The Duke of Newcastlesaid, that with reference to the Bill which was to be brought under their Lordships' consideration to-morrow, he wished to call their attention to a matter which, in his opinion, well deserved their Lordships' and the noble Viscount's consideration. He entertained very strong doubt whether, if they were to proceed with this Bill, they should not be guilty of committing a gross violation of the King's prerogative. In his mind that was a most important consideration. It was conceded that the Commission was illegal; and if so, it would not be right to proceed to legislate upon evidence obtained under it. Now, if their Lordships desired to proceed in a legal way, he 1097 should propose to them a plan which he thought would have the effect of enabling them to do so. His proposition was, that they should agree to an Address to the King, praying his Majesty that he would be most graciously pleased to authorize his Attorney-General to introduce a Bill into the other House of Parliament, to constitute a regular Commission to inquire into Corporation abuses.
Lord Broughamwas certainly most surprised to hear it taken for granted—to hear it treated as a matter of course—that the Commission to inquire into the state of Municipal Corporations was illegal. The noble Duke had made a proposition upon the supposition that the Commission was illegal, now he (Lord Brougham) was prepared to show that it was strictly legal; that, in framing it he had the best and most approved precedents of a century and upwards as his guide; and though it was hardly proper to enter into these matters in a discussion across the Table, yet he coveted the opportunity of satisfying the noble Duke that the Commission was not only not illegal, but that it was free from all taint of illegality, and that on that subject it was not possible to entertain a doubt. Whether the power of the Commissioners extended to compel persons to give up papers, and to submit to examination, was a matter standing on a different footing, but the Commission was drawn up according to the best precedents, and the giving up papers and submitting to examination was vexata questio, and it was expedient, therefore, for such a purpose to have the authority and Act of Parliament rather than of the Crown. He was by no means disposed to say, that the Crown had the power to compel persons against their will to answer, or that persons who refused to answer would be committing an illegality; but he knew well enough that other Commissions had been issued of the same sort, and though persons were not compelled to answer, yet they did answer. It was the confounding of these two things together which had given rise to so many errors on the subject, as if because power were given to inquire, that it was, therefore, imperative to compel persons to submit to be examined. The first was strictly according to precedent, and the second rested on the same footing with former precedents, and was the same as the Commission which had been issued in 1098 1830, and issued under the authority of his noble and learned Friend, then holding the Great Seal, under the authority of the noble Duke then at the head of the Government, of the right hon. Baronet, who was, at that time, his colleague, and signed, as Attorney-General, by the noble and learned Lord, now the Chief Baron of the Exchequer—he meant the Commission for inquiring into the state of the Irish Church. In that Commission he had read the grant of the very same powers as those contained in the Municipal Corporation Commission—there was not the least difference between the two, and there was one inquiry there, certainly, just as delicate—(he stated this that his noble and learned Friend, and any noble Lord who doubted the legality of the first Commission, might look into the precedent which he gave them fair notice he should quote against them if the question of the legality of the last Commission should be agitated)—there was one inquiry, certainly, just as delicate, namely, first into the revenues of the Irish Church, and next—and this was the delicate inquiry— whether the existing Act of Parliament had been complied with which required Rectors, and Vicars, and Perpetual Curates to allow a sum certain to their Curates for the performance of their duty. That was an inquiry which, he had little doubt, they were not compelled to answer—they might say, "I will not tell you whether I have or not complied with the Act of Parliament, for if I have not I might subject myself to an indictment for not, doing so." But noble Lords could not possibly doubt that, whether answered or not, this was an inquiry as delicate as any intrusted to the Municipal Corporation Commissioners by the Commission to which he had the honour to affix the Great Seal. He was ready, therefore, to defend the granting of this Commission. But even if it were found to be illegal, and they were to legislate on it, the noble Duke said, that they would be acting illegally, of which he was by no means sure, for they might use illegal means to get at knowledge, but having got at it, they might legislate on that knowledge without their doing so being illegal too. But even if the Commission were illegal, and if it should be thought irregular for them to act on the knowledge obtained under it, he was quite clear that the remedy which his Grace had suggested was the last in the world that their Lord- 1099 ships would think of listening to. It was this, that this House was to be called on by way of curing the irregularity—by way of retracing the irregular step that had been taken, by way of putting themselves right in fact and in form, and by way of adhering to the strict letter of the law —this House was called upon, by whom, and to do what? Why, by him who complained of irregularity, to pray the King to desire his Attorney-General to bring a Bill into the other House of Parliament to do what is required. No legislative man ever before heard of such a proposition. What, call on an independent Member of the other House, the Representative of the city of Edinburgh, to bring into that other House such a Bill as their Lordships' House might think fit to require? It was worse than it was in Scotland with the Lords of the Articles; it had something of the character of the feudal Parliaments of Scotland; and it was this which their Lordships were gravely recommended to import here, and to say what should, and of course what should not, be brought before the other House of Parliament. Whatever might be the irregularities of the Commission, certainly no man ever before heard of such a remedy for them.
The Duke of Newcastlesaid, that if their Lordships did not deem his proposition a good one, of course they would not adopt it. He should state why the Commission was illegal. The King, as such, was the visitor of Corporations, and as such he might have a right to inquire into certain matters concerning them; but it was impossible for him to do anything that would lead to an alteration of their Charters, without the consent of the two Houses of Parliament.
§ Conversation dropped.