The Marquess of Westmeathhoped there would be no objection to postpone it. A noble and learned Earl was absent on account of indisposition, who, he knew, was anxious to offer some observations upon the measure. He himself had some very strong objections to it.
The Lord Chancellorsaw no reason why their Lordships should postpone the second reading. It could not be the absence of the noble and learned Earl, who, if he (the 142 Lord Chancellor) were not very much mistaken, was in favour of the Bill. The only object that could be gained by the present postponement would be delay, and of that there had been more than enough already. This Bill had been passed through their Lordships' House last Session, and was sent down to the Commons, where it was stopped only by the prorogation of Parliament. He did hope that no further impediment might now be opposed to its progress. It was a Bill which had for its object to do away with that privilege by which about 1,100 persons. Members of both Houses of Parliament, might set the authority of Ecclesiastical Courts at defiance; so far, at least, as obedience to their monitions or citations was concerned. Thus, for instance, suppose a man died, leaving by will a charge of 10,000l. on his estate, in favour of his second son—the will was in the pocket of the eldest son, who might not like to produce such an evidence of a charge on his estate, and, if he were a Member of Parliament, he might laugh at any monition or citation to produce it. There were many other cases in which a privileged person might, with impunity, set the authority of the Ecclesiastical courts at defiance, and defeat for a time the ends of justice; but that which he had supposed, and which might happen, was enough to show the necessity of this Bill. There were other cases arising in questions of divorce and alimony which would equally prove its necessity. Under these circumstances, their Lordships would admit that, unless some strong ground were made out (which he could not expect, and for the simple reason that he did not believe it possible to make out such a case), to show why the Bill should not pass, no further delay ought to take place to prevent the second reading of the Bill, which he now moved.
The Marquess of Westmeathsaid, that the argument of the Ecclesiastical Commission having recommended the Bill amounted to nothing, because the noble and learned Lord had brought it in on a former occasion before that recommendation was given. The noble and learned Lord said, that the Bill was dropped in the House of Commons in consequence of the prorogation. Now, on that point, he supposed his word was as good as the noble and learned Lord's, and he asserted that it was dropped because it was threatened that if the Bill were proceeded with, an exposure would be made of all the circumstances connected with it. The noble and learned Lord might not know that; but it was the fact. He would 143 not shrink from entering into the circumstances of the case, if the noble and learned Lord courted investigation. He wished to know, why the noble Lord did not enter into an explanation similar to that with which the Bill that affected Members of Parliament was accompanied.
The Marquess of Westmeathsaid, that he did not recollect it, and his memory was usually tolerably acurate. He (the Marquess of Westmeath) had not opposed the Bill in that House, but he knew that it was brought in for the mere purpose of oppressing and persecuting him. This he could prove. The report of the Ecclesiastical Commissioners had recommended certain improvements in the practice in the civil law Courts, and particularly that the examination of witnesses should be conducted publicly, instead of, as at present, in a private room. It would have been better if the noble and learned Lord had brought in a bill which would have comprised all these points, instead of a partial measure, directed to only an isolated part of the subject. It could not be said, that the Lord Chancellor of England, who possessed so many offices and instruments to carry his intentions into execution, could not find time to effect the objects recommended by the Commissioners. The noble and learned Lord, with his well-known activity, might, if he had pleased, have brought forward a complete measure, and if he had done so, what man would have had the face to stand up in the House and oppose it? He had made every effort which it was in the power of man to exert to avoid this discussion. He called upon the noble and learned Lord to declare, whether that was not the fact. He would now proceed to state the grounds upon which he conceived that, quoad himself, this Bill was an injury. In April last he had occasion to see the noble Lord, who then contemplated the introduction of some such measure as that before the House. At that time he happened to be in contempt to the Ecclesiastical Courts, on account of a small sum of 200l. He had intended to avail himself of his privilege of Parliament, on account of the unhappy affairs in which he was involved. At the interview to which he had referred, the noble and learned Lord told him that he had better comply with the order of the Court, otherwise he would be shopped; and he explained that a bill to abridge the personal liberty of Members of Parliament would be introduced, not by himself, but some other 144 noble Lord. The noble and learned Lord suggested, that the question should be submitted to arbitration. He told the noble and learned Lord, that when the case was heard before their Lordships he had consented to an arbitration, and it was not his fault, but owing to the persevering determination of the other party, that it had not been carried into effect. He did not see the noble see learned Lord again till the 29th of August last year, when Lord Lyndhurst and the Earl of Eldon delivered judgment in the case, and, in the interim, he had not the honour of hearing from the noble and learned Lord. Subsequently to that period, the noble and learned Lord sent him a communication, in which he expressed a hope that he (the Marquess of Westmeath) would comply with the decree of the Court, in order to prevent the necessity of having a retrospective clause inserted in the bill.
The Marquess of Westmeathsaid, that he would read a passage from the noble and learned Lord's letter. The noble and learned Lord said, 'I wish you would settle the matter in dispute, in order to prevent it from being mentioned in debate. I must give your case as a ground for the measure, therefore I wish you to comply with the sentence. It cannot be endured that anyone should set the power of the law at defiance. I know you will not think of doing so, and therefore no retrospective clause will be wanted.' The noble and learned Lord was well acquainted with his case. He knew that some years ago it was the subject of arbitration before Mr. Phillips, now Under Secretary of State, nominated by him and a person of eminence at the Bar, on which occasion the evidence of his witnesses was so clear, that the arbiters desired the opposing party to withdraw. The circumstances of the case must be fresh in the noble and learned Lord's recollection, and he was well aware that he had done every thing in his power to prevent the transaction from being dragged before the public. He had spoken of only one part of the subject, but he could prove at the Bar that the present Bill was actually drawn up by the solicitor of the party who is to be relieved by its passing. In one of the first communications with the noble and learned Lord, he (the Lord Chancellor) stated that the measure must proceed with breathless haste. He should like to know why, after that, the Bill was allowed to stand over for a fortnight before it was printed. He should very much wish to see the draught of the 145 Bill which was originally brought into the House. Was ever such a thing heard of as a solicitor bringing in an Act of Parliament in order to obtain money for himself? He had been placed in a most cruel situation by the proceedings in the Civil Courts. The most abominable charges had been made against him, which could not be examined into without sending a commission into North Wales. He brought over a shipload of witnesses, and maintained them at an enormous expense; and, upon investigation, he was acquitted, and his character cleared, but not a single sixpence of the vast sums which he had expended in costs would ever be repaid to him. Was this just? The noble and learned Lord might treat these matters with scorn—be treated men as mere units—as things here to-day and gone to-morrow—and, perhaps, he thought that a defenceless man could be more easily trodden under foot. He (the Marquess of Westmeath), however, would not shrink from the noble Lord's attack. He had been roused—goaded—into an explanation, and he would not sit down until he had made his charges good. He objected to the retrospective clause which the noble and learned Lord in his letter said that he would withdraw. Was there in the history of jurisprudence anything so monstrous known as the passing of a Bill to give a Court of law a retrospective power? The noble and learned Lord had already decided on his cause in the Court of Chancery according to the law as it now stood, and this Bill was to give him the power to sit again, and give a different decision on the same cause. This was such an instance as he had never heard of before. There had been a bill lately introduced to assimilate the practice of the Courts of Chancery in England and Ireland. No such principle as appeared in this Bill, however, had been introduced into the bill he referred to, and he did think it was a principle perfectly novel in legislation. In the proceedings against him no costs had been awarded in any Court of Law, or in the Court of Chancery, and yet here was a Bill brought in to make an award against him. Perhaps it might not be considered as bearing on the case, if he referred to the state of his fortune. He might state, however, that he had lost nearly one-third of his disposable income, in consequence of the measures which the noble Lord's Administration had adopted in Ireland. The noble and learned Lord might have shown a little mercy therefore, and contented himself without bringing in a Bill against him. Having 146 made these remarks, he should only say that he would leave it to the noble and learned Lord to pass his Bill now as he could.
The Lord Chancellorcould not say he was surprised at the statement which their Lordships had heard from the noble Marquess, but he was surprised that any person should assume, as the noble Marquess seemed to do, that a general measure affecting all other persons as well as himself, was intended merely to meet his particular case. The noble Marquess really founded his complaint upon a mere quibble; and, in order to make out his case, thought fit to refer to a private letter.
The Lord Chancellorcontinued: he had no objection to the noble Marquess's reading any letter which he had ever written, whether it was marked private or not, though he had yet to learn that a letter not being marked private, when addressed by one Peer to another, or by a Counsel to a client, which was the character in which he had first the honour of making the noble Marquess's acquaintance—he had yet to learn, he said, that the omission of the word private, necessarily made a letter public which had reference only to a private matter. Be that as it might, he left it entirely to the noble Marquess to judge as to the propriety of making the letter public. Now, as to the statement that he had informed the noble Marquess that his case must be stated in the House, the fact was, that he bad attended to the case, though without mentioning the noble Marquess's name. The case of the noble Marquess was the first which caused the flaw to be discovered in the 53rd George 3rd; it was his case which pointed out the necessity for the Bill; but his case was a very' small part of this great and important measure. Now, it was quite impossible, he thought, for any man who bad heard his letters read, not to say that he had given the noble Marquess as friendly, and (though he said it himself) as judicious, advice as he could give him, when he recommended the noble Marquess to avoid needless discussion in that House, after the discussion which had taken place in the Courts below. The noble Marquess talked of the judgment of Courts being in his favour. The judgment of Sir John Nicholl was certainly against the noble Marquess, and so was the judgment of the High Court of Delegates, when the noble Marquess appealed from Sir John Nicholl's judgment. If his memory did not 147 deceive him, the noble Marquess also applied for a Commission of Review, and it was refused. Of that he was not certain, but he was quite certain that the other two judgments were awarded against him. The noble Marquess complained that costs were awarded against him in the Ecclesiastical Court and in the High Court of Delegates. By the law, as it was administered in those Courts, and according to the uniform practice, there could have been no other result. The noble Marquess could not have had costs even if he had succeeded, much less when the judgment was against him. When the parties in a cause were unfortunately husband and wife, the husband must pay all the costs, because it was supposed the wife could have no separate funds. Up to a certain point, therefore, in suits of that nature, the husband had the misfortune to be saddled with the costs of both parties. Doubtless, the noble Marquess thought himself right, and the other party to the suit thought him wrong; into that, however, he would not enter. The Court which gave judgment against the noble Marquess might be right or wrong. He was bound to presume it was right, but it might possibly be wrong, With that neither he nor their Lordships had now anything to do. He gave no opinion whatever on the merits of the case. Without any great want of charity, he should be rather disposed to conclude that neither of the parties were free from blame; but be that as it might, it was quite immaterial to the merits of the Bill. The only question was, whether or not the decrees of the Ecclesiastical Courts should be executed against persons having privilege of Parliament. It clearly appeared as the law now stood, that the Ecclesiastical Courts had no power to compel the noble Marquis to pay one shilling of costs. Though his contempt was undeniable yet he and all persons similarly situated—all persons having privilege of Parliament might laugh at the decrees of those Courts. The necessity of that haste to which the noble Marquess alluded arose from this, that after the flaw was discovered every one who could benefit by it might endeavour to do so, taking advantage of the flaw. He knew cases in which the grossest injustice had been done, and was doing at that moment, from the want of such a law as this Bill would supply. The noble Marquis had stated that the Bill was drawn up by the solicitor of the party opposed to him. Now, it often happened that a Bill was drawn up by a party whose experience showed them the necessity of an amendment 148 of the law. That was the way in which many Bills originated, but it so happened that on the day he (the Lord Chancellor) pronounced judgment in the noble Marques's case, he stated that the defect of the law being discovered, it was his fixed and firm intention to call upon the Legislature to remedy it. That was his declared and publicly announced intention. The Bill was not framed by any Solicitor, however; it was framed by persons having more learning, skill, and experience than could be reasonably ascribed to any Solicitor; and, he might add, that it was framed upon great deliberation, and had been altered after it was first framed. With respect to the retrospective clause, as the noble Marquess called it, it was the grossest abuse of language to say there was any retrospective clause in the Bill. There was no retrospective clause; but there was a clause to which the noble Marquess probably alluded, enacting that process should not issue upon judgments of more than six years' standing. A person who was in possession of a judgment proceeded to make his demand, founded on that judgment, by means of a process of the Court. It was setting at nought that process of the Court which was the contempt, and all that the clause did, was to limit the process from issuing after the judgment had been held for six years. There was nothing retrospective therefore, in the clause. Past contempts were not affected by it. The Noble Marquess would not be affected by it, unless he committed a new contempt. Any one who had heard the statement of the noble Marquess might have supposed that the Bill was limited to that class of cases in which the noble Marquess had been a party. It was a general measure, however, including all persons in Great Britain and Ireland, rendering the processes of the Ecclesiastical Courts in the two countries mutually interchangeable, and rendering the processes of the different Diocesan Court in this country also mutually interchangeable. The only question involved in the Bill was, whether the privileges of Parliament should secure a man's property against the decrees of the Ecclesiastical Courts. The Bill gave a remedy against the property as well as the person. In Courts of Equity and the Common Law Courts, a man's estate as well as his person was liable, and the Bill gave the same power to Ecclesiastical Courts. As the law now stood, a person having privilege might laugh to scorn the decrees of these Courts, and any man might do so if he could get his person out of the way, 149 Under these circumstances their Lordships could not wonder that he should say, he never was more surprised than when he had heard the noble Marquess represent this as a personal measure, and as if it was brought forward with a view to meet only the noble Marquess's case. There were, in point of fact, Members of the other House of Parliament precisely in the same situation as the noble Marquess. They could not now be touched by any process of the Ecclesiastical Courts, being shielded by their privilege, and would have precisely the same reason to complain which the noble Marquess had.
The Marquess of Westmeathsaid, he should be as unwilling to publish a private communication as the noble and learned Lord, or any other noble Lord; but the letters he had read were written to him on a public subject—as an admonition to him, cautioning that he would be exposed in that House—and he had no right to look upon them in the light of private letters. One or two of his most important statements the noble and learned Lord had admitted. He admitted that the Bill was drawn up by the solicitor of the opposite party.
The Marquess of Westmeaththought it was admitted. However, there was a retrospective clause. The Bill would be eternally retrospective if it were not for the clause to which he alluded—it would go back to the flood; but the clause limited the retrospective operation to six years. He believed there was no precedent for such a clause, and he understood that a noble and learned Earl (the Earl of Eldon), who was not present, considered the clause objectionable.
The Lord Chancellorbegged to put their Lordships more distinctly in possession of the nature of that which the noble Marquess persisted in calling "a retrospective clause." It took away the benefit of issuing process upon judgment more than six years old. If it took away all the benefit of issuing process upon judgment, it was obvious that it must be a crying injustice.
The Marquess of Westmeaththought it a mere quibble to say that the clause was not retrospective in effect.
Lord Hollanddid not mean to give any opinion on the Bill, or on the noble Marquess's case, but it seemed quite clear to him that the clause was not retrospective, but quite the contrary, for it limited the retrospective operation of the Bill.
§ Bill read a second time.
150§ Upon the motion that the Bill should be committed on Monday,
The Marquess of Westmeathhoped it would not be committed until the noble and learned Earl to whom he had referred was present.
The Lord Chancellorregretted the absence of the noble and learned Earl, but could not consent to delay a measure of so much importance at so late a period of the Session. He had no reason to doubt that, the noble Earl had given his attendance to the Bill last Session.
The Marquess of Westmeathhoped it would be understood, that he did not oppose the Bill merely with reference to his own case. If the noble and learned Lord had brought in a bill carrying fully into effect the recommendations of the Commission, and introducing Trial by Jury into the Ecclesiastical Courts, it should have had his cordial support.
The Lord Chancelloragreed with the noble Marquess, that there was a great deal more to be done with reference to the Ecclesiastical Courts than was effected by the Bills now before Parliament; and he should hope, that the noble Marquess would give his support to the other measures, which it was intended to bring forward as speedily as possible. There were great difficulties in following up some of the recommendations of the Commissioners; and it was thought best to select the most obvious amendments in the first instance. Some further measures, however, would be introduced early in the next Session of Parliament.
§ Bill to be committed on Monday.