Lords Sitting of 12 May 1843

Preamble
MINUTES.] NEW MEMBER SWORN.—The Earl of Calcdon.
BILLS. Public.—Reported.—Testimony in the Colonies;
Registration of Voters.
Private.—2ª. St. James's (Westminster) Improvement.
Reported.—Bourn Drainage.
3ª. and passed:—Newport (Monmouth) Gas; Norland Estate Improvement
PETITIONS PRESENTED. By the Earl of Bandon, from several places, for Encouraging the Schools in connexion with the Church Education Society in Ireland. —By the Marquess of Breadalbane, from Barr, and Kilmarnock, for settling the Scotch Church Question, and against the Law regarding Patronage.—By Earl Fitzwilliam, from a number of places, for the Total and Immediate Repeal of the Corn-laws.—From Bandon, against the Medical Charities (Ireland) Bill.—From Cork, for further Corporate Reform in Ireland.—From Petworth, against the Canada Corn Bill.

SUDBURY DISFRANCHISEMENT.
The Peers were employed through a great part of the day in hearing evidence on the Sudbury Disfranchisement Bill; the proceedings were adjourned till Thursday.

CHURCH OF SCOTLAND.
The Marquess of Breadalbanehaving presented two petitions, complaining of the interpretation put on the laws as they concerned the Scotch Church, said, that what had been lately stated by his noble Friend (the Earl of Aberdeen), as to the intentions of the Government, in respect to legislating for the Church of Scotland—was of such great importance to the people of Scotland, and it was so desirable, that the principles on which the Government meant to legislate, should be correctly known, that he wished to state what was his understanding of the Ministers' plan, as stated by his noble Friend. His understanding, then, of what Ministers meant to do was this: that the Government was willing, and intended to bring in a bill, founded on the principle of giving to the congregation of every parish full power to object to any presentee, and refuse an immediate call for any reason whatever; and, as he comprehended it, they were not to be called on to assign any reasons for rejecting a presentee, other than their con-
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scientious conviction, that the man was not likely spiritually to edify them. He also understood that the Government was prepared to give the presbytery the power of deciding on the rejection by the parishioners, and judge of that without being subject to any interference by the civil courts, and subject only to the approval of the General Assembly as a court of appeal. The power was to be given to the presbytery, to judge and decide without stating their reasons, and to judge not only of the general fitness of the presentee, but of all the circumstances regarding the election. If he were correct in the understanding of the statement of his noble Friend, it would not only establish the just rights, but grant to the Church what ought to satisfy the Church and the people of Scotland. Another point was the quoad sacra Ministers, regarding whom his noble Friend had not stated his views, and that was a most important subject in the present state of the Church of Scotland. He hoped, that his noble Friend and the Government were prepared to legislate for the quoad sacra Ministers, so as to give them a status in the Church, on the Presbyterian principle, that no Minister of that Church should be greater than another, and that all should be on a footing of perfect equality.
The Earl of Aberdeensaid, that his noble Friend had rather closely and repeatedly questioned him on this subject. He desired to give his noble Friend every reasonable degree of satisfaction, but he could not help suspecting that this repetition of questioning did not depend so much upon any want of explicitness on his own part, or of obtuseness of comprehension on the part of his noble Friend, as upon the desire entertained by some persons to extort from her Majesty's Government at the last moment some declaration beyond that which in their deliberate judgment they had approved of. He had, however, no objection to repeat the principles of the measure which her Majesty's Government was prepared at a fitting time to bring forward. It was, undoubtedly, intended to give to the congregation the unlimited power of objecting to the presentee, and the presbytery were to have the power of deciding and judging of the whole case, without the control of the civil courts. The reasons, however, must be stated, and in all cases the ground of the judgment must be recorded. He abstained entirely from slating the modifications with which those principles would

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be accompanied, because he perceived how liable those modifications would be to give rise to cavil and misrepresentation elsewhere. It was the determination of the Government to support such measures as would give satisfaction to every reasonable person. His noble Friend professed himself satisfied, and he anticipated the best effects from the resolution of the Government. He knew how hopeless it was to expect to satisfy certain persons, whom experience had taught him could even pervert the provisions of a bill into a meaning opposite to that they were intended to convey. He would do no more than state the general principles, in conformity to the declaration often made by the Government, and on which they meant to found a legislative measure. He had never before seen an occasion when it was thought necessary, after declaration had been made, to inquire into the details of a measure. The general assembly was to meet next week and then it would be seen whether those who proposed to secede from the Church, would wait to see what were the legislative measures proposed, and ascertain if they met the merits of the question. If, they should secede at once, or if, after that measure were brought forward, they should think it necessary to secede, he could scarcely think that they would be able to appeal to the God of truth, or answer at the last day for their declaration, should they persist in asserting that the persecution of the legislature had driven them from the Church. With respect to the quoad sacra ministers, he had only to repeat what his right hon. Friend the Secretary of State for the Home Department had stated, that the Government would take the subject into its consideration, with a view to propose what would be most beneficial.
Lord Broughamsaid, that if his noble Friend's announcement were understood in one sense, it would be an utter, a total abandonment of the claims of the civil courts; and would be calculated to excite much alarm. Taken in another view, it was quite consistent with sound doctrine civil rights, and did not touch patronage. He hoped the former was not the true sense, as it would give the Church an absolute triumph, and the right of patronage would be destroyed. It would not be transferred, as by the Veto Act, to the congregation, but far worse, it would be
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placed entirely in the hands of the ecclesiastical authorities of Scotland. He objected to the plan of asking questions of the Government as to what it meant to do as to legislation. It was not, in fact, the Government which legislated, it was the Houses of Parliament; and to ask what the Government meant to do as to making laws, was to make the Legislature a sinecure.
Lord Campbellthought, the presentees might be objected to on account of being unfit persons, but if they were objected to on account of some civil reasons, such as not contributing to a non-intrusion fund, it would establish a most certain and odious tyranny. As to the quoad sacra ministers, he did not object to the Church providing for the wants of the people, but he protested against it having the power of increasing the number of ministers without limitation, and to increasing the number of members of the presbyteries of the General Assembly. The power to divide the parish into two should be reserved for the supreme court.
The Marquess of Breadalbanesaid, if their Lordships were aware of the great importance of the subject to the people of Scotland, they would only think he was doing his duty by bringing forward the question. He thought it was quite consistent with the usages of the House to ask questions of Ministers, and he was surprised at the objection of the noble and learned Lord, who had, in his time, been one of the most stringent questioners of the day.
Lord Broughamdenied, that he had ever, on any occasion, put a question to Ministers as to the details of any legislative measure. He had asked on what day a certain measure would be brought forward, but he had not asked as to any details.
Petition laid on the Table.

REGISTRATION OF VOTERS.
The report of the amendments to the Registration of Voters Bill was brought up and received,
Lord Campbellmoved to omit the 71st and 72nd clauses, which refer to the right of voting in counties. The noble Lord stated, that he objected to annual registration, and expressed his regret, that the bill of his noble Friend (Lord J. Russell) had not been successful, which provided that a county voter, when once he was

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placed on the registry, should not be subjected to removal as long as his qualification to vote lasted. The two clauses which he proposed to omit might be left out, without injuring the frame of the bill. They referred to county voters, and included the 50 l. tenants at will, or those who were enfranchised by what are called the Chandos clauses. He thought, that those who had a permanent interest in the soil should be entitled to vote, and therefore he had been pleased that copyholders received votes under the Reform Act, but he thought that tenants at will were not independent, and therefore he had opposed giving them votes. At the same time, as they had been enfranchised, he did not propose to take away their franchise, but he objected to extending it. A remarkable proof was lately afforded of the dependence of this class of men. At the late election for the county of Suffolk one of the candidates had declared from the hustings, that he had not canvassed a single tenant voter without having first received permission of his landlord. Giving votes to tenants at will, therefore, was only a scheme to ensure the votes in possession of the landed interest. It would be far better, in his opinion, to give each landlord a number of votes, in proportion to the amount of his rent, than give the vote to the tenant. The object of the 71st clause was to regulate the registration, and had nothing to do with the franchise. By that clause 50 l. tenants at will might be multiplied, and to that he objected. At present a tenant possessing a farm of the value of 50 l. or upwards, must be a twelvemonth in the occupation of his farm before he was allowed to vote. He could not be registered till he had been twelvemonths in possession. By this clause that restriction was wholly done away, and it was likely, he thought, to add very much to the number of such voters. Another part of the clause referred to joint occupiers on a farm of 500 l., which now only gave one vote, but might under this 71st clause be made to qualify ten votes. To that he was opposed. What would be the consequence? For the purpose of multiplying votes, especially in counties where strong contests were usual, a great number of nominal lessees would be introduced, so that instead of one vote in respect of a particular property, there might be ten or twenty, or more. These were his objections to the 71st clause. The 72nd clause, on the other hand, in-
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stead of multiplying votes, would sweep away hundreds; and there was this other difference to be noted, that whereas the votes multiplied by clause 71, would be, in all probability, votes in favour of the noble Lord's party, the votes swept away, judging from experience, would be to a great extent votes in favour of the liberal side of politics. He did not remember, that any question arising out of the right of trustees to vote had come before his noble and learned Friend near him (Lord Denman); but he had it in his power to state to their Lordships, that that distinguished legal authority had stated, that in his construction of the Reform Act, trustees in the receipt of the rents and profits of an estate, though they had not the power to dispose of those rents and profits to their own use, were entitled to vote in respect of such property. The decision also of a great number of the revising barristers had given the vote to trustees so situated. This construction of the act, indeed, was so generally acted upon, that if the right to vote were taken away from such trustees, it would create very extensive changes in the franchise, and in the representation of a great many places. It was quite clear, that all property should give a vote to some person or other, and if the person having the beneficial interest was legally precluded by any circumstance from exercising the franchise, his trustee ought to exercise it. Nevertheless, the 72nd clause of the present bill deprived the trustee of the right of voting. If the Government contended, that the trustees had no right to vote under the Reform Act, then he called on them to strike out the 72ud clause of the bill; for there was the less reason to introduce it, now they had established a tribunal of appeal in the judges of the Court of the Common Pleas, to decide upon all cases of doubt arising out of the registration. Let the judges decide whether or not the trustees have the right; why should their Lord-ships settle this question by the present bill, and thus blend their judicial and legislative capacities together? Did they mean to meddle with the Reform Act or not? If they did interfere with that act, they would be doing what the present Government had always disclaimed the intention to do. He should, therefore, move that these two clauses be omitted. He did not mean to insinuate that the clauses had been introduced with any insidious object, but supposed they might have been

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inserted per incuriam. The noble Lord concluded by moving the omission of the 71st and 72nd clauses.
The Lord Chancellorsaid, that the object of these clauses was not to alter the Reform Act, her Majesty's Government never had any such intention. That was not the object of any one clause of the bill. Its object was to settle points hitherto in dispute between the two parties, to remove those doubts which had been created by the decisions of the revising barristers, whether on one side or the other, and to establish a certainty upon those questions as far as legislation could in a subject of the kind. With regard to what his noble and learned Friend called the Chandos clause, the law enacted, that any person who was a leaseholder, in a county, and bonâ fide liable to a rent of 50 l. a-year should be entitled to vote at elections for that county. It was the bonâ fide payment of the rent which gave him that right, and where there were two joint tenants each liable to a bonâ fide rent of 50 l., it had been decided by the great majority of the revising barristers that each was entitled to vote—a decision which, in his opinion, was in perfect accordance with the law, although some revising barristers had decided that only one could vote. They were joint tenants to the extent of 100 l., and each of them had an interest to that extent, as each was liable for the full amount, although he might, if obliged to pay it, recover one-half from the other tenant, still leaving him bonâ fide liable to the payment of 50 l. So it was in the case of the 40 s. freeholders. Two joint occupants of an estate of the value of 80 s. were both enabled to vote; and what difference was there in point of principle between the two cases? Each was entitled, because each was interested to the full extent of the property required to confer the franchise. There was a provision in the Reform Bill respecting 10 l. householders, which distinctly conferred the right of voting on two joint occupiers with an interest to the extent of 20 l. So that he saw no reason why the law in the case of 50 l. tenants in counties should not be made equally as distinct. The argument of his noble and learned Friend was, that the Legislature, having made a distinct provision in the one case and not in the other, it was to be assumed that the Legislature did not intend to confer the right of voting in the latter. But, in the one case, it was necessary, and in the other not, and for
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this reason, that there were things requisite besides right of property, such as residence, rating, and other circumstances, which distinguished the right of voting in towns from that of counties, and rendered a distinct provision prudent in the one case where it was not necessary, or, at least, not considered necessary, in the other. His noble and learned Friend asked why, if their Lordships were satisfied, that this was the law, insert this clause to explain the law, or why not leave it to the new tribunal established by this bill? He was surprised to hear such an argument from his noble and learned Friend. He was surprised to hear him argue that the Legislature ought not to make a law to remove doubts, because there were judges to settle those doubts. In his (the Lord Chancellor's) opinion, that was one of the first duties of the Legislature. To the second objection of his noble and learned Friend the observation also applied, that the great majority of the revising barristers had decided the point— had decided that trustees, who had no beneficial interest, had no right to vote; although he was ready to admit that some of the revising barristers had decided directly the contrary; and it was for the purpose of settling this very important point as well as other points, that the present bill had been introduced. His noble and learned Friend said that they were taking away by this bill from trustees the right of voting. If so, when was that right conferred? If his noble and learned Friend said it was conferred by the Reform Bill, he would point to the declaration of Lord J. Russell and Sir W. Horne, who was Solicitor-general when the Reform Bill was under discussion, that they meant to make no alteration whatever in the law as related to trustees. If, on the other hand, his noble and learned Friend meant to assert that trustees had a bonaâ fide right to vote before the Reform Bill, he could quote an authority against him, for which he, and he was sure his noble and learned Friend likewise, entertained a great respect—he meant the authority of Sir J. Campbell, who stated in the House of Commons, that the better opinion of the two was, that trustees could not vote, although he admitted it was a question that had been for some time disputed. The appellate tribunal under the Irish Reform Act, consisting of the judges of the land, had distinctly decided the point—that decision being in conformity with that of

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the majority of the revising barristers in this country. It was the duty of the Legislature to make the law as precise and clear as they possibly could, and with that view had this bill been introduced.
Lord Denmanthought, that his noble and learned Friend (Lord Campbell) had laid strong grounds for not making the case of trustees the subject of an act of Parliament. One or two of the revising barristers had decided differently from the majority; but there was no doubt, if the law were not altered, that this question would be one of the first referred to the Court of Common Pleas. Indeed, he suspected that that court would have very little employment under this bill, if by this legislative interference they were to anticipate the decisions to which that court would come. He did not think the doubts of a particular revising barrister formed a sufficient ground for legislative interference. Neither did he consider it judicious to include the three classes of trustees under the one enactment; seeing that their rights were of a separate kind, he thought they ought to undergo a separate consideration. It was a serious question whether the trustee of a minor, for instance, who was receiving the rents,' controlling the whole property, and presiding over the expenditure, should not, as the representative of a family, be allowed to vote at an election in the county in which the property was situate. He was decidedly of opinion that these questions ought to be separately considered.
Lord Wharncliffesupported the clauses. The noble and learned Lord, the Chief Justice did not seem to feel much confidence in his argument, which was to the effect that the disputed points being very few, it would be as well to leave some of them to be decided by the Court of Common Pleas, otherwise that court would have but little to do. That, he conceived would be a very bad course of legislation to adopt.
On the question being put, it was decided that the clauses should stand part of the bill.
House adjourned.