Lords Sitting of 2 May 1843

MINUTES.
BILLS. Public.—1a Exchequer Bills.
Private.—la Lord Gray's Estate.
2a London Cemetery; St. Helen's Water Works; Cromford and High Peak Railway; Hawkin's Estate.
Reported.—Great Gransden Inclosure.
3a and passed:—Charlwood Inclosure; Birkenhead Cemetery; Balfour's Estate.
PETITIONS PRESENTED. By the Duke of Argyll, from Roseneath, for settling the Scotch Church Question.—By the Marquess of Lansdowne, from South Shields, against any measure which should place Education into the hands of the Established Church.—By the Earl of Galloway, from St. Andrew's, for placing Schoolmasters in Scotland upon a better footing.—From a number of places, for Church Extension.—From Bath, for Inquiry into the course of Instruction pursued at Maynooth College.

CHURCH OF SCOTLAND.
The Duke of Argyllpresented a petition from the Presbytery of Dumbarton, praying that some measure should be adopted for putting an end to the division which now existed in the Church of Scotland, and the continuance of which was likely to be productive of the greatest evils, without interfering with the acknowledged spiritual rights of the Church.
The Marquess of Breadalbanesaid, he was deeply impressed with the great importance of the subject to which the petition that had been just presented by his noble Friend had reference. In his opinion the most irreparable mischief would result if this question were not amicably settled, if some concession were not made to the Church of Scotland with respect to those privileges which he conceived were justly demanded, and to which the Church of Scotland was entitled by the constitution of the country; although by the judgments of the law courts the rights of the Church were invaded and their claims declared not to be valid, yet by the constitution of the country a large body of the ministers of the Scotch Church conceived that they had a right to the privileges which they claimed. Therefore, he felt it to be a paramount duty to state to the House his earnest conviction that if some fitting concession were not made before the meeting of the General Assembly, a very large secession from the Established Church of Scotland would take place; not merely a secession of ministers, but of the Scotch population in general—a secession to the extent of 80 per cent. The number of ministers who would go out from the Establishment, if concession were not made, would not be less than 500, and
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amongst whom were to be found some of the most enlightened, the most pious, and the most zealous members of the Church of Scotland.
Lord Broughamsaid, he had not intended to offer a single observation on this occasion, but he begged leave to express the utmost astonishment when he heard a Friend of the Constitution of this country—when he heard one so well known as a Friend of constitutional principles—as was his noble Friend behind him, get up in his place and state in Parliament that that which was declared to be law by the courts, and which in that House, the tribunal of last resort, was after the fullest and most attentive deliberation declared to be the law, was wrong,—that, notwithstanding such decision, there was something above the law, something contrary to the law thus laid down; and what was that? Why, it was the constitution of this country. So that they had now heard, for the first time, of two things being set in op position to each other that were usually supposed to be one and the same,—namely, the law of the land, and the constitution. To that party with which his noble Friend acted, with reference to this question in their Lordships' House, in which were men very respectable in name, but very moderate in number, he would leave it to reconcile this most extraordinary proposition.
The Marquess of Breadalbanesaid, that he felt as great respect for the judgment of the courts of law as his noble and learned Friend could possibly feel; but, when they all knew that the interpretations of the courts of law on this subject had been various—when they were found to decide one way in one case, and another in another case—some doubt might be entertained as to the correctness of their decision. It was notorious that on this subject various decisions were given; and he would challenge his noble Friend, and would prove to him at the Bar, that decisions were given by the Court of Session, with respect to spiritual and civil matters connected with the Church, that were different from each other. He understood what was meant by the law, by the constitutional law of the country; but the Act of Union and the whole history of the Church of Scotland proved, that she had a constitution within herself for the management and control of her

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spiritual affairs, and the rights which she claimed under it had, he contended, been invaded.
Lord Broughamsaid, he was ready to accept the challenge of his noble Friend. Why, that same challenge had been given by the appeal of the General Assembly to their Lordships' House against the decision of the Court of Session; and, day by day, it had been attempted, at their Lordships' Bar, to prove that former decisions had been in favour of the appellants. But the attempt was a complete failure—complete in every point and case. It was because their Lordships found, upon examination, that the former decisions were in conformity with the one appealed against, that they confirmed that decision, and dismissed the appeal. Their Lordships had thus declared the law to be against the claims of the Church; and was it now to be said, that the Church bad within herself a law and a constitution which was to act and have authority against the law of the land, thus solemnly laid down? Why, his noble Friend might as well summon his tenants at Taymouth Castle, and lay down a law with reference either to the land or the tenants, or to both, as against another body and declare that the law of Taymouth was to be superior to the law of the land quoad Taymouth. His noble Friend might as well argue thus as insist, that the Church had a constitution within her self, and a law for herself, superior to the law of the land. He hoped that he should never hear of any person advocating such a constitution or such a law.
Lord Cottenhamsaid, that, in the case of appeal which had been prosecuted, their Lordships had no difficulty in deciding what the law was. Their Lordships had examined all the cases that bore upon the question; and, on reference to them, there seemed to be no difficulty in declaring what the law really was. If there were other cases of which the House was ignorant, he should like to be informed of them.
The Earl of Aberdeenwas afraid, if he had not been able to give his noble Friend (the Marquess of Breadalbane) satisfaction by what had already taken place on this subject, that it would be out of his power to afford him satisfaction now. He bad on a former occasion made, as he conceived, a statement which embraced as much concession as his noble
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Friend could fairly desire or expect. He spoke then, not as an individual, but as representing the sentiments of her Majesty's Government; and if his noble Friend was not satisfied on that occasion with the amount of concession which he then offered and proclaimed, and which her Majesty's Government was ready, when the proper time arrived, to embody in a legislative measure, he certainly despaired of giving his noble Friend any satisfaction. He was not disposed to enter into the various important matters that had been opened by his noble Friend on this question; but he desired, and he should be happy again to state—and to state more explicitly, if necessary—the opinion of her Majesty's Government on the subject. At present, however, on the mere presentation of a petition, and with other important business before the House, he thought it would be improper to take up their Lordships' time by entering further into the subject.
Lord Campbellapproved of what had fallen from the noble Earl, but was inclined to think that he had conceded rather too much. He should not be discharging his duty if he did not concur in the protest against the doctrine of the noble Marquess behind him with respect to the distinction between the decision of a court of law and the constitution of Great Britain. A decision of a court of law was either right or wrong—right if according to law, wrong if contrary to law; but it could not be according to law, and yet contrary to the constitution. The Executive might act objectionably; but it was impossible that a court of law, proceeding according to law, could decide contrary to the constitution.
The Marquess of Breadalbanesaid, that under the constitution, as guaranteed by the Act of Union, and recognized by various statutes, the Church of Scotland had her own ecclesiastical courts to regulate her spiritual concerns. Now, he contended, that her lawful jurisdiction as to spiritual matters had been invaded by the courts of law. This, he would say, was highly unconstitutional. The spiritual courts of the Presbyterian Kirk were as much part of the constitution as any court of judicature in the country.
Petition laid on the Table.

NEGOTIATION WITH PORTUGAL.
The Marquess of Lansdownesaid, he would

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take that opportunity to ask his noble Friend at the head of the Foreign Department a question with reference to a negotiation for a commercial treaty between this country and Portugal. It was notorious that for some time past, negotiations for the formation of a commercial treaty between this country and Portugal had been in progress, and it was no less notorious that, to a certain extent, those negotations had failed. He would not inquire into the causes of that failure; but his noble Friend must be aware that very great anxiety existed amongst a most important portion of the mercantile body as to the present state of those negotiations. They were not able to ascertain whether those negotiations were completely at an end or not: and it was most important that they should have accurate information on the subject, in order to determine what steps they ought to take in the conduct of their commercial affairs. He, therefore, put the question to his noble Friend.
The Earl of Aberdeen, in answer to the question of his noble Friend, had to state, that for some time past, negotiations had been going on between this country and Portugal, not for the formation of a commercial treaty, for a commercial treaty had been signed last November, but in compliance with an article of that treaty, by which it was agreed that the contracting parties should proceed to a mutual revision of their respective tariffs. Those negotiations were at an end. It was true, that in the official document the terms made us of by the Portuguese government might lead to the idea that the negotiations had been merely interrupted. But our minister at Lisbon had received the ultimatum of the British Government with directions to communicate it to the Portuguese government; and to state, that if it were not accepted, the negotiations were to be considered at an end. That ultimatum was so communicated to the Portuguese government; it was not accepted; and it was then stated by our ambassador that the negotiation was at an end. This explanation, he hoped, would suffice. It would not be proper for him to say more on the subject.

TOWNSHEND PEERAGE.
Lord Brougham Lord Brougham moved the Order of the Day for the second reading of the Townshend Peerage Bill,
Lord Cottenhamrose, pursuant to the notice which he had given, to state to their Lordships the grounds on which it appeared to him that they ought not to entertain the measure proposed by this bill. It was hardly necessary for him to say that he knew nothing of the parties who were interested in the measure. His objection to the bill was, in the first place, that it was a perfectly novel proceeding—that, after investigations before two select committees of the House, nothing at all resembling it had been found—that it was contrary to the principles which guided the administration of the law in this country, and that it would be impossible to carry its provisions into effect with justice to all those who might afterwards be interested in the proceedings. The facts, as alleged in the bill, were these:—That a noble Marquess, a Member of their Lordships' House, had been married at a certain time—that, after the expiration of a short period, the wife of that noble Marquess left his house, and that she had been since cohabiting with another man—and that certain children had been born during that cohabitation, who, in consequence of the impossibility of access on the part of the husband, ought to be considered as bastards. There never had been any bill before the House to dissolve the marriage. The marriage, therefore, according to the proposition in this bill, was to continue. There might or might not be children born hereafter, for it did not appear from anything the House knew that the noble Marquess or his wife were of an age which rendered the birth of children improbable. He, therefore, said that in contemplation of law there might be subsequent children born of this marriage. Such children, though this act passed into law, would be legitimate. When the matter was first brought under the consideration of the House by a petition, it was referred to a select committee. That select committee made a report which stated the investigation which had taken place, and stated also three cases as precedents; but those cases, on examination, he was convinced, would be found to bear no resemblance whatever to the case now before the House, The first case stated was that of a person who, in 1672, represented himself to be the Earl of Northumberland, and a petition was presented to the House by the Countess Dowager of Northumberland on behalf of herself and

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Lady Elizabeth Percy, alleging the fact of the individual having so represented himself to be Earl of Northumberland. That petition was referred to a committee, and so far the cases might be somewhat similar, but they ceased to be similar from that moment; for the party being called on to state his claim, he became a claimant to the peerage, and the proceedings were afterwards carried on in the regular course. Now, it must be remembered that inquiries of this kind were directed by the Crown, for the Crown was not bound to consult the House in such cases. In this very case to which he was referring, it was moved in the House, "that his Majesty might be moved that the House might hear the question of title," and permission was ac cordingly given to the House to hear and determine it. The party presented his claim, and the House being of opinion that he failed in making it out, it was dismissed. The party, however, was not satisfied with the decision of the House, and he refused to acquiesce in it; and, accordingly, another petition was presented by Charles Duke of Somerset, complaining that this person still assumed the title of Earl. of Northumberland. He was again called on to say what he could for himself, and failing, as he had done previously, their Lordships were extremely indignant at the presumption of the man, and they agreed to the following order—an order which he (Lord Cottenham) thought the House would not be very willing to repeat in the present times:—
"That the petition of James Percy, the claimant, be dismissed the House, and that James Percy be brought before the four courts in Westminster Hall, wearing on a paper on his breast these words—The foolish and impudent pretender to the Earldom of Northumberland."
It would readily be admitted that that case bore no analogy to the case now before their Lordships. The next case mentioned in the report was, that of a person who claimed to be a Scotch Peer; and the third was the Act "to dissolve the marriage between the Earl of Macclesfield and Anne, his wife," in the 10th year of George 3rd. These cases were neither of them at all similar to the present. The last was nothing more nor less than an ordinary bill of divorce, containing clauses bastardizing the issue. That Act was passed with those clauses, but there were no modern instances in which such clauses had
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been inserted in bills of divorce. There was another case in which a naval officer had been away for a long time, and his wife had a child born at a time when it was impossible that he could be its father. In that case the Act passed, declaring that child illegitimate, but since then there had been no other instance, and the reason given was this:—On this point he must refer their Lordships to a work of great value which had recently appeared—he meant Mr. M' Queen's "Practice of the House of Lords in Divorce Cases." The reason was, that there was no party to re present the issue. The contest was between the husband and wife. The husband asked to be divorced from his wife, but who represented the interests of the issue. They were the parties almost wholly interested in the clauses declaring them illegitimate; and yet they were not represented. It might be said that these supposed illegitimate children were parties to these proceedings, but how could it be known who would be interested in these proceedings after the death of the present peer? It was proposed by the present bill to enact—
"That the several children of the said Sarah Gardener Marchioness Townshend shall be taken and adjudged for all intents and purposes to be illegitimate from their birth, and shall not be taken to be the lawful issue of George Ferrars Marquess Townshend."
The enactment, therefore, not only concerned the title, but all other questions which might be connected with legitimacy. It might be said, that it was the duty of the House to take care to prevent the introduction into the House of a person not legally entitled. But that was not the object of the bill, which was to declare these children illegitimate for all purposes whatsoever. It was true that we had not, in this country, the benefit of a law which existed in Scotland, and which enabled persons in cases which depended on evidence which might be lost, to take a proceeding which would enable them to have a declaration of their rights; but another system had been pursued in this country which had been found in a great measure to answer the same purpose. He meant a proceeding in the Court of Chancery by which parties who wished to preserve the evidence of living witnesses to be used hereafter, when the occasion might arise, were permitted to examine them, with all the

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imperfections to which he would admit an examination on paper was open. The result, however, was, that what the witnesses deposed to was put upon record, to be used hereafter when the occasion might arise. This proceeding was called a "bill to perpetuate testimony." A great difficulty, however, had been experienced to afford relief in Peerage cases by a bill to perpetuate testimony. Lord Eldon found this difficulty to exist. The Crown was a party interested in a Peerage ease, and thought they might bind the interests of the two parties, yet they could not bind the Crown, and the objection might be taken when the time arrived that the Crown had been absent when the examination was taken. Accordingly, he last year prepared a bill to remove this objection, and he proposed that the Attorney-general should be made a party to such a suit to represent the interests of the Crown, and that the depositions so taken should be receivable in questions of Peerages, as in other questions relative to property. The Lord Chief Baron (Lord Abinger), on the other hand, was of opinion that the object might be better attained by a viva voce examination. These proposals were then sent to a select committee, and that committee came to the conclusion at which he had arrived, that the best means of perpetuating evidence was that adopted in the Court of Chancery. Now, the rule applicable to the perpetuation or preservation of evidence in other cases was equally applicable to the Peerage and he could not understand how there could be any distinction between the perpetuation or preservation of evidence in reference to property and in reference to titles to honours. If their Lordships were to pass this bill, what would be the con sequence? Why they would be declaring those children illegitimate before the subject on which the question arose was opened, and this he contended, would be depriving those parties of advantages which all others possessed by the law of the land. What came nearest to the present case were divorce bills, and it was an established rule of Parliament that divorce bills were never entertained until the material fact in such cases had been established and adjudicated on in the Ecclesiastical Court. This rule was observed even in Scotch marriages, and inasmuch as the law of that country was adequate to afford a remedy in cases of
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dissolution of marriages, Parliament had never interfered. If such were then the case, he asked whether their Lordships would now take a course that was not only perfectly new but unprecedented? Such a proceeding was unknown to the law of this country, and the only ground on which a divorce bill was entertained by Parliament was because the parties had no other remedy. Their Lordships might remember the case of Miss Turner, which occurred some years ago, and he doubted, whether, in that case, the right Course had been pursued. In that case there was something calculated strongly to excite the feelings, as a most gross and violent outrage had been committed: but the House was most unwilling to take the case out of the ordinary courts, and resort to a legislative enactment. He knew that many noble Lords, and more especially Lord Eldon, entertained a strong opinion against passing a special act of Parliament on the subject; but when the House heard the evidence given at the bar, such was the feeling of indignation that prevailed at the perpetration of such a gross outrage, that no opposition was offered to the bill. If the facts of the present case were such as had been stated, it certainly was of a very gross nature, and no one could be more unwilling than himself to throw any impediment in the way of justice, but he thought that that could be obtained by other less objectionable modes than those pro vided in this bill. He had no wish in the matter but that a proper and regular course of proceeding should be adopted, and that the House should avoid making a dangerous precedent, and he had only felt it to be his duty to call the attention of the House to the proposed departure from the usual course, and to point out some of the evils that might arise from it. Under these circumstances he should move that the order for the second reading of this bill be discharged.
Lord Broughamadmitted that his noble and learned Friend had made a very lucid statement as to the nature of this bill; but if his noble and learned Friend had looked to the facts of the case, he did not think, that his noble Friend would have arrived at his present conclusion. He had little doubt in his mind, that he could satisfy the House that both justice and the proceedings of that House rendered it necessary that they should depart from their

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usual course and adopt the remedy now before the House. He could conceive a case in which it would be just to deny such an exception as the present in a question of property, but where it would be proper to grant it in a case where a question of peerage and honour was involved. As for the argument that if they granted this remedy in a case of peerage, they could not refuse it in any other case when application was made, he would suggest, that this could be met by confining the bill to the question of honours. His noble and learned Friend had complained, that females were included within the operation of this bill, and, therefore, that it involved questions of property as well as the peerage. Now, it so happened, that there were two old baronies annexed to the marquesate of Townshend, and which were involved in this question, for they could be inherited by females—he alluded to the baronies of Compton and Ferrers of Chartley. A part of the object of his noble and learned Friend appeared to be to prevent the mischief which he supposed would result from the examination of witnesses at the Bar. His noble Friend, however, he thought, was too late in raising this objection. The mischief had resulted, in his opinion, if mischief there was, from the presentation Of the petition—from the presentation of the bill—from the allegations in support of the bill, standing on the face of the journals of the House; and he protested, that if he were the person complained of, he had rather that the examination of the witnesses should be proceeded with than that the allegations of his own illegitimacy and of the adultery of his parent, should remain without inquiry. But then it was said, that the House would not interpose to afford the remedy which was demanded, because Parliament would never interfere where another remedy existed. This, however, was an error, for Parliament would interfere to prevent delay, to curtail expenses, when they appeared to be excessive, as well as to give the same remedies which could elsewhere be obtained, and to give those remedies more amply than they could be elsewhere pro cured. The power of Parliament was not limited, as it appeared to be supposed to be, but by a predecessor of the noble and learned Lord (Lord Cottenham), of his own, and of the noble and learned Lord; now on the Woolsack, its jurisdiction was
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declared to be most extensive, and to be equal to any emergency. Lord Coke declared the power of Parliament to be to enable parties to succeed to an estate vested in their ancestor, during the life of that ancestor, although he should not be attainted, and even to bastardise the offspring of a woman born in wedlock, although the husband and mother should be within the four seas encompassing this island. The efficacy of an act of last Session, for perpetuating testimony, had been adverted to, and it was said that Lord C. Townshend might place his evidence on the records of the Court of Chancery. The evidence so recorded, it was true, would have the force of legal testimony, and it possessed the advantage that it was taken, unimpeached by cross-examination or contradiction. But in such a case as this, the value of such a record was as nothing, for by the same process which Lord C. Townshend would have to employ, the very person whose claim he sought to bar, might put upon the same records their evidence equally unquestioned, in support of their case. Then granting, for the sake of argument, that if there was a remedy, Parliament ought not to interfere; here he contended was the only remedy which presented it self, and this was a remedy worse than the disease. In the case of Miss Turner, there was another remedy, yet Parliament unanimously and readily passed the bill for declaring her marriage of no effect. There the remedy was before the Commissary Court of Edinburgh, the marriage having taken place in Scotland, and yet the application to Parliament was adopted and sanctioned. He believed, that the circumstances of this case were just as novel—just as flagrant as those by which that remarkable case was surrounded, and this was an authority, therefore, in favour of the present measure. Allusion had been made to the Scottish action, which was called a declarator, and he and his noble and learned Predecessor on the Woolsack, had often lamented that such a mode of proceeding, formed no part of the law of England. This was an action which did not prevail in England; and, therefore, Lord C. Townshend could not avail himself of it; it prevailed in Scotland, and was, there fore, sanctioned in principle by the law of a part of this empire; and this was a circumstance which, in his opinion, sanc-

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tioned the interposition of Parliament in the present instance. If this were the case of a Scotch peerage, there would be no difficulty whatever; because it was an English peerage the difficulty arose, and, therefore, Parliament ought to interfere. He had said sufficient, he thought, to in duce their Lordships to allow this bill to pas the present stage; for he thought that their Lordships should be quite sure that they were right before they determined to withhold from the applicant party the power to go into his case. The examination of witnesses which was proposed to be had might be material; circumstances might present themselves which would leave their Lordships no possibility of doubting what course they should take. The circumstance that a few months after Lady Townshend had ceased to cohabit with her husband she had prosecuted a suit in the Ecclesiastical Court for a divorce, on the ground of impotency, ought not to be lost sight of; and with such a fact before their eyes, surely if ever there was a case for interference, it was this. If their Lordships refused the remedy which was asked in this case, they must refuse it in every other; and they would hold out the temptation of impunity to all persons who chose to be parties to a conspiracy so shameless and audacious, for the purpose of defrauding the heir, and of palming a spurious off spring on any noble house and on the country. With regard to all future cases which might arise, there was this observation to be made, that each case must necessarily depend on its own peculiar merits and circumstances. For the honour and dignity, as well as for the sake of the privileges of their Lordships' House, therefore, he called upon them to allow this bill to proceed, and to go into evidence, reserving, if they pleased, ail the questions of law which had been referred to for future discussion. For the sake of all parties, he desired that evidence should be gone into; for it was a mistake to suppose that the evidence would be confined to one side of the question. It would be competent for the presumed Lord Leicester to establish his legitimacy, if he could. Considering, therefore, the interests of both parties—for the sake of justice as welt as for the sake of the privileges of their Lordships' House—be asked their Lordships to give this bill a second reading.
The Earl of Devonfelt much difficulty
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in rising to state his objections to this bill; but confessed that he had been un able to find, in the speech of the noble and learned Lord who had last spoken, any answer to the arguments of his noble and learned Friend who had preceded him. What were the peculiar features of this case? There was a statement that there had been adultery, and there was an offer to prove it, and upon this it was proposed to call in the supreme power of Parliament, confining it, however, to questions of peerage. He could not agree that they ought to confine the interposition to cases of peerage; if they adopted it at all they ought to extend it to cases of property, The case of Turner and Wakefield had been referred to in support of this measure. He(the Earl of Devon) had not then the honour of being a Member of the House, but he had opportunities of knowing the opinion of Members of the legal profession, and though that measure was passed unanimously in the House it did not carry with it the opinions or the feelings of the greatest lawyer of the day (the Earl of Eldon). He must enter his protest against the bill; if they passed it they would be entering upon a dangerous career. He did not know where they would stop, and they would lay down a precedent which in future ages would greatly embarrass the House.
Lord Denmanwas as much opposed as his noble and learned Friend to any encroachments on the constitution, and to a certain degree he (Lord Denman) was bound by his situation to oppose to his utmost any such encroachments, and would be proud to find himself always by the side of his noble and learned Friend in protecting the constitution from invasion. Excepted cases there must always be, and it is wholesome to show, that where the law is inefficient to defeat injustice, a remedy may be applied by the power of Parliament. Such exceptions however, are neither of rare occurrence, nor have they often originated in reasons of so urgent a nature as those now disclosed. He believed, that no acts were more useful or more satisfactory to the public. Many important laws had their execution entrusted to informers, by the temptation of penalties inflicted for transgressing them. Yet when these appointed agents of the law had taken measures to enforce it vindictively or oppressively, Parliament had stepped in and stopped the proceed-

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ings. When a persecution of the clergy had been commenced to recover penalties for non-residence—a most important object—Parliament had interfered to prevent the law being carried into effect. In the course of the present Session, a like act was passed with respect to the vend of coals. The same thing had been done also when actions were brought against newspaper printers for penalties incurred by non-compliance with a law, which was yet deemed of public advantage, and could be no otherwise made effectual than by those very actions. Only two or three years ago, an act was passed to alter the existing rights of parties to civil contracts in a still more remarkable manner. There was a law to vitiate certain contracts with persons in holy orders; its result was to relieve whole companies from liability for their debts, because a clergyman happened to be a shareholder. Here was a strictly legal right, which the courts were compelled to acknowledge; but Parliament stayed the actions founded upon it, though such actions were the only means provided by Parliament itself for putting its own enactments in force. Does any one blame this interposition? For my own part, I always thought it went not far enough, for when it took from the plaintiffs, who thus abused the law, their right to the penalties; it ought also to have taken from those jobbing plunderers the costs actually incurred by the parties assailed. These he mentioned as examples of a much more violent proceeding than that which is now proposed. The divorce bills, constantly passing through both Houses, are more directly in point, and indeed answer every argument now put forward. He frankly owned, that when he first read the petition, he had felt that, if the allegations were true, it was absolutely necessary that Parliament should interfere, and prevent this monstrous scandal from succeeding. Assuming the facts to be true, it appeared to him that it was just for Parliament not to permit the continuance of an abuse which was disgraceful to a civilized country, and that if they did not interfere, it would be looked upon as an encouragement to conspiracies of this description. With that persuasion he had attended the committee last year, when he suggested the adoption of an act of Parliament, to which, however, the committee did not agree. If such an act passed, let them see the number of securities which
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were provided against abuse, and against unnecessary or wanton attempts to bring these subjects before the country. In the first place, a noble Lord must present a petition, and he would not present it without strong reasons to believe that the allegations were true. In the second place, the House would not refer that petition to a committee, unless they saw a strong probability of its truth; and then the committee would not report on the case recommending a bill, unless they were convinced that this was the proper subject for a measure. If the committee last year had rejected his proposal, they had the authority of the committee this year in favour of an act being brought in. If the measure of his noble and learned Friend, (Lord Cottenham), which was passed last year, had provided an effectual remedy for this case, it would be rash and idle to proceed with this bill; but with regard to evidence perpetuated by bills in the Court of Chancery, if it came before a jury, or one of the courts of Westminster-hall, could it be expected to have much weight? It was written testimony, it was ex parte, it was not open to cross-examination, and was, in fact, of the least possible worth. The question appeared to be simply whether this great, and monstrous, and preposterous, and shameful grievance, should be tolerated, or whether Parliament should provide a remedy, after hearing all the evidence, and in the presence of all the parties, adopting all the means by which the truth could be properly ascertained. The bill in the case of Turner and Wakefield had passed, notwithstanding the warning voice of Lord Eldon, great authority as he was in the House, and he trusted that this bill would pass, notwithstanding the warning voice of his noble and learned Friend. All he had since heard only tended to confirm his first impression, that an act of Parliament for this special purpose would be better than the perpetuation of a shameful abuse, which would be made successful and triumphant if this bill were not passed.
The Earl of Wicklowsaid, if the House were to reject the bill he thought that this was the proper stage. The petitioner having for a long period of years suffered the question to remain in its present state, their Lordships ought to hesitate to take the strong measure which was now proposed, The argument of the noble and learned Lord (Lord Cottenham) was so

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convincing that if he divided the House he (the Earl of Wicklow) would vote with him. It appeared to him that this was more of a judicial than a legislative
question, and as a judge, from a feeling of justice and for the sake of the public, he felt bound to give his vote and his opposition in conformity with the opinion of the noble and learned Lord.
Lord Campbellthought that this bill ought to proceed. The question was, was there a grievance? and if there was, could it be remedied by the law as it stood? What was the allegation? That there was at the present moment sitting in the House of Commons, under the title of the Earl of Leicester, and as the eldest son of the Marquess Townshend, an adulterous bastard, and there were brothers and sisters who were claiming to the title and privileges which belonged to the legitimate children of the Marquess of Townshend—if the person who claimed to be Earl of Leicester chose to do so, he had the right to stand at the foot of the Throne during a division of that House, and even when the Queen was present, and he was in possession of all the privileges of the eldest son of a Marquess. This was not only annoying to the family, but it was prejudicial to the public. What would foreign nations think if such an open insult to decency and justice were allowed to continue? The next thing would be, that upon the death of the Marquess Townshend, this individual would be introduced as his successor. Since this controversy had commenced, several of the witnesses had died, and among them a material witness named Ridgway, and others might be sent out of the country or might other wise be disposed of, so that in the course of ten years it might be impossible to prove what could now be satisfactorily established; and thus permanent injury would be inflicted on the family, on the House, and upon the institutions of the country. What then was the remedy for this grievance? Their Lordships would not now order the individual to walk through Westminster-hall with a board declaring that he was a false and impudent pretender. But it was said, that the promoter of this bill might go to the Court of Chancery to perpetuate evidence. It was necessary, however, to prevent the pretended son of the Marquess from sitting in the House of Commons as
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Earl of Leicester, or to appear at the foot of the Throne in that House on a prorogation, or on a division. How would the suit prevent this? And at the best, could they compare a suit to perpetuate evidence, to evidence at their Lordships' bar, where there was examination and cross-examination, and the witnesses presented to the judges? Was there a comparison between the two modes of determining whether Mr. Margetts was the son of the Marquess Townshend? Would there be any injury done by this bill? This person claimed to exercise the right of the eldest son of the Marquess Townshend. It was a question as to a civil right, which the House ought to determine. Nor would it form any dangerous precedent. Till another case occurs of a wife eloping from her husband's house, of her going to Scotland to be married and living with another man, till the children born of that cohabitation bear the name of that other man, and are all treated as his offspring—till a case occurs when the husband and wife have not approached each other for many years, so that it is impossible that he could be the father of the children—till such a case should occur, this bill would not be a precedent, and when such a case again occurred he hoped that this precedent would be followed. Nor was this bill wholly without precedent, as his noble and learned Friend said. In the Banbury case, a bill was introduced to bastardise Nicholas Earl of Banbury. In 1661, Lord Northampton introduced a bill to declare that person illegitimate to all intents and purposes. The bill was read a first time, but it was afterwards dropped. [Lord Brougham: At that time his father was dead.] His father had died in 1632. He claimed his right to sit in the House, and on a reference to a committee, the committee adopted the doctrine of the parents being infra quatuor maria. The House, however, would not confirm the report of the committee, and the bill was introduced to declare illegitimate the person called Nicholas, Earl of Banbury. The father being dead, there was a regular mode of instantly deciding the question; but other wise there seems to be no doubt that the bill would have been proceeded with and carried. Nor had their Lordships in other cases, omitted to decide these questions. In a recent case of Hamilton v. Hamilton, from Scotland, on which a

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peerage depended, the Lord Ordinary had declared two of the children illegitimate. That decision had been reversed by the Court of Session, which held them to be legitimate, and the House of Lords affirmed the decision of the Court of Session. Was not that case analogous to the present? He believed that this had proved a satisfactory mode of bringing the question forward.
Lord Brougham: If the witness, whose evidence was decisive, had been dead, the question could not have been properly tried at all.
Lord Campbell: It appeared to him that, by this course, no hardship was imposed upon the parties. Assuming that they could make out their legitimacy, they might do so better now, when the full evidence could be obtained. The bill would afford a remedy to the Townshend family; it would give redress to the public; it would do no injury to any one; and he was humbly of opinion that the bill ought to proceed.
The Lord Chancellorwas also of opinion that the bill ought to proceed. He considered this an extreme case. For the sake of argument, they must assume the facts to be true; and if they were true they not only produced injury to the public, and a wrong of a scandalous description, but were an invasion of their Lord ship's privileges, and the privileges of Parliament. There was an existing evil, for which there was no remedy; there was a present wrong; there was one individual who called himself the eldest son of a noble marquess, and heir male to a peer age, who had qualified in the House of Commons under that title, and who, on the authority of that title, had the right to stand at the foot of the Throne in the presence of her Majesty. Was there any court of justice which could give redress for such a wrong? And, after the rule adopted in cases of divorce, ought they not to agree to this bill? Of the bill of his noble and learned Friend (Lord Cottenham) he highly approved; but that only declared that the power of perpetuating evidence should extend to cases of peerage. It afforded no present remedy for the existing wrong, and on that ground he was of opinion that this bill ought to proceed. This was the rule adopted in other cases, and here he alluded particularly to the bill for the disfranchisement of the borough of Sudbury,
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in which place there had been misconduct for which there was no remedy in a court of justice; so they were obliged to proceed by bill, and the interposition of Parliament was called in. The House would examine witnesses; and if the case were not made out with the utmost clearness and to the entire satisfaction of their Lordships, the bill ought not to pass.
Lord Cottenhamreplied: He had felt it necessary to state his objections to this bill; and he would not now detain their Lordships, except to put one or two points right. The Lord Chief Justice had stated that a bill had been recommended by the committee of this year; but there was no such recommendation. He had himself opposed it; and all the report stated was, that there was no remedy except by bill, and that if there was a bill it should be a private one; it did not recommend a bill. And, with regard to his own bill, he did not consider that it had all the consequences which his noble and learned Friend attributed to it; the only affect of that bill was to remove a technical defect, which applied the remedy in cases of peerage. If the House entertained this bill they could not refuse like bills where properly was concerned.
Lord Broughamsaid, it had been asked why the bill had been so long delayed? It was not till the death of the witnesses one by one had alarmed the parties, that it was thought necessary to take active steps. In reference, also, to the opinion of Lord Eldon, in the case of Turner v. Wakefield, so far from opposing the bill Lord Eldon had argued in its favour.
Amendment negatived. Second reading adjourned.
Evidence in support of the bill to be heard at the Bar.
Their Lordships adjourned at half-past eight.