Lords Sitting of 8 July 1836

MINUTES.
Bills. Read a third time:—Liverpool Fire and Life Insurance.—Read a first time:—Murderers Execution.

MARRIAGES—MISTAKE IN THE BILL.
A Message from the Commons, brought up by Mr. Wilks and others, informed their Lordships, that a proviso in the 18th Clause of the Marriages' Bill, to this effect:—"Provided that at the time of such marriage each of the parties shall declare to the Superintendent Registrar, 'I do solemnly declare that I have conscientious scruples against marrying in any church or chapel, or with any religious ceremony,'" although struck out by way of amendment on the third reading, had, by mistake of the Clerk, been retained and engrossed, and appeared in the Bill as printed by order of their Lordships, and read a first time. Their Lordships were therefore requested to expunge that proviso, the same not forming part of the Bill as passed by the Commons.
The Messengers having withdrawn,
Viscount Melbournequoted two precedents—the one of a message in 1797, brought up by Mr. Wilberforce, the other
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by Sir George Hill, in 1803, and moved, in conformity with the practice followed in those cases, that the proviso alluded to be expunged, that the Bill be reprinted, and that a message be sent to the Commons to inform them that the proviso had been struck out.
The Earl of Shaftesburythought the proper way would be, as the House of Commons had sent up an incorrect Bill, to move that it be returned to them.
The motion was agreed to, and ordered accordingly, and the aforesaid proviso was ordered to be expunged, and a Message sent to the Commons to acquaint them therewith. Then the Bill was read a first time, ordered to be printed, and to be read a second time.
The Bill was then read a first time, and ordered to be read a second time on Monday next.

ADVOWSONS (IRELAND).
The Marquess of Westmeath The Marquess of Westmeath moved for "a Copy of the Petition of Lay Patrons of Advowsons in Ireland to his Majesty, which was put into the hands of Lord John Russell, Secretary of State for the Home Department, in the month of June, 1835, and for any answer which his Majesty may have been advised to give thereto," By the

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17th and 18th Charles 2nd, cap. 2, sec. 158, and the 2nd Anne, cap. 6., sec. 15th and 25th, Acts passed in the Parliament of Ireland, all Roman Catholics or Papists, patrons of Ecclesiastical livings in that kingdom, were deprived of the patronage and right to present to those livings, and the right of presenting was vested in the Crown as trustee, until such Papists, or their heirs, should take the oaths of allegiance, abjuration, &c, and conform to the Protestant religion, whereupon such right was to be again revested in the person so conforming and his heirs. The Crown having neglected to execute the trust by omitting from time to time to present clerks to the respective churches of the divested Papists, the Bishops should have collated thereto by lapse; but, instead of doing so, they collated to them as of their own right, and still continue to do so whenever a vacancy occurs, thereby putting the heirs of the rightful patrons, who have conformed (and who have consequently reinvested themselves with all their patrimonial rights and privileges) to the expense of the action of quare impedit, to obtain the actual possession of those rights—a state of things which never could have been contemplated by the Legislature when the above Acts were passed; on the contrary, the latter part of the 158th section alluded to, enacts, "That from and after such conformity, the right of presentation shall be again revested in the person so conforming, and his heirs." The subject demanded the serious consideration of his Majesty's Government; he hoped his motion would not be opposed.
Viscount Melbournesaid, the Crown could have no knowledge of the religious opinions of those who described themselves as lay patrons of advowsons, or as to the nature and origin of their rights. He did not therefore see how the Crown could at all interfere in the matter.
Lord Ellenboroughwas of opinion, that this was not a case for the Secretary of State to interfere in, and if any noble Lord thought the present law defective, as to the application of relief, such noble Lord should bring the matter forward by a Bill.
The Marquess of Clanricardehoped due inquiry would be made into this subject. According to the present form of proceeding by quare impedit, the delay and expense amounted to a denial of justice.
Lord Wynfordcontended, that already a tribunal existed for such cases, where the expense of the pleadings had been reduced as much as possible. It was impossible to recover this species of property by petition to Parliament.
Lord Plunketsaid, that the Crown was not in the situation of a trustee for the parties from whom the right of presentation to these livings was taken; for, before the Crown could be placed in that situation, it must know the nature of the right and title which the parties had to these advowsons, and must also know the religion which they professed. You could not say at once that the party from whom the right of presentation was taken was a Papist, and that he was therefore deprived of it; nor could you, on the other hand, say at once, that the heir of that party, who was a Papist, was now a Protestant, and therefore entitled to be restored to the control over these advowsons.
Lord Ellenboroughsuggested, that by referring to the clause in the Act of Parliament, there would be no difficulty in ascertaining the religion of the party claiming as a right the restoration of these advowsons. How did that clause ascertain the party's religion? By enacting that he should go to Church and take the Sacrament according to the rites and ceremonies of the Church of England. If a case were to be laid before the Attorney-General, showing that the right heir of the party from whom the presentation was taken was a Protestant, and had gone to Church, and had taken the Sacrament according to the rites and ceremonies of the Church of England, the Crown would be compelled to restore to him the rights of advowson, which had been taken from his ancestor as a Papist.
The Marquess of Clanricardecontended, that the Crown had neglected to take possession of this species of property, which it had wrested from the right owners, and that it had therefore got, by some means or other, into the hands of the Bishops, who now claimed as a matter of right to present to these advowsons. He denied that there had been any measures recently adopted to diminish the expense which it was necessary to incur in vindicating for individuals of this description.
The Bishop of Exetersaid, that it was too much to suppose, without further inquiry, that the Bishops having not for

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many years collated to these livings, had collated to that to which they had no light. If the right of presentation to these livings was in the Crown, the Bishops had no right to collate to them; but it was unfair to presume, without examination, that the Bishops had done that which they had no right to do.
The Duke of Cumberland: If I recollect right, it was said on a former occasion, that the Crown had taken possession of the right to the presentation of these livings, and had given it over to the Bishops of the several dioceses in which they were situated.
The Marquess of Westmeathcould not help thinking still, that this was a case of peculiar and remarkable hardship. The noble Viscount at the head of the Government asked, what could the King's Ministers do in this case? He (the Marquess of Westmeath) answered, that the King's Commissioners had the custody of the public records: the King's Ministers could constitute a Commission to inquire into the right of presentation to these livings, and could greatly facilitate the ends of justice. He was not of opinion, as the noble and learned Lords (Plunket and Wynford) who had spoken seemed to be, that it was desirable to plunge a man into that delectable remedy, a court of law, which the noble and learned Lords seemed to consider as the panacea for evils of this case. The noble and learned Lord who sat near him (Lord Wynford) had said, that the expense and delay attending the proceeding by quare impedit had been of late greatly diminished. He (the Marquess of Westmeath) admitted, that such might have been the case in England, but he defied the noble and learned Lord to tell him of one single statute which had been passed with that object in Ireland. The proposition for which he contended was this, that no man with two eyes in his head [laughter] could read the Acts to which he had referred, without being convinced, that it was intended by the framers of that Act, that any Peer if a Catholic, from whom the right of these advowsons had been taken, who had conformed to the Protestant religion, should take possession of that right without being compelled to go to law. And he considered, that the Crown, having the means in its power, by possession of the public records, and other circumstances, ought to afford him every facility in the recovery of that right.
Motion agreed to.

DISCIPLINE OF THE CHURCH.
On the motion of the Lord Chancellor, the Church Discipline Bill was recommitted.
The two first clauses were agreed to. The third, fourth, and fifth clauses were postponed.
Clauses 6, 7, 8, and 9, were agreed to, and Clause 10 postponed.
On Clause 12, persons promoting suits to execute bonds for payment of costs,
The Bishop of Exeterthought that the Bill as it at present stood was defective in one material particular, viz., that it afforded no encouragement to the prosecution of those cases in which prosecutions ought to be instituted; nay, rather contained a provision which went to discourage those prosecutions, because it was provided that no person should be allowed to institute a prosecution against any clergyman, unless he would submit to enter into a bond of 100 l. He spoke from experience when he said that the difficulty of procuring voluntary prosecution was at present almost insuperable; and undoubtedly the expenses must always be such as would deter individuals from prosecuting. By the old law the Bishop was subject to the expenses of prosecutions, but that was peculiarly objectionable, because the Bishop's officers were the persons who tried the offender, and the Bishop therefore would have an appearance of interest against the offender, and an interest to procure costs from him, in order to pay back a portion of the amount for which the Bishop was liable; but how much would that objection be increased when the Bishop personally presided at the trial? To remedy this he knew of no other mode than that which he would take the liberty to suggest. The Commissioners for inquiry into the state of the Church had recommended in their last Report that several offices, commonly considered as sinecures, should be destroyed, and the revenues paid over into the hands of certain Commissioners, hereafter to be applied for the purposes of the well-being of the Church; but he submitted there could he no more just, no more reasonable purpose—none in which the best interests of the Church were more concerned—than the taking care that the real delinquents should be punished, and the Church be freed from the scandal arising from the conduct of unworthy members. He begged to propose a clause to the effect—that after any suit may have been commenced, if the party should be unable effectually to prosecute

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his charge, by reason of the expenses attending that prosecution, the Bishop may appoint an Archdeacon to carry on the prosecution, and bear all the lawful charges; and that such Archdeacon should report to the Bishop a true account of all expenses so incurred, deducting there from any costs which may have been allowed to him in the cause; and that the Bishop shall subscribe an order to refund those expenses, addressed either to the Governors of Queen Anne's Bounty, or any other treasurer of the revenues of suppressed sinecures in the diocese; and that, after the production of such order, such treasurer be directed to pay out the sums from one of the said funds.
The Lord Chancellorwas afraid, if that clause were agreed to, that all the proceedings in every case would ultimately fall upon that fund. The clause was in-opposition to the principle of law, that the prosecutor was responsible for the propriety of the proceedings.
The Bishop of Exeterwas far from being bigoted to his own plan; but he was confident, that unless some means were devised to shield prosecutors from the necessary expenses, there would be an end to the discipline of the Church, and the clergy would only be restrained by their own sense of decency and of duty, which hitherto, thank God, had been so conspicuous and unexampled.
The Archbishop of Canterburysaid, it was very true that prosecutions before the Ecclesiastical Courts had been very unsatisfactory; and that the great cause of that had been the large amount of expenses to which prosecutors were subject. He did not allude to the penal bond, because he apprehended that 100 l. would go a very short way towards paying those expenses. It must be allowed that it was very desirable that some means should be devised of defraying the expenses, when really a prosecution was required, and the case was one of a trying nature; but, according to the amendment proposed, there would not be a single cause found in which the expenses were not paid out of the fund. Now, he should be sorry to divert the fund alluded to, which was intended for the increase of small livings, to any other purposes; for by adopting that, whilst they were doing good to the Church in one way, they would be impeding one of the very great purposes for which the Church Commission was intended.
Lord Ellenboroughsuggested, that some
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clause might be founded upon the principle of the rev. Prelate's amendment, and might be proposed for insertion upon the third reading.
The remainder of the clauses passed through the Committee. The House ressumed. Committee to sit again.