in the face of Majocchi, have of itself condemned her? The tale is most monstrous and incredible. But it is providentially and most happily ordained, for the detection of guilt and the justification of innocence, that such inventions are often thoughtlessly devised arid carelessly put together; and, in this instance there has been but litile caution used in putting together the materials which have been very thoughtlessly cast. Now, my lords, I wish, before I close my observations on these stories, that I might recall to your lordships' attention what this wit- ness has said on another point. He told you that Bergami began to dine at the table of the Princess at Genoa, when is is notorious that he did not begin to dine with her until some months afterwards. I might recall to your lordships' attention that, in speaking of the night-scene at Genoa, he does not recollect Vinescati, the courier, arriving: he even says, as the thing is much mixed up with fiction, he had for- QUEEN CAROLINE. 93 gotten it, and he did not remember his arrival at all. " Do you re- member at any time of the night knocking at the door of Bergami's bed-room, and endeavoring to wake him?" " I do remember." " Upon what occasion was that? For what purpose?" "It was in the night when Vinescati came, and I went to knock." Then, recol- lecting the contradiction, he said it was not the night Venescati arrived, but the night thieves got into the house; and then he drops the courier altogether. But I come to what happened late in the day. Your lordships re- collect the account this witness gave of his leaving the service of Her Majesty, an account which contains as much gross and deliberate falsehood as ever polluted the walls of a court of justice. And allow me here, my lords, to observe, that where yon see one material part of a person's evidence grossly and palpably false, it dispenses with the necessity of going more into detail, and relieves us from the necessity of proving him a perjurer throughout; the whole of his evidence is discredited; nothing that falls from the lips of a perjured man ought to be entertained; all must be rejected; my lords, in giving you an account of his quitting the service of the Princess, the wit- ness thought it necessary, in order to raise his character, I suppose, to flourish about the cause of his leaving Her Royal Highness. He denied that he had been dismissed by her. He said that he left the service, because he did not like the bad people by whom she was surrounded. This he said, for the double purpose of raising his own credit, and debasing the Queen's and vilifying the society by which she was surrounded. But, my lords, this story is false; and I will show the falsehood from his own mouth. When a question was put to him, " Did you apply to be taken back?" what was his answer ? " I do not recollect." Here, my lords, you see how he defends and protects himself; for if he had answered, No, he knew we might have called a witness who would have convicted him at once. lie was then asked, " Did you ever apply to Schiavini to make interest for your being taken back?" lie answers, " Once I did." Now, a man might have recollected that, after being told, and might innocently have forgotten in answer to the first question; but then he would not have immediately recollected all the circumstances; for, the moment that string was touched, his recollection was entire, his forgetfulness quitted him, and he told us the whole history of the transaction; and a very material thing it is for your lordships to attend to. He said, " Yes, yes," Si, ,yz, was his expression; " but it was in a sort of a joke, " I made the application in joke." That may be so; but if he did not make it in joke he has perjured himself; if he did make this ap- plication in joke to what follows he must have answered, No. " Did you, or did you not make repeated applications to Hieronimus also to be taken back into her Royal Ilighness's service?" This could not be all a joke; you could not have joked with several persons on the same string. " Nun mi ricurdu" "this I do not remember." Now, I say, my lords, that either this last " Nun mi ricordo" is gross and wilful perjury, or the first story is gross and wilful perjury, that ho 94 QUEEN CAROLINE. left the Queen from his horror of the bad people by whom she was surrounded, and that he made his application to Schiavini in pure joke. There is no way out of this dilemma. The two stories are utterly inconsistent. But your lordships recollect the way in which he told you that he never wished to go back to the service. It was done with some flourish and figure. He said with some indignation, " Rather than go to serve her Royal Highness on account of the per- sons that are about her, I will go and eat grass." I ask your lord- ships, is that the saying of a true or a false man, when he pretends that he would rather eat grass than go back to a house where he made one application which he pretends to have been a joke, and afterwards will not swear he did not make several applications to get back to the same bad house? My lords, here I say is developed the whole mystery of Majocchi and his non mi ricordo. This was his protection and his shelter. I say that rank falsehood appears on the face of this part of the evidence, take it the one way or the other; and I care not which of the two branches of the alternative is adopted. I now wish to call the attention of your lordships, for a moment, to the next witnesses; but it shall only be for a moment; because I have already anticipated, in great part, what I had to say of them; I mean those well-paid swearers, the captain and the mate of the polacca. First, as to the mate, there is something in the demeanor of a witness more consonant to a candid and a true story, than the pertness with which that person answered several questions; and all those who have been accustomed to see witnesses in a court of justice know, that those who are stating falsehoods are extremely apt to give flippant and im- pertinent answers. The mate of the polacca is precisely a witness of this kind. Upon being asked, " Was the little gun you spoke of, upon the deck?" he answers, " On the deck; we could not carry it in our pocket." I only mention this, because my learned friend the Solicitor- general has said, that he is a witness of great credit. Again, when asked, " How did you travel from Naples to Milan?" he answers," In a carriage; I could not go on foot." I only state this to remind your lordships of the manner of the witness, which I should not do, if he had not been said to be a witness of the most perfectly correct de- meanor on the present occasion. But I proceed to the substance of his evidence: I will venture to say, that a better paid witness, a better paid Italian, for any work or labor, has never yet come to your know- ledge. He is pnid at the rate of 2000/. sterling a-year; he was the mate in that voyage of a trading vessel in the Mediterranean, and he is now the fourth part owner of a vessel upon his own account. So that to give him a sum in proportion to what he makes when at home to make it a compensation instead of a reward, according to the Right Reverend Prelate's learned interpretation that vessel must earn 8000/. a-year; which is somewhat above an income of from sixteen to eighteen thousand pounds in this country. There is not a ship- owner in all Messina, that makes half the money by all the ships he has of his own proper goods and chattels. In that country, a man of QUEEN CAROLINE. 95 two or three or four hundred pounds a-year is a rich man. Fifteen hundred pounds a-year is a property possessed by none, except the great nobility. Clear profits of SOOO/. a-year there! Their names would resound over all Italy as the rich of the earth; and not a man of consequence could have gone from this country to that, who would not have tried to procure letters of recommendation to them. The Cobbler of Messina has lived in history; but in his time he was not so well known as these two paltry shippers would be, if, instead of dealing out the instrument he did, these men kept their palaces and spent their four thousand a-year. And this is his story, and if he does not mean so much as this, so much the better in an other way; for then is he wholly perjured. My lords, the captain of the vessel, as might be expected, is paid at a much higher rate than the mate. He is paid 2400/. a-year; he is fed, lodged, and maintained; every expense is defrayed, and this put into his pocket, and not for the loss of any profits. I have hitherto been considering it as a compensation for the loss of his profits. But his ship is not here; to use the mate's own mode of speech, he did not bring it here in his pocket; though the owner comes to England, the ship is employed in the Mediterranean, and earning her frieght; and he is paid this, though he attempts to deny it he is paid this as a recompense and not as a compensation. The same argument then applies to the captain as to the mate, but in a greater degree, and I shall not go through it. But, it appears there was a cause of quarrel between the captain and the Princess of Wales. Pie tells you, with some naivete, that what he had for himself, his mate, and the other twenty men of his crew, and for all his trouble, was a sum considerably less, about a fourth part less, than he receives now, for coming over to swear in this business against his ancient freighter. But your lord- ships recollect what he added to that. He said, " When we take on board royal personages, we trust more to the uncertain than to the cer- tain profits." This is a great truth, well known to many present, that something certain is often stipulated for, but that something more is often given by way of honorary and voluntary compensation. Then, my lords, I only stop here for one moment, to remind your lordships, that according to this, his expectation is not limited to what he gets, namely, 2400/. a-year, for coming here to swear against the Queen; but he says he has been employed by a royal person; and he tells your lordships that the ascertained compensation bore no proportion to the voluntary reward which he expected from her Majesty. How much less then lias he he a right to limit the bounty of her illustrious hus- band, or of the servants of His Majesty, who have brought him here, if he serves them faithfully, if the case in his hands comes safe through, and if no accident happens ! If he should succeed in all this, he would then get what would make a mere joke of the 2-100/. a-year; though that would be infinitely greater than any shipper ever earned by the employment of his vessel in the Mediterranean Sea. But independent of the hope of reward, there is another inducement operating on the mind of this witness from another quarter. Is there 96 QUEEN CAROLINE. no spite to gratify? The whole of his testimony, my lords, is bottomed on revenge. I have a right to say this, because he has told me so himself. He has distinctly sworn that he had a quarrel with Bergami, the Queen's chamberlain, whose business it was to pay him the money; and that he complained to his own ambassador, that Bergami had kept back from him 1300/. which he claimed. What happened then? " I have made some application, some demand. When I came here last year, I gave a memorial to my ambassador, Count de Lndolph, and I stated, that as I believed myself to have served the British go- vernment, because I had had the honor of bearing the English flag, I expected the present which I had not received; and on account of this memorial which I gave to Count de Ludolph, the English govern- ment have known me to be Vincenzo Gargiuolo of Naples." Now, I mention it as a circumstance which may strike different minds in dif- ferent ways, but as not immaterial in any view of this case, that the only knowledge the prosecutor of this case has of this witness is, his having made a complaint against the Queen and her chamberlain, for not paying him 1300/. which he said they owed him. He added, that he had been advised to go to London to see after that sum of money. I warrant, you, my lords, he does not think lie is less likely to see his way clearly towards the success of his claim, in consequence of the evidence which he has given at your lordships' bar. My lords, there are other matters in the evidence of these two men which deserve the attention of your lordships. I think that a Prin- cess of Wales on board a vessel, sitting upon a gun, with her arms in- terwined with those of her menial servant, and sometimes kissing that servant, is a circumstance not of such ordinary occurrence in the Medi- terranean, as to make it likely that the captain or mate would forget the most important particulars of it. Yet they do forget, or at least they differ for I will not allow they forget they differ most mate- rially in their history of this strange matter far more, I will venture to say, than they would differ about the particulars of any ordinary occurrence that really happened. The mate says, that the Qneen and Bergami were sitting on a gun, and that they were supporting each other. In the same page, he says afterwards, they were sitting near the main-mast, the Princess sitting on Bergami's lap. Now, the dif- ference between sitting on a gun and near the mainmast may strike your lordships as not important. I state it, because the mate considers it of importance; therefore, I conceive he has some motives for par- ticularising it; he means to say, I place my accuracy on these details which I give at my peril. Accordingly he says, that when he saw the Queen on Bergami's knees, it was not on a gun, but on a bench near the main-mast; and not one word about kissing do I see in the mate's evidence. He forgets the most important part of the whole; for which reason, your lordships will conclude with me, I think, that he does not confirm the captain. The captain swears differently. He says "I have seen Bergami sitting on a gun, and the Princess sitting on his knees, and that they were kissing." But do they speak of the same thing? Yes, if they are to be believed at all; for the captain says im- QUEEN CAROLINE. 97 mediately after, that the mate saw it as well as himself. The mate, however, never says he saw it; and my learned friends did not dare to ask him if he had ever seen it. The captain says, they saw it toge- ther; yet when the men are brought to give their evidence and they are brought immediately one after the other you see the consequence. They totally differ in their account of the story, and differ in a way clearly to show, that the story cannot be true. Now, what think your lordships of this man's desiring you to believe of his expecting you to believe that he was a man of such strictness of conduct, and his mate so pure a youth, educated in that primitive, antediluvian Garden of Eden, Naples or Messina, that when he saw a lady go near a man, not touching, observe, but leaning over the place where he was re- clined nothing indecorous, nothing improper, nothing even light, but only leaning towards the place where he was reposing he imme- diately desired the innocent youth to go away, because, beside being his mate, and therefore, under his especial care in point of morals, by the relation of master and mate, he was also his distant relation, and therefore, by the ties of blood also, he had upon his conscience a re- sponsibility for the purity of the sights which should pass before his youthful eyes, and therefore he could not allow him to remain for a moment near that part of the ship, where these two individuals were, because they appeared to be approaching towards each other! Per- haps there may be those who believe all this who think it a likely account of the matter. Observe, my lords, he never says that the Queen ordered them to go away, or that any order to that effect came from Bergami. No. The guilty pair never interfered; they were anxious that all the crew should see them; but the virtuous Gargiuolo, reviving in the modern Mediterranean a system of morals far more pure than ever ancient Ocean saw and smiled at, "cheered with the sight," would not suffer his mate to see that which might happen, when two persons, male and female, did not touch, but were only near each other. My lords, there may be those who believe all this I cannot answer for men's belief but this I am sure, that if any one do not believe it, he must believe another thing; namely, that Gar- giuolo the captain, and the mate Paturzo speak that which is not true. There is no way out of this conclusion. Either you must believe that the captain speaks the truth, when he gives this account of his mo- tives or you must believe that it is false, and that it is gratuitously false. But not gratuitous, as it respects his own character. lie means to set himself up by it; to earn his money the better; and, if possible, to impose upon some credulous minds by it. Perhaps he may have succeeded the event will show in making more than that uncertain gain the rate of which a man, when dealing with royalty, always in- creases, and in improving his chance of obtaining the 1300/. for whieh he has come over to this country. My lords, one more statement of these men, and I have done with them. Sec how well drilled they are! I hold them up as models of well trained witnesses; I regard their perfect drilling as a perfect study for those who may practise that art. I present them as highly VOL. i. 9 98 QUEEN CAROLINE. finished specimens of the art in its perfection; and no wonder they are well accomplished; they are the best paid; and therefore they ought to be the choice specimens of that art. Much money has been laid out upon them, and their zeal has been in proportion to the much they have received and the more they expect. See how well they have been trained! But happily there are limits to this art, as there are to all human inventions. If there were not, God pity those who are attacked! God pity the innocent against whom the mighty engine for tutoring witnesses, for manufacturing testimony may be directed! They cannot perfectly get over the disadvantage of not having access to hear the evidence of each other; but see, when art can do it, how well it is done. The master and the mate are evidently descendants, lineal descendants, of the Doctors of Bo- logna. Whether their names are the same, or similar, like those of Harry the Eighth's agent, and the chief Milan Commissioner, I know not. I have not before me the hundred and ten names of the Doctors; but that these are among their lineal descendants, no man can doubt. They are afraid to have it thought for an instant that they ever spoke to one another upon the subject of their evi- dence. Intimate in all other respects; living together in the Magazine of Evidence, the barracks of witnesses, in this neighborhood; sleep- ing in the same room, supping together, breakfasting together, the very morning before they came here, again meeting together the day after the first had been examined and when the second was to come, for any thing I know sleeping together the only subject on which they never talked, in all the intimacy of master and mate, in all the nearness of blood and connection, and entertaining an affection for each other that would do honor to the nearest connection, and which I wish some of the nearest connections, especially of a conjugal kind, had the only subject, I say, upon which they never choose to enter, is the subject of the inquiry which now occupies all other men the only subject on which all other men save themselves alone can converse! My lords, this is not peculiar to these two witnesses, but the way in which they tell it is peculiar, and is not marked on the part of the gallant captain, by the judgment and skill which usually distinguish him. " I am not a person," says he with indignation, " to state what I am obliged to say in this room the subject is of such a nature that it cannot be talked of." What subject? There is nothing so frightful in this subject which you came to support, and which you have witnessed. "No, no; but it would not be decent, it would not be creditable, that I should tell to others all those things which we say in this house, before these gentlemen, these lords." " Did you ever say any thing to the mate upon it?" "Oh, never, never!" " Did you tell Paturzo last night, or this morning, that it would not be fit for you and Paturzo to talk about his examination of yesterday?" "Yes upon this matter." This brings me to say a word or two relative to a circumstance in the character of all these recruits in the Cotton Garden depot. I QUEEN CAROLINE. 99 must say, I think that whatever injury this inquiry may do to the highest and most illustrious persons however pregnant it may be with every thing offensive to morals and to good taste whatever mischiefs to the conduct of social life may arise, for some time to come, from the disgusting details brought forth in the course of this ill-omened proceeding to pollute English society; it must be matter of comfort, that there is one spot on the face of the island, one little land of Goshen, sacred from the squabbles which surround it, free from the neighboring defilement, and that into this retired and pure society, those subjects which offend the delicate, which alarm the ap- prehensions of morality, which go so well nigh to contaminate the morals of all classes of the community elsewhere, never, by any mischance, penetrate; and strange to tell, my lords, that one little spot is neither more nor less than Cotton Garden, in the vicinity of this house, inhabited by all the host of foreign witnesses whose deposi- tions have spread abroad all the impurity that appals the world ! Let no man, then, suppose that the danger is so great as it has been represented ; or that there is any accuracy in the statement, or that there is any ground for the alarm founded upon it, that the whole island is flooded with the indecencies which issued forth from the green bag: for there is at least Cotton Garden, where the most strictly modest matron may go, without feeling that if she carries thither the most chaste virgin, that virgin's face will ever there be suf- fused with a blush; for in that place and amongst the witnesses them- selves amongst the agents of this plot amongst the contrivers of it amongst those who appear before your lordships to give utterance to the abominations of their own fancy amongst them, it turns out, that there is never one whisper heard on any thing even remotely connected with the subject which so much vitiates the mind and de- bases, I will say, the reputation of this country every where else! If your lordships choose to believe this, far be it from me to interrupt an illusion so pleasing, even by giving it that name; for it is delight- ful to have any such spot for the mind to repose upon. If you can believe it do so in God's name! But if you do not believe it, I say, as I said before, you must believe something else; if you do not believe it, you must believe that all the witnesses who have said so, and they are all those who are in that depot, are perjured over and over again. My lords, the course of my observations has now brought me to personages of still greater importance in this case, than either the captain or the mate, although my learned friend, the Solicitor-general, has stated them to be witnesses of infinite importance I mean De- mont and Sacchi; whom I trust I shall be excused for coupling together, united, as they appear to be, between themselves by the closest ties of friendship; resembling eacli other as they do, in all the material particulars of their history, connected at least with the present story; both living under the roof of the Queen, and enjoying her bounty and protection; both reluctantly dismissed; both soliciting to be taken back into place and favor; knit together since by the same ties 100 QUEEN CAROLINE. of country and friendship; living together in great intimacy, both in their native mountains of Switzerland, and afterwards upon their arrival in this country; remaining in this country about the same period of time, and that above twelve months; employing themselves during those twelve months, in the way best adapted to fit them for the business in which they were to be employed, by obtaining access to our best classic writers and attaining a knowledge of onr language, though they modestly brag not of their proficiency in this respect, but choose to avail themselves of the assistance of an interpreter, which has this advantage, that it gives them the opportunity of preparing an answer to the question which they understand while the interpreter all unheeded, is performing his superfluous part of furnishing them with a needless translation. My lords, the other points of resemblance are so many, that I shall not detail them; for your lordships will see them when I come to enter into the particulars of the evidence. But I wish, in the first place, to remind you what sort of a person Mademoiselle Demont describes herself to be; because it signifies very little in comparison what we shall succeed in showing her to be; I had rather take her own account of herself; I cannot wish for more; and I am sure she could give us no less, with any ordinary regard to her own safety; for as to regard of truth, I say nothing about it upon this occasion. She is a person, it seems, of a romantic disposition naturally implant- ed in her mind, and which has been much improved by her inter- course with the world. She is an enemy to marriage, as she says in her letters. She does not like mankind in the abstract and yet "potius arnica omnibus qiiam ullius inimca" I think we may say, from some things which came out afterwards mankind in the abstract she rather objects to; but she makes an exception in favor of such a near friend as Sacchi, whom she dignifies by the title of an Italian gentleman; though he, ungrateful man, to justify her dislike of mankind, will not return the compliment, by acknowledging her to be a countess! But this Italian gentleman, whom she will not acknowledge to be a servant, came over with her. Marriage, she says, she does not like. She loves sweet liberty; and in the pursuit of this "mountain nymph" over her native hills and in this country, your lordships see the sort of company in which she is landed, namely, that of Mr. Sacchi, not to mention Krouse the messenger, who goes over to fetch her, and brings the reluctant fair to appear as a witness upon the present occasion. But far be it from me, my lords, to deny the accomplishments of this person. Very far indeed from me be any such thought. She is the most perfect specimen she is the most finished model of the complete watiing-maid, that I believe the world has ever seen in actual existence. I believe none of the writers of her own country, or of ours which she is now studying, will give a more complete specimen neither Moliere, nor Le Sage, nor our own Congreve or Gibber than that which she has given, without any assistance, in this house. I cannot deny her the greatest readiness of invention; QUEEN CAROLINE. 101 that she is at no loss in writing I cannot dispute; I must admit, too, that she is not at all sterile in her descriptions upon those subjects on which she enters, until she is brought into contrast with her own letters, and until my learned friend Mr. Williams begins his some- what unceremonious, not to say inconvenient, cross-examination. I cannot deny that she possesses a caution which would do honor to the Machiavel of waiting-maids; that she is gifted with great circum- spection; that she possesses infinite nimbleness in devising excuses, and adjusting one part of her evidence with another; that all her shifts and her doublings were well devised, and that if the thing could have been done which it cannot by the eternal laws of truth she would have succeeded in blinding and deluding her hearers. She showed great art in endeavoring to reconcile the stories she had told, with the contents of the letters, which were produced; which letters she had not forgotten, though she did not know that they were still in existence, and ready to be produced against her. Had she been aware of their preservation, and had her patrons been aware of their contents, your lordships would never have seen her face here; just as you have not seen the faces of some seventy other witnesses, whom they dare not call, and whom they have shipped off like so much tainted meat, or useless live lumber, for their native country. Far be it from me, then, to deny the accomplishments of this person! Nor do I deny that she is a great adept at intrigue; which indeed, she picques herself upon. She would never forgive me if I refused her that merit. Her constant practice is to deal in double entcndrcs; her friend Sacchi I crave her pardon, Mr. Sacchi does the same; she in her letters to her sister; and he in his conversation with Mr. Marietti. So that it is impossible for us, and may be very convenient for them, to know what they mean. In short to them may be applied what was said of old of a whole people: " Tribuo illis literas; do multarum artium disciplinam; non adimo scrmonis leporern ingeniorum acumen, dicendi copiavn; deniqtie etiam, si qua sibi alia summit non repugno; testimoniorum religionem ct fidem nunquam ista natio coluit: totins- que hujnsce rei quoe sit vis, quce auctoritas, quod pondus ignorant." I hear her candor praised by some persons, and why? Because she admits she was turned off for a story which proved to be false. I hear her praised too for her other admissions; and what were those? When asked if she was sincere in such and such praises which she bestowed upon her Majesty, she said in some of them she was, but not in all; in a part she was, but not in the whole. "Were you in want of money?" " Never."" Did you never write to your sister, ' I am in want of money?' ' " It may be so; but if I did so it was not true." So there is no connection in rcntm natura, in this per- son's case, between the thing being true and her saying it, nor any opposition in this person's mind, in a thing being downright false- hood, and her saying and writing it. Truly, this is her own account of herself; and yet to my no small astonishment, I have heard her praised for the candor with which she gave this account, by persons of mode- rate capacity. 9* 102 QUEEN CAROLINE. My lords, I need hardly remind you I need hardly remind any person whose capacity is above the meanest I need hardly tell any man who is not fit to be turned out in the fields among those animals whom he sometimes abuses by using I need hardly say to any one above this level, See what is the effect of this! Will it be said " Be it that she uses double entendres, that she tells falsehoods freely to gain her own ends; yet the candor of making these ad- missions, the ingenuousness of youth with which she informs you that she tells falsehoods by wholesale, so that she cannot be depended upon for a word she utters, is a blandishment more seductive than all her personal charms; it binds us to her, though not her personal lovers; and we open our eyes to all her tales because she is so engag- ing a liar, and acknowledges, with so much readiness, that there is not a word of truth in her whole story?" My lords, in any body but a witness you may be pleased with such candor; in any one ex- cept one whose credit depends upon the truth of her story. You may say to any other person, " Poor, dear, innocent Swiss Shepherdess, how ingenuous thy mind!" but to a witness! I never before heard so strange a reason for giving a witness credit as citing the candor with which she admits that she is not to be believed. My lords, look at her letters look at her explanations of them. I will not go through them in detail; but I will tell you and the more you look at them, the more you will be convinced of this truth that her explanations of them are impossible that the double entendres do not fit that the interpretations she gives do not tally with what appears in black and white. Her gloss does not suit her text the two are totally inconsistent; and the clear contents of the four corners of the document show that what she stated on her oath is untrue. The letters themselves want nothing to make them per- fectly intelligible. But her key does not fit her cypher. The matter only becomes doubtful as she envelopes it in falsehood, by the inven- tions of the moment, by her extempore endeavors to get rid of the indisputable meaning of the words in her own hand-writing. My lords, a plain man knows how to deal with these things. He does not entangle himself in the miserable webs which this dirty working creature attempts to throw around him; he goes straight on, if he be a wise and an honest man, to see justice done to the object of a perjur- ed conspiracy; he goes straight through, and believes those, and those only, who show themselves to be worthy of credit; and I pray to God, that your lordships may so believe, and not stand an exception, a solitary exception, to the conduct of all the rest of mankind! I hope your lordships will believe this woman to have been sincere, when she says that the Queen was good and innocent; that she then spoke the language of her heart in the eloquence of her feelings, and has only since been corrupted, when, upon a refusal to take her back into that service where she had never received aught but favor and kindness, she has fallen into the hands of the other conspirators against the honor of her illustrious mistress. I forgot, my lords, in admitting the qualities of this female, to QUEEN CAROLINE. 103 make another concession. She is kindly attached to her own sister. She loves her with a sincere affection. She tells you so. Her prin- ciple in her conduct upon this occasion, if she is believed, is anxiety for her service and interest. Now, I do not believe the story which follows; and it is not I who am calumniating Demont, because I am taking her own account of herself, which I do not believe. Mine is a plain story. She represents herself as affectionate towards that sister, heartily attached to her interest, only anxious to promote it her sister just coming into the world at the innocent age af fifteen and that she does all she can to obtain a place for that sister in a house which, if you believe a tittle of what she told you, ought to have the name, not of a palace, as the Attorney-general says, but of a brothel. She has two sisters, indeed, and she is equally attached to both. She describes the letter as written immediately after leaving those scenes, immediately after having been unwillingly turned out of this brothel unwilling to leave it she says she was, although she admits that (differing from her sisters in that respect) she was rich and they were poor, and was therefore under no necessity of submit- ting to that contamination, which no necessity ought to induce an honest woman to endure. But though she was under no necessity, the honest Swiss chamber-maid balances the profits of her place against its disgrace; acting upon the principle of the Roman emperor, who, so that he raised a tax, was not over anxious as to the materials from which the filthy imposition was obtained. Though she admits that the house is worse than an ordinary brothel, and avows that she loves her sisters, the elder as well as the younger, she is occupied for six months after she leaves it, first, in endeavoring to obtain for the virgin of fifeen a place in order to initiate her there; and next, to keep the maturer girl of seventeen in possession of so comfortable and so creditable a situation. Such is Demont by her own account! I do not believe her so bad I believe no woman so bad as she now finds it necessary to tell you she is, because, unexpectedly, we bring out her own hand-writing against her. I believe every word of her letter to be sincere. I believe she did right and well in wishing to retain her own place, to keep one sister there, and then to obtain em- ployment for another; but I also believe, that having been driven from thence, and disappointed in her hopes of being taken back, she invented the story she has now told, not knowing that these letters were in existence and would be brought in evidence against her. But she was sworn in Lincoln's-Inn Fields before she knew of these letters being in existence. Had she known of this fact, I have no doubt she would rather have foregone all the advantages she has reaped, from coming forward as a leading witness in the plot against the Queen, than have made her apperaance at your lordships' bar. So much for this lady. I now come to that amiable gentleman, Mr. Sacchi. And 1 observe, rny lords, with great satisfaction, a most pleasing symptom of liberality in the present times, as exhibited in the liberal reception which this witness has met with among your lordships, and in the pains which have been taken, both by those 104 QUEEN CAROLINE. who produced him, and those who afterwards examined him, to in crease the estimation in which it was wished that he should be held. It shows how the age is improving. It shows how fast vulgar pre- judices against Buonaparte and the French nation are wearing away. I well remember the time when nobody would have been very well pleased to bring forward as a principal witness in a case of any kind, a man whose recommendation was, that he had been a soldier of Buonaparte, that he had served in any of his campaigns, and had been promoted by the Corsican adventurer, the daring usurper, the unprin- cipled revolutionary chief, as it was the fashion so lavishly to call him. Nevertheless, now that a witness against the Queen has this merit to boast of, it is brought forward, as if we had never heard anything, as if we had never been sickened by whole volumes of abuse which had been poured forth, for the purpose of showing, that the very name of a French hussar, particularly if he happened to be a servant of Buonaparte, was exactly the name for everything most profligate and abandoned. Now, my lords, without having ever been one of those who approved of the excess to which this abuse was carried, on the part of ourselves and of our neighbors, I never- theless cannot help thinking, that a cast-off servant, a courier who pretends to be a gentleman, and now has his servant to wait upon him, and who says, " Thank God, I was always in easy circumstan- ces," though he was once living on the wages of a common courier; who can only say, that he was a common soldier in the French army, and was refused a- commission in the Swiss army, but was offered the place of a sergeant would, a few years ago, have stood very little chance of mending his credit by this last adjunct. But this is my least objection to Sacchi. I must, indeed, be allowed to say, that the fact of such men having bravery enough to induce their masters to give them a pair of colors, is not the best positive proof of their being the most sincere and the most scrupulous of mankind. But look, my lords, at the account you have of him from himself. He, too, deals in double entendres. He has gone by three whole names and a diminutive two of them we know, and the third we do not know; but by three names and a half has he gone. When he came to this country he began his double entendres as soon as he came in contact with his beloved Demont. He told two double entendres if I may use four syllables instead of the shorter Saxon word. For if men will do this frequently and continually if they will do it for a great object they get into the habit of doing it for no object, but mere sport and playfulness. He tells first this double entendre, " that he had come in the service of a Spanish family." Then he tells another, that " he had a law-suit," we have never heard what that was, nor anything more about it that he came over in consequence of "a law-suit, a process with her Royal Highness." How, then, did he get into the situation in which he is now living with his own servant, seeing that he was so sorry at being turned away from the service of the Queen, where he was first employed at the lowest wages of a courier, and afterwards as a poor equerry? My QUEEN CAROLINE. 105 lords, you must believe that he lias got money nobody knows whence, or you must disbelieve his story altogether. But there is another similarity between Sacchi and Demont. He is asked, " How much money had you in your name at your banker's at Lausanne?" He answers, " Fifty louis." " Will you swear that you had not more than that at one time at that banker's?" " I had no more than those fifty louis." " Will you swear you never had a credit which empowered you to draw upon that banker for a larger sum than this?" " I never dad." " Have you never represented that you had a [arger sum or a greater credit?" " I do not remember to have said." Suppose any of your lordships were asked to speak to a fact, and were to say " Positively not," "most certainly not," " I know it is not so," nobody would dare to put the next question to you at least I know very few of your lordships to whom they dare to put it " Did you ever say so?" It could only be put to any one of your lordships in joke, or in consequence of the greatest familiarity subsisting between the parties; for you had answered substantially that question before. If you area man to be be- lieved on your oath, have you not answered the question whether you ever told any person you had more at your banker's by saying you know you had no more at your banker's? If you had no more at your banker's you never could have said that you had more; for if you had, you would have been guilty of what Sacchi calls a double entendre. But not so with Sacchi, or whatever his names, great or small may be " I may have done so; I cannot swear when I am in doubt." The same as to his letters. He was asked, " Did you ever represent to any person, after you had left the service of Her Royal Highness, that you were in a destitute condi- tion?" " Never." " Did you ever entreat any person of Her Royal Highness's household to have compassion on your dreadful situation, after you had left Her Royal Highness?" " I have never been in a dreadful situation." " Did you ever represent," there I was stopped " Did you ever say," but he had heard all the argument about representing ' Did you ever say to any person that your conduct towards Her Royal Highness was liable to the charge of ingratitude with respect to a generous benefactor?" "Never." "Will you swear that you never intreatcd any one of the suite of Her Royal Highness, after you had left her service, to take compassion on your situation?" " It may be." " Is that your hand-writing?" a letter being put into his hands " It is." " Is that your hand-writing?" another letter being put into his hands " It is." Now, in these letters he has taxed himself with ingratitude in the plainest words. Luckily, he had forgotten those letters. Would any of your lordships shelter yourselves under such a despicable pretext as to say, " Oh! I did not say it, I wrote it?" Litera scriplu ma net Your lordships shall sec the letters. But you will recollect what passed afterwards; for I now come to a providential accident, if I may employ such contradictory terms, in compliance with the common use of them; I now come to an accident, but which I call an interposition in favor of innocence, which is 106 QUEEN CAROLINE. always the care of Providence. Sacchi was asked by my learned friend, the Attorney-General, " You have stated, that when you came to this country, you assumed the name of Milani; what was the reason why you assumed that name?" To which he answered, " I took this name on account of the tumult (tumulto) which had taken place, and of the danger I should have run if I had come under my own name, knowing that I should have been known." "When was it that you 'assumed the name by which you now go?" " It was immediately after the affair that happened at Dover." Now, luckily, he had forgotten the date; happily he did not recollect, that he came over to this country in July in the year 1819, and that the tumult at Dover happened in July 1S20. These, my lords, are the providential circumstances by which conspiracies are detected; and but for which, every one of you may be their victims to-morrow. Now, I call upon your lordships to see how the witness gets out of this. After a short interval in the examination, you will find in page 459 of the printed minutes, that which I will read for .the sake of connection; and I do it the more freely, because it is the last quotation with which I shall trouble you from this evidence. In answer to a question put to him by the Attorney-general, Sacchi says, " I took this name on account of the tumult which had taken place, and of the danger I should have run if I had come under my own name, knowing that I should have been known." " When did you assume the name by which you now go?" Then he instantly recollects " It was immediately after the affair that happened at Dover." The name he now goes by, he assumed since the affair at Dover; the name of Milani he assumed a year before at Paris. My learned friend the Attorney-general, leaves him there, concluding, from his experience of these matters, that he would only make bad worse by going on. But one of your lordships took it up; and if there ever was a specimen of shifting and beating about the bush, to shelter a mortal from an un- lucky scrape arising out of a false tale, here you had it. The man- ner in which it was all spoken the confusion, the embarrassment, the perplexity I cannot represent. I trust your lordships remember it. But enough remains upon the record, and by that I should be willing to try the credit of Sacchi as a witness. " Had you ever gone by the name of Milani before you came to England?" " I took this name in Paris." " At what time, in what year, did you take that name in Paris?" " Four or five days before I set out for England." "When was that?" " In the month of July last year."" What was your motive for taking that name at that time in Paris?" " As I knew that I was known in London by my own name, I endeavored to shelter myself against any inconvenience that might happen to me." Not a word about what had happened to others! " What tumult had happened at that time that induced you to take that name?" There is no more getting him out of the potential mood into the past tense, than there is getting him out of knavery into honesty. " What tumult had happened at that time that induced you to take that name?" " I was warned that the witnesses against the Queen might run some risk if they were known" forgetting or wish- QUEEN CAROLINE. 107 ing to slur over, that he had used the word *' had," and wishing to substitute in its stead another tense. " Had you been informed that they had actually run any risk?" " They had not run any risk then." Then what was the "tumult" which he had spoken of be- fore? The most favorable opportunity is then given him which an honest witness could possibly desire, of correcting himself, and of explaining the whole tact an opportunity which counsel might not have been disposed to allow, but which the house very properly gave him. The former questions and answers are read over to the witness, and he is desired to reconcile and explain them. But, with all those advantages, observe, my lords, the lameness of the pace at which he hobbles off; for on the manner of doing a thing as much may depend as upon the thing done. The former question and answer being read from the minutes, he is asked this question. " Having stated in a former answer that you changed your name to that of Milani in con- sequence of a tumult that had happened, what did you mean by that statement?" " Whilst 1 was at Paris a gentleman came, accompanied by the courier Krouse" who had been named before " and the only time I saw him; and he" not Krouse, who might have been called, but the gentleman who is not named u he told me that it would be necessary to change my name" a kind man, though unknown; more kind than many we know better " because it would be dangerous to come to England under my own name, as I had told him" and these are inventions after the first part of the sentence " had told him I was known in England under my own name; and that already something had happened on this account; not on my account, but on account of other people." " Did he tell you that a tumult had taken place?" now he is obliged to say something about a tumult, being led to it by the reading of the question. " He told me some tumult, some disorder." " On what occasion did he say that tumult had taken place?" " He told me nothing else." " You are under- stood to say it was with respect to other persons; what did you mean by other persons?" " He meant to say that some disorder had already happened, in regard to other persons for similar causes." " What do you mean by similar causes." Now, I never saw a wit- ness who was brought into a corner by such a question, who did not answer as this man has done " I have repeated what that gentleman told me." " Did you understand that it was with respect to wit- nesses who had come to give evidence in respect to the Queen?" " I believe it was for this object." < Did you know that any witnesses had at that time come over to give evidence in the cause of the Queen." " I did not know with certainty, but in the same way I was coming I might imagine" the potential mood again " that some other peo- ple might have already come." And there I leave him. I do not deny th;it he might imagine this or any thing else. I do not deny that oihur persons might have come as he was coming. I admit it to be possible. Bui what I deny is, that any person could have told him that which he says he was told. That he may have invented all this here, when he was pressed from an unexpected quarter, I 108 QUEEN CAROLINE. readily admit to be possible; but that an unknown gentleman should have accompanied the well-known Krouse to Paris, should have told him a pure fiction of the brain, which no man could have dreamt of a year age, is as utterly impossible as that a man should by chance have written the Iliad. My lords, only see how this stands; for I am afraid you do not feel it with the force which belongs to it. We now all talk of the tumult at Dover, and the risk to which the witnesses were exposed, with familiarity, because they are matters of notoriety. But carry yourselves back to July 1819 Who of us all, even in his most fanciful mood, ever dreamt of any one part of that scene which has taken place any part of what we know, or of those consequences which we shall unfortunately never live not to know, have followed from these proceedings a tumult in conse- quence of the arrival of flocks of witnesses coming, and those regu- larly insulted, because witnesses in the Queen's cause? All this is mighty familiar with us now. But go back, my lords, I say, to July 1819. Would any man then have suspected it? I say it was an invention by the witness, to cover his retreat from the position into which he had been unwarily entrapped; and that in the month of July 1819, no man ever told him, or could have ever told him, that any tu- mult had taken place, or that any witnesses had been exposed to insult. My lords, it is only by comparisons like these that perjury can be detected, and conspiracies defeated. And this leads me to remark, that if you defeat a conspiracy by showing perjury, or untrue swearing and prevarication, on points however collateral or trifling, there is an end of the credit due to the witness, and a failure of the proof of the conspiracy on the main points, though you should have left them un- touched, which, however, is not the case here. But with respect to the witness Sacchi, I may as well now mention that part of the story which he and Rastelli, a turned-off courier like himself, had agreed in trumping up; because, however disgusting, however offensive, the slightest allusion to it, or the recollection of it, may be, I am sure your lordships will see that I cannot avoid reference to it, and comment upon it. Do your lordships think it very likely that any woman I might almost say any miserable person who gained her livelihood by prostitution would do that thing openly, in the face of day, with a menial servant four yards from her, without the slightest covering or screen, which Rastelli tells you the Queen did openly, in the neigh- borhood of the Villa d'Este? Do you believe that with the knowledge that a courier was travelling on one side of the carriage, with the cer- tainty that if surprised asleep, that courier might open the curtain, (for his story is, that he always did so,) do you believe that, with the ruin staring her in the face to which such a discovery would expose her by blasting her character even amongst the most abandoned of her sex any living person would go to sleep in the position described by Sacchi as that in which the Queen and her chamberlain were found by him in the morning asleep in the carriage? But your lorships' credulity must be stretched yet many degrees; for if you should have expanded it so, as to take in the belief, that such a thing happened once, it will be no- QUEEN CAROLINE 109 thing compared with what Sacchi has occasion for, in order to be credited; you must stretch your credulity yet many degrees wider, in crder to believe his story and if you do not believe the whole, you can believe no part of it. Tin's, he said, was the habitual, constant practice it happened again and again and he himself saw the self- same thing several times. I appeal to your lordships Is this probable? Is it in the common course of things, even with the most profligate and abandoned women, the women who are a disgrace to their sex? I say, unless yon believe the parlies to be absolutely insane, there is no accounting for such conduct. My lords, there is an impossibility, I think, physically, in the story which Sacchi tells, at a time when the carriage was going at the rate of nine or ten miles an hour, over such roads as we know are found in that part of Italy, with two hands placed across each other, while the parties are fast asleep, and without any power over their limbs. To overcome this difficulty would, I think, have required the testimony of philosophers who had made experiments. And yet we are called upon to believe this on the evidence of Sacchi, such as he has described himself to be, but who has given you no other description of the car- riage, except that there were curtains to it. What if it be an English carriage, with glasses and spring blinds! What, if I show your lord- ships, by evidence, that it was an English carriage, furnished with glasses and with spring blinds? And even if the glass were down, which is not very likely in the night, how was he to open the curtain without putting his hand in to touch the spring, which lie does not say that he did? What if I should prove that Sacchi was not the courier who went that journey, but that it was another courier, of whom you shall hear more. But I contend that it is unnecessary for rne to prove this. I deny that I am called upon to prove this. The opposite side had plenty of witnesses to establish their case, if established it could have been. They had abundance of cast-off servants; and if cast-off servants would not answer their purpose, they had the servants now in the employment of Her Majesty. Now, why did they not call them? Again and again let me entreat of your lordships never to lose sight of this fact for it is a main, if not the cardinal point in this case the accuser is not ever, or upon any account, to be excused from making out his case. He has no right to put it upon the accused to call witnesses to prove herself innocent, seeing that it is the business of the accuser, by good evidence, whenccsoever it may be drawn, to prove the guilt. But was there any other person in the carriage while this scene was going on? " Non mi ricordo" was the answer of Sacchi, adopting the well-known language of the justly celebrated Majocchi. Now ob- serve, my lords, the caution of this answer. That question did not come upon him by surprise. " I shall be asked," thought ho, " whe- ther there was any body else in the carriage. If I say ihcre was any body there, nobody will believe it to have happened. If I say nobody was there, and it turns out that somebody was there, this will destroy my testimony, and therefore I must say, I do not remember." But VOL. I. 10 110 QUEEN CAROLINE. he shall not stay there. In that lurking-place he shall not abide. I will drag him out. The first remark naturally would be " This could not have taken place when any person was by; there must have been nobody else there." My lords, there ivas somebody else there, as I will prove to your lordships, during the whole of the journey. In the next place, after a person has witnessed such a scene as this, and that person a servant, is it very likely that, from that moment for- ward, his lips should be hermetically sealed? that he should never dream of confiding it to the easy ear, the willing ear, of his tender and gentle and soft friend Demont? That he should enjoy the intimate and delightful intercourse of her society for months, both abroad and in this country, without talking of this, from a delicacy, I have no doubt, in their intercourse, far above that of all other pairs? He was aware that some had split upon a rock by saying that they had never told their story to any one until they told it at Milan boatmen, ma- sons, carvers, gilders, waiters all the witnesses brought from Lom- bardy. But he did not' choose to say so. He had, by your lordships' kind permission, seen the evidence taken at your bar, and had studied it, knowing, as he does, the English language. He did not, therefore, choose to say, " I had told it to no one," but thought it more safe to say, " I had told it to people, though I cannot name one of them now." I say if it is clear, that such a thing could not pass and be seen without the eye-witness telling it again, it is just as clear, that the eye-witness could not tell it again, without well recollecting to whom he had so told it. My lords, as to the witness Kress and her story at Carlsrnhe, I have only to add, that it is physically impossible it could have happened, inasmuch as she says she well remembers it was after the first night they arrived at the inn. She remembers that by the circumstance of her having been called in one morning at breakfast [At this stage of the speech the house adjourned, and next day, (October 4th) Mr. Brougham, resumed.] How comes it to pass, my lords, that with no want of care in the preparation of this case; with the greatest display of skill and ma- nagement in all the parts of the preparation; with boundless resources of all sorts, to bring these faculties into play; there yet should be one deficiency so remarkable, that even upon the names of the wit- nesses being pronounced, it must strike every observer I mean, the total want of balance between the different countries from which the evidence is brought, and the unfairness shown towards some great nations, contrasted so manifestly with the infinite attention paid to others; so that while the Italian States, from the greatest to the petti- est, are represented on the present occasion by numberless deputies, I will not say of all ranks but of all ranks below the lowest of the middle orders when you come across the Alps, you find Swit- zerland, the whole Helvetic League, appearing in the person of a single nyrnph, and the whole circle of the Germanic Empire, embo- died in the personage of one waiting-maid at an inn that from Vienna, the capital of the whole country, nobody appears at all that QUEEN CAROLINE. Ill from none of the other resting places of Her Majesty, in her tour through her native land, docs a single delegate arrive lhat from none of her abiding places there, least of all from the spot of her nativity, where she was best known, is one deputy to be seen and that, in fact every thing on this side the Alps is to be found in the person of one chamber-maid, or cellar-maid, or assistant to the cellar-man or drawer for in grave quarters doubts were raised in which of these capacities this Germanic representative was to be regarded. But, whatever doubt we might entertain as to her quality, with respect to her number there is no doubt; she is assuredly the one, single, indi- vidual person from that portion of the world, and save and except the Swiss maid, she is the one single individual of all the company who is not Italian. I beg your lordships' pardon, there are two grand exceptions, but they are my witnesses, not my learned friend's, and I reserve them to open my case withal. My lords, I now come to call your attention to this single German individual who appears before you, in proceeding to deal with whom, I was kindly interrupted by the attention of your lordships to the convenience of the parties yesterday. And here, as upon former occasions, I find myself obliged to have recourse to the witness her- self, for the description of her own qualifications. She knows them best; she cannot be said to bear an unfavorable testimony, for except- ing always the single instance of the Queen as shown forth against her here, there never yet was known any person extremely anxious to fabricate evidence against herself. Now Kress, to take her from her earlier years, appears by her own account to have embraced at the tenderest age the reputable, the unsuspicious, the unexposed office of a chamber-maid at a little German inn. If your lordships will calculate from the number of years which she mentions back to the time to which her evidence applies, you will find she was just turned of thirteen years when she first became such a chamber-maid at the inn where she was afterwards found. The other places in which she served, it is not quite so easy to discover; but still there is no very great difficulty, and any little impediment in the way of our research into this part of her history is removed by a little attention to what the object is of the person who alone creates that difficulty, and to the motives with which it is thrown in our way. I make Kress herself her own biographer; for she tells you she was in other places what places? Mr. So and So. " Mr. Marwey what was he?" " I was as his servant." She tries to sink, until pressed, what the particular occupation of the master was, and what the particu- lar capacity of herself in his service; and then it comes out that in all the instances, without one exception, in which she had a place, unless when employed in the laundry of the palace of Baden, she was in all those cases in an inn, and in no other kind of house. However often she may have changed her service, she never has changed her station. My lords, she lets us a little more into her history afterwards, nnd into the nature of her pretensions to credit before your lordships. 112 QUEEN CAROLINE. First, we find in what manner she was induced to give her evidence; and I do intreat your attention to it, because it shows, that if there be any want of witnesses here, particularly from Germany, it is from no lack of agency on the part of those who were preparing the case against the Queen; for the agents in Germany are found in their accustomed number, with their usual activity, and with the full command of their ordinary resources. And I must say, that reflect- ing upon the Milan Commission as an Englishman, and recollecting that the German agents are not our countrymen, I feel some satisfac- tion that there was a greater degree of impropriety shown in the conduct of the German agents than we have ever imputed to any one beyond the Alps. I introduce to your lordships fearlessly, in support of this proposition, Baron Grimm, the minister of Wurtemberg, the throne of which has been long filled by the Princess Royal of Eng- land. But I trace his connection with the parties in this prosecution. He and a person named Reden, (which Reden succeeded Baron Ompteda in his mission to Rome, where he dared to treat the con- sort of his royal master his own Queen as well as she is your lord- ships' with insults that made it impossible for her to remain on the spot, even if the defence of her honor had not imperiously called her hither) Grimm and Reden, and another whose name does not occur to me, but who is also a minister of the Grand Duke, at the place where the scene is alleged to have taken place, were the active and the unscrupulous agents in the part of the plot against Her Majesty. The worthy Baron Grimm, in the zeal which he shows for his employers, I have no hesitation in saying, has scrupled not to throw faraway from him all those feelings of decorum, which a man may not dismiss, even in the most ordinary occasions of private life. It seems, however, that in affairs of diplomacy, things may be justifiable in a minister which would disgradfe a private individual that conduct may earn him the applause of his employers which would call down upon his head the reprobation of every honest man in private life that actions may cover him with rewards, which he falsely calls honors, that would dishonor and disgrace him, had he been only acting in his individual capacity. My lords, I say, Baron Grirnm did that which would have inevitably worked this destruction to his character if he had not been a diplomatic agent to whom I presume, all things are lawful. Baron Grimm was living in certain apartments they were his own by occupation. He heard that the Queen was about to arrive he artfully gave them up. He accomodated Her Royal Highness with the use of those rooms. He kindly left the principal apartment, and disinterestedly encountered the inconvenience of a change to other and worse lodgings. Fie courteously gave her the use of those from which he had himself departed; and, as soon as Her Royal Highness departed from the rooms on the very day that she left them he returned again to the same rooms, and was found with another coadjutor in this plot, running up and down to use Barbara Kress's expression, "running about the rooms," examining every- QUEEN CAROLINE. 113 thing, looking at the furniture, prying into the beds, taking note of what had passed, that he might report to those who he thought would be pleased to find that lie had gone upon such errands, but who I know and feel were above sending him upon such a dirty mission, lint in one character he does not appear. Active as this agent every where is in the vile office of a runner of the conspiracy; sedulous and unscrupulous in his observations as he has been; regard- less of his own dignity, and forgetful of that of the sovereign whom he represents, as he has proved himself to be he neverthelsss does not condescend to make himself a witness. He does not adventure to come forward here; he does not show the same boldness to face your lordships and us, which he showed to face the reprobation of the public in his own country, and wherever else his conduct should be criticised. Here the baron is not forthcoming here he is not to be found yet here he was a material witness, material in propor- tion to the importance of the matters which Barbara Kress alone has been brought into this country to swear to; of paramount im- portance, because Kress is the only witness who is brought to swear to any one of those particulars which are said to have passed at Carlsruhe; of still greater importance, when your lordships reflect, that because he entered the room at the moment the Queen left it, he must have been able, if Kress spoke the truth, to give confirmation to her statement. The Baron is, however, absent and the only wit- ness that could be obtained by all the skill, the industry, and the zeal of the several agents, to speak to the extraordinary fact, is this single German chamber-maid. Let us then pursue the history of the only witness whom, with all the means in their possession, and so little scrupulousness in using them, these agents have been able to gather from all Germany. Look, my lords, at the contradictory account the woman gives of her motives for coming over to this country. She twice over swore that she came upon compulsion that she only came because she was forced and you no sooner turn the page than you find that she made a bargain for compensation for the loss of time; but she was never pro- mised anything no recompense nothingof the kind \\Qbelohnung, only an entschcldigung^ it was said while she was examined, and said by those who were examining her: but she would not say so, she would not adopt the expression tendered her; though offered to her, she would not take it into her mouth, but she said she came by compulsion, ytt at the same time confessed that she had bargained for recompense. But what had she reason to expect without any express bargain being made? What reason had she to expect recom- pense? And with what liberality had she ground to hope it would be meted out to her? She shall again tell the story which she told however reluctantly. None of your lordships can forget with what reluctance she let it be wrung from her; but, happily, still it was wrung from her. Your lordships will find the part of the examina- tion I allude to in page 193 of the printed minutes. She was asked, whether she had ever been examined before, and she answered, she 10* 114 QUEEN CAROLINE. had been at Hanover. The examination then proceeded thus: " What did you get for going to Hanover?" "I received a small payment, just for the time I had lost." " How much was that payment?" " I cannot exactly tell; it was little, very little." Now this I pledge myself to the accuracy of " little, very little," those are her words at page 193. Why then, it was said, the less it was, the more easily it may be remembered; but it subsequently turned out, that it was not because the reward was so little, but because it was so great, that she could not recollect it. " It was little, very little." Very little! What was this mere nothing? What, my lords, if it was a larger sum by five or six times than her yearly wages? What, if it was a larger sum by ten times than her yearly wages? What, if this little, this mere nothing, was even greater than her yearly wages, including all the perquisites of her place? What, if added to the sum she got for ano- ther trip to be examined at Frankfort she having been absent from her home six days on one trip, and four or five on the other what if for one fortnight of a year, taking the going and returning into the account, this "very little," this mere nothing, which she cannot recol- lect, which she dismissed from her memory, and cannot now recall, because it was so little, turns out to be about double the sum, at all events more than half as much again, as she ever received, wages, perquisites, incidents included, in any one year, in her occupation of chambermaid! Now, my lords, will any man of plain ordinary un- derstanding and capacity, even if he has not been accustomed to sift evidence even if this were the first time he was ever called upon thus to exercise his faculties pretend to say that he can believe this woman, in her attempt to deny receiving any thing in her failure in the attempt to recollect what it was, because it was so little a sum, when it was a sum that must have made an impression upon her mind, not only sufficient to prevent forgetfulness of it, not only (if she spoke truth voluntarily and honestly) to make her have no doubt iti her mind of the amount, and no difficulty in telling it; but what is equally of importance for your lordships' consideration to make that part of her evidence be pronounced false also, in which she says she expects no reward in future; when here you see, that her expectations for the future must be measured by her recollection of the liberality with which she has been treated during the past? My lords, you will find that the same equivocating spirit pursues this witness through the details of the case. The way in which she describes herself to have left the room where she pretends to have witnessed one particular scene, in order to go to the Countess of Oldi's chamber her way of denying when examined, whether she went there to satisfy herself that the person she had seen, or thought she had seen, was the Princess clearly shows your lordships, that she did not go to Madame Oldi's room for such a purpose, if she ever went at all; for, in answer to one of the questions put to her, as to the pur- pose of her going to Madame Oldi's room, and whether it was not to assure herself as to whom she had seen in the other room, she says, " I saw it was the Princess," which had nothing to do with the ques- QUEEN CAROLINE. 115 lion as to the purpose of her going to Madame Oldi's room, if the other account she gives were true, that she had no such motive in going to Madame Oldi's room, which was not an immaterial point; for it was necessary that she should negative any such reason for going to that room, as otherwise she could not prove that she had certainly seen the Queen in the other room AW constat that the Queen was in that room, because Madame Oldi was not the only other woman in the house. It does not prove it was the Queen because Madame Oldi was in that room; but still the witness having gone thither with the intention of ascertaining if Madame Oldi was there, was a complete proof, that she was not satisfied of the person she had seen being the person whom it was her interest and her well-paid employment to come forward here for her employers in this conspiracy, and swear she had seen. I have mentioned to your lordships, that in the Carls- ruhe case the ambassador Grimm does not come forward, with others who might have been brought others, belonging to the place others, belonging to the Queen's suite to the absence of whom the observa- tion I had the honor of making yesterday, and which I may have occasion to repeat afterwards, at present most strongly and most unde- niably' applies. But now, my lords, we must again cross the Alps in pursuing the history of these witnesses. And there we find, that having dismissed all the principal performers in this piece, those who remain are mere make-weights thrown in to give color and consistency to the fanciful picture, and to all of whom are applicable the general observations upon such testimony, which I had the honor of submitting to your lordships yesterday. Nothing, I think, can strike any one as being more inconceivable, than that what all these witnesses swear to have seen take place, should have been disclosed to mortal eyes by either of the parties to whom the depositions apply. The character and na- ture of those witnesses of the lowest class of society of the meanest appearance in every respect of the humblest occupations, some of them even degrading ones, after all the pains taken to render them produceable witnesses the total failure to clothe them with any the least appearance even of ordinary respectability all this must have forcibly struck every person who saw but a single one of them here. I might remind your lordships of Guggiari, one of the boatmen em- ployed on the Lake of ('omo, one of a boat's crew of eleven all of whom were present at the time, none of whom had any intercourse of a confidential nature with either of the parties if we are to talk of two parties here, as the accusation compels me to do, contrary to all truth, and without any proof on the part of the Bill. The impossibility of conceiving that any individuals in their ordinary senses, and pos- sessing their common understandings, would have allowed such things to have passed before eleven men ol this description, and all strangers to them, must have struck every one who heard the evidence given, and have dispensed with the necessity, and almost excluded me from the duty of cross-examining a single one of this swarm of petty wit- nesses, who were filling up the gap between Kress and Demout. Why 116 QUEEN CAROLINE. were none of the others called none of the crew? Did Guarsiariever oo tell to any person what he had seen? Had he ever from that moment to the present time whispered it to one living ear? Yes, once. When? Where? At Milan to the Commission. So it is with all the rest. Rastelli, who swears to a scene too disgusting to be gone over in detail who swears to that abomination having been impudently practised in the open face of day, without the most ordinary covering or shelter, whilst he was at four paces distance, and where the turn of his head might have revealed it to him this Rastelli, like all the rest, (for it is an observation that applies to every one of the witnesses of these strange abominations, as if the relation between cause and effect in this singular case was wholly suspended,) had never opened his mouth on the subject his lips were hermetically sealed, never to be opened again, until he appeared before the Commission at Milan. Ten long months elapse the same silence! Was he living the life of a hermit all these ten months? Did he, like a solitary recluse, never see mortal face, nor approach human ear? Was there no brother sister, friend, man, woman, or child, to whom he could whisper it? To child, perhaps, profligate as I have no doubt he is, he might refrain from reve iling it; but to brother, to mistress, to wife, he might have communicated it to boatmen, who have been, as I know, the means of corrupting not a few of those whom they have attended, for they have confessed that they have got into the way of telling stories which had not a shadow of foundation, because their passengers had got into the way of paying them for being amused with those details by way of gossip not one whisper ever escapes the lips of Rastelli, or of the other witnesses, with respect to the sights they had seen. Is it, my lords, the effect of seeing such sights to make men silent? Is it the effect of seeing such sights to make men even in the higher ranks of society, silent? How many are there of your lordships, who have not had long official habits whose lips are not under the regulation which such experience is calculated to inflict whose whole movements of mind and body are not disciplined and squared according to the rules of a court, so as even to enact the courtier when none are present how many are there, even of your lordships, who would not in your natural state instantly have revealed it to some friend or other? But my lords, I profess I can name none in private society I can hardly name any gentleman, however prudent and discreet in his conversa- tion, who not being intrusted confidentially, who only seeing what the party showed they evidently did not mean to be concealed, who under no seal of secrecy became acquainted with the fact, that would not necessarily, on witnessing so strange a sight, have made those wiser for talking with him whom he might afterwards chance to converse withal. Yet these low people, so different from persons in the upper ranks of life, are so much more discreet, so infinitely more upon their guard at all times and seasons, so incomparably more delicate in their conversation, talk only to persons of purity whose ears would be con- taminated, and whose cheeks would be crimsoned by the repetition of these details; for in no one case does any of the witnesses pretend to QUEEN CAROLINE. 117 say, that he had ever told a living being of those strange and abomi- nable sights which he had just witnessed. Were they sights of every day's occurrence'? Was the Princess of Wales kissing her servant openly, and without drawing the curtains, a thing that happened on the lake of Coino as often as the wind blew over it? Was the Prin- cess riding with her servants in a carriage, in an attitude of foul inde- cency not to be named without a blush, an occurrence which happened every day? My lords, my lords, the sight said to have been witnessed was so strange, so unheard-of, so frightful, so monstrous, so porten- tous, that no person could have beheld it and kept it to himself for a single day. But days, weeks, months, passed away, and then it was told for the first time before the Milan Commission! It was then, for the first time, that the lips of those persons were unsealed! But I will not admit, that they concealed this extraordinary tiling for weeks or days, or even hours. They may indeed perchance have concealed it, from the instant that they invented it, upon hearing on their journey to Milan, that their predecessors had been well, paid for lesser slanders; they perchance may have kept it to themselves lest they should have covered themselves with infamy among those who knew it to be alia falsehood among their neighbors they may have concealed the vile fiction but they kept it secret no longer than the journey to Milan demanded; and in no case, will I venture to say, was it kept longer in their breasts than from the time it first crossed their imagination to the time they went and earned, by telling it, the reward of their per- jury. But, my lords, you will see that in this instance we have no variety. There is, in this respect, a general sameness in the conduct of these witnesses. In other instances there are variations of importance. Do your lordships recollect Pietro Cucchi, the waiter from Trieste? Can any man who saw him have forgotten him? Does he not rise before you the instant I mention his name unless any of your lordships should recollect the face, the never-to-be-forgotten expression of face, although the name may have escaped you? Do your lordships recol- lect that unmatched physiognomy those gloating eyes that sniffing nose that lecherous mouth with which the wretcli stood here to detail the impurities which he had invented, to repeat the falsehood to which he had previously sworn at Milan? Do you recollect the unparalleled eye of that hoary pander from Trieste? Did lie not look, as the great poet of Italy describes the hoary unnatural lecher in the infernal regions to have looked, when he paints him as regarding him with the eye, the piercing eye, of an ancient tailor peeping through the eye of his needle?* I remember that man well. The story he told is enough; but I will contradict him, for he at least shall not pass unpunished, lie at least is here. He must be made an example of. I can contradict * rjnnrdommi Come vccchio Sartor fa nclla cruna. DANTE. 118 QUEEN CAROLINE. others I can drag others to punishment but he at any rate shall not escape. My lords, I will show you, by evidence undoubted, un- questionable, above all suspicion that that man must have sworn false- ly. I will prove it by the room itself. I can, if I will, prove it by the position of the door. I think his own account of the position of that door in answer to questions put by your lordships, might almost save me the trouble of doing it. But I will show you more. I will show you that what he swore cannot be true either here, if your lordships put me to the necessity of it, or elsewhere, for the sake of justice. I can show, my lords, that the Queen slept at Trieste, in her whole life, but one night: that she came one day went to the opera, as he admitted she did (that was the only truth the wretch told) left it on the morrow and neither before nor after ever crossed the threshold of the gates of Trieste in her days. My lords, I dismiss the other witnesses of the same description. I take this filthy cargo by sample purposely. Let those who will delve into the bulk I will not break it more. That it is damaged enough, the sample tells sufficiently, and with a single remark I dis- miss it. Recollect, my lords, those foolish stories, not only about the hand, but about the pictures, and about the bracelet chain being put round the neck, with I know not what other trumpery, got up for the purpose of variegating the thrice told-tale; and yon will, I think, agree with me, that the Italians who coined the fictions are pretty much the same now that they were known by our ancestors to be some centuries ago. Whether lachimo be the legitimate offspring of our great Shakspeare's mind or not, may be doubted; yet your lord- ships will readily recognise more than one of the witnesses, but one especially, as the own brother of lachimo. How has he represented himself? -"I have belied a lady, The princess of this country, and the air on't Revengingly enfeebles me. -Mine Italian brain 'Gan in your duller Britain operate Most vilely; for my vantage, excellent; And, to be brief, my practice so prevail'd, That I return'd with simular proof enough To make the noble Leonatus mad, By wounding his belief in her renown With tokens thus, and thus; averring notes Of chamber-hanging, pictures, this her bracelet! My lords, the cases are the same. We have the same evidence, from the same country, for the same purpose, almost with the same efl'ects; and by the same signs, marks, and tokens, with an extraordinary coincidence, the two cases are sought to be substantiated. And now permit me, having disposed generally of the characters of the witnesses, to call the attention of your lordships and it shall be within much narrower limits than I could have done, had I not necessarily anticipated the greater part of my comments on this part QUEEN CAROLINE. 119 of the case, in describing the character of the witnesses who support- ed it; because while I have been dealing with the subject in that way, I have been of necessity led to anticipate, by commenting on the different branches of the case which each witness was called upon to substantiate permit me, I say, to call the attention of your lordships to the several heads, as it were, of charge the several counts if I may so speak of this strange indictment, under the form of a Bill of Pains and Penalties which is brought forward against Her Majesty by the ministers of her Royal Husband. Your lordships will recollect that the first of these is evidently a Neapolitan scene. There the connection is alleged to have been first completed there the parties came together and accomplished, for the first time, but with great freedom, and with long continuance, and without any restraint at all, the purpose which they appear, I will not say long, to have cherished, but to have conceived somewhere about ten days or a fortnight before. The Princess of Wales (this is the accusation), having been theretofore a person of unimpeacha- ble character, a person of unimpeachable life proved to have been so by much stronger evidence than if she had never been suspected proved to have been so, if there is truth in evidence, if there is benefit in acquittal, if there is justice in the world proved to have been so better than if she had never been tried, by two solemn acquittals, after two searching examinations carried on behind her back, and in circumstances utterly unfair and unfavorable to her so much proved to have been so, that when one set of ministers had reported her clear and innocent of the charges brought against her, but recommended her to be censured for what some persons were pleased to term "levities," their successors in oflice, the authors of the present proceeding, were in no wise satisfied with this scanty acquittal, as they thought it, but determined that the censure for levities should be expunged, and recommended solemnly, that she should be instantly received, by her sovereign, her uncle, and her father, at his rigorously virtuous court, as the purest princess would be received who ever adorned the walks of royal life this character having, by such trials, been supported having come out of the fire purer, hi the eyes at least of those who favor the present charge against her how do those who at least arc thought to favor this charge, but I should deem unjustly thought considering their former history how do they say she demanded herself the instant she left England? Their maxim their rule of conduct their criterion of probability' is, nemo rcpcntc NON fit turpissimus. Arriving in Italy, say they, this pure and unimpeachable personage hires a servant, a man then at least in a menial capacity, of whom I shall afterwards have to say a few words. She moves towards Naples; and in the course of a few days, certainly in less than a month, you are desired to believe that the whole of the criminal intercourse commenced, that the degradation of the Princess was completed, and all restraint Hung a\vay from the mistress of the servant she becomes tin- mis- tress of the lover, of a menial lover plunging herself into a depth 120 QUEEN CAROLINE. of vice which even habitually profligate women could not for years accustom themselves to display or endure. Now, my lords, the whole case against Her Majesty falls to the ground, if your lordships do not believe, that on the second night of her arrival at Naples the alleged connection between the parties, the Royal Mistress and her hired ser- vant, commenced; because Demont and Majocchi have both sworn to facts which, if true, nay, if in their least particular true, prove the connection to have begun from that night, and have from thence- forward continued. And, with what caution is this carried on? Suppose that a long course of profligacy could not only bend the mind to the disgraceful circumstances, but render a woman incautious by habit that is possible. But, it is not so here; for the first act is about the most incautious of the whole I mean her choosing to go by the passage where she must be observed, in order to avoid the safer way to the room, the way through which it was highly probable no eye could watch her. Then, my lords, only recollect the manner in which the evidence is brought forward; only see the manner in which this case is offered to your lordships' belief. How is the room prepared for the first night when the guilty pair were to meet? By placing in the room which was to be the scene of their first loves loves so ardent, that to accomplish them, all regard for decency and decorum had in one instant been flung away, and all caution to conceal them been for ever abandoned by placing in the room one small iron bedstead, of dimensions hardly sufficient to contain a single person, and only used upon a journey or in a voyage! This was the only preparation in a house, every room of which contained a comfortable bed. Nay, in that very room itself, there was another and a large bed, which the witnesses tell you was left untouched. This circumstance alone is decisive. The witness tells you, in her first examination, that the larger bed was not much tumbled; but, a day or two afterwards, I think on the third day, she mends this materially; and then, in answer to a question put to her by my learned friend, Mr. Williams, who reminded her that she had said the large bed was not much tumbled, she says, " Yes, I said so when I was examined the other day, but I have since recollected something, and I can tell you more about it now." One of your lordships had that explained, and out came the story of the stains last of all after she had again said, the second time mending the first account, that it looked as if two persons had pressed upon it in the middle. I repeat, last of all she recollected the stains; but what those stains were she could not tell. No person examined her about them; but she had not much liked my learned friend's operations the day before. She was not in good charity with Mr. Williams, after the second day's examination, which happened to be in his hands, and not in those of my learned friend the Solicitor-general: and, accordingly, she then said she would tell him nothing more^ or, as she said herself, she recollected now \vhat she had forgotten then. What did Mr. Williams say to her? What had passed in the interval to make her recollect one single tittle which the leading examinatioi QUEEN CAROLINE. 121 of the Solicitor-general, (I speak it not offensively,) with the brief before him, ought not to have made her remember, and which yet it could not make her remember then? Was it likely or probable she should forget so strong a circumstance as the situation of the bed, when she knew that she came here to prove adultery when she felt, at every word she spoke, that she was here for no other purpose? The witness farther volunteered to say, that the Princess returned home early from the opera. I shall show, that she remained till the opera was over, in the presence of the royal family of Naples, and in the royal box. She said, that the Queen was in a state of consider- able agitation when she dismissed Billy Austin, for the purpose of being alone. "She said that Billy Austin had been accustomed to sleep in the Queen's room. But I shall show your lordships that this had ceased long before. I shall show your lordships that he slept in the next room to Her Majesty, and that the door of communication was constantly unlocked. The witness said, that Her Majesty for- bade him to come into the room; but she did not forbid him, in the most simple and effectual of all ways by turning the key. She also describes the Queen as corning home early from the opera, to do what no man can doubt was adultery, under all the agitation and perturba- tion of a bridal night. Yet, my lords, will any man believe, that this person so circumstantial and minute on other occasions, with a perfect sense how infinitely important it was to the tale that the bed should be represented not only as tumbled, (which yet she said was not much tumbled,) but as having been slept in by two persons will any man believe, that if she then knew this, or after wards could have recollected it, and if it was not a mere after-thought and fabrication, she would not have said at first, " Oh yes, the bed looked as if two persons had slept in it;" and then the stains would have been added, which she probably knows the meaning of, although like Barbara Kress, she denies she understood them? It is plainly out of human probability, that persons should recollect them, unless they understood them; otherwise, they are no more than ordinary marks or stains, which no person ever heeds, any more than the wind that passes over his head, or the marks left by the rain upon Ins path. My lords, at Naples, another scene took place, to which Demont is the only witness. She takes care to tell you no time. She is aware of the consequences of that. She will not give you the means of sifting her tale, or expose herself to the risk of contradiction. She will not tell you, whether it was a week after their arrival at Naples, whether it was near the beginning or near the end of their stay there, or towards the middle of it. But some night during their stay at Naples, she saw Hergami come out of his room naked except his shirt, without stockings on, without a night-gown on, and moving towards the part of the corridor into which the Queen's chamber entered. She did not start back, she did not' retire; but she moved on in the direction towards Bergami. And Bergami did not start back; he did not retire; Bergami did not make any excuse, and Bt-r- gami seeing her before his eyes moved on also; and she made her VOL. i. 11 122 QUEEN CAROLINE. escape out of the door; and he still did not bethink him of making an excuse, but moved on to the accomplishment of his guilty purpose, with more alacrity than almost a husband would have done, in going to the bed-chamber of his own bride. Your lordships will find all this in page 251 of the printed evidence. I hardly stop to refer to pages, because I do not rely on particular passages, but only draw your attention to the main and leading features of the case, which cannot possibly have escaped the recollection of those among you who heard the evidence given at your bar. Let me now remind you of the scene which is represented to have taken place at Catanea. And observe, my lords, that here there are two witnesses who might have been called to speak to this transaction, if it really did take place, both of whom were named and vouched by the Attorney-general in his opening. " Two maids," says he, " were sleeping in the next room to that of the Queen; they both saw her come back from Bergami's room at an early hour of the morning; they both heard the child crying and the Countess trying to pacify her; and they both must have known what all this meant." Now, the Attorney-general not only does not venture to call both, but only one; but he does not venture to state, that these two women have ever communicated together, from that time to this, upon a tittle of what that morning or that night had passed. They'never did com- municate together they could not communicate together for no- thing of the kind had passed. The whole thing was false; but Demont alone is called. And what is the story as she tells it? Now, I pray your lordships to attend to it; for it is, if possible, more incredible upon the face of it, from the multiplied improbabilities under which it labors, than that which I have just run over at Naples. Bergami usually slept, not only not near the Queen's bedroom, but on the other side of the court, which formed the centre of the building. On the opposite side of the court was his ordinary bedroom while he was well; but he became sick; he was seized with a severe fever, and he was brought over from his usual room into another room, belong- ing, I believe, to the Countess Oldi; and there he was lying ill for some days. Now, is it not a little extraordinary, that the scene of this amour at Catanea should be laid I will not say in that room, though this would be strange enough, considering it could only be approached through the room of the maids but that it should have been laid at the time when Bergami had a fever, and not when he was in good health? Bergami is there as a patient not as a lover; and yet this is the particular moment chosen for those endearments which are left to be understood; and then Her Majesty must have Bergami placed just in that situation of all others, in which access to his bedroom was rendered the most difficult and embarrassing, nay, the most impossible, when there were the two maids sleeping in the room between Madame Oldi's and his (for the Queen slept in that which had been Madame Oldi's room). The Princess moved out of her room, and one of the servants had undressed her this very witness had undressed her in her own room; and the story is ? that she removed out of her room in the night, QUEEN CAROLINE. 123 and returned in the morning not that she was always lying in Bev- gami's room, but that she went there in the night, and coming back in the morning, she was seen by the maids returning. Is it not a marvel- lous thing, my lords, that this should be the mode of operation? that the thought should not strike Her Majesty, that, in the accomplishment of this purpose, she was running the utmost risks without any inducement risks similar to those which she ran at Naples in going through Majocchi's room instead of the empty room while she might, by an. alteration of the rooms, have rendered all safe and easy? She had only to place herself in the servants' room, or in Madame Oldi's new room, and there she could have had access to Bergami, or Bergami to her, without crossing the threshold of her maid's door? But, if your lordships are to believe the representations made to you, all this is only in furtherance of, and in conformity with, the uniform tactics of Her Majesty, to multiply damning proofs against her own character, her own existence, happiness, comfort, every thing dear to her in the world. For this is the plot she is in, and she is under a spell, if you believe the witnesses, never to do an act injurious to her character, without providing at the same time ample evidence to make that injury inevitable and effectual. And now I am told that I can contradict all this by means of Ma- riette Bron, the sister of Demont, and that it must all be believed unless Mariette Bron is called. I say, why did not you call Mariette Bron? I say, she is your witness; because you opened her evidence because you vouched her because you asserted that she was pre- sent because you told us what she saw. And yet you call only her sister, whom you have in your own pay. I say, she is your witness because this is a criminal proceeding; because it is worse than a criminal proceeding; or of a nature higher at least in its exigency of pure, perfect, unsuspected, sufficient, nay, abundant proof. I say a Bill of Pains and Penalties is a measure of such severity, that it ought to be supported by evidence, better, if possible, and stronger, than that which takes away life or limb. I say, she is your witness, and not ours because we are the defendants, the accused and oppressed by the Bill of Pains and Penalties, which does not only accuse, but oppress and overwhelm. She is your witness and not ours because we stand upon our defence; we defy you to prove us guilty, and unless you prove our guilt, and until you prove that guilt, we ought not if justice yet reigns here, we ought not to be called upon for a defence. My lords, in a common civil suit, I can comprehend such tactics. I am not bound, in claiming a debt, to call, for the purpose of proving my case, my adversary's servant, or his clerk, or his rela- tion; but if I am placed upon my defence, charged with even the lowest crime known in the law, pure, unsuspected testimony must be given, whether it is to be derived from one quarter or from another whe- ther it is to be got from the prosecutor's side or our own. And I will put a case to remind your lordships of this. Suppose a highway robbery or murder alleged to have been committed, and a man is put upon his trial for it; suppose that a Bow Street oilicer, panting for 124 QUEEN CAROLINE. his reward, or an accomplice, infamous by his own story, or a spy, degraded by his calling, or any other contaminated, impure, necessarily suspected witness of any description, is alone put forward to prove the charge; and suppose a friend of the defendant were 'standing by, his servant, or his partner in trade, or any person who is barely competent, by the rules of evidence, to appear as a witness any person except his wife, who cannot be a witness I say, no man ought to be I say, no man can be I say, by our uniform practice, no man ever would be put in jeopardy of his life, or be called upon to produce in his defence, that friend, that relation, that servant, unless the case against him had been first proved by unsuspicious testimony; and if only the degraded spy, or the infamous accomplice, or the hired informer, or the Bow Street runner, were called against him, their testimony is not such as to make it needful for the prisoner to call his friend. It is the prosecutor who must call that friend: it is no excuse to say he is a friend, a relation of the accused; a partner- ship is no excuse: the English law demands, what common sense approves, that every man shall be considered innocent until he is proved guilty; and that guilt must be proved at the peril of him who seeks to condemn losing the purpose of his prosecution. My lords, the Queen is in a most singular situation. She must open her mind to painful constructions of the conduct of those who surround her. She may not view with a charitable eye the actions, and construe the feelings and the motives, of all she has intercourse with. She has been inured, by a long course of persecution by the experience of much oppression by familiarity in her own person with manifold frauds of her adversaries by all the arts of spies by all the malice of the spiteful and revengeful by all those hidden artifices which are never at first and not always even at last, disco- vered artifices which only sometimes she has had the means of tracing and exposing to the day. Such is the life which she has led, the life of which this last scene now sifting by you, is very far from forming an exception; all that she has seen heretofore all that she has seen now since she went last to Italy all that she has witnessed here since her return all that she has seen since this proceeding be- gan and she has heard the evidence read, down to the examination of the last witness on the last day all is calculated to make suspi- cion, general, almost universal suspicion, the inmate of an otherwise unsuspecting breast. It is the fate of those who are ill-used it is one of the hardest portions in the lot of those who have been so binTetted by the Grimms, the Omptedas, the Redens, not to mention the Douglases, the Omptedas of our own land it is the hard lot of those who have passed through such trials, that the solace of unsus- pecting confidence is banished from their harassed bosoms; their hearts are seared and hardened; they never can know whom they dare trust. And even at this hour, Her Mnjesty may ignorantly be harboring a second viper in her bosom, of the same breed as that which has already attempted to destroy her, and engendered in the same nest. The Queen, my lords, has about her person a sister of QUEEN CAROLINE. 125 Demont. She was placed there by that Demont. She was kept there by the arts of that Demont. She has corresponded with that Dernont. They have corresponded in ciphers together, if you are to believe Demont, which I do not. But I take her as described by the case for the accusers; and, in all the circumstances which justify, nay prescribe suspicion, as a duty to her own personal safety, my learned friends yet leave their case short against the Queen, proved by such evidence as I have described to you, or rather, as it is painted by the witnesses themselves, and leave Her Majesty to call their own wit- nesses! They say, " Why do not you call the waiting-woman, Ma- riette Bron, who is still left by her sister with you whom that sister first planted in your household whom that sister made you retain about your person, at the very time she was hatching her plot against you?" My lords, he who fulmined over Greece, and darted through her assemblies his words of fire, once said, what I would now repeat, imploring you not to take it in our own poor language, but recollect the immortal accents that fell from him, in which he imprinted on the hearts of his countrymen, that instead of all outworks, all fortifica- tions, all ramparts, which man can throw up to protect the weak, the best security which the honest and the feeble have against the fraud- ful and the powerful, is that mistrust which nature, for wise purposes, to defend the innocent against the strong and the cunning, has im- planted in the bosom of all human kind. It is alien to the innocent nature; but it is one of the misfortunes to which innocence, by per- secution, is subject, to be obliged to harbor mistrust, while surrounded by plotters so little scrupulous as the Grimms and Omptedas, working with agents so still less scrupulous, as Majocchi, Sacchi, and Demont. My lords, I am satisfied in my own mind, and I have no doubt all who hear me will agree with me, that we arc not bound to call this witness. I know not, if we had been ordered to deliver our opinion upon the subject to our illustrious client, that we should not have awakened suspicions in the Queen's breast, which even yet she does not entertain towards her serving woman. I know that it would have been our duty, as professional men, to have done so. I feel that we should have been more than justified in so doing: and I am con- fident that we might have appealed to the principles of which I have now reminded your lordships, and might at once have left the case as it stands, without calling this woman. But Her Majesty has as yet seen no reason to part with one whom she still thinks a faithful servant. Whatever we may suspect whatever the story of Demont may have taught us to suppose likely the Queen has hitherto never known any thing to the prejudice of her sister. That sister will, therefore, be presented before your lordships, and you will have an opportunity of hearing her account of those transactions which have been so falsely described by others. But I again repeat that this is gratuitous on our part that we do it voluntarily, from an over-excess of caution, lest it should be suspected by any one for a moment, that there is any witness whom we dare not to call. In like manner the story told of what happened at Scharnitz, upon 11* 126 QUEEN CAROLINE. the cross-examination of Demont, and upon the interrogatories put by your lordships, really melted away so that very little of it remained, and that little was perfectly equivocal, and quite consistent with the most perfect propriety of demeanor on the part of the Queen. But still, having seen that among some the story made an impression, at first rather than at last, we shall explain it in a way not at all incon- sistent with any thing but the peremptory swearing of Demont as to the time, when she says that she could tell, within half an hour, how long she had been asleep, although she could not tell how many hours she was in a room wide awake the day before. Demont swore, that on the night Bergami returned with the passports to Scharnitz, he went to the Princess's room, and there remained the rest of that night. My lords, I will prove this to be false. I will prove that the moment the passports were brought, the preparations for the journey com- menced. I will prove that Her Majesty set off on her travels within an hour and an half after the arrival of the passports, and that that time was scarcely sufficient to pack up and prepare for travelling. I will also prove, that during the whole time the Queen's door was hardly ever shut, and that there was a constant passing, not of Ber- garni, but of the other gentlemen of her suite the Queen lying on the bed in her travelling dress, ready to rise at one in the morning, provided the passports arrived so early. So with respect to the Carlsruhe case. We shall show your lordships that it is impossible Kress can have sworn true. That she may have seen a woman in that room, if she swears true at all, (which I do not believe,) I have no occasion to question. But the night that Bergami went home, and the only night he went home, at the period in question, was when the Queen was left behind at a music party in the palace of her illustrious relation to whom she was making a visit. She remained there two hours and a half, and upwards she remained there until between nine and ten o'clock, and she afterwards went to sup at the Margravine's, where she always supped on the evenings she did not dine there; and Bergami and his sister and child were then at home, when he was taken ill, and went to bed. My lords, I would remind you of an argument which is used in the present case, and which I was rather surprised to hear that some persons had been so very regardless of the details, as to allow to influence their otherwise acute and ingenious minds. They say, that if this is a plot if the witnesses are speaking what is untrue, they have not sworn enough; that they ought to have proved it home, as it were; that they ought to have convinced all mankind, of acts hav- ing been unequivocally done which nothing but guilt could account for which were utterly inconsistent with the supposition of inno- cence. My lords, can those who argue thus, have forgotten two things which every man knows, one common to all cases, and the other happening in every stage of this namely, that the most effectual way, because the safest of laying a plot, is not to swear too hard, is not to swear too much, or to come too directly to the point; but to lay the foundation in existing facts and real circumstances to QUEEN CAROLINE. 127 knit the false with the true to interlace reality with fiction to build the fanciful fahric upon that which exists in nature and to escape detection by taking most especial care, as they have done here, never to have two witnesses to the same facts, and also to make the facts as moderate, and as little offensive as possible. The architects of this structure have been well aware of these principles, and have followed the known rules of fabrication throughout. At Naples, why were not other people called? Why were there never two witnesses to the same fact? Because it is dangerous; because, when you are making a plot, you should have one witness to a fact, and another to a con- firmation; have some things true, which unimpeachable evidence can prove; other things fabricated, without which the true would be of no avail but avoid calling two witnesses to the same thing at the same time, because the cross-examination is extremely likely to make them contradict each other. Now, for example, my learned friend opened a case that ought to be proved by a crowd of witnesses. Is it so usual for a Princess of Wales, who is seen in a box at Naples, to go on one occasion to the theatre and be hissed, whether she was masked or no? Do the concealments of a masquerade, like the fabrica- tions of this plot, exist longer than from the night till the morning? Would not the hissing of such a person as the Princess, for such a cause as the indecency of her dress, have been known to all who attended the spectacle? Would it not afterwards have been believed and told by all the gossips of gay, idle Naples " Et otiosa credidit Neapolis, Et ouine vicinum oppidum." And yet one witness alone, instead of all Naples, appears. In like manner, we have no other evidence at Naples of general demeanor. Why have we none to speak to the state of the beds? Why none to the state of the linen? I ask, what is become of Ann Preising? I can answer that question as well as put it. She is here. I obtained the fact from a witness in cross-examination. Why is she not called? I can answer that question too. She is not an Italian. What reason is there for not calling her? Your lordships can answer that quite as well as I can. There was every reason for calling her, if they durst have done it. The case is short without it. She could have proved those marks she was the Princess's maid at that time. Beds! she made them. Linen! she had the care of it. Who washed the linen? Where was the laundress, the washer-woman? And yet she is an Italian, for aught I know, though she is not called, and though her being called must have proved the case, if Demont speaks a single word of truth. They were practised in calling washer- women. They knew the effect of it in England, in the former plot. They were called in the Douglas plot, but they did not prove much, and the plot failed. Made wise by experience, they call them not here; although they know, by that experience, that if they could have stood the examination, this plot could not have failed. But, again, my lords, am I to be told by those who have attended 128 QUEEN CAROLINE. to this evidence, that there has been any very great short-coming in the swearing of some of the witnesses that they have not sworn un- equivocally that they have not proved the facts? Why, what more convincing proof of adultery would you have than you have had in this case,, if you believe the witnesses, and they are uncontradicted? I should not indeed say, if they are uncontradicted; for 1 contend that your lordships ought not to compel me to contradict such witnesses; but if you believe the witnesses, you have a case of adultery as plainly substantiated in proof as ever gained verdict in Westmin- ster Hall, or ever procured Divorce Bill to pass through your lord- ships' house. All that Demont tells all that Majocchi tells every titlte of what Sacchi tells at the end of his evidence is proof positive of the crime of adultery. If you believe Sacchi, Bergami was seen twice going into Her Majesty's bed-room, and not coming out from thence. If you believe Sacchi, adultery is the least of her crimes she is as bad at Messalina she is worse, or as bad as the Jacobins of Paris covered even themselves with eternal infamy by endeavoring to prove Marie Antoinette to have been. My lords, I have another remark to make, before I leave this case. I have heard it said, by some acute sifters of evidence " Oh! you have damaged the witnesses, but only by proving falsehoods, by proving perjury indeed, in unimportant particulars." I need but remind your lordships, that this is an observation which can only come from the lay part of the community. Any lawyer at once will see how ridiculous, if I may so speak, such an objection must always be. It springs from an entire confusion of ideas; a heedless confounding together of different things. If I am to confirm the testimony of an accomplice if I am to setup an informer no doubt my confirmation ought to extend to matters connected with the crime no doubt it must be an important particular, else it will avail me no- thing to prove it by way of confirmation. But it is quite the reverse in respect to pulling down a perjured witness, or a witness suspected of swearing falsely. It is quite enough if he perjure himself in any part, to take away all credit from the whole of his testimony. Can it be said that you are to pick and choose; that you are to believe part, and reject the rest as false? You may indeed be convinced that a part is true, notwithstanding other parts are false provided those parts are not falsely and wilfully sworn to by the witness, but parts which he may have been ignorant of, or may have forgotten, or may have mistaken. In this sense you may choose culling the part you believe, and separating the part you think contradicted. But if one part is not only not true is not only not consistent with the fact, but is falsely and wilfully sworn to on his part if you are satisfied that one part of his story is an invention to use the plain word, a lie, and that he is a forsworn man good God! my lords, what safety is there for human kind against the malice of their enemies what chance of innocence escaping from the toils of the perjured and unprincipled conspirator, if you are to believe part of a tale even though ten witnesses swear to it, all of whom you convict QUEEN CAROLINE. 129 of lying and perjury in some other part of the story? I only pray your lordships to consider what it is that forms the safeguard of each and every one of you against the arts of the mercenary or the spiteful conspirator. Suppose any one man and let each of your lordships lay this to his mind before you dismiss the mighty topic suppose any one of your lordships were to meet with a misfortune, the greatest that can befall a human being, and the greater in proportion as he is of an honorable mind, whose soul is alien even to any idea or glance of suspicion of such a case being possible to himself, whose feelings shudder at the bare thought of his name even being accidentally coupled with a charge at which his nature revolts suppose that mischance, which has happened to the best and purest of men, which may happen to any of you to-morrow, and which if it does happen must succeed against you to-morrow, if you adopt the principle I am struggling against suppose any one of your lordships charged by a mercenary scoundrel with the perpetration of a crime at which we show in this country our infinite horror, by almost, and with singular injustice, considering the bare charge to stand in the place of proof suppose this plot laid to defame the fairest reputation iu England I say, that reputation must be saved, if escape it may only by one means. No perjury can be expected to be exposed in the main, the principal part of the fabric that can be easily defended from any attack against it; all the arts of the defendant's counsel, and all his experience, will be exhausted in vain: the plotter knows full well (as these conspirators have here done) how to take care that only one person shall swear to a fact to lay no others present to choose the time and select the place when contradiction cannot be given, by knowing the time and the place where any one of your lordships, whom he marks for his prey, may have chanced to be alone at any moment of time. Contradiction is not here to be expected refuta- tion is impossible. Prevarication of the witness upon the principal part of his case, beyond all doubt, by every calculation of chances, there will not be. But you will be defended by counsel; and the court before whom you are tried will assuredly have you acquitted, if the villain, who has immoveably told a consistent, firm tale though not contradicted though not touched, upon the story itself tells the least falsehood upon the most unimportant particulars on which your advocate shall examine him. My lords, I ask for the Queen no other justice than this upon which you all rely, and must needs rely, for your own escape from the charge of unnatural crimes! I desire she may have no other safety than that which forms the only safely to any of your lordships in such cases, before any court that deserved the name of a court of justice, where it might be your lot to be dragged and tried. I am told that the sphere of life in which Bergami, afterwards pro- moted to be the Queen's chamberlain, originally moved, compared witli the fortune which has since attended him in her service, is of itself matter of suspicion. I should be sorry, my lords, to have lived to see the day, when nothing more was required to rum any exalted 130 QUEEN CAROLINE. character in this free country, than the having shown favor to a meri- torious servant, by promoting hi in above his rank in society, the rank of his birth. It is a lot which has happened to many a great man which has been that of those who have been the ornaments of their country. God forbid we should ever see the time, when all ranks, all stations in this community, except the highest, were not open to all men; and that we should ever reckon it of itself a circumstance even of sucpicion in any person for neither sex can be exempt from an in- ference of such a nature if it is once made general and absolute that he has promoted an inferior to be his equal! Let me, however, re- mind your lordships, that the rapidity of the promotion of Bergarni has been greatly overstated; and the manner in which it took place is a convincing proof, that the story of love having been the cause of it, is inconsistent with the fact, Now, this I state, from a distinct recol- lection of the dates in the evidence before you. Believe Majocchi or Demont, and three weeks after Bergami's arrival in the household, he was promoted to the Queen's bed. How was it with respect to her board? Because, after that, he continued in the situation of courier; he dined with the servants, and lived not even with the chamberlains; certainly not with those gentlemen, for they were at her table, as usual. Hecontinued to dine with theservants at Genoa; there, notwithstanding Majocchi's story, is is proved to your lordships that lie did not dine with Her Majesty. He continued as a courier, even after he had once sat at Her Majesty's table by accident, by one of the accidents usual in travelling. It appears even in the evidence, (believing it to be true,) that the Queen sat at the table where he was for the space of one day. He, however, still continued a courier; and it was only on the eve of the long voyage, that he was admitted to her table, commen- cing with the journey to Mont St. Gothard. He continued in his situation of courier, still in livery, until, by degrees, he was promoted, first to travel in a carriage of his own, instead of riding on horseback. Then he was promoted occasionally to sit at the same table with the Queen, and at last lie was appointed a chamberlain generally. My lords, this is not consistent with the story told of Naples. Show me the woman, particularly the amorous, the imprudent, the insane woman her Majesty is described to be by these perjured witnesses, who would have allowed her paramour, after indulging in all the gratifications described at Naples, for weeks and months, to continue for months, and almost for years, in an apparently menial capacity! My lords, this is not the rapidity of pace with which love promotes his favorite votaries; it much more resembles the sluggish progress with which merit wends its way in the world, and in courts. He was a man of merit, as you will hear in evidence if you put me on calling any. He was not of the low origin he has been described to be. lie was a person whose father held the situation of a landed proprietor, though of moderate income, in the north of Italy. He had got into diniculties, as has happened to many of the Italian gentry of late years; and his son, if I mistake not, had sold the family estate, in order to pay his father's debts. He was reduced but he was a re- QtTEEN CAROLINE. 131 duced gentleman. When he was in the service of General Pino he was recognised as such. The General repeatedly favored him as such: he has dined at his table, General Pino being Commander-in- chief in the Milanese. He thus sat at the table of an Italian noble in the highest station. He has dined at his table during the Spanish campaigns. He was respected in his station he was esteemed by those whom he served at that time. They encouraged him, as know- ing his former pretensions and his present merits; and when he was hired, he was proposed by a gentleman who desired to befriend and promote him, an Austrian nobleman, then living in Italy, in the Aus- trian service, he was proposed to the Queen's chamberlain as a courier, there being a vacancy, and was hired without the knowledge of her Majesty, and before she had even seen him. The Austrian nobleman, when he offered him as a courier, said, he fairly confessed he hoped, if Bergami behaved well, he might be promoted, because he was a man whose family had seen better days, because he was a faithful ser- vant, and because he had ideas belonging rather to his former than to his present situation. It was almost a condition of his going, that he should go for the present as a courier, with the expectation of soon filling some other and higher place. I do not dwell on this, my lords, as of any importance to the case; for whether I shall think it necessary to prove what I have just stated or not, I consider that I have already disposed of the case in the com- ments which I have made upon the evidence, and in the appeal which I have made to the general principles of criminal justice. But as the conduct of Her Majesty has been so unsparingly scrutinised, and as it is important to show that even impropriety existed not, where I utterly defy guilt to be proved, I thought it requisite to dwell on this prominent feature in the cause. If the "Queen had frequented com- pnnies below her station if she had lowered her dignity if she had followed courses which, though not guilty ones, might be deemed improper in themselves and inconsistent with her high station if she had been proved guilty of any unworthiness I could have trod upon high ground still. But I have no occasion to occupy it. I say, guilt there is none levity there is none unworthiness there is none. But if there had been any of the latter, while I dared her accusers to the proof of guilt, admitting levity and even indecorum, I might slill have appealed to that which always supports virtue in jeopardy, the course of her former life at home, among her own relations, before she was frowned upon here while she had protection among you while she had the most powerful of all protection, that of our late venerable monarch. I hold in rny hand a testimonial which cannot be read, and which I am sure will not be weighed, without the deepest sense of its importance; above all, without a feeling of sorrow, when we reflect upon the reign that has passed, and compare it with the rule we live under. It is a melancholy proof more melancholy, because we no longer have him who furnishes it amongst us but it is a proof how that illustrious sovereign viewed her, whom ho knew bettor than all others whom he loved more than all the rest of her family did 132 QUEEN CAROLINE. even than those upon whose affection she had a greater claim nay, whom he loved better than he did almost any child of his own. The plainness, the honesty, the intelligible, and manly sense of this letter are such, that I cannot refrain from the gratification of reading it. It was written in 1S04: "WINDSOR CASTLE, Nov. 13, 1804. " MY DEAKEST DAUGHTER-IN-LAW AND NIECE: Yesterday,! and the rest of my family had an interview with the Prince of Wales at Kew. Care was taken on all sides to avoid all subjects of altercation or explanation, consequently the conversation was neither instructive nor entertaining; but it leaves the Prince of Wales in a situation to show whether his desire to return to his family is only verbal or real" (a difference which George III, never knew, except in others) " which time alone, can show. 1 am not idle in my endeavors to make inquiries that may enable me to communicate some plan for the ad- vantage of the dear child you and me with so much reason must interest ourselves in; and its effecting my having the happiness of living more with you is no small incentive to my forming some ideas on the subject; but you may depend on their being not decided upon without your thorough and cordial concurrence, for your authority as mother it is my object to support. "Believe me, at all times, my dearest danghter-in-law and niece, your most affectionate father-in-law and uncle, " GEORGE R." Such, my lords, was the opinion which this good man, not ignorant of human affairs, no ill judge of human character, had formed of this near and cherished relation: and upon which, in the most delicate particulars, the care of his grand-daughter and the heir of his crown, he honestly, really, and not in mere words, always acted. I might now read to your lordships, a letter from his illustrious suc- cessor, not written in the same tone of affection not indicative of the same feelings of regard but by no means indicative of any want of confidence, or at least of any desire harshly to trammel his Royal Consort's conduct. I allude to a letter which has been so often before your lordships in other shapes, that I may not think it necessary to repeat it here. It is a permission to live apart, and a desire never to come together again; the expression of an opinion, that their happi- ness was better consulted, and pursued asunder; and a very plain indication, that Her Majesty's conduct should at least not be watched with all the scrupulousness, all the rigor, all the scrutinising agency, which has resulted in bringing the present Bill of Pains and Penalties before your lordships. [Cries of " Read, read!" Mr. Brougham accordingly read the letter, as follows:] "MADAM: As Lord Cholmondely informs me, that you wish I would define in writing, the terms upon which we are to live, I shall endeavor to explain myself upon that head with as much clearness QUEEN CAROLINE. 133 and with as much propriety as the nature of the subject will admit. Our inclinations are not in our power, nor should either of us be held answerable to the other, because nature has not made us suitable to each other. Tranquil and comfortable society is, however, in our power; let our intercourse, therefore, be restricted to that, and I will distinctly subscribe to the condition which you require,* through Lady Cholmondoly, that even in the event of any accident happening to my daughter, which I trust Providence in its mercy will avert, I shall not infringe the terms of the restriction, by proposing, at any period, a connection of a more particular nature. I shall now finally close this disagreeable correspondence, trusting, that, as we have completely explained ourselves to each other, the rest of our lives will be passed in uninterrupted tranquillity. I am, Madam, with great truth, very sincerely yours, " GEORGE P. " WINDSOR CASTLE, April 30, 1796." My lords, I do not call this, as it has been termed, a letter of license; such was the the term applied to it, on the former occasion, by those who are now, unhappily for the Queen, no more those who were the colleagues and coadjutors of the present ministers but I think it such an epistle as would make it mailer of natural wonderment to the person who received it, that her conduct should ever after and espe- cially the more rigorously the older the parties were growing become the subject of the most unceasing and unscrupulous watching, prying, spying, and investigation. Such then, my lords, is this case. And again let me call on you, even at the risk of repetition, never to dismiss for a moment from your minds, the two great points upon which I rest my attack upon the evidence; first, that the accusers have not proved the facts by the good witnesses who were within their reach, whom they had no shadow of pretext for not calling; and secondly, that the witnesses whom they have ventured to call are, every one of them, irreparably damaged in their credit. How, 1 again ask, is a plot ever to be dis- covered, except by the means of these two principles? Nay, there are instances, in which plots have been discovered, through the medium of the second principle, when the first had happened to fail. When venerable witnesses have been seen brought forward when persons above all suspicion have lent themselves for a season to impure plans when no escape for the guiltless seemed open, no chance of safety to remain they have almost providentially escaped from the snare by the second of those two principles; by the evidence break- ing down where it was not expected to be sifted; by a weak point being found, where no provision, from the attack being unforeseen, had been made to support it. Your lordships recollect that great pas- sage I say great, for it is poetically just and eloquent, even were it * The Queen to her last hour positively denied ever having required any such condition, or made any allusion to the subject of it. VOL. I. 12 134 QUEEN CAROLINE. not inspired in the Sacred Writings, where the elders had joined themselves in a plot which had appeared to have succeeded, "for that," as the book says, " they had hardened their hearts, and had turned away their eyes, that they might not look at Heaven, and that they might do the purposes of unjust judgments." But they, though giving a clear, consistent, uncoritradicted story, were disappointed, and their victim was rescued from their gripe, by the trifling circum- stance of a contradiction about a tamarisk tree. Let not man call those contradictions or those falsehoods which false witnesses swear to from needless and heedless falsehood, such us Sacchi about his changing his name or such as Demont about her letters such as Majocchi about the banker's clerk or such as all the other contra- dictions and falsehoods not going to the main body of the case, but to the main body of the credit of the witnesses let not man rashly and blindly, call these things accidents. They are just rather than merciful dispensations of that Providence, which wills not that the guilty should triumph, and which favorably protects the innocent! Such, my lords, is the case now before you ! Such is the evidence in support of this measure evidence inadequate to prove a debt impotent to deprive of a civil right ridiculous to convict of the lowest offence scandalous if brought forward to support a charge of the highest nature which the law knows monstrous to ruin the honor, to blast the name of an English Queen! What shall I say, then, if this is the proof by which an act of judicial legislation, a parliamentary sentence, an ex post facto law, is sought to be passed against this defenceless woman? My lords, I pray you to pause. I do earnestly beseech you to take heed! You are standing upon the brink of a precipice then beware! It will go forth your judgment, if sentence shall go against the Queen. But it will be the only judg- ment you ever pronounced, which, instead of reaching its object, will return and bound back upon those who gave it. Save the country, my lords, from the horrors of this catastrophe save yourselves from this peril rescue that country, of which you are the ornaments, but in which you can flourish no longer, when severed from the people, than the blossom when cut off from the roots and the stem of the tree. Save that country, that you may continue to adorn it save the Crown, which is in jeopardy the Aristocracy which is shaken save the Altar, which must stagger with the blow that rends its kindred Throne! You have said, my lords, you have willed the Church and the King have willed that the Queen should be deprived of its solemn service. She has instead of that solemnity, the heartfelt prayers of the people. She wants no prayers of mine. But I do here pour forth my humble supplications at the Throne of Mercy, that that mercy may be poured down upon the people, in a larger measure than the merits of its rulers may deserve, and that your hearts may be turned to justice! [Mr. Brougham finding the impression made by his case upon the House to be very strong, resolved at once to present Mariette Bron QUEEN CAROLINE. 135 for examination, and instantly to call for judgment. With this view he left the House to summon the witness; but she was not to be found; Mr. Williams, therefore, proceeded with his truly able and, to the elucidation of the case, invaluable argument; and afterwards some suspicious circumstances came to the knowledge of Her Majesty's advisers which made it impossible to call her maid with any regard to the interests of justice.] SHORT ACCOUNT OF MR, DEN MAN'S SPEECH, ON SUMMING UP THE EVIDENCE FOR THE QUEEN. OCTOBER 24TH AND 25TH, 1820. THE examination of Her Majesty's witnesses closed on the 23d of October, when the counsel for the Bill applied for farther delay, in order that Colonel Browne and others might be sent for, to contradict some parts of the evidence. This proposal was treated as monstrous, and it was formally withdrawn. The Queen's advocates indignantly exclaimed, that it showed as much regard for her feelings, as if she had been the inanimate subject of some chemical experiment. One or two trifling particulars were however allowed to be explained; and at eleven o'clock on the following morning the evidence in this extraordinary process was at length brought to a close. The duty of summing up the Queen's case then devolved on her Solicitor-gene- ral, Mr. Denman. The House of Lords offered him time for preparation: the Chancellor invited and rather pressed him to accept it: he however preferred com- mencing his address on the instant, when all particulars were fresh, in his own memory, and in that of the judges. Amidst all the filth and obscenity which overloaded the proceedings, some great principles of public morality were prominently conspicuous. By far the greatest point, the most important, the most fully estimated by the reflecting, the most warmly felt by the multitude, was the prosecutor's disqualification. The example of a husband punishing infidelity in a wife, whom in the very hour of marriage he had insulted and openly abandoned whom he had replaced by a mistress, while he offered to his consort an equal privilege who owed to her union with him neither endearment, nor protection, nor common courtesy who knew in him no one quality of a husband but his jealousy, and had indeed for twenty-four years been only made aware of his existence by unceasing attempts to harass and de- stroy her was an example which the world never before witnessed, and which all classes except the House of Lords, determined should never be set in England. That the prosecutor was the king of the country made the case the more flagrant. This gave the proceedings the appearance of a deliberate sacrifice of the first prin- MR. DENMAN'S SPEECH. 137 ciples of morality to capricious hatred, engendered by the known instinct of anti- pathy towards those we have wronged: it was regarded as one of those freaks of bare-faced power, avouched by the will alone, which threatens the general security, by sweeping away the bulwarks of religion and of justice. The flimsy pretence, that the open scandal of the Queen's lite demanded public exposure, was refuted at every point; first, by the absurdity of distinguishing for this purpose between the wife of a King and the wife of a Prince Regent; secondly, by the ofler of 50,000/. a year, if she would pursue the same course any where out of England; but lastly and most effectually, by the evidence given on the trial, when the inter- course imputed, even if believed to be real, instead of being public and notorious, was so cunningly contrived and so secretly carried on, that waiters from inns, where Her Majesty reposed for a single night, were pressed into the service, to repeat the observations made through key-holes and upon beds while those domestic traitors who had daily means of knowledge, deposed but to two or three occasions, on which, from suspicious circumstances and opportunities, guilt might with some plausibility be inferred. Other general considerations, inferior to these in importance, yet of a highly in- teresting character, worked strongly on the public mind; the certainty that excited passions in the great would be supplied with mean instruments of hostility; the ease with which perjury and conspiracy are called into action by the immense rewards that must be publicly proffered; the method of proceeding, so abhorrent to the principles of the Constitution; the alarming readiness with which a minis- terial majority had volunteered the invidious office of judging in a suit which ought never to have been commenced, and could not go forward without incalculable injury to morals and decency. All these matters, sinking deep in the minds of a free, just, and enlightened people, were plainly discovered from the first to have decided the fate of the measure, though the time and mode of its defeat were of course doubtful. At this important period, the opponents of the Bill of Pains and Penalties were delighted to find that the evidence, so pompously paraded beforehand in private pervading all society in whispers in the shape of rumors and reports reports from diplomatic agents, communications from foreign ministers, statements by commis- sioners at Milan, handed over in green bags to select committees, that the minds of leading members of both houses might be debauched, before they should act in the character of judges crumbled into dust and shrank to nothing, when exposed to the open air. The case was an absolute failure; the witnesses when seen and heard in public turned out to be worthy of their cause.* Mr. Denman commenced his address by the most unqualified assertion of his client's innocence. " I, therefore, with your lordship's permission, without further preface, will proceed to make those observations upon the case, as it now lies be- fore you, which have satisfied my own mind which have satisfied the minds of all my learned friends which have satisfied, I think I may say, the minds of the whole people of England, of all the civilised nations of the world, who are anxiously looking on, to see this great and unexampled spectacle brought to a con- clusion, that Her Majesty the Queen has established a defence, which entitles her to a complete acquittal of all those charges which your lordships have permitted yourselves to try against the conduct of that illustrious person." Though it could hardly be expected that any body of men would, without neces- sity, and against sound policy, have assumed the office of judges in this great aff.iir, who were not predetermined to condemn, no chance of obtaining a verdict from these adverse jurors was to be thrown away. And as, in some angry conflicts at the bur, and some altercations even with members of the House itself, some degree * That the opinion upon the treatment of the Q.uccn by her husband was not confined to Her Majesty'* friends, appears from a note in Mr. Wilberforce's Journal, published in liis Life by his Sons. " Heard a violent 8|H, % cch from Creevey, and another from Kennel, speaking of the Queen's ill usii}jc when she first came to this country, and too truly aiat! but where in the use of t.ilkinjr thus? Surely it can only tend t > produce insurrection. I am glad, however, to hear that the Coronation will be probably put off. Oh what a com- ment is all this on ' He euro your sin will find you out!' " Vol. v, p. G8. 138 QUEEN CAROLINE. of personal irritation had been excited, Mr. Denman hastened to conciliate his hearers by freely, voluntarily, and from his heart disclaiming all purpose of indi- vidual offence. He rested his apology on a state of highly excited feeling that soreness of mind produced by sympathy with the unprovoked sufferings of the royal client. " It has not been my object to give uneasiness; but I have felt it deeply. And it is impossible for any mind which comes with the right feelings of a man to the contemplation of this case, not to expect the fullest indulgence for any thing that may have passed in the course of it; because it is impossible not to feel, that the illustrious client whose immediate interests are confided to our care, has been, perhaps I might say from the first moment that she placed her foot in this country to the hour at which I am now addressing your lordships, the victim of cruel oppression, of grievous and irreparable wrong. My lords, that galling and degrading sensation has attended us through the whole of these proceedings; it must plead our excuse for anything that may have been wrong and disrespectful in our manner. I trust I have said enough upon the subject; and I proceed to that case which it is my duty to observe upon." He then proceeded to analyse the preamble of the Bill, and was shortly after engaged in investigating the proofs which had been offered to maintain it. This compelled him to do in some instances what he always expressed the greatest de- sire to avoid to tread in the steps of his leader. In the various preliminary dis- cussions, where he had immediately followed Mr. Brougham, that gentleman had handed over every subject to his hands, completely exhausted and bare. He com- pared it to one Indian tribe which precedes another, but does not leave its hold upon the district, till it has consumed all its produce by withering fire. There was novelty, indeed, in the additional facts established by the witnesses for the accused, and in contrasting them with the prosecutor's charges and testimony; but discus- sions of this nature never can be accurately reported, and these have now lost all interest for the general reader. He observed on the only circumstance which could injure her Majesty, after the evidence that had been heard the danger that the impression made by the original statement should remain, in spite of the refutation the foul advantage possessed by every calumniator of female chastity, that the name is polluted and dishonored by revolting associations, though the world should be convinced of the falsehood of every charge. After quoting a clever paper from the latest number of the Quar- terly Review, to that effect, but applied to another subject, he proceeded: " It is un- happily too true; and in a case where female honor is concerned, the very exis- tence of the charge is, in some degree, as great a punishment as if it was distinctly proved instead of being contradicted. The old adage, ' Calumniando semper all- quid /tecni,' was never more distinctly made out, than in the present case. The evidence of the infamous and diabolical persons brought forward against Her Ma- jesty has had its effect; and although it has been disproved, I flatter myself, in a manner so satisfactory that no reasonable mind can believe any one of the particular charges adduced, still, the mere fact of their having been promulgated, will leave suffering, which no reasoning, no time, no reparation, will ever be able to remove." After casting some ridicule on the pretence set up by the officers of the Crown, that they did not attend as advocates of any party, but merely as assisting the House of Lords in the developement of truth, he remarked upon a solemn prayer which had been uttered by the King's Solicitor-general, Sir John Copley,* that the Queen's character might emerge clear from the inquiry " that Her Majesty might be able to establish her full and certain innocence." " My lords, it was gratifying to hear that prayer, the first that had been breathed for the welfare of her Majesty in mind, body, or estate, by any one of the officers of her husband. The omen was a happy one; the Queen owed thanks to my learned friend for his pious and charitable supplication, and both were bound to pour them out to Heaven, when they perceived ho\v amply it had been successful, at every step of the inquiry. Such a prayer so granted, will no doubt be the first step towards restoring Her Majesty's name to the ritual of the Church, from which it has been so illegally re- moved. I cannot deal with one so devoutly anxious to see Her Majesty acquitted, * Now Lord Lyndhurst. MR. DENMAN'S SPEECH. 139 in the same spirit in which it might he proper to approach other active promoters of the persecution. To them I might whisper words of professional condolence on their signal failure, hut my learned friend is to he greeted with felicitations at each of the numerous points where a falsehood was detected, or a witness hroke down. To them might he addressed the congralulation of Cicero to Catiline, when he sent him forth to join the unprincipled crew of his conspirators. Others, indeed, might blush to see collected around them 'conllatum improborum nianuiii,' but to my learned friend who took no part in the contest, who wished only for impartial inquiry, and prayed to Heaven that that inquiry might terminate in the triumph of the accused, the discomfiture of his witnesses one after another must have yielded unmixed satisfaction. ' Hie tu qua Iffititia perfruere, quihus gaudiis exultahis, qua in voluptate bacchabere, cum in tanto numero tuorum comitum neque audies virum bonum quenquam, neque videhis.' " The next general observation applies to the impossibility of accounting for all circumstances that may be scraped together to aid the inference of guilt, for two reasons the lapse of time, and the fact of their belonging toihc conduct of another. Who can explain ordinary events at the distance of six years] Still more, how could an innocent lady be aware of the cause of any such proceedings in her ser- vant, as excited suspicions of his deviations from propriety 1 ? Yet the demeanor of Bergami, in the absence of the Princess, and many years before, was strained to make out that pri ma facie case against her, which, if innocent, shu never could re- move by explanations, because she must have been ignorant of the causes that produced it. To infer guilt, then, from facts like these, is evidently not to prove it, hut to assume it as proved, and reverse every reasonable principle of procedure. One of the most marvellous features of a case so unique, touched on by Mr. Brougham, was forcibly dwelt upon by Mr. Denrnan the corpus delicti itself was never proved. Those who brought Barbara Kress from Carlsruhe, at a cost ten times as great as her yearly wages, to prove one undefined stain upon a bed, had also secured the laundress who for six long years must have constantly in- spected the bed-linen and all the other linen of every individual member of the family, and called her not as a witness. Annette Preising was in Cotton Garden, in company with the rest of the witnesses; and the prosecutors dared not present her testimony to the lords! The facility with which conspiracies for false accusation may be formed and kept together, was illustrated by examples both ancient and recent, both foreign and domestic. Journals of our judicial proceedings yielded striking instances that perjury is a marketable commodity even here. Roger North's memoir of his bro- ther Sir Dudley, the Turkey merchant, showed that in semi-barbarous countries the false witness is much more safely to be relied on than the true " Our merchant found by experience (he says) that in a direct fact a false witness was a surer card than a true one; for if the judge has a mind to baffle a testimony, an honest harm- less witness, that doth not know his play, cannot so well stand his many captious questions as a false witness used to the trade will do; for he hath been exercised, and is prepared for such handling, and can clear himself when the other will bo confounded." Nor is the subject of discarded servants passed over in silence, with their unre- stricted means of confirming falsehood by truth, and engrafting it on realities or the influence of money over mean men, undeservedly admitted to situations of con- fidence or the power of importunity in the great to command the services of their creatures for the ruin of their victims, when the lowest passions are at work in tho highest places. Thus we are told by the Comte de (Jrammont, that when James Duke of York wished to renounce the wife whom he had married in exile, tho daughter of the great Karl of Clarendon, four of his friends, gentlemen of tho highot rank, met together to consult on the best means of effecting so just and rational an object, and three of them determined to declare, if required, in public and writing, that .she had thrown off in their presence the restraints of modesty and decorum, and tho fourth that ho had enjoyed the last favor a woman can bestow, adding in the g;iiety of their hearts, that he must he a cold-hearted friend who could hesitate to give such easy proofs of his attachment. 140 QUEEN CAROLINE. The symptoms of fabricating facts and training witnesses, by the discipline of drilliiio- and rehearsal, were strongly brought to light. The Sicilian skipper and his nephew were selected to make out the case of open indecency on board of the polacca; the part assigned to Majocchi and Demont was the proof of adulterous intercourse on shore; both sets of witnesses were in the vessel, but the latter set saw nothing of the libidinous excesses denounced by the former. The latter, in- deed, during the three following years, saw no decisive facts, but much cause for unfavorable surmise. The wanton lovers who, at sea, exposed their careless em- braces to every eye, suddenly when on shore became models of cautious prudence. Thus the evidence given by each set of witnesses, taken separately, however improbable, was in no degree inconsistent; but the facts deposed to by both sets were so utterly inconsistent with all our experience of human nature, that both could not be true, and of course neither could be trusted. One great defect in the case against Queen Caroline, was the necessity of prov- ing it by foreigners. Beyond the reach of satisfactory inquiry, removed from the influence of that public opinion to which they were accustomed, and to which the most shameless of mankind pay a reluctant and involuntary deference, the tempta- tion to earn high rewards by unscrupulous evidence, was generally felt, and their sense of the obligation of an oath more than doubted. Like every other general observation in this remarkable case, it was exemplified by particular incidents that occurred. One of the Queen's witnesses was William Carrington, a servant of Sir Will- iam Cell, who directly contradicted Majocchi in several material facts, involving assertions deliberately made by himself. " William Carrington had no sooner left this bar," said Mr. Denman, " with the universal confidence and approbation of every honest man who saw and heard him, than the materials for his cross- examination are prepared by whom] Not by the agent, or attorney, or commis- sioner, but by a member of your Lordships' House, a powerful member of the government in a word, by the First Lord of the Admiralty. Carrington described himself as having been a midshipman in the Poitiers, and as havingleft the service with the good opinion of his former captain, that gallant officer, Sir John Beresford. He was cross-examined with the greatest minuteness, with the advantage of searching the ship's books, and of communicating with his captain, who is brought to town for the purpose out of Yorkshire. Do I complain of this"? By no means. If it were not irregular, I would tender my thanks to the noble lord for the ability and zeal with which he conducted the cross-examination. It ended in proving the witness's account of himself strictly true, and his captain bore willing testimony to his good qualities. He illustrates in his person the remark of a German travel- ler in this country, that gentlemen were found in every class of society; wherever that man's lot may be cast, he is a gentleman of nature's making. What, if we had possessed the same advantage"? The same power of searching and inquiring] Would the result have been the same with the Sacchis, the Rastellis, the Gug- giarisT' There were two passages in this speech of so remarkable a nature, that they cannot be omitted in any notice of it; those which assailed two royal personages, the King then upon the throne, and his immediate successor, at that time Duke of Clarence. The former exposed himself to personal attack by the prosecution; he challenged inquiry into his conduct as a husband, which was indeed an essential part of his own case. Nor was it possible to refrain from canvassing the examples of similar proceedings in former times, and while some points in the history of Henry VIII bore a general resemblance to the accusation, an almost exact parallel was found between the accused and the Roman Empress Octavia. Dr. Parr pointed out the identity of their fortunes to Mr. Denman the capricious offence taken in the very moment of their union, the adoption of a mistress in her place, the desertion, the investigation, the exile, the triumphant return amidst the accla- mations of the people, the renewed inquiry, the false evidence screwed out of her domestics, not indeed by bribes but by torture. The likeness failed at the point where the principal witness in each case betrayed her personal character. The French soubrette swearing to the falsehood of her former panegyrics on the bene- MR. DENMAN'S SPEECH. 141 factress she sought to destroy, the Roman attendant hurling the boldest defiance and invective at the commissioner, who grossly aspersed the purity of her imperial mistress. In laying before the Lords the wrongs of his client in the burning words of Taci- tus, and fixing on this prosecution the just odium of so shameful a prototype, Mr. Demnan incurred some censure. He was condemned for "calling the King Nero," by those who without emotion heard the counsel for the prosecution apply to the party under trial, the name of Messalina. He was, with Mr. Brougham, after the Queen's death, stript of the rank they owed to their offices under her Majesty; and all her counsel remained for years excluded from their fair professional advance- ment. At length all were restored except Mr. Denman; and it then appeared that he was visited with the royal displeasure, not for this parallel hut for a sentence from Dio Cassius,* mistakingly supposed by his Majesty to have been applied offensively to him. In the autumn of 1828, Mr. Denman's memorial, disclaiming the imputation, was at his request laid before the King by his then prime minister the Duke of Wellington, who went much farther, and with difficulty obtained from the reluctant monarch, that rank which the advocate had not solicited at his hands. If " Peace hath her victories not less renowaed than War," this persevering effort of a frank and generous spirit, prompted by a sense of justice, and stimulated by the manly perception of the necessity for independence in the advocate, may be thought to add some lustre even to the name of Wellington. The other passage above alluded to, is a vehement invective against the Duke of Clarence whose known devotion to his elder brother led him into the ready cre- dence of facts derogatory to Her Majesty, which he had the imprudence to circulate in conversation, and among the peers then engaged in what was called her trial. The necessity of counteracting this influence was apparent, but the reproof must have given pain to him who uttered it, when in after years the sovereign showed an entire absence of resentment for the offence given to him while a subject. Wil- liam the Fourth, blessed with the immeasurable advantages of education and inter- course among the middling classes of society, had the sense and candor to perceive that the sufferer from the performance of the duty of an advocate has no just right to complain. He received Mr. Denman with marked civility at his first levee after his accession to the throne; acquiesced withont hesitation in his appointment as Attorney-general, on the change of government in November 1830; two years afterwards, consigned to him as chief justice, " the balance and the sword," and expressed the utmost pleasure in acceding to Lord Grey's application to raise him to the peerage. Numerous portions of the evidence were selected for comment, and towards the conclusion of the whole argument, the following passage occurs: " We have been told of the Queen's general conduct, as furnishing decisive proof of her guilt. My lords, I will abide by that test, and appeal to her general conduct as establishing her innocence. I ask you whether it is possible, if she were degraded by the in- dulgence of that low passion, that she should in the first place discard every one of the servants as soon as they were possessed of her fatal secret, and that she should afterwards have been willing to renounce her paramour. Look to all that we know of human nature. The most certain consequence of indulging such an attachment is, that all worldly considerations are lost sight of. " Not Cicsar's empress would she deign to prove." No, having become the partner in guilt of her menial ser- vant, she would have preferred his society in the lowest retreat of vice on the Con- tinent, to all the dignity, the wealth and splendor, which the world could have laid at her feet. iShe was not required, however, to make the sacrifice. All tho com- forts and luxuries were obtruded upon her acceptance, with full permission to enjoy them at 1'esaro, or on the lake of Como, and at tho same time repose in those em- braces fur which she is charged with surrendering her honor. Does she atvept tho offer? She disdains it, and plants herself on the shore of Kiighuul, and challenges the proof that all tho power of ICngland can produce against her, because she knows that the truth will bear her through, and because she values character more than all other possessions, including lifu itself. * Sec Ha) lii's Dictionary, art. Ocluvic. 142 QUEEN CAROLINE. " Contrast her general conduct with that of her accusers! The death of her only child is followed by a frightful conspiracy to effect her ruin. The death of her last remaining protector, whose name was still in some degree her safeguard, though his affection could no longer be displayed, that death was announced to her in no terms of kind condolence or common respect, or decent ceremony. That was the occasion when the Cardinal Gonsalvi. knowing whom he should please, and what schemes were in progress, ventured to forestate the decision of the par- liament on the Bill that now engages its attention. With him she was neither a Queen, on the death of her husband's father, nor a Princess of Wales, as she had been till that event, but he strips her of all down to the title she had before her marriage. The first Gazette which records the change of rulers, inflicts a wound on her who is become the first subject of the realm. Of the new reign an era marked hitherto by mercy and forgiveness, when even traitors are spared and felons pardoned, and the amiable prerogative of the crown called into lavish use the first act of that reign is the most illegal and unchristian in the annals of the monarchy; the second is this Bill, a bill of divorce and degradation against the consort of the King, introduced by his ministers. "And now, my lords, what is to become of this Bill'? Or rather what has be- come of it! As a Bill of Divorce it was defeated before it was read a first time; the mere fact of a six years' residence abroad, permitted by the husband, answers his claim for a divorce, whatever the misconduct of the wife. That letter of license, so recently after the marriage, and so spontaneously granted, is of itself an answer to it as a bill for a divorce. As a Bill of Pains and Penalties a bill of dethronement and degradation it still lingers on your lordships' table; if you see fit to gratify the motives that impelled the charge, if you have the nerve to proceed against the persecuted and injured woman who has so manfully met it, I can only say it is at your pleasure so to do. But I am confident that your honor, your jus- tice, your humanity, will force you to take part with the oppressed, and not give the victory to those who have so wantonly oppressed her." In the course of explaining why some witnesses who might have been expected for the defence had not appeared, he took occasion to introduce the name of Ber- gami. " Our case is already proved, and we do not think that either expediency or justice requires us to overload these Minutes of Evidence, already too vast and unwieldy to be well considered in their important details, with needless testimony. We cannot admit that we are bound to go one step farther. We have heard the challenges and defiances of our opponents. \Ve have been told that Bergami might be produced as a witness in our exculpation, but we knew this to be a fiction of lawyers, which common sense and natural feeling would reject. The very call is one of the unparalleled circumstances of this extraordinary case. From the beginning of the world, no instance is to be found of a party accused of adultery being called as a witness to disprove it. We are told, forsooth, that he knows the truth as to that imputed fact, and ought to depose in denial of it at this bar, if it is untrue. The answer is in a word there is a case against us, or there is none; if none, we have no occasion to repel it by witnesses, and if there is a case, no man will regard the denial of the adulterer. How shameful an inquisition would the contrary practice engender! Great as is the obligation to veracity, the circum- stances might raise a doubt in the most conscientious mind whether it ought to prevail. Mere casuists might dispute with plausible arguments on either side, but the natural feelings of mankind would be likely to triumph over their moral doctrines. Supposing the existence of guilt, perjury itself would be thought venial in comparison with the exposure of a confiding woman. It follows that no such question ought in any case to be administered, nor such temptation given to tamper with the sanctity of oaths. My learned friends will not, I believe, show a case in which such a witness has been received or even tendered; and if not, the rule for his exclusion must be founded in principles too deeply seated in the nature and heart of man, to be repealed even upon this occasion, when a culpable com- plaisance to power lias brought about so many other sacrifices of principle." He proceeded to advert to a subject of extreme delicacy the motives by which the House of Lords might be supposed to be actuated, in taking either course. " May I add one word more] I know that a suspicion has gone abroad at least, MR. DENMAN'S SPEECH. 143 that it has existed within these walls that a low rabble had been encouraged to make demonstrations in Her Majesty's favor, and that all the public appearances were to be so accounted for. But the same person who used that expression, was obliged to admit in a few weeks the truth which could not be concealed, that the whole of the generous English people had taken her part. Such is the indisputable feeling among all the soundest and best, the middle classes of society. There may, for aught 1 know, be apostles of mischief brooding in some corners, watching to strike a blow at the Constitution, and not unwilling to avail themselves of any opportunity for fomenting open violence. If that be so, consider, my lords, that the righteous verdict of acquittal which I confidently expect, will at once gratify these generous feelings and tend to the security of the state, and baffle those mis- chievous projectors by taking the weapon from their hand. That just judgment pronounced in the face of the Crown, will endear your lordships to your country, by showing your resolution to discharge your duty. On the other hand, the dis- appointment of the well-affected would produce that settled discontent so dangerous to the peace and permanency of institutions, which every patriot ought to regard with apprehension. The violence of an incensed mob could lead only to personal inconvenience, which I know how your lordships would despise. But 1 beseech you let not the fear of having that fear imputed to you, bias your minds in favor of an unjust conviction. This would be the worst iniquity of all, the basest kind of cowardice. Weigh then the evidence and the arguments calmly and impartially, and if your understandings are satisfied that all which may once have appeared important has been scattered 'like dew drops from the lion's mane,' if the wit- nesses for the prosecution shrink to nothing on examination if their strongest facts are borrowed from their adversaries, but can only be tortured into proof of guilt by detaching them from the whole mass of their evidence your lordships will never pause to speculate whether your course may be pleasing or displeasing to what, in the jargon of the day, (which I detest,) some call a radical mob: you will think of nothing but the ascertainment of truth, and having ascertained it, will, without any regard to consequences, pursue the straight path to which the principles of eternal justice point." Having discussed portions of the evidence very fully, and interwoven much of general argument on the great features of the case, Mr. Denman alluded to "the mighty efforts of his great leader," and proceeded to demand a verdict of acquittal for their illustrious client. His peroration was not nor could be accurately reported, at the close of so long a speech, in the journals of the day, which have been copied into the Parliamentary debates; but it was nearly as follows: "In the earlier stages of this proceeding, my lords, when we more than once remonstrated against your entertaining the charge, and afterwards on the second reading, when we were permitted to assail the principle of the Bill, we urged upon you the powerful reasons which should have deterred the accuser from undertaking that office, and your lordships from a voluntary assumption of so awful a respon- sibility. After earnestly deprecating the hard if not dangerous duty of directing strong personal censures against those whose stations might have averted them, if their own conduct had not invited and made them necessary, I trust that we have neither shrunk from that duty, nor indulged in needless invectives. \Ve were bound to exact that 'he who would' affect to 'bear the sword of heaven' should not be more severe than holy to show that against an exiled wife the husband has no right of divorce that of licensed deviations from conjugal fidelity, the self- indulgent husband cannot with decency complain that consequently all inquiry into the truth of the charges would be but a fruitless waste of time, a wanton offence to public morality, a gratuitous ha/arding of the respect due to this august assembly, by overstraining its constitutional powers. " All these considerations your lordships were pleased to overrule, and to disdain the warnings we presumed to offer. You have received the charges; you have con- stituted yourselves the judges of the proofs on which they rest. But the personal topics cannot even now be thrown aside they are inseparably interwoven with every part of this unhappy proceeding. Though rejected by your lordships, in your legislative capacity, us motives for declining the inquiry, they cannot bo dis- 144 QUEEN CAROLINE. missed from your minds in the character of jurymen, wherein you are now to pro- nounce your verdict upon the evidence. "Remember then, my lords, the feelings of hostility in which this inquiry com- menced, and with which it has now for many years been carried on. Remember the powers that have been embarked in it. The wealth of a royal treasury un- sparingly applied the aid of state alliances freely administered the learning and talents, and zeal, and experience, the knowledge of the world, especially the worst part of the world, which have been so long at work, unrestrained by a single scruple. Your own observation has marked the instruments and the materials with which and upon which the work has been performed. The hosts of discarded servants have played their several parts on this theatre, and have exhibited their resolution to earn the enormous price of their testimony, by an absolute reckless- ness as to its truth. Which of your lordships would have chosen to stand such an ordeal 1 ? Which of you would expose to it any of your female relatives, or even your sons, now perhaps sojourning in the countries where the scene is laid? Eut that ordeal has been passed, and without harm to the destined victim. "The inquiry is without example in the history of the civilised world. This illustrious lady has been searched out and thoroughly known; her down-sitting and her uprising have been completely watched; no step she has taken no word she has uttered not a look not a thought has escaped her prying, assiduous, and malignant enemies. Guilt if it had existed must have been proved to the entire conviction of every understanding; and the absence of such positive and over- whelming proof is the establishment of unquestionable innocence. "Your lordships are indeed engaged in an inquisition of the most solemn kind. I know nothing in the whole circle of human affairs I know nothing in the view of eternity, that can be likened to this affecting occasion, except that great day when the secrets of all hearts shall be disclosed. And if you have been armed with weapons and powers, and have used them, which Omniscience itself possesses indeed but never employs, for bringing to light the shameful secret of Her Ma- jesty's guilt, but no guilt has been made manifest, and the opposite alternative results, you will feel that some duty is imposed upon you, of humbly endeavoring to imitate also the divine wisdom, justice, and benevolence, which said even to that culprit whose guilt was exposed and acknowledged, but against whom no accuser could come forward to condemn her 'Neither do I condemn thee. Go and sin no more!' "* * The Editors of this work have had the greatest satisfaction in being favored with the preceding pages of remark and correction upon the very eminent Judge's speech, from the only authentic quarter. It is deeply to be lamented that the whole of that great per- formance has not been thus nrcscrved. THE PRIVY COUNCIL, IN SUPPORT OF THE QUEEN-CONSORT'S RIGHT TO BE CROWNED WITH THE KING. JULY 5, 1821. THE question referred to the decision of the Privy Council is, Whether or not the Queen-Consort of this realm is entitled as of right to be crowned when the King celebrates the solemnity of his corona- tion and this is a question of constitutional law, to be determined by the principles which regulate public rights; but it may derive illustration from those which regulate the rights of private persons. First of all, the history of the ceremony must be examined, not as a matter of antiquarian curiosity, but because coronation is the crea- ture of precedent, and rests rather upon practice than principle, although the reason of it nlso may be traced. If it shall be found that the custom of crowning Queens-Consort has been uniform and unin- terrupted, or (which is the same thing) that the Queen-Consort has always been crowned, unless in cases where there existed some insu- perable obstacle, and in cases where she voluntarily declined it, the right will be established in the largest sense. Hut for the purpose of the present argument, it would be sufficient to demonstrate a more limited proposition of fact, viz., that the Queen-Consort has in all cases been crowned if married to the King at the time of his coro- nationa proposition not the less true, if a case should be found where, from peculiar circumstances, she declined it. In an ordinary question it would not be necessary to go back be- yond the reign of Richard I, the period of legal memory; but for the present purpose it is bettor to ascend as high as authentic history reaches. Some have doubted whether the Saxon queens, in the early VOL. i. 13 146 ARGUMENT FOR THE QUEEN'S CORONATION. stages of the heptarchy, were crowned; no one denies that they were so in the later periods. There is no occasion for inquiring into the practice when a successful warrior was held up to his followers in the field upon a buckler, and hailed as king among a crowd of soldiers, and in the necessary absence of his family. But as often as the solemnity assumed the form of a civil observance, the Consort appears to have shared its honors. As early as the year 784, Edel- burga, the wife of Brichtrich, King of the West Saxons, having been guilty of attempts against her husband's life, the Queens of Wessex were " deprived of all titles, majesty, and royalty," which Spelman and Selden understand to have included coronation; and this was effected by an express law. How long it remained in force is uncer- tain; but in 856, Judith, the wife of Ethehvolf, of the same kingdom, was crowned at Rheims, and afterwards received with royal honors in England. (Selden, Tit. Hon. cap. 6; Speed, p. 300; and Carte, i. 295.) Mr. Selden, referring to the universality of the practice in all other kingdoms, says, that " the Saxon Queens, were in the late times crowned like other Queens, so that the law of the West Saxons was soon repealed;" as if it were a solitary exception to the general rule in those times. In the Cotton MS. there is a document purport- ing to be the order of the coronation of JEthelred II in 978; but Mr. Selden treats it as a general ceremonial for the Saxon corona- tions, and, says that he had seen it in a hand-writing six hundred years old, which (as he wrote at the beginning of the 17th century) would make the MS. at least as old as Canute. (Tit. Hon. c. S.) All sub- sequent coronations have followed this order, and its words are remarkable. The ceremony is first described for the King and then follows the Queen's, as matter of course: "Finit consecratio Regis: quam sequitur consecratio Reginse, quoe propter-honorificentiam ab episcopo sacri unguinis oleo super verticem perfundenda est, et in ecclesia coram optimatibus cum condigno honore, et regia celsitudine, inregalis thori consortium, benedicenda et consecranda est;quce etiam annulo, pro integritate fidei, et corona pro eeternitatis gloria deco- randa est." So much was the coronation of the Consort deemed a necessary part of the solemnity. And in other countries it was so held likewise. Even in France, where the Salic law excluded females from the succession to the imperial crown, they received the honors of the crown matrimonial: their coronation was performed regularly at St. Denys, the King being crowned at Rheims. A Pontificale is extant, prescribing the order of the solemnity, confirmed by a bull of Clement VIII. Advancing to the Kings of the Norman line, it is necessary to look more minutely into the particular instances. William the Conqueror was married, about eleven years before the conquest, to Matilda, who did not come over with him, and was not crowned till 1068. He was crowned on Christmas day 1066, with as little delay as possible after his victory, in order to obtain a more secure title than he thought the sword would give him. The unsettled state of his new kingdom occupied him incessantly for some time, and he was obliged to make ARGUMENT FOR THE QUEEN*S CORONATION. 147 T frequent visits to his Norman dominions; but as soon as he could carry Matilda to England she was crowned, and without any delay. She came after Easter, and on the next great feast of Whitsunday, " Aldredus, Ebor. Arch, in reginamconsecravit." (Flor. Worcester, 1090). In this, as in other cases of a like description, before the reign of Henry III, it is doubtful whether the King was himself crowned a second time at his Queen's coronation. William Rufus having been elected by the Barons in council upon his father's death, to the exclusion of his elder brother, was crowned immediately after; he died unmarried. Henry I was crowned August 5, 1100, four days after his brother's death. He was then unmarried; but having espoused Matilda, llth November of the same year she was crowned, according to the Chron. Saxonicum, 209. cd. Gibs, on the feast of St. Martin; and therefore the coronation appears to have been performed as speedily as possible, or at the same time with the marriage. When the marriage of a queen, or her arrival in England, happened during the interval between two great feasts of the church, the coronation was somewhat delayed in consequence. In 1121, Henry married Alice of Louvain, who was crowned July 30th of that year. Stephen was elected by the prelates and Barons, and crowned 22d December 1135. He swore upon this occasion to maintain the church and nobility in their possessions, and the oath of allegiance taken to him was a qualified one. The prelates swore to be faithful no longer than he should support the church; the barons, after their example, swore fealty on condition of his performing his covenants with them. His Queen was crowned the 22d of March following having been, left abroad, in all likelihood, while the first struggles for the throne occupied her Consort and his followers. Henry II was crowned December 19,1154; his Queen Eleanor, is distinctly stated to have been crowned with him, by Gervase of Canterbury, (Script. Hist. Jlng. 1377,) a high authority upon this point, being a contemporary, a monk of the abbey, and author of the <tfcti($ Pontificum Cantuctriensium, Others say she was crowned in 115S, referring probably to Henry's second or third coronation, of which she partook with him. But there was a remarkable incident in his reign, touching which no difference of opinion exists. He was pleased to have his eldest son, Prince Henry, crowned in 1170, and the ceremony was performed without the participation of his Princess, Margaret, a daughter of France. Her father, Louis, complained of the omission took up arms against England and put in the front of his causes of war, that Margaret had not been crowned with her husband. A meeting of the sovereigns and an accomodation took placo; it was agreed that justice should be done to the princess; and an archbishop and two bishops being sent over from France, crowned her, together with her husband, at Winchester, in 1172. Richard I was twice crowned, but never when married, at least in England; for he was only betrothed to Alice, whom he refused to marry, and Berenguella (or Berengaria) of Sicily, whom lie espoused 148 ARGUMENT FOR THE QUEEN J S CORONATION. at Cyprus, never came to England. No wife of his, therefore, was ever within the four seas; but as if the marriage arid her coronation were necessarily connected together, the two ceremonies were per- formed nearly at the same time in Cyprus. His successor, King John, had two wives Arvisa of Gloucester, and Isabella; the latter of whom only is known for certain to have been crowned, and immediately after her marriage. If Arvisa was not crowned also a fact which cannot be proved the reason may be easily given. John came over in great haste to seize on the crown; he left his duchess in Normandy, and arriving at Hastings on the 25th of May, 1199, reached London on the 26th, and was crowned the day after. Disturbances immediately broke out in his duchy; and on the 19th of June lie was obliged to hasten back. Before those trou- bles were composed, he was smitten with the charms of Isabella, and pursued measures for obtaining a divorce from Arvisa, if indeed he had not, as some historians contend, already commenced those pro- ceedings. Certain it is, that the reason for dissolving the marriage was not now for the first time broached, the archbishop who solem- nised it having at the moment protested against its validity, upon the ground of consanguinity. Now, Arvisa, from the time of John's ac- cession till her divorce never was in England ; and the process of divorce began almost immediately after his coronation. She may have been crowned abroad; there is no evidence against it; the ceremony was so much a matter of course, that chroniclers may well have been silent on it; but if it never took place, the circumstances satisfac- torily explain the omission. Thus from the Conquest to the reign of King John inclusive, there were eight coronations performed on account of kings, and for the purpose of honoring or of recognising them. During the same period there are as many coronations of Queens known to have been solem- nised on their account alone, and for the purpose of honoring or of recognising them, independent of their consorts; at least, if the King on such occasions repeated the ceremony of his own coronation, the principal object of the solemnity was crowning the Queen, he having himself been crowned before. Henry III was unmarried when, at his accession in 12 16, and after- wards in 1220, he was crowned. On the 14th January, 1236, he married Eleanor of Provence, and six days after she was crowned alone, as appears by the Red Book in the Exchequer. He attended, wearing his crown, as we there learn, but he was only a spectator; and M. Paris (355. ed. 1684,) relates that the sword of St. Edward, called the curtcine, was borne before him by the Marshal, in token of his right to restrain the king if he should do amiss (in signum quod Regem, si oberret, habeat de jure potestatem cohibendi). So entirely was the queen the principal personage at this solemnity. Edward I was crowned August 19, 1274, with his Queen Eleanor: in 1291 he married Margaret of France, at Canterbury, where, in all probability she was crowned. There being no evidence of the event, is no argument against its having happened, when the regularity with ARGUMENT FOR THE QUEEN'S CORONATION. 149 which Queens were crowned on their marriage, is considered; and in Henry the Seventh's time, it was distinctly asserted and never con- tradicted, that no Queen, since the Conquest, had ever been debarred of this right. Edward II and his Queen Isabella were crowned together, July 25, 130S; and Edward III, being unmarried, was crowned alone, July 26, 1326; but a year after, he married Philippa, who was crown- ed alone in April 1327. A proclamation is preserved in the Close Roll in the Tower, summoning the Barons of the Cinque Ports, to attend and perform the canopy service, as they were wont at other coronations. This is the same proclamation which issues to summon the Barons at the coronation of kings alone, or of kings with their consorts. Richard II was crowned July 16, 1377, and he married January 14, 1382, his first wife, Anne, who was crowned on the 22d of the same month. In the twentieth year of his reign, (1397) he married Isabella, who was then crowned alone, as appears from the Close Roll in the Tower. An order is there preserved, to the Sheriffs of London, to make proclamation summoning " all persons who, by rea- son of their tenures or otherwise, were bound to perform any services on the days of the coronation of Queens of England, to do the same at the coronation of the King's consort as usual." In the Coif. MS. in Brit. Mus. Tib. E. 8. 37, is an account of the duties of officers at the coronation, temp. Ric. 2. The duty of keeper of the Ward- robe is there set forth: "Idem custos eodem modo in Coronatione Reginae, si sit coronata cum Rege, sive sola sit coronata," &c. Henry IV was crowned October 13, 1399. His first wife, Mary of Bohun, having died tn 1394, he afterwards married Joanna, who was crowned in 1403. His son and successor Henry V was crowned in 1413; but having in 1421, married Katherine of France, he came over to England for the purpose, among other things, of attending her coronation. She was crowned alone, as appears from the Clo.se Roll in the Tower, where a summons remains to all persons to attend and perform services "at the Coronation of Katherine Queen of England, the King's Consort." Henry VI, having succeeded his father when an infant of a few months old, was first crowned in his ninth year, 1429, and afterwords at Paris in 1431. In 1445, he married Margaret, who was cro\vned alone on the 30th of May, with the usual pomp. The materials of Scottish history do not enable us to trace the coro- nation of the Queen-Consort with such precision: but there can be no doubt that it was as punctually and solemnly performed as that of the sovereign. This may safely be inferred from the peculiar provisions of the law of Scotland, touching the Queen's privileges. There she has by statute the right to an oath of allegiance from all the prelates and barons. Such is the provision of the Act 1428, c. 109, made in the eighth parliament of James I, and four years after his return from captivity in England. It is entitled, ".7//A lo be made to the Queen be the Clcrgie and the Rarunncs" and is as follows, being, 13* 150 ARGUMENT FOR THE QUEEN'S CORONATION. like all the old statutes of Scotland, extremely concise: " Quo die Do- minns Rex, ex deliberatione et consensu totius concilii statuit, quod omnes et singuli successoresprselatorum regni quorumcunque, uecnon omnes et singulihsered.es futuri comitum, barorium, omniumque libere tenentium Domini Regis, teneantur facere consimile juramentum Dominae nostrse Reginae. Nee ullus prselatus de caetero admittatur ad suam temporalitatem aut hseres cnjusvis tenentis Domini Regis ad suas tenendrias, nisi prius prsestet ReginaB illud juramentum." Now that an argument may be drawn to the rights of the king and his Con- sort in Great Britain, since the union of the Crowns, from their rights in Scotland before the Union, is manifest, both upon principle, and also upon the authority of the Houses of Parliament, which, in 1788, ordered Scottish precedents to be examined, as well as English, touch- ing the Regency. Edward IV having been crowned in 1461, when he was unmar- ried, afterwards married Elizabeth Woodville, in 1465, and her coro- nation took place immediately. In the Cotton Collection there re- mains an Ordo Coronationis Regis Ed. IV, et Reginse *3nglix, with a memorandum, " Pro Unctione Reginee, quando sola coronanda sit." Tib. E. 8. Richard III and his Queen Anne were crowned together in 1483. The proceedings of a usurper are not, in a question like the present, to be overlooked; for he is likely to be peculiarly scrupulous in the observance of all the ancient usages connected with the title to the throne. Henry VII took the crown by three titles descent, conquest, and marriage; and although, as Lord Coke remarks, his best title in law was his marriage, yet it is certain that he preferred the title by descent, which upon all occasions he was anxious to put forward, placing it (to use the language of Lord Bacon) as his main shield, and the other two as its supporters only. The country, as far as its opinion can be collected from the declaration of Parliament, viewed it in the same light; and in the intendment of law this is sufficient, whatever may have been the sentiments of the York party. The crown was by stat- ute entailed upon him and his issue, being limited to the heirs of his body generally, without any reference to the Princess Elizabeth, to whom he was not then married. But before this act recognised him as king de jure, and immediately after the battle of Bosworth had given him possession of the crown, he solemnised his coronation, 30th October MS5, postponing his marriage with ihe daughter of Edward IV till tlie IStii of January following. "These nuptials," says Lord Bacon, " were celebrated with greater triumph and demonstrations, especially on the people's part, than either his entry or coronation, which the king rather noted than liked, and all his lifetime showed himself no very indulgent husband towards her." It may well be supposed that this incident increased his jealousy of his Consort's title, and his reluctance to do anything which might seem to recognise it. He accordingly delayed the coronation till he "alienated the affec- tions of the people, and till danger taught him what to do." The ARGUMENT FOR TIIE QUEEN's CORONATION. 151 feelings expressed by Margaret of York, Duchess of Burgundy, upon the postponement, evince the sense entertained by the persons best informed with respect to the rights of Queens in this particular. She "could not see without trouble that Henry refused to let Elizabeth be crowned an honor no Queen of England had been debarred of since the Conquest; and the birth of a son had not induced him to do her that justice." Notwithstanding his dislike of the measure, he was at length obliged to give way; but it came, says Lord Bacon, " like an old christening, that had staid long for godfathers, and this made it subject to every man's note, as an act against the King's stomach." The Queen was crowned alone, 25th November 14S7; and the pro- clamation for appointing persons to execute the office of Lord High Steward at the ceremony, is in the very same terms with the similar proclamation two years before at the coronation of Henry himself. Both are preserved in Rymer, xii, 277, 32 7; the one tested October 19, 14S5 the other November 10, 1487. Thus, of the eighteen married Kings, from the Conquest to the reign of Henry VII inclusive, not one was crowned, that had not the coronation of a Consort celebrated either with his own, or upon his nuptials. Fifteen coronations were celebrated for the sole purpose of crowning Queens-Consort, including Edward Ps second wife; the same number of coronations was celebrated on account of Kings alone, including William Rufus; and six are known to have been celebrated of Queens-Consort alone. The usage of four centuries is sufficient to establish the rule in respect to a state ceremony; it evinces the practice of England in this respect; it is sufficient to settle more essential points; it fixes the custom of the monarchy, and authorises the conclusion that any subsequent deviations are to be deemed capa- ble of explanation in the absence of positive evidence, and to be only reckoned exceptions, even if it were shown or granted thai they can- not be explained. Henry VIII was crowned with his first wife, Katherine of Arragon, 1509; and upon his marriage with Anne Boleyn, she was crowned alone, on Whitsunday, 1533. There maybe no evidence of his other wives being crowned, any more than of the contrary position. If it be admitted that they were not, of which no proof exists, there seems little difficulty in explaining the reasons of the omission. He married Jane Seymour the day after Anne Boleyn's execution. He had then quarrelled with the Emperor and the Pope; he was odious to the church, which he was busy in despoiling; the destruction of Anne rendered him equally unpopular with the reformed party, whom she had protected; and Jane was not likely to court a ceremony which must have exposed her to especial hatred, as the accomplice and the occasion of un enormity so recent and so great. She soon proved with child, and died the day after Edward VI was born. Anne of Cloves lent herself to the proceedings for dissolving her marriage, and Henry was engaged in these from the day of its celebration. During the rest of his reign, the unsettled state of ecclesiastical a flairs renders it probable that neither Katherine Howard nor Katherine Parr was 152 ARGUMENT FOR THE QUEEN'S CORONATION. ever crowned; but this likelihood is all the evidence we have of the omission, beside the silence of historians, and want of documents. The cases of Edward VI who died unmarried, Queen Mary, and Queen Elizabeth, have of course no bearing upon the question. James I was crowned with his queen in England, almost immediately after his accession, they having both been previously crowned in Scot- land. Charles I was crowned 2d February 1625, near a year after his accession. It is asserted that he was crowned alone; and it may be so, although certainly there are grounds for a contrary supposition. The proclamation for the solemnity, in the usual terms, was issued 17th January 1625; and it announces the coronation of Queen Henri- etta Maria, as well as of the King. On the 24th of the same month, a second proclamation was issued, appointing the Court of Claims, and referring, by way of recital, to the coronaiion of both King and Queen. On the 30th, it is true, a third proclamation respecting knights of the Bath to be created, only mentions, a The solemnity of our coronation;" but it is possible that those knights being for attend- ance on the person of the King, the mention only of the Queen's coronation might be dropt, without the intention of crowning her having been abandoned. Rymer, xviii, 275, 278. However, it is believed that s'le never was crowned, and this may be admitted, though there is no proof of it. But this omission is not necessarily to be explained by those who contend for the right. It might be suffi- cient for them to say, that the current of cases, being in favor of the proposition of fact, that Queens have always been crowned, the omis- sion in Henrietta Maria's case must have arisen from peculiar circum- stances. Nevertheless, those circumstances shall now be shown, ex gratia, the burthen of the proof lying on the other side. The marriage of Charles with a Catholic, and her arrival with a Catholic suite, had given great umbrage to the country. In opening his first parliament, that prince had alluded to the rumors propagated by malicious persons, who gave out that he was not so true a friend to the established religion as he ought to be; and he assured them, that having been brought up at the feet of Gamaliel, (meaning James I,) he should steadily persevere in supporting the Protestant church. The Parliament was not satisfied, and the two houses held a grand conference, which ended in a joint address to the King, praying him to enforce the laws against Popish recusants. In the fifth article of the address, they thank the King for the clause inserted in the treaty of marriage that no natural born subject, being a Catholic, should be employed in the Queen's household and pray that it may be enforced. After the King had given satisfactory answers to the different heads of the address, seriatim, and issued a proclamation against recusants in consequence, his favorite misister, the Duke of Buckingham, declared in parliament, that his Majesty took well their having re- minded him of religion, though he should have done just the same had they never asked him; "well remembering," added the duke, " that his father, when he recommended to him the person of his wife, ARGUMENT FOR THE QUEEN'S CORONATION. 153 had not recommended her religion." Rushworth t \ t 172, 1S3. Parl. Hist, ii, 26. These things demonstrate that great jealousy existed in parliament and the country, on the subject of the Queen's religion; nor was the ferment allayed by the King's compliance; for the Com- mons, a few days afier, refused supplies, on account of grievances, particularly the growth of Popery, and the supposed leaning of the court towards it, and the parliament was suddenly dissolved on the 12th of August, the joint address having been voted at the begin- ning of that month. Now the coronation took place in the interval between this dissolution and the calling of a new parliament. It may be from hence inferred, that one motive for changing the resolution to crown the Queen, was the reflection that such a measure would revive the alarms respecting her religion, and excite odium against her person. The nature of the solemnity, when she came to view it more nearly, must have decided her in refusing to partake of it. She must have regarded with abhorrence, a ceremony into which the rites of (he Protestant religion entered so largely a ceremony performed at a "Protestant altar, by a Protestant prelate, in the language of a Protestant ritual. Had she and the King professed the same Catholic faith, this difficulty, though great, might have been got over; but, as he was a sincere Protestant, the words taken by him in one sense, must have been used towards her, and by her, in an opposite sense, to make them innocent. The sacrament is a part of the ceremony; but supposing that to have been left out, she never could have received the ring given to her with the words, "Accipe annulum fidei, signaculum sancta3trinitatis." "Fides," in the King's case, must have meant the reformed faith; applied to the Queen, the same word in the same archbishop's mouth must either have meant the opposite doctrine, or it must have bound her to the heresy she daily abjured. The use of the ring was equally inconsistent with her creed, " Quo possis omnes hcereticas pravitates devitare;" that is, eschew the heretical sins of her own religion "et barbaras gentes virtute dei prccemere; et ad agnitionem veritatis advocare;" in other words, con- vert infidels to the errors she abhorred as damnable. A gift bestowed in such a place by such a power, accompanied by such words, sub- servient to such purposes, must have been to her only an object of aversion. No reasonable doubt, then, can be entertained that the Queen was deterred from submitting to be crowned, partially by her apprehension of I\\G odium which her participation in a Protestant religious service might excite against herself and her Catholic followers, and partly by her own religious scruples. The tradition among antiquaries* is, that * The correctness of the statement that Queen Henrietta Maria was not crowned, and the reasons of the omission, are proved by a passage in "Finctti Philoxenos. Same Choice Observations of Sir John /Vn/.Y/, A7., anil Muster of the Ceremonies to the two lfi.it h'irt^n. 1'rintcd I(j5t>." The French ambassador was at the house of Sir Ab. Williams where, with her Majesty, he had a view of the procession, p. 170. He declined being a spectator at the coronation, " where the Queen, his master's 154 ARGTJ]VfENT FOR THE QUEEN'S CORONATION. she declined, unless she might be crowned by a priest of her own persuasion, which was of course refused. That the difficulty must have occurred in the manner here asserted, seems still further proved by the article in the treaty with France, stipulating that at the mar- riage, "aucune ceremonie ecclesiastique interviendra," (Rymer, xvii, sub. fin,} and by the dates of the proclamations already cited, which show that the change of resolution was too sudden to have proceeded from actual remonstrance on the part of the country, and consequently that the objection to being crowned moved from herself, dictated by her apprehensions or her scruples, or both. If she had been deterred by the country from enjoying her right, the non-usor would not have operated against her Protestant successors; if by the King, from his submission to the wish of the country, the same remark applies; but there is every reason to conclude, that the three parties, King, Queen, and Country, concurred in the omission, which consequently cannot operate against the right, whether we consider it as in the Queen- Consort, or in the realm, or in both. And the view which can be taken least favorable to the argument, viz. that Henrietta Maria's case stands unexplained, and is an exception to the practice, proves nothing more than that a Catholic queen and Protestant king cannot well be crowned together. Charles II was crowned before his marriage with Katherine of Portugal. The religious animosities of the last reign were now greatly increased a motion in parliament had been made to prevent Charles's marriage with a Catholic and the existence of scruples in Katherine's mind is on record; for one of the charges against Lord Clarendon, in Lord Bristol's Articles of Impeachment, was his having persuaded the Queen to refuse being married by a Protestant priest or bishop. If, then, it be admitted, that she never was crowned, (of which there is no proof,) the omission falls within the scope of the argument respecting the case of Henrietta Maria, with this difference, that Katherine's case, howsoever explained, or if left unexplained, does not affect the rule of a Queen being always crowned with her consort, if married at the time of his coronation. James II and his Queen, Mary of Modena, were crowned together, both being Catholics. The solemnity of the sacrament is said to have been omitted on this occasion, but how the difficulties were got over which arose from the other parts of the service, seems hard to com- prehend. The utmost use that can be made of their submitting to the ceremony, is unavailing against the argument respecting Henrietta Maria and Katherine for that which scares one person's conscience may not affect another's; and besides, the King and Queen being of daughter, excused her presence," 169. "The Queen's reason (as it was voyced) for not being crowned together with the King, was because she could not (they said), by her religion, be present at our church ceremonies, where she must have had divine service celebrated by our bishops, and not by those of her own religion, as was demanded for her crowning," 171. This book was presented by his late Majesty (Geo. Ill) to the British Museum. ARGUMENT FOR THE QUEEN'S CORONATION. 155 the same religion, found it much more easy to take the words of the ritual in their own sense. Since the Revolution, no exception whatever can be found to the rule; for George the First's wife never was in England never was known as Queen nor even mentioned officially at all till after her decease, and then named by the title she took after the divorce, which is understood to have dissolved her marriage before the accession of the house of Brunswick. It may be remarked, that the last proclama- tion issued respecting a corronation, viz., the one directing the late Queen to be crowned, was issued some days after the one for the King's coronation, the marriage having been solemnized in the inter- val; and it summoned all persons bound by their tenures or otherwise, to attend and do service at the Queen's coronation. The ascertainment of the facts has done more in this case than lay a foundation for the argument. Every thing here depends upon usage; and the uniformity of that usage, both in England and other countries where the solemnity of a coronation is known, demonstrates the true nature of the solemnity, indicates its component parts, and prohibits the rejection of one portion rather than of another. It is on all hands agreed, that, in England, no Queen-Consort has ever been denied a coronation. It is admitted that the present will be the first instance of a demand and refusal. But it has further been proved, at the very least, that, as often as a married King has been crowned, his Consort has received the same honor, unless, in one instance, where she was abroad; and in another, where religion pre- vented, and she declined it. That the Queen-Consort, married at the King's coronation, being of his own religion, within the realm, and willing to be crowned, has always been crowned, is a proposition without any exception whatever; and it applies strictly to the case of her present Majesty; it embraces the matter now in question. Where usage and practice are every thing, this might be sufficient; but a larger proposition has been proved; and it is a legitimate inference from the statement of facts, that the Queen-Consort has at all times been crowned as regularly and solemnly as the King himself; for, the cases are extremely few, where positive proof does not exist of the Queen's coronation; and it is very possible that there may be no omis- sion at all. Again, if it be granted that, in those cases, were the proof exists not, there was no coronation, they must, in all fair rea- soning, be taken as exceptions to a very general rule; and we are bound to presume that they would be so explained as to bring them within the rule, if we knew the whole facts. This would be a sound inference, supposing we had no means whatever of accounting for those exceptions. It is the manner in which men always reason in questions of historical evidence, and in the practical affairs of life; but it is also the manner in which courts of law reason. If an immemorial enjoyment of a way or pasture, by persons having a certain estate, is proved, it will bo inferred, that the claimant, and those whoso estuto he hath, at all times used the way or pasture, although he may not 156 ARGUMENT FOR THE QUEEN'S CORONATION. be able to show that each owner, within the time of living memory, did use it. Suppose that this proof is wholly wanting with respect to one owner, who had the estate for a few months; if all others used the way or pasture, as far back as living memory reaches, the pre- sumption will be, that the one owner also used it. But even if proof were given that he did not, and his non-usor were unexplained; it would avail nothing against the generality of the proposition of fact, that all used it who chose; for the presumption would be, that there existed circumstances which, if known, would explain the non-usor; and the burthen of rebutting this presumption, would be thrown upon the party denying the immemorial enjoyment. So here, if the person holding the station of Queen-Consort is proved to have been crowned, in all but two or three instances, respecting which there is no proof either way, a presumption arises, that in those instances too, she was crowned; and if it be shown or admitted, that in those cases no coro- nation took place, he who denies the uniformity of the custom, must show either that the ceremony was refused to the Queen, or that it was omitted without any cause; the necessary conclusion from the great majority of instances being, that the ceremony always was performed, unless the Queen refused, or some accident prevented it. This is the principle upon which other coronation claims have been, in all times, dealt with. It cannot be proved, that in every coronation, the Barons of the Cinque Ports performed the canopy service, because there are some of those ceremonies of which no records are preserved. But their claim has always been allowed, and it would have been allowed, though proof should have been given, that in one or two instances they did not serve, as unquestionably is the case. For the omission would justly have been deemed accidental, that is, imputable to causes now unknown, but consistent with the unifor- mity of the usage. So tho the court has upon the present occasion admitted the claim of a lord of a manor to do service as larderer to the Kings and Queens of England at their coronation, although in right of that manor, it is proved that no such service had been done since the reign of Edward I. The King's right to be crowned might stand in the same predicament; for, although it happens that his coro- nation has only been omitted in one instance, that of Edward V, which is easily accounted for, the omission might well have been more frequent. The intervals between accessions and coronations have been long enough to leave many risks of a demise of the crown before the ceremony could be performed; and though the delay had not been accounted for, it is presumed that the unexplained omission would not have availed against the King's right. Nor can it be admitted that the oaths taken by the King, and the allegiance ten- dered to him, make any difference in the argument. These rest them- selves upon usnge antecedent to the statute; and if they formed no part of the solemnity, the King's coronation would still be an impor- tant ceremony. Such would be the principle, if all the exceptions to the rule had remained wholly unexplained; but it is contended, that they have all ARGUMENT FOR THE QUEEN'S CORONATION. 157 been sufficiently accounted for. There is the greatest difference between an omission and an interruption a mere non-nsor, and a denial. No instance whatever is alleged of the Queen having beon prevented from enjoying the honor in question. On the contrary, t\vo attempts were made to disturb her, and both failed. King Henry, as he must be deemed, and was always called after his coronation in the lifetime of his father, Henry II, and afterwards Henry VII, delayed the coronation of their consorts, and endeavored to withhold the ceremony altogether; but both were obliged to yield to the usage, and those Consorts were crowned. As one successful interruption would countervail many instances of uncontested nsor, so one failure in the attempt to interrupt is worth many instances of peaceable enjoyment. The use and practice, such as it thus appears to have been in all times, establishes the right. At least it throws upon those who deny it, the burthen of proving the Queen's part of the ceremony to be one that may be dispensed with, both as regards herself and the ceremony, or the realm which is interested in it. But a more near view of the Queen's part will still further prove the existence of the right. If it were asked by what test a substantive right can most surely be known, the answer would be by these three; its separate and independent enjoyment its connection with other rights arising out of it, and dependent on it alone and its subserviency to some important purpose, of the claimant or of the realm. The right in ques- tion has all these incidents. The Queen-Consort has been crowned in fourteen or fifteen in- stances when the King's coronation had before been celebrated, and when the performance of the ceremony could bear no reference to him. In six of those cases, at the least, (Edward III, Richard If, and Henry III, V, VI, and VII,) the Queen-Consort was crowned alone, sometimes in her husband's absence, sometimes in presence of him, as a mere assistant at the solemnity. Furthermore, a ceremonial is distinctly laid down for her coronation, apart from the King's, upon the supposition that it may at any time be performed separately; and the Liber Regalia, the auihentic document prescribing the order of the coronation, and followed in performing it for ages, consists of three parts, the first laying down the rules for crowning the King alone, or with his Consort; the second for crowning the Consort, when crowned with the King; and the third, "si Regina SOLA, sit coronanf/a." This solemnity, then, is considered as wholly indept3ndent of the King's coronation; it is not an accessory to that ceremony; it arises, indeed, out of the Queen's relation to the King by marriage; but the relation once established, the ceremony follows as a necessary consequence, with her other privileges. Again; many richts in other persons have grown out of this cere- mony, atid still further testify its immemorial existence and substan- tive nature. The Barons claim to bear the canopy over the Queen as well as the King, and to have the cloth; this claim has always been VOL. i. 14 158 ARGUMENT FOR THE QUEEN's CORNOATION. allowed, e. g. in the 20th of Henry III, when the Queen alone was crowned. At the same coronation, as appears by the Red Book in the Exchequer, Gilbert de Sandford claimed, by ancient right of his predecessors, to be chamberlain to the Queen at her coronation, and to keep her chamber and the door thereof, and have the entire bed, and all things belonging to it. This claim was allowed, and in the Testa de Neville (or Book of Knights' Fees'), fo. 243, it is set forth, that Gilbert de Sandford holds certain manors there specified " by the Serjeanty, that he be the chamberlain of the lady the Queen." By the same Book it appears, that at a subsequent period, Robert de Vere, Earl of Oxford, held the manor by the like serjeanty. In the Close Roll in the Tower, there remain a proclamation to the Barons of the Cinque Ports, to perform the canopy service, at the coronation of Philippa, Queen of Edward III a Summons S Hen. V, to all persons to attend and perform service at the coronation of Queen Katherine and an order to the Sheriffs of London, 20 Ric. II, to summon, in like manner, all persons owing service at the coronation of the Queen-Consort. At those three coronations the Queen alone was crowned. By the Coronation Roll in the Tower, a claim ap- pears to have been allowed, in the reign of Henry IV, of Reginald de Grey de Ruthyn, in right of the manor of Ashele, to perform the office of the napery at the coronation of Queens as well as Kings of England. It is moreover certain that all persons performing any service at the Queen's coronation, attain from thence the degree of Esquire. (Doddridge's Law of Nobility, 145.) It is impossible to contend that a ceremony so ancient, so univer- sal, so well known and accurately described, so regularly observed without any variation, far beyond the time of legal memory, and as far back as history reaches a ceremony interwoven with other usages, and the foundation of various rights is a mere creature of accident and dependent upon the individual pleasure, or personal will of the sovereign. If no purpose could be discovered to which it can now be subser- vient, or if even its original could not be traced, there would not, on that account, arise a presumption, that the sovereign may ordain or dispense with it. He is himself the creature of the law; and in contem- plation of law he has no caprice. Mere personal matters of such a nature, as plainly belong to his individual, not his corporate charac- ter, he may regulate at will; but the leaning of the law and constitu- tion of this country is to narrow the class of those personal functions as far as possible, and to regard the natural as merging in the politic capacity. It is absurd, and wholly inconsistent with every thing in the history and in the ceremony of the Queen's coronation, to suppose that it may be ordered or omitted, like a court dinner or ball. They who maintain that it is optional, must contend that it is quite indif ferent, and that it never had any meaning or importance; but they must further be prepared to show, why that alone, of all the corona- tion customs which it so nearly resembles, both in its nature and ARGUMENT FOR THE QUEEN'S CORONATION. 159 history, is both senseless and useless; for no one pretends that the King's coronation may be performed or omitted at pleasure, and yet it rests upon the same foundation of usage vvitli the Queen's. They who rely upon the usage have no occasion to show either the origin or the purpose of the solemnity; but then they must take all the parts of it together. They who hold one part to be necessary and the other optional, must distinguish the two; but where any thing is found so long established, the law will intend that it must have had a reasona- ble origin. The King's coronation most probably was connected with his elec- tion. He was either chosen or acknowledged upon that occasion. But it does not follow that the reception of hi^ Queen, together with him, by his subjects, was an unimportant part of the solemnity, even if no farther explanation could be given of its use for her high rank and near connection with him might render it fitting. However, the use of crowning the Consort seems abundantly obvious from her connection with the royal progeny. The coronation was the public recognition of the King as sovereign, and of the Queen as his lawful wife, and the mother of the heirs to the crown; it was the cere- mony by which the sovereign's own title, and that of his issue was authenticated. Crowning the King, acknowledged him as the rightful monarch. Crowning the Queen, perpetuated the testimony of the marriage, on the validity of which depended the purity of the succes- sion to the throne; and, on the undisputed acknowledgment of which depended the safety and peacefulness of that succession. The especial favorite of the law of England, as regards the Queen-Consort, is, and always has been, the legitimacy of the royal progeny. The main objects are to prevent a spurious issue from being imposed on the realm; and to remove all doubts upon this point, which, if con- tested, would endanger the peace of the country. The provisions of the Statute of Treasons are only declaratory of the Common Law, (3 Infit. 8,) and the Mirror (c. 1, s. 4,) written before the Conquest, records the jealous care which, from all time, has been taken of the purity and certainty of the succession to the crown; for it classes the viola- tion of the royal bed among treasons, in nearly the same terms with the 25 Ed. III. When we find this to be the law touching the Queen- Consort in those remote ages which also established the practice of invariably requiring her to be crowned, we can be at no loss to conclude that her coronation originated in the same principle, and was intended to prevent any doubts arising with respect to the validity of her marriage. It is a further confirmation of the same doctrine, and gives addi- tional weight to the whole argument for the right claimed, that dis- tinct traci-s remain in the older coronations of an actual acknowledg- ment, and even acceptance of the Queen-Consort, very similar to the recognition of the King. In the Charier Roll in the Toicer, 5 John, is a grant of dower to Queen Isabella: " Qua; in Anglia de rom- rnuni assensu et concordi voluntate Archi-cpiscoportim, Episcoporum, 160 ARGUMENT FOR THE QUEEN'S Comitum, Baronum, Cleri, et Populi totius Angliee, in Reginam est Coronata." So that the origin of the two ceremonies was exactly the same. The one party was acknowledged or received as king by common consent of the three estates; the other was by the same con- sent acknowledged or received as his wife or queen, for the words in Saxon are synonymous, queen signifying only the wife, by way of eminence, that is, the King's wife. It follows from these positions, that though the reason of the thing may long since have ceased as to the King's coronation, yet it remains in some sort to this day with respect to the Queen's. For happily there has long ceased to be any semblance of election in this monar- chy, and the only vestige that remains of it is the coronation cere- mony; but doubts may exist as to the validity of a King's marriage, and as celebrating the coronation of the consort tends to make the testimony of it public and perpetual, so omitting, and still more the withholding that solemnity, has a tendency to raise suspicions against the marriage, and to cast imputations upon the legitimacy of the issue, contrary to the genius and policy of the law. It is another corollary from the same principles, and one which greatly supports the present claim, that the omitting, and still more the withholding the solemnity with respect to the Queen, when a mar- ried king is crowned, tends much more to defeat the objects of the law, than the neglecting or refusing to crown a queen married after her husband's accession. For the marriage of a reigning sovereign must needs be public and well known to all the world: whereas an heir to the crown, being a prince or a common person, may, when in a private station, have secretly contracted a marriage, of the exist- ence or validity of which great doubts shall afterwards be entertained. And this argument is most consistent with the invariable course of the custom respecting the coronation of married kings. A further consequence from the premises is, that the Queen-Con- sort's coronation is not so much a right in herself as in the realm; or rather it is a right given to her for the benefit of the realm, in like manner as the King's rights are conferred upon him for the common weal; and hence is derived an answer to the objection, that the queen has always enjoyed it by favor of her consort, who directs her to be crowned as a matter of grace. The law and constitution of this country are utterly repugnant to any such doctrine as grace or favor from the crown regulating the enjoyment of public rights. The people of these realms hold their privileges and immunities by the same title of law whereby the King holds his crown, with this differ- ence, that the crown is only holden for the better maintaining those privileges and immunities; and they do imagine a vain thing who contend, that a firmly established usage, well known in all ages, and subservient to important public purposes, can depend upon any thing but the law and practice of the monarchy. The same answer may be made to the objection, that the Queen's coronation has always been solemnised by force of a proclamation ARGUMENT FOR THE QUEEN'S CORONATION. 161 from the crown, which is indeed only another form of the last objec- tion, and is not much aided by referring to the words in the proclama- tion, " We have resolved to celebrate," &c. The right is not claimed adversely as against the King; it is his right as well as the Queen's that she should be crowned; or rather, it is the right of the realm by law, and the king, as executor of the law, is to see that the ceremony be performed. But this objection would disprove the existence of all rights, public and private; for without the nominal intervention of the crown, none can be enforced if resisted, and many of the most important cannot be enjoyed by the realm, or by individuals. All writs run in the King's name. Not to mention judicial writs, the heir to whom a peerage is limited cannot enjoy his highest privilege with- out a writ of summons to parliament. And though this is issued by the King, and though, except by impeachment of his ministers, there be no remedy if it be withholden, yet there can be no doubt that the subject luis a right to it. (Skin. 432, 441, Verncy's case.} So, of a petition of right, the subject's only remedy for the crown's intrusion upon his lands or goods. So, of the right which the realm has by statute to a new parliament once in seven years at the least, the enact- ment being, that the "King, his heirs and successors, shall within, &c. direct legal writs to be issued under the great seal for calling and holding a new parliament." (16th Car. I, cap. 1; 16th Bar. II, cap. 1; 6tir\V. & M. cap. 2.; 1st Geo. I, cap. 38, st. 2.) Now, in all these cases the right is not the less admitted to be in the subject, because it can only be enforced or enjoyed through the interposition of the crown. A right to that interposition is exactly part of the right in question; if it be withholden, a wrong is done; and the pos- sibility of this is so far from disproving the right, that the law will not suppose such a possibility. Then, as to the language of the pro- clamation, it proves nothing. Other writs run in similar terms; and the writ of error states, " nos volentcs errorem corrigi et justitiam fieri, prom decet." (F. N. B. 24.) It is further said, that the Queen cannot prescribe for being crowned, because she is neither a corporation nor does she prescribe, in a que estate. Now, first, it is indifferent whether she takes it by prescrip- tion or custo.n by force of ancient grant or ancient statute; next, she is to many intents a corporation, and lastly she may prescribe as well as a chancellor, who only holds an office at will, and yet has been permitted to prescribe for privileges " in him, and those whose estate he hath" (Com. Dig. Prseficription, A.;) or a serjeant, attorney, or nnder-sherilf, who can all in like manner prescribe (1 I\oll. 204. 11 Ed. IV. 2, and 21 Hen. Vll. 16. /A) Surely if such functionaries may say, that all those who have held tho same place enjoyed certain privileges, the Queen-Consort may say the like. Yet here is no ques- tion of pleading, to which, rather than to the more general assertion of the right, those doubts are applicable. This is the argument submitted to the Lords of the Privy Council on behalf of the Queen-Consort. The question is raised for the first 14* 162 ARGUMENT FOR THE QUEEN'S CORONATION. time, it must be determined by legal principles, without reference to the occurrences which have lately agitated the country. Future ages, in pronouncing upon it, and in judging the judges of the present day, will view the subject as calmly as we do the remains of the Saxon Heptarchy, or the monuments of the Norman line; and will only recur to the events which occupy us, in case the sentence now given should be otherwise unintelligible. If that sentence shall be one worthy of the great names which sanction it, there will be no such explanation wanted. CASE OF THE REV. RICHARD BLACOW INTRODUCTION. LICENTIOUSNESS OF THE PRESS. TRIUMPHAL PROCESSION OF THE QUEEN. QUEEN CAROLINE was at all times extremely averse to Prosecutions for Libel. She had early in her life, that is to say, soon after the course of her persecutions commenced, well considered the subject, and become aware of the extremely un- satisfactory state of our law regarding the offences of the press. The result of all her reflection and observation upon the subject was, that the submitting to slander was the lesser evil, and that legal proceedings only made the injury more severe, by giving the invectives a more extensive circulation. She felt that, by prosecuting a libel, she lent herself to the designs of the slanderer, and suffered so much the more, only that others might be deterred from publishing their calumnies against other individuals, probably against her enemies themselves. Add to this, that she was of a fearless nature, and never doubted that the efforts of malice would fail to affect her general reputation. This aversion to all penal proceedings was certainly not diminished by the trial before the Lords, if a word usually consecrated to the administration of justice may be prostituted to describe the case of 1820, in which it would be hard to say whether greater violence was done to the forms of justice, or a more entire disre- gard shown to its substance. She had been kept for many months in a state of annoyance and vexation, of irritation and suspense, during those shameful pro- ceedings, which, regulated by no principles known in courts of law, were calculated to affright the person most conscious of innocence, and to make every observer feel that the event depended as little upon the real merits of the case as any divi- sion in either House of Parliament upon a party question turns upon the soundness of the arguments advanced in the debate, or the personal qualities of the different speakers. She was compelled to bear with her advisers, while they were discuss- ing the propriety of prosecuting the perjured witnesses, although she felt rather relieved than disappointed when it was found that technical difficulties stood in the way of any such course being taken. Hut she had a very decided aversion to going before the legal tribunals, and being involved in a lengthened litigation, well knowing how unsatisfactory the result might prove, and how little likely a convic- tion was to silence the calumniators, who were hired and set on by a court wholly unscrupulous in using tho strong influence which it possessed over the press, and the ample resources of corruption placed at its disposal. After the tempestuous scene through which slie had passed, tranquillity was the object of all her wishes; and she felt confident that her conduct would be rightly appreciated by the country at large, how active soever her unprincipled adversaries might be in the dissemi- nation of their slanders. Her wishes accordingly prevailed, and tho consequence 164 INTRODUCTION. was, that the press was polluted with a degree of malignity and impurity before wholly unknown. Newspapers that used formerly to maintain some character for liberality towards political adversaries, became the daily and weekly vehicles of personal abuse against all who took the Queen's part. Journals which had never suffered their pages to be defiled by calumnies against individuals, nor ever had invaded the privacy of domestic life for the purpose of inflicting pain upon the families of political enemies, devoted their columns to the reception of scandal against men, and even women, who happened to be connected with the Queen's supporters. As if the publications already established were too few for the slan- derer's purpose, or too scrupulous in lending themselves to his views, new papers were established with the professed object of maintaining a constant war against all who espoused Her Majesty's cause. Nay, it was enough that any persons, of any age or of either sex, held any intercourse whatever with that illustrious Prin- cess, to make their whole life and conversation the subject of unsparing severity and unmeasured and unmanly vituperation. A single error, far short of fault, once detected, was made the nucleus round which were gathered all the falsehoods which a slanderous and malignant fury could invent, and the defects of the law being well known to those who had studied them in order to evade its sanctions, little fear was entertained of the propagation of those falsehoods being visited with punishment, as long as any, the least imperfection existed in any one's conduct, which could not be denied upon oath. In one respect, the whole thing was so much overdone, that it failed to produce its full effect. Slander like every thing else, may be made so abundant as to lose its value. Fierce and indiscriminate calumnies daily and weekly circulated in journals, and in pamphlets, and in private society, began to lose their relish, and to pall upon the appetite which, by loading it to excess, they ceased to provoke. After a little while people began to care very much less for these attacks; they seemed to be considered as matters of course; and it was found that the press had lost the greater part of its power as regarded inectivcs or imputations. Nay, so many things were published, notoriously with- out the least foundation, that the truths which from time to time became mixed with the falsehoods, shared the same fate, and all were disbelieved alike; nor did persons of indifferent life and doubtful fame fail to feel the comforts of their new position, kept in countenance as they now were by the most respected individuals, whose hitherto unassailed reputation were as much the objects of the prevailing malignant epidemic, as their own more frail reputations. Thus the press not only ceased to have its appropriate effect of encouraging virtue and controlling vice, but it operated as some little annoyance to the good, while it cherished and protected the bad: all men perceiving that the purest life was no kind of security against its assaults, while it confounded the licentious with the blameless, causing its showers to fall alike on the just and the unjust. To the Queen's resolution against prosecuting her slanderers, her advisers ad- hered throughout with one remarkable exception. A reverend clergyman of the established church thought fit, in the discharge of his sacred duties, to preach a sermon abounding in the most gross scurrility. The main subject of his attack was Her Majesty's going in procession to St. Paul's Cathedral, where she attended divine service in the month of November, to offer up thanks for her providential deliverance from her enemies; and was surrounded by countless thousands of the people, her steady and unflinching supporters. The wonderful spectacle which the great capital of the empire exhibited on that remarkable occasion, has never per- haps been adequately described. But it perhaps may be better understood if we add, that those who witnessed the extraordinary pomp of her present Majesty's visit to the Guildhall Banquet last November, and who also recollect the far more simple and unbought grandeur of the former occasion, treat any comparison be- tween the two as altogether ridiculous. When Queen Caroline went to celebrate her triumph, and to thank God for "giving her the victory over all her enemies," the eye was met by no troops no body-guards no vain profusion of wealth no costly equipages no gorgeous attire no heaving up of gold no pride of heraldry no pomp of power, except indeed the might that slumbered in the arms of my- riads ready to die in her defence. But in place of all this, there was that which the late solemnity wanted a real occasion. It was the difference between make- INTRODUCTION. 1G5 believe and reality between play and work between representation and business between the drama and the deed. When the young Queen moved through her subjects, she saw thousands of countenances lit up with hope, and beaming with good-will, and hundreds of thousands of faces animated with mere curiosity. Queen Caroline had been oftentimes seen by all who then beheld her; she had been long known to them; her whole life had but recently been the subject of relentless scrutiny: hope from her of any kind there was none. All that she was ever likely to do, she had already done; but she had been despiteful!}' used and persecuted; she had faced her enemies and defied their threats, dared them to the combat and routed them with disgrace. In her person justice had triumphed; the people had stood by her, and had shared in her immortal victory. The solemnity of November, 1820, was the celebration of that great event, and although they who partook of it had no sordid interest to pursue, no selfish feeling of any kind to gratify; although they were doing an act that instead of winning any smile from, royalty, drew down the frowns of power, and were steering counter to the stream, of court favor, adown which Englishmen, of all people in the world, are the most delighted to glide; yet the occasion was one of such real feeling, so much the commemoration of a real and a great event, and the display of practical and deter- mined feelings pointed to a precisely defined and important object, that its excite- ment baffles all description, and cannot be easily comprehended by those who only witnessed the comparatively tame and unmeaning pageant of November 1837. In the proportion of its interest to the people at large, was the indignation which this celebrated festival excited at Court; and the time-servers speedily finding that they could not in any thing so well recommend themselves to favor in high quarters as by attacking this solemnity in any wa}', lost no time in opening their batteries of slander. According to the plan which had been adopted by Her Majesty's ad- visers, all the ordinary herd of libellers were suffered to exhaust their malice unresented and unprovoked. But a sermon preached to a large congregation, and one of exemplary piety, by a minister of the Established Church, and one laying claims to extraordinary sanctity of life and fervor of religious feeling, could not be thus passed over. Her Majesty's Attorney-general therefore moved the Court of King's Bench for a Criminal Information against Mr. Blacow the offender; and obtained a Rule to show cause upon a simple affidavit setting forth the fact of the slander and the publication by preaching, but not denying the matters alleged. It was found upon examining the precedents and the other authorities, that the Queen- Consort had a right to have her Rule without the usual affidavit of denial, and that it would be irregular to make this affidavit. Her Majesty was quite prepared, and indeed she wished, to deny upon oath the whole matter laid to her charge, but her inclination was overruled, on the result of the search for precedents. No cause was shown by the defendant, and the trial coming on at Lancaster, Mr. Brougham who had obtained the Rule while he held the office of Attorney-general to the Queen, led for the prosecution, in opening which, the following speech was deli- vered. The reverend defendant was his own counsel, and made a long abusive speech, full of every kind of irrelevant matter, and continually interrupted and threatened with punishment by Mr. Justice Holroyd, the learned judge who tried the cause. The jury without hesitation found him guilty. During the interval between the Information being obtained and tried, an event happened which gave a peculiarly mournful interest to the proceeding the death of ibis great Princess, who fell a sacrifice to the unwearied and unrelenting perse- cution of her enemies!. A circumstance well fitted to disarm any malignity merely human, seemed only to inspire fresh bitterness and new fury into the breast of the ferocious priest. The indignation and disgust of the country was roused to its highest pilch by tin- unbridled violence of his defence; and when men regarded the groundlessness of those charges of which it was made up, against all he had oc- casion to mention, they were, forcibly reminded of a passage in Dr. King's lato History of the Rebellion of 17-15, a favorite; Jacobite production " Ualcones apud Anglos sunt infames delatores, gigantmn filii; quos nattini malcvolos spes pni'tnii induxit in sumniuin serins: qui quiim caslos el integerrimos viros accusare soleant, omnia confingunt, et non modo perjuna sua vendunt, verum etiam alios impi Hunt 166 INTRODUCTION. ad pejurandum nomen sumunt a Blacow quodam sacerdote, qui ob nefarias suas delationes donatus est canonicatu Vindsoriensi a regni prafecto." This man was brought up for judgment in the following Michaelmas term, and only sentenced by the Court of King's Bench to three months' imprisonment Messrs. Hunt having suffered a confinement of two years, and paid a fine of 1000/., for a far less slanderous attack on the Regent in 1802; and Mr. Drakard having, as we have seen, been confined eighteen months, for publishing some remarks on military punishments, which a Middlesex jury had just before pronounced to be no libel at all. Three years after Blacow's trial, Mr. D. W. Harvey and his printer were tried in the Court of King's Bench for a libel upon George IV, in a country paper published by them. It represented that sovereign as guilty of almost every crime which a prince can commit, and farther charged him with having rejoiced exceedingly at the death of his wife, his brother, and especially his only child, the Princess Charlotte. It was, perhaps, the worst case of libel ever brought before the court. When the defendants were brought up for judgment, they ap- peared without any counsel; but just as the sentence was about being pronounced, Mr. Brougham, who with Mr. Denman had defended them at the trial, beckoned to Mr. Harvey, who crossed the court apparently to receive some suggestion for his speech in mitigation of punishment. He then addressed the court, and on his concluding, was again beckoned to by his counsel, as if he had still omitted some- thing. The court complained of this interference, as Mr. Brougham was not then retained for either of the defendants. Whereupon he stated that the reason why he made Mr. Harvey cross the court was to suggest, what he now took leave to do as amicus curix, that Mr. Blacow for his scandalous sermon against the late Queen, had only been sentenced to three months' imprisonment, and that of course more could not be given in the present case. Their lordships expressed much displeasure at this interference, seeming not to set a high value upon the " amicilia curias," which had been testified; but after a short consultation, they sentenced Mr. Harvey and his co-defendant to the same period of confinement with Mr. Blacow. SPEECH COURT OF COMMON PLEAS AT LANCASTER, ON OPENING THE PROSECUTION AGAINST RICHARD BLACOW, CLERK, SEPTEMBER, 1821. MAY IT PLEASE YOUR LORDSHIP GENTLEMEN OF THE JuRY: It is my painful duty to bring before you the particulars of this case; it is yours to try it; and my part shall be performed in a very short time indeed; for I have little if any thing, more to do, than merely to read what I will not characterise by words of my own, but I will leave to you, and may leave to every man whose judgment is not perverted and whose heart is not corrupt, to affix the proper descrip- tion to the writing, and his fitting character to the author. I will read to you what the defendant composed and printed; and I need do no more. You have heard from my learned friend and if you still have any doubt, it will soon be removed to whom the following passage applies. Of the late Queen it is that this passage is written, and pub- lished. "The term 'cowardly' which they have now laid to my charge, I think you will do me the justice to say, does not belong to me; that feeling was never an inmate of my bosom; neither when the Jacobins raged around us with all their fury, nor in the present days of radical nproar and delusion. The latter, indeed, it must be allowed, have one feature about them even more hideous and disgusting than the Jacobins themselves. They fell down and worshipped the goddess of reason, a most respectable and decent sort of being." And you know, gentlemen, that she was a common prostitute, taken from the stews of Paris. " A most respectable and decent sort of being com- 168 LIBEL ON THE QUEEN. pared with that which the radicals have set up as the idol of their worship. They have elevated the goddess of hist on the pedestal of shame; an object of all others the most congenial to their taste, the most deserving of their homage, the most worthy of their adoration. After exhibiting her claims to their favor in two distinct quarters of the globe; after compassing sea and land with her guilty paramour, to gratify to the full her impure desires, and even polluting the Holy Sepulchre itself with her presence to which she was carried in mock majesty astride upon an ass she returned to this hallowed soil so hardened in sin so bronzed with infamy so callous to every feel- ing of decency or shame, as to go on Sunday last" here, gentlemen, the reverend preacher alluded, not to the public procession at St. Pauls where her late Majesty returned thanks for her delivery or to other processions which might, partly at least, be considered as po- litical, but to her humble, unaffected, pious devotion in the church of Hammersmith " to go on Sunday last clothed in the mantle of adul- tery, to kneel down at the altar of that God who is ' of purer eyes than to behold iniquity,' when she ought rather to have stood bare- footed in the aisle, covered with a shirt as white as ' unsunned snow,' doing penance for her sins. Till this had been done, I would never have defiled my hands by placing the sacred symbols in hers; and this she would have been compelled to do in those good old days when Church discipline was in pristine vigor and activity." Gentlemen, the author of this scandalous, this infamous libel, is a minister of the Gospel. The libel is a sermon the act of publication was preaching it the place was his church the day was the Sab- bath the audience was his flock. Far be it from me to treat lightly that office of which he wears the outward vestments, and which he by his conduct profanes. A pious, humble, inoffensive, charitable minister of the gospel of peace, is truly entitled to the tribute of affec- tion and respect which is ever cheerfully bestowed. But I know no title to our love or our veneration which is possessed by a meddling, intriguing, unquiet, turbulent priest, even when he chooses to sepa- rate his sacred office from his profane acts; far less when he mixes up both together when he refrains not from polluting the sanctuary itself with calumny when he not only invades the sacred circle of domestic life with the weapons of malicious scandal, but enters the hallowed threshold of the temple with the torch of slander in his hand, and casts it flaming on the altar; poisons with rank calumnies the air which he especially is bound to preserve holy and pure making the worship of God the means of injuring his neighbor; and defiling by his foul slanders the ears, and by his false doctrines perverting the minds, and by his wicked example tainting the lives of the flock com- mitted by Christ to his care! Of the defendant's motives I say nothing. I care not what they were; for innocent they could not be. I care not whether he was paying court to some patron, or looking up with a general act of syco- phancy to the bounty of power, or whether it was mere mischief and wickedness, or whether the outrage proceeds from sordid and malig- LIBEL ON THE QUEEN. 169 nant feelings combined, and was the base offspring of an union not unnatural, however illegitimate, between interest and spite. But be his motives of a darker or lighter shade, innocent they could not have been: and unless the passage I have read proceeded from innocency, it would be a libel on you to doubt that you will find it a libel. Of the illustrious and ill-fated individual who was the object .of this unprovoked attack, I forbear to speak. She is now removed from such low strife, and there is an end, I cannot say of her chequered life, for her existence was one continued scene of suffering of dis- quiet of torment from injustice, oppression, and animosity by all who either held or looked up to emolument or aggrandisement all who either possessed or courted them but the grave has closed over her unrelenting persecutions. Unrelenting I may well call them, for they have not spared her ashes. The evil passions which beset her steps in life, have not ceased to pursue her memory, with a resent- ment more relentless, more implacable than death. But it is yours to vindicate the broken laws of your country. If your verdict shall have no effect on the defendant if he still go on unrepenting and una- bashed it will at least teach others, or it will warn them and deter them from violating the decency of private life, betraying sacred pub- lic duties, and insulting the majesty of the Law. VOL. I. 15 SPEECHES IN TRIALS FOR LIBELS ON THE DURHAM CLERGY. INTRODUCTION. DEATH OF QUEEN CAROLINE CONDUCT OP THE DURHAM CLERGY. WHEN the late Queen Caroline, yielding to the altogether unexampled course of persecution in every form under which she had suffered, was stricken with a mor- tal sickness, the immediate consequence of mental distress, parties were variously affected hy the intelligence that her life was in danger. The people universally, and with but little distinction of party or of sect, were thrown into a state of the most painful anxiety, and waited in suspense the arrival of the tidings which were to confirm or to dissipate the prevailing gloom. After a passing interval of better prospects, all hope was soon banished by information that she was given over; and the news of her decease, which happened on the. 7th of August, 1821, followed immediately after. In all the places where the event was made known, and where no undue influence or superior authority was exerted to suppress the public feelings, the utmost concern was manifested, not unaccompanied with indignation at tiie author of those wrongs which had led to this sorrowful event. Among the more ordinary, and therefore, if displayed, the more unimportant manifestations of con- cern, was that of tolling the bells in cathedrals and churches, the constant mark of respect paid to all the royal family, even the most insignificant and the least popu- lar a ceremony so much of course that nothing could give it any importance ex- cept the rudeness or the servility which might obstruct its being performed. Accord- ingly, the tribute of respect had almost universally been paid, and had excited no comment any where. It was reserved for the heads of the Durham Cathedral to form an exception, the only exception of any importance, to the general course of conduct pursued upon this mournful occasion. They would not sutler the bells of that venerable edifice to be tolled in the wonted manner. It might have been thought that even had it been decent for churchmen to take part in such a controversy, and during the queen's life to side with the oppressors against the injured party, the event which removed the latter from all worldly con- cerns, would have allayed also the animosity of her clerical antagonists; and that, though they had refused her the benefit of their prayers while living, they would riot m. ike themselves the solitary exception among Chapters and other Collegiate bodies, to the regular course of paying an accustomed mark of respect to the con- sort of the sovereign, now only known to them as one whose death had made his Majesty a widower, and enabled him to gratify his desires without violating hi-< own coiijngal du'ies. These reverend personages, however, thought otiii ru ise; they forbade their bells to toll; and tho consequence was some remarks in the l)ur- 172 INTRODUCTION. ham Chronicle, a provincial pnper long distinguished for its steady though tem- perate support of liberal opinions, both on civil and on ecclesiastical subjects. These remarks were as follows, and they were published on the 10th of August, while the event was fresh in the recollection of all, and the feeling had not subsided which it was calculated to excite. " So far as we have been able to judge from the accounts in the public papers, a mark of respect to her late majesty has been almost universally paid throughout the kingdom, when the painful tidings of her decease were received, by tolling the bells of the Cathedrals and Churches. But there is one exception to this very creditable fact which demands especial notice. In this episcopal city, containing six churches independently of the cathedral, not a single bell announced the depar- ture of the magnanimous spirit of the most injured of queens the most perse- cuted of women. Thus the brutal enmity of those who embittered her mortal exist- ence pursues her in her shroud. " We know not whether any actual orders were issued to prevent this customary sign of mourning; but the omission plainly indicates the kind of spirit which predo- minates among our clergy. Yet these men profess to be followers of Jesus Christ, to walk in his footsteps, to teach his precepts, to inculcate his spirit, to promote har- mony, charity, and Christian love! Out upon such hypocrisy! It is such conduct which renders the very name of our established clergy odious till it stinks in the nostrils; that makes our churches look like deserted sepulchres, rather than temples of the living God; that raises up conventicles in every corner, and increases the brood of wild fanatics and enthusiasts; that causes our beneficed dignitaries to be regarded as usurpers of their possessions; that deprives them of all pastoral influ- ence and respect; that in short has left them no support or prop in the attach- ment or veneration of the people. Sensible of the decline of their spiritual and moral influence, they cling to temporal power, and lose in their officiousness in poli- tical matters, even the semblance of the character of ministers of religion. It is impossible that such a system can last. It is at war with the spirit of the age, as well as with justice and reason, and the beetles who crawl about amidst its holes and crevices, act as if they were striving to provoke and accelerate the blow, which, sooner or later, will inevitably crush the whole fabric and level it with the dust." In the Court of King's Bench, Mr. Scarlett, then Attorney-general for the County Palatine, obtained on the 14th November a rule to show cause why a Criminal In- formation should not be filed against John Ambrose Williams, as the reputed pub- lisher of this paragraph, who indeed neverdenied that he was also its author. The first of the following speeches is the argument of Mr. Brougham, who with the late learned, able, and most excellent John Bonham Carter, (Member for Ports- mouth, and son-in-law of William Smith,) was of counsel for the defendant. The rule was, not without hesitation on the part of the court, made absolute, there being indeed, no similar instance of a rule so granted, where the party applying did not deny upon oath the matters charged against him in the alleged libel. It was not very easy to support by precedents a prosecution in this form, instituted for a libel against a body so little defined as " the Clergy of Durham;" still less such a body as the Information afterwards filed words them, "the Clergy residing in and near the city of Durham;" there being no means of ascertaining what distance this in- cluded, and consequently who the parties libelled really were. But it was a no- velty still greater and more alarming to receive as prosecutors by Criminal Infor- mation a purty who, under the shelter of this vagueness, made no affidavit of the falsehood r>f the charge, and thus escaped the performance of that condition under which all other parties are laid by the rule of the court when they apply for its ex- traordinary interposition, instead of proceeding by indictment. The Huh: being thus made absolute, the Information was filed, and went down to trial at the next summer assizes for the County Palatine, where it excited extraordinary interest from the parties, the subject and the spirit of political ani- mosity prevailing between the College and a large portion of the community. The cause was tried before Mr. Baron Wood, and the speech in Mr. Williams's defence forms the second and the principal of those connected with this extraordinary pro- ceeding. The jury were enclosed for above five hours, and returned a verdict which restricted the libel, and again raised one of the questions on the record, INTRODUCTION. 173 which had been argued in showing- cause against the Rule. The verdict was, "Guilty of publishing a libel n<rainst the clergy residing in and near the city of Durham and the suburbs thereof." The defendant, accordingly, next Michaelmas term, moved in arrest of judgment, and also for a new trial, when the third of these speeches was delivered viz., the argument on that motion. The result was, that Mr. Brougham obtained a Rule to show cause, but the matter stood over, the prosecutors never showing any cause, and consequently no judgment was ever pronounced, either upon the Rule or upon the defendant who thus was let go free as if he had been acquitted altogether by the jury. It was the general opinion of Westminster Hall, that no judgment could have been given upon the verdict which had been found. It was all but the general opinion there, that the granting this Rule for a libel so conceived, and above all, without the usual denial on the prosecutor's oath, was a wide and wholly unprecedented departure from the established practice in this most delicate and important matter, and the precedent now made has certainly never since been fol- lowed. The speech delivered on the trial at Durham naturally excited much attention at the time, from the nature of the subject; and perhaps this was increased by the notion which prevailed, that individuals of the cathedral were alluded to in it. But for this there could be no foundation. It was uniformly denied by Mr. Brougham; whose professional duty, while it required him freely to discuss the merits of the Chapitral establishment and the conduct of those forming its present members as a body, certainly did not call for any singling out of individuals; much less for any deviation from the act with which alone they were charged, namely, disrespect, for party purposes, towards the memory of the late Queen. The Chap- ter consisted of many most worthy, pious, learned, and able individuals; and though, while under the influence of party feelings, which clergymen ought never to indulge, they had been led astray on the particular occasion, their general con- duct was not in question, and was not made the subject of forensic discussion, either at the trial or in the court above. 15' ARGUMENT IN THE COURT OF KING'S BENCH, IN THE CASE OF JOHN AMBROSE WILLIAMS. JANUARY 25, 1822. MR. BROUGHAM, on the 25th January, being called upon to show cause why the Rule Nisi should not be made absolute, addressed the Court to the following effect: This was a Rule obtained by my friend, Mr. Scarlett, last term, calling on the defendant to show cause why a criminal information should not be filed against him for a libel on the Clergy of Durham, the matter being alleged to be libellous. My lords, before I proceed to call your attention to the alleged libel, and to the circumstances in which it was published, I shall in the first instance submit (as I think it will save a great deal of time) a preliminary, and, as it appears to me, a fatal objection to the proceedings altogether, arising out of the manner in which this Rule has been obtained. Your lordships will observe that this is not one of those cases of which a good deal has been heard lately, namely, of a prosecutor unknown to the law, but it is, in fact, the case of a prosecutor altogether unknown to the particular party it is an anonymous prosecution it is the most novel of all these recent novelties. I will defy any man to tell who the person is, or who the persons who the corporation, corporate or sole upon whose application this Rule was obtained. It is unnecessary for me to remind your lordships, that if an ofl'ence lias been com- mitted if a libel has been published or if any thing has been done which requires that the doors of justice should be open for punish- ment or redress the discharging this Rule does not close those doors; for, as was observed by my Lord Kenyon,in a case somewhat similar to the present, "the refusing this application does not close the door of justice; it only bars the access to justice by this particular avenue." So if a libel has been published, it is still Actionable or Indictable in the ordinary and regular manner. I submit that it is a mere novelty for a party to ask of the Court a Criminal Information in this extraor- LIBEL ON THE CLERGY OF DURHAM. 175 dinary fashion, without making himself known to your lordships, and appearing hero by atlidavit, it' need be; tor your lordships will easily remember, and indeed it has recently come a good deal under discus- sion, that where there are libellous publications of any specific matter, whether alone, or connected with others of a more vague description where, in short, either the whole or any part of the charge is of so precise a nature that an answer may be given it is necessary, before the application can be complied with, that those matters should be denied on the oath of the applicant. But even if there be no specific matter in the publication now in question before the Court; supposing it to be a case of a general and strictly political nature of an attack on the Church and State supposing it to be the case of a different, nay of an opposite description to that of the paper now accused for argument's sake I will suppose it to be any one of those publications which have been lately under the consideration of your lordships, and against which first a verdict, and then judgment have passed, so that no man can now be suffered to deny their libellous nature still I say that my learned friend, who obtained this Rule, must, before he can make it absolute, show a single instance in which your lordships have allowed such a libel to be prosecuted in this extraordinary manner, by Information. It may be prosecuted ex-ojfficio by the law officers of the Crown, or it may be indicted by an individual; but it cannot be prosecuted in this unheard-of manner, by a person unknown to the Court, and who, for any thing the Court can know, may have no existence. If it may, then may any person come forward as a pro- secutor: any gentleman at tho bar, who chances to be unoccupied, may rise in his place and move; he will only have to say, " I call on your lordships to put in motion the process of this Court; a libel has been published, and I call on you to grant me this application." But I think the court would exercise its discretion before it interposed to grant a Criminal Information in such a case. I say it is a mere novelty for the party who makes this application to be unknown to the Court, and I will defy my learned friend to show a single instance of the kind; at any rate, there is no one to be found since the statute of William and Mary was passed for regulating proceedings of this kind. It is unnecessary for me to waste the time of the Court in showing the consequence of your lordships granting this Information. Ii a person may come forward and apply, putting himself in the office of public prosecutor (an office unknown in our law), what would happen? Why, any gentleman at the bar, without retainer, authority, or instructions any young amateur in prosecutions might rise up and say, " I am to move for a Rule to show cause why a Criminal Information should not be filed against A. B ," and he would obtain it without more ado; nay, the process of the court would immediately after is>ue, provided he only complied with the statu- tory condition of entering into a recognizance for 20/., which, indeed, any one might do for him. 1 say, if your lordships acquiesce in the present application; if the Information is granted to my friend Mr. Scarlett; I can sec no reason why it should not be granted to any 176 LIBEL ON THE CLERGY OP DURHAM. other gentleman at the bar. My lords, I am exceedingly unwilling to enter into the particular merits of this case; bnt I think I can satisfy your lordships that, independent of the preliminary objection which I have taken, this court cannot interpose to relieve the parlies in the particular circumstances of this case; supposing those parties to be the Durham clergy; but that it will leave them to their proper and ordinary course of proceeding by Indictment. I think I could satisfy your lordships that there is no ground for this Court's interposing, by shortly adverting to the circumstances of the case; but it would be an unpleasant discussion, as it respects the character of individuals, mem- bers of an ecclesiastical body of great note, which is justly venerated in this country. I say, my lords, I am extremely unwilling to be dragged into the details connected with this case, unless I am told that it is necessary by yonr lordships disposing of this preliminary objection. The Judges consulted for several minutes, and while they were deliberating, MR. BROUGHAM said, perhaps your lordships will allow me to refer you to a case; it is the only one that I can refer you to; for, as I said before, this is the first time that an attempt of the sort has been made: I allude to the King v. Phillips, in 4th Burr., 2009. That was a case in which the then Attorney-general, in his place in Court, moved for a Rule to show cause why a Criminal Information should not be filed, and the Court said, " for whom do you apply?" The LORD CHIEF JUSTICE. Was that a case of public or private libel? That was a libel upon a private individual. Was it not, Mr. Brougham? MR. BROUGHAM. It was not a libel, my lord; it was for an offence of a public nature. MR. CARTER. It was for a misdemeanor, committed by a magis- trate in the execution of his office. The LORD CHIEF JUSTICE. Ah, it was an offence against some par- ticular individual. MR. BROUGHAM. Yes, my lord, and there the court said, " for whom do you make this application?" when the Attorney-general immedi- ately said, " I make it on behalf of the Crown." There the court seemed to have reckoned that it was incumbent on them to ascertain who the party applying was. The LORD CHIEF JUSTICE. I think that was very properly said to the Attorney-general. 1 recollect something of the same kind happening here, when I said, " for whom do you move?" It was replied, "I move individually;" there the counsel was appearing in the character of any other gentleman at the bar; but if lie says I move as Attorney-general, or generally for the Crown, that is the dis- tinction. The Judges again consulted for a short time, after which, The LORD CHIEF JUSTICE said It will not be convenient to take the parts separately. MR. BROUGHAM. Not to take them separately, did your lordship say? LIBEL ON THE CLERGY OF DURHAM. 177 The LORD CHIEF JUSTICE. Yes. MR. BROUGHAM. Then I liave further to request your lordship's attention to the very strict manner in which the court has in all in- stances required an affidavit denying the truth of any matters charged, where those matters were specific enough to be made the subject of denial by affidavit, or where any portion of the matter was so specific as to be capable of being denied by affidavit. MR. JUSTICE BAYLEY. If the libel charges a crime on an individual, it must be denied; but not if the character of the libel is the same, whether it is true or false. MR. BROUGHAM. I apprehend that when a party is charged with a libel, and that charge consists of any specific fact, that fart ought at all events to be denied. The LORD CHIEF JUSTICE. What is the fact that you say ought to be denied? MR. BROUGHAM. There are several facts, my lord. The LORD CHIEF JUSTICE. Well, what are they? state what they are. MR. BROUGHAM. The first is that which is alleged respecting the Cathedral church and other churches of the city of Durham, namely, that they did riot show the usual mark of respect to the royal family; and this resolves itself into a charge against the clergy of Durham, that they failed in paying the respect due to the royal family, by forbidding the bells to be tolled on the demise of one of its most considerable branches. That is the charge, and it rests upon a fact of such a specific nature, that it might have been made the subject of a distinct denial, and, we contend, ought to have been denied: if, indeed, after all, this party, namely, the clergy of Durham, is the party con- cerned in the present application. MR. JUSTICE BAYLEY. In granting a criminal information there must be some fact. The; question here is, did ihey pay that mark of respect; and if that fact is not negatived on the part of the person making this application, that will warrant the court in concluding that the fact is true. We may assume that the bell was not tolled, that is a matter for the discretion of the court. MR. BROUGHAM. I do not mean to deny that it is entirely mat- ter for the discretion of the court; because this whole proceeding is an appeal to its discretionary powers; but it is equally clear that the discretion will now be exercised, as it always has been, soundly, and according to the known rules and principles long since established by the court, and by which its discretion is distinctly limited. One of those fixed rules is, that the party applying for a Criminal Information shall deny the truth of the charge of winch lie complains. 1 have already reminded your lordships of this principle, and that such an application cannot be granted unless the party brings forward his denial in the first instance. According to the principles of all the decided cases, it is not enough to say that, be the matter true or false, the publication is libellous, and should be prosecuted. Prosecuted it may be, whether true or false, but not in this manner; the merits of 178 LIBEL ON THE CLERGY OF DURHAM. the party applying for this extraordinary interference of the court are the sole grounds of its interposition. For example there is the case of the King v. Bate, on the Duke of Richmond's application, where the matter was much discussed; and the general rule was laid down, that whoever he the prosecutor, he must deny the truth of all specific charges. The LORD CHIEF JUSTICE. What is the subject matter of fact here; your assertion is, that the clergy of Durham did not pay that mark of respect which they ought to have paid in memory of the deceased Queen. Now go on and read the rest, and let us see whether any affidavit can be made with respect to the rest. MR. BROUGHAM. In the Kingr. Bate it is laid down that when the fact or any part of the fact charged is of a specific nature, it must be denied. MR. JUSTICE BATLET. Then we must look to what was the sub- ject of that application; if a libel is published which imputes to a man a crime, and he will not state by his affidavit that he is innocent of that crime; in that case the court will say, " you are not a person to whom we will give relief;" if a man is charged with a crime and he neglects to negative that fact by affidavit, that entitles the court to consider that the fact which is so charged and not negatived, is a true fact. Now in this case, here is an imputation of a crime, and if the court is to take the fact to be true, that is a ground why the court should not interfere. But there may be a case, (I do not say that there is one.) but there may be a case where the imputation is not a charge of a crime, and there the fact not being denied may be taken to be true; still the libel may justify this extraordinary mode of pro- ceeding. MR. BROUGHAM. That is the point at issue, my lord. Next I have to submit that all, or almost all this paragraph is a charge against a particular body, and that the body ought, in applying for this Rule, to have negatived it by affidavit. Your lordship will recollect that it is laid down in all the cases, that the highest as well as the lowest parties, with the single exception of the Queen-Consort, in applying to this court for an Information, fall equally within the rule, namely, that their merits are to enter into the consideration of the court, and that they are bound to remove the imputation from themselves when they seek this peculiar remedy. MR. JUSTICE HOLROYD. It is not so in every case; where a party seeks for the interposition of a court, as in the case of a challenge for instance, on account of the public safety and public peace, the court does not refuse the information upon the motion of the party, though the applicant be not blameless. MR. BROUGHAM. Undoubtedly, my lord; but, nevertheless, lam sure that your lordship will bear me out in the assertion, that there never is an application to this Court for a Criminal Information on account of a quarrel, in which the whole circumstances attending that quarrel are not gone into, and the merits of the party making the ap- plication scrupulously investigated. The party resisting the applica- LIBEL ON THE CLERGY OF DURHAM. 179 tion is allowed to go at large into all the circumstances of the offence committed, or alleged to he committed, by the party applying; these are always most fully brought before the Court in order to show on what ground the applicant stands. In order that tin; ends of justice may be satisfied, a minute investigation of the conduct of both parties is entered into by the Court: and though the conduct of the person insulted is no defence in law for the person insulting, yet if it has been blameworthy, it is held an answer to the demand made for leave to proceed by Information. And now I am compel'ed, however reluc- tant, to go into the merits of this ease; and I am !' treed to seek about in order to ascertain the party with whom I am contending. It is quite obvious that it must be some person connected with the Cathe- dral of Durham. The LORD CHIEF JUSTICE. Certainly it is not the conduct of the Cathedral alone; it cannot be applied to them alone. MR. BROUGHAM. When I make use of that expression, I mean the clergy of the city the Cathedral and the city together for un- doubtedly it refers to both, though most especially to the Cathedral. It is distinctly sworn in the affidavit of the defendant, that those ob- servations referred exclusively to the Durham clergy; and that they did not apply to the clergy of the Church generally; and I still have again to complain, even in this part of the argument, of not knowing precisely whom I am contending with; because, for any thing I know, it may be the very description of persons mentioned in the preamble of the statute, " those malicious and contentious persons who, more of late than in former times, have been engaged in prosecutions of this kind." Hut whoever the persons may be who move in this matter, it is plain, at any rate, that the merits of the parties of and concerning whom this charge is made, are directly in issue before your lordships. Now, in tracing the origin of this dissension, I have first of all to state, that the altercations in which those clergymen nnd others have been for some time past engaged, nrc such as to justify your lordships in refusing to lend yourselves to their designs; and leaving these clerical parties to their remedy by action, or by indictment before a grand jury, that you will be justified in refusing to grant the request now made. It is sworn by the defendant, that those clergymen have of late, nnd for some years past, taken a very active part, not only in the political dissensions of the country, but most especially in those locally relating to the county and city of Durham. They were all on one side, most active agents, who spared no pains to render themselves serviceable to one party; and not only to thwart the designs, but to blacken the character of their antagonists. The LOUD CHIEF JUSTICE. This is upon the affidavit I suppose, Mr. Brougham? MH. BROUGHAM. It is in substance upon the affidavit, my lord; the facts are set forth there with much particularity, and I shall come to them immediately. I should IK; sorry now not to cuter into the details, since I am forced to abandon my preliminary objection. I may add that they not only made themselves the most active political 180 LIBEL ON THE CLERGY OP DURHAM. agents, but that they scrupled at no means of annoyance, and hesi- tated at no excess of falsehood and malignity in order to accomplish their purposes; their secular, parly, factious, selfish purposes. I should be sorry to annoy the ears of your lordships with a specimen of their vile abuse. MR. SCARLKTT. I do not find that in the affidavit. MR. BROUGHAM. I mean the persons whose conduct I have al- luded to. The LORD CHIEF JUSTICE. Who are they? MR. BROUGHAM. Certain members of the clergy of the church of Durham. The LORD CHIEF JUSTICE then read the libel, after which he said, " I do not see how it can apply to the clergy of Durham only." MR. BROUGHAM. I am to submit, my lord, that it does apply to the church and clergy of Durham only. We have distinctly sworn that it applies to them, and if we had no other means of showing it, I submit that that is the fair construction of the commentaries on their conduct; that it applies exclusively to them. It is made in the course of remarks upon a particular thing done by the Durham clergy, and stated in the alleged libel to be done by them alone. Undoubtedly there are one or two severe expressions; the word " brutal" for in- stance, is used, but the defendant may well say to that " non meus hie sermo;" he copied the word from an attack made upon many per- sons, and among others on himself, by one of those very clergymen of Durham. In this attack the same word " brutal'" is most freely used. The passage in the paragraph which says, "it is such conduct that renders the very name of our Established clergy odious till it stinks in the nostrils," is a strong, a harsh, and (if you will) a coarse mode of speech. But, again, it is not the speech of the defendant. For it is to be found in the writings of a venerable author; who says of a certain body, that they are " as the Jlugex Stabuhim, and do stink in the nose of God and his people." These expressions are ap- plied by him not to such as the defendant or his party, but to higher quarters. What if they are used to describe a clerical body? What if that body be this very Cathedral of Durham? What if the writer be one of the body himself? What if it be their very Bishop, who thus strongly and somewhat coarsely describes them? MR. JUSTICE BAYLEY. What year was that in? MR. BROUGHAM. He was a protestant bishop Bishop Barnes. It was in the reign of Elizabeth. I only cite his lordship's words to show that those expressions, harsh as they may seem to be, which the defendant has used, are not without the warrantry of high authority, upon a parallel occasion. Now I have to remind your lordshi-ps, not only that the contents of the publication are true, but that it has been provoked by the conduct of the clergy themselves, who have thought proper to publish pamphlets filled with the most foul and false asper- sions against this very defendant. One of them has written a tract, in which lie distinctly terms Mr. Williams, if not by name, at least by his designation as Editor of the Durham Chronicle, "a hireling and LIBEL ON THE CLERGY OF DURHAM. 181 fulsome panegyrist;" an odious character, doubtless, and worthy of all contempt; but not more hateful nor more despicable than the man who combines with it in his own person, the part of an hireling ca- lumniator; earning a portion of his hire by fulsome ilattery to his rich and powerful employer, and working out the residue in foul slanders of those who cannot or will not buy him. It is against such persons; it is of and concerning such vocations, the scandal and disgrace of the Church, not the establishment itself, that these remarks are made; it is in such conduct, and such characters, that ihese strictures find their justification, generally; but most of all is this defendant entitled thus to express himself, who has been made the object of these mercenary attacks. Another of the gentlemen, with his name, (a Mr. Philpotts) publishes a pamphlet, in which he describes Mr. Williams as "a mi- serable mercenary who eats the bread of prostitution, and panders to the low appetites of those who cannot or who dare not cater for their own malignity." I think that the coarseness and virulence with which these observations have been made by those reverend gentle- men, will at once be allowed fully to justify the remarks of the defen- dant in return; and when your lordships see that abuse has been thus bandied about on the one side and on the other, in the violence of con- flicting secular passions, I trust that you will not lend yourselves to the parties whose indecent animosity has drawn forth the comments of the defendant, by permitting them to come into this court and seek the protection reserved for those whose hands are pure, and whose demeanor will bear the closest inspection. Nor is it only individuals of the body who have mixed themselves with such intemperance in the squabbles of party, and forgotten the sacred character which should belong to their station. There was a meeting of the whole clergy some time previous to the date of the publication in question. It was a meeting an assembly officially convened, and holden at the house of the Archdeacon of the Diocese. Your lordships will find that the body of the clergy were there con- vened, upon whose conduct as political men these remarks have been made; and at that meeting they thought fit to pass a censure in the most unmeasured terms, (amounting certainly to a breach of privilege) upon a part at least of the Parliament to make an attack upon what passed there, charging persons and parties with "having been guilty in the highest places of conduct which would disgrace the lowest." If any doubt remains as to whom these observations were levelled at, the author of the address, and of the publication to which I have already referred, in commenting on a mistake committed by some one, removes that doubt, for he clearly shows that the address referred to what passed in the House of Lords. Now I will, before concluding, beg leave to give your lordships a sample of the decency and regard for truth which guide those calumniators who are now complaining of what they call false and scandalous libels. In the pamphlet to which I first adverted, you will find statements which are not only positively sworn to be as false as they are malignant, but some of which arc so notoriously false, (though not more false than VOL. i. 10 182 LIBEL ON THE CLERGY OP DURHAM. foul, allow me to say) that I will venture to say no man, let him he of what political description, or of what rank or class he may, can fail to receive them with extreme disgust. Thus it is positively asserted by one of those reverend partizans, that after the proceed- ings in 1806, with respect to the late Queen, she never durst go to court, but that she remained absent from court from 1806 down to 1814, and of course down to the date of the proceedings against her that in consequence of what took place in 1S06, she remained under a CLOUD; whereas, it is as notorious as the sun at noonday, that the very party who since persecuted her, insisted, on her being received at court, the instant that they got into office in 1807; that it was at their instigation she was received at court, and that she con- stantly attended it afterwards while the late King* retained his health; that so far from those ministers being able to maintain that the pro- ceedings in 1806 had left her Majesty under a CLOUD, their objection to these proceedings was one of the grounds upon which they made her the stepping-stone to place and power; and that, not satisfied with the resolution of 1806 acquiting her of guilt, they made a point of revising all that had been done, and entered, as far as the strongest words could convey it, their solemn protest against all the proceedings which had taken place against her, leaving on record their most ample assertion of her innocence. I give you this as a specimen, (for it is only by sample that I shall deal with so foul a cargo); it is a specimen of the conduct of those clergymen in their secular capacity of political agents, in which they have so greately abused the name the more sacred name that ought to belong to them. In another passage of the same pamphlet, her late Majesty is spoken of in terms closely resembling those for which another reverend slanderer is now suffer- ing the sentence of the law. If there be a squabble between con- flicting parties in a county, as to its local politics; and if in the heats of the controversy, the character of an individual or body is assailed, let him bring his action in the ordinary manner, or, if he pleases, prefer a Bill of Indictment. In the present case I submit to your lordships, that, independent of the primary objection which I have taken, namely, that this is the first time an application of the kind has been made without the appearance of the party in his own name independent of the nature of the publication to which it refers I submit that your lordships will not feel justified in granting the appli- cation which has been made without the appearance of the party in his own name; and that you will leave those who made it to their ordinary remedy by Indictment, seeing that their own conduct has called forth the strictures of which they complain, and that they were the first to slander their neighbor. * George III. SPEECH DEFENDANT, AT THE DURHAM ASSIZES, AUGUST 9, 1822. MAY IT PLEASE YOUR LORDSHIP GENTLEMEN OF THE JURY: My learned friend, the Attorney-general for the Bishop of Durham, hav- ing at considerable length offered to you various conjectures as to the line of defence which he supposed I should pursue upon this occasion; having nearly exhausted every topic which I was not very likely to urge, and elaborately traeed, with much fancy, all the ground on which I could hardly be expected to tread perhaps it may be as well that /should now, in my turn, take the liberty of stating to you what really is the defendant's case, and that you should know from myself what I do intend to lay before you. As my learned friend has indulged in so many remarks upon what I shall not say, 1 may take leave to offer a single observation on what ho has said; and I think I may appeal to any one of you who ever served upon a jury, or witnessed a trial, and ask if you ever, before this day, saw a public prosecutor who stated his case with so much art and ingenuity wrought up his argument with such pains wandered into so large a field of declamation or altogether performed his task in so elabo- rate and eloquent a fashion as the Attorney-general has done upon the present occasion. I do not blame this course. I venture not even to criticise the discretion he has exercised in the management of his cause; and I am far indeed from complaining of it. But I call upon you to declare that inference which I think you must already have drawn in your own minds, and come to that conclusion at which I certainly have arrived that he felt what a laboring case fie had that lie was aware how very different his situation to-day is from any he ever before knew in a prosecution for libel and that the extraordinary pressure of the difficulties he had to struggle with, drove him to so unusual a course. lie has called the defendant " that iinlmpjiy num." Unhappy he will be indeed, but not the only unhappy man in this country, if the doctrines laid down l>y my learned friend are sanctioned by your verdict; for those doctrines, I 184 LIBEL ON THE CLERGY OF DURHAM. fearlessly tell you, must, if established, inevitably destroy the whole liberties of us all. Not that he has ventured to deny the right of discussion generally upon all subjects, even upon the present, or to screen from free inquiry the foundations of the Established Church, and the conduct of its ministers as a body, (which I shall satisfy you are not even commented on in the publication before you). Far from my learned friend is it to impugn those rights in the abstract; nor in- deed have I ever yet heard a prosecutor for libel an Attorney-gene- ral (and I have seen a good many in my time) whether of our Lord the King or our Lord of Durham, who, while in the act of crushing every thing like unfettered discussion, did not preface his address to the jury with " God forbid that the fullest inquiry should not be allowed;" but then the admission had invariably a condition follow- ing close behind, which entirely retracted the concession "provided always the discussion be carried on harmlessly, temperately, calmly" that is to say, in such a manner as to leave the subject untouched, and the reader unmoved; to satisfy the public prosecutor, and to please the persons attacked. My learned friend has asked if the defendant knows that the Church is established by law? He knows it, and so do I. The Church is established by law, as the civil government as all the institutions of the country are established by law as all the offices under the Crown are established by law, and all who fill them are by the law protected. It is not more established, nor more protected, than those institutions, officers, and office-bearers, each of which is recognised and favored by the law as much as the Church: but I never yet have heard, and I trust I never shall; least of all do I expect in the lesson which your verdict this day will read, to hear, that those officers and office-bearers, and all those institutions, sacred and secular, and the conduct of all, whether laymen or priests, who administer them, are not the fair subjects of open, untrammelled, manly, zealous, and even vehement discussion, as long as this coun- try pretends to liberty, and prides herself on the possession of a Free Press. In the publication before you, the defendant has not attempted to dispute the high character of the Church; on that establishment or its members, generally, he has not endeavored to fix any stigma. Those topics, then, are foreign to the present inquiry, and I have no interest in discussing them; yet after what has fallen from my learned friend, it is fitting that I should claim for this defendant, and for all others, the right to question, freely to question, not only the conduct of the ministers of the Established Church, but even the foundations of the Church itself. It is indeed unnecessary for my present purpose, be- cause I shall demonstrate that the paper before you does not touch upon those points ; but unnecessary though it be, as my learned friend has defied me, I will follow him to the field, and say, that if there is any one of the institutions of the country, which more em- phatically than all the rest, justifies us in arguing strongly, feeling powerfully, and expressing our sentiments as well as urging our rea- LIBEL ON THE CLERGY OF DURHAM. 185 sons with vehemence, it is that branch of the state which, because it is sacred, because it bears connection with higher principles than any involved in the mere management of worldly concerns, for that very reason, entwines itself with deeper feelings, and must needs be dis- cussed, if discussed at all, with more warmth and zeal than any other part of our system is fitted to rouse. But if any hierarchy in all the world is bound on every principle of consistency if any Church should be forward not only to stiller but provoke discussion, to stand upon that title and challenge the most unreserved inquiry it is the Protestant Church of England; first, because she has nothing to dread from it; secondly, because she is the very creature of free inquiry the offspring of repeated revolutions and the most reformed of the reformed churches of Europe. But surely if there is any one corner of Protestant Europe where men ought not to be rigorously judged in ecclesiastical controversy where a large allowance should be made for the conflict of irreconcilable opinions where the harshness of jarring tenets should be patiently borne, and strong, or even violent language, be not too narrowly watched it is this very realm in which we live under three different ecclesiastical orders, and owe allegiance to a sovereign, who, in one of his kingdoms, is the head of the church, acknowledged as such by all men; while, in another, neither he nor any earthly being is allowed to assume that name a realm com- posed of three great divisions, in one of which Prelacy is favored by law and approved in practice by an Episcopalian people; while, in another, it is protected indeed by law, but abjured in practice by a nation of sectaries, Catholic and Presbyterian; and, in a third, it is abhorred alike by law and in practice, repudiated by the whole in- stitutions of the country, scorned and detested by the whole of its inhabitants. His Majesty, almost at the time in which I am speaking, is about to make a progress through the northern provinces of this island, accompanied by certain of his chosen counsellors, a portion of men who enjoy unenvied, and in an equal degree, the admiration of other countries and the wonder of their own and there the Prince will see much loyalty, great learning, some splendor, the remains of an ancient monarchy, and of the institutions which made it flourish. But one thing he will not sen. Si range as it may seem, and to many who hear me incredible, from one end of the country to the other he will see no such thing as a bishop; not such a thing is to be found from the Tweed to John o' Groats; not a mitre; no, nor so much as a minor canon, or even a rural dean; and in all the land not one single curate, so entirely rude and barbarous are they in Scotland; in such outer darkness do they sit, that they support no cathedrals, main- tain no pluralists, suffer non-residence; nay, the poor benighted crea- tures are ignorant even of tithes. Not a sheaf, or a lamb, or a pi?, or the value of a plough-penny do the hapless mortals render from year's end to year's end! Piteous as their lot is, what makes it infi- nitely more touching, is to witness the return of good for evil in the demeanor of this wretched race. Under all this cruel neglect of their spiritual concerns, they are actually the most loyal, contented, moral, 1C* 186 LIBEL ON THE CLERGY OF DURHAM. and religious people anywhere, perhaps, to be found in the world. Let us hope (many, indeed, there are, not afar off, who will with unfeign- ed devotion pray) that his Majesty may return safe from the dangers of his excursion into such a country an excursion most perilous to a certain portion of the church, should his royal mind be infected with a taste for cheap establishments, a working clergy, and a pious congregation! But compassion for our brethren in the north has drawn me aside from my purpose, which was merely to remind you how preposterous it is in a country of which the ecclesiastical polity is framed upon plans so discordant, and the religious tenets themselves are so various, to require any very measured expressions of men's opinions, upon questions of church government. And if there is any part of Eng- land in which an ample license ought more especially to be admitted in handling such matters, I say without hesitation it is this very Bishopric, where in the 19th century, you live under a Palatine Prince, the Lord of Durham; where the endowment of the hierarchy, I may not call it enormous, but I trust I shall be permitted without offence to term splendid; where the establishment I dare not whisper proves grinding to the people, but I will rather say is an incalculable, an inscrutable blessing only it is prodigiously large; showered down in a profusion somewhat overpowering; and laying the inhabitants under a loadofobligaiion overwhelming by its weight. It is in Durham where the Church is endowed with a splendor and a power unknown in monkish times and popish countries, and the clergy swarm in every corner, an' it were the patrimony of St. Peter it is here where all man- ner of conflicts are at each moment inevitable between the people and the priests, that I feel myself warranted on their behalf, and for their protection for the sake of the Establishment, and as the discreet advocate of that Church and that clergy for the defence of their very existence to demand the most unrestrained discussion for their title and their actings under it. For them in this ago, to screen their con- duct from investigation is to stand self-convicted; to shrink from the discussion of their title, is to confess a flaw; he must be the most shallow, the most blind of mortals, who does not at once perceive that if that title is protected only by the strong arm of the law, it be- comes not worth the parchment on which it is engrossed, or the wax that dangles to it for a seal. I have hitherto all along assumed, that there is nothing impure in the practice under the system; I am admitting that every person engaged in its administration does every one act which he ought, and which the law expects him to do; I am supposing that up to this hour not one unworthy member has entered within its pale; I am even presuming that up to this moment not one of those indi- viduals has slept beyond the strict line of his sacred functions, or given the slightest offence or annoyance to any human being. I am taking it for granted that they all act the part of good shepherds, making the welfare of their flock their first care, and only occasionally bethinking them of shearing in order to prevent the too luxuriant growth of the fleece proving an incumbrance, or to eradicate disease. LIBEL ON THE CLERGY OP DURHAM. 187 If, however, those operations be so constant that the flock actually live under the knife; if the shepherds are so numerous, and employ so large a troop of the watchful and eager animals that attend them (some of them too with a cross of the fox, or even the wolf, in their breed) can it be wondered at, if the poor creatures thus fleeced, and hunted, and barked at, and snapped at, and from time to time wor- ried, should now and then bleat, dream of preferring the rot to the shears, and draw invidious, possibly disadvantageous comparisons between the wolf without, and the shepherd within the fold it can- not be helped; it is in the nature of things that suffering should beget complaint; but for those who have caused the pain to complain of the outcry and seek to punish it for those who have goaded to scourge and to gag, is the meanest of all injustice. It is moreover the most pitiful folly for the clergy to think of retaining their power, privileges, and enormous wealth, without allowing free vent for com- plaints against abuses in the Establishment and delinquency in its members; and in this prosecution they have displayed that folly in its supreme degree. I will even put it that there has been an attack on the hierarchy itself; I do so for argument's sake only; denying all the while, that any thing like such an attack is to be found within the four corners of this publication. But suppose it had been otherwise; I will show you the sort of language in which the wisest and the best of our countrymen have spoken of that Establishment. I am about to read a passage in the immortal writings of one of the great- est men, I may say, the greatest genius, which this country or Europe, has in modern times produced. You shall hear what the learned and pious Milton has said of prelacy. He is arguing against an Episcopalian antagonist, whom, from his worldly and unscriptural doctrines, he calls a " Carnal Text man;" and it signifies not that we may differ widely in opinion with this illustrious man; I only give his words as a sample of the license with which he was permitted to press his argument, and which in those times went unpunished: "Thai which he imputes as sacrilege to his country, is the only way left them to purge that abominable sacrilege out of the land, which none but the prelates are guilty of; who for the discharge of one single duty receive and keep that which might be enough to satisfy the labors of many painful ministers better deserving than themselves who possess huge benefices for lazy performances, great promotions only for the exercise of a cruel disgospelling jurisdiction who engross many pluralities under a non-resident and slumber- ing dispatch of souls who let hundreds of parishes famish in one diocese, while they the prelates are mute, and yet enjoy that wealth that would furnish all those dark places with able supply; and yet they eat and yet they live at the rate of earls, and yet hoard up; they who chase away all the faithful shepherds of the flock, and bring in a dearth of spiritual food, robbing thereby the church of her dearest treasure, and sending herds of souls starving to hell, while they feast and riot upon the labors of hireling curates, consuming and purloin- ing even that which by their foundation is allowed and left to the 188 LIBEL ON THE CLERGY OP DURHAM. poor, and the reparation of the church. These are they who have bound the land with the sin of sacrilege, from which mortal engage- ment we shall never be free, till we have totally removed with one labor, as one individual thing, prelaty and sacrilege." " Thus have ye heard, readers," (he continues, after some advice to the Sovereign, to check the usurpations of the hierarchy) "how many shifts and wiles the prelates have invented to save their ill-got booty. And if it be true, as in Scripture it is foretold, that pride and covetousness are the sure marks of those false prophets which are to come, then boldly conclude these to be as great seducers as any of the latter times. For between this and the judgment day do not look for any arch-deceivers, who in spite of reformation will use more craft, or less shame to defend their love of the world and their ambition, than these prelates have done."* If Mr. Williams had dared to publish the tithe part of what I have just read; if any thing in sentiment or in language approaching to it were to be found in his paper, I should not stand before you with the confidence which I now feel; but what he has published forms a direct contrast to the doctrines contained in this passage. Nor is such language confined to the times in which Milton lived, or to a period of convulsion when prelacy was in danger. I will show you that in tranquil, episcopal times, when the church existed peacefully and securely as by law established, some of its most distinguished mem- bers, who have added to its stability as well as its fame, by the autho- rity of their learning and the purity of their lives, the fathers and brightest ornaments of that church, have used expressions nearly as free as those which I have cited from Milton, and tenfold stronger than any thing attributed to the defendant. I will read you a passage from Bishop Burnet, one of those Whig founders of the Constitution, whom the Attorney-general has so lavishly praised. He says, " I have lamented during my whole life that I saw so little true zeal among our clergy; I saw much of it in the clergy of the Church of Rome, though it is both ill-directed and ill-conducted; I saw much zeal, likewise, throughout the foreign churches." Now comparisons are hateful to a proverb; and it is for making a comparison that the defendant is to-day prosecuted; for his words can have no application to the church generally, except in the way of comparison. And with whom does the venerable Bishop here com- pare the clergy? Why, with Antichrist with the Church of Home casting the balance in her favor giving the advantage to our ghostly adversary. Next comes he to give the Dissenters the prefer- ence over our own clergy: a still more invidious topic; for it is one of the laws which govern theological controversy almost as regularly as gravitation governs the universe, that the mutual rancor of conflict- ing sects is inversely as their distance from each other; and with such hatred do they regard those who are separated by the slightest shade of opinion, that your true intolerant priest abhors a pious sectary far * Apology for Smectymnuus published in 1G42. LIBEL ON THE CLERGY OF DURHAM. 189 more devoutly than a blasphemer or an atheist: yet to the sectary also does the good Bishop give a decided preference: "The dissenters have a great deal (that is of zeal) among them, but I must own that the main body of our clergy has always appeared dead and lifeless to me; and instead of animating one another, they seem rather to lay one another asleep." " I say it with great regret," (adds the Bishop) " I have observed the clergy in all the places through which I have travelled, Papists, Lutherans, Calvinists and Dissenters; but of them all, our clergy is much the most remiss in their labors in private, and the least severe in their lives. And let me say this freely to you, now I am out of the reach of envy and censure;" (he bequeathed his work to be given to the world after his death) "unless a better spirit possess the clergy, arguments and, which is more, laws and authority will not prove strong enough to preserve the church."* I will now show you the opinion of a very learned and virtuous writer, who \vas much followed in his day, and whose book, at that time, formed one of the manuals by which our youth were taught the philosophy of morals to prepare them for their theological studies, I mean Dr. Hartley: " I choose to speak of what falls under the observation of all serious attentive persons in the kingdom. The superior clergy are in general ambitious, and eager in the pursuit of riches flatterers of the great, and subservient to party interest negligent of their own particular charges, and also of the inferior clergy. The inferior clergy imitate their superiors, and in general take little more care of their parishes than barely what is necessary to avoid the censure of the law; and the clergy of all ranks are in general either ignorant, or if they do apply, it is rather to profane learning, to philosophical or political matters, than in the study of the Scriptures, of the oriental languages, and the Fathers. I say this is in general the case; that is, far the greater part of the clergy of all ranks in the kingdom are of this kind." I here must state that the passage I have just read is very far from meeting my approval, any more than it speaks the defendant's senti- ments, and especially in its strictures upon the inferior clergy; for cer- tainly it is impossible to praise too highly those pious and useful men, the resident, working parish priests of this country. I speak not of the dignitaries, the pluralists and sinecurists, but of men neither pos- sessing the higher preferments of the church, nor placed in that situation of expectancy so dangerous to virtue; the hard working, and I fear too often hard living, resident clergy of this kingdom, who are an ornament to their station, and who richly deserve that which in too many instances is almost all the reward they receive, the gratitude and veneration of the people committed to their care. But I read this passage from Dr. Hartley, not as a precedent followed by the defendant; for lie has said nothing approaching to it not as propound- ing doctrine authorised by the fact; or which in reasoning he approves * History of His own Times, ii, Gil. 190 LIBEL ON THE CLERGY OP DURHAM. but only for the purpose of showing to what lengths such discussion of ecclesiastical abuses, (which, it seems, we are now, for the first time, to hold our peace about) was carried near a century ago, when the freedom of speech, now to be stifled as licentiousness, went not only unpunished, but unquestioned and unblamed. To take a much later period, I hold in my hand an attack upon the hierachy by one of their own body a respectable and beneficed clergyman in the sister county Palatine of Chester, who undertook to defend the Christian religion, itself the basis, I presume I may venture to call it, of the Church, against Thomas Paine. In the course of so pious a work, which he conducted most elaborately, as you may perceive by the size of this volume, he inveighs in almost every page against the abuses of the Establishment, but in language which I am very far from adopting. In one passage is the following energetic, and I may add. somewhat violent invective, which I will read, that you may see how a man, unwearied in the care of souls, and so zealous a Christian that he is in the act of confuting infidels and putting scoffers to silence, may yet, in the very course of defending the church and its faith, use language, any one word of which, if uttered by the defendant, would make my learned friend shudder at the license of the modern press upon sacred subjects. " We readily grant, therefore, you see, my countrymen, that the cor- ruptions of Christianity shall be purged and done away; and we are persuaded the wickedness of Christians so called, the lukewarmness of professors, and the reiterated attacks of infidels upon the Gospel, shall all, under the guidance of infinite wisdom, contribute to accom- plish this end." I have read this sentence to show you the spirit of piety in which the work is composed; now see what follows: " The lofty looks of lordly prelates shall be brought low; the super- cilious airs of downy doctors and perjured pluralists shall be humbled; the horrible sacrilege of non-residents, who shear the fleece, and leave the flock thus despoiled to the charge of uninterested hirelings that care not for them, shall be avenged on their impious heads. Intemperate priests, avaricious clerks, and buckish parsons, those curses of Chris- tendom, shall be confounded. All secular hierarchies in the church shall be tumbled into ruin; lukewarm formalists of every denomina- tion, shall call to the rocks and mountains to hide them from the wrath of the Lamb." This is the language these are the lively descriptions these the warm, and I will not hesitate to say, exaggerated pictures which those reverend authors present of themselves; these are the testimonies which they bear to the merits of one another; these are opinions com- ing, not from the enemy without, but from the true, zealous, and even intemperate friend within. And can it be matter of wonder that laymen should sometimes raise their voices tuned to the discords of the sacred choir? And are they to be punished for what secures to clergymen followers, veneration, and preferment? But I deny that Mr. Williams is of the number of followers; I deny that he has taken a leaf or a LIBEL ON THE CLERGY OF DURHAM. 191 line out of such books; I deny that there is any sentiment of this cast, or any expression approaching to those of Dr. Simpson, in the publi- cation before you. But I do contend that if the real friends of the church, if its own members, can safely indulge in such language, it is ten thousand times more lawful for a layman, like the defendant, to make the harmless observations which he has published, and in which I defy any man to show me one expression hostile to our ecclesiastical establishment. [Mr. Brougham then read the following passage from the libel:] " We know not whether any actual orders were issued to prevent this customary sign of mourning; but the omission plainly indicates the kind of spirit which predominates among our clergy. Yet these men profess to be followers of Jesus Christ, to walk in his footsteps, to teach his precepts, to inculcate his spirit, to promote harmony, cha- rity, and Christian love! Out upon such hypocrisy!" That you may understand the meaning of this passage, it is neces- sary for me to set before you, the picture my learned friend was pleased to draw of the clergy of the Diocese of Durham, and I shall recall it to your minds almost in his own words. According to him they stand in a peculiarly unfortunate situation; they are, in truth, the most in- jured of men. They all, it seems, entertained the same generous sen- timent with the rest of their countrymen, though they did not express them in the old, free, English manner, by openly condemning the pro- ceedings against the late Queen; and after the course of unexampled injustice against which she victoriously struggled had been followed by the needless infliction of inhuman torture, to undermine a frame whose spirit no open hostility could daunt, and extinguish a life so long embittered by the same foul arts after that great princess had ceased to harass her enemies (if I may be allowed thus to speak, applying, as they did, by the perversion of all language, those names to the victim which belong to the tormentor) after her glorious but unhappy life had closed, and that princely head was at last laid low by death, which, living, all oppression had only the more illustriously exalted the venerable the Clergy of Durham, I am now told for the first time, though less forward in giving vent to their feelings than the rest of their fellow-citizens though not so vehement in their indignation at (he matchless and unmanly persecution of the Queen though not so unbridled in their joy at her immortal triumph, nor so loud in their lamentations over her mournful and untimely end did, nevertheless, in reality, all the while, deeply sympathise with her sufferings, in the bottom of their reverend hearts! When all the resources of the most ingenious cruelty hurried her to a fate without parallel if not so cla- morous as others, they did not feH the least of all the members of the community their grief was in truth too deep for utterance sorrow clung round their bosoms, weighed upon their tongues, stifled every sound and, when all the rest of mankind, of all sects and of all na- tions, freely gave vent to feelings of our common nature, THRIH silence, the contrast which THEY displayed to the rest of their species, proceeded from the greater depth of their affliction; they said the less 192 LIBEL ON THE CLERGY OP DURHAM. because they felt the more! Oh! talk of hypocrisy after this! Most consummate of all the hypocrites! After instructing your chosen, official advocate to stand forward with such a defence such an expo- sition of your motives to dare utter the word hypocrisy, and com- plain of those who charged you with it! This is indeed to insult common sense, and outrage the feelings of the whole human race! If you were hypocrites before, you were downright, frank, honest hypo- crites to what you have now made yourselves and surely, for all you have ever done, or ever been charged with, your worst enemies must be satiated with the humiliation of this day, its just atonement, and ample retribution! If Mr. Williams had known the hundredth part of this at the time of her Majesty's demise if he had descried the least twinkling of the light which has now broke upon us, as to the real motives of their actions I am sure this cause would never have been tried; because to have any one of his strictures upon their conduct, would have been not only an act of the blackest injustice it would have been per- fectly senseless. But can he be blamed for his ignorance, when such pains were taken to keep him in the dark? Can it be wondered at that he was led astray, when he had only so false a guide to their motives as their conduct, unexplained, afforded? When they were so anxious to mislead, by facts and deeds, is his mistake to be so severely criticised? Had he known the real truth, he must have fraternised with them; embraced them cordially; looked up with admiration to their superior sensibility; admitted that he who feels most, by an eternal law of our nature, is least disposed to express his feelings; and lamented that his own zeal was less glowing than theirs; but ignorant and misguided as he was, it is no great marvel that he did not rightly know the real history of their conduct, until about three-quarters of an hour ago, when the truth burst in upon us, that all the while they were generously attached to the cause of weakness and misfortune! Gentlemen, if the country, as well as Mr. Williams, has been all along so deceived, it must be admitted that it is not from the proba- bilities of the case. Judging beforehand, no doubt, any one must have expected the Durham clergy of all men, to feel exactly as they are now, for the first time, ascertained to have ft,- It. They are Chris- tians; outwardly at least, they profess the gospel of charity and peace; they beheld oppression in its foulest shape; malignity and all unchari- tableness putting on their most hideous forms; measures pursued to gratify prejudices in a particular quarter, in defiance of the wishes of the people, and the declared opinions of the soundest judges of each party; and all with the certain tendency to plunge the nation in civil discord. If for a moment they had been led away by a dislike of cruelty and of civil war, to express displeasure at such perilous doings, no man could have charged them with political meddling; and when they beheld truth and innocence triumph over power, they might as Christian ministers, calling to mind the original of their own church, have indulged without offence in some little appearance of gladness; a calm, placid satisfaction, on so happy an event, would not have been LIBEL ON THE CLERGY OF DURHAM. 193 unbecoming their sacred station. When they found that her suffer- ings were to have no end; that new pains were inflicted in revenge for her escape from destruction, and new tortures devised to exhaust the vital powers of her whom open, lawless violence had failed to subdue we might have expected some slight manifestation of disap- proval from holy men who, professing to inculcate loving-kindness, tender mercy, and good will to all, offer up their daily prayers for those who are desolate and oppressed. When at last the scene closed, and there was an end of that persecution which death alone could stay; but when not even her unhappy fate could glut the re- venge of her enemies; and they who had harassed her to death now exhausted their malice in reviling the memory of their victim; if among them had been found, during her life, some miscreant under the garb of a priest, who, to pay his court to power, had joined in trampling upon the defenceless; even such a one, bear he the form of a man, with a man's heart throbbing in his bosom, might have felt even his fawning, sordid, calculating malignity assuaged by the hand of death; even he might have left the tomb to close upon the suffer- ings of the victim. All probability certainly favored the supposition, that the clergy of Durham would riot take part against the injured, be- cause the oppressor was powerful; and that the prospect of emolument would not make them witness with dry eyes and hardened hearts the close of a life which they had contributed to embitter and destroy. But I am compelled to say that their whole conduct has falsified those ex- pectations. They sided openly, strenuously, forwardly, officiously, with power, in the oppression of a woman, whose wrongs this day they for the first time pretend to bewail in their attempt to cozen you out of a verdict, behind which they may skulk from the inquiring eyes of the people. Silent and subdued in their tone as they were on the demise of the unhappy Queen, they could make every bell in all their chimes peal when gain was to be expected by flattering present greatness. Then they could send up addresses, flock to public meet- ings, and load the press with their libels, and make the pulpit ring with their sycophancy, filling up to the brim the measure of their adulation to the reigning monarch, Head of the Church, and Dispenser of its Patronage. In this contrast originated the defendant's feelings, and hence the strictures which form the subject of these proceedings. I say the pub- lication refers exclusively to the clergy of this city and its suburbs, and especially to such parts of that clergy as were concerned in the act of disrespect towards her late Majesty, which forms the subject of the alleged libel; but I deny that it has any reference whatever to the rest of the clergy, or evinces any designs hostile either to the stability of the church, or the general character and conduct of its ministers. My learned friend has said that Mr. Williams had probably been bred a sectary, and retained sectarian prejudices. No argument is neces- sary to refute this supposition. The passage which lias been read to you carries with it the conviction that he is no sectary, and entertains no schismatical views against the church; for there is a more severe VOL. i. 17 194 LIBEL ON THE CLERGY OF DURHAM. attack upon the sectaries themselves, than upon the clergy of Durham. No man can have the least hesitation in saying, that the sentiments breathed in it are any thing but those of a sectary. For myself, I am far from approving the contemptuous terms in which he has expressed himself of those who dissent from the Establishment; and I think he has not spoken of them in the tone of decent respect that should be observed to so many worthy persons, who, though they differ from the church, differ from it on the most conscientious grounds. This is the only part of the publication of which I cannot entirely approve, but it is not for this that he is prosecuted. Then, what is the mean- ing of the obnoxious remarks? Are they directed against the Estab- lishment? Are they meant to shake or degrade it? I say that no man who reads them can entertain a moment's doubt in his mind, that they were excited by the conduct of certain individuals, and the use which he makes of that particular conduct, the inference which he draws from it, is not invective against the Establishment, but a regret that it should by such conduct be lowered. He says no more than this: "These are the men who do the mischief; ignorant and wild fanatics are crowding the tabernacles, whilst the church is deserted," and he traces, not with exultation but with sorrow, the cause of the desertion of the church, and the increase of conventicles. " Here," says he, " I have a fact which accounts for the clergy sink- ing in the estimation of the communify, and I hold up this mirror, not to excite hostility towards the Established Church, nor to bring its ministers into contempt among their flocks, but to teach and to reclaim those particular persons who are the disgrace and danger of the Estab- lishment, instead of being, as they ought, its support and its orna- ment." He holds up to them that mirror in which they may see their own individual misconduct, and calculate its inevitable effects upon the security and honor of the establishment which they disgrace. This is no lawyer-like gloss upon the passage no special pleading construction, or far-fetched refinement of explanation I give the plain and obvious sense which every man of ordinary understanding must affix to it. If you say that such an one disgraces his profession, or that he is a scandal to the cloth he wears, (a common form of speech, and one never more in men's mouths than within the last fortnight, when things have happened to extort an universal expres- sion of pain, sorrow, and shame,) do you mean by such lamentations to undermine the Establishment? In saying that the purity of the cloth is defiled by individual misconduct, it is clear that you cast no imputation on the cloth generally; for an impure person could not contaminate a defiled cloth. Just so has the defendant expressed himself, and in this light I will put his case to you. If he had thought that the whole Establishment was bad; that all its ministers were time- servers, who, like the spaniel, would crouch and lick the hand that fed it, but snarl and bite at one which had nothing to bestow fawn- ing upon rich and liberal patrons, and slandering all that were too proud or too poor to bribe them; if he painted the church as founded upon imposture, reared in time-serving, cemented by sordid interest, LIBEL ON THE CLERGY OF DURHAM. 195 and crowned with spite, and insolence, and pride to have said that the Durham clergy disgraced such a hierarchy, would have been not only gross inconsistency, hut stark nonsense. He must rather have said that they were worthy members of a base and grovelling estab- lishment that the church was as bad as its ministers and that it was hard to say whether they more fouled it or were defiled by it. But he has said nothing that can bring into jeopardy or discredit an institution which every one wishes to keep pure, and which has nothing to dread so much as the follies and crimes of its supporters. Gentlemen, you have to-day a great task committed to your hands. This is not the age the spirit of the times is not such as to make it safe, either for the country or for the government, or for the church itself, to veil its mysteries iti secrecy; to plant in the porch of the temple a prosecutor brandishing his flaming sword, the process of the law, to prevent the prying eyes of mankind from wandering over the structure. These are times when men ivill inquire, and the day most fatal to the Established Church, the blackest that ever dawned upon its ministers, will be that which consigns this defendant, for these remarks, to the horrors of a gaol, which its false friends, the chosen objects of such lavish favor, have far more richly deserved. I agree with my learned friend, that the Church of England has nothing to dread from external violence. Built upon a rock, and lifting its head towards another world, it aspires to an imperishable existence, and defies any force that may rage from without. But let it beware of the corruption engendered within and beneath its massive walls; and let all its well-wishers all who, whether for religious or political interests, desire its lasting stability beware how they give encourage- ment, by giving shelter, to the vermin bred in that corruption, who "stink and sting" against the hand that would brush the roltenness away. JMy learned friend has sympathised with the priesthood, and innocently enough lamented that they possess not the power of defend- ing themselves through the public press. Let him be consoled; they are not so very defenceless they are not so entirely destitute of the aid of the press as through him they have represented themselves to be. They have largely used that press (I wish I could say " as not abusing it,") and against some persons very near me I mean especially against the defendant, whom they have scurrilously and foully libelled through that great vehicle of public instruction, over which, for the first time, among the other novelties of the day, I now hear they have control. Not that they wound deeply or injure much; but that is no fault of theirs without hurting, they give trouble and discomfort. The insect brought into life by corruption, and nestled in filth, though its flight be lowly and its sting puny, can swarm and buzz, and irritate the skin and offend the nostril, and altogether give nearly as much annoyance as the wasp, whose nobler nature it aspires to emulate. These reverend slanderers these pious backbiters devoid of force to wield the sword, snatch the dagger, and destitute of wit to point or to barb it, and make it rankle in the wound, steep it in venom to make it fester in the scratch. The much venerated personages whose harmless and 196 LIBEL ON THE CLERGY OF DURHAM. unprotected state is now deplored, have been the wholesale dealers in calumny, as well as largest consumers of the base article the especial promoters of that vile traffic, of late the disgrace of the country both furnishing a constant demand for the slanders by which the press is polluted, and prostituting themselves to pander for the appetites of others; and now they come to demand protection from retaliation, and shelter from just exposure; and to screen themselves, would have you prohibit all scrutiny of the abuses by which they exist, and the mal-practices by which they disgrace their calling. After abusing and well-nigh dismantling, for their own despicable purposes, the great engine of instruction, they would have you annihilate all that they have left of it, to secure their escape. They have the incredible assurance to expect that an English jury will conspire with them in this wicked design. They expect in vain! If all existing institutions and all public functionaries must henceforth be sacred from question among the people; if, at length the free press of this country, and with it the freedom itself, is to be destroyed at least let not the heavy blow fall from your hands. Leave it to some profligate tyrant; leave it to a mercenary and effeminate Parliament a hireling army, de- graded by the lash, and the readier instrument for enslaving its country; leave it to a pampered House of Lords a venal House of Commons some vulgar minion, servant-of-all-work to an insolent court some unprincipled soldier, unknown, thank God! in our times, combining the talents of a usurper with the fame of a captain; leave to such desperate hands, and such fit tools, so horrid a work! But you, an English jury, parent of the press, yet supported by it, and doomed to perish the instant its health and strength are gone lift not you against it an unnatural hand. Prove to us that our rights are safe in your keeping; but maintain, above all things, the stability of our institu- tions, by well-guarding their corner stone. Defend the church from her worst enemies, who, to hide their own misdeeds, would veil her solid foundations in darkness; and proclaim to them by your verdict of acquittal, that henceforward, as heretofore, all the recesses of the sanctuary must be visited by the continual light of day, and by that light its abuses be explored! [After the learned Judge had summed up to the Jury, they retired, and remained inclosed for above five hours. They then returned the following special verdict, viz.: " Guilty of so much of the matter in the first count as charges a libel upon the Clergy residing in and near the City of Durham, and the suburbs thereof, and as to the rest of the first count, and the other counts of the Information, Not Guilty."] LIBEL ON THE CLERGY OP DURHAM. 197 IN MICHAELMAS TERM FOLLOWING. Nov. 1S22. MR. SCARLETT moved for judgment on this defendant, who was found guilty at the last assizes for the County of Durham, on a Crmi- nal Information granted by this court, for a libel. The LORD CHIEF JUSTICE. Mr. Brougham moves in arrest of judgment? MR. BROUGHAM. Yes, my lord, and also for a new trial. The LORD CHIEF JUSTICE. Then the defendant is, I presume, in court? MR. BROUGHAM. He has been here, my lord; but we did not in the least expect the case to come on to-day, and 1 believe he is gone. I can, at least, move in arrest of judgment, and I dare say he will be here before I find it necessary to state my grounds for a new trial. MR. SCARLETT. I know that the defendant is in town, and has been here this morning. As far, therefore, as I am concerned I beg to waive any objection to Mr. Brougham's proceeding. The LORD CHIEF JUSTICE. Then Mr. Brougham may proceed. You move first for a new trial? MR. BROUGHAM. No, first in arrest of judgment ; and then I shall show my grounds for thinking that a new trial ought to be granted. MR. JUSTICE BEST then read Mr. Baron Wood's report of the trial. The learned Judge had stated the verdict to be " Guilty on the second coi nt of the Information." MR. BROUGHAM said he should first draw the attention of the court to the record, and show that it was so defective that no judgment could be pronounced upon it. This would appear on more particularly com- paring the verdict with the Information. MR. JUSTICE BAYLEY. The verdict is entered upon the second count of the Information. MR. BROUGHAM. No, my lord; it is on the first count, and is in these words "Guilty of a libel on the Clergy residing in and near the City of Durham, and the suburbs thereof." MR. SCARLETT. No, it is on the learned Judge's notes. MR. BROUGHAM begged to refer to the record. MR. JUSTICE BAYLEY accordingly looked at the record. The endorsement on the postea corresponded with the learned Judge's notes, but the record itself was in these words " And the jurors aforesaid say that he, the said defendant, is guilty of so much of the first count as charges a libel on the Clergy residing in and near the City of Durham, and the suburbs thereof and as to the rest of the first count and the other counts of the Information, he is not guilty." MR. BROUGHAM proceeded. He would now draw the attention of 198 LIBEL ON THE CLERGY OF DURHAM. the court to the first count in the Information, the only one to which he should have occasion to revert, as the defendant was acquitted on all the others. This count charged him with " printing and publishing a libel, of and concerning the United Church of England and Ireland, and of and concerning the Clergy of that Church, and the Clergy residing in and near the City of Durham and the suburbs thereof;" not repeating the words " of and concerning," before the words " the Clergy residing in and near the City of Durham." MR. SCARLETT asserted, that the words "of and concerning" were in his copy of Information. MR. JUSTICE BAYLEY read the passage from the record, which proved that Mr. Brougham was correct. MK. SCARLETT. It was so in my copy, I was equally confident with you. MR. BROUGHAM. Yes; but there was this difference you were confident and wrong; I was confident and right. The difference was merely between a well-founded observation, and one that had no foundation at all. I only mention this to prevent any further inter- ruptions, of which I have had two already. The learned Counsel then proceeded to take two objections to the record; first, that the count charged an offence different from that which the jury had found; and, second, that the offence of which the jury had found the defen- dant guilty, supposing it to be the same with that stated, was in itself too vague and uncertain to be made the foundation of any judgment. And first he would contend that the Information charged one offence, and the jury had found another. The count set forth the libel as " of and concerning the United Church of England and Ireland, and of and concerning the Clergy of that church, and the Clergy residing in the City of Durham and the suburbs thereof;" and the jury had found that there was no libel on the United Church or the Clergy thereof, but on the Clergy of Durham. Now he would contend that, even if the words "of and concerning" had been repeated, and even if the Clergy of Durham were a body distinct from the body of the United Church thus putting the case far stronger than it was for the prosecu- tion that the description was one entire description, and could not be severed. Not only was there no separate count for a libel on the Clergy of Durham (the introduction of which would have been the easiest thing in the world) but there was not even in this count any undivided averment of a libel on them. Suppose a libel were charged "of and concerning A and B;" and suppose A and B were distinct persons, entirely unconnected with each other, and the jury found that the libel was concerning "A" only, they would find an offence different from that of which they were charged to inquire. There was a case not nearly so strong as this, that of " Lewis and Walter," which had been argued, but which the court had not yet decided, where a similar objection was taken, and where the leaning of some, if not all the judges, seemed strongly in favor of the objection. There the defendant was charged with a libel "of and concerning the plain- tiff, and of and concerning him as an attorney;" at the trial there LIBEL ON THE CLERGY OP DURHAM. 199 was no proof of his professional character, and the Lord Chief Justice accordingly nonsuited the plaintiff, because, though the publication would be a libel on him in his personal character, he held the plaintiff bound by his averment, and that it was one description of one wrong. The case cited in argument for the plaintiff of Dickens v. Cogswell," was clearly inapplicable; for there the averment " of and concerning the plaintiff as an appraiser and carpenter" was clearly partible: and so the court seemed to regard it. But the present case was far stronger than "Lewis v. Walter;" because here, instead of referring to two distinct characters of the same person, or two distinct indi- viduals like " A and B," the Clergy of Durham (if they meant any person at all) were included in the previous description, " the Clergy of the United Church." It was as if the charge had been " of and concerning a certain community, and of and concerning a certain person as a member of that community ;" in which case the libel, if any thing would be a libel on the community, as the mem- ber qua member, could not be severed from it. But here the de- fendant was actually acquitted of libelling the clergy in general; and yet found guilty of libelling a body who only had existence as a part of this clergy; and this without any distinct allegation or any divisable averment. Here he might advert to the uncertainty of the description, which he should make a substantive objection, as strengthening that which he was now urging; for even this part of the church at best to be so taken was so vaguely described, as when severed from the rest, to mean nothing. If the description of the Clergy of Durham was explained as referring to some part of the " United Church," then the acquittal applied to the larger included the less; if it was taken independently, then it referred to no recog- nised body, and had no meaning at all. This brought him to the second objection that the offence charged was altogether uncertain. First, there was nothing to define the exact meaning of the word "Clergy" nothing whatever to limit it to the ministers of the Estab- lished Church. Mn. JUSTICE BEST. Arc Dissenters ever called clergy? MB. BBOUGHAM replied that they were so called in many acts of Parliament; among others, in the 4Sth of George III, which in its title purported to be " An Act concerning the Clergy of Scotland." But if the dissenting preachers were not legally denominated Clergy, and he contended that they were, the Catholic priests had, unques- tionably, a right to the title; they were so treated in the acts of Henry VIII; and they had only to abjure to become at once in full orders, and to receive the highest dignities of the church. At this very time there was a bishop who had never taken orders in the Protestant Church, but had merely passed from (he Romish Church into ours. The term "Clergy," therefore, was altogether vague without further explanation; for it was impossible to import that part of the descrip- tion of which the defendant had been acquitted, into the other part of which he had been found guilty; on the contrary, the opposite find- ing seemed to negative all connection between them. Next, what 200 LIBEL ON THE CLERGY OF DURHAM. was meant by the term " near?" Was it one, or two, or ten, or twenty miles? Each man would reply according to his own idea of nearness, and perhaps no two persons would agree as to the limits within which the libelled Clergy resided. The term "suburbs," was again ambiguous; so that here was a further latitude of proximity almost running into distance. Here, then, the word "Clergy" was ambiguous; the class of Clergy was ambiguous; and if the court could find no meaning in what the jury had found, they would not look for it in what they had negatived. And now, leaving these points, he would contend that even supposing the clergy of the Esta- blished Church in the city of Durham to be intended, these did not form a body whom the court meant to protect when they granted the rule. At the time when the rule was argued, the publication was called "a libel on the Church of England;" Mr. Scarlett demanded protection for that church; the Lord Chief Justice three times inter- rupted the argument when proceeding, on the ground that the clergy of Durham were the applicants, by observing, "this is a libel on the Church of England;" and when he (Mr. Brougham) contended that it applied only to the clergy of Durham, he was met by the same answer. Now, he did not believe that the court ever would have granted the rule had it been applied for in the terms of the verdict, " for a libel on the clergy residing in and near the city of Durham and the suburbs thereof," for whenever the court had thus interfered, it was either on behalf of some individual, or some definite body of men recognised by the law. Every case cited by Mr. Scarlett on that occasion was consistent with this principle. The King v. the Justices of Staffordshire was entirely of this nature; for where could be found a more definite body of men than those in the commission of the peace for a particular county? In the case where application was made against certain justices of Middlesex sitting in Litchfield-street, the motion was refused until affidavits were produced showing what par- ticular magistrate sat there, and then the rule was granted. In " the King v. Jerome," which was a libel on the directors of the East India Company, the Information was granted, because the directors were a distinct body, chartered by Act of Parliament, and not like the coun- sel at a particular bar, or a particular circuit. The case of " the King v. Orme and Nutt," reported in 1 Lord Raymond, 486, was also more fully reported as to this particular point in 3d Salkeld, 224. MR. JUSTICE BAYLEY. Third Salkeld is a very questionable autho- rity; it is not like the first and second volumes of those reports. MR. BROUGHAM said he was aware of this, and he would not have quoted it had it differed from the report in Lord Raymond; but it was consistent with it, and only carried the statement a little further. In Lord Raymond it appeared that the libel was on "certain ladies of London," which was removed by certiorari, because the Recorder stated that he thought himself affected by it, and in Salkeld it was laid down that " where a writing inveighs against mankind in general, or against a particular order of men as for instance men of the gown it is no libel; but it must descend to particulars and individuals to LIBEL ON THE CLERGY OF DURHAM. 201 make it a libel." In Lord Raymond it appeared that more specific averments to point out the individuals designed were necessary, and probably these were supplied. MR. JUSTICE BAYLEY. Yes: because you cannot say a writing is false and scandalous unless you know to whom it applies. MR. BROUGHAM replied that this was exactly his argument. He then came to the "King v. Osborne," which had been cited by Mr. Swanston, a reporter to whose industry and research the profession were greatly indebted, and who had searched the MSS. in Lincoln's Inn Library for his materials, in the notes to the case for Jhe Bedford charity, which was argued in Chancery in ISIS, and where the legal relation of the Jews came chiefly in question. This was a libel charging that certain Jews who had lately arrived from Portugal and lived near Broad-street, had murdered a woman and her child, incon- sequence of which numbers of persons were assaulted, and terrible riots were excited. It was one of those charges on bodies of men of systematic murder which were frequently made in dark times, to inflame the passions of their bigoted neighbors, and which called im- periously for the interference of courts of justice. In that case the judge seemed to consider the Information as improper for a libel; but regarded it as good for a great misdemeanor, which it was abso- lutely necessary to repress. He had now finished his argument in arrest of judgment, and hoped that he had shown enough to induce the court to grant a rule to show cause. The LORD CHIEF JUSTICE intimated that it would be more conve- nient to hear the whole case now. MR. BROUGHAM said he would proceed very shortly to state his grounds for a new trial; and he thought, that even if the court should not see in the variance between the Information and the verdict, suffi- cient reason for arresting the judgment, they would suffer the argu- ment strongly to incline them to a new trial. If they saw that they had granted the Information for one offence, and the defendant had been found guilty of another if he had actually been acquitted of that which was urged before them, and convicted on a ground hardly, if at all, in the contemplation of either side they would feel disposed to submit the case to another jury. The defendant was placed in a most unfortunate situation by the course of proceedings; for had the rule been moved for on the ground upon which he was found guilty had it been specifically applied for solely on behalf of the Durham Clergy, the court would never have waived the salutary practice of compelling each prosecutor to show, by his oath, that he came into court with clean hands. Then the defendant would have had the opportunity of showing the offences of which each individual had been guilty, and of proving by affidavit the truth of every tittle of his charges. At the trial, the counsel for Mr. Williams were entirely misled by the notice of the record, and by the speech of the prosecu- tor's counsel. The case (as the learned judge might testify) proceeded entirely on the question whether the publication was a libel on the Church of England? and to this point all his (Mr. Brougham's) rea- 202 LIBEL ON THE CLERGY OP DURHAM. soning was directed. Had he supposed that his client was called on to answer for a libel on the Durham Clergy, he would not have ex- pended all his strength in showing that it was not a libel on the Estab- lished Church. He should not have made quotation after quotation from the works of pious men to show how that church had been cha- racterised; but he should have bent all his strength to show that the paragraph contained no libel on the clergy in and near Durham. On that point he had not yet been heard; of that on which he had been heard the defendant was acquitted; of that on which he had not been heard, he was found guilty. Had he been duly apprised that this was the pith of the Information, and applied himself to that point, the jury might have arrived at a different conclusion. His next ground for a new trial was, that the verdict was against evidence, because the court charged the defendant " with printing and publishing," and the wit- nesses for the prosecution expressly proved that Mr. Williams was not the printer. The LORD CHIEF JUSTICE asked if the newspaper did not purport to be printed by Mr. Williams? MR. SCARLETT said he had not the particular paper proved; but he had another paper which purported to be printed and published by and for the defendant. The LORD CHIEF JUSTICE observed, that at all events, the objection might be obviated by applying to the learned judge, for leave to amend the verdict by entering it on another count for publishing only. MR. BROUGHAM said, he did not rely on this point, though he thought it right to mention it. His next ground was the misdirection of the learned judge. And first, Mr. Baron Wood in his charge told the jury, "The Court of King's Bench have been of opinion that this is a libef, and a fit subject for prosecution." Now the first part of this direction was incorrect; The court had not given opinion that it was a libel, but had merely given opinion that it was a fit subject for a jury to consider whether it was or was not a libel. But if the jury supposed that the case was merely sent to them to execute the opinion of the court MR. JUSTICE BAYLEY. He did not tell them that, I suppose? MR. BROUGHAM. No; but they might infer it. MR. JUSTICE BAYLEY. Did he not tell them what his own opinion was? MR. BROUGHAM. Yes; and that is another ground for a new trial. The LORD CHIEF JUSTICE. Then almost every judge who has tried a case of libel since the Act passed has been in error; for it has been the uniform practice for the judge to state his opinion, leaving the jury to exercise their own judgment. MR. BROUGHAM. Undoubtedly; but he ought not to state it as the opinion of the court, who have only said that it is a fit subject for inquiry. MR. JUSTICE BEST. Is it more than saying "the Grand Jury have found a bill?" MR. BROUGHAM submitted that it was very different; it was almost LIBEL ON THE CLERGY OF DURHAM. 203 overwhelming the minds of the jury, to toll them in effect that if they found the publication not a libel, they differed from the highest crimi- nal court in the kingdom. His lordship also said, "I am required by law to give you my opinion." Here again he was incorrect; he was not required, but only authorised to give his opinion, as in other cases; and Lord Ellenborongh once, in a similar case, having inadvertently used the word " required," corrected himself, and substituted " not required, but it is expected of me." Mu. JUSTICE BAYLEY. Do you really think you can prevail on the court to grant you a new trial, because a judge has used the word " required" instead of "authorised?" lie does not say, I pre- sume, that he is dissatisfied with having said so? MR. BROUGHAM. No; the report is silent on that subject; he says nothing either way. The learned judge also broadly stated " Every publication tending to bring an establishment of this country into hatred or contempt is a libel." This was much too wide; it might be in the highest degree praiseworthy to bring an establishment into hatred and contempt to show that its abuses must be corrected, or even that it must be done away; the propriety or impropriety of such attempt would depend on the manner in which it was pursued. There were many excellent men who had exerted all their powers to abolish some of our establishments; and who had passed lives of honorable toil for this purpose without reproach. That which at one time was useful, might become noxious at another: and was it not then to be brought into hatred and contempt in order to its removal? The Smallpox Hospital, for example, was of the highest utility when it was founded; but after the vaccine inoculation was discovered, it became pernicious; and Lord Ellenborough intimated that it might be prosecuted as a pest-house, unless its baneful effects were prevented; yet here was an establishment, chartered by Act of Parliament, and at one period among the noblest of our charities. There were other establishments which it might be the duty of all good men to expose. For instance, the office of third Secretary of State. Was it a crime to show that this establishment was useless to cover it with ridicule to show that it was despicable and abominable in the existing state of the country? The LOUD CHIEF JUSTICE. I am not prepared to say that this may be done by publication. There is a place where such arguments may be used with freedom. At the same time I do not say that an argu- mentative discussion of the establishment designed to show its inutilily would be a libel. MR. BROUGHAM. In that I entirely agree; the whole distinction lies in the manner, and this distinction the learned judge never sub- mitted to the jury. MR. JUSTICE BEST. Yes; because he says any publication tending to bring an establishment into " contempt," that cannot be by fair discussion. Mu. BROUGHAM. yes, my lord. To bring that which is per- nicious into contempt is the object of all discussion, and even ridicule 204 LIBEL ON THE CLERGY OF DURHAM. is often a fair weapon. I am sure we should not be now sitting under a reformed church that " United Church" of which the Infor- mation speaks would never have existed but for the use of this weapon against popery. These (continued Mr. Brougham) were his grounds for asking a new trial, in case the judgment should not be arrested; but he again submitted, on the two points which he first brought to the consideration of the court, that the record was so inconsistent with the finding, and so imperfect in itself, that no judg- ment could be founded upon it. The LORD CHIEF JUSTICE. You do not mean to say that the learned Judge did not leave the questions at last to the jury? MR. BROUGHAM. Certainly not, my lord. The LORD CHIEF JUSTICE consulted with the other judges for a few minutes, and then said, " You may take a Rule to show cause why the judgment should not be arrested; but we all think that you have laid no ground before us for a new trial. The points in arrest of judgment are those on which you yourself chiefly rested." MR. BROUGHAM. I relied on them chiefly, without doubt. MR. SCARLETT. My learned friend would rather have the verdict he has at present, than any that a new trial would give him. The LORD CHIEF JUSTICE. Will you consent to a new trial, then, Mr. Scarlett? MR. SCARLETT said, that as the defendant was in town, it would be desirable to know whether the case could come on this term. The LORD CHIEF JUSTICE replied, that it was quite impossible that it could come on during the present term. MR. BROUGHAM took his Rule to show cause why the judgment should not be arrested. DISSERTATION LAW OF LIBEL AND SLANDER. THE unsatisfactory state of our Libel Law in almost every par- ticular, is brought very strongly into view by the proceedings in the Durham case; and it may not be unprofitable to the great cause of Law Reform, and above all, to the important interests of the liberty of the press, if we take a short view of the objects towards which that law ought to be directed the degree and the direction in which it falls short of them and the remedies by which it might be better enabled to attain them. 1. The true and legitimate objects of the Law of Libel are, to secure the public peace against inflammatory and seditious publica- tions, and to protect private character from slander; without so far hampering the discussion of men's measures and of their public cha- racters as to injure the great interests of liberty and good government, or so far removing the salutary control of public opinion from noto- rious private vices, as to bestow impunity upon ostentatious im- morality. These objects never can be accomplished as regards public libels unless there are certain protections thrown round those who discuss public questions and public characters, and certain difficulties thrown in the way of State prosecutions. Nor can it be accom- plished as regards private slander, unless the defence of the injured character is made so easy, safe, and effectual, that the legal proceed- ing shall not be either loaded with ruinous expense, nor shall imply a consciousness of guilt, nor shall aggravate rather than remove the mischief done. 2. In all these particulars, however, the law of this country is sin- gularly defective. The charge brought by the writer against the government, or against the public character of any functionary of the state, may be ever so true, and ever so fit or even necessary to be stated plainly, strongly, and even vehemently, and yet the statement may be as severely punished as if it were from beginning to end false. A minister may have taken a bribe to betray his trust; he may, to gratify his private revenge, have exposed a worthy colleague to destruction; he may, to get rid of a rival in the cabinet, or in the se- nate, or in the boudoir, have prostituted the patronage of his office and VOL. i. 18 206 DISSERTATION ON THE LAW OF LIBEL AND SLANDER. given an embassy or a foreign command to the least worthy candidate; he may have bartered crown patronage for parliamentary support with- out decency and without shame. The statement of this, with or without comment, is as severely punishable by our law, as if the whole had been the fabrication of a wicked and spiteful imagination. Upon the trial, no evidence can be given of the truth; in addressing the jury, the judge must declare that true or false the publication is alike criminal; even after the conviction, nothing respecting the truth can be urged in mitigation of punishment, as if the additional cir- cumstance of having falsely charged those offences made the crime of publishing the charge no blacker. Again, the whole costs of the defence fall upon the party although he is acquitted, and ought never to have been tried. The government has the power of putting any writer or printer on his trial without a tittle of evidence against him, even without his ever having published any thing at all; and he may be prosecuted over and over again until the expense of his defence have worked his entire ruin. Mr. Perry and Mr. Lambert were punished for saying that George Ill's successor, coming after his reign, would have a fine opportunity of gaining popularity by the contrast which he had it in his power to display wuh the policy of the last half century. To call this libellous was absurd enough; but if neither Mr. Perry had been the proprietor, nor Mr. Lambert the publisher of the Morning Chronicle, or indeed of any paper at all, they would have equally been exposed to prosecution, and equally had to pay 100/. or ISO/, in defending themselves. Further, a prose- cution may be instituted against a publication which no twelve tradesmen, or farmers, or yeomen, in any district can be found to pronounce libellous; and the crown may have a jury of a higher rank in society, whose feelings are more tender on the subject, and whose leanings are all to the side of power, and all against the free discussion of the press. As regards private libels, the case is fully worse. The party slan- dered may bring an action, but if the words are true, he can recover no damages, and yet their truth may be no defence. As, for example, if a woman early in life had made a slip, of which repenting she had for forty years after led a blameless life, and become the respected mother of a family the truth here is rather an aggravation than an extenuation of the offence of disclosing this early accident for the sake of revenge, possibly because her virtue had now held out against the attempts of some seducer; yet this circumstance of the truth is a com- plete bar to the action. Then, in prosecuting, there is the difficulty of an opposite kind; for here the truth is wholly immaterial, and therefore whoever prosecutes, at least by indictment, appears to admit the truth of the charge in the libel. If the prosecution is by criminal information, the prosecutor's oath must deny the charge but the de- fendant can give no evidence of the truth at the trial, however easily he could prove it, and in showing cause against the rule he can obtain none but voluntary affidavits: so that this proceeding is a very imper- fect vindication of character; as all the charges may be true and capa- DISSERTATION ON THE LAW OF LIBEL AND SLANDER. 207 ble of proof, and yet the evidence is excluded. There remains, in- deed, the action for damages. But whoever lias been engaged in any such proceedings, either as a party bringing the suit, or as advising and managing it, is well aware how unsatisfactory a remedy it affords. There is nothing upon which greater mistakes are committed; for men are wont to say that it effectually vindicates the plaintiff's reputation by defying the calumniator to prove his charge. But it in truth only shows that the charge cannot be proved, while it may yet be quite true, though the evidence of it rests with the guilty party, or between the guilty parties if there be more than one. Suppose, for instance, an imputation, one of the most frequent of all, against a female of having violated her chastity, or against a man of having seduced a female; the charge may be quite true, and yet no one but the parties may be able to prove it; nay, there may be abundance of proof, but they only may know flow to get at it; or again, the witnesses may be so entirely under their control, that the defendant having no means of previously examining them, never could bring them into court in the dark as to their testimony, and consequently never could be advised in the dark to plead a justification. The like may be said of almost all acts of official delinquency, which can only be known in their details to the actors and their accomplices or dependants. How could any defendant, after denouncing these upon strong moral evidence, or at least on very grave suspicion, venture to plead any thing like a jus- tification, when he must be wholly unable to marshal his evidence, or even to ascertain the particulars of the transaction? Then suppose individual parties charged in a libel with the private delinquency, or men in office with the malversation, their bringing an action really proves nothing as to their innocence it only proves that the offence may have been committed, or it may not; but that the evidence of it is inaccessible, lying within the breast of the guilty parties, or their accomplices, or their dependants. Now it is of the nature of all de- linquency, public or private, to shun the light; consequently, there are very few things of which any one can be accused, that do not come within the description of the cases from which the examples now given to illustrate the argument have been chosen. Hence it is that the plea of justification is so seldom pleaded; but hence it also is, as professional men know, men who do not merely look to the theory of our jurisprudence, but are well conversant in the practice of the law, that the remedy for injuries to reputation, by way of action, is so un- satisfactory, as to be rarely recommended to those who have suffered the injury. Even in the intercourse of common life, there are many things, many breaches of decorum and even of morality, \vhi<-li no one who lives in society has the least doubt of, atid which neverthe- less every one feels to be incapable of proof. Every now and then some one charged, and known to be most justly charged, with those offences, has the courage to bring an action, which all the world knows can have but one result. The defendant cannot justify; the verdict is a matter of course, the inference drawn from it universally by those who know nothing of the parties or the matter, and whoso 208 DISSERTATION ON THE LAW OF LIBEL AND SLANDER. good opinion is not worth having, is, that the charge is groundless, and has been courageously met; the inference equally universally drawn by all who know the parties, all whose opinion forms their reputation, is, that they are guilty, and have not shown their inno- cence, hut displayed a safe and easy effrontery by the proceedings. To these considerations, which tend so fully to discredit the remedy by action, is to be added this other that the defendant n>ay plead a justification, which does not cover the whole matter in the libel or in the declaration, or he may plead one which he can only partially prove. Then the injured, that is the slandered party, is worse off than ever; for the part not justified or not proved may be the worst of the whole, and it may be utterly false, and yet, be the event of the trial what it may, and the verdict ever so secure, the party is sure to be believed guilty of the whole matter. Nay, even if no mischance befalls him in the suit, and he recovers damages, every one knows how very rarely a jury estimates the injury to reputation and to feelings otherwise than by the most cold and imperfect rules with what a scanty measure the damages are stingily meted out. In different places the standard varies; in the provinces, where, however, the slander has always a greater effect, the damages awarded, even in very grave cases, are ridiculously small; even in London they are seldom considerable, unless some unexpected accident occurs to inflame them. Now, however fre- quent the topic may be, that the action is not brought for gain, and that the damages are an object of contempt with the plaintiff, yet every one knows that they are the very reverse of being undervalued, and most justly; for whatever the plaintiff's counsel may say, he never fails to urge the amount of damages as not merely the measure of his client's injury, but the value of his reputation; and if a few pounds or shillings only be given, the defendant leaves the court with the cry, in which all the public joins, that his adversary's character is worth no more; nay, for years the slandered party will hear the value at which a jury has assessed his character, quoted maliciously against him, as often as he or his connections happen to be involved in any personal altercation. So numerous and so serious being the difficulties of an action, that the remedy by information is very generally preferred; for it is prompt, being accessible immediately, inasmuch as the affidavit by which the slandered party denies the truth of the imputation cast on him, is the very first step of the proceeding; and that affidavit, to which he may add the oaths of others, in case the matter lies within their knowledge as well as his own, affords a certain degree of proof that the accusa- tions are unfounded. When this, however, is said, all is said that can be urged in favor of this proceeding; for the witnesses swear without any cross-examination; they swear unseen by the court; and they may select only those things which they can safely deny, leaving much untouched and more unexplained. The defence of an action is, as we have seen, in the great majority of instances, a mere name; nevertheless, in some cases the proof may be forthcoming, if the de- DISSERTATION ON THE LAW OF LIBEL AND SLANDER. 209 fendant can be aided by the process of the court to compel witnesses; and in others, witnesses who refuse to volunteer their testimony by swearing an affidavit, which every one knows they cannot be compelled to make, would have no objection to communicate privately with the party, so that he might safely examine them, when he seemed to force them into the witness-box by a subpoena. It follows that no vindication of character can be competent which does not unite the merits of the two proceedings, by criminal information and by action enabling the party, and his accomplices or dependants to swear; defying the defendant to the proof; and above all, exposing the plain- tiff's witnesses, if he have any, to cross-examination. An additional reason exists for preferring the criminal proceeding, or at least for making punishment a part of the result. If damages only are the object, the slanderer may conceal himself, and pay some tool, some man of straw, whom he sets up to publish his calumnies, and engages to save harmless from all costs and charges. It is always Tar more difficult to find a person who will go to prison for his employer. Now, one great object of the Libel Law should be to bring forward the real offender; this is indeed distinctly included in and implied by the statement made in the outset of this discourse, as to the proper aim and end of that law. The present frame of our jurisprudence in this particular is singu- larly defective. A slanderer may invent a false tale respecting some transaction to some part of which he was a party or a witness, and may get a publisher to disseminate it widely. The action being brought against the latter, the publisher, he who knows nothing at all of the matter, is nowise injured by being an incompetent witness; but he produces the real party, the writer of the lie, to swear for him; and it is hardly possible to defeat this conspiracy the month of the other party, the plaintiff, who has been slandered, being of course closed. The two parlies thus contend upon most unfair terms; and the right of proving the truth being unrestricted, the propagator of the falsehood has the same privilege of pleading a justification with the inventor of it; the real party to the suit appears, not as defendant, but as witness; and of the two formal parties, neither of whom can be heard, one only is real, and he has the greatest interest in being heard, whilst the other is wholly indifferent whether he be heard or not, having nothing to communicate. There remains one great defect in our Libel Law, which, though not confined to this branch of criminal jurisprudence, is nevertheless of more serious injury here than elsewhere that strange anomaly by which the jurisprudence of England is distinguished, and very discreditably, from that of every other country the leaving it to private individuals to institute prosecutions for the punishment of crimes. Whether any offence, however grave, shall be severely punished or altogether escape with impunity, depends upon the feel- ings, or the caprice, or the indolence, or the activity, or the disinte- restedness, or the sordid feelings, of unknown and irresponsible indi- viduals. The contrast is astonishing between the severity of the 18* 210 DISSERTATION ON THE LAW OP LIBEL AND SLANDER. penalties denounced against offences, and the utter relaxation of the law for enforcing these penal sanctions. After providing by a series of the most rigorous enactments the most sanguinary punishments, the sword of justice drops from the lawyer's hand, and not a single precaution is taken to prevent the criminal's escape and secure the enforcement of any one of those provisions. Within a few months of each other, two capital crimes were committed a murder in the face of day, (which might possibly have been found to be only an aggravated manslaughter,) by one patrician upon another and an extensive forgery by a wealthy tradesman. In both cases parties were bound over to prosecute, as it is most inaccurately called, in reality to give evidence as witnesses: in both they forfeited their recognisances; and in both the culprits escaped. The want of a public prosecutor is peculiarly felt in prosecutions for libel. The publication most offensive to decorum, most injurious to the peace of society, will never be visited with punishment, as long as it is left with private parties to institute criminal proceedings. Women of delicate feelings, men of weak nerves, persons who because of their invincible repugnance to adopt proceedings of a public kind for the punishment of those that have violated the privacy of domes- tic life, are the more fit objects for the law's protection, and the less likely to have committed the things laid to their charge, are surely of all others the most unfit to be entrusted with the functions of public accuser, especially in cases where their own admitted weaknesses are in question, or they are charged with immoralities of which they are quite incapable. The impunity of the slanderous press is effectually secured by this cardinal defect in our system of criminal jurisprudence although it must be admitted, that the exercise of a public prosecu- tor's functions, in cases of libel on private character, would be attend- ed in many cases with extreme difficulty, and that it would always require a very nice and delicate hand to discharge his duties. 3. A careful consideration of the true objects of a good Libel law, and of the defects which prevail in our o>\ n, brings us easily to the remaining and most important head of discourse the remedy required. And first of all we m\y very briefly dispose of some projects often propounded by persons who have had litile practical acquaintance with the subject, and are not even much conversant with the discus- sion of it. The necessity of defining what a libel is, has often been urged; but the impossibility of framing any such definition is at once perceived when the attempt is made; and it exists in the very nature of the thing. No definition of cheating, of cruelty, of conspiracy, can ever be given in any particularity of detail; and to contrive one which should meet all cases of libel would be absolutely impossible. The ill success which has attended the only limitation fixed, the only cri- terion established of libel or no libel has not at all tended to encou- rage any reflecting or experienced person in the pursuit of definitions. Slander is only actionable if it imputes an indictable offence. What is the consequence of a line thus drawn, and drawn to all appearance, DISSERTATION ON THE LAW OF LIBEL AND SLANDER. 211 upon a sufficiently plain and precise principle viz. on the only prin- ciple that has ever been propounded in discussing the question of defi- nitions? The consequence has been a complete failure; the line ex- cludes what it should include, and vice versd; the definition has every fault that a definition can have; words are actionable which ought not to be so, as, " He committed an assault" while no action lies for words which impute the most serious offences, as, " He committed incest and adultery" or which tend to dishonor as, " He is a liar, a coward, and a scoundrel." Another proposal is to make the truth in every case a defence. But independent of the objection already stated to this rule in the case of private libels, even public libels may be so conceived as to be quite true in all their statements of fact, and yet be most dangerous to the peace and safety of the community. A perfectly well-grounded charge may be brought against the government at a moment of public excitement, and accompanied with furious commentary tending to produce revolt. The passions of the multitude may be roused at a moment of public danger, from famine or invasion, by statements wholly consistent with the truth the making of which can do nothing but harm the suppression of whirh is the duty of every good citizen. The troops may be appealed to by details quite true, yet brought for- ward at such a moment, and urged with such invective, as may excite a dangerous mutiny. The slaves in a colony may be excited to insur- rection by a statement much under the truth, of their grievances, and of the crimes by which they were carried into slavery and have been kept in it of their natural and imprescriptible right to freedom ac- companied, for instance, with the recital of Dr. Johnson's celebrated toast, given at Oxford, at the table of the head of a house there u a speedy insurrection of the negroes in Jamaica, and success to it." So on the other hand, many falsehoods may be published, and even pub- lished with a malicious intention, and yet their tendency being inno- cuous, this will not constitute a libel. The mere truth or falsehood, then, of any matter published, is not a criterion of the innocence or guilt of the publication. There are oilier reformers of the Libel law who have considered the abolition of the ex ojfficio power to prosecute, as a remedy for all defects. That it would operate a very imperfect relief, however, and would leave much of the mischief untouched even as regards public libels, must be admitted. But we may go a great deal further, and question its being any advantage at all. That it should be placed under wholesome restriction, is very certain. But the evils arising from the want of a public prosecutor who shall institute proceedings, to preserve the purity of the pre^s and check its licentiousness, have been already shown under the head of this discourse. An attentive and dispassionate review of the subject, will show the true remedies for the existing defects, to be deduced from the state- ments already made respecting the objects in view and respecting those defects. First, It seems necessary to place the power of filing ex ojfflcio in- 212 DISSERTATION ON THE LAW OP LIBEL AND SLANDER. formations under the control of a grand jury. The law of Scotland is in some respects far better than our own, as regards the prosecution, of offences. The public prosecutor, representing the Crown, is a known and responsible officer, to whose hands is entrusted the impor- tant duty of commencing and conducting all criminal proceedings. But in case he should pass over any offence committed, the party in- jured, or in case of murder or abduction the relations of the party, are allowed to prosecute with the public prosecutor's concurrence, (con- course,) which is understood to be granted as of course. Instead of this power so confided to a single person being more liable to abuse in the case of political offences, it is perhaps less likely to be abused, because a grand jury has no individual responsibility, and may receive any bill preferred by an obscure person, as happened in the cele- brated case of the Dean of St. Asaph, where a country attorney insti- tuted proceedings, and the grand jury at once found the bill. It is not very likely that the Lord Advocate should ever put a person on his trial for a public libel or other political offence, unless the feeling among those classes from whom petty jurymen are taken, happened to be favorably disposed towards the prosecution. Nevertheless, the additional control of a grand jury would have the effect of preventing many vexatious proceedings, which may, as the law now stands, be instituted against any obnoxious person, both by the exojjicio powers of the Attorney-general, and by the privileges of the Lord Advocate, merely to give annoyance, and cause expense without any regard to the probability of conviction. In the still more important department of libels against private persons, we have already had occasion to see how important the office of a prosecutor is for keeping the press pure. It would, however, ba expedient to give the person libelled some share in the conduct of the proceedings, as an intervening party, although it might not be fit to give him a veto upon the instituting of them. Secondly, In all cases whatever of prosecution, whether for public or private libel, whether by Criminal Information or Indictment, and in all actions brought, the defendant should have a right, upon notice, to give the truth in evidence, subject to the next proposition; but then the truth should only go to the question of intention and tendency, as one element for resolving the question whether or not the defendant is guilty of the matter laid to his charge, and if guilty, what punishment he ought to receive, or what damages he ought to pay, and should in no case be of itself a conclusive defence by way of justification. The notice to be givon by him of his intention to tender such evidence under the general issue, ought to be special, with leave to the prose- cutor or plaintiff to require a fuller particular under the authority of a judge at Chambers; and the evidence tendered at the trial must of course be confined within the limits of the notice. Thirdly, It being of the utmost importance that anonymous slander should be discouraged, that the real author should by all means be reached, arid that the conspiracy between the slanderer and the pub- lisher already adverted to should be defeated, the right to give evidence DISSERTATION ON THE LAW OF LIBEL AND SLANDER. 213 of the truth of the matters published should bo confined strictly, both in civil and criminal cases, to 'the real author; and in order further to prevent collusion and fraud, the mere statement or admission of a party that he is the author should be of no avail, but before the evidence is received, he ought to prove to the satisfaction of the court that he is the real author. The consequences of this arrangement would be, that whoever lent himself to publish the libels of others, must be content to sud'er punishment without the chance of escape or even mitigation from the matters being undeniably true; while the real author would have every inducement to come forward, and would have all the benefit of the truth to which he is entitled. Nor can it be said with any correctness, that this restriction upon the mere publisher is unfavorable to the party complaining of injury to his character; for it is no kind of imputation upon any one who offers to meet any charge of his traducer, that he prosecutes the hired publisher without defying him to prdduce his charges, since he gives him at the same time full power to escape by putting forward the true author of the slander. Fourthly, It seems necessary, in order to make a prosecution satis- factory in the case of private libel, that the prosecutor should have a right to the fine which the libeller shall be sentenced to pay. This will not only provide for the expense of the proceeding, but give the same compensation which is now obtained by an action, and which we have seen cannot always be safely left with a jury. Fifthly, In order to make the proceeding by Information as perfect as it can be, there seems to be a necessity for exposing the witnesses who make affidavit to examination in court. Now, nothing can be more easy than to require that in every case of a Criminal Informa- tion being granted, the defendant should have the right to call for the prosecutor's witnesses that is, for the production of all the persons who joined wiih the prosecutor in making the affidavits upon which the rule was obtained, the defendant being at the same time com- pelled, whether he calls for the prosecutor's witnesses or not, to pro- duce the persons who made affidavit against the rule. It is evident that if this proceeding were attended with this production of the witnesses on both sides, it would become extremely satisfactory; for, while on the one hand, it exposes the conduct of the party libelled to a severe scrutiny, it protects him on the other hand from all false swear- ing as far as cross-examination can a fiord such security. It may be a question whether the parties themselves should not possess the right of presenting themselves as witnesses, to undergo cross-examination. Nor does there seem to be any good reason against this permission, except that it is contrary to the general rules of our law of evidence, and that there is no good reason for confining such an examination of parties to the case of libel. It is in no re- spect contrary to the. principles on which the law of evidenqe should be grounded ; and if the examination were extended to other cases, our jurisprudence would only be so much lh<: more improved. Lastly^ The power of having public libels tried by a special jury, 214 DISSERTATION ON THE LAW OF LIBEL AND SLANDER. ought by all means to be taken away. There is no reason why private cases should not still be triable by special jury, at the option of either party. But there also is no good reason why libel, or indeed any other misdemeanor prosecuted by the public, should not be referred to the same tribunal which disposes of the lives and liberties of the subject in the case of all the graver offences known to the law. COMMERCE AND MANUFACTURES, AND THE ORDERS IN COUNCIL INTRODUCTION. ORDERS IN COUNCIL. MR. STEPHEN'S CHARACTER. MR. PERCE- VAL'S DEATH. THE continental system of Napoleon, the idea and even the outline of which he took from the policy of the Republic, and especially the Executive Directory, formed during the latter part of his life, that is, after the termination of the peace of Amiens, the favorite object of all his attempts. The extension of his territorial possessions, and his direct power by the annexation of some provinces to France; the union of the kingdom of Italy with his imperial crown; and the foundation of dependent monarchies under members of his family in Naples and in Spain; were no doubt valued by him as in themselves tending to his own aggrandisement and that of his adopted country; yet as long as Great Britain remained unsubdued and with re- sources little exhausted even by the expenses of protracted wars, he knew that his security was exceedingly imperfect, and that a rallying point always must re- main for whatever continental powers should make an effort to regain independence. The projects of invasion, if they were ever seriously entertained, he soon laid aside. It cannot be doubted that the chief benefit he expected from them, as far as they regarded England, was the shock which the attempt, however unsuccessful, must give to the stability of a singularly artificial political and commercial sys- tem. Nor could he ever reckon upon more than a temporary success in Ireland, to which the views of the Directory had been directed in vain while affairs rendered such a plan far less likely to fail. The unbroken and unprecedented triumph of the British navy rendered all attempts at colonial warfare desperate, while the success of our cruizers in sweeping the seas made the combined maritime resources of France, Holland, and Spain alike ineffectual to embarrass our commerce or to pro- tect their own. We had neither territory, nor dependencies, nor ships, nor trade, directly exposed to his power; and his whole supremacy, whether of direct power or indirect influence in Europe, seemed to arm him witli no force which could bo pointed immediately against, the Toto pcnitus divisos orbc nritannos. Vet to injure us to reduce our resources to cripple our trade to woakrn our authority in the world seemed necessary for his reputation, and even for his own security. Accordingly this was the point to which all his views were directed; and he never subjugated an enemy, or overpowered a rival, or seized upon a place, with- out endeavoring in the very first instance to inako the event conducive towards tlm great design of injuring British trade. 216 INTRODUCTION. There was evidently but one way in which this could be effected and that was to unite the continent in a general league against all commercial intercourse with our islands. If this could be rendered complete, our trade must be confined to our own dominions in Europe, the colonies, and India, and to those of our former sub- jects and kinsmen of America. A vast bulk of commerce would thus remain wholly beyond his reach; but a severe blow would also be struck by the entire loss of the European market. In order, however, to render this scheme at all effectual, the European league must be complete. A single country having sea-ports, and communicating with other countries, raised the European blockade, because once oilr goods were intro- duced there, an entrepot was obtained through which they might be sent all over the continent. Accordingly, wherever the French arms penetrated, although the sovereignty of the country might not be seized upon by France, she yet required the rigorous exclusion of all British ships and trade, as a condition of leaving the territory in possession of its former owners, even when these might be at peace or possibly in alliance with England, and whatever might have been the original title by which their dominions were acquired. This was carried so far, that in 1806, when Hanover was occupied by Prussia, Napoleon required the exclusion of our commerce with that Electorate, as an execution, or at least a consequence, of the treaty by which Prussia had previously bound herself to exclude it from her other territories. Nevertheless, such is the elasticity of trade, so extremely prone are men to run almost any pecuniary risks for the sake of having the chance of pecu- niary gain, and so difficult is it to watch an extended line of sea-coast, that British produce found its way into all parts of the continent, although at prices somewhat raised by the obstructions thrown in its way. Napoleon was therefore determined to try the effect of more severe measures of exclusion; and when the premature and ill-concerted resistance of Prussia, in the autumn of 180G (principally occasioned by her refusing implicit submission to the commercial measures of France) had speedily terminated in the complete overthrow of her military power and had placed her entirely at the conqueror's mercy, the first use he made of his victory was to issue his famous Berlin decree, by which he professed to interdict all commerce, and even all intercourse, direct or indirect, wiih the British dominions. This inter- dict, so important in its consequences, bore date the 20th November, 1806, at Ber- lin, which he had then occupied with his troops, having driven the King from his capital, after the entire overthrow of his army at the battle of Auerstadt. It de- clared the British islands in a state of blockade all British subjects, wheresoever found, prisoners of war all British goods lawful prize. It interdicted all corre- spondence with our dominions; prohibited all commerce in our produce; and ex- cluded from all the ports of France, and of the countries under French control, every ' vessel, of what nation soever, that had touched at a British port. The alleged ground of this measure was the distinction made by England, but not by her alone, or by any maritime state now for the first time, between enemy's property taken on shore or at sea (the former net bring prize to the captors, unless it belonged to the hostile state; the latter being liable to capture, though belonging to private indi- viduals) the similar distinction as to prisoners of war, who on shore are only made of persons taken with arms in their hands and the extension of the rig'.it of block- ade, which it was alleged we should restrict to places actually invested by an adequate force. The Berlin Decree was declared to be in force until England should agree to make the same law of capture applicable by sea and by land; and to abandon the right of declaring coasts or ports not actually invested, in a state of blockade. It has been already observed that Napoleon borrowed from the Directory the out- line of these commercial measures. The main provisions of the Berlin Decree are to be found in the Decrees of July 1706, and January 1798; the former of which professed to treat all neutrals in the same manner in which they should submit to be treated by England; the latter of which made all English goods or colonial pro- duce liable to seizure wherever found, and all vessels to capture having any part of their cargo so composed shut the French ports to every vessel that had touched at any British port and even went to the barbarous extremity, not imitated by Napo- leon, of denouncing death to all neutral seamen found onboard of English ships. INTRODUCTION. 217 Although some parts of tlio Berlin Decree were mere angry menace?, which France li;ul no power whatever to execute, as the blockade of our whole coast, yet there were parts which she could carry into execution, at least to such an extent as must occasion great temporary embarrassment to the nations of the continent, and some interruption to our commerce. The seizure of all British produce, and the exclusion of all vessels that had touched at a British port, were the most formidable parts of the measure; and against these provisions the trading classes were urgent in their remonstrances. Napoleon sternly answered that he would not yield a hair's-breadth that the utmost commercial distress must be undergone, if neces- sary to make England feel the weight of his hostility and that the continent must be prepared for returning to the b irter of the fourth century rather than yield to our pretensions, and suffer our commerce to escape his vengeance. All men of sense and foresight saw plainly that this system never could be com- pletely successful, and that by far the wisest course for England to pursue would be that of leaving France and the neutral states, especially America, to fight it out amongst themselves, secure that the result must be favorable to our trade, as long as our goods were in universal demand, and could no where else be obtained. The thing most to be dreaded was any retaliating measures on our part, since by these we must both increase the obstructions raised to our commerce by the attempts of France, in which, without the help of our prohibitions, enforced by our navy, she never could succeed; and also bring on a contention, possibly a rupture, with neu- tral powers, on whose aid as carriers we entirely depended, as long as the conti- nent could not be approached by our own vessels. But such were not the views of men in power, of either party. The Whigs were in office when the Berlin De- cree of November 180(> arrived in this country; and so little time was given for deliberation, before a course fraught with misc-hiefof the greatest magnitude was resolved upon, that on the 7th of January following, the first of those fatal mea- sures was announced, since so well known under the name of the Orders in Coun- cil. This first and Whig Order declared, that the Berlin Decree authorised Eng- land to blockade all the French dominions, to forbid any neutral power from enter- ing our ports which had touched at any port of France or her dependencies, and justified us in capturing all her produce; but that we were unwilling to inflict such injuries on neutral nations. There never perhaps was a more absurd, not to say false statement in any instrument of state. The right thus pompously asserted is that of self-destruction, and the reason given for not exercising it, is the fear of injuring a neighbor. Jt is as if a man were to say to bis adversary, " You have thrown a rocket at my house and my neighbor's, which from your great distance fell short of both buildings therefore I have a full right to burn my own dwelling, but I will not, for fear I should set fire to the next house." The Order then states, that self-defence though not requiring complete retaliation, yet calls for something of the kind in other words that though the duty of self-defence does not require the act of entire self-destruction, it yet calls for a partial self-destruction and then it declares that for the purpose of retaliating upon the enemy the "evils of his own injustice," no vessel shall trade from one enemy's port to another, or from one port to another of a French ally's coast shut against English vessels; so that the only chance our goods had of being spread over the continent being by getting them smuggled into some port less watched by France than the rest, and then their being freely conveyed from thence in all directions, the wisdom of the Whig cabi- net, then flushed with Napoleon's successes into a state of most belligerent excite- ment against him, induced them to institute a blockade against our own commerce, by forbidding any one to carry British manufactures from place to place of the con- tinent. The only chance we had of sending our goods any where, was getting them in some where, and then having them freely distributed every where. "No, said the ministers of lH<>7, let them bo stopped where they are landed, and let no Ameri- can think of carrying them elsewhere. I,c t tln-m lie and ml in the warehouses of Pola, and Trieste, and Anemia, and C'adi/.. Mut if any American or Sicilian pre- sume to carry them on to their final destination, at Marseilles, or Bordeaux, or Nantz, let him be seized and condemned for violating the blockade instituted by the very effectual London decree of England in aid of the empty Berlin Decree uf VOL. I. I'J 218 INTRODUCTION. France, both Decrees alike levelled at the existence of the British commerce, though levelled with very different aim." It is farther to be remarked, that there existed no right whatever in England to issue any such decree against neutral states, merely because France had violated neutral rights. If time had been given for seeing whether or not America and other neutrals would submit to the Berlin Decree, something might have been said in behalf of our order. But it was issued 7th January, 1807, the Berlin Decree having been dated 20th November 1806 consequently it was physically impossible that we should then know what course America intended to pursue with respect to the French invasion of her rights. To every fundamental objection afterwards urged against the other Orders in Council issued at the close of the same year by the Tory Ministers, is the Whig Order of January 1807 completely exposed. It is equally a violation of neutral rights; tends equally to create a misunderstanding with America; operates equally in the wrong direction, namely, to the injury of our own commerce; and has equally the pre- posterous effect of assisting Napoleon in carrying into execution against us those measures which, without our own help, must in his hands be nearly, if not alto- gether, inoperative. Accordingly, although it suited the views of party to forget that order, and only, to attack those of Mr. Perceval, which were framed on the very same principles, yet the Americans never made the least distinction between the two; and Mr. Brougham, while contending against the system on behalf of the English merchants and manufacturers at the bar of the House of Commons in 1808, objected in the very same ter.ns to both, and always treated the preamble of the Whig Order, which stated a measure of vigor against ourselves enforcing the evils of Napoleon's hos- tility towards our commerce, to be retorting those evils on himself, as the leading absurdity of the whole system. It must be at the same time added, that when sub- sequent measures displayed more fully the absurd impolicy of their own act, the Whig party did eminently useful service by their strenuous opposition to the ex- tended system of impolicy and injustice. To these ulterior measures it is now ne- cessary that we should advert, but first something may be said of their author. Mr. Stephen was a person of great natural talents, which, if accidental circum- stances had permitted him fully to cultivate, and early to bring into play upon the best scene of political exertion, the House of Commons would have placed him high in the first rank of English orators. For he had in an eminent degree that strenuous firmness of purpose, and glowing ardor of soul, which lies at the root of all eloquence; he was gifted with great industry, a retentive memory, and inge- nuity which was rather apt to err by excess than by defect. His imagination was, besides, lively, and powerful; little certainly under the chastening discipline of severe taste, but often enabling him to embody his own feelings and recollections with great distinctness of outline and strength of coloring. He enjoyed, more- over, great natural strength of constitution, and had as much courage as falls to the lot of most men. But having passed the most active part of his life in one of the West Indian colonies, where he followed the profession of a barrister, and having after his return addicted himself to the practice of a court which affords no scope at all for oratorical display,* it happened to him, as it has to many other men of natural genius for rhetorical pursuits, that he neither gained the correct taste which the h;ibit of frequenting refined society, and above all, addressing a refined audi- tory, can alone bestow, nor acquired the power of condensation which is sure to be lost altogether by those who address hearers compelled to listen, like judges and juries, instead of having to retain them by closeness of reasoning, or felicity of illustration. It thus came to pass, that when he entered Parliament, although he could by no means be said to have failed, but on the contrary at first, and when kept under some restraint, he must be confessed to have had considerable success, yet he was, generally speaking, a third-rate debater, because of his want of the tact, the nice sense of what captivates such an audience, how far to press a sub- ject, how much fancy to display all so necessary for an acceptable speaker and powerful debater, one who is listened to by the hearers as a pleasure, not as a * The Prize Appeal Court in the Privy Council. INTRODUCTION. 219 duty for the hearer's own gratification, anil not for the importance of the subject handled one in short \vlio must address and win the tribute of attention from a volunteer audience like the House of Commons, and not merely receive the fixed dole of a hearing from the compulsory attention of the Bench. There was another circumstance connected with Mr. Stephen's nature, which exceedingly lessened hia influence, and indeed incalculably lowered his merit as a speaker. He was of a vehement, and even violent temper; a temper too, not like that of merely irascible men prone to sudden fits of anger or of excitement, but connected also with a pecu- liarly sanguine disposition; and as he thus saw objects of the size and in the colors presented by this medium, so he never could imagine that they wore a dilTerent aspect to other eyes, and exerted comparatively little interest in other bosoms. Hence he was apt to proceed with more and more animation, with increasing fer- vor, while his hearers had become calm and cold. Nor could any thing tend more to alienate an audience like the Commons, or indeed to lessen the real value of hia speeches. It must have struck all who heard him when, early in 1808, he entered Parliament under the auspices of Mr. Perceval, that whatever defects he had, arose entirely from accidental circumstances, and not at all from intrinsic imperfections; nor could any one doubt that his late entrance upon parliamentary life, and his vehe- mence of temperament, alone kept him from the front rank of debaters; if not of eloquence itself. With Mr. Perceval, his friendship had been long and intimate. To this the simi- larity of their religious character mainly contributed, for Mr. Stephen was a dis- tinguished member of the Evangelical Parly to which the minister manifestly leaned without belonging to it; and he was one whose pious sentiments and devotional habits occupied a very marked place in his whole scheme of life. No man has, however, a right to question, be it ever so slightly, his perfect sincerity. To this his blameless life bore the most irrefragable testimony. A warm and steady friend a man of the strictest integrity and nicest sense of both honor and justice in all the relations of private society wholly without a stain though envy might well find whereon to perch, malice itself in the exasperated discords of religious and civil controversy never could descry a spot on which to fasten. Let us add the bright praise, and which sets at nought all lesser defects of mere taste, had he lived to read these latter lines, he would infinitely rather have had this sketch stained with all the darker shades of its critical matter, than being exalted, without these latter lines, to the level of Demosthenes or of Chatham, praised as the first of ora- tors, or followed as the most brilliant of statesmen. His opinions upon political questions were clear and decided, taken up with the boldness felt with the ardor asserted with the- determination which marked hia zealous and uncompromising spirit. Of all subjects, that of the Slave Trade and Slavery most engrossed his mind. His experience in the West Indies, his reli- gious feelings, and his near connection with Mr. \\ ilberforce, whose sister he mar- ried, all contributed to give this great question a peculiarly sacred aspect in hia eyes; nor could he cither avoid mixing it up with almost all other discussions, or prevent his views of its various relations from influencing his sentiments on other matters of political discussion. His first publication was the " Crisis f the Stis^ar Culonies," a striking and animated picture of the mischiefs of Slavery, and a strong recommendation of the cause of St. Domingo lo the f.ivor of this country. Thus the conduct of Napoleon towards St. Domingo plainly sowed in his mind the seeds of that hatred which he bore to the Kmperor and all bis plans; and to this source may ac.ccrdingly be traced, not IIH rely his " Lift <f TuufUtint" written partly to gain f.ivor for the negroes, and partly to stimulate the public indignation against France during the alarms of invasion which accompanied the renewal of hostilities in 1UI!; but also the " Opportunity," in which In; very prematurely urged the policy of funning an alliance with the new IJl.ick Republic, and soon afterwards liis able and eloquent pamphlet on the " Iluttgirx <f tltc Country" This appeared early in 1-- : 0?: and contains, among oilier thiii'js of undoubted excellence, a signal proof of his enthusiasm outstripping bis better judgment for he deliberately traces the mi-fortunes of Kuropc in the late wars against France lo the spt--ci.il interpoM- tioji of Providence, btcausu of Kngland repeatedly rejecting the imasure ul SLivu 220 INTRODUCTION. Trade Abolition; forgetful that although those calamities indirectly and conse- quentially injured England, they fell far more heavily, and in the very first instance, upon the continental states which had neither a Colony, nor a Slave, nor a Slave trading vessel in their possession, which, therefore could not have committed the offence that called down the penalty, and which were subjugated by one of the greatest Slave holders and Slave traders in the world, France, the only gainer by all these visitations of Divine vengeance. It was further remarked, that even as to England his theory failed very soon after the work was published. For hardly had the Abolition been carried, than its authors were driven from power; and the Fifth Coalition was dissolved by the defeat of Russia at the great battle of Friedland. Baffled, therefore, in his 'speculations respecting the cause of Napoleon's suc- cesses, he betook himself to devising means of counteracting his influence as used against this country. In consequence of his jealous hostility towards Napoleon, and also from his intimate acquaintance with the frauds practised by neutrals in the court of Prize Appeal, where he had the leading practice until he became a Master in Chancery, he had early turned his attention to the French commercial measures, and upon his friend Mr. Perceval coming to the head of affairs, he ob- tained his assent to a far more complete system of retaliation than the Whig Order in Council of January 1807. He it was who first framed and afterwards zealously supported the famous Orders of November in that year, which brought the mercan- tile conflict with France, and unhappily with America also, to a crisis. These Or- ders were ushered in by a Tract upon the general subject of the conduct pursued by neutrals, entitled " War in disguise or the Frauds of the Neutral Flags,-" of all his works the most celebrated, the most justly admired, and a work certainly of extra- ordinary merit. The facts on which it dwelt were undeniably true, and as they appeared to show a systematic evasion of belligerent rights by the shifts and con- trivances of neutral traders, connived at, and indeed encouraged by their govern- ments, it was no hard matter to influence the people of this country against such. conduct, and make them believe that this was really hostility towards us and our interests under the mask of neutrality. The fallacy thus greedily swallowed by the nation's prejudices was very sincerely believed by the zealous and impetuous author, and the Ministers whom he counselled; and it is the prevailing fallacy which runs through the whole policy of the Orders in Council, from that of the Whigs in January to that of the Tories in November 1807. This fallacy consists in supposing that the trade driven by the neutrals with our enemies, because it benefits the latter, is therefore hurtful to ourselves, although it perhaps benefits us tenfold; on which is engrafted another mistake, if indeed it be not rather the root of the whole error, that of grudging the impossibility of our ever deriving advantage from the exchange of our goods without something of the benefit redounding to our enemies, customers, and consumers. When in the train of this brilliant and captivating publication the Orders of No- vember appeared, all men were struck with the magnitude of the design on which they were framed, and all reflecting men regarded them as calculated to execute the grand purpose of the first Decree. Their principle was indeed abundantly simple. Napoleon had f>aid that no vessel should touch a British port and then enter a French one, or one under French control. The Orders in Council said that no vessel whatever should enter any such port unless she had first touched at some port of Great Britain. Many other regulations opposed to neutrals were made in prosecution of this principle, and an ad valorem duty was levied upon their cargoes. Immediately after came forth Napoleon's Milan Decree, bearing date the 17th December, 1807, enforcing more rigorously that of Berlin, and declaring all vessels lawful prize, which had submitted to the right of search claimed by England. The first result of our general blockade of all Europe was the adoption in this country of a system most liable to every kind of abuse that of licenses issued to let certain vessels pass notwithstanding the Orders; and this was accompanied by a yet more abominable system of fabricated papers, which naturalised among the merchants and navigators of this country the worst practices of forgery and fraud. The next result was the American Embargo and Non-Importation acts, operating a suspension of all commerce with the United States. The distress experienced by INTRODUCTION. 221 the trade and manufactures of this country was extreme. A series of hostile pro- ceedings with America was begun and after much suffering endured, extreme ill- will engendered, many insults offered and resisted, this state of things ended in an open rupture, which lasted till the end of the war in Europe, led to the capture by the Americans of some British frigates, and was terminated by a most inglorious expedition to Washington, and a most unfortunate one to New Orleans leading to the injury of our national character in the one, and the tarnishing cf our military fame in the other. \Vlien the Orders in Council and the American Embargo first threatened British commerce with destruction, the merchants and manufacturers of London, Hull, Manchester and Liverpool, comprising all the industry of Yorkshire and Lanca- shire, and all the general trade which centres in the capital, petitioned Parliament against the obnoxious policy of the Orders, craved to be heard by their counsel, and tendered evidence of the injuries sustained from the operation of those orders. Mr. Brougham was their counsel, and was heard at the bar of both houses, where ho likewise adduced the evidence during several weeks in support of the petitions. The ministry, however, triumphed overall the attempts then made to defeat the system; and it was not until four years after, in 1812, that, the general distress having gone on increasing, there was found any chance of obtaining a more favorable hearing. Both Mr. Brougham and Mr. Stephen were now members of the House of Com- mons; and in March 1812, the subject was brought forward by the former. This motion was then negatived; but soon after Easter, he presented petitions from the same parties who had formerly been his clients: and on the motion of Lord Stan- ley,* on the 28th of April, the House agreed without a division to hear evidence in support of the petitions. The case was conducted every night for seven weeks by Mr. Brougham and Mr. Baring, f than whom it would not have been possible to find a more powerful coadjutor. His extensive possessions in America his con- nections both of family and commerce with that country his former residence there his vast mercantile knowledge derived from varied and long experience bis great general information, and the depth as well as precision of his understand- ing would have rendered him a most formidable adversary of the system, even stript of all the weight which any cause that he espoused must derive from the name, and authority, and resources, of the first merchant in the world. The in- quiry on the side of the petitions was wholly conducted by these two members, and each niirht presented new objections and new defeats to the Orders in Council, and new advantages to the opposition by incidental debatings on petitions presented by di>cussions arising on evidence tendered by other matters broached occasion- ally in connection with the main subject. The government at first, conceiving that there was a clamor raised out of doors against their policy, and hoping that this would of itsdf subside, endeavored to gain time and put off the hearing of the evi- dence. But Messrs. Brougham and Baring kept steadily to their purpose, and insisted on calling in their witnesses at the earliest possible hour. They at length prevailed so far as to have it understood that the hearing should proceed daily at half-past four o'clock, and continue at the least till ten, by which means they gene- rally kept it on foot till a much later hour, all but those who took a peculiar interest in the subject having earlier left the house. On the 11 th of May, a most lamentable catastrophe deprived the world of the Mi- nister who was the chief stay of Mr. Stephen's system. Mr. Perceval was walking arm in arm with that gentleman from Downing Street to the House, when lie was met by a messenger whom the Secretary of the Treasury had despatched to hasten him, the opposition having refused to suspend the examination longer, as the hour appointed to begin had some time passed. Mr. Perceval, with his wonted activity, darted forward to obey the summons, and was shot as he entered the lobby of the. House. It was remarked that had Mr. Stephen, who walked on his left, been still with him, he would have been most exposed to the blow of the assassin. At that moment ttie inquiry had been recommenced, and Mr. Brougham was examining :i witness, when he thought he heard a noiso as if a pistol had gone off in some ont-'d Now Lurl of Derby. t Now Lord Asliburton. 222 INTRODUCTION. pocket such at least was the idea which instantaneously passed through his mind, but did not interrupt his interrogation. Presently there were seen several persons in the gallery running towards the doors; and before a minute more had passed, General Gascoigne rushed up the House, and announced that the minister had been shot, and had fallen on the spot dead. The House instantly adjourned. Exami- nations were taken of the wretch who had struck the blow, and he was speedily committed for trial by Mr. M. A. Taylor, who acted as a magistrate for Middlesex, where the murder was committed. On that day week, Bellingham, having been tried and convicted, was executed, to the eternal disgrace of the court which tried him, and refused an application for delay, grounded on a representation that were time given, evidence of his insanity could be obtained from Liverpool, where he had resided and was known. It cannot with any truth be said that the popular ferment, which so astonishing and shocking an event occasioned, had at all sub- sided on the trial, the fourth day after the act was committed, and the day on which the judge and jury were called upon calm in mind inaccessible to all feelings above all outward impressions to administer strict and impartial justice. The opponents of the Orders in Council refused peremptorily to suspend their proceedings, in consequence of this lamentable event. Indeed the suspension of all other business which it occasioned, was exceedingly favorable to the object of those who were anxious for an opportunity to produce their proofs and obtain a decision. A vast mass of evidence was thus brought forward, showing incontestably the dis- tressed state of trade and manufactures all over the country, and connecting this by clear indications with the operation of the impolitic system which had been re- sorted to for " protecting our commerce, and retorting on the enemy the evils of his own injustice." At length, on the 16th of June, Mr. Brougham brought forward his motion for an address to the Crown to recall the obnoxious orders; and the following was the speech which he delivered upon that occasion. The course of the government was inexplicable. The absence of Mr. Stephen from his place, where he had attended every hour of the preceding inquiry, and taken a most active part in supporting the ministerial measure, plainly showed that a determination had been come to which he could not approve. Yet if it was resolved to strike if the system was abandoned there seems no intelligible reason why the leader of its adversaries should be heard to describe the mischiefs that had flowed from it, and to place its authors before the people as the cause of all they were enduring under it. This, however, was the plan resolved upon; and after Mr. Brougham had been heard in support of his motion, and Mr. Rose in defence of the system, and when Mr. Baring had followed, Lord Castlereagh, on the part of the government, an- nounced that the motion needed not be pressed to a division, because the Crown had been advised immediately to rescind the orders. The effects produced by the nume- rous petitions by the discussions to which these gave rise by the meetings in different places by the testimony of the witnesses were so apparent within the last fortnight, that there remained no doubt of the motion being carried, and hence the determination to which the ministers deemed it prudent that they should come. Mr. Stephen's absence on such an occasion was certainly not easily to be ac- counted for, unless upon the supposition that he could not have born in his place without expressing his dissatisfaction in terms so strong, possibly so contemp- tuous as might not suit the precarious position in which the government now were placed, deprived of Mr. Perceval, and opposed by Mr. Canning, as well as the Whig party. To this government Mr. Stephen adhered, regarding it as the remnant of his friend Mr. ['ore-oval's administration, and as regulated, generally speaking, by principles the same as his own. He never was accused, at any time, of unworthily sacrificing those principles for any consideration; and three years afterwards he gave a memorable proof of his public virtue, by at once abandoning the ministry, and resigning his seat in Parliament, because they pursued a course which lie disapproved, upon the great subject of Colonial Slavery. He retired into private life, abandoned all the political questions in which he took so warm an interest, gave up the public business in which he still had strength sufficient to bear a very active part, and relinquished without a struggle or a sigh all the advantages of promotion both for himself and his family, although agree- INTRODUCTION. 223 ing with the government in every other part of their policy, because on that which he believed conscientiously to be the most important of all their practical views, they differed from his own. It would indeed be well if we had now and then instances of so rare a virtue; and they who looked down upon this eminent and excellent person as not having answered the expectations formed of his parlia- mentary career, or sneered at his enthusiastic zeal for opinions in his mind of para- mount importance, would have done well to respect at a distance merit which they could not hope to imitate perhaps could not well comprehend merit, beside which the lustre of the statesman's triumphs and the orator's fame grows pale. SPEECH UPON THE PRESENT STATE OF COMMERCE AND MANUFACTURES, AND THE ORDERS IN COUNCIL. DELIVERED IN THE HOUSE OF COMMONS, JUNE 16, 1812. SIR I rise to bring before the House a proposition regarding the subject which has recently occupied so large a share of our attention the present state of Trade and Manufactures, and (he sufferings of the people of England. And I am confident I shall not be accused of exaggeration when I say, that it is by far the most interesting and momentous topic which can at this crisis engage the attention of Par- liament. After six weeks spent in the inquiry after a mass of evidence unparalleled in extent has been collected the time is at length arrived, when we are called upon for the result of our investi- gation, for our determination in behalf of the country, and our advice to the Crown upon the mighty interests which we have been examin- ing. But while I dwell upon the importance of this subject, I am by no means disposed to follow the practice usual upon such occasions and to magnify its extent or its difficulty. The question is indeed one of unexampled interest, but of extremely little intricacy. Its points are few in number they lie within a narrow range they are placed near the surface and involved in no obscurity or doubt. Its materials are only massive in outward appearance, and when viewed at a distance. There seems to be a huge body of details. This load of papers theso eight or nine hundred folios of evidence together with the bulk of papers and petitions lying on your table, would naturally enough frighten a careless observer with the notion that the subject is vast and complicated. Yet I will venture to assert, that I COMMERCE AND MANUFACTURES. 225 shall not proceed many minutes, before I have convinced not only those who assisted in the labors of the committee not those merely who have read the result of the Inquiry on our minutes but those who now for the first time give their attention to the question, and come here wholly ignorant of its merits, that there lias seldom been a subject of u public nature brought before this House, through which the path was shorter and surer, or led to a decision more obvious and plain. There is, however, sir, one task which meets me in the outset, and one of so painful a nature, that I would fain recede from it. It is my severe duty this night to make you acquainted with distresses of the people, and principally of the lower orders, that is to say, the most numerous and industrious classes of our countrymen. To handle the question without entering into these afflicting details, or to travel amongst them without the deepest uneasiness, would require an in- genuity or an insensibility which are equally foreign to my nature. For to whom could the scenes which we positively witnessed in the committee be so distressing as to those whose anxiety for the welfare of the lower orders impelled them to devote their days and nights to the labors of the inquiry? And it is now my hard task to give those who were not there to see and hear, some idea of what passed be- fore our very eyes the strange and afflicting sight of respectable ancient men, the pillars of the trade and credit of the country, coming forth to lament, not that they saw wasting away beneath the fatal policy of our government the hard-earned fruits of their honest and industrious lives not that they were approaching to old age stripped of the support which they been providing for that season but be- cause they no longer had the means of saving from absolute want the thousands of unhappy persons dependent upon them for subsist- ence because they had no longer wages to give the thousands, who were eager to work for any pittance to sustain life because, having already exhausted their whole means, all the accumulations of their lives, in the charitable offices of employing those poor people, they were now brought to the brink of that dreadful alternative, either of leaving them to perish, or of shutting their ears to the wants of con- nections that had still stronger claims. These are things which I c.uinot pass over; but I willingly delay entering upon them for some little time; and at present I should prefer calling your attention to more general circumstances, which less directly, though with equal force, prove the unexampled calamities of the times. And here, sir, I do not allude merely to the numerous petitions preferred to Parliament, setting forth the distresses of the country, and praying for a repeal of the orders in council. I will not dwell upon these, nor ground my inferences upon them. And yet I well might avail myself of such an argument on the present occasion. For if the system was adopted for the express purpose of relieving our trade and manufactures, what belter proof of its inefiicacy, than the loud and general complaints of our merchants and workmen against it? If the very ground and justification of those measures ORDERS IN COUNCIL. has always been the necessity of affording relief to the commerce and industry of the country, what can be more in point, while they are urging the merits of the plan, than the fact, that Yorkshire, Lan- cashire, and Warwickshire, all the great districts of our manufactures, joined formerly in expressing their fears of the relief you were offer- ing them; and now, after four years' trial of their virtues, loudly pray to be saved from such a remedy, imploring you for pity sake to aban- don them to the hostility of their enemies, and spare them the merciless kindness of the protection under which they are groaning? Yet I will forego whatever support the cause may derive from the fact of these petitions, in order to dwell upon the more indirect and unex- pected, and therefore wholly unsuspicious testimony, which it derives from other quarters. I would beseech the House to cast its eye abroad upon the various projects for obtaining relief, to which of late the people have in different parts of the country had recourse the attempts and devices to which in the restlessness of their sufferings, they have been resorting, with the vain hope of shifting or shaking off from them the load of calamity under which they labor. Some of those schemes, I know, are most inadequate to the object some are nugatory and absurd some are positively hurtful to them, and deserv- ing of reprobation. But they all proceed from the feverish uneasiness, the impatience of rest, which forms an undoubted symptom of the prevailing malady. Take, for example, the disorders which in dif- ferent districts have given rise to short-sighted attacks upon machinery and other private property. Of these it is impossible to speak without blame; but when we reflect on the misery which brought on this state of violence, it is hard to avoid mingling pity with our censure. Ano- ther remedy, as short-sighted though unhappily perfectly legal, I have myself had occasion to see attempted in the course of my professional employment I mean the applications which numerous bodies of manufacturers have made to courts of justice, for enforcing one of the most impolitic laws on the statute-book, the act of Elizabeth, requiring magistrates to fix the rate of wages a law which has been absurdly permitted to subsist, on the pretence that it was not likely to be acted upon, and which, as might have been expected, stands ready to promote mischief at the moment when it is most dangerous, without the possibility of ever doing good. A third expedient has been thought of, in application to this house for the abolition of sinecure places, or the appropriation of their profits to the expenses of the war. Of this remedy I by no means think so lightly as some do; it would indeed only afford a trifling relief, but it would go far to prevent the recur- rence of (lie evil, by diminishing the interest of many persons in the continuance of hostilities, and would disarm, I believe, some of the most warlike characters of the time. But I would particularly entreat you to consider the numberless petitions from almost every part of the country which now crowd your table, against continuing the East India Company's monopoly. That some of those applications are founded in the most just and politic views of the subject, I am far from denying; that the great COMMERCE AND MANUFACTURES. 227 and once opulent city of Liverpool, for instance, the second in the empire, would de-rive material relief from that participation in the East India trade, to which it has undoubted right, cannot be doubted; and Glasgow, Bristol, and one or two other places, are in the same predicament. But is this the case with all the other towns, I might almost say villages, which have preferred the same prayer to us in equally urgent terms? Is it the case with any considerable proportion of them? What think yon, sir, of places demanding a share of this trade, which have neither commerce nor manufactures? I will give yon a specimen of others which have something to export, but not exactly of the quality best suited to those Eastern markets. One district has petitioned for a free exportation to the East Indies, which to my knowledge raises no earthly produce but black horned cattle. The potteries have demanded permission to send freely their porcelain to China; and the ancient and respectable city of Newcastle, which grows nothing but pit coal, has earnestly entreated that it may be allowed to ship that useful article to supply the stoves and hot-houses of Calcutta. All these projects prove nothing less than the incom- petence of their authors to find out a remedy for their sufferings; but they do most distinctly demonstrate how extensive and deep-seated the evil must be, and how acute the sufferings which seek relief from such strange devices. They remind one of the accounts which have been handed down to us of the great pestilence which once visited this city. Nothing in the story of that awful time is more affecting, than the picture which it presents of the vain efforts made to seek relief; miserable men might be seen rushing forth into streets, and wildly grasping the first passenger they met, to implore his help, as if by communicating the poison to others, they could restore health to their own veins, or life to its victims whom they had left stretched before it. In that dismal period there was no end of projects and nostrums for preventing or curing the disease, and numberless empi- rics every day started up with some new delusion, rapidly made for- tunes of the hopes and terrors of the multitude, and then as speedily disappeared, or were themselves borne down by the general destroyer. Meanwhile the malady raged until its force was spent; the attempts to curtail were doubtless all baffled; but the eagerness with which men hailed each successive contrivance, proved too plainly how vast was their terror, and how universal the suffering that prevailed. So might I now argue, from the complaints and projects which assail us on every hand, how deeply seated and widely spread is the distress under which the people are suffering; but unhappily we have to encounter its details in many other shapes. Although it is not my intention to travel through the mass of evidence on your table, the particulars of which I may safely leave to my honorable friend,* who has so laudibly devoted his time and abilities to this investigation. Let me only, sir, remind the House of the general outline of the inquiry. We have examined above a hundred wit- Mr. Baring, now Lord Ashburton. 2.28 ORDERS IN COUNCIL. nesses, from more than thirty of the great manufacturing and mer- cantile districts. These men were chosen almost at random, from thousands whom we could have brought before you with less trouble than it required to make the selection; the difficulty was to keep back evidence, not to find it; for our desire to state the case was tempered by a natural anxiety to encroach as little as possible on the time of the House, and to expedite by all means the conclusion of an inquiry, upon the result of which so many interests hung in anxious suspense. In all this mass of evidence there was not. a single witness who denied, or doubted I beg your pardon, there was one one solitary and remarkable exception, and none other even among those called in support of the system, who even hesitated in admitting the dread- ful amount of the present distresses. Take, for example, one of our great staples, the hardware, and look to Warwickshire, where it used to flourish. Birmingham and its neighborhood, a district of thirteen miles round that centre, was formerly but one village, I might say one continued workshop, peopled with about four hundred thousand of the most industrious and skilful of mankind. In what state do you now find that once busy hive of men? Silent, still, and desolate during half the week; during the rest of it miserably toiling at re- duced wages, for a pittance scarcely sufficient to maintain animal life in the lowest state of comfort, and at all times swarming with un- happy persons, willing, anxious to work for their lives, but unable to find employment. He must have a stout heart within him who can view such a scene and not shudder. But even this is not all, matters are getting worse and worse; the manufacturers are wailing for your decision, and if that be against them they will instantly yield to their fate, and turn adrift the people whom they still, though in- adequately, support with employment. Upon your vote of this night the destiny of thousands in that district alone depends; and I ask you before you give it to tell me what must become of those thousands, or of the country in which they shall, be turned loose? I am aware that the language I use may be misinterpreted it may be perverted into a threat; but I speak of incontrovertible iacts from the evidence before you, when I affirm, that if you this night say " NO" to the petitions against the Orders in Council, you let loose upon the country thousands and thousands I will not say of riotous, or disorderly, or seditious, or even discontented people but only of hungry men who must either find food or perish. Look now to Yorkshire to the clothing country. The late Chancellor of the Exchequer, in the only conversation I had the honor of holding with him upon this question, was very confident that the case of the petitioners would fail in these districts; you have proved it, said he, as far as respects hardware, but, you will do nothing in the woollen trade. Sir, we have gone through the case, and how stand the facts? It is still stronger with respect to the clothing than the hard ware! It is more various in its features and more striking in the result, because the trade is more extensive, and employs both larger capitals and a more numerous people. One gentleman tells you that he has twenty, another twenty- COMMERCE AND MANUFACTURES. 229 five thousand pounds locked up in unsaleable, unprofitable stock, which load his warehouses. A third has about thirty, arid a fourth no less than ninety thousand pounds thus disposed of. In the ware- houses of one merchant there are eighty thousand pounds wortli of cottons, and in those of another at Liverpool from two to three thou- sand packages, chiefly woollens and cottons, valued on the lowest computation at two hundred thousand pounds, every article of which was destined for the American market, and can find no other vent. In the West Riding, thousands have been thrown out of all employ- ment but this is nothing compared with the fearful apprehensions which are there entertained, if you this night refuse them relief. I pass lightly over this ground but the fact is known that in that po- pulous county, the applications to the parish officers have so alarm- ingly increased, that they have given repeated warnings to the master manufacturers, and I believe to the higher authorities, of their utter inability to relieve the increasing distress or to answer for its conse- quences. Among other circumstances which marked this part of the case, there was one peculiarly affecting to every one who heard it. It had been proved that at Kidderminster, where the great carpet manufacture is almost entirely destroyed, the wants of the poor be- came so pressing that they were forced to part with their little stock of furniture, which used to make their cottages in some degree com- fortable, and even the clothes of! their backs, to raise food, until the pawnbrokers, having already loaded themselves with such deposits, refused to issue any more tickets. But at Sheffield, the same feature recurred in an heightened and still more striking form. The work- men in the cutlery trade, unable to obtain any longer their usual market, from the master dealers and merchants or brokers refusing to purchase any more, were compelled to pawn their articles at a very low valuation, for money, and even for food and clothes so that this extraordinary state of things arose the pawnbrokers came into the London market with the goods, and there met the regular dealers, whom they were able greatly to undersell; in such wise as to supply in a considerable degree the London and other markets, to the ex- treme augmentation of the distresses already so severely pressing upon this branch of trade. I might detain you, sir, in an endless repetition of this same tale of misery, through its different shapes, were I to describe its varieties in the other districts to which the evidence applies but I shall only refer to the Cotton trade; and that, not for the sake of stating that here too the same picture was presented of capital locked up men of great nominal wealth living without income trading, or seeming to trade, without profits numberless workmen dismissed those who remain employed earning only half or quarter wages parish rates increasing charitable supplies failing, from the reduced means of the upper classes, and the hourly augmented claims upon their bounty and the never-ceasing feature of this case in all its parts, the impend- ing necessity of instantaneously disbanding those who are only now retained in the hopes of your favourable decision; but I would draw VOL. i. 20 230 ORDERS IX COUNCIL. your attention to the Cotton districts, merely to present one incidental circumstance which chanced to transpire respecting the distresses of the poor in those parts. The food which now sustains them is reduced to the lowest kind, and of that there is not nearly a sufficient supply; bread, or even potatoes, are now out of the question; the luxuries of animal food, or even milk, they have long ceased to think of. Their looks, as well as their apparel, proclaim the sad change in their situa- tion. One witness tells you, it is only necessary to look at their hag- gard faces, to be satisfied what they are suffering; another says that persons who have recently returned, after an absence of some months from those parts, declare themselves shocked, and unable to recognise the people whom they had left. A gentleman largely concerned in the Cotton trade, to whose respectability ample testimony was borne by an honorable Baronet* I cannot regularly name him but in a question relating to the Cotton trade, it is natural to think of the house of Peel that gentleman whose property in part consists of cottages and little pieces of ground let out to work-people, told us that lately he went to look after his rents and when he entered those dwellings, and found them so miserably altered so stript of their wonted fur- niture and other little comforts and when he saw their inhabitants sitting down to a scanty dinner of oatmeal and water, their only meal in the four-and-twenty hours, he could not stand the sight, and" came away unable to ask his rent. These feelings so honorable to him so painful to us who partook of them were not confined to that respectable witness. We had other sights to endure in that long and dismal inquiry. Masters came forward to tell us how unhappy it made them to have no more work to give their poor men, because all their money, and in some cases their credit too, was already gone in trying to support them. Some had involved themselves in embarrass- ments for such pious purposes. One again, would describe his misery at turning off people whom he and his father had employed for many years. Another would say how he dreaded the coming round of Saturday when he had to pay his hands their reduced wages, incapa- ble of supporting them; how he kept out of their way on that day, and made his foreman pay them. While a third would say that he was afraid to see his people, because he had no longer the means of giving them work, and he knew that they would flock round him and implore to be employed at the lowest wages; for something wholly insufficient to feed them. Indeed, said one, our situation is greatly to be pitied: it is most distressing, and God only knows what will become of us, for it is most unhappy! These things, and a vast deal more a vast deal which I will not attempt to go through, because I abso- lutely have not the heart to bear it, and I cannot do it these things, and much more of the same melancholy description, may be seen in the minutes by such as did not attend the committee; or as far as I have been able to represent them, they may be understood by those who have not heard the evidence. But there were things seen in the com- * Sir R. Peel. COMMERCE AND MANUFACTURES. 231 mittee which cannot be entered on its records; which were not spoken in words, and could not be written down; which I should in vain, attempt to paint which to form any idea of, you must have been present, and seen and heard. For I cannot describe to you the man- ner in which that affecting evidence was given. I cannot tell you with what tones and looks of distress it was accompanied. \Vhen the witnesses told the story of the sufferings of their work-people and their own sufferings on their account, there was something in it which all the powers of acting could not even imitate; it was something which to feel as I now feel it, you must have seen it as I saw. The men to whom I am now alluding belonged to the venerable Society of Friends that amiable body of persons the friends indeed of all that is most precious to man the distinguished advocates of humanity, justice, and peace, and the patterns, as well as promoters of all the kindest charities of our nature. In their manner of testifying to this cause, there was something so simple and so touching, that it disarmed for a season the habitual indignation of the learned father of the system,* and seemed to thaw the cold calculations of its foster parent,t and his followers of the Board of Trade and Shipping Interest. J Sir, there is one circumstance in these melancholy details, which I have refrained from touching upon, because it seemed always to excite a peculiar degree of soreness; I mean the scarcity. We have often been taunted with this topic. We have been triumphantly asked, " What! is the scarcity too, owing to the Orders in Council?" Certainly we never thought of ascribing the wet summer, and the bad crop, to the present commercial system; but as for scarcity, I imagine there may be two kinds of it equally inconvenient to the people a scarcity of food, and a scarcity of money to buy food with. All the witnesses whom we examined, were, without exception, asked this question, " Do you recollect the scarcity of 1SOO or 1S01?" Yes, was the answer, " we do remember it; the dearth was then great, greater than at present, for there were two failing crops." But when we asked, whether the distress was as great, they Hung up their hands and exclaimed " nothing like it, for then the people had plenty of work and full wages, whereas now the want of money meets the want of food." But further, sir, have you not taken away the only remedy for this scarcity the only relief to which we can look under a had harvest by closing the corn market of America? Did we not always say, in arguing upon these measures prospectively; "Whore are you if a bad season comes, and there is a risk of a famine?" Well unhappily this calamity has come, or approaches; the season is bad, and a famine stares us in the face, and now we say as we did he In re "Where are you with your Orders in Council, and your American quarrel?" Why, sir, to deny that those measures affect the scarcity, is as absurd as it would be to deny that our Jesuit's bark bill exasperated the misery of the French hospitals, for that the wretches there died of the ague and not of the bill. True, they died * Mr. Stephen. j Mr. Rose. J Mr. Marryatt, &c. 232 ORDERS IN COUNCIL. of the ague: but your murderous policy withheld from them that kindly herb which the providence that mysteriously inflicted the disease, mercifully bestowed for the relief of suffering humanity. Before I quit this subject, let me entreat of the House to reflect how it bears upon the operations now carrying on in the Peninsula. Our armies there are fed from America; supplies to the amount of eight or nine millions a-year, are derived by them from thence; the embargo t'other day raised the price of flour in the Lisbon market above fifty per cent.; and when the news of this advance reached London, you heard from one witness that it occasioned in one morning, within his own knowledge, an export from this port of six thousand barrels of flour to supply the Portuguese market. Our operations in Spain and Portugal then depend upon the intercourse with America, and yet we madly persist in cutting that intercourse off! And is it indeed come to this? Are we never to lose sight of the Spanish war, except when America is concerned? To that contest what sacrifices have we not cheerfully made? To its paramount importance what perpetual tribute have we not been paying? Has it not for years been the grand object of our hopes as of our efforts; the centre upon which all our politics, external and domestic, have hinged; the point which regulated everything, from the negotiation of a public treaty to the arrangement of a cabinet? Upon this contest what millions of money, what profusion of British blood have we not lavished without ever stopping to count the cost, so self-evident have we ever deemed its advantages or rather its necessity to be? Yet now are we prepared to abandon it to sacrifice all our hopes of its future profit to throw away every advance that we have already made upon it, because it can no longer be prosecuted without involving us in the cost and dangers of a reconciliation with America! For this war, for this same bootless war, we hesitate not to neglect every interest, every domestic tie to cripple, oppress, starve, and grind down our own people; but all attention to it, all thought of it, suddenly leaves us the moment we ascertain that, in order to carry it on, we must abandon an unjust and ruinous quarrel with our kinsmen in America, and speedily relieve the unparralleled distresses of our own country- men! Now, and now only, and for this reason and none other, we must give up for ever the cherished object of all our hopes, and no longer even dream of opposing any resistance to France upon the continent of Europe because by continuing to do so we should effectually defeat her machinations in America! I have now, sir, slightly and generally touched upon the heads of that case of deep distress which the evidence presents to our view; and I here stop to demand by what proofs this evidence has been met on the other side of the House? Not a question did the honorable gentlemen, who defend the system, venture to put by way of shaking the testimony, the clear and united testimony to which I have been alluding; not a witness did they call on their part with the view of rebutting it, save only one, and to this one person's evidence it is necessary that I should call your attention, because from a particular COMMERCE AND MANUFACTURES. 233 circumstance it does so happen that it will not be found upon the minutes, and can therefore only be known to those who heaid it, by whom, I well know, it never can be forgotten. This man, whom I will not name, having denied that any great distress prevailed among the lower orders in the manufacturing districts, it was fit that I should examine him a little more closely, seeing that he took upon himself to contradict the statement unanimously given by the most respectable merchants and manufacturers in the country but a few days before. I therefore asked whether he meant to say, that the artisans had the same wages as usual And then was disclosed a scene the most revolting, the most disgusting, that it is possible to conceive, insomuch, indeed, that I was immediately afterwards implored by the gentlemen opposite to allow the evidence to be expunged, that it might not remain on our journals to defile them. This man in substance told us, that the people had enough of wages that they had no right to more that when their wages were at the former rate they had three times as much as they ought to have! What? did he really dare to say that the food which lie had heard with sorrow described by the Lancashire witnesses was enough for the support of Englishmen, or that this miserable fare was all that the lower people of this country have a right to the lower people to whom we owe all our national greatness? Did he venture to tell the representatives of that people us who are sent here by them who meet here only to consult for their interests who only exist by and for them that a short allow- ance of oatmeal and water (for such is the fact) was the fit fare for them?* Sir, this man sprung, I make no doubt, himself from the same class of the community, and at any rate now became by their labour, I am ashamed to say, one of the most affluent merchants in the city of London this loyal man, for he began his evidence with an attack upon Jacobinism, and imputed the present distresses to the seditious machinations of partymen in this town, I rather think he meant to insinuate in this house an attack which was also ordered to be expunged from the minutes this very person standing in this Commons House of Parliament was shameless enough to insinuate that Englishmen must be fed low to keep them quiet; for he distinctly stated, that if you gave them more, you pampered them, or as he termed it, accustomed them to ''luxuries irrelevant to their condition," and unhinged (as he phrased it in the jargon of his loyalty) " unhinged the frame of society." Sir, I yielded to the united entreaties of the gentlemen opposite, and for the sake of peace and the credit of our records, I consented to this disgraceful evidence being expunged. I now repent me of what I did; for I ought rather to have suffered the contamination to remain that it might record by what sort of witnesses this system is upheld, and according to what standard of popular rights and national happiness the defence of the syetem is framed. So much, however, for the first and last attempt which was made to impeach the facts brought forward by my witnesses. * See evidence of Mr. Wood, Mr. Bentlcy, &c. 20* 234 ORDERS IN COUNCIL. Driven from this ground, then, the right honorable gentleman retreats to his well known hold, and takes refuge in the Custom-house books In the accounts of the Inspector General. I could have wished that he had brought that worthy and respectable officer him- self to the bar, because then we might have learned more accurately how those returns are made up; at present we have only a meagre note of a few lines describing the errors of this proceeding. But, with respect to these returns I must in the first place observe, that we cannot in this stage of the inquiry rely on such evidence; the period is gone by when they might have been admissible. I shall explain myself in a moment upon this point. Accounts of exports and imports are resorted to, and most properly, in order to estimate the trade of the country when we have no better data; because those accounts give something like an approximation or rough guess at the state of the trade, and are in ordinary cases the only means we have of getting at a knowledge of the state of the country in point of commercial pros- perity. But when we know from other sources of the most unques- tioned authority everything relating to this very point when we have by actual inquiry learned in what state the commerce of the country is when we have gone to the fountain head and seen the situation of things with our own eyes it is idle and preposterous to run after lists of exports and imports which are only the less perfect evi- dence the indirect sign or symptom, and utterly out of time after we have examined the thing itself. We have seen that people are starving all over the manufacturing districts, and the master manufacturers ruined; after this to produce an array of Custom-house figures, for the purpose of showing whether manufactures are flourishing or not, is stark nonsense such an array is superfluous, if it coincides with the better proofs, if it contradicts them, what man alive will listen to them for one moment? But I confess, sir, that with me, at any stage of the inquiry, the credit of those Custom-house tables would be but small, after the account of them which appears in evidence. The Inspector himself has stated in his memorandum, that the method of making up the account of exports cannot be safely relied upon, in those instances where no payment is made; and by one of the returns it appears, that of twenty-seven millions, the average yearly value of exports, only ten millions are subject to duty on exportation, and that above eight mil- lions neither pay duty, nor receive bounty or drawback; upon this sum at least, then, all the inaccuracy admitted in this minute must attach. But the evidence sufficiently explains on which side of the scale the error is likely to lie: There is, it would seem, a fellow-feeling between the gentlemen at the Custom-house and their honoured masters at the Board of Trade; so that when the latter wish to make blazing state- ments of national prosperity, the former are ready to find the fuel. The managing clerk of one of the greatest mercantile houses in the city, tells you that he has known packages entered at 5,000 which were not worth 50; that those sums are entered at random, and can- not be at all relied upon. Other witnesses, particularly from Liver- pool, confirm the same fact; and I know, as does my right honorable COMMERCE AND MANUFACTURES. 235 friend, the Chancellor of the Exchequer, who was present, that the head of the same respectable house, a few days ago mentioned at an official conference with him, an instance of his own clerks being desired at the Custom-house to make a double entry of an article for export. After such facts as these, I say it is in vain to talk of Custom- house returns, even if they were contradicted in no respect by other evidence. After showing one such flaw in them, I am absolved from all further trouble; I am not bound to follow their details and prove them false step by step; I have shown enough to destroy their credit as documents, and with this irreparable damage on their face, I might here leave them. But strange to tell, after all the boasting of the gentlemen opposite in spite of every contrivance to conceal the real fact and notwithstanding the essentially vicious mode of pre- paring those docments, it does so happen, that the falling off in our trade is too great even for the machinery of the Custom-house to sustain, or cover it over; and with every effort to prevent its appearance, here it breaks out upon the face of the Custom-house papers themselves! At first, the methods I have spoken of were, no doubt, successful. When the defalcation was confined within certain limiis, those methods might conceal it, and enable the ministers to delude this house and the country, with details of our flourishing commerce. But that point has been passed, and no resources of official skill can any more suppress the melancholy truth, that the trade of the country has gone to decay. I hold in my hand the latest of these annual returns; and by its details we find that, comparing the whole amount of trade, both exports and imports (which is the only fair way of reckoning), in 1809, with its amount in 1S11, there is a falling off in the latter year to the amount of no less than thirty-six millions compared with 1810, the falling off is thirty-eight millions. If we confine our view only to the export of British manufactures, we find that the falling off in 1811, as compared with either of the former years, (for they are nearly equal,) amounts to sixteen millions. And if we take in the export of foreign and colonial produce also, the falling off in 1811, compared with 1S09, is twenty-four, and compared with 1810,no less than twenty-seven millions! Then, sir, we need not object that the evidence afforded by those papers they make most strongly in favor of our argument they are evidence for us, if any evidence from such a quarter were wanted and whatever credit you may give to the testimony by which I have been impeaching their authenticity how little soever you may be inclined to agree with rnc in doubting their accuracy, and in imputing exaggeration to them I care not even if you should wholly deny that any such flaws are to be found in their construction, and that any such abatement as I have described is to be made from their total results; I say, corrected or uncorrected. they prove my case and I now rely on them, and hold them up in refutation of the Board of Trade, because they dis- tinctly demonstrate an immense, an unparalleled diminution in our commerce, during the last eighteen months, and wholly coincide with both our evidence and our argument. 236 ORDERS IN COUNCIL. Of the positions advanced by the defenders of this system, one of the most noted is, that what we may have lost by its operation in one quarter, we have gained elsewhere and that if the United States are no longer open to us, we have extended our trade in the other parts of America, and in some new European channels. To this argument, however, the returns which I have just been dwelling upon furnish a most triumphant, if it were not rather a melancholy answer. For you will observe, sir, that Ihe mighty falling off, which those accounts exhibit, is upon the whole trade of the country that it includes South America, Heligoland, the Baltic, and the Mediter- ranean, as well as the United States, and the dominions of France. If, therefore, upon the whole, trade there has been this great defalca- tion, it is idle to talk of compensation and substitutes. The balance is struck the deficiency is proved, after all the substitutes have been taken into the account, and credit has been given for them all. Every such allowance being fully made, there is still a total loss of trade in one year to the enormous amount of eight and thirty millions sterling. In like manner do these returns dispose of another "famous argument that the deficit of last year is only apparent; that it arises from making a comparison with 1810, the greatest year ever known; but that, compared with former years, there was no fulling off at all. What now becomes of this assertion? The falling off in the last year, as compared with 1810, being thirty-seven millions; it is thirty- five, as compared with 1S09: and the deficit of exports of British manufactures is very nearly the same in both those comparisons. So much for the assertions of honorable gentlemen, and the real results of the Custom-house documents. But let us attend a little more closely to the much boasted substi- tutes for our American trade, which are to be found in the Spanish and Portuguese colonies in the south, and in our own settlements in the north. Almost all the witnesses who were examined knew some- thing of these branches of commerce; and it was the constant practice on this side of the House to ask them, how far they had found relief from them? We generally began with inquiring, whether they had tried the South American markets? and there was always the same sort of answer: it was in most cases given with an air and manner sufficiently significant, independent of the words; there was generally a something which I should distinguish by a foreign expression, if I might be permitted to use it, where we have none at home that will convey the meaning a sort of naivete an arch and humorous sim- plicity, which some now present must recollect. "Try the South American market? Aye, that we have!" Or, "Know the Brazil trade? We know it full well!" Some who had not personal expe- rience of it., on being asked, " Whether they knew of any others who had tried the South American trade?" said, " They never wished to know any such people, or to have anything to do with them." Most of them told us, that their diappointments were owing to Sir Home Popham's circular: and when we desired explanation, and demanded what profits they had turned on those adventures, whether COMMERCE AND MANUFACTURES. 237 twenty or only ten per cent. they said they had always lost fifty or sixty, or more in the hundred; and never sold for prime cost; fre- quently abandoning the goods to their fate, to save further charges in inquiring after them. Thus much appeared when /examined them; being myself no trader, I could only question them generally and differently: accordingly, in my hands, they came off easily and safely enough not so when the Vice-President of the Board of Trade took up the tale, which he never failed to do as soon as I laid it down. Then was seen all the closeness of a practical scrutineer; he took them to task as a real merchant, dealer and chapman; he spoke to them in their own language, and rated them in a manner so alarming to them but to my honorable friend* and myself so amusing, that even now it is some merriment to recollect the dialogue: " What!" he would say, "did you suffer a loss from the great South American market?" " Yes," was the answer, " a loss of fifty or sixty per cent." " Indeed," said the oracle of trade, sharply enough, -' why, what sort of cargoes did you send?" "Woollens," they would answer, "or flannels, or calicoes," as ihe case might be: ' Woollens," he would reply, " why, how could you think of such a thing? Woollens! no wonder that you lost." So that all comes of their bad trading, and not of the bad market. "While you are left to yourselves," says the right honourable gentleman, "no wonder that you make a losing speculation of it: What can your ordinary traders know of such fine markets as our South Sea bubble? Come to us repair to our Board of Trade let us assort your cargoes take a hint from my noble colleague in tradet and me, who carry on the commerce of the coun- try Come to the license shop, and we will teach you the sure way not perhaps of making a profit, for in these times that is not to be expected but of reducing your losses, so that you shall only lose thirty or perhaps not more than twenty per cent, on each adventure!" But grant that these merchants have really mistaken the right honourable gentleman's grand market, and have not exactly hit upon the articles that suit it; is it nothing against this new market that none of the real traders nobody but Lord Bathurst, and his Board in Downing-street, can find out what things answer for it? Is cer- tainty and steadiness no longer a desirable quality in trade? Are we to value commerce for its changeableness? Is variety now the great beauty of traffic? Is that line of employment for capital to be pre- ferred which gives the most precarious returns, where the hazards are the greatest, and the obstacles the most difficult? as if the mer- chant was in search of amusement, or of that kind of unnatural delight which gamesters arc said to take, in the risks and dangers of their unworthy occupation? Really, sir, I speak as one ignorant of the subject, practically; I am not like the gentlemen of the Board, an adept in the mysteries of commerce; but from everything I had heard, I did imagine that there was some merit in the old-fashioned qualities which were conceived foolishly I imagine, and ignorantly, * Mr. Baring. } Lord Bathurst. 238 ORDERS IN COUNCIL. to distinguish a good market, and that it was nothing the worse for being accessible plain enough to enable traders to find out. what suited it large enough not to be soon glutted regular enough to be confided in more years than one and gainful enough to yield some little profit, and not a large loss upon each adventure. Then comes the other great substitute, the market of British North America, and here the same proofs of a complete glut are to be found in every part of the evidence. At first, indeed, when the people of the United Stales did not go hand in hand with the government, and unwillingly supported, or endeavoured to evade the prohibitory laws, it was found easy to smuggle in our goods through Canada, to a con- siderable amount. But tin's outlet too we have now taken especial care to close up, by persisting in the same measures which rendered such a roundabout trade necessary, until we exasperated the people of the United States as well as their government, and enabled the latter to take whatever steps might be requisite for completing the exclusion of our trade those measures have been adopted the contraband in Canada is at an end, and there is no longer that vent in British North America, which the Board fondly imagined it had so slily provided for our commerce; a vent which, at the best, must have been a most wretched compensation for the loss of the American traffic, in its direct and full course. But, sir, we are talking of substitutes; and I must here ask how much of the South American or European trade is really a substitute for that of the United States? because, unless it is strictly speaking so substituted in its place, that it would be destroyed were the North American trade restored, no possible argument can be drawn from its amount, against the measures which I now recommend for regaining the market of the United States. It is pretended that the export to North America used to be much greater than the consumption of that country, and that a large part of it was ultimately destined for the consumption of South America and the West Indies; from whence the inference is drawn, that as we now supply those markets directly, the opening of the North American market would not be so large an increase as is supposed. The fact is quite otherwise. It is proved in evidence by a respectable witness* who has resided for years in America, and by the official returns before Congress, that not above a thirteenth in value of the amount of the goods sent from this country to the United States, is in the whole re-exported to South America and the West Indies; and of this not above a half can be British manufacture. There will only be then a diminution of half a million in the export to North America from this cause, and that must have been much more than supplied by the increase of the North American market since the trade was stopt. So too the markets of Brazil, and of Spain and Portugal, which are spoken of as substitutes for our North American commerce, will most unquestionably continue as at present after that commerce shall have been restored. All the deduc- * Mr. P. C. White. COMMERCE AND MANUFACTURES. 239 tions (hat we have any right to make are too contemptible to be mentioned. No proof is offered or even attempted to be given, that these protended substitutes, are in fact substitutes; that they would not conliuue to exist in their present extent afier the revival of the branches in the place of which they are absurdly said to be substi- tuted. Therefore I need not argue as to the extent or the excellence of these new markets. Be they ever so valuable be they as fine as the Vice-President and his Board can dream of, my argument is not touched by them, until it be shown, that we must lose them by restor- ing our intercourse with the United States. Since the pressure then which the loss of our foreign trade has occasioned, have we discovered in the course of the inquiry any relief? The gentlemen opposite eagerly fly to the home market; and here their disappointment is, I grieve to say, speedy and signal. On this branch of the question the evidence is most striking and harmonious. In all the trades which we examined, it appeared that the home market was depressed in an unexampled degree. And this effect has been produced in two ways. Goods destined for the foreign market, no longer finding that vent, have been naturally thrown more or less into the home market, so as to glut, or at least greatly overstock it. And again, those places which depended for part of their support upon the foreign market, have been so crippled by the loss of it, that their consumption of articles of comfort and luxury has been mate- rially contracted. This is remarkably illustrated in the evidence re- specting the cutlery trade; which, from the nature of its articles, is peculiarly calculated to explain both the circumstances I have alluded to. Not only do the dealers in that line find the home market unusu- ally loaded with their goods, but they tell you that they find a much smaller demand than formerly for those goods, in all places which used to be engaged in the American trade. Evidence of the same kind is to be found touching another article of luxury, or at least comfort, the Kidderminster manufactory; and the respectable and intelligent witnesses from Spitalfields explained fully how the diminu- tion of their staple manufacture, from what causes soever arising, never failed to affect all the other branches of industry in that district, down to the bricklayer and common day-labourer. It must be so; the distribution of wealth, the close connection and mutual dependency of the various branches of industry, will not permit it to be otherwise. While I am speaking of the home trade, sir, I must call your attention in passing, to one species of relief which is more apparent than real, arising to that branch of our commerce out of the war and its expenditure. It is certain that at present a great part of the trade which remains to us is not a regular, lucrative, and if I may so speak, wholesome and natural trade but a mere transference of money from the tax-payer through the tax-gatherer to the manufacturer or merchant a mere result of the operations of supply within this House, and the operations of war out of it. I speak now, not only of the three millions a year paid to the shipping interest for the trans- port service nor of the vast amount of our expenditure in the 240 ORDERS IN COUNCIL. Peninsula and Mediterranean; which delusively augment by many millions the apparent exports of the country, but I will take an instance from the evidence and the papers on your table, and it shall be from Birmingham. Half of the trade there being now gone, there remains a manufacture, we are told, of goods to the amount of 1,200,000/. a year, for home consumption. But this home consumption includes the demand of that great and extravagant consumer the government. The Ordnance accounts show that above 700,000/. are paid in one year for gun and pistol barrels made at Birmingham; so that only half a million is the real and genuine extent of the remaining manufacture. The rest no doubt relieves the manufacturers and workmen, but it is a relief at the expense of the other members of the community; and the expense goes to feed the war to support soldiers and sailors, who in return, though doubtless they perform great and precious ser- vices to the country, yet do not at all contribute to augment its wealth, or maintain its revenues, as workmen and peasants would do if the same sums were expended upon them. A similar observation may be applied to the expenses of clothing the Army and Navy. In Yorkshire, and some parts of Scotland, these demands have been found to constitute the bulk of the remaining trade. Their amount I know not with any accuracy, as the returns which I moved for are not yet produced; but it is easy to conjecture that six or seven hundred thousand men cannot be clothed at a very small expense. All these demands must be deducted from the account, if we wish to exhibit a fair view of the actual state of our manufactures. Suffer me, sir, before leaving this part of the subject, to state a circumstance connected with the Home trade, which is peculiarly striking, arid argues to show clearly, that things are in such a state that any relief obtained in one quarter must be at the expense of another. In the clothing districts, it was stated that about a year and a half ago, a considerable extension of trade had been experienced in many branches; and no sooner was the circumstance mentioned than the Vice-President's countenance brightened up, as if he had at length begun to see daylight, and the tide was really turning in his favour: so he greedily pursued the inquiry. It turned out, however, that this relief, (and it was the only one of which we met with any trace during our whole investigation) was owing to a change of fashions, which about that time was introduced, the ladies having taken to wearing cloth pelisses during that winter. But soon after came the sequel of the same tale; for we were examining the Spitalfields weavers on some other points, and upon their stating that they were never so badly off as about a year and a half ago, we inquired to what this was owing, and it turned out that it rose entirely from the change of fashions among the ladies, who no longer wore silk pelisses. Thus the clothiers were relieved entirely at the expense of the weavers, and the only instance which this long and various inquiry affords of the universal sufferings being interrupted by any more favourable events the only diminution to the distresses that is anywhere to be met with is one which increases those miseries precisely in the same COMMERCE AND MANUFACTURES. 241 degree in some other quarter, equally deserving our protection and our pity. But there is one ground which the advocates of the system always retreat to, when they are driven out of the facts, and find themselves unable either to deny the miseries which their projects have occasioned, or to contend that there are any practicable means of relief. They allow that our commerce is destroyed they admit that the people are impoverished but there are other considerations, they contend, which a great nation should entertain there are more valuable possessions than trade and wealth and we are desired to consider the dignity and honour of the country. Sir, there is no man within these walls to whom such an appeal could be made with more effect than to him. who is now addressing you. Let it but be shown to me that our national honour is at stake that it is involved in this system nay that it touches it in any one point and my opposition from that moment is at an end only prove to me, that although our trade is gone, or turned into confined, uncertain and suspicious channels although our manufacturers are ruined and our people starving yet all these sacrifices and sufferings are necessary for our character and name I shall be the first to proclaim that they are necessary and must be borne, because I shall ever be the foremost to acknowledge that honour is power and substantial inheritance to a great people, and that public safety is incompatible with degradation. Let me but see how the preservation of our maritime rights, paramount as I hold them to every oilier consideration, is endangered by the repeal of the Orders in Council and I sit down and hold my peace. But I now urge you to that repeal, because I hold it most conscientiously to be, not inju- rious, but essential to the preservation and stability of those rights, and of the naval power which protects them; and I must therefore crave your leave to step aside for a while from the details in which I have been engaged, in order to remove, as I well know I speedily can, all idea of the necessity of the Orders in Council to the security of our naval rights. This explanation is due both to the question itself, to the numerous parties who are now in breathless anxiety awaiting its decision, and if I may presume to say so, to my own principles and character. On the foundation of our pretensions as at the present time urged I am loth to enter, because, whether they are just or not, according to my view of the question, the maintaining or abandoning of them, even of the most untenable among them, is quite foreign to this discussion. I will not, therefore, stop to examine the value, or the justice of our claim to unlimited blockade what is significantly termed paper blockade. I might ask since when this has been introduced or sanc- tioned by even our own courts of public laws? I might refer you to the beginning of last war, when our commanders in the West Indies having declared the ports of Murtinico under blockade, the highest authority in matters of prize, the Lords of Appeal, without hesitation decided this blockade to be contrary to the law of nations, and refused to support it. But as my argument requires no such position, as it VOL. I. 21 242 ORDERS IN COUNCIL. leads me quite clear of this question, I wish not to embarrass myself at all with it, and I will freely grant everything that can be asked upon the question of right. I will admit that we have a right to blockade, by a few lines in the Gazette, whole islands, coasts, con- tinents, nay, the entire world and all its harbours, without sending a single sloop of war to enforce the order. This admission, I should think, is sufficient to satisfy the most blockading appetite in the House, though I perceive, by the smile of distrust on the Chancellor of the Exchequer's countenance, that it falls short of his notions. I will also pass over the still more material question, how far we have a right to blockade, for purposes not belligerent but mercantile, that is, to exclude neutrals from trading with our enemy, not with the view of reducing that enemy to submission, and terminating the contest more speedily, for the general good, but upon the speculation of stunting the enemy's trade and encouraging our own. Lastly, I shall say nothing of the most obvious of all these questions how far have we a right to blockade the enemy, and exclude the neutral, for the purpose of break- ing our own blockade and engrossing the trade with the enemy, from which we keep the neutral out a question ably stated the first time I had the honour of bringing forward this subject, by a right honourable gentleman on the opposite side.* All these questions I pass from, however strong my opinion may be upon some of them; and I do not even stop to show what the evidence does at every step substantiate, that the Orders in Council do in no respect tend to secure any one even, of those pretended advantages for our own trade over the enemy's; but I hasten to grapple with the substance of the argument on the other side, by which the Orders in Council are connected with these maritime rights, all of which I am now admitting. It is said, that if we repeal those Orders, and waive or relinquish for the present and for our own evident advantage, the rights on which they are founded, then we sacrifice those rights for ever, and can never again, happen what may, enforce them. Is it really so, sir? Then woe betide us and our rights! for which of all our maritime rights have we not at one time or another relinquished? Free ships make free goods, says the enemy, and so say many other powers. This we strenuously deny, and we deem our denial the very corner-stone of our maritime system. Yet at the peace of Utrecht we gave it up, after a war of unexampled success, a series of uninterrupted triumphs, in which our power was extended, and France and her allies humiliated. The famous rule of the war of 1756, has had the same fate that principle out of which the Orders in Council unquestionably sprung. The name by which it is known shows that it is but a modern invention; buf it seems to have been waived or relinquished almost as soon as it was discovered; for in the American war it was given up, not only in practice, but by repeated decisions in our Prize Courts: I allude especially to the well known judgments of Sir James Marriott upon this point. In the last war it was also departed from, by express acts of the government in * Mr. Canning. COMMERCE AND MANUFACTURES. 243 1793 and 1794; yet, by a strange coincidence, the very person who now tells us that to refrain from forcing a right and to abandon it forever, are one and the same thing, was he who contributed more than any other man to revive the rule of the war of 1756; he who gave to the world an able and learned work, certainly, but one which I deeply lament ever saw the light, I mean the tract known by the name of " War in Disguise." Another, and, in my opinion by far the most valuable of our maritime rights, is the right of search for contraband of war; it is one of the most unquestionable, too, for it is strictly a belligerent principle, lint have we invariably exercised it? Nay, have we not offered to give it up? Recollect the first armed neutrality, at the close of the American war; Mr. Fox was then en- gaged in negotiating away this very right; and by a fatality as re- markable as that which I have just spoken of, this very statesman (and a grenter has never ruled in this kingdom, nor one more alive to the true honour of his country) was the very man who first extended the right of blockade, in May, 1S06; and his colleagues, regulated by his principles, were the authors of the coasting blockade, the first step to the famous Orders in Council. How, then, can any man, who has a memory about him, pretend to tell us, that if we for a moment cease to exercise those rights, we never can again enforce them, when you find that we have not merely abstained from exercising, but actually surrendered at different times all the maritime principles which we now hold most sacred and most essential? Is it necessary always to do a thing because you have the right to do it? Can a right not be kept alive except by perpetually using it, whether hurtful or beneficial ? You might just as well say, that because I may have a clear right of way through my neighbour's close, therefore I must be eternally walk- ing to and fro in the path, upon pain of losing my right should I ever cease to perform this exercise. My honourable and learned friend* would run up and tell me, if he saw me resting myself, or eating, or sleeping, or walking to church, " Why, what are you about ? You are leaving, relinquishing, abandoning your inviolable and undoubted right; if you do not instantly return and constantly walk there, you are an undone man." It is very possible that this may be destructive of my comforts, nay, absolutely ruinous to me, but still I must walk, or my right of way is gone. The path may lead to a precipice or a coal-pit, where I may possibly break rny neck in groping after my sacred rights. What then ? My grandchildren, long after I shall have been destroyed in preserving tin's claim, may have to thank me for some pleasant or profitable walk, which it secrns there was no other way of keeping possession of but by my destruction. This is pre- cisely the argument applied to the present question. I will maintain that every right may safely be waived, or abandoned for reasons of expediency, and resumed when those reasons cease. If it is other- wise if a right must be exerted, whether beneficial or ruinous to him who claims it, you abuse the language by calling it a right it becomes * Mr. Stephen. 244 ORDERS IN COUNCIL. a duty, an obligation, a burthen. I say, if your interest requires the relinquishment of the rights in question, abstain from enforcing them give them up under protest do not abandon them do not yield them in such a way that you may seem to acknowledge yourselves in the wrong but with all the solemnities which can be devised, with as many protestations and other formalities as the requisite number of civilians can invent, state that you are pleased to waive the exercise of the right for the present, or until further notice; and that for your own interest, and with views of your own, you are content to refrain from enforcing this chapter of the maritime code. Their brain must be filled with whimsies, and not with ideas of right, who can imagine that a conduct like this would place our pretensions in jeopardy, or throw a single obstacle in the way of exerting on the morrow the very same rights, of which next Saturday's Gazette should contain the waiver. Always let it be remembered, that I ask no surrender, no acknowledgment. I say keep fast hold of your rights on no account yield them up but do not play the part of madness, and insist on always using those rights even when their use will infallibly work your ruin. In entering, sir, upon the discussion of our maritime system, I have been drawn aside from the course of my statement respecting the importance of the commerce which we are sacrificing to those pure whimsies, I can call them nothing else, respecting our abstract rights. That commerce is the whole American market a branch of trade in comparison of which, whether you regard its extent, its cer- tainty, or its progressive increase, every other sinks into insignificance. It is a market which in ordinary years may take off about thirteen millions worth of our manufactures; and in steadiness and regularity it is unrivalled. In this respect, or indeed in any other, it very little resembles the right honourable gentleman's* famous South American market. It has none of the difficulty and uncertainty which it seems are now among the characteristics of a good trade; neither has it that other remarkable quality of subjecting those who use it to a loss of fifty or sixty per cent, unless they put their speculations and assort- ments under the fostering care of the Board of Trade. All such properties I disclaim on the part of the American commerce; it is sure and easy, and known, and gives great and steady profits. The returns are indeed as sure, and the bad debts as few, as they used to be even in the trade of Holland. Those returns are also grown much more speedy. Of this you have ample proof before you, not merely from the witnesses actually examined, who have all said that the payment was now as quick as in any other line, and that the Americans often preferred ready money bargains for the discount; but the same thing is exemplified in the omissions of the case brought forward by the petitioners. Four years ago they told you, and proved it at your bar, that were the intercourse with the United States cut off we should lose about twelve millions, or a year and a half's pay- * Mr. Rose. COMMERCE AND MANUFACTURES. 245 ments, that being the sum then due from America to this country. Now they have no such case to urge; fur they well know, that were a balance struck between the two nations to-morrow, it would be considerably in favour of the Americans, so greatly have they increased in wealth, and so rapidly has this trade been growing as it were under our very eyes! There are some political facts, which we must take as facts, be- cause they are proved to us, without being able to account for them, or to trace them to their origin, and explain their causes. But the extent, and swift and regular progress of the American market for British goods is not of this number; we can easily and clearly account for it. In the nature of things it can be no otherwise, and the reason lies on the very surface of the fact. America is an immense agricul- tural country, where land is plentiful and cheap; men and labour, though quickly increasing, yet still scarce and dear when compared with the boundless regions which they occupy and cultivate. In such a country, manufacturers do not naturally thrive; every exertion, if matters be left to themselves, goes into other channels. This people is connected with England by origin, language, manners, and insti- tutions; their tastes go along with their convenience, and they come to us as a matter of course for the articles which they do not make themselves. Only take one fact as an example: The negroes in the Souihern States are clothed in English made goods, and it takes forty shillings a-year thus to supply one of those unfortunate persons. This will be admitted to be the lowest sum for which any person in America can be clothed; but take it as the average, and make deduc- tion for the expenses above prime cost you have a sum upon the whole population of eight millions, which approaches the value of our exports to the United States. But it is not merely in clothing; go to any house in the Union, from their large and wealthy cities to the most solitary cabin or log-house in the forests you find in every corner the furniture, tools, and ornaments of Staffordshire, of War- wickshire, and of the northern counties of England. The wonder ceases when we thus reflect for a moment, and we plainly perceive that it can be no otherwise. The whole population of the country is made up of customers, who require and who can afford to pay for our goods. This, too, is peculiar to that nation, and it is a peculiarity as happy for them as it is profitable to us. I know the real or affected contempt with which some persons in this country treat our kins- men of the west. I fear some angry and jealous feelings have sur- vived our former more intimate connection with them feelings engendered by the event of its termination, but which it would be wiser as well as more manly to forget. Nay, there are certain ro- mantic spirits who even despise the unadorned structure of their massive democratic society. But to me I freely acknowledge the sight of one part of it brings feelings of envy, as an Englishman; I mean the happy distinction, that over the whole extent of that bound- less continent, from Canada to the Gulf of Mexico, and from the Mississippi to the Atlantic Ocean, there is not one pauper to be found. 21* 246 ORDERS IN COUNCIL. Such are the customers whom America presents to us. The rapid increase of their culture and population too, doubling in twenty-five or thirty years, must necessarily augment this demand for our goods in the same proportion. Circumstanced as the two countries are, I use no figure of speech, but speak the -simple fact when I say, that not an axe falls in the woods of America which does not put in mo- tion some shuttle, or hammer, or wheel in England. Look at Mr. Parkes's evidence, and you will see that the changes which happen in the New World, or the political proceedings of the two govern- ments, their orders, and manifestoes, and negotiations, may be per- ceptibly traced in their instantaneous effects in this country in the increased or diminished velocity (I speak to the letter) of the wheels which are moving in the different districts where English manufac- tures used to flourish. But let us merely pause upon the broad fact of the present amount of the American market, and let us keep our eye for a moment upon the numerical expression of its demand thirteen millions sterling by the year! Why, sir, only conceive any event which should give an opening in the north of Europe, or the Mediterranean for but a small part of this vast bulk some change or accident by which a thirteenth, aye, or a thirtieth of this enormous value of British goods could be thrown into the enemy's countries! Into what transports of delight would the Vice President be flung! I verily believe he would make but one step from his mansion to his office all Downing-street, and all Dukes'-place would be in an uproar of joy. Bless me, what a scene of activity and business should we see! What cabinets what boards! What amazing conferences of lords of trade! What a driving together of ministers! What a rustling of small clerks! What a mighty rushing of brokers! Circulars to the manufacturing towns harangues upon 'Change, performed by eminent naval charac- ters triumphal processions of dollars and volunteers in St. James's- square! Hourly deputations from the merchants courteous and pleasing answers from the board a speedy importation into White- hall, to a large amount, of worthy knights representing the city a quick return cargo of licenses and hints for cargoes the whole craft and mystery of that license trade revived, will) its appropriate per- juries and frauds new life given to the drooping firms of dealers in forgery, whom I formerly exposed to you answered by correspond- ing activity in the Board of Trade and its clerks slips of the pen worth fifteen thousand pounds* judicious mistakes well considered over- sights elaborate inadvertencies Why, sir, so happily constituted is the right honourable gentleman's! understanding, that his very blunders are more precious than the accuracies of other men; and it is no metaphor, but a literal mercantile proposition, to say, that it is better worth our while to err with him than to think rightly with the * Mr. Barinnr had stated, that by two mistakes at one time licenses were ren- dered so valuable, that he would have given that sum for them. Mr. Rose. COMMERCE AND MANUFACTURES. 247 rest of mankind! And all this life, and activity, and machinery for what? To snatch at a miserable export occasional fleeting irregular ephemeral very limited in amount unlikely to recur uncertain in its return precarious in its continuance beneficial to the enemy exposed to his caprices, and liable by his nod to be swept at once into the fund of his confiscations enjoyed while he does permit it, by his sufferance for his ends enriching his subjects manning his fleets nursing up for him a navy which it has already taken the utmost efforts of our unconquerable marine to destroy! Good God! the incurable perverseness of human folly! always straining after things that are beyond its reach, of doubtful worth and discreditable pursuit, and neglecting objects of immense value, because in addition to their own importance, they have one recom- mendation which would make their viler possessions desirable that they can be easily obtained, and honestly as well as safely enjoyed! It is this miserable, shifting, doubtful, hateful traffic that we prefer, to the sure, regular, increasing, honest gains of American commerce; to a trade which is placed beyond the enemy's reach which besides encircling ourselves in peace and honour, only benefits those who are our natural friends, over whom he has no control, but who if they were ever so hostile to us, could not annoy us which supports at once all that remains of liberty beyond the seas, and gives life and vigour to its main pillar within the realm, the manufactures and com- merce of England! And now, sir, look to the other side of this picture. See to what sources of supply you are driving the Americans, when you refuse them your own markets Why, you are forcing them to be wholly dependent on themselves! The eighteenth century closed with a course of violence and folly, which in spite of every natural tie, dis- solved their political connection with the crown; and, as if the cup of our infatuation was not full, we must begin the nineteenth with the phrenzy of severing them from all connection, and making them, con- trary to the course of nature itself, independent of our manufacturers and merchants! I will not go through the evidence upon this impor- tant branch of the case, for I feel myself already too much exhausted to attempt it; but whoever reads it will find it uniformly in every page showing the effects of our system, in forcing manufactures all over America to rival our own. There is not one branch of thfc many in which we used quietly, and without the least fear of competition to supply them, that is not now to a certain degree cultivated by themselves; many have wholly taken rise since ISO? all have rapidly sprung up to a formidable maturity. To give but a few examples. In New York there are now forty thousand looms going glass is made in a way that we ourselves witnessed, for we saw (lie specimen produced wool cards are now made there which used regularly to be imported from hence and there is a considerable exportation of cotton twist to the South of Europe, from the country which possesses the most abundantly the raw material. I say nothing of their wool, and the excellent Merino breed they have obtained from Spain. Look 248 ORDERS IN COUNCIL. only to one striking fact Pittsburgh is a town remotely situated in the most western part of the Union. Eighteen years ago it was a hamlet, so feeble and insecure that the inhabitants could scarcely defend themselves from their Indian neighbours, and durst hardly quit the place for fear of being scalped. Now there are steam engines and a large glass work in the same town, and you saw the product of its furnaces. It stands on a stratum of coal fifteen feet thick, and within a few inches of the surface, which extends overall the country west of the Alleghany chain. Coal there sells for .six shillings the chaldron, and the same precious mineral is to be found in the Atlantic States, at Richmond, and elsewhere, accessible by sea. It is usual to see men on 'Change in the large towns with twenty, thirty, and fifty thousand pounds in trade Companies are established for manufac- tures, insurance, and other mercantile speculations, with large capitals, one as high as 120,000/. sterling The rate of interest is six per cent., and the price of land in some places as high as in England. I do not enumerate these things to prove that America can already supply herself God forbid! If she could, the whole mischief would be done, and we could not now avert the blow; but though too much has indeed been effected by our impolicy, a breathing time yet is left, and we ought at least to take advantage of it, and regain what has been thrown away in four or five years' time it will be gone for ever. But I shall here be told, as I often have been, that these counsels sprang from fear, and that I am endeavouring to instil a dread of Ame- rican manufactures, as the ground of our measures Not so, sir I am inculcating another fear the wholesome fear of utter impolicy mixed with injustice of acting unfairly to others for the purpose of ruining yourselves. And after all, from what quarter does this taunt proceed? Who are they by whom I am upbraided for preaching up a dread of rival American manufactures? The very men whose whole defence of the system is founded upon a fear of competition from European manu- factures who refuse to abandon the blockade of France, from an apprehension (most ridiculous as the evidence shows) of European manufactures rivalling us through American commerce who blockade the Continent from a dread that the manufactures of France, by means of the shipping of America, will undersell our own the men whose whole principle is a fear of the capital, industry and skill of England being outdone by the trumpery wares of France, as soon as her market is equally open to both countries! Sir, little as I may think such alarms worthy of an Englishman, there is a kind of fear which I would fain urge a fear too of France; but it is of her arms and not of her arts. We have in that quarter some ground for apprehen- sion, and I would have our policy directed solely with a view to removing it. Look only at the Spanish war in its relation to the American trade. In that cause we have deeply embarked we have gone on for years, pouring into it our treasures and our troops, almost without limit, and all the profit is yet to come. We have still to gain the object of so many sacrifices, and to do something which may show COMMERCE AND MANUFACTURES. 249 they have not been made in vain. Some great effort it seems resolved to make, and though of its result others tire far more sanguine than I am able to feel, I can have litile hesitation in thinking, that we had better risk some such attempt once for all, and either gain the end in view, or, convinced that it is unattainable, retire from the contest. If then this is our policy, for God's sake let the grand effort be made, single and undivided undistracted by a new quarrel, foreign to the purpose, and fatally interfering with its fulfilment. Let us not for the hundredth time commit the ancient error which has so often betrayed us, of frittering down our strength of scattering our forces in nume- rous and unavailing plans. We have no longer the same excuse for this folly which we once had to urge. All the colonies in the world are our own sugar Islands and spice Islands there are none from Marlinico to Java, to conquer we have every species of unsaleable produce in the gross, and all noxious climates without stint. Then let ns not add a new leaf to the worst chapter of our book, and make for ourselves new occasions, when we can find none, for persisting in the most childish of all systems. While engaged heartily on our front in opposing France, and trying the last chance of saving Europe, let us not secure to ourselves a new enemy, America, on our flank. Surely language wants a name for the folly which would, at a moment like the present, on the eve of this grand and decisive and last battle, reduce us to the necessity of feeding Canada with troops from Por- tugal and Portugal with bread from England. I know I shall be asked, whether I would recommend any sacrifice for the mere purpose of conciliating America. I recommend no sacri- fice of honour for that or for any purpose; but I will tell you, that I think we can well and safely for our honour afford to conciliate Ame- rica. Never did we stand so high since we were a nation, in point of military character. We have it in abundance, and even to spare. This unhappy and seemingly interminable war, lavish as it has been in treasure, still more profuse of blood, and barren of real advantage, has at least been equally lavish of glory; its feats have not merely sustained the warlike fame of the nation, which would have been much; they have done what seemed scarcely possible; they have greatly exalted it; they have covered our arms with immortal renown. Then I say use this glory use this proud height on which we now stand, for the purpose of peace and conciliation with America. Let this and its incalculable benefits be the advantage which we reap from the war in Europe; for the fame of that war enables us safely to take it. And who, I demand, give the most disgraceful councils they who tell you we are in military character but of yesterday we have yet a name to win we stand on doubtful ground we dare not do as we list for fear of being thought afraid we cannot without loss of name stoop to pacify our American kinsmen! Or I, who say we are a great, a proud, a warlike people we have fought everywhere, and conquered wherever we fought our character is eternally fixed it stands too firm to be shaken and on the faith of it we may do towards America, safely for our honour, that which we know our 250 ORDERS IN COUNCIL. interests require! This perpetual jealousy of America! Good God! I cannot with temper ask on what it rests! It drives me to a passion to think of it Jealousy of America! I should as soon think of being jealous of the tradesmen who supply me with necessaries, or the clients who entrust their suits to my patronage. Jealousy of America! whose armies are yet at the plough, or making, since your policy has wielded it so, awkward (though improving) attempts at the loom whose assembled navies could not lay siege to an English sloop of war: Jealousy of a power which is necessarily peaceful as well as weak, but which, if it had all the ambition of France and her armies to back it, and all the navy of England to boot, nay, had it the lust of conquest which marks your enemy, and your own armies as well as navy to gratify it is placed at so vast a distance as to be perfectly harmless! And this is the nation of which for our honour's sake we are desired to cherish a perpetual jealousy, for the ruin of our best interests! I trust, sir, that no such phantom of the brain will scare us from the path of our duty. The advice which I tender is not the same which has at all times been offered to this country. There is one memorable era in our history, when other uses were made of our triumphs from those which I recommend. By the treaty of Utrecht, which the execrations of ages have left inadequately censured, we were content to obtain as the whole price of Ramillies and Blenheim, an additional share of the accursed slave trade. I give you other counsels. I would have you employ the glory which you have won at Talavera and Cornnna, in restoring your commerce to its lawful, open, honest course; and rescue it from the mean and hateful chan- nels in which it has lately been confined. And if any thoughtless boaster in America or elsewhere should vaunt that you had yielded through fear, I would not bid him wait until some new achievement of our arms put him to silence, but I would counsel you in silence to disregard him. Sir, I move you "That an humble address be presented to his Royal Highness the Prince Regent, representing to his Royal High- ness that this House has, for some time past, been engaged in an inquiry into the present depressed state of the manufactures and com- merce of the country, and the effects of the Orders in Council issued by his Majesty in the years 1807 and 1S09; assuring his Hoyal High- ness, that this House will at all times support his Royal Highness to the utmost of its power, in maintaining those just maritime rights which have essentially contributed to the prosperity and honour of the realm but beseeching his Royal Highness, that he would be gra- ciously pleased to recall or suspend the said orders, and to adopt such measures as may tend to conciliate neutral powers, without sacrificing the rights and dignity of his Majesty's crown." SPEECH AT THE LIVERPOOL ELECTION 1812. INTRODUCTION. MR. ROSCOE. MR. C REE VET. IN cor-equence of Mr. Brougham's connection, both in 1808 and 1812, with the commercial interests of Liverpool, especially those persons engaged in the American trade, he was invited to attend a public dinner after the termination of the Northern Circuit, in August 1812. Mr. Roscoe presided, and the Lord Lieutenant, the late Lord Derby, as well as the present Earl, then Lord Stanley, with Lord Sefton, and many others of the Lancashire country gentlemen who favoured liberal princi- ples, attended. Dr. Shepherd, the able, learned, and enlightened friend of every cause connected with the interests of civil and religious liberty, also honoured the meeting with his presence. A requisition was soon after sent inviting Mr. Broug- ham to stand as candidate for the borough at the approaching general election, and it was immediately manifest that one of the present members, General Tarleton, had no chance of success, should Mr. Brougham accept the invitation, which he im- mediately did. But a further resolution was taken, which has been, in consequence of the event- ual failure, the subject of much animadversion upon the Whig leaders of Liverpool. Not satisfied with returning one member, they brought forward a second in the person of their fellow-townsman, Mr. Creevoy, then member for Thetford, for which place he was again returned during the Liverpool election. The first effect of this proceeding was to cofirm the Tory parly in the intention which they had already been discussing among themselves, that of bringing forward Mr. Canning, together with General Gascoigne, who stood upon the old corporation interest. Mr. Canning accepted the invitation of the great and spirited body of Tory mer- chants not immediately connected with that municipal body, and there were thus four candidates in the field standing upon four several interests General Gas- coigne, upon that of ilio Corporation Mr. Canning upon the Tory Independent int< rest Mr. IJrougharn and Mr. Creevey, upon the Whig interest and General Tarlelon, upon such support as might remain to him among his former adherents. Those who were acquainted with Liverpool well knew that the Whig interest, at least in later times, had never returned even a, single member but once, when Mr. lioscoe was chosen with General Gascoigm: in 180G, the. Grcnville ministry being then in power; for though General Tarleton was commonly ranked as one of Mr. Fox's friends, he yet owed his seat as much to Tory support as to Whig, 252 INTRODUCTION. being chosen from local and personal connection with the place. No one, there- fore at all acquainted with Liverpool politics, and whose judgment was left calm and unbiassed by the passing events, especially the late victory against the Orders in Council, had any very sanguine expectation that the Whig interest could defeat entirely all the Tory power, the Corporation interest, and the government influence; and the total defeat of the opposition party seemed inevitable, unless one of their candidates should be withdrawn. Mr. Roscoe was the principal advocate of the measure now under consideration and certainly there was no man whose opinion better deserved to be consulted, whose wishes had more claims to compliance, or whose errors, if such they were, had a greater right to indulgence. He was in some respects one of the most re- markable persons that have of late years appeared in either the political or the literary world. Born in the most humble station, for his parents were menial ser- vants in the fine country mansion which afterwards was his own, he had risen to the highest rank in a laborious and useful profession, having become one of the most eminent of the Lancashire Solicitors a class of practitioners distinguished among those of the kingdom at large by great knowledge of their profession, and admirable skill in the conduct of their clients' affairs. Struggling with all the disadvantages of narrow circumstances, and of an education necessarily restrict- ed, he had not only accomplished himself in the legal walks of his profession, but educated himself in more classical studies, so as to have become a great pro- ficient in pursuits seldom if ever before combined with the practice of an attorney. His taste was cultivated and refined by familiarity with Roman literature, and his mind was still farther enriched by a thorough acquaintance with the monuments of Italian genius. He devoted himself, notwithstanding the constant interruption of liis business, to the study of all modern, as well as of Latin poetry, and with the rare exception of Mr. Mathias, it may be affirmed, that no one on this side the Alps, has ever been more intimately acquainted with the writers, especially the poets, of modern Italy. The natural elegance of his mind, connected in a great measure with his honest simplicity of character, and the unruffled gentleness of his bland and kindly temper, was soon displayed in some poetical productions, among which his celebrated song on the early progress of the French Revolution, acquired the greatest reputation. But he united with the exercise of this talent a love of historical research, and an exercise of critical power, which combined with his poetical resources and his knowledge of languages, to form in him the most accomplished cultivator of literary history that ever appeared in any age. For although Muratori first, and afterwards Tirabosohi, in Italy, some others in France, and many in Germany, have left monuments of greater research have thoroughly traced the progress of letters in various ways have compiled their annals with that industry which can hardly be said to have survived them and have bequeathed to after ages rich mines wherein to quarry, rather than galleries of finished works to gaze at we shall in vain search their numerous volumes for that grace and ease, that mixture of history and anecdote, that interspersion of philosophy with narrative, that com- bination of sagacity in commenting upon characters and events with taste in de- scribing and in judging the productions of the fine arts, which lend such a charm to the Lives of Lorenzo de Medici and Leo X; while their interest is still further heightened by the rich vein of the most felicitous poetical translation which runs through the whole of these admirable works, and leaves the less learned reader hardly a right to lament, because it scarcely lets him feel, his ignorance of the original tongues. The sensation caused by the life of the great Prince-Merchant of Tuscany suddenly appearing to enlighten the literary hemisphere, is still remembered by many. It seemed as if a new pleasure had been invented, a new sense discovered. Criticism was dumb; men had only time to be pleased and to be f ratified; and at a period whon the dignity of the Senate, even of its Lower Cham- er, never allowed any allusion to the contemporary productions of the press, a Peer who had twice been minister and was still a great party chief,* begged their lordships to devote as much time as they might be able to spare from Lorenzo de * Marquis of Lansdownc, father of the present Lord. LIVERPOOL ELECTION. 253 Medici, to (he study of an important state affair. I3y those works Mr. Roseoe not only laid deep and solid the foundations of an enduring fame for himself, but founded also a school, in which Dr. Shepherd, author of the life of Poggio Brac- ciolini, and others have since distinguished themselves, and enriched the republic of letters. Although it is by the productions of his pen that Mr. Roscoe's name has been made famous throughout Europe, yet were his merits and his claims to the grati- tude of mankind of a more various kind. An ardent devotion, from pure principle, to the best interests of humanity, was the unvarying and the constant guide of his public conduct, as the most strict discharge of every duty marked each step of his walk in private life. A solicitor in extensive practice, he was the advocate of all sound law reform. An attorney in the Borough Courts, he was the stern uncom- v promising enemy of chicanery, the fearless defender of the oppressed. A man of business vmder a wealthy and powerful corporation, he was ever the implacable de- nouncer of jobs and abuses. A confidential adviser among the aristocracy of the most Tory county in England, he was the most uncompromising enemy of tyranny, the friend of the people, the apostle of even democratic opinions. A leader among the parties who most gained by the war, he was throughout its whole course the zealous preacher of peace; and standing high among the traders of Liverpool, and at the head of its society, he was tho unflinching enemy of the African Slave Trade, the enthusiastic advocate of its abolition. When ho rose in fame, and throve in wealth when he became one of the great bankers of the place, and was courted by all the leading men in its society when his fame was spread over the world, and his native town became known in many remote places, as having given him birth, when he was chosen to represent her in Parliament, and associated with the first statesmen of the age this truly excellent person's unaffected modesty, his primi- tive, simplicity of manners, never deserted him. As his rise in life had been rapid and easy, he bore his good fortune with an equal mind; and when the commercial distresses of the country involved his affairs in ruin, the clouds which overcast the evening of his days disturbed not the serenity of his mind; the firmness which could maintain itself against the gales of prosperity, found the storms of adverse fortune, though more boisterous, much louder in their noise, yet not at all deceitful, and really less rude in their shock. His latter years were passed in his much loved literary leisure consoled by the kindness of his friends happy in the bosom of his amiable family universally respected by his countrymen by all the wise admired beloved by all the good. Mr. Hoscoe had satisfied his own mind that if Liverpool only sent one Whig with one Tory member to Parliament, the votes of the two neutralizing each other, she would be unrepresented a fallacy plausible enough when thus stated, but easily exposed, by reflecting that if each constituency had been so represented, the Tory government must be at once overthrown. His councils, however, assisted by the great victory recently obtained in Parliament, and with which this contest w*is intimately connected, prevailed with the party. Mr. Creevey was brought into tho field, and the contest proceeded with a violence until then unprecedented. Of Mr. Canning, the champion of the Tory party, it is unnecessary here to speak. His great talents, his extensive accomplishments the happy events which con- nected him with the liberal parly, first upon the question of religious toleration, then upon foreign policy the accident of his becoming the instrument by which mainly the old Tory party in this county was broken up are all fresh in any rea- der's recollection. His connection with Liverpool was not without its influence, both upon the course of those great events, and upon his political character. It took its latter shade very much from the contact with the people into which he was for the first time in his life brought at Liverpool; and if the disposition to take popular courses which he then acquired, tended to alienate from him the confidence of the court party, who not only deserted, but ill-used and persecuted him during his latter years, it i.s equally certain that from this source we may trace much of the goo. I which has in late times been accomplished for the cause of the people and of liberal policy. Hut of Mr. Creevey, it is fit that something should here be said, as upon his share in the contest of 1812, although assuredly not from any the least desire on VOL. I. 22 254 INTRODUCTION. his own part to mix in it, the issue of the election finally turned. "When a second candidate was resolved upon, there could be no doubt where to look for him. Mr. Creevey was a native of Liverpool, well known to the chief men of the place, on very intimate habits with many of them, with their leader Mr. Roscoe, especially, and recommended to the people by a long and consistent course of the most steady disinterested attachment to the principles of the liberal party. For he had been ten years in parliament, during which time he had, at great personal sacrifices, devoted himself to the strenuous assertion of popular rights, the exposure of all abuses in the management of affairs, the promotion of retrenchment and economy in all departments of the public service, the restoration of peace, and the further- ance of constitutional principles after the Whig or Foxite model. His opinions coincided with those of the Whig aristocracy on questions of Parliamentary Reform, being friendly to that policy, but not carrying it to any great length, and regarding many abuses in the elective system, such as the bribery and expenses of elections where there are two or three hundred voters, as far worse in themselves, and much more pernicious in their consequences, both to the character of the voters and to the structure of the Parliament, than those flaws of rotten and nomination boroughs, which look far worse, and on all abstract principle, are much more difficult to defend. But on other matters he had many wide differences with the regular leaders of his party. He despised the timidity which so often paralyzed their movements; he disliked the jealousies, the personal predilections and preju- dices which so frequently distracted their councils; he abhorred the spirit of in- trigue, which not rarely gave some inferior man, or some busy meddling woman, probably unprincipled, a sway in the destiny of the party, fatal to its success, and all but fatal to its character; he held in utter ridicule the squeamhhness both as to persons and things, which emasculated so many of the genuine, regular "Whigs; and no considerations of interest no relations of friendship no regard for party discipline (albeit in other respects a decided and professed party man, and one thoroughly sensible of the value of party concert) could prevail with him to pursue that course so ruinous to the Whig opposition, of half-and-half resistance to the government; marching to the attack with one eye turned to the court, and one askance to the country, nor ever making war upon the Ministry without regarding the time when themselves might occupy the position, now the object of assault. This manly, straightforward view of things not unaccompanied with expressions, both as to men and measures, in which truth and strength seemed more studied than courtesy, gave no little offence to the patrician leaders of the party, who never could learn the difference between 1810 and 1780 still fancied they lived " in times before the flood" of the French Revolution, when the heads of a few great families could dispose of all matters according to their own good pleasure and never could be made to understand how a feeble motion, prefaced by a feeble speech, if made by an elderly lord, and seconded by a younger one, could fail to satisfy the country and shake the Ministry. But Mr. Creevey, and those who thought with him, such as Lord Folkestone (now Radnor) and General Ferguson, did not con- fine their dissidence to criticism, complaint, remonstrance. Their conduct kept pace with their language, and was framed upon the sentiments to which we have refer- red. Carefully avoiding any course that might give a victory to the common enemy, or retard the progress of their principles, they nevertheless often took a line of their own, bringing forward motions which were deemed too strong, as well as expressing opinions supposed to be too vehement, and opposing a resist- ance to many errors and abuses of the government which the more aristocratic portion of the Whig party were inclined either feebly to impugn or altogether to pass over. On all that regarded the economy of the public money, still more on every instance of abuse, most of all on official corruption or delinquency of any kind, they were inexorable; nor did any sort of questions tend more to sow dissen- sion between them and the party at large, than questions of this description which involved considerations of economy and abuse, and of necessity led to personal charges often against men in high rank and station. The inquiries respecting the Duke of York, and those cognate questions respecting public cor- ruption, which grew out of that famous passage, first banded together this party, LIVERPOOL ELECTION. 255 jocularly termed " The Mountain," and drc\v a line of demarcation between them and the more regular portion of the Whigs. \or were the marks of this separation ever well effaced until the enjoyment of office for several years had reconciled men's minds to thi-ir lot, and smoothed, without wholly planing down, the asperities of the line denoted by the junction of the two parts whereof the party was composed. Mr. Creevcy was a man of strong natural sense, without much cultivation, though extremely well-informed up.iii all political subjects. His judgment being so much more remarkable than his imagination, he was apt to hold everything in contempt which betokened either fancy or refinement. Preferring the shortest and the plainest road to his point, either looking down upon the ornamental parts of eloquence with contempt, or seeing them from a distance which he never aspired to pass, his style of speaking was that of a plain, reasoning, sensible person, who never left statements of facts and of reason, except to deal in somewhat fluent if not coarse invective. Even his invective consisted more in stating plain f.icts of an unpleasant nature, than in mere vituperative declamation. His taste, with all this contempt for refinement and delicacy, was perfectly correct; perhaps too severe and unbending; certainly defective in classing the flights of oratory, however sus- tained, with the less chaste productions of the rhetorician. Frequently in public, always in private society, his distinguishing excellence was a broad, inimitable, most successful humour; for he had a quick sense of the ridiculous in character, and a lively relish of the ludicrous, nor was he slow to indulge in the gratification of it. Mob oratory was never in much estimation with him; yet he was sure to suc- ceed in it when lie tried, as at the Liverpool election where his description of the meaning of the Previous Question was much noted; and conveys an idea of his manner. " You often hear when any of our irregular partisans having framed a motion against some public defaulter, that it is said to have been got rid by the Previous Question. Now you may just as well know what this means. It is that the whole House says, 'All these things are very true, and we have no answer to make, and therefore the less that's said about the matter the better.' " He had some defects of temper which made him an undervaluer of all who differed from him in opinion, and a somewhat fierce enemy. He took more pleasure in censure than in praise, and was not very patient of the candour towards adversaries iu others, which he so much wanted himself. But if he was a prejudiced antago- nist and a strong hater, he was also a warm supporter and a steady friend, nor grudged any trouble, nor shrunk from any hazard in defence of those to whom ho was attached. lie is said to have left a minute Journal of political as well as personal occurrences, which he kept for above thirty years of his life; and although it will require to be read with large allowances for the force of his personal preju- dices, it is likely to contain more interesting materials for secret, and indeed for general history, than any collection of the kind which has ever appeared in this country. After the election had gone on for some days, the Tories who supported Mr. Canning, made a direct proposition for a junction with Mr. Brougham's party, on the footing of the former giving up General Gaseoigne, and the latter withdraw- ing Mr. Crecvey. But this proposal was rejected, neither Mr. Brougham nor Mr. Crecvey giving any opinion upon the subject, nor expressing any wish; except that the latter desired to be put wholly out of the question, the more especially as his se.it was already secured by his being returned for Thetford. The proposition was rejected, and the election was lost; General Gascoigne being then supported by Mr. Canning's friends, and returned along with him. Mr. Brougham was in consequence lliruwn out of parliament, anil no seat could bo found for him among all the \\ big boroughs, until, al'ter an exclusion of three sessions, he was, by Lord I);ir]iii!_ r ton's (Duke of Cleveland's) interest, at the request of his steady and fitlil'ul friend, Lord Grey, returned for \\incliolsea, which lie represented un- til Ih.'iO, when he was returned first for Knaresborougli upon the Duke of Devon- shire's interest, and then for Yorkshire upon his own. The following speech was addressed to the. people at Liverpool on the close of the poll, on tbt; evening of the fourth day being a very critical moment ol the contest, and the night before the proposal above referred to came lioiu the other party. S P E E C H AT THE LIVERPOOL ELECTION FRIDAY, OCT. 8, 1812. GENTLEMEN I feel it necessary after the fatigues of this long and anxious day, to entreat, as I did on a former occasion, that you would have the goodness to favor me with as silent a hearing as possible, that I may not by over-exertion in my present exhausted state, de- stroy that voice which I hope I may preserve to raise in your defence once more hereafter. Gentlemen, I told you last night when we were near the head of the poll, that I, for one at least, would never lose heart in the conflict, or lower my courage in fighting your battles, or despair of the good cause although we should be fifty, a hundred, or even two hundred behind our enemies. It has happened this day, that we have fallen short of them, not quite by two hundred, but we have lost one hun- dred and seventy votes: I tell you this with the deepest concern, with feelings of pain and sorrow which I dare not trust myself in attempt- ing to express. But I tell it you without any sensation approaching to despondency. This is the only feeling which I have not now pre- sent in my breast. I am overcome with your unutterable affection towards me and my cause. I feel a \vonder mingled with gratitude, which no language can even attempt to describe, at your faithful, unwearied, untarneable exertions in behalf of our common object. I am penetrated with an anxiety for its success, if possible, more lively than any of yourselves can know, who are my followers in this mighty struggle an anxiety cruelly increased by that which as yet you are ignorant of, though you are this night to hear it. To my distinguished friends who surround me, and connect me more closely with you, I am thankful beyond all expression. I am lost in admi- ration of the honest and courageous men amongst you who have resisted all threats as well as bribes, and persevered in giving me their free mibonght voices. For those unhappy persons who have been scared by imminent fear on their own and their children's be- half from obeying the impulse of their conscience, I feel nothing of LIVERPOOL ELECTION. 257 resentment nothing but pity and compassion. Of those who hatfe thus opposed us, I think as charitably as a man can think in such circumstances. For this great town, (if it is indeed to be defeated in the contest, which I will not venture to suppose) for the country at large whose cause we are upholding whose fight we are fighting for the whole manufacturing and trading interests for all who love peace all who have no profit in war I feel moved by the deepest alarm lest our grand attempt may not prosper. All these feelings are in my heart at this moment they are various they are conflicting they are painful they are burthensome but they are not over- whelming! and amongst them all, and I have swept round the whole range of which the human mind is susceptible there is not one that bears the slightest resemblance to despair. I trust myself once more into your faithful hands 1 fling myself again on you for protection I call aloud to you to bear your own cause in your hearts I im- plore of you to come forth in your own defence for the sake of this vast town and its people for the salvation of the middle and lower orders for the whole industrious part of the whole country I en- treat you by your love of peace by your hatred of oppression by your weariness of burthensome and useless taxation by yet another appeal to which those must lend an ear who have been deaf to all the rest I ask it for your families for your infants if you would avoid such a winter of horrors as the last ! It is coming fast upon us already it is near at hand yet a few short weeks and we may be in the midst of those unspeakable miseries, the recollection of which now rends your very souls. If there is one freeman amongst this immense multitude who has not tendered his voice and if he can be deaf to this appeal if he can suffer the threats of our antagonists to frighten him away from the recollections of the last dismal winter that man will not vote for me. But if I have the happiness of addressing one honest man amongst you, who has a care left for his wife and chil- dren, or for other endearing ties of domestic tenderness, (and which of us is altogether without them?) that man will lay his hand on his heart when I now bid him do so and with those little threats of present spite ringing in his ear, he will rather consult his fears of greater evil by listening to the dictates of his heart, when he casts a look towards the dreadful season through which he lately passed and will come bravely forward to place those men in parliament whose whole efforts have been directed towards the restoration of peace, and the revival of trade. / Do not, gentlemen, listen to those who tell you the cause of freedom is desperate; they arc the enemies of that cause and of you but listen to me for you know me and I am one who has never yet deceived you I say, then, that // icill he desperate if you make no exertions to retrieve it. I tell you that your languor alone can betray it that it can only be made desperate through your despair. I am not a man to be cast down by temporary reverses, let them come upon me as thick, and as swift, and as sudden as they may. I am not he who is daunted by majorities in the outset of a struggle for 22* 258 LIVERPOOL ELECTION. worthy objects else I should not now stand here before you to boast of triumphs won in your cause. If your champions had yielded to the force of numbers of gold of power if defeat could have dis- mayed them then would the African Slave Trade never have been abolished then would the cause of reform, which now bids fair to prevail over its enemies, have been long ago sunk amidst the deser- tions of its friends then would those prospects of peace have been utterly benighted, which I still devoutly cherish, and which even now brighten in our eyes then would the orders in council which I over- threw by your support, have remained a disgrace to the British name, and an eternal obstacle to our best interests. I no more despond now than I have done in the course of those sacred and glorious conten- tions but it is for yoi^to say whether to-morrow shall not make it my duty to despair. ^To-morrow is your last day your last efforts must then be made; if you put forth your strength the day is your own if you desert me, it is lost. To win it I shall be the first to lead you on, and the last to forsake you. Gentlemen, when I told you a little while ago, that there were new and powerful reasons to-day for ardently desiring that our cause might succeed, I did not sport with you yourselves shall now judge of them. I ask you Is the trade with America of any importance to this great and thickly peopled town? (cries of Yes! yes!) Is a con- tinuance of the rupture with America likely to destroy that trade? (loud cries of, It is! it is!) Is there any man who would deeply feel it, if he heard that the rupture was at length converted into open war? Is there a man present who would not be somewhat alarmed if he supposed that we should have another year without the Ame- rican trade? Is there any one of nerves so hardy, as calmly to hear that our government have given up all negotiation abandoned all hopes of speedy peace witli America? Then I tell that man to brace up his nerves I bid you all be prepared to hear what touches you all equally. We are by this day's intelligence at war with America in good earnest our government have at length issued letters of rnarque and reprisal against the United States! (universal cries of, God help us! God help us!} Aye, God help us! God of his infinite compassion take pity on us! God help and protect this poor town and this whole trading country! Now, I ask you whether you will be represented in Parliament by the men who have brought this grievous calamity on your heads, or by those who have constantly opposed the mad career which was plunging us into it? Whether will you trust the revival of your trade the restoration of your livelihood to them who have destroyed it, or to me whose counsels, if followed in time, would have averted this unnatural war, and left Liverpool flourishing in opulence and peace? Make your choice for it lies with yourselves which of us shall be commissioned to bring back commerce and plenty they whose stub- born infatuation has chased these blessings away or we, who are only known to you as the strenuous enemies of their miserable policy, the last friends of your best interests. LIVERPOOL ELECTION'. 259 Gentlemen, I stand up in this contest against the friends and follow- ers of Mr. Pitt, or, as they partially designate him, the immortal states- man now no more. Immortal in the miseries of his devoted conn- try! Immortal in the wounds of her bleeding liberties! Immortal in the cruel wars which sprang from his cold miscalculating ambition! Immortal in the intolerable taxes, the countless loads of debt which these wars have Hung upon us which the youngest man amongst us will not live to see the end of! Immortal in the triumphs of our ene- mies, and the ruin of our allies, the costly purchase of so much blood and treasure! Immortal in the afflictions of England, and the humilia- tion of her friends, through the whole results of his twenty years' reign, from the first rays of favour with which a delighted court gilded his early apostacy, to the deadly glare which is at this instant cast upon his name by the burning metropolis of our last ally!* But may no such immortality ever foil to my lot let me rather live innocent and inglo- rious; and when at last I cease to serve you, and to feel for your wrongs, may I have an humble monument in some nameless stone, to tell that beneath it there rests from his labours in your service, "an enemy of the immortal statesman a friend of peace and of the people." Friends! you must now judge for yourselves, and act accordingly. Against us and against you stand those who call themselves the suc- cessors of that man. They are the heirs of his policy; and if not of his immortality too, it is only because their talents for the work of de- struction are less transcendent than his. They are his surviving col- leagues. His fury survives in them, if not his fire, and they partake of all his infatuated principles, if they have lost the genius that first made those principles triumphant. If you choose them for your dele- gates, you know to what policy you lend your sanction what men you exalt to power. Should you prefer me, your choice falls upon one who, if obscure and unambitious, will at least give his own age no reason to fear him, or posterity to curse him one whose proudest ambition it is to be deemed the friend of Liberty and of Peace. * The news of the burning of Moscow had arrived by that day's post. SPEECHES ox AGRICULTURAL AND MANUFACTURING DISTRESS, DELIVERED IN THE HOUSE OF COMMONS, 1816, 1817. INTRODUCTION. DISTRESSES OF THE COUNTRY IN 1S1G METHOD OF SUCCESSFULLY SUPPORTING THE PEOPLE IN PARLIAMENT. THE return of peace did not bring back prosperity to any portion of the inhabi- tants of this country. Whether it was that a war of twenty-throe years duration had carried all the functions of the body politic to an unnatural state, only to be maintained by the stimulants which war supplies, in place of more wholesome sup- port; or that the drains of the heavy expenditure, created by the hostilities carried on all over the globe, had exhausted our resources; or that the mere transition from one state to another, operated on the political system, giving it the sudden shock that a sudden relief from pain or from want would communicate to the natural frame; certain it is, that there had never during the whole contest just closed, been more general embarrassment felt, than was suffered, first by the agricultural interest in 1810, and then by the manufacturing classes the year after. The relief obtained from the burden of eighteen millions, by the repeal of the, income tax and war malt duties in Isltj, however important, appeared to make but little impression upon the mass of distress; and men were heard in all directions regretting the change from war to peace, farmers wishing Napoleon back again, and merchants sighing for the times when no ships but our own could keep the sea. The country, there- fore, had recourse to the Parliament, and approached both houses, but especially that of their representatives, with numerous petitions sitting forth, in moving terms, the calamities that had befallen all the industrious classes, and praying F<T some measures which might tend to their relief. These petitions wete less numerous iu Hit'., because the meetings upon the income tax then engrossed the attention of the people; and its repeal was expected to relieve the distresses of the farmers. Hut in the following session, when the distress extended to the manufacturing classes, the petitions increased in number, and were directed in some instances by fallacious views, tu extremely injudicious measures, the must numerously 262 INTRODUCTION. signed of them all having for its prayer the prohibition of exporting cotton twist, upon the notion that this encouraged foreign manufactures at the expense of our own. The course of petitioning had come of late years into great favour with the country, and it seems important to explain in what way this opinion arose. In the long inquiry which occupied the House in 1812, respecting the orders in council, the efforts of the petitions against that policy had been attended with the most complete success. Although opposed by the whole weight of the govern- ment both in public and out of doors; although at first vigorously resisted by the energy, the acuteness, the activity and the expertness, which made Mr. Perceval one of the best debaters of his day; although after his death the struggle was maintained by the father of the system with all his fire and with his full know- ledge of the whole subject nay, although the Ministry brought to bear upon the question, what is reckoned the most formidable engine that any government can set in motion against its adversaries in any single measure, the announcement that their official existence depended upon the result yet had the country gained a signal and complete victory, and the favourite policy of the cabinet had been at once and entirely surrendered to the pressing instance of the petitioners. When men came to consider how this battle had been gained, no doubt could remain in their minds as to the causes of success. It appeared clear that, as far as any thing was to be expected from the direct expression of the people's voice through their regular organs in Parliament, nothing could well be more desperate than the prospect of the petitioners. But indirectly, the country could make its voice heard and its influence felt. It was roused extensively to the consideration of the question. Meetings were generally held, and many petitions came from them, while others proceeded from persons who signed them, without otherwise bearing a part in any public debates. The plan was now adopted by Mr. Brougham and Mr. Baring of promoting discussion on all fair occasions connected with the sub- ject. The interlocutory debates arising from questions raised by the examination of the witnesses, provided many such opportunities. Motions for the production of papers and accounts added to their number; and each petition that came up from the country was made studiously, but very naturally, the subject of a con- versation which often swelled into a long debate. The effects of this series of discussions, lasting for six or seven weeks, were prodigious. They strongly excited the country, and they communicated in their turn the influence of that excitement to the House itself. They brought the public feeling to bear directly upon the members who represented counties or towns, but they were not without their in- fluence upon those who had no constituents at all. They were besides of the most signal use in promoting the most thorough and sifting examination of every part of the subject bringing all statements of facts to the test of rigorous scrutiny trying by the criterion of free debate, liberated from the fetters of mere form, the soundness of every position, and conclusiveness of every reason and making it quite impossible for sophistry to seek shelter behind vague assertion, or imbecile and fallacious argument to escape exposure behind the convenient screen of those parliamentary rules which govern more regular debates. Hardly an hour passed without detecting some false statement or illogical argument: hardly a night passed without gaining some convert to the cause of truth; and real represen- tatives who could face their constituents, and borough members who had no dread of the county or of the society they lived in, provided their support of the vicious and unpopular system were confined to a single vote by which its fate should be decided once for all, would no longer venture to hold out, during all the skirmishes and other movements that prepared the way for the great engagement, and they dreaded still more the endless remonstrances by letter and by conference of deputa- tions, which they had to undergo while the matter hung in so lengthened a sus- pense, and the country was all the while exerting its activity to attain the common object. This battle, then, for the people, was fought by the joint efforts of themselves out of doors, and of their supporters in the House of Commons, and by the mutual action and reaction of the House and the people upon each other. It is a battle which may always be renewed; and is always of certain success on any ground naturally adapted to its movements; that is to say, wherever a great INTRODUCTION. 263 popular feeling can bo excited and maintained, and wherever there are persons of firmness and spirit to set themselves at the head of the people, regardless of the frowns and the threats of power. It is equally certain that such a fight never can be fought, with any chance of success, where the people are indifferent to tho subject, and where they have no leaders in Parliament adequate to the occasion. The session of 181 G offered an example yet more remarkable of the same tactics being attended with equally signal success. On the termination of tho war, the government were determined, instead of repealing the whole income tax, which the act enforcing it declared to be "for and during the continuance of the war and no longer," to retain one half of it, that is, to reduce it from ten to five per cent, and thus keep a revenue raised from this source of between seven and eight millions, instead of fifteen. As soon as this intention was announced, several meetings were held, and two or three petitions were presented. The ministers perceived the risk they ran, if the former policy should be pursued, of continued discussion for a length of time; and they saw the vast importance of dispatch. Accordingly, the Chancellor of the Exchequer* gave notice on the Tuesday for his motion on the Thursday immediately following. The opposition took the alarm, and Mr. Brougham declared on presenting a petition numerously signed from one of the London parishes, that if the hurry now indicated should be persevered in, he should avail himself of all the means of delay afforded by the forms of the House. Lord Folkestone,! one of the most strenuous, and in [those days one of the most active and powerful supporters of the popular cause, vigorously seconded this menace, in which he entirely joined. On the next day more petitions were flung in; more discussions took place, and the government postponed for a week the introduction of the bill. That week proved quite decisive; for so many meet- ings were held, and so many petitions sent up, that the Bill was put off from time to time, and did not finally make its appearance till the 17th of March. Above six weeks were almost entirely spent by the House of Commons in receiv- ing the numberless petitions poured in from all quarters against the tax. For it was speedily seen that the campaign of 1812 was renewed, and that the same leaders, Messrs. Brougham and Baring, had the management of the operations. At first the ministers pursued the course of obstinate silence. The Opposi- tion debated each petition in vain; every minister and ministerial member held his peace. No arguments, no facts, no sarcasms, no taunts, could rouse them; no expression of the feelings of the country, no reference to tho anxiety of particular constituencies, could draw a word from the Ministers and their supporters. At length it was perceived that their antagonists did not the less debate, and that con- sequently the scheme had failed in its purpose of stifling discussion. The only effect of it, then, was, that all the debating was on one side, and this both bccamo hurtful to the government in the House, and more hurtful still in the country. They were forced into discussion, therefore; and then began a scene of unexampled interest which lasted until the second reading of the bill. Each night at a littlo after four, commenced the series of debates which lasted until past midnight. These were of infinite variety. Arguments urged by different speakers; instances of oppression and hardships recounted; anecdotes of local suffering and personal inconvenience; accounts of the remarkable passages at different meetings; personal altercations interspersed with more general matter all filled up the measure of the night's hill of fare; and all were so blended and so variegated, that no one ever perceived any hour thus spent to pass tediously away. Those not immediately concerned. Peers, or persons belonging to neither House, flocked to the spectacle which each day presented. The interest, exciled out of doors kept pace with that of the spectators; and those who carried on these active; operations showed a. vigour and constancy if purpose, an unwearied readiness for the combat, which astonished while it animated all beholders. It is recounted of this remarkahlu struggle, that one niglit towards the latter end of tho period in question, when at a late hour, the House having been in debate from four o'clock, one speaker had resumed his seat, the whole members Kitting upon one entire bench rose, at once and Mr. Vansittart. t Now Earl of Radnor. 264 INTRODUCTION. addressed the chair a testimony of unabated spirit and unquenchable animation which drew forth the loudest cheers from all sides of the House. At length came the 17th of March, the day appointed for the decision; but it was soon found that this had been, with the debate, wholly anticipated. The usual number of petitions, and even more, were poured thickly in during some hours; little or no debating took place upon them; unusual anxiety for the result of such long continued labour, and such lengthened excitement kept all silent and in sus- pense; when about eleven o'clock Sir William Curtis, representing the City of London, proceeded up the House bearing in his arms the petition, which he pre- sented without any remark, of the great meeting of the bankers and merchants holden in the Egyptian Hall, and signed by twelve thousand persons. The division took place after a debate that did not last half an hour; no one could indeed be heard in an assembly so impatient for the decision, and by a majority of thirty-seven voices, the tax was defeated for ever, and the wholesome principle, as Mr. Wilberforce well observed, was laid down, that war and income tax are wedded together. The same display which led to such important and even glorious success, the cause of the people, in an unreformed Parliament, is to the full as requisite now, and would produce, if possible, greater results. Neither slavery, nor limited suffrage, nor petty constituencies, nor refusal of the ballot would stand before it half a session. But unhappily it has seemed good to the Whig government that they should adopt a course of proceeding which renders all the tactics of 1812 and 1816 impracticable. Forgetting what it was that raised them to power, the remote cause of the Tory downfall, the policy which produced all the triumphs of liberal opinions; forgetting, too, that though now in office, they may to-morrow be restored to that opposition from which the triumphs of 1812 and 181G raised them they have resolved that no petition shall now be discussed that whoever presents it shall merely state its substance, after telling the body and the place it comes from and that no other member shall make it the subject of any obser- vation. To this plan for stifling the people's voice, and giving the ministers of the day and their majority in Parliament an absolute control over the policy of the empire, disarming the opposition of their main weapons, and shearing the people of their chief strength, the speaker, Mr. Abercromby, has unhappily lent the support of his authority, if he was not indeed the author of the scheme. It is of little mo- ment to reflect that but for the policy of former and better times, this distinguished and excellent person would now have been in the honourable but cheerless exile of an Edinburgh sinecure judgeship, as his ministeral coadjutors would have been doomed to exclusion from power on the benches of an eternal opposition. It is of more importance to remark, that unless a speedy end is put to the present course of proceeding, the mainstay of English liberty, the only effectual safeguard against misgovernment and oppression, is taken from the people of these realms. SPEECH ON THE DISTRESSED STATE OF AGRICULTURE, DELIVERED IN THE HOUSE OF COMMONS, APRIL 9, 1816. MR. BROGDEN: I feel very sensibly the disadvantages under which I rise to enter upon the discussion of tin's momentous subject; not only because I am in all respects so ill qualified to handle it successfully, but because a pretty general indisposition has been expressed by the House, to proceed in the inquiry this night. Nevertheless, as I was one of those who objected to delay, and as I stated rny readiness to go on with the debate, I am desirous of delivering my sentiments, such as they are, upon the present occasion, that I may lay before the Committee the ideas (whatever they may be worth) which I have gathered from an honest and patient attention to the subject matter of our investigation. There is one branch of the argument which I shall pass over alto- gether; I mean the amount of the distresses which are now univer- sally admitted to prevail over almost every part of the empire. Upon this topic all men are agreed; the statements connected with it are as unquestionable as they are afllicting; each day's experience since my honourable friend's motion* has added to their number and increased their force; and the petition from Cambridgeshire presented at an early part of this evening, has laid before you a fact, to which all the former expositions of distress afforded no parallel, that in one parish, every proprietor and tenant being ruined with a single exception, the whole poor rates of the parish thus wholly inhabited by paupers, are now paid by an individual, whose fortune, once ample, is thus swept entirely away. Of the nature and extent of the evil, then, it is quite super- fluous to speak; I purpose, with your permission, to apply myself to the examination of its causes, and to such a view of the remedies or palliatives proposed, as may naturally be suggested by a consideration Mr. (now Lord) Western. VOL. I. 23 266 AGRICULTURAL DISTRESS. of those causes. Without entering somewhat at large into the origin of our present difficulties, I am afraid we shall be apt to go astray in our search after the means of relief. A circumstance which must strike every observer who turns his attention toward this state of the country, is the comparative state of prices before and since the late war. In 1792, the average price of wheat was 47s. the quarter; now its price is 57s., almost 20 per cent, higher; and yet no complaint was ever heard of low prices before the war, nor were any of those signs of distress to be perceived, which in these times claim our pity in every part of the empire. This con- sideration is of itself sufficient to show, that over-trading that excess of cultivation is not the only cause of the evil we complain of; and may warn us against the error of imputing it to the operation of any one cause alone; for I am certainly disposed to rank the great extension of cultivation among the principal causes, or at least to regard it as lying near the foundation of the mischief. In attempting to unravel the difficulties of this question, I trust the Committee will believe me, when I say that I approach it, as I should the solution of a problem in the mathematics, without the smallest taint of party feeling, and with no other view whatsoever than a desire to discover the truth, upon a question of great and universal concernment. The first circumstance to which I would solicit the attention of the Committee, as lying at the root of the matter, is the progress of agri- culture during the long period of the last war I mean from the year 1792 downwards. The commencement of hostilities in 1793 produced the stagnation of trade and manufactures which usually accompanies a transition from peace to war; but these difficulties were of uncommon short duration, and the brilliant success of our arms at sea, the capture of some of the enemy's colonies, the revolt of others, and the crippled state of his mercantile resources at home, from internal confusion, speedily diminished his commerce in an extraordinary degree, aug- menting our own in nearly the same proportion. As his conquests or influence extended over other nations possessed of trade or colonial establishments, these in their turn became exposed to our maritime hostility, and lost their commerce and their plantations; so that in a very short time this country obtained a mercantile and colonial mo- nopoly altogether unprecedented, even in the most successful of her former wars. The consequence was, a sudden extension of our manu- facturing industry and wealth; and a proportionate improvement in our asriculture. But although this effect began to be perceivable soon after the first successes of the war. it was not fully produced until a few years had elapsed, and a number of circumstances, in some measure accidental, happened to coincide with those which might more reasonably have been expected to occur during the course of the war, in promoting, I might almost say in forcing, the cultivation of the country. I should be disposed to take the ten years from 1797 to 1S08, as the period when all those circumstances, of what nature soever, concurred to produce the same ell'ect. It will be worth the attention of the Committee to observe how singularly this period is AGRICULTURAL DISTRESS. 267 filled with events, all tending one way, all bearing upon the extension of agriculture. The French commerce and colonies had heen previously destroyed; and in 1797, 1798, and 1799, those of Spain and Holland shared the same fate. About this time our monopoly might be said to have reached its height. But several accidental events now concurred with those results of the war, and influenced the progress of cultivation in a visible manner. The scarcity of wheat in 1790, and all sorts ol grain in 1799 and 1SOO, raised the prices so much as to force a vast portion of land into cultivation. In 1797, and still more after 1SOO, lands were broken up which had never before known the plough, and many wastes were taken in, the tillage of which prudence would per- haps never have authorized. Somewhat of the same effect was thus produced which arose from the destruction of the principal French West Indian colonies early in the lato war. The sudden diminution in the supply of sugar raised its price beyond all example, and occasioned a vast extent of new land to be cleared and planted, promoting at the same time the culture of the old plantations. The African slave trade, and the conquest of the Dutch, French, and Spanish settlements, with the consequent influx of British capital, facilitated the progress of West Indian agriculture, until, in the course of a few years, the blank created by the commotions at St. Domingo and Guadaloupe was much more than supplied; sugars fell as far below their ordinary price as they had lately risen above it; all West Indian proprietors were dis- tressed, and many utterly mined; the colonies, generally speaking, were in a state nearly resembling the most suffering districts of the mother country at the present time; and relief was only afforded by the abandonment of many estates, chiefly such as were loaded wiih debts and consisted of inferior lands, the supply being thus restored to a level with the demand. I do not mention the cases as in all respects parallel, but they agree in many of their principal circum- stances. Together with the scarcities of 1790 and 1SOO, the financial and military operations of the war, concurretl to raise the prices of agricul- tural produce. Those operations did not certainly create capital, or multiply the number of mouths for consuming food; but they collected capital in masses to be expended less economically in feeding a number of persons more carelessly than the same individuals would have been supported by part of the same capital, had it been left in the hands of private persons. I desire to be understood as casting no reflection upon the administration of the revenue appropriated to the demands of the war, because it is quite unnecessary at present to express my opinion upon this point. Every one must admit that a given sum in the hands of government, even of the most economical ministers, especially if allotted to meeting the various pressing exigencies of warfare, must be expended with much less care and parsimony than the same sums appropriated to the uses of private families under all the checks imposed by individual prudence. The tendency of such a national expenditure unquestionably is, to raise prices above their 268 AGRICULTURAL DISTRESS. natural level, for a time at least, and thus to force cultivation forward, although, in a long course of years, the same capital in the hands of the community would have been much more augmented, and would gradually and healthfully have increased the production of the country in a greater, but not in a disproportionate degree. It is not, however, for its effect in stimulating agriculture that any man will be disposed to quarrel with the war and its expenditure. Had it no other sins to answer for, this might well be forgiven. While the circumstances which I have mentioned were disposing men to extend the cultivation of the kingdom, an event occurred, which in its consequences mightily facilitated this operation. I allude to the stoppage of the Bank of England, in the early part of 1797. The alarm in which that extrordinary measure originated, very speedily subsided; and with the restoration of confidence, came a disposition to accommodate, on the part of bankers and other dealers in money and credit wholly unexampled. The Bank of England soon increased its issues; and the numbers of country banks were everywhere aug- mented. In districts where no such establishment had ever before been known, they were to be found actively engaged in discounting and lending and in issuing their own notes. In places too small to support a bank, there were agents appointed by banks fixed at some distance: or a shopkeeper or tradesman, added to his usual and regular calling, the new employment of cashing bills and passing notes. It is true that the check which had now been removed from the great Bank in London, still operated to a certain extent upon the minor dealers in credit, thus scattered over the country; they were obliged to pay, if required, in Bank of England paper, although the issuers of that paper were not compelled to pay in specie. But this was rather a nominal than a real restraint; for if the holders of country bank paper could not obtain gold in exchange, they preferred coarse notes with the names of Mr. or Sir John such-a-one, whom they knew, to notes somewhat better engraved, but worth just as little, and with the names of a governor and company and a Mr. Newland, whom they knew nothing about so that the country banks enjoyed the same facility with the bank in London, of increasing their issues; and they used it with much less reserve. Hence the unlimited accommodation which they afforded to farmers, and generally to all speculators in land. They assisted all adventurers more or less, but adventurers in land most of all, because they had better security to give, and were supposed to be engaged in a less hazardous line of trade. I must here repeat the remark I made upon the tendency of the war to pro- mote cultivation. If the stoppage of the bank had produced no worse effects than throwing dormant capital into circulation, and affording a stimulus to industry, especially to agriculture, I should have little to say against that measure nay, it might have been rather beneficial than hurtful, at least in this point of view, had the accommodation which it afforded been withdrawn more gradually, and at all events, not at the particular moment, when perhaps the state of things required it to be still farther extended. AGRICULTURAL DISTRESS. 269 Another circumstance to which I shall advert, also occurred within the period in question, between 1797 and 1SOS, I mean the great extension of our colonial possessions. The value of those establish- ments is, I believe, somewhat underrated in this country: not that we are slow to parade their importance in several particulars on the contrary we are prone to magnify them in our accounts of exports and imports, and of the quantity of tonnage, and the number of seamen employed in our trade; but we seldom, if ever, reflect on the vast effects produced by them upon the agriculture of the mother country. In promoting this, their wealth operates both through the channels of commerce and of remittances, almost as directly as the riches of one district of this island expand themselves over and fertilize another less wealthy territory in its neighbourhood. The conquest and rapid culti- vation of the Dutch colonies, to take the most remarkable instance, may be traced in its effects upon many a once barren tract of land in the northern parts of Great Britain, where by the names of the farms and of their occupiers you may be reminded of those lucrative specu- lations in Surinam, Demerara, and Berbice, to which the agriculture of the mother country owed these accessions. The last circumstance I shall mention as falling within the same period, is the completion of our commercial and manufacturing mo- nopoly, by the destruction of almost all other trade and peaceful industry, the final result of Buonaparte's continental and military system. In the end, indeed, we felt the effects of this prodigious attempt, as I shall presently have occasion to state; but for some time it only consummated the ruin of our competitors, and gave new re- sources to our seaport and manufacturing towns. The effects of this increase upon the industry of the country, at a period when men were singularly prone to farming speculations, cannot easily be overrated. We are apt to suppose the sphere of such influence much more con- tracted than it really is. If any one is desirous of perceiving how widely it extends, I think I can furnish him with a medium through which he may view it. When the measures of the enemy, which began with the Berlin and Milan Decrees, had, through the co-operation of our own Orders in Council, succeeded in crippling the trade of almost all our great towns, the distresses of the merchant and manufacturer affected not merely the farmer in his neighbourhood, but lowered the cattle and corn markets to a great distance, so that fat beasts were sc,ld at very low prices, one hundred, and even one hundred and fifty miles from the manufacturing districts in Lancashire and the West Hiding of Yorkshire, in consequence of the distresses prevailing over those parts of the country. In like manner, it is evident that the earlier events of the war, which suddenly promoted the wealth of the great towns, tended as rapidly to augment the cultivation of i-vi-n ilu: remote provinces. Now, sir, having ascertained the existence of so many and such powerful causes, uniting their forces in one direction, during the period I have mentioned, and all tending manifestly to promote the agriculture of the country, some of them by tempting men to embark in fanning 23* 270 AGRICULTURAL DISTRESS. concerns, others by furnishing them with the means of speculation, even if we do not take into the account such circumstances as the general progress of the arts and the depreciation in the value of the circulating medium, and the consequent rise in the money price of produce, which I am very far from underrating, but only pass over for the present as operating less exclusively upon the cultivation of land than the other circumstances which I have enumerated, I say even if these considerations are omitted, enough has been shown to prove that a start must have been made in the productive powers of this island, quite unexampled in any equal period of its former history. When, on the other hand, I reflect upon the nature of the causes which I have enumerated, and find that most of them are of sudden occurrence, and that their combination in the short space of about ten years was accidental; when, moreover, I perceive that the most material of them were of a temporary duration, and could not remain long to support the great cultivation which they had occasioned, I am disposed to think that I have got hold of a principle upon which something like an over-trading in agriculture, and a consequent redundance of produce, may be inferred to have happened, how difficult soever it may be to ascertain the amount of this excess by any strict calculation. In truth I am little inclined to resort to estimates upon the present question; where circumstances are clearly proved to have existed, the natural operation of which plainly was such as I have described, it is unneces- sary to seek among statistical returns for evidence of effects which we know must have been produced. I have heard of conjectures as to the number of acres enclosed, during the ten years I am referring to, in which there may have been 1200 enclosure bills passed. Some of my honourable friends near me, I know, have estimated this amount at two millions, which I mention not so much from any reliance upon the accuracy of the statement, as out of respect for them, and because this admission is at variance with their own doctrine, that there has been no excessive cultivation. But it is evident that such an estimate, even if correct to an acre, would by no means show the increase of produc- tion, for a good deal of the land enclosed by act of parliament was formerly cultivated in common field; and, on the other hand, the im- provements in the cultivation of the old enclosures have probably done more to augment the whole agricultural produce, than all the new lands that have been taken in. If, however, we take the total amount, every thing included, to be equal to the produce of two millions of acres added to the former produce, and if it be true that the population has only increased two millions during the same period, there will appear to have been an increase of nearly six millions of quarters in the sup- ply, and only an increase in the permanent demand, in the proportion of two millions. But, as I have already said, these estimates are not to be trusted either way, and I had much rather rest upon the broad principle furnished by a reference to the known events in the history of the late war, down to the year 1S08. The improvements in most parts of the country have been going on so visibly, that the most careless observer must have been struck by them. Not only wastes AGRICULTURAL DISTRESS. 271 have disappeared for miles and miles, giving place to houses, fences, and crops; not only have even the most inconsiderable commons, the very village greens, and the little stripes of sward by the way side, been, in many places, subjected to division and exclusive ownership, and cut up into corn-fields in the rage for farming; not only have stubborn soils been forced to bear crops by mere weight of metal, by sinking money in the earth, as it has been called, but the land that formerly grew something has been fatigued with labour, and loaded with capital, until it yielded much more; the work both of men and cattle has been economized, new skill has been applied, and a more dexterous combination of different kinds of husbandry been practised, until, without at all comprehending the waste lands wholly added to the productive territory of the island, it may be safely said, not per- haps that two blades of grass now grow where only one grew before, but I am sure, that five grow where four used to be; and that this kingdom which foreigners were wont to taunt as a mere manufacturing and trading country, inhabited by a shopkeeping nation, is in reality for its size, by far the greatest agricultural state in the world. Previous to the year 1810 or 1811, no great effect appears to have been felt in the corn market from all this system of improvement. The measures to increase our produce had not begun fully to operate, and the new enclosures had not yielded their due returns. The crop of 1810 was not a very good one, and that of 1811 was extremely bad. But about 1812, when the new cultivation and the improve- ments in farms generally, may be supposed to have produced their full effect, there began a series of events, some of them accidental and beyond human foresight to anticipate, others less strange perhaps in themselves,but in their union scarcely more to be expected, all operating in the same direction, and that direction the very opposite, as far as regards agriculture, to the line in which the no less unparalleled com- bination of circumstances already mentioned, had been operating in the preceding years. The harvest of 1812 was a very abundant one; that of 1813, I believe, exceeded any that had ever been known: and the crop of 1814 was not much inferior. Hut the political events of those three years had an influence still more important upon the mar- kets. Here I must take leave to state how widely I differ with my honourable friend the member for Essex,* respecting the effects of the peace. In the able and luminous speech with which he introduced this subject to the House, and in which he showed at once the greatest industry, talent, and moderation, he contended that the termination of hostilities could not be assigned as the cause of the depression in prices, because those prices had begun to fall during the war; and he observed in confirmation of his position, that after the former treaties of peace, agricultural produce had risen. The facts upon which he relied when taken altogether, far from supporting his doctrine, furnish me with a satisfactory answer to it. After the peace of Paris, it is true, wheat rose from 3G*. to 41*. the quarter, in 1763, and to 42.v. (></. Mr. (now Lord) Western. 272 AGRICULTURAL DISTRESS. on an average of five years, ending 1767. So, after the peace of Ver- sailles, it rose 55. the quarter. But the statements upon which my honourable friend relied, as decisive in his favour, were taken from the period in question, viz. the year IS 13. In January of that year, the market price of wheat was 120*., and in November it had fallen to 75-s. The victualling contracts of Portsmouth were made in January at 123*. Wd. ; in November at 67s. lOd. Those of Plymouth, in February at 1215. 9d., in September at 865. Those of Deptford, in February for flour per sack at 1005. 3d., in November at 655. Now I beg the committee's attention to these facts, because when coupled with the well known events of the year 1813, they clearly refute my honourable friend's argument, pretended to be built upon them. In January and February wheat and flour were high; in September they had fallen very considerably, owing, partly no doubt, to the very abundant harvest reaped during the interval, but in no small degree owing to the important change in public affairs, which had taken place during the same interval. The destruction of Buonaparte's grand army had been effected the winter before, and had laid the foundation of the deliverance of Europe, but that happy event had not been completed. The most gigantic enterprise which unprincipled force had ever attempted in modern times, had been defeated by a lucky concurrence of accidents with the violence that gave birth to the project; but much of its author's power still remained unbroken, and no man could foresee that the blind fury which had borne him into jeopardy, would still hurry him to ruin. At all events, a new and a desperate struggle was inevitable, and the great prize of peace on the one side, or universal empire on the other, was to be fought for once more, in the ensuing campaign. In the spring and summer of 1813, this battle was fought; and the enemy, after incredible efforts of gal- lantry and skill, was repulsed but nothing more. Peace seemed considerably more probable, therefore, in September, than it had been in January; but it was not certain. The improvement in our pros- pects, however, co-operated with the harvest, and prices were lowered from 1225. to 865. Soon after this period came the decisive battle of Leipsic; peace was now certain, and all that remained to be settled was the terms upon which it should be made, and the degree of secu- rity which should attend it; for the struggle which followed could be said to decide nothing more. Accordingly, in the interval between September and November, prices had fallen from 86 to 68, in round numbers. Contractors could no longer expect the same terms when in all likelihood this was their last bidding. Government was not pressed as before, when its difficulties were so nearly at an end; and the market felt the effects not only of an extraordinary crop, but of the approaching times of peace, when the demands of government should be withdrawn, and the supplies of the continent poured in. No man who attends to these facts and dates can entertain a reasonable doubt that the fall of prices was in some degree connected with the approach- ing termination of the war. In truth, sir, it is impossible to overlook the tendency of such a AGRICULTURAL DISTRESS. 273 change as the peace brought about in all the great markets of agricul- tural produce. A sudden diminution in the expenditure of government, to the amount of above fifty millions, could not be effected without greatly deranging all markets, both for manufactures and produce directly; and by affecting the markets for manufactures, it must also have influenced circuitously those in which the farmer is more imme- diately interested. To take only a few specimens of these effects: Can it be denied that the stoppage of the exportation of grain, pro- visions, and even forage, to the peninsula, had an influence in lowering the prices of those articles at home? When orders are no longer given for clothing in Yorkshire, aud arms in Warwickshire, does the change which throws so many manufacturers out of employment produce no diminution in the demand for food, and no increase in the levy of parish rates ? Look at the effects of the government retiring from the Irish provision market, now that three-fourths of the navy are dismantled. Beside the accounts from the sister kingdom, every gentleman connected with the north and west of England knows, that last summer and autumn the droves of Irish cattle poured through Liverpool, Bristol, and the Welsh ports, covered the roads for miles; and that the price of butchers' meat, and the rents of grazing farms, which had till then kept up, notwithstanding the fall of grain and of corn lands, began to be sensibly affected. I state these circumstances with the more satisfaction because they are in their nature temporary, and we are led to a somewhat more comfortable prospect by the con- sideration, that whatever part of the present distresses is ascribable to the change from war to peace, may reasonably be expected to diminish every day, at least as soon as the results of the peace shall enable the general trade of the country to resume its natural and accustomed channels; and shall supply the blank occasioned directly and cir- cuitously in the demands for produce, by the diminished expenditure of government. The next circumstance to which I shall advert as materially opera- ting against agriculture, is the distress in the commercial world during the latter years of the war. It is very certain that the effects of the fatal year 1S10, continue to be felt at this day in the mercantile world. The foundations were then laid of many failures, which have only been delayed by the natural efforts of unfortunate men to ward off a blow they could not escape; efforts which it is impossible very harshly to blame, although undoubtedly the delay of the crash has in most instances only rendered it more pernicious to creditors, and extended its effect more widely, occasioning, perhaps, several failures instead of one. The difficulties of 1812 are fresh in the recollection of the committee, and are still working their effects in many parts of the country, although the repeal of the Orders in Council, by enabling us to export goods, which were all paid for to the amount of seven or eight millions, afforded a most seasonable and important relief, and enabled capitalists to lower their stock on hand in a great proportion. That stock, however, began to increase during the unhappy con- tinuance of the American war; and the peace, unexpectedly made, in 274 AGRICULTURAL DISTRESS. Europe, followed by the treaty with America, soon produced an effect to which I must request the serious attention of the committee, because I believe its nature and extent are by no means well understood. After the cramped state in which the enemy's measures, and our own retaliation (as we termed it), had kept our trade for some years, when the events of spring 1814 suddenly opened the continent, a rage for exporting goods of every kind burst forth, only to be explained by reflecting on the previous restrictions we had been labouring under, and only to be equalled (though not in extent), by some of the mer- cantile delusions connected with South American speculations. Every thing that could be shipped was sent off; all the capital that could be laid hold of was embarked. The frenzy, I can call it nothing less, after the experience of 1806 and 1810, descended to persons in the humblest circumstances, and the furthest removed, by their pursuits, from commercial cares. It may give the committee some idea of this disease, if I state what I know to have happened in one or two places. Not only clerks and labourers, but menial servants, engaged the little sums which they had been laying up for a provision against old age and sickness; persons went round tempting them to adventure in the trade to Holland, and Germany, and the Baltic; they risked their mite in the hopes of boundless profits; it went with the millions of the more regular traders: the bubble soon burst, like its predecessors of the South Sea, the Mississippi, and Buenos Ayres; English goods were selling for much less in Holland and the North of Europe, than in London and Manchester; in most places they were lying a dead weight without any sale at all; and either no returns whatever were received, or pounds came back for thousands that had gone forth. The great speculators broke; the middling ones lingered out a precarious existence, deprived of all means of continuing their dealings either at home or abroad; the poorer dupes of the delusion had lost their little hoards, and went upon the parish the next mishap that befell them; but the result of the whole has been much commercial distress a caution now absolutely necessary in trying new adventures a prodigious diminu- tion in the demand for manufactures, and indirectly a serious defalca- tion in the effectual demand for the produce of land. The peace with America has produced somewhat of a similar ef- fect, though I am very far from placing the vast exports which it occasioned upon the same footing with those to the European market the year before; both because ultimately the Americans will pay, which the exhausted state of the continent renders very unlikely: and because it was well worth while to incur a loss upon the first exportation, in order, by the glut, to stifle in the cradle those rising manufactures in the United States, which the war had forced into existence contrary to the natural course of things. But, in the mean- time, the enormous amount, of, I believe, eighteen millions worth of goods were exported to North America in one year; I am informed nearly sixteen millions went through the port of Liverpool alone; and, for a considerable part of this, no returns have been received, while still more of it must have been selling at a very scanty profit. AGRICULTURAL DISTRESS. 275 The immediate effect has been a sensible increase of the difficulties which I have already described as flowing from the unexpected open- ing of the European market in the impoverished and unsettled state of the continent. And now it was, when a general commercial distress began to prevail, that the consequences of our paper circulation, and the hank- ing operations connected with it, not gradually as had been expected, but almost instantaneously developed themselves. Whether the change of measures, which I am about to mention as one of the principal, if not the very first cause of our present sullerings, began with the country banks, or the bank of England; whether it was the necessary consequence of the difficulties which were pressing upon trade, and which, at any rate, it mightily increased, or was the chief cause of those difficulties; whether or not blame is imputable to any persons or bodies corporate, I will not stop to inquire, for it is wholly immaterial to the present investigation; and when I mention certain known facts in one order rather than another, I do so without intend- ing to assert that they were connected together. The bank of Eng- land not very slowly limited its discounts, and diminished its issues of paper about three millions. At one period, indeed, the amount of notes in circulation had exceeded that to which they were now reduced, by six millions; but the average had been for some time about three millions higher. The country banks acting less upon system, and more under the influence of alarm, lessened their discounts in a much greater degree. A single failure would stop all such trans- actions over a whole district, and I could mention one large stoppage which made it difficult, for a length of time, to discount a bill any- where in three or four counties. The persons who felt this change most severely Were of course those \vho had been speculating in any way, but above all others, speculators in land; those who had either purchased or improved beyond their actual means, upon the expectation of that credit and accomodation being continued, which had enabled them to commence their operations. Ordinary traders have much greater facilities in the money market; and their speculations are much more speedily terminated. The improver of land has to deal with property not easily convertible into money, and his adventures extend neces- sarily over a long course of years. Persons in this situation soon found their borrowed capital withdrawn; when the fall of produce made it difficult for them to pay the interest, they were suddenly called upon for the principal; they had gotten into a situation which no prudence could have enabled them to avoid, because it was the result of events which no sagacity could have foreseen; they had for many ye;irs been tempted to speculate by a facility of obtaining capital or credit, winch in a month or two was utterly withdrawn; and before the least warning had been given, either by the course of events, or by the dealers in money and accommodation, a support was removed, which the most cautions of men might well have expected lo be con- tinued indefinitely, or at any rale to be gradually removed. I beg leave in illustration of this mutter, to remind the committee ho\v those 276 AGRICULTURAL DISTRESS. undertakings have been carried on, which I before described as ex- tending so greatly the agriculture of the country. A man of small fortune, or a farmer making considerable profits by the high prices of the period I have so often alluded to, saw an opportunity of making a desirable purchase, upon an enclosure or a sale in his neighbour- hood. He had scraped together a couple of thousand pounds, perhaps; but the sum required for buying, and then improving the land, was four or five. The banker supplied this difference, and by his accom- modations enabled some middle man, trading in credit, to supply it, and the cultivator had every reason to hope he should in a few years, be able to repay it, by the continued prosperity of farming concerns. At any rate he reckoned upon paying the interest and not being called upon for the principal, in security of which he probably deposited the title-deeds of his purchase as a pledge. The extension of cultivation caused by these very operations, together with the other circumstances to which I have referred, rapidly lowers the price of all produce; the alarm of money dealers begins to spread; hardly able to pay the inte- rest, which is in reality a fourth part more than it was while the cur- rency was depreciated 25 per cent., he is called upon to pay up the principal itself; destitute of anything that can be turned into money, he is fain to abandon his purchase, with all the improvements which his savings and his toil have made upon it; and the lender finds him- self in hardly a better situation, without the means of obtaining payment, and with title-deeds in his hands, which he can turn to no account, unless he brings the land into the market. Now, the cer- tainty of such a measure lowering its price prevents this step from being taken; and accordingly, great as the distress has been, very little land has been actually sold; not so much as ought to have been, is thrown out of cultivation; good money, to use the common expres- sion, is thrown after bad; the money-dealer becomes, from necessity, a land-jobber; and the distress continues pushing its shoots in all directions, round the whole circle of trade, until, by reaction, the farmer suffers again indirectly, and the total amount of suffering is, if I may so speak, augmented by its universality, and the connection of its parts. Nor should I be at all surprised, if things were to grow worse before they got better; at least I am very certain that the price of land will be lower before it is higher, from the undoubted fact of many sales that must take place having been delayed as long as possible, in the vain hope of the necessity being evaded. In referring to the state of credit and circulation, I have purposely avoided dwelling upon the great evils that have resulted from the fluctuations in the value of the currency, not because I underrate them, but because they only affect one class of sufferers from the present distress, I mean those who have made bargains or formed calculations for time; such as persons taking long leases, or borrow- ing money at a fixed rate of interest, or speculating upon making sales at a future period. Of these classes I shall say a word or two by-and-by. But there is a circumstance affecting all classes, and of which it is quite impossible to exaggerate the importance, in account- AGRICULTURAL DISTRESS. 277 ing for the changes that have recently afflicted the agriculture of the kingdom I mean the state of our finances, the complete revolution which the last twenty-five years have effected in the revenue and expen- diture of the country. During that period our revenue has increased from fifteen to about sixty-six millions; our expenditure in one year exceeded one hundred and twenty-five millions; this year of peace it is to be above seventy- two millions, and no hopes are held Out of its being permanently below sixty-five. That such a prodigious change could be wrought in the system of taxation and of public credit, without seriously affect- ing the landed interest, from which so large a proportion of the taxes is drawn, no man will for a moment suppose. But I believe few have formed to themselves distinct ideas of the manner in which excessive taxation has been operating on agriculture, and very inade- quate notions are, I am sure, entertained of the amount of that opera- tion. It is not, indeed, very easy to trace it; and to estimate precisely how much of the pressure falls exclusively upon the cultivator would be impossible. But I shall take the liberty of submitting to you such means of approximation as I have been able to find, aware of the jus- tice of an observation made this night by the member for Surrey,* that by communicating freely the ideas which have struck each of us upon this great question, we may hope for mutual correction and in- struction. I shall suppose a farm of '100 acres of fair good land, yielding a rent of from 500 to 600 a-year, managed according to the husbandry practised in the northern counties, with which only I can profess any particular acquaintance. It will require for a four years' course, 200 acres being in corn, 100 fallow, and 100 in hay and grass, fourteen plough horses; and supposing a saddle horse, and a servant, and a dog to be paid for, with a farm-house of twelve windows, the assessed taxes will amount to 22, 8s. a-year. This is a clear addiiion to the expenses of 1792, with which I am making the comparison. I pass over the income tax, as not peculiar to farmers, though it has been peculiarly oppressive to them, wherever the estimated exceeds the real profits. But the principal increase of expense has been upon the labour. The wages of the nine regular men servants who must be employed, have risen since 1792, from 30 to 50 each, but I will put the rise only at 15, making in the whole 135. Besides this, we must allow for the rise of the day labour required in spring and fall. Upon the 200 acres in corn, this will amount to a rise from 10s. an acre to I5.y., or 50 in all; upon the other in hay and grass, the rise will be from 5.v. an acre to 7.v. G</., and the same upon the 100 acres of fallow, making an addition of 25, or 75 for the whole increase upon day labour. Two women servants must be allowed and their wages are more increased in proportion than those of men, principally, 1 believe, from the unwillingness of farmers' wives and daughters to work as they used to do before the more flourishing * Mr. H. Sumner. VOL. I. 24 273 AGRICULTURAL DISTRESS times; but take the rise on this head only at 10 and we have the total increase on labour 220. Blacksmiths' and carpenters' bills have in like manner been raised, certainly not less than 15 each upon such a farm as I am supposing; and the rise on saddlers' bills cannot be estimated at less than 10, making upon these bills a rise of 40, which added to the former heads, gives the total increase in the expenses of cultivating such a farm, as equal to 282, 8s., inde- pendent of the great rise on lime and all sorts of manure. Now, I admit that we have no right to set down the whole or nearly the whole of this large sum to the taxes which have been im- posed since 1792, but a great part of it manifestly does arise from those taxes. Whatever part arises from the increased prices of grain and other provisions may be deducted, and will fall again with those prices. Whatever remains must be ascribed to the taxes chiefly. Above 22 of the sum comes from direct taxation. At least one- half of the rise on the saddlers' bills, or 5 more, is owing to the same cause. But a considerable proportion of the grand item of labour is imputable to the taxes also. For let us only reflect on the nature of the duties which have been imposed. Many of them affect articles of prime necessity, as soap, salt, leather, and candles, all of which are ranked among necessaries of life by the writers on these subjects, and, what is better authority, are felt to be such by the consumers; taxes upon all of which are allowed by those writers to affect directly the price of labour. Now the tax on leather has been doubled within the last four years, being raised from three half pence, at which it stood before the war [Here the Chancellor of the Exchequer said across the table "And ever since the reign of Queen Anne"] to three pence, the present duty. The duty on salt, which in 17S2, and I believe up to 1792, was only Wd. a bushel, had been raised pre- vious to 1S06, to 15s., the present duty. And candles have in the same period been taxed considerably. But these articles are not the only ones which may be reckoned necessaries, and are subjected to addi- tional duties. In most parts of England, beer is to be classed in this list, from the universal custom of drinking it which prevails, and the duties upon it most seriously affect the farmer as a consumer of it, besides their pernicious tendency against his interest as a grower. The duty on malt has been raised from 10s. Id. per quarter to 34s. Sd., of which 165. is war duty; that on beer since 1802 has been in- creased from 5s. Hd. per barrel to 9*. l$d., or about 4s., while that on spirits has been raised since 1792 from Id. to 1*. 9d. per gallon, or 1*. 2d. additional. The total revenue collected from these duties is 12,350,000, by which the land suffers directly in proportion to the whole amount, and indirectly in proportion as its cultivators are consumers of the manufactured article. But the price of agricultural labour is affected likewise by the duties of custom on many imported goods, which long habit has rendered scarcely less essential than some which I have enumerated as articles of first necessity. Of this class is sugar, upon which the heaviest taxes known in the history of finance, are laid. I believe, indeed, there are many persons who AGRICULTURAL DISTRESS. 279 would rather go without soap than sugar; and this is now subject to a duty of 30.9. per cwt., instead of 15*., at which it was taxed before 1793. It must also be observed that whatever prohibiting or protect- ing duties have been laid upon foreign manufactures of articles used in clothing, these fall directly upon the labourer, and in so much tend to raise his wages for the benefit, not certainly of the farmer, but the manufacturer. It is therefore evident that much of the augmentation in the expense of working a farm, a considerable portion of the sum of 220, which I have stated to have been added since 1792 to that large branch of a farmer's expenditure, is chargeable to the taxes; and a portion also of the sum of 35, the part of the rise in the car- penter's and other bills not directly affected by taxes, must also be charged to the same account. It is impossible to state with any de- gree of accuracy what the total amount of the increase of taxation has been upon these items; but that it must have been considerable, no one can reasonably doubt; and I beg to warn gentlemen against underrating it, from the fall in the rate of wages that has lately taken place. Labour has indeed come down; and in my opinion, a good deal more than was to be wished, I mean a good deal more than the fall of other prices justified. This fall must have resulted from the general distress of the country, and the number of hands in conse- quence everywhere thrown out of employment; but it is no sort of proof that the present is the natural and healthy state of wages; or that they will long remain so low; or that the fall in the price of provisions has permanently reduced wages to their level before the war; and therefore it is no kind of evidence that the increase in the expense of cultivation has arisen from the rise in prices alone, and not also from the increase of taxation. But it may be said that the taxes have not fallen exclusively upon the farmer, and that he only suffers in common with the rest of the country. Now, to this I shall offer, I think, the most satisfactory answers. It must be remembered, in the first place, that part of the taxes fall directly and exclusively upon ihe landed interest. Some of the assessed taxes, and the enormous malt, beer, and spirit duties are clearly of this description. But next observe how differently the farmer is circumstanced in these times from the other parts of the community, with respect to the rise in wages, produced partly by the taxes. The commodity in which he deals is on the decline in point of price from over-cultivation; ho cannot, therefore, throw the tax upon the consu- mer. If manufactured goods are in high demand, the customer pays the duties to which the manufacturer may be subject, either directly or indirectly by the rise in wages caused by those taxes. If those goods are falling in price, the tax presses upon the manufacturer himself. Now this is, and for some time past has been, in a peculiar manner, the state of the farmer, who indeed never has the means of suddenly accommodating tho supply of his commodity to the dcmnnd, with the nicety and despatch observable in the operations of trade But, a still more material circumstance distinguishes the situation >f the farmer from that of the manufacturer, relieving the latter at the 280 AGRICULTURAL DISTRESS. expense of the former. I allude to the state of the law, which throws upon the land the whole burthen of maintaining the poor, and reduces the price of all labour below its natural level, at the sole expense of the cultivator. It is well known to the committee, that whatever may have been the intention of the legislature, (and the meaning of the statute of Elizabeth is sufficiently plain,) yet from the defect in the powers of the act, the money raised for the support of the poor is paid entirely by the land. Persons in trade only pay in so far as they are also owners of real property. Thus a manufacturer who is de- riving ten or twelve thousand a-year from his trade, is rated as if he only had a large building worth four or five hundred a-year beside his dwelling-house, while his neighbour, who possesses a farm of the same yearly value pays as much; that is, the man of ten thousand a-year in trade, pays no more than the man of five hundred a-year in land. Yet, only observe the difference between the two in their re- lation to labour and to the poor. The farmer employs a few hands the manufacturer a whole colony; the farmer causes no material augmentation in the number of paupers the manufacturer multiplies paupers by wholesale; the one supports the other makes paupers, manufacturing them just as certainly, and in something of the same proportion as he manufactures goods. The inequality of this distri- bution is plain enough, but I am now speaking of it in its relation chiefly to the subject of wages. From the abuse of the poor laws, it has become the prevailing practice to support by parish relief, not merely persons who are disabled from working by disease or age, but those who, though in health, cannot earn enough to maintain them; and, by a short-sighted policy wholly unaccountable, the custom has spread very widely of keeping down the wages of labour by the appli- cation of the poor-rates, as if anything could equal the folly of paying rates rather than hire; of parting with the disposition of your own money, and of paying for labour, not in proportion to your own de- mand for that labour, but in proportion to some general average of the district you chance to live in. I pass over the inevitable effect of this arrangement in raising the total amount of the sums paid for labour, and in throwing upon one farm the expenses of cultivating another less favourably circumstanced; it is enough for my present purpose to remark, that the whole effect of the system is to make the land pay a sum yearly, levied in the most unequal manner, applied in the least economical way, for the purpose of lowering the wages generally, and lowering the wages of manufacturing as well as agri- cultural labour. From this unquestionable position I draw two infer- ences, I think equally undeniable, and bearing directly upon the sub- ject of our present inquiry; the one is, that the effects of taxation in raising the price of labour are not distributed equally over all classes of the community, but fall exclusively upon the land, the land paying for the rise which the taxes have occasioned, both in agricultural labour, and in all other kinds of work the other is, that, even if the fall in the price of provisions should apparently restore wages per- manently to their former level, the real rate of wages would still be AGRICULTURAL DISTRESS. 281 raised, and the real cost of cultivation be augmented, unless the poor rates also were brought back to their former amount. The sum now levied upon the land for this purpose, exceeds eight mil- lions. Before the American war. it was less than two. I think I have said enough to show how immediately, how severely, how ex- clusively, the rise in the taxes from fifteen to sixty-six millions has pressed upon agriculture; how impossible it is to expect substantial relief as long as that pressure continues. I have now, sir, I fear at a very unreasonable length, gone through the causes which appear to have co-operated in producing our present distresses; and I come at last to a consideration of the means by which the evil may be remedied, or at least rendered supportable. In enter- ing upon this part of the subject, I feel sensibly the delicacy of the ground I am going to tread. No one ought without tiie most serious examination of it, to venture an opinion which (from the respect paid to our deliberations in this place) may have a material influence upon, the fortunes of individuals, and, at any rate, may agitate their hopes and fears in a crisis of general solicitude. I wish, therefore, to state nothing that has not been suggested to my mind by very mature and anxious deliberation; but whatever may appear justified by such research, I think it my duty to propound, without the smallest regard to personal considerations, or to the prejudices that may prevail in any quarter. And, first, I am afraid there is one class of persons who can hardly expect effectual relief from any measures, or from any supposable change of times; I mean those who have been trading largely in land upon borrowed capital. They liave. speculated upon a continuance of extravagant prices, and the fund is, in all likelihood, gone for ever, out of which their debts \vere to have been repaid. The fall in the market price of bullion is of itself a severe loss to such adventurers; they have still to pay in money as before, when every hundred pounds is really worth one hundred and twenty-five; they have to pay as much money to their creditors as formerly, and they can only receive three-fourths as much from their customers. I would fain hope, however, that such is not the situation of the great bulk of proprietors, to whom, perhaps, a permanent relief (and even to the speculator a palliative) may possibly be found. Those who have been expending large sums on bad land are in the worst state, and I fear that a good deal which ought never to have been cultivated at all, must be abandoned, and much grass land that should not have been broken up, must be laid down again as well as circumstances will permit, unquestionably at a great loss. The lowering of rents, which has pretty generally taken place, can hardly be reckoned any considerable relief, if other circumstances remain the same. It is a severe loss to the landlord, a loss which he sustains alone of all who have made time bargains; for no one hears of mortgagees or other creditors giving np twenty-five per cent., either on principal or interest, because the value of money has risen in that proportion; but to the tenant it affords a very inadequate relief, for he is complaining of a 282 AGRICULTURAL DISTRESS. fall in the price of his gross produce, of above three pounds an acre, (supposing the produce to be three quarters of wheat per acre), and all that the landlord can do for him is to take off five shillings an acre, leaving him to struggle against a loss of fifty-five shillings. But I shall now beg the attention of the committee to the different measures which have been proposed, and in discussing these as well as in submitting others to your consideration, I shall he guided by the view which I have taken of the nature and causes of the evil. The first of these remedies, in point of importance as well as of time, is the Corn Bill of last session. Although that measure is no longer a matter of discussion, yet as I had not the honour of a seat in this house either when my honourable friend* brought forward the bill of 1S04, or when he raised the importation price last year from 635. 6d. to 80,?., I deem it more fair not to avoid the topic, but to state my opinion frankly upon its merits, the more especially as it has been the object of very strong disapprobation in many parts of the country. I certainly am disposed to think favourably of it, although I arn well aware how diffidently it becomes us to speak upon a measure which has divided so widely the ablest men, both in Parliament and out of doors, marshalling in almost equally formida- ble array on the opposite sides of the dispute, the statesmen and the political authors;! whose opinions upon such a subject are the most entitled to respect. As it impossible, however, upon such a contro- versy not to oppose great authorities, so it is some comfort that for the same reason, one has the support also of eminent names; and this emboldens me in stating, that I conceive the measure to be politic, at the least as a palliative, or as affording the means of carrying the country through difficulties, the greatest pressure of which we may hope will only prove temporary. But then, I can by no means ex- cuse the language of those who deride it merely because it is tem- porary, or, as they term it, an expedient. If it enables us to get over the existing evils, arising, in great part, from a transition to a new state of things, it does a great permanent good; it saves much valua- ble capital from being totally lost, much skill and labour already bestowed, from being thrown away; and it may thus, even where it fails in affording entire relief, be most important as preventing entire ruin. A measure of this description is only in name one of a tempo- rary nature; its operation is solid and lasting. I pass over its tending to secure a constant and certain supply of food to the community; I am speaking of it merely as a measure calculated for the relief of the agricultural interests, and of all the branches of trade immediately de- pendent upon them. In the same light may be regarded the extension of the measure to some other kinds of agricultural produce, which is at present before Parliament. But I own I view, in a very different light, my honourable friend's * Mr. Western. f See on the one side, Mr. MaUhus's excellent tracts and on the other, the very able dissussion of the corn bill of 1804, by Mr. Mill. AGRICULTURAL DISTRESS. 283 proposition respecting bounties upon the exportation of corn. To pass over every other objection to such a plan, it' there be any truth in the positions which I think I have established, that the principal causes of our distresses are the too rapid extension of cultivation, and the intolerable weight of the taxes; surely it follows inevitably that to force exportation by a bounty, would only perpetuate the one of these causes, and increase the other. Indeed, I marvel that my hon- ourable friend could have thought of such a measure in times like the present. Why, its very essence is taxation, and to a vast amount taxation upon the people of this country to make us sell corn cheap to foreigners taxation upon the land already oppressed with bur- thens. And how are such new sums to be levied? We have got rid of the income tax that is some relief to the farmer. Does my honourable friend wish this burthen to be once more imposed for the relief of agriculture? Or does he peradventure desire to see the malt tax again raised from 14*. to 30.?. in order to encourage the production of grain? All that has ever been paid in bounties formerly, is a trifle compared with the sums which this new scheme would require. In, 1814, for instance, the last year for which we have the return, the whole of the bounties paid by government did not exceed 206,800 a sum, in all probability, very injudiciously bestowed, but still not very ruinous in its amount. A corn bounty, when wheat is selling, perhaps 20.9. a quarter higher in this country than in foreign markets, would cost a million for every million of quarters taken out of the home market: and each effect produced by this forced exportation, in raising the price at home, would render the exportation more costly. But nothing, in my humble opinion, can be worse founded than another remedy suggested by my honourable friend; I mean the exclusion of foreign corn from our warehouses, and the encourage- ment to store our own grain in the public repositories. Have farmers no barn yards or granaries of their own, in which they can keep their corn until the market is favourable? Are the crops in greater danger of rats there than in the king's warehouses? But it is pretended that foreign corn is at present imported, and fills the public granaries, ready to be poured out the instant that the Gazette gives the signal, by declaring the average to be SO.?, for the last six weeks; and my honourable friend considers that if the permission thus to warehouse foreign grain were withdrawn, no such (.'fleet could be produced. Now, I will suffer myself to be devoured by the vermin I have been talking of, if I do not, in a few minutes, show my honourable friend himself the fallacy of this argument. Does he think that merchants wait for the Gazette to learn the price during any period of six weeks? Are they ignorant of the weekly and daily state of the mar- kets? Do they not know at any moment of any six weeks how the prices arc running, and can they form no guess, as the six weeks elapso, of the average, at which the Gazette return is likely to state them? Why, the corn merchant does not even wait until a harvest is ripe before he commences his calculations, in order to form his plans of importation. I happen to know a little of this branch of trade, 284 AGRICULTURAL DISTRESS. and I can inform my honourable friend, that there are emissaries sent round the country while the grain is in the ear, to collect samples, which are sifted out and measured and weighed, in order to obtain data upon which the goodness of the crop, its yield, may be estimated, long before a sickle has glanced among the stalks. While my hon- ourable friend is sitting in his study, forming plans upon the supposi- tion that those corn merchants will wait for the periodical promulgation of the average by the king's printer, they are actually in his fields, com- mitting an innocent trespass, to obtain the earliest information of the next crop as the ground work of their speculations; and upon this know- ledge they speedily begin to act. If the permission to warehouse is withheld, they still must act upon the rise of the markets, and the only difference will be, that instead of collecting the grain on this side of the water, they will have it on the other, to the benefit of foreign merchants, agents and warehousemen, but just as ready to be poured in as if it were in our own ports. Indeed, any one must be sensible, after a moment's consideration, that nothing but a constant expec- tation of the price approaching to 80s. could induce merchants to bring over their cargoes and lodge them in this country, when they know, that until it reaches that point, all the expenses of the impor- tation are incurred for nothing. Whether the voyage is made before or after the day on which the Gazette declares that point to have been attained, must obviously be a matter of perfect indifference; and it is the only thing which the permission or prohibition of warehousing can effect. The alteration suggested in the laws relating to wool, appears to me in a very different light. I had the honour of broaching this important subject on the first day of the session, and every- thing that has since come to my knowledge confirms the opinion I then ventured to express. As a committee has been appointed this night to investigate the question at the suggestion of my honourable friend,* who has thrown so much light on the whole matter now under discussion, I shall abstain from going into it at length; but I must beg to press upon your attention how greatly the agricultural interests are concerned in it. The most important relief has been af- forded to many parts of the country by the good prices which wool has borne during the depression of almost all other produce: I allude especially to the long coarse wool, the ancient and peculiar staple of this island. Ten years ago it was from 9d. to Is. the pound; now it is 2ld., and it was recently as high as 2s. This article is the growth, and has, during the bad times, formed the support of Lin- colnshire and the midland counties. Further northwards we have principally the coarse wool from the black-faced sheep. This is grown in the northern counties, and as far as Edinburgh: it used to be Id. or 3d., and is now I4d. or I5d. the pound. The relief afforded by such prices is not confined to the wool grower; it extends to all other agriculturists in his neighbourhood; because whatever saves a farmer * Mr. Frankland Lewis. AGRICULTURAL DISTRESS. 2S5 from distress or ruin upon the general balancing of his accounts, keeps him from glutting the market with his produce or stock, and prevents the general market of agricultural produce from being depressed. In like manner, the support of the wool districts has extended relief to the other districts, and has produced a favourable effect upon the whole markets of the country, rendering the pressure of the general distress considerably lighter than it would have been had the wool- grower been in the same predicament with all other agriculturists. There is every reason, however, to apprehend, that this article also is on the decline: it has actually fallen within the last three months, and would certainly fall much more rapidly, but for the large orders now in market in consequence of extensive contracts for clothing foreign troops. I have heard of one contract for the uniforms of 150,000 men, which must raise the demand for the wool immediately used in that manufacture. In these circumstances, and indeed at any time, it seems to be a most unwise policy, as far as regards our agriculture, to prohibit the exportation of wool. The finer sort would in all probability find no market abroad, and a permission to export it would therefore have no effect either way; but for the coarse, especially the long wool, there must always be a great demand, as 4t is absolutely necessary to certain manufactures, and is at present peculiar to this island. It well deserves the attention of the committee, whether the prohibiting laws should not be repealed, which compel the wool grower to sell his commodity at home, in order that the manufacturer may work it, and the consumer may wear it, much cheaper than they would if the farmer had the choice of his market. The establishment of a free trade would not raise the price above its present stand- ard, nor in all likelihood would it prevent some further fall, but it would at least guard us against the great depression which may now be apprehended. These are points, however, well worthy of inquiry, and I look to the labours of the committee appointed to night, for much information upon them. But the most material subject for our consideration, consistently with the view which I have taken of the present distresses manifestly the burdens peculiarly affecting land; and these are the tithes, parish rates, and general taxes. Upon the subject of tithes, I have much to submit to your notice, as it has Ion? and anxiously engaged my atten- tion; but it seems not to be peculiarly connected with our present in- quiry, astithes rather affect the expenditure of capital in improvements, and this is certainly not the predicament of almost any person in these times. I am desirous therefore of deferring to another opportunity the observations which I have to make on the plans of commutation proposed by different gentlemen, particularly by my honourable friend the member for Hertfordshire,* as well as another method not yet suggested, by which I feel assured an arrangement of this impor- tant matter might be made with great facility and safety. The sub- ject of the poor-rates, however, is one which, in an especial manner, Mr. Brand. 286 AGRICULTURAL DISTRESS. presses for discussion; and I am confident that every one who may have honoured with his attention the observations which I have sub- mitted to you, will perceive how essential some revision of the system is to the welfare of agriculture. It is clear that the exclusive pressure of parish rates upon the land, was never in contemplation of the legislature; but as the 43d of Elizabeth, whatever it may enact with respect to the persons who shall pay, furnishes no means of obtaining payment in proportion to the profits of trade and professions, the law, if unaltered, must con- tinue to throw the whole burthen upon the land-owner. In addition to this he has to support almost all the public works, as roads, bridges, and churches, in which he is no more interested than the other members of the community. They are made originally at his expense, and kept in repair by him; and, although the rest of the country refunds a part of the money originally advanced, yet every one knows, how seldom this is adequate to his repayment while the repairs, constantly required, are a certain loss to him. At present, however, I am speaking chiefly of the poor rates. The deviation, in some measure necessary, from the intent of the statute of Eliza- beth, as to the class who shall pay them, is not more fatal to the interest of the land-owner, than the perversion of that law, without any such excuse, to the support of all poor persons, whether capable or incapable of work, and the supply of money to those who earn what are deemed inadequate gains. I confess that I see but one radical cure for the state into which this last abuse has thrown the country, and which is daily growing worse, deranging its whole economy, debasing its national character. The inequality of the sys- tem may be remedied; at least I would fain hope that some method might be devised, without having recourse to the odious machinery of the income tax, for making the other property bear its share with the land in defraying the expense which should fall equally on all income, if it is to be compulsory upon any. But though great relief may thus be obtained, the worst vices of the system are deeper seated, and admit, I fear, but of one cure. As the law is now administered, under the influence of the habits which have unfortunately grown up with the abuse of it, the lower orders look to parish relief no longer with dread or shame; but they regard it as a fund out of which their wants may at all times be supplied. To say nothing of the effects of this feeling upon their habits of industry and economy; to pass over its fatal influence on their character, and especially on their spirit of independence; only observe how it removes all check upon imprudent marriages, and tends to multiply the number of the people beyond the means of subsistence that is, to multiply the numbers of the poor. A young couple who feel inclined to marry, never think now- a-days, of waiting until they can afford it, until they have a prospect of being able to support a family. They hardly consider whether they are able to support themselves. They know that whatever defi- cit may arise in their means, the parish must make up; and they take into their account the relief derivable from this source, as confidently AGRICULTURAL DISTRESS. 287 and with as little repugnance as if it were a part of their inheritance. It is truly painful to reflect, that our peasantry who, some time ago, used to regard such a supply with dread used to couple every notion of ruin, misery, and even degradation with the thought of coming upon the parish should now he accustoming themselves to receive relief almost as if it were a regular part of their wages. 1 can see but one effectual remedy for this great and growing evil; it is the one which follows so immediately from the principles unfolded in Mr. Malthus's celehratcd work. It might be objectionable, on many grounds, to withhold relief from the future issue of mitrriagrs already contracted; but why not such relief be refused to the children bora of marriages to be coniracted after a certain period? An exception might perhaps be made in favour of those who are incapable of working from age, or other infirmity, though 1 know not that it would be better to make their claims a matter of right than an ap- peal to charitable assistance. But persons able to work, and the issue of marriages had after the law is changed, should certainly be excluded. This change would not operate an immediate reform of the system, but the reform would be a perfectly sure one, and it would commence almost as soon as the law passed. If any gentle- man is scared at so great an innovation, I will only ask him to survey the enormous amount and odious nature of the evil com- plained of, and to make his choice between the expedient suggested, and the mischief so severely felt, not, indeed, as it at present exists, but in the still greater extent towards which it is daily hastening. The next point to which I shall beg the attention of the committee, is the means of relieving the land, and indeed the country in general, from the pressure of taxation, which I have shown to have so great a share in the present distresses. That such relief is within our reach, to a very great extent, I hold to be perfectly manifest. The whole sums applicable to the sinking fund for the last year amount to 15,627,000, and including the Irish debt, 16,928,000. Of this the financial operations of IbOS and 1813, have appropriated 4,302,- 000; there remains undisposed of 12,626,000, and the sinking fund on the Austrian and Portuguese loans is 124,000, which makes the whole unapplied fund 12,750,000. Now, of this large revenue, 6,479,000 arises from the one per cent, upon all loans contracted since 1793. It may be thought consistent with good faith to pre- serve this portion of the fund entire; and before such a plan as I am now suggesting could begin to operate, it would amount to about six millions and a half. The remaining part of the fund, including the annual grants and the interest of the other redeemed stock, amounting to 6,271,000, or at the period in question, to about 6,300,000, might I will venture to say, not only without detriment, but with advantage to the credit of the country, be applied to its re- lief in the remission of the most oppressive taxes. If a sinking fund of six millions and a half is left operating ut a time when there are no new loans, it will produce a fur greater effect in the stock 288 AGRICULTURAL DISTRESS. market than the whole fund has ever done during war, when much more stock was constantly poured in than the commissioners could redeem. Indeed, this is too large a fund to remain so applied in time of peace, and could only be justified by the notion prevailing in some most respectable quarters, that good faith towards the lend- ers, since 1792, requires the one per cent, to be left untouched. But for preserving the other six millions and a quarter, no pretext can be urged, especially after the inroads already made upon the fund during war, which have destroyed all idea of its inviolability, in the minds of those who held it sacred. The prospect of the vast bene- fits which might be conferred on the country by such an arrange- ment, is so dazzling that I am afraid to trust myself with painting it. Only let the committee reflect for a moment upon the taxes which might be instantly repealed, supposing always that our expen- ses have been by retrenchment brought within our present revenue. The taxes that press most upon agriculture those on leather, hus- bandry-horses, and malt, might at once be done away. The most oppressive of the assessed taxes might also be repealed. The bad gains of the lottery, by which money is raised directly at the expense of public morals, might be abandoned. In short, we should have the pleasing task, during the remainder of this session, of inquiring what taxes pressed most severely upon the people, or were most pernicious in their effects; and of lightening the burthen to the extent of between six and seven millions. As the remaining part of the sinking fund increased, further relief might from time to time be afforded; for surely it never could be in the contemplation of any one who under- stood the public economy of the country, in its trading as well as finan- cial concerns, that the whole amount of the taxes required by the existing debt should be repealed at once, and the transition made suddenly from a levy of forty-two millions a-year to no levy at all. Nor could any friend to the stability of the constitution wish to see the executive government for any period, how short soever, possessed of that enormous income unappropriated to any service. But they who tell us that the sinking fund is sacred, or rather that it has since 1813, become sacred who will not hear of any proposition for gradually reducing it whom nothing will satisfy but a rise of stocks in a few months to par, the repayment of 100 for every ^C50 or 55 that we have borrowed, and the continuance of all our heavy burthens until the moment when they may all cease together those persons must surely be prepared either to show that the taxes now paying for the benefit of their posterity, are unconnected with the distresses of the present age, or to produce some other means of relieving their country. The question is now at issue between the stockholder arid all the rest of the community, and it is for the com- mittee to say whether they will, at all hazards and costs, take his part, or listen to the only imaginable means of effectually remedying the most crying of the evils we are labouring under. Before I sit down, sir, I must advert to the great importance of AGRICULTURAL DISTRESS. 289 keeping a most watchful eye over the mercantile and manufacturing interests of the kingdom. It is an inexcusable ignorance or thought- lessness alone, which can ever overlook the intimate connection be- tween our trading and our agricultural concerns; nor can anything be more preposterous than the clamour frequently raised on the one or the other side, as if those two great branches of public industry could have interests incompatible with each other. The sufferings of the merchants and manufacturers are hardly less severe in these times, than the distresses which immediately occupy our attention in this Committee. It well becomes us to see that they do not increase under the pressure of foreign competition, since the restoration of peace on the Continent. Whatever measures may tend to open new markets to our industry, the government is most imperiously called upon to entertain. A more effectual relief can hardly be given to agriculture than such a support extended to the other parts of the community. Let me. in this light, entreat the attention of the Committee, and more especially of His Majesty's ministers, to the trade with South America. Connected as we are with the governments of Portugal and Spain, by every tie that can give one power a claim to favour from another, surely we may hope to see some arrangements made which shall facilitate our intercourse with the rich markets of Mexico, Brazil, and Peru. At present, if I am rightly informed, a considerable traffic is driven with those fertile countries, but under trammels that render it irksome and precarious. It is known that no consuls or residents, either commercial or political, are established in Spanish America; and, indeed, the whole trade is liitle better than a contraband carried on under a certain degree of connivance. Yet it is difficult to imagine anything more beneficial to our mercantile interests, than the estab- lishment of a regular and authorized connection with those parts of the world. The subject is not free from delicacy, in consequence of the efforts making by the Spanish colonies to shake off the yoke of the mother country efforts for the success of which every enlightened, indeed, every honest man, must devoutly pray. But wherever the authority of the Spanish and Portuguese governments extends, it may be hoped that some footing will be obtained for our merchants by negotiation, while, with respect to the revolted colonies, I trust his Majesty's ministers will beware how they carry their delicacy towards the mother country too far, and allow other nations to preoccupy the ground which our own countrymen ought to have their share of. The Americans are in the neighbourhood; we know their indefatigable activity and vast commercial resources; let us take care, not that we press forward to exclude them from the markets in question that is impossible; but that we obtain access to those marts for ourselves. It is a subject of vast extent and importance; I abstain from entering further into it; but this I will venture to assert, that the minister who shall signalize his official life by establishing, whether in the old or the new world, such a system as may open to his country the commerce of South America, will lender a greater service to the state, and leave VOL. L 25 290 AGRICULTURAL DISTRESS. to posterity a more enviable fame, than it is in the power of conquest to bestow. Sir, I have to thank the Committee for the patient attention with which they have honoured me. I am conscious that I owe it to the singular importance of the subjects I have been handling; and that, too, is the only apology I can offer for having so long trespassed upon your indulgence. SPEECH MANUFACTURING DISTRESS, DELIVERED IN THE HOUSE OF COMMONS, MARCH 13, 1817. SIR When I consider that the period of the session is well nigh passed, in which it has been the custom of this House, at periods of great public distress, to inquire into the state of the nation, and yet that nothing has been done to bring the subject before us, or to tes- tify, on our part, a becoming anxiety concerning the sufferings of the people, I feel myself supported by this reflection under the magni- tude of the vast question which I have presumed to handle. We have, in truth, allowed the accustomed season of investigation to elapse, without doing anything except what, with all possible respect for the proceedings of Parliament, I conceive to have been beginning at the wrong end. Mistaking the symptom for the malady, we have attempted to stifle the cries of the people in their extreme distress, instead of seeking the cause of their sufferings, and endeavouring to apply a cure. I am, indeed, aware that there are many who differ with me upon this subject, who deemed the late measures of legisla- tion salutary and wise. But whatever variety of opinion might exist upon their merits, I may now appeal to all who hear me, to those who joined me in deprecating and resisting the suspension of the con- stitution, and to those who viewed this frightful step as justified by the necessities of the times, and call upon all parties alike to say, whether the moment is not at length come, when it behoves us to monnt from the effect to the cause of the mischief; and, having done so much to preserve the public peace, whether it is not our duty to search for the means of alleviating the general misery by which alone that peace has been endangered. My very sincere anxiety to give the Parliament an opportunity of discharging this duty, has made me bold to bring forward the present question; too late, I admit, for attain- ing all the objects that might once have been within our reach, but early enough, I would fain hope, to cllect some good purposes. 292 MANUFACTURING DISTRESS. I am aware that there is nothing so injudicious as to begin a discus- sion like this, by hazarding any large and sanguine predictions of its probable result. Nevertheless, I will venture to say, that what- ever difference of opinion may exist upon particular topics, a con- siderable majority of the House will agree in holding, that the period is now arrived when, the war being closed, and prodigious changes have taken place almost all over the world, it becomes absolutely necessary to enter upon a careful but fearless revision of our whole commercial system, that we may be enabled safely, yet promptly, to eradicate those vices which the lapse of time has occasioned or dis- played: to retrace our steps, where we shall find that they have deviated from the line of true policy; to adjust and accommodate our laws to the alteration of circumstances; to abandon many prejudices, alike antiquated and senseless, unsuitcd to the advanced age in which we live, and unworthy of the sound judgment of the nation. I shall begin, sir, by entering upon the fundamental branch of the inquiry, which I am solicitous the House should institute I mean the present aspect of our affairs. Every one is aware that there exists in the country a great and universal distress a distress wholly without parallel in any former period of its history. This, indeed, is unhappily matter of so much notoriety, that I should hardly think it required any particular proof or illustration, were it not that accord- ing to my view of the subject, the extent to which the evil has spread and the peculiar shapes which it has assumed, must be examined, before we can probe its sources or find a remedy. The House will speedily perceive in what way this examination of the fact conduces to the object we all have in view, and will, I am persuaded, give me credit in the meantime, for not leading them into superfluous details. To demonstrate the general proposition, indeed, I might bid you cast your eyes upon the petitions that load the table, from all parts of the empire, from every description of its inhabitants, from numbers infinitely exceeding those that ever before approached us in the lan- guage of complaint. It is in vain to remind us of the manner in which some of them have been prepared for signature. Does any man believe, that a treasury manufactory of petitions, distributing the article through the country with all the influence of government, could procure one column of names to a statement of national pros- perity, or a prayer for liberal taxation? Nor does the ineptness of the remedies which many of the petitioners suggest, impeach the cor- rectness of their tale of distress: they may be very incapable of devising the means of relief they are abundantly qualified to give evidence of the grievance. I might next appeal to the returns from the custom-house, to show the declension of trade. I am aware that these documents give no information respecting the internal commerce of the country, by far its most important branch; and that even with respect to foreign traf- fic, nothing can be more fallacious than arguments wholly withdrawn from such sources. When taken, however, in conjunction with other MANUFACTURING DISTRESS. 293 evidence, they are not altogether to be disregarded. Now, it is shown by a comparison of the years 1815 and 1816, that there was a falling otf, in the shipping employed during the latter year, of 826,000 tons, or nearly 5000 vessels. This fact is the more remarkable, that we were at war during a quarter of 1815, whereas 1816 was the first whole year of peace. These returns speak of the tonnage outwards and inwards; but they tell nothing of the difference between the exports and imports of either year. I will venture to assert, that a much more considerable defalcation will be found in the importation of last year than the mere falling off in the tonnage indicates. I am well aware that many millions of goods have been sent abroad, for which no returns have been received, and which never will produce sixpence to the exporters. Upon this point no custom-house papers can give any information. They cannot show what proportion of the cargoes shipped have found a market what parts have been sold under prime cost what parts remain upon hand unsaleable at any price and what parts of the goods imported are in a similar situation. We have known former times of great national suffering most of us are old enough to remember more than one period of severe public calamity but no man can find an example of anything like the present. In 1800 there was a scarcity much greater than is now felt, but no distress ensued beyond the reach of private charity, and the affliction ended with the bad season; for, though provisions were dear, work was abundant, and the bulk of the poor were enabled to sustain the pressure of the evil. In 1812 there was a much greater distress the dearth was less, indeed, but the rate of wages was far lower. The House well remembers the painful inquiries in which it was then my fortune to bear a considerable part. We were accus- tomed to describe the circumstances in which we found the manufac- turing population of the country as wretched beyond all former example; and the expression was strictly justified by the fact. Yet, compared with the wide-spread misery under which the same classes now labour, the year 1812 rises into a period of actual prosperity. It will be necessary for me, and I hope the House will grant me their indulgence, to go shortly into some particulars touching the great staple manufactures of the kingdom, in order to. show how unparal- leled in its amount, and how various in its kinds, the distress is, which now everywhere prevails. I shall begin with the clothing, a branch of trade which, from acci- dental circumstances, is not so depressed as our other great staples; and for this, among other reasons, that the foreign markets do not happen to be overstocked with this manufacture, while some consi- derable foreign government contracts have given great assistance to several of the clothing districts. I hold in my hand the result of state- ments which I have received from the principal clothing counties of Yorkshire Leeds, Huddcrsfield, Wakefield, and Halifax. Taking the number of men engaged in the branch which suffers most, the cloth dressing, at 3,360 in August last, there were then 927 in full, 25" 294 MANUFACTURING DISTRESS. 1385 in partial employment, and 1048 wholly out of work. Calculat- ing upon the same number, there are now only 757 in full, and 1439 in partial work, while 1164 are entirely idle; that is to say, a third of the whole are idle, and of those who have any work, only one-third, that is, two-ninths of the whole, or two men in nine have full employ- ment. The distress of the other clothiers in this county is far from being so considerable; but in the West of England, I am informed by the most unexceptionable evidence, that it exceeds anything which can easily be conceived. If we now carry our view towards the iron trade, a most gloomy picture is presented; and I may take the state of Birmingham as a fair symptom of this commerce in general, intimately connected as that great town is with the neighbouring counties in all the branches of their industry and commerce. In a population of 84,000 souls, about 27,500 receive parish relief Of the work people, one-third are wholly out of employ, and the rest are at half work. The poor-rates have risen to between fifty and sixty thousand pounds a-year, a sum exceeding, as I am informed, what the inhabitants paid to the income- tax. In 1812, when the House was so greatly touched by the state of this place, only a ninth part of the population were paupers, and the rates did not exceed 27,000, yet we then thought the public distresses had reached their utmost pitch. The people engaged in the iron trade may be divided into four great classes, with reference to my present purpose the miners and others employed in obtaining the raw material the persons employed in manufacturing arms the nailers and the common artificers. The first of these classes, who in 1810 received from ISs. upwards, as far as (wo guineas a-week, get now from 10s. to ISs. the second, who re- ceived still higher, I might say even exorbitant wages, from the demand occasioned by the war, now get only Is. 6d. when they are employed at all the nailers, who are better off than most classes, yet earn no more than S#, or 9s., instead of 12s. or 15s. while the common arti- ficers are working at a shilling a-day. But in all these classes the women and children, who used to earn so much as nearly to double the gains of the able workmen, are not wholly unemployed. Sir, I do not wish to mingle any allusions of a political nature with the de- scription of these sad scenes; but I feel it due to the character and the sufferings of those unhappy persons, to assert (and I do so upon the authority of men who differ with me in political sentiments) that a more loyal, peaceful, tranquil set of people are not to be found within the limits of his Majesty's dominions. It is truly painful to think, that, severe as the distress is in those parts of the country which I have been describing, a yet more melan- choly picture presents itself when we turn to the great staple of the country, the cotton manufacture. This, as the House is well aware, consists of two branches, the spinning and weaving; but, from the introduction of machinery, the numbers employed in weaving are be- yond all comparison greater than those employed in spinning. In Lancashire alone, and the borders of the adjoining counties, there are MANUFACTURING DISTRESS. 295 above half a million of persons who derive their support from the former. Taking the average gains of a thousand weavers, of all ages and classes, their rate of wages was 13*-. 3d. a-week in May 1SGO. In ISQ2 the s>ame persons received the still higher sum of 13s. lOd. In 1806 it had fallen to 10*. 6d.; and in 1S08, alter it had pleased the wisdom of government to "retaliate," as they phrased it, u upon the enemy the evils of his own injustice," and to inllict upon ourselves (as the event proved to such as had not the sense to perceive it) the evils of our own impolicy when we had succeeded in quarrelling with our best customers those wages fell as low as Gs. Id. In 1S12, when the whole virtues of our system had been called into action, and had bestowed the full measure of its beneficence upon our trade, the wages fell to 6.y. 4d. In IS 16, the third year of peace, and while we were slowly moving through that transition of which we have heard (though it seems something of rather a permanent than a passing nature) wages were as low as 5s. 2d. This was in the month of May; and in January last, they had reached the fearful point of depression at which they now stand, of 4s. 3\d.; from which, when the usual expenses paid by the work people for the loom are deducted, there remains no more than 3*. 3d. to support human life for seven days. 13y another calculation it appears, that 437 persons have to provide for themselves and as many more out of 5.9. a-week; making, for the whole subsistence and expenditure of each individual, less than 4\d. a day. When I paused over this scene of misery, unequalled in the history of civilized times, I felt naturally impelled to demand, how it was pos- sible to sustain existence in such circumstances, and whether it were not practicable to administer charitable aid? To the first question I received for answer the painful intelligence, that those miserable beings could barely purchase, with their hard and scanty earnings, half a pound of oatmeal daily, which, mixed with a little salt and water, constituted their whole food. My other inquiry had been an- ticipated by that well known spirit of kindness, not more humane than politic, by which the demeanour of the master manufacturers in this country has ever been regulated towards their workmen in the seasons of their common distress. Projects for alfording them relief had been canvassed; but it was found, that to distribute only a slen- der increase of nourishment, an addition of a little milk, or beer, or a morsel of meat to the oatmeal and water, no less a sum than ^0,000 a-week was required, and at a time when the masters were hardly receiving any profits from their trade. To talk of charity, then, is en- tirely out of the question; the case lies far beyond the reach of private beneficence; and, if it admits of a remedy at all, must look to other sources of relief. Now, what is the consequence of all this, and whither does it in- evitably lead? These wretched creatures arc compelled first to part for their sustenance with all their trifling property, piecemeal, from the little furniture of their cottages to the very bedding and clothes that usefl to cover them from the weather. They struggle on with 296 MANUFACTURING DISTRESS. hunger, and go to sleep at nightfall, upon the calculation, that, if they worked an hour or two later, they might indeed earn three-halfpence more, one of which must be paid for a candle, but then the clear gain of a penny would be too dearly bought, and leave them less able to work the next day. To such a frightful nicety of reckoning are hu- man beings reduced, treating themselves like mere machines, and balancing the produce against the tear and wear, so as to obtain the maximum that their physical powers can be made to yield! At length, however, they must succumb; the workhouse closes their dis- mal prospect; or, with a reluctance that makes their lot a thousand times more pitiable, they submit to take parish relief; and, to sustain life, part with the independent spirit, the best birthright of an English peasant. If from these details we ascend to considerations of a more general nature, and observe certain symptoms, which, though less striking in themselves, are perhaps the safest guides in such an inquiry, we shall find, that nothing is happening around us on any side, which is not indicated by these signs of the times. The first of the symptoms to which Lshall refer is the great diminution that has taken place in the consumption of luxuries all over the country. This is attested by the undeniable fact, that there has been a material and increasing defalca- tion in the produce of the customs and excise, especially of the latter, during the last twelve months. It is well known, too, that those dis- tricts suffered first, and most severely, which depended upon the man- ufacture of luxurious articles. Every one is familiar with the case of Spitalfields. The poor of that neighbourhood, after having exhausted the whole rates, have received from voluntary contributions, reflecting the highest honour upon the charitable and liberal character of the metropolis at large, sums, which, added to the rates, exceed the whole income of the parish at rack rent. In like manner the levies of Co- ventry and its neighbourhood have increased beyond all former exam- ple. It appeared, when the petition from thence was presented, that one estate of 200 acres paid ^6400 in rates. A singular instance, illus- trative of the same position, with respect to the country generally, was stated by my honourable friend the member for that city,* and, through his courtesy, I have this evening seen a more minute account of it than he then gave. A person belonging to the place has been accustomed for many years to travel over a great part of England, selling watches. He visits, in his circuits, 283 cities and towns, and he used commonly to dispose of about 000 watches. Last year, making precisely the same round as usual, he only found purchasers for forty-three. Perhaps, when we consider the variety of classes who use watches, and the extent of the space over which this diminution operated, it would be difficult to imagine a stronger symptom of the decrease in demand for luxuries. The watch trade in London has suffered in an equal degree. The statements recently published show, that there are 3,000 journeymen out of employment; that those who Mr. P. Moore. MANUFACTURING DISTRESS. 297 are in work have been earning for the last three months one-fourth of (heir usual gains; and during the last month only one-sixth; while their property has heen pledged to the amount of 1,600, in three- quarters of a year. If I am not misinformed, other trades in the me- tropolis suffer in a like proportion. It is said that 2,000 of the 18,000 journeymen tailors in Westminster are wholly destitute of work. I lake the great discontent excited throughout the country by the introduction of new machinery to be another symptom, and a most unerring one, of the present distress. Formerly when the invention of any piece of mechanism for abridging manual labour occasioned an alarm among the working people, it was partial and transient. Those who were thrown out of employment speedily found other channels of profitable occupation, the population disengaged by the new machine were absorbed, with their industry; and in a short time the traces of the change disappeared, except that its beneficial effects upon the capital of the country soon created a greater demand for labour than existed before the invention, lint now the case is widely different. The petitions, which night after night are presented to us by thousands and tens of thousands, complaining of machinery, testify, that when workmen are flung out of one employment they can no longer find others ready to receive them; and that the capital saved by the abridgement of labour can no longer produce its healing effect. When Sir R. Arkright invented the apparatus which lias proved of such benefit to this country, though it deprived many thousands of their livelihood for the moment, yet no particular discon- tent was excited. I have obtained from two of the greatest cotton- spinners, in both parts of this island, an estimate of the saving in manual labour effected by that machinery; and as both concurred in stating, unknown to each other, that by means of it one man could do the work of a hundred, I may assume the calculation as pretty near the truth. So considerable a shock to the labouring population pro- duced scarcely any discontent. The case is so different now, when the smallest improvement is made in the means of economizing hu- man power, that I hardly know whether to rejoice or be sorry at any such change. There has of late been a considerable accession of mechanical power in the weaving trade; and though it cannot operate like the spinning mills, yet it bids fair to throw numbers out of work, and destroy even the scanty pittance at present gained by a great number of those wretched individuals, whose hardships I have been describing to-night I allude to what is called the Power Loom, by which one child is enabled to do the work of two or three men. Hut the House will hear with surprise and vexation, that mechanical im- provement has, as it were, reached its limit; an unexpected impedi- ment has started up to check its further progress. It is now found, for the first time in the history of mankind, so low arc wages fallen, so great is the pressure of distress, that manual labour is making re- prisals on machinery, standing a successful competition with it, boat- ing it out of the market, and precluding the use of an engine, far from costly in itself, which saves three labourers in four. The farther imro- 298 MANUFACTURING DISTRESS. duction of the power loom is actually stopped by the low rate of weaver's wages! There are, however, other branches of industry, as the printing and lace trades, which have been lately threatened, if I may so speak, with the competition of new mechanism, and of such powers as not even the miserable wages of the day can be expected to resist. The last symptom of distress which I shall mention, is the state of the money market. I am aware that there are some who view this subject in a very different light. 1 know not if the right honourable the Chancellor of the Exchequer concurs in the opinion recently de- livered from high authority in another place, no less than that of the first minister of the country, and the person at the head of its finances. That noble lord is reported to have drawn the most favourable augury from the late rise of the funds, which he ascribed, by some process of reasoning not very easily followed, to the suspension of the Habeas Corpus act. However injurious this measure may prove to the con- stitution, it seems we are to regard it as highly favourable to trade. Now, suppose I were minded to turn the tables upon the noble lord, and bid him look at the still greater rise of the stocks after the report of the committee appointed to examine the contents of the Green Bag. That famous document first unfolded the existence of the Spen- cean plan, and was calculated directly to bear upon the funds; be- cause, according to the true faith of that great sect, though the land- holder is bad, and fit to be despoiled, the fundholder is " a monster, and must be hunted down." So says the report, yet the funds arose upon its appearance; from whence I might argue, if I chose to adopt the ground of the first minister of finance, that the fundholders one and all disbelieved in the existence of the plot. I will not, however, take this advantage of the noble lord, by following his own example. I am satisfied with drawing, from the state of the stocks and the money market generally, inferences more naturally connected with the subject, and in favour of the view I have already of public affairs. It is well known, that there exists at present a facility of obtaining discounts at 4 and 4 per cent, on bills of short dates, which even a year ago were not to be procured at a much higher premium. Stocks, too, have risen; they are 10 per cent, higher on the nominal capital than they were a few months since. Exchequer bills, after two seve- ral reductions of interest, leaving the income upon them at only 83 per cent., still bear a premium. What does all this prove? If I saw that there was any proportionate facility in obtaining loans upon land at 5 per cent., that is, upon the best security our law affords, I might be inclined to pause before 1 ascribed the state of the money market to a glut of unemployed capital. But hitherto none of this capital has overflowed upon the land; and the fact is unquestionable, that there is much money in the market of stocks, floating debt, and discounts, only because there is little or no employment for it in trade, and because no capitalist chooses to put his money beyond his reach for more than a few months, in the expectation that commerce will revive. The want of employment at home has a tendency to drive capital abroad; MANUFACTURING DISTRESS. 299 and signs of this emigration have already manifested themselves in the negotiation of loans with foreign powers. One transaction of this nature has already been concluded with France; and undoubtedly the greater part of the money to be advanced in the course of it will come from the capitalists of this country. America is said to have two speculations of a similar description going on at the present mo- ment in the city. Respecting one of them I have heard some particu- lars; and it resolves itself into a stock operation, the object of which, is the application of British capital to the support of the American funds. How indeed is it to be supposed, that capital should not find its way abroad, when, on the other side of the channel, it fetches in the public stocks nearly double the interest given by our funds, and much more than double the interest paid by our floating debt? The state of foreign exchanges with this country I shall at present only glance at cursorily, because I venture to assure the House, that, be- fore I sit down, if I do not altogether fail in stating the views I enter- tain of another branch of the subject, I shall be able to demonstrate the necessary connection between what is called a favourable rate of exchange and the depression of foreign commerce. That rate is in fact only another proof of the unnatural state of our trade; it is the immediate result of forced exportations, with scarcely any importa- tion in return. Thus it happens, that when goods have been sent to any part of the continent, from whence nothing can be brought back, in order to remit the produce of the sales, there is a demand for bills; but there being no transactions ending in this country, and no real bills, fictitious drawing is resorted to, until the pound sterling is raised to a height above par, very favourable indeed to those who spend money abroad, but wholly useless to traders, who can buy nothing there to sell again in this country; a height, too, which it cannot re- tain as long as there is bullion to send over, and which, when pro- perly understood, indicates the existence of a traffic unnatural and necessarily short-lived exportation without imports. Sir, when such is the unparalleled state of embarrassment under which two of the great branches of national industry, commerce and manufactures, labour, it would be in vain to expect that any material or permanent improvement should take place in that which is the ultimate source of all wealth and prosperity, and is intimately con- nected with every other employment I mecin our agricultural. If we hear less at the present moment of the distresses of the landed interest, it can only be because the consumption of the foreign grain, which last year oppressed the markets, and the measures adopted by the legislature to shut out this competition, have been aided by a scanty crop, and have raised the price of corn. Those districts where the harvest has been tolerable are therefore comparatively well oil'; whereas last year the sulfering was universal; but wherever the crop has been a failing one, that is, in the grenier part of the country, the high price is by no means a compensation for the deficiency and the poor-rates. I have therefore no manner of doubt, that the land is, generally speaking, worse oft' than before. It is indeed a vain and 300 MANUFACTURING DISTRESS. idle thing to take distinctions between the different orders of the country, and to speak of the agricultural and mercantile classes as if they had opposite or even independent interests. They are all inti- mately and inseparably connected by the eternal nature of things; they must for ever run together the same course, whether of progress or decline. I will give you, on this matter, the words of a man who, having by his honest industry become the greatest ornament of the one order, made himself, by the fruits of his honourable gains, a dis- tinguished member of the other, and afterwards rose, by his sagacity and experience, to adorn also the literature of his age. " Trade and land," says Mr. Child, "are knit each to other, and must wax and wane together; so that it shall never be well with land but trade must feel it, nor ill with trade but land must fall." The House will feel how much less difficult it is to describe the extent and intensity of the prevailing distresses, than to trace the various causes which have concurred in producing them, and to sepa- rate those portions of the evil, which arise out. of temporary circum- stances, from those which have gone on increasing with a slower growth, deeply rooted in the system of policy that has been established amongst us, or at the least closely interwoven with it. But I should not deal fairly with the House, if I did not thus early state my opi- nion as to the nature of those causes generally: it is founded upon the universal extent and the great variety of the distresses which I have been describing; and my principal reason for entering so largely into that description was, not certainly because it required any such evidence to prove the miserable condition of the country, but because, from the universality in which the pressure prevails, I deemed the inference to be unavoidable, that it springs from causes of no tempo- rary nature. It is quite true that a transition from war to peace must always affect several branches of public wealth, some connected with foreign, but a greater proportion with domestic trade. Thus two departments of industry have suffered severely by the cessation of hostilities; the provision trade of Ireland, through it also, the cattle market of this country; and the manufacture of arms at Birmingham. The distress arising from the peace in those branches of commerce may be temporary; if all the other channels of trade unconnected with the war were open, it certainly would be temporary. But when we find the depression general in all lines of employment, as well in those uninfluenced by the war demand, as in those wholly dependent upon it; when we see that hands thrown out of work in one quarter can no longer be absorbed into the other parts of the system: when there plainly appears to be a choking up of all the channels of in- dustry, and an equal exhaustion in all the sources of wealth we are driven to the conclusion, that the return of peace accounts at the utmost only for a portion of the sad change we everywhere witness, and that even that portion may become permanent from the preva- lence of the evil in quarters not liable to be affected by the termina- tion of the war. I have shown you, that the cotton trade, wholly unconnected with the war, is more depressed than the iron trade in MANUFACTURING DISTRESS. 301 general, and to the full as much depressed as the very gun manufac- tory at Birmingham. I am entitled to conclude, first, that the tran- sition from war to peace has not produced all the mischief; and next, that the mischief which it has produced might have been got over, as in former times, if it had been the only one which oppressed us. Sir, we must once for all look our situation in the face, and firmly take a view of the extent of our disease. It is not of a partial de- scription; it is of general prevalence; it is of a searching nature; there is no channel of our whole circulation into which it has not worked its way; no fibre or filament of our whole economical system that does not feel its deadening influence; not one limb has been hurt, but the whole body is impaired in the exercise of all its functions. Can we expect it all to heal and revive of itself, and in a short time? I need hardly remind you, that we are now approaching the fourth year of " transition," and still no relief, no mitigation; on the con- trary, we experience an increase of our calamity; whilst every one knows, that in less than half the time, from the end of all former wars, a complete recovery was effected. I shall therefore endeavour to describe what, after all the attention that I have been able to give the subject, appear to me the real causes of the unnatural state in which every man must admit the country is placed. I must entreat the House impartially to fix their eye upon the line of policy, which for many years past has been adopted by the public councils of the country. In referring to it, I shall as much as possible avoid the more debateable grounds of the commencement and conti- nuance of war, and keep to points upon which I believe a very little explanation will preclude the possibility of any considerable differ- ence in opinion. It should seem that those who style themselves the practical politicians of this country (because they are the dupes of a theory as visionary as it is absurd) have long been surrounded by a class of men, who, blending with what is termed true mercantile knowledge, much narrow-minded, violent, national prejudice, or, as they call it, genuine British feeling, assume to themselves the style and title of the "sound statesmen," and certainly do in good earnest exert a real and practical influence over the affairs of the nation. With these sage instructors of almost every administration (and they are generally found united in place with their pupils, and knit to them by the endearing reciprocity of good offices), it is a maxim equally sacred and profound, that too much can hardly be done to discourage im- portations of all kinds and from all countries. The old mercantile system has long been exploded; but these wise personages, having been born and bred up in it, seem to have caught hold of its last plank, to which they slill cling with all their might, perpetually con- ning over its grand motto " All trade, and no barter, all selling, and no buying; all for money, and nothing for goods." To support the remnants of a doctrine universally abandoned in every enlightened country, all means are resorted to, fair and foul; for in defence of their favourite creed, these sound advisers betray a morality far from rigid or scrupulous. The theory itself is repudiated, and its very VOL. i. 2(i 302 MANUFACTURING DISTRESS. name disowned by all who have received a liberal education. No man is to be found hardy enough, no one so careless of his reputation for common sense, as even to use its language. How long is it since the "soundest" politician among us has ventured to speak, in public at least, the jargon of the balance of trade? Yet, marvellous to relate, the practical results of this extirpated heresy are interwoven with our whole commercial policy; and, though the nonsense, and even the dialect of its tenets are rejected of all men, <hey are disguised in legal phraseology, embodied in efficient regulations, and may be traced in broad characters through every volume of the statute book down to the last. Year after year we have proceeded under the auspices of our wholesome, practical, sound, national statesmen, until Ave now find ourselves, as might naturally be expected, deprived of most of the great staples of foreign commerce. In mentioning a few instances of our obligations to these sagacious councillors, I must say a single word upon the corn bill, which, strictly speaking, comes within the class of measures I am alluding to. To the opinion, which I originally entertained upon that law, I still adhere. I feel now, as I did then, that its first effects are injurious, by cutting off a great article of foreign trade; but I look for an ample compensa- tion of that injury in advantages of a higher nature; the ensuring a regular, a safe, and ultimately a cheap supply of the great necessary of life, which no change of foreign policy, no caprice of hostile govern- ments, can impede or disturb. It may also be admitted by those who disapproved of the measure as a permanent branch of our policy, that the circumstances of the times justified its adoption as a tem- porary resource. At any rate, we resorted to it, not as the only pro- hibitory law in our commercial code, but while almost every branch of trade was struggling in the fetters of the restrictive system. We approved of it for special reasons, many of them temporary in their nature; and regarded it as an exception justified by those reasons, and by the unnatural state of our whole polity. The doctors of the mer- cantile school jumped at it as a part of their scheme, and as coincid- ing with the numberless trammels which they had devised for com- merce in all its departments, and the removal of which might very possibly alter our whole opinion upon the corn bill. Let us only cast our eye over a few of those regulations. I shall first request the attention of the House to the exploits of these sages in the Baltic trade. That branch of commerce has always been deemed highly important, both to our shipping and our mercan- tile interest; both with a view to defence and to gain. Its short voyages make it an excellent nursery for seamen; its quick returns are highly favourable to profit. Circumstances, which I need not enumerate, render it a peculiarly secure and steady kind of traffic. Yet, of the four great staples of the Baltic trade, two, including the greatest of the whole, have been cut off. We still receive hernp and tallow; but we have prohibited the importation of iron and timber. And to what views have we sacrificed this important market for our own goods? To encourage ruinous speculations in this country, we MANUFACTURING DISTRESS. 303 imposed a duty upon foreign iron amounting to a prohibition; while, to force the importation of inferior timber from our North American colonies, that is, to gratify the Canada and shipping interests, always highly favoured by the school of the practical and right honourable gentleman opposite,* we excluded the greatest staple of the Baltic. Instead of leaving the adventurers in mines to their fate, suffering them to thrive if they could by their natural resources, we encouraged them, by extraordinary stimulants, in a pursuit, which sound policy would rather have discouraged; a precarious, gambling, and upon the whole a losing concern to the country. Mark the consequences of this system. We used to export 400,000 or 500,000 of our manu- factures annually to Norway: that vent, I understand, has now ceased, Norway having no other means of making payment but the iron and the timber, which our modern practitioners of antiquated wisdom have seen good to exclude altogether. Canada, for whose sake the sacrifice was partly made, no doubt, still remains ours, in spite of all the pains we took to lose it; but there is no part of this country at present so dis- tressed as the mining districts of Wales. A similar prohibition of foreign copper has cut us off from one of the principal articles of South Ameri- can produce. It is not many days since some conversation took place respecting an act of last session, which imposed protecting duties on foreign butter and cheese. I then expressed my repugnance to any extension of that protection; and I will now mention a fact within my know- ledge, both to show how dangerous this sort of legislative interference is in a vast, complicated, and delicate commercial system, and also to demonstrate how little a high rate of exchange indicates a thriving trade. The instant that those duties were imposed, as true as the pulse keeps time with the stroke of the heart, foreign exchange rose, as it is called, in our favour two or three per cent. A branch of our importation was lopped off: it became more difficult to remit from abroad, in the first instance, and consequently must have become pro- porlionably more difficult to send goods thither immediately after; our whole foreign trade was sensibly diminished, and by the very ope- ration which raised the exchange, and in exact proportion to its rise. So much for the quick effects of the operations in which these sound personages delight; so much for the accuracy of the symptom which they consult as infallible in pronouncing upon the state of commerce! The same perverse views have long regulated our commercial inter- course with France. Partly from mercantile views, partly from feelings of a political, and almost of a religious nature, there are many amongst us, who have laid it down as a principle, from whence they hold it nearly impious to depart, that as little wine as possible must be taken from France. Although that fine country is our nearest market, and ought to be our best customer; although the vine is its chief produce, and its wines are allowed by all to bo the best, by some considered Mr. Rose. 304 MANUFACTURING DISTRESS. as the only ones drinkable: yet their importation is to be avoided be- cause France is our natural enemy, and Portugal our dear, and indeed costly friend. In the true spirit of this creed, the Chancellor of the Exchequer some time ago laid a new duty upon claret, not with any view to revenue, but, as he himself declared, in the technical lan- guage of his sect, with the hope of discouraging the use of French wines, upon principles of a political nature. It may, for anything I know, be in the contemplation of this class of statesmen, a mark of comprehensive policy in a manufacturing country to refuse those arti- cles which it wants the most and likes the best, and which alone enable a trade with its best customer to be kept up. But if I may be allowed to speak as a trader, availing myself of the flattering compliment bestowed upon me last night by the worthy alderman,* and to proceed on the suggestions of common sense, I should regard such conduct, not as the result of sound policy, or of any policy at all, but as dictated by prejudices bordering on insanity. But it is somewhat melancholy to think that worse blunders remain untold. The conduct pursued with regard to the linen trade very considerably surpasses all that I have mentioned; for it has been as directly in hostility to the favourite principles of the mercantile school as to the interests of the country. That school has always patronized the carrying trade in an especial manner; and I believe I may assert, that no branch of it was ever more productive than the transit of foreign linens; yet upon this we began, and never stopped until we had imposed a duty of fifteen per cent, upon all linens imported and re-exported. If I am asked to explain why we did so, I cannot; for here the wit of man would in vain search for anything like a reason. But I can tell what the ministers thought they were doing all the while. The fact is, that many nations prefer foreign linens to our own; and they used to buy those linens here. We saw this, and said they should not have them; so to legislate we went; resolved, that an act of Parliament should pass the two Houses, and should then receive the royal assent, as requisite to make it binding upon the taste of foreign countries, which we expected would be changed to please us the instant that the solemnities of legislation were completed, and the accustomed words from the crown pronounced. What has been the consequence? Those nations who formerly repaired to British markets, laid in their investments of foreign linens, and at the same time completed their assortment in British goods, (the foreign linen operating as a kind of decoy, from the convenience of finding all their cargo in the same place) all at once ceased to visit our ports. They were unmannerly enough to disregard our law, although it had been passed with every one of the accustomed formalities; they took their course to Hamburgh, Amsterdam, and Copenhagen, where they could get the foreign linens somewhat cheaper than we ever sold them. This latter advantage they had always disregarded, consider- ing the opportunity of conveniently completing their assortments of * Atkins. MANUFACTURING DISTRESS. 305 British articles as a compensation for it; but the transit duty was much greater than the trade could bear; it proved, as indeed it was meant, a prohibition; only that the contrivers of it, who did not mean to drive the purchaser to a foreign market, forgot that they had no means of keeping him in one where they would not sell him what he wanted. They forgot, too, that his departure not only destroyed the transit trade, but the trade in British goods connected with it and now transferred to foreign countries. The House, no doubt, must be prepared to hear, that this scheme of perverse and short-sighted folly is not of yesterday. It betokens so slow a state of information, so gross an ignorance of the subject, so senseless a disregard of the most obvi- ous principles, that every one will readily conjecture its origin to be lost in antiquity. At all events, it must have been invented prior to the date of the mercantile system, itself now exploded; for nothing can more clash with the doctrine of promoting the carrying trade. Then what will the House say, if it is less than a century and a half since this notable law passed? What if, after ages of experience, after the full knowledge imparted by the multiplicity of events and changes crowded into the last twenty years what if this statute was deliberately passed not longer ago than the year 1S10, under the auspices of the present ministers! What if, no farther back than last year, Parlia- ment were induced by them to decline revising this piece of nonsense, and expunging it from the book! Sir, these are indeed things, which it requires the evidence of all our senses to make us believe. But if such be the groundwork of our commercial system, there can be little difficulty in comprehending the mischiefs that must sooner or later flow from it. There are numberless other instances of the same policy, which I might detail to the House. I might speak of the duty upon the ex- portation of coal, amounting at ordinary prices, to seventy per cent.; but for which, that article might find a ready market in France, pro- vided we agreed to take French goods in return. Here, indeed, we may be said to act inconsistently; for, when we refuse to receive the produce of a country, it seems natural enough, though perhaps it is superfluous, to prevent ours from going thither. We are not, how- ever, so consistent in all the branches of this system. While we protect agriculture in some respects, we allow the importation and prohibit the export of wool. This deviation from the general rule is professedly to encourage manufactures, by denying to foreigners the use of the raw produce; yet cotton twist is allowed to go abroad, though it is in the first stage of manufacture: and one should think it full as easy for the continent to grow long wool as to erect spinning mills. The arrangement of the silk duties affords matter of similar observation; but I abstain from leading the House into farther details. I think I may venture to assert, that, taking all things into the account, the lime is now arrived, when (Fie circumstances of our situation im- periously demand a full and unsparing review of the whole com- mercial policy of this country; and not only the branch of legislation 26 306 MANUFACTURING DISTRESS. which bears a more immediate reference to trade, but the navigation law itself requires the same prompt and accurate revision. Whether I consider that system with a view to national defence, or to commercial wealth, I feel persuaded, that no time should be lost in at least relaxing the rigour of its provisions. Many speculative writers have maintained, that it was from the first a sacrifice of wealth to security; but I am disposed to admit, that it was originally calculated to promote both these objects. I think it may fairly be allowed to have hastened, by half a century, an event which must sooner or later have happened the transference from the United Provinces to this country of a large portion of trade, which, though naturally belonging to us, had been attracted by the peculiar advan- tages which enabled the Hollanders to possess themselves of the commerce of all other nations. But whatever may have been the good policy of the navigation law, I am quite clear, that we have adhered to its strict enactments a century after the circumstances which alone justified its adoption had ceased to exist. What is now passing in the colonies affords a striking illustration of its impolicy in the present times. Whether in consequence of orders from home, or of the views entertained by the local governments, the navigation law is enforced, it seems, with unusual strictness, a stop being put to the licenses granted under the intercourse act for importing provisions in foreign bottoms. What course does America pursue to meet this protecting measure? She says, as you will not suffer us to supply your settlements, in any vessels but your own, with those articles of which they stand so much in need, that they may starve for want of them; we "retaliating on your head the mischiefs of your own policy," forthwith shut our ports against all vessels coming from ports from whence you exclude ours. This is the substance of a bill lately before congress, now passed into a law. I have in my hand a copy of it, which has just arrived; and I know that the greatest alarm has been excited by it in our West India colonies, as well as among all who are connected with onr North American fisheries. Here is a striking specimen of that obstinate, perverse system, that refuses to vary with the alteration of circumstances; that will not accommodate itself to the progress of events, or follow the course of times and seasons, but clings superstitiously to what is now inapplicable, though it may once have been important; as if time were standing still, and history were not the record of unceasing change. Surveying, then, the derangement which pervades every branch of the public economy; seeing how our trade is cramped by the short- sighted operations of an unenlightened and senseless policy; finding what trifling relief, and that little accompanied with serious obstruc- tions, it has derived from the prosperous condition of onr foreign affairs; we may assuredly affirm, that there never was a period in the vicissitudes of our fortunes, when British commerce might, with so much truth, be said to labour for its existence. Casting our eye over every point of the compass, and scarce able to descry any from which MANUFACTURING DISTRESS. 307 a solitary ray of comfort or of hope breaks in, it is natural for this House, to whose hands the sum of affairs is committed for our un- fortunate brethren, suffering under distresses that baffle description, after bearing us, by their industry and their patience, through the late eventful struggle for the whole population of the empire, exhausted by the drains of a protracted warfare, weighed down by the pressure of the intolerable public burthens which it has accumulated, and now cut off from the temporary relief which the unnatural monopoly of that war afforded it is, I will say, but natural and reasonable for us all to direct our expectations towards any untried resources, any new opening that may present itself to the industry of the community. There can be no field of enterprise so magnificent in promise, so well calculated to raise sanguine hopes, so congenial to the most generous sympathies, so consistent with the best and the highest interests of England, as the vast Continent of South America. He must indeed be more than temperate, he must be a cold reasoner, who can glance at those regions, and not grow warm. The illustrious historian* who has described the course of their rude itivaders, relates, if I mistake not, that when, after unparalleled dangers, amid privations almost insupportable, through a struggle with sufferings beyond endurance weary, hungry, exhausted with the toil, scared at the perils of their march, they reached at length the lofty summits so long the object of their anxious enterprise, they stood at once motionless, in gratitude for their success, in silent amazement at the boundless ocean stretched out before them, and the immeasurable dominion spread beneath their feet, the scene of all their fond expectations. And now the people of this country, after their long and dreary pilgrimage, after all the dan- gers they have braved, the difficulties they have overcome, the hard- ships they have survived, in something like the same state of suffering and exhaustion, have that very prospect opened to their view! If any sense of justice towards them, any regard for the dictates of sound policy, any reverence for the real wisdom of past ages has influence over our councils, they must bo enabled and invited to approach that hemisphere, and partake in the numberless benefits which flow from such an intercourse. Upon our good pleasure it depends to command the virgin resources of that mighty expanse of territory variegated with every species of soil exposed to all the gradations of climate rich from the fallow of centuries sufficiently peopled to raise every variety of the produce we want, yet too thinly inhabited to threaten our own industry with any rivalry watered in all directions by seas rather than rivers studded with harbours through which to distribute its wealth over the Old World and the native country of thai where- with the sect of practical politicians are best pleased, and their patron saint propitiated, gold and silver mines, already fruitful, but capable of yielding infinitely larger returns under the management of European skill. Such is the prospect which those vast regions unfold; a prospect sufficient to compensate every los-s you have sustained; an adequate * Robertson. 308 MANUFACTURING DISTRESS. outlet for your mercantile enterprise, though Europe were once more hermetically sealed against you; though Buonaparte were restored, and his continental system (as indeed it is) revived: even though Eu- rope itself were, for commercial purposes, blotted from the map of the world. Nor let any man suppose, that all this is the indulgence of a heated fancy: I rest my expectations upon a careful examination of facts, derived from authority altogether unquestionable. Some of these I shall state, for the guidance of the honourable gentlemen op- posite; because I well know, that some folks will listen to nothing which does not come in the shape of a detail. The exports of Spanish America cannot amount to less than eigh- teen millions sterling in yearly value. Humboldt, the justly celebrated traveller, states them at thirteen and a half millions, from the custom- house returns in Old Spain: he reckons the exports of Buenos Ayres at 800,000 of that sum, whereas, on the spot, they are reckoned at 1,150,000: we may therefore assume that there is a similar defi- ciency in the other sums indicated by those documents, which would make the whole exportation worth eighteen millions, and one-third of it is from Mexico. It appears from official returns, indeed, that Cadiz imported from South America, in the year 1S02, to the amount of eighteen and a quarter millions,'of which twelve and a quarter mil- lions were in bullion, a trade pleasing even to the gentlemen opposite; though I must confess the remaining six millions were only composed of goods, and I therefore ought to mention this sum with considerable diffidence. Before the late troubles, the annual coinage of Spanish America was nine and a half millions sterling, and it had trebled in half a century. The population of the country is about seventeen millions, including all classes; and it is estimated, that only one person in three wears foreign manufactures. This is probably considerably above the truth; for of the seven millions who inhabit Mexico, only one is understood to wear those goods; the rest using a wretched stuff of home manufacture, only recommended by its cheapness; for, ac- cording to the remark of a native writer, England is there held to have taught them by her wars how to make their own clothes. What an opening does such a country afford for our goods! There exists no want of means to buy them, if the trade is so far facilitated as to afford them at reasonable prices; and if any proof were wanting how far the taste for using them might be introduced by opening the ports, the speculations at Buenos Ayres abundantly supplies it; for, though injurious to the projectors, that traffic has certainly had the effect of diffusing among the natives an inclination to use British manufac- tures. If the southern continent generally were opened, it would infallibly take, not only a larger quantity of them than has ever yet been sent thither, but a swiftly and regularly increasing quantity, which would in a short time leave the imagination behind that should try to calculate it. With scenes such as these inviting our approach; with all the pre- possessions of the natives in our favour; calling upon us to sacrifice no principle or propriety of conduct, but only to bless them with com- MANUFACTURING DISTRESS. 309 merce and with the light of our superior civilization, in return for the treasures which they are ready to pour into our lap: whence comes it to pass, that, in a season of such pressure in all other quarters, this splendid theatre of exertion has been overlooked or avoided? It is the new-fangled, the execrable doctrine of legitimacy, the love of Ferdi- nand the Seventh, that has cut England off from her natural connec- tion with South America. In the hour of our greatest need we have sacrificed the certainty of relief, nay the brightest prospects of new prosperity, to the antiquated prejudice against colonial independence, the political caprice of making common cause with the mother country in her endeavours to extinguish the new-born liberties of settlements, now, thank God, in spite of Old Spain and of ourselves, almost severed from her tyrannical dominion. But for these humours, so senselessly gratified, our flag might have floated in every part of that immense continent. We have chosen to be supplanted by a nearer power; a power as active and skilful in speculation as ourselves, and wholly free from the incumbrance of those political attachments and antipa- thies, which so lamentably fetter our commercial enterprise. Only see the course into which these doctrines, or prejudices, have driven us. In 1809, we concluded what is commonly termed Admiral Apodaca's Treaty, acknowledging the dominion of Spain over the Indies, in terms which seem even to imply a guarantee of her dominion. An article was added, which bound the parties, as speedily as possible, to conclude a treaty of commerce; but nothing whatever has since been done towards the fulfilment of this stipulation. In 1814, after the conduct of Ferdinand had called forth, not certainly the applause of all enlightened minds in all countries, it pleased our government to make a convention with him, binding this country to everything short of guarantee, and expressive of deep anxiety for the subjugation of those whom I call the independents, but whom the treaty stigmatized as revolted subjects of our dear ally. In vain have the various pro- vinces of South America, successively, as they threw off the yoke of Spain, courted our notice, and offered us the highest commercial ad- vantages in return. As often as the popular party obtained the ad- vantage in any place, the ports were thrown open to our trade, the residence of Englishmen protected, all intercourse with them cherished. If ever the patriots were unhappily defeated, if the "anxious wishes" were gratified, which the convention expresses, on the part of this country, for the restoration of the legitimate tyranny, straightway the ports were shut against us, and our countrymen would no longer trade, or remain under the dominion of our favourite ally. We were offered by the revolted, as we call them, in Venezuela and New Gre- nada, an exclusive trade for twenty years; and their congress, be- hoving (I use their own words) "that it is the characteristic disposi- tion of Great Britain to protect and assist oppressed people, for the sake of justice and humanity," vainly fancied their cause might he favourably viewed by us. The legitimate lieutenant of the cro\vn, Montalvo, subdued them for a while, and instantly proclaimed what he called " the wise and salutary regulations of the Council of the 310 MANUFACTURING DISTRESS. Indies," recited the services rendered by the Phillippine Company to trade (of all things), and restored its exclusive monopoly, to be en- forced with additional rigour. In 1816, General Bolivar made offers of the most advantageous nature, when on his way to battle for the independence of the Caraccas, which I trust in God he has before this time achieved. All such propisitions were rejected seldom honoured with an answer always treated with contempt or aversion. We were for the party of the oppressor we wished ill to freedom for its own sake, and out of the love we bore its enemy, notwithstanding the advantages we might reap from doing our duty, and helping its struggles. But even this bad policy has been pursued in a wavering, irresolute, and inconsistent manner. We have sent a consul to Buenos Ayres, where he did not present his credentials until the pa- triots had succeeded; he now resides in his public capacity, transacting business with the independent government. But no one other com- mercial or diplomatic agent has been sent to any part of Spanish America, and even at Buenos Ayres, the blockade imposed by the royalists of Monte Video, a few years ago, was enforced by a British man-of-war. The long-established contraband trade with the Main is still encouraged, at least protected, in Jamaica. In Trinidad every impediment is thrown in its way; the councils of the government are influenced by an assessor, who retired thither after the, massacre of the independents in Caraccas, where he had been a principal adviser; proclamations are issued, prohibiting, under the highest penalties, the sending, not only of arms, but of money, to the continent; and severe measures have been adopted towards the refugees of the independent party. These measures have produced their natural effect; and I un- derstand that the principal articles of importation from the Spanish Main have almost doubled in price. I entreat the House farther to recollect, that the same treaty which bound our government to prevent all succour from being given to the patriots, bound Ferdinand to abolish the Slave Trade. We have more than performed our part of the compact he neither has taken, nor has the slightest intention of taking, any one step towards fulfil- ling his part. I do not contend that we ought to make war upon hirn for the failure; but I think we have some right to have it explained; and I am clear, that, if he persists in his departure from the stipulation, we are set free from our part of the contract. That we should ever desire to recede from it is more than I can expect; for hitherto we have done much more than we bargained in his behalf and against the patriots. So bigotted are we to his cause, that I have read a me- morial, presented to His Majesty's government by three respectable merchants, who, having come to this country from Buenos Ayres upon commercial business, and having finished their arrangements, were ready to sail on their return homeward, when they were stopped by an order from one of the under Secretaries of State, refusing them leave to proceed, until they should also obtain the Spanish ambassa- dor's leave! Here is one of the fruits of that blessed measure the Alien Act; and a striking proof how soundly those reasoned against MANUFACTURING DISTRESS. 311 it, who urged that it would be used as a political engine for gratifying the caprices of foreign courts. The treaty, you will observe, only binds us to give no assistance to the patriots in warlike stores. The Trinidad proclamation threatens with banishment, confiscation, and imprisonment, all who shall send money. The direct stipulations only engage for neutrality; the preamble expresses the warmest good wishes for the success of the tyrant, while it insults the patriots with the name of revolters. lint, as if we were resolved to go beyond both the spirit and the letter of this convention, to testify, by every possible means, our hostility to the cause of the Spanish colonies, and onr anx- iety to extinguish their rising liberties, the British Minister to the Uni- ted States has been charged, in Congress, with a formal interference to prevent American citizens from sending arms and ammunition to the patriots; and no denial whatever has been given to the statement. I ask the Commons of England, if they are prepared to patronize councils so repugnant at once to the character and the interests of their country as those which, having excluded our trade from the marts of the Old World, deny it a vent in the New, for fear such an intercourse might aid the cause of human freedom, and give umbrage to the contemptible tyrant of Spain? It has often been said, and I have hitherto assumed it as unques- tionable, that the excessive load of taxation is one chief cause of the depression under which our commerce now labours. The House, I am persuaded, will give me credit for entertaining no disposition to mix this question with popular clamour against burthens which must be borne. But I wish to remove some misconceptions of an opposite nature, which have too frequently influenced such discussions; and to show in what manner relief might be given to the public without ma- terial injury to the revenue. Some persons, whose general opinions I profess to hold in great respect, have lately supported a position which I take leave to think a mere fallacy; they have maintained, that the amount of the imposts laid upon goods, or upon whatever affects the price of goods destined for the foreign market, can be no obstacle to their sale; and they attempt to prove this strange paradox by the con- sideration, that, as we are enabled to give a proportionally higher price for those commodities which we take in return, it comes to the same thing, whether the foreigner buys cheap or dear of us. A single word overthrows this reasoning at once. Admitting, for a moment, that prices are thus regulated; the foreigner who has goods to buy, will go to those who sell cheaper than we can do; and the foreigner who has goods to sell will come to us, who can give the best prices. To suppose that those who cannot afford to sell as cheap as others, will have the power of regulating the market for their own commodities, is as absurd as to suppose, that those who can afford to buy dearer than others, will pay higher than is necessary. There is another fal- lacy, much more prevalent, as to the effects of taxation within the country. The money thus raised, we are told, is spent by the govern- ment; and the same consumption is maintained as if it were expended by the individuals who paid it. Thus, to take the principal example, 312 MANUFACTURING DISTRESS. it is contended, that if we raise forty-four millions to pay the interest and charges of the debt, that sum is spent in the country by the stock- holders, instead of being spent by the payers of taxes. But first of all, it should be recollected, that those sums are levied in one part of the system, and generally expended in another, so that the expenditure affords no relief in the quarter where the levy of the impost was prin- cipally felt. Thus, when the duty on sugar was raised, in the course of a few years, from 14s. to 21s. a cwt., that sum was neither returned to the planter nor the consumer; it neither went to create a new de- mand for the article enhanced, nor to aid those who paid dearer for it; it went to support other industry than that of the grower, and other resources than those of the consumer. Next we must bear in mind, that the revenue paid to the stockholder represents capital, which has been sunk and in great part destroyed by war capital which has been taken away from profitable to unprofitable employ- ment. Nor is there any fairness in the argument, that the community is not injured by a mere transference of wealth, though none should disappear; for the taking from one class to bestow upon another, in- jures the one more than it benefits the other, even if we had any right to strike such unjust balances; and how much more does this apply to the case of taking from an existing class, to supply one which we create, or at least augment, for the purpose of impoverishing the other ! But the truth is, that all taxes go to support, either those whose labour is so much dead loss to the community, or much less productive than it might have been; whose numbers therefore ought never to exceed the lowest possible amount. The immense sums now raised, either feed those employed thus unproductively, or pay those whose capital has been spent in the same way; they are a constant drain upon the fund destined to support productive labour; they not only prevent ac- cumulation, but create a destruction of capital; they necessarily di- minish, in exact proportion to their enormous amount, the fund which creates the effective demand for all articles of consumption. The ope- ration, too, of taxes, in driving abroad various branches of industry, is unquestionable. They give advantages to foreigners in many points of view. Take, for instance, our duties on silk. The raw pays 5s. 6cl., the organized 155. the pound; while in France there is but one duty on both, and that only 2s. Gd. The French silk weaver, then, gets the article, in the first stage of manufacture, for less than half what our's pays for the raw material, as far as duty is concerned. Sometimes foreigners are discontented by a tax beyond its mere amount; the increase of, I think, only half a crown upon the policy stamp, drove them away from Lloyd's, and created several insurance offices at Hamburgh and in America. Sometimes a branch of trade is irretrievably destroyed by an injudicious tax, or receives a shock from which, even after the repeal of the duty, it never recovers. I am in- formed that this has been the case with the watch trade; and the pre- sent appearances are quite consistent with this supposition. I purpose now to illustrate what I have said of the effects which taxation produces upon consumption, by a reference to facts; and I MANUFACTURING DISTRESS. 313 shall, at the same time, have an opportunity of showing that the re- venue does not gain all the trade loses. On the contrary, I suspect we have been, in many instances, killing the goose that laid the golden eggs; and I greatly deceive myself if the right honourable gentle- man opposite,* will not soon be aware, how much truth there is in Dean Swift's remark, that " in the arithmetic of the customs two and two do not always make four." I shall begin with the duties on sugar, one of the widest fields of modern finance. They were in a short time raised from 14s. to 27s.; and if the price reaches 40s. then to 30s. the cwt. In three years, from 1S03 to 1S06, the former duties were increased about 50 per cent. Now the average produce of the old duties, for three years before that rise, was 2,778,000. The produce of 1804. after they had been raised 20 per cent., was not 3,330,000, as they ought to have been, had the consumption remained the same, but only 2,537,000;. and the average produce of 1806 and 1807, after the whole 50 per cent, was added, only gave 3,133,000 instead of 4,167.000, which they should have yielded, had the consumption not fallen off since the first rise of duty began; or 3,805,000, which they should have yielded, had there been no falling off since 1804. Thus both trade and revenue suffered by the great increase of duty in 1S03; and trade suffered severely by the subsequent augmentations, while revenue gained in a very small proportion. The duties on glass were nearly doubled in ten years; the produce of those duties has not sensibly increased at ail. Here then is a destruction of the glass trade, to the amount of one-half its whole bulk, without any direct gain to the revenue, and with a very certain loss to it in other branches connected with the diminished consumption. In this case two and two were not found to make four. We have recently had before us the history of the wine trade, in a very excellent petition presented by my honourable friend below me,t and well illustrated in the course of his remarks. The duties on wine have been trebled since 1792; the deficiency in the port of London alone was 338,329 last year, as compared with 1S15. The average consumption of three years, ending 1814, was above 3,000 pipes less than the average of three years, ending 1808. In 1804 the duty on port wine was increased one-ninth; the produce of the duty that year fell off nearly one-fourth, instead of increasing a ninth; and in 1805 it had by no means increased a ninth above its amount before the rise. Here then was a diminution of trade, an abridgment of the comforts of the people, and an injury to the revenue, first directly and afterwards indirectly. It is not so easy to illustrate by example the converse of the pro- position; for, unhappily, the instances are rare in which taxes have been taken off or diminished: yet all the cases where this policy lias been pursued demonstrate the truth of the doctrines for which I con- tend. When Mr. Pitt, by a wise and politic measure, in the year * The Chancellor of the Exchequer. f Mr. Sharpr. VOL. I. 27 314 MANUFACTURING DISTRESS. 1784, lowered the duty on tea from 56 to 12 per cent., the revenue rose considerably. The consumption could hardly have been increased six-fold, but smuggling was prevented to an extent which, with the increased consumption, made the revenue upon the whole a gainer. When in 1787, the duty on wine and spirits was lowered 50 percent., the revenue was improved; the trade must therefore have doubled, the comforts of the people been materially increased, and the other sources of revenue have benefitted in the same proportion. But the progress of the duties and revenue upon coffee illustrates every part of the question in a manner peculiarly striking. In 1805 they were raised one-third, and that year their produce fell off an eighth, instead of increasing a third; in 1S06 they had increased but only a sixteenth; so that the consumption had diminished above a fourth. But it was at length found, that this tax had been overdone, and it was lowered from 2s. to 7d. the cwt. Mark the immediate effects of this step. The average produce of the high duty, for the three years before it was altered, was 166,000; the average of the low duty, for three years after the alteration, was 195,000; so that, as addition has the effect sometimes of diminishing, subtraction seems to increase the sum, in the arithmetic of finance. The augmentation here showed an increase of consumption between four and fivefold; and, in Scot- land, 1 find, that it increased tenfold. It is not, then, on mere specu- lative grounds that I recommend the finance ministers to retrace their steps, and to turn their attention from devising ways of augmenting the taxes (an object, by the by, which they may pore over as long as they please, and will never be able to accomplish) to discover the best means of lessening the public burthens. I have shown from facts, that taxes may be repealed with positive and immediate benefit to the revenue; I think no man hardy enough to deny, that the diminution would contribute mainly towards restoring our commerce to its healthy state, and re-establishing general comfort and prosperity. The very collection of our present enormous revenue occasions evils of a serious nature to every class of the people. All of us are acquainted with the inconveniences of ordinary occurrence; but few are aware how severely they press upon trade. To the difficulties of collecting such a revenue are principally owing the monopolies of the dock companies, by which the whole of the West Indian commerce, arid several of the other great branches of trade, are subjected to heavy duties, and irksome delays. Our merchants complain of much dilatory and troublesome proceeding at the custom-house; they must wait for a person who has more to do than he can manage; they must, on every trifling difference, apply to the board; a variety of annoying steps must be gone through; bonds, with all the costs inci- dent to them, are needlessly multiplied; and, in short, everything begins in phigue, and ends in expense. It is very true, that better arrangement might remove some portion of these hardships, but the greater part of them are essential to the system. You cannot mul- tiply indefinitely officers and boards, in whom so large a confidence is of necessity reposed; you cannot, in a word, collect such a revenue MANUFACTURING DISTRESS. 315 as ours, without infinite vexation and delay, beyond the actual bur- then of the impost. Such prodigious levies, with their direct effects, hamper and distress our trade in various ways, which it would be impossible to estimate in money. Sir, I have trespassed beyond all bounds, 1 fear, upon the patience of the House; but I cannot prevail on myself to sit down without soliciting your attention to that part of the subject which I have as yet only glanced at slightly. The House, I doubt not, have already perceived that I refer to the entire abandonment of all care for the commercial interests of this country in the administration of our foreign affairs. After a war of unexampled suffering and exertion has been crowned with success far beyond the most sanguine expec- tation, and lifted the name and the influence of the nation to a height without any parallel in the proudest eras of its past history, we na- turally ask, how it comes to pass, that the glorious peace which our efforts have purchased comes without restoring our foreign trade; that we are still shut out from most parts of the continent, as if war was still waged against our commerce; and that day after day, fresh obstacles spring up to it in the quarters where it ought to meet the kindest encouragement? It is not in France merely, where we have long been accustomed to expect a return of jealousy, that our inter- course enjoys no facilities. In what corner of Europe does it possess them? Is it not plain, that wilh those very allies for whom we have fought and conquered for whose cause we have been lavish of our treasure and prodigal of our best blood from whom neither domi- nion nor indemnity has ever been asked in return even with those allies we have never had influence enough to obtain the advantage or the convenience of one single custom-house regulation in our favour? Has anything been done by these men, with all their influ- ence over the councils of Europe? Has anything been attempted by them? I am aware that Russia has reduced her tariff in many arti- cles since the termination of the war; but I also know, that, generally speaking, our commerce labours under duties so nearly amounting to a prohibition, as to throw it into the hands of contraband traders, and exclude the fair and honourable dealing of the British merchant. I know, that, from Memel to the southernmost part of Poland, along the whole line of the Russian frontier, the traffic is driven by means of Jews and other smugglers, as it used to be under Buonaparte's con- tinental system: that now, as formerly, they have their great entrepot at Brody, and were the purchasers of almost all the bills drawn last summer for the sales of wheat exported through Odessa to the Medi- terranean. Russia, however, is more favourable to our commerce than any of our other allies, and some improvement might be hoped for in that quarter, were we not, exactly in that quarter, met most adversely by the other branch of our policy, of which I have already said so much, the prohibitory scheme of our own laws, by which we are prevented from taking in exchange most of the articles of Russian produce. But Prussia, with whom we made common cause who owes to our efforts, next to those of her gallant people, the restoration of her independence 316 MANUFACTURING DISTRESS. almost directly excludes ns from all intercourse with her dominions. Duties amounting to a prohibition are laid upon the importation of our goods: and for such as are carried through the territory to be sold else- where, there are only two ports of landing assigned, and a transit pay- ment of 8| per cent, imposed. How then does the matter stand in Spain in that country which our gigantic exertions have saved whose de- fence, in money alone, beside subsidies, and beside expenses incurred elsewhere, has left a sum of accounts still unaudited, amounting, as we heard the other day, to above fifty millions? Why, in return for this it appears, that with the cabinet of Madrid we possess just no inte- rest whatsoever, either commercial or political! This is a picture of ingratitude on the one hand, and imbecility on the other, disgusting as regards Spain humiliating to our own government provoking to the country. The sense of the Spanish nation was, with more or less correctness, represented by the Corles; while its authority continued, a free inter- course with us was studiously promoted. The Cortes was put down, freedom extinguished, and the beloved usurper restored. Instantly old monopolies were revived and enforced, and enlarged with new powers, all strictly hostile to British interests. Additional obstruction was given to our trade, notwithstanding Apodaca's treaty had, on our part, almost guaranteed the integrity of the Spanish dominions, and, on theirs, promised a speedy commercial arrangement. Nay, after our ministers had, in support of Ferdinand, gone farther than was lawful for the rulers of a free and honourable nation like England; after they had been guilty of the most indecent subserviency to his criminal views, abondoned the high tone they used to assume with France while fighting his battle, looked on with perfect indifference at his iniquities, stooped to become the parasites of his caprices, and pander for him the degradation of his country and the slavery of his unfortunate subjects, our own gallant companions in arms how were they requited for those labours in the humiliation of the English name? In a "little month" after the signature of the second treaty, an edict was issued extending the monopoly of the Philippine Com- pany, so as to exclude all British cottons; and we had hardly sent out the Order of the Garter to our ally, when, in return of the courtesy, this decree was backed and enforced by new regulations; and the commercial privileges of Biscay, so favourable to all foreign trade, were, by an act of mere violence upon its ancient constitution, annul- led! Beside the rigorous prohibition of cottons, woollens pay 26 and 43 per cent, for the two finer qualities, and as high as 130 for the second, a burthen which the fair-trader cannot bear. It thus happens, that our commerce with Spain is in a worse condition than with al- most any other foreign state, and consigned, in a very great measure, to contraband traders. Not fifteen parts in the hundred of our goods consumed in that country are calculated to pay the duties imposed; the remaining seventy-five parts are smuggled; and about 200,000 are paid yearly to Portugal for duties upon the goods sent thither in order to be covertly introduced into Spain. MANUFACTURING DISTRESS. 317 If we turn our attention to Austria, again we meet with nothing but prohibition. Since the peace, for which we fought side by side with her, and conquered more for her than ourselves, she has either excluded, or loaded almost to the point of exclusion, all the articles in which we can trade with her fine dominions. Our manufactures generally are forbidden; so are cotton yarns below a certain fineness; and it is not much above half a year since the duties upon all finer yarns were suddenly doubled. It should seem as if, from all our exer- tions to serve the Continental powers, whether looking after honour or profit, we were fated to reap nothing but loss and disgrace. I would now call the attention of the noble lord in the blue ribbon,* to some things which, though within his department, it is very possible he may not be aware of: because it is quite possible, that those military gentlemen, whom he has planted as ministers and con- suls in different places, how skilled soever in their own profession, may have failed to make any reports upon commercial arrangements, as things very much out of their line, if not below their notice. Does the noble lord now hear, for the first time, and if he does, I am sure it should make a deep impression on his mind, that punishment has so swiftly followed guilt? Does he for the first time hear, that the fruits have already been gathered of the two worst acts in that sys- tem of wicked policy, of which the noble lord is the advocate in this House, as he was the adviser elsewhere that the very persons, in whose behalf those deeds were done, have even now set themselves in direct hostility to the interests of this country. If he lias not be- fore heard this, it may prove a useful lesson to him, and, at all events, I trust it will not be thrown away upon public men generally, if I make known how those very individuals, for whose sake the noble lord sacrificed the honour of his country, and abandoned its sound- est policy towards foreign states; those with whom, after pulling down the usurper, lie plunged into the deepest of all the public crimes that stained his course, and gave the ground for resisting him that they now execrate or contemn the man who made himself the accomplice of their infamous projects. I suspect the noble lord's conscience already whispers to what I allude. I guess he is aware, that I am going to name Ragusa and Genoa Rugusa and Genoa! where the name of England received a stain that all the victories of Lord Wellington cannot wipe away, nor the services of the longest life of the greatest minister that ever lived could alone for. I will speak of Ragusa first: it is the smaller state, and for that reason I dwell upon it the most; because, if there be such a thing as political morality, and political justice if those words have any sense they can only mean, that the rights and the liberties of the weaker states are to be protected by the more powerful; because, in the nature of things, public crime, the olfeiice of one nation against another, must always consist of the strong trampling down the feeble. Therefore, if the spot in question were San Marino, instead of Ragusa, I should Lord C'astlercagh. 27* 318 MANUFACTURING DISTRESS. the rather cite the example, and deem the oppression of that smaller community a still more flagrant outrage upon justice a baser dere- liction of public principle. Ragusa had flourished for centuries under the protection of the Ottoman Porte, and nominally, under its do- minion. The Porte was the ally of England. Often had we blazon- ed Buonaparte's attack upon Egypt as among the worst of his atro- cities, because France was in amity with the Turk, and there could be no motive for the enterprise but the love of gain, or the lust of power. Nay, his sending Sebastiani to Egypt after the peace of Amiens, was one of the principal grounds alleged by us for so sud- denly renewing the war. Then, I demand, were we at war with the Ottoman Porte during the black transactions of Vienna? Were we not in friendship and alliance with it? Did we once consult it about the cession of Ragusa to Austria? What is more important, did we ever consult the Ragusans upon that cession? Have we not, without the least regard to the rights of a free people, parcelled out their coun- try at our own discretion; and from the liberty they were enjoying and the independence they were proud of, delivered them over to what they deemed subjugation and tyranny? Had they, the Ragu- sans, the people of Ragusa, the smallest share in the deliberations of the famous Congress? They had no minister there they had made no communication to the assembled negotiators they had received none from thence. Their existence was hardly known, except by the gallant example they had set, of shaking off, without any aid, the hated empire of France. And how did we requite them for this noble effort, nay, this brilliant service in what we cantingly termed "the common cause of nations?" We, who had sounded to the uttermost corners of the earth the alarum of Buonaparte's ambition we who, in the name of freedom and independence, had called on the people of the whole globe, and on the Ragusans among the rest, (and they at least had answered the summons,) to rise up against him and overthrow his usurped dominion we requited them by handing them over, in the way of barter, as slaves to a power of which they detested the yoke! But let the noble lord, and let this House, and let the world, mark the retribution which has followed this flagitious act. Austria, extending her commercial regulations to all her new acquisitions, has absolutely shut our trade out of that very Ragusa which we had be- trayed into her hands! and thus has the noble lord received his pun- ishment upon the spot on which he had so shamefully sacrificed the honour of his country! Sir. if any page in the history of the late Congress be blacker than another, it is that which records the deeds of the noble lord against Genoa. When I approach this subject, and reflect on the powerful oratory, the force of argument as well as of language, backed by the high authority of virtue, a sanction ever deeply felt in this Mouse, once displayed in the cause of that ill-fated republic, by tongues now silent, but which used to be ever eloquent where public justice was to be asserted, or useful truth fearlessly inculcated, I feel hardly capa- ble of going on. My lasting sorrow for the loss we have sustained is MANUFACTURING DISTRESS. 319 made deeper by the regret, that those lamented friends* lived not to witness the punishment ef that foul conduct which they solemnly de- nounced. The petty tyrant to whom the noble lord delivered over that ancient and gallant people almost as soon as they had, at his call, joined the standard of national independence, has since subjected them to the most rigorous provisions of his absurd code a code directed especially against the commerce of this country, and actually less un- favourable to France. Thus then, it appears, that after all, in public as well as in private in state affairs as in the concerns of the most humble individuals, the old maxim cannot safely be forgotten, that "honesty is the best policy." In vain did the noble lord flatter himself, that his subser- viency to the unrighteous system of the Congress would secure him the adherence of the courts whom he made his idols. If lie had abandoned that false,. foreign system if he had acted upon the prin- ciples of the nation whom he represented, and stood forward as the advocate of the rights of the people the people would have been grateful. He preferred the interests and the wishes of the courts, and by the courts he is treated with their wonted neglect. To his crimes against the people all over Europe to his invariable surrender of their cause to his steady refusal of the protection which they had a right to expect, and which they did expect, from the manly and gene- rous character of England it is owing, that if, at this moment, you traverse the Continent in any direction whatever, you may trace tho noble lord's career, in the curses of the nations whom he has betrayed, and the mockery of the courts who have inveigled him to be their dupe. It is in vain we attempt to deceive ourselves. No truth can be more evident than this, that if instead of patronizing abuse, tyran- ny and plunder, we had exhibited a noble, gallant, English spirit in behalf of popular rights and national independence if instead of chiming in with. and aping their narrow, wretched principles, we had done our utmost to enlighten the policy of foreign courts we should have had to treat with a number of constitutional governments, di- rected by sound views of policy, atid disposed to adopt arrangements generally beneficial, instead of the capricious and spiteful regulations which now annoy us in every quarter. Only compare the conduct of America towards us with that of the King of Sardinia, of the Austrian Emperor, of Ferdinand of Spain. From America we had no right to expect peculiar favour. Her struggle for independence we had treated as a rebellion. It was successful; and we never altogether forgave it, but entertained towards her feelings approaching sometimes to contempt, sometimes to hatred. I am very far from thinking the Americans untainted by similar preju- dices. They have perhaps been foolish enough to cherish a little spite in return for ours. Nor do I give their government credit for being wholly above tho influence of this animosity; but experience has shown, that, in all popular governments, the true interests of the * Messrs. \Vbilbrcad and Horncr, in the debate upon Mr. Lambton'a motion. 320 MANUFACTURING DISTRESS. community must in the main be consulted, and in the great bulk of cases supersede every lesser consideration. Now, we can never, as a trading nation, desire more than that all other countries should adopt the line of commercial policy best suited to the interests of the body of the people in each. The American government has, not from regard for us, but for the sake of its own. subjects, pursued a course favourable to the mutual intercourse of the two states. It is allowing the manufactories created by our absurd system gradually to decline, because industry can there be more beneficially employed in other pursuits. With a few very trifling exceptions, the market of the United States will, in a few months, again be completely restored to us, as far as the competition of the American manufacture is con- cerned, and it is plainly the only considerable relief which we can expect for a long time to come. In France we might have obtained something like the same advantages. There was a time when the feelings of the people ran strongly in our favour; but, instead of culti- vating such dispositions, we have adopted a policy destructive of every kindly impression, and calculated to alienate the affections of all who retain the slightest regard for national honour. I may appeal to any one who has been in France since the war, I will even ask the gen- tlemen opposite, if they have not observed a most intimate connection between the commercial and the political prejudices which now pre- vail against us ? Talk to them of a commercial treaty, or generally of trade with us, and their answer is, nor can we marvel at it, " while you keep 130,000 men in arms quartered upon our territory, we will not treat with you at all. While you rule us with a rod of iron, you shall get no gold from us by trading. While you exact tribute directly at the point of the bayonet, you must not hope to obtain it circuitously through the channels of traffic." These feelings are not peculiar to France; depend upon it, as long as the same fatal policy is pursued, British commerce will be excluded from the Continent excluded more effectually than by Buonaparte's decrees and his armies, because now, for the first time, its ports are sealed against us by the govern- ments, with the cordial assent of the people. I hope and trust that this country may, before it is too late, retrace the steps which it has been taking towards destruction, under the gui- dance of the noble lord. I pray that we may live to see England once more holding her steady course in the direction of a liberal, a manly, an honest, an English policy. May the salutary change be wrought, because our honour and fame demand it; but if no higher consid- erations can influence our councils if all worthier motives have lost their force may we at the least consult our safety; adhere to that which is right, because it is shown to be beneficial; and abandon the path of dishonour, because it is leading us to ruin. I move you, sir, to resolve " 1. That the Trade and Manufactures of the country are reduced to a state of such unexampled difficulty as demands the most serious attention of this House. "2. That those difficulties are materially increased by the policy MANUFACTURING DISTRESS. 321 pursued with respect to our foreign commerce, and that a revision of this system ought forthwith to be undertaken by the House. " 3. That the continuance of these diiliculties is in a great degree owing to the severe pressure of taxation under which the country labours, and which ought, by every practicable means, to be lightened. " 4. That the system of foreign policy pursued by his Majesty's Ministers has not been such as to obtain lor the people of this country those commercial advantages which the influence of Great Britain in foreign courts fairly entitled them to expect." SPEECH OJi INTRODUCTION. IMPORTANCE ATTACHED TO DEBATES ON THE ARMY ESTIMATES. THE subject of the Army estimates used at all periods of the war to bring on one of the most important, if not the most important, debates of the session. It was in fact like a State of the Nation, and some of the most interesting, if not the greatest, speeches that have ever been delivered in Parliament, were made upon those occa- sions. The conduct of the war formed of course the main topic of such debates, although whatever else in the state of public affairs bore upon the existing hostili- ties, naturally came into the discussion. In 1810 the war was at an end; but the Army estimates continued to afford a subject of much animated debate, because they raised the whole question of the Peace Establishment, and were in fact a State of the Nation. The following speech, delivered on that occasion, was most imperfectly reported, as in those days gene- rally happened to speeches made in Committees of the whole Mouse. It has been revised from notes made at the time; but the passage respecting the punishment of Jacobinism is given from memory, and is believed to be much less full than the original was. The speecli had a greater success than any other made by Mr. Brougham in parliament; of which a memorial is preserved in the accounts of the Parliamentary debates, which mention that it was "loudly cheered from all sides of the House" at its conclusion a thing of very ordinary occurrence, indeed of daily occurrence now-a-days, but which hardly ever happened in former times. SPEECH IN SUPPORT OF MR. CALCRAFT'S AMENDMENT, To substitute 192,638, 4s. 9(7. for 385,276, 9s. Gd., the Estimate for the Household Troops. DELIVERED IN THE HOUSE OF COMMONS, MARCH 11, 1816. MR. BROGDEN, Although I on a former occasion delivered my opi- nion generally upon these Estimates, yet I am anxious now to state my sentiments in more detail upon a subject of such great importance, and the rather because of the defiances flung out from the other side to all of us, to go into the examination of it. I stand forward to take up the gauntlet which has thus been thrown down; and I affirm that the more minutely you scrutinize the several items of this bill brought in against the country, the more objectionable you will find them. I object, in the first place, altogether to the large force of guards which it is intended to keep up; and I even protest, though that is a trifle in comparison, but I do protest against the new-fangled French name of Household Troops, under which they are designated, a name borrow- ed from countries where this portion of the national force is exclusive- ly allotted to protect the Prince against a people in whom he cannot trust is the appointed means given him to maintain his arbitrary pow- er is the very weapon put into his hands to arm him against the liberties of his country. However appropriate the appellation may be there, it cannot be endured in this nation, where the Sovereign ought never to have any reason for distrusting his subjects, and never can be entrusted with any force except that which the defence of his people requires. But the name is of far less importance than the thing. Has the noble lord* made out anything like a case for raising the * Lord Castlereagh ARMY ESTIMATES. 325 amount of this force to more than double of what it was in 1791? If any such proof had boon given, I should not have been found among the opposers of the proposition. But the truth is, that, with all the professed anxiety of the noble lord and his friends to go through the estimates, item by item; with all their pretended readiness and even desire to court full investigation; with all the bluster of their defiance to us, and the bravado more than once used, that we durst not grapple with the question in detail; they have themselves wholly shrunk from the inquiry, tied from all particulars, and abandoned all attempts at showing, in any one instance, from any one conclusion, with a view to any single circumstance in the present situation of the country, that there is the shadow of a ground for this increase of force. We had the subject debated generally indeed, but at great length, a few days ago, on bringing up the report; and it had been repeatedly be- fore the House on former occasions. We have now renewed the dis- cussion on the motion for going into this committee. We have been in the committee for some hours. At this very advanced stage of the debate have we arrived, and though all the members of the govern- ment have addressed tbemselves to the question, many of them once and again, yet I defy any one to point out a single fact that has been stated, a single argument urged, a single topic used, to prove the necessity which alone can justify the scale these estimates are framed upon. It has indeed been said that 2400 of the guards are destined for France, where I suppose the army of occupation is requited in order to demonstrate how tranquil our famous negotiators have left the whole Continent how perfectly successful how absolutely final the grand settlement of all Europe is, upon which we so greatly plume ourselves, and upon which, above all, the political reputation of the noble lord is built. But suppose I pass over this, and do not stop to ask what reason there can be for these 2400 men being guards, and not simply troops of the line those troops required to maintain our final and conclusive settlement, and enforce the profound tranquil- lity in which Europe is everywhere en wrapt; suppose I admit, lor argument sake, and in my haste to get at the main question, that these 2400 guards may be necessary what is to be said of all the rest? There remain no less than 7600 to account for. What reason has been assigned, what attempt ever made by the noble lord to assign a reason why .'3600 more; guards should be wanted more than in Mr. Pitt's celebrated establishment of 1792? I desire, however, to have this explained I demand the ground for this enormous augmentation of what you call your " household force" I have a right to know why this increase is called for I call for the reason of it, and the rea- son I will have. Deduct all you require, or say you require, for France; what has happened since Mr. Pitt's time to justify you in nearly doubling the number of the guards? That is the question, and it must be answered to Parliament and to the country answered, not by vague generalities by affected anxiety for discussion, by shallow pretences of desire to have the fullest investigation, by hhiMerini? defiances to w.v and swaggering taunts that we dare not investigate. VOL. i. 28 326 ARMY ESTIMATES. We do investigate we do advance to the conflict we do go into the details we do enter upon the items one by one; and the first that meets us on the very threshold, and as soon as we have planted a foot upon it, is this doubling of the guards. Then how do you defend that? Where is the ground for it? What is there to excuse it or to explain? Mr. Pitt found 4000 enough in 1792 then what is there to make 7600 wanting now? Look at home Is the country less peaceable now than it was then? Quite the contrary. It was then disturbed; it is now profoundly quiet. Then, although there was no insurrection, nor anything that could be called by such a name, unless by those who sought a pretext for violating the constitution, and by suspend- ing its powers securing their own, yet still no man could call the state of the country tranquil universal discontent prevailed, here and there amounting to disaffection, and even breaking out into local disorders; rumours of plots floated everywhere about; whilst meetings were held; unmeasured language was used; wild schemes were broach- ed; dangerous associations were formed. Though no man had a right to say that the government was entitled to pursue unconstitutional courses for meeting those evils, every man felt obliged to admit that there was reason for much anxiety that the aspect of things was lowering the alarm was a natural feeling that the duty of the executive was to be vigilant and to be prepared. The fears of men whose loyalty was unquestioned, though their wisdom might be doubt- ed, led them a good deal farther than this. Meetings were encouraged to address the crown, and testify the resolution to support its preroga- tives. Bonds were entered into for defending the constitution, be- lieved to be threatened. Pledges of life and fortune were given to stand by the established order of things, and resist to the death. all violence that might be directed against it. Parliament was not alone in countenancing these measures, proceeding from alarm. Both Houses addressed the throne; both joined in asserting the existence of great peril to the constitution; both declared that the public peace was in danger from the designs of the evil-disposed. To rend the language of those times, both in public meetings and their addresses, and in Parliamentary debates, arid resolutions of the two Houses, any one would have thought that a wide-spreading disaffection had shot through the land; that the materials of a vast rebellion were every where collected; and that the moment was tremblingly expected when some spark lighting on the mass, should kindle the whole into a flame, and wrap the country in destruction. Yet in that state of things, and with these testimonies to its menacing aspect, Mr. Pitt, at the very time when he was patronizing the doctrines of the alarmists, encou- raging their movements, and doing all he could to increase rather than allay their fears; when he was grounding on the panic that prevailed, those measures out of which his junction with a part of the Whigs arose, whereby he succeeded in splitting that formidable party yet never dreamt of such a force as we are now told is necessary for pre- serving the public peace. He proposed no more than 4000 guards; and held that amount to be sufficient. ARMY ESTIMATES. 327 We are challenged to go into particulars; we are defied to grapple with the question in detail. Then I come to particulars and details with the noble lord. The main duty of the guards is the London service: that is the district to which their force is peculiarly applicable. To keep the peace of this great metropolis is their especial province; and I grant the high importance of such functions. Then I ask when London was ever more quiet than at this moment? When were its numerous inhabitants ever more contented, more obedient to the laws, more disinclined to anything like resistance? At what period of our history was the vast mass of the people by whom we are sur- rounded, over more peaceably disposed, more unlikely to engage in anything approaching to tumult, than now? Why, they have even given over going to public meetings; the very trade of the libeller languishes, if it be not at end, in the general tranquillity and stagna- tion of these quiet times. All is silence, and indifference, and dulness, and inertness, and assuredly inaction. To the unnatural and costly excitement of war, has succeeded a state of collapse, perhaps from ex- haustion, but possibly from contrast alone. The mighty events of the latter days, when the materials for the history of a country were crowded into the space of a few months, have left the public mind listless and vacant. The stimulus is withdrawn, and change has had its accustomed sedative influence. They who had been gazing till their eyes ached, and they doubted if they were awake, upon the most prodigious sights ever presented in the political and the moral world upon empires broken up and formed anew dynasties extin- guished or springing up the chains cast off by not merely a people, but a hemisphere and half the globe suddenly covered with free and independent states wars waged, battles fought, compared to which the heroes of old had only been engaged in skirmishes and sallies treaties made which disposed of whole continents, and span the fate of millions of men could hardly fail to find the contemplation of peace flat, stale, and unprofitable. The eye that had been in vain attempt- ing to follow the swift march of such gigantic events, could not dwell with much interest upon the natural course of affairs, so slow in its motion as to appear at rest. And hence, if ever there was a lime of utter inaction, of absolute rest to the public mind, it is the hour now chosen for supposing that there exists some danger which requires de- fensive preparation, and the increase of the garrison with which the listless and motionless mass of the London population may be over- awed. Why, my honourable and learned friend* has had nobody to prosecute for some years past. It is above two years since he has filed an ex-offieio information, unless in the exchequer against smugglers. Jacobinism, the bugbear of 1 792, has for the past six years and more never been even named. I doubt if allusion to it has been made in this House, even in a debate upon a King's speech, since Mr. Pitt's death. And to produce a Jacobin, or a specimen of any other kindred tribe, would, I verily believe, at this time of day, balllo * The Attorney General. 328 ARMY ESTIMATES. the skill and the perseverance of the most industrious and most zea- lous collector of political curiosities, to be found in the whole kingdom. What, then, is the danger what the speculation upon some possible and expected, but non-existing risk which makes it necessary at this time to augment the force applied to preserve the peace of the metrop- olis? But I fear there are far other designs in this measure, than merely to preserve a peace which no man living can have the bold- ness to contend is in any danger of being broken, and no man living can have the weakness really to be apprehensive about. Empty show, vain parade, will account for the array being acceptable in some high quarters; in others, the force may be recommended by its tending to increase the powers of the executive government, and ex- tend the influence of the prerogative. In either light, it is most dis- gustful, most hateful to the eye of every friend of his country, and every one who loves the constitution all who have any regard for public liberty, and all who reflect on the burthens imposed upon the people. But if the internal state of the country offers not the shadow of jus- tification for this increase of force, what shall we say of the state of foreign affairs? Above all, what shall we say of the comparison be- tween the face of those affairs now, and its aspect in 1792? That was really a period of external danger. Never was there greater room for anxiety; never had the statesmen, not of England only, but of all Europe, more cause for apprehension and alarm more occasion for wakefulness to passing events more ground for being prepared at every point. A prodigious revolution had unchained twenty-six millions of men in the heart of Europe, gallant, inventive, enterpri- sing, passionately fond of military glory, blindly following the phan- tom of national renown. Unchained from the fetters that had for ages bound them to their monarchs, they were speedily found to be alike disentangled from the obligations of peaceful conduct towards their neighbours. But they stopped not here. Confounding the abuses in their political institutions with the benefits, they had swept away every vestige of their former polity; and, disgusted with the rank growth of corruption to which religion had afforded a shelter, they tore up the sacred tree itself, under whose shade France had so long adored and slept. To the fierceness of their warfare against all au- thority civil and religious at home, was added the fiery zeal of prose- lytism abroad, and they had rushed into a crusade against all existing governments, and on behalf of all nations throughout Europe, pro- claiming themselves the redressers of every grievance, and the allies of each people that chose to rebel against their rulers. The uniform triumph of these principles at home, in each successive struggle for supremacy, had been followed by success almost as signal against the first attempts to overpower them from without and all the thrones of the Continent shook before the blast which had breathed life and spirit into all the discontented subjects of each of their trembling pos- sessors. This was the state of things in 1792, when Mr. Pitt admin- istered the affairs of a nation, certainly far less exposed either to the ARMY ESTIMATES. 329 force or to the blandishments of the revolutionary people, but still very far from being removed above the danger of either their arls or their arms; and the existence of peril in both kinds, the fear of France me- nacing the independence of her neighbours, the risk to our domestic tranquillity from a party at home strongly sympathizing with her sentiments, were the topics upon which both lie and his adherents were most prone to dwell in all their discourses of state affairs Yet in these circumstances, the country thus beset with danger, and the peace thus menaced, both from within and from without, Mr. Pitt was content with half the establishment we are now required to vote! But see only how vast the difference between the present aspect of affairs and that which I have been feebly attempting to sketch from the records of recent history, no page of which any of us can have forgotten! The ground and cause of all peril is exhausted the object of all the alarms that beset us in 1792 is no more France no longer menaces the independence of the world, or troubles its repose. By a memorable reverse, not of fortune, but of divine judg- ments, meting out punishment to aggression, France, overrun, reduced, humbled, has become a subject of care and protection, instead of alarm and dismay. Jacobinism itself, arrested by the Directory, punished by the Consuls, reclaimed by the Emperor, has become attached to the cause of good order, and made to serve it with the zeal, the resources, and the address of a malefactor engaged by the police after the term of his sentence had expired. All is now, universally over the face of the world, wrapt in profound repose. Exhausted with such gigantic exertions as man never made before, either on the same scale or with the like energy, nations and their rulers have all sunk to rest. The general slumber of the times is every where unbroken; and if ever a striking contrast was offered to the eye of the observer by the aspect of the world at two different ages, it is that which the present posture of Europe presents to its attitude in Mr. Pitt's time, when, in the midst of wars and rumours of wars, foreign enemies and domestic treason vying together for the mastery, and all pointed against the public peace, he considered a military establishment of half the amount now demanded, to be suflicient for keeping the country quiet, and repelling foreign aggression, as well as subduing domestic revolt. Driven from the argument of necessity, as the noble lord seemed to feel assured he should be the moment any one examined the case, he skilfully prepared for his retreat to another position, somewhat less exposed, perhaps, but far enough from being impregnable. You can- not, he said, disband troops who have so distinguished themselves in the late glorious campaigns. This topic he urged for keeping up the guards. But, I ask, which of our troops did not equally distinguish themselves? What regiment engaged in the wars failed to cover itself with their glories? This argument, if it lias any force at all, may be used against disbanding a single regiment, or discharging a. single soldier. Nay, even those who by the chances of war had no opportunity of displaying their courage, their discipline, and their /eal, would be extremely ill treated, if they were now to be dismissed the 28* 330 ARMY ESTIMATES. service, merely because it was their misfortune not to have enjoyed the same opportunity with others in happier circumstances, of sharing in the renown of our victories. It is enough to have been deprived of the laurels which no one doubts they would equally have won had they been called into the field. Surely, surely, they might justly complain if to the disappointment were added the being turned out of the service, which no act of theirs had dishonoured. I am now speaking the language of the noble lord's argument, and not of my own. He holds it to be unfair towards the guards that they should be reduced, after eminently meritorious service he connects merit with the military state disgrace, or at least slight, with the loss of this station. He holds the soldier to be preferred, rewarded, and dis- tinguished, who is retained in the army him to be neglected or ill- used, if not stigmatized, who is discharged. His view of the consti- tution is, that the capacity of the soldier is more honourable, and more excellent than that of the citizen. According to his view, there- fore, the whole army has the same right to complain with the guards. But his view is not my view; it is not the view of the constitution; it is not the view which I can ever consent to assume as just, and to inculcate into the army by acting as if it were just. I never will suffer it to be held out as the principle of our free and popular government, that a man is exalted by being made a soldier, and degraded by being restored to the rank of a citizen. I never will allow it to be said, that in a country blessed by having a civil and not a military government, by enjoying the exalted station of a constitu- tional monarchy, and not being degraded to that of a military despot- ism, there is any pre-eminence whatever in the class of citizens which bears arms, over the class which cultivates the arts of peace. When it suits the purpose of some argument in behalf of a soldiery who have exceeded the bounds of the law in attacking some assembled force of the people, how often are we told from that bench of office, from the Crown side of the bar, nay, from the bench of justice itself, that by becoming soldiers, men cease not to be citizens, and that this is a glo- rious peculiarity of our free constitution? Then what right can the noble lord have to consider that the retaining men under arms and in the pay of the state, is an exaltation and a distinction, which they cease to enjoy if restored to the status of ordinary citizen?? I read the constitution in the very opposite sense to the noble lord's glos5. I have not sojourned in congresses with the military representatives of military powers I have not frequented the courts, any more than I have followed the camps of these potentates I have not lived in the company of crowned soldiers, all whose ideas are fashioned upon the rules of the drill and the articles of the fifteen manoeuvres all whose estimates of a country's value are framed on the number of troops it will raise and who can no more sever the idea of a subject from that of a soldier, than if men were born into this world in com- plete armour, as Minerva started from Jupiter's head. My ideas are more humble and more civic, and the only language I know, or can speak, or can understand in this House, is the mother tongue of the ARMY ESTIMATES. 331 old English constitution. I will speak none other I will suffer none other to be spoken in my presence. Addressing the soldier in that language which alone above all other men in the country he ought to know to which alone it peculiarly behoves us that he, the armed inan, should be accustomed I tell him, " You have distinguished yourself all that the noble lord says of you is true nay, under the truth you have crowned yourself with the glories of war. But chiefly you, the guards, you have outshone all others, and won for yourselves a deathless fame. Now, then, advance and receive your reward. Partake of the benefits you have secured for your grateful country. None are better than you entitled to share in the blessings, the inestimable blessings of peace than you whose valour has con- quered it for us. Go back then to the rank of citizens, which, for a season, you quitted at the call of your country. Exalt her glory in peace, whom you served in war; and enjoy the rich recompense of all your toils in the tranquil retreat from dangers, which her gratitude bestows upon you." 1 know this to be the language of the consti- tution, and time was when none other could be spoken, or would have been understood in this House. I still hope that no one will dare use any other in the country; and least of all can any other be endured as addressed to the soldiery in arms, treating them as if they were the hired partisans of the Prince, a caste set apart for his service, and distinguished from all the rest of their countrymen, not a class of the people devoting themselves for a season to carry arms in defence of tlie nation, and when their services are wanted no more, retiring naturally to mix with and be lost in the mass of their fellow-citizens. But it has been said that there is injustice and ingratitude in the country turning adrift her defenders as soon as the war is ended, and we are tauntingly asked, "Is this the return you make to the men who have fought your battles? When the peace comes which they have conquered, do you wish to starve them or send them oil' to sweep the streets?" I wish no such thing; I do not desire that they should go unrequited for their services. But I cannot allow that the only, or the best, or even a lawful mode of recompensing them, is to keep on foot during peace the army which they compose, still less that it is any hardship whatever for a soldier to return into the rank of citizens when the necessity is at an end, which alone justified his leaving those ranks. Nor can I believe that it is a rational way of showing our gratitude towards the army, whose only valuable service has been to gain us an honourable peace, to maintain an establish- ment for their behoof, which must deprive the peace of all its value, and neutralize the benefits which they have conferred upon us. See, too, the gross inconsistency of this argument with your whole conduct. How do you treat the common sailors who compose our invincible navy? All are at once dismissed. The Victory, which carried Nelson's flag to his invariable and undying triumphs, is actu- ally laid up in ordinary, and her crew disbanded to seek a precarious subsistence where some hard fortune may drive them. Who will have the front to contend that the followers of Nelson are loss the 332 ARMY ESTIMATES. glory and the saviours of their country than the soldiers of the guards? Yet who is there candid enough to say one word in their behalf, when we hear so much of the injustice of disbanding our army after its victories? Who has ever complained of that being done to the sea- men, which is said to be impossible in the soldier's case? But where is the difference? Simply this: That the maintenance of the navy in time of peace, never can be dangerous to the liberties of the country, like the keeping up a standing army; and that a naval force gives no gratification to the miserable, paltry love of show which rages in some quarters, and is to be consulted in all the arrangements of our affairs, to the exclusion of every higher and worthier consideration. After the great constitutional question to which I have been direct- ing your attention, you will hardly bear with me while I examine these estimates in any detail. This, however, I must say, that nothing can be more scandalous than the extravagance of maintaining the establishment of the guards at the expense of troops of the line, which cost the country so much less. Compare the charge of 2000 guards with an equal number of the line, and you will find the dif- ference of the two amounts to above 10,000 a year. It is true that this sum is not very large, and, compared with our whole expendi- ture, it amounts to nothing. But in a state burthened as ours is, there can be no such thing as a small saving; the people had far rather see millions spent upon necessary objects, than thousands squandered unnecessarily, and upon matters of mere superfluity; nor can anything be more insulting to their feelings, and less bearable by them, than to see us here underrating the importance even of the most inconsiderable sum that can be added to, or taken from the in- tolerable burthens under which they labour. As for the pretext set up to-night, that the question is concluded by the vote of last Friday, nothing can be more ridiculous. This House never can be so bound. If it could, then may it any hour be made the victim of surprise, and the utmost encouragement is held out to tricks and manoeuvres. If you voted too many men before, you can now make that vote harmless and inoperative by withholding the sup- plies necessary for keeping those men on foot. As well may it be contended that the House is precluded from throwing out a bill on the third reading, because it affirmed the principle by its vote on the second, and sanctioned the details, by receiving the committee's report. The estimate before you is 385,000, for the support of S100 guards. Adopt my honourable friend's amendment,* and you reduce them to about 4000, which i& still somewhat above their number in the last peace. Sir, I have done. I have discharged my duty to the country I have accepted the challenge of the ministers to discuss the question I have rnet them fairly, and grappled with the body of the argument. I may very possibly have failed to convince the House that this estab- * Mr. Calcraft. ARMY ESTIMATES. 333 lisliment is enormous and unjustifiable, whether we regard the bur- thcried condition of the country, or the tranquil state of its affairs at home, or the universal repose in which the world is lulled, or the experience of former times, or the mischievous tendency of large standing armies in a constitutional point of view, or the dangerous nature of the arguments urged in their support upon the present occasion. All this I feel very deeply; and I am also very sensible how likely it is that on taking another view you should come to an opposite determination. Be it so I have done my duty I have entered my protest. It cannot be laid to my charge that a force is to be maintained in profound and general peace, twice as great as was formerly deemed sufficient when all Europe was involved in domestic troubles, and war raged in some parts and was about to spread over the whole. It is not my fault that peace will have returned without its accustomed blessings that our burthens are to remain undimin- ished that our liberties are to be menaced by a standing army without the pretence of necessity in any quarter to justify its continuance. The blame is not mine that a brilliant and costly army of household troops, of unprecedented numbers, is allowed to the Crown, without the shadow of use, unless it be to pamper a vicious appetite for mili- tary show, to gratify a passion for parade, childish and contemptible, unless, indeed, that nothing can be an object of contempt which is at once dangerous to the constitution of the country, and burthensome to the resources of the people. I shall further record my resistance to this system by my vote; and never did I give my voice to any propo- sition with more hearty satisfaction than I now do to the amendment of my honourable friend, HOLY ALLIANCE. INTRODUCTION. HOLY ALLIANCE EMPEROR ALEXANDER LORD CASTLEREAOH MR. HORNER. SOON after the settlement of affairs subsequent to the battle of Waterloo, the three sovereigns who had borne the principal part in the military operations by which the war was closed, entered into certain engagements with each other by a convention, the object of which they asserted to be the preservation of the peace just concluded. They named this the " Christian Treaty," and their alliance the " Christian Alliance ,-" but it soon came to be called by the world, as well as by the parties themselves, the " Holy Jllliance" It bore date at Paris, the 2Glh Sep- tember 1815; and is certainly a document of a very singular description, and of a most suspicious character. The contracting parties, the two Emperors, and the Prussian King, begin by acknowledging their obligations to Heaven for their late deliverance, and stating that the interence drawn by them from thence, is the ne- cessity of rulers forming their conduct upon the "sublime truths" which "the holy religion of our Saviour teaches;" and they further declare, that they have no other object in this treaty than to proclaim before the world their resolution to take for their guide the precepts of the Christian religion namely justice, charity, and peace. The articles of the Treaty are three. In the first, the parties bind them- selves to remain united as brethren in the " bonds of true and indissoluble fra- ternity," " to lend each other aid and assistance as fellow-countrymen, on all occa- sions and in all places, and conducting themselves towards their armies and subjects as fathers of families, to lead them in the same spirit of fraternity to protect religion, peace, and justice." The second article declares the only principle in force between the throe governments to be doing each other reciprocal service and testifying mutual good-will; and it avows that they all form branches of "one family, one Christian nation, having in reality no other sovereign than Him in whom alone are found all the treasures of love, science, and infinite wisdom; that is to say, God our Divine Saviour, the word of the Most High, the word of life." The article concludes with earnestly recommending to their people the " strengthening themselves more and more every day in the principles and the exercise of the duties which the Divine Saviour has taught mankind." The third article an- nounces, that whatever powers shall " solemnly avow the same sacred principles, and acknowledge the importance of the above truths being suffered to exercise full influence over the destinies of mankind, will be received with equal ardour and affection into this Holy Alliance." Contrary to all the accustomed forms of diplo- macy, the treaty was only signed by the three monnrchs themselves, without any mention whatever bring 1 made of ambassadors, ministers, or other representatives, as engaged in the negotiation. When this extraordinary transaction carno to be known, it naturally excited groat attention, and gave birth to many suspicions. That these powerful monarchs should make a great treaty for no other purpose than to avow their religious fervour, and preach the Christian doctrine for tho benefit of their subjects, and should form an alliance, having no other object than to profess together those doctrines, and in concert to practice them, seemed altogether unaccountable. This, of itself, would have been sufficient to awaken grave suspicions that much moro was meant by 336 INTRODUCTION. this confederacy than met the eye. But to this was to be added the previous rela- tions of alliance, offensive and defensive, which had subsisted between the same princes, and far from ending in sermons upon the duties of a Christian man, had brought into the field of battle above half a million of Christian men in full armour. There were indeed some parts of this curious document itself, which pointed pretty plainly at operations of the flesh rather than the spirit, and gave indications sufficiently manifest of the designs in which it originated, or at any rate of the proceedings to which it might lead. The first and fundamental article bound the parties to lead their armies in the spirit of fraternity, for the protection of religion, peace, and justice. Now, under a description so very vague and large as this, almost any objects might be comprehended: and men did not fail to remark, that there had hardly ever been a war of the most unjust aggression begun without lavish professions that its only design was to see justice done, and obtain a secure and honourable peace. Against these very natural suspicions, nothing could be set except the pious language of the treaty, which of course went for little, and the peculiar character of the Emperor Alexander, its chief promoter, which went for not much more. This prince was said to have lately become a convert to some sect of religious enthu- siasts, a distinguished professor among whom was a certain Madame Krudener, one of those mystical devotees, half evangelical, half metaphysical, with which Germany abounds. The Alliance was represented as the result of this holy female's inspirations, and the first fruits of her influence over the Autocratic neo- phyte. The phrase was, and Lord Castlereagh, when questioned in Parliament, gave the matter this turn, that the whole was a mere innocent act, an amiable fancy of his Imperial Majesty, in which England and France were only prevented from joining, by the forms of their diplomacy excluding direct negotiation and treat- ing by the sovereign, but which, as it could not possibly lead to any practical con- sequences, was not worth objecting to, or commenting upon. The Emperor Alexander, upon whose individual nature, habits, or caprices, this explanation and defence turned, was, after the fall of Napoleon, by far the most distinguished prince in Europe, whether, we regard the magnitude of the affairs in which he had been engaged, the extraordinary fortune that had attended his arts rather than his arms, or the vast empire over which he despotically ruled. But although by no means an ordinary man, and, still less an ordinary monarch, he owed his influence and his name very much more to the accidental circumstances of his position, and to the errors committed by Napoleon, first in Spain, then in the North, than either to any very admirable personal qualities received from nature, or to any considerable accomplishments derived from education. His preceptor, Colonel La Harpe, though a very worthy and intelligent man, was distinguished neither by profound genius, nor great scientific acquirements; and from his instruc- tions the Imperial pupil could not be said to have profited greatly. His knowledge was exceedingly superficial; and never relying on his own resources, he adopted the royal plan of previously ascertaining what were the pursuits of those he would converse with, and picking up at second-hand a few common-places with which to regale his guests, who, expecting little from an Emperor, and interdicted from anything like discussion by the etiquette of a court, were sure to leave the presence deeply impressed with his information and his powers. If he was superficial in general knowledge, he could not be said to have any great capacity either for civil or military affairs. To tell that he constantly pursued the Russian policy, of invariably gaining some accession of territory, be it ever so little, in whatever war he might be engaged, and that his treaties of peace never formed any exception to this Muscovite rule, is only to say that he followed in the train of all his prede- cessors from Peter the First downwards. Placed in circumstances of unprece- dented peril, no passage of his life can be referred to in proof of any resources being displayed by him, which the most ordinary of princes would not have shown himself possessed of. Stimulated by the exigencies of so many great emergencies, he never rose with the occasion, and unlike any one with pretensions to eminence, was generally found most wanting when the crisis was the most trying. At his accession, he found the armed neutrality of the North discomfited by the battle of Copenhagen; and he at once yielded all the points for which his father, a far HOLY ALLIANCE. 337 superior though an eccentric man, had contended, unawed by any difficulties, and unsubdued by any reverses. Joining the third coalition against France, but pos- sessing no general who like Suwarrow could lead his armies to victory, he sus- tained one of the most memorable overthrows recorded in history, and was compelled to purchase peace, and escape invasion, by abandoning the alliance into which he had voluntarily entered. Stricken to the heart with the fear of France, and hardly knowing whether to seek for safety in resistance or in submission to her dictation, he again had recourse to war, for which he had no kind of genius. Again defeated in one of the greatest and most decisive battles of modern times, he formed the closest alliance with his victorious enemy, who soon found it easy to mould which way soever he pleased a person quite as vain and as shallow as he was nimble and plausible. At length came the great crisis both of Alexander's fate and of the world's. Napoleon, obstinately bent on subduing the Peninsula, while he continued to make war in the North, was worsted repeatedly by the English arms; pushed his forces in unexampled numbers through Germany, to attack the Russian Empire; and penetrated to its ancient capital, after many bloody engagements, and an immense loss sustained on either side. The savage determi- nation of Rostopschin prevented, by burning the city, a renewal on the Moskwa of the scenes five years before enacted on the Niemen. Alexander was prevented from making peace and tendering submission, by the enterprising spirit of that bar- barous chief, and the prompt decision and resolute determination of Sir Robert Wilson. The inclemency of an unusually early and severe northern winter did all the rest, and Europe was saved by the physical powers brought happily to bear upon and to destroy the greatest army ever sent into the field.* No trait of mili- tary genius no passage of civil capacity no instance of shining public virtue can be cited as displayed by him during a struggle so singularly calculated to draw forth men's powers, to fire them with generous ardour, to nerve their arms with new vigour, to kindle the sparks of latent genius until it blazed out to enlighten and to save a world. When the struggle was over, and his empire restored to peace, he showed no magnanimous gratitude to the brave people who had generously made such unpa- ralleled sacrifices, and had cheerfully suffered such cruel miseries for the defence of his crown. He joined his royal associates in breaking all the promises that had been made during the perils of the war; and in imitating the very worst part of his conduct, whom, with the words of justice, peace, and right on their lips, they had, with the aid of their gallant subjects, overthrown. His shallow vanity was dis- played during the visit of the Princes to England. When, among, other party lead- ers, Lord Grenville was presented to him, he thought it was hitting on an excel- lent improvement in the conduct of party concerns, to recommend that, instead of urging objections in Parliament to the ministerial measures, the opposition should seek private audiences of their adversaries from time to time, and confidentially offer their objections, or propose their amendments. Nor was this vain and super- ficial prince made at all sensible of the folly he had committed, by the somewhat peremptory negative which a few characteristic words and gestures of the veteran party man suddenly put upon his shallow and ignorant scheme. Although the emperor repeatedly testified a somewhat marked disrespect for our regent, he yet suffered himself to be overpowered by the Carlton House emissaries, and avoided the ordinary civility of visiting the Princess of Wales, then, as always, the object * There arc few things more finely imagined than a passage written by the late eloquent and ingenious Mr. John Scott upon this great event. Alter describing the vast bustle and painful effects of the military preparations and exertion*, which left the whole affair un- decided, lie notes the mighty contrast presented by the ctill and MI Mum energies of nature Flakes of a white substance, during a few hours, fall through the air in deep silence, ami all is settled for ever. Hi moliiH animorum, attjiie hone ccrtamina tanta I'ulveris exigui jactu compressa quicxcunU This ia the same gentleman who wrote the paper on Military Punishment?, for which the Hunts and Mr. Drikard were prosecuted. VOL. J. 29 338 INTRODUCTION. of her royal husband's unceasing persecutions. The English people drew from thence a conclusion highly unfavourable to the independence of his character, as well as to the kindliness of his nature; and he made quite as little impression upon them as his more unpretending, though certainly not much less distinguished bro- ther of Prussia. His reputation for honesty stood extremely low, even among persons of his pre- eminent station. Napoleon, who knew his imperial brother thoroughly, applied to him the uncourtly, and indeed rather unceremonious description of "faux, fin, et fuurbe, comme un Grec du bos empire." It would be highly unjust to tax him with any participation in his father's murder; nor would the certainty, if it existed, of his privity to it, be any stain upon his character, unless we were also assured, con- trary to all probability, that he had any power whatever to prevent it. But he was certainly bound in common decency to discountenance, if he dared not punish, the men whose daggers had opened for him the way to a throne; and more unthinking folly, greater indecorum, worse judgment in every way, can hardly be imagined, than his referring to the blood shed in palaces, when he issued, with his confede- rates, the manifesto against Spain, alluded to in the following speech. His course was marked by no displays either of princely or of private virtues of munificence, of magnanimity, of self-denial, of plain-dealing. Nor did the extraordinary pre- tences to religion, which marked his latter years, succeed in deceiving anyone, but such as were, either from the adulation of the court, or the enthusiasm of the con- venticle, willing and even anxious to be deluded. Among such dupes, he passed for somewhat more pious than his royal compeers; but few were, even in that class, found so charitable as to believe in his honesty, or to suppose that under the pro- fessions of the Christian treaty, there lurked no hidden designs of a purely secular and strictly royal description.* The denial first, the explanation afterwards, finally the defence of the Holy Alli- ance, devolved upon one who had been the associate of the three Sovereigns in that distribution of European dominion, which their unlooked-for good fortune, ari- sing principally from a severe winter and Napoleon's obstinate ambition, had thrown into their hands. Lord Castlereagh seemed still less intended by nature to bear the part which fell to his share in such mighty transactions, than the allied princes themselves. That we should have lived to see, twice over, the march to Paris, which for so many years had been the bye-word for a military impossibility, an: 1 long after events seemed to have rendered the idea still more absurd than when its first promulgation clothed the propounder in never-dying ridicule, was indeed sufficiently marvellons. But it appeared, if possible, yet more incredible, that we should witness Lord Castlereagh entering the House of Commons, and resuming amidst universal shouts of applause, the seat which he had quitted for a season to attend as a chief actor in the new arrangement of Continental territory, the restora- tion of old monarchies and the creation of new, when Mr. Pitt, and Mr. Fox, and Mr. Windham, had never even aspired to more than rescuing their own country from the war without positive disgrace, and even Mr. Burke had only looked to the restoration of the Bourbon throne by the efforts of the French themselves, and had been treated as a visionary for indulging in so wild a hope. Few men of more limited capacity, or more meagre acquirements than Lord Castlereagh possessed, had before his time ever risen to any station of eminence in our free country; fewer still have long retained it in a state, where mere court intrigue and princely favour have so little to do with men's advancement. But we have lived to see persons of more obscure merit than Lord Castlereagh rise to equal station in this country. Of sober and industrious habits, and become pos- sessed of business-like talents by long experience, he was a person of the most common-place abilities. He had a reasonable quickness of apprehension and clearness of understanding, but nothing brilliant or in any way admirable marked either his conceptions or his elocution. Nay, to judge of his intellect by his elo- quence, we should certainly have formed a very unfair estimate of its perspicacity. For, though it was hardly possible to underrate its extent or comprehensiveness, it * The selection of sucli eminent diplomatic talents as adorn and distinguish the Lievens and the Pozzos, appears to have been his greatest praise. HOLY ALLIANCE. 339 was very far from being confused and perplexed in the proportion of his sentences; and the listener who knew how distinctly the speaker could form his plans, and how clearly his ideas were known to himself, might, comparing small things wilh preat, be reminded of the prodigious contrast between the distinctness of Oliver Cromwell's understanding, and the hopeless confusion and obscurity of his speech. No man, besides, ever attained the station of a regular debater in our Parliament with such an entire want of all classical accomplishment, or indeed of all literary provision whatsoever. While he never showed the least symptoms of an informa- tion extending beyond the more recent volumes of the Parliamentary debates, or possibly the files of the newspapers only, his diction set all imitation, perhaps all description at defiance. It was with some an amusement to beguile the tedious hours of their unavoidable attendance upon the poor, tawdry, ravelled thread of his sorry discourse, to collect a kind of ana from the fragments of mixed, incon- gruous, and disjointed images that frequently appeared in it. "The features of the clause" "the ignorant impatience of the relaxation of taxation" "sets of circumstances coming up and circumstances going down" "men turning their backs upon themselves" "the honourable and learned gentlemen's wedge getting into the loyal feelings of the manufacturing classes" "the constitutional principle wound up in the bowels of the monarchical principle" "the Herculean labour of the honourable and learned member, who will find himself quite disappointed when he has at last brought forth his Hercules" (by a slight confounding of the mo- ther's labour, who produced that hero, wilh his own exploits which gained him, immortality) these are but a few, and not the richest samples, by any means, of a rhetoric which often baffled alike the gravity of the treasury bench and the art of the reporter, and left the wondering audience at a loss to conjecture how any one could ever exist, endowed with humbler pretensions to the name of orator. Wherefore, when the tory party " having a devil," preferred him to Mr. Canning for their leader, all men naturally expected that he would entirely fail to command even the attendance of the House while he addressed it; and that the benches, empty during his time, would only be replenished when his highly gifted competitor rose. They were greatly deceived; they underrated the effect of place and power; they forgot that the representative of a government speaks "as one having authority, and not as the scribes." Hut they also forgot that Lord Castloreagh had some qualities well-fitted to conciliate favour, and even to provoke admiration, in the absence of everything like eloquence. He was a bold and fearless man; the very courage with which he exposed himself unabashed to the most critical audience in the world, while incapable of uttering two sentences of anything but the meanest matter, in the most wretched language; the gallantry with which he faced the greatest diffi- culties of a quesiion; the unflinching perseverance with which he went through a whole subject, leaving untouched not one of its points, whether he could grapple with it or no, and not one of the adverse arguments, however forcibly and felici- tously they had been urged, neither daunted by recollecting the impression just made by his antagonist's brilliant display, nor damped by consciousness of the very rags in which he now presented himself all thi* made him upon the whole rather a favourite with the audience whose patience he was taxing mercilessly, and whose gravity he ever and anon put to a very severe trial. Nor can any one have forgotten the kitid of pride that mantled on th;> fronts of the Tory phalanx, when, after being overwhelmed with the powerful lire of the Whig opposition, or galled by the fierce denunciations of the mountain, or harassed by the, splendid displays of Mr. Canning, their chosen leader stood forth, and presenting the graces of his eminently patrician figure, flung open his coat, displayed an a/.ure ribbon travers- ing a snow white chest, and declared " bis high satisfaction that he could now meet the charges against him face to face, and repel with indignation all that his adversaries had been bold and rash enough to advance." Such he was in debate; in council he certainly had far more resources. lie possessed a considerable fund of pi, tin sense, not to bo misled by any refinement of speculation, or clouded by any fanciful notions, lie went straight to his point; he was brave politically as well as personally. Of this, his conduct on the Irish Union bad given abundant proof; iind nothing could be mure just than the rebuke which, as connected wilh thu topic of personal courage, we may recollect 340 INTRODUCTION. his administering to a great man who had passed the limits of Parliamentary cour- tesy "Every one must be sensible," he said, "that if any personal quarrel were desired, any insulting language used publicly, where it could not be met as it de- served, was the way to prevent and not to produce such a rencounter." No one after that treated him with disrespect. The complaints made of his Irish admi- nistration were perfectly well grounded as regarded the corruption of the Parlia- ment by which he accomplished the union; but they were entirely unfounded as regarded the cruelties practised during and after the rebellion. Far from partaking in these atrocities, he uniformly and strenuously set his face against them. He was of a cold temperament and determined character, but not of a cruel disposi- tion; and to him, more than perhaps to any one else, was owing the termination of the system stained with blood. His foreign administration was as destitute of all merit as possible. No enlarged views guided his conduct; no liberal principles claimed his regard; no generous sympathies, no grateful feelings for the people whose sufferings and whose valour had accomplished the restoration of their national independence, prompted his tongue, when he carried forth from the land of liberty that influence which she had a right to exercise she who had made such vast sacrifices, and was never in return to reap any the least selfish advantage. The representative of England among those Powers whom her treasure and her arms had done so much to save, he ought to have held the language becoming a free state, and claimed for justice and for liberty the recognition which we had the better right to demand, that we gained no- thing for ourselves, after all our sufferings, and all our expenditure of blood as well as money. Instead of this, he flung himself at once and for ever into the arms of the sovereigns seemed to take a vulgar pride in being suffered to become their asso- ciate appeared desirous, with the vanity of an upstart elevated unexpectedly into higher circles, of forgetting what he had been, and qualifying himself for the com- pany he now kept, by assuming their habits and never pronounced any of those words so familiar with the English nation and with English statesmen, in the mother tongue of a limited monarchy, for fear they might be deemed low-bred, and unsuited to the society of crowned heads, in which he was living, and to which they might prove as distasteful as they were unaccustomed. It is little to be wondered at, that those potentates found him ready enough with his defence of their Holy Alliance. When it was attacked in 1816, he began by denying that it meant anything at all. He afterwards explained it away as a mere pledge of pacific intentions, and a new security for the stability of the settlement made by the Congress of Vienna. Finally, when he was compelled to depart from the monstrous principles of systematic interference to which it gave birth, and to establish which it was originally intended, he made so tardy, so cold, so reluctant a protest against the general doctrine of the allies, that the influence of England could not be said to have been exerted at all in behalf of national independence, even if the protest had been unaccompanied with a carte blanche to the allies for all the injuries they were offering to particular states in the genuine spirit of the sys- tem protested against. The allies issued from Troppau one manifesto, from Ley- bach another, against the free constitution which had just been established at Na- ples by a military force co-operating with a movement of the people. On the eve of the Parliament meeting (19th Jan. 1821,) Lord Castlereagh delivered a note to the Holy Allies, expressing in feeble and measured terms a very meagre dissent from the principle of interference; but adding a peremptory disapproval of the means by which the Neapolitan revolution had been effected, and indicating very plainly that England would allow whatever they chose to do for the purpose of putting down the new government and restoring the old. It is certain that this kind of re- volution is of all others the very worst, and to liberty the most unpropitious. It is also probable that the people of Naples knew not what they sought; nay, when they proclaimed the Spanish Constitution, it is said there was no copy of it to be found in the whole city. Nevertheless the same kind of military movement had produced the destruction of the same constitution in Spain, and restored the power and prerogative of Ferdinand; and no exception had been ever taken to it, in that instance, either by the Holy Allies or by England. There could be no doubt what- ever, that this mode of effecting changes in a government was only displeasing to HOLY ALLIANCE. 341 those parties when the change happened to be of a popular kind, and that a mili- tary revolution to restore or to found a de<polic government, was a thing perfectly to their liking. Thus faintly dissented from as to tho principle, and not even faintly opposed as to the particular instance, the three sovereigns deputed one of their number to march, and the Austrian troops ended, in a few days, all that the Neapo- litan army had done in as many hours. But late in 182-2, Spain, or rather Madrid, again hecame the scene of a revolu- tionary movement; and the people obtained once more a free form of government. Again the Holy Allies were at work; and, on this occasion, their manifestos were directed to arm France with the authority of the League. First, an army was as- sembled on the Spanish frontier, under the stale pretext of some infectious disor- der requiring a sanatory cordon; the same pretext on which the predecessors of the Holy Allies had in former times surrounded unhappy Poland with their armed hordes the only difference being, that an epidemic was in that instance said to be raging among the cattle, and now it was supposed to be the plague among men. A great change, had, however, now taken place in the British department of Fo- reign affairs. Lord Castlereagh's sudden death had changed Mr. Canning's In- dian destination, and placed him both at the head of the Foreign Office, and in the lead of the House of Commons. His views were widely different from those of his predecessor. He was justly jealous of the whole principles and policy of the Holy Alliance: he was disgusted with the courtly language of the crafty and cruel despots who, under the mask of religious zeal, were enslaving Europe; he was in- dignant at the subservient part in those designs which England had been playing; and he was resolved that this obsequiousness should no longer disgrace his coun- try. In America, he was determined that the colonies of Spain should be recog- nized as clothed with the independence which they had purchased by their valour; in Europe, he was fixed in the design of unchaining England from the chariot wheels of the Holy Allies. When Parliament met, the speech from the Throne contained some indications of these principles; and more were given by the minis- terial speakers who began the debate on the address. The following speech was delivered on that occasion by Mr. Brougham, who had, almost unsupported seven years before, denounced the Holy Alliance, and moved for the production of the Christian Treaty of September 1815, which Lord Casilereagh, on the pretences already described, had refused. Although on that earlier occasion he had met with hardly any support from the regular leaders of the Whig party, h had yet obtained the countenance, to him of all others the most grateful, of Sir Samuel Romilly and Mr. Homer. Of the former, opportunity has already been given to speak; it is fit something should hero be said of the latter, upon an occasion certainly connected with that on which he made- the most remarkable of the displays that won for him the admiration of the House of Commons, and made the sorrow fur a loss, as premature as it was irre- parable, the more lasting. Mr. Homer having entered public life without any advantage of rank or fortune, had in a very short time raised himself to a high place among the members of the Whig party, (to which he was attached alike from sincere conviction, and from private friendship with its chiefs,) by the effect of a most honourable and virtuous character in private life, a steady adherence to moderate opinions in politics, talents of a very high order, and information at once accurate i'.iul extensive upon all sub- jects connected with state affairs. Not that his studies had been confined to these; for his education, chiefly at Edinburgh, had hern most liberal, and had put him in possession of far more knowledge upon the subjects of general philosophy, than falls to the lot of most English statesmen. All the departments of moral science lie had cultivated in an especial manner; and he was well grounded in the rxacter sciences, although he had not pursued these with the same assiduity. The pro- fession of the law, which he followed, rather disciplined his mind than distracted it from the more attractive and elegant pursuits of literary leisure; and his taste, the guid(! and control of eloquence, was manly and chaste!, erring on the safer side of fastidiousness. Accordingly, when he joined hi.s party in Parliament, his or.itorv was of a kind which never tailed to produce a very great effect, and he only did 342 INTRODUCTION. not reach the highest place among debaters, because he was cut off prematurely, while steadily advancing upon the former successes of his career. For although in the House of Commons he had never given the reins to his imagination, and had rather confined himself to powerful argument and luminous statement than in- dulged in declamation, they who knew him, and had heard him in other debates, were aware of his powers as a declaimer, and expected the day which should see him shining in the more ornamental parts of oratory. The great question of the currency had been thoroughly studied by him at an early period of life, when the writings of Mr. Henry Thornton and Lord King first opened men's eyes to the depreciation which Mr. Pitt's ill-starred policy had occasioned. With the former he had partaken of the doubts by which his work left the question overcast in 1802; the admirable and indeed decisive demonstration of the latter in the next year, entirely removed those doubts; and Mr. Homer, following up the able paper upon the subject, which he had contributed to the Edinburgh Review at its first appear- ance, with a second upon Lord King's work, avowed his conversion, and joined most powerfully with those who asserted that the currency had been depreciated, and the metallic money displaced by the inconvertible bank paper. In 1810, he moved for that famous Bullion Committee, whose labours left no doubt of the matter in the mind of any rational person endowed with even a tolerable clearness of understanding; and the two speeches which he made, upon moving his resolutions the year after, may justly be regarded as finished models of eloquence applied to such subjects. The fame which they acquired for him was great, solid, lasting; and though they might be surpassed, they were certainly not eclipsed, by the wonderful resources of close argument, profound knowledge, and brilliant ora- tory, which Mr. Canning brought to bear upon the question, and of which no one more constantly than Mr. Homer acknowledged the transcendent merits. When the subject of the Holy Alliance was brought forward by Mr. Brougham, early in the session of 1816, Mr. Homer, who had greatly distinguished himself on all the questions connected with what the Ministers pleasantly called "the final settlement of Europe," during the absence of the former from Parliament, was now found honestly standing by his friend, and almost alone of the regular Whig party declared his belief in the deep-laid conspiracy, which the hypocriti- cal phrases and specious pretences of the allies were spread out to cover. The part he took upon the debate to which the treaties gave rise, showed that there was no portion of the famous arrangements made at Vienna, to which he had not sedulously and successfully directed his attention. His speech on that occasion was admitted to be one of the best ever delivered in Parliament; and it was truly refreshing to hear questions of foreign policy, usually discussed with the super- ficial knowledge, the narrow and confused views to be expected in the produc- tions of ephemeral pens, now treated with a dopth of calm reflection, an enlarged perception of relations, and a provident forethought of consequences, only ex- ceeded by the spirit of freedom and justice which animated the whole discourse, and the luminous clearness of statement which made its drift plain to every hearer. But this able, accomplished, and excellent person was now approaching the term assigned to his useful and honourable course by the mysterious dispensa- tions under which the world is ruled. A complication of extraordinary maladies soon afterwards precluded all further exertion, and, first confining his attention to the care of his health, before a year was over from the date of his last brilliant display, brought him deeply and universally lamented to an untimely grave.* * It deserves to be noted, as a marvellous instance of that truly learned conjecture by which the skill of Dr. Baillie was distinguished, that after many other physicians had severally given their opinions on the nature of Mr. Homer's hidden complaints, Dr. Baillie at once decided against all those theories; but, when he came to propose his own, avowed the extreme uncertainty in which so obscure and difficult a case had left him. However, he said that he guessed it was one or the other of two maladies so rare that he had only seen a case or two of the one, and the other never but in a Museum of morbid anatomy. When the body was opened by Vacca at Pisa, where he died, it was found that both those rare diseases existed. HOLY ALLIANCE. 343 "Oslendent tcrris hunc lantum fata, neqtie ultra Essc sinent. Nimium vobis Romana propago Visa potens, Supcri, propria Jiffic si dona luissent!" When the new writ was moved, on his decease, for the burgh of St. Mawes, which he represented, Lord Morpeth* gave a striking sketch of his character. Mr. Canning, Sir S. Romilly, Mr. W. Elliott, and others, joined in the conversa- tion, and Mr. H. Lascellesf observed, with universal assent, that if the form of the proceeding could have admitted of a question being put upon Mr. Horner's merits, there would not have been heard one dissentient voice. Now Lord Carlisle. t Now Lord Harcwood SPEECH THE WAR WITH SPAIN. DELIVERED IN THE HOUSE OF COMMONS, FEBRUARY 4, 1823. I RISE in consequence of the appeal made to every member of the House by the gallant officer* who lias just sat down, to declare my sentiments: I ansvver that appeal, which does credit to the honour, to the English feeling of- that gallant officer; and I join with him, and with every man who deserves the name of Briton, in unqualified abhorrence and detestation of the audacious interference to which he has alluded; or if that execration is at all qualified, it can only be by contempt and disgust at the canting hypocrisy of the language in which the loathsome principles of the tyrants are promulgated to the world. ! have risen to make this declaration, called upon as I am in common with every member, but I should ill discharge my duty, if I did not mark my sense of the candour of the two Honourable gen- tlemen who have moved and seconded the address, and express my satisfaction at what, in the House, howeverdivided upon other points, will be almost, and certainly in the country will be quite unanimously felt to be, the sound and liberal view which they have taken of this great affair. Indeed, I know not, circumstanced as they were, that they could go farther; or even that His Majesty's ministers, in the present state of this very delicate question, ought to have gone beyond the communication of to-day- That communication, coupled with the commentary of the honourable mover, will be the tidings of joy, and the signal for exultation to England it will spread gladness and ex- ultation over Spain will be a source of comfort to all other free states and will bring confusion and dismay to the allies, who, with a pretended respect, but a real mockery. of religion and morality, make war upon liberty in the abstract; endeavour to crush national independence wherever it is to be found; and are now preparing, with * Sir. J. Yorke. WAR WITH SPAIN. 345 their armed hordes, to carry into execution their frightful projects. That Spain will take comfort from the principles avowed in the House this evening, I am certain; and I am not less clear, that the handful of men at present surrounding the throne of our nearest and most inter- esting neighbour, (who, -by the way, has somehow or other been in- duced to swerve from the prudent councils which had till of late guided his course) will feel astonished and dismayed with the proceed- ings of this day, in proportion as others are encouraged. Cheering, however, as is the prevalence of such sentiments; highly as they raise the character of the nation, and much as may be augured from their effects, still I think no man can deny, that the country is at present approaching to a crisis such as has not occurred perhaps for above a century, certainly not since the French revolution. Whether we view the internal condition of the kingdom, and the severe distress which press upon that most important and most useful branch of the com- munity, the farmers; or cast our eyes upon our foreign relations, our circumstances must appear, to the mind of every thinking man, critical and alarming. They may, it is true, soon wear a better aspect, and we may escape the calamities of war; but he must be a bold and possibly a rash man, certainly not a very thoughtful one, who can take upon him to foretell that so happy a fortune shall be ours. It is the deep consideration of these things which induces me to come forward and make a declaration of my principles; and to state that, with a strict adherence to the most rigid economy in every de- partment, the reduction of establishments which I am at all times, if not the first, at least among the foremost, to support, and which is so necessary, in the ordinary circumstances of the country, must now be recommended, with a certain modification, in order to adapt our poli- cy to the present emergency. I am guilty of no inconsistency what- ever, in thus qualifying the doctrine of unsparing retrenchment; indeed, the greater the chance of some extraordinary demand upon our resources, from the aspect of affairs abroad, the more imperious is the necessity of sparing every particle of expense not absolutely re- quisite. Economy to its utmost extent, I still recommend as politic, and urge as due to the people of right; and every expense is now to be regarded as more inexcusable than ever, both because the country is suffering more severely, and because it may become necessary soon to increase some parts of our establishment. 1 say I am certainly not prepared to propose, or to suffer, as far as my voice goes, any the least reduction of our naval force, to the extent even of a single ship or seaman; on the contrary, I fear the time may not be distant when its increase will be required. Any such augmentation of the army, I cannot conceive to be justifiable in almost any circumstances; for hap- pen what may, a war on our part, carried on with the wasteful and scandalous profusion of the last, and upon the same vast scale, or any- thing like it, is wholly out of the question. [Mr. Brougham entered at some length into the internal state of the country tho indications of distress at the various meetings the inconsistency of the violent attacks made upon the Norfolk petition by 346 HOLY ALLIANCE. those who had passed the Gold Coin Bill of 1811, which enacted the parts of the Norfolk plan most liable to objection the inadequacy of any relief to be obtained from repeal of taxes that only affected small districts the absolute necessity of repealing a large amount of the taxes pressing generally on all classes and, for this purpose, he urged the necessity of a saving wherever it could be effected with safety; and, at any rate, of giving up the sinking fund. He then proceeded:] 1 think, then, that if war were once commenced, we should soon be compelled to take some part in it, one way or other, and that for such an emergency, every shilling which can be saved by the most riged economy, should be reserved. I think our intervention in some shape will become unavoidable. We are bound, for instance, to assist one party, our old ally Portugal, if she should be attacked; and it is not likely that she can remain neuter, if the present hateful conspiracy against Spain shall end in open hostility. It is in this view of the question that I differ from the gallant officer* who last spoke, and I am glad that I could not collect from the honourable mover or second- er, the ominous words " strict neutrality " as applied to this coun- try, in the threatened contest. A state of declared neutrality on our part would be nothing less than a practical admission of those princi- ples which we all loudly condemn, and a license to the commission of all the atrocities which we are unanimous in deprecating. I will say, therefore, that it is the duty of His Majesty's ministers, (with whom I should rejoice in co-operating on the occasion and so I am certain, would every one who now hears me, waving for a season all differ- ences of opinion on lesser matters) to adopt and to announce the resolution, that when certain things shall take place on the Continent, they will be ready to assist the Spaniards a measure necessary to avert evils, which even those the least prone to war (of which I avow myself one) must admit to be inevitable, should a wavering or pusillanimous course be pursued. Our assistance will be necessary to resist the wicked enforcement of principles contrary to the law of nations, and repugnant to every idea of national independence. To judge of the principles now shamelessly promulgated, let any man read patiently, if he can, the declarations in the notes of Russia, Prussia, and Austria; and, with all due respect to those high authori- ties, I will venture to say, that to produce anything more preposter- ous, more absurd, more extravagant, better calculated to excite a mingled feeling of disgust and derision, would baffle any chancery or state-paper office in Europe. I shall not drag the House through the whole nauseous details; I will only select a few passages, by way of sample, from those notable productions of legitimate genius. In the communication from the minister of his Prussian Majesty, the constitution of 1812, restored in 1820, and now established, is de- scribed as a system which "confounding all elements, and all power, and assuming only the single principle of a permanent and legal oppo- sition against the government, necessarily destroys that central and * Sir J. Yorke. WAR WITH SPAIN. 347 tutelary authority which constitutes the essence of the monarchical system." Thus far the King of Prussia, in terms which, lo say the least, afforded some proof of the writer's knowledge of the monarchi- cal system, and of the contrast which, in his opinion, it exhibited to the present government of Spain. The Emperor of Russia, in terms not less strong, calls the constitutional government of the Cortes, " that which the public reason of Europe, enlightened by the experience of all ages, stamps with its disapprobation;" and complains of its want- ing the " conservative principle of social order." Where, in the con- servative character of keeper of the peace of Europe, does his Imperial Majesty discover that the constitution of Spain 'had been stamped with the disapprobation of the public reason of Europe? Let the House observe, that the " public reason of Europe, enlightened by the experience of all ages," happens to be that of his Imperial Majesty himself for the last ten years exactly, and no more; for, notwithstand- ing that he had the " experience of all ages" before his eyes he did, in the year 1812, enter into a treaty with Spain, with the same Cortes, under the same constitution, not one iota of which had been changed up to that very hour. In that treaty, his Imperial Majesty the Empe- ror of all the Rnssias, speaking of the then government, did use the very word by which he and his allies would themselves be designated the word, by the abuse of which they are known he did call the Spanish government of the Cortes "a legitimate government," that very government that very constitution of which the Spaniards have not changed one word; and God forbid they should change even a letter of it, while they have the bayonet of the foreign soldier at their breast! I hope, if it has faults and some faults it may have that when 'he hour of undisturbed tranquillity arrives, the Spaniards themselves will correct them. If they will listen to the ardent wish of their best friends of those who have marked their progress, and gloried in the strides they have made towards freedom and happiness of those who would go to the world's end to serve them in their illustrious struggle of those, above all, who would not have them yield an hair's breadth to force my counsel would be to disarm the reasonable objections of their friends, but not to give up anything to the menaces of their enemies. I shall not go more into detail at the present moment; for ample opportunities will occur of discussing this subject; but I will ask, in the name of common sense, can anything be more absurd, more inconsistent, than that Spain should now be repudiated as illegitimate by those, some of whom have, in treaties with her, described her government in its present shape, by the very term, "legitimate government?" In the treaty of friendship and alli- ance, concluded in 1812, between the Emperor of all the Russia and the Spanish Cortes, Ferdinand being then a close prisoner in France, his Imperial Majesty, by the third article, acknowledges in express terms, the Cortes, " and the CONSTITUTION sanctioned and decreed by it." This article I cite from the collection of Treaties by Martens, a well known Germanic, and therefore a laborious and accurate com- piler. 348 HOLY ALLIANCE. But not only is the conduct of the allies towards Spain inconsistent with the treaties of some among them with Spain I will show that their principle of interference, in any manner of way, is wholly at va- riance with treaties recently made amongst themselves. I will prove, that one of the fundamental principles of a late treaty is decidedly op- posed to any discussion whatever amongst them, respecting the inter- nal situation of that country. By (he 4th article of the Treaty of Aix- la-Chapelle, November 1818, it is laid down, that a special congress may be held, from time to time, on the affairs of Europe. Using the words, and borrowing the hypocritical cant of their predecessors, the same three powers who basely partitioned Poland who, while they despoiled a helpless nation of its independence, kept preaching about the quiet of Europe, the integrity of its states, and the morality and happiness of their people talking daily about the desire of calm repose, the atmosphere, I well know, in which despotism loves to breathe, but which an ancient writer eloquently painted, when he said, that tyrants mistake for peace the stillness of desolation following the vile cant of their ancestors the allies declared, at Aix-la-Chapelle, that their object was to secure the tranquillity, the peace, which I, giving them credit for sincerity, read the desolation, of Europe, and that their fundamental principle should be, never to depart from a strict adherence to the law of nations. " Faithful to these principles," (continued this half-sermon, half-romance, and half-state-paper) "they will only study the happiness of their people, the progress of the peaceful arts, and attend carefully to the interests of morality and re- ligion, of late years unhappily too much neglected" here, again, fol- lowing the example of the Autocratrix Catherine the spoiler of Po- land who, having wasted and pillaged it, province after province, poured in hordes of her barbarians, which hewed their way to the capital through myriads of Poles, and there, for one whole day, from the rising of the sun, to the going down thereof, butchered its unof- fending inhabitants, unarmed men, and women, and infants; and not content with this work of undistinguishing slaughter, after the pause of the night had given time for cooling, rose on the morrow, and re- newed the carnage, and continued it throughout that endless day; and after this, a Te Deum was sung, to return thanks for her success over the enemies, that is, the natives, of Poland. That mild and gentle sovereign, in the midst of these most horrible outrages upon every feeling of human nature, issued a proclamation, in which she assured the Poles, (1 mean to give her very words) that she felt to- wards them, "the solicitude of a tender mother, whose heart is only filled with sentiments of kindness for all her children." Who can, or who dares doubt that she was all she described herself; and who can, after the experience of the last year, dispute the legitimate descent of the allied powers, and the purity of their intentions towards Spain? But along with this declaration of the object of future congresses, came the article which I should like to see some German statist some man versed in the manufacture of state-papers compare with, and reconcile (if it only may be done within a moderate compass) to the WAR WITH SPAIN. 349 notes fashioned at Verona, not unlikely by the very hands which pro- duced the treaty of Aix-la-Chapelle. The article is this: "Special congresses concerning the affairs of states not parties to this alliance, shall not take place, except" (and here I should like to know how Spain, which was no party to the alliance, has brought herself within the exception) "except in consequence of a formal invitation from such states;" "and their ambassadors shall assist at such congresses." How will any German commentator reconcile these contradictions? Here the interference in the internal affairs of Spain is not only not " by special invitation" from, but is in downright opposition to, the will of Spain. Thus stands the conduct of those Holy Allies diamet- rically opposed to their own professions and engagements, and by such means is the attempt now made to crush the independence of a brave people. But it is not in the case of Spain alone that the consideration of these papers is important they furnish grounds of rational fear to all independent governments; for I should be glad to learn what case it is (upon the doctrines now advanced) to which this principle of inter- ference may not be extended? or what constitution or what act of state it is on which the authority to comment, criticise, and dictate, may not be assumed? The House is not aware of the latitude to which the interference of those armed legislators may be, nay actually is, extended. The revolt of the colonies is distinctly stated as one ground of interposition! The allies kindly offer their " intervention" to restore this great branch of" the strength of Spain." There is no end of the occasions for interfering which they take. One is rather alarming the accident of a sovereign having weak or bad ministers. Russia, forsooth, was anxious to see Ferdinand surrounded with "the most enlightened most faithful of his subjects" men "of tried in- tegrity and superior talents" men, in a word, who should be every way worthy of himself. So that, according to these wise men of V T e- rona, (and this is a consideration which should he looked to in some other countries, as well as Spain,) the existence of an inefficient or un- principled administration, would be of itself a just ground of interfe- rence. The principle does not stop here. " Ruinous loans" form another ground, and "contributions unceasingly renewed;" "taxes which, for year alter year, exhausted the public treasures and the fortunes of individuals" these are instances, in which the principle of interference may apply to other powers beside Spain; ami I have no doubt that when tin: same doctrines are extended to certain coun- tries, the preparatory manifesto will make mention of agricultural dis- tress, financial embarrassment, and the sinking fund. But, to complete; all the charges against Spain, the Russian Emperor finishes, his invec- tive with the awful assertion, that, on the 7th of July, "blood was seen to How in the palace of the King, and a civil war raged through- out the Peninsula." It is true that a revolt had been excited in soino of the provinces. But by whom? An ally. It was produced by those cordons of troops, which were posted on the Spanish frontier, armed with gold and with steel, and affording shelter and assi VOL. i. JO 350 HOLY ALLIANCE. by force, to those in whose minds disaffection had been excited by bribery. It is also true that blood has been shed. But would it not be supposed, by any person unacquainted with the fact, and who only read the statement in the manifesto, that this was blood shed in an attempt to dethrone Ferdinand, and introduce some new and unheard of form of government? At any rate, does not this statement plainly intend it to be supposed, that the constitutional party had made the onset, and shed royalist, if not royal blood? But what is the fact? A few persons were killed who had first attacked the constitutional- ists, in other words, mutinied against the established government the government which the Emperor Alexander himself recognized as legitimate in 1812; and this he has now the audacity to call the shed- ding of blood by Spaniards in the palace of the king! As well might he accuse the People, the Parliament, and the Crown of England, of causing " blood to flow in the palace of the king," for ordering their sentinels to fire on some person whom they found attempting to assas- sinate the sovereign, as accuse the Spaniards of such a crime, for the events which happened in July 1822. I shall pass over many other heavy charges levelled at the Spaniards, in phrases of terrible import as harbouring a "disorganized philoso- phy," "indulging in dreams of fallacious liberty," and the want of " venerable and sacred rights," with which the Prussian note is loaded to repletion: and shall proceed to the Russian, which objects to the Spaniards their want of the " true conservative principle of social order" or, in other words, of despotic power, in the hands of one man, for his own benefit, at the expense of all mankind besides; and to their not falling within the scope of those "grand truths," which, though they were ever in their mouths, were nowhere ex- plained by any one of the three sovereigns. The Austrian note dis- courses largely of "the solid and venerable claims" which the Spanish nation has upon the rest of Europe: prays it to adopt a better form of government than it has at present; and calls upon it to reject a system which is at once "powerful and paralyzed." It would be disgusting to enter at any length into papers, at once so despicable in their exe- cution, and in their plan so abominably iniquitous. There is but one sentiment held regarding them out of the House; and my excuse for taking notice of them now, is my desire to call forth a similar expres- sion of feeling from the House itself. Monstrous, and insolent, and utterly unbearable, as all of them are, I consider that of Russia to be more monstrous, more insolent, and more prodigiously beyond all en- durance, than the rest. It is difficult to determine which most to ad mire the marvellous incongruity of her language and conduct now, with her former most solemn treaties or the incredible presumption of her standing forward to lead the aggression upon the independence of all free and polished states. Gracious God! Russia! Russia! a power that is only half civilized which, with all her colossal mass of physical strength, is still quite as much Asiatic as European whose principles of policy, foreign and domestic, are completely des- potic, and whose practices are almost altogether oriental and barba- WAR WITH SPAIN. 351 rous! In all these precious documents, there is, with a mighty num- ber of general remarks, mixed up a wondrous affectation of honest principles a great many words covering ideas that are not altogether clear and intelligible; or, if they happen to be so, only placing Jheir own deformity in a more hideous and detestable light: but, for argu- ment, or anything like it, there is none to be found from the begin- ning to the end of them. They reason not, but speak one plain lan- guage to Spain and to Europe, and this is its sum and substance: " We have hundreds of thousands of hired mercenaries, and we will not stoop to reason with those whom we would insult and enslave." I admire the equal frankness with which this haughty language had been met by the Spanish government: the papers which it had sent forth are plain and laconic; and borrowing for liberty, the ancient privilege of tyrants to let their will stand in the place of argument they bluntly speak this language; "we are millions of freemen, and will not stoop to reason with those who threaten to enslave us." They hurl back the menace upon the head from which it issued, little caring whether it came from Goth, or Hun, or Calmuck; with a frank- ness that outwitted the craft of the Bohemian, and a spirit that defied the ferocity of the Tartar, and a firmness that mocks the obstinacy of the Vandal. If they find leagued against them the tyrants by whom the world is infested, they may console themselves with this reflection, that wherever there is an Englishman, either of the old world or of the new wherever there is a Frenchman, with the miserable excep- tion of that little band which now, for a moment, sways the desti- nies of France in opposition to the wishes and interests of its gallant and liberal people a people which, after enduring the miseries of the Revolution, and wading through its long and bloody wars, are entitled, Heaven knows, if ever any people were, to a long enjoyment of peace and liberty, so dearly and so honourably purchased wherever there breathes an Englishman or a true-born Frenchman wherever there beats a free heart or exists a virtuous mind, there Spain has a natural ally, and an inalienable friend. For my own part, I cannot but ad- mire the mixture of firmness and forbearance which the government of Spain has exhibited. When the Allied Monarchs were pleased to adopt a system of interference with the internal policy of Spain when they thought fit to deal in minute and paltry criticisms upon the whole course of its domestic administration when each sentence in their manifestoes was a direct personal insult to the government, nay to every individual Spaniard and when the most glaring attempts were made in all their state papers to excite rebellion in the country, and to stir up one class of the community against the other it would not have surprised me, if, in the replies of the Spanish government some allusion had been made to the domestic policy of the Allied Sovereigns; or if some of the allegations which had been so lavishly cast upon it, had been scornfully retorted upon those who had so falsely and so insolently called them forth. What could have been more pardonable, nay, what more natural, than for the Spanish govern- ment to have besought his Prussian Majesty, who was so extremely 352 HOLY ALLIANCE. anxious for the welfare and good government of Spain who had shown himself so minute, a critic on its laws and institutions, and who seemed so well versed in its recent history to remember the promises which he made some years ago to his own people, by whose gallant exertions, on the faith of those promises, he had regained his lost crown? What would have been more natural than to have suggested, that it would be better, ay, and safer too in the end, to keep those promises, than to maintain, at his people's cost, and almost to their ruin, a prodigious army, only safely employed when in the act of ravaging the territories, or putting down the liberties, of his neigh- bours? The government of Spain would have had a right to make such representations, for his Prussian Majesty owed much, very much, to its exertions; indeed, the gallant resistance which it made to the invasion of Buonaparte had alone enabled Prussia to shake off the yoke; while, on the other hand, the Spaniards owed a debt of grati- tude to the brave and honest people of Prussia for beginning the resist- ance to Buonaparte in the north. Could any thing, I will also ask, have been more natural for the Spanish government, than to have asked the Emperor of Austria, whether he who now pretended to be so scrupulously fond of strict justice in Ferdinand's case, when it cost him nothing, or must prove a gain, had always acted with equal jus- tice towards others, when he was himself concerned? Could anything have been more natural, than suggesting to him, that before he was generous to King Ferdinand, he might as well be just to King George; that he had better not rob the one to pay the other nay, that he ought to return him the whole, or at any rate, some part of the millions, principal and interest, which he owed him? a debt which, remaining unpaid, wastes the resources of a faithful ally of Spain, and tends mightily to cripple his exertions in her behalf. I wish likewise to know what could have been more natural nay, if the doctrine of interference in the internal concerns of neighbouring nations be at all admitted what could have been more rightful, in a free people, than to have asked him how it happened that his dungeons were filled with all that was noble, and accomplished, and virtuous, and patriotic in the Milanese? to have called on him to account for the innocent blood which he had shed in the north of Italy? to have required at his hands satisfaction for the tortures inflicted in the vaults and caverns where the flower of his Italian subjects were now languishing? to have demanded of him some explanation of that iron policy which has consigned fathers of families, the most virtuous and exalted in Europe, not to the relief of exile or death, but to a merciless imprison- ment for ten, fifteen, and twenty years, nay, even for life, without a knowledge of the charge against them, or the crime for which they are punished? Even the Emperor Alexander himself, tender and sensitive as he is at the sight of blood flowing within the precincts of a royal palace, a sight so monstrous, that if his language could be credited, it had never before been seen in the history of the world, might have been reminded of passages in that history, calculated to lessen his astonishment at least, if not to soothe his feelings; for the Emperor WAR WITH SPAIN. 353 Alexander, if the annals of Russian story may be trusted, however pure in himself, and however happy in always having agents equally innocent, is nevertheless descended from an illustrious line of ances- tors, who have, with exemplary uniformity, dethroned, imprisoned, and slaughtered, husbands, brothers, and children. Not that I can dream of imputing those enormities to the parents, or sisters, or con- sorts; but it does happen that those exalted and near relations had never failed to reap the whole benefit of the atrocities, and had ever failed to bring the perpetrators to justice. In these circumstances, if I had had the honour of being in the confidence of his Majesty of all the Russias, I should have been the last person in the world to counsel my Imperial Master to touch upon so tender a topic I should humbly have besought him to think twice or thrice, nay, even a third and a fourth time, before he ventured to allude to so delicate a subject I should, with all imaginable deference, have requested him to meddle with any other topic I should have directed him by preference to every other point of the compass I should have implored him rather to try what he could say about Turkey, or Greece, or even Minorca, on which he has of late been casting many an amorous glance in short, anything and everything, before he approached the subject of " blood flowing within the precincts of a royal palace," and placed his allusion to it like an artful rhetorician, upon the uppermost step of his climax. I find, likewise, in these self-same documents, a topic for which the Spanish government, had it been so inclined, might have administered to the Holy Alliance another severe lecture; I allude to the glib manner in which the three Potentates now talk of an indi- vidual, who, let his failings or even his crimes be what they may, must always be regarded as a great and a resplendent character who, because he was now no longer either upon a throne or at liberty, or even in life, is described by them, not merely as an ambitious ruler, not merely as an arbitrary tyrant, but as an upstart and an usurper. This is not the language which those Potentates formerly employed, nor is it the language which they were now entitled to use regarding this astonishing individual. Whatever epithets England, for instance, or Spain, may have a right to apply to his conduct, the mouths of the allies at least are stopped: they can have no right to call him usurper they who, in Ins usurpations, had been either most greedy accom- plices or most willing tools. What entitles the King of Prussia to hold such language now? he who followed his fortunes with the most shameless subserviency, after the thorough beating he received from him, when trampled upon and trodden down in the year 1SOG? Before he had risen again and recovered the upright attitude of a man, he fell upon his knees, and still crouching before him who had made him crawl in the dust, kissed the blood-stained hand of Napoleon for leave to keep his Britannic Majesty's foreign dominions, the Electo- rate of Hanover, which the Prussian had snatched hold of while at peace with England. So the Emperor Alexander, after he had also undergone the like previous ceremony, did not disdain to lick up the crumbs which foil from the table of his more successful rival in usur- 30* 354 HOLT ALLIANCE. pation. Little, it is true, was left by the edge of Gallic appetite; but rather than have nothing rather than desert the true Russian princi- ple of getting something on every occasion, either in Europe or in Asia, (and of late years they haveeven laid claim to an almost indefinite naval dominion in America) rather than forego the Calmnck policy for the last century and a half, of always adding something, be it ever so little, to what was already acquired, be it ever so great he con- descended to receive from the hand of Buonaparte a few square leagues of territory, with an additional population of some two or three thousand serfs. The object was trifling indeed, but it served to keep alive the principle. The tender heart of the father, over- flowing, as his imperial grandmother had phrased it, with the milk of human kindness for all his children, could not be satisfied without receiving a further addition to their numbers; and therefore it is not surprising, that on the next ocasion he should be ready to seize, in more effectual exemplification of the principle, a share of the booty, large in proportion as his former one had been small. The Emperor of Austria, too, who had entered before the others into the raee for plunder, and never weary in ill-doing, had continued in it till the very end he who, if not an accomplice with the Jacobins of France in the spoliation of Venice, was at least a receiver of the stolen property a felony, of which it was well said at the time in the House, that the receiver was as bad as the thief that magnanimous Prince, who, after twenty years alternation of truckling and vapouring now the feeble enemy of Buonaparte, now his willing accomplice constantly punished for his resistance, by the discipline invariably applied to those mighty Princes in the tenderest places, their capitals, from which they were successively driven as constantly, after punishment, join- ing the persecutor, like the rest of them, in attacking and plundering his allies ended, by craving the honour of giving Buonaparte his favourite daughter in marriage. Nay, after the genius of Buonaparte had fallen under the still more powerful restlessness of his ambition when the star of his destiny had waned, and the fortune of the Allies was triumphant, through the roused energies of their gallant people, the severity of the elements, his own turbulent passions and that without which the storms of popular ferment, and Russian winter, and his own ambition, would have raged in vain, the aid of English arms, and skill, and gallantry strange to tell, these very men were the first to imitate that policy against which they had inveighed and struggled, and to carry it farther than the enemy himself in all its most detestable points. I maintain that it is so; for not even by his bitter- est slanderers was Buonaparte ever accused of actions so atrocious as was the spoliation of Norway, the partition of Saxony, the transfer of Genoa, and the cession of Ragusa, perpetrated by those in whose mouths no sound had been heard for years but that of lamentation over the French attacks upon national independence. It is too much, after such deeds as these it is too much, after the Allies had sub- mitted to a long course of crouching before Buonaparte, accompanied by every aggravation of disgrace it is too much for them now to WAR WITH SPAIN. 355 come forth, and calumniate his memory for transactions, in the benefits of which they participated at the time, as his accomplices, and the infamy of which they have since surpassed with the usual exaggera- tion of imitators. I rejoice that the Spaniards have only such men as these to contend with. I know that there are fearful odds when battalions are arrayed against principles. I may feel solicitous about the issue of such a contest. But it is some consolation to reflect, that those embodied hosts are not aided by the merits of their chiefs, and that all the weight of character is happily on one side. It gives me, however, some pain to find that a monarch so enlightened as the King of France has shown himself on various occasions, should have yielded obedience, even for an instant, to the arbitrary mandates of this ty- rannic junto. I trust that it will only prove a temporary aberration from the sounder principles on which he has hitherto acted: I hope that the men who appear to have gained his confidence only to abuse it, will soon be dismissed from his councils; or if not, that the voice of the country, whose interests they are sacrificing to- rheir wretched personal views, and whose rising liberties they seem anxious to destroy, in gratification of their hatred and bigotry, will compel them to pursue a more manly and more liberal policy. Indeed, the King of France has been persuaded by the parasites who at present surround him, to go even beyond the principles of the Holy Alliance. He has been induced to tell the world, that it is from the hands of a tyrant alone that a free people can hold a constitution. That accomplished Prince and all Europe acknowledges him to be, amongst other things a finished scholar, cannot but be aware that the wise and good men of former times held far other opinions upon this subject; and if I venture to remind him of a passage in a recently recovered work of the greatest philosopher of the ancient world, ii is in the sincere hope thai his Majesty will consider it with all ihe attention that is due to such hi^h authority. That great man said, " Xon in ulla civitate, nisi in qua suniina potestas populi cst, ullmn domicilium libertas habet." I recommend to his Most Christian Majesty the reflection, that this lesson came not only from the wisdom of so great a philosopher, but also from the experience of so great a statesman. I would have him remember that, like himself, he lived in times of great dilliculty and of great danger that he had to contend with the most formidable con- spiracy to which the life, property, and liberty of the citizen had ever been exposed that, to defeat it, he had recourse only to the powers of the constitution threw himself on tin; good will of his patriotic countrymen and only put forth the powers of his own genius, and only used the wholesome vigour of the law. He never thought of calling to his assistance the Allobroges, or the Teutones, or the Scy- thians of his day; and I now say, that if Louis XVIII shall call upon the modern Tentones or Scythians to assist him in this unholy war, the day their hordes move towards the Rhine, judgment will go forth against him, and his family, and his councillors; and the dynasty of Gaul has ceased to reign. What, I ask, are the grounds on which the necessity of this war 356 HOLY ALLIANCE. is defended? It is said to be undertaken because an insurrection has broken out with success at Madrid. I deny this to be the fact. What is called an insurrection, was an attempt to restore the law- ful constitution of the country a constitution which was its estab- lished government, till Ferdinand overthrew it by means of a mu- tiny in the army; and therefore, when a military movement enabled the friends of liberty to recover what they had lost, it is a gross per- version of language to call this recovery, this restoration, by the name of insurrection, an insidious confusion of terms, which can only be intended to blind the reason, or play upon the prejudices, of the honest part of mankind. Let the pretext, however, for the war, be what it may, the real cause of it is not hard to conjecture. It is not from hatred to Spain or to Portugal that the Allied Sovereigns are for marching their swarms of barbarians into the Peninsula it is not against freedom on the Ebro, or freedom on the Miucio, they make war. No, it is against freedom! against freedom wherever it is to be found freedom by whomsoever enjoyed freedom by whatever means achieved, by whatever institutions secured. Free- dom is the object of their implacable hate. For its destruction, they are ready to exhaust every resource of force and fraud. All the blessings which it bestows, all the establishments in which it is em- bodied, the monuments that are raised to it, and the miracles that are wrought by it, they hate with the malignity of demons, who trem- ble while they are compelled to adore; for they quiver by instinct at the sound of its name. And let us not deceive ourselves; these des- pots can have but little liking toward this nation and its institutions, more especially our Parliament and our Press. As long as England remains unenslaved; as long as the Parliament continues a free and open tribunal, to which the oppressed of all nations under heaven can appeal against their oppressors, however mighty and exalted and with all its abuses, (and no man can lament them more than I do, because no man is more sensible of its intrinsic value, which those abuses diminish), with all its imperfections, (and no man can be more anxious to remove them, because none wishes more heartily, by re- storing its original purity, to make it entirely worthy of the country's love), it is still far too pure and too free to please the taste of the continental despots so long would England be the object of their hatred, and of machinations, sometimes carried on covertly, some- times openly, but always pursued with the same unremitting activity, and pointed to the same end. But it is not free states alone that have to dread this system of interference; this plan of marching armies to improve the political condition of foreign nations. It is idle to suppose that those armed critics will confine their objections to the internal policy of popular governments. Can any one imagine, that, if there be a portion of territory in the neighbourhood of the Emperor Alexander peculiarly suited to his views, he will not soon be able to discover some fault, to spy out some flaw in its political institutions requiring his intervention, however little these may savour of demo- cracy, supposing it even to be a part of the Ottoman government itself? WAR WITH SPAIN. 357 If his Imperial Majesty be present in council with his consistory of jurists and diplomatists, I believe that it will be in vain for the Ule- niah to send a deputation of learned Muftis, for the purpose of vindi- cating the Turkish institutions. These sages of the law may contend that the Ottoman government is of the most "venerable description" that it has "antiquity in its favour" that it is in full possession of "the conservative principle of social order'' in its purest form that it is replete with "grand truths;" a system " powerful and para- lyzed" that it has never lent an ear to the doctrines of a " disor- ganized philosophy" never indulged in "vain theories," nor been visited by such things as "dreams of fallacious liberty." All this the learned and reverend deputies of the Ulemah may urge, and may maintain to be true as holy Koran: still "The Three Gentlemen of Verona," I fear, will turn a deaf ear to the argument, and set about prying for some imperfection in the " pure and venerable system" some avenue by which to enter the territory; and, if they cannot find a way, will probably not be very scrupulous about making one. The windings of the path may be hard to trace, but the result of the opera- tion will be plain enough. In about three months from the time of deliberation, the Emperor Alexander will be found one morning at Constantinople or if it suit him, at Minorca for he has long shown a desire to have some footing, in what he pleasantly termed the "western provinces" of Europe, which, in the Muscovite tongue, sig- nifies the petty territories of France and Spain, while Austria and Prussia will be invited to look for an indemnity elsewhere; the latter, as formerly, taking whatever the King of England may have on the Continent. The principles on which this band of confederated despots have shown their readiness to act, are dangerous in the extreme, not only to free states, (and to those to which no liberty can be imputed), but also to the states over which the very members of this unholy league preside. Resistance to them is a matter of duty to all nations, and the duty of this country is especially plain. It behoves us, how- ever, to take care that we rush not blindly into a war. An appeal to arms is the last alternative we should try, but still it ought never to be so foreign to our thoughts as to be deemed very distant, much less impossible; or so foreign from our councils as to leave us unpre- pared. Already, if there is any force in language, or any validity in public engagements, we are committed by the defensive treaties into which we have entered. We are bound by various ties to prevent Portugal from being overrun by an enemy. If (which Heaven avert!) Spain were overrun by foreign invaders, what would be the situation of Portugal? Her frontier on the side of Spain can scarcely be said to have an existence; there is no defending it anywhere; and it is in many places a mere imaginary line, that can only be traced on the page of the geographer; her real frontier is in the Pyrenees; her real defence is in their fastnesses and in the defence of Spain; whenever those passes are crossed, the danger which has reached Spain will hang over Portugal. If we acknowledge the force of treaties, and really mean that to be performed for which we engaged, though we 358 HOLY ALLIANCE. may not be bound to send an army of observation to watch the mo- tions of the French by land, because that would be far from the surest way of providing for the integrity of our ally, at least we are bound to send a naval armament; to aid with arms and stores; to have at all times the earliest information; and to be ready at any moment to give effectual assistance to our ancient ally. Above all things, we ought to do that which of itself will be a powerful British armament by sea and by land repeal without delay the Foreign Enlistment Bill a measure which, in my opinion, we ought never to have enacted, for it does little credit to us either in policy or justice. I will not, how- ever, look backward to measures on the nature of which all may not agree; I will much rather look forward, to avoid every matter of vitu- peration, reserving all blame for the foreign tyrants whose profligate conduct makes this nation hate them with one heart and soul, and my co-operation for any faithful servant of the Crown, who shall, in performing his duty to his country, to freedom, and to the world, speak a language that is truly British pursue a policy that is truly free and look to free states as our best and most natural allies against all enemies whatsoever; allies upon principle, but whose friendship was also closely connected with our highest interests; quarrelling with none, whatever may be the form of their government, for that would be copying the faults we condemn; keeping peace wherever we could, but not leaving ourselves a moment unprepared for war; not courting hostilities from any quarter, but not fearing the issue, and calmly resolved to brave it at all hazards, should it involve us in the affray with them all; determined to maintain, amid every sacri- fice, the honour and dignity of the Crown, the independence of the country, the ancient law of nations, the supremacy of all separate states; all those principles which are cherished as most precious and most sacred by the whole civilized world, OX THE SLAVE TRADE AND SLAVERY INTRODUCTION. MR. WILBERFORCE MR. GRANVILLE SHARP MR. CLARKSON. THE history of the Slave Trade is too fresh in the recollections of men, to require any full details in this place. As soon as South America began to be explored by the Spaniards and Portuguese, it was found that the speculations of their insatiable avarice, which the plunder and torture of the natives had only for the moment appeased, could not be permanently carried on without a supply of hands to work the mines, and to cultivate in the islands, the rich produce of tropical climates. The Indians, a feeble race, unused to toil, were soon exceedingly reduced in num- bers; and the practice was instituted of bringing over Negroes from the coast of Africa. The shortness of the distance between that continent and the Brazils first suggested this traffic to the Portuguese, who had settlements on the African coast; but it was not followed to any great extent, or in a regular manner. The specu- lators of New Spain, however, soon felt the want of hands to work their mines and cultivate their lands; and Bartolomeo de las Casas, a friar of the Dominican order, who had charitably devoted his life to the protection of the unhappy Indians, treated like cattle, only that they were more inhumanly used by their cruel and profligate taskmasters, now joined in the scheme, if he did not first suggest it, of supplying their place with African Negroes. He never reflected, says the his- torian, "upon the iniquity of reducing one race of men to slavery, while consult- ing about the means of granting liberty to another; but, with the inconsistency natural to men who hurry with headlong impetuosity towards a favourite point, in the warmth of his zeal to save the Americans from the yoke, pronounced it lawful and expedient to impose one much heavier upon the Africans."* Charles V granted a patent for introducing four thousand Negroes yearly into Spanish Ame- rica, and thus was begun that horrible traffic which immediately began to ravage Africa, and ended in exposing the American continent to the utmost peril, while it brought eternal disgrace upon the Christian profession and the European name. After this scourge had been suffered to desolate Africa, and to disgrace mankind for two centuries and a half, the attention of men was at length directed to it by some eminent philanthropists of this country. Among these, a high place must be assigned to (Jranville Sharp, than whom a purer spirit never resided in the human form. With a perseverance which is only not unexampled because it set an example afterwards followed by other labourers in the same cause; with a bene- volence which was quite universal, and made the aspect of human suffering so painful to him, that he would suffer any privation to lessen it; with a piety which, * Robertson's America. 360 INTRODUCTION. though it rose to an enthusiasm that oftentimes warped his otherwise clear and sound judgment, was yet wholly unattended with any the least vestige of harsh- ness or intolerance; he pursued, in privacy and seclusion, the paths of charity which lead to no fame among men, which conduct to that peace the world cannot give, and which would have enabled him to hide a multitude of transgressions, if Granville Sharp had had any transgressions to hide. But he was not a mere tole- rant follower of religion, and anxious dispenser of secret benevolence, high and rare as these attributes are. He was one of the most learned men of his time, and could maintain the parts of lettered controversy, classical and theological, with the most accomplished scholars in the church. The wholesale violation of all human rights, and flagrant wreck of all Christian duties, with which the Slave Trade and West Indian slavery had so long outraged and insulted the world, early attracted his regard; and he persevered in trying the legal question, at first held to be desperate How far a slave coming to this country under the power of his master, continues subject to that authority, or gains his personal liberty in com- mon with the other subjects of the realm. Although not bred to the legal pro- fession, he devoted himself to the study of the law, for the purpose of prosecuting this contention; he enlightened lawyers with the result of his researches; he overpowered opposition by the force and the closeness of his reasonings; he dis- armed all personal opposition by the unruffled serenity of his temper, the unequalled suavity of his simple yet frank and honest manners; he gave his fortune, as well as his toil, to the cause; and he ceased not until he obtained the celebrated judg- ment of the King's Bench, so honourable to the law and constitution of this coun- try, that a slave cannot touch our soil, but immediately his chains fall away. This is that famous case of Somerset the Negro,* which has for ever fixed the great principle of personal liberty, by promoting which Granville Sharp did more than had ever before been done towards bringing slavery into an odious conflict with the spirit of British jurisprudence. He stopped not here, however, but continued a zealous and useful coadjutor through the long period of his after life, in all that related to the extinction of the African trafBc, and the slavery of the colonies. He was soon after followed in his bright cpurse by Thomas Clarkson, of whom it has been justly said, nor can higher praise be earned by man, that to the great and good qualities of Las Casas his benevolence his unwearied perseverance his inflexible determination of purpose piety which would honour a saint cou- rage which would accomplish a martyr he added the sound judgment and strict sense of justice which were wanting in the otherwise perfect character of the * This case is very fully and learnedly argued in Mr. Margrave's Juridical Tracts, where a very expanded statement of his argument in the Court of King's Bench is given. Tlie question came on by the Negro body applying, in the year 1771, for a writ of Habeas Corpus, which Lord Mansfield, who issued it, desired might be argued in court on the return being made. Mr. Wallace, Mr. Alleyne, and Mr. ILirgrave argued for the slave's freedom, Mr. Dunning and Sergeant Davy against it. The court, utter taking time to consider, gave judgment for the slave in 177:2. Lord Mansfield said of slavery, in con- cluding his judgment, "Slavery is so odious, that nothing can be suffered to support it but positive law, and it is not allowed or approved by the law of England." The same question had arisen in Scotland, some years before, in the case of Shcddan, a Negro. During the argument before the Court of Session, (a hearing in presence, as it is there termed,) he died, and the point was left undecided until the year 1778, when the court determined, in favour of the slaves, in the case of Wedderburn v. Knight, as the Court of King's Bench had done in Somerset's case. In France, the same question arose in 1731, and the argument is given at large in the Causfs Celebris. The advocates all dwelt with much complacency upon the topic, so familiar to us in this country, that the moment a slave touches French ground he is free, slavery being utterly repugnant to their law, and the air of France being too pure to be breathed but by freemen; and it seems to have been admitted that the Negro's freedom was secured to him at common law; but an edict of 1716 had provided that in certain cases, as for religious instruction, teaching them useful arts, &c., a slave, under very minute and careful regulations, might be brought to France from the colonies, and not acquire his freedom; and the question appears to have been determined in the slave's favour on the ground of these conditions not having been complied with. INTRODUCTION. 361 Spanish philanthropist, While pursuing his studies at Cambridge, he made the Slave Trade the subject of an essay, which gained one of the university prizes, and this accident having called his especial attention to the iniquity of that exe- crable commerce, he devoted his life to waging an implacable hostility with it. The evidence which he collected and brought before a committee formed to obtain its abolition, drew the attention of Mr. Wilberforce, and secured at once the ser- vices of that great man as the leader in the cause. Few persons have ever either reached a higher and more enviable place in the esteem of their fellow creatures, or have better deserved the place they had gained, than William Wilberforce. He was naturally a person of great quickness and even subtilty of mind, willr a lively imagination, approaching to playfulness of fancy; and hence he had wit in an unmeasured abundance, and in all its varieties; for he was endowed with an exquisite sense of the ludicrous in character, the foun- dation of humour, as well as the perception of remote resemblances, the essence of wit. These qualities, however, he had so far disciplined his faculties as to keep in habitual restraint, lest he should ever offend against strict decorum, by intro- ducing light matter into serious discussion, or be betrayed into personal remarks too poignant for the feelings of individuals. For his nature was mild and amiable be- yond that of most men; fearful of giving the least pain in any quarter, even while heated with the zeal of controversy on questions that roused all his passions; and more anxious, if it were possible, to gain over rather than to overpower an adver- sary; disarming him by kindness, or the force of reason, or awakening appeals to his feelings, rather than defeating him by hostile attack. His natural talents were cultivated, and his taste refined by all the resources of a complete Cambridge edu- cation, in which, while the classics were sedulously studied, the mathematics were not neglected; and he enjoyed in the society of his intimate friends, Mr. Pitt and Dean Milner, the additional benefit of foreign travel, having passed nearly a year in France, after the dissolution of Lord Shelburne's administration had removed Mr. Pitt from office. Having entered Parliament as member for Hull, where his family were the principal commercial men of the place, he soon afterwards, upon the ill-fated coalition destroying all confidence in the Whig party, succeeded Mr. Foljambe as member for Yorkshire, which he continued to represent as long as his health permitted him, having only retired to a less laborious seat in the year 1812. Although generally attached to the Pitt ministry, he pursued his course wholly un- fettered by party connection, steadily refused all office through his whole life, nor would he lay himself under any obligations by accepting a share of patronage; and he differed with his illustrious friend upon the two most critical emergencies of his life, the question of peace with France in 1795, and the impeachment of Lord Mel- ville ten years later. His eloquence was of the highest order. It was persuasive and pathetic in an eminent degree; but it was occasionally bold and impassioned, animated with the inspiration which deep feeling alone can breathe into spoken thought, chastened by a pure taste, varied by extensive information, enriched by classical allusion, some- times elevated by the more sublime topics of holy writ the thoughts " Tliut wrapt Isaiah's hallowed soul in fire." Few passages can he cited in the oratory of modern times of a more electrical effect than the singularly felicitous and striking allusion to Mr. Pitt's resisting the torrent of Jacobin principles: " He stood between the living and the dead, and the plague was staid." The singular kindness, the extreme gentleness of his dis- position, wholly free from gall, from vanity or any selfish feeling, kept him from indulging in any of the vituperative branches of rhetoric; but a memorable instance showed that it was anything rather than the want of force which held him off from the use of the weapons so often in almost all other men's hands. When a well known popular member thought fit to designate him repeatedly, and very irregularly, as the " Honourable and religious gentleman" not because he was ashamed of the cross he gloried in, but because he felt indignant at any one in the Uri- tish senate deeming piety a matter of imputation, he poured out a strain of sarcasm which none who heard it can ever forget. A common friend of the parties having 362 INTRODUCTION. remarked to Sir Samuel Romilly beside whom he sat, that this greatly outmatched Pitt himself, the great master of sarcasm, the reply of that great man, and just ob- server, was worthy to be remarked " Yes," said he, " it is the most sinking- thinor I almost ever heard; but I look upon it as a more singular proof of Wilberforce's virtue than of his genius, for who but he ever was possessed of such a formidable weapon, and never used it]" Against all these accomplishments of a finished ora- tor there was little to set on the other side. A feeble constitution, which made him say, all his life, that he never was either well or ill; a voice sweetly musical be- yond that of most men, and of great compass also, but sometimes degenerating into a whine;* a figure exceedingly undignified and ungraceful, though the features of the face were singularly expressive; and a want of condensation, in the latter years of his life especially, lapsing into digression, and ill calculated for a very business- like audience like the House of Commons; may be noted as the only drawbacks which kept him out of the very first place among the first speakers of his age, whom, in pathos, and also in graceful and easy and perfectly elegant diction, as well as harmonious periods, he unquestionably excelled. The influence which the member for Yorkshire always commanded in the old Parliament the great weight which the head, indeed, the founder, of a powerful religious sect, possessed in the country would have given extraordinary authority in the senate to one of far infe- rior personal endowments. But when these partly accidental circumstances were added to his powers, and when the whole were used and applied with the habits of industry which naturally belonged to one of his extreme temperance in every re- spect, it is difficult to imagine any one bringing a greater force to any cause which he might espouse. Wherefore, when he stood forward as the leader of the abolition, vowed impla- cable war against Slavery and the Slave trade, and consecrated his life to the ac- complishment of its destruction, there was every advantage conferred upon this great cause, and the rather that he held himself aloof from all party connection. A few personal friends, united with him by similarity of religious opinions, might be said to form a small party, and they generally acted in concert, especially in all matters relating to ihe Slave question. Of these, Henry Thornton was the most eminent in every respect. He was a man of strong understanding, great powers of reasoning and of investigation, an accurate and a curious observer, but who nei- ther had cultivated oratory at all, nor had received a refined education, nor had ex- tended his reading beyond the subjects connected with moral, political, and theolo- gical learning. The trade of a banker, which he followed, engrossed much of his time; and his exertions, both in parliament and through the press, were cheifly con- fined to the celebrated controversy upon the currency, in which his well known work led the way, and to a bill for restricting the Slave Trade to part of the African coast, which he introduced when the abolitionists were wearied out with their re- peated failures, and had well-nigh abandoned all hopes of carrying the great mea- sure itself. That measure was fated to undergo much vexatious delay, nor is there any great question of justice and policy, the history of which is less creditable to the British Parliament, or, indeed, to some of the statesmen of this country, although, upon it mainly rests the fame of others. When Mr. Wilberforce, following in Mr. Clarkson's track, had with matchless powers of eloquence, sustained by a body of the clearest evidence, unveiled all the horrors of a traffic, which, had it been attended with neither fraud nor cruelty of any kind, was, confessedly, from beginning to end, not a commerce, but a crime, he was defeated by large majorities, year after year. When at length, for the first time, in 1801, he carried the Abolition Bill through the Commons, the Lords im- mediately threw it out; and the next year it was again lost in the Commons. All this happened while the opinion of the country was, with the single exception of persons having West India connections, unanimous in favour of the measure. At * Habebat enim flcbilc qniddam in qutcstibus aptumque cum ad fidum f.iciendam tuin ad misericordiarn cornmovendam: ut vcrum videretur in hoc illud quod Dcmosthcnem fc- runt ei qui quaesivisset quid primuin cssct in diccndo aclioncm, quid sccundum idem, et idem tertium respondisse. Nulla res magis penetrat in animos, cosqnc fingii, format ct flectit, talesque oratores vidcri facit, quales ipsi se videri volunt. (CICERO, Brutus,} INTRODUCTION. 363 different times there was the strongest and most general expression of public feeling upon the subject, and it was a question upon which no two men endowed with reason, could possibly differ, because, admitting whatever could be alleged about the profits of the traffic, it was not denied that their gain proceeded from pillage or murder. Add to all this, that the enormous evil continued to disgrace the country and its legislature for twenty years, although the voice of every states- man of any eminence, Mr. Windham alone excepted, was strenuously lifted against it although, upon this very question, Pitt, Fox, and Burke, heartily agreed although by far the finest of all Mr. Pitt's speeches were those which he pro- nounced against it and although every press and every pulpit in the island habitually cried it down. How are we, then, to account for the extreme tenacity of life which the hateful reptile showed? How to explain the fact that all those powerful hands fell paralyzed, and could not bring it to death] If little honour redounds to the Parliament from this passage in our history, and if it is thus plainly shown that the unreformed House of Commons but ill represented the country; it must also be confessed that Mr. Pitt's conduct gains as little glory from the retrospect. How could he who never suffered any of his coadjutors, much less his underlings in office, to thwart his will even in trivial matters he who would have cleared any of the departments of half their occupants, had they presumed to have an opinion of their own upon a single item of any budget, or an article in the year's estimates how could he, after shaking the walls of the senate with the thunders of his majestic eloquence, exerted with a zeal which set at defiance all suspicions of his entire sincerity, quietly suffer, that the object, just before declared the dearest to his heart, should be ravished from him when within his sight, nay within his reach, by the votes of the secretaries and under-secretaries, the puisne lords and the other fry of mere placemen the pawns of his boards'? It is a question often anxiously put by the friends of the abolition, never satisfactorily answered by those of the minister; and if any additional comment were wanting' on the darkest passage of his life, it is supplied by the ease with which he cut off the slave traffic of the conquered colonies, an importation of thirty thousand yearly, which he had so long suffered to exist, though an order in council could any day have extinguished it. This he never thought of till 1805, and then, of course, the instant he chose, he destroyed it forever with a stroke of his pen. Again, when the Whigs were in power, they found the total abolition of the traffic so easy, that the measure in pursuing which Mr. Pitt had for so many long years allowed him- self to be baffled, was carried by them with only sixteen dissentient voices in a House of 250 members. There can then, unhappily, be but one answer to the question regarding Mr. Pitt's conduct on this great measure. He was, no doubt, quite sincere, but he was not so zealous as to risk anything, to sacrifice anything, or even to give himself any extraordinary trouble for the accomplishment of his purpose. The court was decidedly against abolition; George III always regarded the question with abhorrence, as savouring of innovation and innovation in a part of his empire, connected with his earliest and most rooted prejudices the colonies. The courtiers took as is their wont, the colour of their sentiments from him. The peers were of the same opinion. Mr. Pitt had not the enthusiasm for right and justice, to risk in their behalf the friendship of the mammon of unrighte- ousness, and he left to his rivals, when they became his successors, the glory of that sacred triumph in the cause of humanity, which should have illustrated his name, who in its defence, had raised all the strains of his eloquence to their very highest pitch. Notwithstanding the act of 1807 had made the slave trade illegal after the 1st of January 180H, by whomsoever carried on in the British dominions, and by British subjects wheresoever carried on; yet, as forfeitures and penalties of a pecu- niary kind were the only consequences of violating the law, the temptations of high profit induced many, both capitalists and adventurers, to defy the prohibitions of the statute, and the clearest proofs were soon furnished of British subjects being employed in the slave trade under tho most flimsy disguises. It becmno necessary at length to treat this traffic as a crime, and no longer to deal with tlio criminals nn smugglers only, who have broken some provisions of the revenue lu\v. Mr. Brougham taking this view of the subject, broached it in the House of Com- 364 INTRODUCTION. mons on 14th June 1810, in the following speech; and following up the resolu- tions and address, then adopted unanimously by the Commons, he next session brought in and carried without a dissenting voice, through both Houses of Par- liament, the bill declaring slave-trading a felony, and punishing it with fourteen years transportation or imprisonment for five years. In 1824, this punishment was deemed insufficient; the offence was made capital, and so continued until the acts for mitigating the rigour of the criminal law in 1837, made slave-trading punish- able with transportation for life. There is every reason to think that no British subjects are now or have for many years been directly engaged in this execrable traffic, with the exception of those belonging to the Mauritius. In that island it is certain, that with the connivance, if not under the direct encouragement of the higher authorities of the colony, slave-trading to an enormous extent, was for some years openly carried on. A colonial Secretary of State admitted that above 25,000 Negroes had been brought over from the African coast, in other words, 25,000 capital felo- nies committed under the eye, if not with the encouragement of the government. It is an unenviable reflection which is left to us, that for all those human beings, illegally held in bondage, and in not one of whom could there by law be any kind of property claimed, full compensation, at the rate of 53 each, has been allowed by the commissioners, and paid by the people of this country and that besides this sum of at least a million and a half being so squandered upon the vile and sordid wrong-doers, those felons and accomplices of felons are still suffered to claim the labour of the Africans, under the name of indentured apprentices. With the flagrant exception of the Mauritius, there is no reason to believe that any British subjects have, since the felony act of 1811 came into operation, been directly con- cerned in the traffic; but there is too much reason to suspect that British capital has pretty freely found its way into that corrupt channel. SPEECH o.v THE SLAVE TRADE JUNE 14, 1810. SIR, I rise, pursuant to notice, to call the attention of the House to the state of the Slave Trade, a subject of the first importance; and, although it is neither a personal question, nor a party one; although its discussion involves neither the pursuit nor the defence of place; although, indeed, it touches matters of no higher concernment than the honour of the House and the country, and the interests of humanity at large; I trust that it will, nevertheless, receive the same favourable consideration which it has so often experienced upon former occasions. The question I propose to submit to the House is, Whether any, and what measures can be adopted, in order to watch over the execution of the sentence of condemnationtwhich Parliament has, with a singular unanimity, pronounced upon the African Slave Trade? It is now four years since Mr. Fox made his last motion in this house, and, I believe, his last speech here, in favour of the abolition. He then proposed a resolution, pledging the House to the abolition of the traffic, and moved an address to the crown, beseeching his Majesty to use all his endea- vours for obtaining the concurrence of other powers in the pursuit of this great object. An address to the same effect was voted by the other House, with equal unanimity; and, early in the next year, two noble friends of mine,* who were second only to my honourable friend,t prevented by indisposition from attending this day, in their services to the cause, and will yield not even to him in their zeal for its success, gave the Parliament an opportunity of redeeming its pledge, by introducing the Abolition Bills in the two Houses. That measure, which had formerly met so many obstacles, whether, as some are willing to believe, from the slowness with which truth works its way, or, as others were prone to suspect, from the want of zeal in its official supporters, now experienced none of the impediments that had * Lords Grenvillc and Grev. t Mr. Wilbcrforce. 31* 366 THE SLAVE TRADE. hitherto retarded its progress. Far from encountering any formidable difficulties, it passed through Parliament almost without opposition; and one of the greatest and most disputed of measures, was at length carried by larger majorities, perhaps, than were ever known to divide upon any contested question. The friends of the abolition, however, never expected that any legislative measure would at once destroy the Slave Trade: they were aware how obstinately such a trade would cling to the soil where it had taken root; they anticipated the difficul- ties of extirpating a traffic which had entwined itself with so many interests, prejudices, and passions. But I must admit, that although they had foreseen, they had considerably underrated, those difficulties. They had not made sufficient allowance for the resistance which the real interests of those directly engaged in the trade, and the supposed interests of the colonists, would oppose to the execution of the acts; they had underrated the wickedness of the Slave Trader, and the infa- tuation of the planter. While on the one hand it appears, from the documents I formerly moved for, that nothing has been done to cir- cumscribe the foreign Slave Trade, it is now found, that this abomi- nable commerce has not completely ceased, even in this country! I hope the House will favour me with its attention, while, from the papers on the table, and from such other information as I have been enabled to obtain, I lay before it a statement, which will, in some measure, enable it to appreciate the extent of the evil, and to apply the proper remedies. I shall now proceed to call the attention of the House to the state of the Slave Trade in foreign countries. In these it exists variously. In America it is contraband, as in England, having been prohibited by law, but it is still carried on, illegally, for the supply of the American as well as of foreign plantations: while, in the colonies of Portugal and Spain, it is still sanctioned by tlje laws, and even receives pecu- liar encouragement from the government. The extent of the Spanish Slave Trade I cannot state very accurately, but, from returns at the custom-house at Cadiz, to which I have had access, and from the well- known increase of the sugar culture in Cuba, the importation of Negroes appear to be very great. The average annual importation into that island, during thirteen years, from 17S9 to 1803, was 5S40; and it is evidently upon the increase, for the average of the last four years of the period was 8600; the total number imported during the period exceeded 76.000 slaves. This statement, among other things, proves how much the American flag is used in covering the foreign Slave Trade; for, after the commencement of hostilities between Spain and this country, the trade could only have been carried on to a very limited extent in Spanish bottoms; and yet, instead of being checked by the war, it has greatly increased since 1795. The culture of sugar has likewise increased at Porto Rico, and on the Main, and with it, of course, the importation of slaves. The precise amount of this I cannot speak to; but I have every reason to suppose it very inconsiderable, when compared with the traffic in Cuba. The annual importation of Mexico does not exceed 100 Negroes, and that of the settlements on THE SLAVE TRADE. 367 the South Sea is only 500. The other colonies obtain their supplies principally through the Brazils. With regard to the Portuguese Slave Trade, I cannot speak with more precision. During my residence at Lisbon, in the king's ser- vice, I had oth'cial communication with the Portuguese minister, and also with a person of high rank, who had been governor of the northern provinces of Brazil, and was then going out as governor of Angola and Benguela, upon the African coast. It appeared from the returns of a capitation-tax on Negroes exported from Africa, (which gentlemen will perceive must give the lowest amount of the exporta- tion,) that there were annually sent to the Brazils, from that part of Africa alone, above 15,000 Negroes; and this was reckoned only one- half of the total number exported from all parts of the Portuguese settlements. From another quarter, of high authority, I learned that this, if estimated at 30,000, would not be overrated. But the branch of the trade which it is the most important to attend to at present, is that carried on by American vessels, in open violation of the laws of the United States. I firmly believe, as I have before stated when the matter was questioned by the right honourable gentleman opposite,* that the American government has all along acted in regard to the Slave Trade, with the most perfect sincerity and good faith. They had, indeed, set us the example of abolishing it. All the states, except two, Georgia and South Carolina, had early abolished it by acts of their separate legislatures, before the period arrived when the consti- tution gave Congress a right to pass such a law for the whole Union; and, as soon as that period arrived, viz. at the beginning of the year 1S08, the traffic was finally prohibited by an act of Congress. But it is one thing to pass a law, and another to carry it into execution, as we have ourselves found on this side of the water, I am sorry to think; and, although the American legislature and the government have done all that lies in their power, it requires much greater naval means than they possess to suppress effectually their contraband Slave Trade. They may, in a great measure, by their police, prevent the importation of Negroes into the United States; nnd this they have done: but the bulk of their contraband Slave Trade is carried on between Africa and the islands, or Africa and South America; and, to check this, a very different navy is wanted from any that the Ameri- cans (happily for this country, in every point of view, except the one now in question,) are likely, fora long series of years, to possess. By such a contraband trade, the Spanish and Portuguese colonies, and not only they, but our own settlements, are supplied with slaves: and in this manner it is that the foreign Slave Trade interferes with our own abolition. What I intend to propose is, that the executive government shall be exhorted to take such further steps as may be conducive to the object of the joint address of both branches of the legislature. Unless the American flag can, by some means or other, be excluded from its * Mr. Canning. 368 THE SLAVE TRADE. large share in this abominable commerce; and unless the Spanish and Portuguese governments can be brought to some concurrent arrange- ment; the trade must still be carried on to an enormous extent; and it is in vain to talk even of abolishing it entirely in our own colonies. Our largest island is within a day's, I should rather say, a night's sail, of the largest slave colony of Spain. Our other old colonies lie in the very track both of the Spanish and American slave-ships. When the vast plantations of Trinidad and Guiana are in such want of Negroes to clear their waste lands, and are situated almost within sight of the Spanish slave market, where the law still sanctions that infernal traffic, how can it be expected that the British abolition should be effectual? A gentleman of the profession to which 1 have the honour of belong- ing, having lately returned from Berbice, informs me of the manner in which our planters carry on this contraband intercourse. The Oroonoko falls into the sea between Trinidad and Guiana. The Spanish slave- ships take their station near its mouth, and our planters send large boats along the coast to the station of the ships, from whence they are supplied with cargoes of sixty or seventy Negroes by trans-shipment at sea, and these cargoes they land on their return, in the various creeks of the settlements, so as to elude the utmost vigilance of the colonial officers. Does not this single fact evince the necessity of forming some arrangement with the Spanish government, while the friendly rela- tions between the two governments subsist? The great obstacle which I always find opposed to such a proposition is, What can we do? Those nations, it is pretended, are wedded to their own prejudices; they have views of their own, arid we cannot interfere. Of this argu- ment, I entertain very great suspicion, and for one plain reason, that it is on the single subject of the abolition that I ever hear it used; it is here alone that any want of activity is ever observed in our govern- ment, or that we ever hear of our want of influence in the councils of our neighbours. On all other measures, some of suspicious, some of doubtful policy in matters indifferent, or repugnant to humanity we are ready enough to intrigue, to fight, to pay. It is only when the interests of humanity are concerned, and ends the most justifiable, as well as expedient, are in view, that we not only all at once lose our activity and influence, but become quite forward in protesting that we have no power to interfere. From one end of Europe to the other our weight is felt, and in general it is no very popular thing to call it in question. At all times we are ready enough to use it, as well as to magnify it; but on this one occasion we become both weak and diffi- dent, and while we refuse to act, must needs make a boast of our impotency. Why, we never failed at all when the object was to obtain new colonies, and extend the Slave Trade! Then we could both conquer and treat; we had force enough to seize whole provinces where the Slave Trade might be planted, and skill enough to retain them by negotiation, in order to retain with them the additional com- merce in slaves, which their cultivation required. It is natural, there- fore, for me to view with some suspicion our uniform failure, when the object is to abolish or limit this same Slave Trade. I suspect it may THE SLAVE TRADE. 369 arise from there being some similarity between our exertions in the cause and those of some of its official advocates in this House; that we have been very sincere, no doubt, but rather cold without a particle of ill-will towards the abolition, but without one spark of zeal in its favour. I shall now answer the question of, " What can we do to stop the foreign Slave Trade?" by putting another question; and I would ask, " How have we contrived to promote the Slave Trade when that was our object?" I would only desire one tenth part of the influence to be exerted in favour of the abolition, which we have with such fatal success exerted in augmenting the slave traffic; when, by our cam- paigns and our treaties, we acquired the dominion of boundless and desert regions, and then laid waste the villages and the fields of Africa, that our new forests might be cleared. But if I be asked to what objects our influence should be directed, I have no hesitation in pointing them out: And, first, I should say, the Spanish and Portuguese governments. Happily, in those quarters where most is to be attempted, our influence is the greatest at the pre- sent moment; for both countries we have done much, and having lavished our blood and our treasure in defending them from cruelty, injustice, and every form of ordinary oppression, it is certainly not asking too much to require that they should give over a course of iniquity towards nations as innocent as they, and infinitely more injured by them. Everything favours some arrangement with Spain, on this point. The only Spanish colonies where the sugar cane is extensively cultivated are the islands, and of these principally Cuba. To that settlement the bulk of the Slave Trade is confined. On the main land there is little demand for slaves; about 1400 are annually sent to Buenos Ayres, 500 to Peru and Chili, and only 100 to Mexico, while Cuba receives 8,600 a-year. This then is the only Spanish colony which can suffer materially; and it is reasonable to expect that the Spanish government would not refuse this inconsiderable sacri- fice. At any rate some arrangement might be made both with Por- tugal and Spain, to prevent their flags from being used for the purposes of the foreign Slave Trade. Adverting next to the means which we have of inducing the American government to make some arrangement, I admit that our influence in that quarter is not so powerful; but I would throw out one or two remarks for the consideration of ministers. First, an at- tempt ought to be made to supply the deficiency of naval resources in America, by lending the assistance of our own; and I should sug- gest the necessity of the two governments coming to some understand- ing, that the cruisers of each may capture the contraband slave ships of the other country. From communications which I have held with persons of high rank in the service of the United States, I have reason to think, that such an arrangement would not be greatly objected to in America. An opening for a proposal of this nature is certainly afforded by the correspondence which has taken place between Mr. Erskine and the American government relative to the orders in coun- 370 THE SLAVE TRADE. cil, and non-intercourse laws; for an assurance is there given, that if a British cruiser capture an American found acting contrary to the American municipal law, the government of the United States will never notice the capture; and though there is an objection to recog- nising by treaty the non-intercourse law, it by no means follows, that a similar recognition could not be obtained in the present instance. The right thus given must no doubt be mutual, but so is every right which this country claims under the law of nations; and it should be remembered, that the two parties are very differently affected by it; for while the Americans could scarcely search or detain half a dozen of our slave vessels in a year, we should be enabled to stop hundreds of theirs. The advantage of such an arrangement to our own plant- ers would also be great; for if rival foreigners carry on the Slave Trade, while it is prohibited in our settlements, our planters are, for a certain time at least, liable to be undersold in the sugar market, and subjected to a temporary pressure. Another circumstance with regard to American ships, I throw out for the consideration of merchants and cruisers. It appears to me, that even without any such arrangement between the two governments, the expeiiment of capturing American slave ships might safely be made. I have every reason to believe, that no reclamation whatever would be made by the American go- vernment if such vessels were detained, however great their numbers might be. A claim might no doubt be entered by individual owners, when the vessels were brought in for condemnation, and the courts of prize have been in the practice of saying, that they cannot take notice of the municipal laws of other countries. But, beside the great risk to which American owners expose themselves by making such claims, (the risk of the penalties which they thereby prove themselves to have incurred under the Abolition Acts of America), it is to be observed, that the courts require a proof of property in the claimants; and I wish to see whether courts sitting and judging by the law of nations are prepared to admit of a property in human iflesh.* I wish to know * This opinion has since been fully confirmed by the decision of the Lords of Prize Appeal in the case of the Amedie, as appears by the following- Report of the Judgment of the Lords Commissioners of Prize Appeals, at the Privy Council, Sa- turday, July 28, 1810. Case of the Amedie; James Johnson, master. This was a vessel under Ameri- can colours, with slaves from Africa, captured in December, 1807, in the West In- dies, and carried into Tortola. The claimant pretended that she was bound to Charleston, South Carolina, where the importation of slaves continued to be law- ful to the end of that year; but that, having been detained on the coast, and there being no prospect of reaching Charleston before the 1st of January 1808, the period appointed for the cessation of the Slave Trade in every part of the United States, by a law of the General Congress, the master of necessity bore away for the island of Cuba, there to wait directions from his owners. It was contended, on the other hand, by the captor, that this statement was a mere pretence, and that, in truth, the original plan of the voyage was a destination to Cuba, which was un- lawful under the American laws, long previous to their general abolition of the Slave Trade. Admitting, however, the case to be so, it was strenuously contended for the claimant, that a British court of prize had no right to take any cognizance of American municipal law, and that, as no belligerent right of this country had THE SLAVE TRADE. 371 in what part of that law any such principle is recognized. I desire to be informed where the decision or where the dictum is, which allows a person to bring forward a claim in a court of the law of nations, for the bodies of humnu beings forcibly and fraudulently obtained, or at all events carried away from their homes against their will, and by violence confirmed, and compelled to labour and suffer? What I am anxious to see is, how such a claim can be stated with common de- cency in such courts: I have no great fears as to the reception it would meet with: it is repugnant to the whole law of nature, and any knowledge of the law of nations which I possess affords me no authority for it. I earnestly hope some persons connected with priva- teers and cruisers may soon try the question. They could run no risk, I venture to assert on my own authority, and still more confidently on been violated, tlie property ought to be restored to the neutral owner. A series of precedents seemed to support this doctrine. The ship was condemned at Tortola, and the enslaved Africans were, according to the Abolition act, restored to their freedom; but the claimant appealed, and the liberty of the Africans, as well as the property of the ship, depended on the issue of this appeal. The case was solemnly argued in March last, and as, in the opinion of the court, it turned on the new ques- tion of the effect of the American and British Abolition Acts on this species of con- traband commerce, when brought before a court of prize, the case, on account of its importance, has since stood over for judgment. Several other cases of American slave ships have also stood over, as depending on the same general question. The judgment of the court was delivered hy Sir William Grant, the Master of the Rolls, nearly in the following terms: " This ship must be considered as being employed, at the time of capture, in carrying slaves from the coast of Africa to a Spanish colony. We think that this was evidently the original plan and purpose of the voyage, notwithstanding the pretence set up to veil the true intention. The claim- ant, however, who is an American, complains of ihe capture, and demands from us the restitution of property, of which he alleges that he has been unjustly dispossessed. In all the former cases of this kind, which have come before this court, the Slave Trade was liable to considerations very diflVrent from those which belong to it now. It had at that time been prohibited (as far as respected carrying slaves to the colo- nies of foreign nations) by America, but by our own laws it was still allowed. It appeared to us, therefore, difficult to consider the prohibitory law of America in any other light than as one of those municipal regulations of a foreign state, of which this court could not take any cognizance. Hut by the alteration which has since taken place the question stands on different grounds, and is open to the application of very different principles. The Slave Trade has since been totally abolished in this country, and our legislature has pronounced it to be contrary to the principles of justice and humanity. Whatever we might think as individuals before, we could not, sitting as judges in a British court of justice, regard the trade in that light, while our own laws permitted it. Hut we can now assert, that this trade cannot, abstractedly speaking, have a legitimate existence. When I say abstractedly speaking, I mean this country has no right to control any foreign legislature that may think fit to dissent from this doctrine, and to permit to its own subjects the prosecution of this trade; but we have now a right, to affirm, that prima facie tin; trade is illegal, and thus to throw on claimants the burden of proof that in respect of them, by the authority of their own laws, it is otherwise. As the case now stands, wo think wo are entitled to say, that a claimant can have no right, upon principles of universal law, to claim the restitution in a prize court, of human beings carried as his slaves. He must show some right that has been violated by the cap- ture, some property of which ho has been dispossessed, and to which he ought to he restored. In this case, the laws of the claimant's country allow of no ri^lit of pro- perty of such as lie claims. There can therefore- be no right to rcMituti<'ti. Tim consequence is, that the judgment must be affirmed." 372 THE SLAVE TRADE. that of professional friends who frequent the prize courts, that no risk whatever of being condemned in costs could possibly be incurred, even if the vessels were restored. Without running any risk, much good may thus be done; and I should feel satisfied that I have more than announced the ends I had in view when I began this discussion, if I could persuade myself that what I now say may lead any one to make this important trial. Having hitherto only spoken of the foreign Slave Trade, it is with great mortification that I now feel myself obliged to call the attention of the House to the evasions of the Abolition Acts in this country. For accomplishing this detestable purpose, all the various expedients have been adopted which the perverse ingenuity of unprincipled ava- rice can suggest. Vessels are fitted out at Liverpool, as if for inno- cent commerce with Africa. The ships, and even the cargoes, are, for the most part, the same as those used in the trade of gold-dust, grains, and ivory. The goods peculiarly used in the Slave Trade are carefully concealed, so as to elude the reach of the port officers. The platforms and bulk-heads which distinguish slave ships are not fitted and fixed until the vessel gets to sea, and clears the channel, when the carpenters set to work and adapt her for the reception of slaves. For better concealment, some of the sailors, and not unfrequently, the master himself, are Portuguese. But it is remarkable, that, lurking in some dark corner of the ship, is almost always to be found a hoary slave trader an experienced captain, who, having been trained up in the slave business from his early years, now accompanies the ves- sel as a kind of supercargo, and helps her, by his wiles, both to escape detection, and to push her iniquitous adventures. This is not a fan- ciful description. I hold in my hand the record of a court of justice, which throws so much light on the subject, that I moved, on a former night, to have it laid on the table. It appears from thence, that, but a few months ago, in the very river which washes the walls of this house, not two miles from the spot where we now sit, persons daring to call themselves English merchants have been detected in the act of fitting out a vessel of great bulk for the purpose of tearing seven or eight hundred wretched beings from Africa, and carrying them through the unspeakable horrors of the middle passage to endless bondage and misery, and toil which knows no limits, nor is broken by any rest, in the sands and swamps of Brazil. This detection has been made by the zeal and knowledge of a much loved and respected friend of mine,* who was only enabled to pursue so difficult an investigation by that perfect acquaintance with the subject, which lie has acquired by his residence in Africa as governor of Sierra Leone, and by having even submitted to the pain of a slave voyage for the purpose of better learn- ing the nature of the traffic. I shall here read several extracts from the record of condemnation of the Comercio de Rio, in the Court of Exchequer last Hilary term. It appears, that besides an enormous stock of provisions, water-casks, * Mr. Z. Macaulay. THE SLAVE TRADE. 373 mess-kits, &c. there were found on board fifty-five dozen of padlocks, ninety-three pair of hand-cuffs, a hundred and ninety-seven iron shackles for the feet, thirteen hundred weight three quarters of iron chains, one box of religious implements, and, that the bodily as well as the spiritual health of this human cargo might not be neglected, the slave merchants, out of their rare humanity which one must really have known a good deal of the sort of character, easily to be- lieve allowed, for the medical wants of eight hundred negroes, of all ages, crammed into a loathsome cage, and carried through new and perilous climates during a voyage of weeks, or even months one little medicine chest, value 5. This is not the only instance of the kind, nor even the latest one, I grieve to say, recent though it be. I mentioned on a former night, that at one port of this country, six ves- sels have only just been fitted out, by a similar course of base fraud, for the same trade, or rather let me call it, the same series of detest- able crimes. It is now three years since that abominable traffic has ceased to be sanctioned by the law of the land; and, I thank God, I may therefore now indulge in expressing feelings towards it, which delicacy rather to the law than the traffic, might, before that period, have rendered it proper to suppress. After a long and most unaccountable silence of the law on this head, which seemed to protect, by permitting, or at least by not prohibiting the traffic, it has now spoken out, and the veil which it has appeared to interpose being now withdrawn, it is fit to let our indignation fall on those who still dare to trade in human flesh, not merely for the frauds of common smugglers, but for en- gaging in crimes of the deepest dye; in crimes always most iniquitous, even when not illegal; but which now are as contrary to law as they have ever been to honesty and justice. I must protest loudly against the abuse of language, which allows such men to call themselves traders or merchants. It is not commerce, but crime, that they are driving. I too well know, and too highly respect, that most honour- able and useful pursuit, that commerce whose province it is to human- ize and pacify the world so alien in its nature to violence and fraud so formed to flourish in peace and in honesty so inseparably con- nected with freedom, and good will, and fair dealing, I deem too highly of it to endure that its name should, by a strange perversion, be prostituted to the use of men who live by treachery, rapine, tor- ture, and murder, and are habitually practising the worst of crimes for the basest of purposes. When I say murder, I speak literally and advisedly. I mean to use no figurative phrase; and I know I am guilty of no exaggeration. I am speaking of the worst form of that crime. For ordinary murders there may be some excuse. Revenge may have arisen from the excess of feelings honourable in themselves. A murder of hatred, or cruelty, or mere bloodthirstiness, can only be imputed to a deprivation of reason. But here we have to do with cool, deliberate, mercenary murder, nay, worse than this; for the ruf- fians who go on the highway, or the pirates who infest the seas, at least expose their persons, and, by their courage, throw a kind of false VOL. i. 32 374 THE SLAVE TRADE. glare over their crimes. But these wretches dare not do this. They employ others as base as themselves, only that they are less cowardly; they set on men to rob and kill, in whose spoils they are willing to share, though not in their dangers. Traders, or merchants, do they presume to call themselves! and in cities like London and Liverpool, the very creations of honest trade? I will give them the right name, at length, and call them cowardly suborners of piracy and mercenary murder! Seeing this determination, on the part of these infamous persons, to elude the Abolition Act, it is natural for me to ask, before I conclude, whether any means can be devised for its more effectual execution. I would suggest the propriety of obtaining from the Por- tuguese government, either in perpetuity, or for a term of years, the island of Bissao, situated on the African coast, and the only foreign settlement in that quarter where our commerce chiefly lies. This cession would leave us a coast of five hundred miles' extent, wholly uninterrupted, and greatly facilitating the destruction of the slave traffic in that part of Africa. I would next remark, that the number of cruisers employed on the African coast is too scanty. It is thither, and not to America, that vessels intended to detect slave traders should be sent; because a slave ship must remain for some weeks on the coast to get in her cargo, whereas she could run into her port of des- tination in the West Indies in a night, and thus escape detection; yet, to watch a coast so extensive as the African, we had never above two, and now have only one cruiser. I would recommend, that the ships thus employed should be of a light construction and small draught of water, that they may cross the bars of the harbours, in order to follow the slave-ships into the shallows and creeks, and up the mouths of rivers, and also that they should be well manned, and provided with boats, for the same purpose. It would be impossible to employ six or seven light ships better than on such a service. It is even more economical to employ a sufficient number; the occasion for them would, by this means, speedily cease. Once root out the trade, and there is little fear of its again springing up. The industry and capital required by it will find out other vents. The labour and ingenuity of the persons engaged in it will seek the different channels which will continue open. Some of them will naturally go on the highway, while others will betake themselves to piracy, and the law might, in due time, dispose of them. But I should not do justice either to my own sentiments, or to the great cause which I am maintaining, were I to stop here. All the measures I have mentioned are mere expedients mere makeshifts and palliatives, compared with the real and effectual remedy for this grand evil, which I have no hesitation in saying it is now full time to apply. I should, indeed, have been inclined to call the idea of stop- ping such a traffic by pecuniary penalties, an absurdity and incon- sistency, had it not been adopted by Parliament, and were I not also persuaded, that in such cases it is necessary to go on by steps, and often to do what we can, rather than attempt what we wish. Never- theless, I must say, after the trial that has been given to the abolition THE SLAVE TRADE. 375 law, I am now prepared to go much further, and to declare that the slave trade should at once be made felony. When I consider how easily laws are passed, declaring those acts even capital offences, which have heretofore been either permitted or slightly punished; when scarce a session ends without some such extension of the cri- minal code; when even capital offences are among the most nume- rous progenies of our legislative labours; when I sec the difficulty experienced by an honourable and learned friend of mine,* in doing away the capital part of the offence of stealing five shillings: when it is remembered that Lord Ellenborough, by one act created some- where about a dozen capital felonies; when, in short, so many com- paratively trivial offences are so severely visited; can one, who knows what slave trading means, hesitate in admitting that it ought at length to be punished as a crime? Adverting, again, to the record before mentioned, I find that the vessel, ready fitted out for the slave coast, has sold for about 11,000, including guns, tackle, cargo, and all; but making allowance for seamen's wages, wear, and tear, &c. I calculate the whole expense of carrying SOO slaves over to America, at 20,000, as they will sell for 100 a-head, the net profits would be near 60,000. Is this to be stopped by a pecuniary penalty? If one such speculation, in four or five, succeed, they are safe: there is even a temptation to engage in many speculations, because the ad- venturer thus insures against the risk of capture, and becomes his own underwriter against the chance of detection, which he could in no other way insure against. If an inhuman being of this class fit out ten or twelve such ships, and escape with three or four, his vile profits are enormous; but it should be recollected, that all his vessels, those which escape as well as those which are taken, spread devas- tation over the African continent; and even a single cargo is the utter ruin of whole villages. To this case, more than to any other that can be fancied, pecuniary checks are peculiarly inapplicable. While you levy your pence, the wholesale dealers in blood and torture pocket their pounds, and laugh at your twopenny penalty. I shall next advert to the 10th of Geo. II, for regulating watermen between Gravesend and Chelsea. If a person of this description carry above a certain number of persons, although no accident hap- pen, he forfeits the use of the river; and if by accident any one be drowned, the boatman who so overloads is transported for seven years as a felon. How do we treat those who overload their vessels with miserable negroes, so as knowingly and wilfully to ensure the death of many, and the torments of all? Why, the slave carrying bill, which is somewhat similar to the statute of George II in its object, does not even deprive such offenders of the use of the sea, which they have so perverted and polluted by their crimes; far less does it transport for seven years, even where the deaths of hundreds on board of such vessels happen not by accident, but as a necessary consequence of the overloading. I make no reflection on the statute * Sir Samuel Romilly. 376 THE SLAVE TRADE. of George II, but its provisions appear somewhat more applicable to the slave-trader, than to the boatman. What has the Divine Legis- lator said on this subject? There is a most false and unfounded notion, that the sacred writings are silent upon it; I shall prove the contrary. " Whosoever" (says the Scripture) " stealeth a man, and selleth him, or in whose hands he shall be found, shall surely be put to death." And what is our gloss or application of this divine text? " Whosoever" (says the English law) " stealeth a man, and tortureth him, and killeth him, or selleth him into slavery for all the days of his life, shall surely pay twenty pounds!" I trust that this grievous incongruity will at length be done away, and I now pledge myself to bring in a bill to that effect early in the ensuing session; but I earnestly hope, that in the meantime the House will leave nothing un- atternpted which may tend to diminish the great evils complained of, and give effect to one of the most holy of our laws. I move, "That an humble address be presented to his Majesty, representing to his Majesty, that this House has taken into its serious consideration the papers which his Majesty was graciously pleased to cause to be laid before this House upon the subject of the African Slave Trade. That while this House acknowledges with gratitude the endeavours which his Majesty has been pleased to use, in compliance with the wishes of Parliament, to induce foreign nations to concur in relinquishing that disgraceful commerce, this House has to express its deep regret that those efforts have been attended with so little success. That this House does most earnestly beseech his Majesty to persevere in those measures which may tend to induce his allies, and such other foreign states as he may be able to negotiate with, to co-operate with this country in a general abolition of the Slave Trade, and to concur in the adoption of such measures as may assist in the effectual execution of the laws already passed for that purpose. That this House has learnt with the greatest surprise and indignation, that certain persons in this country have not scrupled to continue in a clandestine and fraudulent manner the detestable traffic in slaves. And that this House does most humbly pray his Majesty that he will be graciously pleased to cause to be given to the commanders of his Majesty's ships and vessels of war, the officers of his Majesty's customs, and the other persons in his Majesty's service, whose situ- ation enables them to detect and suppress these abuses, such orders as may effectually check practices equally contemptuous to the au- thority of Parliament, and derogatory to the interests and the honour of the country," CASE OF THE REV. JOHN SMITH, MISSIONARY IN DEMERARA. INTRODUCTION. OPPRESSION OF THE MISSIONARIES MOTION OF CENSURE OF THE DEMERARA GOVERNMENT EFFECT OF THE DISCUSSION UPON PUBLIC OPINION. THERE never has been any case of colonial oppression attended with such impor- tant consequences, and seldom any that excited so lively an interest as that of the Missionary Smith, in 1823. This venerable person belonged to the sect of Inde- pendents a class of men famous in all ages for their tolerant principles, as well as for their love of liberty, and to whom this country owes a lasting debt of grati- tude, for their strenuous exertions in the troubles of the seventeenth century, those troubles in which the cradle of English liberty was rocked. He had been sent t* Demerara by the London Missionary .Society, and its worthy head the truly respect- able Mr. Alers Hankey. An insurrection of the Negroes having broken out, in the fever of alarm which generally attends such events, among a set of men justly conscious like the planters, both of the Negro's continued wrongs, and of their own imminent dangers, it was fancied that Mr. Smith had in some way contributed to the movement. That sucli a rumour once propagated should have gained ground among the multitude, was perhaps not to be wondered at. But, that the consti- tuted authorities should have been so far moved by it as to put the party on his trial, without the most careful previous investigation of all the circumstances, seems hardly credible, when we reflect on the extreme delicacy of the questions thus cer- tain to be raised, nnd upon the religious feeling, still stronger than the political, sure to be excited. There were, however, stranger things yet to be witnessed in the pro- gress of this important affair. The popular agitation (if we may so call the excitement among the handful of whites thinly scattered among the real bulk of the people) extended itself to tho court, before whom the Missionary was tried; and the judges, partaking of the violence which inspired the planters and other slave-dealers, com- mitted a series of errors so gross as to mock belief, and of oppressions which are unexampled in the dispensation of English justice. Among these acts, whether of matchless ignorance or of gross injustice, the most striking but not tho only ones, were, the constant admission of manifestly illegal evidence, and the condemning to death a person only accused of misprision, a crime plainly not capital. The Missionary was cast into a small and loathsome dungeon, in a state of health which made any imprisonment dangerous. There, after somn weeks of the most severe suffering, he yielded up his pious spirit, expiating with his guiltless blood the bin 378 INTRODUCTION. of which there is no remission in the West Indies the sin of having taught the slaves the religion of peace, and consoled them for the cruel lot inflicted by the crimes of this world, with the hopes of mercy in another. The arrival of this intelligence in England, speedily produced all the feelings which might well have been expected. Pity for the victim; sympathy with his unhappy widow; fellow feeling for his bereaved flock; alarm at the sight of reli- gious persecution; contempt for the ignorance of the legal, and the pusillanimity of the political authorities; indignation at the injustice of the courts were the sen- timents that strove for the mastery among the great body of the British people: and all were concentrated in one single, universal, and implacable feeling of revenge against that execrable system, which, contrary to the law of God, pretends to vest in man a property in his fellow-creatures, as fatal to the character of the oppressor as to the happiness of his victim. After maturely deliberating upon the course most fit to be taken, both with a view to attain the ends of justice, and to make the blow most effectual, which this question enabled him to level at Negro Slavery and colonial misgovernment, Mr. Brougham, on the 1st of June, brought forward his motion of censure upon the Demerara government, and the court, its instrument and accomplice in oppression. A debate of surpassing interest ensued. The most distinguished speakers for the motion were Mr. Williams,* Mr. Denman,j~ and Dr. Lushington. On the other side, the majority inclined at first to resist the motion, and the Colonial Under Sec- retary^: met it with a direct negative; but finding they were in peril of a defeat, Mr. Canning, who did not very creditably distinguish himself on this occasion, concluded by moving the previous question, upon which the division was taken. Mr. Tindal made on this occasion his first parliamentary speech, with distin- guished ability; and Mr. Scarlett|| ably argued on the same side; Lord Palmerston and Messrs. Lamb and Grant]]" voted in the ministerial majority, thus giving to the country an early pledge of those principles so hostile to colonial liberty, on which they have since acted. The motion was lost by 146 to 193 votes, after an adjourned debate. But the effect produced by this great discussion was extreme and powerful. The minds of men were turned to the real state of Negro bondage; the abuses and op- pressions committed in the colonies were fully examined; the impossibility of car- rying the acts now everywhere loudly complained of, unless by destroying so un- natural a system, was generally recognized. " The Missionary Smith's Case," became a watchword and a rallying cry with all the friends of religious liberty, as well as the enemies of West Indian Slavery. The votes of those who had sided with the government in resisting the motion were carefully recorded, for the pur- pose of preventing them from ever again being returned to Parliament. The mea- sures of the abolitionists all over the country became more bold and decided, as their principles commanded a more general and warmer concurrence; and all men now saw that the warning given in the peroration of the latter of these two speeches, though sounded in vain across the Atlantic Ocean, was echoing with a loudness re- doubled at each repetition through the British Isles, that it had rung the knell of the system, and that at the fetters of the slave a blow was at length struck which must, if followed up, make them fall off his limbs for ever. The cause of Negro Emancipation has owed more to this case of individual oppression, mixed with reli- gious persecution, than to all the other enormities of which Slavery has ever been convicted. * Now a judge in the Court of Queen's Bench. t Now Lord Chief Justice, who has recently shown his habitual love of liberty by de- claring slavery to be unlawful. I Mr. W. Horton. Now Chief Justice of the Common Pleas. |] Now Chief Baron of the Exchequer. t Now Lords Melbourne and Glenclg. SPEECH IN THE CASE OF THE REV. JOHN SMITH, THE MISSIONARY. DELIVERED IN THE HOUSE OF COMMONS, JUNE 1, 1824. MR. SPEAKER, I confess, that in bringing before this House the question on which I now rise to address yon, I feel not a little dis- heartened by the very intense interest excited in the country, and the contrast presented to those feelings by the coldness which prevails within these walls. I cannot conceal from myself, that, even in' quar- ters where one would least have expected it, a considerable degree of disinclination exists to enter into the discussion, or candidly to examine the details of the subject. Many persons who have upon all otber occasions, been remarkable for their manly hostility to acts of official oppression, who have been alive to every violation of the rights of the subject, and who have uniformly and most honourably viewed with peculiar jealousy every infraction of the law, strange to say, on tbe question of Mr. Smith's treatment, evince a backwardness to discuss, or even listen to it. Nay, they would fain fasten upon any excuse to get rid of the subject. What signifies inquiring, say they, into a trans- action which lias occurred in a remote portion of the world? As if distance or climate made any difference in an outrage upon law or justice. One would rather have expected that the very idea of that distance the circumstance of the event having taken place beyond the immediate scope of our laws, and out of the view of the people of this country in possessions where none of the inhabitants have repre- sentatives in this House, and the bulk of them have no representatives at all one might have thought, I say, that in place of forming a ground of objection, their remote and unprotected situation would have strength- ened the claims of the oppressed to the interposition of the British le- 380 THE MISSIONARY'S CASE. gislature. Then, says another, too indolent to inquire, slow to hear, but prompt enough to decide, " It is true there have been a great number of petitions presented on the subject, but then every body knows how those petitions are procured, by what descriptions of persons they are signed, and what are the motives which influence a few mis- guided, enthusiastic men, in preparing them, and the great crowd in signing them. And, after all, it is merely about a poor missionary!" I have now to learn, for the first time, that the weakness of the sufferer his unprotected situation his being left single and alone to contend against power exercised with violence constitutes a reason for this House shutting its ears against all complaints of such proceedings, and refusing to investigate the treatment of the injured individual. But it is not enough that he was a missionary: to make the subject still more unpalatable for I will come to the point, and at once use the hateful word he must needs also be a Methodist. I hasten to this objec- tion, with a view at once to dispose of it. Suppose Mr. Smith had been a Methodist what then? Does his connection with that class of religious people, because, on some points essential in their conscien- tious belief, they are separated from the National Church, alter or les- sen his claims to the protection of the law? Are British subjects to be treated more or less favourably in courts of law are they to have a larger or a smaller share in the security of life and limb, in the jus- tice dealt out by the government according to the religious opinions which they may happen to hold? Had Fie belonged to the society of the Methodists, and been employed by the members of that commu- nion, I should have thought no worse of him or his mission, and felt nothing the less strongly for his wrongs. But it does so happen, that neither the one nor the other of these assumptions is true; neither the Missionary society, nor their servants, are of the Methodist persuasion. The society is composed indifferently of churchmen and dissenters: Mr. Smith is, or, as I unhappily must now say, was, a minister a faith- ful and pious minister of the Independents that body much to be respected indeed for their numbers, but far more to be held in lasting veneration for the unshaken fortitude with which, in all times, they have maintained their attachment to civil and religious liberty, and, holding fast by their own principles, have carried to its uttermost pitch the great doctrine of absolute toleration; men to whose ancestors this country will ever acknowledge a boundless debt of gratitude, as long as freedom is prized among us: for they, I fearlessly proclaim it they, with whatever ridicule some may visit their excesses, or with what- ever blame others they , with the zeal of martyrs, the purity of the early Christians, the skill and the courage of the most renowned war- riors, gloriously suffered, and fought, and conquered for England the free constitution which she now enjoys! True to the generous prin- ciples in church and state which won those immortal triumphs, their descendants still are seen clothed with the same amiable peculiarity of standing forward among all religious denominations pre-eminent in toleration; so that although, in the progress of knowledge, other classes of dissenters may be approaching fast to overtake them, they still are THE MISSIONARY'S CASE. 381 foremost in this proud distinction. All, then, I ask of those who feel indisposed to this discussion is, that they will not allow their preposses- sions, or I would rather say their indolence (for, disguise it as they will, indolence is at the bottom of this indisposition), to prevent them from entering calmly and fully into the discussion of the question. It is impossible that they can overlook the unexampled solicitude which it has excited in every class of the people out of doors. That consider- ation should naturally induce the House of Commons to lend its ear to the inquiry, which, however, is fully entitled, on its own merits, to command undivided attention. It will be my duty to examine the charge preferred against the late Mr. Smith, and the whole of the proceedings founded on that charge. And in so doing, I have no hesitation in saying, that from the begin- ning of those proceedings to their fatal termination, there has been committed more of illegality, more of the violation of justice violation of justice, in substance as well as form than, in the whole history of modern times, I venture to assert, was ever before witnessed in any inquiry that could be called a judicial proceeding. I have tried the expe- riment upon every person with whom I have had an opportunity of con- versing on the subject of these proceedings at Demerara,as well mem- bers of the profession to which I have the honour of belonging, as others acquainted with the state of affairs in our Colonies, and I have never met with one who did not declare to me, that the more the question was looked into, the greater attention was given to its details, the more fully the whole mass was sifted the more complete was his assent to the conviction that there was never exhibited a greater breach of the law, a more daring violation of justice, a more flagrant contempt of all those forms by which law and justice were wont to be administered, and under which the perpetrators of ordinary acts of judicial oppression are wont to hide the nakedness of their crimes. It is now necessary to call the attention of the House to that un- happy state of things which existed in Demerara during the course of the past year. Certain instructions had been forwarded from this country to those slave colonies which are more under the control of the government than the other West India Islands. Whether- the instructions were the best calculated to fulfil the intentions of those who issued them whether the directions had not in some points gone too far, at least in prematurely introducing the object that they had most properly in view and whether, in other points, they did not stop short of their purpose whether, in a country where the symbol of authority was the constantly manifested lash of the driver, it was ex- pedient at once to withdraw that dreadful title of ownership, I shall not now stop to inquire. Snflicc it to say, that those instructions arrived at Demerara on the 7th of last July, and great alarm and fever- ish anxiety appear to have been excited by them amongst the white part of the population. That the existence of this alarm so generally felt by the proprietors, and the arrival of some new and beneficial regulations, were marked and understood by the domestic slaves, there cannot be a doubt. By them the intelligence was speedily coin- 382 THE MISSIONARY'S CASE. municated to the field Negroes. All this time there was no official communication of the instructions from the Colonial government. A meeting had been convened of the Court of Policy, but nothing had been made public in consequence of its assembling. A second meet- ing was held, and it was understood that a difference of opinion pre- vailed among the members, after a discussion, which, though not fierce, was still animated. The only means which the circumstances of the case naturally suggested do not appear to have been adopted by those at the head of affairs in Demerara. I do not impute to them any intentional disregard of duty. It is very possible that the true remedy for the mischief may have escaped them in the moment of excited apprehension in the prevalence of general alarm, rendered more intense by the inquisitive anxiety of the slave population, an alarm and anxiety continued by the state of ignorance in which the slaves were kept as to the real purport of the instructions from Eng- land. But most certainly, whatever was the cause, the authorities at Demerara overlooked that course of proceeding best calculated to allay at least the inquisitive anxiety of the slaves; namely, promulgating in the colony what it really was that had been directed by the instruc- tions of the King's ministers, even if they were not disposed at once to declare whether they would or would not carry those instructions into execution. Unhappily they did not take that plain course. Week after week was suffered to elapse; and up to the period when the lamentable occurrence took place, which led to these proceedings, no authentic, or, at least authoritative communication, either of what had arrived from England, or of what was the intention of the au- thorities at Demerara, was made to the slaves. This state of sus- pense occupied an interval of nearly seven weeks. The revolt broke out on the 18th of August. During the whole of that interval the agitation in the colony was considerable; it was of a twofold charac- ter. There was on one side the alarm of the planters, as to the conse- quences of the new instructions received from his Majesty's govern- ment; and on the other the naturally increasing anxiety of the Negro as to the precise purport and extent of those instructions. There ex- isted the general impression, that some extension of grace and bounty had been made to the slaves. In the ignorance which was so stu- diously maintained as to the nature of it, their hopes were proportion- ably excited; they knew that something had been done, and they were inquisitive to learn what it was. The general conversation amongst them was, " Has not our freedom come out ? Is not the King of Great Britain our friend ?" Various speculations occupied them; reports of particular circumstances agitated them. Each believed in the detail as his fancy or credulity led him; but to one point all their hopes pointed; "Freedom! freedom!" was the sound unceasingly heard; and it continually raised the vision on which their fancy loved to repose. And now, allow me to take the opportunity of re-asserting the opinion which, with respect to that most important subject of emanci- pation, I have uniformly maintained, not only since I have had the THE MISSIONARY'S CASE. 383 honour of a scat in this House, but long before, with no other differ- ence, save, perhaps, in the manner of ihe expression, correcting that manner by the experience and knowledge which a more extended intercourse with human life must naturally have bestowed. My opinion ever has been, that it is alike necessary to the security of our white brethren, and just, and even merciful to the Negroes those victims of a long-continued system of cruelty, impolicy, and injustice to maintain firmly Ihe legal authorities, and with that view, to avoid, in our relations with the slaves, a wavering uncertain policy, or keep them in a condition of doubt and solicitude, calculated to work their own discomfort, and the disquiet of their masters. Justice to the whites, mercy to the blacks, command us to protect the first from the effect of such alarms, and the last from the expectation, that, in the hapless condition in which they are placed, their emancipation can be obtained meaning thereby their sudden, unprepared emancipation, by violent measures, or with an unjustifiable haste, and without pre- vious instruction. The realization of such a hope, though carrying the name of a boon, would inflict the severest misery on these beings, whose condition is already too wretched to require, or indeed to bear, any increase of calamity. It is for the sake of the blacks themselves, as subsidiary to their own improvement, .that the present state of things must for a time be maintained. It is because to them, the bulk of our fellow-subjects in the Colonies, liberty, if suddenly given, and, still more, if violently obtained by men yet unprepared to receive it, would be a curse, and not a blessing; that emancipation must be the work of time, and, above all, must not be wrested forcibly from their masters. Reverting to the occurrences at Demerara, it is undeniable that a great and unnecessary delay took place. This inevitably, there- fore, gave rise to those fatal proceedings, which all of us, however we may differ as to the causes from which they originated, must unfeign- edly deplore. It appears that Mr. Smith had officiated as a minister of religion in the colony of Demerara for seven years. He had maintained during his whole life a character of the most unimpeachable moral purity, which had not only won the love and veneration of his own imme- diate flock, but had procured him the respect and consideration of all who resided in his neighbourhood. Indeed, there is not a duty of his ministry that he had not discharged with fidelity and zeal. That this was his character is evident even from the papers laid upon the table of this House. These documents, however, disclose but a part of the truth on this point. Before I sit down I shall have occasion to advert to other sources of information, which show that the character of Mr. Smith was such as I have described it; and that those who are best qualified to form an opinion, have borne the highest testimony to his virtuous and meritorious labours. Yet this Christian minister, thus usefully employed, thus generally revered and beloved, was dragged from his house, three days after the revolt began, and when it had been substantially quelled, with an indecent haste that allowed not the accommodation even of those clothes which, in all climates, are neces- 384 THE MISSIONARY'S CASE. sary to human comfort, but which, in a tropical climate, are absolutely essential to health. He was dragged, too, from his home and family at a time when his life was attacked by a disease which, in all proba- bility, would in any circumstances have ended in his dissolution; but which the treatment he then received powerfully accelerated in its fatal progress. He was first imprisoned in that sultry climate, in an unwholesome fetid room, exposed to the heat of the tropical sun. This situation was afterwards changed, and he was conveyed to a place only suited to the purposes of torture a kind of damp dungeon, where the crazy floor was laid loosely over stagnant water, visible through the wide crevices of its boards. When Mr. Smith was about to be seized, he was first approached with the hollow demand of the officer who approached him, commanding him to join the militia of the dis- trict. To this he pleaded his inability to serve in that capacity, as well as an exemption founded on the rights of his clerical character. Under the pretext of this refusal, his person was arrested, and his papers were demanded, and taken possesssion of. Amongst them was his private journal a part of which was written with the inten- tion of being communicated to his employers alone, while the remain- ing part was intended for no human eye but his own. In this state of imprisonment he was detained, although the revolt was then entirely quelled. That it was so quelled, is ascertained from the dispatches of General Murray to Earl Bathurst, dated the 26th of August. At least the dispatch of that date admits that the public tranquillity was nearly restored; and, at all events, by subsequent dispatches, of the 30th and 31st, it appears that no further disturbance had taken place; nor was there from that time any insurrectionary movement whatever. At that period the colony was in the enjoyment of its accustomed tran- quillity, barring always those chances of relapse, which, in such a state of public feeling, and in such a structure of society, must be sup- posed always to exist, and to make the recurrence of irritation and tumult more or less probable. Martial law, it will be recollected, was proclaimed on the 15th of August, and was continued to the 15th of January following five calendar months although there is the most unquestionable proof, that the revolt had subsided, and indeed that all appearance of insubordination had vanished. In a prison such as I have described, Mr. Smith remained until the 14th day of October. Then, when every pretence of real and imme- diate danger was over; when everything like apprehension, save from the state of colonial society, was removed: it was thought fit to bring to trial, by a military court-martial, this Minister of the Gospel! I shall now view the outside of that court-martial: it is fit that we look at its external appearance, examine the foundations on which it rests, and the structures connected with it, before we enter and survey the things perpetrated within its walls. I know that the general answer to all which has been hitherto alleged on this subject is, that martial law had been proclaimed in Demerara. But, sir, I do not profess to understand, as a lawyer, martial law of such a description: it is entirely unknown to the law of England I do not mean to say in the THE MISSIONARY'S CASE. 385 bad times of our history, but in that more recent period which is called Constitutional. It is very true, that formerly the crown sometimes issued proclamations, by virtue of which civil offences were tried before military tribunals. The most remarkable instance of that description, and the nearest precedent to the case under our consideration, was the well known proclamation of that august, pious, and humane pair, Philip and Mary, of happy memory, stigmatizing as rebellion, and as an act which should subject the offender to be tried by a court martial, the having heretical, that is to say, Protestant books in one's posses- sion, and not giving them up without previously reading them. Simi- lar proclamations, although not so extravagant in their character, were issued by Elizabeth, by James the First, and (of a less violent nature) by Charles the First; until at length the evil became so unbearable, that there arose from it the celebrated Petition of Right, one of the best legacies left to his country by that illustrious lawyer, Lord Coke, to whom every man that loves the constitution owes a debt of grati- tude which unceasing veneration for his memory can never pay. The petition provides that all such proceedings shall thenceforward be put down: it declares, "that no man shall be forejudged of life or limb against the form of the Great Charter;" " that no man ought to be adjudged to death but by the laws established in this realm, either by the custom of the realm, or by acts of Parliament;" and " that the com- missions for proceeding by martial law should be revoked and annulled, lest, by colour of them, any of his Majesty's subjects be destroyed or put to death, contrary to the laws and franchise of the land." Since that time, no such thing as martial law has been recognised in this country; and courts founded on proclamations of martial law have been wholly unknown. And here I beg to observe, that the parti- cular grievances at which the Petition of Right was levelled, were only the trials under martial law of military persons, or of individuals accompanying, or in some manner connected with, military persons. On the abolition of martial law, what was substituted? In those days, a standing army in time of peace was considered a solecism in the constitution. Accordingly, the whole course of our legislation pro- ceeded on the principle, that no such establishment was recognised. Afterwards came the annual Mutiny Acts, and Courts Martial which were held only under those acts. These courts were restricted to the trial of soldiers for military offences: and the extent of their powers was pointed out and limited by law. lint I will not go further into the consideration of this delicate constitutional question; for the pre- sent case does not rest on any niceties it depends not on any fine- spun decisions with respect to the law. If it should be said, that, in the conquered colonies, the law of the foreign state may be allowed to prevail over that of England; I reply, that the Crown has no right to conquer a colony, and then import into its constitution all manner of strange and monstrous usages. If the contrary were admitted, the Crown would only have to resort first to one coast of Africa, and then to another, and afterwards to the shores of the Pacific, and import the various customs of the barbarous people whom it might subdue; tor- VOL. i. 33 386 THE MISSIONARY'S CASE. ture from one; the scalping knife and tomahawk from another; from a third, the regal prerogative of paving the palace courts wilh the skulls of the subject. All the prodigious and unutterable practices of the most savage nations might thus be naturalized by an act of the Crown, without the concurrence of Parliament, and to the detriment of all British subjects born, or resident, or settling for a season, in those new dominions. Nothing, however, is more clear, than that no prac- tice inconsistent with the fundamental principles of the constitution such, for instance, as the recourse to torture for the purpose of obtain- ing evidence can ever be imported into a colony by an act of con- quest. But all considerations of this nature are unnecessary on the present occasion: for this court was an English court martial. The title by which it claimed to sit was the Mutiny Act, and the law of England. The members of the court are estopped from pleading the Dutch law, as that on which their proceedings are founded. They are estopped, because they relied for their right to sit on our own Mutiny Act, which they time after time refer to; and they cannot now pretend that they proceeded on any other ground. Let us now look for a few moments at the operations which pre- ceded the trial of this poor missionary. He was, as I have just stated, tried by a court martial; and we are told by General Murray, in his dispatch of October 21, that it was all the better for him, for that, if he had been tried in any other manner, he might have found a more prejudiced tribunal. Now, sir, I have no hesitation in saying, that if I had been the party accused, or of counsel for the party accused, I would at once have preferred a civil jurisdiction to the very anomalous proceeding that took place. First of all, I should have gained delay, which in most cases is a great advantage to the accused. In this par- ticular case it must have proved of inestimable benefit to him, as the fever of party rage and personal hostility would have been suffered gradually to subside. By proceeding under the civil jurisdiction, the addition of the Roman law to that of the common law necessarily occa- sioned great prolixity in the trial. Months must have elapsed during those proceedings, and at every step the accused would have had a chance of escape. All this would have been of incalculable value; and all this was lost to the accused, by his being summarily brought before a military tribunal. The evidence of slaves was admitted by the court without doubt or contest; a point, however, on which I do not much rely; for I understand that in Demerara the usage in this re- spect differs from the usage of some other colonies, and that the evidence of Negroes against Whites is considered admissible, although it is not frequently resorted to. Still, however, there is this difference as respects such evidence between a civil and a military court; in the lat- ter, it is received at once, without hesitation; whereas, if the matter is brought before a civil jurisdiction, a preliminary proceeding must take place respecting the admissibility of each witness. His evidence is compared with the evidence of Other witnesses, or parts of his evidence are compared with other parts, and on the occurrence of any considera- ble discrepancy the evidence of that witness is finally refused. There THE MISSIONARY'S CASE. 387 are also previous proceedings, had the subject been brought before a civil jurisdiction, which might have had this effect: a discussion takes place before the Chief Justice and two assistants, on the admissibility of witnesses, who are not admitted as evidence in the cause until after a preliminary examination; and I understand, that the circumstance of a witness being a slave whose evidence is to be adduced against a white man, in cases of doubt, always weighs in the balance against his admissibility. But I pass all this over. I rest the case only on that which is clear, undeniable, unquestioned. By the course of the civil law, two witnesses are indispensably required to substantiate any charge against the accused. Let any one read the evidence on this trial, and say, how greatly the observance of such a rule would have improved the condition of the prisoner. Last of all, if the accused had been tried at common law, he would have had the advantage of a learned person presiding over the court, as the Chief Justice, who must have been individually and professionally responsible for his conduct; who would have acted in the face of the whole bar of the colony; who would also have acted in the face of that renowned English bar to which he once belonged, to which he might return, and whose judgment, therefore, even when removed from them by the breadth of the Atlantic, he would not have disregarded, while he retained the feelings of a man, and the character of an English advocate. He would have acted in the face of the whole world as an individual, doubtless not without assistance, but still with the assistance of laymen only, who could not have divided the responsibility with him. He would, in every essential particular, have stood forth single and supreme, in the eyes of the rest of mankind, as the Judge who tried the prisoner. In such circumstances, he must have conducted himself with an entire regard to his professional character, to his responsibility as a judge, to his credit as a lawyer. Now, sir, let us look at the constitution of the court before which Mr. Smith was actually tried. Upon a reference to the individuals of whom it was composed, I find, what certainly appears most strange, the president of the civil court taking upon himself the functions of a member of the court martial, under the name of an officer of the militia start". It appears to be the fact, that this learned individual was in- vested with the rank and degree of lieutenant-colonel of the militia, a few days before the assembling of the court martial, in order that he, a lawyer and a civil judge, might sit as a military judge and a soldier! Sir, he must have done this by compulsion. Martial law was estab- lished in the colony by the power to which he owed obedience. He could not resist the mandate of the governor. He was bound, in com- pliance with that mandate, to hide his civic garb, to cover his forensic robe under martial armour. As the aid-de-camp of the governor, he was compelled to act a mixed character part lawyer, part soldier. He was the only lawyer in a court where a majority of the soldiery over- whelmed him. Having no responsibility, he abandoned or was com- pelled lo sit helpless and unresisting, and see others abandoning principles and forms which he could not, which he would not, which 388 THE MISSIONARY'S CASE. he durst not, have abandoned, had he been sitting alone in his own court, in his ermined robe, administering the civil law. After this strange fact respecting the higher members of the court, it is riot sur- prising that one as strange should appear with regard to its subordi- nate officers. The Judge-Advocate of a court martial, although cer- tainly sometimes standing in the situation of a prosecutor, nevertheless, in all well regulated courts martial, never forgets that he also stands between the prisoner and the bench. He is rather, indeed, in the character of an assessor to the court. On this point, I might appeal to the highest authority present. By you, sir, these important functions were long, and correctly, and constitutionally performed; and in a man- ner equally beneficial to the army and to the country. But I may appeal to another authority, from which no one will be inclined to dis- sent. A revered judge, Mr. Justice Bathurst, in the middle of the last century, laid it down as clear and indisputable, that the office of a Judge-Advocate was to lay the proof on both sides before the court; and that whenever the evidence was at all doubtful, it was his duty to incline towards the prisoner. No such disposition, however, appears in this Judge-Advocate, I should rather say in these Judge-Advocates; for, one not being considered enough, two deputies were appointed to assist him. These individuals exercised all their address, their caution, and their subtlety, against the unfortunate prisoner, with a degree of zeal bordering upon acrimony. Indeed, the vehemence of the prose- cution was unexampled. I never met with anything equal to it; and I am persuaded, that if any such warmth had been exhibited before a civil judge by a prosecuting counsel, he would have frowned it down with sudden indignation. In the first instance, the Judge-Advocate concealed the precise na- ture of the accusation. The charges were drawn up so artfully, as to give no notice to the prisoner of the specific accusation against him. They were drawn up shortly, vaguely, and obscurely; but, short, vague, and obscure as they were, they were far from being as short, as vague, and as obscure as the opening speech of the prosecutor. That speech occupies about half a page in the minutes of the trial, which yet give it verbatim. But scarcely had the prisoner closed his defence, than a speech was pronounced, on the part of the prosecution, which eighteen pages of the minutes scarcely contain. In this reply the utmost subtlety is exhibited. Topic is urged after topic with the greatest art and contrivance. Everything is twisted for the purpose of obtaining a conviction; and, which is the most monstrous thing of all, when the prisoner can no longer reply, new facts are detailed, new dates specified, and new persons introduced, which were never mentioned, or even hinted at, on any one of the twenty-seven pre- ceding days of the trial! Again, sir, I say, that had I been the accused person, or his counsel, I would rather a thousand-fold have been tried by the ordinary course of the civil law, than by such a court. To return, however, to its composition I rejoice to observe, that the president of the supreme civil judicature, although he was so unwise as to allow his name to be placed on the list of the members, or so THE MISSIONARY'S CASE. 389 unfortunate as to be compelled to do so, refused to preside over the deliberations of this court. Although he was the person of the high- est rank next to the governor, and although in a judicial inquiry he must naturally have been more skilful and experienced than any man in the colony, nevertheless there he is in the list among the ordinary members of the court; and as he must have been appointed to pre- side, but for his own repugnance to the office, I am entitled to con- clude that he refused it with a firmness not to be overcome. Against the other members I have nothing whatever to say. The president of the court, however, was Lieutenant-Colonel Goodman. Now, that gallant officer, than whom I believe no man bears a higher cha- racter, unfortunately, beside bearing his Majesty's commission, holds an office in the colony of Demerara, which rendered him the last man in the world who ought to have been selected as president of such a judicature. Let the House, sir, observe, that the reason assigned by Governor Murray for subjecting Mr. Smith to a trial before such a tribunal, was not only that he might have in reality a fair trial, but that he might not even appear to be the victim of local prejudice, which it seems would have been surmised, had his case been submit- ted to a jury, or a court, of planters. How is it, (hen, that with this feeling the governor could name Lieutenant-Colonel Goodman to be president of the court. For that gallant officer does, in point of fact, happen to hold the situation of vendue-master in the colony of Deme- rara, without profit to whom not a single slave can be sold by any sale carried on under the authority of the courts of justice. Accord- ingly, it did so turn out, that a few days before the breaking out of the revolt, there were advertised great sales of Negroes by auction, which most naturally excited sorrow and discontent among many of the slaves. There was one sale of fifty-six of those hapless beings, who were to be torn from the place of their birth and residence, and perhaps separated for ever from their nearest and dearest connections. I hold in rny hand a Colonial Gazette, containing many advertise- ments of such sales, and to every one of them I find attached the sig- nature " S. A. Goodman." One of the advertisements, that, I think, for the sale of fifty-six Negroes, states, that among the number there are many "valuable carpenters, boat-builders, &c., well worthy the attention of the public." Another speaks of " several prime single men." One party of slaves consists of a woman and her three chil- dren. Another advertisement offers a young female slave who is pregnant. Upon the whole, there appear to have been seventy or eighty slaves advertised to be sold by auction in this single gazette, in whose sale Lieutenant-Colonel Goodman, from the nature of his office, had a direct interest. I do not for a moment affirm that this circumstance was likely to warp his judgment. Probably, indeed, he was not personally aware of it at the time. But I repeat, that, if this proceeding were intended to be free from all suspicion, Lieutenant- Colonel Goodman was one of the last men to select as the president of the court. That, however, is nothing compared to the appointment of the Chief Justice of tho colony as one of its members. He, the 390 THE MISSIONARY'S CASE. civil judge of the colony, to be forced to sit as member of a court martial, and under the disguise of a militia officer by way of a quali- fication ! He to whom an appeal lay against any abuse of which that court martial might be guilty! From whom but from him could Mr. Smith have obtained redress for any violation of the law committed in his person? Yet, as if for the express purpose of shutting the door against the possibility of justice, he is taken by the governor and com- pelled to be a member of the court. That this tribunal might at once be clothed with the authority of the laws which it was about to break, and exempted from all risk of answering to those laws for breaking them, the only magistrate who could vindicate or enforce them is identified with the court, and at the same time so outnumbered by military associates, as to be incapable of controverting, or even influ- encing, its decision, while his presence gives them the semblance of lawful authority, and places them beyond the reach of legal revision. Sir, one word more, before I advert to the proceedings of the court, on the nature of its jurisdiction. Suppose I were ready to admit, that on the pressure of a great emergency, such an invasion or rebellion, when there is no time for the slow and cumbrous proceedings of the civil law, a proclamation may justifiably be issued for excluding the ordinary tribunals, and directing that offences should be tried by a military court such a proceeding might be justified by necessity; but it could rest on that alone. Created by necessity, necessity must limit its continuance. It would be the worst of all conceivable grievances it would be a calamity unspeakable if the whole law and consti- tution of England were suspended one hour longer than the most im- perious necessity demanded. And yet martial law was continued in Demerara for five months. In the midst of tranquillity, that offence against the constitution was perpetrated for months, which nothing but the most urgent necessity could warrant for an hour. An indivi- dual in civil life, a subject of his Majesty, a clergyman, was tried at a moment of perfect peace, as if rebellion raged in the country. He was tried as if he had been a soldier. I know that the proclamation of martial law renders every man liable to be treated as a soldier. But the instant the necessity ceases, that instant the state of soldier- ship ought to cease, and the rights, with the relations, of civil life to be restored. Only see the consequences which might have followed the course that was adopted. Only mark the dilemma in which the governor might have found himself placed by his own acts. The only justification of the court martial was his proclamation. Had that court sat at the moment of danger, there would have been less ground for complaint against it. But it did nM "assemble until the emergency had ceased; and it then sat for eight-and-twenty days. Suppose a necessity had existed at the commencement of the trial, but that in the course of the eight-and-twenty days it had ceased; suppose a neces- sity had existed in the first week, who could predict that it would not cease before the second? If it had ceased with the first week of the trial, what would have been the situation of the governor? The sit- ting of the court martial at all, could be justified only by the procla- THE MISSIONARY'S CASE. 391 mation of martial law; yet it became the duty of the governor to re- voke that proclamation. Either, therefore, the court martial must be continued without any warrant or colour of law, or the proclamation of martial law must be continued only to legalize the prolonged exist- ence of the court martial. If, at any moment before its proceedings were brought to a close, the urgent pressure had ceased which alone justified their being instituted, according to the assumption I am making in favour of the court, and for argument's sake; then to con- tinue martial law an hour longer would have been the most grievous oppression, the plainest violation of all law; and to abrogate martial law would have been fatal to the continuance of the trial. But the truth is, that the court has no right even to this assumption, little be- neficial as it proves; for long before the proceedings commenced, all the pressure, if it ever existed, was entirely at an end. I now, sir, beg the House will look with me, for a moment, at the course of proceeding which the court, constituted in the manner and in the circumstances that I have described, thought fit to adopt. If I have shown that they had no authority, and that they tried this clergyman illegally, not having any jurisdiction, I think I can prove as satisfactorily that their proceedings were not founded on any grounds of justice, or principles of law, as I have proved that the court itself was without a proper jurisdiction. And here, I beg leave to observe, that the minutes of the proceedings on the table of the House are by no means full, although I do not say they are false. They do not perhaps misrepresent what occurred, but they are very far indeed, from telling all that did occur; and the omissions are of a material description. For instance, there is a class of questions which it is not usual to permit in courts of justice, called leading questions; the object of which is to put into the witness's mouth the answers which the examiner desires he should make. This is in itself objec- tionable; but the objection is doubled, if, in a report of the examination, the questions are omitted, and the answers are represented as flowing spontaneously from the witness, and as being the result of his own recollection of the fact, instead of the suggestions of another person. I will illustrate what I mean by an example. On the fifth day of the trial, Bristol, one of the witnesses, has this question put to him: " You stated, that, after the service was over, you stayed near the chapel, and that Quamina was there: did you hear Quamina tell the people what they were to do?" To that the answer is, " No, sir." The next question but one is, "Did you hear Quamina tell the other Negroes, that on the next Monday they were all to lay down their tools and not work?" To which the witness (notwithstanding his former negative) says, "Yes, I heard Quamina say so a week before the revolt broke out." Now, in the minutes of evidence laid on the table of the House, both the questions and the answer to the first are omitted, and the witness is described as saying without any previous prompting, " A week before this revolt broke out, I heard Quamina tell the Negroes that they were to lay down their tools and not work." 392 THE MISSIONARY'S CASE. The next instance which I shall adduce, of the impropriety of the proceedings of the court, is very remarkable, comprehending, as it does, almost all that I can conceive of gross unfairness and irregularity: I mean the way in which the court attended to that which, for want of a better word, I shall call hearsay evidence; although it is so much worse in its nature than anything which, in the civil and even the military courts of this country we are accustomed to stigmatize and reject under this title, that I feel I am calumniating the latter by the assimilation. In the proceedings before this court at Demerara, the hearsay is three or four deep. One witness is asked what he has heard another person say was imputed to a third. Such evidence as that is freely admitted by the court in a. part of its proceedings. But before I show where the line was drawn in this respect, I must quote a specimen or t-wo of what I have just been adverting to. In the same page from which I derived my last quotation, the following questions and answers occur: " How long was it that Quamina remained there? Three days: they said some of the people had gone down to speak to Mr. Edmonstone; that Jack had gone with them." "Do you know what has become of him (Quamina)? After I came here, I heard he was shot by the bucks, and gibbeted about Success middle path." And this, sir, is the more material, as the whole charge against Mr. Smith rested on Quamina's being an insurgent, and Mr. Smith's knowing it. So that we are here not on the mere outworks, but in the very centre and heart of the case. And this charge, be it observed, was made against Mr. Smith after Quamina was shot. It would appear, indeed, that in these colonies it was sufficient evidence of a man's being a revolter that he was first shot and afterwards gib- beted. In one part of the examination, a witness is asked, " Do you know that Quamina was a revolter?" The witness answers in the affirmative. The next question is, " How do you know it?" Now, mark, the witness is asked, not as to any rumour, but as to his own knowledge; his answer is, " I know it because I heard they took him up before the revolt began!" This evidence is to be found in pages twenty-four and twenty-five of the London Missionary Society's Report of the proceedings. In page thirty-five of the same publica- tion. I find the following questions and answers in the evidence of Mr. M'Turk: "Where were you on that day (the 18th of August)? On plantation Felicity, until five o'clock in the afternoon." " Did anything particular occur on that day? I was informed, (mark in- formed^) I was informed by a coloured man, about four o'clock, that the Negroes intended revolting that evening; and he gave me the names of two said to be ringleaders, viz. Cato and Quamina of planta- tion Success." Here, sir, we have a specimen of the nature of the evidence adduced upon this most extraordinary trial. In pages 101 and 102 of the Missionary Society's Report, I find the following passage in the evidence of John Stewart, the manager of plantation Success; and be it in the recollection of the House, that the questions were put by the court itself before which this unfortunate man was tried: THE MISSIONARY'S CASE. 393 "Did Quamina, Jack, Bethney, Britton, Dick, Frank, Hamilton, Jessamine, Quaco, Ralph, and Windsor, belong to plantation Success at the time of the revolt? Yes. "Did any of these attend the chapel? The whole of these, except Ralph. " Have the whole, or any of these, except Qnamina, been tried by a court martial, and proved to have been actually engaged in the re- bellion? I have been present at the trial of Ralph and Jack; and I have seen Ralph, Jack, Jessamine, Bethney, and Dick, but have heard only of the others." " Who," again asks the Court, " was the most active of the insur- gents in the revolt on plantation Success? Richard was the most des- perate and resolute; Bethney and Jessamine were very active, and all those mentioned, except Quamina and Jack, whom I did not see do any harm; they were keeping the rest back, and preventing them doing any injury to me." The Court goes on to ask, " Was not Quamina a reputed leader (I beg the House to mark the word reputed, and in a question put by the Court) in the revolt? I heard him to be siich; but 1 did not see him." Here, then, we have hearsay evidence with a vengeance; reputation proved by rumour; what a man is reputed to be which would be no evidence of his being so if you had it at first hand proved by what another has heard unknown persons say, which would be no evi- dence of his being reputed so, if reputation were proof. There are here at least two stages distance from any thing like evidence; but there may be a great many more. The witness had heard that Quamina had been a reputed leader: but how many removes there were in this reputed charge we are unable to learn. I next come to the evidence of the Rev. William Austin; and I find, in page 112, that on the cross- examination by the Judge- Advocate, ample provision is made for letting in this evidence of reputation and hearsay. The Judge-Advocate says, " Did any of these Negroes ever insinuate that their misfortunes were occasioned by the prisoner's influence on them, or the declines he taught them? I have been sitting for some time as a member of the Committee of Inquiry; the idea occurs to me that circumstances have been detailed there against the prisoner, but never to myself individually in my min- isterial capacity." This line of examination is too promising, too likely to be fruitful in irregularity, for the Court to pass over: they instantly take it up, and, very unnecessarily distrusting the zeal of the Judge-Advocate, pursue it themselves. By the Court. " Can you take upon yourself to sivear that you do not recollect any insinuations of that sort at the Board of Evidence?" The witness here objected to the question; because he did not con- ceive himself at liberty to divulge what had passed before the Board of Inquiry, but particularly to the form or wording of the question, which he considered highly injurious to him. The President insisted (for it was too much to expect that even the chaplain of the govern- ment should find favour before that tribunal) upon the reverend wit- 394 THE MISSIONARY'S CASE. ness's answering the question; observing, that the Court was the best judge of its propriety. The witness then respectfully requested the opinion of the Court, and it was cleared. Upon re-entering, the As- sistant Judge-Advocate said, "The Court is of opinion that you are bound to answer questions put by the Court, even though they relate to matters stated before the Board of Evidence." And, again, the opportunity is eagerly seized of letting in reputation and hearsay evi- dence. The Court itself asks " Did you hear before the Board of Evidence, any Negro imputing the cause of the revolt to the prisoner? Yes, I have." I shall now state to the House some facts with which they are, per- haps, unacquainted, as it was not until late on Saturday that the papers were delivered. Among the many strange things which took place, not the least singular was, that the prisoner had no counsel allowed, until it was too late to protect him against the jurisdiction of the court. Most faithfully and most ably did that learned person perform his duty when he was appointed; but had he acted from the beginning, he, doubtless, would have objected at once to the power of the court, as I should have done, had I been the Missionary's defender. I should have protested against the manner in which the court was constituted; I should have objected, that the men who sat in judgment in that case had previously sat upon many other cases, where the same evidence, mixed with different matter not now produced, but all confounded together in their recollection, had been repeated over and over for the conviction of other persons. I ask this House whether it was probable that the persons who formed that, court, should have come to the present inquiry with pure, unprejudiced, and impartial judgments, or even with their memories tolerably clear and distinct? I say it was impossible; and, therefore, that they ought not to have sat in judgment upon this poor Missionary at all. But is this the only grievance? Have I not also to complain of the manner in which the Judge-Advocate and the Court allowed hearsay evidence to be offered to the third, the fourth, ay, even to the fifth degree? Look, sir, to what was done with respect to the confession, as they called it, of the Negro Paris. I do not wish to trouble the House by reading that confession, as I have already trespassed at some length upon their attention. It will be suffi- cient to state, that finding his conviction certain, and perhaps judging but too truly from the spirit of the court, that his best chance of safety lay in impeaching Mr. Smith, he at once avows his guilt, makes what is called a full confession, and throws himself upon the mercy of the court. This done, he goes on with one of I will say not merely the falsest but one of the wildest and most impossible tales that ever en- tered into the mind of man, or that could be put to the credulity even of this court of soldiers. And yet, upon the trial of Mr. Smith, the confession of this man was kept back by the prosecutors; that is to say, it was not allowed to be directly introduced, but was introduced by means of the questions I have last read, as matter of hearsay, which had reached different persons through various and indirect channels. In that confession, Paris falsely says, that Mr. Smith administered the THE MISSIONARY'S CASE. 395 sacrament to them (the form of which he describes) on the day preced- ing the revolt; and that he then exhorted them to be of good heart, and exert themselves to regain their freedom; for if they failed then, they would never succeed in obtaining it. He says, in another place, that Mr. Smith asked him whether, if the Negroes conquered the colony, they would do any harm to him? to which Paris replied in the negative. Now, sir, only mark the inconsistency of this man's confession. In one place, Mr. Smith is represented as anxious for his personal safety, and yet, in almost the same breath, it is said that this very Mr. Smith was the ringleader of the revolt the adviser and planner of the insur- rection the man who joined Mr. Hamilton in recommending that the Negroes should destroy the bridges, to prevent the Whites from bring- ing up cannon to attack them. This Negro is made to swear, " I heard Mr. Hamilton say, that the president's wife should be his in a few days; then Jack said the governor's wife was to be his father's wife; and that if any young ladies were living with her, or she had a sister, he would take one for his wife." Mr. Smith is pointed out as the future emperor; Mr. Hamilton was to be a general, and several others were to hold high offices of different descriptions. Again; Mr. Smith is made to state; that, unless the Negroes fought for their liberty upon that occasion, their children's children would never attain it. Now, I ask, is this story probable? Is there anything like the shadow of truth in it? I said just now, that there was no direct mention of Paris's evidence on the trial: it was found too gross a fabrication to be produced. There were several others who, before the Board of Evi- dence, had given testimony similar to this, though somewhat less glaringly improbable; but their testimony also was kept back; and they themselves were sent to speedy execution. The evidence of Sandy was not quite so strong; but he, as well as Paris, was suddenly put out of the way. The tales of these witnesses bear palpable and extrava- gant perjury upon the face of them; they were therefore not brought forward; but the prosecutors, or rather the Court, did that by insinua- tion and side-wind, which they dared not openly to attempt. I say that the court did this; the court, well knowing that no such witnesses as Paris and Sandy could be brought forward men, the excesses of whose falsehoods utterly counteracted the effect of their statements contrived to obtain the whole benefit of those statements, unexposed to the risk of detection, by the notable device of asking one who had heard them, a general question as to their substance; the prisoner against whom this evidence was given, having no know- ledge of the particulars, and no means of showing the falsehood of what was told, by questioning upon the part which was suppressed, " Did you hear any Negro, before the Hoard of Evidence, impute the cause of the revolt to the prisoner?" When, compelled to answer this monstrous question, the witness could only say, Yes; he had heard Negroes impute the cause to the prisoner; but they were the Negroes Paris and Sandy (and those who put this unheard-of ques- tion knew it, but he against whom the answer was levelled knew it not) Paris and Sandy, whose whole tale was such a tissue of cnor- 396 THE MISSIONARY'S CASE. mous falsehoods as only required to be heard to be rejected in an instant; and whose evidence for that reason had been carefully sup- pressed. Having said so much with respect to the nature of the evidence offered against the prisoner, and having had occasion to speak of the confessions, I shall now call the attention of the House to a letter which has been received from a gentleman of the highest respecta- bility, and entitled to the most implicit credit, but whose name I omit to mention because he is still a resident in the colony. If, however, any doubt should attach to his statement, I shall at once remove it, by mentioning the name of a gentleman to whom reference can be made on the subject I mean the Rev, Mr. Austin. He is a man who had no prejudices or prepossessions on the subject: he is a cler- gyman of the Church of England, chaplain of the colony, and I be- lieve the curate of the only English Established Church to which 77,000 slaves can have recourse for religious instruction. I mention this in passing, only for the purpose of showing, that if the slaves are to receive instruction at all, they must receive it in a great degree from members of the Missionary Society. [Mr. Brougham here read a letter, in which it was stated that the Rev. Mr. Austin had received the last confession of Paris, who stated that Mr. Smith was innocent, and he (Paris) prayed that God would forgive him the lies that Mr. had prevailed upon him to tell.] I shall not mention the name of the person alluded to by Paris as having put the lies into his mouth: it is sufficient at present to say, that he took a most active part in getting up the prosecution against this poor Mis- sionary. The letter goes on to state, that similar confessions had been made by Jack and Sandy. The latter had been arrested and sent along the coast to be executed, without Mr. Austin's knowledge (as it appeared, from a wish to prevent him from receiving the confes- sion); but that gentleman, hearing of the circumstance, proceeded with all speed to the spot, and received his confession to the above effect. He also went to see Jack, who informed him that Mr. Smith was innocent, and that he (Jack) had said nothing against him but what he had been told by others. Now I beg the House to attend to what Jack, at his trial, said against Mr. Smith; giving a statement which had been put into his mouth by persons who wished to injure Mr. Smith, and bring the character of missionaries generally into dis- repute. This poor wretch said that he had lived thirty years on Success Estate, and that he would not have acted as he had done, if he had not been told that the Negroes were entitled to their freedom, but that their masters kept it from them. He went on to say, that not only the deacons belonging to Bethel Chapel, but even Mr. Smith himself, had affirmed this, and were acquainted with the fact of the intended revolt; and this he stated as if, instead of being on his own trial, he was a witness against Mr. Smith. He also threw himself on the mercy of the court. Now what did the court do? They imme- diately examined a Mr. Herbert, and another gentleman, as to this confession. The former stated, that he took the substance of the THE MISSIONARY'S CASE. 397 confession down in the Negro's own language to a certain point; the rest was taken down by a gentleman whom I refrain from naming, but who, I am bound to say, deserves no great credit for the part which he acted in this unhappy scene. Jack, in this defence, thus prepared and thus anxiously certified, says, or is made to say " I am satisfied I have had a fair trial. I have seen the anxiety with which every member of this court martial has attended to the evidence, and the patience with which they have listened to my cross-examination of the witnesses. From the hour I was made prisoner by Captain M'Turk up to this time, I have received the most humane treatment from all the whites; nor have I had a single insulting expression from a white man, either in prison or anywhere else. Before this court, I solemnly avow that many of the lessons and discourses taught, and the parts of Scripture selected for us in chapel, tended to make us dissatisfied with our situation as slaves; and, had there been no Me- thodists on the east coast, there would have been no revolt, as you must have discovered by the evidence before you: the deepest con- cerned in the revolt were the Negroes most in Parson Smith's confi- dence. The half sort of instruction we received I now see was highly improper: it put those who could read on examining the Bible, and selecting passages applicable to our situation as slaves; and the promises held out therein were, as we imagined, fit to be applied to our situation, and served to make us dissatisfied and irritated against our owners, as we were not always able to make out the real mean- ing of these passages: for this I refer to my brother-in-law, Bristol, if I am speaking the truth or not. I would not have avowed this to you now, were I not sensible that I ought to make every atonement for my past conduct, and put you on your guard in future." Won- derful indeed are the effects of prison discipline within the tropics! I would my honourable friend, the member for Shrewsbury, were here to witness them. Little indeed does he dream of the sudden change which a few weeks of a West Indian dungeon can effect upon a poor, rude, untutored African! How swiftly it transmutes him into a reasoning, speculating creature; calmly philosophizing upon the evils of half education, and expressing himself in all but the words of our poet, upon the dangers of a liitle learning; yet evincing by his own example, contrary to the poet's maxim, how wholesome a shallow draught may prove when followed by the repose of the gaol! Sir, I defy the most simple of mankind to be for an instant deceived by this mean and clumsy fabrication. Every line of it speaks its origin, and demonsirates the base artifices to which the missionary's enemies had recourse, by putting charges against him into the month of another prisoner, trembling upon his own trial, and crouching beneath their remorseless power. I have stated that, up to a certain point, the court received hearsay evidence, and with unrestricted liberality. But the time was soon to come when a new light should break in the eyes of those just judges be opened to the strict rules of evidence, and everything like hear- say be rejected. In page 116 I find, that, when the prisoner was VOL. i. 34 398 THE MISSIONARY'S CASE. questioning Mr. Elliott as to what another person, Mr. Hopkinson,had said, an objection was taken, the court was cleared, and, on its being re-opened, the Assistant Judge-Advocate thus addressed Mr. Smith : " The Court has ordered me to say, that you must confine yourself to the strict rules of evidence ; and that hearsay evidence will not IN FUTURE be received." Will not IN FUTURE be received ! ! ! UP TO THAT PERIOD IT HAD BEEN RECEIVED ; nay, the judges themselves had put the very worst questions of that description. I say, that great as had been the blame due to the Judge- Advocate upon this occasion ; violent, partial, unjust, and cruel as had been his conduct towards the prisoner ; much as he had exceeded the limits of his duty ; flagrantly as he had throughout wronged the prisoner in the discharge I was about to say iu the breach of his official duty ; and grievously cul- pable as were some other persons to whom I have alluded, their conduct was decorous in itself, and harmless in its consequences, com- pared with the irregularity, the gross injustice, of the judges who pre- sided. Well, then, when the prosecutor's case was closed, and suf- ficient matter was supposed to have been obtained by the most unblushing contempt of all rules, from the cross-examination of the prisoner's witnesses, those same judges suddenly clothed themselves with the utmost respect for those same rules, in order to hamper the prisoner in his defence, which they had systematically violated in order to assist his prosecution. After admitting all hearsay, however remote, after labouring to overwhelm him with rumour, and repu- tation, and reports of reputation, and insinuation at second hand, they strictly prohibited everything like hearsay where it might avail him for his defence. Nay, in their eagerness to adopt the new course of proceeding, and strain the strict rules of law to the uttermost against him, they actually excluded, under the name of hearsay, that which was legitimate evidence. The very next question put by Mr. Smith went to show that he had not concealed the movements of the slaves from the manager of the estate ; the principal charge against him being concealment from " the owners, managers, and other authorities." " Did any conversation pass on that occasion between Mr. Stewart, yourself, and the prisoner, relative to Negroes; and if so, will you relate it ?" Rejected. " Did the prisoner tell Mr. Stewart, that seve- ral of the Negroes had been to inquire concerning their freedom, which they found had come out for them ?" Rejected. These questions, and several others, which referred to the very essence of the charge against him, were rejected. How then can any effrontery make men say that this poor missionary had an impartial trial? To crown so glaring an act of injustice can anything be wanting? But if it were, we have it here. The court resolved that its worst acts should not appear on the minutes: it suppressed those questions; and expunged also the decision, forbidding hearsay evidence FOR THE FUTURE! But the rule having, to crush the prisoner, been laid down, we might at least have expected that it would be adhered to. No such thing. The moment that an occasion presents itself, when the rule would hamper the prosecutor and the judges, they abandon it, and recur to THE MISSIONARY'S CASE. 399 their favourite hearsay. In the very next page, we find this question put by the Court, " Previous to your going to chapel, were you fold that plenty of people were there on that day?" If hearsay evidence was thus received or rejected as best suited the purpose of compassing the prisoner's destruction, other violations of law, almost as flagrant, were resorted to, with the same view. Conversations with Mrs. Smith, in her husband's absence, were allowed to be detailed : the sentences passed upon five other persons previously tried, were put in, and I should suppose privately read by the court, as I find no al- lusion to them in the prisoner's most able and minute defence, which touches on every other particular of the case; and all mention of those sentences is suppressed in the minutes transmitted by the court. For the manifest purpose of blackening him in the eyes of the people, and with no earthly reference to the charges against him, a long examina- tion is permitted into the supposed profits he made by a sale of Bibles, Prayer and Psalm-books, and Catechisms; and into donations he re- ceived from his Negro flock, and the contributions he levied upon them for church dues: every one tittle of which is satisfactorily answer- ed and explained by the evidence, but every one tittle of which was wholly beside the question. I find, sir, that many material circumstances which occurred on the trial are altogether omitted in the House copy. I find that the evi- dence is garbled in many places, and that passages of the prisoner's defence are omitted; some because they were stated to be offensive to the government, others because they were said to be of a dangerous tendency, others, again, because the court entertained a different opinion on certain points from the prisoner, or because they might seem to reflect upon the court itself. Mr. Smith was charged with corrupting the minds of the slaves, and enticing them to a breach of their duty, and of the law of the land, because he recommended to them not to violate the Sabbath. It was objected against him also by some, that he selected passages from the Old Testament, and by others, that he did not, as he ought, confine himself to certain parts of the New Testament: others, again, found fault with him for teaching the Negroes to read the Bible. And when, in answer to these charges, he cited passages from the Bible in his defence, he was told that he must not quote Scripture, as it was supposed that every member of the court was perfectly acquainted with the Sacred Writings a sup- position which certainly does not occur to one on reading their pro- ceedings. By others, again, this poor man was held up as an enthu- siast, who performed his functions in a wild and irregular manner. It was said that his doctrines were of a nature to be highly injurious in any situation, but peculiarly so amongst a slave population. In proof of this assertion, it was stated, that the day before the revolt he preached from Luke xix, 41,42 "And when He was come near, He beheld the city, and wept over it; saying, If thou hadst known, even thou, in this thy day, the things which belong uuio thy peace-! but now they are hid from thine eyes." Thus was this passage, which has been truly described by the Rev. Mr. Austin as a text of 400 THE MISSIONARY'S CASE. singular beauty, turned into matter of accusation and reproach against this unfortunate missionary. But if this text was held to be so dan- gerous so productive of insubordination and rebellion what would be said of the clergy of the Established Church, of whose doctrines no fear was entertained? The text chosen by Mr. Smith on this occasion appeared, to the heated imagination of his judges, to be one which endangered the peace of a slave community. Very different was the opinion of Mr. Austin, the colonial chaplain, who could not be con- sidered as inflamed with any daring, enthusiastic, and perilous zeal. But what, I ask, might not the same alarmists have said of Mr. Aus- tin, who, on that very day, the 17th of August, had to read, as indeed he was by the rubric bound to do, perhaps in the presence of a large body of black, white, and coloured persons, such passages as the fol- lowing, which occur in one of the lessons of that day, the 14th chapter of Ezekiel. " When the land sinneth against rne by trespassing grievously, then I will stretch out mine hand upon it, and will break the staff of the bread thereof, and will send famine upon it, and will cut off man and beast from it." " Though these three men" (who might easily be supposed to be typical of Mr. Austin, Mr. Smith, and Mr. Elliott,) " were in it, they shall deliver neither sons nor daughters; they only shall be delivered, but the land shall be desolate. Or if I bring a sword upon that land, and say, Sword, go through the land, so that I cut off man and beast from it; Though these three men were in it, as I live, saith the Lord God, they shall deliver neither sons or daughters; but they only shall be delivered themselves." Let me ask any impartial man if this is not a text much more likely to be mis- taken than the other? And yet every clergyman of the Established Church was bound to read it on that day in that colony. The charges against Mr. Smith are four. The first states, that, long before the 18th of August, he had promoted discontent and dissatis- faction amongst the slaves against their lawful masters. This charge was clearly beyond the jurisdiction of the court; for it refers to mat- ters before martial law was proclaimed, and consequently before Mr. Smith could be amenable to that law. Supposing that, as a court martial, they had a right to try a clergyman for a civil offence, which I utterly deny, it could only be on the principle of martial law having been proclaimed that they were entitled to do so. The proclamation might place him, and every other man in the colony, in the situation of a soldier; but if he was to be considered as a soldier, it could only be after the 19th of August. Admitting, then, that the Rev. John Smith was a soldier, under the proclamation, he was not such on the 18th, on the 17th, rior at any time before the transactions which are called the revolt of Demerara; and yet it was upon such a charge that the court martial thought proper to try him, and upon which alone it could try him, if it tried him at all. But they had no more right, I contend, to try him for things done before the 19th, in the character of a soldier liable to martial law, than they would have to try a man, who had enlisted to-day, for acts which he had committed the day before yesterday, according to the same code of military justice. The THE MISSIONARY'S CASE. 401 same reasoning applies (o three of the four charges. There is only one charge, that of communicating with Quamina touching the revolt, which is in the least entitled to consideration; yet this very communi- cation might have been to discourage, and not to excite or advise the revolt. In fact, it was clearly proved to have been undertaken for that purpose, notwithstanding the promises of the Judge- Advocate to prove the contrary. There are three things necessary to be established before the guilt of this unfortunate man can be maintained on this charge; first, that Quamina was a revolter; secondly, that Mr. Smith knew him to be a revolter; and thirdly, that he had advised and en- couraged him in the revolt; for the misprision, the mere conceal- ment, must be abandoned by those who support the sentence, inasmuch as misprision is not a capital offence. But all the evidence shows that Quamina did not appear in such a character that Mr. Smith was ignorant of it even if he did and that his communication was directed to discourage, and not to advise any rash step into which the sufferings of the slaves might lead them. As to his not having seized on Qua- mina, which is also made a charge, the answer which the poor man himself gave was a sufficient reply to any imputation of guilt that might be founded on this omission. " Look," said he, " on these limbs, feeble with disease, and say how was it possible for me to seize a powerful robust man, like Quamina, inflamed with the desire of liberty, as that slave must have been if he were a revolter, even if I had been aware that he was about to head a revolt." But, in truth, there is not a title of evidence that Mr. Smith knew of the revolt; while there is abundant proof that he took especial measures and watchful care to tell all he did know to the proper authorities, the managers of the estate. If, again, the defenders of the court martial retreat from this to the lower ground of mere concealment, and thus admit the illegality of the sentence in order to show something like matter of blame in the conduct of the accused, I meet them here as fearlessly upon the fact, as I have already done upon the law of their case; and I affirm, that lie went the full length of stating to Mr. Stewart, the manager of the estate, his apprehensions with respect to the impending danger; that "the lawful owners, proprietors, and managers" were put upon their guard by him, and were indebted to his intelligence, instead of having a right to complain of his remissness or disaffection; that he told all he knew, all he was entitled to consider as information (and no man is bound to tell mere vague suspicions, which cross his mind, and find no abiding place in it ;) and that he only knew anything precise respecting the intentions of the insurgents from the letter delivered to him half an hour before the Negroes were up in arms, and long after the movement was known to every manager in the neighbourhood. The court, then, having no jurisdiction to sit at all in judgment upon this preacher of the Gospel their own existence as a court of justice being wholly without the colour of lawful autho- rity tried him for things which, had they ever so lawful a title to try him, were wholly beyond their commission; and of those things no evidence was produced upon which any man could even suspect his 3-1 402 THE MISSIONARY'S CASE. guilt, if the jurisdiction had been ever so unquestionable, and the accused had been undeniably within its range. But in spite of all the facts in spite of his well-known character and upright conduct it was necessary that he should be made an example for certain pur- poses; it was necessary that the missionaries should be taught in what an undertaking they had embarked; that they should be warned that it was at their peril they preached the Gospel; that they should know it was at the hazard of their lives that they opened the Bible to their flocks; and therefore it was that the court martial deemed it expedient to convict Mr. Smith, and to sentence him to be hanged by the neck until he was dead! But the Negroes, it seems, had grumbled at the reports which went abroad respecting their liberation by an act of his Majesty, and the opposition said to be given to it by their proprietors. Who propa- gated those reports? Certainly not Mr. Smith. It is clear that they originated in one instance, from a servant who attended at the gover- nor's table, and who professed to have heard them in the conversa- tions which took place between the governor and his guests. Another account was, that a kept woman had disclosed the secret, having learnt it from her keeper, Mr. Hamilton. The Negroes naturally flocked together to inquire whether the reports were true or not; and Mr. Smith immediately communicated to their masters his apprehen- sions of what he had always supposed possible, seeing the oppression under which the slaves laboured, and knowing that they were men. But it is said, that at six o'clock on the Monday evening, one half hour before the rebellion broke out, he did not disclose what he could not have known before namely, that a revolt was actually about to commence. Now, taking this fact, for the sake of argument, to be proved to its fullest extent, I say that a man convicted of misprision cannot by the law be hanged. The utmost possible vengeance of the law, according to the wildest dream of the highest prerogative lawyer, could not amount to anything like a sanction of this. Such I assert the law to be. I defy any man to contradict my assertion, that up to the present hour, no English lawyer ever heard of misprision of treason being treated as a capital offence; and that it would be just as legal to hang a man for a common assault. But if it be said that the punishment of death was awarded for having aided the revolt, I say the court did not, could not, believe this; and I produce the con- duct of the judges themselves to confirm what I assert. They were bold enough in trying, and convicting, and condemning the victim whom they had lawlessly seized upon; but they trembled to execute a sentence so prodigiously illegal and unjust; and having declared that, in their consciences and on their oaths, they deemed him guilty of the worst of crimes, they all in one voice add, that they also deem him deserving of mercy in respect of his guilt! Is it possible to draw any other inference from this marvellous recommendation, than that they distrusted the sentence to which it was attached? When I see them affrighted by their own proceedings starting back at the sight of what they had not scrupled to do can I give them credit for any THE MISSIONARY'S CASE. 403 fear of doing injustice: they who from the heginning to the end of their course had done nothing else? Can I believe that they paused upon the consummation of their work from any motive but a dread of its consequences to themselves; a recollection tardy, indeed, but appalling, that " Whoso sheddeth man's blood, by man shall his blood be shed?" And not without reason, not without irrefragable reason did they take the alarm; for verily if they HAD perpetrated the last act if they had DARED to take this innocent man's life (one hair of whose head they durst not touch,) they must THEMSELVES have died the death of the murderer? Monstrous as the whole proceedings were, and horrid as the sentence that closed them, there is nothing in the trial from first to last so astounding as this recommendation to mercy, coming from persons who affected to believe him guilty of such enor- mous crimes. If he was proved to have committed the offence of exciting the slaves to acts of bloodshed if his judges believed him to have done what their sentence alleged against him how unspeaka- bly aggravated was his guilt, compared with that of the poor untutored slaves, whom he had misled from their duty under the pretext of teaching them religion! How justly might all the blood that was shed be laid upon his hend! How fitly, if mercy was to prevail, might his deluded instruments be pardoned, and himself alone singled out for vengeance, as the author of their crimes! Yet they are cut off in hundreds by the hand of justice, and he is deemed an object of com- passion! How many victims were sacrificed we know not with precision. Such of them as underwent a trial before being put to death, were judged by this court martial. Let us hope that they had a fair and impartial trial, more fair and more impartial than the violence of poli- tical party and the zeal of religious animosity granted to their ill-fated pastor. But without nicely ascertaining how many fell in the field, or by the hands of the executioner, I fear we must admit that far more blood was thus spilt than a wise and a just policy required. Making every allowance for the alarms of the planters, and the necessity of strong measures to quell a revolt, it must be admitted, that no more examples should have been made than were absolutely necessary for this purpose. Yet, making every allowance for the agitation of men's minds at the moment of danger, and admitting (which is more difficult) that it extended to the colonial government, and did not subside when tranquillity was restored, no man can avoid suspecting, that the mea- sure of punishment inflicted considerably surpassed the exigencies of the occasion. By the Negroes, indeed, little blood had been shed at any period of the revolt, and in its commencement none at all: alto- gether only one person was killed by them. In this remarkable cir- cumstance, the insurrection stands distinguished from every other movement of this description in the history of colonial society. The slaves, inflamed by false hopes of freedom, agitated by rumours, and irritated by the suspense and ignorance in which they were kept, ox- asperated by ancient as well as more recent wrongs (for a sale of fifty or sixty of them had just been announced, and they were about to be 404 THE MISSIONARY'S CASE, violently separated and dispersed,) were satisfied with combining not to work; and thus making their managers repair to the town, and ascertain the precise nature of the boon reported to have arrived from England. The calumniated minister had so far humanized his poor flock his dangerous preaching had so enlightened them the lessons of himself and his hated brethren had sunk so deep in their minds, that, by the testimony of the clergyman, and even of the overseers, the maxims of the Gospel of peace were upon their lips in the midst of rebel- lion, and restrained their hands when no other force was present to resist them. " We will take no life," said they; " for our Pastors have taught us not to take that which we cannot give;" a memorable peculiarity, to be found in no other passage of Negro warfare within the West Indian seas, and which drew from the truly pious minister of the Established Church the exclamation, that " He shuddered to write that they were seeking the life of the man whose teaching had saved theirs!" But it was deemed fitting to make tremendous exam- ples of those unhappy creatures. Considerably above a hundred fell in the field, where they did not succeed in putting one soldier to death. A number of the prisoners also, it is said, were hastily drawn out, at the close of the affray, and instantly shot. How many, in the whole, have since perished by sentences of the court, does not appear; but up to a day in September, as I learn by the Gazette which I hold in my hand, forty-seven had been executed. A more horrid tale of blood yet remains to be told. Within the short space of a week, as appears by the same document, ten had been torn in pieces by the lash: some of these had been condemned to six or seven hundred lashes; five to one thousand each; of which inhuman torture one had received the whole; and two almost the whole at once. In deploring this ill-judged severity, I speak far more out of regard to the masters than the slaves. Yielding thus unreservedly to the influence of alarm, they have not only covered themselves with disgrace, but they may, if cooler heads and steadier hands control them not, place in jeopardy the life of every white man in the Antilles. Look now to the incredible inconsistency of the authorities by whom such retribution was dealt out, while they recommend him to mercy, whom in the same breath they pronounced a thousand times more guilty than the slaves. Can any man doubt for an instant that they knew him to be innocent, but were minded to condemn, stigmatise, and degrade him, because they durst not take his life, and yet were resolved to make an example of him as a preacher? The whole proceedings demonstrate the hatred of his persecutors to be levelled at his calling and his ministry. He is denounced for reading the Old Testament; charged with dwelling upon parts of the New; accused of selling religious tracts; blamed for collecting his hearers to the sacrament and catechism; all under various pretences, as that the texts were ill chosen the books sold too dear the com- municants made to pay high dues. Nay, for teaching obedience to the law which commands to keep holy the Sabbath, ho is directly and without any disguise, branded as the sower of sedition. Upon this overt act of rebellion against all law, human and divine, a large por- THE MISSIONARY'S CASE. 405 tion of the prosecutor's invectives and of his evidence is bestowed. What though the reverend defendant showed clearly, out of the mouths of his adversary's witnesses, that he had uniformly taught the Negroes to obey their masters, even if ordered by them to break the rest of the Sabbath; that he had expressly inculcated the maxim, No- thing is wrong in you which your master commands; and nothing amiss in him which necessity prescribes? What though he reminded the court, that the seventh day, which he was charged with taking from the slaves, was not his to give or to withhold; that it had been hallowed by the Divine Lawgiver to his own use, and exempted in terms from the work of slave as well as master of beast as well as man? He is arraigned as a promoter of discontent, because he, the religious instructor of the Negroes, enjoins them to keep the Sabbath holy, when their owners allow them no other day for working; be- cause he, a minister of the Gospel, preaches a duty prescribed by the laws of religion and by the laws of the land, while the planters live in the contempt of it. In short, no man can cast his eye upon this trial, without perceiving that it was intended to bring on an issue be- tween the system of the slave-law and the instruction of the Negroes. The exemplar which these misguided men seem to have set before them is that of their French brethren in St. Domingo: one of whom, ex- ulting in the expulsion of the Jesuits, enumerates the mischiefs occa- sioned by their labours. " They preached," says he, "they assem- bled the Negroes, made the masters relax in their exactions, catechized the slaves, sung psalms, and confessed them." " Since their banish- ment," he adds, " marriages are rare; the Negroes no longer make houses for themselves apart: it is no longer allowable for two slaves to separate for ever their interest and safety from that of the gang" (a curious circumlocutory form of speech to express the married state.) "No more public worship!" he triumphantly exclaims, "no more meetings in congregation! no psalm-singing, nor sermons, for them!" " But they are still catechized; and may, on paying for it, have them- selves baptized three or four times" (upon the principle, I suppose, that, like inoculation, it is safer to repeat it.) In the self-same spirit the Demerara public meeting of the 24th of February 1824, resolved forthwith to petition the Court of Policy " to expel all missionaries from the colony, and to pass a law prohibiting their admission for the future." Nor let it be said, that this determination arose out of ha- tred towards sectaries, or was engendered by the late occurrences. In 1803, the Royal Gazette promulgated this doctrine, worthy of all at- tention: " He that chooses to make slaves Christians, let him give them their liberty. What will be the consequence when to that class of men is given the title of BELOVED BUETHKEN as actually is done? Assem- bling Negroes in places of worship gives a momentary feeling of inde- pendence both of thinking and acting, and by frequent meetings of this kind a spirit of remark is generated; neither of which are sensa- tions at all proper to be excited in the minds of slaves." Again, in 1823, says the government paper, "To address a promiscuous au- dience of black or coloured people, bond and free, by the endearing 406 THE MISSIONARY'S CASE. appellation of ' My brethren and sisters/ is what can nowhere be heard except in Providence Chapel;" a proof how regularly this ad- versary of sectarian usages had attended the service of the church. And, in February last, the same judicious authority, in discussing the causes of the discontents, and the remedy to be applied, thus proceeds: " It is most unfortunate for the cause of the planters, that they did not speak out in time. They did not say, as they ought to have said, to the first advocates of missions and education, We shall not tolerate your plans till you prove to us that they are safe and necessary; we shall not suffer you to enlighten our slaves, who are. by law our pro- perty, till you can demonstrate that when they are made religious and knowing they will still continue to be our slaves." "In what a per- plexing predicament do the colonial proprietors now stand! Can the march of events be possibly arrested! Shall they be allowed to shut up the chapels, and banish the preachers and schoolmasters, and keep the slaves in ignorance? This would, indeed, be an effectual remedy; but there is no hope of its being applied! ! /" " The obvious con- clusion is this Slavery must exist as it now is, or it will not exist at all." "If we expect to create a community of reading, moral, church-going slaves, we are woefully mistaken." Ignorant! oh, pro- foundly ignorant, of the things that belong to their PEACE! may we truly say, in the words of the missionary's beautiful text to that peace, the disturbance of which they deem the last of evils. Were there not dangers enough besetting them on every side without this? The frame of West Indian society, that monstrous birth of the accur- sed slave trade, is so feeble in itself, and, at the same time, surrounded with such perils from without, that barely to support it demands the most temperate judgment, the steadiest and the most skilful hand; and, with all our discretion and firmness, and dexterity, its continued existence seems little less than a miracle. The necessary hazards, to which, by its very constitution, it is hourly exposed, are sufficient, one should think, to satiate the most greedy appetite for difficulties to quench the most chivalrous passion for dangers. Enough that a hand- ful of slave-owners are scattered among myriads of slaves enough, that in their nearest neighbourhood a commonwealth of those slaves is now seated triumphant upon the ruined tyranny of their slaughtered masters enough, that, exposed to this frightful enemy from within and without, the planters are cut off from all help by the ocean. But to odds so fearful, these deluded men must needs add new perils abso- lutely overwhelming! By a bond, which nature has drawn with her own hand, and both hemispheres have witnessed, they find leagued against them every shade of the African race, every description of those swarthy hordes, from the peaceful Eboe to the fiery Koroman- tyn. And they must now combine in the same hatred the Christians of the Old world with the Pagans of the New! Barely able to re- strain the natural love of freedom, they must mingle it with the enthu- siasm of religion vainly imagining that spiritual thraldom will make personal subjection more bearable; wildly hoping to bridle the strong- est of the human passions, in union and in excess the desire of liberty THE MISSIONARY'S CASE. 407 irritated by despair, and the fervour of religious zeal by persecution exasperated to frenzy. But I call upon Parliament to rescue the West Indies from the horrors of such a policy; to deliver those misguided men from their own hands. I call upon you to interpose while it is yet time to save the West Indies; first of all, the Negroes, the most numerous class of our fellow-subjects, and entitled beyond every other to our care by a claim which honourable minds will most readily ad- mit their countless wrongs, borne with such forbearance, such meek- ness, while the most dreadful retaliation was within their grasp; next, their masters, whose short-sighted violence is, indeed, hurtful to their slaves, but to themselves is fraught with fearful and speedy destruc- tion, if you do not at once make your voice heard and your authority felt, where both have been so long despised. I move you "That an Humble Address be presented to his Majesty, setting forth, that the House, having taken into their most serious con- sideration the proceedings which had taken place on the trial of the Reverend John Smith, at Demerara, contemplated with the most serious alarm the violation of law and justice which had there been committed; and they did earnestly pray, that his Majesty would be most graciously pleased to give orders for such an impartial and hu- mane administration of the law in that colony as may secure the rights not only of the Negroes, but of the Planters themselves." SPEECH, IN REPLY, IN THE CASE OF THE REV. JOHN SMITH, THE MISSIONARY. DELIVERED IN THE HOUSE OF COMMONS, JUNE 11, 1824. I DO assure the House, that I feel great regret at having to address them again so late in the night; but, considering the importance of the case, I cannot be satisfied to let it rest where it is without trespass- ing upon their patience for a short time and it shall be for as short a time as possible: indeed, that I rise at all is chiefly in consequence of the somewhat new shape into which the proposition of the right hon- ourable gentleman opposite* has thrown the question. For, sir, as to the question itself, on the merits of which I before presumed at such length on the indulgence of the House, not only have I heard nothing to shake the opinion which I originally expressed, or to meet the argu- ments which I feebly endeavoured to advance to its support, but I am seconded by the admissions of those who would resist the motion: for, beside the powerful assistance I have had the happiness of receiving from my honourable and learned friends on the benches around me, and who, one after another, have distinguished themselves in a man- ner never to be forgotten in this House, or by their country! men of all classes, and of all parties, without regard to difference of political sentiments or of religious persuasion, will hold them in lasting remerri- * Mr. Canning 1 . f Mr. (now Lord Chief Justice) Denman; Mr. (now Mr. Justice) Williams; Sir James Mackintosh and Dr. Lushington. The speeches of the two former have already been mentioned. Dr. Lushington's was of the very highest merit. Sir J. Mackintosh's was excellent also. THE MISSIONARY'S CASE. 409 brance, and pronounce their honoured names with unceasing gratitude, for the invaluable service which their brilliant talents and honest zeal have rendered to the cause of truth and justice. Beside this, what have I on the other side? Great ability, no doubt displayed much learning exhibited men of known expertness and high official authority put in requisition others for the first time brought forward in debate an honourable and learned friend of mine, for whom I have the most sincere esteem, and the best grounded, because it rests on a long and intimate knowledge of his worth, and of those talents and accomplishments of which I did not for the first time to-night witness the exhibition, although they have now first met the universal admira- tion of this House;* yet with all those talents, and all that research from him and from others who followed him, instead of an answer, instead of anything to controvert the positions I set out with, I find support. I have an admission for it amounts to nothing less than an admission a confession a plea of guilty, with a recommendation to mercy. We have an argument in mitigation of the punishment of this court martial, and of the government who put their proceedings in motion nothing against Mr. Smith, nothing on the merits or in favour of those proceedings. An attempt, no doubt, was made by my honour- able and learned friend the Attorney General,! to go a little further than any other gentleman who has addressed the House. He would fain have slept beyond the argument which alone has been urged from all other quarters against this poor missionary, and would have attempted to show that there was some foundation for the charge which makes him an accomplice, as well as guilty of misprision: all others, as well of the legal profession as laymen, and particularly the Secretary of State, J who spoke last but one, have at once abandoned, as utterly desperate, each and every of the charges against Mr. Smith, except that of misprision; and even this they do not venture very stoutly to assert. " It is something like a misprision," says the right honourable Secretary; for the House will observe, that he would not take upon himself to say that the party had been guilty of misprision of treason, strictly so called. He would not attempt to say there was any treason in existence of which a guilty concealment could take place; still less would he undertake to affirm (which is, however, necessary, in order to made it misprision at all) that Mr. Smith had known a treason to exist in a specific and tangible shape, and that after this knowledge was conveyed to him, he had sunk it in his own breast instead of di- vulging it to the proper authorities. All the charge was this in this it began, in this it centered, in tin's it ended : " I cannot help thinking," said the rk'ht honourable gentleman, "when I take everything into consideration, whatever may be the facts as to the rest of the case I cannot get out of my mind the im- * Mr. (now Lord Chief Justice) Tind.il, who then first spoke in Parliament. | Sir J. Copley, now Lord Lyndhurst, who spoke with his accustomed -ahility. ^ Mr Canning, who moved the previous question after Mr. (now ISir H.) \\ iliuot Ilorlon had met the motion with a negative. VOL. 1. 35 410 THE MISSIONARY'S CASE. pression, that, somehow or other, he must have known that all was not right; must have suspected that there might be somethmg wrong\ and knowing, or suspecting, there was something ivrong, he did not communicate that something to the lawful authorities!" My honour- able and learned friend,* indeed, went a little further: he felt, as a law- yer, that this was not enough, and particularly when we are talking, not merely of a crime, but of a capital crime not merely of a charge of guilty, and of " something ivrong" and of having a misgiving in your mind that that " something wrong," was known to him, and, be- ing known to him, was concealed by him; but that on this something was to be founded, not barely an accusation of wrong doing, but a charge of criminality; and not merely a charge, but a conviction; and not merely a conviction of guilt, but a conviction of the highest guilt known to the law of this or of any country; and a sentence of death following that capital conviction: and that ignominious sentence stand- ing unrepealed, though unexecuted; sanctioned, nay adopted, by the government of this country, because suffered to remain unrescinded; and carried into effect, as far as its authors durst themselves give it operation, by treating its object as a criminal, and making him owe his escape to mercy, who was entitled to absolute acquittal. Accord- ingly, what says my honourable friend,t in order to show that there was some foundation for those proceedings? He feels that English law will not do ; that is quite out of the question ; so does the Attorney General. Therefore forth comes their Dutch code; and upon it they are fain, at least for a season, to rely. They say, " True it is, all this would have been too monstrous to be for one instant endured in any court in England; true, there is nothing like a capital crime commit- ted here; certain it is, if treason had been committed by some men conspiring the death of the king; if an overt act had been proved; if the very bond of the conspirators had been produced, with their seals, in court, to convict them of this treason; and if another man, namely, Smith, had been proved to have known it, to have seen the bond with the seals and the names of the conspirators upon it, had been the con- fidential depositary of their secret treasons, and had done all but make himself their accomplice, he might have known it, he might have seen its details in black and white, he might have had it communicated to him by word or by writing, he might have had as accurate knowledge of it as any man has of his own household, and he might have buried the secret in his own breast, so that no one should learn it until the design, well matured, was at length carried openly into execution; and yet that knowledge and concealment, that misprision of treason, could not by possibility have subjected him to capital punishment in any English court of justice!" This they know, and this they admit; and the question being, What shall we do, and how shall we express our opinion on the conduct of a court martial, which, having no jurisdiction with respect to the offence, even if the person of the prisoner had been under their authority, chose * The Attorney General. | Mr. Tindal. THE MISSIONARY'S CASE. 411 to try him over whom they had no jurisdiction of whatever offence he might be accused; and, moreover, to try him capitally for an offence for which no capital sentence could be passed, even if the party had been amenable to their jurisdiction, and if, when put upon his trial, he had at once pleaded guilty, and confessed that he had committed all ho was accused of a hundred times over this being the question before the House, my honourable and learned friends being called upon to say how we shall deal with those who first arrogate to themselves an authority utterly unlawful, and then sentence a man, whom they had no pretence for trying, to be hanged for that which he never did, but which, had he done it, is not a capital crime: such being the question, the gentlemen on the other side, feeling the pinch of it, and aware that there is no warrant for such a sentence in the English law, betake them- selves to the Dutch, contending that it punishes misprision with death! But here my honourable friend* gets into a difficulty, which all his acuteness only enables him to see the more clearly that there is no struggling against, and from which the whole resources of his learning have no power to extricate him. Nay I speak it with the most sin- cere respect for him I was not the only person who felt, as he was going on, that in this part of his progress he seemed oppressed with the nature of his task, and, far from getting over the ground with as easy a pace and as firm a footstep as usual, he hesitated and even stumbled; as if unaware beforehand of the slipperiness of the path, and only sensible of the kind of work he had undertaken when already in the midst of it. The difficulty, the insurmountable difficulty, is this: You must choose between jurisdiction to try at all, and power to punish misprision capitally; both you cannot have by the same law. If the Dutch law make the crime capital, which the English does not, the Dutch law gives you no right to try by a military tribunal. The Eng- lish law it was that alone could make the court martial legal; so, at least, the court and the prosecutor say. "Necessity," they assert, "has no law proclaim martial law, every man is a soldier, and amenable to a military court." They may be right in this position, or they may be wrong; but it is their only defence of the jurisdiction which they assumed. By the law of England, then, not of Holland, was the court assembled. According to English forms it sate; to Eng- lish law-principles it affected to square its modes of proceeding; to authorities of English law it constantly appealed. Here indeed, this night, we have heard Dutch jurists cited in ample profusion; the eru- dite Van Schooten, the weighty Voetius, the luminous Huber, orna- ments to the Batnvian school and Dommfit, who is neither Dutch nor English, but merely French, and therefore has as much to do with the question, in any conceivable view, as if he were a Mogul doctor; yet his name too is brandished before us, as if to show the exuberance and variety of the stores at the command of my honourable and learned friends. But was any whisper of all this Hollandish learning ever heard in * Mr. Tindal. 412 THE MISSIONARY'S CASE. the court ilself? Was it on those worthies that the parties themselves relied, for whom the fertile and lettered invention of the gentlemen opposite is now so nimbly forging excuses? No such thing. They appealed to the Institutes of that far-famed counsellor of justice, Black- stone; the edict of the States-General, commonly called the "Mutiny Act;" the Crown Law of that elaborate commentator of Rotterdam, Hawkins; and the more modern tractate upon evidence of my excel- lent friend, the very learned professor Phillips of Leyden. It is to these authorities that the Judge Advocate, or rather the many Judge Advocates who were let loose upon the prisoner, constantly make their appeal; with quotations from these laws and these text- writers that they garnish their arguments; and Voet, and Van Schooten, and Huber, are no more mentioned than if they had never existed, or Guiana had never been a colony of the Dutch. Thus, then, in order to get jurisdiction, without which you cannot proceed one step, be- cause the whole is wrong from the beginning if you have it not, you must abandon your Dutch authors, leave your foreign codes, and be content with that rude, old-fashioned system, part written, part tradi- tional, the half-Norman half-Saxon code, which we are wont (and no man more than my honourable and learned friend, himself one of its choicest expounders) to respect, under the name of the eld every-day law of England. Without that you cannot stir one step. Having got- ten your foot on that, you have something like a jurisdiction, or at least a claim to a jurisdiction, for the court martial. But, then, what becomes of your capital punishment? Where is your power of putting to death for misprision? Because, the instant you aban- don the Dutch law, away goes capital punishment for misprision; and if you acquit this court martial of the monstrous solecism (I purposely avoid giving it a worse name) of having pronounced sentence of death for a clergyable offence, you can only do so by hav- ing recourse to the Dutch law, and then away goes the jurisdiction: so that the one law takes from you the jurisdiction the authority to try at all; and the other takes away the right to punish as you have punished. Between the horns of this dilemma I leave my honourable and learned friend, as I must of necessity leave him where he has chosen to plant himself; suspended in such a fashion that he can never, by any possibility, quit the one point, without being instantly trans- fixed upon the other. Now, this is no immaterial part of the argument; on the contrary, it lies at the foundation of the whole; and I cannot help thinking, that the practised understanding of my other learned friend* perceived its great importance, and had some misgivings that it must prove decisive of the question; for he applied himself to strengthen the weak part, to find some way by which he might steer out of the dilemma some mid- dle course, which might enable him to obtain the jurisdiction from one one law, and the capital punishment from the other. Thus, according to him, you must neither proceed entirely by the Dutch, nor yet en- * The Attorney General. THE MISSIONARY'S CASE. 413 tirely by the English law, but just take from each what suits your immediate purpose, pursuing it no further than the necessities of your case require, and the flaws in that case render safe. The English law gives you jurisdiction; use it then to open the doors: but, having them thus flung open, allow not to enter the gracious figure of English jus- tice, with those forms, the handmaids that attend her. Make way for the body of Dutch jurisprudence, and enthrone her, surrounded with her ministers, the Hubers, and Voets, and Van Schootens. Now this mode of treating a diificulty is one of the most ordinary, and among the least excusable, of all sophisms; it is that by which, in order to get rid of an absurdity inherent in any proposition, we arbitrarily and gratuitously alter its terms, as soon as we perceive the contradictory results to which it necessarily leads; carving and moulding our data at pleasure; not before the argument begins, but after the consequences are perceived. The alteration suddenly made arises, not out of the argument, or the facts, or the nature of things; but is made violently, and because there is no doing without it; and it is never thought of till this necessity is discovered. Thus, no one ever dreamt of calling in the Dutch code, till better lawyers than the court martial found that the English law condemned half their proceedings; and then the English was abandoned, until it was perceived that the other half stood condemned by the Dutch. Therefore a third expedient is re- sorted to, that of a party-coloured code; the law under which they claim their justification is to be part Dutch, when that will suit; part English, when they can't get on without it; something compounded of both, and very little like either; showing to demonstration that they acted without any law, or only set about discovering by what law they acted after their conduct was impeached; and then were forced to fabri- cate a new law to suit their proceedings, instead of having squared those proceedings to any known rule of any existing law on the face of the earth. To put all such arbitrary assumptions at once to flight, I need only remind the House how the jurists of Demerara treated the Dutch law. Admitting, for argument's sake, that the doois of the court were opened by the English law giving them jurisdiction, then that by violence the Dutch law was forced through the door, and made to preside, of course we shall find all appeal to English statutes, and forms, and common law, cease, from the instant that they have served their purpose of giving jurisdiction, and everything will be conducted upon Dutch principles. Was it so? Was any mention made, from beginning to end, of Dutch rules or Dutch forms? Was there a word quoted of those works now so glibly referred to? Was there a single name pro- nounced of those authorities, for the first time cited in this House to-night? Nothing of the kind. All was English, from first to last: all the laws appealed to on either side, all the writers quoted, all the principles laid down, without a single exception, were the same that would have been resorted to in any court silting in this country; and the court martial were content to rest their proceedings upon our own law, and to be an English judicature, or to be nothing at all. 35* 414 THE MISSIONARY'S CASE. Sir, I rejoice (well knowing that a legal argument, whether Dutch or English, or, like the doctrine I have been combating, made up of both, is at all times very little of a favourite with this House, and less than ever at the hour of the morning to which we are now approach- ing,) I rejoice greatly that what I have said, coupled with the far more luminous and cogent reasons which have been urged by my honoura- ble and learned friends around me, may suffice to settle the point of law, and relieve me from the necessity of detaining you longer upon so dry a part of the question. My only excuse for having gone so far into it, is its intimate connection with the defence of the court martial, of whose case it indeed forms the very corner-stone. And now, in passing to the merits of the inquiry, before that court, I have to wish that my honourable and learned friend, the member for Peterborough* was here in his place; that, after the example of others who have gone before me, I too might in my turn have taken the opportunity of pay- ing my respects to him. But, if he has gone himself, he has left a worthy representative in the honourable Under Secretary for Colonial Affairst, by whom, in the quality for which his very remarkable speech the other night shone conspicuous I mean, an entire ignorance of the facts of the case he is, I will not say out done, because that may safely be pronounced to be beyond the power of any man, but almost, if not altogether, equalled. There was, however, this difference between the two, that the honourable Under Secretary, with a gravity quite imposing, described the great pains he had taken to master the details of the subject, whereas my honourable friend avowed that he considered it as a matter which any one might take up at an odd moment during the debate; that, accordingly, he had come down to the House perfectly ignorant of the whole question, and been content to pick up what he could, while the discussion went on, partly by listening, partly by reading. I would most readily have taken his word for this, as I would for anything else he chose to assert; but if that had not been sufficient, his speech would have proved it to demonstration. If, as he says, he came down in a state of entire ignorance, assuredly he had not mended his condition by the sort of attention he might have given to the question in his place, unless a man can be said to change his ignorance for the better, by gaining a kind of half-blind, left-handed knowledge, which is worse than ignorance, as it is safer to be unin- formed than misinformed. In this respect, too, the right honourable Secretary of StateJ is his worthy successor; for the pains which he has taken to inform himself, seem but to have led him the more widely astray. I protest I never in my life witnessed such an elaborate neglect of the evidence as per- vaded the latter part of his speech, which affected to discuss it. He appeared to have got as far wrong, without the same bias, as my hon- ourable and learned friend was led by the jaundiced eye with which he naturallyenough views such questions,fromhis\VestIndian connections and the recollections associated with the place of his birth and the scene * Mr. Scarlett. | Mr. (now Sir R.) Wilmot Horton. Mr. Canning. THE MISSIONARY'S CASE. 415 of his earliest years. Without any such excuse from nature, the right honourable Secretary labours to be in the wrong, and is eminently suc- cessful. His argument against Mr. Smith rests upon the assumption that he had an accurate knowledge of a plot, which the right honourable Sec- retary by another assumption supposes to have been proved; and he assumes that Mr. Smith had this knowledge twenty-four hours before he could possibly have known anything of the matter. Everything turns upon this; and whoever has read the evidence with attention, is perfectly aware that this is the fact. Tell me not of Jacky Reed's letter, which was communicated to him on Monday evening at six o'clock, or later! Talk not to me of going to the constituted authorities as soon as he knew of a revolt ! If he had known it the night before ; if he had been aware of the design before the insurrection broke out then, indeed, there might have been some ground for speaking about concealment. If he had obtained any previous intelligence, though nothing had been confided to him, by a figure of speech we might have talked of con- cealment hardly of misprision. But when did the note reach him? The only discrepancy in the evidence is, that one witness says it was delivered at six o'clock, and he was the bearer of it; while another, ascertaining the time by circumstances, which are much less likely to deceive than the vague recollection of an hour, fixes the moment, by saying that it was at night-fall, half an hour later. But take it at the earliest period, and let it be six o'clock. When did the revolt break out? I hear it said, at half-past six. No such thing: it broke out at half-past three: ay, and earlier. Look at the fifteenth page of the evidence, and you will find one witness speaking to what happened at half-past three, and another at half-past four. A most important step had then been taken. Quamina and Jack, the two alleged ring- leaders one of them, Jack, unquestionably was the contriver of the whole movement, or resolution to strike work, or call it what you will; and Quamina was suspected and I believe the suspicion to have been utterly groundless; nor have I yet heard, throughout the whole proceedings, a word to confirm it but both these men, the real and the supposed ringleader, had been actually in custody for the revolt, nay, had been both arrested for the revolt and rescued by the revolters, two or three hours before the letter came into Mr. Smith's hands! It is for not disclosing this, which all the world knew better than himself for not telling them at night what they knew in the afternoon that he is to be blamed! Why go and communicate to a man that the sun is shining at twelve o'clock in the day? Why tell this House that these candles are burning; that we are sitting in a great crowd, in no very pleasant atmosphere, and listening to a tedious speech? Why state things which were as plain as the day light, and which every one knew better and earlier than Mr. Smith himself? He was walking with his wife under his arm, say the witnesses: he should have walked away with her, or hired a horse and rode to Georgetown, says the right honourable Secretary. Why, this would have been, at the least, only doing what was manifestly superfluous, and, because superfluous, ridiculous. But in the feeling which then prevailed; in the irritation 416 THE MISSIONARY'S CASE, of men's minds; in (he exasperation to wards himself, which, I am sorry to say, had been too plainly manifested; I believe such a folly would not have been considered as superfluous only: he would have been asked, " Why are you meddling? what are you interfering about? keep you quiet at your own house: if you are indeed a peaceable missionary, don't enter into quarrels you have no concern in, or busy yourself with other people's matters." Answers of that kind he had received before: rebuffs had been given him of a kind which might induce him to take an opposite course: not a fortnight previous to that very night he had been so treated. I, for one, am not the man to marvel that he kept himself still at his house, instead of going forth to tell tales which all the world knew, and to give information, extremely unlike that which the evidence would have communicated to the honourable Under Secretary, if he had read it correctly; and to the member for Peterbo- rough, if he had read it at all. It would have informed no one, because all knew it. But, says the right honourable gentleman,* why did not this mis- sionary, if he would not fly to the destruction of his friends upon some vague surmise if he would not make haste to denounce his flock upon rumour or suspicion if he would not tell that which he did not know; if he would not communicate a treason which probably had no exist- ence, which certainly did not to his knowledge exist if he would not disclose secrets which no man had entrusted to him if he would not betray a confidence which no mortal had ever reposed in him (for that is the state of the case up to the delivery of Jacky Reed's letter; that is the precise state of the case at the time of receiving the letter;) if he did not please to do all these impossibilities, there was one possibility, it seems, and that mentioned for the first time to-night (I know not when it was discovered,) which he might do: Why did he not go forth into the field, when the Negroes were all there, rebel- lious and in arms some arrested and rescued, others taken by the insurgents and carried back into the woods why did he not proceed where he could not take a step, according to the same authority that suggests such an operation, without seeing multitudes of martial slaves; why not, in this favourable state of things, at this very opportune moment, at a crisis so auspicious for the exertions of a peaceful mis- sionary among his enraged flock why not greedily seize such a moment, to reason with them, to open his Bible to" them, to exhort them, and instruct them, and catechize them, and, in fine, take all those steps for having pursued which, in a season of profound tranquillity, he was brought into peril of his life! wherefore not now renew that teaching and preaching to them, for which, and for nothing else, he was condemned to death, his exhausted frame subjected to lingering torture, and his memory blighted with the name of traitor and felon! Why, he was wise in not doing this! If he had made any such un- seasonable and wild attempts, we might now think it only folly, and might be disposed to laugh at the ridiculous project; but at that moment * Mr. Canning. THE MISSIONARY'S CASE. 417 of excitement, when the exasperation of his enemies had waxed to such a height as lie knew it to have reached against him, and men's minds were in a state of feverish alarm that made each one deem every other he met his foe, and all who were in any manner of way con- nected with plantations fancied they saw the very head and ringleader of their common enemy in whatever bore the shape of a Christian pas- tor (this Mr. Smith knew, independent of Ins personal experience, independent of experience the most recent experience within the last fortnight from the time when such courses are pointed out as rational, nay, obvious and necessary;) but if, with only his own general know- ledge of the state of society, the recollection of what had happened to him in former times, and the impression which every page of his journal proves to have been the genuine result of all he saw daily passing be- fore his eyes if, in such a crisis, and with this knowledge, he had fared forth upon the hopeless errand of preaching peace, when the cutlasses of the insurgents were gleaming in his eyes, I say he would not merely have exposed himself to the just imputation of insanity from the candid and reflecting, but have encountered, and for that reason encountered the persecutions of those who now, with mon- strous inconsistency, blame him for not employing his pastoral authority to restrain a rebellious multitude, and who pursued him to the death for teaching his flock the lessons of forbearance and peace! Sir, I am told that it is unjust to censure the court martial so vehe- mently as I propose doing in the motion before you: and really to hear gentlemen talk of it, one would imagine it charged enormous crimes in direct terms. Some have argued as if murder were plainly im- puted to the court: They have confounded together the different parts of the argument urged in support of the motion, and then imported into the motion itself that confusion, the work of their own brains. But even if the accusations of which they complain had been pre- ferred in the speeches that introduced or supported the proposition, could anything be conceived more grossly absurd than to decide as if you were called upon to adopt or reject the speeches, and not the motion, which alone is the subject of the vole? Truly this would be a mode of reasoning surpassing anything the most unfair and illogical that I have ever heard attempted even in this place, where I have cer- tainly heard at times reasonings not to be met with elsewhere. The motion conveys a censure, I admit; but in my humble opinion, a tem- perate and a mitigated censure. The law has been broken; justice lias been outraged. Whoso believes not in this, let him not vote for the motion. But whosoever believes that a gross breach of the law has been committed; that a flagrant violation of justice has been per- petrated; is it asking too much at the hands of that man, to demand that he honestly speak his mind, and record his sentiments by his vote? In former times, be it remembered, this House of Parliament has not scrupled to express, in words far more stringent than any you are now required to adopt, its sense of proceedings displaying the triumph of oppression over the law. When there came before the legislature a case remarkable in itself; for its consequences yet moro 418 THE MISSIONARY'S CASE. momentous; resembling the present in many points; to the very letter in some things resembling it I mean, the trial of Sydney did our illustrious predecessors within these walls shrink back from the honest and manly declaration of their opinion in words suited to the occasion, and screen themselves behind such tender phrases as are to-night resorted to, " Don't be too violent pray be civil do be gentle there has only been a man murdered, nothing more a total breach of all law to be sure; an utter contempt, no doubt, of justice, and everything like it, in form as well as in substance; but that's all ; surely, then, you will be meek, and patient, and forbearing, as were the Demerara judges to this poor missionary; against whom, if some- what was done, a great deal more was meditated than they durst openly perpetrate; but who, being condemned to die in despite of law and evidence, was only put to death by slow and wanton seventy!" In those days no such language was holden. On that memorable occasion, plain terms were not deemed too strong when severe truth was to be recorded. The word "murder" was used because the deed of blood had been done. The word " murder " was not reck- oned too uncourtly in a place where decorum is studied somewhat more scrupulously than even here: on the journals of the other House stands the appointment of Lords Committees, " to inquire of the advisers and prosecutors of the murder of Lord Russell and Colonel Sydney;" and their lordships make a report, upon which the statute is passed to reverse those execrable attainders. I will not enter into any detailed comparison of the two cases, which might be thought fanciful; but I would remind the House, that no legal evidence was given of Mr. Smith's handwriting in his journal, any more than of Sydney's in his manuscript Discourse on Government, Every lawyer, who reads the trial, must at once perceive this. The witness who swears to Mr. Smith's hand, cannot say that he ever saw him write; and when asked how he knows, the court say "that question is un- necessary, because he has said he knows the hand!" although all the ground of knowledge he had stated was having received letters from him, without a syllable of having afterwards seen him to ascertain that they were his, or having written in answer to them, or otherwise acted upon them. Now, in Sydney's case there was an endorsement on bills of exchange produced, and those bills had been paid; neverthe- less, Parliament pronounced his conviction murder, for this, among other reasons, that such evidence had been received. The outrageous contempt of the most established rules of evidence, to which I am alluding, was indeed committed by a court of fourteen military officers, ignorant of the law; but, that their own deficiencies might be sup- plied, they had joined with them the first legal authority of the colony. Why then did they not avail themselves of Mr. President Wray's knowledge and experience? Why did they overrule by their num- bers what he MUST have laid down to them as the law? I agree en- tirely with my honourable and learned friend* that the President must * Mr, Scarlett. THE MISSIONARY S CASE. 419 have protested strenuously against such proceedings. J take for granted, as a matter of course, that he resisted them to the utmost of his power. My honourable friend and I have too good an opinion of that learned judge, and are too well persuaded of his skill in our common profession, to have a doubt in our minds of his being as much astonished at those strange things as any man who now hears of them; and far more shocked, because they were done before his eyes; and, though really in spite of his efforts to prevent them, yet clothed in out- ward appearance with the sanction of his authority. In Sydney's case, another ground of objection at the trial and of reprobation ever afterwards, was the seizure and production of his private manuscript, which he described, in eloquent and touching terms, as containing " sacred truths and hints that came into his mind, and were designed for the cultivation of his understanding, nor intended to be as yet made public." Recollect the seizure and production of the missionary's journal; to which the same objection and the same reprobation is applicable; with this only difference, that Sydney avowed the intention of eventually publishing his Discourse, while Mr. Smith's papers were prepared to meet no mortal eye but his own. In how many other particulars do these two memorable trials agree! The Preamble of the Act rescinding the attainder seems almost framed to describe the proceedings of the court at Dcmerara. Admission of hearsay evidence; allowing matters to be law for one party, and re- fusing to the other the benefit of the same law; wresting the evidence against the prisoner; permitting proof by comparison of hands all these enormities are to be found in both causes. But, sir, the demeanour of the judges after the close of the proceed- ings, I grieve to say it, completes the parallel. The Chief Justice who presided, and whom a profligate government made the instrument of Sydney's destruction, it is stated in our most common books Collins, and I believe also Rapin " when he allowed the account of the trial to be published, carefully made such alterations and suppressions as might show his own conduct in a more favourable light." That judge was Jeffries, of immortal memory! who will be known to all ages as the chief not certainly of ignorant and inexperienced men, for he was an accomplished lawyer, and of undoubted capacity but as the chief and head of unjust, and cruel, and corrupt judges! There, in that place, shall Jeffries stand hateful to all posterity, while England stands; but there he would not have stood, and his name have come down to us with far other and less appropriate distinction, if our fore- fathers, who sat in this House, had consented to fritter away the ex- pression of their honest indignation, to miligate the severity of that record which should carry their hatred of injustice to their children's children if, instead of deeming it their most sacred duty, their highest glory, to speak the truth of privileged oppressors, careless whom it might strike, or whom offend, they had only studied how to give the least annoyance, to choose the most courtly language, to hold the kindest and most conciliating tone towards men who showed not a gleam of kindness, conciliation, courtesy, no, nor bare justice, nor any 420 THE MISSIONARY'S CASE. semblance or form of justice, when they had their victim under their dominion. Therefore it is that I cannot agree to this previous ques- tion. Rather let me be met by a direct negative: it is the manlier course. I could have wished that the government had still " screwed up their courage to the sticking-place," where for a moment it perched the first night of the debate, when by the honourable gentleman from the Colonial Department we were told that he could not consent to meet this motion in any way but the most triumphant a decided negative. Mr. Wilmot Horton. "No!" Mr. Brougham. I beg the honourable member's pardon. I was not present at the time, but took my account of what passed from others, and from the usual channels of intelligence. I understood that he had given the motion a direct negative. Mr. Wilmot Horton. " I said no such thing; I said I should give my dissent to the motion without any qualification." Mr. Brougham. Sir, I was not bred up in the Dutch schools, nor have practised in the courts of Demerara; and I confess my inability to draw the nice distinction, so acutely taken by the honourable gen- tleman, between a direct negative and a dissent without any qualifi- cation. In my plain judgment, unqualified dissent is that frame of mind which begets a direct negative. Well, then, call it which you will, I prefer, as more intelligible and more consistent, the direct nega- tive, or unqualified dissent. What is the meaning of this " previous question," which the right honourable Secretary* has to-night substi- tuted for it? Plainly this: there is much to blame on both sides; and, for fear of withholding justice from either party, we must do injustice to both. That is exactly the predicament in which the right honour- able gentleman's proposition would place the government and the House, with respect to West Indian interests. But what can be the reason of all this extraordinary tenderness towards the good men of Demerara! Let us only pause for a mo- ment, and consider what it can mean. How striking a contrast does this treatment of those adversaries of his Majesty's ministers afford to the reception which we oftentimes meet with from them here! I have seen, in my short experience, many motions opposed by the gentlemen opposite, and rejected by the House, merely because they were ac- companied by speeches unpalatable to them and their majorities. I have seen measures of the greatest importance, and to which no other objection whatever was made, flung out, only because propounded by opposition men, and recommended by what were called factious argu- ments. I remember myself once moving certain resolutions upon the commercial policy of the country, all of which have, I think, either been since adopted by the ministers (and I thank them for it,) or are in the course of being incorporated with the law of the state. At the time, there was no objection urged to the propositions themselves indeed, the Chancellor of the Exchequer professed his entire concur- * Mr. Canning. THE MISSIONARY'S CASE. 421 rcncc with my doctrines and as I then said I had much rather see his good works than hear his profession of faith, I am now happy that he has appealed to this test of his sincerity, and given me what I asked, the best proof that the government entirely approved of the mea- sures I recommended. But, upon what grounds were they resisted at the time? Why, nine parts in ten of the arguments I was met by, consisted of complaints that I had introduced them with a factious speech, intermixed them with party topics, and combined with the commercial part of the subject a censure upon the foreign policy of the government, which has since been, I think, also well-nigh given up by themselves. Now, then, how have the Demerara men entitled themselves to the especial protection and favour of those same minis- ters? Have they shown any signal friendship, or courtesy, or decent respect, towards his Majesty's government? Far enough from it. I believe the gentlemen opposite have very seldom had to bear such violence of attack from this side of the House, bad though we be, as from their Guiana friends. I suspect they have not in any quarter had to encounter so much bitterness of opposition as from their new favourites, whom they are so fearful of displeasing. Little tender- ness, or indeed forbearance, have they shown towards the government which anxiously cherishes them. They have held public meetings to threaten all but separation; they have passed a vote of censure upon one minister by name; and, that none might escape, another upon the whole administration in a mass; and the latest accounts of their pro- ceedings left them contriving plans in the most factious spirit, in the very teeth of the often-avowed policy of the government, for the pur- pose of prohibiting all missions and expelling all missionaries from the settlement. Sir, missions and missionaries may divide the opinions of men in any other part of our dominions except the slave colonies, and the most opposite sentiments may honestly and conscientiously be en- tertained upon their expediency; but in those countries it is not the question, whether you will have missionary teachers or no, but, whe- ther you will have teachers at all or no. The question is not, shall the Negroes be taught by missionaries, but, shall they be taught at all? For it is the unvarying result of all men's experience in those parts, members of the Establishment as well as Dissenters nay, the most absolute opinions on record, and the most strongly expressed, have come from Churchmen that there is but this one way practicable of attempting the conversion of these poor heathens. With what jea- lousy, then, ought we to regard any efforts, but especially by the con- stituted authorities who bore a part in those proceedings, to frustrate the positive orders for the instruction of the slaves, not only given by his Majesty's government, but recommended by this House, a far higher authority as it is, higher still as it might be, if it but dared now and then to have a will of its own, and, upon questions of paramount importance, to exercise fearlessly an unbiassed judgment? To obtain the interposition of this authority for the protection of those who alone will, or can, teach the Negroes, is one object of the motion upon which I shall now take the sense of the House. The rest of it relates to the VOL. i. 3G 42.2 THE MISSIONARY'S CASE. case of the individual who has been persecuted. The right honoura- ble gentleman seems much disposed to quarrel with the title of mar- tyr, which has been given him. For my own part, I have no fault to find with it; because I deem that man to deserve the name, as in former times he would have reaped the honours of martyrdom, who willingly suffers for conscience. Whether I agree with him or not in his tenets, I respect his sincerity, I admire his zeal; and when, through that zeal, a Christian minister has been brought to die the death, I would have his name honoured and holden in everlasting remem- brance. His blood cries from the ground but not for vengeance! He expired, not imprecating curses upon his enemies, but praying for those who had brought him to an untimely grave. It cries aloud for justice to his memory, and for protection to those who shall tread in his footsteps, and tempering their enthusiasm by discretion; uniting with their zeal knowledge; forbearance with firmness; patience to avoid giving offence, with courage to meet oppression, and to resist when the powers of endurance are exhausted shall prove themselves worthy to follow him, and worthy of the cause for which he suffered. If theirs is a holy duty, it is ours to shield them, in discharging it, from that injustice which has persecuted the living, and has sought to blast the memory of the dead. Sir, it behoves this House to give a memorable lesson to the men who have so demeaned themselves. Speeches in a debate will be of little avail. Arguments on either side neutralize each other. Plain speaking on the one part, met by ambiguous expressions half cen- sure, half acquittal, betraying the wish to give up, but with an attempt at an equivocal defence will carry out to the West Indies a motley aspect; conveying no definite or intelligible expression, incapable of commanding respect, and leaving it extremely doubtful whether those things, which all men are agreed in reprobating, have actually been disapproved of or not. Upon this occasion, most eminently, a discus- sion is nothing, unless followed up by a vote to promulgate with au- thority what is admitted to be universally felt. That vote is called for, in tenderness to the West Indians themselves in fairness to those other colonies which have not shared the guilt of Demcrara. Out of a just regard to the interests of the West Indian body, who, I rejoice to say, have kept aloof from this question, as if desirous to escape the shame when they bore no part in the crime, this lesson must now be taught by the voice of Parliament, that the mother country will at length make her authority respected; that the rights of property are sacred, but the rules of justice paramount and inviolable; that the claims of the slave owner are admitted, but the dominion of Parlia- ment indisputable; that we are sovereign alike over the white and the black; and though we may for a season, and out of regard for the interests of both, suffer men to hold property in their fellow creatures, we never, for even an instant of time, forget that they are men, and the fellow subjects of their masters; that, if those masters shall still hold the same perverse course if, taught by no experience, w r arncd by no auguries, scared by no menaces from Parliament, or from the THE MISSIONARY'S CASE. 423 Crown administering those powers which Parliament invoked it to put forth but, blind alike to the duties, the interests, and the perils of their situation, they rush headlong through infamy to destruction; breaking promise after promise made to delude ns; leaving pledge after pledge unredeemed, extorted by the pressure of the passing oc- casion; or only, by laws passed to be a dead letter, for ever giving such an elusory performance as adds mockery to breach of faith; yet a little delay; yet a little longer of this unbearable trifling with the commands of the parent state, and she will stretch out her arm, in mercy, not in anger, to those deluded men themselves; exert at last her undeniable authority; vindicate the just rights, and restore the tarnished honour of the English name!* * It was in this memorable debate that Mr. Wilberforce spoke in Parliament for the last time. His journals show how intensely he felt on the subject. The mo- tion was lost, and the previous question carried by 193 to 146, SPEECH ON NEGRO SLAVERY. DELIVERED IN THE HOUSE OF COMMONS, JULY 13, 1830. [The following Speech was delivered on the 13th of July 1830. It is believed to have mainly contributed towards. Mr. Brougham's election as member for the county of York, which took place a few weeks after.] SIR, In rising to bring before the House a subject more momen- tous, in the eyes both of this country and of the world, than any that has occupied our attention during the whole of a long protracted ses- sion, I am aware that I owe some apology for entering upon it at so late a day. I know, too, that I am blamed in many quarters, for not postponing it till another season. But the apology which I am about to offer is, not for bringing it forward to-day, but for having delayed it so long; and I feel that I should be indeed without excuse, that I should stand convicted of a signal breach of public duty, to the cha- racter and the honour of the House, to the feelings and principles of the people, nay, to the universal feelings of mankind at large, by what- ever names they may be called, into whatever families distributed, if I had not an ample defence to urge for having so long put off the agi- tation of this great question. The occurrences which happened at the commencement of the session, and the matters of pressing interest which have just attended its close, must plead my justification. Early in the year I had hoped that the government would redeem the pledges which they gave me last session, and which then stayed my steps. I had expected to have the satisfaction of seconding a measure propounded by the ministers of the Crown for improving the administration of justice in the Colonies, and especially for amending the law which excludes the testimony of slaves. That those expecta- tions have been frustrated, that those pledges remain unredeemed, I may lament; but in fairness I am bound to say I cannot charge this as matter of severe blame on the government, because I know the ob- NEGRO SLAVERY. 425 stacles of a financial nature, which have stood in the way of inten- tions sincerely entertained, to provide a pure and efficient system of judicature for the West India Islands. Until I saw that no such re- forms could he looked for in that high quarter, I was precluded from undertaking the suhject, lest my etforts might mar the work in hands far more able to execute it. This is my defence for now addressing you at the end of the parlia- mentary year. But to imagine that I can hold my peace a moment longer, that I can suffer the Parliament to be prorogued, and above all to be dissolved, and the country to be assembled for the choice of new representives, without calling on the House for a solemn pledge, which may bind its successors to do their duty by the most defenceless and wretched portion of their fellow subjects, is so manifestly out of the question, that I make no apology for the lateness of the day, and dis- regard even the necessary absence of many fast friends of the cause, and a general slackness of attendance, incident to the season, as attested by the state of these benches, which might well dissuade me from going on. And now, after the question of Colonial Slavery has for so many years been familiar to the House, and I fear still more familiar to the country, I would fain hope that I may dispense with the irk- some task of dragging you through its details, from their multiplicity so overwhelming, from their miserable nature so afllicting. But I am aware that in the threshold of the scene, and to scare me from entering upon it, there stands the phantom of colonial independence, resisting parliamentary interference, fatiguing the ear with the thrice-told tale of their ignorance who see from afar off, and pointing to the fatal issue of the American war. There needs but one steady glance to brush all such spectres away. That the colonial legislatures have rights that their privileges are to be respected that their province is not to be lightly invaded that the Parliament of the mother country is not, without necessity, to trench on their independence no man more than myself is willing to allow. But when those local assemblies utterly neglect their first duties when we see them, from the circumstances of their situation, prevented from acting struggling in these trammels for an independent existence exhausted in the effort to stand alone, and to move one step wholly unable when at any rate we wait for years, and perceive that they advance not by a hair's breadth, either because they cannot, or because they dare not, or because they will not then to contend that we should not interfere that we should fail in our duty because they do not do theirs nay, that we have no right to act, because they have no power or inclination to obey us would be, not an argument, but an abomination, a gross insult to Parliament, a mnckcry of our privileges for I trust that we too have some left a shameful abandonment of our duty, and a portentous novelty in the history of the Parliament, the plantations, and the country. Talk not of the American contest, and the triumph of the colonists. Who that has read the sad history of that event (and I believe among the patriarchs of this cau-e whom I now address there are sonic who an remember that disgrace of our councils and our anus) will say, 426 NEGRO SLAVERY. that either the Americans triumphed or we quailed on one inch of the ground upon which the present controversy stands? Ignorance the most gross, or inattention the most heedless, can alone explain, but cannot at all justify, the use of such a topic. Be it remembered and to set at rest the point of right, I shall say no more let it not once be forgotten, that the supremacy of the mother country never for an in- stant was surrendered at any period of that calamitous struggle. Nay, in the whole course of it, a question of her supremacy never once was raised; the whole dispute was rigorously confined to the power of taxing. All that we gave up, as we said voluntarily, as the Ameri- cans more truly said, by compulsion, was the power to tax; and by the very act which surrendered this power, we solemnly, deliberately, and unequivocally reasserted the right of the Parliament to give laws to the plantations in all other respects whatever. Thus speaks the record of history and the record of our statute-book. But were both history and the laws silent, there is a fact so plain and striking, that it would of itself be quite sufficient to establish the doctrine of parlia- mentary supremacy. I believe it may safely be affirmed, that on neither side of the water was there a man more distinguished for steady devotion to the cause of colonial independence, or who made his name more renowned by firm resistance to the claims of the mother country, than Mr. Burke. He was, in truth, throughout that memorable struggle, the great leader in Parliament against the infatuated ministry, whose counsels ended in severing the empire; and far from abating in his opposition as the contest advanced, he sacrificed to those principles the favour of his constituents, and was in consequence obliged to withdraw from the representation of Bristol, which, till then, he had held. His speech on the occasion of his retirement reaffirms the doctrines of American in- dependence. But neither then, nor at any other time, did he ever think of denying the general legislative supremacy of Parliament; he only questioned the right of taxing the unrepresented colonies. But another fact must at once carry conviction to every mind. During the heat of the controversy, he employed himself in framing a code for the government of our sugar colonies. It was a bill to be passed into a law by the legislature of the mother country; and it has fortunately been preserved among his invaluable papers. There is no minute detail into which its provisions do not enter. The rights of the slave the duties of the master the obligation to feed and clothe the re- striction of the power of coercion and punishment all that concerns marriage and education and religious instruction all that relates to the hours of labour and rest everything is minutely provided for, with an abundance of regulation which might well be deemed exces- sive, were not the subject that unnatural state of things which subjects man to the dominion of his fellow-creatures, and which can only be rendered tolerable by the most profuse enactment of checks and con- trols. This measure of most ample interference was devised by the most illustrious champion of colonial rights, the most jealous watch- man of English encroachments. With his own hand he sketched the NEGRO SLAVERY. 427 bold outline; with his own hand he filled up its details; with his own hand, long after the American contest had terminated, after the con- troversy on Negro freedom had begun, and when his own principles, touching the slave trade arid slavery, had bent before certain West India prejudices, communicated by the party of planters in Paris, with whom lie made common cause on French revolutionary politics, even then, instead of rejecting all idea of interference with the rights of the colonial assemblies, he delivered over his plan of a slave code to Mr. Dundas, the Secretary for the Colonies, for the patronage and adoption of Mr. Pitt and himself. I offer this fact as a striking proof that it is worse than a jest, it is an unpardonable delusion, to fancy that there ever has existed a doubt of the right of Parliament to give the colonies laws. But I am told, that, granting the right to be ours, we ought to shrink from the exercise of it, when it would lead to an encroachment upon the sacred rights of property. I desire the House to mark the short and plain issue to which I am willing to bring this matter. I believe there is no man, either in or out of the profession to which I have the honour of belonging, and which, above all others, inculcates upon its members an habitual veneration for civil rights, less disposed than I am, lightly to value those rights, or rashly to inculcate a disregard of them. But that renowned profession has taught me another lesson also; it has imprinted on my mind the doctrine which all men, the learned and the unlearned, feel to be congenial with the human mind, and to gather strength with its growth that by a law above and prior to all the laws of human lawgivers, for it is the law of God there are some things which cannot be holden in property, and above everything else, that man can have no property in his fellow-creature. But I willingly avoid those heights of moral argument, where, if we go in search of first principles, we see eternal fogs reign, and " find no end, in wandering mazes lost." I had rather seek the humbler regions, and approach the level plain, where all men see clear, where their judgments agree, and common feelings knit their hearts together; and standing on that general level, I ask, what is the right which one man claims over the person of another, as if he were a chattel, and one of the beasts that perish? Is this that kind of property which claims universal respect, and is clothed in the hearts of all with a sanctity that makes it inviolable? I resist the claim; I deny the title; as a lawyer I demur to the declaration of the right; as a man I set up a law supe- rior in point of antiquity, higher in point of authority, than any which men have framed the law of nature; and, if you appeal from that, I set up the law of the Christian dispensation, which holds all men equal, and commands that you treat every man as a brother! Talk to me not of such monstrous pretensions being decreed by Acts of Parliament, and recognised by treaties! do bark a quarter of a century to a kin- dred contest, when a long and painful struggle ended in an immortal triumph. The self-same arguments were urged in defence of the slave trade. Its vindication was rested upon the rights of property, as established by laws and treaties; the ri^ht to trade in men was held 428 NEGRO SLAVERY. to be as clear then, as the right to hold men in properly is held to be clear now. For twenty-five years, I am ashamed to repeat, for twenty- five years, to the lasting disgrace of the Parliament, the African slave traffic was thus defended; and that which it was then maintained every one had a right to do, is now denounced by our laws as piracy, and whoso doeth it shall surely die the death of a felon. But I am next told, that, be the right as it may, the facts are against me; that the theory may be with those who object to slavery, but the practice is in favour of the system. The Negroes are well off, it seems; they are inured to the state in which they have been born and grown up; they are happy and contented, and we shall only hurt them by changing their condition, which the peasantry of England are desired to regard with envy. I will not stoop to answer such outrageous asser- tions by facts or by reasons. I will not insult your understanding, by proving, that no slave can taste happiness or comfort; that where a man is at the nod of another, he can know nothing of real peace or repose. But I will at once appeal to two tests; to these I shall confine myself, satisfied that if they fail to decide the question, I may resort in. vain to any argument which philosophers can admit, or political econ- omists entertain, or men of ordinary common sense handle. The two tests or criteria of happiness among any people, which I will now resort to, are the progress of population, and the amount of crime. These, but the first especially, are, of all others, the most safely to be relied on. Every one who has studied the philosophy of human na- ture, and every one who lias cultivated statesman-like wisdom, which indeed is only that philosophy reduced to practice, must admit, that the principle implanted in our nature, which ensures the continuance of the species, is so powerful that nothing can check its operation but some calamitous state of suffering, which reverses the natural order of things. Wherever, then, we see the numbers of men stationary, much more when we perceive them decreasing, we may rest assured that there is some fatal malady, some fundamental vice in the community, which makes head against the most irresistible of all the impulses of our physical constitution. Now, look to the history of the black popu- lation, both free and slave, in the Antilles. In the British islands, including Barbadoes, on a population of 670,000 slaves, there was a decrease of 31,500 in the six years which elapsed between ISIS and 1824; in Jamaica alone, upon the number of 330,000, a decrease of between 8,000, and 9,000. But not so with the free coloured men; although placed in circumstances exceedingly unfavourable to increase of numbers, yet such is the natural fruitfnlness of the Negro race that they rapidly multiplied. The Maroons doubled between 1749 and 17S2; and when great part of them were removed after the rebellion of 1796, those who remained increased in six years, from 1810 to 1S16, no less than eighteen per cent.: and in five years, from 1S16 to 1S21, fourteen per cent. In North America, where they are better fed, the Negroes have increased in thirty years no less than 1 30 per cent. Look next to Trinidad: in four years, from 1S25 to 1S29, the slaves have fallen off from 23,117 to 22,436, notwithstanding a considerable impor- NEGRO SLAVERY. 429 tation under an order in council, being a decrease of at least a thirty- fourth, but probably of a twentieth. Hut what has happened to the same race, and circumstanced alilco as to climate, soil, food in short, everything save liberty? Nature lias with them upheld her rights: her first great law has been obeyed; the passions and the vigour of man have had their course unrestrained; and the increase of his num- bers has attested his freedom. They have risen in the same four years from 13,995 to 16,412, or at a rate which would double their numbers iu twenty years; the greatest rate at which population is, in any cir- cumstances, known to increase. There cannot be a more appalling picture presented to the reflecting mind than that of a people decreas- ing in numbers. To him who can look beyond the abstract numbers, whose eye is not confined to the mere tables and returns of population, but ranges over the miseries of which such a diminution is the infalli- ble symptom; it offers a view of all the forms of wretchedness, suffer- ing in every shape, privations in unlimited measure whatever is most contrary to the nature of human beings, most alien to their habits, most adverse to their happiness and comfort all beginning in slavery, the state most unnatural to man; consummated through various channels in his degradation, and leading to one common end, the grave. Show me but the simple fact, that the people in any country are regularly decreasing, so as in half a century to be extinct; and I want no other evidence that their lot is that of the bitterest wretchedness; nor will any other facts convince me that their general condition can be favour- able or mild. The second general test to which I would resort for the purpose of trying the state of any community, without the risk of those deceptions to which particular facts are liable, is the number of crimes committed. In Trinidad, I find that the slaves belonging to planta- tions, in number 16,580, appear, by the records printed, to have been punished in two years for 11,131 offences, that is to say, deducting the number of infants incapable of committing crimes, every slave had committed some offence in the course of those two years. It is true that the bulk of those offences, 7611, were connected with their con- dition of bondage refusing to work, absconding from the estate, inso- lence to the owner or overseer, all incidental to their sad condition, but all visited with punishment betokening its accompanying debasement. Nevertheless, other crimes were not wanting: 713 were punished for theft, or above 350 in a year, on a number of about 12,000, deducting persons incapacitated by infancy, age, or sickness, from being the sub- jects of punishment. Let any one consider what this proportion would give in England: it would amount to 3 ~>0,000 persons punished in one year for larceny. In Herbice, on a population of 21,000 plantation slaves, there were 9000 punishments; no record being kept of those in plantations of six slaves or under: and in Uemerara, of 61,000, there were 20,567 punished, of whom S161 were women. I cannot here withhold from thu House, the testimony of the Pro- tector of Slaves to tht! happiness of their condition. I cannot," says that judicious officer, " refrain from remarking on the contented appear- ance of the Negroes; and, from the opportunities of judging which I 430 NEGRO SLAVERY. have, I think that generally they have every reason to be so." I would not have this Protector placed in the condition of the very hap- piest of this contented tribe, whose numbers are hourly lessening, and whose lives are spent in committing crime and in receiving punish- ments. No, not for a day would I punish his error in judgment, by condemning him to taste the comforts which he describes, as they are enjoyed by the luckiest of those placed under his protection. But such testimony is not peculiar to this officer. Long before his protectorate commenced, before he even came into this world of slavery and bliss, of bondage and contentment, the like opinion had been pronounced in favour of West Indian felicity. I hold in my hand the evidence of Lord Rodney, who swore before the Privy Council that he never saw an instance of cruel treatment, that in all the islands, " and," said his lordship, "I know them all," the Negroes were better off in clothing, lodging, and food, than the poor at home, and were never in any case at all overworked. Admiral Barrington, rising in ardour of expression as he advanced in knowledge, declares that he has often wished him- self in the condition of the slaves. Neither would I take the gallant Admiral at his rash word, sanctioned though it be by an oath. I would not punish his temerity so severely as to consign him to a station, com- pared with which he would in four-and-twenty hours have become reconciled to the hardest fare in the most crazy bark that ever rocked on the most perilous wave; or even to the lot which our English sea- men are the least inured to the most disastrous combat that ever lowered his flag in discomfiture and disgrace. But these officers con- fined not their testimony to the condition of slavery ; they cast its pano- ply around the slave trade itself. They were just as liberal in behalf of the Guineaman, as of those whom his toils were destined to enrich. They gave just as Arcadian a picture of the slaver's deck and hold, as of the enviable fields whither she was fraught with a cargo of happy creatures, designed by their felicitous destiny to become what are call- ed the cultivators of those romantic regions. " The slaves on board are comfortably lodged," says one gallant officer, "in rooms fitted up for them." " They are amused with instruments of music: when tired of music, they then go to games of chance." Let the inhabitants or the frequenters of our club-houses hear this and envy those " famous wits," to whom St. James's purlieus are " native or hospitable:" let them cast a longing look on the superior felicity of their sable brethren on the middle passage. They toil not, neither do they spin, yet have they found for them all earthly indulgences; food and raiment for nothing; music to charm the sense; and when, sated with such enjoy- ment, the mind seeks a change, games of chance are kindly provided by boon traffic to stimulate the lazy appetite. " The slaves," adds the Admiral, "are indulged in all their little humours." Whether one of these caprices might be to have themselves tied up from time to time, and lacerated with a scourge, he has omitted to mention. " He had frequently," he says, " seen them, and as happy as any of the crew, it being the interest of the officers and men to make them so." But it is Admiral Evans who puts the finishing stroke to this fairy picture. NEGRO SLAVERY. 431 ''The arrival of a Guineamnn," he says, " is known in the West In- dies by the dancing and singing of the Negroes on board." It is thus that these cargoes of merry, happy creatures, torn from their families, their native fields, and their cottages, celebrate their reaching the land of promise, and that their coming is distinguished from the dismal landing of free English seamen, out of West India traders, or other recepiacles of cruelty and wretchedness. But if all the deductions of philosophy, and all the general indications of fact, loudly prove the unalterable wretchedness of colonial slavery, where, may it be asked, are the particular instances of its existence? Alas! there is no want of these: but I will only cull out a few, dealing pur- posely with the mass rather by sample than by breaking its foul bulk. I shall illustrate, by a few examples, the effects of slavery in commu- nities to the exertions of which we are bid to look for the mitigation and final extinction of that horrid condition. A certain Reverend Thomas Wilson Bridges was charged with an offence of the deepest dye. A slave girl had been ordered to dress a turkey for dinner, and the order having been disobeyed, he struck her a violent blow, which caused her nose and mouth to flow with blood, applying to her at the same time an oath, and a peculiarly coarse epi- thet, highly unbecoming in a clergyman, and indeed in any man, as it is the name most offensive to all womankind. He then commanded two men to cut bamboo rods and point them for her punishment. She was stripped of every article of dress, and flogged till the back part of her, from the shoulders to the calves of the legs, was one mass of lacerated flesh. She made her escape, and went to a magistrate. The matter was brought before what is called a Council of Protection, where, by a majority of fourteen to four, it was resolved that no fur- ther proceedings should take place. The Secretary of State for tho Colonies, however, thought otherwise, and in a dispatch, with no part of which have I any fault to find, directed the evidence to be laid be- fore the Attorney General. I understand that the reverend gentleman has not been put on his trial. I hope I may have been misinformed : I shall rejoice to find it so. I shall also be glad to find that then; is no ground for the charge; although the man's servants, when ex- amined, all admitted the severity of the flogging; and himself allowed he had seen it, though he alleged he was not near, but could not deny lie had heard the screams of the victim. This reverend Mr. Bridges I happened to know by his other works, by those labours of slander which have diversified the life of this minister of peace and truth. For publishing one of these, a respectable bookseller has been con- victed by a jury of his country; others have been passed over with contempt by their illustrious object that venerable person, the great patriarch of our cause, whose days are to be numbered by acts of be- nevolence and of piety, whose whole life, and long may it he ex- tended for his own glory and the good of his fellow-creatures! has been devoted to the highest interests of religion and of chanty, who might have hoped to pass on his holy path undisturbed by any one calling himself a Christian pastor, even in a West Indian community. 432 NEGRO SLAVERY. The man, however, has so far succeeded, whether by the treatment of liis slaves, or the defamation of Mr. Wilberforce, in recommending himself to his fellow-citizens in Jamaica, that a great majority in the Protecting Council forbade his conduct being inquired into. So vain is it to expect from the owners of slaves any active execution of the laws against slavery! And will you then trust those slave owners with the making of such laws! Recollect the memorable warning of Mr. Canning, given thirty years ago, and proved true by every day's experience since. " Have a care how you leave to the owners of slaves the task of making laws against slavery. While human na- ture remains the same, they never can be trusted with it." It is now six years since I called the attention of Parliament to one of the most grievous outrages that ever was committed since the Ca- ribbean Archipelago was peopled with Negro slaves the persecution unto death of a Christian minister, for no other offence than preach- ing the gospel of his master. I was then told, that no such wrong would ever be done again. It was a single case, which never could recur: at all events, the discussion in this House, and the universal reprobation called forth, even from those who ha,d not sufficient inde- pendence to give their voices for doing justice upon the guilty, would, I was told, effectually secure the freedom of religious worship in future. I was silenced by the majority of votes, but not convinced by such reasons as these. And I now hold in my hand the proof that I was right. It is a statement promulgated by a numerous and respect- able body of sincere Christians with whom 1 differ both in religious and political opinions, but in whose conduct, if there be anything which I peculiarly blame, it is their disinclination to deviate from a bad habit of passive obedience of taking all that is done by men in authority to be right. They seem, however, now to be convinced that they have carried this habit too far, and that the time is come when they can no longer do their duty and hold their peace. The narrative which they have given, confirmed by the conduct of the government itself, is such as would have filled me with indignation had I read it six years ago; but, after the warning voice so loudly raised in the de- bates upon the Missionary Smith's murder, I gaze upon it astonished and incredulous. The simple and affecting story is told by Mr. Orton, a blameless and pious minister of the gospel in Jamaica. He first alludes to the "daring attack made on the mission premises, at St. Ann's Bay, on Christmas day, 1826," (the festival chosen by these friends of the Established Church for celebrating their brotherly love towards another sect.) " The attack," says lie, " was made by a party of white persons, of the light company of militia, who were sta- tioned at St. Ann's Bay as the Christmas guards. The plan appeared to have been premeditated, and there remains but little doubt that the design was murderous. A great number of balls were fired into the chapel and house, fourteen of which I assisted to extract from various parts of the building; and upon noticing particularly the direction, and measuring the distance from which some of the shots must have been fired, it appeared that Mr. and Mrs. Ratcliffe and their child NEGRO SLAVERY. 433 most narrowly escaped the fatal consequences which were no doubt designed." All attempt to bring these criminals to justice failed, it seems, for want of evidence a somewhat extraordinary instance in a community calling itself civilized, that so many persons as must have been concerned in it should all have escaped. In the course of the next summer, Mr. Grimsdall, another clergyman of the same persua- sion, was arrested twice; the second time for having preached at a small place called Ocho Rios, in an unlicensed house, although a license had been applied for and refused, contrary to the judgment of the Gustos and another magistrate. He was flung into a noisome dungeon, "such," says the narrative, "as no person in Great Britain can have any conception of. Mis constitution, naturally strong, could not sustain the attack he sunk under the oppression of these perse- cutors, and the deleterious effects of confinement in a noxious prison; and this devoted servant of God, after a painful sickness of sixteen days, was delivered by death from the farther sufferings projected by his unfeeling persecutors. He died the 15th day of December 1827." Mr. Whitehouse, too, was a preacher of the gospel, and consequently an object of persecution. In the summer of 1S2S, he was seized and carried before a magistrate, accused of having preached without a license; that is, of having a license in one parish and preaching in another. He besought the magistrates as a favour, to be bound in irons in the market-place, instead of being confined in the cell where his predecessor had been deprived of life. They treated his remon- strances with indifference, said they were resolved to do their duty, professed not to regard what the public might say of them, and added, that " whoever might come should be treated in the same manner." He was accordingly flung into the dungeon where Mr. Grimsdall had perished. " I found it," says he, "occupied by an insane black wo- man. She was removed, but the cell was exceedingly filthy, and the stench unbearable. It was now eight o'clock in the evening, and the jailer said he "must lock up." I desired that the cell floor might, at least, be swept, which a few friends immediately attended to. There was no bed provided for me, not even one of straw; and it was not until I had made several requests to the jailer, that a few benches from the chapel were allowed to be brought in, on which to make a bed. A large quantity of vinegar, and one of strong camphorated rum, was thrown upon the floor and walls, for the purpose of coun- teracting the very disagreeable eflluvin which proceeded from the filth with which the place abounded, but this produced very little effect. The sea-breeze had subsided, and the only window from which I could obtain the least air, was just above the place in which all the filth of the premises is deposited." Mr. Orton received the intelligence of his persecuted brother's affliction, with a request that he would perform Jiis pastoral duty to his congregation. He did so, and was forthwith committed to the same jail. " Of the horrid state of the place," ho says, "an idea can scarcely be formed from any representation whirh can here be made, as common decency forbids the mention of its lilihy VOL. i. 137 434 NEGRO SLAVERY. condition, and the many unseemly practices which were constantly presented to our notice. The hospital, jail, and workhouse are united; the two former are under one roof, occupying an area of about twenty- five feet by thirty-five. On the ground floor were three apartments. In the condemned cell were two unfortunate creatures awaiting their doom. In an adjoining cell were many Negroes, confined for petty offences; and in another apartment on the same floor, forty were crammed together, who had been taken in execution, and were wait- ing to be driven and sold in the market. This building, small and confined, was, especially during the night, literally stowed with per- sons, so that, from the number of the prisoners, and the extreme filth of the Negroes, it was almost unbearable." Let us but reflect on the sufferings of imprisonment even in the best jail of our own temperate climate; and let us then add to those the torments of tropical heats! Think of being enclosed with crowds beyond what the air will supply with the needful nourishment of the lungs, while a fiery sun wheels round the clear sky from morning to night, without the veil of a sin- gle cloud to throw a shade between; where all matter passes instantly from life to putrescence, and water itself, under the pestilent ray, be- comes the source of every frightful malady! Add the unnatural con- dition of the inmates, not there for debts or for offences of their own, but seized for their owner's default, and awaiting, not the judgment of the law, or their liberation under an insolvent act, but till the mar- ket opens, when, like brutes, they are to be driven and sold to the highest bidder! In such a dungeon was it that Mr. Orton and his brethren were immured; and when their strength began to sink, and it seemed plain that they must speedily follow their friend to the grave, they were taken before the Chief Justice, who instantly declared the warrant illegal, and their seventeen days' confinement to have been without the shadow of pretence. Who then was in the right, six years ago, in the memorable debate upon the persecution of the Missionary Smith? You, who said enough had been done in broaching the subject, and that religion and her ministers would thenceforward be secure; or I, who warned you, that if my Resolutions were rejected, he would not, by many a one, be the last victim? I would to God that the facts did not so plainly prove me to have foretold the truth. I may seem to have said enough; but it is painful to me that I can- not stop here, that I must try faintly to paint excesses unheard of in Christian times which to match we must go back to heathen ages, to the days and to the stations, wherein absolute power made men, but Pagan men, prodigies of cruelty exaggerated by caprice, that I must drag before you persons moving in the higher walks of life, and exert- ing proportionable influence over the society they belong to: an Eng- lish gentleman, and an English gentlewoman accused, guilty, convicted of the most infernal barbarity; and an English community, so far from visiting the enormity with contempt, or indignant execration, that they may make the savage perpetrators the endeared objects of esteem, respect, and affection ! I read the recital from the despatch of the late NEGRO SLAVERY. 435 Secretary for the Colonies,* a document never to be sufficiently praised for its statesman-like firmness, for the manly tone of feeling and of determination united, which marks it throughout. " The slave girl was accused of theft," he says; "but some disobedience in refusing to mend the clothes was the more immediate cause of her punishment. On the 22d of July 1S2G. she was confined in the stocks, and she was not released till the 8th of August following, being a period of seven- teen days. The stocks were so constructed, that she could not sit up and lie down at pleasure, and she remained in them night and day. During this period she was flogged repeatedly, one of the overseers thinks about six times, and red pepper was rubbed upon her eyes to prevent her sleeping. Tasks were given her, which in the opinion of the same overseer, she was incapable of performing; sometimes because they were beyond her powers; at other times because she could not see to do them on account of the pepper having been rubbed on her eyes; and she was flogged for failing to accomplish these tasks. A violent distemper had been prevalent on the plantation during the summer. It is in evidence, that on one of the days of her confinement she complained of fever, and that one of the floggings which she re- ceived was the day after she had made this complaint. When she was taken out of the stocks she appeared to be cramped, and was then again flogged. The very day of her release she was sent to field- labour, (though heretofore a house-servant,) and on the evening of the third day ensuing was brought before her owners as being ill and refusing to work, and then she again complained of having had fever. They were of opinion that she had none then, but gave directions to the driver, if she should be ill, to bring her to them for medicines in the morning. The driver took her to the negro-house, and again flogged her, though this time apparently without orders from her owners to do so. In the morning, at seven o'clock, she was taken to work in the field, where she died at noon." Mark the refinement of their wickedness! I nowise doubt, that to screen themselves from the punishment of death due to their crimes, these wretches will now say, they did indeed say on their trial, that their hapless victim died of disease. When their own lives were in jeopardy, they found that she had caught the fever, and died by the visitation of God; but when the question was, shall she be flogged again? shall she, who has for twelve days been fixed in the stocks under the fiery beams of a tropical sun, who has been torn with the scourge from the nape of the neck to the plants of her feet, who has had popper rubbed in her eyes to ward off the sloop that might have stolen over her senses, and for a moment withdrawn hr spirit from the fangs of her tormentors, shall she be subjected by those accursed fiends to the seventh scourging? Oh! then, she had no sign of fever! she had caught no disease! she was all hale, and sound, and fit for the lash! At seven she was flogged at noon she died! and those execrable and impious murderers soon found out that she had caught the malady, and perished by the "visitation of * Mr. Huskisson. 436 NEGRO SLAVERY. God!" No, no! I am used to examine circumstances, to weigh evi- dence, and I do firmly believe that she died by the murderous hand of man! that she was killed and murdered! It was wisely said by Mr. Fox, that when some grievous crime is perpetrated in a civilized com- munity, we are consoled by finding in all breasts a sympathy with the victim, and an approval of the punishment by which the wrong-doer expiates his offence. But in the West Indies there is no such solace to the mind there all the feelings flow in a wrong course perverse, preposterous, unnatural the hatred is for the victim, the sympathy for the tormentor! I hold in my hand the proof of it in this dreadful case. The Mosses were condemned by an iniquitous sentence; for it was only to a small fine and five month's imprisonment. The public indignation followed the transaction; but it was indignation against the punishment, not the crime; and against the severity, not the lenity of the infliction. The Governor, a British officer and I will name him to rescue others from the blame General Grant tells us in his despatch, that " he had been applied to by the most respectable inhabi- tants to remit the sentence;" that "he loses no time in applying to Lord Bathurst to authorize the remission." He speaks of " the unfor- tunate Henry and Helen Moss;" says, " they are rather to be pitied for the untoward melancholy occurrence," (as if he were talking of some great naval victory over the Turk, instead of a savage murder,) and that "he hastens to prevent the impression, which the mention of the case might make on his lordship's mind." In a second despatch, he earnestly renews the application; describes "the respectability of Mr. and Mrs. Moss, their general kindness to their slaves, the high estima- tion in which they are held by all who have partaken of their hospi- tality;" tells us that "they have always been favourably spoken of in every respect, including that of slave management;" states his own anxiety that "persons of their respectability should be spared from imprisonment;" and that at any rate "the mulct should be relinquished, lest they should be thought cruel and oppressive beyond others, and also in order to remove in some degree the impression of their being habitually and studiously cruel;" and he adds a fact, which speaks volumes, and may well shut all mouths that now cry aloud for leaving such things to the assemblies of the islands "notwithstanding their being in gaol, they are visited by the most respectable persons in the place, and by all who knew them before." The Governor who thus thinks and thus writes, has been removed from that settlement; but only, I say it with grief, to be made the ruler of a far more important colony. From the Bahamas he has been promoted to Trinidad that great island, which Mr. Canning described as about to be made the model, by the Crown, for all Slave colonies. Over such a colony was he sent to preside, who, having tasted of the hospitality of the Mosses, could discern in their treatment of their slaves, nothing out of the fair, ordinary course of humane management. From contemplating the horrors of slavery in the West Indies, it is impossible that we can avoid the transition to that infernal traffic, alike the scourge of Africa and America, the disgrace of the old world NEGRO SLAVERY. 437 and the curse of the new, from which so much wretchedness has flowed. It is most shocking to reflect that its ravages are still abroad, desolating the earth. I do not rate the importation into the Brazils too high, when I put it at 100,000 during the last twelve months. Gracious God! When we recollect that the number of seventy-three capital punishments, among which are but two or three for murder, in a population of twelve millions, excites our just horror in England, wliat shall we say of 100,000 capital crimes, committed by a handful of desperate men, every one of which involves and implies rapine, fraud, murder, torture, in frightful abundance? And yet we must stand by and see such enormities perpetrated without making any remonstrance, or even urging any representation ! I3y the treaty with Portugal, it is true, no such crimes can henceforth be repeated, for this year the traffic is to cease, and the mutual right of search is given to the vessels of both nations, the only possible security for the aboli- tion being effectual. But there is another country nearer to us in position, and in habits of intercourse more familiar, one of far more importance for the authority of its example, in which the Slave Trade still flourishes in most portentous vigour, although denounced by the law, and visited by infamous punishment; the dominions of the monarch who calls himself " Most Christian," and refuses the only measure that can put such wholesale iniquity down. There it must thrive as long as groundless national jealousies prevent the right of search from being mutually conceded. Let us hope that so foul a stain on the character of so great a nation will soon be wiped away; that the people who now take the lead of all others in the march of liberty, will cast far from their camp this unclean thing, by all lovers of freedom most abhorred. I have heard with amazement some thoughtless men say, that the French cannot enjoy liberty, because they are unused to it. I protest before God I could point to no nation more worthy of freedom; or which knows better how to use it, how to gain it, how to defend it. I turn with a grateful heart to contem- plate the glorious spectacle now exhibited in France of patriotism, of undaunted devotion to liberty, of firm yet temperate resistance to arbi- trary power. It is animating to every beholder; it is encouraging to all freemen in every part of the world. I earnestly hope that it may not be lost on the Bourbon monarch and his councillors; for the sake of France and of England, for the sake of peace, for the sake of the Bourbon princes themselves, I pray that they may be wise in time, and yield to the wish, the determination of vheir people; I pray, that, bending before the coining breeze, the gathering storm may not sweep them away! But of one thing I would warn that devoted race, let them not Hatter themselves that by trampling upon liberty in France, they can escape either the abhorrence of man or the Divine wrath for the execrable trallic in slaves, carried on under their flag, and flourish- ing under their sway in America. I will tell their ghostly councillors, in the language of a book with which they ought to be familiar " Behold, obedience is better than sacrifice, and to hearken than the fat of rams.'' To what should they lend an ear? To the commands 37* 438 NEGRO SLAVERY. of a God who loves merey, and will punish injustice, and abhors blood, and will surely avenge it upon their heads; nothing the less because their patronage of slavery in distant climes is matched by their hatred of liberty at home. Sir, I have done. I trust that at length the time is come when Parliament will no longer bear to be told, that slave-owners are the best law-givers on slavery; no longer allow an appeal from the British public, to such communities as those in which the Smiths and the Grimsdalls are persecuted to death, for teaching the Gospel to the Negroes; and the Mosses ho I den in affec- tionate respect for torture and murder: no longer suffer our voice to roll across the Atlantic in empty warnings, and fruitless orders. Tell me not of rights talk not of the property of the planter in his slaves. I deny the right I acknowledge not the property. The principles, the feelings of our common nature, rise in rebellion against it. Be the appeal made to the understanding or to the heart, the sentence is the same that rejects it. In vain you tell me of laws that sanction such a claim! There is a law above all the enactments of human codes the same throughout the world, the same in all times such as it was before the daring genius of Columbus pierced the night of ages, and opened to one world the sources of power, wealth and knowledge; to another, all unutterable woes; such as it is at this day: it is the law written by the finger of God on the heart of man; and by that law, unchangeable and eternal, while men despise fraud, and loathe rapine, and abhor blood, they will reject with indignation the wild and guilty phantasy, that 'man can hold property in man! In vain you appeal to treaties, to covenants between nations: the covenants of the Al- mighty, whether the Old covenant or the New, denounce such unholy pretensions. To those laws did they of old refer who maintained the African trade. Such treaties did they cite, and not untruly; for by one shameful compact you bartered the glories of Blenheim for the traffic in blood. Yet, in despite of law and of treaty, that infernal traffic is now destroyed, and its votaries put to death like other pirates. How came this change to pass? Not, assuredly, by Parliament lead- ing the way; but the country at length awoke; the indignation of the people was kindled; it descended in thunder, and smote the traffic, and scattered its guilty profits to the winds. Now, then, let the plant- ers beware let their assemblies beware let the government at home beware let the Parliament beware! The same country is once more awake, awake to the condition of Negro slavery; the same indigna- tion kindles in the bosom of the same people; the same cloud is gather- ing that annihilated the Slave Trade; and, if it shall descend again, they, on whom its crash may fall, will not be destroyed before I have warned them; but I pray that their destruction may turn away from us the more terrible judgments of God! I therefore move you, " That this House do resolve, at the earliest practicable period of the next ses- sion, to take into its serious consideration the state of the slaves in the Colonies of Great Britain, in order to the mitigation and final abolition of their slavery, and more especially in order to the amendment of the administration of justice within the same." SPEECH THE SLAVE TRADE DELIVERED IN THE HOUSE OF LORDS, JANUARY 29, 1S3S. DEDICATION. TO RICHARD MARQUESS WELLESLEY, K. G. ETC. ETC. ETC. I.v compliance with the wishes of the friends of the abolition, I have revised the report of this speech, in order that the facts which I yesterday brought before Par- liament, and which all admitted to be truly stated, nay, to have been rather under- stated than exaggerated, may be made known through the country. I believe these pages contain, as nearly as it is possible, what I spoke in my place. To your lordship they are inscribed with peculiar propriety, because you are one of the oldest and most staunch friends of this great question, and because your ani- mated descriptions of the Parliamentary struggles in its behalf, at which you have assisted, and of the eloquence of other times which it called forth, have formed one of the most interesting of the many conversations we have had upon the scenes of your earlier life. My own recollections do not reach so Air back; but 1 have now been a zealous, though humble labourer, in the same cause upwards of six-and- thirty years; and it is truly melancholy to reflect that the Slave Trade still desolates Africa, while it disgraces the civilized world, hardly covering with less shame those who suffer, than those who perpetrate the mormons crime. May we hope that at length the object of our wishes is about to be attained! Tills dedication is^lfen-d without your permission having been asked. It gives me an opportunity oT faintly expressing that admiration of your truly statesman-like jjfMiim which all your countrymen feel who have marked your illustrious career in Kurope as well as Asia; and that gratitude for your past services which in the public mind never can exceed the affection of your private friends. Hut I will confess that another motive contributes to this intrusion upon your retirement. During the years that tho controversy has lasted, I have written and published many rolurncs upon it; this is the first page to which I have set my name; and I naturally f'< el desirous that it should have the advantage of appearing in company with one so incomparably more eminent. BROl'tiHAM. January 30, 183H. SPEECH, MY LORDS, I hold in my hand a petition from a numerous and most respectable body of your fellow-citizens the inhabitants of Leeds. Between 16 and 17,000 of them have signed it, and on the part of the other inhabitants of that great and flourishing community, as well as of the country at large in which it is situated, I can affirm with confidence that their statements and their prayer are those of the whole province whose people I am proud to call my friends, as it was once the pride of my life to represent them in Parliament. They re- mind your lordships that between eighteen and nineteen millions have been already paid, and the residue of the twenty millions is in a course of payment to the holders of slaves for some loss which it was sup- posed their property would sustain by the emancipation act; whereas, instead of a loss they have received a positive gain; their yearly re- venues are increased, and the value of their estates has risen in the market. Have not these petitioners have not the people of England a right to state, that but for the firm belief into which a generous Parliament and a confiding country were drawn, that the bill of 1833 would occasion a loss to the planter, not one million, or one pound, or one penny of this enormous sum would ever have been granted to the owners of the slaves? When it is found that all this money has been paid for nothing, have we not an equal right to require that whatever can be done on the part of the planters to further a measure which has already been so gainful to them, shall be performed without delay? Have we riot an undeniable right to expect for the sake, not more of humanity towards the Negroes, than of strict justice to those whose money was so paid for nothing, under a mere error in fact, that we, who paid the money, shall obtain some compensation ? And as all we ask is, not a return of it, not to have the sums paid under mis- take refunded, but only the bargain carried into full effect, when the Colonial Legislature refuse to perform their part, are we not well entitled to compel them? In a word, have not the people of England a right to demand that the slavery which still exists under the name of Indentured Apprenticeship, shall forthwith cease, all pretext for continuing it, from the alleged risk of the sudden change or the Ne- gro's incapacity of voluntary labour, having been triumphantly de- stroyed by the universal and notorious fact of the experiment of total emancipation having succeeded wherever it has been tried, and of the Negro working cheerfully and profitably where he has been continued an apprentice? In presenting this petition from Yorkshire, and these thirteen others from various parts of the country, I have the honour of giving notice, that as soon as the unfortunate and pressing question of Canada shall have been disposed of by the passing or the rejection of the bill expected from the Commons, that is, in about a week or THE SLAVE TRADE. 441 ten days, I shall submit a motion to your lordships with the view of enabling you to comply with the earnest prayer of your countrymen, by fixing the period of complete emancipation on the first of August in this year, instead of 18-10. But, my lords, while I thus express my entire concurrence in the sentiments of these petitions, and of the various others which I have presented upon this subject, I cannot conceal from myself that there is a very material difference between the subject of their complaint and of the complaint which I made at our last meeting respecting the con- tinuance not of slavery but the Slave Trade, which I cannot delay for a single hour bringing before Parliament. The grievance set forth in the petitions, is, that the Emancipation act according to some did not go far enough and fast enough to its purpose that while some hold it to have stopped short, in not at once and effectually wiping out the foul stain of slavery, others complain of our expectations having been frustrated in the working of the measure by the planters and the local authorities that enough has not been done, nor with sufficient celerity to relieve the unhappy slave of his burden never- theless all admit that whatever has been effected has been done in the right direction. The objections made are upon the degree, not upon the nature of the proceedings. It is that too little relief has been given to the slave that too late a day has been assigned for his final libera- tion that he still suffers more than he ought: it is not that we have made slavery more universal, more burthensome, or more bitter. But what would have been said by the English people in what accents would they have appealed to this House if instead of finding that the goal we aimed at was not reached that the chains we had hoped to see loosened still galled the limbs that the burthen we had desired to lighten still pressed the slave to the earth it had been found that the curse and the crime of human bondage had extended to regions which it never before had blighted that the burthen was become heavier and more unbearable that the fetters galled the victim's limbs more cruelly than ever what, I ask, would then have been the language of your petitioners? What the sensation spread through the country? What the cry of rage, echoing from every corner of its extent, to charge us with mingled hypocrisy and cruelty, should we allow an hour to pass without rooting out the monstrous evil? I will venture to assert that there would have burst universally from the whole peo- ple an indignant outcry to sweep away in a moment every vestige of slavery, under whatever name it might lurk, and whatever disguise it might assume; and the Negro at once would have been a free man. Now this is the very charge which I am here to make, and prepared to support with proof, against the course pursued with a view to ex- tinguish the Slave Trade. That accursed traffic, long since condemned by the unanimous voice of all the rational world, flourishes under tin; very expedients adopted to crush it: and increases in consequence of those very measures resorted to for its extinction. Yos, my lords, it is my painful duty to show what, without suffering severely, it is not possible to contemplate, far less to recite, but what I cannot lay my 442 THE SLAVE TRADE. head once more on my pillow without denouncing, that at this hour, from the very nature of the means used to extirpate it, this infernal traffic becomes armed with new horrors, and continues to tear out, year after year, the very bowels of the great African continent that scene of the greatest sufferings which have ever scourged humanity the worst of all the crimes ever perpetrated by man! When the act for abolishing the British slave trade passed in 1807, and when the Americans performed the same act of justice by abolish- ing their traffic in 1806, the earliest moment, it must to their honour be observed, that the Federal constitution allowed this step to be taken; and when, at a later period, treaties were made, with a view to extin- guish the traffic carried on by France, Spain, and Portugal, the plan was in an evil hour adopted which up to the present time has been in operation. The right of search and seizure was confined to certain vessels in the service of the state, and there was held out as an induce- ment to quicken the activity of their officers and crews, a promise of head-money, that is, of so much to be paid for each slave on board the captured ship, over and above the proceeds of its sale upon con- demnation. The prize was to be brought in and proceeded against; the slaves were to be liberated; the ship, with her tackle arid cargo, to be sold, and the price distributed; but beside this, the sum of five pounds for each slave taken on board was to be distributed among the captors. It must be admitted that the intention was excellent; it must further be allowed, that at first sight the inducement held out seemed likely to work well, by exciting the zeal and rousing the cou- rage of the crews against those desperate miscreants who defiled and desecrated the great highway of nations with their complicated occu- pation of piracy and murder. I grant it is far easier to judge after the event. Nevertheless, a little reflection might have sufficed to show that there was a vice essentially inherent in the scheme, and that by allotting the chief part of the premium for the capture of slaves, and not of slave-ships, an inducement was held out,- not to prevent the principal part of the crime, the shipping of the Negroes, from being committed, but rather to suffer tins in order that the head-money might be gained when the vessel should be captured with that on board which we must still insult all lawful commerce by calling the cargo that is, the wretched victims of avarice and cruelty, who had been torn from their country, and carried to the loathsome hold. The tendency of this is quite undeniable; and equally so is its complete inconsistency with the whole purpose in view, and indeed the grounds upon which the plan itself is formed; for it assumes that the head- money will prove an inducement to the cruisers, and quicken their activity; it assumes therefore, that they will act so as to obtain the premium; and yet the object in view is to prevent any slaves from being embarked, and consequently anything being done which can entitle the cruiser to any head-money at all. The cruiser is told to put down the slave trade, and the reward held out is proportioned to the height which that trade is suffered to reach before it is put down. The plan assumes that he requires this stimulus to make him prevent THE SLAVE TRADE. 443 the offence; and the stimulus is applied only after the offence has been in great part committed. The tendency, then, of this most preposter- ous arrangement cannot be questioned for a moment; but now see how it really works. The slave vessel is fitted out and sails from her port, with all the accommodations that distinguish such criminal adventures, and with the accustomed equipment of chains and fetters, to torture and restrain the slaves the investment of trinkets wherewith civilized men decoy savages to make war on one another, and to sell those nearest to them in blood with the stock of muskets too, prepared by Christians for the trade, and sold at sixteen pence a-piece, but not made to fire above once or twice without bursting in the hand of the poor Negro, whom they have tempted to plunder his neighbour or to sell his child. If taken on lier way to the African coast, she bears internal evidence, amply sufficient, to convict her of a slave trading destination. I will not say that the cruisers having visited and inspected her, would suffer her to pass onward. I will not impute to gallant and honourable men a breach of duty, by asserting, that knowing a ship to have a guilty pur- pose, and aware that they had the power of proving this, they would voluntarily permit her to accomplish it. I will not even suggest that vessels are less closely watched on their route towards the coast than on their return from it. But I must at least affirm, without any fear of being contradicted, that the policy which holds out a reward, not to the cruiser who stops such a ship and interrupts her on the way to the scene of her crimes, but to the cruiser who seizes her on her way back when full of slaves, gives and professes to give the cruiser an interest in letting her reach Africa, take in her cargo of slaves, and sail for America. Moreover, I may also affirm with perfect safety, that this policy is grounded upon the assumption that the cruiser will be influ- enced by the hope of the reward, in performing the service, else what earthly use can it be to offer it? and consequently I am entitled to con- clude, that the offering this reward, assumes that the cruiser cares for the reward, and will let the slaver pass on unless she is laden with slaves. If this does not always happen, it is very certainly no fault of the policy which is framed upon such a preposterous principle. But I am not about to argue that any such consequences actually take place. It may or it may not be so in the result; but the tendency of the system is plain. The fact I stop not to examine. I have other facts to state about which no doubt exists at all. The statements of my excellent friend, Mr. Laird, who, with his worthy coadjutor, Mr. Oldfield, has recently returned from Africa, are before the world, and there has been no attempt made to contradict them. Those gallant men are the survivors of an expedition full of hardships and perils, to which, among many others, the learned and amiable Dr. Briggs, of Liverpool, unhappily fell a sacrifice an irreparable loss to humanity as well as science. It appears that the course pursued on the coast is this, The cruiser stationed there to prevent the slave trade, carefully avoids going near the harbour or the creek where the slavers are lying. If she comes 444 THE SLAVE TRADE. within sight, the slaver would not venture to put his cargo on board and sail. Therefore she stands out, just so far as to command a view of the port from the mast-head, but herself quite out of sight. The slaver believes the coast is clear; accomplishes his crime of shipping the cargo, and attempts to cross the Atlantic. Now, whether he suc- ceeds in gaining the opposite shore, or is taken and condemned, let us see what the effect of the system is first of all, in the vessel's construc- tion and accommodation that is, in the comforts, if such a word can be used in connection with the hull of a slave-ship or the torments rather prepared for her unhappy inmates. Let us see how the unavoidable miseries of the middle passage are exasperated by the contraband nature of the adventure how the unavoidable mischief is needlessly aggravated by the very means taken to extirpate it. The great object being to escape our cruisers, every other consideration is sacrificed to swiftness of sailing in the construction of the slave-ships. I am not saying that humanity L sacrificed. I should of course be laughed to scorn by all who are implicated in the African traffic, were I to use such a word in any connection with it. But all other considerations respecting the vessel herself are sacrificed to swiftness, and she is built so narrow as to put her safety in peril, being made just broad enough on the beam to keep the sea. What is the result to the wretched slaves? Before the trade was put down by us in 1807, they had the benefit of what was termed the Slave Carrying Act. During the twenty years that we spent in examining the details of the question in ascertaining whether our crimes were so profitable as not to warrant us in leaving them off in debating whether robbery, piracy, and mur- der should be prohibited by law, or receive protection and encourage- ment from the State we, at least, were considerate enough to regulate the perpetration of them; and while those curious and very creditable discussions were going on, Sir William Dolben's Bill gave the unhappy victims of our cruelty and iniquity the benefit of a certain space between decks, in which they might breathe the tainted air more freely, and a certain supply of provisions and of water to sustain their wretched existence. But now there is nothing of the kind; and the slave is in the same situation in which our first debates found him above half a century ago, when the venerable Thomas Clarkson awakened the attention of the world to his sufferings. The scantiest portion which will support life is alone provided; and the wretched Africans are com- pressed and stowed into every nook and cranny of the ship, as if they were dead goods concealed on board smuggling vessels. I may be thought to have said enough; but I may not stop here. Far more remains to tell; and I approach the darker part of the subject with a feeling of horror and disgust, which I cannot describe, and which three or four days gazing at the picture has not been able to subdue. But I go through the painful duty in the hope of inducing your lordships at once to pronounce the doom of that system which fosters all that you are about to contemplate. Let me first remind you of the analogy which this head-money sys- tem bears to what was nearer home, called blood-money. That it THE SLAVE TRADE. 445 produces all the effects of the latter, I am certainly prepared to affirm; for the giving a reward to informers on capital conviction had the effect of engendering conspiracies to prosecute innocent men, as well as to prevent the guilty from being stopt in their career, until their crimes had ripened into capital offences; and I have no conception that any attempts can be made to capture vessels not engaged in the trade nor indeed could the head-money, from the nature of the thing, be obtained by any such means. But in the other part of the case the two things are precisely parallel, have the self-same tendency, and pro- duce the same effects; for they both appeal to the same feelings and motives, putting in motion the same springs of human action. Under the old bounty system no policeman had an interest in detecting and checking guilt until it reached a certain pitch of depravity, until the offences became capital, and their prosecutor could earn forty pounds, they were not worth attending to. The cant expression, but the sig- nificant one, is well known. "He (the criminal) is not yet weight enough he does not weigh his forty pounds" was the saying of those who cruised for head-money at the Old Bailey. And thus lesser crimes were connived at by some encouraged, nurtured, fostered in. their growth by others that they might attain the maturity which the law had in its justice and wisdom said they must reach before it should be worih any one's while to stop the course of guilt. Left to itself, wickedness could scarcely fail to shoot up and ripen. As soon as he saw that time come, the policeman pounced upon his appointed prey, made his victim pay the penalty of the crime he had suffered, if not encouraged him to commit, and himself obtained the reward provided by the state for the patrons of capital felony. Such within the tropics is the tendency, and such are the effects of our head-money system. The slave ship gains the African shores; she there remains unmolested by the land authorities, and unvisited by the sea; the human cargo is prepared for her; the ties that knit relatives together are forcibly severed; all the resources of force and of fraud, of sordid avarice and of savage intemperance, are exhausted to fill the human market; to prevent all this, nothing, or next to nothing is attempted; the penalty has not as yet attached; the slaves are not on board, and head-money is not due; the vessel, to use the technical phrase, does not yet weigh enough; let her ride at anchor till she reach her due standard of five pounds a slave, and then she will be pursued ! Accordingly, the lading is completed; the cruiser keeps out of sight; and the pirate puts to sea. And now begin those horrors those greater horrors, of which I am to speak, and which are the necessary consequences of the whole pro- ceeding, considering with what kind of miscreants our cruisers have to deal. On being discovered, perceiving that the cruiser is giving chase, the slaver has to determine whether he will endeavour to regain the port, escaping for the moment, and waiting for a more favourable opportu- nity, or will fare across ihe Atlantic, and so perfect his adventure, and consummate his crime, reaching the American shores with a part at least of his lading. How many unutterable horrors are embraced in tho VOL. i. 38 446 THE SLAVE TRADE. word that has slipt my tongue? A part of the lading! Yes yes For no sooner does the miscreant find that the cruiser is gaining upon him, than he bethinks him of lightening his ship, and he chooses the heaviest of his goods, with the same regard for them as if they were all inanimate lumber. He casts overboard, men and women and children! Does he first knock off their fetters? No! Why? Because those irons by which they have been held together in couples, for safety but not more to secure the pirate crew against revolt, than the cargo against suicide to prevent the Africans from seeking in a watery grave an escape from their sufferings those irons are not screwed together and padlocked, so as to be removed in case of danger from tempest or from fire but they are riveted welded together by the blacksmith in his forge never to be removed, nor loosened, until after the horrors of the middle passage, the children of misery shall be landed to bondage in the civilized world, and become the subjects of Christian kings! The irons, too. serve the purpose of weights; and, if time be allowed in the hurry of the flight, more weights are added, to the end that the wretches may be entangled, to prevent their swimming. Why? Because the Negro, with that herculean strength which he is endowed withal, and those powers of living in the water which almost give him an amphibious nature, might survive to be taken up by the cruiser, and become a witness against the murderer. The escape of the malefactor is thus provided, both by lightening the vessel which bears him away, and by destroying the evidence of his crimes. Nor is this all. Instances have been recorded of other precautions used with the same purpose. Water casks have been filled with human beings, and one vessel threw twelve overboard thus laden. In another chase, two slave ships endeavoured, but in vain, to make their escape, and, my blood curdles when I recite, that, in the attempt, they flung into the sea five hundred human beings, of all ages, and of either sex! These are things related not by enthusiasts, of heated imagination not by men who consult only the feelings of humanity, and are inspired to speak by the great horror and unextinguishable indignation that fill their breasts but by officers on duty, men engaged professionally in the Queen's service. It is not a creation of fancy to add, as these have done, to the hideous tale, that the ravenous animals of the deep are aware of their prey; when the slave ship makes sail, the shark follows in her wake, and her course is literally to be tracked through the ocean by the blood of the murdered, with which her enormous crimes stain its waters. I have read of worse than even this! But it will not be believed! I have examined the particulars of scenes yet more hideous, while transfixed with horror, and ashamed of the human form that I wore scenes so dreadful as it was not deemed fit to lay bare before the public eye! scenes never surpassed in all that history has recorded of human guilt to stain her pages, in all that poets have conceived to harrow up the soul! scenes, compared with which the blood-stained annals of Spain cruel and sordid Spain have regis- tered only ordinary tales of avarice and suffering though these have won for her an unenvied pre-eminence of infamy ! scenes not exceeded THE SLAVE TRADE. 447 in horror by the forms with which the great Tuscan poet peopled the hell of his fancy, nor by the dismal tints of his illustrious countryman's pencil, breathing its horrors over the vaults of the Sistine chapel! Mortua quin etiatnjitngebat corpora vivis! On the deck and in the loathsome hold are to be seen the living chained to the dead the putrid carcase remaining to mock the survivor with a spectacle that to him presents no terrors to mock him with the spectacle of a release which he envies! Nay, women have been known to bring forth the miserable fruit of the womb surrounded by the dying and the dead the decayed corpses of their fellow victims. Am I asked how these enormities shall be prevented? First ask me, to what I ascribe them? and then my answer is ready. I charge them upon the system of head-money which I have described, and of whose tendency no man can pretend to doubt. Reward men for pre- venting the slaver's voyage, not for interrupting it for saving the Africans from the slave ship, not for seizing the ship after it has re- ceived them; and then the inducement will be applied to the right place, and the motive will be suited to the act you desire to have per- formed. But I have hitherto been speaking of the intolerable aggravation which we superadd to the traffic. Its amount is another thing. Do all our efforts materially check it? Are our cruisers always success- ful? Are all flags and all the slavers under any flag subject to search and liable to capture! I find that the bulk of this infernal traffic is still undiminished; that though many slave ships may be seized, many more escape and reach the new world; and that the numbers still carried thither are as great as ever. Of this sad truth the evidence is too abundant arid too conclusive. The premium of insurance at the Havana is no higher than 12 percent, to cover all hazards. Of this 4i per cent, is allowed for sea risk and underwriter's profits, leaving but 8 for the chance of capture. But in Rio it is as low as 11 per cent., leaving but 6$ for risk of capture. In the year 1835, 80 slave ships sailed from the Havana alone; and I have a list of the numbers which six of those brought back, giving an average of about 360: so that about 28,000 were brought to that port in a year. In the month of December of that year, between 4000 and 5000 were safely landed in the port of Rio, the capital of our good friend and ally, the Emperor of Brazil. It is frightful to think of the numbers carried over by some of these ships. One transported 570, and another no less than 700 wretched beings. I give the names of these execrable vessels the Felicidad and the Socorro. Of all slave-traders, the greatest of all the criminals engaged in these guilty crimes, the worst are the Brazilians, the Spaniards, and the Portuguese the three nations with whom our commerce is the closest, and over whom our influence is the most commanding. These are the nations with whom we (and I mean France as well as ourselves) go on in linger- ing negotiation in quibbling discussion to obtain some explanation of some article in a feeble inefficient treaty, or some extension of au ineffectual right of search, while their crimes lay all Africa waste, 448 THE SLAVE TRADE. and deluge the seas with the blood of her inhabitants. Yet if a com- mon and less guilty pirate dared pollute the sea, or wave his black flag over its waves, let him be of what nation he pleased to libel by as- suming its name, he would in an instant be made to pay the forfeit of his crimes. It was not always so. We did not in all times, nor in every cause, so shrink from our duty through delicacy or through fear. When the thrones of ancient Europe were to be upheld, or their royal occupants to be restored, or the threatened privileges of the aristocracy wanted champions, we could full swiftly advance to the encounter, throw ourselves into the breach, and confront alone the giant arm of republics and of emperors wielding the colossal power of France. But now when the millions of Africa look up to us for help when humanity and justice are our only clients I am far from saying that we do not wish them well: I can believe that if a word could give them success if a wave of the hand sufficed to end the fray the word would be pronounced the gesture would not be withholden; but if more be wanted, if some exertion is required if some risk must be run in the cause of mercy then our tongue cleaves to the roof of our mouth; our hand falls paralyzed; we pause and falter, and blanch and quail before the ancient and consecrated monarchy of Brazil, the awful might of Portugal, the compact, consolidated, over- whelming power of Spain! My lords, I trust I expect we shall pause and falter, and blanch and quail no more! Let it be the earliest, and it will be the most enduring glory of the new reign, to extirpate at length this execrable traffic! I would not surround our young Queen's throne with fortresses and troops, or establish it upon the triumphs of arms and the trophies of war no, not I ! Ov ya xitfotj it'Et^tora -frjv rtofav ovSs rtkii'flotj tyto, ov5 trti z'ovT'otf v jjuavfoii $govw* aM, iav tbv Ipbv fei%t,afjibv, x- -t. X* I would build her renown neither upon military nor yet upon naval greatness; but upon rights secured, upon liberties extended, humanity diffused, justice universally promulged. In alliance with such vir- tues as these I would have her name descend to after ages. I would have it commemorated for ever, that in the first year of her reign, her throne was fortified, and her crown embellished, by the proudest triumph over the worst of crimes the greatest triumph mortal ever won, over the worst crime man ever committed ! * AHM. IT!i ITE<}>. SPEECH ON THE IMMEDIATE EMANCIPATION OF THE NEGRO APPRENTICES. DELIVERED IN THE HOUSE OF LORDS, FEBRUARY 20, 1838. DEDICATION. TO THE MARQUESS OF SLIGO, K.P. ETC. ETC. ETC. LATE GOVERNOR AND CAPTAIN-GENERAL OF JAMAICA. THIS speech is inscribed with peculiar propriety to the humane and virtuous Viceroy, who, himself a master of slaves, gained by his just and beneficent govern- ment of the greatest slave colony in the world, the truly enviable title of the poor Negro's friend. The only other publication upon the subject to which I ever affixed my name, was dedicated to an illustrious statesman, whose life has been devoted to his country's service, and whose noble ambition has always connected itself with ihe improvement of mankind, by that natural sympathy which unites brilliant genius with public virtue. But the fame with which your administration has sur- rounded your character makes it not unfit to name you even after a Wellesley. The anxiety expressed from all parts of the country to obtain an authentic report of this speech, and the acceptance with which my countrymen have honoured the humble though zealous efforts of their fellow-labourer in this mighty work, I regard as by far the highest gratification of a long public life. The present occasion also affords me an opportunity of contradicting the studied misrepresentations of some injudicious supporters of the government, who have not scrupled to assert that my principal object in proposing the measures of yesterday, was not the abolition of Negro apprenticeship, but only the regulation of the master's conduct. Nothing can be more wide of the fact than such a statement. I appeal to your lordship, and to all who heard me, whether my whole conten- tion was not in behalf of instant and complete emancipation, as the only effectual remedy, and whether I wasted more than a single sentence upon any more pallia- tives. To regulate the master's conduct, while tlio abominable system is suffered to continue, was the purpose of the first five resolutions but my whole forces, such as they are, were brought to bear upon the only position to take which I was very anxious, and, to force an immediate, unconditional surrender of tho master's rights an immediate, unconditional liberation of the slave. 38* 450 NEGRO APPRENTICESHIP. I think I have some right to complain of these misstatements. It was surely enough that I should be resisted hy the whole strength of the government, and that, in consequence of their resistance, my great object of obtaining the Negro's freedom should be defeated, as well as all hopes of effectually destroying the slave trade itself disappointed by the rejection of my other propositions. There is a refinement of subtle injustice in those men propagating a belief through the country, that the conduct of the ministry, by which my motion was defeated, and by which I verily think their official existence is endangered, did not altogether thwart the intentions of the parties by whom that motion was brought forward and supported. The reader of this speech will be at no loss to perceive how entirely its object was the immediate destruction of slavery, and how invariably every word of it was inspired by hostility to the existing system, inextinguishable and uncompromising. BROUGHAM. February 21, 1838. SPEECH, I do not think, my lords, that ever but once before, in the whole course of my public life, I have risen to address either House of Par- liament with the anxiety under which I labour at this moment. The occasion to which alone I can liken the present, was, when I stood up in the Commons to expose the treatment of that persecuted Missionary whose case gave birth to the memorable debate upon the condition of our Negro brethren in the Colonies a debate happily so fruitful of results to the whole of this great cause. But there is this difference between the two occasions to sustain my spirits now, that whereas, at the former period, the horizon was all wrapt in gloom, through which not a ray of light pierced to cheer us, we have now emerged into a comparatively bright atmosphere, and are pursuing our journey full of hope. For this we have mainly to thank that important discussion, and those eminent men who bore in it so conspicuous a part. And now I feel a further gratification in being the means of enabling your lordships, by sharing in this great and glorious work nay, by leading the way towards its final accomplishment, to increase the esteem in which you are held by your fellow-citizens; or if, by any differences of opinion on recent measures, you may unhappily have lost any por- tion of the public favour, I know of no path more short, more sure, or more smooth, by which you may regain it. But I will not rest my right to your co-operation upon any such grounds as these. I claim your help by a higher title. I rely upon the justice of my cause I rely upon the power of your consciences I rely upon your duty to God and to man I rely upon your consistency with yourselves and, appealing to your own measures of 1833, if you be the same men in 1838, 1 call upon you to finish your own work, and give at length a NEGRO APPRENTICESHIP. 451 full effect to the wise and Christian principles which then guided your steps. I rush at once into the midst of this great argument. I drag before you, once more, but I trust for the last time, the African Slave Trade, which I lately denounced here, and have so often denounced elsewhere. On this we are all agreed. Whatever difference of opinion may exist on the question of Slavery, on the slave traffic there can be none. I am now furnished with a precedent which may serve for an example to guide us. On slavery we have always held that the Colonial legislatures could not be trusted; that, to use Mr. Canning's expression, you must beware of allowing the masters of slaves to make laws upon slavery. But upon the detestable traffic in slaves, I can show you the proceeding of a Colonial Assembly, which we should ourselves do well to adopt after their example. These masters of slaves, not to be trusted on that subject, have acted well and wisely on this. I hold in my hand a document, which I bless Heaven that I have lived to see. The legislature of Jamaica, owners of slaves, and representing all other slave owners, feel that they also represent the poor Negroes themselves: and they approach the throne, expressing themselves thankful tardily thankful, no doubt that the traffic has been now for thirty years put down in our own Colonies, and beseeching the Sovereign to consummate the great work by the only effectual means; of having it declared piracy by the law of nations, as it is robbery, and piracy, and murder by the law of God. This address is precisely that which I desire your lordships now to present to the same gracious Sovereign. After showing how heavily the Foreign Slave Trade presses upon their interests, they take higher ground in this remarkable passage: " Nor can we forego the higher position, as a question of humanity; representing all classes of the island, we consider ourselves entitled to offer to your Mnjesty our respectful remonstrance against the continuance of this condemned traffic in human beings. As a com- munity, composed of the descendants of Africa as well as Britain, we are anxious to advance the character of the country; and we, there- fore, entreat your Majesty to exert your interest with foreign powers to cause this trade at once to be declared piracy, as the only effectual means of putting it down, and thereby to grace the commencement of your auspicious reign." My lords, I will not stop to remind the lawgivers of Jamaica why it is that the slave traffic is a crime of so black a dye. I will not re- mind them that if slavery were no more, the trade in slaves must cease; that if the West Indies were like England, peopled with free men, and cultivated only by free hands, where no man can hold his fellow- creature in bondage, and the labourer cannot be tormented by his masters; if the cart-whip having happily been destroyed, the doors of the prison-house were also flung open, and chains, and bolls, anJ col- lars were unknown, and no toil endured but by the workmen's con- sent, nor any effort extorted by dread of punishment; the traffic which we justly call not a trade; but a crime, would no longer inflict the mise- ries with which it now loads its victims, who, instead of being con- 452 NEGRO APPRENTICESHIP, veyed to a place of torture and misery, would be carried into a land of liberty and enjoyment. Nor will I now pause to consider the wishes of some colonies, in part, I am grieved to say, granted by the govern- ment, that the means should be afforded them of bringing over what they call labourers from other parts of the globe, to share in the suffer- ings of slavery, hardly mitigated under the name of apprenticeship. That you should ever join your voices with them on this matter, is a thing so out of the question that I will riot detain you with one other remark upon it. But so neither have I any occasion to go at present into the subject of the slave trade altogether, after the statements which I lately made in this place upon the pernicious effects of our head- money, the frightful extent of the Negro traffic, and the horrible atro- cities which mark its course still more awfully now than before. In order to support my call upon your lordships for the measures which alone can extirpate such enormities, I need but refer you to those state- ments. Since I presented them here, they have been made public, indeed promulgated all over the kingdom, and they have met with no contradiction, nor excited the least complaint in any quarter, except that many have said the case was understated; and that in one place, and only in one, I have been charged with exaggeration. I have read with astonishment, and I repel with scorn, the insinuation, that I had acted the part of an advocate, and that some of my statements were coloured to serve a cause. How dares any man so to accuse me? How dares any one, skulking under a fictitious name, to launch his slander- ous imputations from his covert? I come forward in my own person. I make the charge in the face of day. I drag the criminal to trial. I openly call down justice on his head. I defy his attacks. I defy his defenders. I challenge investigation. How dares any concealed adver- sary to charge me as an advocate speaking from a brief, and misrepre- senting the facts to serve a purpose? But the absurdity of this charge even outstrips its malace. I stated that the Negroes were thrown over- board in pairs during a chase to lighten the ship and enable her to escape; thrown overboard in fetters, that they might sink, and not be witnesses against the murderers. The answer is, that this man, if man. he be, had been on board slave ships, and never seen such cruelties. I stated that the fetters were not locked, but rivetted in the forge. The answer is, that the writer had been on board of slave vessels, and seen fetters which were locked, and not riveted. How dares any man deny a statement made upon authority referred to by name, on such a trumpery story as this? As well might he argue that a murder sworn to by fifty or a hundred credible witnesses, had never been committed, because some one came forward and said he had not seen it done. Did I not give the particulars? Did I not avouch my authority? Did I not name the gallant officer from whose official report, printed and pub- lished, my account was taken? Did I not give the respected name of Commodore Hayes, one of the best esteemed officers in her Majesty's service? I, indeed, understated the case in many particulars. But, my lords, if I have not been chargeable with exaggeration if all who took part in the former debate, whether in or out of office, agreed in NEGRO APPRENTICESHIP. 453 acquitting me of that so neither shall I be charged for the future with understating the atrocities of the case. What I then withheld, I will now tell and not keeping back my authority now any more than I did before, I appeal to my noble friend near me* for the truth of the appalling story, himself a planter, and an owner of slaves. I ask him if he did not know a vessel brought in with a cargo of a hundred and eighty or two hundred wretched beings jammed into a space three feet and a half in height. LORD SLIGO. Two and a half. LORD BROUGHAM. There, my lords, I am understating again. Into that space of two feet and a half between the decks, that number of miserable creatures were jammed, like inanimate lumber, certainly in a way in which no Christian man would crowd dumb animals. My noble friend will say whether or not that vessel, whose slaves had never been released, or even washed, or in any way cleansed, since it left the African coast, presented an intolerable nuisance to all the senses a nuisance unfit for any description. Nor is this all. I will be chargeable with understatement no more! The ophthalmia had broken out among the poor creatures thus kept in unspeakable tor- ment; and as often as any one was seized, instead of affording him any medical or other assistance, he was instantly cast overboard, and sunk in his chains, with the view of stopping the infection. I will understate things no more! I said before that as many as 700 slaves were carried across the sea in one ship; there I stopped, for to those who know what a slave ship is, this sufficed to harrow up every feel- ing of the soul. But another vessel brought away, first and last, in one voyage, 9SO miserable, unoffending, simple beings; and of this number, without any chase, or accident, or violence, or any acts of wholesale murder, such as those we have been contemplating, six hundred perished in the voyage, through the hardships and sufferings inseparably connected with this execrable traffic. Of 23 or 2400 car- ried away by four other ships, no less than 1500 perished in like man- ner, having fallen a sacrifice to the pestilential hold. How this enor- mous crime of these foreign nations is to be rooted out I know full well. You must no longer treat it as a mere contraband trade no longer call murder smuggling, or treat pirates as offenders against the revenue laws. As long as our slave traders were so dealt with, they made this calculation " If we escape three times in four, our profits are so large that the seizure and confiscation can be well afforded; nay, if we are taken as often as we escape, the ships netting 20, 30, even as much as 50 and 60,000 pounds a voyage, we can well afford to lose 1500 or 2000 pounds when the adventure fails." So they ran the risk, and oti a calculation of profit and loss were fully justified. But I had iti 1811 the singular happiness of laying the axe to the root of this detestable system. I stopt all those calculations by making the trade felony and punishing it as such; for well 1 know that they who would run the risk of capture when all they could suffer by it was a * Lord Slio. 454 NEGRO APPRENTICESHIP. diminution of their profits, would be slow to put their heads in the noose of the halter which their crimes so richly deserved. The mea- sure passed through all its stages in both Houses without one dissent- ing voice; and I will venture to assert that ever since, although Eng- lish capital, I have too much reason to think, finds its way into the foreign slave trade, no Englishman is concerned directly with it in any part of the world. Trust me, the like course must be taken if we would put an end to the same crimes in other countries. Piracy and murder must be called by their right names, and visited with their appropriate penalties. That the Spanish and Portuguese traders now make the same calculations which I have been describing, is a certain fact. I will name one Captain Inza, of the ship Socorro, who, on being captured, had the effrontery to boast that he had made fourteen slave voyages, and that this was the first time he had been taken. Well might he resolve to run so slight a risk for such vast gains; but had the fate of a felon-pirate awaited him, not all the gains which might tempt his sordid nature would have prevailed upon him to en- counter that hazard. I formerly recounted instances of murder done by wholesale in the course of the chase of our cruisers. I might have told a more piteous tale; and I will no longer be accused of understating this part of the case either. Two vessels were pursued. One after another, Negroes were seen to be thrown overboard to the number of a hundred and fifty, of all ages the elder and stronger ones loaded with their fetters, to prevent them from swimming or floating the weaker were left unchained to sink or expire; and this horrible spectacle was presented to the eyes of our cruisers' men they saw, unable to lend any help, the water covered with those hapless creatures, the men sinking in their chains the women, and piteous sight! the infants and chil- dren struggling out their little strength in the water till they too were swallowed up and disappeared! I now approach a subject, not, indeed, more full of horrors, or of greater moment, but on which the attention of the people has for some time past been fixed with an almost universal anxiety, and for your decision upon which they are now looking with the most intense interest, let me add, with the liveliest hopes. I need not add that I mean the great question of the condition into which the slaves of our colonies were transferred as preparatory to their complete liberation a subject upon which your table has been loaded with so many peti- tions from millions of your fellow-countrymen. It is right that I should first remind your lordships of the anxious apprehensions which were entertained in 1833, when the act was passed, because a com- parison of those fears with the results of the measure, will form a most important ingredient of the argument which I am about to urge for the immediate liberation of the apprentices. I well remember how uneasy all were in looking forward to the first of August, 1834, when the state of slavery was to cease, and I myself shared in those feelings of alarm when I contemplated the possible event of the vast but yet untried experiment. My fears proceeded first from the character of NEGRO APPRENTICESHIP. 455 the masters. I knew the nature of man, fond of power, jealous of any interference with its exercise, uneasy at its being questioned, offended at its being regulated and constrained, averse above all to have it wrested from his hands, especially after it has been long enjoyed, and its possession can hardly be severed from his nature. But I also am aware of another and a worser part of human nature. I know- that whoso has abused power, clings to it with a yet more convul- sive grasp. I dreaded the nature of man prone to hate whom he has injured because I knew that law of human weakness which makes the oppressor hate his victim, makes him who has injured never forgive, fills the wrong-doer with vengeance against those whose right it is to vindicate those injuries on his own head. I knew that this abominable law of our evil nature was not confined to dif- ferent races, contrasted hues and strange features, but prevailed also between white man and white for I never yet knew any one hate me, but those whom I had served, and those who had done me some grievous injustice. Why then should I expect other feelings to burn within the planter's bosom, and govern his conduct towards the un- happy beings who had suffered so much and so long at his hands? But, on the part of the slaves, I was not without some anxiety, when I considered the corrupting effects of that degrading system under which they had for ages groaned, and recognised the truth of the say- ing in the first and the earliest of profane poets, that " the day which makes a man a slave robs him of half his value." I might well think that the West India slave offered no exception to this maxim; that the habit of compulsory labour might have incapacitated him from volun- tary exertion; that over much toil might have made all work his aversion; that never having been accustomed to provide for his own wants, while all his supplies were furnished by others, he might prove unwilling or unfit to work for himself, the ordinary inducements to industry never having operated on his mind. In a word, it seemed unlikely that long disuse of freedom, might have rendered him too familiar with his chains to set a right value on liberty; or that, if he panted to be free, the sudden transition from the one state to the other, the instantaneous enjoyment of the object of his desires, might prove too strong for his uncultured understanding, might overset his princi- ples, and render him dangerous to the public peace. Hence it was that I entertained some apprehensions of the event, and yielded re- luctantly to the plan proposed of preparing the Negroes for the enjoy- ment of perfect freedom by passing them through the intermediate state of indentured apprenticeship. Let us now see the results of their sudden though partial liberation, and how far those fears have been realized; for upon this must entirely depend the solution of the pre- sent question Whether or not it is safe now to complete the emanci- pation, which, if it only be safe, we have not the shadow of right any longer to withhold. Well, then, let us see. The first of August came, the object of so much anxiety and so many predictions that day so joyously expected by the poor slaves, so sorely dreaded by their hard taskmasters; and surely if ever there 456 NEGRO APPRENTICESHIP. was a picture interesting, even fascinating to look upon if ever there was a passage in a people's history that redounded to their eter- nal honour if ever triumphant answer was given to all the scanda- lous calumnies for ages heaped upon an oppressed race, as if to justify the wrongs done them that picture, and that passage, and that an- swer were exhibited in the uniform history of that auspicious day all over the islands of the Western sea. Instead of the horizon being lit up with the lurid fires of rebellion, kindled by a sense of natural though lawless revenge, and the just resistance to intolerable oppres- sion the whole of that wide-spread scene was mildly illuminated with joy, contentment, peace, and good-will towards men. No civilized nation, no people of the most refined character, could have displayed after gaining a sudden and signal victory, more forbearance, more delicacy, in the enjoyment of their triumph, than these poor untutored slaves did upon the great consummation of all their wishes which they had just attained. Not a gesture or a look was seen to scare the eye not a sound or a breath from the Negro's lips was heard to grate on the ear of the planter. All was joy, congratulation, and hope. Everywhere were to be seen groups of these harmless folks assembled to talk over their good fortunes; to communicate their mutual feelings of happiness; to speculate on their future prospects. Finding that they were now free in name, they hoped soon to taste the reality of liberty. Feeling their fetters loosened, they looked forward to the day which should see them fall off, and the degrading marks which they left be effaced from their limbs. But all this was accompanied with not a whisper that could give offence to the master by reminding him of the change. This delicate, calm, tranquil joy, was alone to be marked on that day over all the chain of the Antilles. Amusements there were none to be seen on that day not even their simple pastimes by which they had been wont to beguile the hard hours of bondage, and which reminded that innocent people of the happy land of their forefathers, whence they had been torn by the hands of Chris- tian and civilized men. The day was kept sacred as the festival of their liberation: for the Negroes are an eminently pious race. They enjoy the advantages of much religious instruction, and partake in a large measure of spiritual consolation. These blessings they derive not from the ministrations of the Established Church not that the aid of its priests is withheld from them, but the services of others, of zealous missionaries, are found more acceptable and more effectual, because they are more suited to the capacity of the people. The meek and humble pastor, although perhaps more deficient in secular accom- plishments, is far more abounding in zeal for the work of the vineyard, and being less raised above his flock, is better fitted to guide them in the path of religious duty. Not made too fine for his work by pride of science, nor kept apart by any peculiar refinement of taste, but inspired with a fervent devotion to the interests of his flock, the mis- sionary pastor lives but for them; their companion on a week-day, as their instructor on the Sabbath; their friend and counsellor in temporal matters, as their guide in spiritual concerns. These are the causes of NEGRO APPRENTICESHIP. 457 the influence he enjoys this the source from whence the good he does them flows. Nor can I pass by this part of the West Indian picture without rendering the tribute of heartfelt admiration which I am proud to pay, when I contemplate the pious zeal, the indefatigable labours of these holy and disinterested men; and I know full well that if I make my appeal to my noble friend* he will repeat the testimony he elsewhere bore to the same high merits, when he promulgated his honest opinion, that " for the origin of all religious feeling among the Negroes, it is among the missionaries, and not the clergy, we must look." Therefore it was that fourteen years ago, I felt all the deep anxiety to which I this night began by referring, when it was my lot to drag before the Commons of England the persecutors of one among the most useful, most devoted, and most godly of that most estimable class of men, who for his piety and his self-devotion had been hunted down by wicked men, conspiring with unjust judges, and made to die the death for teaching to the poor Negroes the gospel of peace. I am unspeakably proud of the part I then took; I glory mightily in reflect- ing that I then struck, aided and comforted by far abler men,t the first of those blows, of which we are now aiming the last, at the chains that bind the harmless race of our colonial peasantry. The first of August came and the day was kept a sacred holiday, as it will ever be kept to the end of time throughout all the West Indies. Every church was crowded from early dawn, with devout and earnest worshippers. Five or six times in the course of that memorable Friday were all those churches filled and emptied in succession by multitudes who came, not coldly to comply with a formal ceremonial, not to give mouth worship or eye worship, but to render humble and hearty thanks to God for their freedom at length bestowed. In countries where the bounty of nature provokes the passions, where the fuel of intemperance is scattered with a profuse hand, I speak the fact when I tell that not one Negro was seen in a state of intoxication. Three hundred and forty thousand si ives in Jamaica were at once set free on that day, and the peaceful festivity of these simple men was dis- turbed only on a single estate, in one parish, by the irregular conduct of three or four persons, who were immediately kept in order, and tranquillity in one hour restored. But the termination of slavery was to be the end of all labour; no man would work unless compelled much less would any one work for hire. The cart-whip was to resound no more, and no more could exertion be obtained from the indolent African. I set the fact against these predictions. I never have been in the West Indies; I was one of those whom, undt-r the name of reasoners, and theorists, and vision- aries, all planters pitied for incurable ignorance of Colonial affairs; ono * Lord Sligo. f The great exertions on that memorable occasion of Lord Chief Justice Den man, Dr. Lushington, and others, are well known; and the report of the interesting cie- hato does them justice. Hut no one from merely reading it can form an adequate idea of Mr. Justice Williams's admirable Rpeech, distinguished alike for closeness of argument and for the severity of Attic taste. VOL. I. 39 458 NEGRO APPRENTICESHIP. of those who were forbidden to meddle with matters of which they could only judge who had the practical knowledge of experienced men on the spot obtained. Therefore I now appeal to the fact and I also appeal to one who has been iu the West Indies, is himself a planter, and was an eye-witness of the things upon which I call for his con- firmatory testimony. It is to my noble friend* that I appeal. He knows, for he saw, that ever since slavery ceased, there has been no want of inclination to work in any part of Jamaica, and that labour for hire is now to be had without the least difficulty by all who can afford to pay wages the apprentices cheerfully working for those who will pay them, during the hours not appropriated to their masters. My noble friend made an inquisition as to the state of this important matter in a large part of his government; and I have his authority for stating, that, in nine estates out of ten, labourers for hire were to be had without the least difficulty. Yet this was the people of whom we were told with a confidence that set all contradiction at defiance, with an insulting pity for the ignorance of us who had no local experience, that without the lash there would be no work done, and that when it ceased to vex him the African would sink into sleep. The prediction is found to have been ridiculously false; the Negro peasantry is as industrious as our own; and wages furnish more effectual stimulus than the scourge. but, said the men of Colonial experience the true practical men this may do for some kinds of produce. Cotton may be planted coffee may be picked indigo may be manufactured all these kinds of work the Negro may probably be got to do; but at least the cane will cease to grow the cane-piece can no more be hoed, nor the plant be hewn down, nor the juice boiled, and sugar will utterly cease out of the land. Now, let the man of experience stand forward the practical man, the inhabitant of the Colonies I require that he now come forth with his prediction, and I meet him with the fact. Let him but appear, and I answer for him, we shall hear him prophesy no more. Put to silence by the fact, which even these confident men have not the courage to deny, they will at length abandon this untenable ground. Twice as much sugar by the hour was found, on my noble friend'st inquiry, to be made since the Ap- prenticeship as under the slave system, and of a far better quality; and one planter on a vast scale has said, that, with twenty free labourers, he could do the work of a hundred slaves. But linger not on the islands where the gift of freedom has been but half bestowed look to Antigua and Bermuda, where the wisdom and the virtue has been dis- played, of at once giving complete emancipation. To Montserrat the same appeal might have been made, but for the folly of the Upper House, which threw out the bill passed in the Assembly by the repre- sentatives of the planters. But in Antigua and Bermuda, where, for the last three years and a half, there has not even been an Apprentice where all have been at once made as free as the the peasantry of * Lord Sligo. | Lord Sligo. NEGRO APPRENTICESHIP. 459 this country the produce has increased, not diminished, and increased notwithstanding the accidents of bad seasons, droughts, and fires. But then we were told by those whose experience was reckoned worth so much more than our reasoning, that even if hy some miracle industry should be found compatible \vilh liberty, of which indeed we in our profound ignorance of human nature had been wont to regard it as the legitimate offspring; at all events, the existence of order and tranquillity was altogether hopeless. After so long being inured to the abject state of slavery, its sudden cessation, the instant transition from bondage to freedom, must produce convulsions all over the Colo- nies, and the reign of rebellion and anarchy must begin. Not content with reasoning, the practical men condescend to tax their luxuriant imagination for tropes to dazzle and delude whom their arguments might fail to convince. The child could not walk alone if his leading- strings were cut away the full-grown tree could not be transplanted the limbs cramped by the chain could not freely move the maniac might not safely be freed from the keeper's control; and Mr. Wynd- ham used to bring the play of his own lively fancy upon the question, and say, that if it was a cruel thing to throw men out of the window, he saw no great kindness in making np for the injury you had done by throwing them back again into the house. Alas! for all those prophecies, and reasonings, and theories, and figures of speech. The dawn of the First of August chased away the phantoms, and instead of revolt and conspiracy, ushered in order and peace. But the fanciful men of experience, the real practical visionaries of the West Indies, though baffled, were not defeated. Only wait, they said, till Christmas all who know the Negro character then dread rebellion all experi- ence of Negro habits shows that to be the true season of revolt. We did wait till Christmas and what happened? I will go to Antigua, because there the emancipation began suddenly, without any prepara- tory state of apprenticeship with no gradual transition, but the chains knocked off at once, and the slave in an instant set free. Let then the men of practical experience hear the fact. For the first time these thirty years on that day, Christmas 1834, martial law was not pro- claimed in Antigua. You call for facts; here is a fact a fact that speaks volumes. You appeal to experience here is our experience, your own experience; and now let the man who scoffed at reasoning who laughed us to scorn as visionaries, deriding our theories as wild fancies, our plans of liberty as frantic schemes which never could be carried into effect, whose only fruit must be wide spreading rebellion, and which must entail the loss of all other colonies let him come for- ward now; I dare him to deny one of the statements I have made. Lot those who thought the phrases "Jamaica Planter'* "Colonial interest" "West Indian residence'' flung into the scale of oppres- sion, could make that of morcy and freedom kick the beam let them now hear the fact, find hold their peace; the fact, that neither on the first day of emancipation, nor on the Christmas following the N'gro festival, was there any breach of the peace committed over all the West Indian world. Then, after these predictions had all failed these 460 NEGRO APPRENTICESHIP. phantasies been all dispelled the charges against the Negro race been thoroughly disproved surely we might have looked for a sub- mission to the test of experience itself, from the men of experience, and an acquittal of those so unjustly accused, after the case against them had been so signally defeated. No such thing. The accusers, though a second time discomfited, were not subdued; and there was heard a third appeal to a future day an appeal which, had 1 not read it in print, and heard of it in speeches, I could riot have believed possible. Only wait, said these planters, till the anniversary of the first of August, and then you will witness the effects of your rash counsels! Mon- strous effort of incurable prejudice almost judicial blindness! As if they whom the event of liberation itself could not excite to commit the least disorderly act, would be hurried into rebellion by the return next year of the day on which it had happened; and having withstood all temptation to irregular conduct in the hour of triumph, would plunge into excess in celebrating its anniversary! I will not insult the under- standings of your lordships by adding that this prediction shared the fate of all the rest. And are we then now to set at nought all the lessons of real and long continued and widely extended experience? Are we never to profit by that of which we are for ever to prate? I ask you not to take advantage of other men's experience, by making its fruits your own to observe what they have done or have suffered, and, wise by the example, to follow or to avoid. That indeed is the part of wisdom, and reflecting men pride themselves upon pursuing such a course. But I ask nothing of the kind my desires are more humble my demand is more moderate far. I only ask you to be guided by the results of your own experience, to make some gain by that for which you have paid so costly a price. Only do not reject the lesson which is said, in the Book you all revere, to teach even the most foolish of our foolish kind; only show yourselves as ready to benefit by experience as the fool whom it proverbially is able to teach and all I desire is gained. But now, my lords, my task is accomplished, my work is done. I have proved my case, and may now call for judgment. I have demon- strated every part of the proposition which alone it is necessary that I should maintain, to prove the title of the apprentice to instant freedom from his task-masters, because I have demonstrated that the liberation of the slave has been absolutely, universally safe attended with not even inconvenience nay, productive of ample benefits to his master. I have shown that the apprentice works without compulsion, and that the reward of wages is a better incentive than the punishment of the lash. I have proved that labour for hire may anywhere be obtained as it is wanted and can be purchased all the apprentices working hours for hire, and all the free Negroes, wherever their emancipation has been complete, working harder by much for the masters who have wherewithal to pay them, than the slave can toil for his owner or the apprentice for his master. Whether we look to the noble minded Colonies which have at once freed their slaves, or to those who still retain them in a middle and half-free condition, I have shown that the NEGRO APPRENTICESHIP. 461 industry of the Negro is undeniable, and that it is constant and produc- tive in proportion as he is the director of its application and the master of its recompense. lint I have gone a great deal further I have de- monstrated by a reference to the same experience the same unques- tioned facts that a more quiet, peaceful, inoffensive, innocent race, is not to be found on the face of this earth, than the Africans not while dwelling in their own happy country, and enjoying freedom in a natu- ral state, under their own palm trees, and by their native streams but after they have been torn away from it, enslaved, and their nature perverted in your Christian land, barbarized by the policy of civilized states their whole character disfigured, if it were possible to disfigure it all their feelings corrupted, if you could have corrupted them. Every effort has been made to spoil the poor African every resource of wicked ingenuity exhausted to deprave his nature all the incen- tives to misconduct placed around him by the fiend-like artifice of Christian, civilized men and his excellent nature has triumphed over all your arts; your unnatural culture has failed to make it bear the poisonous fruit that might well have been expected from such abomi- nable husbandry though enslaved and tormented, degraded and de- based, so far as human industry could effect its purpose of making him blood-thirsty and savage, his gentle spirit has prevailed, and preserved, in spite of all your prophecies, ay, and of all your efforts, unbroken tranquillity over the whole Caribbean chain ! Have I not then proved my case? I show you that the whole grounds of the argument of 1833, the very pretext for withholding complete emancipation, alleged incapacity for labour, and risk of insurrection, utterly fail. I rely on your own records; I refer to that record which cannot be averred against; I plead the record of your own statute. On what ground does its preamble rest the necessity of the intermediate, or apprentice state; all admitting that nothing but necessity could justify it? " Whereas it is expedient that provision should be made for promoting the indus- try, and securing the good conduct of the manumitted slaves." These are the avowed reasons for the measure these its only defence. All men confessed, that, were it not for the apprehension of liberated slaves not working voluntarily, and not behaving peaceably of sla- very being found to have unfitted them for industry, and of a sudden transition to complete freedom being fraught with danger to the peace of society you had no right to make them indented apprentices, and must at once set them wholly free. But the fear prevailed, which, by the event, I have now a right to call a delusion; and the apprentice- ship was reluctantly agreed to. The delusion went further. The planter succeeded in persuading us that he would be a vast loser by the change, and we gave him twenty millions sterling money to indem- nify him for the supposed loss. The fear is found to be utterly base- less the loss is a phantom of the brain a shape conjured up by the interested parties to frighten our weak minds and the only reality in this mockery is the payment of that enormous sum to the crafty and fortunate magician for his incantations. The spell is dissolved tho charm is over; the unsubstantial fabric of calculating alarm, reared 39* 462 NEGRO APPRENTICESHIP. by the Colonial body with our help, has been crushed to atoms, and its fragments scattered to the wind. And now, I ask, suppose it had been ascertained in 1833, when you made the apprenticeship law, that these alarms were absolutely groundless the mere phantom of a sick brain, or contrivance of a sordid ingenuity would a single voice have been raised in favour of the intermediate state? Would the words Indentured Apprenticeship ever have been pronounced? Would the man have been found endued with the courage to call for keeping the Negro in chains one hour after he had been acknowledged entitled to his freedom? I freely admit that formerly, and before the event, when the mea- sure was passed, the proof was upon us, who maintained that the ex- periment of emancipation was safe. We did not pretend to deny all risk; we allowed the possibility of a loss being sustained by the planters; nay, we did more; we took for granted there would be a loss, and a loss to the amount of twenty millions, and that vast sum we cheerfully paid to indemnify them. Then we had not the facts with us; all experience was said to be the other way; and because we could only offer argument against the opinions of practical men of local knowledge, we were fain to let them take everything their own way, and receive our money by way of securing them against the possibility of damage. But now the case is reversed; the facts are all with us; experience has pronounced in our favour, and the burthen of the proof is thrown on the planter, or whoever would maintain, contrary to the result of the trial already made, that there is any risk whatever in absolute emancipation. The case lies in a narrow com- pass; the sudden transition from absolute slavery to apprenticeship from the condition of chattels to that of men has been made without the least danger whatever, though made without the least prepara- tion. It is for those who, in spite of this undoubted fact, maintain that the lesser step of substituting freedom for apprenticeship will be dan- gerous, though made after a preparation of three years, to prove their position. Therefore I am not bound to maintain the opposite propo- sition, by any one argument or by a single fact. Nevertheless, I do prove the negative, against those upon whom it lies to prove the affir- mative; I gratuitously demonstrate, both by argument and by fact, that the transition to freedom from apprenticeship may be safely made. I appeal to the history of Antigua and Bermuda, where the whole process took place at once where both steps were taken in one and where, notwithstanding, there was more tranquillity than had ever before been enjoyed under the death-like silence of slavery. Nay, I prove even more than the safety of the step in question; for in those colonies the transition being so made at once, it follows, a fortiori, that the making the half transition, which alone remains to be made in the rest, is doubly free from all possible risk of any kind, either as to voluntary labour or orderly demeanour. But this is not all let us look at the subject from another point. The twenty millions have been paid in advance, on the supposition of a loss being incurred. No loss, but a great gain has accrued to the NEGRO APPRENTICESHIP. 463 planter. Then he has received our money for nothins; it is money- paid under a mistake in fact, to propagate which he himself contri- buted. If such a transaction had happened between private parties, I know not that the payer of the money might riot have claimed it back as paid under mistake; or if deception had been practised, that he was not equitably entitled to recover it. lint without going so far, of this I am certain, that all men of honourable minds would in such circumstances have felt it hard to keep the party to his bargain. Again, view the matter from a different point, for I am desirous to have it narrowly examined on all sides. Suppose it is still maintained that the second step we require to be taken will be attended with risk how much is the loss likely to be? Six years apprenticeship and the emancipation were reckoned at twenty millions. No loss has as yet accrued, and four years have elapsed. Then what right have you to estimate the loss of the two years that remain at more than the whole sum? But unless it exceeds that sum, the planter, by giving up these two years, manifestly loses nothing at all; for he has his compensation, even supposing the total loss to happen in two years, for which the money was given, on the supposition of a six years' diminished in- come. But suppose I make a present of this concession likewise, and admit that there may be a loss in the next two years as there has been a gain in the former four, have not I a right to set off that gain against any loss, and then unless twice as much shall be lost yearly in future as has been gained in past years, the planter is on the whole a gainer, even without taking the twenty millions into the account, and although there should be that double rate of loss, contrary to all probability: even without these twenty millions, he will on the whole have lost nothing. But I will not consent to leave that vast sum out of the account. It shall go in diminution of the loss, if any has been suf- fered. It shall be reckoned as received by the planters, and unless they lose, during the next two years, more than twenty millions over and above the gains they have made during the last four, I insist upon it that they be deemed to have suffered no loss at all, even if, contrary to all experience and all reason, they lose by the change. What is the consequence of all this? That at the very least we have a right to make the planters bring their twenty millions to account, and give us credit for that sum so that until their losses exceed it, they shall have no right whatever to complain. Take, now, a new view of the subject, in order that we may have left no stone unturned, no part of the whole subject unexplored have we not at the very least a title to call upon the planters to consign the money into a third party's (Kinds, to pay it, as it were, into court, until it shall be ascertained whether they sustain any loss at all, and, if any, to what amount? I defy all the quibblers in the world to show what right the planters can have, if they insist upon retaining our money, now given for nothing, to keep the Negroes out of their liberty, that money having been paid to compensate a supposed loss, and experience having de- monstrated that instead of loss, the present change has already been to them a gain. My proposal is this, and if the planters be of good 464 NEGRO APPRENTICESHIP. faith it must at once settle the question, at least it must bring their sincerity to the test. They say they are afraid of a loss by the ap- prenticeship ceasing then let them either pay the money into court, or keep an account of their losses, and if they, at the end of the two years, after emancipating the apprentices, shall be found to have in- curred any loss, let them be repaid out of the money. I agree that they should be further compensated should their losses exceed the twenty millions, provided they will consent to repay all the money that exceeds the losses actually sustained. This is my proposal and I am as certain of its being fair as I am convinced it will be rejected with universal horror by the planters. Once more I call upon your lordships to look at Antigua and Ber- muda. There is no getting over that no answering it no repelling the force with which our reason is assailed by the example of thirty thousand Negroes liberated in one night liberated without a single instance of disturbance ensuing, and with the immediate substitution of voluntary work for hire in the stead of compulsory labour under the whip. There is no getting over that no answering it no repel- ling the force with which it assails the ordinary reason of ordinary men. But it is said that those islands differ from Jamaica and Bar- badoes, because they contain no tracts of waste or woody ground to which Negroes may flee away from their masters, conceal them- selves, and subsist in a Maroon state. I meet the objection as one in front, and I pledge myself to annihilate it in one minute by the clock. Why should free Negroes run away arid seek refuge in the woods, if slaves, or half slaves, like apprentices, never think of escaping? That the slave should run away that the apprentice should fly is intelli- gible; but if they don't, why should a bettering of their condition in- crease their inclination to fly? They who do not flee from bondage and the lash, why should they from freedom, wages, independence, and comfort? But this is not all. If you dread their escape and Marooning now, what the better will you be in 1840? Why are they to be less disposed then than now to fly from you? Is there anything in the training of the present system to make two years more of it disarm all dislike of white severity, all inclination for the life of the Maroon? The minute is not yet out, and I think I have disp.osed of the objection. Surely, surely, we are here upon ground often trodden before by the advocates of human improvement, the friends of extended rights. This is the kind of topic we have so often been fated to meet on other questions of deep and exciting interest. The argument is like that against the repeal of the penal laws respecting Catholics if it proves anything, it proves far too much if there be any substance in it, the conclusion is, that we have gone too far already, arid must retrace our steps either complete the emancipation of the Catholics, or re-enact the penal code. The enemies of freedom, be it civil or religious be it political or personal are all of the same sect, and deal in the same kind of logic. If this argument, drawn from the danger of Negroes eloping in 1838, should we emancipate the apprentices, is worth any- NEGRO APPRENTICESHIP. 465 thing at all, it is a reason for not emancipating them in 1840, and, consequently, for repealing altogether the law of 1S33. But I shall not live to hear any one man in any one circle of any one part of the globe, either in the eastern hemisphere or in the western, venture to breathe one whisper in favour of so monstrous a course. But I will not stop here. Lives there, my lords, a mnn so ignorant of West Indian society, so blind to all that is passing in those regions, as to suppose that the continuance of the apprenticeship can either better the Negro's condition, or win him over to more love for his master? I am prepared to grapple with this part also of the argument. I un- dertake to demonstrate that the state of the Negro is in but a very few instances better, and in many beyond all comparison worse, than ever it was in the time of slavery itself. I begin by freely admitting that an immense benefit has been con- ferred by the cart-whip being utterly abolished. Even if the lash were ever so harshly or unsparingly or indiscriminately applied in execution of sentences pronounced by the magistrate, still the differ- ence between using it in obedience to judicial command, and using it as the stimulus to labour, is very great. The Negro is no longer treated as a brute, because the motive to his exertions is no longer placed without himself, and in the driver's hand. This is, I admit, a very considerable change for the better in his condition, and it is the only one upon which he has to congratulate himself since the act of emancipation was passed. In no one other respect whatever is his condition improved in many it is very much worse. I shall run over a few of these particulars, because the view of them bears most materially upon this whole question, and I cannot better prove the absolute necessity of putting an immediate end to the state of ap- prenticeship, than by showing what the victims of it are daily fated to endure. First of all, as to the important article of food, to secure a supply of which in sufficient abundance the slave-regulating acts of all the islands have always been so anxiously directed I will compare the prison allowance of Jamaica with the apprentice allowance in Barba- does, and other colonies, from which we have the returns, there being none in this particular from Jamaica itself. The allowance to pri- soners is fourteen pints weekly of Indian corn, and different quantities of other grain, but comparing one will be sufficient lor our purpose. In Barbadoes the allowance to apprentices is only ten pints, while in the Leeward Islands and Dominica it is no more than eight pints; for the crown colonies, the slave allowance, before 1S34, was twenty-one pints; in the same colonies the apprentice receives but ten; so that in the material article of food there is the very reverse of an improve- ment effected upon the Negro's condition. Next as to time it is cer- tain that he should have half a day in the week, the Friday, to work his own provision-ground, besides Saturday to attend the market, and the Sabbath for rest and religious instruction. The emancipation art specifies forty-five hours as the number which he shall work weekly for his master. But these are now so distributed as to occupy tho 466 NEGRO APPRENTICESHIP. whole of Friday, and even in some cases to trench upon Saturday too. The planter also counts those hours invariably from the time when the Negro, having arrived at the place of work, begins his labour. But as it constantly happens that some at least of the Negroes on an estate have several miles to walk from their cottages, all the time thus consumed in going and returning is wholly lost to the Negro. Nay, it is lost to the master as well as the apprentice, and so long as he is not compelled to reckon it in the statutory allowance, it will continue a loss to both parties. For as no reason whatever can be assigned why the Negro huts should be on the frontier of the plantation, only make the time, frequently as much at present as three or four hours a day, consumed in going and returning, count for part of the forty-five hours a week, and I'll answer for it, all the Negroes will be provided with cottages near the place of their toil. I come now to the great point of the Justice administered to the peo- ple of colour. And here let me remind your lordships how little that deserves the name of juctice, which is administered wholly by one class, and that the dominant class, in a society composed of two races wholly distinct in origin and descent, whom the recollection of wrongs and sufferings has kept still more widely apart, and taught scarcely to regard each other as brethren of the same species. All judicial offices are filled by those whose feelings, passions, and interests are constantly giving them a bias towards one, and from the other, of the parties directly appearing before the judgment-seat. If to a great extent this is an unavoidable evil, surely you are bound, by every means possible, to prevent its receiving any unnecessary aggravation. Yet we do aggravate it by appointing to the place of Puisne Judge natives of the Colonies, and proprietors of estates. From the same privileged class are taken all who compose the juries, both in criminal and in civil cases, to assess damages for injuries done by whites to blacks to find bills of indictment for crimes committed upon the latter class to try those whom the Grand Jury presents to try Negroes charged with offences by their masters. Nay, all magistrates, gaolers, turnkeys all concerned in working every part of the apparatus of jurisprudence, executive as well as administrative, are of one tribe alone. What is the consequence? It is proverbial that no bills are found for maltreat- ment, how gross soever, of the Negroes. Six were preferred by a humane individual at one assize, and all flung out. Some were for manslaughter, others for murder. Assize after assize presents the same result. A wager was on one occasion offered, that not a single bill would be found that assize, and nobody was found to take it; pru- dent was the refusal proved by the result: for all the bills were ignored, without any exception. Now, your lordships will observe that in no one case could any evidence have been examined by those Grand Juries, except against the prisoner. In cases of murder sworn to, as plainly as the shining of the sun at noonday tide, by witness after witness still they said, "No Bill." Nay, they sometimes said so when only part of the witnesses for the prosecution had been heard, and refused to examine the others that were tendered. NEGRO APPRENTICESHIP. 467 The punishments inflicted are of monstrous severity. The law is wickedly harsh; its execution is committed to hands that exasperate that cruelty. Fur the vague, undefinable offence of insolence, thirty- nine lashes; the same number for carrying a knife in the pocket; for cutting the shoot of a cane-plant, fifty lashes, or three months imprison- ment in that most loathsome of all dungeons, a West Indian gaol. There seems to have prevailed at all times among the lawgivers of the Slave Colonies a feeling, of which 1 grieve to say, those of the mother country have partaken; that there is something in the nature of a slave something in the disposition of the African race something in the habits of those hapless victims of our crimes, our cruelties and frauds which requires a peculiar harshness of treatment from their rulers, and makes what in other men's cases we call justice and mercy, cruelty to society and injustice to the law in theirs; inducing us to visit with the extremity of rigour in the African what if done by our own tribes would be slightly visited or not at all, as though there were in the Negro nature something so obdurate that no punishment with which they can be punished would be too severe. Prodigious, portentous injustice! As if we had a right to blame any but ourselves for whatever there may be of harsh or cunning in our slaves as if we were entitled to visit upon them that disposition, were it obdurate, those habits, were they insubordinate, those propensities, were they dishonest, (all of which I deny them to be, and every day's experience justifies my denial,) but were these charges as true as they are foully slanderous and absolutely false is it for us to treat our victims harshly for failings or for faults with which our treatment of them has cor- rupted and perverted their nature, instead of taking to ourselves the blame punishing ourselves at least with self-abasement, and atoning with deepest shame for having implanted vice in a pure soil? If some capricious despot were, in the career of ordinary tyranny, to tax his pampered fancy to produce something more monstrous, more unnatu- ral than himself; were he to graft the thorn upon the vine, or place the dove among vultures to be reared much as we might marvel at this freak of a perverted appetite, we should marvel still more if we saw tyranny exceed even its own measure of proverbial unreasonableness, and complain because the grape was not gathered from the thorn, or be- cause the dove so trained had a thirst for blood. Yet this is the unnatu- ral caprice this the injustice the gross, the foul, the outrageous, the monstrous, the incredible injustice of which we are daily and hourly guilty towards the whole of the ill-fated African race! My lords, we fill up the measure of this injustice by executing laws wickedly conceived, in a yet more atrocious spirit of cruelty. Our whole punishments smell of blood. Lest the treadmill stop, from the weary limbs and exhausted frame of the sufferers no longer having the power to press it down the requisite number of turns in a minute the lash instantly resounds through the mansion of woe! Lest the stone spread out to be broken, crumble not fast enough beneath the arms already scarred, flayed, and wealed by the whip again the scourge tears afresh the halt-healed flesh! Within the last hour before I en- 468 NEGRO APPRENTICESHIP. tered this House, I heard from an eye-witness of the fact as disgusting as it was appalling, that a leper among the prisoners was cut, to pieces by stripes with the rest. And in passing, let me here note the univer- sal but cruel practice of placing the patients stricken with infectious diseases in hospitals, and in prisons among others, upon almost all private estates; and the no less unjust and exclusively West Indian practice of cruelly and stingily compelling the prisoners to go out daily and find their own food, instead of the master supplying them in the gaol a refinement of harshness and meanness not, I venture to assert, ever reached by the tyrant master of the Siberian mines. But I was speaking of the public prison, and there as the leper had been scourged, so when a miserable wretch, whose legs were one mass of ulcerated flesh from former inflictions, gave some offence to his task-masters, he was on those limbs mangled anew by the merciless application of the lash. I have told you how the bills for murdering Negroes were sys- tematically thrown out by the Grand Juries. But you are not to imagine that bills are never found by those just men, even bills against Whites. A person of this cast had, unable to bridle his indignation, roused by the hideous spectacle I have described (so disgusting, but that all other feelings are lost in pity for the victim, and rage against his oppressor,) repaired to the Governor, and informed him of what he had witnessed. Immediately the Grand Jury, instead of acknowledg- ing his humane, and, in a slave colony, his gallant conduct, found a bill against him, and presented him as a nuisance! My lords, I have had my attention directed within the last two hours to the new mass of papers laid on our table from the West Indies. The bulk I am averse to break; but a sample I have culled of its hateful contents. Eleven females were punished by severe flog- ging and then put on the treadmill, where they were compelled to ply until exhausted nature could endure no more. When faint, and about to fall off, they were suspended by the arms in a manner that has been described to me by a most respectable eye-witness of similar scenes, but not so suspended as that the mechanism could revolve clear of their persons; for the wheels at each turn bruised and galled their legs, till their sufferings had reached the pitch when life can no longer even glimmer in the socket of the weary frame. In the course of a few days these wretched beings languished, to use the language of our law that law which is thus so constantly and systematically violated and "languishing died." Ask you if crimes like these, murderous in their legal nature as well as frightful in their aspect, passed unnoticed if inquiry was neglected to be made respecting these deaths in a prison! No such thing! The forms of justice were on this head peremptory, even in the West Indies and those forms, the handmaids of justice, were present, though their sacred mistress was far away. The coroner duly attended his jury was regularly impannelled eleven inquisitions were made in order and eleven verdicts returned. Murder! manslaughter! misdemeanour! miscon- duct! No but " Died by the visitation of God!" Died by the visi- tationofGod! A lie! a perjury! a blasphemy! The visitation of NEGRO APPRENTICESHIP. 469 God! Yes, for it is among the most awful of those visitations by which the inscrutable purposes of his will are mysteriously accom- plished, that he sometimes arms the wicked with power to oppress the guiltless; and if there beany visitation more dreadful than another any which more tries the faith and vexes the reason of erring mortals, it is when Heaven showers down upon the earth the plague not of scorpions, or pestilence, or famine, or war but of unjust judges and perjured jurors wretches who pervert the law to wreak their per- sonal vengeance or compass their sordid ends, forswearing themselves on the Gospels of God, to the end that injustice may prevail, and the innocent be destroyed! Sed nos immensum spatiis confecimus nequor, Et jam tempus equum fumantia solvere colla. I hasten to a close. There remains little to add. It is, my lords, with a view to prevent such enormities as I have feebly pictured be- fore you, to correct the administration of justice, to secure the com- forts of the Negroes, to restrain the cruelty of the tormentors, to amend the discipline of the prisons, to arm the governors with local authority over the police; it is with these views that I have formed the first five of the resolutions now upon your table, intending they should take effect during the very short interval of a few months which must elapse before the sixth shall give complete liberty to the slave. I en- tirely concur in the observation of Mr. Burke, repeated and more happily expressed by Mr. Canning, that the masters of slaves are not to be trusted with making laws upon slavery; that nothing they do is ever found effectual; and that if by some miracle they ever chance to enact a wholesome regulation, it is always found to want what Mr. Burke calls " the executory principle;" it fails to execute itself. But experience has shown that when the lawgivers of the colonies find you are firmly determined to do your duty, they anticipate you by doing theirs. Thus, when you announced the bill for amending the emancipation act, they outstript you in Jamaica, and passed theirs before yours could reach them. Let then your resolutions only show you to be in good earnest now, and I have no doubt a corresponding disposition will be evinced on the other side of the Atlantic. These improvements are, however, only to be regarded as temporary expe- dients as mere palliatives of an enormous mischief, for which the only effectual remedy is that complete emancipation which 1 have de- monstrated by the unerring and incontrovertible evidence of facts, as well as the clearest deductions of reason, to be safe and practicable, and therefore proved to be our imperative duly at once to proclaim. From the instant that glad sound is wafted across the ocean, what a blessed change begins; what an enchanting prospect unfolds itself! The African, placed on the same footing with other men, becomes in reality our fellow-citizen to our fecliims, as well as in his own na- ture our equal, our brother. No difference of origin or of colour can now prevail to keep the two castes apart. The Negro, master of his own labour, only induced to lend his assistance if you make it his VOL. i. 40 470 NEGRO APPRENTICESHIP. interest to help you, yet that aid being absolutely necessary to pre- serve your existence, becomes an essential portion of the community, nay, the very portion upon which the whole must lean for support. This ensures him all his rights; this makes it not only no longer pos- sible to keep him in thraldom, but places him in a complete and inti- mate union with the whole mass of colonial society. Where the driver and the gaoler once bore sway, the lash resounds no more; nor does the clank of the chain any more fall upon the troubled ear; the fetter has ceased to gall the vexed limb, and the very mark disappears which for a while it had left. All races and colours run together the same glorious race of improvement. Peace unbroken, harmony un- interrupted, calm unruffled, reigns in mansion and in field in the busy street, and the fertile valley, where nature, with the lavish hand she extends under the tropical sun, pours forth all her bounty pro- fusely, because received in the lap of cheerful industry, not extorted by hands cramped with bonds. Delightful picture of general pros- perity and social progress in all the arts of civility and refinement! But another form is near! and I may not shut my eyes to that less auspicious vision. I do not deny that danger exists I admit it not to be far distant from our path. I descry it, but not in the quarter to which West Indian eyes for ever turn. The planter, as usual, looks in the wrong direction. Averting his eyes from the real risk, he is ready to pay the price of his blindness, and rush upon his ruin. His interest tells him he is in jeopardy, but it is a false interest, and misleads him as to the nature of the risk he runs. They, who always dreaded emancipation who were alarmed at the prospect of Negro indolence who stood aghast at the vision of Negro rebellion should the chains cease to rattle, or the lash to resound through the air gathering no wisdom from the past, still persist in affrighting themselves and scaring you, with imaginary apprehensions from the transition to entire free- dom out of the present intermediate state. But that intermediate state is the very source of all their real danger; and I disguise not its magnitude from myself. You have gone too far if you stop here and go no further; you are in imminent hazard if, having loosened the fetters, you do not strike them off if, leaving them ineffectual to re- strain, you let them remain to gall, and to irritate, and to goad. Be- ware of that state, yet more unnatural than slavery itself liberty bestowed by halves the power of resistance given the inducement to submission withheld. You have let the slave taste of the cup of freedom; while intoxicated with the draught, beware how you dash the cup away from his lips. You have produced the progeny of liberty see the prodigious hazard of swathing the limbs of the gigan- tic infant you know not the might that may animate it. Have a care, I beseech you have a care, how you rouse the strength that slumbers in the sable peasant's arm! The children of Africa, under the tropical sun of the west, with the prospect of a free Negro republic in sight, will not suffer themselves to be tormented when they no longer can be controlled. The fire in St. Domingo is raging to wind- ward, its sparks are borne on the breeze, and all the Caribbean sea is NEGRO APPRENTICESHIP. 471 studded with the materials of explosion. Every tribe, every shade of the Negro race will combine from the fiery Koromantin to the peace- ful Eboe, and the ghastly shape of colonial destruction meets the astonished eye "If shape it may be called that shape has none Distinguishable in member, joint, or limb; Or substance may be called that shadow seems, For each seems either; black it stood as night, Fierce as ten furies, terrible as hell!" I turn away from the horrid vision that my eye may rest once more on the prospect of enduring empire, and peace founded upon freedom. I regard the freedom of the Negro as accomplished and sure. Why? because it is his right because he has shown himself fit for it; because a pretext, or a shadow of a pretext, can no longer be devised for with- holding that right from its possessor. I know that all men at this day take a part in the question, and they will no longer bear to be imposed upon, now they are well informed. My reliance is firm and unflinch- ing upon the great change which I have witnessed the education of the people, unfettered by party or by sect witnessed from the begin- ning of its progress, I may say from the hour of its birth. Yes! It was not for a humble man like me to assist at royal births with the illus- trious Prince who condescended to grace the pageant of this opening session, or the great captain and statesman in whose presence I am now proud to speak. But with that illustrious Prince, and with the father of the Queen, I assisted at that other birth, more conspicuous still. With them, and with the head of the House of Russell, incom- parably more illustrious in my eyes, I watched over its cradle I marked its growth I rejoiced in its strength I witnessed its maturity; I have been spared to see it ascend the very height of supreme power; directing the councils of state; accelerating every great improvement; uniting itself with every good work; propping all useful institutions; extirpating abuses in all our institutions; passing the bounds of our European dominion, and in the New World, as in the Old, proclaim- ing that freedom is the birthright of man that distinction of colour gives no title to oppression that the chains now loosened must be struck off, and even the marks they have left effaced proclaiming this by the same eternal law of our nature which makes nations the masters of their own destiny, and which in Europe has caused every tyrant's throne to quake! Hut they need feel no alarm at the progress of light who defend a limited monarchy and support popular institu- tions who place their chiefest pride not in ruling over slaves, be (hey white or be they black, not in protecting the oppressor, but in wearing a constitutional crown, in holding the sword of justice with the hand of mercy, in being the first citizen of a country whose air is too pure for slavery to breathe, and on whose shores, if the captive's foot but touch, his fetters of themselves fall otf. To the resistless progress of this great principle I look with a confidence which nothing can shake; it makes all improvement certain; it makes all change safe which it ;472 NEGRO APPRENTICESHIP. produces; for none can be brought about unless all has been prepared in a cautious and salutary spirit. So now the fulness of time is come for at length discharging our duty to the African captive. I have de- monstrated to you that everything is ordered every previous step taken all safe, by experience shown to be safe, for the long-desired consummation. The time has come, the trial has been made, the hour is striking: you have no longer a pretext for hesitation, or fal- tering, or delay. The slave has shown, by four years' blameless be- haviour, and devotion to the pursuits of peaceful industry, that he is as fit for his freedom as any English peasant, ay or any lord whom I now address. I demand his rights; I demand his liberty without stint. In the name of justice and of law in the name of reason in the name of God, who has given you no right to work injustice; I demand that your brother be no longer trampled upon as your slave! I make my appeal to the Commons, who represent the free people of England; and I require at their hands the performance of that condition for which they paid so enormous a price that condition which all their constituents are in breathless anxiety to see fulfilled ! I appeal to this House. Hereditary judges of the first tribunal in the world to you I appeal for justice! Patrons of all the arts that humanize mankind under your protection I place humanity herself! To the merciful Sovereign of a free people I call aloud for mercy to the hundreds of thou- sands for whom half a million of her Christian sisters have cried aloud I ask that their cry may not have risen in vain. But first I turn my eye to the throne of all justice, and devoutly humbling myself before Him who is of purer eyes than to behold such vast iniquities, I implore that the curse hovering over the head of the unjust and the oppressor be averted from us that your hearts may be turned to mercy and that over all the earth His will may at length be done! SPEECH UPON THE EASTERN SLAVE TRADE. DELIVERED IN THE HOUSE OF LORDS, MARCH 6, 1838. DEDICATION. TO ARTHUR DUKE OF WELLINGTON, K. G. ETC. ETC. ETC. THE uniform candour which guides your public conduct, and so often makes you sacrifice what ordinary men would reckon fair party advantages, induces me to hope that you will listen to the earnest entreaty which I now make, that you would peruse the arguments and the statements of this speech, with the attention certainly due to the subject, though not to the speaker. If you do, I feel very confident that you will be disposed to admit that your moving the previous question upon my resolutions last night, was ill-considered; and even if you should not arrive at this conclusion, I still entertain the most sanguine hope that a further attention to the subject will incline you to support the next proposition which may be brought for- ward upon the same matter. There is hut one meaning of a previous question. It never can with propriety be moved unless when the original motion was held to be irresistible on its own merits. Consequently, no ministry ever before, within my knowledge, would con- sent to accept ot an escape from a vote of censure by a proceeding which admits their guilt or their error, and only professes an unwillingness to condemn them. Unless the truth of the resolutions was undeniable, the previous question last night could have no meaning, and my motion should have been met with a direct nega- tive. The eagerness with which the ministers caught at your offer of letting them escape, censured in substance though without a formal sentence pronounced against them, provided they would adopt and enact your plan themselves, was very remark- able. IJut this mad(! no difference in their former conduct. Nay, all the regula- tions which they can make must leave the worst parts of their whole error untouch- ed; because they cannot make laws for the coast of Africa or the settlements of foreign crowns. Hut if it is certain, nay, if it is admitted by yourself and others, that this order should not have been issued, at all events without guards and precautions, surely it was not expecting loo much to look for an expression of disapproval from I'arlia- 40* 474 EASTERN SLAVE TRADE. merit when a measure for ENCOURAGING THE SLAVE TRADE was brought before it. The character of the country and its success in all negotiations on the foreign traffic seemed imperatively to require that step. I have in this address to your grace employed not the language of panegyric, which you of all men would the most despise, but the language of truth which you know well how to value. "The treachery which deceives is as criminal as that which would dethrone you" was the memorable saying of the great French orator to a sovereign* who loved the treason of pleasing flattery more than the loyalty of unpalatable truth. It is a thing of the utmost importance to the honour and interest of the country, that one who stands in your pre-eminent position should upon such a question as the slave trade have his eyes opened, in order that he may be found to side with all the other great statesmen of his age. BROUGHAM. March 7, 1838. SPEECH, IP, my lords, of all the subjects that ever engaged the attention of this country, and of its Parliament, the one which I am about to broach before your lordships has been found to possess at all times the most commanding attractions; and if, after struggling in the public mind and in the chambers of the legislature through a long course of years, it at length ended in the most brilliant victory ever gained by truth for humanity and justice; I will venture to affirm that now, when we had been fain to hope the battle was won, the doom of the slave trade pronounced by the universal voice of mankind, and the state of slavery itself condemned the only question being as to the precise moment for executing the sentence the question of the traffic will be found to have lost nothing of its pristine and enduring interest, but that the attention of the world will be arrested, and the feelings of mankind be around in greater excess than ever, by the new ingredient mingled in the cup of bitter disappointment at finding our hopes still so far from realized and marking the efforts once more making to revive that execrable traffic which all men had believed to have been for ever destroyed. For when I look at this order in council, and compare its frame, its professed object, its inevitable consequences, with everything that the history of the past has taught us of the slave trade, I am compelled to express the bitterness of the anguish which fills my bosom on reflecting that towards the middle of the nineteenth century, full fifty years after that monstrous iniquity was dragged into the light of public discussion, and thirty years after we believed it ex- * Massillon "La perfidie qui vous trompe cst aussi criminelle que celle qui vous de- troneroit." EASTERN SLAVE TRADE. 475 tirpated from the British world, I am actually standing here to grapple with a measure which all but professes to plant it anew, and of neces- sity must have the effect of extending its range to coasts which hitherto it had spared. But in thus coming forward, no man can accuse me of proposing a censure against the government without giving ample warning, and affording abundant opportunity for escape or amendment. It is upwards of six weeks since I dragged to light this reluctant act of council I say reluctant because though passed in July last, not the least intimation of its existence was ever given, by publication in the Gazette, the ordinary repertory of much less important proceedings of state. I am told, indeed, that it is the practice not to publish such orders but I am sure it is a course " more honoured in the breach than in the observance." For when we consider that such orders, framed in private by the minister, make the law of the crown colonies as absolutely as the law of England is made by the enactments, the open and public enactments, of King, Lords, and Commons, surely it is not too much to desire that those resolutions of the executive govern- ment, thus private in their adoption, and, it may be, little considered before made, should not be consigned at once to the council books, where they can only be accessible to the clerks, but should be pro- mulged to the whole people whose interests they concern, whose con- duct they govern. When I denounced this order, I stated shortly but distinctly my reasons for condemning it; I showed in some detail how it must work; I referred to the former history of slave trading to illus- trate my meaning; and believing, or willing to believe, that it had been issued through inattention, or negligence, or indolence, or igno- rance of the subject, I said, " Let it only be withdrawn, and I shall never again advert to the subject in any way nor comment upon the issuing it nor in any manner make it the subject of observation." I have waited since then, anxiously looking for its recall; but I find my not unfriendly suggestion was thrown away, and that the measure is persisted in, maintained, defended, by its authors. No man, then, can accuse me of having stood by while mischief was brewing, and only spoken out after it was done. No man can, without the most indecent disregard of truth, charge me here with crying, " I warned you," when the event is o'er. And yet I have seen, what on no other evidence than the testimony of my own senses I could have believed, this charge made against me when it was just as false as it would be now. I have been vilely, impudently, most falsely aspersed for stand- ing by and saying nothing on the great Canada question charged in the records of the government press, with being like Juggling friends, who never spoke before, Hut cry, " I warned you," when the event is o'er. Incredible but true! I have often heard it disputed among critics which of all quotations was the most appropriate the most closely 476 EASTERN SLAVE TRADE. applicable to the subject-matter illustrated; and the palm is generally awarded to that which applied to Dr. Franklin the line in Claudian, " Eripuit fulmen coelo, mox sceptra tyrannis," yet still there is a difference of opinion, and even that citation, admi- rably close as it is, has rivals. But who has hit upon the most inap- plicable quotation, no critic will hereafter presume to doubt. The government scribe must be allowed by universal consent to bear away the palm of inaptness and falsehood from all his rivals in the art of false quoting as of fabrication. So far from standing by till after the event, I addressed your lordships and the government as long ago as March last, and afterwards warned them, with full reasons, and in much detail, both in my place and in an elaborate protest, which yet stands on your journals to record the warning my voice had given. So far from waiting till the event justified my warning, and then cry- ing, " I warned you," I never even said so never once, that I can recollect, taunted them with having neglected my warning voice after the rebellion broke out of which I had bidden them to beware. If, then, I now say that I do not expect any one will have the effrontery to bring a similar charge on this occasion, it is riot because as great effrontery has not been displayed before, but because such audacity can hardly be repeated a second time by any one at so short an inter- val after a former exposure to the indignation and scorn of the world, under which, unless all feeling be extinct, its author must now be writhing. I must now begin by shortly restating what I six weeks ago said of the nature and import of this order in council. An order of March 1837 had sanctioned the ordinance made by the Court of Policy in Guiana, with the intention of confining the period of apprenticeship to three years. In July, representations were made by some planters, that if this term were not extended to five years, no man could possi- bly bring any labourers into the colony. No cargoes of human beings could be imported to share the lot of the half-freed slaves, by becoming indentured apprentices, if they could only be bound for three years. The papers on your table give both the memorials of the planters, and the statement of the colonial department, that with the request of the memorialists they had complied, and for the reasons assigned in the memorial. My noble friend* says, in so many words, when an- nouncing to the governor of Guiana the change made in the former ordinance, that it was made because without it the importer of such cargoes of apprentices would not find it worth his while to carry on the traffic, and that no apprentices could be brought from the east. It was therefore avowedly for the express purpose, and with the delibe- rate intention of facilitating, of encouraging, of stimulating this traffic, that the law was thus changed. It was with the view of enabling those to carry on the traffic who otherwise could not do so, that the * Lord Glenelg. EASTERN SLAVE TRADE. 477 order was framed and issued, being, I think, about the first after the Queen's accession. This is the account given by the ministers them- selves of their own conduct and of its motives. With their eyes open, in league with the planters, and to give every facility for the importa- tion of apprentices into Guiana, they adopted this measure. It is easy indeed for them and their West Indian confederates to speak in soft language of bringing over free men of introducing labourers of in- creasing the number of hands employed of enabling the owners of estates to find workmen as they wanted them. But 1 will tear away all these flimsy disguises I will show you what it is that lurks under these fair words I will demonstrate to you, and by facts rather than by mere arguments, what is distinctly felt and loudly proclaimed by every one of those whose acquaintance with the slave trade is the most enlarged and the most minute, who have for half a century and more been occupied in tracing it through all its forms, and pursuing it in each disguise which it unceasingly assumes that nothing but slave trading is, and that nothing but slave trading can be, the meaning and the result of all that is thus doing. And for this purpose 1 must first desire your lordships to accompany me while I cast a retrospective glance over the sad history of that dread- ful commerce, and to mark with me its origin and its progress in va- rious parts of the globe. The task I know is painful: for we are going to contemplate by far the blackest page in the annals of our race. When the great satirist of England described our species, reduced by his sarcastic fancy to a diminutive stature, as the most vile, cunning, cruel, and detestable vermin that nature had suffered to crawl on and to infest the face of the earth he was held to have presented an ex- aggerated picture of human vices, by those who remembered that he only professed to draw it from the court and the camp the perfidies of politicians and the cruelties of soldiers. But if he had thrown into the canvass the crimes of sordid avarice, combining in one all the frauds that distinguish the one class with all the heartless cruelty ascribed to the other; if he had darkened his picture with that worst of all the monstrous births which that execrable vice has ever engen- dered if his page had not only been disfigured with the details of the wholesale cunning, and heartless ingratitude, and mean trickery, that shine in the statesman's life, and the reckless and desperate feats that mark the course of the warrior with blood, but been tinged with the far deeper dye, of the African slave trade, combining within itself all the most infernal lineaments of human guilt no tongue ever could have complained of the exaggerated terms which Swift has employed, and all would have confessed that the fidelity of truth had been the guide, and not the gall of misanthropy the distiltment of his pen. It seems strange that a traffic of all others the most unnatural and the most revolting to our feelings should nevertheless be found in every age and nation a practice among men. as if a propensity to it were in- herent in the human constitution. Whether it be from the innate thirst of gain, or the irrepressible love of dominion, or the deep-rooted selfishness of our nature, anxious to save our own toil at another's 478 EASTERN SLAVE TRADE. expense certain it is that a traffic in the persons, liberties, labours, and lives of our fellow-men, is to be found in one age or another of society wherever men have existed. In the most savage state the fruit of war is slavery, and captives become the property of the con- querors, to be used and to be transferred and dealt in at his pleasure. In the islands discovered by our illustrious navigator, and nnvisited before by the foot of civilized man, slavery was found in various forms, sometimes in the state of absolute bondage, sometimes of qualified vas- salage, resembling our indentured apprenticeship; and for a limited period of time as well as for life. Slavery, and a constant traffic in slaves polluted the most refined states of antiquity; and in the days when this Island formed but a remote and barbarous member of the Roman world, our coasts were ravaged by the heathen slave trade, as those of Africa are laid waste by the Christian commerce. Bristol, by a singular coincidence, since the great emporium of the African trade, and a principal wrong-doer in the modern enormity, was in ancient times a great emporium of the Roman slave traffic, and a vic- tim of the crimes she afterwards imitated in the days of her civility and refinement. The feudal times in the western world were familiar with slavery and slave dealing in all its forms. Every kind of bondage was then known. There was the villein in gross, liable to be pos- sessed and to be dealt in as a beast or any other chattel the villein regardant, native, or ascriptus glebas, who could not be removed from the place of his birth, but belonged to the land and to its owner. The slave under a contract affixing terms and time, was also the growth of the same system which made so little of human rights and feelings, and gave to mere force so much dominion. The state of hired slavery and of apprenticeship, or a mitigated slavery, arising out of contract and for a consideration, whether of hire or of being taught some trade, was a genuine produce of feudality and its servile tenures and oppres- sive practices. In the East the history of our race presents the same features, ex- cepting that the mild influence of Christianity was there wanting, and the perpetration of similar crimes was less inexcusable. To supply those countries with slaves, the centre of Africa was traversed by cara- vans, which carried her children into the more wealthy and civilized regions of Asia. But the life of domestic slaves mitigated the lot of those captives living in the houses of their masters, and sharing in their comforts little exposed to extremes of climate hardly ever doomed to severe toil often admitted to confidential stations not unfrequently rising to even high employment they tasted as little of the bitterness of slavery as is compatible with the mildest form of that always bitter cup. But an event now happened which gave to slavery an aspect far more hideous than it had ever before worn even in the most barbarous regions, and in the darkest times. For then succeeded things the record of which tinges with its deepest shades the darkest page in the history of man; and yet that page was next to the most brilliant by far of the eventful volume. As if to bring down Spain from the summit of glory to which her fame had been EASTERN SLAVE TRADE. 479 elevated by the daring genius of Columbus, she plunged into an abyss of crimes, and mingling all perfidy with all cruelty, the sordid thirst for gold with the inhuman appetite for blood, enacted such scenes as have called down upon the Spanish name the reprobation of the world, and as the just execration of centuries has left still inadequately con- demned. The simple, unoffending Indians were seized upon, dis- tributed in lots like cattle, like cattle worked, but not spared like cattle; for they were worked to death by their hard task-masters exacting far more than their feeble frames could sustain. Nor was it till the total extirpation of their race approached, and there seemed reason to fear that the field could no longer be tilled nor the mine explored to allay the fierceness of Spanish avarice, that a thought was given to their sufferings, or the means sought for their relief. The substitution of African for Indian labourers was the expedient resorted to by an un- natural union between short-sighted philanthropy and clear-sighted interest; and out of this union was engendered, and under this appel- lation was cloaked, the monster which we have since learned to loathe and detest as the African Slave Trade. The course taken then, at the beginning of the sixteenth century, was the same with that which in this country was pursued last year. Memorials were presented to the Colonial-office in the Down ing-street of Madrid; representations were made that the decrease of the Indians had begotten apprehensions of the hands no longer sufficing for the work of the West Indian estates; the necessity was urged of introducing into the West labourers from the East, (as the process was termed in either case,) and the facilities were asked, which government alone could give, to favour this impor- tant operation, on which it was alleged the fortunes of the planters, and the fate of the Colonial empire depended. I might easily, from these papers before you, cull out the very expressions used in the cor- respondence between the parties at Madrid. In neither the sixteenth century nor the nineteenth, were the terms of slave trading, or anything equivalent, employed: but in boih instances it was the supply of hands, the introduction of labourers, the encouragement of emigrants, the obtaining of workmen phrases which dance through these dispatches in various collocation, and in apparently innocent array. To this scheme a man lent himself whose name will descend to the latest ages as a pattern of persevering and disinterested benevolence, and a monu- ment of its uselessiiess, nay, its mischiefs, if the good will only exist, and is not under the control of sound reason; a lasting proof, that, to serve mankind, the act must keep pace with the intention. Rtitholo- mew de Las Casas was that ill-judging and well-meaning philanthro- pist, who, having devoted his blameless life to mitigating the sufferings of the Indian, could see nothing but clnrity and kindness in relieving him, by substituting the hardier African in his stead; and he joined with the planters in the application to the Colonial Secretary of the day, for so the Prime Minister of Spam may well be called, as Ameri- can affairs formed the hulk of his administration. Hut in Cardinal Ximeiies they found a statesman of equal humanity and wisdom; he agreed with the benevolent "1'rotector of the Indians," in desiring to 480, EASTERN SLAVE TRADE. relieve that injured race, but he said that he understood not the left- handed, one-eyed philanthropy which would take the burthen from the shoulders of one people to lay it still more heavily on those of anolhcr; and that the speculation in African labourers should receive no aid from him. This sagacious statesman, however, was now in the extremity of old age; on his death the young Emperor took the helm of government into his own hands; ignorant of Colonial affairs, and surrounded by Flemish counsellors, who knew no better, he listened to the plans of the speculators; he granted a patent for the yearly introduction of 4000 Negroes, and thus laid the foundation of that regular slave traffic which had before only occasionally and on a very trifling scale been driven by a few Portuguese settled in the Bra- zils. Thus was established that infernal policy which for above three centuries has been the scourge of Africa. After it had desolated that unhappy continent for many ages, by the blackest crimes ever com- mitted systema.tically by men, there happily arose in this our country a man, who, to the pure benevolence, the pious zeal, the inextinguish- able love of his fellow-creatures, the indomitable perseverance of Las Casas, united the only merit which was wanting in his character, a strict love of justice and a sound judgment, the guide of his principles and his conduct. Need I name him whose venerable form already stands before you even in my feeble picture? Thomas Clarkson yet lives, till lately happy in the reflection that he first brought to light the horrors of the African traffic, but now tasting, with all the surviving friends of the Abolition, the bitter mortification of finding that their labours are to begin again, since the government has become the patron of a new slave trade; and there is, I tell you plainly, but one opinion and one feeling pervading every place where an Abolitionist is to be found, and that is the opinion and the feeling which all have urged me to lose not a moment in expressing to your lordships. With Thomas Clarkson, and with his early associate, the learned, pious, and truly humane Granville Sharpe, was joined soon after another and their most powerful fellow-labourer, Mr. Wilberforce, whose name will be revered as long as wisdom and eloquence attract the admira- tion, or virtue and piety command the love of mankind. He it was who brought the slave trade before Parliament for trial. And now let us attend for a moment to the way in which the traffic was defended, because we shall find the self-same topics adduced, nay, and the same language used, as are now employed to defend the present measure. The slave trader took high ground. He was not to be cowed by the big words of the philanthropists; he would not be put down by sense- less clamour, or silenced by the cry of mistaken humanity. The threats of the Abolitionists should not drive him from his honest occupation, nor the calumnies of his adversaries destroy an important branch of trade which (and here I blush to say he did speak the truth,) the legislature had sanctioned, and even encouraged. He would show that the African was happier by far in the West Indies than at home; that he was not stolen and carried over by force, but rescued from murder, or, if not, from a more cruel slavery in Africa; and that this EASTERN SLAVE TRADE. 481 great branch of commerce, this importation of labourers, as it was called, both in 17SS and 1838, proved no less beneficial to the continent they were drawn from, than to the islands they were brought to culti- vate. Thus General Tarleton asserted that the Africans themselves had no objection to the slave trade complained that people were led away by a mistaken humanity affirmed that the greatest misrepre- sentations were abroad denied the miseries of the middle passage, in which he said only five in a hundred died, while ten and a half per cent, perished of our regiments on board of West Indian transports; and cited, in proof of the happiness and comfort of the Negro slave exceeding that of the English peasant, the authority of a governor, two admirals, one captain, and a commodore all naval officers being, through the whole controversy, friendly to the slave trade, and wil- ling witnesses to the blessings of Negro slavery in the West Indies; as military men, who saw far more of those blessings, were generally observed to take the opposite side of the question. The report of General Tarleton's speech I take from the Parliamentary History for 1791; but Sir William Young's, which follows, bears internal evidence of having proceeded from his own pen, for I am very sure no reporter in modern times ever used the words "hath" and "doth," as this account of the worthy Baronet's speech does throughout. " Far be it from me," says he, " to defend a traffic in human beings." But then he did not regard the African commerce at all in that light. He denied that a system of kidnapping supplied the slaves. They were captives in war, or they sold themselves into bondage, or were men who must perish in a famine, or be murdered by wholesale at the funeral of their chiefs, but for the tender mercies of the Liverpool trader, who rescued them from hunger or the sword. Then to cultivate the colonies with- out this trade, was wholly impossible; the decrease was 2 or 2$ per cent, a year in the slave population, the same proportion as I find now given in the papers before us; but in one colony especially, this neces- sity is so strongly represented, says Sir William, that he who runs may read. And what colony, think your lordships, is that whose cry for more hands new workmen a supply of labourers from the East went up so loudly half a century ago? Why the very Colony of Guiana, upon whose demand and for whose use the present Order in Council is framed! But there is this difference, that in 1791 Africa alone was required to supply the wants of Guiana; whereas we are now extend- ing the drain to all the territories within the East India Company's charter. General Phipps and others contended that all Africans were slaves; that the traffic was supplied in almost every instance volunta- rily, not by kidnapping; and that the Negro was far better off in our islands than in his own country. It never struck these advocates of crime that the poor African, who had never seen the ocean, could by po possibility form an idea of the suffering he was about to endure, or the scenes into which he was to be conveyed; and that to give him any such notions would have been as difficult as to make him com- prehend the transactions of another planet. Memorable were the words of Mr. Pitt; memorable the sudden reply with which he swept VOL. i. \ I 482 EASTERN SLAVE TRADE. all those sophistries away! Would that his awful voice could now sound them in his successor's ears! Would to God that he were still among us to make these walls echo the language of his indignation, and chase away at once and for ever the miserable pretences, the shadows of an excuse urged for these abominable proceedings! "Alas! alas!" said that great man, "you make human beings the subjects of your commerce, as if they were merchandise, and you refuse them the benefit of the great law which governs all commercial dealings that the supply must ever adapt itself to the demand." But on the slave traders all appeals to reason or to feeling were thrown away. The very next time that the subject was brought before Parliament, we find them reiterating their assertions, that no wars and no kidnappings were caused by the trade, and their contrasts of West Indian happi- ness with African distress. Alderman Brook Watson, representing the great city of London, was heard to avow, that were humanity con- cerned in the abolition, he should at once support the measure, but it was all the other way the Negro being removed from a worse to a better state. Your lordships will give me credit for not adverting to a topic urged, hardly to an expression used in these memorable debates for the support of the slave trade, to which a match may not be found in the papers before you upon the proposed Guiana importation. The worthy magistrate's comparison is paralleled by a similar contrast in the papers, between the state of the Coolies in Asia, and after their removal to the Mauritius. The alderman, too, like my noble friend* and his West Indian allies, had no kind of objection to regulate the trade. No one who defended it ever had. From 1788 to the period of its extinction, I never yet found one, either of those engaged in it, or of those who defended it, make the least objection to put it under as many regulations as the wit of man could devise. And why? Because these men knew, what we too know as to the new traffic sanctioned by government, that all regulations must of necessity fail and go for nothing that all efforts to prevent the abuses with which it is inseparably connected, of cruelty and fraud, both in procuring and in conveying, and in employing the slaves or apprentices, must infallibly fail, if the regulations were de- vised by the wisdom of an angel. But again, they said in 17.91, as they say now "You need not be disturbed as to treatment on the voyage; trust to men's interests if you won't confide in their honesty and humanity" and surely, said Lord Penryn, then member for Liverpool, it is the trader's interest to carry over as many Negroes in a healthy state as possible. Such was the reasoning by which we were argued out of a belief even in the horrors of the middle passage; such the grounds on which were denied all the atrocities the torments the murders of which the slave-ship is universally the scene and on which those men expected to make the world reject the frightful history of those prodigious crimes, as the fabrications of calumny, or the creatures of a distempered imagination. I shall presently show * Lord Glenelg. EASTERN SLAVE TRADE. 483 you that already the new traffic encouraged by onr government, and incapable of being driven at all without its help, has led to scenes of nearly the same description, which before long will almost equal the horrors of the middle passage itself. The same advocates of the traffic have recorded their defence of slavery and slave trading in their works. I have this morning refreshed my recollection of Sir William Young's writings, by reading his West Indian Tour, undertaken immediately after the debate of which I have given you an abstract. In St. Vincent's, he says to a friend, the day of his landing, that far from the slaves being an oppressed race, the proudest human being he ever beheld was a Negro woman. After passing the winter months there, he exclaims, " All you know in England of jolly Christmas falls very far short of the Negro's three days' Christinas in this Island." He visits a slave ship just arrived, and vows he can see nothing unpleasant belonging to it. The slaves laughed and joked with him, he says, like a Davus of Terence. In- deed he is fond of adorning the West Indies with classical allusions, having himself written a very poor history of Athens. The squares and streets remind him of the Forum and great ways of old Rome, with groups of slaves here and there. He goes to Antigua, and there the slaves dance with more spirit and grace than the most fashionable circles in England. In Tobago it is still the same happy scene. " The Negroes seem treated like the planter's favourite children." I dare to say in one respect the love of the parent was conspicuous enough, I mean in not sparing the rod. Such were the pictures of slavery comforts, of Negro happiness, with which the patience of the country was worn out. and the reason of Parliament beguiled for many a long year; and such the arguments by which men were persuaded that there was something wholly un- reasonable in the objections we were always urging against wholesale robbery and cruelty and murder. Nevertheless, our strange and para- doxical opinions daily gained ground. The carrying over 70 or 80,000 human beings from their own country to labour in America, of whom above 15.000 were brought to our settlements, began to be universally reprobated. Men came to feel that such a traffic could no longer bo suffered, whether the objects of it were termed labourers or appren- tices, or more fairly and honestly slaves. We were no longer described as visionaries and theorists. Our statements were no more regarded as fictions or calumnies; and at length, in spite of every attempt to ward of!' the blow, the doom of the traffic was pronounced to the immortal honour of thn Cabinet of IfiOO, with which it may soem unaccountable, but is yet true, that some of the present government were closely connected. Lord Grey, in concert with Mr. Wilberforco, brought in the Abolition Hill and thus performed what I really think, and I believe my noble and most valued friend himself considers, the most glorious act of his long, useful, and brilliant public life. It was passed by the greatest majority ever known on a great measure long the subject of controversy. The Commons, by sixteen to one, .sealed the fate of the slave trade. 484 EASTERN SLAVE TRADE. The predictions of the planters that the Negroes must decrease con- tinued to haunt them for some years, and various schemes were pro- posed for keeping up the numbers of labourers. This led Mr. Barham in 181 1 to propose the introduction of free labourers from Asia, and his motion forms the next event of importance in this history. He was one of the very best masters and most successful planters in An- tigua; and his proposal was rested wholly upon motives of kindness towards the slaves. These being, as he thought, reduced in numbers while there was the same work to perform, in consequence of the embarrassments of West Indian property not permitting the produce to be diminished which went to satisfy creditors, there seemed reason to apprehend the effects of the Negro labour being so much increased. The reception of this plan in Parliament was very remarkable. Mr. Anthony Browne, then and now the respectable agent for Antigua, cautioned the House against being led astray by its feelings in behalf of the slaves, to sanction an impracticable and visionary scheme. 13 ut Mr. Stephen gave it his decided opposition upon higher grounds. Now, than Mr. Stephen's, there can no higher authority be cited on slavery and slave trading, and everything connected with these sub- jects. He had long made them his study; he had been at all times the zealous co-operator with his friend and brother-in-law, Mr. Wil- berforce, in the Abolition committee; he had passed the best years of his life in a slave colony, St. Kitts; and since his return to Europe, he had never ceased to watch over every branch of the great questions connected with West Indian affairs. His resistance to the proposition of introducing free labourers into the colonies, as it was called then and is called now, was grounded upon the injuries thus certain to be inflicted upon the people whom it was proposed to transport from. Asia; and Mr. Huskisson adopting the same views, opposed the pro- ject upon the same grounds. An accident prevented Mr. Canning from attending this debate, as absence from town upon the circuit kept me also away from it. I felt exceedingly anxious when the subject was announced, and when I saw that eminent person after the com- mittee had been appointed, I found he viewed the subject in the same light with Mr. Stephen and myself. No, no, said he it is enough to have desolated Africa, without introducing this pest into Asia too. The next circumstance to which we must look in pursuing this his- torical retrospect, is the traffic which for some years has been going on between India arid the Mauritius; for it is to the alleged success of this experiment that we are desired to look by the patrons of the new scheme the government and the Guiana planters. I own that I re- gard whatever relates to the Mauritius with extreme jealousy in all slave questions. There is no quarter of the globe where more gross abuses have been practised nay, more flagrant violations of the law, from the eager appetite for new hands which the fertile land excites in the uncleared districts of that island. It was in 1811 that I had the happiness of passing the act through Parliament, declaring slave trading to be a felony, and awarding to it the punishment of transpor- tation. Some years after it was made capital. Yet in spite of this EASTERN SLAVE TRADE. 485 penal sanction, the Mauritius planters were audacious enough to in- troduce, by slave traffic, so many Africans, that Sir George Murray, when secretary for the colonies some time back, admitted twenty-five thousand at least to have been thus brought thither from the coasts of Africa. No less than twenty-five thousand capital felonies had thus been perpetrated in the course of a few years by those sordid and greedy speculators. The position of the island is singularly adapted for carrying on this detested commerce. Near the continent, and near that part of it where we have no settlement, and keep hardly any cruisers, no effective check upon such operations can ever be main- tained, if the authorities in the island itself do not exercise the most vigilant attention; and there is but too much reason to suspect, from what came out in Mr. Buxton's committee, that instead of watching, they connived at one time, while some high in office encouraged the offenders, and even partook in the fruits of their crimes. Doubtless, if the Guiana order in council is suffered to subsist, a like privilege will be extended to this island. But in either case the African coast is under the operation of this new traffic. That order comprehends it in terms the most distinct. Nor does it only open the trade to " them that sail Beyond the Cape of Hope, and now are past Mosambique" It stretches along Sofala, and to Guardafui and Arabia comprising all the Asian Islands "Ceylon and Timor, Ternate and Cadore." It then includes the whole coast of India, and all the regions of that vast domain, stretching " O'er hills where flocks do feed, beyond the springs Of Ganges and Hydaspes, Indian streams/' All those plains and mountains all those ports, and bays, and creeks long lines of sea-beach without a fort, or a witness, a magistrate to control, or an eye to see what is done from Madagascar to the Red Sea from the Arabian Gulf along Malabar, to Travancore, thence from Comorin to the mouths of the Ganges, and of all the unknown and unnamed streams lhat water the peninsula and flow into the In- dian Ocean. It is in such vast and such desolate regions that we are to be told this order will never be abused, and none be taken by force, nor any circumvented by fraud. When in the heart of Europe, with all men's eyes to watch him and his agents, the King of Prussia could drive his trade of a crimp, and fill his army with recruits spirited away from the banks of the Rhine populous, civilized countries, enjoying the blessings of regular government, the protection of a vigilant police, and entertaining ambassadors at the court of Berlin when thai mo- narch could, in such countries, and in the face of day, carry oil the priest at the altar, and the professor at his desk, from the countries 486 EASTERN SLAVE TRADE. on the Rhine, the Moselle, and the Oder, and these reverend and learned recruits were, for months afterwards, found carrying his fire- locks, and serving in his ranks how can the folly be sufficiently de- rided which represents it as difficult to abuse this abominable regula- tion, and make it the cover of common slave trading, in the remote desolate countries watered by the Niger, and the yet more deserted shores of eastern Africa, through which nameless rivers flow into the sea? The order was passed without a single regulation being sub- joined, either here or in the East Indies, to prevent such abuses, or to limit their amount. But to speak of regulations in such circumstances, is too absurd. What regulations can the wit of man devise which can have any effect at all? Nay, in the very places where the abuse is most likely to occur, you have not the shadow of authority to make rules. How can you legislate for the slave dealers on the eastern coast, north of the Cape? Yet there the worst branches of the old slave trade at this moment exist. I saw only yesterday a person who had been present at the capture of a Portuguese slave ship, which had sailed from the coast of Zanguebar with eight hundred Negroes on board, and lost above two hundred before she reached her port of destination in the Brazils. Let it not then be said that regulations may be devised for preventing abuse. But none have been attempted or thought of. The wretched beings, apprentices you calUhem, are to be carried without a word said specifying the tonnage regulating the space for accommodation between the decks fixing the propor- tion of water to drink, or provision to sustain life ordering medical attendance directing the course of the voyage or limiting its dura- tion. The order was issued here in July, before it could possibly be known that any law had been promulgated in Bengal for the date of the Bengal regulation was May 1, and it was sent over on the 7th of June. That regulation, too, was and still is, confined to the presi- dency of Fort William. Nay more, it is altogether silent on every one of the important particulars which I have mentioned, and merely prescribes in vague and general terms that the parties interested in disobeying it, and on whose conduct it sets no kind of watch, shall attend to the comforts of the crew and cargo. Contrast now this legislation of the Crown with the enactments of the Parliament when giving laws, I will not say in part materd, but on things incomparably less demanding legislative care, because hardly liable to any of the like abuses. A band of emigrants are about to leave their native country, and seek their fortunes in the western world. They are civilized men well acquainted with all that regards their voyage and destination generally well informed nay, com- pared with the Coolies of Bengal, or the Negroes of the Mozambique coast, I have a right to say accomplished persons. In the Thames, or the Mersey, or the Severn, the gallant ship that is to convey them forth is ready her crew on board her stores taken in her anchor a-peak her sails unfurled. Every passenger i: there, and as the favouring breeze sounds through the cordage, all are more anxious to go than the captain of the vessel to make sail. Shall she go? The EASTERN SLAVE TRADE. 487 foretop-sail dangles from the mast in token of her readiness to drop down the river, if she only may. Shall she go? No. The act of Parliament interposes. The act of Parliament says, No. The act of Parliament commands, under penalties which may not be risked, that she shall stay and be examined. " Come ashore thou captain," says the law of the land, "and show thyself worlhy to take charge of so many British subjects on the ocean. Come ashore you crew, and muster, that the equipment be seen sufficient. Come ashore thou surgeon, and prove, by the testimonials of Surgeon's Hall, the requi- site fitness to be entrusted with the health of this emigrant people!" But at least those emigrants may remain on board. They are of mature age fully aware of their own intentions well fitted to look after their own interests, and guard themselves against all fraud. They may keep in the berths where they are counting every minute an hour that is lost of the propitious wind which shall waft them to the wished-for region of all their hopes. They surely may remain in the ship. Again, the act of Parliament says, No. Still it calls aloud, " Come on shore, you emigrants, that you may be mustered, and the King's officer who marshals you examining into each man's case, may ascertain that none are carried forth against their will, and that no fraud, nor circumvention, nor delusive misrepresentation has been, practised upon any." And whence all this jealousy, this excessive care, which seems even to protect men from the consequences of their own imprudence, and almost interferes with their personal liberty in order to make their maltreatment impossible? It is because the law was framed by wise and provident men, who had well weighed the importance of throwing every obstacle in the way of sordid cunning, and had maturely calculated the hazards of deception being practised, and abuses of every kind creeping into a traffic so little in the ordinary course of human affairs as the removing masses of the people from one hemisphere to the other. It is because the laws so joalously guard the safety of the subject, that they will take every elaborate precaution to exclude even the possibility of a single person being entrapped, or inveigled, or spirited away, lost among a crowd of emi- grants, whose general information about all they are doing whose general design to go and of their own free will to go and with their eyes open to go no man who ever made these laws ever doubted for an instant. Therefore are all these regulations prescribed, with the additional penally of no less than 500 for any passenger taken on board in any place where no custom-house stands, and no officers are ready to perform the examination lest peradventure a single Knglish- mnn may by some improbable combination of accidents be kidnapped and carried, innocently or ignoranily, into a foreign land. And then comes my noble friend,* with his order in council his crown-made law to encourage the shipment not of enlightened Englishmen, but simple Hindoos and savage Africans, in distant, desert coasts, in remote creeks and bays of the sea, laid down in no charts, bearing no name, Lord Glenelg. 488 EASTERN SLAVE TRADE. at the mouth of rivers which drain unknown regions far inland, and carry down their streams the barbarous natives to an ocean which they had never beheld. Knowing the watchful care, the scrupulous and suspicious jealousy of the English law made by Parliament on all that relates to the emigration of our own civilized people knowing that the shipper would be ruined who should suffer an Englishman to embark of his own free will, and more desirous to go than he to take him, where there was no custom-house officer to watch the ope- ration my noble friend makes his colonial law with the avowed pur- pose of enabling thousands arid thousands of simple, ignorant, unci- vilized men to be taken in any speculating trader's vessel, in obscure, nameless places, where, instead of revenue establishments and public offices being stationed, the footstep of no European, save the slave trader and the crimp, ever was known to have trodden since the cre- ation. The law made by Parliament suspects all engaged in the trade of emigration, even from the city of London; and the lawgivers have framed its enactments on the assumption that abuse and offence must come. The law of the Colonial office suspect no one, even of those who navigate the Indian seas, and sweep the coasts of Southern Africa it proceeds upon the assumption that neither abuse nor offence can ever come where the temptation is the strongest, and the difficulty of pre- vention the most insurmountable. The Parliament adds regulation to regulation for securing safety, where all men's eyes are directed and nothing can be done unseen. The colonial office despises all regula- tions, and trusts the slave trader and the crimp, where no eye but his own can see, and no hand is uplifted to restrain his arm. But let us turn towards the place of destination, and see what the consequences will be of this scheme, even if nothing illegal shall be done if the most strictly correct course of conduct be pursued by every one engaged in the new traffic if nothing whatever is done but introducing a number of apprenticed labourers into the West Indies, all of whom go there knowingly and willingly. Let us see the consequences to the Negroes who are already there, who are now apprentices working partly for wages, and whose complete emanci- pation is approaching. On the first of August, 1840, as the law now stands on the first of August, 1S38, as 1 fervently hope the whole of these poor people will have the command of their own time, and the right to derive from their own labour its just reward. Then see how you are treating them! Just at the moment when their volun- tary industry should begin to benefit them, and the profits of their toil no longer belong to their masters just as they are about to earn a pittance by the sweat of their brow, wherewithal to support them- selves and their families just at that instant comes your order in council to prepare for them a competition, with crowds of labourers brought over by wholesale from the east, and able by their habits to work for little and live upon nothing. You let in upon them a supply of hands sufficient to sluice the labour-market and reduce its gains to the merest trifle, by this forced and unnatural emigration thither of men habituated all their lives to subsist upon a handful of rice and a pinch EASTERN SLAVE TRADE. 489 of pepper. Can anything be conceived more cruel and unjust? This is the avowed object of the whole proceeding. It is stated in express terms by the planters, whose representations obtained the order in council "The emancipated slaves," say they, (p. 25,) "are very likely to form combinations for the purpose of restricting the ordinary and necessary periods of labour, as well as to compel the planters to pay them wages at rates much above their means and ability to com- ply with." Do, I beseech you, my lords, let us make the case our own. Sup- pose such an experiment were tried for lowering the wages in Kent, or Essex, or Sussex, by the planters there, who are always complaining of their high rents and low profits. Suppose in that county, happy under the mild government of my noble friend,* the rumour should spread of 3000 or 4000 Coolies being expected there, men who could work for twopence and threepence a day, and be better off than in their own country that the Colonial office were petitioned by the Sussex farmers to give such facilities as were necessary to make this importation prac- ticable that the farmers were persuading the Secretary of State and his Under Secretaries, of the benefit this help must prove to the over- worked day labourers of the county and that the measures required by the speculators were about to be adopted so as to make the opera- tion feasible I won't say that the Sussex peasantry would instantly meet and mob and riot and threaten the castle of my noble friend, and the office in Downing-street; but I venture to assert that my noble friend, with a train of all his deputy lieutenants, and magistrates, and squires,and clergy, wouldspeedily darken the doors of that department, and that to issue the dreaded order would become an absolute impossi- bility. Nothing could ever make its issuing possible but itsbeing secretly agreed upon and passed without any publication in the Gazette; and as soon as its existence became known, its recall would be matter of perfect certainty. Surely, surely, the unhappy African has been treat- ed at all times as never race under the sun was suffered by Providence to be treated. All men and all things conspire to oppress him. After enduring for ages the most bitter miseries of slavery, privations un- exampled, hardships intolerable, unrequited toil, he is at last relieved from his heavy burthen, and becomes a free labourer, ready to work for wages on his own account. Straightway he is met by myriads of other labourers, not naturally belonging to the soil or climate, and habituated to the lowest hire and the scantiest and the worst suste- nance; and after having been so long kept out of the hire he earned by the bondage of his condition, he is now defrauded of it by the craft of his former master, in revenge for his tyranny being at an end. But this is the very least part of the evil inflicted by the measure; this is taking the argument on the lowest ground. Look to the inevita- ble consequences of the system upon the Eastern coast of Africa, and all our Indian dominions. The language used by its patrons and their abettors in Downing-street, is just what used to be heard in the days * The Duke of Richmond. 490 EASTERN SLAVE TRADE. of open slave trading. " We wish to bring over a number of labour- people from Asia," says one planter " We contemplate drawing a supply of labourers for our estates," say others respectable men, whom I personally know. It is " the engaging of labourers," accord- ing to the President of the Board of Control, under whose protection India is placed; while the Colonial Secretary, under whose care all our other settlements repose, speaks of the "Emigration from India" and " East India Emigrants." The voyage which brings these poor creatures from the indolence of their native plains to the hard and unwholesome toils of Guiana, can hardly yet be described as proving an agreeable passage, for time has not yet been allowed to carry any over. But the experiment already made in the Mauritius furnishes the means of commendation, and that passage has been distinctly termed by the schemers one of no suffering, but of sufficient ease and comfort to the cargoes. So they have described the change of the Coolie's situation as beneficial to him. " They are represented," it is said, (p. 23,) "to be much pleased with their new situation, it being considered by them as more desirable and beneficial than that from which they have been removed" in the very language, your lordships observe, of the slave traders and their defenders fifty years ago. The experience of the Mauritius planters is in these papers cited at large. and paraded through many a long page, to show how happy is the lot of the transported labourer in the bondage of that blissful land. The queries sent to various proprietors are given at length, with the an- swers returned by them. The fourth question, as to the comforts and happiness of the imported apprentices, is answered alike by all but one, from whom the truth escapes. The others say, the men are quite contented and happy, exactly as Sir William Young found the African slaves in the Leeward Islands. They represent, too, the Mauritius Negroes as quite pleased with their new helpmates; and in short, never was such a picture of felicity in that island, since those halcyon days when 25,000 capital felonies were perpetrated by the importation of as many labourers days which it was feared had been gone never to return, but which this order in council fills the Mauritian bosom with hopes of once more living to see restored. That one planter, however, gives a somewhat different account of the matter. "Has any feeling of uneasiness and discontent been observable among the Indian labourers on your estate as arising out of separation from their families, or from any other similar cause?" The answer is signed Bickagee; and this name seems to indicate a Malabar origin; so that probably the reason why the account is so different from that of other proprietors may be, that Bickagee could converse with the poor Indians in their own language, as another witness who gives a similar account certainly could. The answer is "Yes; and for these reasons In their country they live happy and comfortable with their wives and families, on three or four rupees a month. They engage to leave their native country on a small increase of salary, say five rupees and rations, in the hope of receiving the same comfort here, but experience has proved the reverse. Uneasiness and discontent arise from these EASTERN SLAVE TRADE. 491 privations, besides their being deprived of the holidays their religion entitles them to." (p. 83.) So Mr. Scott, a gentleman resident in Bengal, and acquainted with the people, their language, and habits, plainly says, that " with very rare exceptions, he doubts if there are any who congratulate themselves on the bargain they have made." (125.) He makes an observation of much wisdom upon the inefficacy of all regulations respecting treatment, and of all conditions in contracts for apprenticeship. " The main result of my inquiry," says he, "leads me to the conclusion, that the condition of the labourer practically depends on the individual character of his employer, and that the terms of the agreements are trifling compared with the spirit in which they are interpreted." But let us look to the far more pressing consideration of the way in which these poor people are brought over from their own country; for upon that, two very important matters arise out of these papers, and especially Mr. Scott's report. I must, however, first turn aside for a moment to show your lordships that the abuses of the measure had not been unforseen. My noble friend himself at one time was awake to this important consideration. He could see it in the measures of others, but in his own, all such suspicions are lulled asleep. When he first received the ordinance made by the Court of Policy in Demerara, he at once warned them against letting it become the cover for slave deal- ing, describing it as essential that no apprentice from Africa should be brought over. His words are remarkable, and I apply them distinctly to the measure of my noble friend himself, now under your considera- tion. " If, (said he, in a despatch dated October 3, 1836, p. 11,) labour- ers should be recruited on any part of the African coast, the conse- quence would inevitably be direct encouragement to the slave trade in the interior, and a plausible, if not a just, reproach against this country of insincerity in our professions on that subject." A plausible, if not a just reproach ! Truly the reproach is still more just than it is plausi- ble; and so my noble friend's colleague,* under whom the foreign concerns of this country flourish as much as our colonial affairs do under himself, will find in the first attempt which he may make to treat for the abolition of the foreign slave traffic. I can tell him that far less ingenuity than falls to the lot of Spanish, and above all Portuguese negotiators, will be required to shut his mouth with this Order in Coun- cil, as soon as he tries to open it against the Portuguese or Spanish enormities which all England, and both Houses of its Parliament, are vociferously urging him to put down. They will hold, and truly, that they have a just right to tax us with insincerity, and with fraud and dishonesty, if, while we affect to reprobate slave trading in them under its own name, we continue to carry it on ourselves, under false pre- tences, and by a false and borrowed title. As long as Africans are brought over under the vile order by the name of apprenticed labourers, it is still more just than it is plausible to accuse us of that insincerity and those frauds; and how docs my noble friendt escape * Lord Palmerston. f Lord Glcncljj. 492 EASTERN SLAVE TRADE. the charge? By a regulation which he adds to the ordinance, and which I pledge myself instantly to demonstrate does nothing whatever to prevent the very thing here denounced. Nothing of the kind, abso- lutely nothing has been done by the additional provision of my noble friend. For what is that provision? You will find it in page twenty- one, and it only makes indentures of apprenticeship void if executed in Africa, or the adjacent islands inhabited wholly or in part by the Negro race. Why, what signifies that? Who is prevented by such a flimsy folly as that article, from carrying over as many Africans as he pleases, and in whatever way he likes? To escape this most ridiculous check, the slave trader (my noble friend himself calls him by this name) has only to take the Negroes on board of the slave ships, and there execute their indentures, or to Brazil, or to Cuba, or to Monte Video, or, indeed, to Guiana itself; and then he complies with the conditions of this inconceivable restriction, and imports as many Negroes as he pleases, and can afford to buy. To be sure, there is added another provision of the same notable kind, requiring that all contracts be made and witnessed before two justices, or, it is added, magistrates. What then? The slave trader has only to carry his prey, his human victims, to the Mauritius, where he will find two, ay, twenty, magistrates full ready to help him, and to do anything for the encouragement of the business there most popular, the slave trade; or if it be the western coast of Africa which he has been desolating with his traffic, under the encouragement of this Order in Council, he has only to touch at the Brazils, where all slave traders are at home; oral Monte Video, where the governor took a bribe of 10,000 to allow, in the teeth of the Spanish law, two thousand slaves, which he termed, in the language of these papers, and this Order in Council, labourers, to be introduced; or at Cuba, where the governor does not suffer the sailing of slave ships to be announced in the newspapers, for fear of our cruisers being thereby warned and stopping them. In all these slave trading ports, justices, and magistrates, and governors too, will ever be ready to wit- ness indentures for Guiana, and make this most ludicrous provision utterly void and of no effect. But the despatches of my noble friend are not the only documents which show that the abuses of this intercourse have been alluded to before now though no precautions whatever have been adopted to prevent them. Some few years ago, a Mr. Letord propounded to the governorof the Mauritius a plan for importing twenty thousand African labourers, as he called them, in the phraseology of the Order in Coun- cil so familiar to all slave traders. He was to obtain them by negotia- tion with the chiefs of the country, and to apprentice them for a limited time. His plan was circumstantially and elaborately framed, and reminds me of what a learned friend of mine, now Advocate-general in Bengal,* used to say at Guildhall, on such estimates, that with a little pen and ink he would undertake by figures to pay the national debt in half an hour. The ingenious projector, (who I understand was * Mr. Pearson. EASTERN SLAVE TRADE. 493 one of those most deeply concerned in the Mauritian slave trading some time ago, and therefore well versed in the subject,) gave his plan the name of "Prqjet d'Emancipation Africane" for he was of course to liberate all the slaves he bought of the chiefs, or kidnapped on his own account, and to convert them, as the plan of our government pro- poses, into Indentured Apprentices. Your lordships smile at the plan and its title, because you see through the trick at once so did the worthy Governor General Nicolay whose answer was short whose refusal was flat and unqualified just such as the government at home should have given to the Letords of Guiana. He said he had read the details of the plan " with much interest, and felt bound to give it his unqualified refusal, considering it, however speciously coloured, as neither more nor less than a renewal of the slave trade, and therefore entirely inadmissible," p. 24. And so to be sure it was. Your lord- ships saw through the cunning trick and its flimsy disguise at once, and you smiled when I stated it. But I now ask if there is one single tittle of the plan thus instantly seen through, which differs from the present project for Guiana? I defy the most ingenious, subtle, and astute person who now hears me to show any one thing that could have been done under Letord's plan, denounced by Sir W. Nicolay, as common slave trading in other words felony which may not be done exactly in the same manner if this Order in Council is suffered to continue in operation. My noble friend will answer me and defend or explain his measure. I call upon him to point out, if he can, one single particular in which the project rejected as felonious by Governor Nicolay, with the entire approval of the government at home, differs from the project aided and sanctioned by that same government, and under their auspices inflicted upon Africa and Asia too, for the benefit of the Guiana planters and their slave trading captains. My noble friend is now challenged to this comparison, and having given him ample notice, and in very distinct terms, I expect I am entitled to expect that he shall point out wherein the two schemes differ, and what act of slave trading that is of felony can be perpetrated under the one, which may not, with the most perfect ease and safety, be per- petrated under the other. Here, my lords, I might rest, and safely rest, my case. For I have shown to demonstration not only that abuse is inevitable that no regulation can prevent it, but also that none have ever been attempted if I have further shown, out of my noble friend's own mouth, and that of the Mauritius government, whose proceedings he wholly ap- proved and adopted, that without precautions, which never have been taken or thought of, the project is one of disguised, and but thinly disguised, slave trading: surely I am not bound to go further, and prove that already, and while in its infancy, the results pYoved to be inevitable have actually flowed from it; that kidnapping lias filled our vessels, and that waste of life, and misery has been endured on the middle passage. Nevertheless, I am prepared to prove this like- wise, superfluous though it be; and thus to remove the very last vcs- VOL. i. 42 494 EASTERN SLAVE TRADE. t!ge of doubt, to preclude every opening through which a cavil can enter into the discussion. I here again revert, in the first place, to the report of the only per- sons, or one of the only two persons, who were capable of giving in- formation on the subject, by their knowledge of the language in which alone these poor Hindoos can converse. Mr. Scott gives this truly remarkable statement; his words are few, but the single sentence speaks volumes. " They all stated (says he, page 125) that they left Cal- cutta under the impression that they were going to the Company Ra- bustie (Company's Village), the name by which the Mauritius is designated" but by whom? In the vernacular tongue of India? By all men in common parlance? Oh no, nothing of the kind! But "by the agents in India!" by the slave trader's agents; by his crimps, his inveiglers, his kidnappers. Mr. Scott adds, " How far the term was complimentary or compulsory I cannot say;" so that he has his sus- picions of these poor ignorant people being made to believe that they might be compelled to go to the Mauritius as a part of the company's territory. He adds this remarkable observation: "While I make no charge of misrepresentation, I ain bound to acknowledge the difficulty of correctly and intelligibly describing an island in the Indian Ocean to a person who had never seen the sea, or knew what an island was." Some there may doubtless be who will say, that this representation of the Mauritius, where the powers of Leadenhall-street have not one servant, and possess not one yard of ground, being a village of the company, was plausibly rather than justly made. For my part I hold it to have been wickedly, deceitfully, fraudulently, crimpingly, kid- nappingly done, and with the purpose of inveigling, and cheating, and carrying away the natives of Asia, after the most approved practices of slave trading, in their nefarious proceedings on the African coast. My noble friend must have turned his attention to this subject as well as Mr. Scott. He long presided at the India Board he had under his protection the natives of the country, to whom he and his re- spected family have long been the friends; he had studied their tem- per and their habits from his youth; he had an acquaintance possessed by few, an hereditary acquaintance with all that belongs to this subject; and, before he issued an order for the emigration of these poor crea- tures, he must have well weighed all its consequences, having regard to their nature, and their knowledge. This matter is not one that arises indirectly, or unexpectedly, or by any unforeseen accident, out of the scheme. On the front of that scheme it is graven in legible letters; it is a plan for enabling planters in the west to import natives of the east into their colonies. Then my noble friend must have often asked himself the natural and indeed unavoidable question which I now ask him, as Mr. Scott has suggested it from a knowledge of Indian affairs far less extensive than his own What hopes can we entertain of ever being able to make a Hindoo, a Coolie from the inland territory of the company, a poor native who has never seen the ocean, or any sheet of water larger than the tank of his village, or the stream in which he bathes comprehend the nature of a ship and a voyage, the EASTERN SLAVE TRADE. 495 discomforts of a crowded hold, the sufferings of four months at sea, the labours of a sugar plantation, the toils of hoeing, and cutting, and sugar boiling under a tropical sun toils under which even the hardy Negro is known to pine, and which must lay the feeble and effeminate Asiatic prostrate in the scorched dust? Bui will my noble friend really take upon him to say that one single Hindoo is embarked for Guiana, who can form the idea of what the voyage alone must expose him to? We are here not left without proof. Experience lias already pronounced upon the voyage from Hindostan to the Mauritius; these papers paint it as a worthy companion for the middle passage. I hold in my hand the despatch from the Mauritius government of April last, in which three vessels are said to have carried over, one of them two hundred and twenty-four, the other, two hundred, and the third, seventy-two labourers, as you are pleased to term, what I plainly name slaves. Each had a full cargo of rice besides so that the despatch says, they could not have proper accommodation for the Indians, nor protection from the weather, nor had any one of the three a medical officer. The William Wilson, out of two hundred and twenty-four, lost thirty- one on the voyage a sacrifice to the pestilential hold in which they were compelled to breathe. The Adelaide, still worse, lost twenty-six out of seventy-two between a third and a half in five or six weeks. The statements I have given from the slave trader's arguments in 17S8 and 1701 were absurd enough when they represented the mor- tality of the middle passage as one in the hundred. But never did I hear it put higher than this, of thirty or forty per cent. Only see once more how the record of your own statute book rises up in judgment against your own conduct! While you not merely allow, but encou- rage and stimulate the carrying away of untutored Indians and savage Africans from the desolate shores of Malabar and Ceylon and Mo- sambique, giving free scope to all the practices of fraud and treachery, which the arts of wicked ingenuity can devise to entrap them, and bear them into bondage, that the sordid desires of a few grasping planters may be gratified, read the wise and humane words on the front of the British statute read them and blush for shame! " Where- as in various parts" Of Hindostan! Of the Indian Archipelago! Of the Mosambique and Sofala coasts? No but "of the United King- dom of Great Britain and Ireland, persons have been seduced to leave their native country under false representations, and have suffered great hardships for want of provisions and proper accommodation, and no security whatever being afforded that they shall be carried to (he ports for which they have agreed be it therefore enacted.'' Has the faintest attempt been made to afford such security to the Indian and the African, as this statute anxiously provides for the free and en- lightened native of our own island? any precaution against his being trepanned, and seduced on board, under representations that he is only going to another village of his own country, where he will enjoy his own ease, work in his own way, and worship according to disown religion? any precautions against being hurried away by force, while others are decoyed by fraud? any precautions against being scantily 496 EASTERN SLAVE TRADE. provided and pestilentially lodged? any precaution against his being carried to one destination, after bargaining for another? Nothing whatever of the kind. But indeed such precautions, though practica- ble where they are little wanted on the coasts of this country, studded with custom-house establishments, and round which a cordon of re- venue officers is drawn by day and by night, must prove wholly inef- fectual where they are most wanted on the desert strands of the Eastern Ocean. And you see the results in the documents I have just read: where the frauds and the force of the embarkation, and the dreadful mortality of the voyage, are recorded in imperishable proofs of the crimes you have dared to encourage. Therefore it is, my lords, that I have deemed it my indispensable duty to drag before you this iniquitous measure; therefore it is that I have yielded to the sacred obligation of going through a subject as painful to handle as it was necessary to be examined; therefore it is that I have waded, at extreme suffering to myself, through the agoniz- ing detail of the slave traffic; and therefore it is that I have, with unspeakable anxiety but an anxiety occasioned far more by the im- portance of the question than by its difficulty or any disinclination to grapple with it laid bare the enormities of this proceeding, and set forth its glaring inconsistency with the great act of abolition, from the principles of which, I had fondly hoped, no English statesman would ever be found daring enough to swerve. My lords, I have for more than a quarter of a century been the supporter in Parliament of that great measure of justice. But at every period of my life since I reached man's estate, I have been its active, zealous, eager, though, God knows, feeble supporter, wherever I could hope to lend it assist- ance. For this holy cause I have been a fellow-labourer with the greatest men this country ever produced, whether in the Senate, in the Courts, or at the Bar elevated to the ermine, or still practising in the forum. With them I have humbly though fervently fought this good fight, and worked at this pious work with them who are gone from hence, as with those who yet remain. And we had indeed well hoped they who are no more, and they who still survive to venerate the names of the forerunners, and tread if it be possible in their foot- steps that we had succeeded in putting down for ever the monstrous traffic in human flesh. Could I then see this attempt to revive it, and hold my peace? I could not have rested on my couch and suffered this execrable work to be done uninterrupted to be done. I required not to be visited by those surviving friends of whom I just now spake required not to be roused by the agiiation of public meetings required not the countless applications of those whose disinterested patriotism, whose pure benevolence, whose pious philanthropy, en- dearing them to my heart, have won for them the universal confidence of mankind. No! my lords; I could not slumber without seeing before me in visions of the night the great and good men who have passed away, seeming as if they could not taste their own repose, while they forbade me the aid of rest, until I should lend my feeble help, and stretch forth this hand to chase away the monster Slave Trade from the EASTERN SLAVE TRADE. 497 light he once more outrages, back to the den where he had been chain- ed up by their mightier arms. Justly famous of other times! If it be not given us to emulate their genius, to tread the bright path of their glory, to share in the transcendent virtue which formed their chief renown let us at least taste that joy which they valued above all others for that enjoyment we too can command to bask in the in- ward sunshine of an approving conscience, athwart which no action of their illustrious lives ever cast a shade! I move you to resolve that the Order in Council of the 12th July " 1. That the Order in Council of the 12th of July, 1837, was passed for the purpose of enabling the proprietors of Guiana to import into that colony, as apprenticed labourers, the natives of countries within the limits of the East India Company's charter, before it was known that any law had been enacted in India for their protection, and has been suffered to remain in force after it was known that the law en- acted in India on the 1st of May, 1837, and transmitted by a despatch of the 7th of June, is wholly insufficient to afford them such protec- tion as is required, and to prevent the evils to which such traffic is exposed, while there are no means of preventing the greatest abuses from being practised, both in Asia and in Africa, under colour of the traffic, which it is the professed object of the Order in Council to facili- tate and encourage: "2. That the said Order in Council of the 12th of July, 1837, was improperly issued and ought to be recalled." THE REPLY. The masterly speech which has just been delivered by my noble friend,* while it calls for my cordial thanks, relieves your lordships from hearing many points, which he has handled, discussed far less effectively by me, in availing myself of the right of reply, which your courtesy bestows, lint a few words of explanation are required by one or two things which have fallen from the noble duke,t for whom I entertain the most unqualified respect, and whose authority, as a practical statesman, I place in the foremost rank. First, however, I must express my unbounded astonishment at the speech of my noble friend.:}: Not only has he left wholly unnoticed my distinct and formal challenge, to show wherein this measure differs from the scheme of Letord, which all the authorities, both in the Mauritius and at home, stigmatized as a mere blind for a slave trading adventure; but he has argued the whole question as if there were no Madras on the map of Asia no Bombay no Ceylon, for which no rules are made no Pondicherry belonging to France, for which we cannot make any rule no Goa in the hands of slave trading Portugal no African coast within the Company's limits and for which there exists not an authority on earth that can make a single rule, or watch a mile of the sea board. The whole reliance has been placed on tho Lord Kllcnhorough. f The Duke of Wellington. Lord Gleneljf. 42* 498 EASTERN SLAVE TRADE. law made at Calcutta by my noble kinsman, the Governor General in Council* a law of no kind of value, had it comprehended all Asia and Africa too a law in which my noble relation attempted little and effected less pretending to prevent hardly anything, and really pre- venting nothing at all feeble in its provisions impotent in its enact- ments insignificant in its rubric a blank in its body when every one knows, and I had expressly so argued it, that no law made by the governor in council (if in council the potentate who made such a thing can be said to sit) has any force or effect whatever, were it as omni- potent as it is inefficient, beyond the presidency of Fort William, and never could affect a single atom of the traffic which most of all this measure is intended to encourage, and which most requires regulation and control. But in overturning the whole speech of my noble friend, I have also disposed of the noble duke's. For his only reason for resisting the motion and offering the government an escape through the previous question is their acceptance of his offer to pass certain regulations. Suppose the noble duke's system were adopted to-mor- row and I think I am using sufficiently complimentary language when I call it a system, for assuredly I do not profess to admire it as much as I have hitherto been won^ to admire all its author's produc- tions, whether as a soldier or as a statesman suppose my noble kins- mant had enacted every tittle of it in council, instead of his own puny regulation of the first of July still it would have been confined to Bengal. THE DUKE OF WELLINGTON. All are included. LORD BROUGHAM. No not Pondicherry, for there you cannot legislate notGoa, for that is Portuguese not any part of the African coast, over the whole of which this measure of July sweeps, envelop- ing all in the slave trade. That measure, our order in council, is now given up it cannot for an instant stand for every argument urged in its defence assumes that it must be accompanied or followed by other regulations, some of which have not been, others of which never can be made. The noble duke admits this as distinctly as my noble friend. Then I show you places without number, where no regula- tions whatever can be made by all the powers and authorities existing in the empire, and that is decisive against the order in council. I have waited, and in vain, for any answer to this main branch of the argu- ment from the noble Secretary of State I put it to him in every form, and he makes no sign. Therefore that order stands convicted namely, by confession it stands convicted of leaving the door ajar to the African slave trader, under the fairer name of encouraging the trade in apprentices for I call it as bad as leaving the door ajar, to affect shutting the main gate while you leave half a yard to the one side, a door wide open, through which the whole body of it may enter, and which there exists no power within your reach, nay, no power on this earth, that can shut it. Much was said by the noble jduke of the value of colonial posses- * Lord Auckland. f Lord Auckland. EASTERN SLAVE TRADE. 499 sions, the necessity of more hands to cultivate onr plantations, and the tendency of these resolutions to prevent their importation. But here it is that the noble duke has entirely mistaken both the tenor of my opinions, and the scope of the resolutions. I am not one of those who object to colonial establishments. Many men for whom I have a great and just respect do go this length. My opinion differs from theirs. I lately stated how I draw the line. I make a great distinction between such colonies as those on the main land of North America, where men settle without the plan of returning home, where the property is in the hands of personal residents, and which are extensive enough to defend themselves. When these are able to stand alone, when it is no longer of mutual benefit that the colonial relation should continue, the separation is advantageous to both parent state and settlement. But as I lately stated in the argument I held with my noble friend,* now absent, unfortunately, from a domestic affliction, the slave colonies are differently circumstanced; and no one can doubt the mutual bene- fits of their continued dependence upon the mother country. They are important to our commerce, and still more to our income and wealth we are of use towards their defence and in a military point of view the connection may be exceedingly material. I have not therefore a word to'say against the noble duke's high value which he sets upon such possessions. How far their cultivation, after the eman- cipation act comes into full play, will require an importation of la- bourers from the East, is quite another question. But then it is one on which these resolutions pronounce no opinion whatever. I defy any man to point out one line of either resolution which even looks in that direction. Why do I thus confidently say so? Because I pur- posely framed them so as to keep quite clear of a subject on which I knew men might differ widely, while they all agreed in the main ob- ject of censuring the order in council. But says the noble viscount,t following the noble duke, whose unwillingness to remove him from the office holden at his grace's pleasure seems to have excited a just feeling of thankfulness, a great experiment is about to be made. We cannot tell, he says, what may happen in 1S40 I hope and trust that will be all known two years earlier therefore, he adds, let us be on our guard. Why not? Certainly let us be on our guard but do you say a single word to show that this order in council for importing more apprentices puts us more on onr guard? What will betide us, says the noble duke, should the emancipated Negroes refuse to work for hire? How will your estates then be cultivated? and how can you tell that they will pass from the state of slavery to that of industrious work- men? How can I tell? Why, by looking at what they are already doing in Jamaica and Barbadocs, whore they work every spare hour voluntarily for wages in Antigua and Bermuda, where they have boon as free as the peasantry of Hampshire for near three years, and have worked as hard and behaved themselves as well. On this head, then, I have not the shadow of a doubt, nor am I entitled to have Lord Asliburton. f Lord Melbourne. 500 EASTERN SLAVE TRADE. if experience can be trusted as a safe guide. But furthermore sup- pose me quite wrong suppose the whole experience of the past belied by the future, and that all the Negroes refuse to work the moment the hour of their liberation strikes here are eight hundred thousand idle and dissolute, and restless and rebellious Negroes (for there can be no middle state between peace with industry, and idleness with revolt) and the noble duke would keep all quiet, and reclaim all from idleness, by sprinkling over this vast mass three or four thousand Coolies from Asia. The supposition is that all the West Indies are in a state of inaction first presently after of insurrection and confusion no work done but that of mischief no labour, no quiet, no subordination all is a mass of confusion, and every portion of the vast population is in a ferment when sprikling over the boiling mass a few peaceful and indolent natives of Hindostan will at once restore universal quiet, and all will suddenly sink down to rest! Hi raotus animorum, atque hsec certamina tanta Pulveris exigui jactu compressa quiescent! But I have said, my lords, that these resolutions pronounce no judgment whatever upon the policy of importing new hands. All my opinions on this subject may be as erroneous as you please the noble duke's and the government's under his protection, as well grounded as possible whatever may be my private opinion, you are to vote on the resolutions, and not on the speech that introduces and defends them; and he who holds as high, as the noble duke, the necessity of introducing new labourers, may most correctly and earnestly join with him who has no opinion of the kind, in supporting resolutions which leave the question wholly untouched. Nay, the more I was of the noble duke's opinion the higher I valued the importation as a re- source the more should I vote for these resolutions because they go only to condemn a most erroneous mode of trying this experiment a mode which its authors shrink from defending, and which the noble duke and every one else join in condemning, as not giving the experiment fair play. Can anything indeed be more unfair towards that experiment than trying it in such a clumsy, bungling manner, as to bring upon it the odium of being a new slave trade? While, however, this is the clear and undeniable posture of the question in debate, I cannot at all abandon the jealousy and indeed the aversion with which I regard all plans whatever of wholesale shifting of populaton. Nor am 1 in the least degree won over to such plans by hearing their defence clothed in language drawn from the science of political economy. My noble friend calls it "a free circu- lation of labour," and professes his reluctance to abandon on this sub- ject his tenets as an economist. I have heard the terms and the doc- trines of political economy turned to many uses in my time. They have been used to defend state lotteries insurances in the lottery stock-jobbing time-bargains in the funds. Why, it is said, should there be any interference with the free use of capital, or of skill and of EASTERN SLAVE TRADE. 501 labour in these departments of industry? On the Continent it has been applied to even baser uses and made to defend the establishment of public stews, under due regulations for the benefit of the subject. But I own I have never yet heard those principles applied where they were more out of place and season than to the subject of the slave trade. Can any man in his sober senses think of calling the whole- sale embarking of Hindoos, and then transporting them to the anti- podes, to work in ways wholly unknown to them and foreign to their nature and habits, and pretend that giving it facilities encouragement stimulants is furthering the free circulation of labour? The argu- ment against all this plan is, that there is mere slave trading in every part of it that a felony lurks under each of its arrangements. Then do the political economists and my noble friend, who is so vigorous a stickler for their doctrines, hold that the circulation of labour is inter- rupted by preventing the slave trade? If they do nor can they stop a hair's-breadth short of this then I am for abiding by the law of God and the law of the land, let their laws of political economy fare how they may. The noble duke has proposed certain terms to the government, as the price df his support "Promise me you will adopt my code of regulations," says he, " and you shall not be condemned by a vote of censure this time." The hook so baited was sure to take the minis- ters bit immediately but they were not caught. "Oh yes by all means" "Anything you please," says the noble viscount " we agree at once" to what? Not to the proposal made; but only to consider of.it " We will take it into our best consideration." I don't much think this kind of acceptance will catch the noble duke. He saw the noble viscount swallow the bait but he had not caught his fish away it ran with the line in its mouth, down the stream, and buried itself in " serious consideration." Why, I defy the noble duke to pro- pose any one thing on any one subject, which the government, and all the House, and the country too, will not, as a matter of course, take into serious and respectful consideration. The noble viscount will consider of it; so shall I; but very possibly he may end by thinking as little of it as I do. Considering of it proves no assent Le Rui s'avisera, is the form of rejecting bills the sovereign has only once or twice taken any measure into consideration since the revolution, though he has assented to some thousands; and the minister, too, may consider and reject. The nature of the noble viscount's answer, then, was, to use the phraseology of a witness on a memorable occasion, at that bar, More no than yes. So, as the noble duke failed to catch the noble viscount, the noble viscount must not expect to catch the noble duke anxious as he is to be taken upon the present occasion. I hear it said by my noble friend,* that there is a wide difference between his plan and Mr. Harham's in 1811, inasmuch as slavery then existed, and the Chinese were to be brought over as free labourers whereas, apprenticeship is now the law, und the Hindoos are lo Lord Glenelg. 502 EASTERN SLAVE TRADE. come into a colony of apprenticed labourers. That is precisely my argument to show how much worse this plan is than that; and yet that was not endured by any one who knew the subject ever so im- perfectly. No one would have listened to Mr. Barham's proposition, but that he was to make all the labourers he brought over free at once; they were to be free from every shackle imposed upon the Negroes. Here the Hindoos are to be subject to every restraint which the Negroes endure nay, this plan is to continue for years after the Negroes are set free. But a new argument is raised by the noble viscount.* " Take care," says he, " how you set men's interests against their duty, and raise their strongest prejudices against Negro freedom. The slavery of the ancient world was only extinguished by it becoming men's interest to prefer free labour to slave labour; therefore, if you make free labour so scarce in the West Indies as to make it dear, slavery never can cease." I am not sensible of ever in my life having heard a piece of reasoning more absurd in all its parts one in which the incorrectness of the facts assumed, more strove for the mastery with the thoughtless- ness of the inferences drawn from them. What ! slavery in Europe extinguished by the high price of slave labour, or any other calculation of profit and loss ! Why, I had always believed that it was the mild spirit of the Gospel of Christ which worked by slow degrees this happy change. I state the sentiments I have always heard accounted just, and not out of deference to the Right Reverend Prelates in whose presence I speak, and who, to their immortal honour, have never once refused the+r support to any one proposition adverse to the slave trade. But never before did I hear it doubted that first the spirit of Christianity, hostile to all cruelty and oppression; and afterwards the efforts of zealous priests, even refusing the rites of the church to men unless they would free their bondsmen, gradually wrought the happy change which the noble lord ascribes to a calculation of interest. But grant him his facts; how do they prove the emancipation to be in any danger from a rise in the wages of labour? He talks as if the act had never passed, and we were trusting to men's interests for setting their slaves free. Happily, longer than August 1840 they cannot be retained in any form of servitude. Does he dread that high wages will bring back the chain and the cartwhip? I have no share in his chimerical appre- hensions. I defy all the combinations which cruelty can effect with avarice to restore that hideous state of society of which the knell sounded over the Atlantic in 1S33. No, no ! I will trust the Negro people for that. They will keep what they have got. Trust me they will set at defiance all the noble lord's calculations, and all the wishes of their former masters, and never more consent to work one spell of work, but for their own behoof be the terms of their employment ever so distasteful to their white neighbours be their desire for. a restoration of the yoke, and the chain, and the cartwhip ever so in- tense. The renewal of the slave trade is a very different thing. On * Lord Melbourne. EASTERN SLAVE TRADE. 503 that rny fears arc indeed grave and perplexing for I know the Indian crimp and the African trader the inexhaustible perfidies of the dealers in men, and the scope which those frauds have among hordes of un- civilized men, many of them in their own country slaves the comfort and aid which those wretches may reckon upon receiving from accom- plices ready made, such as the bribed governor on the Spanish Main, and the friendly authorities of Cuba. But I am told to be of good courage, and not to despond there is no fear of abuse no prospect of the horrible traffic so much condemned ever taking root in our islands. I am bid to look at the influence of public opinion the watchfulness of the Press the unceasing efforts of all the societies the jealous vigilance of Parliament. Am I then to stand by and suffer the traffic to be revived, in the hope that we shall again be able to work its extirpation? Trust, say the friends of this abominable measure, trust to the force which gained the former triumph. Expect some Clarkson to arise, mighty in the powers of persevering philanthopy, with the piety of a saint and the courage of a martyr hope for some second Wilberforce, who shall cast away all ambition but that of doing good, scorn all power but that of relieving his fellow- creatures, and reserving for mankind what others give up to party, know no vocation but that blessed work of furthering justice and free- ing the slave reckon upon once more seeing a government like that of 1806 alas, how different from any we now witness ! formed of men who deemed no work of humanity below their care or alien to their nature, and resolved to fulfil their high destiny, beard the court, confront the peers, contemn the planters and in despite of planter, and peer, and prince, crush the foreign traffic with one hand, while they gave up the staff of power with the other, rather than be patrons of intolerance at home ! These are the views with which it is sought to console us and gain us over to the ill-starred measure before you. I make for answer if it please you No by no means nothing of all this. The monster is down, and I prefer keeping him down to relying upon all our resources for gaining a second triumph. I will not suffer the Upas tree to be transplanted, on the chance; of its not thriving in an ungenial soil, and in the hope that, after it shall be found to blight with death all beneath its shade, my arm may be found strong enough to wield the axe which shall lay it low. I thank you for the patience with which you have listened to me, and on which I have unwillingly trespassed so long. My bounden duty could not otherwise have been performed; and I had no choice but to act now as I have acted ever through the whole of my life maintaining to the end the implacable enmity with which I have at all times pursued this infernal trade. LAW REFORM. INTRODUCTION. LAW REFORM MR. BENTHAM MR. DUMONT MR. MILL SIR JAMES MACKINTOSH. THE age of Law Reform and the age of Jeremy Bentham are one and the same. He is the father of the most important of all the branches of Reform, the leading and ruling department of human improvement. No one before him had ever seri- ously thought of exposing the defects in our English system of Jurisprudence. All former students had confined themselves to learn its principles, to make them- selves masters of its eminently technical and artificial rules; and all former writers had but expounded the doctrines handed down from age to age. Men, by common consent, had agreed in bending before the authority of former times as decisive upon every point; and confounding the question of, what is the law, which that authority alone could determine, with the question, what ought to be the law, which the wis- dom of an early and an unenlightened age was manifestly unfit to solve; they had taken it for granted that the system was perfect, because it was established, and had bestowed upon the produce of ignorance and inexperience their admiration in proportion as it was defective. He it was who first made the mighty step of trying the whole provisions of our jurisprudence by the test of expediency, fearlessly ex- amining how far each part was connected with the rest; and with yet more undaunted courage, inquiring how far even its most consistent and symmetrical arrangements were framed according to the principle which should pervade a Code of Laws their adaptation to the circumstances of society, to the wants of men, and to the promotion of human happiness. Not only was he thus eminently original among the lawyers and the legal philoso- phers of his own country; he might he said to be the first legal philosopher that had appeared in the world. For Justinian, when he undertook his great work of abridg- ing and digesting the Roman law, in truth only methodized existing laws, and brought into a compendious and manageable form those rules which lay scattered over so many volumes, that they were said to be " the load of many camels" What- ever he found, or rather whatever Tribonian and his coadjutors employed by the Kinperor found, in the edicts of Praetors,* the laws of the popular assemblies, f the rescripts of former Kmperors, or the opinions and other writings of lawyers, was deemed to be fixed law; and accordingly the Pandects, (or Digest,) any more than the Code and the Novels, contain nothing which is not specially avouched by tho authority upon which it is given as law, and the Institutes, a work of matchless beauty as an abstract or summary of principles, is wholly drawn from the same sources. The like may be said of the modern Codes, of which the Frederician or Prussian is the most important that had been compiled before Mr. Bentham's time; and although that of Napoleon, the most perfect of them all, from being the growth of an age that had already profited largely by Mr. Uentham's labours, contains very considerable changes and improvements upon the former laws; yet these bear but a very insignificant proportion to tho whole mass, which is in the main a digest of existing jurisprudence, ami derives its principal claim to tho public gratitude from F.dicta Pnutomm. t Lcgcg ct Plchiscitn. t Rcscri|>la I'riiicipuin. Kcspoiisa I'rudfiitiiin. VOL. I. 13 506 INTRODUCTION. its abolishing the local differences of the provincial systems, and giving one law to the whole empire. Mr. Bentham, professing to regard no existinor law as of any value unless it was one which ought to have been made, wholly unfetters himself from any deference to authority bringing the fundamental principles, as well as the details of each legislative rule, to the test of reason alone trying all by the crite- rion of their tendency to promote the happiness and improve the condition of man- kind not only showed in detail the glaring inconsistencies and the radical imper- fections of the English system, but carrying his bold and sagacious views to their amplest extent, investigated the principles upon which all human laws should be constructed, and showed how their provisions should be framed for the better accomplishment of their great purpose the well-being of civil society, both as regards the enjoyment of civil rights, the prevention of crimes, and the encourage- ment of virtue. The adaptation of these principles to the particular circumstances of any given state, can only be ascertained by a careful examination of those cir- cumstances, and, above all, by an accurate attention to the laws already existing in the country, and which, how ill soever contrived in many respects, have always, more or less, arisen out of those very circumstances. This is the business of Codi- fication, which consists in not only reducing to a system and method the existing laws, but in so amending them as to make them capable of accomplishing their car- dinal object the happiness of the community. In thus assigning to Mr. Bentham, not merely the first place among legal phi- losophers, but the glory of having founded tbe sect, and been the first who deserved the name, it cannot be intended to deny that other writers preceded him, who wisely and fearlessly exposed the defects of existing systems. Voltaire, for example, great and original in whatever pursuit, whether of letters or of science, whether of gay or of grave composition, was enlightened by his extraordinary genius, had, with his characteristic vigour and sagacity, attacked many false principles that pre- vailed in the judicial systems of all nations. Filangieri, who of all writers before Bentham comes nearest to the character of a legal philosopher, had exposed, with the happiest effect, the folly as well as cruelty of severe penal inflictions; Mon- tesquieu, whose capacity as well as his learning, is unquestionable, notwithstanding his puerile love of epigram, and his determination to strain and force all facts within the scope of a fantastical theory, had discussed with success many important prin- ciples of general jurisprudence; and Mr. Locke, a far more illustrious name, had treated with his wonted profoundness and accurate reflection, many of the principles which bear upon the political branches of legislation. But none of those great men, nor any of the others through whose writings important and useful discussions of legislative principles are scattered, ever embraced the subject in its wider range, nor attempted to reduce the whole jurisprudence under the dominion of fixed and general rules. None ever before Mr. Bentham took in the whole departments of legisla- tion. None before him can be said to have treated it as a science, and by so treating, made it one. This is his pre-eminent distinction; to this praise he is most justly entitled; and it is as proud a title to fame as any philosopher ever possessed. To the performance of the magnificent task which he had set before him, this great man brought a capacity, of which it is saying everything to affirm, that it was not inadequate to so mighty a labour. Acute, sagacious, reflecting, suspicious to a fault of all outward appearances, nor ever to be satisfied without the most close, sifting, unsparing scrutiny, he had an industry which no excess of toil could weary, and applied himself with as unremitting perseverance to master every minute portion of each subject, as if he had not possessed a quickness of apprehension which could at a glance become acquainted with all its general features. In him were blended, to a degree perhaps unequalled in any other philosopher, the love and appreciation of general principles, with the avidity for minute details; the power of embracing and following out general views, with the capacity for pursuing each one of num- berless particular facts. His learning was various, extensive, and accurate. His- tory, and of all nations and all ages, was familiar to him, generally in the languages in which it was recorded. With the poets and the orators of all times he was equally well acquainted, though he undervalued the productions of both. The writings of the philosophers of every country, and of every age, were thoroughly known to him, and had deeply occupied his attention. It was only the walks of LAW REFORM. 507 the exacter sciences that he had not frequented; and he regarded them, very erro- neously, as unworthy of being explored, or valued them only for the inventions useful to common life which flowed from them, altogether neglecting the pleasures of scientific contemplation which form their main object and chief attraction. In the laws of his own country he was perfectly well versed, having been educated as a lawyer, and called to the English bar, at which his success would have been cer- tain, had he not preferred the life of a sage. Nor did he rest satisfied with the ori- ginal foundations of legal knowledge which he had laid while studying the system; he continually read whatever appeared on the subject, whether the decisions of our courts or the speculations of juridical writers; so as to continue conversant with the latest state of the law in its actual and practical administration. Though living retired from society, tie was a watchful and accurate observer of every occurrence, whether political, or forensic, or social, of the day; and no man who lived so much to himself, and devoted so large a portion of his time to solitary study, could have been supposed to know so perfectly, even in its more minute details, the state of the world around him, in which he hardly seemed to live, and did not at all move. But of all his qualities, the one that chiefly distinguished Mr. Bentham, and was the most fruitful in its results, was the boldness with which he pursued his inquiries. Whatever obstacle opposed his course, be it little or be it mighty from what quar- ter soever the resistance proceeded with what feelings soever it was allied, be they of a kind that leave men's judgment calm and undisturbed, or of a nature to suspend the reasoning faculty altogether, and overwhelm opposition with a storm of unthinking passion all signified nothing to one who, weighing principles and arguments in golden scales, held the utmost weight of prejudice, the whole influence of a host of popular feelings, as mere dust in the balance, when any the least reason loaded the other end of the beam. And if this was at once the distinguishing quality of his mind, and the great cause of his success, so was it also the source of nearly all his errors, and the principal obstacle to the progress of his philosophy. For it often, especially in the latter part of his life, prevented him from seeing real difficulties and solid objections to his proposals; it made him too regardless of the quarter from which opposition might proceed; it gave an appearance of impracti- cability to many of his plans; and, what was far more fatal, it rendered many of his theories wholly inapplicable to any existing, and almost to any possible state of human affairs, by making him too generally forget that all laws must both be exe- cuted by, and operate upon, rnen men whose passions and feelings are made to the lawgiver's hand, and cannot all at once be moulded to his will. The same un- daunted boldness of speculation led to another and a kindred error. He pushed every argument to the uttermost; he strained each principle till it cracked; he loaded all the foundations on which his system was built, as if, like arches, they wero strengthened by the pressure, until he made them bend and give way beneath the superincumbent weight. A provision, whether of political or of ordinary law, had no merit in his eyes, if it admitted of any exception, or betokened any bending of principles to practical facilities. He seemed oftentimes to resemble the mechani- cian who should form his calculations and fashion his machinery upon the abstract consideration of the mechanical powers, and make no allowance for friction, or tho resistance of the air, or the strength of the materials. Among the many instances that might be given of this defect, it may be sufficient to single out one from his juridical, and one from his political speculations. Perceiving the great benefits of individual responsibility in a judge, he peremptorily rejected all but what he termed single-seated justice, and would allow no merit whatever to any tribunal composed of more, either for weighing conflicting evidence, assessing the amount of compen- sation, or reversing the judgments of a single inferior judge. Holding also the doctrine of universal suffrage, he would have no (exception whatever, and argued not only that women, but that persons of unsound mind, should be admitted to vote in the choice of representatives. The greater qualities of Mr. Bentham's understanding hare been described; but ho also excelled in the light works of fancy. An habitual despiser of eloquence, ho wan one of the most eloquent of men when it pleased him to write naturally, and before he had adopted that harsh style, full of involved periods and new made words, which, how accurately soever it conveyed Ins ideas, was almost as hard to learn as 508 INTRODUCTION. a foreign language. Thus his earlier writings are models of force as well as of precision; but some of them are also highly rhetorical; nor are the justly celebrated u Defence of Usury," and "Protest against Law Taxes" more finished models of moral demonstration, than the Address to the French National Assembly on Colonial Emancipation is of an eloquence at once declamatory and argumentative. The pecu- liar manner of scrutinizing every subject, into which he latterly fell, which, indeed, he adopted during the greater portion of his life, and which has been happily enough termed the " exhaustive mode" was little adapted to combine with eloquence, or with any kind of discussion calculated to produce a great popular effect; for it consisted in a careful examination of every circumstance which could by any possibility affect either side of a given question, and it gave the same expansion to all considerations, however varying in point of importance; whereas, to convince or to strike an audi- ence, or a cursory reader, nothing can be more essentially necessary than the selec- tion of the more important objects, and making them stand boldly out in relief above the rest. Another consequence of his addiction to this method was, that it impaired his strength both of memory and of reasoning. He investigated with a pen in his hand, trusted to his eye as much as to his recollection, and enfeebled his powers of abstract attention pretty much as analysts are apt to become less powerful reasoners and investigators than geometricians. It thus happened that although he disliked conversation in which more than one joined, confining himself to a teta-a-tdte, or what he termed " single-handed conversation," he exceedingly disrelished, at least for the last thirty years of his life, anything like argument, preferring anecdote, or remark, or pleasantry, in which last he was, though sometimes happy, yet often unsuccess- ful. But, as not unfrequently happens, he felt far more jealous of any disrespect shown to the jokes with which his later writings were filled, than of any dissent from his reasonings, although the former were for the most part overlaboured, far- fetched, and lumbering. It was a result of similar prejudices that made him undervalue not only eloquence, but poetry; and he was wont to express his thankfulness that we should never see any more Epic poems. That he might greatly prefer other exertions of original genius to those which have produced the wonders of song, is easily understood. But that he should deny the existence of the pleasure derived from works of ima- gination, or question the reality of the desire, or refuse it gratification, seems wholly incomprehensible, and only the more so, because his whole theory of motives pro- ceeds upon the assumption, that man's constitution leads him to take delight in certain enjoyments; and no one surely can doubt the fact of the fine arts giving pleasure pleasure, too, of a refined, not of a gross description. Nor could the devotion of some men's talents to poetry be rationally grudged, when it was con- sidered how few those are whom such pursuits can ever withdraw from severer studies, and how often they are persons in whom such studies would find ungenial dispositions. The moral character of this eminent person was, in the most important particulars, perfect and unblemished. His honesty was unimpeachable, and his word might, upon any subject, be taken as absolutely conclusive, whatever motives he might have for distorting or exaggerating the truth. But he was, especially of late years, of a somewhat jealous disposition betrayed impatience if to another was ascribed any part whatever of the improvements in jurisprudence, which all originated in his own labours, but to effect which different kinds of men were required and even showed some disinclination to see any one interfere, although as a coadjutor, and for the furtherance of his own designs. It is said that he suffered a severe mortification in not being brought early in life into Parliament; although he must have felt that a worse service never could have been rendered to the cause he had most at heart, than to remove him from his own peculiar sphere to one in which, even if he had excelled, he yet never could have been nearly so useful to mankind. It is certain that lie showed, upon many occasions, a harshness as well as coldness of disposition towards individuals to whose unremitting friendship he owed great obligations; and his impatience to see the splendid reforms which his genius had projected, accomplished before his death, increasing as the time of his departure drew nigh, made him latterly regard even his most familiar friends only as instru- ments of reformation, and gave a very unamiable and indeed a revolting aspect of LAW REFORM. 509 callousness to his feelings towards them. For the sudden and mournful death of one old and truly illustrious friend, he felt, as he expressed, no pain at all; towards the person of a more recent friend he never concealed his disrespect, because lie disappointed some extravagant hopes which he had formed that the bulk of a largo fortune, acquired by honest industry, would be expended in promoting Parliament- ary influence to be used in furthering great political changes. Into all these unami- able features of his character, every furrow of which was deepened, and every shade darkened by increasing years, there entered nothing base or hypocritical. If lie felt little for a friend, he pretended to no more than he felt. If his sentiments were tinged with asperity and edged with spite, he was the first himself to declare it; and no one formed a less favourable or a more just judgment of his weaknesses than he himself did, nor did any one pronounce such judgments with a severity that exceeded the confessions of his own candour. Upon the whole then, while, in his public, capacity, he presented an object of admiration and of gratitude, in his private character he was formed rather to bo respected and studied, than beloved. Among those who have been described as coadjutors to whom he and his system owed much, and who were not requited by him according to their deserts, M. Du- mont clearly occupied the foremost place. He was one of those active-minded, acute, and amiable men, so well calculated to serve the cause of science, and whom Geneva not unfrequently produces to her great illustration men, who, endowed with faculties that fit them for original speculation, yet devote themselves, from sincere love of some important subject, to act as disseminators of the truths dis- covered by others aiding them in their researches diffusing knowledge which would otherwise lie hid, even after it was once brought to light making it bear new and often unexpected fruit, by their own culture and thus acting rather the part of coadjutors and allies, than of mere pioneers to the march of discovery. Among this class, M. Dumont may well be reckoned the first; and he possessed all that didactic power by which it is so eminently distinguished. Of extraordinary industry, of great acuteness, enthusiastically devoted to the object of his elucida- tions, gifted with a rare power of illustration, no less able to methodize than to abridge he not only thoroughly mastered all the views and all the details connect- ed with his subject, but could at once perceive all its more remote connections, and all the capabilities which it possessed of leading to results often new to the original investigator. Whoever should suppose that the process by which Mr. Bentham's greatest works were given to the world in their present state, consisted merely in his manuscripts being entrusted to M. Dumont, and their contents by him abstracted or drawn out into the form of printed treatises, would commit a very great mistake. It was much more that the latter learnt the subject from the notes of the former, and composed the treatises as he would have done had he been the discoverer of tho matter, or as Mr. Hcntham would have done had he possessed the same talent for explaining the results of his inquiries as for pursuing those investigations. It is perhaps more accurate to say that Mr. 1'enthatn had abandoned, than that he never, possessed this power of explaining; for his earliest works plainly show that he had the gift when he thought fit to cultivate it. Of late years, however, he never could stoop to make his speculations level to the capacity of ordinary readers, independ- ently of the repulsive stylo which he had acquired, which must have been even of laborious acqui-ition, and which grew into an inveterate habit of writing. It may, however, well be doubted, if, at any time of his life, he could have produced 80 finished a specimen of the didactic art as M. Dumont gave in his principal work, the " Trait r tie Legitlalion." Tho most celebrated of his other writings are tho " Tltniriede Peinetcldt Recompenses," and the " Tactiqucdes -Isscinbltcs J'tihlitiiics,'' M. Dumont's eloquence as an author, the singular clearness of his statements, and the felicity of his illustrations, at once carried the system of Mr. Hentham into nil the, literary, and, after a short interval, into all the political circles also, of tho Continent. The accidental circumstance of the language in which ho wroto being that of France, served to render tho subject more familiar abroad, than it was, for many years in tho country adorned by tint illustrious philosopher's nativity and residence. Hut for the la*t thirty years of bin life, his speculations bad become quite, familiar to his own fellow-ciliuna; his doctrines found numerous followers; his general system was adopted by political as well as legal reformers, who received 13* 510 INTRODUCTION. the fundamental principles, while they often refused to admit the practical conse- quences, or to adopt some of the details; and, long before his death, Mr. Bentham was the acknowledged head of a large and powerful sect. The light which its labours have thrown upon all subjects of jurisprudence, practical as well as specu- lative, is of incalculable value. The tone which has been given to the public mind has been sound and wholesome. The influence exerted upon the minds of states- men has been most perceptible. The prejudice against all departure from established arrangements, which the optimism of even the most liberal of former inquirers had rooted in men's habits of thinking, has been destroyed. The reign of reason has dethroned the usurped power of mere authority; and the advocate of an existing law, found inconvenient or detrimental, has cast upon him the task of defending it by argument, as much as he who wouW propound a new one. All the great improve- ments in our system of jurisprudence which have been made during the last twenty years (for it is within this period that even the Taxes on Law Proceedings have been established,) may easily be traced to the long, and unwearied, and enlightened labours of Mr. Bentham and his school. It has been already remarked that this great Reformer by no means confined his attention to those subjects, paramount as their importance is. He was a strenuous advocate of all political reform, and devoted much of his time to the discussion of it. But, though whatever he did was sure to be marked by his characteristic boldness and sagacity, it must be allowed that his purely political speculations are of a very inferior kind, when compared with those which formed the principal subjects of his labours; and those whicli among his political speculations gave the least satisfaction, were his inquiries concerning ecclesiastical polity. They displayed his wonted acuteness, extraordinary ingenuity, great fertility of illustration; but they were not marked by the same depth of reflection which distinguished his other writings. Their prolixity was also matter of just complaint; and yet such is the power of genius, even when most misapplied, that his huge volume upon the Liturgy and Catechism of the Church of England, though abounding in bitterness unsuited to the subject, and deformed by such absurdities as could scarcely be believed, is, nevertheless, found by all who have had the courage to undertake the perusal of it, one of the most entertaining works in the world.* These, and other writings upon subjects still less connected with the ordinary course of his studies, were the fruits of a weakness into which he was apt to fall during the latter period of his life. After labouring at a subject for a length of time, he became tired of it, and to this lassitude succeeded a disgust which made it hardly possible for him to resume it. He then sought relief and relaxation in the variety of some very different inquiry, and would often be led away to pursue it beyond all reasonable bounds. Thus his friends were at one time apprehensive that the Law of Evidence (his most impor- tant work next to the General Treatise) would have been wholly abandoned when half finished, and the rest of his life given up to Parliamentary and Church Reform. Nay, a trifling incident, as the publication in 1813 of the questions put to the wit- nesses on the secret inquiry respecting the Princess of Wales in 1806, so engrossed the attention of one who never could do things by halves, that for a considerable time he was absorbed in, the discussion of that examination, and the principles that should have governed it. The refusal of the House of Commons to receive printed petitions, some years afterwards, turned him aside from all other pursuits, and pro- duced a copious treatise -upon a very trivial subject, in which, too, it may be observed, that he entirely misconceived the real gist of the question. It was when he had become weary, and, as it were, sick of some truly important inquiry, and could not he got to resume it, that the kindly influence of such firm and attached friends as Rornilly and Dumont was most wanted and most beneficially exerted; and the latter being always ready to lend his useful assistance, as well as to apply the stimulus of his entreaties and councils, was probably the means of preventing many an impor- tant inquiry from coming to an untimely end. * As a specimen of the absurdities nlluded to above, may be given the proposal to substi- tute feet-washing for the Sacrament of the Supper, from one of the charities in our Saviour's history, and to have divine service read by charity school boys as being cheaper than min- isters. LAW REFORM. 511 M. Dumont was as amiable in private life as he was ever justly admired in his writings, and had originally been for his singular eloquence as a preacher. His manners were as gentle as they were polished and refined. His conversation was a model of excellence; it was truly delightful. Abounding in the most agreeable and harmless wit fully instinct with various knowledge diversified with anec- dotes of rare interest enriched with all the stores of modern literature seasoned with an arch and racy humour, and occasionally a spice of mimicry, or rather of acting, but subdued, as to be palatable it must always be, and giving rather the portraiture of classes than of individuals marked by the purest taste enlivened by a gaiety of disposition still unclouded sweetened by a temper that nothing could ruffle presenting, especially, perhaps the single instance of one distinguished for colloquial powers never occupying above a few moments at a time of his company's attention, and never ceasing to speak that all his hearers did not wish him to go on it rn^y fairly be said that his conversation was the highest enjoyment which the more refined society of London and of Paris afforded. No man, accordingly, was more courted by all classes; no loss was ever felt more severely than his decease; and no place in the most choice circles of literary and political commerce is so likely long to remain vacant. The school of Mr. Bentham has numbered among its disciples, apostles of his doctrine, others of eminent merit, of whom unhappily death, by removing one of the chief, enables us to speak, however difficult it may be to speak of him as his great merits deserve. When the system of legal polity was to be taught, and the cause of Law Reform to be supported in this country, no one could be found more fitted for this service than Mr. Mill, and to him more than to any other person has been owing the diffusion of those important principles and their rapid progress in England. He was a man of extensive and profound learning; thoroughly imbued with the doctrines of metaphysical and ethical science; conversant above most men with the writings of the ancient philosophers, whose language he familiarly knew; and gifted with an extraordinary power of application, which had made entirely natural to him a life of severe and unremitting study. His literary pursuits had originally directed him chiefly to subjects connected with moral and political philoso- phy; but his attention being drawn, somewhere about thirty years* ago, to the writings of Mr. Bentham, he speedily devoted to their study the greater part of his time; and, becoming acquainted with their celebrated author, was soon received into his entire confidence, and co-operated with him until his decease in the propa- gation of his philosophy.} It is in the valuable dissertations which Mr. Mill con- tributed to the Encyclopaedia Uritannica that the fruits of his labours in this field are stored for public use; and no one can rise from the perusal of them without being convinced that a more clear and logical understanding was never brought to bear upon an important subject, than he lent to the diffusion of his master's doctrines. His admirable works on the Principles of Political Economy, and of Moral Phi- losophy, entitle him perhaps to a higher place among the writers of his age; but neither these nor his History of British India, the greatest monument of his learn- ing and industry, can rie with his discourses on Jurisprudence in usefulness to the cause of general improvement, which first awakened the ardour of his vigorous mind, and on which its latest efforts reposed. His style was better adapted to didactic works, and works of abstract science, than to history; for he had no powers of narrative, and was not successful in any kind of ornamental composition. He was slenderly furnished with fancy, and far more capable of following a train of reasoning, expounding the theories of others, and pursuing them to their legitimate consequences, than of striking out new paths, and creating new objects, or even adorning the creations of other men's genius. With the single exception that ho had something of the dogmatism of tlie school, ho was a person of most praise- worthy candour in controversy, always of such self-denial that he sunk every selfish consideration in his anxiety for the success of any cause which he espoused, and ever ready to the utmost extent of his faculties, and often beyond the force of hid 1*03 or 1603. t To bin HOP, Mr. Jo'm Mill, we owe tlic preparation of Mr. Bcntlum's second work, the Rationale of Evidence, which IH admirably executed. 512 INTRODUCTION. constitution, to lend his help for its furtherance. In all the relations of private life he was irreproachable; and he afforded a rare example of one born in humble cir- cumstances, and struggling, during the greater part of his laborious life, with the inconveniences of restricted means, nobly maintaining an independence as absolute in all respects as that of the first subject in the land an independence, indeed, which but few of the pampered children of rank and wealth are ever seen to enjoy. For he could at all times restrain his wishes within the limits of his resources; was firmly resolved that his own hands alone should ever minister to his wants; and would, at every period of his useful and virtuous life, have treated with indignation any project that should trammel his opinions or his conduct with the restraints which external influence, of whatever kind, could impose. In Parliament the principles of law reform made at first a slower, but afterwards a rapid progress, Although Sir Samuel Romilly had at all times habitually applied his mind to the abuses in our systsm, had been all his life a student of general juris- prudence, and had accordingly been always a law reformer, yet he never hesitated in admitting his deep obligations to Mr. Bentham, whose friendship he had so long and so intimately enjoyed, and he would have at once acknowledged himself to be of his school, although his speculations, independently of Mr. Bentham, had taken their natural course. With Mr. Dumont his habits of intercourse through life were still more constant and close; they might, in fact, be said to have passed the greater part of their lives together. When the world sustained the irreparable loss of Sir Samuel's untimely death, his labours in improving the criminal code were most happily continued by Sir James Mackintosh; and it becomes a matter of duty to pass no occasion which presents itself for rendering justice to the exertions strenu- ously and successfully made by this distinguished and excellent person. There are, however, prudential reasons which might seem to dissuade any one from at- tempting to sketch a character that has already been touched by the master-hands of those to whom the features of the original were so familiarly known.* Nor could anything excuse such temerity, but the consideration that the historical na- ture of the present work at once requires such an addition, and forbids its being made by resorting to writings more or less professedly panegyrical. To the great subject of the Criminal Law, Sir James Mackintosh brought a mind well versed in the general principles of legal science; an acquaintance with ethi- cal philosophy, indeed with every department of philosophy, perhaps unequalled among his contemporaries; and the singular advantage of having devoted the best years of his life to the administration of justice. His mind was, besides, stored with various knowledge, as well practical as scientific, and, although he had never cultivated the exacter sciences since his early years, yet his origi- nal profession of a physician made the doctrines of Natural Philosophy familiar to him; and if it has been said, and justly said, that no man can be thoroughly acquainted with any one branch of knowledge without having some skill in the others also, to no department of study is this remark so applicable as to that of jurisprudence, which pushes its roots into all the grounds of human science, and spreads its branches over every object that concerns mankind. He was the better prepared for successfully accomplishing the task which he undertook, by the singular absence of all personal virulence, and even factious vehemence, which had uniformly marked his course both in public and private life: it reconciled to him those from whom he most widely differed in his opinions, and tended greatly to disarm the opposition with which his efforts as a Reformer were sure to meet, espe- cially among the members of his own profession. This quality, together with his long experience as a Criminal judge, more than compensated for his inferiority in weight as a legal authority, to his illustrious predecessor, who, although he stood so far at the head of the Bar as to have nothing like a competitor, had yet confined his practice chiefly (o the Courts of Equity, and whose superior influence as a states- man and a debater, might suffer some diminution from the opposition his more severe demeanour was apt to raise. On the opposite side of the account were to be set the weaknesses, most of them amiable or accidental in their origin, some of which enfeebled his character, while * Lord Abinger, Lord Jeffrey, Mr. Sydney Smith. LAW REFORM. 513 others crippled his exertions. His constitution, never robust, had suffered materially from his residence in India. He entered Parliament late in life, and, although always a most able and well informed speaker, occasionally capable of astonishing his audience by displays of the most brilliant kind, he never showed any powers as a debater, and, being more of a rhetorician than an orator, was not even calculated to produce the impression which eloquence alone makes; while, as a practical man of business, in all that related to the details of measures, or the conducting them through Parliament, he was singularly helpless and inefficient. It must be admit- ted that his mild deportment, his candid turn of mind, and the gentleness of his nature, while they might disarm the anger of some adversaries, were calculated to relax the 'Zeal of many friends; and he was extremely deficient both in that political courage which inspires confidence in allies, while it bears down the resistance of enemies, and in that promptitude, the gift of natural quickness, combined witli long practice, which never suffers an advantage to be lost, and turns even a disaster to account. His style of speaking, too, was rather of the epideictic, orexhibitory, than of the argumentative kind; and, as his habitual good nature led him not only to avoid vehement attacks, but to indulge in a somewhat lavish measure of commenda- tion, offence was given to friends more than ever enemies were won over. Even his most celebrated performances were less remarkable for reasoning than for dis- sertation; and the greatest speech he ever made nor was there ever one more eminently striking and successful delivered in Parliament the speech on the Foreign Enlistment Bill in 1819 although abounding in the most profound remarks, and the most enlarged views of policy and of general law, clothed in the happiest language, and enlightened by the most felicitous illustration, was exposed to the criticism of some judges of eloquence, as defective in the grand essential of argu- ment, and of that rapid and vehement declamation which fixes the hearer's attention upon the subject, making the speaker be forgotten, and leaving his art concealed. Against the purity of this eminent person's public conduct, no charge whatever was ever fairly brought. Few men, indeed, ever made greater sacrifices to his principles while his party was excluded from power, or were less rewarded for them when that party was admitted to office. He had early joined with those whose sanguine hopes led them to favour the French Revolution, and kept them blind for a season to the enormities of its authors. His " I'indiciic Ga//i'c," a work of con- summate ability, was the offering which he then made on the altar of the divinity whom he worshipped. With most good mon, he afterwards agreed in repudiating indignantly, and as if ashamed of his former friendship, all alliance with the Jacobin party; nor, although he perhaps went somewhat farther in his recantation than others who never had bowed at the same shrine, could he be said ever to have swerved from those liberal principles which were the passion of his early and the guide of his riper years. Upon his return from India, he at once refused the most flattering offers of place from Lord Liverpool's government; and he persevered, with the Whig party, in a long and apparently hopeless opposition to the end of the war, and through fifteen years of the ensuing peace. At length the party for which he had sacrificed so much succeeded to power, and he, though among the very first of its most distinguished members, was almost entirely passed over, while men of little fame, others of hardly any merit at all, and not a few of Tory principles till the moment of the government being formed, were lifted over his head; and planted in the cabinet of the Whigs. In that cabinet, indeed, there must have been some who could not with a steady countenance look down upon him thus excluded, while they wore admitted to unexpected power. His treatment, accordingly, has formed one of tin; greatest charges against the whole arrangements then made, hut justice requires that Lord (Ircy should be acquitted of all blame in this respect; for he had never been in any habits either of personal or of party intercourse with Sir J.unes, and might be supposed to share in the coldness towards him which some of the older Foxites unjustly and unaccountably felt. Hut even those memlx rs of tli<> government, who lived with him in constant habits of friendship, have innch more to urjji! in explanation of this dark passage in the history of the parly tli.m is com- monly imagined; for the objectors do not sufficiently consider, that, while Sir James Mackintosh's health, and aversion to the habits of business required by certain offices, excluded him from these, others arc, by invariable practice, given to high 514 INTRODUCTION. rank. The occasion of his being here mentioned, is the invaluable service which he rendered to the cause of Law Reform; a service that must endear his memory to all enlightened statesmen, and all good men, independent of the other assistance for which the rapid progress of liberal principles has to thank him; a progress so bene- ficial to mankind, so profitable to the Whig party at large, so advantageous to a select few of the Tories, now mingled with that Whig party, but so utterly barren of all benefit whatever to Sir James Mackintosh himself. After the defects in our legal system had been for many years fully exposed, and the principles upon which their correction should be undertaken had become familiar with the reflecting portion of the community, although some highly valuable improve- ments had been effected by Sir R. Peel, (perhaps as many as his position allowed, surrounded by those who held reform cheap, and those who held it in abhorrence,) these alterations had been chiefly confined to digesting the criminal code, and there seemed no prospect of the great work of general reformation being commenced, unless the attention of Parliament should be seriously directed towards it. The motion of Mr. Brougham for a commission to investigate the whole subject origi- nated in this conviction, and the following is the speech with which it was intro- duced. The view chiefly taken of the subject was intended for practical purposes, and the immediate correction of manifest defects. The evils, inconsistencies, and absurdities of the system of civil procedure were therefore singled out as the prin- cipal object of attack, the rather because, in Mr. Bentham's writings, the other branches of the mighty subject had been more copiously handled, and because it seemed manifest that the radical improvement of the remedies administered by the courts of law must lead to the universal reformation of our jurisprudence, while it afforded, in the meanwhile, substantial benefits to the community, and won over new converts to the great cause of law reform. The abuses in courts of equity had already attracted the attention of Parliament, under the truly able advocacy of Mr. Williams;* and a commission issued in consequence of his exertions had led to a useful though hitherto a sterile report. The defects in our criminal law had, since the labours o'f Sir S. Romilly and SirJ. Mackintosh, ceased to find defenders in any quarter. The present motion produced the immediate appointment of the two great commissions of common law inquiry, and inquiry into the law of real property, from whose labours have proceeded all the important changes recently made in our legal system; and in the course of a very few years the reform of the criminal law, and the general subject of codification was committed to the jurisdiction of a third commission, whose reports have led to all the mitigations lately effected in the en- actments of our penal code. The Notes appended to the following speech will show how far the defects which it points out have already been remedied, and will consequently enable us to ob- serve what admitted imperfections still remain to be removed. It appears that of about sixty capital defects pointed out, about fifty-five either have already been re- moved in whole, or in by much the greater part, by act of Parliament, or are in the course of being removed by bills now before Parliament, and which are quite certain to pass during the present session. The speech upon local courts which follows, was delivered on bringing in the bill for 1830. That bill was then read a first time; and, early in the next session, Mr. Brougham having been removed to the upper House, he introduced it there. The subject of Parliamentary Reform engrossing the whole attention of Parliament and the country during the two next sessions, the Common Law Commissioners were directed to consider the subject, which they fully investigated, and illustrated by a valuable body of evidence, from both professional and mercantile men, adding the sanction of their own high authority to the measure. It was, accordingly, pressed upon the attention of the House of Lords, in the session of 1833, and, * Now Mr. Justice Williams. LAW REFORM. 515 having undergone full discussion on the second reading, and in the committee, where its details were all settled, it was unfortunately thrown out by a majority of two, on the third reading. The Common Law Commissioners were originally, Messrs. Bosanquet, Parke, Alderson, and Sergeant Stephen. Upon the three first being raised to the bench, Messrs. F. Pollock, Starkie, Evans, and Wightman were added to the commission. The Real Property Commissioners are, Sir J. Campbell, Messrs. Tinney, San- ders, Duval, Hodgson, Duckworth, Brodie, and Tyrrell. The Criminal Law Commissioners are, Messrs. Starkie, Austin, Ker, Amos, Jardine, and Wightman. SPEECH ON THE PRESENT STATE OF THE LAW. DELIVERED IN THE HOUSE OF COMMONS, FEBRUARY 7, 1828. IN rising to address the House upon one of the most important subjects that can possibly be submitted to the legislature, I feel at the same time deeply impressed with the conviction, that it is also one of the most difficult, and certainly the largest, that could engage its atten- tion. I am aware that I stand engaged to bring before you the whole state of the Common Law of this country (the Common Law, I call it, in contradistinction to Equity), with the view of pointing out those defects which may have existed in its original construction, or which time may have engendered, as well as of considering the remedies appropriate to correct them. Nothing, I do assure you, at all strengthens and bears me up under the pressure of this vast and over- whelming burthen, but a conviction of the paramount importance, nay, the absolute necessity, of no longer delaying the inquiry, or postponing the needful amendments; and the intimate persuasion I feel, that I shall be able so to deal with the subject (such is my deep veneration for all that is good in our judicial system, and my habitual respect for those in whose hands the administration of it is placed), as neither to offend the prejudices of one class, nor vex the personal feel- ings of another. But I feel a confidence, also, which is unspeakable, resting on another ground. I come not here to raise cavils before men ignorant of the details and niceties of the profession I belong to, and who, in that unavoidable ignorance, would be unfit judges of their merits; I am determined to avail myself in no respect of their situation, or of the absence of the learned Body of the Profession, for the sake of a futile and pitiful triumph over what is most valuable in our jurisprudence. lam comforted and confirmed in my resolu- tion, by the accidental circumstances that have joined me, in some sort, to the administration of the law in which I have had so consider- LAW REFORM. 517 able an experience. I have seen so much of its practical details, that it is, in rny view, no speculative matter whether for blame or praise. I pledge myself, through the whole course of my statements, as long as the House may honour me with its attention, in no one instance to make any observation, to bring forward any grievance, or mark any defect, of which I am not myself competent to speak from personal knowledge. I do not merely say, from observation as a bystander; I limit myself still further, and confine myself to causes in which I have been counsel for one party or the other. By these considera- tions emboldened on the one hand, and on the other impressed with a becoming sense of the arduous duty I have undertaken in this weighty matter, I will, without further preface, go on, in the first place, to state the points which I intend to avoid. I shall ornit Equity in every branch, unless where I may be com- pelled to mention it incidentally, from its interference with the course of the Common Law, not that I think nothing should be done as to Equity, but because in some sort it has been already taken up by Parliament. A commission sat and inquired into the subject, and produced a report, received though not yet acted upon. The noble and learned lord who presides in the other House, has announced his intention of proposing a bill, founded on that report. I may also add, that the subject has, to his own great honour, and to the lasting benefit of the country, been for many years in the hands of my honourable and learned friend, the member for Durham;* it is still with him, and 1 trust his care of it will not cease. For reasons of a like kind, I pass over the great head of Criminal Law. That inquiry, happily for the country, since the time when first Sir Samuel Romilly (a name never to be pronounced by any without veneration, nor ever by me without sorrow) devoted his talents and experience to it, has been carried forward by my honour- able and learned friend the member for Knaresborongh,t with various success, until at length he reaped the fruit of his labours, and pre- vailed upon this House, by a narrow majority, to bend its attention towards so great a subject. On a smaller scale, on one indeed of a very limited nature, these inquiries have been since followed up by the right honourable gentleman who is now again Secretary of State for the home department.^ It is not so much far anything he has actually done, that I feel disposed to thank him, as for the countenance he has given to the subject. He has power, from his situation, to effect reforms which others hardly dare propose. His connections in the church and state render his services in this department almost invaluable. They have tended to silence the clamours that would otherwise have been raised against the reform of the law, and might possibly have proved fatal to it. If (which I do not believe) he in- tended to limit his efforts to what he has already accomplished; if he were disposed to say, "Thus far have I gone, and no further can I go with you," the gratitude of his country would still be due to him in * Mr. M. A. Taylor. f Sir James Mackintosh. $ Sir Robert Peel. VOL. I. 4 t 513 LAW REFORM. an eminent degree, for having abashed the worst enemies of improve- ment by his countenance and support. But I trust he will again direct the energies of his mind to the great work of reformation, and bestow his exertions over a wider space. Another reason for avoiding this part of the subject altogether, is to be found in the nature and objects of the Criminal Law. I do not think it right to unsettle the minds of those numerous and ignorant classes, on whom its sanctions are principally intended to operate. It might produce no good effects if they were all at once to learn, that the Criminal Law in the mass, as it were, had been sentenced to undergo a revision that the whole Penal Code was unsettled and about to be remodelled. I intend also to leave out of my view the Commercial Law. It lies within a narrow compass, and it is far purer and freer from defects than any other part of the system. This arises from its later origin. It has grown up within two centuries, or little more, and been formed by degrees, as the exigency of mercantile affairs required. It is accepted, too, in many of its main branches, by other states, forming a code common to all trading nations, and which cannot easily be changed without their general consent. Accordingly, the provisions of the French Civil Code, unsparing as they were of the old municipal law, excepted the law merchant, generally speaking, from the changes which they introduced. Lastly, sir, the law of real property forms no immediate subject of my present consideration; not that I shall not have much to propose intimately connected with it, and many illustrations to derive from it; but I am flattered with the hope that the Secretary for the Home Department intends himself, on this subject, to bring forward certain measures, by which the present system will eventually undergo salu- tary alterations: And I cannot help here saying, that whatever the criminal law owes to the persevering and enlightened exertions of the late Sir Samuel Romilly, and of his successor, the member for Knares- borough,* I am sure an almost equal debt of gratitude has been incurred on the part of the law of real property, to the honest, patient, and luminous discussion which it has received from one of the first conveyancers and lawyers this country could ever boast of. My honourable and learned friend (the Solicitor-General)! opposite, and those members of the House who are conversant with our pro- fession, will easily understand that I can only allude to Mr. Humphreys. With these exceptions, which I have now stated as shortly as I was able, and for which I shall offer no apology, because it was absolutely necessary that I should begin by making the scope of my present pur- pose understood, I intend to bring all the Law as administered in our Courts of Justice under the review of the House; and to this ample task I at once proceed. But I shall not enlarge, after the manner of some, on the infinite importance and high interest which belong to the * Sir James Mackintosh. | Sir N. Tindal (now Lord Chief-Justice of Common Pleas.) LAW REFORM. 519 question, and the attention which it, of right, claims from us, whether we be considered as a branch of the government, or as the represen- tatives of the people, or as a part of the people ourselves. It would be wholly superfluous; for every one must at once admit, that if we view the whole establishments of the country the government by the king and the other estates of the realm, the entire system of admin- istration, whether civil or military, the vast establishments of land and of naval force by which the State is defended, our foreign nego- tiations, intended to preserve peace with the world, our domestic arrangements, necessary to make the government respected by the people, or our fiscal regulations, by which the expense of the whole is to be supported, all shrink into nothing, when compared with the pure, and prompt, and cheap administration of justice throughout the community. I will indeed make no such comparison; I will not put in contrast things so inseparably connected; for all the establishments formed by our ancestors, and supported by their descendants, were invented and are chiefly maintained, in order that justice may be duly administered between man and man. And, in my mind, lie was guilty of no error, he was chargeable with no exaggeration, he was betrayed by his fancy into no metaphor, who once said, that all we see about us, King, Lords, and Commons, the whole machinery of the State, all the apparatus of the system, and its varied workings, end in simply bringing twelve good men into a box. Such the administra- tion of justice is the cause of the establishment of government such is the use of government: it is this purpose which can alone justify restraints on natural liberty it is this only which can excuse constant interference with the rights and the property of men. I invite you then, sir, to enter upon an unsparing examination of this mighty sub- ject; I invite the House to proceed with me, first of all, into the dif- ferent courts to mark what failures in practice are to be found in the system, as it was originally framed, as well as what errors time has engendered by occasioning a departure from that system; and after- ward to consider whether we may not safely and usefully apply to those defects remedies of a seasonable and temperate nature, restoring what is decayed, if it be good lopping oil' what experience has proved to lie pernicious. I. i. In the first place, let us proceed to the Courts in Westminster hall, and observe the course pursued in them. The House is aware that, whatever may have been the original of our three great Common Law Courts, they now deal with nearly the same description of suits; and that, though the jurisdiction of each was at first separate and con- fined within very narrow limits, their functions are now nearly the same. The jurisdiction of the Court of King's Bench, for example, was originally confined to Pleas of the Crown, and then extended to actions where violence was used, actions of trespass by force; but now all actions are admissible within its walls, through the medium of a legal fiction, adopted for the purpose of enlarging its authority, that every person sued is in the custody of the Marshal of the Court, and may, therefore, bo proceeded against for any personal cause of 520 LAW REFORM. action. Thus, by degrees, this Court has drawn over to itself actions which really belong to the great forum of ordinary actions between subject and subject, as its name implies, the Court of Common Pleas. The Court of Common Pleas, however, in its exertions for extending its business, was not so fortunate as its rival; for, though it made a vigorous attempt, under Lord Chief Justice North, to enlarge its sphere, it never was able to obtain cognizance of the peculiar subject of King's Bench jurisdiction Crown Pleas. I hope, sir, the House will allow me, for the sake of a little diver- tisement in the midst of so dry a matter, to state the nature of the con- test between the two courts, as described by Roger North in his biography of the Lord Keeper, a work of amusement with which I am sure my learned friend (the Solicitor-General) is as well acquainted as he is with the subtleties of his profession. It appears from his account, that the Courts of King's Bench and Common Pleas had quarrelled as to their respective provinces; for he says, " The Court of Common Pleas had been outwitted by the King's Bench, till his lordship came upon the cushion, and that by our artifice in process called ac etiams. His lordship used the same artifice in the process of his court, where it was as good law as above. But Hale exclaimed against it, and called it altering the process of law; which very same thing his own court had done, and continued to do every day."* In another place he tells how, "The two courts being upon terms of competition, the King's Bench outwitted ihe Common Pleas;" and how the latter '-'invented a shift" against the King's Bench. " There," says he, " the Common Pleas thought they had nicked them. But the King's Bench was not so sterile of invention as to want the means of being even with that device;" and he shows how conclud- ing with this remark "The late Chief Justice, Sir Orlando Bridgman, and his officers of the Common Pleas, gave this way of proceeding by the King's Bench very ill language, calling it an arbitrary alteration of the form of legal process, and utterly against law. But the losers might speak; they got nothing else; and the Triccum in lege carried it for the King's Bench; which court, as I said, ran away with all the business."! The Exchequer has adopted a similar course: for, though it was originally confined to the trial of revenue cases, it has, by means of another fiction the supposition that every body sued is a debtor to the crown, and further that he cannot pay his debt because the other party will not pay him opened its doors to every suitor, and so drawn to itself the right of trying cases that were never intended to be placed within its jurisdiction. The first state of the courts being that of distinct jurisdiction, then of course this separation of provinces was praised; afterwards, all distinction became obsolete, and then the conflict and competition were as much commended: and with far greater reason, if the com- petition were real; but it is almost purely speculative. In the first * North's Lives of Lord Keeper Guilford, &c., vol. i, p. 130. | Ibid., p. 203. LAW REFORM. 521 place, the Court of Common Pleas shuts its door to many practitioners of the law, by requiring that a certain proportion of fees should be advanced at a much earlier stage in the cause than is customary in the oilier courts.* For who is it that must advance this money? Either the attorney himself, if it be his own cause, must pay the money out of his own pocket, or, if he is acting as agent for a country practitioner, he must begin by laying out the money long before he can draw upon his employer for reimbursement, and he is not, in all cases, sure of being repaid for those advances. In the second place, clients and their attorneys are induced not to carry causes into the Common Pleas, by the strict monopoly that exists in the advocates of that court. t I have every wish to speak with all respect of the learned persons who there engross the practice; but as, no doubt, solicitors will have their favourites, and as, possibly, their clients may also have their favourites, the practice not being open to all barristers, prevents many suitors from resorting to a court where no one can be employed for them, at least in term time, except he be a sergeant; and great as the learning of that body is known to be, well founded as their reputation is for skill and for zeal, as well as for legal know- ledge, yet the exclusive right which they exercise operates to keep away business from the court; and thus it has happened both that other advocates seldom practise there at Nisi Prius where the court is open, and that much fewer suits are carried to the Common Pleas than to the King's Bench. The causes which thus operate to shut the doors of that court must be removed, before it can hope to have its fair share of practice. The Exchequer, in like manner, has its drawbacks, though they operate in another way. There is one reason why, as at present constituted, it cannot do much business, or have the high reputation which it ought to enjoy; I mean the mixture of various suits which are cognizable in it. It is in fact, a court of all sorts of equity and of law of revenue law and of ordinary law of law between sub- ject and subject, as well as of law between the subject and the crown. This makes suitors, seeing the business done in so many different ways, come to the conclusion that it is not well done in any. I do not by any means assert that this is a correct opinion, at the present time; because the judges and the barristers employed in that court do not, I am convinced, yield to any body of professional men in their knowledge of equity and law. There are to be found on its bench highly distinguished equity and common lawyers; men of known legal talents, and the greatest experience both in Chancery praciice, in Nisi Prius, and in criminal law. In what, therefore, I have said, I refer merely to that species of public opinion, which, whether right or wrong, has been engendered by the constitution of the court; I refer, also, to the natural tendency of a jurisdiction, thus This evil has since been remedied by the new orders of the Judges under an Act of Parliament. j This monopoly was abolished in 1832, when the Common Pleas was thrown open. 44* 522 LAW REFORM. open to such a variety of jurisprudence, to degenerate into inaccu- racy, or want of effective skill in each department. But there is another and more obvious reason why this court does not obtain so much business as the others; I mean the limited number of attorneys belonging to and allowed to practise in it.* If there is cause to complain, as I have been doing, of the monopoly among the advo- cates attached to the Common Pleas, there is much more cause for a similar complaint touching the attorneys in the Exchequer. The prac- titioners in that court are four attorneys and sixteen clerks, and none others are allowed to practise there; if a country attorney wishes to take his cause thither, the only mode by which he can do so, is to employ one of the privileged attorneys of the court, and divide with him the profits of the suit. It is needless to say that such a system has, of necessity, a tendency at once to shut the doors of the Court of Exchequer against the suitors. What, then, is the natural consequence of these restrictions which prevent suitors from approaching the Courts of Common Pleas and Exchequer? Why, it is this wherever there is but little business done in any court, those in power are induced not to place the strong- est judge in that situation; then, the small portion of business to be done renders the judge less fit for his office; and so, by action and reaction, while the little business makes the bench and the bar less able, the inferior ability of the court still further reduces that little business. 1 arn here speaking of past times, but with a view, how- ever, to what may occur at a future period. We may not always have the Bench so well filled as it is at present. The time may come when, if a judge were to be made, in consequence of political influence, who was known not to be capable of properly filling the office, it might be said by those who supported him, ' Oh it does not matter send him to the Court of Exchequer he will have nothing to do there." Thus the small portion of business transacted the suspicion originating from the general mixture of suits carried on in different ways, that the business is not well done the monopoly of attorneys, together with several other causes, occasions this court to be the least frequented of any; indeed, it has now scarcely anything to engage its attention. The judges do not sit for more than half an hour some mornings, and there are hardly ever on the paper more than six or seven causes for trial after term; a dozen would be con- sidered a large entry ;t when I well remember Lord Ellenborough having 588 set down for trial in London only; and the present Lord Chief Justice lately had on his paper no less than 850 untried causes. I mention this to support my proposition, that there is not really a free competition between the different courts. To say, in the cir- cumstances which I have stated, that suitors have a free access to all the courts equally, is a fiction an assertion adapted to what ought * This monopoly has also been put an end to. f The entry of Exchequer causes is now fully equal to that of the King's Bench. Lord Lyndhurst's talents greatly aided the Law Reform in producing this result. LAW REFORM. 523 to be, perhaps to what is intended, but certainly not founded on the fact. Experiments have been trird to lighten the business of the Court of King's Bench; but I do not find that any of them have answered the purpose for which they were instituted. The first of these attempts was made in the year 1S21, when it was arranged tlmt the Chief Jus- tice should sit in one court, and a Puisne Judge in another, at the same time; but never did any arrangement fail more completely. The court in which the Puisne Judge sat remained almost idle, while the other court was as constantly preferred, and nearly as much over- loaded as before. Little else was effected but a great inconvenience both to practitioners and suitors, by the passing and repassing from court to court. In fact, it is not in the power of the courts, even were all monopolies and other restrictions done away, to distribute business equally, as long as the suitors are left free to choose their tribunal. There will always be a favourite court; and the circum- stance of its being preferred tends to make it more deserving of pre- ference; for if the favour towards it began in mere caprice, the great amount of business draws thither the best practitioners, to say nothing of judges; and the better the court, the greater will be its business. The same action and reaction will operate favourably, which I before showed in its unfavourable effects where a court was declining Pos- sunt quia posse videntur. The experiment of 1S21 having failed entirely, was not repeated. Another attempt has subsequently been made to relieve the Court of King's Bench from the pressure of Term business, which must always bear a proportion to the Nisi Prius causes. This system is still going on under the bill brought into the House by the present Chancellor, and of which, though he was induced to patronise it offi- cially when Solicitor-General, I have reason to believe he never much approved. As this arrangement is compulsory, the client having no choice, it cannot well fail; but I heartily wish that it had failed, for it has done much mischief, and is certainly one of the worst changes that has ever taken place. It is true, the great pressure of business requires that something should be done; but it is equally true that the right thing has not been adopted; for, where the King's Bench sits, with the Chief Justice presiding where the suitor's resort where the bar is mustered where the public attend where all the counsel and attorneys appear where the business is disposed of as it ought to be, gravely and deliberately, with the eyes of mankind, with the eyes of the bar, as well as of the world at large, turned on the proceedings, would not every otic point to that as the place in which all important legal questions ought to be decided? Would not any one, on the other hand, say, if another court were constituted in a sort of hack room, where three judges were sitting where the only per- sons present, besides the judges, were the counsel and attorney em- ployed on cither side of the cause that was pending where there was no audience, and the public eye was entirely directed, not upon \A\{from that to the other court would not any one, 1 ask, declare 524 LAW REFORM. that a court, so circumstanced, was the place in which the trifling business alone should be transacted? These, I think, would be but natural conclusions; and yet if the matter be stated exactly the other way, it will be far nearer the truth. Of the really important business, as regards both its difficulty and importance to the law, and indeed to the suitor, a very large proportion is done in that back room, and before those three judges. It is done in a corner, and, I may say, disposed of behind people's backs, with only the attendance of the at- torney and barrister on each side, or at most, with the presence of these and of the practitioners waiting for the next cause; and as the court is not frequented by the public any more than the profession, the business may certainly be said to be transacted without due pub- licity and solemnity. Thus we see that by this arrangement, while the most interesting matter is overlooked, trifling business and points of no importance are brought forward with all possible observation; a motion for judgment as against the casual ejector, which is a mo- tion of course a motion to refer a bill to the Master to compute prin- cipal and interest for judgment, as in case of a nonsuit and a thou- sand others, either of course or of the most trifling moment, are heard with the utmost publicity before the whole court before the whole bar before the whole body of attorneys before the whole public all of which might be settled by the three judges in a corner, or by any one of their clerks. The consequence is, that much time is lost to the full court, while the most important business special argu- ments raising the greatest legal questions new trials, involving both matters of law and fact, affecting large interests; and the Crown-paper, comprehending all the questions from Sessions, are obliged to be heard in the private and unsatisfactory manner I have described. I wish this system to be remedied, because it is a great and growing evil.* It may be said that the judges have not time to do the business. I deny that: there is time. Six hours a-day, well employed, would be amply sufficient for all purposes. Let them come down to the court at ten o'clock in the morning, and remain till four a period of six hours and the business may be done. But the system is at present extremely ill-arranged, and I will show how, without having any one to blame for it. The judges do their utmost, but they cannot remedy the evil without your aid. Let us see how their time is employed. They are supposed to come to the court at ten o'clock, and to remain there till four. Surely this time may safely be pronounced to be suffi- cient for the transaction of their business. Then why have they not these six hours? There are two reasons for it, the one is, that bail must be taken by a judge. Mr. Justice Buyley, no longer ago than last Monday, was occupied the whole day in the Bail Court; and this morning Mr. Justice Holroyd was not able to get away till twelve o'clock. I cite these instances of late occurrence, sir, that you may see how closely I desire to keep by the actually existing state of the * This evil has since been remedied; the sittings of the three Puisne Judges being abolished. LAW REFORM. 525 facts; bnt every week furnishes examples as well as the present. Thus, then, we see that in one case a whole day was lost, as far as regards a full court, and in another, two hours, merely for the purpose of attending to trifling business, which might just as well be trans- acted by a commissioner, say a barrister often years' standing. The other reason why the judges' time is misspent, arises from chamber business, which consists in the learned judges, the profound lawyers, the great magistrates, whose names I have made free to mention, sit- ting at Sergeants' Inn to hear the squabbles of attorneys, and the clerks of attorneys among themselves for barristers rarely attend. This takes them in rotation away from the court at three o'clock; so that, in fact, while their nominal time is from ten to four, they are only, on the average, really present from eleven or twelve to three, by which means, instead of transacting business during six hours, the time is reduced to three, or at most four hours per day.* And what, sir, is the inference from all this? Obvious enough, certainly; for though it may be fairly contended that the business of the Bail Court could be transacted by a commissioner, it may perhaps be doubted whether the chamber practice does not require a judge to perform it, considering the points to be disposed of, and the persons to be controlled. There may, therefore, be a sufficient excuse for the arrangement, as matters stand at present, and yet a remedy may be necessary, as it may cer- tainly be found in changing the circumstances. For my own part, I frankly confess that I am one of those who do not see the paramount excellence that some suppose to be vested in the number twelve; al- though Lord Coke has spoken of it with a degree of rapture like that of the algebraist, when he dwells upon the marvellous powers of three or of nine. Twelve appears to be the number, in his view, connected with all that is important and venerable, either sacred or profane, an- cient or modern; but as I, unfortunately, do not possess the lights by which he was guided, I cannot help thinking that fourteen is a much better number than twelve, although it may not be so good for divi- sion; and although I cannot quote the fourteen Apostles, or the four- teen Tables, or the fourteen wise men. It will, indeed, divide by seven, which is more than can be said of twelve; but I rely not upon that superiority: it has another arithmetical quality of more import- ance. Though neither so divisible nor so beautiful, nor so classical as twelve, it contains two more units than twelve beats it by two beyond all doubt or cavil; and that superiority recommends it for my present purpose. If twelve was beautiful in the days of Lord Coke, fourteen must now, I fear, on this account, take its place; for how any one can suppose that twelve men are able to do now what they wcro only enough to do centuries ago, is to me matter of astonishment; now, that they have seven or eight hundred causes to try, where they for- merly had but thirty or forty, and when we know that in the time of Lord Mansfield, in the late reign, sixty was reckoned a fair entry. t * This also has been remedied; the judges sitting in rotation, term about, at chamber** the whole day, and no judge leaving the. court. \ The number of judges has been now incrcasod to fifteen. 526 LAW REFORM. This, sir, is one of the illustrations which I would give to expose the heedless folly of those who charge the bench and the bar with causing all the delays in legal proceedings. How can it be expected that twelve judges can go through the increased arid increasing business now, when the affairs of men are so extended and multiplied in every direction, the same twelve, and at one time fifteen, having been not much more than sufficient for the comparatively trifling number of causes tried two or three centuries ago? But there is a far more un- thinking and more dangerous prejudice, to which the same topic is a complete refutation, I mean the outcry against innovation, set up as often as any one proposes those reforms rendered necessary by the changes that time, the great innovator, is perpetually making, Tern- pus novator rerum. Those who advise an increase of the judges beyond their present number are not innovators. The innovators are, in truth, those who would stand still while the world is going for- ward, who would only employ the same number of labourers while the harvest has increased tenfold, who, adhering to the ancient sys- tem of having but twelve judges, although the work for them to do has incalculably increased, refuse to maintain the original equality, the pristine fitness of the means to the end, the old efficiency and ade- quacy of the establishment; but they are not innovators who would apply additional power when the pressure exceeds all former bounds, who, when the labour is changed, would alter the force of work- men employed, and thus preserve the proportions that originally ex- isted in the judicial system, who would most literally keep things as they were, or return them to their primitive state by restoring and perpetuating their former adaptation and harmony. The advantage of the addition I am recommending will become the more evident when I have to consider the Welsh judicature, which I believe to be the worst that was ever established. Why should not the two judges be received amongst the others, and divide the Welsh circuits with the old ones?* Not that I mean they should always take those cir- cuits, but each might take them in his turn, as each in his turn might sit in the Courts of King's Bench and Common Pleas, and at the Old Bailey, beside dividing with the chiefs the sittings at Nisi Prius.t That the King's Bench paper is now far too heavy, there cannot be a donbt, and so it will always be. No one judge can get through the mass of causes entered in the King's Bench, trying them patiently, and really hearing them to an end. Depend upon it, when more have been tried in the same time, they have been half heard, and forced to compromise or reference. Now, if you will have two judges sitting at Nisi Priiis at once, each of them taking a particular class of trials the one confining himself to the heavy business, and * This has now become the law. f The three Puisne Judges thus sitting in Bane, the fourth would each term take bail and insolvents and common motions in the morning 1 , and chamber business afterwards; he would also take the sittings in Term, a serious inconvenience at pre- sent.* * It is so now. LAW REFORM. 527 the other to bills of exchange, promissory-note cases, and undefended causes generally the whole business of the court could be got through both thoroughly and wiih despatch;* but as the law now stands, it is utterly impossible for any man, in days consisting of no more than twenty-four hours, and labouring for eleven months in the year, to dispose of the business before him. I say eleven months; for the court, with the exception of a day or two of respite at Easter, and a week at Christmas, sat for above eleven months last year, taking the circuits as part of the year's work. Another obvious distribution might be made without having two judges sitting together in one court. As all real actions have their domicile in the Common Pleas, actions which, in their nature, partake of real actions, as ejectments, trespass to try title, and so forth, might be carried there too. Other suits might be susceptible of a similar classification, as if actions respecting tithes, which are not frequent, bills of exchange, and promissory notes, were carried into the Court of Exchequer. The Lord Chief Baron is allowed, by the 57th of Geo. Ill, to sit in equity and to hear alone all causes and all motions in equity; but he never, in fact, does hear motions, although certainly no lawyer ever sat in that court more fitted to despatch any branch of equity practice than is the present head of the Exchequer.t Were he confined to the equity side, and were another judge, a common lawyer, appointed to preside on the law side of that court, you would have two effective courts, instead of one not very effective for either law or equity.J The Court of Chancery would be materially relieved by this arrangement; while the double good would be found, of the business being better done both on the bench and at the bar, from that expertness which ever attends the division of labour; and of seasonable relief being afforded to both the judges and practitioners of the King's Bench, who would be restored to something of the leisure, at least the moderate professional employment, so favourable to the liberal pursuits and that unfettered study of jurisprudence, which have always formed the most accomplished lawyers. There are two observations, sir, which I have to make relative to the judges generally, and which I may as well state now I am upon that subject. I highly approve of paying those learned persons by salaries, and not by fees as a general principle; but so long as it is the practice not to promote the judges, and which I deem essential to the independence of the bench, and so long as the door is thus closed to all ambition, so long must we find a tendency in them, as in all men arrived at their resting place, to become less strenuous in their exer- tions than they would be if some little stimulus were applied to them. They have an irksome and an arduous duty to perform; and, if no mo- tive be held out to them, the natural consequence must be, as long as men are men, that they will have a disposition growing with their years to do as little as possible. I, therefore, would hold out an in- It la so now. f Sir W. Alexander. This reform has not been introduced. 528 LAW REFORM. dncement to them to labour vigorously, by allowing them a certain moderate amount of fees. I say a very moderate amount, a very small addition to their fixed salary would operate as an incentive; and if this were thought expedient, it ought to be so ordered that such fees should not be in proportion to the length of a suit, or the number of its stages, but that the amount should be fixed and defined once for all, in each piece of business finally disposed of. I am quite aware that this mode of payment is not likely to meet with general support, especially with the support of the reformers of the law; but I give the suggestion as the result of long reflection, which has pro- duced a leaning in my mind towards some such plan. I throw out the matter for inquiry, as the fruit of actual observation, and not from any fancy that I have in my own head; but I may also mention, that some friends of the highest rank and largest experience in the profession, agree with me in this point men who are among the soundest and most zealous supporters of reform in the courts of law.* The other general observation that I have to make, with respect to the judges, is of a nature entirely different from the last which I have submitted to the House. The great object of every government, in selecting the judges of the land, should be to obtain the most skilful and learned men in their profession, and, at the same time, the men whose character gives the best security for the pure and impartial ad- ministration of justice. I almost feel ashamed, sir, to have troubled you with such a truism; but the House will presently see the appli- cation I am about to make of it. Sorry am I to say, that our system of judicial promotion sins in both these particulars. Government ought to fill the bench with men taken from among the most learned lawyers and most accomplished advocates men who have both knowledge of the depths of jurisprudence, and sagacity to apply it men who, from experience as leading advocates, possess the power of taking large and enlightened views of questions, and of promptly seizing the bearings of a case. There cannot be a greater error than theirs who fancy that an able advocate makes a bad judge; all expe- rience is against it. The best judges in my time, with the exception of the present Lord Chief Justice,t than whom no man can discharge his office more excellently and efficiently, have all of them been pre- viously distinguished in the profession as advocates. But not only should the choice be unconfined by the legal acquirements and profes- sional habits of the practitioner; there ought not to be, in choosing judges from the bar, any exclusion or restriction. He alone ought to be selected, in whom talent, integrity, and experience most abound, and are best united. The office of judge is of so important and re- sponsible a nature, that one should suppose the members of govern- ment would naturally require that they should be at liberty to make their selection from the whole field of the profession that they would themselves claim to have the whole field open to their choice. Who could believe that a ministry would not eagerly seek to have all men * This has not yet been so arranged. f Lord Tenterden. LAW REFORM. 529 before them, when their object must be to choose the most able and accomplished? But although this is obvious and undeniable, and although the extension of the minister's search cannot fail to be at- tended with the highest public advantage, as well as the greatest relief to him in performing his (rust, is it the case that any such gene- ral and uncontrolled choice is exercised? Is all the field really open? Are there no portions of the domain excluded from the selector's au- thority? True, no law presents such a search for capacity and worth! True, the doors of Westminster Hall stand open to the minister! He may enter those gates, and choose the ablest and the best man there. Be his talent what it may, be his character what it may, be his party what it may, no man to whom the offer is made will refuse to be a judge. But there is a custom above the law a custom, in my mind, " more honoured in the breach than the observance," that party, as well as merit, must be studied in these appointments. One half of the bar is thus excluded from the competition; for no man can be a judge who is not of a particular party. Unless he be the known adherent of a certain system of government unless he profess himself devoted to one scheme of policy unless his party happen to be the party con- nected with the crown, or allied with the ministry of the day, there is no chance for him; that man is surely excluded. Men must be on one side of the great political question to become judges; and no one may hope to fill that dignified office, unless he belongs to the side on which courtly favour shines; his seat on the bench must depend, gen- erally speaking, on his supporting the leading principles of the exist- ing administration.* But perhaps, sir, I may be carrying this distinction too far, and it may be said that the ministers do not expect the opinions of a judge should exactly coincide with theirs in political matters. Be it so; I stop not to cavil about trifles; but, at all events, it must be admitted that, if a man belongs to a party opposed to the views of government; if, which the best and ablest of men, and the fittest for the bench, may well be, he is known for opinions hostile to the ministry, he can ex- pect no promotion rather let me say, the country has no chance of his elevation to the bench, whatever be his talents, or how conspicu- ously soever he may shine in all the most important departments of his profession. No one, I think, will venture to deny this; or, if he do, I defy him to show me any instance in the course of the last hun- dred years, of a man, in party fetters, and opposed to the principles of government, being raised to the bench. No such thing has taken place that 1 know of. Never have I heard of such a tiling, at least in England; though we have, perhaps, known instances of men who have changed their party, to arrive at the heights of their profession. But on this subject, desirous throughout of avoiding all olfence, 1 will not press well, I do not wish to say a woid about it. * In 1M1 this practice was broke through, and to the prent benefit of the pro- fession, a Chief Baron appointed from the ranks of the Opposition. 80 the new Bankrupt court was coiiblituted without uny regard to party. VOL. i. \ r> 530 LAW REFORM. In Scotland, it is true, a more liberal policy has been adopted, and the right honourable gentleman opposite* has done himself great honour by recommending Mr. Gillies, Mr. Cranstoun (now Lords Gillies and Corehouse), and Mr. Clerk (Lord Eldin), all as well known for party men there as Lord Eldon is here,t though, unfortunately, their party has been what is now once more termed the wrong side, but all men of the very highest eminence among the professors of the law. Now, when I quote these instances in Scotland, I want to see examples of the same sort in England; for however great my respect for the law and the people of the north may be, I cannot help think- ing that we of the south too, and our jurisprudence, are of some little importance, and that the administration of justice here may fairly call for some portion of attention. But, sir, what is our system? If, at the present moment, the whole of Westminster Hall were to be called upon, in the event of any vacancy unfortunately occurring among the Chief Justices, to name the man best suited to fill it, to point out the individual whose talents and integrity best deserved the situation whose judicial exertions were the most likely to shed blessings on his country can any one doubt for a moment whose name would be echoed on every side? No; there could be no question as to the indi- vidual to whom would point the common consent of those most com- petent to judge; but then he is known as a party man. and all his merits, were they even greater than they are, would be in vain ex- tolled by his profession, and in vain desiderated by his country. I reprobate this mischievous system, by which the empire loses the ser- vices of some of the ablest, the most learned, and most honest men within its bounds. And here let me not be supposed to blame one party more than another; I speak of the practice of all governments in this country; and, I believe, when the Whigs were in office, in 180G, they did not promote to the bench any of their political opponents; they had no vacancies in Westminster Hall to fill up, but in the Welsh judicature they pursued the accustomed course. Now what is the consequence of thus carrying party principles into judicial appointments? The choice of judges is fettered by being confined to half the profession: so that you have less chance of able men; and those you get are of necessity partisans, and therefore less honest and impartial. Why should the whole bench be Ministerial or Tory? No man can desire it to be so, for the purposes of judging over a community, far very far, from being Ministerial or Tory. Yet it must be so, unless vacan- cies should occur during those visits of Whig ministries, "few and far between," when once in a quarter of a century power alights upon that party, and then spreads its wings and flies from them in a few months. Does not this arrangement instil into the minds, both of expectant judges and of men already on the bench, a feeling of * Sir R. Peel. | Two other instances should be added the learned and venerable Lord Chief Commissioner, who has had the signal happiness of presiding over the introduction of Jury Trial into his native country, and Mr. Cathcart, Lord Allovvay. LAW REFORM. 531 party fatal to strict justice in political questions? I speak impartially hut unhesitatingly on this point, for it is perfectly notorious that, now- a-days, whenever a question comes before tiie bench, whether it be upon a prosecution for libel, or upon any other matter connected with politics, the counsel at their meeting take for granted that they can tell pretty accurately the leaning of the court, and predict exactly enough which way the consultation of the judges will terminate, though they may not always discover the particular path which will lead to that termination. While the system I complain of continues, while you suffer it to continue, such a leaning is its necessary conse- quence. The judges have this leaning, they must have it, they can- not help having it, you compel them to have it; you choose them on account of their notoriously having it at the bar; and you vainly hope that they will suddenly put it off, when they rise by its means to the bench. On the contrary, they know they fill a certain situa- tion, and they cannot forget by whom they were placed there, or for what reason. There is no doubt that the present judges will always discharge their functions with all the impartiality that any man can expect from them; but I speak without reference to individual habits or prejudices I speak of impressions which it is natural to expect must exist, where circumstances all conspire to create them; I speak too, I must be allowed to say, quite disinterestedly. I cannot take the situation, of a judge I cannot afford it. I speak not for myself, but for the country, because I feel it to be a matter of the deepest importance; and from what I have seen of the right honourable gentleman oppo- site,* I really do hope to see this matter much more maturely weighed than it has heretofore been. ii. I am afraid that I have already tired the House with the length of these details; but I must now take my leave for a time of West- minster Hall, and beg of you to mark, in the next place, the manner in which the law is administered in Wales. Why should Wales, be- cause it happens to be termed the Principality, have the rights of pro- perty, and the personal privileges of the inhabitants, dealt with by different judges, and almost by a different system from that which is established in England? In England you have the first men men of the highest education and experience to sit in judgment on life and property. In Wales you have as judges, I will not say inferior men, but certainly not the very first, nor in any respect such as sit upon what Roger North calls the "cushion in Westminster Hall." I shall here show three great defects requiring a remedy most impera- tively. Oftentimes those persons have left the bar and retired to the pursuits of country gentlemen. I do not say that they are for that reason unfit for the office of judge, but still they cannot be so compe- tent as men in the daily administration of the law, and forming part of our Supreme Courts. In some cases they continue in Westminster Hall which is so much the worse, because a man who is a judge Sir Robert Peel. 532 LAW REFORM. one half the year, and a barrister the other, is not likely to be either a good judge or a good barrister. But a second and greater objection is,.that the Welsh judges never change their circuits. One of them, for instance, goes the Carmarthen circuit, another the Brecon circuit, and a third the Chester circuit but always the same circuit. And what is the inevitable consequence? Why, they become acquainted with the gentry, the magistrates, almost with the tradesmen of each district, the very witnesses who come before them, and intimately with the practitioners, whether counsel or attorneys. The names, the faces, the characters, the histories, of all those persons are familiar to them; and out of this too great knowledge grow likings and prejudices which never can by any possibility cast a shadow across the open, broad, and pure path of the judges of Westminster Hall. Then, again, they have no retiring pensions; and the consequence is, they retain their salaries long after they have ceased to discharge properly the func- tions for which they receive them. Now mark the result of all this. On one of the Welsh circuits, at the last spring Assizes, there were set down no more than forty-six causes for trial; and how many does the House think were disposed of? Only twenty; and of the twenty- six made remands, are some that had stood over from the preceding Assizes. It is evident enough what should be done here. If any of the judges of the Principality have become, from the extreme pres- sure of business, on the one hand, or from any physical cause, on the other, inadequate to the discharge of the business which comes before them, pension them off if they be barristers yet remaining in West- minster Hall, and not fit to be raised to the bench, pension them off too: sure I am that theirs will be the cheapest pension, nay, the most beneficial to the giver, " being twice blessed," which has ever been bestowed. I verily think that the Principality would itself cheerfully pay this first cost of a better system. At all events, add two judges to your present number, and let them take, with the other twelve, their turn and share in the business of the country. Let the Princi- pality of Wales be divided into two circuits, and then you will have the work well done, and quickly done, especially if you transfer the equity jurisdiction to the two courts of Westminster. In addition to this, from the accession to the present number of judges, the existing difficulties arising from the Bail Court and the chamber practice will be done away.* And here, before passing to another head of judicature, the Times of the Circuits require a word or two. Not, perhaps, that this is of so much importance as the other defects I have already noticed, or shall presently touch upon; but it regards classes of great impor- tance in themselves, judges, barristers, and solicitors; and it touches also, in no little degree, the convenience of the community at large. I should be most glad to see that folly for really I cannot call it by any other name that absurd and vexatious folly of regulating Easter term by means of the moon, done away with. It is said by many * This evil is now remedied, the Welsh judicature being abolished. LAW KEFORM. 533 that this would be difficult to reform. I see no such difficulty in the matter. Let the Law Returns be made certain, and leave the mov- able feast to the church. I have no wish to interfere with the times and seasons of the church; let those be regulated as you please; but let this inconvenience in the Law be remedied, by making for Easter and Trinity terms, like those for Michaelmas and Hilary, the returns on some certain days. I remember that when the late Mr. Erskine brought in a bill, in 1S02, to fix Easter term, a learned judge deli- vered himself in print against the dangerous innovation; and some persons, alarmed by him, exclaimed, " Only imagine the horror of attempting to change Easter term, when all Christians throughout the world have at present the unspeakable, comfort of knowing that they are keeping this great festival upon one and the same day." For my part, I have no wish to deprive them of this comfort, admit- ting it, as I do, to be unspeakable. The day upon which Good Fri- day falls may be determined as heretofore, that is, by the period of the full moon; by the same certain varying rule may Easter Sunday be fixed for all clerical purposes; but temporal business ought not to be sacrificed to these ideas of some undefined spiritual consolation. There is no inconvenience in Easter being movable, but there is a very great inconvenience in making the law returns movable. Why not, then, let the feasts of the church remain changeable as hereto- fore, and the terms of the courts, little enough connected with sacred things, fall at a stated period? Let it be counted, for example, from Lady-day, which is always on the 25th of March. But why, indeed, must we continue to count from Saints' days, now that we have hap- pily a very Protestant country, more especially under the government of the present Commander-in-Chief?* Why preserve any Romish folly of this sort, or keep up a mere remnant of Popery? Let Easter term always begin on the 10th of April, or on the 5th, and the incon- venience will cease. It is the foolishest of vulgar errors to suppose, that, by how much the more you harass the professors of the law, by so much the more you benefit the country. The fact is quite (he reverse: for by these means you make inferior men, both in rank, in feelings, and in accomplishments, alone follow that profession out of which the judges of the land must be appointed. I should rather say, that by how much the more you surround this renowned pro- fession with difficulties and impediments, calculated only to make it eligible for persons of mere ordinary education, and mere habits of drudgery, who otherwise would find their way to employment in tradesmen's shops, or at best in merchants' counting-houses by so much the more you close it upon men of talent and respectability, and prevent it from being the resort of genius and of liberal accom- plishment. I apprehend, therefore, that the convenience of the bar is a matter which the legislature ought never to lose sight of, where it clashes not with the advantage of the suitor. The having the terms which are movable (Easter and Trinity), and the Circuit, and * Duke of York. 45* 534 LAW REFORM. the Long Vacation, earlier by four or five weeks in one year, and later by four or five weeks in another, is a most serious inconveni- ence in itself, and quite unnecessary upon any principle. Only ob- serve how hard the present system bears, for instance, upon those who, like myself, frequent the Northern Circuit. It happened to me that I did not get home till the 20th of September last year, having repaired to London on the 5th of October the year before; so that I was engaged in my profession for eleven months and a half, and had been gratified, out of the twelve months, by exactly one fortnight's vacation for needful repose. When I should have been obliged again to bend my steps towards Guildhall, appointed to open on the 9th of October, I naturally enough joined those who signed a requisition to my Lord Tenterden, entreating him to defer the sittings. His lord- ship most handsomely expressed his willingness to meet the wishes of the gentlemen of the bar, kindly returning the affectionate respect which all who practise in his court bear to his person. He stated his satisfaction at being able to accommodate us, by sitting on Tues- day the 16th, instead of Tuesday the 9th, so that we obtained a week, for which we were thankful. My lord observed, that in the state of his paper he could grant us no more; indeed, such is his resolution manfully and honestly to despatch his business, that he seems to take as much interest in his work as others do in their relaxation.* III. I now pass to the Civil Law Courts; and their constitution I touch with a tender, and, I may say, a trembling hand, knowing that, from my little experience of their practice, I am scarcely competent to discourse of them; for I profess to speak only from such knowledge as I have obtained incidentally by practising in the two Courts of Appeal, the High Court of Delegates, and the Cock-pit, where common law- yers are occasionally associated with civilians. The observations I have to make on this part of the subject resolve themselves, entirely, into those which I would offer upon the manner in which their judges are appointed and paid. In the first place, I would have them better paid than they are now, a reform to which I would fain hope there may be no serious objection on their part, averse, as I know them generally, to all change. I think they are underpaid in respect of the most important part of their functions. The Judge of the Court of Admiralty, who has the highest situation, or almost the highest, among the judges of the land (for there is none of them who decides upon questions of greater delicacy and moment, in a national view, or in- volving a larger amount of property,) this great dignitary of the law has 2,500 a-year salary only. The rest of his income is composed of fees, and these are little or nothing during peace. But, then, in time of war they amount to seven or eight thousand per annum. I profess not to like the notion of a functionary who has so many calls as the Judge of the Admiralty Court, for dealing with the most delicate neutral questions for drawing up manifestoes and giving opinions on * Easter and Trinity terms have since been fixed, and sitting in October prohi- bited, as here recommended. LAW REFORM. 535 those questions, and advising the Crown in matters of public policy bearing on our relations with foreign states, I like not, I say, the notion of such a personage being subject to the dreadful bias (and here again I am speaking on general principles only, and with no personal reference whatever) which he is likely to receive, from the circum- stance of his having a salary of 2,500 per annum only, if a state of peace continue, and between ten or eleven thousand a-year, if it be succeeded by war. I know very well, sir, that no feeling of this kind could possibly influence the present noble and learned judge of that court;* but I hardly think it a decent thing to underpay him in time of peace, and still less decent is it, to overpay him at a period when the country is engaged in war. I conceive that it may not always be safe to make so large an increase to a judge's salary dependent upon whether the horrors of war or the blessings of peace frown or smile upon his country to bestow upon one, eminently mixed up with questions on which the continuance of tranquillity, or its restoration when interrupted, may hinge, a revenue, conditioned upon the coming on, and the endurance of hostilities.t The other remark, which I have to offer on these courts, I would strongly press upon the consideration of the House; it relates to the mode in which their judges are appointed. Is it a fit thing, I ask, now when Popery is no longer cherished or even respected, indeed hardly tolerated, among us that one of its worst practices should re- main, the appointment of some of the most eminent Judges in the Civil Law Courts by prelates of the church? I except, indeed, the Judge of the High Court of Admiralty, because his commission proceeds from the Lord High Admiral; but I speak of all those who preside in the Consistorial Courts who determine the most grave and delicate questions of spiritual law, marriage and divorce, and may decide on the disposition by will of all the personalty in the kingdom. Is it a fit thing that the judges in these most important matters should be appointed, not by the Crown, not by removable and responsible officers of the Crown, but by the Archbishop of Canterbury and Bishop of London, who are neither removable nor responsible, who are not lawyers, who are not statesmen, who ought to be no politicians, who are, indeed, priests of the highest order, but not, on that account, the most proper persons to appoint judges of the highest order? So it is in the province of York, where the judges are appointed by the Archbishop; so in all other Consistorial Courts, where the judges are appointed by the Bishops of the respective dioceses in which they are situated. From their courts an appeal lies, it is true, to the Court of Delegates, in the last resort; but so far from tins affording an adequate remedy, it is an additional evil; for I will venture to affirm, that the delegates is one of the worst constituted courts which was ever ap- pointed, and that the course of its proceedings forms one of the greatest Lord Stowcll, formerly Sir W. Scott. f This reform is now determined upon, and has been so ever since Sir (/. Kobirt- son's death in 1832, the place being merely temporarily filled up. 536 LAW REFORM. mockeries of appeal ever conceived by man. And I shall demonstrate this to you in a very few words. The court is thus formed: You take three judges from the Common Law Courts, one from each: to these you add some half dozen civil lawyers, advocates from Doctors' Commons, who the day before may have been practising in those courts, but who happened not to have been in the particular cause, in respect of which the appeal has been asserted. Now, only see what the consequence of this must be. The civilians, forming the majority of the delegates, are, of necessity, men who have no practice, or the very youngest of the doctors. So that you absolutely appeal from the three great judges of the Civil and Maritime Courts, from the sentences of Sir William Scott, Sir John Nicholl, and Sir Christopher Robin- son of those learned and experienced men, who are to us the great luminaries of the civil law the venerated oracles best fitted to guide our path through all the difficulties of that branch of the science, and open to us its dark passages you appeal from them to judges, the majority of whom must, of necessity, be the advocates the least em- ployed in the courts where those great authorities preside, the most recently admitted to those courts, and the most unqualified to pro- nounce soundly on their proceedings, if it were decent that they should pronounce at all; for, out of so small a bar, the chances are, (hat the three or four eminent advocates have been employed in the case under appeal. Thus the absurdity is really much the same as if you were to appeal from a solemn and elaborate judgment, pronounced by my Lord Tenterden, Mr. Justice Bayley, Mr. Justice Holroyd, and Mr. Justice Littledale, to the judgment of three young barristers, called but the day before, and three older ones, who never could obtain any practice.* Sir, I have spoken of the Primate and his principal suffragan, and I hope I need not protest, especially while I have the pleasure of ad- dressing you, that in what I have said of the privilege belonging to the highest dignitary in the church, my observations were meant to be most remote indeed from everything like personal disrespect. To- wards no persons in their exalted station do I bear a more profound respect than to both the distinguished prelates I have named, well knowing the liberality of their conduct in exercising the powers I am objecting to, as all the country knows the extent of learning and in- tegrity of character which have made them the ornaments of our hierarchy.! IV. I next come to speak of the Privy Council a very important judicature, and of which the members discharge as momentous duties as any of the judges of this country, having to determine not only upon questions of colonial law in plantation cases, but to sit also as judges, in the last resort, of all prize causes. The point, however, to which I more immediately address myself on this head is, that they * The Court of Delegates has since been abolished, and its judicature transfer- red to the new Court of Privy Council. j- Measures were taken in 1832 to abolish this absurd kind of Episcopal pa- tronage. LAW REFORM. 537 hear and decide upon all our plantation appeals. They are thus made the supreme judges in the last resort, over every one of your foreign settlements, whether situated in those immense territories which you possess in the East, where you and a trading company together rule over not less than seventy millions of subjects or established among those rich and populous islands which stud the Indian ocean, and form the great eastern Archipelago or have their stations in those lands, part lying within the tropics, part stretching towards the pole, peopled by various castes differing widely in habits, still more widely in privi- leges, great in numbers, abounding in wealth, extremely unsettled in their notions of right, and excessively litigious, as all the children of the new world are supposed to be, both from their physical and poli- tical constitution. All this immense jurisdiction over the rights of property and person, over rights political and legal, and over all the quesiious growing out of such a vast and varied province, is exercised by the Privy Council unaided and alone. It is obvious that, from the mere distance of those colonies, and the immense variety of matters arising in them, foreign to our habits and beyond the scope of our knowledge, any judicial tribunal in this country must of necessity be an extremely inadequate court of review. But what adds incredibly to the difficulty is, that hardly any two of the colonies can be named which have the same law; and in the greater number, the law is wholly unlike our own. In some settlements, it is the Dutch law, in others the Spanish, in others the French, in others the Danish. In our eastern possessions these variations are, if possible, yet greater; while one territory is swayed by the Mahommedan law, another is ruled by the native, or Hindoo law; and this again, in some of our possessions, is qualified or superseded by the law of Buddah, the English jurisprudence being confined to the handful of British settlers, and the inhabitants of the three presidencies. All those laws must come in their turns in review, before the necessarily ignorant Privy Councillor, after the learned doctors in each have differed. The diffi- culty thus arising of necessity from our distance, an unavoidable inci- dent to our colonial empire, may almost be deemed an incnpncity, for it involves both ignorance of the law and unfit noss to judge of the facts. But so much the more anxious should we be to remove every unnecessary obstacle to right judgment, and to use all the correctives in our power. The judges should be men of the largest legal and general information, accustomed to study other systems of law beside the.ir own, and associated with lawyers who have practised or pre- sided in the Colonial courts. They should be assisted by a bar limit- ing its practice, for the most part, to this Appeal Court; at any rate, unking it their principal object. To counteract, in some degree, the delays necessarily arising from the distance of the courts below, and give ample time for patient inquiry into so dark and difficult matters, the Court of Review should sit frequently and regularly at all seasons. Because all these precautions would still leave much to wish for, that is no kind of reason why you should not anxiously adopt them. On the contrary, it is your bounden duty, among those countless millions 538 LAW REFORM. whom you desire to govern all over the globe, not to suffer a single unnecessary addition to the inevitable impediments which the remote position of the seat of empire throws in the way of correct and speedy justice. Widely different are our arrangements. The Privy Council, which ought to be held more regularly than any other court, sits far less con- stantly than any, having neither a regular bench nor a regular bar. It only meets on certain extraordinary days the 30th of January, the Feast of the Purification, some day in May, Midsummer-day, and a few others. I find that, on an average of twelve years, ending 1826, it sat in each year nine days, to dispose of all the appeals from all the British subjects in India; from our own civil courts, to the jurisdiction of which all our subjects are locally amenable, throughout the wide extent of the several presidencies of Calcutta, Bombay, and Madras; to dispose of all the causes which come up to the three several native courts of last resort, the Sudder Adawluts, from the inferior courts of Zilla and Circuit, comprising all contested suits between the Hindoos, the half-caste people, and Mahommedan inhabitants. But in the same nine days are to be disposed of all the appeals from Ceylon, the Mauritius, the Cape, and New Holland; from our colonies in the West Indies and in North America; from our settlements in the Mediterranean, and from the islands in the Channel; nine days' sit- tings are deemed sufficient for the decision of the whole. But nine days do not suffice, nor anything like it, for this purpose; and the summary I have in my hand demonstrates it, both by what it contains and by what it does not. It appears that, in all those twelve years taken together, the appeals have amounted to but few in number. I marvel that they are so few and yet I marvel not, for, in point of fact, you have no adequate tribunal to dispose of them; and the want of such a tribunal is an absolute denial of justice to the, subjects of the crown in those colonies. The total number is only 467; but including about 50 which came from India, and appear not to have been regu- larly entered, though they are still undisposed of, there are 517. Of these, 243 only have been disposed of, but only 129 have been heard; for the others were either compromised, from hopelessness, owing to the delay which had intervened between the appeal and the sentence, or dismissed for want of prosecution. Consequently, the Privy Coun- cil must have heard ten or eleven appeals only by the year, or little more than one in the course of each day's sitting. Again, of the 129 which were heard and disposed of, no less than 56 were decided against the original sentences, which were altered, and generally speaking, were wholly reversed. Now, 56 out of 129 is a very large proportion, little less than one-half, and clearly shows that the limited number of appeals must have arisen, not from the want of cases where revision was required, but from the apprehension of finding no ade- quate court of review, or no convenient despatch of business. And that the sentences in the colonies should oftentimes be found ill- digested, or hasty, or ignorant, can be no matter of astonishment, when we find a bold Lieutenant-General Lord Chancellor in one LAW REFORM. 539 court, and an enterprising Captain President in another, and a worthy Major officiating as judge-advocate in a third. In many of these cases, a gallant and unlearned Lord Chancellor has decided, in the court below, points of the greatest legal nicety, and ihe judges of ap- peal, who are to set him right here, are chosen without much more regard to legal aptitude; for you are not to suppose that the business of these nine days upon which they sit is all transacted before law- yers; one lawyer there may be, but the rest are laymen. Certainly a right honourable gentleman* whom I see opposite to me is there sometimes by chance, and his presence is sure to be attended with great advantage to us. Occasionally, we see him or my learned friend, his predecessor,! but this good fortune is rare; the Master of the Kolls alone is always to be seen there, of the lawyers; for the rest, one meets sometimes in company with him, an elderly and most respecta- ble gentleman, who has formerly been an ambassador, and was a governor with much credit to himself in difficult times; and now and then a junior lord of the admiralty, who has been neither ambassador nor lawyer, but would be exceedingly fit for both functions, only that he happened to be educated for neither. And such, sir, is the consti- tution of that awful Privy Council which sits at Westminster, making up, for its distance from the suitors, by the regularity of its sittings, and for its ignorance of local laws and usages, by the extent and variety of its general law learning; this is the court which determines, without appeal, and in a manner the most summary that can be con- ceived in this country, all those most important matters which come before it. For instance, I once saw property worth thirty thousand pounds sterling per annum, disposed of in a few minutes after the ar- guments at the bar ended, by the learned members of the Privy Coun- cil, who reversed a sentence pronounced by all the judges in the set- tlement, upon no less than nineteen days' most anxious discussion. Such a court, whose decisions are without appeal irreversible, unless by act of Parliament is the supreme tribunal which dispenses the law to eighty millions of people, and disposes of all their property. 1 cannot pass from this subject without relating a fact which illus- trates the consequences of the delays necessarily incident to such a jurisdiction. The Rariee, or Queen of Ramnad, having died, a ques- tion arose among the members of her family respecting the succession to the vacant Musnud (or throne), and to the personal property of the deceased sovereign, as well as the territorial revenue. The situation of the country, as well as its population and wealth, render it a pro- vince of some note. It reckons four hundred thousand inhabitants, and it lies in the direct road which the pilgrims from the south of India take to the sanctuary in the island of Rcmisseram, frequented by them as much as the Juggernaut is by those of the north. On the death of Her Highness in 1809, proceedings commenced in the courts below upon the disputed succession. An appeal to the King * Sir John Beckclt, Judge-Advocate. | Mr. Abercromby (now speaker of llie House of Commons). 540 LAW REFORM. in Council was lodged in 1814; it is still pending. And what has been the consequence of this delay of justice? Why, that the king- dom of Ramnad has been all this time in the keeping of sheriffs' officers, excepting the Honourable Company's peshcush, or share of the revenues, which, I have no manner of doubt, has been faithfully exacted to the last rupee. It is strictly in what amounts to the same thing as the custody of sheriffs' officers, having been taken, as I may say, in execution, or rather by a kind of mesne process, such as we have not in our law. As the papers on the table, to which I have referred, show so much fewer appeals from the Plantations than might have been expected, it is fit now to remind the House how equivocal a symptom this is of full justice being done. It is the worst of all follies, the most iniqui- tous, as well as the most mistaken kind of policy, to stop litigation, not by affording a cheap and expeditious remedy, but by an absolute denial of justice, in the difficulties which distance, ignorance, expense, and delay produce. The distance you cannot remove, if you would; the ignorance it is hardly more easy to get rid of: then, for God's sake, why not give to these your foreign subjects, what you have it in yonr power to bestow a speedy and cheap administration of justice? This improvement in the Court of Appeal would create more busi- ness, indeed, but justice would no longer be taxed and delayed, and, in the cost and the delay, be denied. But if you would safely, and without working injustice, stop appeals from the colonies, carry your reforms thither also: I should say, for instance, that a reform of the judicatures of India would be matter most highly deserving the con- sideration of his Majesty's government. I am at a loss to know, why there should be so rigorous an exclusion of jury trials from the native courts of India. I know, and every one must know, who has taken the trouble to inquire, that the natives are eminently capable of applying their minds to the evisceration of truth in judicial inqui- ries; that they possess powers of discrimination, ready ingenuity, and sagacity in a very high degree; and that, where they have been ad- mitted so to exercise those powers, they have been found most useful and intelligent assistants in aiding the investigations of the judge. But I know, also, that your present mode of administering justice to these native subjects is such as I can hardly speak of without shame. Look at your local judges at their fitness for judicial functions. A young writer goes out to India; he is appointed a judge, and he re- pairs to his station, to make money, by distributing justice, if he can, but, at all events, to make money. In total ignorance of the manners, the customs, the prejudices, possibly of the language, of those upon whose affairs and conduct he is to sit in judgment, and by whose testi- mony he is to pursue his inquiries, and very possibly equally unin- formed of the laws he is to administer he must needs be wholly dependent upon his Pundit, for direction both as to matter of fact and matter of law, and, most probably, becomes a blind passive tool in the hands of a designing minister. The house will not suppose that I mean to insinuate for a moment LAW REFORM. 541 the possibility of suspicion as lo the wilful misconduct of the judge in this difficult position. I am very sure that the party who may hap- pen to occupy that high office would rather cut off his right hand, if the alternative were offered him, than take the bribe of a paria to misdecide a cause that came before him. But I am by no means so secure of the pundit upon whom the judge must be necessarily de- pendent; and while he is both less trustworthy and wholly irrespon- sible, the purity of the responsible, but passive instrument in his hands is a thing of perfect insignificance. The experiment of trial by jury, by which this serious evil may, in part, be remedied, has been already tried. The efforts made by a learned judge of Ceylon, Sir Alexander Johnson, to introduce into that colony the British system of justice, manfully supported by the government at home, have been attended with signal success. I am acquainted with a particular case, indeed, the details of which are too long to lay before the House, but which showed the fitness of the natives to form part of a tribunal, notwith- standing the prevalence of strong prejudices in a particular instance among them, where the failure of the experiment might, therefore, have been apprehended. A Brahmin was put on his trial for mur- der, and a great feeling excited against him, possibly against his caste. Twelve of the jury were led away by this feeling, and by the very strong case which a subtle conspiracy had contrived against the pri- soner, when a young Brahmin, the thirteenth juror, examined the evidence with a dexterity and judgment that excited the greatest ad- miration, and from his knowledge of the habits and manners of the witnesses, together with extraordinary natural sagacity, succeeded in exposing the plot and saving the innocent man. Oilier considerations there are, less immediately connected with the administration of jus- tice, and which I might press upon the House, to evince the expe- diency of introducing our system of trial in the East. Nothing could be better calculated to conciliate the minds of the natives than allow- ing them to form part of the tribunals to which they are subject, and share in administering the laws under which they live. It would give them an understanding of the course of public justice, and of the law by which they are ruled; a fellow feeling with the government which executes it; and an interest in supporting the system in whose powers they participate. The effect of such a proceeding would lie, that in India, as in Ceylon, in the event of a rebellion, the great mass of the people, instead of joining the revolters, would give all their sup- port to the government. This valuable, but not costly fruit of the wise policy pursued in that Island, has already been gathered. In 1S10, the same people which, twelve years before, had risen against your dynasty, were found marshalled on your side, and helping you to crush rebellion. So will it be in the Peninsula, if you give your subjects a share in administering your laws, and an interest and a pride in supporting you. Should the day ever come when dis .ll'rriioii may appeal to se'a-nly millions, against a few thousand siranu'crs, who have planted themselves upon the ruins of their ancient dynaMu-s, VOL. i. l(j 542 LAW REFORM. you will find how much safer it is to have won their hearts, and uni- versally cemented their attachment by a common interest in your sys- tem, than to rely upon a hundred and fifty Seapoy swords, of excel- lent temper, but in doubtful hands.* V. I now, sir, come to the administration of law in the country, by justices of peace; and I approach this jurisdiction with fear and trembling, when I reflect on what Mr. Windham was accustomed to say, that he dreaded to talk of the game laws in a House composed of sportsmen; and so too, I dread to talk of the quorum in an assem- bly of magistrates. Surrounded as I am both among my honourable friends, and among members on the other side, by gentlemen in the commission, I own that this is a ground on which I have some reluc- tance to tread. But 1 have to deal with the principle only, not with the individuals: my reflections are general, not personal. Neverthe- less, considering the changes which have been effected in modern times, I cannot help thinking it worth inquiry, whether some amend- ment might not be made in our Justice-of-peace system. The first doubt which strikes me is, if it be fit that they should be appointed as they are, merely by the Lords Lieutenant of counties, without the interference of the Crown's responsible ministers. It is true that the Lord Chancellor issues the commission, but it is the Lord Lieutenant who designates the persons to be comprehended in it. Such a thing is hardly ever known as any interference with respect to those indi- viduals on the part of the Lord Chancellor. He looks to the Lord Lieutenant, or rather to the " Custos Kotulorum," which the Lord Lieutenant most frequently is (indeed everywhere but in counties Palatine), for the names of proper persons. The Lord Lieutenant, therefore, as Custos Rolulorum, absolutely appoints all the justices of the peace in his county, at his sole will and pleasure. Now I cannot understand what quality is peculiar to a keeper of the records, that fits him, above all other men, to say who shall be the judges of the district whose records he keeps. I think it would be about as conve- nient and natural to let the Master of the Rolls appoint the judges of the land (indeed, more so, for he is a lawyer), or to give the appoint- ment to the keeper of the state papers. The Custos Rotulorum may- issue a new commission, too, and leave out names; I have known it done; but I have also known it prevented by the Great Seal; indeed, it was laid down as a rule by the late Lord Chancellor Eldon, from which no consideration, his lordship was used to say, should induce him to depart, that however unfit a magistrate might be for his office, either from private misconduct or party feeling, he would never strike him oft the list until he had been convicted of some offence by the verdict of a court of record. Upon this principle he always acted. No doubt his lordship felt, that as the magistrates gave their services gratis, they ought to be protected; but still it is a rule which opens * All these evils have now been remedied by the Judicial Committee Act, con- stituting a regular court of four professional judges in the Privy Council, and pro- viding for the hearing of the East India causes. LAW REFORM. 5-43 the door to very serious mischief and injustice, and I myself could, if necessary, quote cases in which it has been most unfortunately perse- vered in. On looking, however, at the description of persons who are put into the commission, I am not at all satisfied that the choice is made with competent discretion; and upon this part of the question I may as well declare at once, that I have very great doubts as to the expediency of making clergymen magistrates. This is a course which, whenever it can be done conveniently, I should certainly be glad to see changed, unless in counties where there are very few resident lay proprietors. My opinion is, that a clerical magistrate, in uniting two very excellent and useful characters, pretty generally spoils both; that the combination produces what the alchymists called a tertium quid, with very little, indeed, of the good qualities of either ingredient, and no little of the bad ones of both, together with new evils superinduced by their commixture. There is the activity of the magistrate in an excessive degree; over-activity is a very high magisterial offence, in my view; yet most of the magistrates distinguished for over-activity are clergymen: joined to this are found the local hatings and likings, and, generally, somewhat narrow-minded opinions and prejudices, which are apt to attach to the character of the resident parish priest, one of the most valuable and respectable, if kept pure from political contamination. There are some Lords Lieutenant, I know, who make it a rule never to appoint a clergyman to the magistracy; and I entirely agree in the policy of that course, because the education and the habits of such gentlemen are seldom of a worldly description, and therefore by no means qualify them to discharge the duties of such an office; but, generally speaking, as the House must be aware, through the country the practice is far otherwise. Again, some Lords Lieu- tenant appoint men for their political opinions; some for activity as partisans in local contests; some are so far influenced as to keep out all who take a decided part against themselves in matters where all men should be free to act as their opinions dictate; and in the exercise of this patronage no responsibility whatever substantially exists. Ap- pointed, then, by irresponsible advisers, and irremovable without a conviction, let us now see what is the authority of men so chosen and so secure.* In the first place, they have the privilege of granting or withholding licenses. As we all know, it lies in the breast of two Justices of the Peace to give or to refuse this important privilege. It is in their absolute power to give a license to one of the most unfit persons possible; and it is in their power to refuse a license to one of the most fit persons possible. They may continue a license to some person who has had it but a twelvemonth, and who, during that twelvemonth, has made his house a nuisance to the whole neighbouihood; or they may take away * The course uince 1828, and especially since, 1832, has been for the Great Seal to exercise a much more active interference in appointing magistrates; and the Lord Lieutenant (or rather ('iMloa Kotulornm) no longer is the, person alone con- sulted. This is now the case with Durham also, where the Bishop is no longer Custos, that office being now held by the Lord Lieutenant. 544 LAW REFORM. a license from a house to which it has been attached for a century, and the enjoyment of which has not only been attended by no evil, but has been productive of great public benefit. And all this, be it observed, they do without even the shadow of control. There is no rule more certain than that a mandamus does not lie to compel justices either to grant or withhold a license. I hardly ever remember mov- ing for one; and I only once recollect a rule being granted it was on the motion of my honourable and learned friend, the Solicitor- General. But I know that great astonishment was expressed on the occasion; that every one asked what he could have stated to make the court listen to the application; that all took for granted it would be discharged, as a matter of course; which it accordingly was, in less time than I have taken to relate the circumstance. What other control is there over the conduct of the licensing magistrate? I shall be told that he may be proceeded against, either by a criminal information, or by impeachment. As to the latter, no man of com- mon sense would dream of impeaching a magistrate, any more than he would think now-a-days of impeaching a minister. Then, as to proceeding by criminal information: In the first place, it is ne- cessary, in order even to obtain the rule, to produce affidavits, that the magistrate has been influenced by wilful and corrupt motives: not merely affidavits of belief in those who swear, but of facts prov- ing him guilty of malversation in his office. Then, suppose, as not unfrequently happens, a rule obtained on this ex parte statement; the magistrate answers the charges an oath; he swears last, and may touch many points never anticipated by the other party, consequently not answered; and unless the alleged facts remain, upon the discus- sion, undeniable, and the guilt to be inferred from them seems as clear as the light of day, the rule is discharged with costs. The dif- ficulty of proving corruption is rendered almost insuperable, because all the magistrate has to do, in order to defend himself from the con- sequences of granting or withholding a license, is to adopt the short course of saying nothing at the time of keeping his own counsel of abstaining from any statement of his reasons. Let him only give no reason for his conduct, and no power on earth can touch him. He may grant a license to a common brothel, or he may refuse a license to one of the most respectable inns on the North road; let him withhold his reasons, and his conduct remains unquestionable; al- though the real motive by which he is actuated may be, that he is in the habit of using the one house, and that the landlord of the other will not suffer him to use it in the same way. Unless you can show that he has himself stated his motives, or that there are circumstances so strong against him as amount to conviction, you are prevented from even instituting an inquiry on the subject. Thus absolute is the authority of the magistrate with regard to licensing. With the permis- sion of the House, in order to illustrate the abuse of this extensive power, I will read a letter which I received some time ago on the subject of the licensing system, from one of the most worthy and learned individuals in this country a man of large fortune, and of LAW REFORM. 545 most pure and estimable character, who long acted as a magistrate in one of the neighbouring counties. [Mr. 13. here read a letter, in which the tendency of justices is stated to favour particular houses, and not take away their licenses, though guilty of the grossest irregularities, on the pretence, become a maxim with many of them, that "the house being brick and mortar cannot offend," whereas a haunt of bad company being established, it becomes the magistrate's duty to break it up. It was also shown how the power of licensing placed millions of property at the disposal of the justices, a license easily adding 500 to the value of a lease, and often much more, and the number of victuallers exceeding 40,000. It further showed the partiality of the bench towards brewers and their houses-, especially in Middlesex and the home counties.] I have received a variety of other information upon this subject, all leading to the same result. That which I have described, the leaning of justices towards brewers, whom, in licensing, they favour, as brother magistrates, although the latter are not allowed by law to preside at a Brewster Sessions, is, perhaps, the most crying evil connected with the system; but who does not know (I am sure I do, in more parts of the kingdom than one or two) that licenses are granted, and refused, from election motives! When, some time ago, I brought the Beer Bill into this House, I had, of course, an extensive correspondence on, the subject; and I was assured by many highly respectable persons, that the evil of this system is by no means confined to the neighbour- hood of London, of which they gave me numerous instances.* Nor is the licensing power of the magistracy that in which alone great abuses exist. They prevail wheresoever their authority is ex- ercised; in the commitments for offences against the Game Laws; in dealing with petty offences against property; in taking cognizance of little assaults, especially on oflicers; in summary convictions for non- payment of tithes, and a number of other matters affecting the liberties and property of the subject; and, yet, for their conduct in all of these matters they are not amenable to any superior power, provided, as I have said before, they only keep their own counsel, and abstain from stating the reasons by which they have been actuated, should their motives be evil. There is not a worse constituted tribunal on the face of the earth, not even that of the Turkish Cadi, than that at which summary convictions on the Game Laws constantly take place; I mean a bench or a brace of sporting justices. I am far from saying that, on such subjects, they are actuated by corrupt motives; but they are un- doubtedly instigated by their abhorrence of that caput lupimirn, that host is hnrnani generis, as an honourable friend of mine once called him in his place, thai ./era nuturx a poacher.t From their decisions on those points, where their passions are the most likely to mislead * The alteration of the Law on Beer Licenses has deprived the Justices of this power. | The alteration of the Law as to the sale of Game has since greatly remedied these evils. 4G 546 LAW REFORM. them, no appeal in reality lies to a more calm and unprejudiced tribu- nal; for, unless they set out any matter illegal on the face of the con- viction, you remove the record in vain. Equally supreme are they in cases where, sitting in a body at Quarter Sessions, they decide upon the most important rights of liberty and property. Let it be remem- bered that they can sentence to almost unlimited imprisonment, to whipping, to fine, nay, to transportation for seven and fourteen years. I have shuddered to see the way in which these extensive powers are sometimes exercised by a jurisdiction not responsible for its acts. It is said that the magistracy ought not to be responsible, because it is not paid; but we ought not to forget, that as gold itself may be bought too dear, so may economy; money may be saved at too high a price. Mark the difference of responsibility between the Quarter Sessions and one of the superior courts of the kingdom. In the King's Bench, the name of the judge who pronounces the judgment is known, and the venerable magistrate stands before the country in his own proper per- son, always placed at the bar of public opinion. Here it is Lord Ten- terden it is Mr. Justice Bailey, by their names: in the other case, it is merely the Quarter Sessions, which, as Dean Swift says, is nobody's name. The individual magistrates composing it are not thought of; their names are not even published. It is a fluctuating body. If the same individuals always sat in the court, there might be some approach to responsibility. At present there is none; and where there is no responsibility, injustice will occasionally be committed, as long as men are men. It would be some correction of the evil, if the number of magistrates was fixed; if their names were always known in con- nection with their acts; and if they were more easily removable on proof of their misconduct. Then comes the question Is it, after all, gratuitous service? We are told that we cannot visit the magistrates severely, or even watch them very strictly, because they volunteer their duty,and receive no remuneration for their trouble. But although they have no money for it, they may have money's worth. Cheap justice, sir, is a very good thing; but costly justice is much better than cheap injustice. If I saw clearly the means by which the magistrates could be paid, and by which, therefore, a more correct discharge of the magisterial duties might be insured, I would certainly prefer paying them in money to allowing them to receive money's worth by jobs, and other violations of their duty. Not only may the magistrate him- self receive compensation in money's worth; he may receive it in hard money by his servants. The fees of a justice's clerk amount to a little income, often to many times a man's wages. I have heard of a reverend justice in the country, having a clerk whose emoluments he wished to increase, and therefore he had him appointed surveyor of weights and measures, with a salary of a guinea and a half a week. This person appointed a deputy, to whom he gave five shillings and sixpence, and who did all the duty. These circumstances came under the considera- tion of his brother justices; when, after a strenuous opposition, and among others, on the part of the gentleman who communicates the occurrence in a letter now lying before me, it was decided, not only LAW REFORM. 547 not to remove the first appointed person, who it was proved was doing nothing, but to swear in the other as his assistant! My friend is not entirely without suspicion that this functionary, having so small a re- muneration as five shillings and sixpence a week, can only have under- taken the duty with a view of increasing it by some understanding with the people whose weights and measures it is his duty to super- intend. The operation of pecuniary motives in matters connected with the magistracy, is more extensive than may at first sight appear. There was a bill introduced by the right honourable gentleman opposite,* for extending the payment of expenses of witnesses and prosecutors out of the county rates. It is not to be doubted that it has greatly increased the number of commitments, and has been the cause of many persons being brought to trial, who ought to have been dis- charged by the magistrates. The habit of committing, from this and other causes^ has grievously increased everywhere of late, and especially of boys. Eighteen hundred and odd, many of them mere children, have been committed in the Warwick district, during the last seven years. Nor is this a trifling evil. People do not come out of gaol as they went in. A boy may enter the prison gate merely as the robber of an orchard; he may come out of it "fit for"- 1 will not say "treasons" but certainly "stratagems and spoils."! Many are the inducements independent of any legislative encouragement, to these commitments. The justice thinks he gains credit by them. He has the glory of being commemorated at the Assizes before the lord judge, and the sheriff, and the grand jury, and all who can read the Crown calendar. On that solemn occasion, he has the gratifica- tion of hearing it fly from mouth to mouth "He is a monstrous good magistrate; no man commits so many persons." Then there is the lesser glory acquired among neighbours, into whose pockets they are the means of putting money, by making them prosecutors and \vitnesses in petty criminal cases; and thus converting (as Sir Eardley Wilinot says) their journey of duty into a jaunt of pleasure to the Assizes. The reputation of activity is very seducing to a magistrate; but I have known it curiously combined with things more solid than empty praise. In a certain town which I am well ac- quainted with, one suburb was peopled by Irishmen and Scots, who were wont to fight on every market-day a good deal, at fair tides a good doal more, but without any serious affray taking place. IJeside these two classes of the King's subjects, there also dwelt in those parts two justices of the King, assigned to keep the peace; for the better conserving of which, they repaired at the hour of fight to an ale-house conveniently situated, hard by the scone of action, and there took their seat with a punch-bowl full of warrants, ready to fill up. If the Irish happened to be victorious, the Scots came one after another and applied for commitments against those who had * Sir Robert Perl. f There is still wanting much reform of the criminal law on this material subject. 548 LAW REFORM. assaulted them. The despatch with which warrants, at least if not justice, were administered, was notable. Then came the other party, and swore to as many assaults upon them; and, justice being even- handed, they too had their desire gratified, until the bowl was by degrees emptied of its paper investment, and a metallic currency, by like degrees, took its place. Some of these details may be ludicrous; but the general subject is a most serious and a most important one, because these facts show the manner in which justice is administered to the people out of sight of the public, and out of reach of the higher courts of law. It is through the magistracy, more than through any other agency except, indeed, that of the tax-gatherer that the people are brought directly into contact with the government of the country; and this is the measure of justice with which, when they approach it, they are treated by functionaries irresponsible for their proceedings. A justice of the peace, whether in his own parlour or on the bench whether em- ployed in summary convictions, or in enforcing what is called, after a very worthy friend of mine, Mr. Nicholson Calvert's Act (one of the worst in the statute-book, which I hope to see repealed,* and which I trust its excellent author will very long survive) is never an osten- sible individual, responsible in his own proper person to public opinion; hardly ever, unless he chooses by some indiscretion to make himself so, amenable to a higher and purer judicature. The judges of the land, chosen from the professors of the law, after the labours of a life previously devoted to the acquirement of knowledge calculated to fit them for their office, and clothed with attributes of supreme power over petty magistrates, are responsible for every word and act, and are subject to every species of revision and control. They were selected wiih the most anxious caution for every qualification of high character and of profound knowledge; and yet they are incapable of pro- nouncing a single decision from which an appeal will not lie to some other tribunal immediately above them: while, from the decision of the country justices taken from the community at hazard, or recom- mended by the habits least calculated to make themjust subject to no personal responsibility, because beyond or below the superintend- ence of public opinion and irremovable, unless by a verdict for some indictable offence from their decision there is no appeal; from their decision, although they have to deal with some of the most im- portant interests in the country, there is no appeal, unless their mis- deeds shall have been set forth in a case, submitted by their own free will, with their expression, to the Court of King's Bench. These are the principal points to which, in the first division of my subject, I desire to call the attention of the House, as deserving your deliberate consideration, and as the materials of solemn inquiry. I could have wished to accomplish my object more briefly, but I found it impossible, consistently with distinctness. I am not aware that I have made an unnecessary comment; and I must trust to the candour * This act still exists, and continues liable to the same objections. LAW REFORM. 549 of honourable members in weighing the importance of these state- ments, to pardon the apparent prolixity unavoidably incident to the handling of a very extensive and varied argument. II. 1 wish I could give the Mouse any promise, that my speech was approaching its termination; but that hope can hardly be entertained, when I state that I am now about to enter on the still more vast and momentous consideration of the law as administered in those tribu- nals, whose construction we have been surveying the distribution of justice in those courts in which it has been my fortune to practise during a pretty long professional life. There is a consideration of a general nature, to which I would first of all advert; I mean the inconvenient differences in the tenures by which property is held, and the rules by which it is conveyed and transmitted, in various districts of the country. Is it fitting or con- sistent with reason, or indeed with justice, that merely crossing the river, or travelling a distance of some miles in this neighbourhood, should make so great an alteration in the law of real property, as that, to the eastward of us, all the sons inherit equally; to the west- ward, the youngest alone; and here, the eldest? But these rules of the Common Law, of Gavelkind, and of Borough English, are better known, and operate within more defined limits. What shall be said of the customary tenures, in a thousand manors, all different from the Common Law that regulates freehold estates, most of them differing from each other?* Is it, I ask, fit that this multitude of laws, this variety of codes, the relics of a barbarous age, should be allowed to exist in a country subject to the same general bonds of government? I should trespass at greater length than I am willing to do, were I to detail the various customs which exist in the manors of this country; but to give the house an idea of their diversity, I must mention a few. In one manor, the copyhold property is not allowed to pass by will; in another, it may be so conveyed. I admit that a great improve- ment has been made in this respect, by the act of an honourable friend of mine (Mr. M. A. Taylor), to whom we owe several other impor- tant legislative measures, allowing it to be devised by will without surrender. This is the only material improvement which lias been made, with respect to such property, within the last hundred years; but it only operates in facilitating the transmission, according to the custom of the manor of passing the copyhold by will. In one ma- nor, a devise is not valid, if made longer than two years before the testator's decease; so that it is necessary for wills to be renewed every two years; in another, one year; in a third, three years are the period; while in many there are no such restrictions.! In some ma- nors, the eldest daughter succeeds, to the exclusion of her sisters, as the eldest daughter (in default of male heirs) succeeds to the crown * Tlio Real Property Law Commission, issued after tliis motion, has fully in- vestigated this subject, and made a very learned and satisfactory report, <>u which bills have been founded, but are not yet passed. | This evil has been all removed by the Wills Act, prepared by the Heal Pro- perty Commissioners, and passed with some changes. 550 LAW REFORM. of England; in other manors, all the daughters succeed jointly, as co-partners, after the manner of the Common Law. In some manors a wife has her dower, one-third of the tenement, as in case of free- hold. In others, she has, for her "free bench," one-half; and again, in some, she takes the whole for life, to the exclusion of the heir. The fines on death or alienation vary; the power and manner of entailing or cutting off entails, vary; the taking of heriots and lords' services varies. There are as many or more of these local laws than in France, in the Pays de Coutiime, of which I have seen four hundred enumerated, so as to make it the chief opprobrium of the old French law, that it differed in every village. Is it right that such varieties of custom should be allowed to have force in particular districts, contrary to the general law of the land? Is it right, I may also ask, that in London, Bristol, and some other places, the debts due to a man should be subject to execution for what he owes him- self, while in all the rest of England there is no such recourse; although in Scotland, as in France, this most rational and equitable law is universal?* All these local peculiarities augment the obstacles, both to the con- veyance and to the improvement of landed estates. They prevent the circulation of property in a great degree; and they lessen the chance that an owner of such tenements would otherwise have of raising money, on their security, adequate to their value. The greater faci- lity of conveyance is nothing set against the ignorance of local cus- tom; and then copyhold property is not liable even for specialty debts, nor can it be extended by elegit; and thus, absurd and unjust as is the law which prevents freehold property from being charged with sim- ple contract debtst, it goes further in this instance, and exempts the copyhold from liability, even to those of the highest nature, a judg- ment itself not giving the creditor any right of execution against it. The obvious remedy to be adopted in this case is, to give all parts of the country the same rules touching property; and, therefore, I would propose an assimilation of the laws affecting real estates, all over England, to take place at a given period, say twenty or thirty years hence, so as to prevent interference with vested interests. Having now, sir, pointed out some of the varieties of our law in certain districts, its inequalities in respect of place, let us proceed to examine whether it is more uniform and more equal in respect of persons. And here we are met, at the very outset, with a most fear- ful exception to the maxim, which describes the law as no respecter of persons. It is commonly said that the Crown and the subject come into court on equal terms. Lawyers of the present day do not, I am aware, profess this; but that eminent dealer in panegyric, Mr. Justice Blacksfone, has spoken as if the King had no greater advantage in litigation than any of his people. It would have been well if he had * This anomaly is remedied by the new bill about to pass on the Law of Debtor and Creditor. This evil has since been removed. LAW REFORM. 551 stated that this was only a fiction; though he must have been puzzled to prove it, like other fictions, invented for the furtherance of justice. It is true that the law itself makes no such pretensions to impartiality; for of the two classes of manifest inequality which I am about to men- tion, one is avowedly such, by reason, as it is said, of the prerogative; although the oilier, just as substantial in reality, is not avowed to be so. I begin with the latter. It is said, that the Crown can no more take my estate that) I can another man's; for if I have a claim against the Crown, I am told that I have a remedy, by the decent and respect- ful mode, as they term it, of a petition de droit, or, in case of a title by matter of record, a monstrans de droit. The same eloquent pane- gyrist, whom I have mentioned, describing the very name of the pro- cess to have arisen from the presumption of the law, that the King can do no wrong, adds, that, from the great excellence ascribed to the Crown, " to know of an injury and to redress it, are one and the same thing; therefore the subject has only to make his grievance known by his petition." From this is drawn the conclusion, that when a sub- ject lias a right, he can have the means of defending it with equal facility against the Crown as against any other party. Now, let us see how far this consequence is, in point of fact, realized. The Crown never moves by itself, but through the medium of the King's Attor- ney-General. No proceeding can be taken against the Crown without {\\efiat of the Attorney-General; and unless a party obtains that, all his trouble and expense in going to Whitehall, and asking the permis- sion of the Secretary of State, are lost, because all such affairs are re- ferred to the crown lawyer; and if he should refuse leave, the only remedy left to the subject is the very convenient and practical one of impeaching that officer. It may be said that the Attorney-General would not refuse his fiat, because it is a mere proceeding in the first instance, like suing out an original writ, or a /////, to bring a cause into the King's Bench; and the Attorney-General here is like the Chancellor or the sealers of the writs elsewhere, who issue writs to any suitor as a matter of course. But I make answer that, although it ought to be so, it is not so. It is in the discretion of the Attorney- General, that is, of your adversary's counsel, to let you bring your action or not as he pleases. Why, I demand, should it be left in the breast of any man to refuse that which another may claim as a right, and as the lowest of all rights, to have his right inquired into by law? To show you how this discretionary power is used, I might say abused, I will mention a case; and, following the rule I prescribed to myself at setting out, it shall be one that has come within my own knowledge professionally. A consitlerable estate had, on a supposed default of heirs, been granted to a gentleman of great respectability, a friend of mine. After some time another individual set up a claim to it, on the ground of being the heir of the body of the original grantee, the first gift having been in tail male. The case was submitted to me, and to a learned friend at the chancery bar; and we advised that the party should proceed by petition of right. We examined all the cases upon the subject, and deeming this the only mode, we applied to 552 LAW REFORM. the Attorney-General; and he refused his fiat, giving no better rea- son than that we ought to have proceeded hy ejectment against the tenant in possession. We preferred our writ of right against the crown, as all lawyers term the petition de droit. Had the question been with a subject, we might either have proceeded by ejectment to recover possession, or by writ to try the mere right as the higher re- medy; and no officer could have shut us out at either door by which we chose to enter the court. Now, I can state conscientiously my opinion, that the case of the individual alluded to was a strong one in statement. It was one of pedigree, and certainly one of the clearest I had seen on paper. I do not mean to assert, for I had no means of ascertaining it, that it was unanswerable. There may have been some gap in the chain, some marriage or some birth not proved, or some other flaw in the claimant's title; but of that I can form no judgment, because that I was not allowed to try; and this is the hardship of the case, the matter of which, I hold, my client had just reason to complain he was not allowed to bring forward his proofs. Then, I ask, is it not a mere mockery in those panegyrists of things as they are, to say that the crown and the subject stand on equal footing?* But the cases in which the same disparity prevails between their rights, avowedly and by the declared sanction of the law, are much more numerous; they are of constant occurrence, too, in practice; and I will, therefore, mention them for the information of those who are not lawyers, and, I believe I may say, of some who are. In the first place, it is the general principle that a demurrer is an admission of the facts in dispute; but this, it is said, does not extend to the crown, and that, if defeated in this way, it can begin again, and is not con- cluded. Secondly, it has been decided lately in the Exchequer I \vas not in the case, but so I have heard, from those who attend that court that no such thing is allowed as an exception for insufficiency to an answer filed by the Attorney-General on behalf of the crown. But the subject notoriously enjoys no such privilege; his answer is open to all exceptions; were it not, you must, in suing him, take for an answer just what he chooses to tell you, and he escapes the equi- table jurisdiction entirely. Next (and an instance occurred lately, which I argued in the Court of King's Bench, and which was decided against me, without hearing the other side), wherever a suit is com- menced, whether it be in Cumberland, Middlesex, or Cornwall (and in Cornwall was the case I allude to), if the crown has any title which may, however indirectly, come in question, although no party, the proceedings can at once be removed by a more suggestion, not of record, but on the part of the Attorney-General, stating it from his place in court, and a trial must then be had at bar before the four judges. In this way all the preparations made by the parties are put an end to, and witnesses must be brought to town at an inordinate expense, and under every disadvantage. There is no doubt that an * This evil remains still without remedy. LAW REFORM. 553 allowance would, in such cases, be made by the crown to compensate for this additional cost; but still the party has to pay in the first in- stance, together with being taken away, as well as his witnesses, from that part of the country in which he and they are known, to the county of Middlesex, where the power of the crown is more accurately known than the character of the other suitor. When this point was argued, the court held the prerogative too clear to be discussed. There is a fourth advantage which the crown possesses over any other party. No person can, after the jury is sworn, withdraw a re- cord, but must be nonsuited, to avoid a verdict. The crown has, to my knowledge, withdrawn it, afier counsel hod been heard, and wit- nesses examined, and the jury been charged by the judge; I have known the record withdrawn while they were deliberating, and be- cause they were deliberating, which indicated hesitation; and this late retreat is made without the penalty to which any other party would be liable, who had fled before the cause was called on, namely, the costs of the day: for there is another unfairness to justify this course; that as the crown is supposed above receiving costs, so it is to be ex- empt also from paying them. But the reason of this I cannot possibly see. I cannot grant that the digniiy of the crown places it above taking costs, when I reflect that by the crown is here meant the revenue raised from the people for the public service, and that, con- sequently, the non-payment of costs to the crown is an increase of the people's burthens. Hut, even if I could admit the propriety of the crown's receiving none, it would by no means follow that it should pay none to the subject, who is in a widely different predicament. All this, however, arises out of notions derived from the feudal times, when the crown was in a situation the very reverse of that in which it stands at present, its income then arising almost entirely from a land revenue. There is now no reason why it should be exempt from paying, or disabled from receiving, in all cases where costs would be due between common persons. Indeed, there has been of late years an exception made in the cro\\ n law on this head, but so as to aug- ment the inequality I complain of. In all stamp prosecutions, the costs of the crown are paid by the unsuccessful defendant; so far does it stoop from its former dignity; but not so low as to pay the defend- ant a farthing of his costs should he be acquitted. The last and the worst part of the history remains; whenever a Special Jury is summoned in a Crown case, and that all the twelve jurors do not attend, a Tales cannot be prayed to let the cause proceed, without a warrant from the Attorney-General: so th;it it is in the power of your adversary to refuse this at the time it may be most for his ad- vantage, so to do; while you have no option whatever in case it should be for his interest to proceed, and for yours to delay. I pray the House will mark attentively what I am now about to relate, although, indeed. I should apologize for thus appealing to them, after the singular patience with winch I have been heard throughout, for the great length of time I have already occupied. There was a case in the Conn of Exchequer, in which I acted as counsel for the defendant, and had to VOL. i. 47 554 LAW REFORM. subject a Crown witness to a severe cross-examination; he exhibited strong indications of perjury, but the verdict went against me notwith- standing. My learned friend, Mr. Sergeant Jones (whose talent and professional skill entitle him to higher praise than any in my power to bestow,) whether he profited by my experience, or was more dexterous in dealing with the case, did honour to himself by succeeding in the next trial, when the same witness was examined; for the suspicion of perjury entertained before was now turned into certainty, and the party acquitted. A prosecution for perjury was instituted against that man and others connected with him; eighteen indictments were found at the Sessions, and the Crown at once removed the whole by certiorar i into the Court of King's Bench. There they were all to be tried, and a former Attorney-General conducted the prosecution. On the first, Meade, the witness I have mentioned, was clearly convicted. The other seventeen were then to have been tried, and Mr. Sergeant Jones called them on, but the Crown had made the whole eighteen Special Jury causes: a sufficient number of jurymen did not attend; my learned friend wanted to pray a Tales, and the Crown refused a warrant. Thus an expense often thousand pounds was incurred, and a hundred witnesses from Yorkshire were brought to London, all for nothing, except, after the vexation, trouble, and delay, he had endured, to work the ruin of the prosecutor, who had been first harassed upon the tes- timony of the perjured witnesses. These poor Yorkshire farmers, whom the villain had so vexed, had no more money to spend in law; all the other prosecutions dropped; Meade obtained a rule for a new trial, but funds were wanting to meet him again, and he escaped. So that public justice was utterly frustrated, as well as the most grievous wrong inflicted upon individuals. Nor did it end here; the poor farmer was fated to lose his life by the transaction. Meade, the false witness, and Law, the farmer whom he had informed against, and who was become the witness against him upon the approaching trial, lived in the same village; and one evening, in consequence, as was alleged, of some song or madrigal sung by him in the street, this man Meade seized a gun, and shot Law from his house dead upon the spot. He was acquitted of murder, on the ground of something like provocation, but he was found guilty of manslaughter, and such was the impression of his guilt upon the mind of the court, that he was sentenced to two years' imprisonment. A case of more complicated injustice one fraught with more cruel injury to the parties, I never knew in this coun- try, nor do I conceive that worse can be found in any other. We may talk of our excellent institutions, and excellent they certainly are, though I could wish we were not given to so much Pharisaical prais- ing of them; but if, while others, who do more and talk less, go on improving their laws, we stand still, and suffer all our worst abuses to continue, we shall soon cease to be respected by our neighbours, or to receive any praises save those we are so ready to lavish upon ourselves.* * These inequalities in the Crown law, between the Crown and the Subject, stil exist. LAW REFORM. 555 i. And now, having thus far cleared the way for examining the pro- ceedings in our Courts of Justice, the first inquiry that meets us is, by what means unnecessary litigation may be prevented; in other words, suits unjustly and frivolously brought, and wrongfully defended, by oppressive or intemperate parties. I shall here, as under almost all the other heads of the subject, begin by laying down what I take to be the sound principles of legislation applicable to the point, and then comparing with these the provisions actually adopted by our jurispru- dence. The first and most obvious step is, to remove the encourage- ment given to rich and litigious suitors, by lessening the expense of all legal proceedings; and I would put an end to all harassing and unjust defences, by encouraging expedition. Next, I would not allow of any action or proceeding which only profits the court and the practitioners, and the object of which is always granted as a mere matter of course; all things should be considered as done at once and for nothing, which may be now done on a simple application to the court with some delay and expense. Thirdly, no party should be sent to two courts where one is able to afford him his whole remedy; nor to a dear and bad court, when he can elsewhere have a cheaper and a better remedy; nor should any one be obliged to come twice over to the same court for different portions of his remedy, which he might have all in one proceeding. Fourthly, whenever a strong presumption of right appears on the part of a plaintiff, the burden 6f disputing his claim should be thrown on the defendant. This I would extend to such cases as bills of exchange, bonds, mortgages, and other such securities. In those cases I think the plaintiff should be allowed to have his judgment, upon, due notice given, unless good cause be, in the first instance, shown to the contrary, and security given to prosecute a suit for setting the in- strument aside.* This is a mode well known in the law of Scotland, and would put an end to all those undefended causes, which are now attended with such great and useless expense, as well as injurious delay to the parties and the public. Fifthly, I would suggest, that in all cases where future suits are to be apprehended, proceedings might be adopted immediately to raise the question, and quiet the title. The law on this head, also, is very different in the two parts of the island. In England, it is not possible to have the opinion of any court, until the parlies are actually engaged in a lawsuit, opportunities for which may very frequently not occur until the witnesses to prove a case may be dead, or an infant, or a person living abroad and incapable of well defending his right, has come into possession, lint the Scotch law furnishes a kind of action, the adoption of which may be productive of the greatest benefit, as 1 have once and again heard Lord E!don hint in the House of Lords. I know very well that here we may file a bill for perpetuating testimony, but there must be an actual vested right in the party instituting the suit; and the proceeding is, besides, so cumbrous, as rarely to be used. The Scotch law, on the contrary, per- * This important improvement has since been made, but tlie declaratory action has not yet been introduced. 556 LAW REFORM. mits a Declaratory Action to be instituted by the party in possession or expectancy, quia timef, and enables him to make all whose claims he dreads parties, so as to obtain a decision of the question immediately. This is, of course, and very properly, at the expense of him who brings forward the suit for his own interest, unless where a very obvious benefit arises to the other party; for in Scotland they have nothing like our statute of Gloucester, and costs are always in the discretion of the court, as with us in equity. Sixthly, I would abolish all obsolete proceedings, which serve only as a trap to ihe unwary, or tools in the hands of litigious and dishonest parties, and lie hid or unheeded until, unexpectedly, they are brought forth to work injustice.* For an in- stance, I will name Wager of Law, a defence which may be set up in answer to an action of detinue, or of debt on simple contract. 'I his is another of the remains of the old system. The defendant has only to swear that he does not owe the sum of money claimed by the plaintiff, and bring eleven others to swear that they believe him; and a defendant would certainly be badly off if he could not find out so many persons to do this kind office for him, as he needs only bring those who know him, but know nothing at all of the circumstances, for the less they know, the more ready will they be to swear they be- lieve their friend. He has only to place them on opposite sides, at the end of the table (for the wisdom of past ages hath carefully fixed the stations which the parties are to occupy pending this "solemnity,") get them to swear, and there is an end at once of the action. It is true that pleas of this kind are seldom pleaded, though it was done some time ago in the Common Pleas; and the oldest practitioners there, not being acquainted with the plea, were about demurring to it, when it was discovered to be a law wager well pleaded, and a complete good defence in law, though the practice was obsolete. Now, these being the fundamental principles that should guide us on this head, nothing can depart more widely from them than our prac- tice, and nothing can be more easy than making it conform to them. In the first place, without throwing away a thought upon the pain which I should necessarily inflict upon some of rny learned friends much wedded to such lore, without caring a rush for the quantity of curious learning which would thus be thrown to waste, or dropping a tea'r over the musty records which must be swept away, 1 would abolish at once the whole doctrine and procedure of fines and recove- ries.! I hope I may not offend the ears of my respected brethren the conveyancers; but I must say, that if ever there was an absurdity not to be tolerated, it is those fictitious suits, at any time, but, above all, in the present state of society. I wish to make myself understood, for I see by the countenances of some gentlemen that they do riot quite comprehend the whole absur- dity of the law respecting fines and recoveries. I do not by any means wish to interfere with the power of making, or of barring entails; I * The new rules of pleading and practice have removed these evils. | These have now been entirely abolished. LAW REFORM. 557 consider the English law as hitting very happily the just medium be- tween too great strictness and too great latitude, in the disposition of landed property; sufficient restraints upon perpetuities, upon endless settlements, are provided, to allow a free commerce in land, as far as that is consistent with the interests of agriculture, and the exigencies of our mixed constitution; while as much power is given of annexing estates to families, as may prevent a minute division of property, and preserve the aristocratic branch of the government. With the sub- stance of our law in entail, then, I have no wish to meddle; all I de- sire is, to abolish the ridiculous machinery by which fines are levied and recoveries suffered. Every gentleman knows that if he has an estate in fee he can sell it, or bestow it in any way he may please, but if he has an estate tail, to which he succeeds in (he long vacation, he can go, on the first day of Michaelmas Term, and levy a fine, which destroys the expectant rights of the issue in tail; or he may, by means of a recovery, get rid of those rights and of all remainders over, lie can thus, by going through certain mere forms, make himself absolute master of his estate, and do with it as he pleases. But this must be done through the Court of Common Pleas, at certain seasons of the year; and why should there exist a necessity for going there? Why not, if it be necessary, pay the fines which are due, without going there at all? I, the other day, asked this question of some learned friends, Why force tenants in tail into court, for mere form's sake? They laughed at my simplicity, and said, " All this was asked a hun- dred years ago; there is no necessity for the proceeding, only to keep up the payment of the King's silver, alienation fines, and other duties." In case of bankruptcy, the necessity for those forms is not felt. A trader who is tenant in tail commits an act of bankruptcy, and by the assignment under the commission not only the interest vested in him is conveyed, but all remainders expectant upon it are destroyed for the benefit of his creditors, and the estate passes to his assignees free from all restriction. The courts have held the conveyance in bank- ruptcy to be a statutory barring of the entail an enlarger of the estate tail to a fee, as indeed the bankrupt laws evidently intended.* Now, I would do that for honest landowners which the law at present per- mits to be done for insolvent tradesmen and their creditors. So, too, a man and his wife cannot convey an estate of the wife without a fine or a recovery, neither can the wife be barred of her dower without a similar proceeding. The reason is, the influence her husband may possess over her mind; and, consequently, a judge takes the woman, in these cases, into a private room, to examine her, first, as to whether she acts from fear, and then, when that is out of the case, whether she is influenced by favour and affection; and he also examines her as to Of the bar to the issue in tail there can he no doubt; but them are decisions which lean against the operation of the bankruptcy, to bar the remainders OVIT, con- trary to lilackstone's decided opinion ('2 Com. 28(5, 3(il.) and, it should seem, to the plain intent of the legislature. See Doe v. Clarke, 5 B. A. 4 5 8, and Jennings r. Taylenrc, 3 B. A. 557, where it is considered that a base fee only passes in th remainder. 47* 558 LAW REFORM. any temporary increase of affection from any passing cause; and then, when she has purged herself of all temporary increase of affection, of all fear, and all love, she is allowed to give her consent. I would pro- pose, in place of all this inquiry, not always very delicate, nor ever very satisfactory, to let husband and wife join in a common convey- ance, with the consent of a guardian to be appointed, or of the next male relative of the wife, who is not related to the husband, and not interested in either the succession or the conveyance. Now, there is certainly nothing very real in a fine; but as to recoveries, I ask, do those persons who seem to hold by them, know at all what they avowedly proceed upon? They go upon the ground of compensation in value being paid to the remainder-man, whose right they cut off, and who, but for this fictitious suit, would have a title to take the estate after the tenant-in-tail's decease. He is said to recover a compensation in value; and from whom does he get it? Why, the common vouchee, who is the crier of the Court of Com- mon. Pleas, and who, like the man at the custom-house obliged to take all the oaths other people do not like, lies groaning under the weight of all the liabilities he has incurred to every remainder-man, since he became crier, and answerable for the millions of property, the rights to which, in remainder, have been barred, he not being worth a shilling. Locke says, that a madman is one who reasons rightly from wrong premises; so it is with the lawyers on recoveries, who argue very ingeniously, and even soundly and consistently, on. the principle of the compensation, and whose conclusions could in no wise be impeached, if you once allowed the fact, that those in the remainder are compensated by the proceedings. Indeed, it happened to myself, not long ago,;in a case where a very large estate was in question, to argue, and to prevail, respecting the effect of a recovery, on this very ground of compensaiion in value. I there had to con- tend that the claimant was barred by the recovery, in consequence of the compensation received from the vouchee, though it was quite certain that, from the vouchee, there never was, nor ever could be, received a single shilling. My argument, on that occasion, did not excite a smile in the court, because the principles of the law were known to be thus established, and the consequences were of serious import, be the premises ever so ludicrous. But, were I to use the same argument elsewhere, it would, if understood, be received with much less gravity. Put an end, then, to all such ridiculous forms, which have no earthly use but to raise a little money by way of fees; and which, beside creating expense and delay, and oftentimes pre- venting tenants in tail from passing their property by will, which they cannot if they die before suffering the recovery, give rise to a number of questions in law, often very puzzling, always dilatory and costly not rarely to mistakes in fact: as where I knew an estate go to the tenant in tail in remainder, instead of the recoveree's heir-at- law or devisee, which he fully intended it should, merely because in suffering the recovery an omission was made of one parcel. Sir, I also would put an end to those imaginary trusts in settlements LAW REFORM. 559 for the purpose of preserving contingent remainders. It has been said that some members of this House, who, during the Commonwealth retired to the country and employed themselves in conveyancing, in- vented those refinements which characterize what are called Strict Settlements. I repeat, that my object is not to touch the principle of the law of entails, as it now exists in this country, believing that owners of estates should not be laid under greater restrictions than they now are in disposing of them by will after their death, or by settlement upon marriages in their families. But let the purpose of the owner be accomplished more simply and more easily than can now be done. I would allow every man to settle or to devise his property to A. during his life, and after him to B. and C. in succession, making by plain words so many life estates, and giving a fee to the person who, by our present law, takes the first estate tail, not allowing the latter to have any power over the property until it became vested in possession, but requiring that, in order to affect it while in expectancy, he and the tenant for life should join in some simple conveyance as a feoff men t, whereby the settlement might, if the parties chose, be carried on. The property then would not be alienable an hour sooner than it now is, and it would be alienable without fine or recovery; and I would make the act, which the law now deems a discontinuance, as a feoffment in fee by tenant for life, absolutely void to all purposes, instead of making a forfeiture of the particular estate of the feoffer, though void as a conveyance; so that I would get rid of the necessity of trustees being interposed to save the con- tingent uses from destruction. Again, I would restore the Statute of Uses to what it was clearly intended to be. Our ancestors made that law, by which, if land were given to A. for the use of B., the latter was deemed the legal owner, the use being executed in him, just as if A. did not exist. It was justly observed by Lord Ilardwicke, that all the pains taken by this famous law ended in the adding of three words to a conveyance. This has been said by conveyancers to be a severe remark," but it is perfectly correct; for the courts of equity invented second uses or trusts, by holding with the courts of law that the statute did not apply to land given to A. to the use of B., in trust for C.; that it executed the use only in B., but not in C. ; therefore the whole pro- vision is evaded, by making the gift "to Me use of B., in trust for C.;" and these three words send the whole matter into Chancery, contrary to the plain intent of the statute. It was also held that copyhold estates are not within the statute in any way; and there are other nice exceptions, but not much better grounded. Can there * Some have nuestioned its authenticity, as not to he found in a MS. note of Hopkins r. Hopkins; but the words are far too remarkable to have been invented: "By this means a statute, made upon rc,it consideration, introduced in a solemn and pompous manner, by this strict construction, has had no other effect than to add at moat three words to a conveyance." 1 Alk. f>'Jl. The remark, nearly in the same words, is adopted by Ulackstone, who cites Lord Ilurdwicke in support of it. 2 Com. 336. 560 LAW REFORM. be any reason whatever for not making all such estates legal at once, and restoring them to the jurisdiction of the common law, by recog- nising, as the owner, the person to whom in reality the estate is given, and passing over him who is a mere nominal party?* Another deviation from the principles I have laid down, and a great source of multiplicity of suits, is the law with respect to agreements for sales, leases, and other conveyances. Thus, if I agree with a per- son to give him a lease, though he, under the agreement, becomes my tenant, he is my equitable tenant only, but not my legal tenant. He may be possessed of a written agreement, signed and sealed, for a lease of ten years, and may occupy under it, but he has no lease which a court of law can take notice of; and if an ejectment is brought, he must go out. He may go into a court of equity on his agreement, if that is any comfort to him; he may apply for a decree against me to perform my agreement; but till then his claims are not recognised in a court of common law. If an injunction be brought, the expenses are further multiplied. Why, I ask, should not the agreement, such as I have described, be as good as a lease; when, in substance, it is the very same thing, and only wants a word added or left out to make it the same in legal effect too? A case illustrative of this subject happened to come within my own observation. I was counsel in a case at York, where an agreement had been entered into and possession given; but because it did not contain words of present demise, it was no lease, and therefore the tenant could not stand a moment against the ejectment that was brought, but was driven into the Court of Chancery, where the other party could just as little stand against him. How much inconvenience, expense, and delay, then, might be saved, if such an agreement were pronounced equivalent to a lease; and, in general, everything were supposed done in one court which may be ordered as a matter of course to be done by another reserving, no doubt, all objections on the head of fraud, mistake, sur- prise, and the like, which may be raised by pleading at law, just as easily as in equity. In like manner, I would allow a legatee to sue an executor or ad- ministrator for his legacy ,t and the mortgager to sue for his rights. It is always said that in these and the like cases of active trusts, accounts must be taken; and so they must in every action where there is a matter of set-off against a demand. The old action of account might be greatly improved; and by its aid, and by reference to arbi- tration, where necessary, much that now goes to equity might be dis- posed of at law. The only reason why such cases as these, where the assets are to be marshalled and cross claims considered, now go into the Court of Chancery, is, not for any superior fitness of that * The late Wills-Act has introduced very great improvements into the law respecting executing devises, and put an end to by far the most fruitful source of vexatious litigation on this head. f The Local Courts hill, brought in according to the recommendation of the Common Law commissioners appointed in consequence of this motion, provided for these defects, but it was thrown out by a bare majority in the Lords, 1833. LAW REFORM. 561 court itself, but because of its appendage, the masters' office, without which it would be no better able than the King's Bmch to manage even long trusts, chronic cases, as they have been termed, though every suit in equity might be thus named. Let the court of King's Bench have an equal number of masters let arbitrators be publicly appointed, to whom parties may refer before any expense has been incurred, as they do now after all the bill has been run up nay, to whom they may go without even consulting an attorney and if this machinery be found not enough effectually and properly to despatch the business of the court, let its machinery be increased, and sure I am it would be the cheapest and most powerful that ever was set up. It would do away with the ridiculous importance attached to a few words of conveyance; it would oust the jurisdiction of the Court of Chancery in all the matters of which I have been speaking, and which it has from time to time drawn over from the common law, to which those matters originally belonged. Then the Courts of Equity would be left to execute their ordinary jurisdiction in matters of ac- count requiring a long course of time, and minute and daily attention cases calling not for decision, but superintendence to the care of infants, idiots, and insolvent estates, and other matters which it would be impossible for a Court of Common Law effectually to take charge of. Again, on the same principle of avoiding multiplicity of suits, why, in ejectments, should two processes be requisite to give the plaintiff his remedy? As things now stand, after a man has succeeded iti one action, and established his title to the possession, he must have re- course to another, to recover that which he ought to have obtained by one and the same verdict that established his title the mesne profits. Why could not the same jury settle the matter at once? Why is an individual driven to maintain two actions for the purpose of obtaining one and the same remedy? Or why should not the jury that tries the right, also assess the damages? Mr. Tennyson's bill, which was in- tended to remedy some part of this evil, is only permissive; it ought to have been compulsory. It is partial, and it is only recommend- atory, and its recommendations are not always attended to, because the lawyers, having the choice, do not think fit to pursue that which is least profitable; they choose the two actions, when one would suffice for the interests of justice for the interests of the plaintiff and defend- ant for all interests except those of the practitioners." ii. Having considered how the number of needless suits may be diminished, I now proceed to the next head of my inquiry to ascer- tain how, after their number is reduced as low as possible, and (hose only brought into court which ought to be tried, you may best shorten the suits brought, by disposing of them in the shortest time, and with the least expense. And this topic leads me to examine the principles which ought to be adopted for encouraging the parties to come to an amicable settlement as speedily as possible. The law cites as iis war- This defect lias since been supplied l>y legislative enactment. 562 LAW REFORM. rant for certain steps in every suit, the injunction of Scripture "Agree with thy adversary quickly, whilst thou art in the way with him, lest at any time the adversary deliver thee to the judge, and the judge deliver thee to the officer, and thou be cast into prison. Verily I say unto thee, thou shah by no means come out thence till thou hast paid the uttermost farthing." The latter part of the text is applicable enough to the proceedings under the English law; and this scriptural advice to compromise ought to be constantly set before the eyes of suitors in all our courts, with the penalty denounced. Our law, how- ever, no sooner adopts the principle, by allowing a party to impart, than it departs from the spirit of it; for it must be observed, that the delay of imparlance is admissible, not " in the way,' 7 but in the court, after arrest, and when the effect is only to produce unnecessary loss of time, and fees equally unnecessary. Here, however, the sound principles are as obvious as before. Whatever brings the parties to their senses as soon as possible, especially by giving each a clear view of his chance of success or failure, and, above all things, making him well acquainted with his adversary's case at the earliest possible mo- ment, will always be for the interests of justice, of the parties them- selves, and indeed of all but the practitioners. It is the practitioners, generally, that determine how the matter shall proceed, and it may be imagined that their own interests are not the last attended to. The seeming interest of two parties disposed to be litigious, in many cases appears to be different from the interests of justice, although their real interests, if strictly examined, will not uufrequently be found to be the same. Now, justice is embarrassed by the disingenuousness of con- flicting parties; justice wants the cases of both to be fully and early stated; but both parties take care to inform each other as little as pos- sible, and as late as possible, of the merits of their respective cases. One tells as much of his cise as he thinks good for the furtherance of his claim, and the frustration of the enemy's so does the other give only as much of his case in answer as may help him, without aiding his adversary; and the judge is oftentimes left to guess at the truth in the trick and conflict of the two. The interest of the court and of justice being to make both parties come out with the whole of the case as early as possible, the law should never lend itself to their conceal- ments. This remark extends to the proof as well as the statement of the case. Au intimation of what the evidence is, may often stop a cause at once. In Scotland, the law in this respect is better than ours; for no man can produce a written instrument on the trial without having previously shown it to his adversary. For want of this salu- tary rule, we have often seen the most useless litigation protracted for the sole benefit of the practitioners. I was myself lately engaged in a cause, the circumstances of which will give the House an idea of the mischief. I was instructed not to show a certain receipt to the opposite party, as my client, the defendant, meant to nonsuit his ad- versary in great style, as he would call it. Well, the plaintiff (an executor) stated his case, and called his witnesses to prove the debt. I did not take the trouble to cross-examine, which would have been LAW REFORM. 563 quite unnecessary. Equally so was it to address the jury. I acknow- ledged the truth of all that had been sworn on the other side, but added that it was useless, as I happened to have a receipt for the money, which had been paid to the testator. This, of course, put an end to the case. The sum sought to be recovered did not exceed twenty pounds, and the expenses could not have been less than a hundred. If that action had been brought in Scotland, it never could have come to trial, nor, indeed, been prosecuted beyond the mere demand: for, this receipt being shown, the claim would have been abandoned. Here some person or other, I will not say who, had an interest in the cause being suffered to proceed, and the law enabled him to accom- plish his purpose. I think, sir, the adoption of some such rule as the Scotch might be desirable. At least, it would be well to inquire how it works in Scotland, and be guided by the result.* Next, the greatest encouragement should be given to compromises in all cases. At present the law recognises the principle to a certain extent, and permits money to be paid into court, in some instances, as cases of contract and quasi-contract, where the damages are cer- tain. But nothing can be less judicious than restricting the power of paying money into court to those classes of causes, and excluding actions upon contract with uncertain damages, and actions upon tort, which are far more likely to be brought hastily, or obstinately de- fended, because they are accompanied by irritated feelings.t The earliest opportunity should be afforded in all cases to each party of getting rid of the suit on receiving or making compensation. I would, therefore, extend the right of paying into court, or tendering amends, to all cases whatever. As ihe law now stands, it is only magistrates, officers, and other persons specially protected by the statutes of James I, and George II, who can thus proceed in actions for injury offered to the person or proper! y4 But the great means of shortening litigation are to be found in an enlargement of our law of arbitrament. I much fear that this, my next proposal, may seem strange, especially as coming from a pro- fessional man; for it goes directly to abridge the length and the expense of law proceedings in a great number of cases, and of pre- venting not a few from ever coming into court. But it is calculated to secure justice effectually, without which no saving of expense or of time deserves the name of an improvement. Now I do not lay claim to any peculiar disinterestedness in broaching this rnaiter. Few persons, it is true, have less interest in diminishing the amount of business in our courts, because there are not many who gain more * The late rules of the judges, under the act of 1833, have, to a great degree, provided this remedy. f It has heen held that money cannot he paid into court in actions for breach of contract to deliver goods at a fixed price (3 13. and P. 14), for dilapidations (87 K. 47), on bond for money in a foreign currency depreciated (57 R. 87). Chainhro J., in the first and the strongest of these cases, says "It could not be done with- out violating every rule of practice." See Com. J'leader, C. 10. Thia is now remedied. 564 LAW REFORM. by it, and to whom, therefore, the abuses which I am describing, if such they be, are more profitable. But I really believe that lopping off needless litigation, by measures calculated to lessen the expense of procedure in all its branches, would greatly increase the number of lawsuits real suits, which ought to be encouraged, as necessary to justice, but which at present are kept out of court, by the double tax of cost and delay. The county courts ought to be diligently reformed their process extended to matters of a larger amount, and of greater variety their officers rendered more able and effeciive.* This improvement of itself would greatly diminish the number of trifling suits brought into the higher judicatures; and how can I, or any one conversant with the practice of the law, adequately express the benefits of having a speedy and cheap redress for petty wrongs, when we daily witness the evils of the opposite system! How often have I been able to trace bankruptcies and insolvencies to some law- suit about ten or fifteen pounds, the costs of which have mounted up to large sums, and been the beginning of embarrassment! Nay, how often have we seen men in the situation described by Dean Swift, who represents Gulliver's father as ruined by gaining a Chancery suit, with costs! The public generally are little aware of the number of petty actions forming the bulk of every cause paper at Nisi Prius. Professional men can tell how many now stand for trial concerning demands under twenty pounds; how few of these have been thus far ripened by the fostering care of the profession and the offices, under a hundred pounds expense. I made the Prothonotary, four years ago, at Lancaster, give me a list of fifty verdicts obtained at the Lent Assizes; the average was under fourteen pounds, including, however, two or three actions brought to try rights, where the damages were of course nominal. But if the money recovered amounted in all to less than nine hundred pounds, the costs incurred certainly exceeded five thousand pounds; fifty pounds a-side being indeed a very low average of costs as between attorney and client. It is not too much to affirm that not above a tiMith part of those fifty cases would ever have seen the court at Lancaster, had a right system prevailed; that is, if the parties who were to bear the heavy charge, whether of losing or seeming to gain (for the loss, generally speaking, only differed in degree) had been early apprized of their real situation, and exercised their own judgment upon the question of going on or settling betimes. An extension and improvement of arbitration is one of the remedies I have ventured to suggest, at least for further discussion. If arbitrators were publicly appointed, before whom parties themselves might go in the first instance, state their grounds of contention, and hear the calm opinion of able and judicious men upon their own statements, their anger would often be cooled, and their confidence abated, so as to do each other justice without any expense or delay. Such a tribunal exists in France, under the name * The Act of 1833 has extended and improved this jurisdiction materially; but the Local Courts Bill would have done so far more effectually. LAW REFORM. 565 of Cour de Conciliation; in Denmark it exists; and for certain mercantile causes, in Holland also. If it be thought too great a change to introduce it here, in what I deem its best form, I think much good would arise from a modificaiion of it (he appointment of public arbitrators, who might at all times sit and take references by consent, with process to compel the attendance of witnesses, and the execution of their awards. At least we should see all those cases taken before them at once, which are now brought at great cost into courts wholly unable to try them, and are uniformly greeted with the observation from both Bench and Bar "Oh, an account and a set-off a hundred items so many issues no judge or jury can try it," after all the expense of trying it has been incurred.* iii. The course of our inquiry has thus brought us, in the third place, to the commencement of a suit; and here the principles and rules which present themselves are as obvious as they are important. The first is to prevent the debtor's escape, and hinder him from delay- ing his creditor, by wilfully absenting himself. The second is to give the debtor due notice of the particular nature of the claim, so that he may defend himself if right, or yield if wrong, that is, if actually in- debted. The third is, to give the debtor no unnecessary inconveni- ence, till found to be in the wrong (that is, indebted), as far as is con- sistent with due security to the plaintiff against a defendant likely to escape; taking care also to protect the defendant against a plaintiff likely to oppress him with costs, and leave him without remedy on dropping the suit. Now, against all these, which I consider cardinal virtues in this im- portant stage of procedure, our laws offend most grievously. For, in the first place, we assume the defendant to be in the wrong, and not only so, but to be meditating flight from his country and his home; we, therefore, arrest him immediately, and cast him into prison, or compel him to find bail. A member of this honourable House, if, by the acceptance of an office, he happens, for the space of a few days, to be out of Parliament, may thus be arrested, and put to the most serious inconvenience. It might have happened the other day to the member for Oxford. If he bought twenty pounds' worth of goods on a Saturday, went to his villa and returned on Monday, on knocking at his door he might meet with an arrest, and he must then accom- pany the sheriff's officer to a lock-up house till he procured bail. He would then do what I understand is usual in such cases, send for his butcher and his baker, and get bailed; but a gentleman could not, * Out of the Statute of William, arbitration is no favourite of our law. An agreement or a covenant to refer is waste paper; no action can he maintained for a breach of either;| and equity will not enforce the performance. (G Ves. H1H.) A {(reat judge said on this case, that he had, since a cause, ho mentioned, made it a rule never to recommend an arbitration. The Local Courts Hill established Courts of Conciliation, under tho name of Courts of Reconcilement, with tlio fullest powers. t The proceedings in arbitrations arc very much improved by the lute Act of 1-33. VOL. I. '18 566 LAW REFORM. after that, complain so well of the meat, or the bread, or the bills during the next half year. Certainly he would not be in a situation, the week after, to criticise his tradesman's conduct with a good grace. I have known worse inconvenience happen from such use being made of the law, at elections; indeed, when candidates have carried their adversary's voters to Norway, instead of letting them reach Ber- wick, we may believe they would not scruple to use the writ for a similar purpose. But however malicious or spiteful may be the mo- tives of any one in so employing the process of the law, there being a probable cause of detention, and the process not being abused, no action lies against the wrong doer. If he have no accomplices, so as to fall within the charge of conspiracy, he is safe. To the wealthy, however, all these inconveniences are trivial; but how does such a proceeding operate on a poor man, or a tradesman, in moderate cir- cumstances? He has no facilities for obtaining bail; if he does, he pays one way or another afterwards for the favour; and if he cannot procure it, he must go to prison. Perhaps no man ever holds up his head, or is the same man again, after having once been in prison, un- less for a political offence. But, I ask, why should a man ever be arrested on mesne process at all? The honourable member for Mon- trose has brought this subject before the House, and he has my hearty thanks for it. On what ground of common sense does our law in this matter rest? Why should it be supposed that a man, owing twenty pounds, will leave his house, his wife, his children, his country, his pursuits; and incur voluntarily the punishment awarded for great crimes, by banishing himself for life? Yet the law always proceeds on the supposition that a man will run away the moment he has notice given him of an action for the debt. Some men might possibly act thus, but their conduct forms the exception, not the rule; and do you legislate wisely do you legislate like men of sense do you legislate with common consistency when you denounce a penalty against all men in order to meet a case not likely to occur once in a thousand times? What would be the effect of altering the law in this respect? Could its reformation injure anyone? Certainly not; on the contrary, it would benefit all classes of the community. The very first conse- quence of such an alteration would be to make tradesmen less easy in giving credit, by rendering them more cautious. At present they are induced to rely on the suddenness of personal arrest for compelling a payment of their demands, in preference to others, and thus to specu- late upon the chance of payment from insolvent persons; so they enter into a competition not an honest, praiseworthy competition, in the correctness of their dealings, or the goodness of their wares but a competition in the credit to give to needy and profligate, or suspected and extravagant men, unable to pay anything like the whole amount of the debts which the rashness or cupidity of tradesmen may allow them to contract. And on whom does the loss thus incurred by the tradesman finally fall? Not unfrequently on those who can and do pay; they have to answer for those who do not; they pay a sort of LAW REFORM. 567 del credere in proportion to the loss incurred through giving credit a species of insurance on all bad debts. Even the more respectable customers would be all the more regular in their dealings and econo- mical in their habits, were they never tempted by easy credits to buy what they have not money to pay for.* My next objection to the present system, under this head, is, that no proceeding can take place in our courts unless there be an actual appearance. We outlaw a man to compel an appearance. Why do so? Why can we not proceed as in the case of ejectment, where a notice is left at the dwelling-house? Why can we not leave a writ at a man's house, stating what we sue him for; and only when we think him about to fly, call upon him to give surety? I repeat, why not send a writ to the known domicile or house of business of the debtor; a writ, too, which shall plainly describe the cause of action, instead of serving him with a writ that only tells him he is a prisoner for some reason or other, which in due time he will be informed of; and if he cannot be found, outlawing him after nine months' delay? This is done in Holland, a mercantile country, and in Scotland, a wary country, where too great charity is not generally shown to the debtor; at least the Scotch have not the reputation of being unnecessarily merciful on such occasions; yet a writ to take the debtor's person is only obtainable there if he be in meditationefugas. Our process of outlawry is, in its nature, extremely foolish; its object being to compel an appearance, which, after all, is not necessary, provided the party wilfully absents himself after due notice. If a man chooses to keep away, why not proceed without him after such a delay, and so many services at his place of residence as shall insure him having a know- ledge of the action? As for any scruple about proceeding against an absent man, without making perfectly sure of his having notice, the present law has no right to say a word on the subject; for its process of outlawry is neither more nor less than a mean by which you harass an absent man, without even pretending to give him notice. He may be in the Greek Islands, on the coast of Africa, or in the backwoods of America, and his creditor can outlaw him, and proceed to have his goods forfeited, without his being aware of the transaction, and with- out the proceeds of the forfeiture necessarily benefiting any one but the Crown. In exchequer cases, it is true, the debt and costs, not ex- ceeding 50, are paid out of the fund which arises from selling the goods; in all other cases, a party must apply to the Lords of the Trea- sury. Why should this be? What have the Lords of the Treasury to do with the legal remedy of plaintiffs in suits? Why send anyone to the executive power for the redress which the judicial authority alone ought to administer?! iv. We are now to suppose the parties in court, and called upon to I'ponthe grounds here stated, thn Common Law Commissioners recommended abolishing imprisonment lor debt entirely, unless where fraud had lieen committed, or contumacy exerted, or escape meditated. The hill now before Parliament will effect thin. \ This clumsy and inconsistent process remains unaltered. 568 LAW REFORM. state their cases, the claim of one, and defence of the other. Anciently this pleading, as it is termed, was by word of month; but in more modern times it has been carried on in writing. Originally, too, Pleas were in French, afterwards in Latin, and for a century past, by a great, but most salutary innovation, doubtless much reviled and dreaded in its day, they have been conducted in English. I must own that I approach the subject of Special Pleading, in the presence of my most worthy friend and learned instructor in that art,* with some degree of awe. That excellent person's attainments in its mysteries are well known, and justly appreciated. He is intimately acquainted with the subject. The distrust of my own learning, therein, while addressing him, is not lessened by my recollection of the praises lavished upon the science by high authorities of past times. Lord Coke deemed it so de- lightful a science, that its very name was derived, according to him, from its pleasurable nature " Quia bene placitare omnibus placet." Incapable of inventing a new pleasure, I would fain restore a lost one, by bringing back Pleading to somewhat of its prestine state, when it gave our ancestors such exquisite recreation. Certain it is that our deviation from the old rules in this branch of the law, has been attended with evil effects. Those rules, as Lord Mansfield once said, were founded in reason and good sense; accuracy and justice was their object, and in the details much of ingenuity and subtlety was displayed ; but by degrees the good sense has disappeared, and the ingenuity and subtlety have increased beyond measure, and been oftentimes misdi- rected; nay, to such a pitch have the changes proceeded, that at last subtlety has superseded sense; accuracy and justice are well nigh lost sight of; and ingenuity is exhausted in devising pretexts for prolixity and means of stratagem. In these really hurtful innovations the courts of law have been the far too ready accomplices; and the legis- lature has been a most willing instrument to increase the evil, by sanctioning, almost as a matter of course, in each new act, the power of pleading the general issue; so that to call the modern practice by the name of special pleading, is really an abuse of terms. It can only be restored to its ancient condition, and made deserving, if not of Lord Coke's panegyric, yet of the more measured commendations of Lord Mansfield, by reviewing the entire system as it at present stands. My wish is, as far as possible, to revive the accuracy of the old plead- ing, without its niceties and verbosity; while pains are taken to improve it, where this can safely be done, by adapting it to the advanced state of modern jurisprudence. The precedents of the ancient pleaders, and the other rules recog- nised in their times, furnish the most valuable materials for this reform; and, indeed, it is chiefly from the science as they left it that the princi- ples I am about to state are drawn. The first great rule of pleading should be, to induce and compel the litigant parties to disclose fully and distinctly the real nature of their respective contentions, whether claim or defence, as early as possible. The second is. that no needless * Sir N. C. Tindal. LAW REFORM. 569 impediment should be thrown in (he way of either party, in any stage of the discussion within the court, whether plea, replication, or rejoin- der, whereby he may be hindered to propound his case in point of fact, or of law. In the third place, all needless repetitions, and generally all prolixity should, as well as mere reasoning, which neither simply affirms nor denies any proposition of fact or of law, be prevented; and all repugnant or inconsistent pleas should be disallowed, as well as all departure from ground once taken.* 1. That these were the principles on which the ancient pleaders bottomed their system entirely, I will not affirm; but upon them it was mainly built. And I regret to say, that the last century and a half has witnessed great and prejudicial alterations in the original plan; so that the record, in the great majority of cases, instead of exhibiting a plain view of what each party is prepared to prove, contains an endless multitude of words, from which, if the real matter in dispute can be gathered at all, it is only by guess work, or by communications out of the record relating to things of which it gives not even a hint. Let us look into this a little more narrowly. The Count of a Declaration should convey information as to the subject of the action; but it con- veys no precise knowledge of the plaintiff's demand, or indeed of what the suit is about. Take the instance of the common counts, as they are justly termed, in assumpsit, being those constantly resorted to; and take the most common of these, the count for money had and received. I will take no advantage of the audience I speak before being unac- quainted with legal niceties, in order to make merry with the venera- ble formalities of the art. All lawyers know how easy it would be in this place to raise a smile, at the least, by recounting the little fooleries of our draftsmen; but I disdain it, and will treat the subject precisely as if I were addressing professional men. The plaintiff declares that the defendant, being indebted to him for so much money had and re- ceived to the use of the said plaintiff', to wit, one thousand pounds, undertook and faithfully promised to pay it, but broke his engagement; and the count is thus framed, the self-same terms being invariably used, whatever be the cause of action which can be brought into court under this head. Now, observe how various the matters are which may be all described by the foregoing words. In the first place, such is the declaration for money paid by one individual to another, for the use and benefit of the plaintiff this is what alone the words of the count imply, but to express this they are rarely, indeed, made use of. iJdly, The self-same terms are used on suing for money received on a consideration that fails, and used in the same way to describe all the endless variety of cases which can occur of such failure, as an estate sold with a bad title, and a deposit paid; a horse sold with a concealed nnsoundness, and so forth. 3dly, The same words are used when it is wished to recover money paid under mistake of fact. <lthly, To recover money paid by one person to a stakeholder, in consideration * The valuable improvements introduced with so bold a hand, but so judiciously, under the Act of I -.'!.'!, arc mainly fuumlrd upon these principles. 48* 570 LAW REFORM. of an illegal contract made with another person.* Sthly, Money paid to revenue-officers for releasing the goods illegally detained, of the per- son paying.t Gthly, To try the right to any office, instead of bringing an assize. 1 Tthly, To try the liability of the landlord for rates levied on his tenant. What information, then, does such a declaration give? It is impossible, on reading this count, to say which of the seven causes of action has arisen; and it is not merely those sev-en, for each one of them has a vast number of varieties, which are declared on in the same words. In actions of Trover, the case is even worse. Suppose the case of a plaintiff suing for any chattel, as a gun, the declaration will be such as may apply equally to at least eight different heads, under each of which are many different causes of action. The words in all would be the very same that the plaintiff was possessed of a gun, as of his own proper goods and chattels; that he accidentally lost it; that the defendant found it, and converted it to his use. Now this count de- scribes only one case, that of a gun lost by its owner, and detained by the finder. But it is employed to mean, 2dly, That the gun has been taken by the defendant under pretence of some title, or in any way not felonious. 3dly, That it was deposited with the defendant, who re- fused to deliver it up. 4thly, That it was stopped in transitu, the price not having been paid. 5thly, That the plaintiff is the assignee of a bankrupt, and seeks to recover the gun, as having been sold after the bankruptcy of the vendor. 6thly, That the plaintiff has been im- properly made a bankrupt, and sues the assignees to try the bank- ruptcy. 7thly, That his goods have been unlawfully taken, and he sues to try the validity of an execution, on any of the various grounds of fraud, &c., which impeach the validity of the process. Sthly, That the gun has been misdelivered, or detained, by a warehouseman or carrier. All those causes of action differ from each other as much as different things can differ, and yet they are all stated in the declaration the same way, and signified under the same form of words. The pleadings in cases where it might be expected that the greatest particularity would be given to the statement, actions upon torts to the person, are somewhat, but for the most part, not remarkably more definite and precise in their description. The declarations on the se- duction of a wife, servant, or daughter, assault, and false imprison- ment, are drawn so that you can say, no doubt, what the action is about, which you hardly ever can in <?ases of Assurnpsit or Trover; but the same form of words is used, whatever the particular shape of the cause may be. Of the circumstances peculiar to the transaction, the pleadings tell the defendant nothing they tell the counsel nothing they tell the judge nothing. It may be said that the defendant must know the cause of action himself; but that does not always fol- low, especially if (which may be presumed barely possible, though it seems never to be thought so) the allegations are groundless. There is, however, one person who must know the cause of action, and that * 1. B. and P. 3. Hi. 296. f 4 T. R. 485. Str. 747. Carlh. 95. 1 T. R. 255. LAW REFORM. 571 is the plaintiff. He ought, for the satisfaction of all concerned, to state it distinctly. The same may be said of the counts in trespass, for taking goods.* In trespass quare chni.fHrn fregit, perhaps the description of the wrong done is more specific. Hut it happens that the circumstances here are of far less importance; damages are not in question; a shilling or so is to be recovered, the object of the action being almost always to try a right of property or an easement. In all oilier cases of trespass, where a knowledge of the wrong suffered is most material, the parties are left to fight, and the court to decide, in the dark; but in the case I have just alluded to, where a know- ledge of the circumstances in which the trespass was committed is immaterial, everything is told them of which it is wholly unimportant that they should be informed; in a cumbrous way, no doubt, and with much fanciful statement, but still it is told. Actions for slander and libel, for malicious prosecutions, and malicious arrest, or holding to bail, with others on the case, are very particular, and form, cer- tainly, an exception to the ordinary course of pleading; at least, as far as the declaration goes; no further, as we shall presently see for I now proceed to the next stage of the pleadings, namely, to the pleas which the defendant puts upon the record in answer to the plaintiff's complaints. In this stage of the cause, we encounter the same evils, but in greater abundance; for they affect those actions on the case where the count is most precise. Generally speaking, it may be said, that if the plaintiff tells us nothing in his declaration, the defendant, in return, tells us as little in his plea; in that respect, at least, they are even. This is, perhaps, a consequence of the former evil, but be that as it may, it ought to be remedied. The plaintiff ought to tell the defend- ant the real nature of his complaint, and the defendant ought to make him equally acquainted with the nature of his answer. If this were always done, perjury would not so often be committed; everything intended to be proved would be stated on each side; and tho parties, knowing the evidence on which the respective statements must be es- tablished, would have an opportunity of examining into the character of the witnesses, and of procuring the best evidence to elucidate the point. At present, the mystery of pleading leaves them in doubt; and the vague and indistinct statements on the record, unaccompanied by other information, open a door to the entrance of falsehood in the wit- nesses, far wider than any you could open, by enabling them to get up proofs in answer to those expected from the opposite side. When- ever the parties fight each other by trick, on the record in the first in- stance, fencing to evade telling their grounds of contention, they re- new the fight afterwards by perjury in court. I will now give the House some instances of the vagueness of this part of pleading. In the indebilatus aft.su mpxif, from which I took my first example, the general issue is non (ts.sinnjisit. Now, under that plea no less than eight different defences may be set up; as, for instance, a denial These defects arc in a great measure remedied hy the late changes. 572 LAW REFORM. of the contract, payment, usury, gaming, infancy, coverture, accord and satisfaction, release. All these defences are entirely different, and yet they are all stated in the self-same words. So, too, in the action of trover; take our former case of the gun: the defendant, under the plea of "not guilty," may set up as a defence, that he is a gamekeeper, and took it by virtue of the statute of Charles II;* or that he had a lien upon it as a carrier for his general balance, and had, therefore, a right to detain it; or a particular lien for work done upon it; or that he had received it as a deposit, and was entitled to keep it; or that he took it for toll,t or detained it till passage-money due by its owner were paid;J or the reward due for saving it from shipwreck were given. Any one of these defences may be con- cealed under the plea of "not guilty," without the possibility of the plaintiff discovering which it is that his adversary means to set up; so that every body will, I think, agree with me, that if the count teaches the court and opposite party little, the plea teaches them not a whit more. || It is of these things that Mr. Justice Blackstone must be speaking, when he thus eloquently closes his account of special pleading and actions (not otherwise remarkable for accuracy)!! with a panegyric upon that perfection which it shares in his eyes with all the rest of our system. " This care and circumspection in the law, in provid- ing that no man's right shall be affected by any legal proceeding without giving him previous notice, and yet that the debtor shall not, by receiving such notice, take occasion to escape from justice; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly and exactly answered; in clearly stating the question either of law or of fact; in deliberately resolving the former after full argumentative discussion, and indis- putably fixing the latter by a diligent and impartial trial; in correcting such errors as may have arisen in either of those modes of decision, from accident, mistake, or surprise; this anxiety to maintain and to restore to every individual the enjoyment of his civil rights, without entrenching upon those of any other individual in the nation this parental solicitude, which pervades our whole legal constitution, is the genuine offspring of that spirit of equal liberty which is the sin- gular felicity of Englishmen."** 2. The inconsistency of many of our rules of pleading forms the next head of complaint to which I shall direct your attention; and it is just as manifest as the vagueness and indistinctness I have been pointing out. Why are infancy and coverture to be given in evidence under the general issue, while other defences of a similar description * St. 22, 23 Car. II. Dawe and Walter in Bull. N. P. 48. f Sir W. Jones, 240. J 2 Camp. G31. Lord R. 393. || The new rules remove these evils in a great measure. Tf e. g. His giving as an example of Assumpsit, an undertaking without con- sideration. ** 3 Corn. 423. LAW REFORM. 573 must be pleaded specially, as the statute of limitations always, and leave and license in trespass? If it is right that specific defences, of v.'hich your general plea gives yonr opponent no notice, should be couched under that plea, why should you be compelled to give notice of other averments before being suffered to prove them? Why do you, in one case, multiply pleas, which, in the other, your own prac- tice declares to be unnecessary? One or other course, the vague or the definite, the prolix or the concise, may be fitting; both cannot be right. Nay, there is often an option given as to the same thing; in- fancy, coverture, release, accord and satisfaction, and others, may either be given under the general issue in assumpsit, or pleaded. Why, this choice amounts to no rule at all! If a ground of defence is ever to be pleaded specially, why not always?* 3. Akin to tins inconsistency of principle is the variety of repugnant counts and pleas allowed in all cases whatever. Where there are ten different ways of stating a defence, and all of them are employed, it is hardly possible that any three of them can be true; at the same time their variety tends to prevent both the opposite party and the court from knowing the real question to be tried. Yet this practice is generally resorted to, because neither party knows accurately what course his opponent may take; each, therefore, throws his drag-net over the whole ground, in hopes to avail himself of everything which cannot escape through its meshes. Take the case of debt on bond. The first plea in such an action, almost as a matter of course, is the general issue, non estfactitm, whereby the defendant denies that it is his deed; the second, as usually is, solvit ad diem he paid it on the day men- tioned in the bond, a circumstance not very likely to happen, if it be not his deed; the third is solvit post diem he paid it after the day; a thing equally unlikely to happen, if it be not his bond, or if he paid it when due; and a fourth often is, a general release. What can the plaintiff learn from a statement in which the defendant first asserts that he never executed the deed, and next that he not only executed it, but has moreover paid it off? Where pleas are consistent with each other, it may be well to let them be pleaded in unlimited abund- ance: where they are not only not consistent, but absolutely destruc- tive of each other, it would be a good rule to establish that such pleas should not be put together upon the record, at least without some pre- vious discussion, and leave obtained. The grounds of action are often stated with almost as great inconsistency, almost always with greater multiplicity in the declaration. I recollect that at York, many years ago, it was my duty, as junior counsel, to open the pleadings in an action brought upon a wager which had been laid upon the life of the Krnperor Napoleon. I stated to the jury in the usual way, that the defendant, in consideration of one hundred guineas, agreed to pay the plaintiff a guinea a-day during the life of one Napoleon Buona- parte, and so forth, alleging the breach. Thus far all was well, and * These cvild arc also remedied; and so of the evils described in the subsequent 574 LAW REFORM. the audience were not disturbed; but there was not much gravity among them when I went on to state the second count, averring ano- ther wager on the life of "one other Napoleon Buonaparte;" and, indeed, though one, in those days, was quite enough for the rest of the world, two did not satisfy the pleader, who made mention of a third and a fourth Napoleon. I know that it is frequently said these allegations deceive nobody, and their vagueness and repugnancy keep no one in the dark, for each party contrives to have a good guess of what his adversary means. That this is not the case in many instances I know; that it takes place more frequently than might be expected, I am ready to admit. Bat what vindication is this of the system? If anything like precise information is obtained in such cases as I have described, it is most assuredly not from the record, but in spite of the record; it is by travelling out of it by seeking elsewhere for what the record does not give, or for correcting the false impression which it conveys; con- sequently, this defence of pleading is the very humble one, that it is useless, and, were it not for the cost, would be harmless. 4. Before the statute of the 4th of Anne, no man was allowed to plead double; the plaintiff might have as many ways of stating his case as he pleased, but to each count the defendant could only give one answer. By that statute he may, with leave of the court, plead two or more distinct matters. Though that leave was formerly granted or refused at the discretion of the court, it is now regularly given as a matter of course. There is, however, a fee to be paid to the office for it, and also a fee to counsel for signing the rule to obtain it, which, of course, implies a charge by the attorney also. I think every practitioner is fully aware of the consequences. Beside the expense, the utterly needless expense, the mischief of it is great and undeniable. I believe in my conscience, that many an attorney's clerk, who afterwards proceeds to still greater frauds, begins his career of crime by stopping this fee to counsel on its way. It is not necessary that the barrister should sign his name; and a knowledge of that fact among attorneys' clerks and barristers' clerks, seduces into a course of petty embezzlement, which leads to larger peculations in the long run, and ends in all the dishonesty which marks the life of the disreputable practitioner. According to the principles before laid down, such rules as this, to plead double, and all others of the kind, ought at once to be abolished, and the parties allowed to do, without any application, or rather supposed application, to the judge, and without any expense, what they thus obtain for the mere payment of money. But to proceed: though the defendant may plend, the plaintiff cannot reply many matters. For instance, in indebitatus assumpsit, if the defendant pleads, first, that he never made any pro- mise, and next, that ho was an infant when he made the promise, the plaintiff must either admit the infancy, and set up a subsequent pro- mise, or deny the infancy altogether, and re-affirm the original pro- mise; for he cannot both deny the infancy and set up a subsequent promise. Now, I will ask the House, why, if the defendant may LAW REFORM. 575 plead several matters, the plaintiff should not reply several matters? There must be some limit, I allow, set to the replication, otherwise, at each stage of the pleading, there would be a multiplication of issues, like the puzzle of the nails in a horse-shoe; but, surely, there can be no harm in allowing each separate ground of defence to be met both by a denial and an answer; giving the plaintiff a general replication to make the defendant prove his plea, and one special re- plication: I mean, as long as you allow the defendant to multiply, without restraint, his grounds of defence; for the power of pleading repugnant pleas being restricted, there will be the less prolixity occa- sioned by enlarging the power of replying. 5. The restriction upon demurrer, or pleading to raise an issue in law, appears still less founded in principle. By demurring, a party is obliged to confess the facts to be true as stated by the opposite party, and confine himself to a denial that, by law, those facts warrant the inference against him to raise which they are stated. If I am alleged to have made a particular promise, I may deny that I made it, which would raise a direct issue on the fact: or I may say that, though I did make it, such a promise is not binding in law, which raises an issue on the law. These two denials, however, cannot both be given; I must take my choice, either to admit the law or the fact. How is this in common life? If I am charged with anything wrong, as using certain blameable expressions, I may deny the words altogether, but may add, "admit, for argument sake, I did utter them, they were wholly harmless wholly free from the meaning affixed to them." In truth, men are demurring all day long, when they are conflicting or disputing with one another, and no one ever dreamt of tying down his antagonist to the admission of the fact, because he had argued against the inference. If anything can make the rule more objection- able, it is the gross inconsistency which it exhibits to the last rule I mentioned, the permission given to a defendant to raise as many re- pugnant issues of fact as he pleases. Why should a party be allowed to say, " In point of fact, I deny the promise but if I made it, six years have elapsed or I made it under age," and be prohibited from saying " In point of fact, I deny the promise; but, if I made it, there was nothing binding in point of law?" The two defences, as far as their duplicity goes, are precisely similar; and as it must be allowed that, before double pleading was introduced, the restriction upon de- murring was consistent with the general principles of the system, so, if repugnant pleas were forbidden, the objection, in respect of con- sistency, to a demurrer admitting the facts pleaded, would be removed. On other grounds, however, it would be still quite wrong. I admit that part of the mischief occasioned by the rule may be remedied after verdict, the objection being on the record. But beside that this remedy cannot, in every case, be applied, there lias been the delay and expense, to say nothing of the absurdity of a trial of facts, which, if proved, amount to nothing. Why should not the court first deter- mine the disputed law, and then, only if it becomes necessary, try the 576 LAW REFORM. truth of the facts? In equity pleading it is so. Why not in law pleading too? 6. A very great amendment of the law would be, to permit all formal errors to be amended, even at the very last stage of the cause. No one should be turned round on a mere variance; no one should be defeated on a mere verbal mistake, as it was my lot to be lately, in an indictment, the history of which will aptly enough introduce this head of remark. It was a prosecution for perjury: the jury was sworn, the case was opened, witnesses were examined, and docu- ments read, when a variance was discovered between the affidavit, on which the perjury was assigned, and the copy of it which formed part of the record: in the one the word "grandmother" was used: in the record the syllable " grand" was omitted, and only the two last sylla- bles " mother" were inserted. This was, of course, fatal to the in- dictment. There can be no doubt that the perjury, which consisted in the denial of a payment, was equally committed, whether that sup- posed payment was made to the mother or the grandmother; yet, owing to this utterly unimportant error, all the trouble of the court, and all the expense of the prosecutor, were rendered perfectly useless, and the ends of public justice frustrated. In ninety-nine cases out of every hundred indeed, I might say, in nine hundred and ninety-nine cases out of every thousand in which parties are turned round upon vari- ances, the materiality is not greater than in that which I have just mentioned to the House. The improvement which I would suggest is to allow nobody to be turned round upon a variance, except at the discretion of the judge. Where it is clear that the record by its vari- ance from the evidence has deceived the party, then the discrepancy ought to be fatal; but because this may happen once in a thousand times, ought we to legislate upon the exception, and introduce a gene- ral system of quirks and niceties upon sorry trifles the greatest op- probrium of the law? Furthermore, I would allow no failure of a case from the want of a sufficient stamp being affixed to any instru- ment used in evidence. In a case which occurred not long since, my Lord Dudley was turned round, because it was said there were a few words more in the instrument than we had counted, and the stamp was some half-crown below the amount required. At the trial of the cause, it was not disputed by us, that the words were more in number than the stamp covered; we took for granted that our adversary had reckoned right, and we did not require the process of addition to be gone through in court; it was afterwards found out that the defend- ant had counted the words wrong, and that they fell short of the number mentioned in the Stamp Act. The plaintiff, in consequence, got a rule for a new trial, and soon after he had a verdict. But sup- pose we had been wrong and our adversary right, what difference would that have made in the justice of the cause, which was truly an undefended one? I would allow the judge to inflict a penalty of 20 of 50 if necessary, to protect the revenue, instead of 10 for the want of a stamp; but I would not allow the party to be turned round, LAW REFORM. 577 and to lose his trial, because he had got a wrong stamp, or no stamp at all, affixed to his agreement or deed. Let not the House suppose that grievances such as I have been de- scribing to flow naturally from the present system, are imaginary and theoretical; I can assure the House, from my own daily experience, that they are not: they produce constantly a cost or a delay, or both, amounting to the positive denial of justice. To give an illustration of some of the parts of the system in its workings, I shall read the letter which I hold in my hand, from an eminent practitioner in the law. The widow of a Welsh clergyman was obliged to bring an action upon a mortgage-deed for the payment of the mortgage-money and inte- rest, and for performance of the covenants in the deed. She might have foreclosed by a proceeding in equity; but preferring the delays of the King's Bench to those of the Chancery, she brought an action of debt of the simplest possible kind, both in its nature, and in the form of the proceedings; and the House shall now hear from her re- spectable solicitor himself, what was the progress and termination of that action: " The defendant was a member of Parliament, and some delay, as is usual with such defendants" (I beg pardon, sir, of course, I am not answerable for the terms of the letter) " took place in enforcing an appearance. When the declaration was delivered, tho defendant demanded oyer of the bond, and that obtained, made as many applications as the judge would allow for further time to plead. At the expiration of this period, he pleaded 1st, Non est fact inn 2d, Solvit ad diem 3d, Solvit ante diem* 4th, Solvit post diem 5th, Performances. It is needless to add, all these pleas were pure legal fictions. The plaintiffs, in their replication, took issue on such pleas as concluded to the contrary, and assigned breaches of the con- dition, according to the statute. The breaches assigned were, non- payment of the principal non-payment of the interest and non-per- formance of the covenants of the mortgage-deed. The defendant, for the purpose of splitting the second into two issues, and thereby creating the delay of an issue in law, to be tried before the court in banco, and an issue in fact, to be afterwards tried at Nisi Prius before a jury, demurred to the last assignment of breaches a sham demurrer for delay. The plaintiffs joined in demurrer, and made up and delivered the paper-book and demurrer-book. The defendant, in order to entitle * Had the plaintiff's pleader chose, the law enahled him to demur to this plea, (but it would have increased the delay and served the defendant's purpose.) The ground of the doctrine, that paying before the debt falls due is no answer to the action seems not very intelligible, hut it is now settled law. The reason assigned (in Cass v. Tryon though there are cases co/ro, see Cro. Eliz. 143, Dyer, 22'J, and also 11 Anne, c. lf>, 12) is, that if the verdict on that issue goes for the plain- tiff, it by no means follows that he has a right to recover, for he may have been paid at or after the day. Hut so it may he said of a plea of infancy or, indeed, of siilvit nd diem itself (or though the verdict negative that plea, nun coruitnt thai there may not have been duress or a release. The true test of a plea (or an affirmative issue tendered at any stage of the pleadings) plainly is this if its being found for him who pleads it decides the matter in his favour, no new fact being averred on the other side, it is good if not, bad. VOL. I. 49 578 LAW REFORM. himself to bring a writ of error for delay, without giving bail, then suffered judgment to go by default, for not returning the paper and demurrer-book. The consequence of this was, that all the pleas, re- plications, rejoinders, and demurrer, became useless, and were struck out of the record; and the plaintiffs had to execute a writ of inquiry before the Chief Justice, under the statute of William III, to assess damages on the breaches suggested. But these proceedings had an- swered the purpose of harassing the poor defendant with useless and expensive litigation, swelling the pleadings from five folios to one hundred and eighteen; and they had already accomplished much de- lay, having occupied four terms: the bill was filed in Trinity Term, the pleas and replication in Michaelmas Term, the demurrer and joinder in Hilary Terra, and the final judgment was obtained in Easter Term. The defendant then brought a writ of error, without the slight- est pretence of actual error; and that proceeding, of course, delayed the plaintiffs four terms longer. All this was necessarily attended with expense, grievous to a poor person, as the party in this case was. The costs of the judgment were taxed at SO, 4s., and the costs in error at 19, 10s., making together 9.9 14s. for the costs, and two years for the delay in an undefended action, in which the length of the declaration was five folios! Comment on such a case would be a waste of words." It would indeed! But if it be wanted, Black- stone shall be the commentator. " So tender and circumspect," saith he, " is the law of England in providing that no man's right shall be affected by any legal proceeding; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly and exactly answered; in clearly stating the law and the fact; in de- liberately resolving the former and indisputably fixing the latter by a diligent trial; in correcting such errors as may have arisen in either decision, and in finally enforcing the judgment, when nothing can be alleged to impeach it! So anxious it is to maintain and restore to every individual the enjoyment of his civil rights, without intrenching upon these of any other individual in the nation, so parentally soli- citous is our whole legal constitution to preserve that spirit of equal liberty, which is the singular felicity of the British nation."* I must now tell the House, that besides the 99, 145. taxed costs, this poor widow had to pay 30 for extra costs, which she never received a shilling of from the defendant, and which she had to defray after he had handed his share of the costs over to the plain- tiff's attorney. In prosecuting an undefended cause she paid this sum, and if it had so chanced that the defendant, instead of being merely a distressed man (for I happen to know the gentleman in question, and that though a distressed, lie is not an oppressive man); if he had been such a character as was once known in the northern provinces, and as we have had represented on the scene pertina- cious, litigious, grasping, oppressive, with a long purse to back him in defending acts of injustice and cruelty he would have resisted at * See page 572, supra, where the same passage is cited. LAW REFORM. 579 every stage of the action by counsel and witnesses; he would have had the demurrer argued before the court; he would have tried the issue at Nisi Prius; he would have carried his writ of error through the Exchequer Chamber into the House of Lords; and then the extra costs, instead of thirty pounds, would have amounted to I dare not say what sum, knowing that costs to the amount of hundreds have been incurred- to recover a debt of twenty pounds. "So tender is the law of England in providing that no man's right should be affected by any legal proceeding so parental its solicitude to main- tain and restore to every individual the enjoyment of his civil rights, without intrenching upon those of any other person whatsoever!" Sir, after Mr. Justice Blackstone had written his beautiful, and, in part, profound Commentaries, there occurred a case, which he published himself in his Reports, and which must, I conclude, have happened after the panegyrics were composed. I marvel much, however, that when a subsequent edition of his Commentaries ap- peared, he did not correct the error into which he must then have been convinced that he had been betrayed, by his excessive admira- tion for the forms and technicalities of our common law. The case, as reported by himself, was, in substance, this: A gentleman of the name of Robinson, in Yorkshire, was minded to try the resources of the law in an action of trespass against some poor men, who lived near him. In the course of it, reference was made to the Master, to report by whose fault the pleadings in the action had extended to a most enormous and unprecedented length. The Master reported, that in the declaration there were five counts; that twenty-seven several pleas of justification were pleaded by the defendants, which, with replications, traverses, new assignments, and other monuments of pleading, amounted at length to a paper book of near two thou- sand sheets. He was of opinion that the fault lay principally in the length and intricacy of the declaration, the action being only brought to try whether the freeholders and copyholders of the manor, whereof Robinson was lord, were entitled to common in a ground called the Inclosnre. He likewise reported that the declaration was so catching, by ringing changes upon the several defendants, and the several names of the ground, that it was necessary for the defendants to guard every loophole; which made their pleas so various and so long, especially as Mr. Robinson had declared that he had drawn the declaration in this manner "on purpose to catch the defendants, and that ho would scourge them with a rod of iron." The court was very indignant at this abuse of the technicalities of the law, and the book says that Mr. Robinson appeared in propria persona, to show cause against this report, " no other counsel caring to be employed for him." The court ordered Mr. Sergeant Hewitt and Mr. \Vinn to settle an issue, which they did in a quarter of an hour, and in tho space of a quarter sheet of paper, instead of two thousand folios. Talk of scourging with a rod of iron! Why should he think of it? The lash of parchment, which is applied to all suitors in our courts 580 LAW REFORM. of law that flapper, which keeps them awake to the course of jus- tice by the expense and anxiety it inflicts that truly parental cor- rector of human errors, manufactured in the engines of practice and pleading, which, pretending to enlighten, serve only to keep the court and the suitors in the dark as to what they are conflicting about, and oftentimes teach them nothing certain, but that they are ruined, and cannot tell how: this parchment lash was a far more safe as well as powerful scourge for the rich and crafty lawyer, and a far more deadly one for his poor and simple antagonists, than any rod of iron which he could have had forged for his own use in all Colebrookdale! v. The parties being now supposed at issue by the result of their pleadings, the facts in dispute are to be tried by a jury through the medium of evidence, and the comments of the counsel and judge. Before I enter, therefore, on the head of Evidence or Proceedings, or Trial generally, the House will permit me to say a few words upon the subject of Juries, the rather because this venerable institution has, I lament to say, been of late years attacked by some of the most distinguished legal reformers. Speaking from experience, and ex- perience alone, as a practical lawyer, I must aver that I consider the method of juries a most wholesome, wise, and almost perfect inven- tion, for the purposes of judicial inquiry. In the first place, it controls the judge, who might, not only in political cases, have a prejudice against one party, or a leaning towards another, but might also, in cases not avowedly political, where some cord of political feeling is unexpectedly struck, if left supreme, show a bias respecting suitors, or what is as detrimental to justice, their counsel or attorneys. In the second place, it supplies that knowlege of the world, and that sympathy with its tastes and feelings, which judges seldom possess, and which, from their habits and station in society, it is not decent that they should possess, in a large measure, upon all subjects. In the third place, what individual can so well weigh conflicting evi- dence, as twelve men indifferently chosen from the middle classes of the community, of various habits, characters, prejudices, and ability? The number and variety of the persons are eminently calculated to secure a sound conclusion upon the opposing evidence of witnesses or of circumstances. Lastly, what individual can so well assess the amount of damages which a plaintiff ought to recover for an injury he has received? How can a judge decide half so well as an intelli- gent jury, whether he should recover as a compensation for an assault, fifty pounds, or a hundred pounds damages? or for the seduction of his wife or daughter, fifteen hundred, or two thousand, or five thousand pounds damages? The system is above all praise it looks well in theory, and works well in practice; it wants only one thing to render it perfect namely, that it should be applied to those cases from which the practice in equity has excluded it; and that improvement would be best effected by drawing back to it the cases which the courts of equity have taken from the common law, and LAW REFORM. 581 which they constantly evince their incapicity to deal with, by sending issues to be tried whenever any difficulty occurs.* I shall not press this subject further, for I begin to feel that I shall be exhausted with the labour 1 have undertaken, and I fear that your patience may be exhausted wilh my strength. I will therefore pro- ceed to the great subject of Evidence; and, first of all, we are met by the question Ought the testimony of the parties to be excluded? The strong opinion expressed by some great authorities on this head requires that, before entering on the Law of Evidence, we should touch the fundamental rule which draws so broad a line between parties and witnesses. It is clear that the law on this head re- quires revising; it is not so clear that the reform will be best accom- plished by receiving every one's testimony in his own cause. The friend of exclusion proceeds upon the supposition that the situation of a party differs wholly from that of another person; whereas it only differs in the degree of the bias arising out of interest, from the situa- tion of many who are every day allowed to depose. He also main- tains that it is dangerous to receive the party's evidence, because of the temptation afforded to perjury. That there is much in this argu- ment, I admit; but, speaking from my own observation, I should say that there is more risk of rash swearing, than of actual perjury of the party becoming zealous and obstinate, and seeing things in false colours, or shutting his eyes to the truth, and recollecting imperfectly, or not at all, when his passions are roused by litigation. I shall not easily forget a case in which a gentleman of large fortune appeared before an able arbitrator, now filling an eminent judicial place, on some dispute of his own, arising out of an election. It was my lot to cross-examine him. I had got a great number of letters in a pile under my hand, but concealed from him by a desk. lie was very eager to be heard in his own cause. I put the question to him " Did you never say so and so?" His answer was distinct and ready "Never." I repeated the question in various forms, and with more particularity, and he repeated his answer, till he had denied most pointedly all he had ever written on the matter in controversy. This passed before the rule of evidence laid down by the judges in the Queen's case; consequently I could examine him without putting the letters into his hand. I then removed the desk, and said "Do you see what is now under my hand?" pointing to about fifty of his letters. ' I advise you to pause before you repeat your answer to the general question, whether or not all you have sworn is correct." He rejected my advice, and not without indignation. Now, thoso letters of his contained matter in direct contradiction to all he had sworn. I do not say that he perjured himself far from it. I do not believe that he intentionally swore what was false; he only forgot what he had * It is fitting that we speak with reverence even of the unfounded doubts of so preat a man and profound a jurisconsult as Mr. Hentham. Ho was, Ix-yond all dispute, the first who taught men to examine the foundations of our I.ejj.il Institu- tions, and the ahuscs that have grown up with them. Sir S. Homilly wus the first to question them in Parliament. 49" 582 LAW REFORM. written some time before. Nevertheless, he had committed himself, and was in my client's power. I said " My advice is, that you pay the whole demand before to-morrow." This only increased his anger. He " scorned the offer and the imputation." Turning to his solicitor, 1 asked if he concurred in his client's view of my proposi- tion? " Very far from it," was the answer. The meeting broke up, the arbitration terminated, and the money was paid the next morning. Now, had this trial occurred in an open court, the gentleman would have been ruined for ever; he would have had no opportunity of ex- plaining, nay, all explanation would have been useless; if he had escaped prosecution, he would have been suspected of perjury ever after, when all that he was guilty of was too much eagerness, too much impetuosity, and a little wrong-headedness, arising from confi- dence in his own cause, and a desire to defeat his adversary. But this anecdote is fruitful in matter of reflection. On the one hand, we see the risks of admitting impure or uncertain evidence, and the pro- bability of receiving wrong impressions respecting a witness's bias while undergoing the question; on the other hand, we perceive that, to a certain degree, the same consequences flow from our present practice of allowing such evidence in some cases, and not in all. Our system is clearly inconsistent in this particular. At least we ought to be uniform in our practice. Why refuse to allow a party in a cause to be examined before a jury, when you allow him to swear in his own behalf in your Courts of Equity, in your Ecclesiastical Courts, and even in the mass of business decided by Common Law Judges on affidavit? Why is the rule reversed on passing from one side of Westminster-hall to the other, as if the laws of our nature had been changed during the transit, so that no party being ever allowed before a jury to utter a syllable in his own cause, in all cases before an Equity Judge, parties are fully sworn to the merits of their own cause? If it be said that there is no cross-examination here, I answer, that this is a very good argument to show the inefficacy of equity pro- ceedings for extracting truth from defendants, but no reason for fol- lowing a different rule in the two jurisdictions. Indeed, the incon- sistencies of our system in this respect almost pass comprehension. All pleas at law are pleaded without any restriction upon their false- hood; in equity the defendant answers under the sanction of an oath. But equity is as inconsistent with itself as it is different from common law; for the plaintiff may aver as freely as he pleases, without any oath or any risk at all. When an inquiry is instituted into these things, I do venture to hope that something will be done to diminish the number of matters decided on affidavit. This is, indeed, a fruitful parent of fraud and perjury, and not only a great departure from the principle which excludes the testimonies of parties, but an abuse of all principle; for he who would allow such testimony, under due re- straints, may very naturally argue that suffering men to swear for themselves, without being exposed to cross-examination, must lead to endless equivocation, suppression of truth, and all the moral guilt, without the danger, of actual perjury. If it be right to exclude the LAW REFORM. 583 parties from giving evidence in their own belialf in one case, it is not right to admit them to give evidence in others; and more especially it is absurd to admit them where they have the power of deceiving with impunity, and exclude them where they would swear under checks and restraints.* 1. The first matter that presents itself to my attention, when I come to the subject of Evidence, is the great question (intimately connected with what I have been discussing,) how far interest should disqualify a witness. The ancient doctrine upon this point has, of late years, been so much restricted by our courts of law, so little is left of the prin- ciple on which this objection to competency rested, that, for my own part, I will confess I cannot see any adequate reason why all witnesses of good fame, that is, all not convicted of an infamous offence, should not be admitted, leaving the question of their credibility, and the weight of their testimony, to the consideration of the jury. In the case of " Bent v. Baker," an action against one underwriter of a policy, the court held that another underwriter of the same policy was a com- petent witness for the defendant, because the verdict could not be evidence in an action against himself, although it was clear that the first action must, in fact, decide both claims. After that decision, it cannot be said that there is any rational ground for exclusion on account of interest in the event, any more than interest in the question. The rule thus established has ever since been followed; and now, in all cases, a person is competent, whatever bias he may have from interest, provided the verdict cannot be given for or against him in another cause; the bias under which he swears being only a circumstance that goes to his credit. After this it is in vain to exclude any evidence upon the ground of interest in the event, and the principle should be ex- tended to all interest, direct or indirect. For let the House look at the inconsistency of the present system. If I have the most distant interest, even the interest of a shilling, in reversion on an estate of 50,000 a-year, I am incompetent to give evidence on any point affect- ing that estate; but suppose I have a father ninety years of age, lunatic, bedridden, at the point of death, and quite incapable of doing any legal act whatever that he is in possession of an estate in fee-simple that I expect to be his heir or that he had formerly made a valid will in my favour, so that nothing can prevent me from succeeding the moment he dies, I may be a witness to give him the estate: I am competent to swear into the possession of my father a property of 50,000 a-year, to which, in the common course of events, I must myself succeed in a few weeks. But pecuniary interest is not the only feeling that biases the mind of a witness; and yet any one may swear for a parent, a brother, a sister, a child, on questions most nearly affecting the peace, and honour, and happiness of the whole family. I therefore think that a line ought to be drawn, not between one sort of interest and another, but between competency and credit; and that all should be admitted to give evidence, leaving it to the jury to determine what * This defect remains as before. 584 LAW REFORM. dependence may be placed upon their testimony. This is rendered the more fit by the nature of the shifts resorted to for the purpose of re- storing the competency of interested witnesses; I allude, of course, to that notable expedient, a release of all actions or causes of action. When a witness has an interest, if he is deprived of it by a release, there is no objection to his competency. Evidence is thus often cooked up for the court, nay, in the court, while the witness is in the box, which, according to the existing rules, is not admissible, without such a process. Now, what is the real effect of the release on the mind of the witness? Just nothing for if he be an honourable man, he gives it up the moment he leaves the box, and while swearing he knows that he is to do so; so that the operation which has been performed upon him adds a pound to the year's revenue, nothing to the credit of his testimony.* 2. With regard to written evidence, I must say that it appears to be no less capriciously required than dispensed with. I think as highly as any lawyer ever did of the Statute of Frauds; I would go the full length of the learned judge who said that every line in it was worthy a subsidy; and it is, therefore, that I could wish a few lines might be added, so as to increase the number of subsidies at which I may value it. First, I would extend the number of cases in which written evi- dence is exacted. The French law requires that all contracts for sums above 150 francs should be reduced into writing, and even authen- ticated by notarial forms. I would adopt some such extension of our statute; and as almost all men are able to write at the present day, I do not think this would occasion any inconvenience. But then the outlets should be stopped up, by which the exigency of the statute is escaped. I think, as far as I can discern from reading the French Code Civile, and the Conferences upon it (a wonderful monument of Napoleon's genius, as well as of the talents of his counsellors), that no part performance takes a case out of the French enactment. With us, the things are so numerous which take transactions out of the Statute of Frauds, that the memorandum in writing is only in a small propor- tion of cases required. Hence, among other consequences, much sub- tlety of construction often needlessly extended by jurisconsult exer- citations, as the distinction between crops growing and severed, or a right and an easement, in determining what is an interest in land.t A judicious enactment, restoring the force of the statute in these, particu- lars, as well as extending it to other cases, would be highly beneficial in preventing fraud, perjury, and litigation: and could offer no impedi- ment to commerce, further than the beneficial one of narrowing the credit given by small tradesmen. 3. The rule by which a man's books are let in, or excluded, after his decease, is also, in my mind, extremely defective. They are evi- * This is still unaltered. f Thus a license for any number of years to stack coals on a close is not within the statute; such n complete occupation of every inch of the surface, and exclusive of all other use of it, even by way of easement, is not held to be an interest in land. There is a case to this effect in Sayer's Reports. LAW REFORM. 5S5 dencc, if he has entered the receipt of sums by which he makes him- self chargeable to any amount. If he only debits himself with the receipt of 5, which very likely he may have received, he makes his books evidence for his representatives, who may gain 500 to which he never was entitled. The ground on which they ought to be ex- cluded is, the general probability of their having been made for the purpose of creating evidence; but that probability is never weighed at all in the particular instance. We had much discussion of this mat- ter in the case of Barker v. Wray, before Lord Eldon, who appeared exceedingly to question the soundness of the received rule; this at least was certainly the impression of the bar. Would it not be better to abolish the legal presumption, exceedingly ill-founded in fact, which lets in all such documents generally, and as generally excludes all others, and to substitute in its place the rule, that any deceased per- son's books or memorandums may be received, provided it appear that they were not prepared with a view of making evidence for his successors, but plainly alio intuitu? Observe, too, that in one case we admit, without any qualification, the books of a predecessor, in his successor's behalf. I mean entries made by a deceased rector or vicar of the receipt of tithes, which are always admitted as evidence for succeeding incumbents, because he is supposed to have had no inte- rest in misstating the fact as if the clergy were always entirely free from the influence of a corporation spirit. 4. Than the rules for the examination of witnesses, I am of opinion that nothing can be better, generally speaking. Every facility is afforded to counsel for extracting the truth. Upon this important head, therefore, my remarks will be few. There is a want of uni- formity in the practice of the judges towards counsel engaged in ex- amination. Some will not allow them to cross-examine a witness they have called themselves, even though he is stated when produced to be a hostile one; and others will not allow them to put a leading question to an adversary's witness, in cross-examination, if he be really friendly to them. The sound rule seems to be that it depends on the connections and demeanour of the witness, whether he shall be re- garded as the witness of the party producing him or no. Again, cer- tain tests are excluded, by which the capacity and the credit of a witness may best be tried. If I wish to put a witness's memory to the test, I am not allowed to examine him as to the contents of a letter or other paper which he has written. I must put the document into his hands before I ask him any questions upon it; though by so doing he at once becomes acquainted with its contents, and so defeats the object of my inquiry. That question was raised and decided in the Queen's case, after solemn argument, and I humbly venture to think, upon a wrong ground, namely, that the writing is the best evi- dence and ought to be produced, though it is plain that the object hero is by no means to prove its contents. Neither am I, in like manner, allowed to apply the test to his veracity; and yet how can a hotter means be found of sifting a person's credit, supposing his memory to 586 LAW REFORM. be good, than examining him to the contents of a letter, written by him, and which he believes to be lost? There is a test, excluded in cases of libel, of which I shall say the less, that I brought in a bill some years ago to remedy this defect. The main question in any prosecution for libel being the innocence or guilt of the publication, is it not preposterous to keep the proof of its truth or falsehood from the view of the court? Almost everything else is admitted which can throw any light upon the motives of the party; but that is carefully shut out which is the best test by far of their nature, though certainly only an unilateral test, inasmuch as there must always be guilt, if there is falsehood, though truth does not of necessity prove innocence. Nay, the defendant cannot even be allowed to urge the truth in mitigation of punishment after convic- tion; as if there were the same criminality in publishing that a man had been tried and sentenced to the galleys for forgery, who was sen- tenced, and that an innocent individual had been sent thither, who never had been tried or even suspected of the offence a case which lately occurred within my own experience. Another test, of a still more important kind, is excluded by a very injudicious refinement of our law, its repugnance to try collateral issues. A foul charge is brouaht against a man, of rape, or some yet more horrid offence, and the liberty of cross-examining the prosecutor or his witness, whom I may assume to be his fellow conspirator, is, in a most important particular, restrained. The defendant's counsel may address the witness thus " Were you not examined on different occasions, at four or five several sessions, when you sought, by your testimony, to convict as many different individuals of an offence similar to that which you now accuse this prisoner of committing; and were not all those persons whom you so persecuted acquitted? Did not the court reprimand you for prevarication, nay, order a bill for perjury to be preferred against you?" True, the counsel is at liberty to put questions like these; but what, if the witness answers, as in all probability he will, be the fact how it may " No?" The prisoner cannot give evidence in contradiction of the wretch's asser- tion, at least the practice goes the full length of this. But at any rate it is quite clear law that, if the witness is asked, " Mave you not your- self been guilty, repeatedly, of this very crime which you now wish to fasten on the prisoner?" and he should reply, as doubtless he will, " No," the prisoner is not allowed to adduce evidence of the fact, because, forsooth, the court cannot try "collateral issues," unless the record of a conviction is produced. Nay, I have known judges, though on this they differ, who would not suffer the prosecutrix, in a case of rape, to be asked if she had not led an unchaste life before, because a common whore may be ravished, as if the probability of the event were the same in all cases, and were nothing to the ques- tion under consideration. 5. Furthermore, I ask, why should any class of persons be ex- cluded from giving evidence in criminal cases on account of their LAW REFORM. 587 religious opinions, notwithstanding their testimony is admissible in cases of a civil nature? A Quaker is precluded by his religion from taking an oath; his affirmation is received in civil, but rejected in criminal cases. I was once employed, with two of my learned friends, to defend a man, prosecuted by the Attorney-General, for a mis- demeanour. We had a very worthy and learned physician, by whose testimony we expected to rebut the charge; but it turned out, when he came to the witness-box, that he was a Quaker; of course he would not swear, and equally of course he could not affirm. Our client, also of course, was convicted. This is bad every way; it is bad, for that it suffers guilt to escape; it is bad, for that it suffers inno- cence to be destroyed. The Quakers, it is true, desire not to see a change, because, being averse to capital punishments, they do not wish their testimony to be used in capital cases; but they forget that their evidence may be the only means of saving an innocent person from the very punishment of death to which they object, and that, rather than help to hang the guilty, because they dislike the punish- ment, they are allowing the innocent to suffer by the self-same punish- ment. There is, in my opinion, no reason for excluding any indivi- dual, be he of what religion, sect, or persuasion he may, from giving testimony in cases of every kind, provided he believes in the exist- ence of a God, and a state of future rewards and punishments; and is not openly infamous by sentence of a court.* 6. I have already, in speaking of competence of evidence, said somewhat of presumptions; but there is a class of presumptions which has found its way into the practice of all courts, and ought, in my opinion, to be carefully excluded; I mean presumptions affecting the weight of evidence, tending to withdraw the attention of the court from the facts of the particular case, and to produce a decision founded upon some kind of average taken from other cases, and because taken at a former period, of course excluding the case in hand. It has thus become almost a rule of law, that perjury can only be proved by two witnesses, or, perhaps, by one witness and the defendant's handwri- ting. Why may not other circumstances exist, quite as sufficient to cast the balance against the oath of the accused, and give credit to his accuser? This presumption goes in favour of the defendant; but there is another, by which he is often, I am convinced, improperly con- victed; I mean the rule that an accomplice is entitled to credit in all particulars, provided he be confirmed in some. I once, many years ago, endeavoured to contend for a limitation of this rule, when the late Chief Baron Thompson presided in the Special Commission at York. I maintained that it was necessary to give the confirmation upon some fact which could not be true consistently with the defendant's guilt- lessness. It is certain, however, that the law knows no such qualifi- cation, and the judge whom I have named, than whom no greater criminal lawyer, or more humane and upright man ever existed, * This disability of Quakers and other sectaries has since been removed by statute. 588 LAW REFORM. ruled, with his reverend brethren, against me; and seventeen men suffered death, some of whom were convicted on the testimony of ac- complices. I do not exactly recollect, whether the confirmation was as slight as would barely satisfy the exigency of the rule; but I am very sure, that instances frequently occur in which the story of an ac- complice leads to conviction, while all the witnesses of credit swear only to slight or wholly equivocal circumstances. 7. It is a somewhat similar anomaly in the rules of evidence, that the court always takes upon itself to construe written instruments, of whatever kind, as if their sense must be matter of law, while the weight of all parol evidence is as invariably left to the jury. Why should the assistance of the jury be wholly rejected in this province? It is another and a kindred rule, that where, on the face of a writing, there is an apparent, or as the lawyers term it, a patent ambiguity, no other evidence can be allowed to explain it; where the ambiguity is latent, or raised by extrinsic evidence, there, other evidence may be adduced to remove it. This principle has been laid down by high legal authority; for it is first clearly stated by Lord Chancellor Bacon but I am much disposed to question its correctness. Coupled with the other rule, which precludes the jury from construing written evidence, it tends greatly to narrow and darken the path to correct decision. This naturally leads us to examine a little how the courts have exercised this, which they have thus claimed as their exclusive pro- vince; and we are thus conducted to a variety of other presumptions respecting evidence, which have been received and acted upon, so as now to have become rules of interpretation, and parcel of the law of the land. With much unfeigned respect for the authority of the great names whose sanction this large branch of our jurisprudence has en- joyed, and with much admiration of the ingenuity and astuteness which it has called forth, I must be permitted to say, that, considering the paramount object of all law its use as a rule of life for the people, no part of our system is less entitled to praise. It should seem that one obvious principle of construction would be to take words in their plain ordinary sense, and always to construe them alike, in whatever instrument they might be used. Only let lawyers consider what a mass of technical niceties and real difficulties this would get rid of; only let them reflect on the consequences that do result from following the very opposite course. Why should the same words be differently construed in a will and in a deed? Why do words, which in one species of instrument give an estate in fee, convey only a life-interest in the other? Why should the last words employed in a will overrule the earlier ones, and not in a deed, on the vain refinement that those express a man's latest intention as if the whole taken together were not his latter will, as much as the whole, taken together, are his deed? But even in wills, where we affect most to follow the intent, so nice is the construction, so technical has it be- come through many decisions of the courts, and so imperfect conse- quently is the knowledge generally possessed by people on the sub- ject, that a man cannot well be more in the dark on the subject of the LAW REFORM. 5S9 distribution of his property after his will has taken effect, by his being naturally dead, than he is at the very moment of making it. In fact, most men, while disposing, or fancying they dispose of their property, do not, in the least, know what they are doing. An unlearned indi- vidual thinks he is giving a life-estate when he is giving an estate in fee, or in tail, and vice versa. The testator, J. Williams, whose will gave rise to the case of Perrin v. Jl/ake, where the rule in Shelley's case was extended, little dreamt that the first taker was to have the absolute control over the property, when he directed him to take an estate for his life and no longer. Observe,! am far from complaining of that any more than of Shelley's case. The refinement which unites the particular estate with the remainder, in the issue of the first taker, is little more than an application of the simplest rule in law, that an estate to a man and his heirs (or, which is the same thing, to a man for life, with remainder to his heirs) is a fee simple. But the law should prevent the niceties, occasioned by following out its principles, from misleading those who are ignorant of those principles. By freeing it from such technicalities you would, I think, rather elevate the study of jurisprudence and raise its professors; I am certain you would benefit all the rest of the King's subjects.* It is hardly to be conceived how much, as matters at present stand, a man who makes his will is in the dark as to its final operation. Thus the creditor who appoints his debtor executor of his will, is considered as having granted a release of the debt: what ordinary person would think he had done so? The very same reasons that induced him to lend the money, and to count up its faithful repay- ment, friendship, blood, confidence, naturally lead him to appoint the borrower his executor. I have known it happen in this way fifty times in the country; yet the debt is gone at law; and equity will only relieve by holding the executor a trustee, where there are other debts and no free fund to pay them, or some words showing an in- tention to revive the debt words not very likely to be used by a person who never dreamt of its being extinguished. Then suppose a man has made two wills of the same date, and cancels one of them; it is held that, in certain circumstances, lie cancels the other. If one of the wills is at his banker's, the law raises a strong presumption that by cancelling his own copy he intended to cancel that, when the probability is that he cancels because he is aware there is a duplicate, and doc , not wish to have the first lying about his house. When both copies are in his own possession, the law does not entertain so strong a suspicion of the intention to annul the will, by cancelling one; still, however, the presumption is raised. An individual may be thus held to have died intestate, who never entertained any in- tention of the kind; and his property may pass away from those near relatives or favoured friends to whom he destined it, and be given to his hundred and fiftieth cousin, or, for default of legitimate relatives, may be vested in the crown. But it is not in this way only that a * Some remedy has been afforded for this evil by the \Vills Act. VOL. I. 50 590 LAW REFORM. person may revoke his will without knowing it, and die intestate while he thinks he is disposing of his property. He may happen to do so by the very act he performed with a view of confirming his testament and establishing his purpose. A recovery suffered, unless the will be republished, destroys it entirely, upon the nicety, quite consistent, I admit, with strict legal principle, that a new estate is taken back, different from that which was in the testator when he devised.* This happens frequently to frustrate the plain intent of parties. Lately in the Court of King's Bench, we had an instance of large property in this immediate neighbourhood, going anywhere rather than according to its owner's intention, because a recovery had been suffered; and a recovery, suffered for the express purpose of confirming the will, deprived Lord Erskine of a considerable estate in Derbyshire. So a conveyance, which divests an estate though but for an instant, to serve a use, with the intention of immediately taking back the former uses, which are accordingly taken back, totally revokes the will made before. t Nay, no less a judge than Lord Hardwicke has expressly laid it down, that where a man, supposing he had only an estate tail on which a devise could not operate, suffers a recovery for the express purpose of taking back a fee in order that his will may be good, it is thereby revoked.! The most notable part of these excessive refinements is, that they all proceed upon the act being evidence of a presumed intention, when no man can doubt that either there was no such intention, or one of the very opposite description. Thus, if I devise lands to a person, and afterwards for the same reason of favour towards him, by way of making him more secure, give him a lease in the same, to commence after my death, he being perhaps tenant for years under me at the time, the will is gone. It thus happens that, in the very act of his life, in which it is most important that a man should see clearly what he is about, and most likely that he should have no professional assistance, he is often wholly in the dark as to the effect of what he is doing. Were I in want of further illustration for this matter, I might go at once to the doctrine of powers, and show how the thing intended to be permitted is often prevented, and vice versa, by the view which courts have taken of what is and what is not a good execution, and which renders it unsafe to give an opinion upon any power, the very words of which have not received a judicial construction. I might go to the still greater niceties in the rules respecting the construction of contingent and executory uses, a chapter of our law, signalized by the utmost learning and ingenuity of those who have treated it. I might indeed at once ask what foundation in reason or even in analogy, * These things are now altered by the Wills Act. f Goodtitle v. Otway, 7 T. R. 399. ^ Sparrow v. Hardcastle, ib. in note. Nor is it necessary to change the estate, in order to operate a revocation, e. g. a feoffment by tenant in fee to another to his use and that of his heirs, 3 Ves. G, and an ineffectual recovery by tenant for^life (reversion in fee, disposed of by will). 2 Ves. jun. 430. Cro. Jac. 40, 5 Yes. jun. 650. LAW REFORM. 591 there is for holding that a purpose should be accomplished, by way of executory devise, which cannot be effected by way of contingent re- mainder; as the mounting a fee upon a fee, or directing a contingent use to spring and enure without any particular estate to support it; if, indeed, I ought not rather to ask why there should be any neces- sity in either case for a freehold interest to support an after-taken con- tingent estate, and why there should be any horror of mounting a fee upon a fee, an idea so familiar to the feodists in the sister kingdom, that their strict settlements (always made by deed, for they, having their niceties like ourselves, though of another sort, allow no devise of real property at all) consist of a succession of fees, under restraints specifically prescribed as to alienation and incumbrances. But I will satisfy myself with what has been said on this head, and suggest, as the obvious corollary, for remedy of the great bulk of the mischief I complain of, the laying down by the legislature of certain formulas, couched in plain language, and of an import recognized by written law. You give this help to justices, to prevent convictions and orders being set aside for technical error. Why not give it to men often less learned than they, for disposing of their property necessarily without professional assistance? Why not say, that whoever would give a fee, should use these words; an estate for life these; that whoever would clothe the takers of that estate with certain powers, may do it thus and so forth not stating that such are the only words which shall effect the same purpose, but that, at any rate, those shall* By such a plan, and by retrenching some refinements which the fund is ample enough to spare, in rules of construction, I know that much curious learning will be brushed away; but I also know that the law will be rendered accessible to those whose rights it is to govern, and that the lay people will gain far more than the learned lose. Thus much for amending the rules of construction. But for the general establishment of sound rules of evidence, I should recom- mend, first of all, an introduction of one rule as to the manner of examining witnesses, instead of trying issues of fact in one court by written depositions, and in another by viva vocc examination (whereby the same will may be, and sometimes has been, supported in Doctors' Commons, upon personalty, which a Court of Nisi Prius afterwards set aside altogether), in one court by affidavit, by sworn answers to unsworn bills, by yet more clumsy and ineffectual examination, on written interrogatories previously drawn; in another only by parole examination. I would have all matter of fact, wheresoever disputed, tried by a jury. For sifting the truth by such a trial, I would admit all records between the parties or their privies, and all instruments and writings of every kind of the parties against whom they are used; so much the law now permits; but I would let in whatever docu- ments, written by persons deceased, appear plainly to have been made without any view to manufacturing evidence. In a word, cx- * Thn Wills Art haa removed some of tlio defects here stated. It is to be re- gretted that formula* were not added to it. 592 LAW REFORM. eluding inferior evidence where better cnn be obtained, and, there- fore, all hearsay absolutely, I would admit whatever could not be deemed to have been done with a view to the fabrication of proof, by the knowledge that such would be receivable. Allowing objections from interest in the event, as well as from interest in the question, to weigh only in estimating a witness's credit, I would make no man incompetent to give evidence in any cause, civil or criminal, who was Hot either an unbeliever in God and a future state, or convicted of some infamous offence. In examining the witnesses, I would suffer a person to be contradicted as to matters directly affecting his credit, and on which he had been questioned;* and in the event of a witness turning out hostile to the party calling him, there can be no sound reason why, subject to the judge's discretion, he should not be treated as adverse, and even contradicted, without which the latitude at pre- sent given by some judges, only amounts to a power of putting lead- ing questions. Of nonsuits for variance, and other technical defects, I have already spoken. The law respecting Limitations comes as an appendix to the chapter of evidence. No branch of our jurisprudence is more important, and hardly any more demands revision. Why should there be no statu- tory limitation of a bond or other specialty?! For want of it the courts have adopted a sort of rule, founded upon presumption of pay- ment, that where the instrument is twenty, or even eighteen years old, sometimes less (so accurate is the rule), and no interest has been paid, or other acknowledgment made of the subsistence of the debt, it may be assumed to be satisfied; that the instrument is cancelled they cannot presume, for there it is, seal and all, staring them in the face; but there being no receipt or discharge, and the bond being in the obligee's hand, is surely quite enough to rebut any presumption of payment so that the courts have really made a law, though a bad and uncertain one, to meet the case. It would be far better to fix at once a period often years, after which no action should be maintain- able upon specialties. But even in cases where we have a statute of limitation, there is hardly any vestige left of the relief which it was intended to afford, owing to the labours of the courts in finding means of evading its beneficial operation. It was plainly meant as an act of peace and quiet. My noble friend J who presides in the Court of Common Pleas of the sister kingdom, once said, with his usual felicity of expression, that time is armed with his scythe to destroy the evidence on which titles rest, but the lawgiver makes him move with healing on his wings to stay the ravages of his weapon. To thwart the designs of the legislature, the courts have been setting up their rules of presump- tion. At one time they seemed really to hold that anything, even the simplest expression, would take a debt out of the statute of limitations; * This is really only a nominal relaxation of the rule in Spencely v. de Willd; the spirit of that rule is preserved, for the credit of the witness is not a collateral issue. 7 East, 108. | This is now provided by the late acts of 1833. \ Lord Plunkett. LAW REFORM. 593 for instance, if a defendant had said " I have paid the debt," he was taken as admitting it, unless he could prove payment. Again, if he said, " I owe you nothing," the assertion was taken as an acknowledg- ment; and he was also required to prove an acquittance of the plain- tiff's claim. The reply " Six years have expired" was equally dan- gerous, though it was only saying out of court what the statute itself allowed him to say in pleading. In fact, so deeply did Lord Erskine feel the difficulties which encompassed the defendant under these efforts of judicial acuteness, that he said the only safe course a defend- ant could take when his adversary sent a fishing witness, was to knock him down; for though he might be proceeded against for the assault, he retained the benefit of the statute, as regarded the debt. Although of late the current of decisions (as it is pleasantly termed) has set in more in an opposite direction, there is still abundant room for a provision to give this wholesome law effect. The means are obvious; let nothing but an acknowledgment in writing take any debt out of the statute. In a word, prop the main pillar of security against stale and unjust demands, the statute of limitations, by a beam from that other bulwark against perjury, the statute of frauds.* The law of Limitation seems to require alteration, not additional enforcement, in the case of Real Actions. The period for a Writ of Right is thirty or sixty years, according as the demandant counts on his own or his ancestor's seisin. But in a Formedon, which is often termed, as in truth it is, the tenant in tail's writ of right, it is no more than twenty years. The difference surely is founded on no sound reason, and ought to be done away, by a law fixing thirty years as the period of limitation in all real actions, and removing tho important difference in construction which Sir T. Plorncr's late decision has raised from the different expressions used in the statue of Henry VIII and James I, so as, in many cases of property under lease, to deprive the defendant of his remedy altogether.! lint in one case there is no limitation at all; I mean that of church rights. Why should there not lie? I admit that the same period ought not to be adopted respecting the church as the nit Hum tcmpiix act prescribes for the Crown; but I confess I do not see the necessity of leaving the law as it now stands, and exempting ecclesiastical claims from all restriction whatever. What is the consequence? It was admirably pointed out by a most learned judge, \ in one of the ablest tracts ever written, no less distinguished by closeness of legal argu- ment, than by that pure and concise diction peculiar to him. A composition real may have been made between a clergyman and bis parishioners, at any time since the restraining statute of Elizabeth; for iiOO years the land may have been possessed by the parson, and yet if the original agreement should have been lost, as it is almost sure to * This salutary alteration was effected liy Lord Tenterden's Act, passed in ls-J!>. | Tlit; whole law of Heal Actions has been changed and simplified by the labours of tin? Keal 1'roperty Commissioners, and the Acts of lH.'J. r >; and the changes hero proposed as to limitation of such actions luivu been introduced. i Mr. Baron Wood. 50* 594 LAW REFORM. be amongst farmers, though no tithe has been taken during all that time, there would be no bar by limitation, in the event of the clergy- man claiming the tithes; so that it could not be ascertained by whom the land had been given, and the land could not be restored for want of claimants; indeed there are cases in which the clergyman has thus retained the land originally given for the composition, and has his tithes paid to boot. I would say, then, with Mr. Burke, take not away from the church its power of being useful, but deprive her only of that which makes her odious. The reign of Richard I is the period up to which all rights as against churchmen must be carried; nay even as against lay impropriators, to whose case none of the reasons for favouring ecclesiastical claims apply. Yet that period becomes daily more remote and more inapproachable by evidence. Does not every principle of justice require, that lay titl-'S to tithes should be put on the footing of other property; and that for church rights, properly so called, a period of limitation should be affixed, longer than for other rights, to prevent collusion between incumbents and tithe payers, and combined, if necessary, with the number of two or three vacancies?* vi. The course of my observations has now brought me to the Trial of the Issues, raised by the Pleadings, on the Process, and investigated by means of the Evidence. On this branch of the subject I have little to offer. The principles are plain which should guide us, and they are not so widely departed from in practice as to require any great change. Each party should be allowed fully to propound his case in the way most advantageous to himself. All new matter advanced by the one should receive an answer from the other; each should be encouraged and not hindered to bring forward whatever evidence may tend to throw light upon the matter in question. Our practice, at least in modem times, departs a good deal from these principles, but is very easily restored to them. We compel the plain- tiff to explain his case, and comment upon it before his witnesses are examined: unless his adversary produces evidence, he has no means of observing, even upon his own case, after he has proved, or at- tempted to prove it. Hence his opening must be often very general, for fear of his evidence falling short; and hence he often labours under a prejudice from that cautions and imperfect opening, which a little explanation might remove. Counsel are every day obliged to state their cases in the dark; experience teaches us in some degree the difference between what is set down and what will be actually sworn; so that a young advocate will give a very different statement on the same brief from a practised one, no great compliment to our method of trying causes, in which as little as possible should depend on the forensic skill of practitioners; but even the most experienced are constantly deceived by their instructions; the cause may change its aspect, especially in the cross-examination of our witnesses; and they have no opportunity of correcting the error and preventing the * This important reform has also been made by Lord Tenterden's second Act of 1832. LAW REFORM. 595 result from turning on a matter wholly foreign to its merits, the discretion of those who prepared the brief unless the other party gives evidence. Now, for this very reason, and to gain by his adversary's failure (a failure not necessarily connected with merits,) he will avoid doing so; he will also avoid it generally, to prevent his own remarks from being answered. Hence much important evidence is every day shut out, by this play of counsel to avoid giving a reply, which the plaintiff should have, whether the defendant calls witnesses or no. Here, as in other things, the system is far from uniform: in Appeal cases, both before the Mouse of Lords and (he Privy Council, there is a reply, as of course; and in the committees of this House, as well as in trials for high treason, there is an opportunity given to each party of commenting on his case, after it has been presented in evidence, by a summing up. The practice is the same in the Eccle- siastical Courts, and the Delegates. I understand that a summing up, or speaking to evidence, as they call it, is allowed in Ireland; in Scotland both prosecutor and prisoner are heard on the evidence after it has been adduced, the want of an explanatory opening being in part supplied by the debate upon the relevancy of the indictment. I believe in civil cases they have adopted our modern practice, in- stead of the older method to which the Irish adhere. Before leaving this head I may be allowed to suggest an amend- ment of a minor kind, but of very considerable importance. It would be advantageous to have a sworn short-hand writer in every Nisi Prius case. Those who attend our courts of Nisi Prius are aware how sorely the Judge is hampered, and his attention diverted from more important considerations, by being obliged to take such full notes of the evidence. This practice is necessary, because the only record of the facts of the case is to be found in his notes. Now, the judge is often a slow writer, and, in this respect, men differ so much, that one judge will try three or four causes while another will dispose of only one, and one will impede a cross-examination so as to render it quite in- effectual, while another will never interrupt it at all. It happens like- wise that a judge mny be an incorrect taker of notes, wliirh not un fre- quently leads him to an incorrect decision, at least to an incorrect report of the case when a new trial is moved for. No judges ever write shorthand, and for no other reason, than that their notes may have to be read by another, if the record comes not out of their own court. My honourable friend, the member for Durham,* whose suggestions have ever been found most beneficial to judicial proceedings, introduced, the great improvement of shorthand writers in our committees, and abridged the delay and expense of those inquiries incalculably. I would h;ive them, if introduced into our courts, take full notes of the proceedings; at the same time I would not hold their notes as conclu- sive; they might be subject to the correction of the judge on any impor- tant matter misapprehended; for he, of course, would take his own note, but only of the principal and the more delicate things, likely to * Mr. Michael Angrlo Taylor. 596 LAW REFORM. be misunderstood by one ignorant of law. He would soon find where he could trust the shorthand writer and where not; he would be relieved from much labour merely mechanical, and left free to regard all the bearings of the case, and to take a commanding view of it, so as to bring on a more speedy decision of its merits. But, sir, I cannot leave the subject of trial without saying somewhat of the general principles regulating Real Actions, sinning as they do against all sense and justice. In other cases the plaintiff begins the attack, and on him it rests to prove his case, to stand or fall by his proof; but, in a Writ of Right, the person in possession fifty-nine years and three-quarters must, according to the existing law, expose his title, pedigree, and all, to his opponent, who can lie by and pick holes to his own advantage, without being even asked on what ground he relies, until his adversary has proved his case; a great benefit, whatever be his ground; for the jury must give the property to some- body, and it is likely that the party in possession having failed, the claimant may get in. In ejectment, though the plaintiff may have held possession for almost twenty years previous to the cause of action rising, yet, if he has been out of possession for one single day, it is incumbent on him to prove his title, and the defendant is not bound to budge if he fail. In this case, too, the plaintiff must pay costs if defeated, even though the person he attacks has been but a day in possession, and cannot have been in above twenty years. In the real action, where the possession may have been near sixty years, the claimant pays not one shilling of costs, for making you prove your title, though he fail entirely in impeaching it.* Nor let it be imagined that these evils never occur; I have seen them fully exemplified twice within the last eighteen months. We had a writ of right at York in the spring of 1S26, to try the title to many thousands a-year. On the eve of the trial we, for the demandant, dis- covered a defect in the proof of taking the esplees, and were forced to withdraw the record. It came down for trial at the next assizes, when we were astonished to find the defect we had reckoned upon in the tenant's title removed, and on asking where the document produced had been discovered, we were told that it had come to light on search- ing the Bishop's chancery, at Salisbury, some weeks after the spring assizes, in which he would have been defeated had we gone to trial. Only see by what an accident the possession of this large estate was saved ! Our client was defeated on the freehold, as not being the eldest son; he afterwards brought a plaint, in the nature of a real action, in the court of Lambeth, as youngest son, for the copyhold, which was descendible by Borough English. He again failed; but, of course, he paid costs in neither suit. vii. The trial being had and the judgment pronounced, there fol- lows the execution; and in this most important branch of the law, which may be emphatically called the law of debtor and creditor, I feel perfectly justified in declaring our system to be the very worst in * All Real Actions, except Quare Impcdit, are now abolished, by the Act of 1833. LAW REFORM. 597 Europe, departing the most widely from (lie principles which ought to regulate a creditor's recourse against his debtor. Those principles are abundantly plain. In proportion as, before the debt has been proved, the person and property of the party charged should be free from all process not necessary to prevent evasion; so, after judgment, ought the utmost latitude be given to obtain satisfaction from all the defendant's property whatever laud, goods, money, and debts for to himself they no longer belong. To allow any distinction between one kind of property and another seems the height of injustice. No consistent reasoner can maintain the propriety of exempting land more than chat- tels; no honest debtor can claim the privilege which he waived when he contracted the debt. In the case of a person deceased, all kinds of debts and all creditors should come in equally upon an insolvent estate; and preference only be given to a mortgage or other lien. The chattel itself sued for should be returned, and damages only given where it has been lost. The person of the debtor should not be taken in execu- tion, unless there is either a wilful concealment of property, or there has been criminal or grossly imprudent conduct in contracting the debt; for the two objects should be kept carefully distinct, of what is done to satisfy the creditor, and what is done to punish the debtor. Lastly, the former should obtain his satisfaction as speedily as may be, and as conveniently for the latter as is consistent with the creditor's security. How widely does our law depart from these obvious and natural prin- ciples, by dint of refinements, blunders, and openly-avowed injustice!* First of all, there are only two actions for recovery of chattels, in which we are expected to give the thing specifically sued for, Reple- vin and Detinue; yet in neither can the party compel a delivery in kind; and detinue is besides useless, because the defendant may wage Ins law. In all others the claim is avowedly for damages only. A horse is taken from me, and I sue for it; yet I only obtain damages for its detention: but suppose I want the horse, and not the money, the law will not aid me; nay, it will give me not a farthing in consi- deration of being thus compelled to part with it; I only receive what it would fetch in the market if I chose to sell it. Equity and common law differ widely here; the former always performs in specie; the latter looks to damages only, unless indeed where it is inconsistent with itself, as in the summary process to make parties perform awards, and attorneys and other officers of the courts deliver up deeds, and pay moneys by means of attachment. But all these defects are com- paratively trifling, and rather absurd in principle, than of extensive injury in practice. Wlnt is quite substantial, and of hourly occur- rence, is the frustration of a creditor after he has obtained judgment, and t;ikon out execution. His debtor has a landed estate; if it be copyhold, the creditor cannot touch it in any way whatever; if it ho freehold, he may take half by ek'git, and receive the rents and profits, * Tim now Hill proceeds wholly upon thesp principles, pivrs the creditor the full remedy, and only restrains or routines the debtor whoa ho either refuses to do what is in his power, lias been guilty of fraud, or is ahout to abscond. 598 LAW REFORM. but no more, in the lifetime of his debtor. The debt for which he has received judgment may be such that the rent of the land will not even keep down the interest; still he can take nothing more; he cannot turn the land into money; so that, when a man sues for a thing detained unlawfully, you give him money which he does not ask; and when he asks for money by suing for a debt, you give him land which he does not want. But if his debtor dies before judgment can be ob- tained, unless the debt is on bond, he has no remedy at all against any kind of real property of any tenure; nay, though his money, borrowed on note or bill, has been laid out in buying land, the debtor's heir takes that land wholly discharged of the debt. But not only is land thus sacred from all effectual process of credit- ors, unless the debtor be a trader; the great bulk of most men's per- sonal property is equally beyond reach of (he law. Stock in the public funds debts due in any manner of way nay, bank notes, and even money, are alike protected. I may owe a hundred thousand pounds in any way, and judgment may have passed against me over and over again; if I have privilege of Parliament, live in a furnished house or hotel, and use hired carriages and horses, I may have an income from stock or money lent, of twenty thousand a-year, and defy the utmost efforts of the law; or if I have not privilege, I may live abroad, or within the rules, (as some actually do), and laugh at all the courts and all the creditors in the country. So absurd are our rules in this respect, that if I have borrowed a thousand pounds, and the creditor has obtained judgment, the sheriff's officer appointed to levy upon my personalty, may come into my room and take a table or a desk; but if he sees the identical thousand pounds lying there, he must leave it he touches it at his peril: "For this quaint reason," says Lord Mansfield, "because money cannot be sold, and you are required by the writ to take your debt out of the produce of goods sold." It is true that great judge, whose merits as a lawyer were never underrated, except by persons jealous of his superior fame, or ignorant of the law, (among whom was a writer much admired in his day, but of very questionable purity, and certainly no lawyer), leaned to a contrary construction of the creditor's powers, and might have somewhat irre- gularly introduced it. But Lord Ellcnborough afterwards denounced such attempts as perilous innovations on the fundamental principles of our jurisprudence;* and the law is now settled on this point. t And here, sir, let me step aside to ask who is the innovator he who would adhere to such rules, in violation of the manifest intent and spirit of our old law, or he who would readjust them so as to give it effect? In ancient times there were none of those masses of property in existence, which are exempt from legal process. When the law, therefore, said " Let a man's goods and chattels be answer- able for his debts," it meant to include his whole personalty at the least. Things have now changed in the progress of society; trade has grown up; credit has followed in its train; money, formerly used * Knight v. Criddle, 9 East, 48. | All these anomalies are removed. LAW REFORM. 599 as counters, has become abundant; paper currency and the funds have been created. Three-fourths of the debtor's personalty, perhaps nine-tenths, now consist of stock, money, and credit; and the rule of law which leaves those out of all execution, no longer can mean as before " Let all his personalty be liable" but " Let a tenth-part of it only be taken." Can there be a greater change made upon, or greater violence done to, the old law itself, than you thus do by aflect- ing to preserve its letter? The great stream of time is perpetually flowing on; all things around us are in ceaseless motion; and we vainly imagine to preserve our relative position among them by get- ting out of the current and standing stock still on the margin. The stately vessel we belong to glides down; our bark is attached to it; we might "pursue the triumph and partake the gale;" but, worse than the fool who stares expecting the current to flow down and run out, we exclaim Stop the boat! and would tear it away to strand it, for the sake of preserving its connection with the vessel. All the changes that are hourly and gently going on in spite of us, and all those which we ought to make, that violent severances of settled rela- tions may not be effected, far from exciting murmurs of discontent, ought to be gladly hailed as dispensations of a bountiful Providence, instead of rilling us with a thoughtless and preposterous alarm. But the imperfect recourse against the debtor's estate, although the grand opprobrium of our law, is by no means its only vice; the une- qual distribution, in case of insolvency, is scarcely a less notable defect. Only traders, or those who voluntarily take the benefit of the act, are compelled, when insolvent, to make an impartial division of their pro- perty. All others may easily, and with impunity, pay one creditor twenty shillings in the pound, and the others sixpence, or nothing. So when a man dies insolvent, his representatives may, by acknow- ledging judgments, secure one creditor his full payment at the ex- pense of all the rest. Then, lax and impotent as the law is against property, wide as are its loopholes for fraud and extravagance to escape by, utterly powerless as is its grasp to seize the great bulk of the debtor's possessions, against his useless person it is equally power- ful and unrelenting. The argument used is, that the concealed pro- perty may thus be wrung from him; the principle, however, of the law, and on which all its provisions are built, is, that the seizure of the body works a satisfaction of the claim; and this satisfaction is given alike in all cases alike where there is innocent misfortune, culpable extravagance, and guilty embezzlement. Surely, for all these evils the remedy is easy; it flows at once from the principles I set out with stating under this head. Let the whole of every man's property, real and personal his real, of what kind soever, copyhold, leasehold, freehold; his personal, of whatever nature, debts, money, stock, chat- tels be taken for the payment of all his debts equally, and, in case of insolvency, let all be distributed rateably; let all he possesses be sifted, bolted from him unsparingly, until all his creditors are satisfied by payment or composition; but let his person only be taken when ho conceals his goods, or has merited punishment by extravagance or 600 LAW REFORM. fraud. This line of distinction is already recognised by the practice of the insolvent courts; but the privilege of the rules is inconsistent with every principle, and ought at once to be abrogated as soon as arrest on mesne process is abolished.* viii. The last subject which presents itself to our notice, is the Appeal from judgments recovered. Here, as in every other branch of our jurisprudence, the courts of law and of equity proceed on opposite principles, though dealing with the same matter. In the former, you can only appeal on matter of law appearing upon the face of the re- cord, or added to it by bill of exceptions, and never in any case before final judgment. In the latter, you can appeal from any interlocutory order as well as from the final decree, and upon all matter of fact as well as of law. So it is in the ecclesiastical courts, where a grievance (or complaint upon interlocutory matter) is as much the subject of ap- pellative jurisdiction as the appeal from the final sentence; and the court above sits on all the facts as well as on the law. But the courts of common law are as much at variance with themselves; for it de- pends on the court you sue in, and the process you sue by (bill or original) how many stages of review you have. The principal evil of courts of error, is the stay of execution which they affect, thereby giving the losing party in possession an interest in prosecuting groundless appeals. The bill of the right honourable gentleman,! being a partial measure, while it intended to remedy this evil, has rather increased it; because another more costly mode of ob- taining the same delay being left open, the parties by defending actions in themselves without defence avail themselves of it, to the enormous multiplication of frivolous trials. The true remedy I take to be this. Let the party who obtains a judgment be so far presumed right as to get instant possession or execution, upon giving ample se- curity for restitution should the sentence be reversed. This is the rule in the Cape and other of our colonies; in the Cape, two sureties each in double the amount, are required. It would also be an excellent modification of this principle, to vest in judges the discretion of order- ing the execution to be levied by instalments, upon reasonable secu- rity being given. Hurried seizures, and sales for next to nothing, would thus be avoided; as would the destruction of many valuable concerns, to the ruin of the debtor, and the loss of the creditor also. The reasonable delay thus safely granted would further tend to pre- vent groundless appeals and frivolous defences, for mere dilatory pur- poses. The details of this measure would be easily arranged; I am sure that it well merits inquiry, if I shall obtain a commission.^ I have now followed the proceedings in our courts through their * This arrest, the end of which it is hoped fast approaches, was not generally given by the common law. The capias ad respondendum is given in debt and detinue by the Statute of West, v. 2, (13 Ed. I,) cap. 11; in case only so late as 19 H. 7, c. 9. All this is remedied by the bill. t Sir Robert Peel. \. There has been material improvement since the late rules as to process in exe- cution under the act of 1633. LAW REFORM. 601 whole course; and it will be observed, that I have said little or nothing of Costs an important subject; perhaps, taken in all its bearings, the most important of any; but which has so far been disposed of, in its principal relation, by the discussion of whatever tends to shorten liti- gation. A great, perhaps the greatest, evil of our system, as at pre- sent constituted, is the excess of the costs which a party succeeding is obliged to pay, over and above what he can recover from his an- tagonist. This is so certain -and so considerable, that a man shall in vain expect me to recommend him either to bring forward a rightful claim, or to resist an unjust demand for any such sum as twenty or even thirty pounds at least, upon a calculation of his interest, I should presently declare to him, he had much better say nothing in the one case, and pay the money a second time in the other, even if he had a stamped receipt in his pocket, provided his adversary were a rich and oppressive man, resolved to take all the advantages the law gives him. I have here before me some samples of taxed bills of costs, taken quite at random, and far from being peculiar cases in any one respect. There is one of 428, made out by a very respectable attorney, and from which the Master deducted 202-, of this sum, 147 were taken off; which had been paid for bringing witnesses. In this other, amounting to 217, 76 were taxed off; and in a third of 63, there were nearly 15 disallowed; it was an undefended cause, to recover 50: had the defendant been obstinate and oppressively inclined, he would have made the extra costs a good deal more than the whole debt, although the suit was in the Exchequer, where the taxation is known to be more liberal. We had lately, in the King's Bench, a bill of above 100, to recover 19, and, probably, of that j6lOO not above 60 would be allowed. As things now stand, a part of this master evil is inevitable; for if practitioners were sure of re- ceiving all their bills, they would run up a heavy charge wherever they knew the case to be a clear one. But as the fundamental prin- ciple for which I contend is, to alter no part of the law by itself, or without considering all the other parts, there can be no difficulty, consistently with this doctrine, to enlarge the allowance of costs as soon as other amendments have prevented the abuse of litigation by professional men. Some erroneous rules of taxation may, even in a partial or insu- lated reform, be altered. Whatever is fairly allowed as between attor- ney and client, should be allowed between party and party, except only such needless charges as have been ordered expressly by the client himself. There can surely be no reason for disallowing, as a general rule, all consultations, often absolutely necessary for (he con- duct of a cause, generally more beneficial than much that is allowed; nor can it be right, that so little of the expense of bringing evidence should be given, and that the cost of preparing the case by inquiries', journeys, &c., should be refused altogether. The necessary conse- quence of not suffering an attorney to charge what lie ought to receive for certain things, is that he is driven to do a number of needless things, which he knows are always allowed as a mailer of course, VOL. i. 51 602 LAW REFORM. and the expense is thus increased to the client far beyond the mere gain which the attorney derives from it. I have a great doubt whether benefit would not result from leaving the costs more in the discretion of the court which tries a cause than they now are: in equity, they are always so in the fullest extent; at law, almost all is fixed by statute. Sir, in casting an eye over the wide field which we have been sur- veying, I trust the House will perceive that, although 1 have for the most part arranged my observations under the different stages through which causes are carried in our superior courts, I have yet been ena- bled to discuss the greater and by much the more important parts of our municipal jurisprudence. Indeed, with the exception of commer- cial law, I am not aware of having left any branch untouched that seemed to require amendment. I stated, in the outset, the reason why that formed no immediate part of my plan. A great portion of it is common to all trading countries, the Law-merchant, and is ex- tremely well adapted to its purpose, being of comparatively modern growth, and framed according to the exigencies of commerce. Some other parts, however, are exceedingly defective. It would be difficult to point out greater uncertainty, or more caprice, in any branch of the system, than are to be found in the law of Partnership.* A man can hardly tell whether he is a partner or not: being a partner, the extent of his liability is scarcely less difficult to ascertain; and he will often find it in vain to consult his lawyer on these important matters.! The distribution of estates under the bankrupt law is likewise capa- ble of very great improvement. After all that was lately done in arranging and simplifying this code, it remains full of contradictions, and the source of innumerable frauds arid endless litigation. But into these things I abstain from entering. I must, however, once more press upon the attention of the House, the necessity of taking a gene- ral view of the whole system in whatever inquiries may be instituted. Partial legislation on such a subject is pregnant with mischief. Timid men, but still more blind than they are timid, recommend taking a single branch at a time, and imagine that they are consulting the safety of the mass. It is the very reverse of safe. In the body of the law, all the members are closely connected; you cannot touch one without affecting the rest; and if your eye is confined to the one you deal, with, you cannot tell what others may be injured, and how. Even a manifest imperfection may not be removed without great risk, when it is not in some wholly insulated part; for it oftentimes * Inquiries have lately been carried on by the Law Commissioners as to the Law of Partnership, and an able report drawn up by Mr. B. Ker. J- The execution of judgments on partnership property is a remarkable example. The Sheriff must sell an undivided share, say a moiety of the whole; and the pur- chaser becomes tenant in common with the solvent partner, who may find the East India Company or government his co-tenant, and be still liable to account to the other partner for his share of the profits; because the very effect of the execution which has let in so disagreeable a co-tenant of the stock, will naturally be, to save the necessity of going to prison (the only involuntary act of bankruptcy,) and thus prevent a dissolution of the partnership. LAW REFORM. 603 happens that, by long use, a defect has given rise to some new ar- rangement extending far beyond itself, and not to be disturbed with impunity. The topical reformer, vrho confines his care to one flaw, may thus do as much injury as a surgeon who should set himself about violently reducing a luxation of long standing, where nature had partially remedied the evil by forming a false joint, or should cut away some visceral excrescence in which a new system of circula- tion and other action was going on. Depend upon it, the general re- formation of such a mechanism as our law, is not only the most effec- tual, but the only safe course. This, in truth, alone deserves the name of either a rational or a temperate reform.* Then, what ground can there be for taking alarm at the course I recommend of amendment, and proceeding by careful, but general inquiry? It is, indeed, nothing new, even of late years, in this coun- try. We appointed a commission to investigate the whole adminis- tration of justice in Scotland; and it ended in altering the constitution of the courts, and introducing a new mode of trying causes. Yet Scotland, to say nothing of the treaty of Union, so often set up as a bulwark against all change, might urge some very powerful reasons for upholding her ancient system, which we in England should vainly seek to parallel. She might hold up her statute book in three small pocket volumes, the whole fruit of as many centuries of legislation, while your table bends beneath the laws of a single reign and of your whole jurisprudence, it maybe said, as of the Roman before Justinian, that it would overload many camels. But I do not merely cite, against alarms and scruples, that bold and wise and safe measure of Lord Grenville; older authorities, and in the courts of Westminster, are with me. I will rely on Lord Hale, whose celebrated Treatise Of the. Amendment of the Law (far less studied, I fear, by our juriscon- sults, than that of Fortescue)t well exposes the folly of such fears, with their origin. " By long use and custom (says he), men, espe- cially that are aged, and have been long educated to the profession and practice of the law, contract a kind of superstitious veneration of it beyond what is just and reasonable. They tenaciously and rigorously maintain these very forms and proceedings and practices, which, though possibly at first they were seasonable and useful, yet by the very change of matters they become not only useless and impertinent, but burthensome and inconvenient, and prejudicial to the common justice and the common good of mankind; not considering the forms and prescripts of laws were not introduced for their own sukes, but for the use of public justice; and therefore, when they became insipid, useless, impertinent, and possibly derogatory to the end, they may and must be removed." Such is the language of Sir M. Hale. After Lord Coke and Littleton himself, there is no higher authority in the law than Shepherd, the author of the Tone -hstonc, who, in another of * The labours of the Law Commissions upon Codification have been most mi portant; their reports are of preat value on this subject. j L)o Laudibus Legum Anjjliu:. 604 LAW REFORM. his works, called " England's Balm, or Proposals by way of Grievance and Remedy, &c., towards the Regulation of the Law arid better Admin- istration of Justice," reminds his legal brethren, that " taking away the abuse of the law will establish the use of the law stabilit iisum qui tollit abusum and that rooting up the tares will not destroy the wheat."* If the House require further authorities upon this point, I can refer them to one of the most instructive books published of late years upon this matter, that of Mr. Parkes, a respectable solicitor in Warwickshire, who, in giving a history of the Court of Chancery, has collected most of the authorities upon the subject of legal reform. But our predecessors, members of this House in the 17th century, an age fruitful of great improvements, most of which were retained in more quiet times, undertook the amendment of the law systematically, and with a spirit and a wisdom every way worthy of so great a work. In 1654, a Commission was formed partly of the House, partly of learned strangers. At the head of the former, I find my honourable friend the Solicitor General's less learned and more martial predeces- sor, called in the Journals "Lord General Cromwell. "t But in front of the latter stands "Mr. Mathew Hale," afterwards the great Chief Justice, whose name is ever cited amongst the most venerable sup- porters of our civil and our religious establishment. With them were joined all the great jurisconsults and statesmen of that illustrious age. They sat for five years, and proposed a number of the most important and general reforms. I will read the titles of a few Acts, the draughts of which the Commissioners prepared. 1. For taking away fines upon bills, declarations, and original writs. 2. For taking away common recoveries, and the unnecessary charges of fines, and to pass and charge lands entailed as lands in fee-simple. 3. For ascertaining of arbitrary fines upon descent and alienation of copyholds of inheritance. 4. For the more speedy recovery of Rents 5. For the better regulating of Pleaders and their Fees. 6. For the more speedy and easy recovery of Debts and Damages not exceeding the sum of Four Pounds. 7. For the further declaration and prevention of Fraudulent Con- tracts and Conveyances. 8. Against the Sale of Offices. 9. For the recovery of Debts owing by Corporations. 10. To make Debts assignable. 11. To prevent solicitation of Judges, Bribery, Extortion, Charge of Motions, and for restriction of Pleaders. 12. An Act for all County Registers, Will, and Administrators; and * There is certainly a notion of Mr. Justice Doddridge being the author of this excellent book, or at least standing in the same relation to it that C. B. Gilbert does to Bacon's Ab.; for the dates of some works cited in it make it impossible he should have written it all. | O. Cromwell was member for Cambridge town; Mr. Tindal for the university. LAW REFORM. 605 for preventing Inconvenience, Delay, Charge, and Irregularity, in Chancery and Common Law, (as well in common pleas as criminal causes.) 13. Acts for settling County Judicatures, Guardians of Orphans, Courts of Appeal, County Treasurers, and Workhouses, with Tables of Fees and Short Forms of Declaration. 14. An Act to allow Witnesses to be Sworn for Prisoners. The House is aware that, till much later in our history, by the great wisdom, justice, and humanity of our ancestors, it was provided that the witnesses for a defendant should not deliver their testimony upon oath; until the time of Queen Anne, the prosecutor only was allowed to prove his case by sworn evidence; and the communication of the same right to the defendant, may be looked upon by some as a rude invasion of the ancient system, and a cruel departure from the perfections of the olden time. This is not the only measure prepared by that celebrated Commis- sion which has since been adopted, as the House will see by the enumeration I have given.* But steps were taken immediately after the restoration, for prosecuting its plans more systematically. A committee was appointed by this House to examine the state of the law and its practice; Sergeant Maynard arid other eminent law- yers were members of it. From their numbers, fifty-one, I presume they subdivided themselves for the convenience of inquiring sepa- rately into different branches of the subject. Upon their reports several bills were brought in for the general reform of the law; but in tracing their progress through the House, the prorogation appears to have come before any of them was passed. After a long interval of various fortune, and filled with vast events, but marked from age to age by a steady course of improvement, we are again called to the grand labour of surveying and amending our laws. For this task it well becomes us to begird ourselves, as the honest representatives of the people. Dispatch and vigour are imperiously demanded; but that deliberation, too, must not be lost sight of which so mighty an enterprise requires. When we shall have doe the work, we may fairly challenge the utmost approval of our co-nstituents, for in none other have they so deep a stake. In pursuing the course which I now invite you to enter upon, I avow that I look for the co-operation of the King's government; and on what are my hopes founded? Men gather not grapes from thorns, nor figs from thistles. Hut that the vine should no longer yield its wonted fruit that the fig-tree should refuse its natural increase required a miracle to strike it with barn:nness. There are those in the present ministry, whose known liberal opinions have lately boon proclaimed anew to the world, and pledges have been avouched for * Sir S. Kornilly's valuable MSS., as has been already stated, contain tlio exposition and discussion of many reforms in the law, written forty or fifty years ago. More than one-half of the measures there propounded, have, of late years, and most of them since his lamented decease, been adopted by the legislature; a strong presumption in favour of his plans generally. 51* 606 LAW REFORM. their influence upon the policy of the state. With them, others may not, upon all subjects, agree; upon this, I would fain hope there will be found little difference. But, be that as it may, whether I have the support of the ministers or no to the House I look with con- fident expectation, that it will control them, and assist me; if I go too far, checking my progress, if too fast abating my speed; but heartily and honestly helping me in the best and greatest work which the hands of the lawgiver can undertake. The course is clear before us; the race is glorious to run. You have the power of sending your name down through all times, illustrated by deeds of higher fame, and more useful import, than ever were done within these walls. You saw the greatest warrior of the age conqueror of Italy hum- bler of Germany terror of the North saw him account all his matchless victories poor, compared with the triumph you are now in a condition to win saw him contemn the fickleness of fortune, while, in despite of her, he could pronounce his memorable boast, " I shall go down to posterity with the Code in my hand!" You have vanquished him in the field; strive now to rival him in the sacred arts of peace! Outstrip him as a lawgiver, whom in arms you overcame! The lustre of the Regency will be eclipsed by the more solid and enduring splen- dour of the Reign. The praise which false courtiers feigned for our Edwards and Harrys, the Justinians of their day, will be the just tribute of the wise and the good to that monarch under whose sway so mighty an undertaking shall be accomplished. Of a truth, the holders of sceptres are most chiefly to be envied for that they bestow the power of thus conquering, and ruling thus. It was the boast of Augustus it formed part of the glare in which the perfidies of his earlier years were lost that he found Rome of brick, and left it of marble; a praise not unworthy a great prince, and to which the pre- sent reign also has its claims. But how much nobler will be the sove- reign's boast, when he shall have it to say, that he found law dear, and left it cheap; found it a sealed book left it a living letter; found it the patrimony of the rich left it the inheritance of the poor; found it the two-edged sword of craft and oppression left it the staff of honesty and the shield of innocence! To me, much reflecting on these things, it has always seemed a worthier honour to be the in- strument of making you bestir yourselves in this high matter, than to enjoy all that office can bestow office, of which the patronage would be an irksome incumbrance, the emoluments superfluous to one content with the rest of his industrious fellow-citizens, that his own hands minister to his wants: And as for the power supposed to follow it I have lived near half a century, and I have learned that power and place may be severed. But one power I do prize; that of being the advocate of my countrymen here, and their fellow- labourer elsewhere, in those things which concern the best interests of mankind. That power, I know full well, no government can give no change take away! I move you, sir, -'That an humble Address be presented to his Majesty, praying that he will be graciously pleased to issue a Com- LAW REFORM. 607 mission for inquiring into the defects, occasioned by time and other- wise, in the Laws of this realm, and in the measures necessary for removing the same." [Upon the adjourned debate on Mr. Brougham's motion, on Fri- day, February 29, the following resolution, substituted by him with, the assent of the government, was unanimously carried: "That an humble Address be presented to his Majesty, respectfully requesting that his Majesty may be pleased to take such measures as may seem most expedient for the purpose of causing due inquiry to be made into the origin, progress, and termination of actions in the Superior Courts of Common La win this country, and matters connected therewith; and into the state of the Law regarding the Transfer of Real Property."] SPEECH LOCAL COURTS. DELIVERED IN THE HOUSE OF COMMONS, APRIL 29, 1830. I RISE, sir, to call the attention of the House to a subject which I had the honour, some two years and a half ago, to bring under its consideration; and, in the first place, I will state the reason which has prevented me from again bringing it forward at an earlier period. The motion which I formerly made led to the appointment of two commissions, and both of them have reported on the subject matters submitted to them for inquiry. One report has been made on the Law of Real Property; and I am in great hopes that a second report will soon be made. The other commission has drawn up two reports, with respect to proceedings at common law. Now if I had renewed the subject after the first report had been made, I must have intro- duced it at a very great disadvantage, because the commissioners had disclosed their intention to follow up that report, with suggestions upon many of those questions to which I had turned my attention. I have, therefore, waited till the second report was before the House, that I might perfectly know what the commissioners propose. Let it not, sir, for one moment be supposed, that in again calling the at- tention of the House to this most important subject, I have any ground of complaint as to the manner in which the commissioners have con- ducted these inquiries; for, in every part of them, those learned persons seem to me to have proceeded with great zeal as well as discretion. Tne commissioners appear to have proceeded with the greatest possible caution, with the utmost degree of deliberation. That evils exist in the system of our administration of the law is not attributable to them; and, although much remains to be performed, the portion of the subject which they have investigated is, unquestionably, of paramount importance. They have acted faithfully and merito- riously; and I do not complain of their powers either as being too LOCAL COURTS. 609 limited or inadequately exercised. Their inquiries have been con- ducted in a proper spirit; they have held tht;ir course in a becoming and exact mean, between inconsiderate rashness and undue subser- viency, keeping a middle line, and neither setting at naught the long pondered decisions of authority, nor evincing that over-strained respect for existing institutions which too often degenerates into a veneration of existing abuses. The great learning and experience of the commissioners, and the knowledge which, as practical men well acquainted with the law, they have brought to the consideration of the subject, are of the utmost importance, and every body admits the ability with which they have applied their resources to the subject matter of their investigations. The vast body of evidence of other practical men which they hare collected, their own suggestions and recommendations, which, more especially in the second report, contain matter worthy of the greatest attention, a report that is full of pro- found thought, and, if I may be allowed so to speak, of most ingenious invention on the science and the practice of the law all these merits entitled the commissioners to receive, and no doubt they have re- ceived, the unqualified approbation, not only of professional men, but of all persons interested in, and who are capable of understanding, the subject. I will venture to say, that within the last century and a half there has not been produced in this country anything like the quantity of important matter which the commissioners, partly in the fruit of their own suggestions, and partly in the evidence and facts adduced by others, have laid before the House on this subject. Having said thus much, it cannot be supposed that I have brought forward the subject which I am about to open in a spirit of hostility or censure towards the commissioners, with whom, on the contrary, I am prepared to go hand in hand to further the Reform of the Law: my object being simply to take up a part of the question which they have left untouched. If I saw any prospect of the commissioners directing their labours to this part of the subject within any reason- able time, I should be disposed to leave it entirely untouched; or if I thought the matter intimately and inseparably connected with the residue of the subject the matter of their present and unfinished in- quiries I should then think, that for the general convenience, and in order to avoid the necessity of a double discussion, it would be better to postpone my motion. But I find, after the best consideration, that neither is there a prospect, within a reasonable time, of the com- missioners being able to turn their attention to that part of the question which I have in view, nor is it so mixed up with what is already before them, that I ought to decline directing the attention of the House to the subject. If, sir, it were asserted by some traveller, that he had visited a country in which a man, to recover a debt of jCG or 7, must begin by expending JLGQ or .70, where, at the outset, to use a common expression, he had to run the risk of throwing so much good money after bad, and to p:iy almost as much even if he succeeded. it would at once be said, that whatever other advantages that country enjoyed, 610 LAW REFORM. at least it was not fortunate in its system of law. But if it were further related, that in addition to spending 60 or 70, a man must endure great difficulties, anxiety, and vexation, infinite bandying to and fro, and moving about from province to province, and from court to court, before he could obtain judgment, then our envy of the country where such administration of the law and legal institutions existed, would be still further diminished. If to this information, it were added, that in the same country, after having spent 60 or 70, the adversary of the creditor had the power of keeping all his property out of his way, so that after all the suitor's expense, all his delay, and all his anxiety, it must still be doubtful whether he could obtain a single farthing of his debt; if, furthermore, it were stated, that in the same country, although the debtor were solvent and willing to pay what the law required at his hands, the creditor would receive, it is true, his original claim of 6 or 1, but not the whole 60 or 70 which he had expended in costs to recover it, by about 20, so that on the balance he would be some 13 or 14 out of pocket by suc- cess, over and above the amount of the debt which he recovered, after being exposed to a variety of needless plagues, beside the unavoid- able annoyance of these proceedings; if we were told of such a case, would not the natural inquiry be, " Whether it was possible that such a country existed?" Sir, the individual to whom this strange infor- mation was given, if he supposed it possible that such a country ex- isted, would at least pronounce it to be one of the most barbarous and unenlightened in the world. That it must be a poor country, he would think quite obvious and equally obvious that it must be of no commercial power of no extent of capital of no density of pop- ulation, because those circumstances most necessarily produce from hour to hour transactions involving important and valuable interests. Nevertheless, I need not remind the House, for every man who hears me must be aware (many are aware to their cost) of the fact that such a country, so unfortunately circumstanced is no other than that in which I now speak England. Then arises the question, how is this admitted evil to be remedied? and in order to know how the remedy may be applied, the first point is to ascertain whence proceeds the evil? To give examples of the evil, and its origin, may be the best mode of proceeding. I am thus entering at once into the middle of my subject, and I am persuaded that such is the most convenient and expedient course, because it enables me at once to see and grapple with the real diffi- culties of the inquiry, to which, far be it from me for one moment to shut my eyes. That part of the mischief which can be got rid of, I call upon you to remove. I formerly took the opportunity of stating a kind of experiment I made at one of the Lancaster assizes, when my honourable and learned friend,* was present. I requested the prothonotary to furnish me with a list of all the verdicts recorded: they were fifty in number, during that assize, and the average amount * Sir James Scarlett. LOCAL COURTS. 611 of those verdicts I found to be for sums under fourteen pounds thir- teen pounds odd shillings each. I do not mean to represent that there were not three or four actions in which the damages were nominal; some of them actions of ejectment, and other suits to decide rights; hut the bulk of the verdicts were on actions of debt, or in the nature of debt, and the average was less than the sum for which, by law, a creditor may hold his debtor to bail. I am far from saying that such is the general result of actions, either at the assizes or in London; but still it is not much out of the general course. Taking the average of the five years ending in 1827, the number of actions brought in all the courts of Westminster was something under 80,000. I believe that the precise amount was 79,000. The number of these actions that were brought to trial amounted to little more than 7000, being one case brought to trial only out of eleven actions commenced. No doubt many of those actions were not proceeded with, on account of the heavy costs, delay, and vexation that must be incurred in doing so. But, passing by that topic for the present, (having stated the fact with a different view,) if we would form some estimate of the kind of sums for the recovery of which the generality of actions are brought, we are enabled by some documents that have been laid upon the table, to approximate to a conclusion on the subject. This I shall endea- vour to do without going too minutely into details. In 1827 there was a return of the number of affidavits of debt in the King's Bench and Common Pleas for two years and a-half. During that period the number of affidavits for sums above 10 was 93,000 odd hundreds, but in round numbers we will call it 93,000. Of them, of course, a great number were the foundations of the 79,000 actions before spoken of; for an affidavit of debt, as every body knows, is the earliest proceeding in the commencement of an action. Let us see, then, in what proportion the affidavits were for small sums, moderate sums, and large sums: 29,800 were for sums be- tween 10 and 20, and no more; 34,200 were for sums between 20 and 50, making together 64,000 out of 93,000 for sums not exceeding 50. For sums not exceeding 100, and of course in- cluding the 64,000, the number of actions was no less than 78,000 odd hundreds. Thus the House will observe, that of the whole number of 93,000 affidavits, there were no less than one-third for sums not exceeding 20; no less than two-thirds for sums not exceeding 50; and again, that there were no less than five-sixths for sums not ex- ceeding 100. The House will pardon me for not going more into details what I have stated is the result of recollection, but I think I may pledge myself for its accuracy, and it will be perceived at once that it leads to a most important practical conclusion that the vast bulk of the litigation of the country resolves itself, as far as actions of debt and in the nature of debt go, into actions where the sum in dis- pute is not more than 100. I now beg to draw the notice of the House with greater particularity to the costs of these proceedings, and what a creditor is exposed to who undertakes to prosecute an action. 1 have hitherto dealt only 612 LAW REFORM. in general descriptions of his expenses and sufferings. In their first report, towards the close of their appendix, the commissioners have inserted some valuable table of costs, and to three or four of them, applicable to actions in the Court of King's Bench, I beg leave to re- quest especial attention. First, I should state, that these are real bills of costs; and next, that they are reduced to the very lowest scale, the words of the commissioners being, " they are framed on the lowest possible scale of expenditure." One of these bills is in an action that was tried in London by parties residing in the county of Lancaster. The particulars of the bill itself show, that not only was it framed on the lowest possible scale, but also that neither the length of the pro- ceedings, nor any other incident, had tended to increase the expense. There was nothing out of the ordinary course; in fact, the circum- stances were the most favourable that could exist, under the present system, for cheap arid expeditious justice. The costs, up to the ver- dict, amounted to 86, and, including some further proceedings (it being a special case) necessary to be had before the verdict could be rendered available, the expense was 110. Out of that is to be de- ducted for delay, only 10 odd shillings. There was the delay of a term in taking the argument in the second stage of the proceeding, and the delay of one sittings in bringing the cause to trial. On these ac- counts, from the sum of 86 costs, there is to be deducted .6. and 10 from the entire amount of 110. I will suppose the fact to be, however, that there was no delay in the administration of the law, that all the recommendations of the commissioners for preventing it had been carried into effect that we had derived all the good from them which might be anticipated; I will assume that, under the new system of law, the expected saving of time and expense has been brought about; and what is the consequence as respects this case? Why, that we shall have to deduct 6 from the expense of the first stage, and 4 from the expense of the second, leaving SO as the ex- pense of the verdict, and 100 as the indispensable costs of the entire case. I admit that a considerable portion of the expense here was owing to the attendance of witnesses. I do not merely mean to say I admit, but I assert and maintain this; it is one of the principal grounds of the proposition which I intend to submit to the House. It is true, this cause was brought from the county of Lancaster to London to be tried; but if tried in Lancaster, there would have been the very same expense, according to all ordinary calculation of chances. The wit- nesses in this case were, an architect, master carpenter, and labourers; and, in taxing costs, two guineas a-day are allowed for an architect, or surgeon, physician, or any person of skill and science. Fifteen shillings a-day are allowed for a master carpenter, and five shillings a-day for a labourer; to which are to be added an allowance for mileage, and the maintenance of the witnesses on the road, which, I perceive, is at the rate of eight pence per mile. Then, as to delay, let me remark, that the delay in trying a cause at the assizes is often much greater than in trying a cause in London; and there can be no man- ner of doubt that this very circumstance was one of the causes ope- LOCAL COURTS. 613 rating upon the plaintiff in inducing him to prefer London to the country, in this case. Either he got the cause tried early in London, or by making the case a special jury case, he had to keep his attor- ney and witnesses only one day, or at most, two days in town; while, at York or Lancaster, they might be detained for four, five, six ay, and I have known it to fall out, for ten, twelve, or fourteen days, be- fore the trial was brought on. Attorneys are allowed iwo guineas a- day, if they have only one cause at the assizes, and one guii;ja a-day for each case, if they have several: and a plaintiff is not answerable, if it should happen that his attorney has only one cause; all his wit- nesses are to be paid, not only going and returning, but while they are in the assize town, at least at the rate already mentioned; aud as long as the present system continues, I look upon this as essential to and inseparable from it it may be as necessary a part of the expendi- ture as the retaining of counsel or the employment of an attorney; indeed, 1 am not sure if it be not even more necessary. Now, how much must be added to this, on account of the difference between the costs incurred and the costs taxed? This is to say, after obtaining the costs recovered from an adversary as the consequence of the verdict, how much is a plaintiff out of pocket? It may be remembered that I formerly produced to the House four bills of costs, all from the offices of most respectable attorneys; in one of 400, about 200 (or half) was deducted on taxation; so that the client who had obtained judgment was 200 out of pocket, unless the debt which lie recovered was greater than that sum. Another was a bill from which one-third had been taxed off: 70 was deducted out of 210. In a third case, which was the lowest of the whole, because it was an undefended cause, 15 out of 00, or one-fourth, was taxed off. The successful suitor received 15 less than he had expended. This was a 50 cause; and if the plaintiff's adversary had had a long purse, and a litigious temper, he could, if he chose, have put his creditor to an expense of 80 before the latter got a verdict, or to 100 costs before final judgment. In point of fact, I might take it higher: the plaintiff might have had to pay 120 before he obtained a verdict, and 150 before judgment. He would be allowed out of this 150 only 100: 50 being struck off for extra costs; of course he would also be allowed his debt of 50, making precisely the amount expended 150; and so the man is a gainer in money of not one farthing (saying nothing about his debt), and has been exposed to all the delay, harassing vexation, embarrassment, and anxiety, of a year and a half or two years' legal proceedings, together with the risk of losing his suit, and having to pay 100 instead of receiving any- thing. I say, sir, in addition to that, he would have been exposoj to all the vexation of delay, and to the distress of uncertainty; and if he be a man who, for the first lime, has brought an action into a court oi justice, it is most likely to be his last experiment of the kind. I am here taking an instance most favourable to the other side <>!' the ques- tion, and it is needless to say that it is anything rather than an ave.rago case; in general, those who succeed have to pay more than they re- VOL. i. 52 614 LAW REFORM. ceive, and are often considerably out of pocket. What is the practical result? Simply this that any man acquainted with the proceedings of courts of justice, and exercising a sound discretion upon the mere pecuniary question, would never think of suing for a debt of less than 20 or 30. I should rather say, hardly for a sum under 40 or 50. Upon the same principle, a man would hardly think of resisting an unjust claim for such an amount, even if he had a receipt on a stamp in his pocket. He would pay the demand rather than enter a court of justice, and endure the annoyance and expense of a trial, with a certainty of being out of pocket if he gained the cause, and a chance of being still more out of pocket if he failed. I had very lately occasion to speak with an attorney of extensive practice, residing only twenty-two miles from an assize town, upon this point, and he said, that if he himself were a party in a cause, he should never think of going into court there for a less sum than .40 or 50. This was the solicitor's private opinion about the matter; but whether he recommended a similar course to his clients, I do not undertake to say. To be sure a man would, in many cases, be justi- fied in bringing actions for small sums, or resisting flagrant and extor- tionate demands, on other grounds than those of mere pecuniary interest; but with reference to his pecuniary interest alone, and if he merely consulted that, there would be every inducement not to sue. I am well aware that it is not only always easier to point out defects than to apply remedies; but also, that he who propounds a cure for mischief of the widest extent, the most intolerable, and recognised as such by the unanimous admission of all persons of all ranks, who have observed others suffering from its effects, or experienced it themselves, somewhat exposes himself, and gives an opponent a decided advan- tage; he is always more or less in the predicament of an inventor; he always seems to be a person who sets his wits above other men, and affects to be wiser than those who have gone before him; and I there- fore unfeignedly avow, that I feel much distrust of myself, in bringing forward that which appears to me a remedy. In doing so, it is neces- sary to examine into the causes of the evil. Here I may say, I am perfectly sensible that something will be done when the recommenda- tions of the commissioners are carried into effect; I know, and I rejoice to know, that some of the great evils will be removed, as the result of their inquiries; but 1 am equally certain that still much will remain to be done, and I trust the kind of remedy I propose will be one which, while it carries further the design of the commissioners themselves, will be found most accurately and nicely to chime in and harmonize with, instead of being repugnant to, their principles. I have stated the principal causes of the evils we all see and suffer; and I shall by-and-by proceed to the remedy. The great evil arises out of the distance to which parties are necessarily dragged, in order to obtain a decision upon their rights. For many, many ages it has been the system of English jurisprudence, that justice should originate and be to a great extent administered in the centre of the kingdom, or what is politically, though not geographically, its centre. The me- LOCAL COURTS. 615 tropolis has been made as it were the great mart of justice, from whence all processes issue, and to which all processes are returned. It has been fixed, that all litigants should more or less resort to Lon- don, to derive from it the remedies which they seek at the hands of the law. This is not of itself the cause of the expense of legal pro- ceedings, because the mere difference between sending to London from Lancashire or Yorkshire for a writ, and sending for it to Lan- caster or York, is not alone worth being considered. But out of that arises another part of the system to which this observation does not apply. The judges come from the metropolis, as well as the writs and legal processes which give rise to their jurisdiction, and the country litigant must wait till the judge visits his county, which is once in each half year. You must wait, but that is not all. In order to have your cause tried, you must go perhaps to the remote corner of the county to the assize town; there you must consult your law advi- sers; thither you must send your agent and witnesses; they must be kept there perhaps during the whole assizes; and it is often a race be- tween the respective agents as to who shall enter his cause latest, in order that he may have the longest bill. Respectable \vitnesses must be paid for loss of time and skill witnesses of inferior condition must be better paid, and at a higher rate than their time is worth; common day-labourers receiving 5s. a-day. Then there is the expense of en- tertaining the witnesses, and in this respect there is frequently a good deal of competition between the agents of opposite parties, it being pretty well understood, that the party who pays witnesses shabbily is sure to pay for it, in the course of the assizes, by the conduct of some of them. All this is essential to, and inseparable from, the scheme of requiring parties to go twice a-year to the assize town, and there have the causes tried. Then comes another stage of the proceeding equally attended with heavy costs; if any point be reserved on an appeal made from the decision, it must be discussed in London, and to London the agents must be sent with great delay, and a great and unnecessary expense. What is the obvious remedy? To that I shall come pre- sently; but, in doing so, as I have before stated, I wish to steer clear, as far as possible, of the difficulties and objections to which the pre- scribing of remedies is liable. In the propositions of the law commissioners some slight remedies may be found for the evil of which I complain. For instance, the proposed alterations in the mode of issuing processes will effect a diminution of expense: they will save a few shillings out of the jCSO. Another, which tended *to lessen the arrears of the court, would, of course, save time, and thus curtail the expense arising from delay; it would cut off jCIO from the larger, and 6 from the smaller bill. Upon these follow many olhcr excellent propositions for the despatch of business, for effecting improvements in the administration of justice, for removing uncertainty, and for the regulation of costs. I alludo. in particular, to that proposition which regards the proof of written docu- ments. There is not, however, a single document in the case to which I have alluded; and this proposition, therefore, docs not bear 616 LAW REFORM. upon my argument; so that, if it should prove in practice as success- ful as I unfeignedly hope and believe it will, still it would not cut off one farthing from the expense which I pointed out as being so great an evil. In like manner, the form and substance of pleadings will be materially improved by the propositions of the commissioners. This part of the report contains some of the happiest thoughts, some of the most ingenious, and, allow me to call them also, some of the most profound suggestions for the improvement and advancement of the science of pleading, which are well worthy the attention of every man, and of every lawyer, as well as of those whose skill and learning are chiefly employed upon subjects connected with that science. These propositions, however, important and valuable as they are, do not tend to remedy the abuse of which I complain, and which arises, first, from the distance of the places at which causes are tried; and next, from the fact of their being heard at London in the last resort. I trust the House will pardon me if I remind them that they have now seen how the principal mischief and the chief cause of complaint relates to actions under a certain amount. I have shown that it relates to actions which are confined to a moderate amount. If, how- ever, the amount were large instead of small, that would be no reason why the complaint should not cease. The abuse would still call for remedy; but the crying evil of which I am now speaking attaches to actions for from 20 to 100. Now I would fain call the attention of the House to the old scheme of administering justice, which for- merly prevailed in this country, with respect to such actions, and which was evidently intended to avoid expensive litigation. Let me not be misunderstood. I am too fully sensible of the great and mani- fest advantages which result from that arrangement which makes the capital the seat of justice, to attempt to alter it, even if I supposed I could succeed in the attempt. With this explanation, let me observe that, long antecedent to our jurisprudence assuming its present form, there existed a more convenient and less expensive mode of trial, in the county courts. The origin of these courts is lost in remote an- tiquity, and learned men have differed with respect to the constitution and jurisdiction of them; but all agree upon one point namely, that in the time of the Saxons they were the great tribunals of the country, and that they possessed a most extensive jurisdiction. My opinion I know that in holding it I differ from many learned men my very humble opinion is, that the county court possessed originally a crimi- nal as well as a civil jurisdiction. Be that, however, as it may, it is certain that, in the Saxon times, the county court had jurisdiction in mutters as well ecclesiastical as civil. We find a law in the time of Edgar or Canute Let the bishop and the earl meet the county, the one to state the law of God, and the other the law of the land; or, as the phrase is, the one to teach the people the law of God, the other the law of the land. This practice continued down to the time of the Conquest; but soon after that event, the ecclesiastical part of the jurisdiction of the county court was separated from the civil. Before that, however, the prin- LOCAL COURTS. 617 ciple of the law was, that a man should, in the first instance, seek jus- tice at home; and that he should not seek it from the king, until his attempts to obtain it from the sheriff in the county court had failed. Sir Harry Spelman, commenting upon this law, observes, that the reason of it was, that the suitors should not be obliged to go far off to obtain justice. In the sixth year after the Conquest, the sixth of Wil- liam I., there was a celebrated cause tried in the county of Kent, in which the archbishop, three bishops, and the earl presided; Lanfranc was the archbishop, and one of the parties in the suit was Odo, half- brother to the King. This meeting of the county lasted somewhat longer than some recent meetings in the same place, for it lasted three days, and the court decided upon the claim to manors of very consi- derable value, which decision was afterwards confirmed in Parlia- ment. In process of time the sheriff's court appears to have fallen into disrepute, and, perhaps, an institution well adapted to a simple state of society, was not found to answer the purposes of a more im- proved state. As early as the sixth year of Edward I., it was pro- vided by the statute of Gloucester, that the county court should have exclusive jurisdiction in pleas of debt and damages under the value of 40,9. That statute only provided that the jurisdiction of these courts should be exclusive in such pleas; it did not confine their juris- diction to such pleas. Probably, however, in the course of a century after, 40-?. became the maximum. Certainly this happened not long afterwards. Such, then, was, at that period, the constitution of the county courts in England: and now, I would fain, with the permission of the house, call their attention to the constitution of the county courts of the sister kingdom Scotland; for when we are trying to apply a remedy, it is right, before we adopt any change, to see if, among many remedies, there is one which has been adopted elsewhere; and if so, to inquire how it has been found to work there. I need not remind, perhaps, any one, but certainly I need remind no lawyer that, however widely the general jurisprudence and practice of the two countries may at this moment differ, the early laws of the two were very much alike; so alike, indeed, that while in England it is contended that the book called Regiam Majestatem was copied from Glanvil's book on the laws of this country so, on the other hand, it has been asserted in Scotland, that the Regiam Majestatem was the original of Glanvil's work. This dispute proves at least the remark- able similarity which subsisted between the early laws of the two countries. The same similarity existed also in the administration of justice; and, while no one can doubt that many most valuable im- provements have been effected in this country, of which the benefits liave not been shared by Scotland, still, with all my prejudices in favour of the English system, I cannot help regretting that Scotland has retained some parts of the ancient system which was originally common to both, but which have boon laid aside in England. In both countries the constitution of the county court was originally the same; in both the jurisdiction was unlimited. 52* 618 LAW REFORM. The original county court was that at which the bishop and earl or alderman, with the viscount or sheriff, presided. In Scotland, the Sheriff's Court took cognizance of the four pleas of the crown, with the permission of the justiciary, and, in all civil suits, the county court was of unlimited jurisdiction. The appointment to the office of sheriff soon took a different turn; originally elective, it was made an appoint- ment for years, and afterwards for life; it then came in Scotland to be conferred in fee. This led to what is called, in Scotland, "heritable jurisdiction," the earl became hereditary, and the viscount or sheriff a privileged individual, well known to the laws of that country. It was not very long ago that, at the abolition of these heritable juris- dictions, the county court was put upon its present advantageous foot- ing. The number of forfeitures in the rebellions of 1715 and 1745 vested many of those jurisdictions in the crown. There are none of the hereditary jurisdictions riot open to serious objection, except per- haps the hereditary jurisdiction vested in the peers of this realm of Eng- land, to which no objections of that nature apply. In the year 1746, an act was passed abolishing all the hereditary jurisdictions, giving compensation to some of the parties, and vesting all the shrievalties in the crown; and the first step taken thereupon was to appoint sheriffs depute for life in all the counties. The persons appointed to that office are, for the most part, gentlemen of some professional stand- ing at the bar, and the courts over which they preside take cognizance of all matters, to which a very extensive civil jurisdiction can be applied. Those officers are paid a moderate, reasonable salary, and their appointment is attended with the best effects to the administra- tion of justice in Scotland. I should be happy to witness a still farther improvement; I should be glad to see a sheriff depute residing within his county, holding his court himself, and not leaving it to be held by his substitute; and I think the system, in its main principle, and thus improved, could be introduced into this country with the highest ad- vantage. Those courts are found to have worked well in Scotland, and to afford cheap and convenient justice. The Sheriff's Court there is competent to entertain nearly all ordinary causes of actions all actions of debt to any amount actions of damages, for defamation, assault, false imprisonment, malicious prosecution, criminal conversa- tion, trespass, trover, seduction, and almost all actions of tort. Now, let us look to the working of this system upon an average of three years the years 1821, 1822, and 1823 there were 22,000 some odd hundred causes tried in the Sheriffs' Courts in Scotland, in each year, for the amount of 5 and upwards this was of course exclusive of such matters as were tried before justices of the peace. Take the proportion between England and Scotland, assuming that the law were the same here, and we might say that we should have six times as many in England that is to say 130,000. That amounts to many more than the number of actions brought in England to a vast many more than the number tried for I have shown that not more than 7000, out of the 80,000 commenced, have been brought to trial. Of these 22,000 in Scotland, somewhere about 12,000 were disposed of LOCAL COURTS. 619 in the absence of the defendant, being what \ve should call in Eng- land undefended causes; and somewhere about 10,000 were disposed ofinforo cnnlentioso. From the decision of these courts there is an appeal to the Court of Session; but the number of appeals is small. It is one in 117 of the actions brought: one in 53 of the actions brought to trial. The house will see, then, how much satisfaction this system has given in Scotland; and from that I think I may draw the conclu- sion, not a fanciful one, that the only cases in which the decisions of the county courts are not allowed to be final, are actions of import- ance actions in which difficult questions of law are raised, or actions in which there is involved sufficient interest to tempt the unsuccessful party to appeal. Taking the number of cases, and the value of property involved in them, brought in the county court of Lanark, which includes Glasgow, it will be found that 500,000 worth of property is adjudicated upon yearly by that court. Taking the same proportion for England, and multiplying it by six, we shall have an amount of 3,000,000 sterling, which would be disposed of yearly, if the same system prevailed here. And now, have we not, let us ask, something to learn from this statement? May we not put to ourselves the question, " Can we not amend our own system?" I do not say, do this because it has been tried and found to answer in Scotland; I do not ask you to import the law of Scotland into England. No; I ask you only to revert to your own ancient laws to those laws which were established in England before they became the laws of Scotland. If the Scotch continue those laws and find them, to answer, all that I wish to argue from this fact is, not that for this reason the English should re-adopt them, but only that it might be advisable to consider whether to a mischief, which it is admitted does exist, this remedy is not the best we could apply. And here, if the House will permit me, I should wish to state what is the expense of proceedings in the county courts of Scotland. I have examined this matter, and found that, where the sum in ques- tion amounts to 12, and where there is no litigation whore, as we should say, the cause was undefended the expense is 10s.; where the sum amounts to 25, the expense is 15*.; where the sum amounts to 50, the expense is 15.9.; and where the sum is as high as 100, the expense is not more than 20*. This is in cases in which there is no litigation, and where decrees are pronounced in the absence of the defendant. Where the cause is defended and the matter litigated, if the sum in dispute amounts to 12, the expense is 5, and the party who is successful, is only 5*. out of pocket. If the sum in dispute amounts lo 25 or 50, the expense is greater; but still the successful party is only lO.s. out of pocket; and where the sum amounts to .Lioo, the costs would amount only to 13, and on taxation they would not be reduced below 12. Now, I cannot help envying Scotland this cheap justice; tor cheap I must call it, when a man can recover 100 for an outlay of J-13 instead of 1G(), which would be the cost of proceedings in England; 620 LAW REFORM. when, moreover, tliis man would pocket the whole of the 100 ex- cept 20s., instead of throwing away one half of the 100, as a man must here, even though he should obtain a verdict and a judgment in his favour. With all my partiality, and with all rny prejudices in favour of the English system, I cannot help envying Scotland this part of her law. Is it, then, possible so to extend the jurisdiction, so to amend the constitution of the county courts of England, as to make them capable of bestowing the same advantages? Is not this a ques- tion worthy of our most serious consideration? I feel that I am talcing up too much time of the House, and yet the importance of the subject leads me still further into detail. It is the greatest possible error to imagine that inferior suitors ought to have inferior judges; that when questions are to be decided respecting persons of superior rank, wealth, and intelligence, men of superior intellect and station should be provided for that purpose; that when a matter of 100 or upwards is to be decided, a high and distinguished judge should be employed for the purpose; but that in a matter only involving two, three, five, or six pounds, any one will do for a judge, a sheriff, or a sheriff's assessor, or whatever name he may bear that any one will answer to preside in a court for the decision of such petty concerns, whether he be a man qualified or unqualified, a man of sense or a man of no sense; for the poor man, it seems to be the opinion, that it does not signify what sort of judicature he has to decide his causes. To my mind no notions appear to be more crude than these. Forty shillings may be of more importance to the poor man than the sum for which the great man litigates; the poor man contests not only for the sake of the sum at issue, but that he may not be subject to wrong and oppression; and he feels that oppression the more grievous and intolerable, seeing that it is an evil reserved for the class to which he himself belongs. It is not always for the sum disputed that lie goes to law; he proceeds in resistance of wrong and oppression, and he sues as readily for 2*. as for 40s. In this frame of mind, then, he goes away from court as much dissatisfied as the wealthier suitor who has lost 1000; and, give me leave to say, he has a right to be dis- satisfied, and his is a dissatisfaction which will not be appeased other- wise than by a full supply of that for which he has gone before his judge justice. I know these judges in the courts of requests do good I say they do good by comparison better something of justice than nothing it maybe slovenly justice, but so precious a thing is justice, that I should rather have even slovenly justice than the abso- lute, peremptory, and inflexible denial of all justice. It happens that tradesmen, who know nothing of law, and who may not have much occupation in their own business, preside in these courts of requests, and administer justice as well as might be expected. I say it is bet- ter to have these than to have none. There are 240 of those courts, with jurisdiction of from 40*. to 5; but that is not enough; the sys- tem of cheap justice ought to be more widely extended. I shall now advert to a prevailing error that opinion which goes to recommend the use of a local appellate jurisdiction. I think it open LOCAL COURTS. 621 to this, among other objections that it would lead to one system of law for one di>trict, and a different system for another. I may here step aside to observe, that I wish the appellate jurisdiction received more attention in the quarter which ought to attend to it, than I find it does; and while upon this subject, I cannot help expressing a desire, with reference to Colonial appeals, that there should be upon the Privy Council some judges, who, by their knowledge of, and residence in, the Colonies, may have acquired some acquaintance with their manners and habits, as well as their laws and regulations, instead of that body, as it now does, knowing nothing of the feelings of the people whence those appeals come. I have thrown out, in passing, these few observa- tions on the nature of the appellate jurisdiction, and the evils which in it seem to me to require remedy, although that branch of the adminis- tration of justice is not immediately connected with the question before me.* While, however, I am on that part of the subject, I may as well say a few words on the nature of the appellate jurisdiction, as it ope- rates on our brethren of Scotland, who have, in my opinion, very great reason to complain of the practice which sends them, in all cases of the> last resort, to the House of Lords in this country. I do think that the anomaly which this practice presents in the case of Scotland an anomaly which has existed ever since the Union affords them very reasonable ground of complaint; and the patience with which they have borne the evil, has always appeared to me quite unaccountable. Our neighbours seem to be well aware of the nature of their rights, and to be by no means unwilling to enter into litigation, as, indeed, all per- sons have a right, nay a duty, to do, who feel that they are wronged; and I confess, I can explain their patient endurance of the evil I have described, and which must be so great an obstacle to their attaining cheap and substantial justice, only by supposing it to have been owing to a concurrence of accidental circumstances. In the first place, there were not many appeals immediately after the Union; and in the next place, there happened soon after that time to be a succession of Lord Chancellors in this country, who, to the very highest fame as lawyers at the English Bar who, to a reputation paramount above that of all their contemporaries, and which at once pointed them out as the most tit for being raised to such an eminence added (hat other it appears a most essential qualification, a thorough knowledge of the nature and the practice of Scotch appeals, from having been during many years of their lives, employed in them as advocates. First, there was Lord Hardwicke, who, in addition to the amplest qualifications for the per- formance of the duties of Lord Chancellor as an English lawyer, pos- sessed the reputation of being well acquainted with the law adminis- tered in Scotch appeals. Then there came Lord Mansfield, who in addition to the greatest name as a lawyer, was himself a Scotchman, and long employed as an advocate in Scotch cases. Then there fol- lowed, after the interval of Lords Halhurst and Thurlow, Lord Longh- borongh, also an eminent Scotch lawyer. To these eminent men suc- * The Judicial Committee Act of 1833 has now introduced this reform. 622 LAW REFORM. ceeded Lord Eldon a man who, beside standing higher in reputation as an English lawyer than any judge since the time of Lord Coke himself; who, beside, I say, being marvellously and supereminently skilled in every branch of English law, added to his extraordinary ac- quirements, that of being learned in every part of the law of Scotland, having been employed for full fifteen years of his life in almost every appeal which was heard before the House of Lords. It is to a suc- cession of these great men in England, as Lord Chancellors, that we are doubtless to look, when called on to account for the patience with which our brethren of Scotland have hitherto borne the inconvenience of the system of appeals. But if the time should ever come when a person should fill the situation of judge in the last resort, who, having but a moderate acquaintance with English law, gained his first know- ledge of Scotch law from being called upon, by any arrangement that might be made, to decide on the merits of appeals from the decision of the courts of Scotland, then the anomaly would be seen in its full force, though the means of accounting for it would be gone. I cannot, indeed, avoid let it give offence where it may expressing my opin- ion on this occasion, that the nature of the arrangements, with respect to the disposal of Scotch appeals, is a subject extremely worthy of the best, the most serious, and the earliest consideration of his Majesty's government. I have been somewhat drawn aside from the question before me, by the observations I have felt it my duty to make on the nature of the appellate jurisdiction; but having said thus much, I shall now proceed to explain in what manner I propose carrying into execution the principles I have laid down, and to show how a tribunal may be constituted, through which the people of this country may be able to obtain that most desirable object, cheap justice, in the speediest man- ner, in causes of a moderate amount. What I suggest then, is, that there be appointed in each county or district, as the case may be, a lawyer of a certain number of years' standing, who is to be the judge in the last instance, in causes under a certain sum, and in the first instance, under certain regulations, in causes over that sum. In the first case, I would enable this judge, in all cases where the sum in litigation is under 10, to call the parties before him to examine the claimant as well as his adversary to dispose of the claim to give judgment to award execution and to specify the time when, and the amounts in which the instalments in furtherance of that execu- tion are to be paid. Above the sum of 10, I would give any party power to go before the same judge, who should be authorized to call on the adverse party to answer, both having power to employ pro- fessional assistance if they should deem it necessary, and to determine the matter in dispute, and examine witnesses if they should think fit. I would limit the jurisdiction of the officer, or judge as I call him, in this instance, to the sum of 100 in point of value; but I would not limit him with respect to the nature of the causes to be tried for I would give him jurisdiction over all causes except those relating to freehold or copyhold property. I would give him jurisdiction in all LOCAL COURTS. 623 matters of torts, as well as of debts; but I would make his decision in these cases open to appeal, final in all matters under 10 open to review in all causes from 10 up to 100, and in all cases of tort. I now proceed to show in what way I think this appeal should be managed, and I cannot but think that it would be a great relief to the suitors if it should lie to the judges on circuit, and not to the superior courts of Westminster-hall. There might, however, be good reasons in some cases for not bringing the appeal before a particular judge going circuit, and I should therefore remedy that inconvenience by allowing the option of an appeal to Westminster-hall, with certain restrictions only as to costs. I would allow, therefore, an appeal either to Westminster-hall or the judges on circuit; but, if the party carried the cause to the more distant and expensive tribunal, I would allow the opposing party double, or, in some cases, perhaps, treble costs. It is hardly necessary to add at least to those professional gentlemen who hear me that by these appeals I mean motions for new trials in all cases where the judge may have ruled a disputed point of law, or the jury be supposed to have decided contrary to the evidence. In these cases I would allow a motion to be made to the judge going the ensuing circuit, for a new trial, notice being given to the other side that it is intended to make the motion, in order that he may be present at the assizes, and have counsel ready to argue the case if he thinks fit. I do not mean that this is to be according to the practice usual in the courts of common law, where the party, without notice to the other side, obtains a rule to show cause, and the matter is afterwards heard upon that rule being served on the other side; but I mean it to be according to the long-established practice of the equity courts, where the notice is served before the hearing, and the judge has an opportunity of knowing the whole merits of the case by having both parties before him. I am now giving an outline of the measure which I think neces- sary to accomplish my object; but I have not yet mentioned the necessity of having recourse to trial by jury. Far be it from me to say that there are not many cases in which the trial by jury might fairly be dispensed with; but when in connection with the question of trial by jury, the name of Mr. Jeremy Bentham is forced on my recollection, a man, whose merit as a philosopher, and as a benefac- tor of mankind, is admitted by all of that man who is both most distinguished as a lawyer, and foremost amongst the advocates of legal reform whose name will go down to posterity with an honour- able remembrance of which few, if any, are more deserving when I mention that name, I think, after this humble but sincere tribute to his great and disinterested benevolence, I shall detract but little from it when I stale that I do not agree with him in all the reforms which he proposes in our law. I diller from him upon some points, only in degree, Mr. Bentham going further than I should be disposed to follow; and on other points, I differ from him in kind, as when I am not prepared to concur with him in his view of trial by jury, lint the necessity of that mode of trial in all cases, I deny with him. It 624 LAW REFORM. is not from any indifference to the incalculable advantages of this most important institution that I now state my opinion that in many of the actions which would probably be brought in the county court, I think that mode of trial not applicable, and therefore that it may be dispensed with to the great advantage of both parties. In cases, indeed, where there is conflicting testimony in cases where it may be necessary to contrast documentary with oral evidence in cases of that kind I would have a jury, for I know of no mode so perfect, where there is to be a decision on contradictory evidence, as that of assembling a number of men I will not say twelve, for there is nothing in the particular number of different feelings and habits of thinking, and let them, after an investigation of the whole case, pro- nounce upon it by their verdict; but I would not have that verdict the verdict of the majority, for, paradoxical as it may seem, I would have a forced unanimity among the jury. Were it otherwise, there would never be that patient investigation which is necessary to come at the truth. There would be cries of " Question," such as are sometimes heard in larger and less judicial assemblies. There is, in short, no more effectual way of coming at the truth than such a trial in such cases. In them, then, I would have the matter decided by the jury. I would also have juries in cases where damages are to be assessed, in cases of tort, seduction, assault, and trespass, and even in attacks on property, as well as in personal wrongs; but there- are many cases in which they might well be dispensed with. I repeat, that I state this not from undervaluing, in any degree, the advantages of that great institution; for 1 hope the time is not far distant when it will become general throughout every part of the empire. I am aware that it is difficult to classify those cases, in which the decision should be left to the judge without the aid of the jury. And this difficulty presents itself, not from not having duly considered the subject, for I have given it long and anxious consideration, but the difficulty is not of a nature to prevent the adoption of the plan. I would allow the judge to decide in all cases not exceeding 10, whether or not it ought to be sent to a jury; and when those improve- ments shall have been made in pleading, which are recommended by the Common Law Commissioners, when the story of the plaintiff and the answer of the defendant shall be laid before the court in such a manner, as that the judge can at once comprehend the whole, and when plaintiff and defendant respectively know what they have to prove and to answer, it will not be difficult for the judge to say to them, " I think this is a case which I may decide without the assist- ance of a jury;" but I would not allow the judge to be the sole arbiter of the propriety of dispensing with that mode of trial. It should also be left to the consent of both parties to the suit; and if they agree, then the cause should be decided by the judge alone. I have stated that I would give the judge of this court jurisdiction in most kinds of civil actions; and when it is considered that the present state of the law, and the practice under it, entail an enormous but essential expense, for carrying into effect its administration from dis- LOCAL COURTS. 625 tant parts of the country, I contend that it is imperative on Parlia- ment to give such relief as that which I have pointed out. Now, with respect to the qualifications of the judge who should be selected to preside in those county courts, I think he ought to be of considerable learning and skill, and of some practice of the law; for without that, one great object of those courts, effectual administration of justice, would not be obtained. He ought also to be well paid; for if the public expects that his whole time should be devoted to his duties, they ought to pay him well for it. I would suggest that he should sit once a month for ten months of the year, and that six of those sittings should be in the chief town of the county, and that the four other sittings should be in such towns in distant parts of the county as would bring the administration of justice home to every man; and thus, twice in the year at least, a suitor in any part of the county would have an opportunity of having his claim tried without being put to the trouble of going to any inconvenient distance from his home. The advantage of a court in many things similar to that which I propose to establish, has been long felt in Ireland, where a judge, called "the Assistant Barrister," goes through the county at stated periods of the year, holding sessions for the trial of actions for small sums, but excluding all trials connected with the freehold. The assistant barrister has also the power of deciding certain cases with- out the aid of a jury; but in those cases where he thinks juries neces- sary, they are summoned, and the case disposed of with their assist- ance. This court was instituted in 1796, and has since been found of great convenience to the public in disposing of small causes, which would otherwise have to be sent, at much greater expense to the parties, for the decision of the superior courts. I have said that there should be a power of moving for a new trial, in certain cases which may have been tried before this new court, and that the motion might be made before (lie judges of assize. It would, in that case, be necessary for the new judge to attend the assizes, and be named in the commission. He should sit on the bench, and, as occa- sion required, should read his notes of the case in which the new trial was sought; but he should have no voice in the decision. Tire judge of assize alone should decide on the question. Keason and experi- ence have shown to those who are conversant with the practice of our courts, the very great inconvenience of allowing the judge, from whose opinion an appeal is made, to have a voice in the decision on that appeal. It often happens, that he givos a tone to the feeling of the court in favour of the opinion which he has given in the rourt below; and the result is, in some instances, where a judge has fallen into an error for judges may err as well as other men that the error is adopted by his brother judges, and thus confirmed by the decision of the whole court. I have seen this practice lead, in some instances, to decisions which I have no doubt on earth were errone- ous; and I have not been the only person present, on such occasions, who have come to the same conclusion. This ix-vor would have happened had the appeal been made from the opinion of a judge VOL. i. 53 626 LAW REFORM. who was not a member of the court. I, for these reasons, would not give to the judges of the new county courts any voice in the decision of the appeal which might be taken from them to the court of assize. By the adoption of this practice, with respect to them, there would be established a uniformity of practice in those courts throughout the country, and we should not have one mode of administering the law in one county, and a different one in another. It may, perhaps, be objected, that this establishment of so many courts would entail a very considerable expense on the country; for that, beside the judge in each court, there must be a registrar and clerk, and one or two ushers. No doubt the appointment of such officers would be necessary; for, if we are to have establishments, they should be complete, to answer the proposed end. But the ex- pense of the whole on the country will be but trifling, when compared with the important advantages which must accrue to the public. I would suggest that the judge should have a salary of 1500 a-year. I observe my honourable and learned friend, the Solicitor-General, smiles at this, as if he considered it too much; but if the public are to have the whole of the time of a professional man of talent and experience, they ought not to expect it without giving an adequate remuneration. Taking the whole expenses of the judges, registrars, clerks, and other officers, I estimate that it will not exceed from 120,000 to 130,000 a-year for the whole kingdom. Now, in judg- ing of this, I would beg the attention of the House for a moment to what is the expense of the judicial administration in France. In that country there are between 3000 and 4000 local magistrates scattered over the whole country, called juges de paix, who have jurisdic- tion in actions for small sums. The expense of these amounts to 121,000 a-year. There are next the courts of First Instance for the several arrondissements, amounting to from 300 to 400, and hav- ing from 1600 to 1700 judges; the annual expense of these amounts to 125,000. There are then the several Courts of Appeal, at an annual expense of 70,000; and beside all these, and over them is the Court of Cassation, in Paris, which is a court of appeal in the last resort, or rather, a court of error, which costs the country 25,000 annually, making, in the whole, for the civil administration of justice, an annual expense of from 300,000 to 400,000. And if to this be added the expense of the administration of criminal justice, it will amount to about 525,000 a-year; or, taking it pound for pound, and considering the comparative value of money in that cheap country, and in this dear one, it is equal to about 800,000 of our money. But why do I mention this? Merely to show that our neighbours do not think that any price is too high to pay for an effec- tual administration of justice; and most certainly it would be ex- tremely difficult to convince me that the price ought for an instant to be put into competition with the advantages which would result to the public from such a system. Let it be considered that if the sum should amount to 150,000 a-year, it would be still less than three weeks' proportion of the extra expenditure to which the country was LOCAL COURTS. 627 subjected in the last year of the war, beside the cost of the national debt, of the civil list, and all the ordinary expenditure of the year. I do not mean to say that the extra expense was no more than 50,000 per week; what I mean is, that three weeks' amount of the extra expenditure of that year would, if taken into the market, be sufficient to purchase an annuity of 150,000 for ever. I do not intend to inquire how far that expense was or was not necessary, hut I contend that the sum I have named would purchase by far the greatest blessing that Parliament ever conferred upon the people a cheap, speedy, and certain administration of justice. I have said that the new judges will not act merely as presiding judges; they will also have to act as arbitrators, and in that way many cases will bo settled without ever going to a public decision, and thus a great saving of time and expense will be made to the parties. This of itself is a most important consideration. What is so likely to give satisfaction, or to prevent lawsuits from misdecision, as the enabling a person to decide cases as a judge would decide them, but sitting in the character of an arbitrator? Sir, there is a subject far which I have hardly left myself strength, and I am sure I have left the House no patience to go into it, but to which I shall very generally and cursorily refer I mean the subject of Conciliation. In many foreign countries, courts of conciliation are established, with a view to the prevention of lawsuits, by having the parties called before them by talking to them familiarly, kindly, and privately by telling one that it is very foolish to go into court where the facts are so clear against him, and that he will lose his cause by telling another that he ought not any longer to resist payment, as it is quite clear that he is wrong; in short, by giving tluj parties sound advice, to which they may attach the weight that does and will always belong to the disinterested counsel of a prudent and worthy man, and of one experienced in such disputes. It has been found in some coun- tries not, I confess, in all that the best possible results have accrued from such a system. Where the reference has been compulsory, the experiment has entirely failed. In France, it has signally failed. I have the authority of not only many learned and excellent persons, but I have also the distinct admission of M. Levasseur, in his Manuel, in which he says " That where the parties settle their differences before the court of conciliation without going farther, the principle of the measure is fulfilled le veil du Icgislultur eat cotn/tle/;" hut ho adds, " these cases are infinitely rare." I have to make, also, <-xcop- tion of the Netherlands and Holland, for the result of the experiments of the code, since it has been applied to those countries, has bt-cu so exactly the same, that they have resolved not to renew it. I under- stand that in Sweden the measure has been attended with Iwttor suc- cess. Hut in Denmark it has succeeded best of all; and, if 1 am not misinformed, in that country the going before a judge of conciliation is entirely optional. I know that in Switzerland, at least in two parts of it I mean Geneva and the Pays du Vaud the exprrimnii was tried, and was attended with success. The Codo Napoleon lulled, as 628 LAW REFORM. there was in it compulsory reconcilement that is, no person could go into a higher court before he called his adversary to the court of con- ciliation, and obtained a prods verbal; if the adversary did not appear, he paid a fine of ten francs, and the other got a certificate, and was allowed to go before a higher court. In Denmark, where the thing is more optional, and where the court does not call the parties before them, I find that on an average of three years, 1825, 1826, and 1827, one-fourth of the actions brought into those courts were terminated by the withdrawal of proceedings, or by the parties being reconciled. The returns do not specify the exact numbers of each of those stopped by conciliation, or by the parties withdrawing proceedings, being hopeless of success. In one instance, however, I have that return, and I find that the numbers are very nearly equal, that is to say, that between one-seventh and one-eighth of the cases not tried were settled by the process of conciliation. Now, I propose adding to the power of the judge the right of call- ing the parties, if they please, before him; that is, if one is desirous of it, and the other has no objection. I propose that they should go before him; that it should be compulsory to receive his opinion; that he should act as judge of conciliation, and endeavour to reconcile their differences. I will explain in one moment why I regard this measure as desirable, and by no means impracticable; and I can assure the house, that the suggestions which I have offered are founded strictly on practical experience. When a court is resorted to, in many cases, no person is more likely to be led into error as to the probable termi- nation of the cause than the party interested. In almost all instances he is more or less misled by the advice he receives. I do not say that gentlemen of the bar give opinions that the action is maintainable, when they know that it is not. God forbid! I believe that there is no set of men less apt to do so; I believe they are more apt to dissuade to throw cold water upon law to give doubtful opinions, and offer discouraging advice. I say this is the common course of the profession. I say that in ninety-nine cases out of a hundred it is so. I need hardly say it happens to all respectable men: I need hardly say when it happens not, a man is scarcely respectable. But, great as my feeling is for the profession strongly prepossessed as I am with the belief of its high honour, of its great integrity of all those qualities which entitle it to respect and much as I hope that the exceptions are rare yet I will not say that there are no exceptions, even in that profession to which I have the honour to belong. I will not take upon myself to say, that it is an impossibility to find a man at the bar who will give an opinion to encourage, when he ought to discourage still less will I take upon myself to deny that there are always to be found men, in the other branches of the profession, who will go to that man to get his opinion, and who, if they cannot get such an opinion, will substitute their own for it, and tell their client that he is sure to gain that which they ought to know there is every probability he will lose. But this I do know, that we have men every day come before counsel, previous to going into court; that a LOCAL COURTS. 629 consultation is holclen,and those present lift up their hands and throw up their eyes, and say, who could have advised such an action? and that upon other occasions, on the part of the defendant, it is said how could you go on so long with it? The reason is neither more nor less than this that no sooner have they read the case, than, with- out any further consultation together, each man comes into the con- sulting-room, with his mind made up, that they have not the shadow of a case, and thus the poor client is allowed to go into a court only to be ruined. This happens every day, and it happens often enough to make one wish that it never happened at all. There are cases where the advice of the counsel is kept back from the client; other cases, where the favourable opinion is obtained on false statement of facts; and in all these cases, the man most ignorant of the chance of success, or failure, is the unfortunate client thus dragged into a court of justice. I ought not to say he is always dragged he is sometimes coaxed; they who ought to put him on his guard, mislead and urge him on; and he finds, too late, that he has been deceived to his ruin. The men who do so ignorantly and they are not a few are not of course so culpable as they who do so knowingly and willingly. Even my respect for that branch of the profession to which I allude I mean solicitors and attorneys will not allow me to deny that I have frequently seen instances, in both classes, of such cases, produced more frequently by the ignorance of the attorney, than by a know- ledge that his client must lose. In these cases, if you could separate the client from the attorney and the counsel, and get him aside, and tell him that, if he goes on with his suit, he must be disappointed and defeated, I am sanguine enough to expect that the ruin which now often happens would be saved to the unfortunate and ill-advised clients. This system which I have submitted to the House, I trust respect- fully, founded as it is upon experience, would produce the best results. I have hopes, and I think they are not visionary hopes, that great benefit would accrue to parties from having conversation with an in- dividual of knowledge and of undoubted respectability. Whether, not merely that part of the subject which relates to conciliation and arbitration, by publicly appointed arbitrators, but the whole subject of affording the means of obtaining cheap justice, will be approved of by the legislature, I know riot; but this I know, that those who reject it are imperatively called upon by the state of the case to point out another remedy. I care not for the name. If you reform the county courts, it will only hamper you with certain forms, with obsolete rules, and with many inconveniences, which had much better be got rid of; for nothing is so useless as preserving the shadow when the substance is gone it only disappoints, and harasses, and vexes. Hut call it by what name you will, the substance of this measure is impe- ratively required. The exigencies of suitors will no longer allow us to withhold it from them. Of this I am as much persuaded as I am of my existence, or that I am standing hero addressing this House. The people have a right to justice they are crying out for it they 630 LAW REFORM. distrust the government for want of it they distrust all plans of re- form, whether legal or political reform, because of it; and so long as they feel this want will they continue to cry out and to distrust. I have heard it said, that when one lifts up his voice against things that are, and wishes for a change, he is raising clamour against exist- ing institutions, a clamour against our venerable establishments, a clamour against the law of the land; but this is no clamour against the one or the other it is a clamour against the abuse of them all. It is a clamour raised against the grievances that are felt. Mr. Burke, who was no friend to popular excitement, who was no ready tool of agitation, no hot-headed enemy of existing establishments, no under- valuer of the wisdom of our ancestors, no scoffer against institutions as they are, has said, and it deserves to be fixed in letters of gold over the hall of every assembly which calls itself a legislative body, " Where there is abuse there ought to be clamour, because it is better to have our slumbers broken by the fire-bell, than to perish amidst the flames in our bed." I have been told by some who have little objec- tion to the clamour, that I am a timid and a mock reformer, and by others, if I go on firmly and steadily, and do not allow myself to be drawn aside by either one outcry or another, and care for neither, that it is a rash and dangerous innovation, which I propound, and that I am taking for the subject of my reckless experiments things which are the objects of all men's veneration. " I disregard the one as much as I disregard the other of these charges. I know the path of the reformer is not easy; honourable it may be it may lead to honour; but it is obstructed by the secret workings of coadjutors; and, above all, it is beset by the base slanders of those who, I venture to say some of them at least know better than others the falsehood of the charges which they bring against me. But I have not pro- ceeded in this course rapidly, hastily, or rashly; for I have actually lived to see myself charged with being in name a reformer, but in truth in league with the enemies of reform; in secret and corrupt league with those who batten on the abuses which I denounce. It has been asserted that I have so acted in order to obtain high professional advancement I, \vho have refused the highest judicial functions I, who, at the very time those slanders were propagated, was in the act of preventing such a proposition from being made to me upon political principle upon public principle upon party principle as well as upon personal feelings. Did I regard the slan- der? Was I stung with such false opprobrium? Did I change my colour, or falter in my course, or did I quicken that course? Not I, indeed False honour charms and lyinjr slander scares Whom, but the false and faulty]* It has been the lot of all men, in all ages, who have aspired at the honour of guiding, instructing, or mending mankind, to have their * Falsus honor juvat et mendax infamia terret Quern, nisi mendosum et mendacen? LOCAL COURTS. 631 paths beset by every persecution from adversaries by ever miscon- struction from friends: No quarter from the one no charitable con- struction from the other. To be misconstrued, misrepresented, borne down, till it was in vain to bear down any longer, lias been their fate. But truth will survive, and calumny has its day. I say, that if this be the fate of the reformer if he be the object of misrepresentation, may not an inference be drawn favourable to myself? Taunted by the enemies of reform, as being too rash; by the over-zealous friends of reform, as being too slow or too cold; there is every reason for pre- suming that I have chosen the right course. A reformer must pro- ceed steadily in his career; not misled on the one hand by panegyric, nor discouraged by slander on the other. He wants no praise. I would rather say " \Vo to him when all men speak well of him." I shall go on in the course which I have laid down for myself; pur- suing the footsteps of those who have gone before us who have left us their instructions and success their instructions to guide our walk, and their success to cheer our spirits. I move, sir, for leave to bring in a Bill for the establishment of Local Judicatures in certain cases in England. END OF VOL. I. University of California SOUTHERN REGIONAL LIBRARY FACILITY 405 Hilgard Avenue, Los Angeles, CA 90024-1388 Return this material to the library from which it was borrowed. THE LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES DA 536 B7A3 1841 v.l