Lords Sitting of 2 September 1831

MINUTES.
Bill. Brought in by Lord PLUNKETT, for the better execution of Decrees and Orders made by the Courts of Chancery in England and Ireland respectively.
Petitions presented. By the Duke of RICHMOND, from certain Catholics in Ireland for an equalization of Civil Rights.

ECCLESIASTICAL COURTS AND PRIVILEGE OF PARLIAMENT.
The Lord Chancellorrose, pursuant to notice, to call the attention of the House to the subject of the Process of the Ecclesiastical Courts, as far as Members of Parliament were concerned, and to state the nature and object of a Bill which he was about to introduce relative to that subject. The Bill would have the effect of trenching, to a certain extent, on a privilege now en-
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joyed by their Lordships, and the Members of the other House of Parliament; but he was persuaded that it was a sort of privilege which both their Lordships and he Members of the other House would willingly waive. One part of the Bill went to equalise the ecclesiastical processes in this country and Ireland; but that was a matter of minor importance, and he would, therefore, proceed at once to explain to their Lordships that part of the Bill which was the most important. Their Lordships were aware, that one mode by which a creditor was enabled to recover his debt by common-law process was, by the arrest of the person of the debtor on mesne process, or in execution on a judgment. This was one mode by which the creditor was enabled to work out the payment of his debt, which was the object of the process of arrest. But their Lordships were also aware, that persons having privilege of Parliament, whether Members of this or the other House, and persons having the privilege of the Peerage, whether they had a seat in their Lordships' House or not, were exempt from arrest on mesne process. The Courts of Law had gone further in their respect for this privilege of Parliament; for where a Member of Parliament was guilty of what was commonly called Contempt of Court, in disobeying the orders of the Court, although this was considered as rather in the nature of a criminal act, yet even then the Court did not proceed against the person of the Member of Parliament. In the case of persons not entitled to this privilege, where, for example, they refused to obey an award which was made an Order of Court, the common proceeding to compel obedience was, by attachment of their persons for a contempt of Court. But, although this species of contempt was considered as in the nature of a crime, yet the matter being really and substantially of a civil nature, the Court, in the cases of those having privilege of Parliament, did not proceed by attachment of the person. So, when a bill was filed in a Court of Equity, the party defendant was compellable to put in an answer by a process of Court, attaching his person for contempt of Court; but this remedy could not be had against persons having the privilege of Parliament, who might, therefore, be considered as exempt from civil process, both at law

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and in equity. To remedy this, some Acts were passed subsequent to the Revolution, one in the reign of William 3rd, and another in the reign of George 3rd, by which Members of Parliament are made compellable to obey and answer by distress and sequestration of their property, their persons being, of course, still held to be exempt. This was the practice of this day, which left the personal security of Members of Parliament inviolate, but, at the same time, placed them in such a situation with respect to their property, that it could not be said that their privilege of Parliament set them above the law. This, then, was the situation in which the processes of the Civil Courts of Law and Equity stood with respect to persons having privilege of Parliament. But the process of the Ecclesiastical Courts, or Courts Christian, stood on a very different footing. At first, the only mode which these Courts had of enforcing obedience to their orders or decisions was, by the process of excommunication, which answered the purpose for a time, but afterwards, as Mr. Justice Blackstone said, excommunication became a brutum fulmen, and it was found necessary to resort to the assistance of the Civil Courts, in order to carry the sentences of the Ecclesiastical Courts into effect, and this was done by means of the writ de excommunicato capiendo out of the Civil Court, upon a significant from the Ecclesiastical Court, that the party had been excommunicated. That remained the only process by which the sentence of the Courts Christian could be enforced, until the simpler process, introduced some years ago by the Act commonly called Lord Stowell's Act, which put an end to the cumbrous and awkward process of the excommunication and writ de excommunicato capiendo, and placed the process of the Ecclesiastical Courts upon much the same footing as those of the Civil Courts. But it so happened, that in that bill no care was taken to include the cases of such persons as had privilege of Parliament. The Ecclesiastical Courts had proceeded, not against the body or the property of a party, but against his soul; and then the Bill of Lord Stowell took away the process against the soul, and, as far as respected Members of Parliament, substituted nothing in its stead, so that at present such persons were completely exempt from the process of the Eccle-
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siastical Courts. This monstrous privilege, was enjoyed by about 1,000 individuals, Members of this and the other House, who were, therefore, as far as the process of the Ecclesiastical Courts was concerned, absolutely free and exempt from, and above the laws, and the question was, whether this was a state of things which ought to continue. It might be true, that their Lordships were not very likely to do anything that could bring them within the scope of Ecclesiastical cognizance. But the Ecclesiastical Courts had the jurisdiction to decide in cases of marriage and divorce; and not only in these, but in many other important cases; and when suits were instituted against persons having privilege of Parliament, the Courts Christian had no means to compel them to obey one of its orders. If a suit were instituted for a divorce, the person against whom it was instituted, if he had privilege of Parliament, could not be compelled to appear. But this was not all. Suppose a suit to be instituted for a declarator of nullity of a marriage, it might, in the case of one having privilege of Parliament, be stopped in limine, as the Court had no power to compel an answer; and yet upon this might depend questions of legitimacy and bastardy, which must regulate, not merely the descent of property, but of honours—questions which, owing to the present defect in the process, it might, in many instances of the last importance, be found impossible to try. The same observations applied to cases of divorce and adultery, as to cases of nullity of marriage. It was true, that it seldom happened in their Lordships' persons, that any occasions occurred for such proceedings in the Ecclesiastical Courts, but, at the same time, such things might happen, and that was sufficient reason for providing the proper remedy in case they should occur. There was one thing, however, from which neither their Lordships, nor Members of the other House, were exempt, and that was death, and from death often arose suits connected with wills, to be proved in the Ecclesiastical Courts. Now the existing defect of process, rendered it impossible for the Ecclesiastical Court to compel the proper party, in case he had privilege of Parliament, to bring a will into Court and prove it. Suppose a father, by will, leaves a large personal property to the second son, and that the

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elder is the proper person to bring in and prove the will, the Court can, on a proceeding by the second son, compel the elder brother to bring in and prove the will. But, suppose the elder brother has privilege of Parliament, he has the will in his power, and it is impossible for the Court to compel him to bring it in. He may laugh at the Court and at his brother, and even though he should be guilty of open contempt of Court (unless the contempt should be accompanied by a crime, as happened in a late case in the Court of Chancery, where privilege did not protect the party), the Court could not proceed against him. By this means, personal property, to the extent of thousands or of millions, might be kept from the party entitled to it, and retained by a party having no title to it, and whose interest it was, that the will should never be proved or estimated. He might state many other cases in which the most flagrant injustice would be the consequence of this want of power in the Ecclesiastical Courts to proceed against Members of Parliament, but he had stated enough to show that some remedy was indispensable. The privilege was monstrous, and it was the more so when one considered that, in these matters, the Courts Christian were Courts, not of concurrent, but of exclusive, jurisdiction, and were, therefore, the only Courts where redress could be had. He might mention one other instance of the injustice which might result from this defect of the process. The Court might think proper to decree against a person having privilege of Parliament for alimony to be paid to his wife, and for costs of suit—suppose 3,000 l. a-year for alimony, and 10,000 l. for costs of suit—but not a farthing could the Court compel him to pay. If he was a Member of Parliament, whether for Yorkshire or Old Sarum, no matter, he might set the Court at defiance, and decline to pay the least regard to its sentence. One word more as to the kind of persons whose affairs were most likely to come into Doctors' Commons. They were persons of property, and the larger their property, the more likely they were to come under the cognizance of the Ecclesiastical Courts with respect to bills. He had said enough to show how very material it was, that this monstrous privilege should be done away, and he ought to have brought in a Bill for the purpose long ago, and would have
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done it had he not waited for a Report of the Ecclesiastical Commission. The Commissioners had, in point of fact, decided on this matter in conformity with his views, but he was apprehensive that their Report could not be laid on their Lordships' Table in sufficient time to render it possible to get a Bill founded upon it passed in the course of the present Session, and, therefore, he introduced the Bill now. Having thus stated the nature of the grievance, he would proceed to state the remedy provided by this Bill, and that would be done in a few words. It consisted in extending to the Ecclesiastical Courts the same remedy which the old Statutes, already mentioned, had given to the Courts of Equity and Common Law. The person of the Member of Parliament was to be exempt from arrest or attachment, but the Court was enabled to enforce obedience to its orders and decrees, by distress and sequestration of the property of the contumacious party. This was the amount of the proposed remedy, and he could not anticipate that there would be any objection to it in any quarter whatever.
Bill read a first time.

DUTIES ON CAPE WINES.
Lord Ellenborough,in presenting, according to notice, the Petition of the Merchants and Shipowners of London, interested in the prosperity of the Cape of Good Hope, against the proposed alteration in the Duties upon Wine, was happy to find, that it was not necessary to occupy much of their Lordships' time upon the subject of this petition, as he understood his Majesty's Government had withdrawn the most objectionable part of their proposed measure. He was aware that the wine imported from the Cape of Good Hope would scarcely bear the duty of 2s. 9d. per gallon, which his Majesty's Ministers still intended to impose. But the apprehensions of the petitioners had been chiefly excited by the intention entertained by his Majesty's Ministers, to obtain a pledge from Parliament, that in the year 1833 the duty upon Cape wine should be raised to an equality with that upon the wines of France. As this intention had been very prudently abandoned, he felt that it was unnecessary for him to trespass upon their Lordships with any further observations.
Viscount Goderichadmitted that an

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Act had been introduced in the other House of Parliament for the purpose of equalizing the duties upon all wines imported after the year 1833. This was certainly the intention which his Majesty's Government had entertained, and if the measure had ever come into discussion in that House he should have been prepared to defend it; but at the same time, his Majesty's Ministers had thought it right to listen to the representations of the persons most immediately interested. It was now proposed that the duly upon Cape wines should be raised from 2s. 5d. to 2s. 9d., and he hoped this very moderate augmentation of duty would not produce any injury to the colony. At the same time, he felt it his duty to relieve the colonists as much as possible from every other tax or restriction which pressed upon them, and impeded their prosperity. This they had a right to expect. He felt assured that the small duty now to be imposed could not have the effect of restricting cultivation; while he also felt it his duty to himself and his colleagues to say, that the proposition first introduced was not at all liable to the objections which had been urged against it, however natural it might be for the persons interested to advance them.
Lord Ellenboroughsuggested, that the noble Lord, before he recommended any alterations, ought to extend his inquiries into all the details and regulations of the trade of the Cape of Good Hope. It was worthy of attention, that ships of the United States engaged in the trade to India and China, and were allowed to call at the Cape for refreshment, but not for the purposes of commerce.
Lord Caledonsuggested, that the noble Lord ought to attend to the exclusive interests of the Cape itself, as well as to its interests taken in connection with those of this country. The Cape petitioners would not be satisfied without having the duties imposed at a rate ad valorem.
Viscount Goderichobserved, that it had been his endeavour to attend to, and promote the interests of the colony.
Petition laid on the Table.