Lords Sitting of 22 July 1833

MINUTES.
Bill. Read a second time:—Dwelling House Robbery.
Petitions presented. By Lord CARBERY, from the Clergy of St. Macartin, Clogher, against part of the Irish Church Bill.—By the Karl of ROSEBERY, from Edinburgh and Stirling, against the Royal Burgh (Scotland) Bill By the Duke of CLEVELAND, from the Overseers and Select Vestry of South Shields, in favour of the Sea-Apprentices Bill.

BREAKING INTO DWELLING-HOUSES.
Lord Suffieldrose to move the second reading of the Bill for abolishing the
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punishment of death for house-breaking. In doing so, his Lordship stated, that he had several alterations to make in the Bill, which would make it more efficient without departing from the views of the authors of the Bill. They would only extend the principle. He had understood, that there would be no opposition to the Bill in this stage, and he, therefore, would not, at present, trouble their Lordships with any observations. He would only observe, in order to set the principle of the Bill in a clear light, that it was intended to abolish the punishment of death for house-breaking, the law ordaining which, might almost be said to have fallen into desuetude. In 1826 and 1827 there was only one execution for house-breaking, and of those tried for that crime, fifteen per cent were acquitted. To show the effect of the punishment, he would remark, that in the years 1828, 1829, and 1830, there was a change in the policy. It was thought fit to carry the law into more rigorous execution, and in those years twenty-seven persons were executed, but what was the consequence? Why, in the three years following, more than thirty per cent were acquitted. In 1831, the policy again changed. Of 517 persons convicted of the offence, only one was executed. In 1832, 583 persons were convicted, and nine were executed. He would further observe, in a recommendation of the Bill, that it had been amply discussed in the other House; but there had been no division upon it, and, therefore, it might be said, to have been sent up to their Lordships' House by the unanimous concurrence of the other House.
Lord Wynfordhad certainly given the noble Lord to understand, that he would not oppose the second reading; but he did not expect, that the noble Lord would take that opportunity to prejudice the House by making a long statement. He certainly should not oppose the second reading of the Bill, but he must set the noble Lord right as to this punishment. The Reformers of the law had purposely left the punishment of death attached to the offences of burglary and stealing in a dwelling house, and the reason was this:—as soon as there was light enough to sec a man's face, the breaking ceased to be burglary; but between day-light and people rising to their business, there elapsed, at one period of the year, a great

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many hours; and it was to give honest and industrious men a full and effective security during these hours that the punishment of death was left attached to stealing in dwelling-houses. It was never intended that it should be at all times carried into execution, but it was intended that it should be a full security to all against the offence.
The Bill read a second time.

BLOCKADE OF LISBON.
The Marquess of Londonderrysaid, he rose with considerable embarrass, to submit to their Lordships the Motion of which he had given notice on a former occasion, after what had fallen from the noble Earl. It did, however, appear to him, in consequence of what had occurred on previous evenings, that the noble Earl laboured under a perfect want of information with respect to the notification which had been sent to Lloyd's from the Foreign Office. When he first mentioned the subject of the capture of the Portuguese fleet, he was merely referred to the public journals, as containing all the information which Government possessed on the subject. That was on the 15th of July; but when he saw the notification from the Foreign Office, dated on the very same day, and which appeared in the papers of the 16th, he came down on the following evening, to procure, if possible, some explanation on that point, to learn on what information that notice was founded. The first answer he received across the Table was, that the papers should be given; but the noble Duke (Duke of Wellington) behind him having stated his impression of the effect which this extraordinary proceeding would produce, the noble Earl was put on the qui vive, and then he asked for a little time to consider of the matter; and now, when he was prepared to state the reasons which induced him to call for these documents, he was told, that the papers which he had demanded should be accorded to him. He would not, as that was the case, state what he meant to do hereafter, until he saw those papers. There might be grounds to justify the Foreign Office in taking such a step, and he wished to be made acquainted with them; but he thought, that the whole was a fabrication got up in this country; and he believed, that up to the present moment no official documents had been received from Oporto on the subject; that no indication, in an
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official shape, of any intention of Don Pedro to order the blockade of the Portuguese ports had been received here. He believed, that no notice of such an intention had been received from abroad by the agent at Lloyd's. No intimation of any such intention was to be met with in the Oporto Chronica. The question which he wished to put to the noble Earl, and which he did not think the noble Earl would be able to answer, was, whether any notification had been received from the Consul at Oporto as to this intended blockade? He had caused application to be made at Lloyd's within a few days as to whether any official communication had been received by the Committee from Oporto on this subject?—whether any statements derived from a known and official source had reached them?—and whether there was any well-founded statement on the subject in the Oporto Chronica? The answer he received from Lloyd's was, simply, "That the notice from the Foreign Office was considered to be most effective." Now, that notice he believed to have been concocted at the Foreign Office between that office itself and M. Lima. He had deemed it to be his duty to call their Lordships' attention to these points, reserving himself, when the documents which the noble Earl had promised were laid before their Lordships, to take such a course as the information contained in them would warrant. As to a blockade of the Portuguese ports, he knew not how it could be effected by Don Pedro, when it was recollected, that from Cape St. Vincent to Viana there were twelve ports, and an extent of coast of 400 or 500 miles. The noble Earl had pronounced several panegyrics on the conduct of the House of Commons, but he questioned, whether, in the end, the noble Earl would be thanked for what he had done, or for the course which he had pursued. Notwithstanding all the noble Earl's eloquence, and all his powers of oratory, yet much of what he addressed to the House might be described in the manner in which he had described the speech of the noble Duke (Duke of Buckingham) near him, as something of "sound and fury," or as the noble Secretary of State had observed of a speech of a noble friend of his, as something "perfectly childish;" perhaps that might not be considered sufficiently classical, and he would use the word "puerile." The noble Marquess concluded

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by moving for "copies of all papers received at the Foreign Office before the 15th inst which come from a competent authority, and which have induced his Majesty's Secretary of State for Foreign Affairs to issue a letter to the Committee of Floyd's, announcing the blockade of the Portuguese ports."
Earl Greywould not enter into any discussion on the different points introduced by the noble Karl. He was most anxious that the papers should be laid before their Lordships; and he should be ready hereafter to answer any objections that might be urged against the course which his Majesty's Government had taken.
Motion agreed to.

THELLUSSON'S ESTATE.
The Lord Chancellor moved the third reading of the Thellusson's Estate Bill.
The Earl of Harrowbyopposed the Bill. The testator's will had been objected to, on the ground, that it carried the principle of entail to a greater extent than was ever before known. The will was, however, maintained; but on public grounds the Legislature passed an Act, declaring, that such a disposition of property should never be allowed again. That Act had, he thought put an end to all further interference in this case; but they were now called upon to interfere with it again in defiance of a decision in equity, and in defiance of an Act by which the disposition of the testator's property was recognized. It was alleged, that the trustees had mismanaged the funds; but, if that were so, they might be checked by the intervention of the Court of Chancery. Unless their Lordships were prepared to say, that they would interfere in all cases of hardship, in respect to the disposition of property by will, they could not interfere in this instance. It was said, that this proceeding could not be drawn into a precedent. That was a complete fallacy. There were many cases of equal hardship to which this precedent might be made to apply; for example, to a case where a single generation was shut out from the enjoyment of property. As long as individuals were allowed by law to dispose of their estates as they pleased, it was pregnant with very great danger to the whole property of the country that such a precedent should be established as would be the result of passing this Bill. It was
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brought in, too, by an infraction of those standing orders which were intended for the protection of private property. Under all these circumstances, he felt it to be his duty to give his negative to the Bill.
The Earl of Eldonsaid, it was impossible to assert that the testator had no right to make this will. When the case was before Chancery, he believed, there was not a man in the Court who did not wish, if possible, to set the will aside; but it was felt imperatively necessary to support the established doctrines respecting the disposition of property according to law. The course which was then taken was the right course. To suppose, that no case of this nature existed except that which referred to the Thellusson family, was a mistake. Wills of a similar nature, and which were now in operation, had been drawn up before the passing of Lord Loughborough's Act. He begged to ask, how were their Lordships to proceed, if, after passing the present Bill, the wills of those testators to whom he was now alluding should be brought before them in the next Session of Parliament? Could they do otherwise than disturb those wills, which were, perhaps, equally hard, but which were made in accordance with the law of the country, after they had passed the present Bill. The security of property devised by testament, the wills of testators, having been held inviolable for ages, formed one of the most important parts of the legal system of this country. The present measure would invade that security and that inviolability, and, therefore, he thought the attempt ought to be repelled.
Lord Wharncliffesaid, there was, in his opinion, great irregularity in suspending the standing orders, and pressing forward a Bill of this nature, against which there were so many and such serious objections. The expense of the management of the whole trust was very great, but there was no evidence before the Committee upon which a charge could be founded against the trustees for having abused their powers in the management of the estate. No greater expense had been incurred than was authorized by the Court of Chancery. He defied the noble Lord on the Woolsack, or any other noble Lord, to say, that the trustees had done any thing with regard to the management of the estate without the consent of the Court of Chancery having been previously obtained. In his opinion, the Bill, instead

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of diminishing, would have the effect of increasing and perpetuating the expenses of managing the estate. It was under these circumstances he refused to give the Bill his consent. It was establishing a precedent which, he believed, their Lord-ships and the country would have cause to rue. It would hold forth the incitement for application after application on similar grounds, and he saw no probable result but detriment or ruin to private property. He would divide against the third reading, if any other noble Lord would divide with him.
The Lord Chancellordenied that the Bill had been introduced, as had been said, altogether from motives of compassion. The motive of compassion would not be sufficient to direct the course of legislation on private affairs from the ordinary channel. But the present was a question of justice, and intended to allow the provisions of the testator's will to take the effect he contemplated, and not to benefit parties he never meant to benefit. He (the Lord Chancellor) had not the slightest interest in the question other than forwarding this object. He was acquainted with no member of the Thellusson family personally, and his only motive in supporting the measure was, the conviction he had come to of the justice of the case, in the course of the fulfilment of his official duties in the Court of Chancery. His noble friend who had preceded him on the woolsack, had arrived at a similar conclusion. He did not admit the validity of the objection on the score of the measure being drawn into a precedent. It stood on its own peculiar grounds, and was not likely to be drawn into a precedent; but whenever any case could be shown to have, as it were, an identity with the present, then the extension of the law to it might reasonably be called for. Such cases, however, were not of likely occurrence. The jurisdiction of the Court of Chancery extended to intakings as well as outlays; and in recommending the present Bill, he believed he was furthering the object of the testator, which was accumulation.
Their Lordships divided: Contents 87; Not-contents 20—Majority 67.
Bill read a third time and passed.

CHURCH TEMPORALITIES'(IRELAND).
Their Lordships resolved themselves into a Committee on the Church Temporalities' (Ireland) Bill.
On the second Clause, relative to the Ecclesiastical Commissioners to be appointed being read,
The Duke of Wellingtonsaid, that he believed that the duty which it was proposed should be performed by the Commissioners had been well performed by the Board of First Fruits, and he should have been glad if it had been left with them. But as the business to be performed would be much increased, and no part of the measure could, in the first instance, be carried on without the interference of Government, he did not mean to move that it should be left in their hands. He would propose, however, that one of the Civil Commissioners should be named by the heads of the Church, namely, by the Lord Primate and the Archbishop of Dublin. This clause, he thought, had evidently been drawn with a view to the passing of the 147th clause, and although that clause was struck out, much remained in the Bill which had been intended to apply to that clause. He thought it but fair that those, whose property was to be sold, in order that the purposes of the measure should be carried into execution, should know something of what was going on. He, therefore, moved, that an addition be made to this clause, by which two of the Commissioners should be appointed by the King in Council, and the other by the Lord Primate and the Archbishop of Dublin, or under their hands and seals.
Earl Greydid not see any necessity for the Amendment; but if the House considered that it would be any additional security for the better performance of the duty of the Commissioners, he would not oppose it.
The Bishop of Londonagreed in the opinion of the noble Earl (Grey) in feeling no objection to the noble Duke's proposition, but at the same time he would have been better pleased had the number been two, instead of three, "proper and discreet persons." Two would be sufficient for the business, and the expense on the fund would be less.
The Lord Chancellorthought, on the contrary, that three persons were preferable to two, on account of the work which was to be done in carrying into effect, in the first instance, some of the provisions of the Bill; if, however, in the course of three years, any vacancy should occur, it might be left open.
The Bishop of Londonsaid, that his sole object in making the suggestion was to diminish the expense. He spoke from experience, having been for nine years on the commission for building churches; and though the attendance had been but very limited, yet he believed the business Had been done as well as it could be, notwithstanding all that had been said on the subject.
Amendment agreed to.
On the question, that the Clause stand part of the Bill,
The Earl of Wicklowthought, that the noble Earl who had introduced the Bill, would give considerable satisfaction to the public, if the four Bishops, who by the clause were to constitute a component part of the Board, were either elected, or should come in ex officio in rotation. He would beg leave to move an amendment to that effect.
Lord Wynfordthought, that the proposition of his noble friend would tend to remove the principal objections raised to the Bill. He was of opinion, that the appointment of the Ecclesiastical Commissioners should be in the bench of Bishops, and by this means the Board would be more independent, and would be less objectionable. He was not prepared at the present stage to move an Amendment he had contemplated, the object of which was to get rid of the proposed Commission, and to substitute another, which would place the affairs of the Church in the hands of the Church. If the Bill passed with the clause as it stood, every individual in the Church of Ireland, from the Archbishop of Armagh down to the very sexton of a parish, and even the tenants upon Church lands, would be under the influence of the Crown. This was an objection he should be very happy to see remedied. If four Bishops and one lay Commissioner were appointed by the Church, such an influence would be created in the Board as would protect the interests of the Church apart from the Crown.
Earl Greyexpressed his readiness and wish to attend to any suggestion calculated to remove any objections, and to make the Bill satisfactory to all parties; but at the same time he could not but object to the Amendment of the noble Earl. Neither could he acquiesce in what had fallen from the noble and learned Lord opposite, namely, that the proposed Board would bring the Church under the influence and
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control of the Crown. He hoped, the Amendment would not be persevered in, and particularly as he was prepared to move an Amendment on the next clause, by which the only removable Commissioners would be the Chancellor, and the three lay Commissioners, at the will of the Crown.
The Earl of Harrowbywas of opinion, that two of the Bishops appointed to the Board of Commissioners should be elected by the bench of Bishops, and two should be appointed by the Crown.
The Archbishop of Canterburyhad not the least doubt that the Commissioners would be elected with impartiality, yet he considered that it would be desirable that all the Bishops left to Ireland under this Bill should form a portion of the Board. Such was the case with the Board of First Fruits in this country; and he had never heard of the business being badly conducted. The result would be that all the Bishops who were not prevented from ill-health or other causes would attend, and there would necessarily be always an attendance fully qualified to take charge of the business. If it should not be judged expedient that all the Bishops should be members of the Board, yet the Church ought to be more fully represented than was proposed, and he was, consequently, of opinion that it was not too much to ask that the Board should be selected by the Bishops of Ireland. With every desire to meet the conciliatory disposition manifested by the noble Earl (Earl Grey) that evening, he could not but think the proposition of the noble Earl opposite (the Earl of Harrowby) was very fair, and one to which no objection could be made.
The Lord Chancellordid not see so much objection to the proposition of the most reverend Prelate, as he did to that of the noble Earl. He could not conceive any worse arrangement than that two of the Board should be chosen in one way, and two others should be selected by the bench of Bishops, for it would imply unlimited confidence in the Crown as to one party, and excite distrust and jealousy in the other; and it might occur that the party rejected by the one authority might be elected by the other. Another great objection he had was the calling the Bishops together more than necessary for the purposes of elections.
The Duke of Cumberlandhad understood the most reverend Prelate to suggest

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that all the Bishops of Ireland should be on the Board. If so, he was of opinion that the country would be satisfied.
The Bishop of Londonmust remind their Lordships, that the Crown had already the appointment of all the Bishops who might ultimately sit on the Board.
Earl Greysaid, that he considered that four Bishops would be quite sufficient to answer the preponderance desired, but apprehended that it was now too late to move any of the Amendments suggested, for the portion of the clause to which the Amendment applied was anterior to that upon which the noble Duke (Wellington) had moved his Amendment which was adopted. Therefore the noble Earl (Wicklow) could not move his Amendment, according to the rules, until the bringing up of the Report.
The Earl of Wicklowregretted, that the courtesy usual in the House should not have been extended to himself—a courtesy which he had never before been refused. He had, on a former occasion, stated his approbation of the principle of the Bill, and his determination to support it, and therefore he might fairly say he was not actuated by a factious opposition to the measure, when he had submitted his Amendment; which, if refused to be considered now, he should certainly move on the bringing up of the Report. He hoped the noble Earl opposite would withdraw his opposition, raised as to a point of form.
Earl Greyrepeated, that it was most in-convenient, after a clause had been gone through, to go back and enter upon new amendments. With respect to the Amendment, he must say he should object to any alteration in the manner in which the Board of Commissioners was to be appointed; but if the noble Earl wished to persevere in his Motion, he should not object in point of form.
The Earl of Wicklowmoved his Amendment on the clause, to the effect that the appointment and election of the four Bishops to the Board of Commissioners should be in the Bench of Irish Bishops generally.
The Marquess of Clanricardeobjected to the Amendment, because it would place the appointment of the Commissioners in irresponsible hands. The Government were responsible to Parliament; but if the Bishops should make improper appointments, there would be no remedy.
The Bishop of Londonsaid, that whether the Amendment was good or bad, he would not undertake to say, but he was sure the Bishops were quite as responsible as the Ministers.
The Lord Chancellorsaid, that the noble Marquess (Marquess Clanricarde) had taken a very sound view of the question. He fully concurred with him, that the power of appointing Commissioners should be exercised by the Crown, subject to the control of Parliament. He also objected to the Amendment, because it would confer an elective power on the Bishops, which they had never before possessed, either in England or in Ireland. The principle of election was avoided in the manner in which the right reverend Prelates entered that House, where they came in by rotation. He certainly should not have agreed to the former Amendment proposed by the noble Duke, if he had known that the present Amendment was afterwards to be proposed; and he might mention this as a proof of the inconvenience and danger which resulted from departing from the rules of the House. Out of the eleven Commissioners, seven would not be removable by the Crown; and he therefore thought, that the Commissioners were sufficiently independent of the Government.
The Marquess of Butewould support the Amendment, because it would tend to reconcile the Church to the Bill.
The Marquess of Lansdownsaid, that the Amendment implied an opinion that the Bishops would consider one set of persons the fittest to act as Commissioners, and the Crown another. If the Amendment should be agreed to, the Bishops would have the power of appointing four of their body to act as Commissioners, and by the next clause, the Crown would have the power of removing them, and thus practically putting a veto on their election. He trusted that their Lordships would maintain the unity of principle so essential to the Bill, by leaving the selection of the Commissioners to the Crown.
Lord Wynforddenied, that the Amendment implied any suspicion that the Crown would appoint improper persons to act as Commissioners. The ground on which he would vote for the Amendment was, that the business to be done was the business of the Church, and there was no ground for the intervention of the Crown in the matter.
Earl Greysaid, he could not understand on what principle the Amendment was proposed, if it were not to avert some danger which was apprehended from the appointment of improper persons. He was surprised to hear it said, that the Bishops were as responsible as the Ministers for the persons they might appoint. They certainly would have to answer to God and their consciences, but they were not responsible in a legal and political sense, as Ministers were. If the principle laid down by the noble and learned Lord (Wynford) were pushed to the full extent, it would give the Bishops the right of appointing one another to their bishoprics. He would meet the Amendment with a decided negative if it were pressed to a division. He certainly wished to give satisfaction to the Church, but he did not think that the Church had any ground for dissatisfaction as to the manner it was at present proposed to constitute the Board.
The Earl of Wicklowsaid, that though nominally, the power of appointing the Commissioners would be vested in the Crown, the clergy of Ireland could not forget who were Ministers. He did not mean to say so invidiously, but it was certain that the Ministers were not popular with the clergy of Ireland. For his own part he had no doubt that Ministers would exercise the powers given them by the Bill properly, and he proposed the Amendment merely to satisfy the Irish Church.
The Bishop of Londonsaid, that the speech which the noble Earl had just delivered, had determined him to vote for the clause as it stood.
The Lord Chancellor: I am nothing surprised at the right reverend Prelate's declaration. The noble Earl, for which I return him my hearty thanks, has put the question on what he doubtless thinks right grounds, and we shall now come to a vote upon the Amendment as a vote of distrust in the Ministers.
The Earl of Wicklowtotally disclaimed the noble and learned Lord's assertions; he denied it in the strongest language he could use consistently with the forms of the House. Nothing which he had said could fairly bear the interpretation which the noble and learned Lord put upon it. From the first moment he had addressed their Lordships on the subject, he had expressed the same opinion, and in nearly the same words. He had stated, that he
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did not believe the power proposed to be intrusted to Government would be misused, but he was anxious to remove an impression of a contrary nature from the minds of the clergy. If the right reverend Prelate had attended to what he had said, he would not have had occasion to make a speech at one time in favour of his Amendment, and at another time against it. The right reverend Prelate's reasons for the part he had acted were best known to himself, but it did appear strange, that, after having approved of the Amendment, he should, when he found Ministers united in opposing it, declare against it.
The Bishop of Londonhad never expressed a favourable opinion of the Amendment, although he allowed that he was inclined to approve of it. He had, however, made up his mind from the beginning, not to vote for any Amendment that did not involve a great principle, if the carrying of it were likely to create difficulty. He considered the Bill as a great constitutional measure, without reference to this Ministry or that Ministry, and he would not consent to vote for the Amendment merely on the ground that the clergy of Ireland did not repose confidence in the Ministers.
The Earl of Suffolksaid, there could be no doubt that the House was now called upon to come to a vote of distrust in Ministers after the declaration of the noble Earl.
Amendment negatived, and Clause agreed to.
On the fifteenth Clause being put,
Viscount Gagerose to propose an Amendment, which should subject all Church property in the hands of lay impropriators to the same taxes as Church property in the hands of churchmen. He put it to their Lordships' candour, whether it was proper to place a tax on those who worked, and exempt those who did not work? He was himself a holder of almost every species of Church property, and he made this proposition, looking to the application of the same principle to Church property in England. He thought all tithes in the hands of lay impropriators should be subject to the proposed tax.
The Lord Chancellorregretted the necessity of being obliged to oppose the Amendment moved by the noble Lord. He was sure that nothing could be more fair than the feeling which prompted the

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noble Lord's observations, but lie (the Lord Chancellor) must object to the terms he had made use of. It was but just to suppose that many lay impropriators had given a full and valuable consideration for the tithes which they held. Unless, therefore, they wished to commit the grossest injustice towards those who had fairly come by this property, it would be necessary to appoint a Commission to inquire into the manner in which the ancestors of all lay tithe impropriators had become possessed of the property of this description which they held. He need not explain to their Lordships, that such a proceeding would be productive of the greatest hardship and inconvenience, and he might, perhaps, add, injustice; and on this account he felt bound to oppose the Amendment. He must also object to the terms applied by the noble Lord to persons holding property of this description—namely, that they were fattening on the property which of right belonged to the Church. Unless it were shown, that those lay impropriators had become unfairly possessed of this property, they had as much right to it as any noble Lord there had to that freehold property which he or his ancestors had obtained by fair purchase.
The Bishop of Exeterregretted, that the Bill had not originated in this House, as their Lordships would not then be prevented from fully discussing those parts of it which more particularly partook of the nature of taxation—at least they might have discussed them more at liberty. He rejoiced, that his noble friend had brought forward this Amendment, and he thought it would be injustice if their Lordships did not agree to it. It was most unfair to make such a partial distinction as was made by this clause between lay and ecclesiastical impropriators, especially when their Lordships considered the very great distress under which a great portion of the Irish clergy were at present labouring. He knew several instances, especially in Ireland, where a lay impropriator possessed the tithes of a whole parish, out of which he did not contribute a penny to the support of that religion, to support which those tithes had been originally appropriated. It was most unjust to secure the payment of the whole of those tithes to the lay impropriator, while so great a deduction was made from the property of those which were really appro-
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priated to the service of the Church. He felt grateful to the noble Lord for bringing forward this Amendment; he hoped their Lordships would not lose sight of the principle it contained, as if they did, they would be losing sight of justice.
Amendment negatived. Clause agreed to.
The Clauses to the nineteenth were agreed to, when the House resumed. The Committee to sit again.