HL Deb 16 May 1843 vol 69 cc412-26
Lord Brougham

said, he now rose to ask their Lordships to give a second reading to the Townshend Peerage Bill. It would be in the recollection of their Lordships, that when this matter was last before the House, a noble and learned friend of his (Lord Cottenham) had taken an objection which tended to prevent their Lordships going into evidence in support of the preamble of the bill, and that objection had been negatived without a division, the consequence of which had been that their Lordships had entered into a consideration of the evidence. He now spoke in the presence of many noble Lords who had taken part in a careful examination of the evidence taken at the bar, and it therefore was hardly necessary for him to do more than slightly to remind noble Lords of what had been proved, the course the arguments had taken, and the answer which had been given on the part of those who opposed this legislation. He would, in the first place, remind their Lordships, that those who were in favour of the measure, both in the committee up-stairs to whom the case was referred, and on the discussion of the objection raised by his noble and learned Friend, all distinctly and explicitly admitted, that this was an extraordinary, if not an unprecedented measure—a measure to which recourse ought only to be had in most extraordinary and peculiar circumstances; that it ought to be carefully watched, that the proof of the facts on which the necessity was founded, for such a measure ought to be carefully sifted, and it was only, as his noble and learned Friend behind him (Lord Cottenham) had stated—in which statement he afterwards agreed, and in which his noble and learned Friend not now in his place (Lord Denman) also concurred, and as his noble and learned Friend on the Woolsack had added, on the condition that the facts stated in the preamble were clearly proved by evidence that could not admit of a shadow of a doubt to remain upon any man's mind—that he or they could ask or advise their Lordships to pass a measure of this description. Having stated thus much, he would further remind their Lordships of what had passed in this House on the three several days (with an interval between each) upon which their Lordships had entered, from ten o'clock in the morning until four or five o'clock, into a full examination of the evidence, so as to investigate the truth and correctness, in all respects, of the allegations contained in the bill. The House on those days had been attended by from sixty to seventy Peers, who gave the most zealous, unbiassed, candid, and deliberate attention to the arguments urged by counsel on either side, and to all the depositions of the witnesses. The witnesses examined had undergone a most searching and sifting cross-examination, conducted by the professional gentlemen in attendance, and a still more sifting examination by different Members of their Lordships' House—more sifting because noble Lards were not bound by those rules by which counsel in a cause were limited. He bad not had a very short experience of proceedings in courts, whether in Parliament or in the courts of law, and he must say that he never remembered a case of any importance in which the evidence was so entirely in one direction; and there was not a single shadow of doubt created either by the demeanour of the witnesses, by any discrepancy between their testimony, or by any internal improbability as to the matters they deposed to. The noble and learned Lord then gave a summary of the evidence, and afterwards said— all these circumstances proved beyond a doubt all the allegations of the preamble of the bill, and nothing could be more audacious than the conduct of Mr. Dunn Gardner and Mr. Margetts; Lady Townshend he acquitted of all participation in the scheme, but nothing could be more audacious than the conduct of Mr. Margetts and Mr. Dunn Gardner, in endeavouring to palm off a spurious offspring on the Townshend family, and usurp die privileges of their Lordships' House. He said, that Lady Townshend was not to blame. Towards the end of the investigation, had there not been a sufficient and clinching proof, she might have been called —not to prove the illegitimacy of her own offspring—for that was not according to the rule of law—but she might have been called to prove access and cohabitation, and prove the legitimacy of her offspring. The counsel for Lord Townshend had put it to the opposing counsel, that aha be called, and tell if she had cohabited with Lord Townshend. The opposing counsel, however, bad not answered to the call, and had made an excuse for not calling her, that she was not, according to a decision of Mr. Justice Littledale, a competent witness. He, however, could give a better reason for not calling her. The learned counsel dared not call Lady Townshend, because she could not prove access. He was bound to state that Lady Townshend was grievously affected by the odium she lay under on account of the proceedings in this case, and had desired him, on her authority, so to state: but she could not be expected to state before their Lordships any doubt of the legitimacy of her own children. He must also say in the lady's defence, and in extenuation of her conduct, that she had acted under the influence and control of Mr. Margetts and Mr. Dunn Gardner; that she had acted on their compulsion, and had vehemently protested against the whole proceedings, against the baptism of the children, and the assumption of the title. Lord Leicester must be excused, too, for he could not be expected to know better than his parents, or to know more than what they told him. He exonerated Lord Leicester therefore. The case, he maintained, which was as clear as daylight before, was made clearer by all the evidence and by the admissions he had adverted to. He would only add, that either then, or on the second reading, or at some other stage of the bill, he proposed to make an alteration in it which would not touch its frame, and, he believed, it would improve the bill. He meant, instead of declaring the children illegitimate, to declare that they were not the issue of the Marquess of Townshend. That was a better form of expression, and the enactment would equally obtain its object. They would be left, if they pleased, to prove their own legitimacy, if they knew how, though he could not see how they could prove themselves either the children of the Marquess of Townshend, or the legitimate children of Mr. Margetts, as the marriage of their mother with the Marquess had never been dissolved. By putting the clause in that form their Lordships would not do more than necessary, nor more than the circumstances of the case required. They would only declare that these children were not the legitimate offspring of the Marquess of Townshend. One of the children had not yet attained the age of twenty-one, and could not be made a party to the suit. They might proceed in respect to him as they proceeded in the Berkeley case; but he thought, under all the circumstances of the case, as he could not be served, that the best way was to leave his name out of the bill. The effect then of the measure would be only to declare that those children who were of age, were not the legitimate offspring of the Marquess of Townshend. Another part he must notice was that referred to in the correspondence with Mr. Ridgway, a respectable bookseller in the metropolis, who was the Marquess of Townshend's agent, and from which is appeared that the Marquess of Townshend had offered, on certain pecuniary arrangements being made by Mr. Dunn, to acknowledge the legitimacy of the children. Now that was no confirmation of their legitimacy. On the contrary, it indicated that the Marquess had a consciousness, that the children were not his; at the same time he behaved so ill towards his own brother, that he was willing, for his own pecuniary purposes, to cut him off from all chance of succeeding to the titles and estates if Mr. Dunn Gardner would have acceded to the treaty. He had nothing to add, but to express a hope that their Lordships would read the bill a second time. On the question being put,

Lord Cottenham

said, he was willing to admit that the case which had been made out at their Lordships' bar was complete. The fact of the adultery was clearly proved, as well as the continuance of the adultery. It was clearly proved, that; the husband did not beget the children which his wife bore. All that was proved to the satisfaction of every one of their Lordships. But he must say, nevertheless, that their Lordships were not called on to adopt the bill, because the case had been so strongly established. On the contrary, he thought that the strength of the case was an argument against the extraordinary interposition of the Legislature which was now demanded. If the case were doubtful, if it depended on one witness, he would not say but that his opinion might be favourable to the interposition of the Legislature. There might be circumstances which would justify the exercise of the power of the House, but it was when the facts of the case were not so strong as in this case. The circumstances proved at their Lordships' bar were so strong as to destroy, he thought, the necessity for interference. The fact to which his noble and learned Friend adverted at the conclusion of his address did not invalidate but confirm the other evidence. That the father professed a readiness to acknowledge the children, if they would join him in cutting off the entail, was, he thought, a proof of his opinion of their illegitimacy. The document in which that evidence was contained, was not the only document which bore on the same point. They were, however, to consider what their Lordships were about to do in establishing this precedent; and he would venture to say that, if they adopted the bill, they would have many such cases brought before them. What was that case? It was the case of an uncle calling on their Lordships to declare by act of Parliament that certain persons, called the children of his brother, were not his legitimate offspring. They were the children of that brother's wife, but not the children of the brother. He had stated formerly that they had no precedents to guide them, and their Lordships had directed two committees to search for precedents, which had reported to the House without finding any. The counsel, it appeared, had been more successful than their Lordships' committee, and they had found three cases, two of which were of a time that their Lordships would not be disposed much to regard; they occurred in the reign of Henry 8th, and one occurred in the reign of Charles 2nd. Of the three cases, that of Lady Marr, occurred in the year 1542, and there was a second case in the same year. But for the evils which existed when those cases arose the law had provided no remedy, and therefore the Parliament interfered. Certainly justice required that the law should be capable of giving relief in such cases, and that it did not was the only ground on which Parliament interfered in cases of divorce. It did not interfere by granting divorce bills till it was established that ecclesiastical courts would only pronounce for a divorce â mensa et thoro. After the reformation, the ecclesiastical courts had not the power, and would not decide on dissolving a marriage â vinculo et matrimonii, and the Parliament was obliged to interfere. In these three oases, their Lordships would find the same principle, and according to the law of the land the parties had no other remedy than the interference of Parliament. That interference was called for by the fact that there was no other remedy as long as the husband was within the four seas. It was then a rule of law that the children of a man's wife could not be declared illegitimate if the husband were within the four seas. The fact that the husband was within the four seas constituted the legitimacy of the children. In cases where the husband was not the father of the child, nevertheless, according to the rule of law, the child was legitimate. The law, then, providing no remedy in such cases, the Parliament acted, it assumed the jurisdiction, and declared the children illegitimate. But that rule of law had ceased, and the ordinary courts of law could and would now investigate such cases, and as the circumstances warranted, the judge and the grand jury would find that, the children were legitimate or illegitimate. At present, then, there was a remedy for such cases; the old rule of law was at an end, and the reason for their Lordships exercising a jurisdiction had ceased. The precedents relied on were all drawn from a time when the interference of the Parliament was necessary, because there was no other remedy. He would warn their Lordships of the danger of following those precedents and of the consequences which would flow from doing so. In the recital of one of these three acts it was set forth, not that the husband and wife had separated, although it was stated that there had been adultery on the part of the wife, but merely that there had been an admission on the part of the wife that her children were adulterous, and hereupon they were bastardized, contrary to all law and all justice. With the exception of the three acts cited, there were no records of Parliament which furnished anything like precedents for the present proceeding, and these he looked upon as precedents which their Lordships should be very chary of following. What had been the rule in divorce cases formerly? The rule had been, that in all acts dissolving marriages by reason of adultery, such children were declared illegitimate, as it was assumed from given evidence they could not have been the children of the parties. The last Act of Divorce, in which this principle was acted upon, occurred in 1799, since which period the Legislature had repudiated it altogether. In 1828, in a case before their Lordships, an application was made at the Bar to go into certain evidence to show that the issue of the wife were bastards, inasmuch as there was ground for believing that they could not be the issue of the husband. But the answer given by their Lordships to that application was this, that the House of Lords had for many years discontinued the permitting any such clause being introduced into divorce bills, and for this reason, that there was no person to represent the interest of the infants. The question in these cases was between the husband who applied for the divorce and the wife who resisted the application, but no question justly arose as to the illegitimacy of the children. On the same principles his noble and learned Friend who had charge of the present bill, had most properly stated, that it was not intended to let this act affect one of the sons of this lady, on the ground that that child was under age, and therefore unable to appear at the Bar to protect his interests. He quite concurred in the propriety of this exemption, and it seemed to him that the cause here stated involved the strongest reason why their Lordships should not entertain this bill at all. His noble and learned Friend admitted, that this was a very extraordinary and very novel proceeding, justifiable only by the extraordinary circumstances of the case, which extraordinary circumstances, he presumed, were the strength of the evidence establishing the alleged facts. For, as to the other circumstances of the case, although fortunately such cases were rare, it could not be altogether described as very novel and extraordinary for illegitimate children to be born of a married woman. The peculiar circumstances, the details of the case, might be extraordinary, no doubt, as they were represented; but, after all, how were their Lordships to know what all the circumstances of the case, on both sides, were, in the present position of the matter? It might be that the individual who came before their Lordships with this claim came before them with what was a strong case, with what, in the sanguine views of a person seeking to establish a claim, appeared to be an overwhelming case; but there might also be features in the evidence adduced which turned on very nice points; there might be circumstances in the conduct of the wife of the claimant's brother, which might appear to the claimant to be of a very flagrant and conclusive character against her, but which, when the matter was thoroughly sifted, might or might not, turn out to be little more than flighty irregularities, which, however objectionable, did not wear the criminal aspect imputed to them. It appeared to him an evil of very great magnitude to open the door of their Lordships' House to inquiries such as this, into the proceedings of particular families, of husbands and wives, whom no legal measure had separated, and who might at the very time, for anything that legally appeared to the contrary, be again united, and be living in mutual happiness. This was a great grievance; and their Lordships ought long to hesitate before they held out to the public, that people had nothing to do but to come and demand such inquiries at their Lordships' hands, to obtain them. If they established such a precedent as this, they would find, when too late, that they had thrown open that House to interminable cases. He had heard it said, that besides prospective, there were present grievances to be re- medied. It was not merely that the claimant might suffer a grievance hereafter; there was a present grievance. He would say present grievance in this case, as contradistinguished from the grievances which existed in every other case, where the circumstances were such as to raise a question of title depending upon the illegitimacy of other persons, which question could not be immediately tried. It was said that the eldest of the individuals whose title was sought to be set aside, called himself Earl of Leicester; the assumption of which title was said to be a great inconvenience and grievance upon the claimant, inasmuch as, by assuming it, the person proceeded against announced his intention of assuming a title which the claimant said would belong to him; but the mere assumption of the title, as a mode of making this announcement, need hardly be so weighty a grievance. It was said to be another present grievance, that the person so calling himself Earl of Leicester came and stood at the foot of the Throne in their Lordships' House, in his professed capacity of a Peer's son. This was described as a privilege which it was a great grievance for him to assume. Now he had met with a very similar case to this. In the year 1668, an infant presented a petition to their Lordships' House claiming to be entitled to be called Viscount Purbeck, and to have the privilege of standing behind the Throne, in his alleged capacity of a Peer's son. It was argued against him that his father was not the legitimate child of the former Peer; but the claimant insisted, that though an infant, he was entitled to the dignity he claimed, and to stand at the foot of the Throne, because he was the son of a Peer. But the law authorities of their Lordships' House at that time considered that the privilege of standing at the foot of the Throne was not so considerable a privilege as to oblige them to come to a present decision, and the matter was postponed for three years, that being the period wanting to complete the claimant's majority. Now this was doing much more than he proposed to do, for all he proposed was to adjourn the consideration of this matter for six months. Now, this, he thought, was a precedent, illustrative of the opinion of the House as to the privilege of standing at the foot of the Throne. It so happened, that the individual now in question had a privilege in reference to their Lord- ships' House with which their Lordships were not likely to interfere, the privilege, namely, which enabled Members of the House of Commons to be present in their Lordships' House, though not in the same position altogether as Peers' sons. There was another present grievance complained of; that this individual sat as a Member of the House of Commons, upon his alleged qualification as the son to a peer. He apprehended that as to this ground of complaint, their Lordships would be of opinion that this was a question which might just as well be left to the House of Commons themselves. Their Lordships would not probably wish to trouble the House of Commons with their opinion as to whether a Member of that House had or had not the qualification under the statement of which he had taken his seat among them. It might, indeed, be said, that the time had gone by at which that qualification could be questioned in the House of Commons! but this was no reason why the House of Lords should interfere in the matter. What would be the result of inquiries of this sort? Suppose that the present case, instead of being a very strong one—the noble and learned Lord, indeed, admitted that had it not been a very strong case, had there been a reasonable doubt upon the matter, he should not have ventured to bring forward the measure—but suppose the case had not been a strong one, suppose the bill rejected by their Lordships, not on the principle which would leave things as they Stood, but on the ground of the weakness of the facts adduced, in what a position would this place their Lordships when the case at some future period came before them in their judicial capacity? Suppose their Lordships were called upon to exercise their judicial capacity in this very year? In what a position would they stand as judges in a question which, though in its incomplete state, they had decided upon as legislators but a month or two before? Again, suppose the bill which bastardized these persons passed by their Lordships, should be rejected by the House of Commons; this might happen, and then in what a state would the parties be left? When some ten or twenty years hence, perhaps, in the persons, possibly, not of the present parties, but of their children, the Townshend peerage case came before the Peers, in what a position would the case be placed by the circumstance which he had now suggested. The bill before them referred to certain honours and estates, and set forth that there were no present means of proving the claimant's title. It was not urged that the claimant had no remedy; all he said was, that he had no adequate remedy. Their Lordships should recollect, that questions of title were now placed upon the same footing as other questions of inheritance, and their Lordships, therefore, need not be specially asked to interfere on the ground of peerage. There was another point he would suggest. He did not mean to say, it was not competent in the House to entertain questions of peerage, but they must be careful that, in entertaining such questions, they did not interfere with the privileges of the Crown. The House of Lords had no original jurisdiction in such matters; all questions of this nature must be deputed to their consideration from the Crown, and he really thought it worthy of their attention how far in this matter of the Townshend peerage they might be trenching upon the undoubted prerogatives of the Crown. The bill, of course, could not become a law until it had received the royal assent; but up to the period when it was presented to her Majesty for her approval, her Majesty would have no cognizance of a matter with which the prerogatives of the Crown were, in point of fact, so intimately connected. By this bill, Parliament was called upon to dispose of estates, not upon reference from the parties respectively interested, but ex parte adversely; to take away property from one person, and give it to another, who thought proper to claim it. This was not the law of the land; the law of the land was, that property should only be disposed of between parties, either by the act of a jury, or per legem terrce. And this lex terrœ could never be construed to mean an act of Parliament, a private act of Parliament, arbitrarily passed by Parliament at the instance of one person against another person or another set of persons, upon ex parte evidence, adduced at a period when the question to be decided had not yet accrued. The lex terrœ was not a particular act passed in this way, adversely, against particular persons. To take property, by an arbitrary act of Parliament, from one person, and give it to another, was assuredly not a proceeding per judicium parium, or per legem terrœ, but the mere tyranny of power, which, though the sufferers must needs obey, could never be deemed the law of the land. If this principle were introduced, where were their Lordships, where was Parliament, to stop? Where were they to draw the line? To conclude, the facts of this case were, no doubt at all, very strong. The evidence adduced at the bar of their Lordships House was, no doubt, of the most conclusive nature; and it was because the facts were strong, because there was a strong feeling in favour of abstract justice being done in the particular case, because there would be a strong feeling of regret, in which he himself should entirely participate, at honours and estates passing into the hands of those who were not entitled to them—it was precisely for these reasons that their Lordships should deem it incumbent upon them, as judges in the last resort—as the judicial tribunal by whom this and similar questions must be decided —to abstain from laying down a rule, from adopting a line of proceeding, which, if laid down, which, if adopted, he believed there was no nobleman in that House but would live to repent. The noble and learned Lord concluded with moving, that the bill be read a second time that day six months.

On the question being put,

Lord Kenyon

thought it would be as well to postpone the decision upon the present bill until the noble and learned Lord on the Woolsack, and other learned Lords, had stated their opinions upon the principle of the measure.

The Lord Chancellor

said, that the principle of the bill had been fully discussed.

The Earl of Devon

was not clear that the principle of the bill had been altogether so fully discussed.

Lord Denman

said, that he considered that the principle of the bill was fully discussed on a former occasion, and, therefore, he did not conceive that it was necessary to reply to the arguments of his noble and learned Friend. He did not think that this was a bill upon which the opinion of the law Lords should be peculiarly called for. The question involved was one of expediency, and upon which any noble Lord was as well able to form an opinion as a legal Lord. With respect to an objection of his noble and learned Friend namely, that the bill might be rejected by the House of Commons, he should regret if this happened; but even if this were the case; the evil was not irreparable, for the evidence heard at the bar might be made available on a future occasion. He would only add, that he thought it would be a great evil to public morals if this did not pass, and he had never more unhesitatingly given his assent to any measure.

Lord Campbell

having addressed their Lordships on a former occasion, would only say, that he thought that in the present case there was a great evil for which the law had provided no adequate remedy; he therefore thought this bill should pass, and he confessed that he could not conceive that any danger would result from it.

The Earl of Wicklow

thought, that no answer had been made to the objections urged by the noble and learned Lord (Lord Cottenham), on a former occasion, to this bill; and no attempt, on the present occasion, had been made to answer his extremely powerful speech. He certainly should oppose the second reading of this bill; and his opinion as to the propriety of doing so was strengthened by hearing the evidence.

The Lord Chancellor

being about to put the question,

Lord Brougham

said, the Master of the Rolls has not yet given his opinion.

Lord Langdale

Thus called upon, I can have no objection to state shortly the reasons which induce me to vote for the second reading of this bill. Not having been able to attend the House when the evidence was given at the bar, I have very carefully read the whole of it as printed for the use of your Lordships, and I am of opinion that the case stated in the preamble of the bill is substantially proved. Even my noble and learned Friend who opposes the bill, admits that the truth of the statements has been fully established. This being so, every one must consider it to be desirable, at least that a public scandal proved to exist, and producing, and likely to produce great private injury, should be put an end to by legal means. It is a case in which justice cannot be done and secured without the application of law, and there is no general law applicable to it. Now, my Lords, I admit first, that it is a great reproach to our system of general law that it provides no remedy for such a case as this; and secondly, that a special and peculiar law made for an individual case is justly open to such objections as have been so calmly and judicially stated by my noble and learned Friend (Lord Cottenham). But in all cases of this kind we have to consider the balance of conveniences and inconveniences. There is no general law enabling parties to obtain redress by a complete divorce; and acts of Parliament for effectuating divorces in particular cases arc passed in every Session. They are not free from the objections to which special laws made for individual cases are liable; but it is thought better to pass them than to refuse justice in particular cases where it cannot be had by the general law; and on the consideration of this case, there being unfortunately no general law applicable to it, I think that the passing of this bill, though objectionable, will produce much less inconvenience than will arise from permitting the public scandal and private wrong which have been proved, to go on unchecked and unredressed. I only wish to add, that in my opinion a general law applicable to such subjects ought to be provided; and that I support this bill for the reasons which I have stated, and because I think that a general law duly considered cannot probably be prepared and agreed upon in the time within which relief ought to be given in this case,

Their Lordships divided on the question that the word now stand part of the question—Contents 55; Not-Contents 8: Majority 47.

List of the CONTENTS.
The Lord Chancellor Lovelace
DUKES. Auckland
Buccleuch VISCOUNTS.
Wellington Sydney
Huntley Combermere
Lansdowne Canning
Northampton BISHOP.
Ormonde Gloucester
Erroll Camoys
Morton Beaumont
Kinnoull Teynham
Rosebery Colville
Courtown Montfort
Clanwilliam Sondes
Mountcashel Boston
Enniskillen Kenyon
Leitrim Braybrooke
Lucan Lyttleton
Bandon Bayning
Onslow Bolton
Powis Northwick
St. German's Dunsany
Morley Redesdale
Sheffield Castlemaine
Eldon Tenterden
Brougham De Mauley
Denman Colborne
Strafford Campbell
List of the Not-CONTENTS.
DUKE. Wicklow
Cleveland BISHOP.
Devon Cottenham
Scarborough Monteagle of Brandon

Bill read a second time.