Lords Sitting of 15 August 1836

MINUTES.
Bills. Read a third time:—Medical Witnesses.—Read a second time:—Coal Trade; Westminster Small Debts; Greek Loan; Militia pay.—Read a first time:—
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Jewish Civil Disabilities; Pension Duties; Valuation (Ireland).
Petitions presented. By Lord STRAFFORD, from Maidstone, against the payment of Church Rates—By the Duke of WELLINGTON, from the Wesleyan Methodists, Dublin, against allowing Grocers to sell Spirits.—By the Bishop of ROCHESTER, from the Dean and Chapter of the Cathedral Church, Winchester, that the Ecclesiastical Commissioners Report may not receive the sanction of the House.

STANNARIES.
On the motion of the Earl of Falmouth, the House resolved itself into a Committee on the Stannaries Bill.
On the 1st Clause,
Lord Langdalesaid, that much opposition had been raised against the exercise of the jurisdiction now possessed by the Stannary Courts, on account of the alleged inconvenience and confusion which arose from their decisions; but still it was found that this species of jurisdiction was so valuable and so useful, that it was deemed right to establish a local court on a more extended scale. Now, he had no objection to the establishment of a local court in the county of Cornwall, for the decision of questions connected with mining concerns. If such a court were surrounded by proper safeguards, he conceived that its operation would be extremely valuable. He felt, however, considerable doubts as to whether the Bill before their Lordships was calculated to produce such a beneficial effect. He felt not a little hesitation in suffering the Bill to proceed through the second reading without observation. He did not think that it contained the necessary safeguards and precautions which ought to surround a measure the object of which was to establish a local court of a peculiar description. They ought to consider what provision was made for the judge, and what the situation of the judge would be under this Bill. The judge ought certainly to be placed in such a situation as would enable him to perform his duty fairly and impartially. What, he would ask, was the law to be administered? It was not the common law of England, but the custom of the stannaries. What those laws or customs of the stannaries were, it was extremely difficult to discover. They could not accurately ascertain what they were; and yet they were called on to pass a Bill for the administration of a species of law that was not known or perfectly understood. He next came to consider what was the situation of the judge. He was to be appointed, under this Bill, by the Duke of Cornwall, if there happened to be one; otherwise, by

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the King. He was to hold office during good behaviour; and he was removable from office by the Duke of Cornwall, on the requisition of five councillors of the Duchy of Cornwall. The judge, it appeared, was to try matters in which the interests of the Duke of Cornwall might be deeply implicated, and yet he was removable on the application of those officers. He did not think, that such a provision as this was calculated properly to secure the independence of the judge. He now wished to look a little at the history of this Bill. It originated with persons who were greatly interested in the mines of Cornwall; and as the judge was to adjudicate on matters that so nearly concerned them, it was agreed that one-half of the judge's salary should be paid out of the revenues of the dukedom, and the other half by those who more immediately promoted this measure. Every manager of a mine was to keep an account of the minerals raised; and one-fourth of the full value of what was obtained was to be paid over to meet, in part, the salary of the judge. A return of the quantity raised was to be made to the registrar of this court, from time to time; and if the individual did not make that return correctly, he was to be subjected to a penalty, to be recovered before the judge. Thus the judge was to sit trying causes, the object of which was to secure funds to meet the expenses of his own office. This, he thought, was a situation in which a judge ought not to be placed. Then the right of appeal was most defective. The appeal lay from the steward to the vice-warden, from the vice-warden to the lord warden, and from the lord warden to the Duke of Cornwall, if there were one, assisted by a certain number of councillors. He contended that there ought to be a proper appeal—an appeal either to the King in Council or to that House.
The Lord Chancellorsaid, that was not the time to consider the principle of the Bill, which had already been conceded. He did not object to several of the observations which had fallen from his noble and learned Friend; and, in fact, he had marked on the margin of the Bill some points which he conceived ought to be amended.
Lord Wynfordsaid, that cases of great importance, involving property to the amount of hundreds of thousands of pounds, were likely to come under this
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court for consideration; therefore, the measure ought to be maturely weighed before it was carried into effect. He thought that the Bill should be postponed till next Session, in order that it might be properly considered.
The Earl of Falmouthsaid, that this Bill had already undergone long and serious consideration. It had been submitted to the Magistrates of Cornwall, and also to the principal officers of the duchy, by whom it had been carefully examined. After having received various important alterations elsewhere, it now came up to their Lordships in its present state. The Bill originated with a number of individuals of very great influence in the county of Cornwall, who had devoted many months to its consideration. They felt no desire to serve any particular body; but. looked to the welfare, not merely of the mining interest, but of the landed interest, and the trading interest. They wished, in fact, to constitute a court that would be beneficial to the public in general. If they looked to the north or to the south, to Devon, or elsewhere, they would find, that where mines were wrought, local courts were established. Indeed, a noble Friend reminded him, that if they went abroad, they would find no part of the world in which minerals were sought after that did not possess its local court.
The 1st Clause was agreed to.
On the 2d Clause, relating to the appointment and removal of the vice-warden,
Lord Wynford Lord Wynford moved an amendment, to the effect that the vice-warden could not be removed except by the certificate of the Barons of the Exchequer, that he had done some act to justify his removal. He contended that it was an anomaly, and inconsistent with that independence which a judge should possess, that his removal from office should depend on the will of that party who might be said to have an interest in most of the causes which came before him.
The Lord Chancellordid not object to the principle, that a judge should not be removable at the pleasure of those who appointed him; but he thought it would be better to have the same rule apply in this case as in that of the judges of the courts in Westminster Hall—namely, that their removal could take place only by address of both Houses to the Crown.
Lord Wynfordwould not object to that

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course, and was willing to shape his amendment accordingly.
Lord Hollandsaid, that there were difficulties in this case which ought not to be overlooked. The Duchy of Cornwall was now in the possession of the Crown, but suppose it should be held distinctly from the Crown, it would then be the private estate for the time being of the party holding it, to which were attached certain jurisdictions and privileges. Would their Lordships now interfere with those privileges, and say, that the Duke of Cornwall at a future period should not appoint or remove his own judicial officers? He thought it better to let the matter stand as it now was in the Bill.
Lord Langdalethought the least difficult way to settle the point would be to leave the removal in the hands of the Crown, on an address of the two Houses of Parliament.
Amendment negatived.
Clause agreed to.
On the 5th Clause, which gave an appeal from the vice warden to the lord warden, assisted by some of the judicial Lords of the Privy Council,
Lord Langdaleproposed an amendment to add these words:—"subject to an appeal to the Lords Spiritual and Temporal."
The Lord Chancellorthought that would be hard on some of the suitors in small cases, though in important cases, such an appeal might be necessary.
The Earl of Falmouththought it would be a hardship, for there would then be an appeal in almost every case. He would suggest that the appeal should be to the lord warden, assisted by a Baron of the Exchequer. He would prefer one appeal.
Lord Langdalewould also prefer one appeal; but he did not approve of the one proposed.
Amendment carried, and clause agreed to.
On Clause 7,
Lord Wynfordproposed, that in trials in any of the Courts under this Bill there should be power to move for a new trial, as in the courts at Westminster, and that the application for such new trial should be made to the vice warden, or to one of the Courts at Westminster, and that, if necessary, the new trial should take place in the neighbouring county of Devon.
The Lord Chancellorsubmitted, that the Stannaries Courts were wholly inde-
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pendent as to their jurisdiction, and he must object to the amendment affording the right of an application for new trials to any of the Courts of Westminster Hall. The application ought to be made, in the first instance, to the vice warden; and if he should refuse the motion, his decision could be questioned by appeal in the same manner as any other order he might pronounce.
Lord Wynfordsaid, that as this Bill did not give a writ of error, he was only anxious to provide for the correction of mistakes arising either on questions of fact, on the misdirection of the learned judge at Nisi Prius, or from verdicts against evidence—in a word, that the judgments of these courts should be examinable. He should be quite content provided there was secured to parties a means of control over the judgments, if erroneous, of the courts below.
The Lord Chancellorwould, on the Report, secure this by giving an appeal from a judgment at Nisi Prius, in the same manner as from any other order of the vice warden. He had no objection to include in his amendment the provision proposed, by which a cause might be sent for trial to the adjoining county.
Clause agreed to.
On Clause 36,
Lord Lyndhurst Lord Lyndhurst moved an amendment to the effect, that the learned counsel whom it was understood was to be appointed to the office of vice warden should be permitted to practise as a Barrister for three years from and after the passing of the Act except within or in cases connected with the county of Cornwall. He was induced to make this proposition, inasmuch as the court over which he was to preside was a mere experiment, and as everybody knew that no professional man having left the Bar, could return to it except under great loss and disadvantage. By his being permitted to remain at the Bar, he would continue to mix with his professional brethren, whom he would be enabled with great public advantage, to consult on cases of difficulty, and in the arrangement of the business of his court.
The Earl of Falmouthobjected to the alteration proposed by the noble and learned Lord. The arrangement had been made, and the salary of the vice warden had been increased to the amount stated in the Bill, on the ground that he should cease to practise at the Bar, and should

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give his whole time and attention to the business of the county. The proposition of the noble and learned Lord had not even been suggested in the Commons, and he contended, that after a salary had been secured, on the arrangement of the learned gentleman's ceasing to practise at the Bar, it was too much now to interfere with that arrangement in the manner proposed.
Lord Lyndhurstsaid, he had authority for stating, that at the very time it was proposed to raise the salary from 1,000 l. to 1,500 l. on consideration of his not continuing to practise, the learned Gentleman who had been appointed, objected and said, during the three years he might be permitted to practise he should consider himself only entitled to the salary of 1,000 l. per annum; and if at the end of three years he should not be allowed to continue to practise, that then he should expect the increased salary of 1,500 l. per annum.
Lord Wynfordremarked, that the learned gentleman who had been appointed to the office of vice-warden was a gentleman of great eminence at the bar. He did not doubt but many gentlemen at the bar might be found who would be ready to take the appointment on other terms, but he was satisfied no person of eminence would do so. He agreed with his noble and learned Friend near him that the Bill was an experiment, and on those grounds supported the amendment.
Lord Langdalesaid, that if the Bill was to be a mere experiment, a clause ought to be introduced to restrict its operation for a period in which that experiment could fairly be tried, instead of appointing a judge with power to continue to practise at the bar for three years, thus allowing him an opportunity of choosing which of the two lines of life best suited his habits. For the experiment, even the judge ought to devote his whole heart and soul to the business, and if the Bill was to be permanent, his whole time and attention ought to be applied to it. To a limitation of the term of the Bill he should not object, though he must strenuously oppose the proposition for the Judge being allowed to continue to practise at the bar.
Lord Lyndhurstobserved, that as it was not at present known what was the extent of business to be disposed of by this court, the Bill was a mere experiment, and no valid objection to his alteration of the clause had been even suggested.
Amendment negatived, and the clause ordered to stand part of the Bill.
Remaining clauses agreed to. The House resumed, Bill reported with amendments.

CORPORATE PROPERTY (IRELAND) BILL.
Viscount Melbourne, in moving the second reading of the Corporate Property (Ireland) Bill, said, that the main objects of the Bill were to restrain the corporations in Ireland from any alienation of the corporate property, or the exercise of any patronage they might possess, until Parliament should have legislated on the subject.
The Duke of Wellingtondeclared, that he never could consent to be a party to the statements contained in the preamble of this Bill. There were points also in the enacting clauses to which he most decidedly objected, but he could not allow even this stage of the Bill to pass without expressing his entire dissent from the statements contained in the preamble, since he considered the measure both unprecedented and contrary to justice.
Viscount Melbourneobserved, that the Bill merely went to provide a remedy for the loss of the Municipal Corporations (Ireland) Bill; and with regard to the preamble, so much objected to, it merely recited facts. He would read it: —"Whereas it is fitting and expedient that provision should be made forthwith against the wasting of the estates of Corporate towns in Ireland, their corruption and abuses, until such time as Parliament shall provide a remedy." That there had been great abuses in the corporations of Ireland could not be denied, or why was it that noble Lords opposite had, in the early part of the Session been so desirous for the total abolition and destruction of corporate bodies in Ireland? Noble Lords opposite could not refuse to assent" to the recitals in the preamble. Those recitals were merely statements of facts; those facts he had considered to have been admitted by noble Lords opposite, and he very much doubted whether this measure was either unprecedented or contrary to justice.
Lord Lyndhurstbegged to say, that he, for one, had never admitted the existence either of corruption or abuse in the corporate bodies of Ireland. The grounds upon which he contended for their extinction was, that they were administered on party

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principles. As to corruption and abuse, they never had been admitted by noble Lords on his side of the House. On the contrary, they had stated that they had no evidence of any such corruption or abuse on which they ought to act. It appeared to him that this was a most extraordinary Bill, even independent of the terms of its preamble. What were its enactments? Why, first, that any contract fraudulently made by these corporate bodies should be null and void. Were they not so even by the operation of the law as it stood. The second declaration of the same enacting clause was, that where a corporation disposed of its property for an inadequate consideration, such disposition should be wholly null and void. But the clause contained no provision whatever for the repayment of the purchase-money; so that if he, or any other person, contracted with a corporation on the present principles, to buy their estate for 5,000 l., and that it turned out the consideration money was inadequate by 200 l. or 300 l., he, or the purchaser, whoever he might be, would become a mere trustee for the corporation, and have no means of recovering his purchase-money, but by a suit in equity, and when he had obtained his decree, the corporation might be without funds. Could anything be more unfair, unjust, or absurd? What was the next provision? It enacted, that with respect to conveyances so pronounced null and void, that Parliament might in the next or ensuing Session, provide some means for calling them in question. Now the courts of justice were open for purposes of this kind. Why should they legislate to provide a mode of proceeding which was already in existence? or, if proper to legislate at all upon the subject, why empower the Legislature to do that which they had the power of doing without any present interference? The second clause of the Bill enacted, that if any appointments were made, which should eventually be deemed unnecessary, and the parties holding them should be removed by any subsequent Act of Parliament, such parties should not be entitled to any compensation. Was it not better to leave this matter to the judgment of Parliament when it came to legislate on the subject? He did not mean to say, that he opposed the second reading of the Bill, but the objectionable parts of the preamble must be struck out, and the clauses remodelled
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in Committee. The Bill comprised only one page, and was the most singular specimen of legislation ever sent up to that House of Parliament.
The Earl of Falmouthprotested against the use of the words "corruption and abuse," contained in the preamble of the Bill, on no better evidence than the report of the Commissioners. The Bill went further than the measure of last year, and he objected to it on constitutional grounds, and on the first principles of justice. He never could suffer a Bill of this nature to pass, he never could sanction so abominable an assumption of facts as the preamble of this Bill set forth.
Lord Hollandsaid, the House had had some experience of what the noble and learned Lord (Lyndhurst) meant by remodelling a Bill. The noble and learned Lord had not spared the ruffian Bill, as the Irish Corporation Bill had been termed; and now he was about to embrue his hands in the blood of this little infant measure, which was, in fact, a child of his own. Noble Lords opposite had told the Government over and over again, last year, that they were ready to meet the Government half way, and to do anything to enable them to consider the matter this year, if necessary; but now they said "No;" and what, he would ask, was the reason for pursuing such a course? It appeared to him that the noble and learned Lord seemed to want to disgust the people, and indispose them to that House; the people would say—" That cruel tyrant, who has done away with so many of our Bills, is now diverting himself with killing a fly." After he had washed his hands in the blood of so many important Bills, he had now come to destroy this little innocent. Why, the noble Lord said he would do so in Committee. Indeed, noble Lords on his (Lord Holland's) side of the House had nothing to do but to lament over the destruction of the Bills which had been brought into the House this Session. If the noble and learned Lord was sincere in his views—if this Bill was such as would disgrace the statute-book, why attempt to new-model it in Committee? Why did not the noble and learned Lord vote against its second reading? The noble and learned Lord had been silent as to the amendments he intended to propose; but he, judging from the thunder of his index to the second reading, could not doubt that those amendments must be terrible indeed,

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and fatal to the Bill; and then the whole murder would out, and show that the intention, all along, had been to keep up those notable corporations, which, during the discussions last year, were allowed to be corrupt and full of abuses, and, as the noble and learned Lord now said, were completely under party government, just as they were, and to give to a party a triumph.
Lord Lyndhurstsaid, that really there was no pleasing the noble Baron who had just sat down. If noble Lords on his (Lord Lyndhurst's) side of the House objected to the second reading of a Bill, his cry was, "Read the Bill a second time, and go into Committee;" if, on the other hand, they should read the Bill a second time, and go into Committee, that course was objected to. The noble Baron had expressed some alarm that this Bill should be altered, it was so small; it was an insect to be sure, but then it had a poisonous tooth, and he wished it to go into Committee, in order to take away its poisonous power. As to the remark, that we (continued the noble and learned Lord) shall disgust the country, and indispose the people towards this House, because we will not agree to measures unjust in character—to Bills which, in their very preambles, are libels on his Majesty's subjects—Bills which are inefficient in some of their clauses, unnecessary, unjust, and atrocious in others, I am sure that we shall not offend or displease the people of England, if, in the discharge of our duty as Legislators, we watch over every Bill that is sent up to this House, and do not send out any Bill of which we do not approve conscientiously, and believe is consonant with the principles of the laws and constitution of this country. I am sure the course we are pursuing is much more likely to recommend this House to the country than the careless course of legislation recommended by the noble Baron.
Lord Hollandthought, the inconsistency with which be charged the noble and learned Lord, lay in the fact, that, in agreeing to go into committee on the Bill, he had stated his arguments against the whole principle of the Bill, its preamble, and groundwork of it; that course was quite as inconsistent as if he threw out the Bill, on its second reading, on matters of mere detail. As to the manner in which the country would judge of the noble and
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learned Lord's conduct, he wished him joy of the great advantage he would gain by so altering this Bill as to lose it.
Lord Ellenboronghsaid, that he and his noble Friends on his side of the House did not wish to protect abuses or to prevent their extinction; on the contrary, they had shown by the amendments of last year, in which the House of Commons did not think proper to acquiesce, that their object was to remove the abuses which really existed. At the same time he and his noble Friends could not agree with the preamble of the Bill impugning, as it did so unjustly, the Corporations alluded to; and though they might agree to the second reading, that would not deprive them of the right of altering such of the details of the Bill as might appear to be objectionable.
Bill read a second time.

COMMON FIELDS' ENCLOSURE.
The Earl of Shafteshurybrought up the Report on the Common Fields' Enclosure Bill.
Lord Ellenboroughproposed the insertion of several amendments, chiefly verbal, and some consequential. One of the latter was an amendment on the last clause, which exempted from the operation of the Bill all waste lands belonging to the lords of manors; he proposed that all waste lands whatsoever should be so exempted. In short, the object of the Bill was, to increase the productive power of the agricultural class, and to promote the cultivation of lands which could not now be cultivated. The Bill was not exactly in the state he should have liked to see it, but, amended as it would be by their Lordships, he did not think it would work any injustice to any one, while it would find employment for a vast number of our agricultural population.
Lord Hollandwas not disposed to offer any opposition to the Bill; on the contrary, he thought the proposers of it deserving of thanks for the measure. But there was one clause in it which excepted from the operation of the Bill all waste lands and commons within ten miles around the metropolis; that he thought a very ample exception in favour of the metropolis, and perhaps it was greater than was necessary, but he wished to see a similar provision made for the several towns and cities of England beside. It had been matter of surprise to all foreigners, and, indeed, a reproach to this country, that though its laws and institutions were formed on pro-

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per and liberal grounds, yet there were no places provided suitable for the healthful exercise and recreation of the people. In order to carry out the principle, then, which had been made applicable to London, he should propose the insertion of a new clause to exempt all commons and waste lands within two miles of every city, borough and town in England, the population of which amounted to 500 persons.
Lord Ellenboroughconcurred in the proposition, and undertook to draw up a clause to promote the object of the noble Baron (Lord Holland). He thought it extremely desirable that the people should have some open space to which they might resort for healthful recreation. It was much better for them to have such places left open to them, than to be shut out and left no other resource than the alehouse and beershop. He thought, however, that one mile would be sufficient for the noble Lord's purpose, as applied to other places than the metropolis, taken in conjunction with the other provisions of the Bill.
Lord Holland acquiesced.
Report received. Bill to be read a third time.