Lords Sitting of 5 July 1832

MINUTES.
Papers ordered. On the Motion of the Duke of RICHMOND, a Copy of the Instructions and Reports relative to the Cities and Boroughs In Ireland sending Members to Parliament.
Petitions presented. By Lord MOHTYN, from several Places in Wales, for a Restoration of their ancient Rights.

APPELLATE JURLSDICTION. ECCLE SIASTICAL COURTS.
The Lord Chancellorsaid, he rose to present to their Lordships a Bill of which he had given notice, relative to the Appellate Jurisdiction of the Ecclesiastical Courts. It was a measure founded upon, and in accordance with, the recommendation of those learned and most respectable individuals, the Ecclesiastical Commissioners, and, as he supposed that the introduction of it would meet with no opposition, he should not have to trespass at any length on their Lordships' attention. However, as the measure was a very important one, and as it went to make a very important change in the law, it was fit that he should state the nature of it, and the grounds upon which it was proposed to be I made. Their Lordships were aware, that

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from all the Ecclesiastical Courts in this country, an appeal lay to the High Court of Delegates; and even the decision of that Court of Appeal was not final, for the party against whom it was made could have a further appeal to the Court of Review, by an application to the Crown for the granting of such a species of appeal as a special favour. The party, in the first instance, against whom sentence was pronounced in any of the Ecclesiastical Courts, had the right of appeal to the High Court of Delegates, which Court was appointed by a commission from the Crown, authorising a certain number of persons, called "delegates," to investigate and decide upon the matter in question. This appeal was a matter of right, and existed by statute-right since the 25th of Henry 8th. The Crown might issue this commission to whatever persons it pleased, but it had been long the practice to issue that commission to a certain description of persons. Those persons were generally three or four of the Judges in the Courts of Common Law, and three, four, or five Civilians. The construction of that Court was anything but well adapted for the performance of the important duties that were assigned to it. It was first required by the rules of the Court, that, in order to make its sentence valid, one of the common law Judges should be a consenting party to it. In the second place, when an equality of decision occurred, (an occurrence by no means unfrequent in this Court, where there were often but six of the Judges in attendance), there was no sentence. In the third place, the common law Judges, who constituted a part of this Court, were obliged, in forming their judgment in the case referred to them, to rely on the assistance of the advocates of the civil law Courts, who had been appointed in the same commission, and who were, of course, considered to be more conversant with those principles of law on which the case was to be decided than they could be. Now it so happened, that the Civilians appointed on those commissions were not the best qualified to render that assistance to the common law Judges, or to bear a part in the decisions of this Court, for they were practising advocates in the Courts below, before those very Judges from whose sentence the appeal in question was made. This was in itself manifestly a great evil, and a practice that was highly objectionable; for, however learned those gentlemen might be, and however honourable
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and equitable their decisions might be, no men should be placed in a situation like this, one day acting as practising barristers in the Court below, and the very next day called from that Bar to decide upon points, exactly similar to those which they had been arguing before the Judges in that Court from whose decision the appeal had been made. Another objectionable feature in the constitution of this Court was, that in the selection of the Civilians to sit upon it, they were extremely limited in their choice; they could not, of course, select the Judges; they could only choose from amongst the advocates in those Courts which were not crowded with barristers like the Courts of Westminster Hall; and as most, if not all, of the most eminent of those advocates had been employed in the cause in the Court below, they of course could not be appointed to decide upon an appeal in a cause in which they had been engaged as counsel. The natural tendency of such a state of things was, that this appeal from the Court below was sent for decision to Judges, composed, not even of the leading barristers in that inferior Court, but of the junior barristers, who had not as yet obtained any business, and of other barristers who, from accidental circumstances or otherwise, had got no practice at all. The result was, that frequently barristers of not more than one year and a half's standing were called on to preside in this Court of Appeal as Judges. The constitution of this Court had been long complained of, and so early as the reign of Charles 2nd petitions had been presented to the Crown, praying for a revision of the appellate jurisdiction of the Ecclesiastical Courts. There was no direct formal appeal from the sentence of the High Court of Delegates, but power was given to the party against whom sentence was pronounced, to petition the Crown for the appointment of a Court of Review, and that petition was usually referred by the Crown to the Lord Chancellor, who advised the Crown as to whether such a commission should issue or not. If the Lord Chancellor advised the Crown in the affirmative, a Commission of Review was then appointed to examine into, and decide upon the sentence pronounced by the High Court of Delegates. That Court was a much more extended one than the Court of Delegates. Many Lords, spiritual and temporal, were appointed upon it, with several of the Judges, and its decision was final on the subject. It seemed, for these reasons, expedient to the Commissioners of

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Ecclesiastical Inquiry to recommend, and he fully concurred in the recommendation, that the High Court of Delegates should be abolished: one grievous hardship arose from the inability of that Court to impose costs on the party who appealed to it, and against whose appeal it might have decided, for in that way serious expenses were entailed on the party in whose favour the Court below had rightly decided, and against which decision a pauper, perhaps, had thought fit to appeal. The Bill, therefore, which he now presented to their Lordships, and the first reading of which he should conclude by moving, went to abolish the appellate jurisdiction of the High Court of Delegates, and to transfer it to the Privy Council. It would, of course, be necessary that they should have his Majesty's pleasure as to the transferring of this appellate jurisdiction to the Court of Privy Council, and it would be also proper to provide, that that Court should sit at regular seasons for the despatch of the business which would thus come before it. It would be hero naturally asked by their Lordships, what additional burthen would this throw upon the Privy Council? It appeared from an average of the last thirty years, that the number of appeals to the High Court of Delegates had been only three or four annually; but it was certain, at the same time, that those cases occupied considerably more time than cases in other courts of law, and it was also certain, that the number of appeal cases at present averaged from eight to ten annually. He apprehended that the number of appeals to the Privy Council would be even more than that, and the question was, what step should be taken to enable that Court to discharge more readily and easily its present high functions, as well as to get through the additional business which this measure would throw upon it. If that Court sat at regular intervals, and if it had a regular Bar practising before it, it could be denied by no one that there would be a greater number of appeals from the colonies than were made to it, constituted as it now was. It was, therefore, intended, that should this Bill pass, some arrangement should be made by the exercise of the Prerogative of the Crown, to enable that Court to discharge its functions more readily and speedily, the great number of retired Judges at present, who were all members of that Court, would considerably facilitate the discharge of the business which might be thus brought before the
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Privy Council—The noble and learned Lord concluded by presenting the Bill, which was then read a first time.

EXPLANATIONS.
The Bishop of Exeterrose to present a Petition from the Arch deacon and Clergy of Totness, diocese of Exeter, against the Government System of Education in Ireland. He would take the liberty, with their Lordships' permission, to avail himself of that opportunity to say a few words, in reference to some observations which had been made in the course of a debate in that House a few nights ago. Wishing, as he did, most carefully to avoid any reference to any thing unpleasant which might have occurred on that night, he was anxious to set himself right with the House on a matter of fact. Their Lordships would remember, that the other evening he denied that he had ever stated, that the letter of a noble Duke (the Duke of Buckingham) to his Majesty had been published in a certain newspaper. He asserted, that he had never stated any such thing, that he merely stated, that the letter in question had been alluded to in the newspaper, and he made that assertion then, on Ids recollection of his former statement. He understood that that former statement of his had been pub lished, and had excited considerable discussion in the newspapers at the time; but as he (the Bishop of Exeter) had, immediately after making it, gone into the country to attend to the discharge of his episcopal duties, it so happened that he had not read any report of what he had then said, until within the last few days, when, on referring to the ordinary records, which were, he believed, understood to be authentic accounts of the proceedings in that House, he found the following words attributed to him on that occasion:—About the 23rd of January, or some such period, there was a direct allusion in The Times to a supposed correspondence between that noble Duke, whom I have now the happiness to see in his place, and his Majesty, as well as between a noble Duke and his Majesty's Secretary. It appeared, therefore, that all he had then said was, that there had been an allusion made in The Times to the noble Duke's letter. It would appear, indeed, from what then fell from the noble Earl at the head of his Majesty's Government, that the same notion which he (the Bishop
*Hansard (third series) vol. xill. p. 366.

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of Exeter) entertained was passing through his mind, for he found that the noble Earl was reported to have used the following words:—*'The noble Duke gave no copy of it, and I can say, upon ray honour as a Peer, that I gave none. I certainly did communicate it to my colleagues: it was my duty to do it; and I think I can say for them, as I assert for myself, that it was not from them, nor from any person connected with them, that any part of the letter, any allusion to it, or abstract of it, found its way into the public papers. No person was more astonished than I was when I saw it. I do not know whether it is necessary for me to say more upon this subject, but I can safely say. that what was printed did not proceed from his Majesty's advisers. '* It was plain from this, that the noble Earl understood the matter in the same way that he (the Bishop of Exeter) did at the time. He would make no further reference to any thing unpleasant which might have occurred the other night, and he had only made this reference to it in order to set himself right with their Lordships.
The Marquess of Londonderrysaid, that he had a few observations to address to their Lordships, which, he conceived, he should not be out of order in making on this occasion. He was not in his place the other night when the debate occurred to which the right reverend Prelate had alluded, or he should then have called on the noble Lord opposite to explain some particular circumstances, which proved incontrovertibly, as he thought, the connexion of The Times newspaper with his Majesty's Government. When the former debate, to which allusion had been also made, occurred, he thought that he should be out of order in referring to this publication; but he conceived that he was now perfectly in order in calling the noble Lord's attention to it. The circumstances of the case were these:—About the end of the month of February, he was called on to present a petition to his Majesty from the city of Londonderry. He presented it to his Majesty at the levee on the 29th of February. He might have been wrong in reading the petition to his Majesty, in order to explain it; and, certainly, his Majesty, on that occasion, replied to him in a manner which, he thought, might give pain to the feelings of the petitioners. Such was his apprehension when he went home that day
*Hansard (third series) vol xii. p. 367.
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from the levee; and he, therefore, thought it proper to write a letter at once to the Private, Secretary of his Majesty, stating the circumstances which had taken place at the levee, and wishing to know whether it was his Majesty's pleasure that he (the Marquess of Londonderry) should communicate to the petitioners as the answer to their Address, that answer which had been given to him by his Majesty. In reply, he received a letter from his Majesty's private-Secretary, stating that his letter had been referred to the Secretary of the Home Department, from whom he would receive a communication on the subject. It was on the 29th of February he had presented the petition at the levee, and, on the 1st of March, the very answer that the King had given him, he read in The Times, and no doubt it was communicated from the same quarter as was the statement with regard to the letter of the noble Duke (Buckingham); and on the 2nd of March, in the morning, he saw in The Times the whole account of the letter which he had written to his Majesty's Private Secretary, and of the circumstances which he had stated in it; and not only that, but an account of the answer which he received from the noble Viscount (Melbourne); and if their Lordships had any doubt as to whence that information which appeared in The Times was derived, in order to set that doubt at rest, he had only to add, that he did not receive the answer of the noble Viscount until late on the evening of the 2nd of March. He had the paper in his possession, and he would read to their Lordships the following extract from The Times published on the morning of the 2nd of March:—We hear that a correspondence has followed the scene which we de scribed as having taken place at the levee on Wednesday, and in which a noble Marquess took a conspicuous part. His Lordship, it is said (although we can scarcely credit such an act of indiscretion, even in Lord Londonderry), wrote to the King, to inquire whether the gracious observation which his Majesty addressed to him, on the presentation of the petition from the "Prentice Boys of Derry," was to be transmitted to them as his Majesty's answer to the Address? The proper officer was directed to refer the noble Lord to the Secretary of State for the Home Department, who lost no time in replying to his Lordship's inquiry, that no instance was on record of the "prentice

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boys" having claimed or exercised a privilege similar to that enjoyed by the Corporation of London or Dublin, of pre seating their addresses to, and receiving an answer from, his Majesty on the throne. The noble Marquess proceeded to observe, that he had felt it necessary, as briefly as possible, to state these facts to their Lordships. The circumstance weighed so strongly on his mind, that when he afterwards met the noble Viscount (Melbourne) on his way to the House, he told him of it. The noble Viscount admitted that it was an extraordinary circumstance, but he denied that there could be any possible connexion between the Government and The Times newspaper. It did, however, appear to him that some explanation was necessary on this subject. He could scarcely believe that the information to which his observations had reference could have come from the Private Secretary of his Majesty. It struck the noble Viscount opposite, in the same manner that itstruck him, as a very extraordinary occurrence. He positively declared, that no one knew of this communication to the Private Secretary of his Majesty, at the time that it was made, but himself, the noble Viscount, and that individual. He declared to their Lordships, upon his honour, that he mentioned it to no person. No individual could have been acquainted with the circumstance, but himself and the gentleman to whom his note was addressed. This being the case, the circumstance which followed proved to him incontrovertibly, that some—he knew not what—connexion subsisted between The Times newspaper and his Majesty's Government. He did not wish to go further into detail; but, if their Lordships required it, he would read to their Lordships the letter which he had written. It appeared evident to him, looking at the whole circumstance, that a communication must exist between some of the officers of Government and The Times newspaper. Nobody, he repeated, but the Private Secretary to the King, the noble Viscount opposite, and himself, knew of his communication. He alluded to the circumstance now, being satisfied that it was, really and bona fide, the duty of his Majesty's Government to show, that there was no connexion between any of them, or their dependants, so far as they knew, and The Times newspaper. By making this statement, he had now placed within their power the mode of
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discovering and finding out where that connexion existed. If they did not prosecute this inquiry, as he thought they should, then individuals would be left to draw their own conclusions. But the circumstance which he particularly adverted to on this occasion was not the only cause for his forming the opinion which he had done. If noble lords would look at and read that paper—if they would examine the whole course of its intelligence since the present Government came into office—they would find, that during the whole period of their Administration, The Times had stated and foretold all that Ministers meant to do with these facts before him, he put it decidedly to the noble Viscount to say whether he had not a right to suppose that there was a connexion between some part of the Government and The Times newspaper, which they ought to endeavour to trace."
Viscount Melbournesaid, that the statement which the noble Lord had made in the commencement of his speech might be true; but, so far as he was concerned, he knew nothing whatever of the matter.
The Marquess of Londonderry: The noble Viscount recollects my having stated those facts to him, and that at the time he expressed much surprise at them. Now I ask him whether, under that feeling of surprise, he has taken any measures to find out how these papers have come before the public?
Viscount Melbourneanswered, that he had not taken any steps on the subject.
The conversation ended.