Lords Sitting of 13 March 1835

MINUTES.
Bill. Read a second time:—The Oaths' Abolition.
Petitions presented. By the Duke of GORDON, from the Presbytery of Forfar and other Places, for additional Accommodation for the Established Church of Scotland. —By Earl FITZWILLIAM, from Pudsey, for an Alteration in the Factory Act.—By Viscount MELBOURNE, from the Handloom Weavers of Renfrew, complaining of Distress.—By the Duke of RICHMOND, from Wrotham, and other Places in Kent, for the Repeal of the Malt Tax. and for the Abolition of Tithes.

CHESTER—EXECUTION OF CRIMINALS.
On the Motion, that the Chester Criminal's Execution Bill be read a third time,
The Marquess of Westminstersaid, he had a few observations to make on this subject. He thought it, was a hardship on the city of Chester to be obliged to execute all the criminals of the county at large. The expense thus entailed on the city, though not in itself very large, was objectionable, as the corporation of the city was not by any means a rich corporation. If the execution of the criminals, and the attendance on the Judges devolved, as they ought, on the Sheriffs of the county, the expense would be paid by the public out of the "Sheriffs' Cravings," but that would not be the case now the whole burthen was thrown on the city. He trusted, that the noble and learned Lord on the Woolsack would reconsider this Bill, and frame a clause, obviating the objection to which he had referred. He trusted, that for this purpose, the Bill would be allowed to stand over till Monday.
The Lord Chancellorwas not aware of any objection of the sort urged by the noble Marquess. No new charge would be thrown by the Bill upon the city of Chester. The charge would be precisely the same as it always had hitherto borne. The city bore it at the time the Act was passed, under which the recent doubts had arisen, and the Bill only went to restore things to their former state. It seemed to him that there was no ground made out for the postponement of this measure. The assizes at Chester were about to commence, and the provisions of this Bill might become absolutely necessary.
The Bill was read a third time.

ECCLESIASTICAL COURTS—DISCIPLINE OF THE CLERGY.
Lord Broughamsaid, that on looking into the Orders of the Day of the House of Commons, the only acknowledged and authorised means of his becoming acquainted with what had taken

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place in the other House of Parliament, he saw that Bills had been brought into that House by the Attorney General, for the improvement of the administration of Justice in the Ecclesiastical Courts, and also for the better maintenance of the discipline of the clergy of the Established Church. He was not about to recommend their Lordships to entertain the smallest possible degree of jealousy on account of these proceedings in the other House of Parliament. On the contrary, he was well pleased with them; and he hoped that the House of Commons would send up to their Lordships' House an amended measure, in which their Lordships might possibly all concur, or at least one on which, in its principle and its general details, might well recommend itself to their Lordships' favourable attention. It was fit, however, for the sake of himself, and of his colleagues of the late Administration, that he should say, they had not waited till now before they brought in a measure of the sort. They had had the report of a commission, a most learned commission, composed of men learned in both branches of the law, docti utrius juris, who had investigated the whole of this intricate subject, and who had prepared a report, which, he would venture to say, for learning, soundness of views, and general excellence, had never been surpassed by the report of any commission whatever. He did not now panegyrise it for the first time, for he found, by reference to the sort of records they were in the ordinary habit of consulting on these matters, that on the 12th of July, 1833, he had expressed the same opinion, in nearly the same words. He was glad to find from what had occurred, as he had learned, in another place last night, that his own opinion was amply confirmed by that of other persons. In consequence of the Report of the Ecclesiastical Courts' Commissioners, drawn up chiefly by an hon. and learned Friend of his, now a Judge in one of the Ecclesiastical Courts, (Dr. Lushington), but in which the rest of the Commissioners fully concurred, he had deemed it his duty to cause Bills to be prepared to carry into effect the greater part of the recommendations of those Commissioners, and it had been his intention to divide the reforms he intended to introduce into six Bills, for the same persons might not agree to all the recommendations, and he did not wish to have any one lost because another was objected to. Some objection was afterwards made to this
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course, and after the six Bills had been prepared, he, on the recommendation of the Commissioners themselves, to whom he felt bound in some things to defer, had consolidated the six Bills into one Bill, which he had brought into their Lordships' House on the 12th of July, 1833, when it was read a first time, and ordered to be printed. It was entitled in nearly the same words used to entitle the Bills that had last night been brought into the House of Commons. The measure was described as a Bill to consolidate the several Ecclesiastical Jurisdictions in England and Wales (the Bill of last night was described as a Bill to consolidate the Jurisdictions of the several Ecclesiastical Courts in England— not naming Wales—but he supposed that Wales was not to be omitted), and to enlarge the powers and authorities of such Jurisdictions, and to amend the law relating to matters Ecclesiastical. The other was a Bill for the better maintenance of the discipline of the clergy of the Church of England. The Bill which he now held in his hand (the first of those mentioned as introduced in 1833), addressed itself to some other points, and he purposely avoided pressing it when he introduced it, as it was his wish at that time that it should stand over for further consideration. And there were, in the circumstances that then existed, ample reasons why so important a Bill should not be pressed at that moment, for there were then under the consideration of this House of Parliament, the Bill for opening the East India Trade, the Bill for reforming the Scotch Burghs, giving, in fact, a new constitution to Scotland; a Bill respecting the Irish Church, and three or four important Law Bills. He thought, therefore, that they had quite enough to do during the few weeks between the 12th of July, and the 29th of August, when Parliament was prorogued; and, therefore, on account of the importance of the Bill itself, and of the other Bills then before their Lordships, he had held it fit to recommend, that this particular Bill should be printed, and stand over for future consideration. Before the discussion of the subject could be brought on, he had warned their Lordships, that there was one point or two, but one particularly, on which he had doubts respecting what the Commissioners had proposed. On this one, (the others respected wills, and also pews and faculties) there had been a strong recommendation of the Commissioners, and he had the misfortune to differ from them, and that was

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with respect to the law relating to the Church-rates. He did not mean to say, that the law on that subject ought not to be changed, but that the change which they recommended, was not that which ought to be made. In deference, however, to their opinion, he had inserted the matter in the Bill. In the course of the last Session, the opinion and assistance of a very learned person, lately the King's Advocate, now a judge of one of the Ecclesiastical Courts, who had himself been one of the Ecclesiastical Commissioners (Sir Herbert Jenner), had been asked, and the new Bill, afterwards prepared, had omitted the clause relating to Church-rates, and another clause, relating to Wills, had also been reconsidered and re-modelled. The clause relating to Wills of real and personal estate had been directed to be framed anew, and the Bill thus altered was to be presented to Parliament during the present Session. Another Bill of a similar sort had now been introduced in the other House of Parliament, but as this House had already gone at some length into the Bill which he had himself proposed in 1833, and as their Lordships could not know, and, indeed, could not anticipate the fate of the Bill in the other House, he should again present his Bill to them, but should not press it forward until he saw whether the Bill in the other House was likely to come to them at all, or, if so, was likely to come in such a way as to be likely to secure their concurrence. In this Bill which he now presented, he had omitted the clause relating to Wills of real and personal estate. The reason was not that it was not an important matter, but because it was likely to be provided for by a distinct and separate measure. From the time of Lord Hardwicke almost, but certainly from that of Lord Loughborough, there had been great differences of opinion as to the propriety of the distinctions established in the execution of Wills of real or of personal estate. By the law as it now stood, personal estate to the amount of one million might be made the subject of a Will not attested by any one, but an acre of ground could not be devised without being attested by three witnesses. His proposition was to apply the statute of frauds to bequests of personal as well as to devises of real estate, but in a manner different from the present, so that in each case there should be two witnesses to the Will. That was not the only matter. The other Bill, which he meant to lay on their Lordships' Table, addressed itself to
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the same point as one of the Bills lately brought in by his hon. and learned Friend the Member for Edinburgh, but that Bill did not profess to be on the recommendation of the Ecclesiastical Commissioners.— There had been a conflict of opinion between the Ecclesiastical and the Real Property Commissioners. The hon. and learned Member for Edinburgh was a member of the latter, and his Bill proceeded on the recommendation of the Commission to which he had belonged. He should, therefore, wait to see that Bill when it came up to this House, before doing anything, but in the meantime he should introduce his own Bills—into which, though originating, as he had said, in the recommendations of the Ecclesiastical Commissioners, with some of whose opinions he had an irreconcileable difference. He had introduced some suggestions and improvements.
The Lord Chancellorsaid, that the Ecclesiastical Commission had been issued in the time of the Government of the Duke of Wellington. He agreed with the noble and learned Lord as to the merits of the individuals who composed that Commission, and, as to the merits of their Report.—That Report had been presented three years ago. It was laid on the Table, but was not printed—at least he had inquired for a copy of it, and could not procure one. The matter slumbered till the change of Administration, when the Bills introduced last night into the House of Commons were prepared. He had reason to believe that the Bills which had been at first prepared had undergone some material improvement.—The first Bill had been submitted to Sir Herbert Jenner and to Sir J. Nicholl, and the measure thus revised appeared to him a good measure. The course he had pursued seemed to him the most correct and proper. He had written to the late Attorney-General, asking him, whether he intended to proceed with the Bills, and had received for answer that that hon. and learned Gentleman considered the Bills to belong to the Government. Upon receiving that answer he (the Lord Chancellor) had a consultation with Sir Herbert Jenner and Sir J. Nicholl, and it was then agreed, that the matter should not form one Measure, but should be divided into two or three Bills. The noble and learned Lord had said that the Real Property Commissioners differed from the Ecclesiastical Court's Commissioners, and had expressed his preference to the conclusions come to by the former. In

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that preference he (the Lord Chancellor) perfectly concurred. But as the Bill with respect to the Execution of Wills was introduced into the other House of Parliament, he thought it proper that the Bills should be considered together, and therefore he had suggested to his hon. and learned Friend the Attorney-General, that the other Bills should be brought in at the same time, so that all might run their course together, and all the different Measures be considered with relation to each other. If it should turn out that these Bills were not adopted, or came up to their Lordships in a shape to which they could not agree, they might then enter on the consideration of the Bills proposed by the noble and learned Lord. He should not object to these Bills being read a first time.
The Bills were read a first time.

PILOTS AT FOLKSTONE.
Lord Radnorbegged to call the attention of the noble Duke to a provision contained in the Cinque Ports' Bill, which was thrown out last Session in consequence of the noble Duke's opposition. The provision was for the establishment at Folkstone of permanent stations of Pilotage, and that, the noble Duke asserted, he, as Warden of the Cinque Ports, could carry into execution without an Act of Parliament being necessary. Such an establishment was greatly desired, but that the noble Duke now found that he had no power to carry it into effect. As it appeared, however, that his Majesty's Government intended to issue a Commission for examining into the state of the Pilotage of the United Kingdom, he wished to know whether that Commission would report upon the particular point, whether it would report in time to enable some step to be taken in reference to it this Session, and, if not, whether the noble Duke intended to adopt any measures for effecting the object in question?
The Duke of Wellington: The noble Lord has done me the honour to refer to what I said in the debates of the House respecting the Cinque Ports' Bill; but the noble Lord is undoubtedly mistaken in supposing that on that occasion I asserted I could carry into execution the objects of the Bill without resorting to an Act of Parliament. I was perfectly aware that I had no power to carry into execution the clause he alludes to. The clause, I think, enabled the Lord Warden of the Cinque Ports to appoint certain boatmen to reside at Folkstone, and that power, I knew, I did not
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possess. With respect to the appointment of Pilots to reside at Folkstone, I must tell the noble Lord that it is not in the power of the Legislature, according to the existing system, to oblige the Pilots to reside anywhere. When they are made Pilots, and have received their general warrants as such, they are not to reside at Folkstone or on any other part of the coast, but they are to cruise off Dungeness in certain vessels which, by Act of Parliament, they are required to provide for that purpose. With regard to the Commission appointed to inquire into the state of the Pilotage and the time at which they may be expected to make their report I can only say in reply to the noble Lord, that his Majesty's Government are desirous that the Commission should proceed with the utmost activity, though not without due deliberation, and that the whole matter should be regulated on the truest principle of the public welfare. Should the Commissioners be of opinion that it would be advisable for certain Pilots who are now required, by Acts of Parliament, to cruise off Dungeness to reside at Folkstone I can have no objection to the Legislature making provision accordingly; but, at present, there is no means of compelling them to reside in any particular place.
Subject dropped.