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the introduction of talesmen, and it was his earnest wish to interfere as little as possible with the dispatch of business. As far as his own opinion went, he saw no sufficient reason against the number of the great assize being increased; but he wished, in introducing his measure, to avoid even any alteration in that particular. Such was the substance of the

treason in Scotland. Also the court of Exchequer, which, although it was a court administering a law, common both to England and Scotland, was a Scotch court; and lastly, he had the important example of the jury trial in civil causes in Scotland, a branch of the judicature of Scotland, of modern date indeed, but, happily introduced in the first instance, by a temporary act of the 55th, and sub-measure, which was, in the opinion of the sequently rendered permanent by the 59th Geo. 3rd.

On the second branch of the proposed remedy, he had in a great degree the same authorities. The treason law, common to both countries, where peremptory challenge to the amount of 35, was the right of the prisoner. The practice of England on capital felonies, where the right of challenge was limited to 20; and the valuable practical, although not statutory challenge in all cases, by which it was admitted, he understood, to any extent, so long as it did not interfere with procuring a jury.

The jury trial in civil causes, was again a decisive authority to be appealed to, because, had the right of peremptory challenge been found objectionable under the temporary constitution of the system, it might have been omitted; but it was never objected to, and was made permanent by the act of 1819. Upon principle, a certain amount of peremptory challenge seems to follow, as a necessary consequence of a jury being chosen by ballot, which might be said to create a necessity for it, quite as much to the prosecutor as to the prisoner. But in proposing this part of the measure, he meant to ask the smallest number of challenges which could be considered beneficial. He wished to steer clear of all technical difficulties;-as little as possible to disturb present arrangements. He meant to propose a right of three peremptory challenges to the prosecutor and the same number to each prisoner. He was aware that three might appear a very small number, but he understood that four in the jury court was found to answer well; and if it should be deemed proper, he should not object to the number being made four in the measure he proposed. But limitation of the number he did consider necessary; because, although it is stated by lord Royston, that a great assize of 60 had been summoned, they never in fact did now exceed 45. He did not mean to propose

hon. member, as little as possible liable to objection, on the ground of being an innovation, or a dangerous theory, because it was, if a theory at all, also a practice existing in every case, excepting the particular instance in which it was his wish to make the alteration. He wished to take away the only case in which the practice varied from the theory, in what was undoubtedly wise and useful; and to render the practice of the Scotch criminal law, similar to the practice of jury trial, throughout every other branch of British judicature. He could not resist again noticing the peculiarity in the Scotch criminal law, that the jury consists of 15, and decides by a majority; so that eight persons may condemn to transportation, while seven desire to acquit; so that a prisoner may suffer by the voice of one man, and that man he could not prevent being one of the 15, who were to try him. The judge names, and the prisoner cannot object; at least the power of objection cannot be said to be worth the having, and is never almost attempted to be used, and still more rarely sustained. Very different is the case in England, where a prisoner may, and does, every day challenge numbers proportioned to the degree of his crime, and after he has made his challenges and obtained a jury as favourable as he thinks he can, 12 men must agree in their verdict of guilt and condemnation, before he can be convicted. [Hear, hear.] This was, indeed, a striking contrast between the condition of a prisoner in the two countries; he stated it not to undervalue the law of Scotland, which embraced many great and admirable provisions, but to show that it was most important to remove defects, and to select a moment for safe and judicious amelioration, when it could be done with. out the slightest imputation upon the conduct of any one. He most anxiously wished, in proposing this measure, to gain what he deemed a great and valuable object for his country, and to do so with the least possible change in its institu

tions. He made this attempt in the firm belief, that all judges who were invested with a power which he proposed to withdraw from them, would be grateful to the legislature, for a measure which relieved them from an odious responsibility. In all cases of crime, the present practice was at least inexpedient; but in offences against the state, the law was monstrous and anomalous, and coupled with the power of the court to award punishments for political offences; modelled on the practice of times, which did no honour to Scotland. It was indeed, important to rescue the sacred tribunals of criminal justice, from the possibility of future reproach [Hear, hear.] He understood, that other improvements were contemplated by official persons. He had long wished to call the attention of parliament to this subject, and he did not choose to surrender it to any one; and had the learned lord been present, he was well assured that he would have had every disposition to give the measure his most favourable consideration. [Hear, hear.] The hon. gentleman concluded by moving "for leave to bring in a bill, to alter the mode of choosing juries, to serve on criminal trials in Scotland."

Lord Binning assured the hon. member who had brought forward this motion, that he felt as deeply as he did, the necessity of the regulations and improvements he suggested, but he lamented he had thought it necessary to introduce into his speech so many topics unconected with the subject matter of it. He lamented particularly that he had entered so minutely into the nature of the office and appointments of his hon. and learned friend, the lord advocate, at a time when that noble lord was absent from his place. He did not feel himself competent to answer the hon. gentleman either in the extraneous matter he had indulged in, or in his legal argument; but there was one part of his hon. friend's preliminary matter to which he would advert, and he was only induced to do so by the formidable sound of the words "arbitrary punishment," on which his hon. friend had commented. This arbitrary punishment, as it was called, consisted only in the court being empowered to pronounce sentence of transportation on a prisoner who had been put to the bar to be tried, perhaps for his life, but in whose case the lord advocate had restricted the libel to an arbitrary punishment, thus taking from the

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court the power of pronouncing sentence of death. Having said thus much, he should not follow his hon. friend through the other topics to which he had adverted. With respect to the bill, he had no objection whatever to its being brought in and read a first time. The subject was unquestionably one of very great importance; and in what his hon. friend had said respecting the impropriety of having juries impartially appointed, he fully concurred. But he would suggest to his hon. friend, that, if he had a practical object in view, he should content himself at present with reading the bill a first time, and having it printed, and then letting it lie over until it should have received that mature consideration which its importance required.

Mr. M. A. Taylor said, it was rather unparliamentary that his hon. friend should be assailed because he brought forward the motion in the absence of the learned lord, whose duty it was to be present. He did not see why, if the lord advocate was absent, their tongues were to be tied; the noble lord should rather have apologised for the learned lord than have inculpated his hon. friend. His hon. friend had brought to view the arbitrary power exercised by the court of Justiciary, to instances of which he (Mr. T.) had happened to be witness in a case, the details of which were printed, and which was also to be found in the debates of that House: he meant the case of Mr. Muir and Mr. Palmer. He (Mr. T.) had been in the House at the time of the debate, as well as in Edinburgh at the time of the trial, and certainly, in common with many others, he did not think the verdict was that which would have been given by an English jury. He had on this point the testimony of a man of no mean authority, who was present the whole time, he meant the late sir S. Romilly. Mr. Erskine, a lawyer of the very first eminence, had told him, that on that occasion the Court of Justiciary had misunderstood the law, when they sentenced the prisoners to transportation. The law said that persons convicted of sedition should be banished from their "pleasant fields and native homes." But this never had been understood, or could be honestly interpreted, as giving a power to transport the prisoner to a particular place, as they did those prisoners to Botany Bay. The case was brought before the House of Commons by the present commissioner of the

Jury Court (Mr. Adam); the Judges | exchequer was not dissatisfied with it, but escaped censure with very great difficulty, he (Mr. W.) had many objections to it. and no one who heard that debate,* could A peculiar and new system prevailed on suppose that the law gave the power as- one part of the coast. From Beechysumed of banishing beyond the seas for head to the mouth of the Thames, he besedition and libel. But, forsooth, they lieved there were armed patroles stationed were not to speak of Scots law, unless all along the coast. These patroles were the lord advocate was present! In the under the command of naval officers, House of Lords, the chancellor decided principally midshipmen. This system on Scots law, though no Scots lawyer, might have the effect of suppressing and in that House, even if the lord advo- smuggling; but he thought it injurious to cate had been present, he should take on our naval officers. He wished to ask any himself to decide according to his own of the lords of the Admiralty opposite, judgment. whether of all services this was not the worst to employ a midshipman in? He had no society, and was subjected to every species of temptation. There were some provisions in the act for the prevention of smuggling, of which the House was perhaps not aware:-for instance, a person found in the act of landing one

Mr. J. P. Grant regretted the absence of the lord advocate. He rose solely for the purpose of correcting the noble lord in what he had said respecting the arbitrary power of the Judges of justiciary in Scotland. The noble lord had represented that power as being confined to the pronouncing of sentence of transporta-pint of foreign spirits, was liable to a petion, in cases where the public prosecutor had restricted the libel to an arbitrary punishment. But the truth was, that this was a modern assumption of power on the part of the judges, which he was prepared to prove they did not legally possess. The utmost extent of their power being merely to banish forth from Scotland, they had assumed the same power of transporting to a foreign settlement as was allowed under the statutes of England. In a very recent case, in the face of a unanimous recommendation from the jury, the court, in the exercise of its lenity, had sentenced an individual to five years' transportation.

Lord Binning explained. He had not said that the court of justiciary never exercised the power of sentencing to transportation, unless where the offence was a capital one. What he had stated was, that what was called an "arbitrary punishment" was in fact a leniency, because the punishment was only so restricted in cases of capital offence.

Leave was given to bring in the bill.

SMUGGLING-PREVENTIVE SERVICE.] Mr. Warre wished to receive some information as to the intentions of his majesty's government with respect to the mode generally pursued throughout the country, for the Prevention of Smuggling. He understood that the chancellor of the

For the Debate on Mr. Adam's Motion respecting the Trials of Mr. Muir and Mr. Palmer, See New Parl. Hist. v. 30 p. 1486.

nalty of 100%. An instance of the impropriety of this clause had come within his knowledge: a mariner who had been absent on the sea for two days, on landing on his return to his wife and family, was detected by one of these lieutenants with a single pint of spirits in his pocket. He was immediately conveyed before a magistrate, who was called upon to inflict the fine. The magistrate, who under this act, had not the power to mitigate the fine, knowing the man to be perfectly honest, and knowing that he must go to jail if he complied with the provisions of this act, absolutely refused to do so. He hoped this act would be revised.

Sir G. Cockburn stated, in reply to the representation of the hon. gentleman with respect to the midshipmen in the Preventive Service, that one of the lords of the Admiralty had lately been sent to inspect and report on the state of these officers and the service in general, and the report made with respect to them was of the most gratifying nature. The midshipmen were found to conduct themselves in the most respectable manner; they messed together as the officers in the army did, and were in every respect in a state of the most perfect discipline. These midshipmen had passed their examination for lieutenants, and had therefore already learned their business. They now conducted this service in a manner that could not be excelled, and it was satisfactory to the Admiralty to be able to give them this employment in time of peace, at the same time that they became valuable to

their country by protecting its revenue. They had also achieved many gallant actions. The smugglers now-a-days came down upon them in armies, and they had had regular battles, in which some of these midshipmen had been killed and wounded. From every information they had been able to obtain, it was impossible that they could conduct themselves better, or the duty be better performed.

MALT DUTIES BILL.] On the order of the day, "That this Bill be now read a second time,"

Mr. Creevey rose to oppose the motion. He had, he said, two or three short reasons for resisting any bill of supply under existing circumstances. The first reason was, that although the House had been sitting for three weeks, no estimate of the public expense had yet been presented to the House from any department of the administration; and he would not consent to grant the public money to any department, until a clear statement of the ground of its application were previously communicated to the House. In this resolution, indeed, he was the more confirmed by the language which he understood was unreservedly used about the Treasury, and which was generally believed by its adherents namely, that the present would be a very short session, that all the public business would be over before Easter; that is, that ministers were safe, that the Queen was sacrificed, and that nobody cared about money. The estimates then should have been sooner presented. They ought, indeed, to be two or three weeks before the House, in order that such members as were disposed to attend to their duty, might have ample opportunity of examining those very voluminous and complicated documents, which, according to the existing practice, were seldom above a night or two on the table before the House was called upon to pronounce a final vote respecting them. Upon this, and upon other grounds, he felt it his duty to oppose the grant of any supply, until the will and the wants of the public were attended to by ministers. He had been told, that a certain lay-lord of the Admiralty (sir G. Warrender) as he was called by some, but whom he would call a sinecure and sham lord, had been heard to declare, in those circles of which this lord was such a splendid ornament, that he would come down and inflict signal punishment upon him, if he

persevered in his purpose to resist the supplies: but still he was determined to persevere, notwithstanding this frightful denunciation, for he had already found that some good resulted from his perseverance. The chancellor of the exchequer had endeavoured in some degree to satisfy the public desire for economy and retrenchment, by stating that within this year there would be a reduction of one million in the national expenditure. It had not, however, been stated by the right hon. gentleman, in what department such reduction would take place. But to return to the threat of the lay-lord of the Admiralty; he begged to express a hope before the friends whom this lay-lord had invited to attend his benefit, that he would be graciously pleased to carry his threat into execution with some clemency, that he would condescend to mitigate his punishment for old-acquaintance-sake, and from a recollection that he was once himself a tip-top patriot, and one who combatted much for retrenchment.

The Chancellor of the Exchequer said, that the House had already considered the number of seamen, for instance, to be voted for the service of the year. Would it not then be something inconsistent if the House were afterwards to withhold the means of paying their wages? The present were not new taxes; they were part of those which were usually granted. As to the estimates, the utmost haste was making to have them ready, and he hoped they would be laid before the House next week. No measure would be introduced respecting them, until they should have been a sufficient time in the hands of members.

Sir R. Wilson thought it was the duty of members to oppose any grants of supply while ministers continued to act in opposition to the declared wish of the people. It would not be regular to say that the majority of the House had, by last night's vote, declared war upon the people; but he would maintain that, as a majority on the other side persisted in not listening to the prayers of the people, it was but a fair exercise of their privilege, for members on his side to retaliate by refusing to grant any supplies.

Sir T. Lethbridge said, he had as much of that constitutional jealousy with which the grant of supplies ought to be exercised, as could be found on the other side of the House; but still he could not concur in the objection to the present bill.

He thought it necessary to support ministers on that occasion, and he could not but regard the opposition now given as vexatious. At the same time, as an independent member of parliament, he wished every possible saving should be made in the present distressed state of the country, and would concur in any measure which should have that effect.

Colonel Davies was glad to hear such sentiments as those which had fallen from the hon. baronet. He could assure him that the objection to the present motion arose solely from the wish to correct a grievance. He, and his friends wished to have it understood, what retrenchments it was the intention of ministers to make. In their present course they only exercised the undoubted privilege of the House to refuse all supplies, where a grievance complained of was not remedied. But for such refusals of supplies they might not now be existing as a House of Com mons. When he saw ministers wholly regardless of the prayers of the people, he thought it the duty of members who had the interest of their country at heart to exercise their constitutional privilege in opposing the money grants.

Mr. Hume was surprised to hear the term "factious" applied to gentlemen on his side of the House. He considered that the term would be more applicable to the other side, and that the majority of last night was factious in the highest degree. [Order, Chair.]

The Speaker said, he would first remind the hon. gentleman that the word factious had not been used by any member. If such word had been applied to any portion of the House, he would have considered it disorderly; but certainly to apply the term factious to a majority of that House was still more disorderly.

Mr. Hume said, he was sorry for having used the word, which he had mistaken for the word vexatious. But he begged to say that he did consider the majority of last night as most vexatious, being calculated only to produce vexation and disappointment in the country. He prophesied that the vexation would not end here, nor end at all, unless measures of a conciliatory nature were adopted. That decision he had no hesitation in saying, was in opposition to the declared opinions of nine-tenths of the people. Under these circumstances he considered it his

duty to oppose the granting of any supplies.

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Mr. Mansfield did not consider the hon. member was justified in applying the words "factious and vexatious" to the majority of the preceding evening. He was one of that majority-and would say, that to the best of his judgment, in voting as he did, he had used an honest and a sound discretion, and did not deserve to be called either factious or vexatious. He perfectly differed from the hon. member too, when he declared that that House did not speak the sense of the majority of the people. He knew that in the place he came from, a party not inferior in numbers, but infinitely superior in respectability, held opinions directly opposite to those of the hon. gentleman. He had no wish to say any thing that might hurt the feelings of an unfortunate lady whatever he might think of her conduct, and he had therefore carefully abstained from saying any thing on the subject on several occasions, but it was too much to sit there night after night, and hear it asserted that, deciding as they had done, the House had voted against the wishes of the people. He did not believe any thing of the kind. If, however, he did believe it, he would still contend, that it was the duty of members of that House conscientiously to act on their own opinions. This, however, was not his argument. What he meant to assert was, that if the voices of his constituents could be collected from one end of the county of Leicester to the other, he was confident the majority, in numbers and in respectability, would approve of the decisions come to in that House.

Sir J. Newport, though he thought it desirable to look carefully at the conduct of ministers in order to find out where retrenchment could be effected, did not see why the supply being already voted, the means should be withheld. He however thought the estimates ought to be laid before the House in the first week after the meeting of parliament. In war time this might not be easily done; but during peace there was no cause for not doing it. He should feel disposed to resist any new motion for supplies before the estimates were produced.

Mr. J. Martin was determined not to vote away any more of the public money until a more clear mode of keeping the accounts should be adopted.

The question being put, "That the bill be now read a second time," the House divided: Ayes, 71. Noes, 22.

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