The Sun.
London, England, 1844-05-31 00:00:00

THE SUN, LONDON, FRIDAY MORNING, MAY 51, 1844.

soon after the Chancellor of the Exchequer offered the
claimaints one moiety of the balance then due to them.
The offer was accepted, and it was considered
to be a full satisfaction of all demands. The
amount of the claims of these fifty-five persons
was 227,000/. Having reeei VC d by the award of
the Commissioners, in 1811, 105,0001., a balance was
still due to them of 122,024 L, end they received exactly
half of that sum. Now, he asked the House whether,
after this subject had been fully discussed in i°2l
and 1825, and a settlement had been made, they
would permit the question to be again re-opened ?
By agreeing to this they wouAl open all the other claims,
and revive a question which had been settled 25 years
ago. The parties had accepted one moiety of their claim
in full satisfaction of their demands ; and he thought
that there could be nothing more unwise than re-open-
ing a question that had been satisfactorily settled. He
must oppose the motion.
Mr: VILLIERS did not know that the claims had
ever been satisfactorily settled. The Hon. Baronet said
that nothing could be more unwise than re-opening this
question ; but he could not see that it would be unjnst.
The claimant was not a di,tant connection of Mr.
Powell ; he was his grandson, and the representative of
the last of the claimants. So that the• objection that
allowing his claim would open that of the others, did
not hold. The settlement of 1802 was opened again in
1821. Colonel Powell did renew his claim every year;
and the Exchequer did not say that his claim was unjust,
but that there were no means of satisfying it.
Sir G. CLERK said that from 1815 to 1821 the in-
terviews of Colonel amen with the Chancellor 'of the
Exchequer were much more frequent than once a
year. ,

Mr. lIUME said that none of the parties had ever
considered their claims as satisfied. He was one who ad-
vised them to take what the Government offered. If the
relative of Colonel Powell was declared entitled to this
claim the relatives of all the others would have a
claim also. He was much averse to refusing
justice to any individual, and he thought the
Government had in many cases acted very badly—as in
refusing the Danish claims, and the compensation to the
British merchants in China ; but he-should advise his
Hon. Friend not to press his motion to a division, as the
House was in fl state of ignorance on the subject.

Mr. JIMVIS
The gallery was cleared for a division, but none took
place.—The motion was then negatived without a di-

vision.

APPEAL IN CRIMINAL CASES.

Mr. KELLY rose pursuant to notice to ask for leave
to bring in a Bill to provide an appeal in criminal
cases. It was almost incredible that while in
every case of a civil character, no matter whether the
question involved a large or a small amount of
money, the law as it stood at present gave an
appeal. A person who felt himself aggrieved'
either by the verdict of a jury or the decision of a judge,
could appeal from that verdict or that decision, and
carry the case even before the highest tribunal
of the • land. But in a criminal case, which
must involve a question of character, property, or
even life, there was no appeal, according to the law of
England, against the verdict of the jury, however erro-
neous, or the decision of the judge, however mistaken.
In every country in Europe, and throughout every
civilized country in the world, an appeal was given as
well in criminal cases as in civil, and the error of a jury
or a judge must be rectified by appeal ; but in this
country the state of the law was such, that no matter
how glaring and palpable might be the • error into which
the jury might have-been led, or however mistaken the
judge might have been in point of law, there was no
remedy for the party injured, though his liberty, his
character, his property, or even his life might be in
jeopardy. To -remedy such a state of things he now
asked for leave to bring in a Bill—the guiding principle
of which was that it endeavoured to assimilate as far as
was practically -possible the law and practice in criminal
cases, to the law and practice in civil cases. The Ho-
nourable and Learned Gentlemen then went on to show
what the practice _was with regard to civil cases.
In all civil cases any person who thought himself ag-
grieved, either by an error in the verdict of the jury or
by an error in the statement of the law as made by the
judge,. had an opportunity of appealing, first of all to a
court composed of four or five judges, next to a court
composed of double that number of judges, and ulti-
mately to the House of Lords. The consequence was
that, in the administration of the law in civil cases, any
errors which were committed were remediable, were cor-
rected most frequently, and ultimately justice was done.
The result was, that in all civil cases there was the ut-
most confidence throughout all classes of the com-
munity that justice was done in courts in civil cases. It
was almost without an example that any attempt had
ever been made either in Parliament or by the press to
impeach the judgments of courts of law in civil cases,
because all were agreed that if a party acquiesced in
an unjust decision it was his own fault, because he pos-
sessed the power of appealing, if he chose to exercise it.
In criminal cases, however, the state of the law was
directly the reverse, and it was inconceivable, looking at
the constant improvement which bad taken place in our
laws, and to the anxiety which the Legislature had
manifested to amend the defects, it was inconceivable
that century after century such a state of things should
have been suffered to exist, when the remedy was so
plain, so easy, and so certain. In civil cases, in which
property alone was affected, an appeal was allowed, but
there was no appeal in criminal cases, in which lite itself
was sometimes at stake. He proposed to remedy this
evil ; but before he drew the attention of the House to
the remedy which he proposed, lie must take the liberty
of observing that he did not believe that such a state of
the law would have been suffered to exist if the Members
of either House of Parliament had been as liable to be
indicted for crimes as all were to be parties in civil
actions.—(Hear, hear.) It happened that the criminal
law applied
.more frequently against the humbler classes
of. society; but if the Members of the Legislature had
been as liable to have their characters, their liberties,
' their property, and their lives placed in jeopardy by the
criminal law, as their property was in civil cases, be felt
assured that the same remedy would have been provided
in criminal cases that was at present provided in all civil
cases. It was impossible to conceive any state of the
law more opposed to the due administration of justice
than was the state of our criminal law. A man was in-
dicted—he was tried, evidence was adduced, as in other
- cases, on the one side and on the other. By a modern
improvement, which, strange to say, had been much op-
posed, counsel might now be heard for the defence in
criminal as well as in civil cases, which he acknowledged
was a great improvement ; the judge summed up the
case, and the jury returned their verdict. The verdict
was returned ; there was only one of three courses
which could be taken, whatever doubts might exist as
to the propriety of that verdict, or as to the correctness
of the learned judge in stating the case to the jury. After
a verdict of guilty was once pronounced against a pri-
soner, however convinced the counsel might be that
that verdict had been procured by'means of false evi-
dence—although the prisoner might know it was wrong,
—although all present might be convinced that the pri-
soner was innocent—although all lawyers might feel as-
sured that the judge, in his charge to the jury, was mis-
taken, there was no appeal allowed by which this mis-
take could be remedied. There was no means of ob-
taining a reviewal of that decision but in two ways,
which he would state to the House. But before doing
so, he would observe that, upon a verdict of guilty, even
if the evidence was ever so untrue or misrepresented,
if the Learned Judge was satisfied with the verdict
there was no remedy ; he passed sentence, and it was
carried into effect even to death itself.—(Hear,
hear.) No one familiar with the practice of the
criminal courts of this country could entertain a doubt
upon the fact that there had been a great many
cases where the verdict had been wrong or the charge of
the judge wrong, inasmuch as there was no power of
correcting if injustice was done and the innocent suffered
death. He could mention many cases to prove what he
had stated, but as he did not wish to trouble the House
at length he would only advert to one. Nine years ago
a man named Chalker was indicted with another man at
*Suffolk, for the murder of a gamekeeper in a wood. The
trial came on before an eminent judge now no more ;
evidence was given that Chalker was in the wood at the
time of the murder, blood was found upon his clothes,
and there was circumstantial evidence more or less strong
of his guilt. The Learned Judge had early in the trial
taken an impression against the prisoner; he summed the
case up most clearly and imparti ally, but most ingeniously.
Chalker was convicted, and his fellow prisoner acquitted.
He declared that his fellow prisoner was as innocent as him-
self, and the counsel for Chalker being convinced of his
innocence, took the greatest trouble to establish that
fact, and having collected a mass of evidence on the sub-
ject, he laid it before the judge, in hopes, at least, of
obtaining a respite for some time of the sentence of
death that had been pronounced on Chalker, but the
Learned Judge adhered to the opinion he had formed,
declared himself perfectly satisfied of the prisoner's
guilt, and refused to interfere. Chalker suffered death ;
but it had since transpired that the man who had actually
committed the murder, who had seen the miserable vic-
tim executed, had come forward and confessed his guilt,
declared he was the murderer, that the mau who was
executed was innocent, and gave himself up to jus-
tice. This was one among many instances
which time brought forth, of persons being convicted of
crimes, and suffering punishment, because there was no
appeal . from the . sentence passed upon them. There
was no remission of the penalty, because there was no
appeal by law. It might be said that whenever the cir-
cumstances warranted doubt of the prisoner's guilt,
whenever there was any serious objection raised, that no
judge would refuse an inquiry, which might be had by
applying -to the Secretary of State for the Home Depart-
ment ; and whenever a legal objection of weight was put
forward in the prisoner's favour, it could be argued in
error, before twelve or fifteen of' the judges. In answer
to these arguments, he replied that there was nothing to
compel the judge to reserve these objections ; and most
learned and eminent judges had, over and over again,
refused to reserve objections which subsequently appeared
to have been well founded. He remembered a case in point
among his own extremely limited practice in criminal
law. A man was indicted in the county of Huntingdon
some years ago, and tried before a Learned Judge now
no more. Evidence was given ; the case had closed ;
he (Mr. F. Kelly) was counsel for the prisoner,and sub-
mitted with great confidence to the Learned udge cer-
tain very strong points in the prisoner's' favour. He
' submitted that although the man might have been guilty
of a very gross offence, which would have amounted to
a misdemeanour, and perhaps rendered him liable to
transportation, still, according to the terms of the indict-
ment, he was not guilty ; he should have been tried on
an indictment differently framed. His offence, be sub-
mitted, was not a capital one, and he should not be
punished for it as such. He urged these points on the
Learned Judge in Court with all the force and earnest-
ness he was capable of, but the Learned Judge decided
in a most peremptory manner against reserving the ob •
jection. He again pressed upon the Learned Judge in
Court the propriety of suspending the execution of the
prisoner, but was again refused in the same peremptory
wanner. Feeling the strength of his objection,

he went to the Judge's private resenee in
the middle of the night. He was received
with all the courtesy whiyh distinguished. the
Learned Judge, but his ,application was in vain. In
short, after five fruitless applications, when the man was
about to suffer death, he (Mr. Fitzroy Kelly) waited,
f,r the sixth time, on the Learned Judge, and again

urged, er rather insisted, in terms which would cer-
tainly not have been justifiable under any other circum-
stance, on the propriety of writing to the Lord CbiefJus-
tice of the Queen's Bench, or the Lord Chancellor, to
have their opinion as to whether there was anything in
the point which he urged. At length the judge con-
sented, and he communicated with Lord Tenterden or
the Lord Chancellor. Both of these learned individuals
thought the point ought to be reserved—(lcer, hear)—
and eight hours before the period fixed for the man's
execution, he was respited. The point was; on the fol-
lowing term, argued before ek yen of the judges, amongst
whom was the Learned Judge who tried the man, and
they were all unanimous that the point should have been
reserved, and that the indictment was not sustainable.—
(Hear, hear.) Here was a case in which a man's life
had been saved by mere chance ; then let him not be
told that the judge would, on every occasion, reserve
a point for argument, if there was anything in it,
however eminent or learned that judge might be.—
(Hear, hear.) The man .was now living. a reformed
person, and a good member of society. Such was the
state of the law when there was a verdict of guilty re-
turned, and when, to every impartial bystander, the
reasons urged •by the prisoner's counsel might be all-
sufficient, still the judge might be inexorable, and the
unfortunate accused, although innocent, as in Chalker's
case, might suffer the punishment of death. However
contrary the conviction might have been to the law of
the land, yet still it rested upon the fiat of the judge
whether the prisoner might not suffer punishment, or
even death itself.—(Hear, hear.) He asked if this state
of thiggs should be allowed to continue in a country
where the law was fairly administered ? But even
where the Learned Judge was disposed to entertain the
objections urged, the remedy—if remedy it could he
called—was of a most unsatisfactory character. What
was the course when a man bad been convicted of a
crime, and when the objection of his counsel had been
reserved by the judge for argument ? First, the judge's
entertaining the objection at all was a matter of indul-
gence, and not a matter of right. So that the prisoner
might be indebted for his life, not to the law, but to the
kind and merciful discretion of the judge. He did not
speak in any manner disrespectfully of the bench, but it
was a well known fact in Westminster Hall, that some
of the judges would entertain objections which others
would absolutely refuse—so that it was altogether a
matter of accident, whether or no the prisoner, innocent
or guilty, should have the point which his counsel had
honestly raised in his favour argued at all or not. But
even, as he said before, where the point was reserved
what was the proceeding ? The judges met together,
not in open court, as on objections is a civil cases, but
in some private room in Sergeant's Inn, or elsewhere,
and there counsel was heard, and heard, he must say,
after a most irregular manner. It often happened that
counsel for the Crown was not employed on these occasions.
and it sometimes occurred that the prisoner was not
able to fee counsel. Then in this private room the
judges met, and the point was decided which was to
grant liberty or inflict death on a fellow-creature. In a
civil case, on a like occasion, all the customary forms in
our courts of judicature would be gone through, and,
what was still more valuable, the arguments of the
counsel and the reasons of the judges would be stated
before the public ; but in this case the judges gave no
reasons at all, but it was made known in some private
or conventional manner to the prisoner's counsel what
the result of the judges' deliberations was—whether the
man's life was saved, or whether it was to be taken
away. Thus no addition could be made to the code of
the common law of the realm—no decisions were re-
corded, or reasons published, which might be guides
hereafter in like matters. In fact, at present we had no
digested body of criminal law at all ; and it required the
master mind of the individual who had now undertaken
it, to reduce our criminal law to an intelligent code. The
other course left open for a person convicted under the
criminal law was still more objectionable—viz.
by application to the Secretary of State. If
there was a strong case made out for interference, the
Secretary of State referred to the judge who tried the
man, and in most cases the Secretary of State was
guided by the opinion of the judge. Thus again the
man's life depended on the will of a single individual.
But suppose the Secretary of State went further, and
demanded the evidence to consider ; hence the Secretary
of State was certainly placed in a position of awful re-
sponsibility. Well, then, he received a copy of the evi-
dence from the judge's notes—he must receive such evi-
dence as was laid before him—he had no power to
demand any other—it might be false, but he had no
power to examine parties on oath—no means of satisfy-
ing himself whether the statements made were correct
or incorrect ; and yet upon these slender grounds ha
must come to a decision upon the life of a fellow-crea-
ture.—(Hear, hear.) But in most cases the Secretary
of State rested satisfied with the judge's bare representa-
tion, and acted accordingly.—(Hear, hear.) The con-
sequence of these things was, that the guilty often
escaped, and the innocent often suffered. (Hear,
hear.) It was to provide a remedy for these evils
that he submitted the present measure to the House.
Where there was an erroneous verdict, or where there
was a misdirection of the judge, or good grounds for
supposing either, he proposed by this Bill to render the
mode of appeal the same in criminal as in civil cases, or
at least as nearly so as possible, taking their specific
difference into consideration. He proposed that in every
criminal trial, whether at the Central Criminal Court, or
before the going judge of assize, or at quarter sessions,
or any other criminal tribunal, to enable the prisoner by
his counsel, when there was a verdict of guilty, to:move
in any of the superior courts at Westminster Hall to
show cause why the verdict should not be set aside,
why there should not be a new trial, and why the ver-
dict not guilty should not have been returned, or why
the judgment should not be reversed •, and whenever the
court was satisfied, either upon affidavits or upon a
review of the evidence, or upon a belief that improper
evidence had been received upon the trial, or proper evi-
dence rejected, or where witnesses were brought forward
suddenly, and whose testimony the prisoner could have
satisfactorily disproved if due notice had been given, or
where the Learned Judge had misdirected the jury
in point of law, or in an erroneous summing up of the
facts, in all or any of these cases, as in civil
actions, he proposed that it be at the discretion of the
Court to grant a new trial, or to order that the verdict of
guilty be set aside and a new verdict of not guilty be
recorded. He also proposed that there should be full
power to move for an arrest of judgment, and that, as
in civil cases, appeal to the House of Lords might be
made, which he presumed would very seldom occur, but,
nevertheless, resort should be had to it under proper
restrictions. The mode by which he proposed to carry
out this part of the measure was by giving an absolute
power, in all cases of conviction, to suspend the sen-
tence until the appeal should have been decided. It was
absolutely necessary that the judge should have a dis-
cretion upon this subject. What he proposed was,
that in all cases where a judge should have tried a
prisoner, and he had been found guilty, the prisoner
should declare, before the sentence was pronounced,
that it was his intention to appeal ; and he would give
power to the judge either to pronounce a conditional
if tsentence,eee vt
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ea
nk es
beffeuelcdt
boen
eteheefitremr mie
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po fe
onestthpe a p appeal
sentence until the motion had been heard. He pro-
posed to leave it to the judge either at once to pass sen-
tence, or to order the prisoner to remain in custody, or
to admit him to bail, either upon his own recognisances,
or upon good and sufficient bail, until the appeal mo-
tion had been decided, when, if this appeal were rejected,
the sentence should be pronounced. Undoubtedly this
part of the measure was open to the objection that it
would still be in the power of the judge, if he were
perversely determined to carry into effect the verdict,
to refuse to respite the sentence. But it was impossible
to guard against mischief in all cases, and he certainly
thought the matter might safely be loft to the judges of
the land; unless the thing were so clear that no human
being could entertain a doubt about it, the judge would,
in all capital cases, postpone the execution of
the sentence ; while, if the sentence were exe-
cuted, except in cases of life and death, the worst
that could happen was that the prisoner would
suffer imprisonment, or undergo the first stages of trans-
portation, until the ensuing term. But be had no doubt
that, practically, if this measure passed into a law, Jus-
tice would always be done. In cases where a frivolous
objection was raised, the judge might pass sen-
tence; on, the other hand, in cases where any
' serious doubt existed, either upon a matter of fact or a
matter of law, or the verdict of the jury, upon notice of
appeal being given it might be taken for granted that
the judge would postpone or arrest the sentence. Now,
he was at a loss to understand what reasonable objection
could be made to this measure. It had been urged, as
an objection to the power of appeal under such circum-
stances, that it would give an advantage to the rich over
the poor ; that the rich would always be able to appeal,
and that the poor could not afford to do so ; that it
would be in fact making one law for the rich and another
for the poor. He thought that objection would equally
apply to the power of appeal in civil cases. Such advan-
tages were incidental to the nature of things, and could
not be avoided. But, looking at the practical operation
of the measure, he saw.no reason for believing that the
rich man would enjoy a privilege which was not equally
possessed by the poor man. The judge was not bound
to admit the rich man to bail. He might order him to
remain in prison until the appeal were decided; while
the poor man, if unable to obtain bail, might be libe-
rated, at the discretion of the judge, upon his own re-
cognisances. Now, there was only one case in which
he desired to give power to the prisoner to obtain a
respite of his sentence at an earlier period than
it could be s obtained in other cases—he al-
luded, of course, to indictments upon capi-
tal charges. He proposed that in such cases,
if the judge before whom the prisorer was
tried refused to allow the appeal, the prisoner should,
upon giving notice, have the right to be heard before
the recorder and two judges, and this provision would
extend to the judges of assize. It might be urged as an
objection to his measure that it would be impossible, in
the present state of the courts, and with the present
number of judges, to dispose of the numerous appeals
which would take place if this measure were carried.
He must take leave to say that if this measure were just
and expedient in itself, it was no answer to the demands
made upon the Legislature, on the part of the public, to say
that it would create a necessity for some additional judges,
and thus cause an additional expense to the country.—
(Hear, hear.) But he did not believe that any such
necessity would be found to exist. Undoubtedly, if an
appeal were to take place in every case, it would occupy
half the time of the court. But they did not find the
courts of law inundated with appeals in civil cases ; why,
then, should they anticipate such a result in criminal
cases ? The Bill would be found to afford redress in all
cases of a criminal nature where injustice had been done,
auli in no case could it be seriously abused. Frivolous

appeals would be discountenanced, and if they ever took
place they would very soon cease, whereas, in those
case, which were of very frequent occurence, in which
judges, from the fallibility of human judgment, fell bit°
error upon points of law, and in which juries, upon false
or misapprehended evidence, fell into error on points of
fact, this Bill would provide a remedy. Another conse-
quence would be, that they would no longer have that
House made a tribunel of appeal in criminal casts. No
gentleman who had long been a Member of that House,
could have failed to recollect a number of discussions
which had takea place upon complaints made against
judges, or upon objections made in matters of law on cri-
minal trials. The appeals which were made to that
House in the case of Frost., after he had been convicted,
must be fresh in t'.e recollection of the House. Persons
who thought themselves aggrievel by the ruling of
judges or the verdict of juries, in criminal cases, appealed
to that house; and if they could obtain no redress
in that House, they appealed to the public newspapers,
and there canvassed the decision of the judge or the
jury. This was because the law gave them no power
of appeal. He might state the whole of his measure in
a very few words. Its effect would be to place persons
tried and convicted in criminal eases in exactly the same
situation with regard to the power of appeal to the
courts of law and the judges of the land as that which
was occupied by persons concerned in civil cases. He
had now started the measure which he had to propose ;
he had endeavoured to meet the objections which might
be urged against it ; he had pointed out the advantages
which he conceived would follow from its adoption. He
believed that it would be productive of no evil consee
quences whatsoever. It brolte in upon no legal
or constitutional principle ; it invaded the rights of no
one member of the community ; it involved not the ex-
penditure of one shilling of public money ; and he be-
lieved that it would tend to the advancement of the pure,
just, and righteous administration of the law in this
country. He would now move for leave to bring in a
Bill to provide for appeal in criminal cases.
Mr. GODSON seconded the motion. This power was,
in fact, already possessed by those who could pay for it
in cases of misdemeanour. A criminal matter was con-
verted into a civil one by writ of certiorari. Surely, in
proportion to the weight of the punishment should be
their care in providing against injustice. He would, on
some future occasion, be able to adduce other arguments
in favour of the measure ; but he thought this was un-
answerable, namely, that the power was already pus-
sessed in criminal cases of another description.
Sir J. GRAHAM said that if a gentleman of lesser
eminence than the lion. and Learned Member who had
introduced this motion had made the proposition which
he had brought under their notice, and if that proposi-
tion had been made in a speech infinitely less able than
the one which they had had the pleasure of listening to,
he would not have .thoughtit eansistenCivith his duty to
resist the preliminary. motion for the introduction of a
Bill on this subject. The Honourable and Learned
Gentleman, with his long experience, had said that, in
his opinion, the cause of- justice and truth, and even of
mercy, required appeal in criminal cases. Now he had
listened with great attention to the speech which had
been made by the Hon. and Learned Gentleman, and
he had been struck with one reflection, that raised a
doubt in his mind with respect to the policy of this mea-
sure. The Hon. and Learned Gentleman observed, with
great truth, that the administration of justice in this
country had raised its character among the nations of
the world ; and he remarked also, at the same time,
that the utmost attention had been bestowed in efforts
to improve the administration of justice generally, and
especially of criminal justice. The Hon. and Learned
Gentleman had remarked, with truth, that this anomaly
—for he admitted it to be an.anomaly—of the absence
of appeal in criminal cases had existed for centuries,
and that, up to the present time, no law reformer bad
ever proposed that there should be the power of appeal
in criminal cases. Now he did not say that that fact
was decisive against the Hon. and Learned Gentleman's
proposal, but it should certainly inspire him with caution,
and prevent him from arriving at once at the conclusion
which lie had so positively pronounced. Now, he thought
the defence of the proposition made by the Hon. and
Learned Gentleman mainly rested on an analogy which
he stated was established between civil and criminal
jurisdiction with reference to appeals. Ho must say that
to an unlearned mind that analogy did not appear
perfect. He thought he could see a great difference be-
tween civil and criminal cases. Not waving for one in-
stant the question of justice, but coincident with the
question of
.justice. he thought the prominent considera-
tion was, what course in this matter was most conducive
to the public good. In civil cases it was a matter of com-
parative indifference to the public whether or not con-
siderable delay should intervene before the settlement of
a suit. That could not be said, however, of criminal
cases. He conceived that it was then of the last. im-
portance to the public that punishment should follow
quickly upon crime. The object of punishment was
example ; public example was the real and
only legitimate object of punishment, and -punish-
ment, as related to the public, lost its efficacy
if it were long delayed after the perpetration of the
crime. Now the Hon. and Learned Gentleman said he
was satisfied that frequent errors were committed in cri-
minal cases. Tribunals were fallible, and he feared that
some errors had been committed ; but the conclusion to
which he had come was the opposite of that at which the
Hon. and Learned Gentleman stated he had arrived.
Although justice,in criminal cases did occasionally mis-
carry, he believed that crime rarely escaped, and inno-
cence rarely suffered. It must not be forgotten that the
appeal sought to be established by the Hon. and Learned
Gentleman was in the nature of a double appeal. He could
well understand the arguments in favour of appeal
in matters of law, because the decision was pronounced
by a single judge ; but the verdict of a jury on a mat-
er of fact was easily and naturally distinguishable from
he fiat of a single judge upon a matter of law. Upon
,he matter of fact there was the concurrence of twelve

impartial men, sworn to do justice, and aided by the
learning and experience of the judge. Many arguments
appeared to him applicable to an appeal front the dictum
of a single judge on a point of law, which would alto-
gether fail when applied to the jury. sow, some of the
remedies applied by the Hon. and Learned Gentleman
appeared to him altogether inconsistent with the argu-
ments which be had used. If he understood the Ho-
nourable and Learned Gentleman rightly, he was
willing to depend still on the discretion of the judge.
He was sorry that so important a subject was discussed
in so thin a House, and he took shame to himself that

he was not now prepared to go into a discussion of the
whole question. But there was a very important part
of the subject to which the Hon. and Learned Gentle-
man had not adverted—the constitution of the appellate
tribunal. He thought that where truth and Justice
were concerned, expense was not to be considered. How
was the appellate tribunal to he formed ? The present
number of judges was not sufficient and
to increase
and it was not, in
his
Government
Graham's)
gone as far as it could go in
' e
s) opinion,
that number beyond fifteen. He thought that the Exe-
cutive (Sir
Jamesgiving its assent to the bringing in of the Bill. The llon.
and Learned Member had referred to the case of a
murder, committed in Surrey nine years ago, respecting
which a soldier in India had declared himself to be the
guilty person. It was, however, to be borne in mind
that soldiers abroad had sometimes strong inducements
to take extraordinary steps to be brought home, and
that men had frequently charged themselves as guilty of
crimes which they had never committed for the sake
of returning home. He would not oppose the motion for
bringing in the Bill, but he must say that it required
more consideration than he had yet been able to give it,
before he could pledge her Majesty's Government to
support it.
After a few words from Mr. KELLY, leave was given
to bring in the Bill.
STATE OF GAOLS.
Mr. MACKINNON postponed till Tuesday next his
motion fur a Select Committee to inquire into the state
of gaols.
POOR-LAWS—GILBERT'S ACT. _ _

On the motion of Sir JiMESGRAHAM, the fol-
lowing gentlemen were appointed a Select Committee
to inquire into the state of those parishes which are
under the operation of what is called Gilbert's Act:—
Mr. Barneby. Captain Pechell, Mr. Thomas S. Dun-
combe, Sir R. Heron, Mr. Colvile, Sir Wm. Heathcote,
Mr. Beckett Denison, M. Wrightson, Viscount Bar-
rington, Mr. Manners Sutton, Mr. Strutt, Viscount
Marsham, Mr. Labouchere, Mr. Wakley, and Mr. Pro-
theroe.
Captain PECHELL observed that the people under
Gilbert's Act were comparatively happy, and he hoped
that it was not the object, and would mot be the result, of
the Committee to bring them all under the control of the
Poor-law Commissioners.
Sir JAMES GRAHAM said it was impossible for
him to say what the course to be taken by the Govern-
ment would be until they received the report of the Com-
mittee.
Sir WALTER JAMES gave notice that he would
withdraw, for the present session, his motion on the
subject ofpoor-laws.
DISCHARGED PRISONERS.

Mr. HAWESZtained leave to bring in a Bill for the
formation of county asylums for the reception of desti-
tute persons released from prison.
SUPPLY—CANADA.
On the reading of the order of the day for bringing
up the report of the Committee of Supply,
Mr. ROEBUCK said that he had to call the attention
of the House to a very important subject, and it was not
his fault that there was so small a number of Members
present. He wished to warn the Noble Lord opposite of
the consequences of the policy which the Government
had pursued in reference to the most important of our
American possessions. In order to overcome what had
been supposed to be the French interest in Canada, a
law was passed for the union of the two provinces.
Under that law the French Canadians had been used
with the utmost rigour—a rigour that was alike discre-
ditable to the Government and those who represented it.
The rock upon which the Noble Lord opposite had split
was American democracy, which was now most potent.
The only chance now was to deal with the French Ca-
nadians kindly. He would show that the Government was
in the hands of those who were not aware of the
effect of what was about to be done; they had miscon-
ceived their position, and did not understand the task
they had to perform. After the House had determined
to unite the two provinces it was necessary to carry that
project into effect. In order that the House might un-
derstand the subject he was about to bring under its
attention, he must enter a little into the history of the
country at that time. Lord Durham went out to that
country in consequence of the report of a Committee
containing what had been demanded by both colonies
for the last twenty years. Then came Lord Sydenham,
with whose acts be could not agree. The course pur-
sued by that Noble Lord showed that the whole
of the union of the two Canadas was based on fraud,
and was calculated and had led to great injustice
to the Canadians, especially the French Canadians. In
their elections the polling places were, by orders from
the highest authority, placed at such distances from each
other, as to render it impossible for many to poll ; in
short, the coarse that had been pursued justified the

hostility of the French population to the union. But I
not content with fraud, Lord Sylenbam imported into
_the elections vhl•rice and corruption. That violence,
corruption, and fraud, could be clearly shown by the
agents of the Noble Lord, and especially one man, whom
he had brought over from Ireland. Lord Syclenham was •
now no longer Governor of Canada, he was dead—he
died at the very moment that would save his reputation,
because the proceedings of which he had been
,guilty would have been made clear and brought
to light.—(Hear.) Sir Charles Begot was then
appointed Governor, and then came a change in the Ad-
ministration of the affairs of the country which he would.
call to the attention of the House. Sir Charles Begot,
adopting a resolution of the House of Assembly, declared
he would govern Canada upon the provisions of that
resolution, and that the people should hare a respon-
sible governm..nt. Sir Charles Bagot acting upon the
resolution, selected from the House of Assembly persons
having their confidence for his Executive Council, deter-
mining at the same time that his course as regarded the in-
ternal policy of the" country should be regulated by the
advice of the Executive Council. Those individuals had
shown themselves the unflinching friends of Canada.
It was astonishing to see how the people of Canada re-
joiced -at the establishment of the new government ;
they had been hitherto hunted by the soldiery,
their property destroyed, and their wives and
children either murdered, or turned out to
suffer the inclemency of a Canadian winter.
Yet the very persons who had seen all this misery, when
sickness fell upon the Governor, and he was in pain and
danger of death, put up a sincere and ardent prayer to
God for his recovery. These were the much calumniated
French Cinadians. At length Sir Charles Bagot died,
and was succeeded by Sir Charles Metcalfe. The edam-
_

tion of Sir Charles ketcalfe was unfortunately far from
fitting him for a system of representative government.
flowevar learned he might be, however well accustomed
he might be to the management of men, he was not well
calculated to preside over a representative system of go-
vernment. lie did not take the view of affairs that Sir
Charles Bagot had done. By a representative govern-
ment, Sir Charles Bagot meant what he had already de-
scribed. Sir Charles Metcalfe said he meant something
else. But from that hour to the present he had never
explained what it was he did mean. He said he intended
to govern in a responsible manner, but he had never
take❑ the trouble to explain in what that responsibility
consisted. But before he went into this, he would call

the attention of the House to an extract from the pub-
lished life of Lord Sydenham, for it was right that the
Noble Lord should know what power the subordinates
of .his own office possessed. Mr. Murdoch, stating
the events that took place after the death of
Lord Sydenham, and, in commenting on them,
remarks :—" No one at all aware of what

has, passed, and is still passing there, can doubt
that by this appointment the Home Government
has' incurred a fearful responsibility, and their embar-
rassments have now accumulated to such a degree as to
threaten a recurrence of the events of 1839." Now he

wanted to know if that was the Noble Lord's opinion—
whether he thought that Sir Charles Bagot took a wrong
view of responsible government. He was anxious that
he should declare in face of the House of Commons,
what he understood by this somewhat mystical phrase-
ology. He also begged to call the attention of the House
and of the Noble Lord, to what was the state of the Bri-
tish colonist when he went to Canada, if he had not that
which he (Ur. Roebuck) required for him—responsible
government. They must recollect, that every English-
man, leaving England and going to Canada, had all the
objects of ambition here entirely cut off from him—all he
could expect in that country was the sort of advancement
which the local government could afford; and he wished
the Noble Lord to bear in mind what country the
colonist would compare Canada with. A ri-
ver, only divided him from America, where the
government, the army, and the navy, were
all , open to him. He would say, " Were lan American
citizen there is nothing at which I could not aim—no
object of ambition I might not hope for ; but here I am
crippled in a colonial settlement, subjected to an irre-
sponsible Governor, who has the supreme control. I
have no representatives who I can hope will sympathise
with me. I am, in reality, the mere offspring of colonial
sufferance—the mere wretched dependent of colonial
dominion." That was the sort of comparison he would
make ; and if they confined him to that interpretation
of responsible government, he asked them, taking warning
by what had passed, and looking with the eye of states-
men to the future, what would be the effect of such com-
parisons made by the English colonists with their inde-
pendent neighbours on the other side of the St. Lawrence?
If men had gained the confidence of their fellow-citizens
they ought to enjoy the privileges that confidence gained
for them; and he asked which system was to be followed,
—that of ruling by means of the Governor, or a complete
system of administration, leading on the people step by
step, and accustoming them day by day to that system
of self-government which would make them friendly to
the connection, or lead eventually to to a cordial sepa-
ration from the mother country, instead of a hostile one?
Sir Charles Metcalfe came into power, and pursued a
course of policy at variance with the opinion of the peo-
ple and the Legislature. In appointments affecting the
polity of the colony he never consulted them, and this
was especially seen in the appointment of the Speaker to
the Upper House of Legislature. That appointment was
offered to one of their bitterest opponents. He should
like to see how the Right Honourable Baronet at the
head of her Majesty's Government would look if he was
told that Lord Cottenham had been appointed Speaker
of the House of Lords. The cases were quite parallel,
and it was perfectly fair to make the comparison:. When
remonstrated with, the answer of Sir C. Metcalfe was
that he still intended to pursue that policy, and he said
he would not surrender the prerogatives of the Crown.
That was the very question in dispute. The minister:

of the cnlony immediately said if such were the views o
the Governor, they could not any longer act as his
ministers, and therefore begged to resign their offices.
Sir Charles Metcalfe accepted their resignations, and
from that to the present the country had been without
an administration. There was a Governor, but there
was nothing else ; there was nominally a President of
the Council—an individual for whom he had the highest
respect, a gentleman who had suffered most bitterly
under the Government, who bad been imprisoned with-
out cause, and released without inquiry, but who, in his
old age, wishing to conciliate all parties, consented to
act as President. But he would not accept the office—
he had taken no oath, and therefore was not actually the
President of the Council at all. Another individual,
Mr. Daly, was in office before these differences, and he
stuck to his office still. But the Receiver-General, the
Chief Commissioner of the Crown Land=, the At-
torney-General and the Solicitor-General of Upper
Canada, the Attorney-General of Lower Ca •
nada, and the Inspector-general of Accounts had
all retired. Of the three individuals who still acted
in an official capacity not one was responsible. At the
present moment the Receiver-General did not exist—the
duties of the office were performed by a chief clerk, who
gave no securities. What made him bring this state of
things under the consideration of the House was, that it
afforded an irrefragible proof that the Governor had
utterly failed in all his attempts to form an administra-
tion. The local law of election had settled this point.
At the end of the present year, when the Parliament
would necessarily cease to exist, they would have to go
to a fresh election, and the majority against them would
be larger than it was at present. The Government
would then have arrived at that happy consummation
which was prophesied at the time they brought in their
precious Bill. They had formed one united Parliament,
which was now so powerful that they could not
hope to oppose it. They could not succeed in
sowing disunion among the people. They could only do
one of two things, however painful, must be the alterna-
tive—they must either yield to the desires of the people,
or they must govern them by the bayonet. At the pre-
sent moment Sir Charles Metcalfe was the sole governor
of that country. Now, he would ask if that was a state
of things which the Noble Lord contemplated as a con-
tinuance? He wanted to know if that was the Noble
Lord's construction of responsible government? Was
it one of responsibility to the Home Government alone,
or a Government to be chosen out of those who had the
confidence of the people? There was no medium—it
must either mean government through Sir Charles Met-
calfe, or a responsible administration ; it could not be
described as a sort of hybrid, which meant neither one
nor other. All through Canada at the present moment
the people were animated by the same spirit. There was
no middle- course for the Government to take; and, if
they attempted to do so, they would only bring upon
the people direful misery. Ever since the resignation of
the Canadian Ministry in November, 1843, Sir Charles
Metcalfe had been unable to select a single per-
son for any responsible situation in that coun-
try. He was not able to call the Parliament together,
because he knew what would be the consequence of doing
so. And the English party would be found just as Ca-
nadian in feeling as the French, and just as strongly
calling for a responsible Government. Nay, of the two
they, would find theirmost formidable opponents among
the democrats of Upper Canada. It was the rough de-
mocrat of Upper Canada who would be found the greatest
opponent of England, while they had lost the friendship
which they might have secured from the quiet and sub-
missive,andlar more polished inhabitants of LovverCanada.
But to return to the local management of the colony. A
British North American Bank had been established
during the administration of Lord Sydenham by charter,
which was made a bank of issue in Canada. The
Canadians refused to listen to Lord Sydenham's plan,
and they passed a resolution in the House of Assembly,
protesting against the charter, and interference in their
internal affairs. Then a North American Colonisation
Company was established by Act of Parliament, for the
purpose of acquiring land in Canada. He (Mr. Roe-
buck) had been informed that advantage had been pur-
posely taken of his absence to pass the Bill, that it
might not come to his knowledge. Now they required,
and it was rational, that no Bill shoUld be passed by this
Parliament without due notice being given to the
colony. All of those things went to exasperate the
people of Canada. They were now about to impose a
permanent civil list on the colony. This would be a
cause of discontent and quarrel. The colonists claimed
the power of taxing themselves, and appropriating.those
taxes as they pleased. They were now on the brink of
another quarrel. What he asked on the part of the
colonists was simply this, that they should be allowed_
to govern themselves as far as related to their internal
policy ; but that when anything arose which concerned
both - this country and Canada, that thein-
terests of this country should bind the colony.
What was the objection to that ? What had they
gained by interference with the people in their local
affairs and municipal concerns ? If they denied the
people of Canada the right of governing themselves,
they would either make them separate themselves into a
democratic republic or add to the desire of uniting with
the States of America. No person who looked to that
grasping republic could for a moment doubt that it was
her desire to penetrate to the Pacific through Texas, and
sweeping round the Oregon, to include Canada within
the union. When America had accomplished this,
France or Russia need no longer trouble them, America

would be their most dangerous rival, for she would have
the will and the power, and the opportunity of meeting
them_in other parts of the gloi-e. They should .gain the
good will of the people of Canada, and not exasperate
them. Let them not turn any ill-feelings that might
exist at present into bitterness and gall. He begged of
the Noble Lord to look to this. Let him be their good
governor, and he would make the people of Canada
attached to this Government.

Lord STANLEY said he certainly anticipated that
the statement of the Hon. and Learned Gentleman would

be followed by some specific motion, on which the sense
of the House would be expressed. The importance of
the question and of the principle involved in it, 'and of
its bearings on the future possible relations between this
country and Canada. could not be over estimated. He
had no reason to complain of the tone and manner of the
Hon. and Learned Gentleman, or of any wantoffrank-

ness or candour in the mode in which he stated his own
view. His objection was to the principle as laid down
broadly by the Hon. and Learned Gentleman, in which
he stated, that if they wished to avoid American demo-
cracy they must introduce the principle of 'self-govern-
ment. His objection to that, which would draw a dis-
tinction between what the Hon. and Learned Gentleman
called the Government at home and the Government
abroad, was simply this, that however true the principle
might be with regard to an independent republic, it was
inconsistent with the existence of monarchical govern-
ment, and with the relations between a colony and the
mother country. Admitting to the fullest extent
the importance of that upon which 'the Ho-
nourable and Learned Member laid so much stress,
of treating the people of Canada with kindness, of using
no exasperating language towards them, and of confiding
the administration of local affairs to the friends of the
people, he was yet prepared, on the part of her Majesty's
Government, to express their unhesitating and cordial
approval of the course pursued by Sir Charles Metcalfe,
on the two matters made the ground of accusation
against him. What were those two points ? They were
not left to conjecture on the subject, for the
,Governor-
General stated publicly, and he was uncontradicted by
he mouth of one of those who adhered to the Govern.
ment, in opposition to the Executive Council, that the
ground of resignation 'vas this, that persons came, on
the part of the Council, with those demands—that he
(the Governor) should consent to make no agreement
without the advice of the Council—that the list of can-

didates should be laid before them—that they should
have the power of recommending others—and that the
Governor-General should make no appointments preju-
dicial to their interests. This was one ground ; the other
was that the patronage of the Crown should be'given to
the Council for Parliamentary support. They wanted,
that the Governor-General should bind himself to this
by an instrument, under his hand and seal. Sir C.
Metealfe• rejected those propositions, and he was right.
—(Hear.) The Hon. and Learned Gentleman made no
distinction between the Governor of a province and the
Sovereign. Admitting that there was an analogy, he
would say that these demands were such as no constitu-
tional Minister ever made. But he denied the analogy.
The constitution of Canada might be formed upon the
model of the British Constitution ; but it was impossible
to give it the life and energy of the British Constitution.
Now what was the British Constitution ? What were
the functions of the Sovereign ? It was this, that the
Sovereign was irresponsible for his acts, and that the
responsibility centred in the confidential advisers of the
Sovereign. They were responsible to Parliament and
the people for they advice they gave the Sovereign. But
though they existed by the will of the Sovereign, he
admitted that no Minister could long:hold the reins of
power who did not possess the confidence of the popular
branch of the Legislature. But the Crown not being
responsible personally, exercised no political powers,
and the exercise of political powers without responsibility
would not be more dangerous to the liberties of
a country than the exercise of a responsibility
without power would be absurd and ridiculous.
This theory was well understood, and practically fol-
lowed. Every Minister, in making recommendations to
the Crown, except where urgent necessity demanded
otherwise, always considered it his duty to pay defer-
ence to the personal wishes of the Sovereign ; and, on the
other hand, the Sovereign, in sanctioning such recom-
mendations, often sacrificed personal considerations to
public advantage. In this country the Crown was here-
ditary, and the people were attached to the Crown and
to its functions from a principle of loyalty. The here-
ditary peerage exercised no unimportant influence
directly through the House of Lords as a branch of the
Parliament, but they also exercised an influence over pub-
lic opinion through their rank and station, their wealth,
their territorial possessions, and hereditary titles, which
gave to the peerage of the country 'an influence, each in
a separate locality. Now, compare this with Canada.
There was there a House of Representatives, fairly
chosen by the people ; but where was there anything
corresponding to the House of Lords ? They found a
Council thr:re possessed of some functions, but they had
no rank nor station. They had no territorial or here-
ditary claim to influence, and they held their offices
from the Crown only during life. There the Governor-
General only exercised a delegated authority, having
an income which was only moderate for a country gen-
tleman in this country. He was personally a stranger to
a country the Government of which he administered.
He had no means of personal influence, and on his first
arrival he had no personal connexions. Such a state of
things, where a Governor was compelled to act, in every
respect stripped of all real power and authority—subject
to act under the control of whoever were the ruling
party—would constitute in Canada that which, but for
the influence of the Crown, and but for the influence of
the Peerage, would be the result in this country, if a ne-
cessity was imposed on the Prime Minister of this coun-
try to possess alone the confidence of the House of Com-
mons, a republican and not a monarchical government.
Such a state of things was inconsistent with monarchical
government, and it was inconsistent with colonial depen-
dence also. It was overlooking the distinction which
must exist between an independent country and a co-
lony subject to the mother country. The Hon. and
Learned Gentleman might wish that Canada should
shake off her dependence, but let him say so. The:argu-
ments which he used, if pushed to their legitimate
extent, would lead to the independence of the colony.
The system proposed by the Hon. Gentleman was incon-
sistent with the opinions which had been propounded
by every British Colonial authority who had ever en •
tered upon the question of responsible government in
the colonies. The Hon. Gentleman had traced the his-
tory of the Constitution of Canada from the period when
Lord Durham
-had made his report down to the present
_ _

time. He had looked carefully through Lord Du-rham's
report respecting the principles of responsible govern-
ments ; but although he found there many principles
propounded, of which he did not approve, he did not find
that Lord Durham had anywhere recommended that
species of responsible government which had been pro-
pounded by the Hon. Gentleman. Undoubtedly Lord
Durham recommended that:all officers except the Gover-
nor, should beresponsible to the Legislature, and that the
responsibility to the Legislature should bo secured by all
the means known to the British Constitution; that the
Governor should carry on the Government by
means of the heads of parties in which the
Legislature reposed confidence.—(Hear.) Lord Durham
laid it down that the administration of the internal affairs
of Canada could not be carried on properly while the per-
sons administering those affairs held office nominally
during the pleasure of the Crown, but were really for
life, and were not changed with every change in the Go-
vernment. The internal Government of Canada, ac-
cording to Lord Durham, ought to be conducted b y
heads of departments, each answerable to the Legis-
lature for the conduct of Isis own department, and
that if such head of a department was no longer sup-
ported by the Legislature, that then he ought to re-
sign. To that principle, so limited, he had not heard
that, from the days of Lord Sydenham to those of Sir C.
Metcalfe, the slightest objection had ever been made.
In order that there might be no doubt as to the under.
standing of the Government of this country on the sub-
ject, at a later period than that of Lord Durham's mis-
sion to Canada—at the time when Lord Sydenham was
sent out to carry out Lord Durham's views—he would
quote from the dispatch which had been written by the
Noble Lord the Member for London to Lord Sydenham,
in which he stated what were the views which
the then Government entertained as to the sys-
tem under which the affairs of Canada were
to be administered.—(The Noble Lord here read
various extracts from the dispatch alluded to, in
which Lord Sydenham was recommended to refuse
any explanations which might be construed to imply any
acquiescence in the prayers of the petitions on the sub-
ject of responsible government ; for, although it did not
appear that the petitioners attached any definite meaning
to the term, yet its very vagueness might occasion much
future embarrassment, should anything like an acquies-
cence in their demands be hinted at. The dispatch then
went on to dilate on the difference in position of the
Executive Council in a colony, and that of the Minister
of the Crown in England. The power, for the exercise
of which the Minister was responsible, was not his own
power ; it was the power of the Crown ; and, to show
the inconvenience of the Governor of Canada acting
always solely by the advice of the Executive Council,
the dispatch went on to suppose a case in which the
Executive Council had recommended the Governor to
pursue one course of conduct, which was at
.direct va-
riance with the instructions which he had received from
the Queen. If he obeyed the instructions from England
ho would be acting contrary to the principle that he was
to be guided in all things by the advice of the Executive
Council, and if he followed the advice of the Council,
he would cease to be a responsible officer of the
independent Crown, and would bo in fact an independentsovereign.)
He (Lord Stanley) concurred entirely in the principles
laid down by the Noble Lord in that dispatch. But,
said the Hon. Gentleman, the theory of responsible co-
lonial government is not to interfere with the responsi-
bility to the local Legislature, where theinternal rela-
tions of the colony alone were concerned ; but to inter-
fere only in those questions which affected metropolitan
as well at local interests. But who was to draw the line
of distinction
.between these two subjects ? The Noble
Lord, in the dispatch from which he had been quoting,
answered, as if by anticipation, the question of the Hon.
Gentleman. Gentleman. He put a case in illustration, which was.
this—at the time that M. Papinean ruled the Assembly
of Lower Canada, it was his aim to discourage all
who did their duty to the Crown, and all those
who wished to introduce British population, British
habits, or British customs into Lower Canada. It would
have been impossible for a Ministry in the Parliament
of the United Kingdom to justify the measures
of a Papineau Ministry in the colony. British
officers punished for doing their duty—English mer-
chants pillaged—British emigrants oppressed—would
apply to Parliament for protection, and it would be im-
possible, if that principle were sanctioned, to prevent the
affairs of the colony falling into inextricable confusion.
The Noble Lord (J. Russell) went on to say that, while
he saw insuperable obstacles to the adoption of the prin-
ciple as stated, he saw none to the adoption of the prin-
ciple recommended by Lord Durham. The Queen's
Government, he said, had no desire to thwart the
Assembly of Canada, and he wished to give to talent