Star. — London, England, 1819-03-24 00:00:00

and therefore he hoped the Gentlemen opposite would not content themselves with merely declaring themselves favourable to inquiry, but that they would actively support a proposition to that effect. He thought it possible that in the course of two or three days such information might be obtained as would qualify the Gentleman going out to prosecute the inquiry with which he was charged, better than any information he could procure in any other way. As we continued sending out what were called cargoes of human creatures to New South Wales, care ought to be taken that they should be sent out under such circumstances as would not only prove not injurious to them, but under such as would tend to produce their moral reform. With these feelings he thought those who svent out in any ship with Dr. Brownlow or Mr. Hamilton, would be more fortunate than others, from the superior opportunities they would have of improving themselves. It appeared to him, in every respect, desirable that an inquiry should take place without further delay, and he hoped his Honourable Friend opposite would make no objection to such a proposition. He had a great respect for Governor Macquarry, but they in that House who were acquainted with Governors and Lieutenant- Governors, ought to remember that there was another . class of persons who looked up to them for protection. The weak, the helpless, and the oppressed, wanted their care ; and however they might naturally be led away by friendship to favour those with whom they were connected, it was their duty to attend as much as possible to the interests of those of whom he had . just spoken. Sir JAMES MACKINTOSH said, as the most perfect unanimity prevailed on the subject, and all were agreed that an inquiry ought to take place, the fiends of Governor Maequarry being, as might he expected, most anxious for it, he only rose, lest his silence should he mistaken, to repeat his former testi mony to the character of that Gentleman, w horn he had long and intimately known. Ile had always be lieved him distinguished by honour and humanity, and he could not think that he was likely ever to deviate from principles which he had held to form a part of his character. Mr. GOITLBURN said, all were agreed that in quiry was desirable; the only difference of opinion was as to the mode in which that inquiry should be conducted. In the first instance it. had been neces sary, as had been justly remarked, to entrust Go vernor Macquarry with powers which went beyond' those usually given to Governors, and though be knew nothing of that Gentleman .mwnally, never having seen him, he was ready to bear testimony to the propriety of his conduct, so far as this could be known from the public documents which had come under his observation. The powers given him to restrain the convicts, he strewed, were necessarily extended in their operation to the free settlers. Had this not been so, the peace of the Colony would have been very considerably endangered, as the distur bances which had broken out on a former occasion, were actually excited by that very class of persons. With respect to the case of' one of the Petitioners (Blake), he had a few words to say. There was a place called the Governor's Demesne in the Colony, which was something like Hyde Park. The gates orcal te. u 1 I rew , :nlit, but the walls having br.pn broken down, and the park having been made the scene of many indecent improprieties, the Governor at last issued a Proclamation, in which he threatened, that those who should be next detected in breaking down the walls of the demesne should be punished in the way that such offences were commonly punish ed in that Colony. The Petitioner, with two con victs his associates, were soon after taken in the act of breaking down the walls, and were in consequence carried before a Magistrate, and afterwards flogged. This certainly could not have been done in Eng land; but since the first establishment of the Co. lony, it had been usual to visit offences with cor poreal punishment, which would be dealt with in another way in this country. This system was not new to the Ilouse. They had long since had it before them in the Report of a Committee.— As to the manner in which this punishment was in flicted, from what I.e had been able to learn from the best authority, that of free settlers who had returned to this country, if there was a fault at all, it was that of which Ire had spoken, as being too sparingly re sorted to. Of the case of Williams, as to the lettea said to have been written by the Governor respect.. ing that person, he had no knowledge whatever.— Yr ler respect to what had been said of the duties on the importation of spirits, he had to remark that ever since the fir st establishment of the Colony, some re strictions had been found necessary, on the same principle that excluded spirituous liquors from our prisons in England. The duties had been raised or lowered from time to time, according to the circum stances of the Colony. With the information recently received, it would shortly be his duty to propose a measure that would have the effect of placing these duties on a legal footing. On the subject of the pub lic expenditure, he had to state, that in New South Wales, as in every other Colony, the person holding the public money was bound to advance it on the warrant of the Governor. The warrant of the Go- Nernor was the Treasurer's discharge, and it was for the Government at home to determine whether or not the expenditure that' had taken place was justified. It - . this respect, there was not any thing improper which appeared in the system of New South Wales. The Honourable Gentleman had thought two or three persons would be better sent than one in the Commission now going out. I - Ie had to state, that the Commission had beer. issued in 1817, but had never been acted upon till now, from the difficulty of finding any person properly qualified to conduct the inquiry, willing to accept the office. Such aperson had now been found. The Secretary who would accom pany him, in the event of that person's decease, was a person competent to follow up the investigation, and therefore it was thought better that they should proceed forthwith to New South Wales, than that further delay should take place while two other per sons were sought to accompany them. On the other topics which had been touched upon, he declined entering at present. 1/Ir. IIINNET contended, the Governor of New South Woks had exercised a power, which Govern rirent—which the King himself could not authorise him to exercise without an Act of Parliament. If corporeal punishment were inflicted for a trespass, it might be applied iu civil cases. He also complained ovr.- sr•A'r of the absolute power which lie had been suffered to exercise, in taxing spirits, and in imposing port du ties. He was friendly to a tax on spirits, but it was to the mode in which this had been imposed for the last twenty years that he objected. Of Governor Macquarry he thought well ; but he was of opinion, that, possessed of absolute power, any man in his si tuation was likely to do what he would not do if he had a Council, and were subjected to domestic con trol. He thought an immediate inquiry necessary, as it would put his Honourable Friend, the Commis sioner about to proceed to New South Wales, in pos session of knowledge which it was very important that he should carry out with him. He therefore gave notice, that on Friday he would move for an instruction to the Committee on Jails to proceed im rnediately to inquire into this subject. Mr. 131tOUGHANI explained. It was an indis putable truth, that the common law of England was the common law cf her Colonies, except in the case of a conquered Colony. The distinction was this: when England conquered a country, then, • j:irc it had the right of imposing laws but when Eng lishmen discovered a place with a few natives, and carried out English subjects to settle in that place, then they carried out with them the English laws. The Petition was ordered to lie on the table. STATUTE. LAW OF SCOTLAND. Sir JOHN NEWPORT said, the subject to which he was about to call the attention of the House was one of very great importance. The object of that motion was to obtain information as to the state of the Law of Scotland, as to what Acts of the Legis lature were deemed by the Courts of that country to he in force, and what Acts were deemed to be in desuetude. When he had last brought the subject before the House, the Learned Lord (Advocate) had read him a lecture on his ignorance of the laws of Scotland. It had astonished him, and he thought it would astonish even• person who did not belong to that part of the Empire, to learn that its Judges united in themselves judicial and legislative powers— that they had, as was stated by the Learned Lord, the power of declaring what Acts of the Legislature were now binding on the people, and whit were no longer in force—and that they exercised this power without controul. The House ought to know what limits there were to this power of the Courts of Session and Justiciary in Scotland, and whether these Acts were binding in the other Courts of Judicature— He proposed to bring , the whole subject before the House, that they might see whether this power, which, if exercised at Al, ought to be exercised only under the controul of the Legislature, was really as sumed by the Courts of Sesston and Justiciary. He had adopted the course recommended by the Learned Lord, namely, that of 'moving an Address to his Royal Highness, to direct an inquiry to be made into this subject. This would leave the subject with Go-1 vernment, who might direct the inquiry to be con ducted in the way they thought best, and then lay the results before the House. He could anticipate no objection to his motion. He thought that so va luable a part of the Empire, of which the people were distinguished by their ability, intelligence, spirit and gallantry, ought not to be at the mercy of a Court of Judicature. Ile had been told that the Judges of Scotland not only declared entire statutes to be in a state of desuetude. but also declared parts of statutes to be in desuetude, while other parts remained in force, Was it to be tolerated, that a great portion of the United Kingdom should remain in a state likethis? He could not believe that any man would say, that this was a subject which ought not to be inquired into. He should therefore move, that an humble Address be presented to his Royal Highness the Prince Regent, praying that it might please his Royal Highness to direct an Inquiry to be instituted into the nature, extent and limits of the power exercised by the Lords of Session and Lords of Justiciary, and the Barons of Exchequer in Scotland, of declaring any part of the Statute Law of the Land, remaining uarepealed on the Statute Book, to be in a state of desuetude or ob solete, and no longer binding on his 3laje,ty's sub jects, into the particular authority from which this power was derived; into the manner in which they promulgated their decisions ; and how far the deci sions of any Court were binding on their Successors in that Court, or in other Courts of Justice, finally and irrevocably ; and praying that the result of the Inquiry, together with a List of such Statutes as had been declared to be in desuetude, be laid before the House. The LORD ADVOCATE of SCOTLAND said, he thought, considering the eulogium which the Right lion. Baronet had passed on the natives of Scotland, it might have been expected, that if the power so re probated had been of that grievous description, at least some one of those Natives would ere this have raised his voice against it in that House. But since 1707 up to the present moment, no person belonging to that country, either in that House or out of it, had ever ventured to complain of the power in question as oppressive. The Right Hon. Baronet had pro ceeded altogether under a misapprehension. In the first place, the Courts of Session and Justiciary (for the Court of Exchequer was an English Court alto gether) never declared that Statutes were no longer binding on the Natives of Scotland ; but it was a fundamental principle, coeval with the law of that country, and a principle in that great code on which the law of Scotland was founded, and which was the law of all the countries of Europe, with the exception of England, namely, the Civil Law, that laws enact ed by the Legislature, by contrary consuetude fell into desuetude or became obsolete. The Right Ho nourable Baronet had stated this . as an assumed power contrary to law. But he would read a passage , from the principal institutional writer of that coun try, Mr. Erskine, who stated the law in these terms. [Here the Learned Lord read a passage in which it was declared, that as a posterior Statute explained or repealed a former Statute, so a posterior Custom derogated from the authority of a prior Statute.j— This principle was also laid down by Lord Stair, one of the most constitutional writers, and one of the greatest men Scotland had ever produced. But this matter did not rest with institutional writers nor the decisions of Courts, recognized by the House of Lords; but it was also recognized in the great foun dation of the constitutional liberties of Scotland, the Claim of Rights, in which on the grounds on which the Parliament of Scotland declared King James had forfeited his Crown, was his having prosecuted his subjects on old and obsolete laws. This power' was I not a subject of complaint with the people-1:e Scot- I land. They had never raised their voices against it. The Judges of Scotland had never yet issued one decree pronouncing any law of the United Parlia ment to be in desuetude; and if Gentlemen would look into the Statute Law of Scotland, which was all contained in three small pocket volumes, they would find many of the Statutes not very applicable to the present state of affairs. There was one law which he believed the Right Honourable Baronet was not am bitious of violating; but it did not accord with the sentiments of many of his countrymen, who fre quently honoured the people of Scotland with their visits. There was a Statute against the importation of the Irish ; and every Scotchman was liable to pains and penalties for importing them into the country— (Laughter.) There were also laws against the ex portation of black cattle or eggs. Mr. HUME considered the inhabitants of Scot; land as greatly obliged to the Right Honourable Ba ronet for the pains he had taken in bringing the laws of Scotland before the House. He was far from thinking that because no individuals from Scotland had raised their voices against the power in question, there were therefore no grounds of complaint against it—(hear, hear).—Such was the state of the Law ofl Scotland at this moment, that it was imposs.ble for any man before he went into Court to know whether any law was in force or not. But the Court of Ses sion not only decided what laws were or were not in force ; they passed what were called Acts of Sederunt, setting aside the law of the land. He would state, what had been declared by Lord President Hope from the Bench—that Judge had declared that Acts' of Sederunt suspended the law of the land. It had also been stated from the Bench, as appeared from Buchanan's Reports of Bernal kable Cases—" I do not care what an Act of Parliament says on this sub ject, for I know there is a power paramount to Acts of Parliament," namely, the Court of Session—(/.•ear). — The Honout able Gentleman proceeded to shew that in several cases great injustice had taken place, from the Court of Session having, by Acts of Sederunt, declared the provisions of Acts of Parliament no longer in force. By the Scotch Act of 1540, the subjects had a right to bring their grievances before the Courts in person ; but in consequence of an Act of Sederunt, no man could go into Court with a Pe tition in his hands which had not the signature of a Counsel. There were many of the Scots Acts which deserved the character given them by the Learned Lord ; but that was an argument for the inquiry pro posed by the Right Hon. Baronet. He had read all the Acts of Scotland.—(A laugh.) Ile did not see what should excite a laugh on thisoccasion, since the Acts of the Scotch Parliament were comprehended in three 12mo volumes. The Judges appeared to him to be the infractors of the claim of rights. The LORD AD WC ATE explained. The Learned Lord alluded to, the Lord President Hope, had not used tale expressions charged upon him respecting Acts of Sederunt. Mr. BOSIATLI. said, he happened to have the third part of the Scots Acts in his pocket : and the honourable Gentleman then read a passage from an Act of Charles 11. to shew that the principle of Acts of Parliament being derogated by custom, was recog nized in these Statutes themselves. It was one of the evils under which that country had suffered, that Statute after Statute was passed, without any one having ever been repealed. It had been said uo in dividual of Scotland ever compl i ned of this—he, as an individual and many others, complained of this evil, namely, that a certain body of Laws and Acts were left in that sort of dubious state, that no person, could say what Act of Parliament was in force and what was not, till it was brought before the Court of Session, and the matter was argued and the custom proved. It had been said by the Learned Lord, that many of the Laws were absurd ; but this was the very objection he had to the system—if these Laws were absurd, there was no doubt they ought to be repealed. It might be a difficult task to weed out ' from the Statute Book the laws which were not fit to remain ia it ; but if this task should require even a hundred years, it was one which ought to be exe cuted ; it might be an arduous task, but it could not be said to be impossible. As every man was bound to know what the law was, he ought to have it in as explicit a state as possible. Mr. BLAKE stated, that he was perfectly aware of his own incapacity to instruct the Right Honour able Baronet, but, at the same time, it so happened, in point of fact, he was, by accident, able to shew, that the Right Honourable Baronet was mistaken, notwithstanding the case and opinion alluded to.— The Right Honourable Baronet had asserted, that no statute could be considered as obsolete according to the law of England ; now, what he iMr. Blake) stated was, that an Act of Parliament, in England or in Ireland, must become obsolete where the matter in tended to be acted upon by the Legislation ceased to exist. The question before the House was, whether an Act of Parliament becoming obsolete, by disuse in Scotland, was not an innovation of the British Constitution, because the practice was unknown in England or Ireland ; the case and opinion of Lord Kilwarden as to the construction of the Act of Henry the Seventh, was universally supported by the Bar to be the law ; but the twelve Judges of Ireland lately decided in that identical case, that Lord Kilwardeii s opinion was erroneous ; and they have established the principle, for the first time, that an Act of Par liament did become obsolete by disuse. _ _ Lord BINNING opposed the motion, and charged the Honourable Gentleman (Mr. Boswell) with hav ing misunderstood the nature of it. If the custom of the Judges of declaring laws in desuetude was monstrous, yet it was coeval with the exigence of law in Scotland. As for the observations of an Ho nourable Gentleman opposite (Mr. Hume), they were as far removed from the subject as any remarks on the judicial system of Hindostan, which that Honour able Gentleman (he supposed) was better acquainted with than the laws of his native country. If Lord }'resident Hope had used the expression imputed to him, he was certainly unfit to sit upon the Bench. LORD A. HAMILTON supported the motion, and observed, that if the laws which were liable to be affected by the power thus exercised by the Judges of Scotland, were comprised in three small volumes, it was the more inexcusable that the Parliament did I not reduce to a certainty what parts should be obey led, and what should be disregarded. To leave to the Judges the facility of doing this, was to invest them with the Legislative power. Mr. FORBES paid a compliment to the Right Ho- nourable Mover, to whom he thought c- t l,„ d , indebted for the inquiry into its Courts oi The inquiry proposed might do good, and c‘ , 441 productive of no evil... Mr. KENNEDY said, that though he was of nion that the exercise of this power on Cie Part Scots Judges had been beneficial to Cie the people, ye: the practice was such an Ojtra2t principle, and so liable to abuse, that he 6024 ; a House bound at least to inquire into it. He therefore, support the motion. Sir JOHN NEWPORT replied, ansl insisted it was competent to every Neniber in the Parliament to bring into discussion the lavcsof e ..; part of the Empire. The I...isiTcd lord Advocate) had stated, that there were milli , : %. lutes which required to he repealed—b a pealed? By the Legislature.—lf there cute,„ known, and if all the Acts of the Scots were comprised in a small space, why did Learred Lord, whose peculiar dory it was, l ay their repeal, instead of leaving them to be broke l t 'piece meal by r.r post j. 7::.;) legislative Acts 4 Judges? lie denied the positin Of an Ho nor Gentleman (Mr. V. Blake) who had thourht fi t . instruct him in the laws of his country, that $( 4. Laws in Ireland could not be abro ga t e d b y usage; and he quoted in support of his opininv . of Lord Kilwarden, explicitly stated in a Stat4:e the 10th of Henry VII. respecting the right of i': • dom in cities, in a cause in which he (Sir John N. port) had been himself engaged.—The House di l i4 For the motion 15—Against it S. The Report of Supply was agreed to. On the motion of Mr. BROGDEN an Accmet tuallers' Licenses fir the lag thte: rears was orderee. Mr. WILLIAM DOUGLAS brought in the Scotch s.‘', Banks' Bill, which was read a first time, and ordered fc::: • cond reading to-morrow. M. 11. SUM'. Elt moved for an Account of t.l.e &tt: Lambs' Wool importiAt iwo Great Britain from Ihlt: distinguishing the countries from wht::h it :.rate/mu • turns of the Woollen conchs of raan.•.fanute, :%; •: . during the same period.—Agreed to. Lord 1)1:, N NNON moved that a zew writ ht us,: , the cointy of Tipperary, in the room of Montite 3L:,,1 Esq. d, ceases , . Sir M. W. RI I)I,LT gave notke, that on Thursdzy,tst:!: of March, he should submit to the llvuae a propaitiot to the A.sessesl Taxes. The CHANCELLOR of the EXCHEQUER leave to bring in a Bill to fix the Rates of 'Jame= keepers and others fur thc Qnartering of Soldiers. The Bill was brought in, reed a nig tirac, and to It second time to-morrow.—Adjourned. FRANCE. EXTRACTOF A LETTER FROM '.:ISMES,DATED NIALN'/ i V ° T ;! 13 4. Behold us again a prey to most serioui the volcano threatees a fresh eruption. The rev: , the proposition made in the Chamber of l'ee;;:: given fresh confidence to the instigators of tr , l;;:i and the artisans of discord : they have thrur peaceable citizens, and last night, after the 1:.. gave themselves up to the most violent excesses. cold indifference with which authority has been four mouths surrendered into uncertain hands.:. - . the inconceivable departure of the garrison, cc" bitted not a little to the audacity of sne agitators. seven o'clock in the morning some of those wretch who spread terror through our city in Itin, 1:;-r heard to say, that the Protestants would have r- an unhappy week ; that they meant to begin ea operations in the evening at the Theatre, and C.: were suf f iciently numerous to accomplish their ject. A great number of porters were accordin at the Theatre ; among others was remarked then. torious Sac aM** a ". It is confidently stated,''' their admission was paid for. It is added, that veral Officers of the Ex-National Guard assembll to replace serjeants and corporals deceased, that et companies might have their full coraplement-- Some were even heard to say, publicly, that :t soon as the present Ministry should be kicked eat, they would appoint a grand review on the Esplana,i:, to celebrate the news. In different quarters of t!.e city, men were known to have prepared their fire. arms, and to have provided themselves with car tridges ; numerous assemblages traversed the &ale yards, and threatened peaceable citizens. 'Mesa of M. Gros was pursued by a mob, throwing stones; M. Hage, in returning from the play, was attacked by several men as he entered his own house. The son of the unfortunate Lichere, massacred in 191:1, was violently assaulted and bruised. Tourtio. an innkeeper, and several other persons, were pursued and maltreated. During a great part of the night mobs paraded the streets, crying, with a ferocious joy, " King is dead !" The madmen ! and do they think, that if so great a calamity were to plunge France into sorrow, the crime would re main unpunished? The quarters of the city which they traversed wore thrown into consternation ; every one recalled tat atrocities of 1815 and 1816. Many citizens, assaulted and wounded, complained to justice, and a /Thai verbal was drawn up, either by the King's Procurel;: or by the agents of the police; but it would lead to an erroneous estimate of the number and violence •* the excesses committed, to judge of them by the number of the eemplaints preferred. The gre portion of those assaulted will not, or to speak more properly, dare not complain. In the same manor , during the month of December, at the time wlrrin the Mayor of Nismcs pretends that there were De:* ther troubles nor provocations, nor green cockade several persons who had abandoned their village" durst not bring any charges against those whose rte naces and outrages had compelled them to lease their dwellings. " MARCH 9.—The agitation is still very strong: . til! housekeeper of one of the Deputies to the Lega l "' the Body has reported, that they threatened 10 ,4 , fire to her master's house, and told her that the g0.‘,1 old times would return, and that the Proteqao would have another dance. However, more the two hundred persons sent from Cevennes, horn Ga r ' domenque, and from Vaunage, arrived this morning: to ascertain the real state of things: they say, 111 ‘: to take away from Nismes the garrison which nr;•.* canted order there, would be to deliver up their thren to the fire of assassins; but that they ar e termined to defend them, and that on the fast sination of any Protestant at Nismes, $O,OOO n%-• ' will rush down from the mountains. e " Yesterday evening it was announced that pe or 800 men would arrive from-Montpelier, and reduced to 60 Chasseurs, who will not arrive nil! '`•'s evening. GOD grant that all ma terminate fresh disasters ; but if there should be any fart;' effusion of blood, one cannot think without ),tnick:::. Ccn pub aax spec spit ink;, his The