Lords Sitting of 29 March 1836

MINUTES.
Bills. Read a third time:—Indemnity; Slave Treaty (Spain); School Sites Conveyance; Ecclesiastical Leases Regulation.—Read a second time:—Letter Stealing (Scotland); Sale of Bread.
Petitions presented. By the Bishop of LONDON, from the Minister and Congregation of St. Mary, Maldon, for some provision to ensure the Better Observance of the Sabbath.—By the Duke of NORFOLK, from Debenham, for the Repeal of the Duty on Newspapers.—By the Archbishop of Armagh, from Clergymen in Limerick, for Protection to the Protestant Church of Ireland.—By the Earl of HARROWBY, from the Electors of Stafford, against the Stafford Borough Disfranchisement Bill.

MUNICIPAL CORPORATION ACT AMENDMENT.
The Lord Chancellor, in moving the second reading of the Municipal Corporation Act Amendment Bill, observed, that considerable inconvenience had arisen from some of the provisions of the Act passed last Session, as well as from misconceptions that had been entertained with reference to other portions of the Act, which rendered it necessary that certain alterations, intended to amend and to explain the Act, should be made. To a few of these he begged leave to call their Lordships' attention. The inconvenience arose in this way from the working of the Bill of last Session. Some misunderstanding had occurred as to the validity of the election of Mayor, under the 38th section of that Act, in consequence of a defect in the title of the presiding officer before whom the election had been made, though, in all other respects, it was good. The first clause of this measure was intended to set that point at rest, by declaring, that "no election of any person into any corporate office shall be liable to be questioned after the passing of this Act, by reason of any defect in the title of the person before whom such election may have been held, provided that such person so presiding shall have been then in the actual possession of, or acting in, the office, giving the right to preside at such election;" and it further provided, "that all acts duly done in the

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right of their office, since the 25th day of December, by the persons so chosen at any such election, shall be good to all intents and purposes, notwithstanding the person or persons before whom such election may have been held may not have been the person or persons legally entitled to preside at such election." By another clause of the Act of last Session it was provided, that elections should be held before the Mayor and assessors. But, in some instances, it happened that the election took place before the assessors were appointed, in consequence of that appointment being fixed for the month of May, The present Bill proposed to cure that defect, by declaring, "that all elections had, before the passing of this Act, or to be had under this Act, before the election of assessors, the Mayor or councillor presiding, shall be as good as if held before the Mayor and assessors jointly." By another clause in the present Bill, it was enacted, that the Court should have the jurisdiction to settle the burgess roll; and it is provided, "that the burgess roll, for the time being, of any borough named in the schedules, shall be final and conclusive evidence of the title of any person to be on the burgess list of any such borough." By the preceding Act it was provided, "that in every case in which there shall be a division into wards of any borough, the assessors who shall hold the court for revising the burgess lists, with the Mayor, shall be the assessors of the Mayor's ward." Now, it might so happen that, if the Mayor should be chosen from among the Aldermen, there would be no Mayor's ward in the borough, and, therefore, there could be no Mayor's assessors. Therefore, that part of the Act of last Session was repealed; and it was now enacted, "that, in every borough divided into wards, two assessors shall be chosen on the 21st day after the passing of this Act, and in every subsequent year on the 21st day of March, to hold the court for revising the burgess lists with the Mayor." Again, it was provided by the Act of last Session, that the poll at elections should be kept open from nine o'clock until four, in the event of any opposition; but it was not provided, where there was no contest, that the poll should close sooner. It was now enacted, "that it shall be lawful for the presiding officer to close the poll at any time before four o'clock, if one hour shall have elapsed during which no vote shall have been ten-
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dered." Another clause of the Bill of last Session provided, "that the councillors who shall first go out of office shall be those who were elected by the smallest number of votes;" but, in the event of an equality of votes, the majority of the council were to determine who should first go out of office. This provided for every case but one. It left doubtful who were first to go out of office in those boroughs where the election of councillors was not contested. It was obvious, therefore, that it was essentially necessary to alter the Act as it now stood, since, where there was no division of votes, it was impossible to ascertain who should go out of office first. The present Bill provided a remedy for that inconvenience, by enacting, that in every case which had not been contested, "the majority of the council shall decide which councillor shall go out of office." Another section of the Act of last Session extinguished certain corporate officers, Mayors, and others, who were accustomed to preside at the sessions. But, under the charters of different towns, these persons made an essential part of those sessions. It was, therefore, obvious, that the Mayor, or other officer, whose presence under the charter was necessary to constitute a court, his office being abolished, there was an inconsistency in going on with the sessions in the absence of such Mayor or other officer. Now this had created considerable difficulty, and very great doubt was entertained whether the proceedings of such court, the officers contemplated under the charter not forming part of them, were legal. To remedy this defect, it was enacted, "That any such court holden since the passing of the Act of last Session, or before the 1st of May, 1836, before the Recorder or any two persons who at the time of the passing of that Act were entitled to act as justices of the peace for any borough, was well and lawfully holden." The 19th section of the present Bill provided, that where the legal right of persons to hold corporate offices under the Act of last Session had been questioned, "it shall be lawful for the person or persons against whom such proceedings shall have been had, to apply to the Court of King's Bench for an order that such proceedings shall be discontinued on payment of costs." Those who questioned the validity of those appointments, had unquestionably a right to do so; and if they passed a Bill to give validity to

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them, to affirm the title of those officers to hold them, and also to render the proceedings against them inoperative, it was only fair that the parties who had instituted those proceedings, in order to induce a new election, should be indemnified for the expense they had been put to. There was another very important point for consideration—he alluded to that part of the Bill of last Session which had reference to the charitable funds in the hands of Corporations. By the Act of last Session, it was directed, that all charitable funds, in the hands of Corporations, should be separated from the corporate funds, and kept distinct from them. Now, those who had to take charge of those funds, those to whom they had been intrusted, could not say whether they belonged to the Corporation absolutely, or were only made over to them for charitable purposes. And, therefore, the Bank of England, and other parties, felt that they could not safely part with those funds, because they knew not to whom they legally belonged. The present Bill proposed to remove that difficulty, by directing that the funds should be paid to persons appointed by the Corporation to receive them, the receipt of such persons to be a valid acknowledgment and discharge of every such transfer and payment, and all monies so to be received to be applied to the uses provided for by the Act of last Session—namely, the monies held on charity trusts to be paid to the charity trustees of the borough, and such monies as the Corporation might be beneficially entitled to, to be applied as part of the borough fund. Another part of the Bill related to the provision of the Act of last Session with respect to the Cinque Ports. By that measure it was enacted, that the Quarter Sessions which were held in the Cinque Ports being beneficial to certain Corporate liberties of the Cinque Ports, those liberties should contribute equally to the expense. Some difficulty was found in carrying this provision into effect. It was, consequently, thought best to restore the jurisdiction of the Cinque Ports, as far as it could be done, to what it was before the passing of the Bill of last Session; taking care, however, that those places connected with the Cinque Ports which derived benefit from the holding of the sessions in those towns, should contribute to the expense thereby incurred. He conceived, that he had now stated enough to show the inconvenience which
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arose from the working of the Bill of last Session, partly from the enactments of the measure itself, and partly from a misconception of some of those enactments. It was evident that to remedy this, some legislative measure was necessary: and, without further trespassing on the time of their Lordships, he should move "That this Bill be now read a second time."
The Duke of Wellingtondid not rise to vote against the motion which had been made by the noble and learned Lord, nor to impugn the view which the noble and learned Lord had taken of it; but he must observe, that this Bill, which had been under consideration in another place for a considerable length of time, was brought into that House at a period of the Session, and at a moment, when it was impossible that it could receive that fair investigation on which the determination of their Lordships ought to be founded. Many of those who took part in the discussion of the measure introduced last Session were not at present in the House. He would say, most important persons who took a part in the discussion of the original Bill were absent. Neither, he would observe, were they in the House on the former evening when this subject was introduced. He had, therefore, at that time, entreated the noble Viscount opposite to postpone this stage of the Bill—the regular stage for the discussion of a measure of this description—to that period when a noble and learned Friend of his, and other noble and learned Lords, would be in their places, to take a part in the discussion. He had called on the noble Viscount to do so, and for this reason—because it was a complicated measure. It had required the elaborate statement of the noble and learned Lord to explain a very small part of it to their Lordships. He said, only a small part of it; for, looking at the measure attentively, as it was his duty to do, he found that the noble and learned Lord had left unexplained many most important parts of this Bill. He would say, besides, as an additional reason for postponement, that this was a measure which had attracted a great deal of public attention; and with respect to which, he must observe, he had received as many letters and as many applications, strongly drawing his attention to the subject, from all parts of the kingdom, as he had ever received with reference to any measure that had ever

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been brought under the consideration of that House. Under these circumstances, he was anxious that the noble Viscount should have been so kind as to postpone the second reading of this Bill, the second reading being the proper time for discussing the principle of the measure—a time when the House would be better prepared to take that principle into consideration than on the present occasion. He had stated, that the noble and learned Lord had not explained all the parts of this Bill, that he had touched only on a few of them. He had not, for instance, noticed the particular enactments relative to Berwick and to Coventry. Those enactments were supposed to have been under consideration in another place; but the alterations proposed were not explained in that House, nor were they explained here. There was another part of this Bill which the noble and learned Lord had not explained to the House. He meant that part of the Bill which enabled the burgesses in Corporations to elect the Mayor and Aldermen, after a certain period, in case the councillors had not thought proper to elect them. It was a principle proposed in another place, and adopted in that House—a principle which he highly approved—that the Mayor and Aldermen should be elected by the Corporation—by the councillors; but this principle was departed from by one of the clauses of the present Bill, which the noble and learned Lord had not even pointed out to their Lordships. Under these circumstances, he thought that their Lordships ought to have a fair opportunity of discussing this question on its principle in some future stage. He did not wish to throw any impediment in the way of his Majesty's Government, but upon this he insisted, that the House had a right to expect to be treated fairly on a question of this description, to which the public mind had been anxiously turned. Their Lordships ought to have the liberty, not only of discussing the principle when going into Committee, but likewise, if they thought proper, on the second reading. He felt it necessary to offer these observations to their Lordships. He had requested the noble Viscount, on the former occasion, to postpone the second reading of this Bill. He would not, however, now oppose the motion; but he must protest against passing over an important measure such as this, without mature discussion.
Viscount Melbournehad never heard, and he certainly had never offered, any objection to the full discussion of this measure. Another opportunity would occur for discussing it in all its details. His Parliamentary experience had taught him that it would be impossible to press forward a Bill against the wish of a minority, even a very small minority, of that House, much less against the wish of the noble Duke, standing in the position which he now filled. The proposition which he had made on a former evening proceeded entirely on the notion that no serious objection was entertained against any part of this Bill. He had proceeded wholly and entirely on that supposition. He had stated at the time, that if any noble Lord felt an objection to any part of the Bill, he would not proceed with it then. If such were the case, he would give way on the subject, and he would not attempt to force it forward even cow. The noble Duke had said that this was an inconvenient period of the Session for proceeding with the measure, when certain noble Lords were not present to discuss it. Why, the complaint heretofore had been, that business was brought up to that House so late as to prevent its being duly discussed; but in this instance the measure was introduced at a much earlier period of the Session than was generally the case. It should be observed, that the nature of the Bill was not very difficult to be understood, and a full opportunity would be given to consider it. The noble Duke ought to recollect, that if noble Lords were not present to discuss measures when they were introduced to that House, there was no use in bringing them up at all from the other House of Parliament. He did not wish to put this point very strongly, although he conceived that he had a right to make use of it. He was anxious to accede to every thing that tended to the convenience of noble Lords; but this he must say, that if, on the one hand, it was considered a principle that business was to be postponed because noble Lords were absent, he, on the other, would assert that those who wished to expedite business had a right to act on the rule that it was the duty of noble Lords to be present in their places when business was likely to be brought under the consideration of the House. The noble Duke said, he wished to have an opportunity to consider this measure thoroughly. All he would say was, that he would give the noble Duke a

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full opportunity for that purpose. The Bill did not contain many provisions, and he believed that all of them were necessary. Most of the provisions were matters of detail, of considerable importance, he admitted, but which would be better considered in Committee than in debate. If the noble Duke did not wish the Bill to be read now a second time, he had no objection to postpone it. But if noble Lords meant to allow the Bill to go to a Committee at all, he thought they might as well take the second reading now, and they would have a full opportunity for considering the subject hereafter. He hoped, under all the circumstances, that they would now read the Bill a second time. He was sure that in recommending this course he did not wish to press the House to a sudden decision on the subject. He conceived that the proposition which he made was not at all unreasonable, since sufficient time would be given to consider the measure in Committee.
Lord Lyndhurstsaid, that considering the nature of this Bill—looking to the number of minute provisions which it contained, and calling to mind that it had been nearly two months in the other House, he conceived that it would have been better if the noble Viscount had acceded to the proposition of the noble Duke, and postponed the second reading, that they might have had an opportunity of properly examining its details. The second reading had, however, now been moved; and, as some parts of the measure appeared to be necessary, he meant not to oppose the motion of his noble and learned Friend. He felt it necessary, notwithstanding, to call their Lordships' attention to the measure. Part of the Bill had reference to the future operation of the measure of last Session, and part of it was of a retrospective, of an ex post facto, character. It related to matters which were in being, to circumstances which had already happened. Now, with respect to that part of the Bill which had reference to the future operation of the measure of last Session, and which must be maturely considered in the Committee, he would not make any observation; but the retrospective, or ex post facto part of the measure, was of such a nature that he felt that he should not be doing his duty if he did not point out its tendency, and the way in which it was calculated to affect the rights and the situation of particular individuals
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to their Lordships. There were, as his noble and learned Friend had observed, some proceedings now pending in the Court of King's Bench—certain quo warrantos, calling in question the right of particular individuals holding situations in town-councils to retain their situations.—Now, no person who looked at the provisions of this Bill, and who considered the elections which had taken place, could avoid seeing that one of those provisions went to render those elections, so contested, valid and legal, although the elections had taken place before a presiding officer who had no right to preside. What, then, he asked, would be the consequence, so far as it related to other parties? Those persons, up to the time of these elections, had held places of trust and profit in Corporations, of which they had been deprived by those who now were in possession of office to which they had been illegally elected. Those parties were, at that very moment, entitled to hold those offices.—All that they might have received, if they had not been thus ousted, was their property, as much as the property of the noble Viscount was his. If the Legislature made those proceedings valid, retrospectively, from the 28th of December last, they would deprive those individuals of the emoluments to which they were entitled. He hoped their Lordships would pause before they sanctioned such a principle; and he thought that his noble and learned Friend should have cited instances to show that the course which their Lordships were now called on to pursue was not a new one. If these elections of councillors were sanctioned, another consequence would follow. When appointed, they might demand, as they would have a right to do, if they were legally appointed, that the muniments and other property of the Corporation should be given up to them.—Now, the officers who questioned the validity of the election had, in several instances, refused to give up those muniments. They had, very properly and discreetly, applied for legal advice on the subject. The answer of their legal adviser was, "You cannot give up this property to those who profess to be councillors, without possessing the legal right by a valid election on the 28th of December last."—If they gave up those muniments, it would be treated as an illegal act in the courts of law. Their Lordships all knew what was said of that extraordinary and most arbi-

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trary power which was given to the town-council by the Act of last Session. They might fine summarily, or imprison, those individuals who, under these circumstances, refused to deliver up the muniments.—What, then, was the situation of those persons who, at the moment, were perfectly justified in what they did, but whose conduct, by the operation of the Bill then before the House, would be rendered illegal, and would be thereby subjected to a penalty? Again, with respect to the Court of Quarter Sessions. In many cases those courts had been improperly held under the new Act. They had sat, however—they had found persons guilty of felony—they had transported individuals, and forfeited their goods and chattels to the Crown.—"What would, in those cases, be the effect of this Bill? It would legalize all these proceedings. Was there to be a new trial for those persons? No; but by the retrospective operation of the Bill, the man who was illegally convicted was to be considered legally convicted, he was to be punished in person, and his property was to be confiscated. If his noble and learned Friend looked to these clauses, he must see that the principle of the measure required at least some degree of consideration. With reference to the proceedings now pending in the Court of King's Bench, they, it appeared, were to be stayed, the prosecutors being paid their costs. But they all knew that taxed costs (and these were the costs mentioned by the Bill) would not indemnify a party. In the most vexatious proceedings that ever took place, when a man of the name of Wright some years ago instituted proceedings against an immense body of the clergy, on account of non-residence, Parliament, in staying those proceedings, deemed it necessary to indemnify that individual, because he acted according to law. They gave him not taxed costs, but costs as between attorney and client. He did not think the Bill was clearly drawn. On looking to the clause on the subject of costs, he did not know that the prosecutor would get even his taxed costs. If he applied to the Judge to suspend proceedings, then he was to receive his costs; but that was assuming that he would make such an application. But he might make no such application—why should he? Because this Bill proposed to enact, that every election shall be valid from a certain day in December, on which the election took place. There were very
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great doubts whether these parties, from the manner in which the Bill was drawn, would get even taxed costs. There would also arise this anomaly under the Bill—that even where a judgment might have been given in favour of the prosecutor, and though the prosecutor might have been right, and justified, at the time, in instituting proceedings, he would have to pay the costs himself in the action ultimately. He had only read the measure over hastily, but these were some of the points to which he was anxious to call their Lordships' attention. There were a great many minute provisions in the Bill, the objects of which were not understood until his noble and learned Friend stated them in detail. Under all these circumstances, it would be better if the noble Viscount would not persist in proceeding so rapidly with the Bill.
The Bill read a second time.