Lords Sitting of 18 May 1843

MINUTES
BILLS.Public.—3a. and passed: Registration
of Voters.
2a. Queen's Bench Office.
Private.—la. South Eastern Railway Extension; Drumpeller Railway; Liskeard and Caradon Railway; Bristol
and Gloucester Railway; South Eastern and Maidstone
Railway; Porterfield's Estate.
2a.Wexford Harbour.
3a.Hawkins's Estate.

SCHOOLMASTERS' WIDOWS' FUND SCOTLAND.
The Lord Chancellorsaid, it was his duty to communicate a circumstance connected with the privileges of Parliament. It appeared that in the month of April last, a bill came up to their Lordships from the other House of Parliament, entitled, the " Schoolmasters' Widows' Fund (Scotland) Bill," which was read a third time and passed by their Lordships on the 1st of May, and certain amendments having been made, it went, back to the House of Commons. On the 5th of May Mr. Vivian and other messengers from the Commons brought back the bill to their Lordships' bar, and stated that the Commons had agreed to the amendments. In consequence the bill had been inserted in the list of bills which received the royal assent by commisson on the 9th of May. He should have felt it his duty to have moved for a committee to inquire into the circumstances connected with this bill, but upon looking over the votes of the other House of Parliament, he found that the House of Commons had appointed a committee to make the inquiry; and he, therefore, thought that their Lordships should take no further steps at present. It appeared by the votes

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of the House of Commons that they never did assent to those amendments; but he had no reason to doubt that they had, be-cause the bill was brought by messengers from the House of Commons, stating that the House had concurred in the amendments. It was possible that at a future day he might call their Lordships' attention again to the circumstances; but he hoped that their Lordships would consider that no blame attached to the officer of their Lordships' House, inasmuch as a message was brought to their Lordships' bar by messengers from the other House, stating that the amendments had been agreed to.
Lord Campbellwas sure that no blame could attach either to the noble and learned Lord on the woolsack, or to the officers of their Lordships' House.
Lord Broughamsaid, that all their Lordships did was to give credit to the messengers sent from the other House. His noble and learned Friend had defended his noble Friend on the woolsack when he was not attacked—he trusted the noble Lord would defend him when he was attacked.
Lord Campbellwas sorry even for once to have encroached on the peculiar province of his noble and learned Friend (Lord Brougham).
Conversation at an end.

SUDBURY DISFRANCHISEMENT.
The Lord Chancellorwould call their Lordships attention to the Sudbury Disfranchisement Bill. He believed most of their Lordships were aware that, on a former day, they had heard counsel at the Bar at length, and had proceeded to hear evidence in support of the preamble of the bill. Their Lordships had met at ten o'clock that morning to proceed with the evidence, and counsel had examined three witnesses, for the purpose of proving general acts of corruption and bribery: they were unsuccessful in producing any such testimony; the consequence was, that the Lords then present suggested to the counsel, if they had a case, that they should bring forward such witnesses as they thought they could rely on, and save the public expense; and at the same time an intimation was flung out that unless counsel thought they could make out a case of general corruption in the borough, it was not reasonable to suppose that the House would pass this
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measure. It was also stated, that the House relied implicitly on the honour, the integrity, and the experience, of the learned counsel, whether they could, in their judgment, give the House reason to believe that the case could be made out; it was also said, that this intimation was not given with a view of stopping proceedings, but was only a suggestion. The counsel for the bill consulted for a short time, and then Mr. Austen the leading counsel, stated that he would not proceed further with the evidence. He was satisfied from all their inquiries and all the information they could obtain, that they had not reasonable ground to believe that they could make out a case of general corruption, and that, therefore, after the intimation of their Lordships, counsel would not proceed with the bill. The Lords then present thereupon thought it better not to proceed; and that the circumstance should be represented to a fuller House before any course was taken as to the second reading of this bill.
Lord Broughamonly wished to add one fact to the statement of his noble and learned Friend; the greatest possible facilities had been given to the parties to proceed, if they had a case; they were not taken by surprise, for it was intimated to the counsel that if they chose they need not give an answer that day, but wait to take time to consider; but having answered the first question in the negative, that they had not a case to prove of general bribery, counsel stated that they had no desire to proceed, that they had consulted upon the matter before, and this was their deliberate opinion. They were then asked if there would be any want of justice, or any inexpediency if the bill dropped? They thought not. After this their Lordships had but one course to take; the case was given up; the preamble had not been proved; and they had only to postpone the second reading till that day six months. They had no occasion to discuss the matter, it was now over, and he would at once move the postponement of the second reading of the bill for six months.
The Earl of Wicklowthought the noble and learned Lord had better give notice of his intention, especially as the noble Marquess who had the conduct of the bill (the Marquess of Clanricarde) was not present.
Lord Broughamhad no objection to

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postpone the motion till to-morrow; it was clear that they ought not to delay the decision on this bill any longer.
Subject at an end.

SCOTCH CHURCH — LORD CORE-HOUSE.
Lord Broughambegged to make an explanation on the part of a venerable and most able judge, whose opinion had been misconceived by his noble Friend opposite (the Earl of Aberdeen), and through that misconception had been misconceived by many Members of their Lordships' House. The mention of the learned judge's name would be sufficient to secure for him and for his opinion the greatest possible respect—it was Mr. Cranston, Lord Corehouse, who had retired from the bench, but whose great faculties were entirely preserve d. He would only read the letter:—
"Excuse a very few lines on a very trifling subject. Lord Aberdeen has done me the honour to refer repeatedly to my opinion on his proposed bill about the Church of Scotland, under a misapprehension arising, I suppose, from some unguarded and incorrect expression of mine, though I do not recollect it. I approved at first of his bill, in so far as it was purely declaratory, thinking that, although unnecessary in other respects, it might tend to quiet the ferment which lay and clerical agitators were exciting, for I had then more faith in the good sense of the clergy of Scotland than I have now; but I never up proved of it, in so far as it could be construed to enlarge the powers of the Church in the smallest degree. Relevant objections to a presentee may be urged before the Church courts, not only as to life, literature, and doctrine, but likewise on some other grounds recognised by the Canon law, as inability to perform the duties of a minister from blindness, deafness, defective utterance, infirmity sufficient to prevent the visitation of a parish, ignorance of the language of the majority of the parishioners, necessary and unavoidable connexion with secular business to a great extent, and I believe some others. But I never held that the unexceptionableness of a presentee to the parishioners, or his not preaching in a way that they thought edifying, was by itself a relevant objection, or could be listened to at all by the Church courts. If it were relevant, it would open the way to every species of intrigue and cabal, and defeat the right of patronage, which is essential to the respectability of the Presbyterian Church. I thought 1 had explained myself fully on this subject in what I said in the first Auchterarder case. I go further, and think it would be unwise and dangerous that a declaratory act should recognise in every case the privative jurisdiction of the Church, even as to relevant objections. It is reported
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that a Presbytery, wishing to exclude an unexceptionable presentee who was obnoxious to them, agreed to divide Church history into a number of periods, and to appropriate each period to an individual Member which he was to study for some weeks, and to make himself able to pose the candidate with a multiplicity and minuteness of questions, all which no Member of that or any other Presbytery could have answered without previous notice and long preparation. Suppose this fraud had been carried into execution, and no redress obtained in the higher Church courts. An appeal to the civil courts, I conceive, would have been competent, and so in every case where fraud or conspiracy to defeat the right of the patron or presentee can be established."
It seemed incumbent upon him to notice this misconception now, because they were in the very heat of the matter. He believed this was the very day appointed for the meeting of the Scottish Church.
The Earl of Aberdeenwished that his noble Friend had apprised him of his intention to read this letter and bring the subject forward. It was true that his noble Friend had sent to desire his attendance in his place, but he had no idea what his object was. [Lord Brougham had said it was a communication from Lord Corehouse.] He had nothing to say against the opinion now expressed by the learned judge; it entirely confirmed what he had stated: he had never said that acceptableness was necessary, but meet-ness and suitableness, of which the court was to judge, and not the people. He would not then enter upon the subject, but he wished to say, with respect to his bill, that if he had been apprised of the noble Lord's intention, he would have shown Lord Corehouse's opinion under his own hand, that his bill only declared what the law of Scotland was then, and what it must remain so long as patronage existed. The noble Lord might say, "I do not trust the opinion till 1 see the case submitted." That case was the bill itself.

TOWNSHEND PEERAGE.
House in committee on the Townshend Peerage Bill.
Lord Broughamproposed two amendments, declaring that the four eldest children were not the lawful issue of the marquess Townshend, instead of bastardizing them; and providing, on the ground of infancy, that the bill should not affect the youngest child, Cecil, Mina Bolivar.
The Earl of Wicklowthought the noble

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Lord ought to explain his reasons for those alterations; if they had been contained in the bill as originally drawn they would be unexceptionable. Was the object of the bill in declaring that these were not the issue of the Marquess Townshend, to imply that they were legitimate children of any one, if so they would deceive the country, for they were illegitimate if they were not the children of the Marquess.
Lord Broughamhad stated distinctly, on the second reading of the bill, that he! meant to make these alterations, and to move them in committee. He had also given his reasons. Although, in his private opinion, it made no difference, yet it was a material consideration that if they bastardised the children, not only would they not be the lawful issue of Lord Townshend, but not the lawful issue of any valid marriage which might have taken place since the marriage with Lord Townshend, which marriage the mother had stated to be a nullity from beginning to the end. According to the English law, the change would make no difference in the bill; but here was an alleged Scotch marriage, and how could the House take upon itself to say what the decisions of the Scotch courts would be? He was unwilling to deprive the parties of that right. With respect to the case of the infant, he thought it was agreed on all hands that they ought to except the infant from the bill, because being an infant, he could not be served.
Lord Monteaglethought as to the first alteration the reasons in favour of it were conclusive. Instead of bastardising the issue the bill now declared that the children were not the issue of the Marquess of Townshend. But he saw increasing objections to the principle and policy of the bill, after there should have been an exception made in favour of the infant. There was no doubt in his mind of the justice of this unfortunate case, and he believed that there was no doubt in the minds of any of the eight noble Lords who like himself voted in the minority, but the great object of the bill, as originally introduced, was to protect the interests of the rightful claimants to the Townshend peerage. This bill, as it had been modified, would not produce that effect, because it would leave undisturbed the claim of one of the children, namely, the minor. They would now leave the difficulty of the case precisely were they found it. There would be nothing to prevent that child
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from urging, when he reached majority, a claim similar to that now put forward by the alleged Lord Leicester. They would only be leaving the false claim, if he might so call it, to be represented by one child instead of another. He had heard some of his noble and learned Friends support their vote for this bill on the ground of a reparation to public scandal and public morals; but he had heard no observation made, on an exhibition—the basest and most degrading to public morals—that a Peer of this realm (as it had been given in evidence)—had offered for a pecuniary consideration to deprive his own brother of his rights and honours. He was not lawyer enough to know whether any property would be given to Lord C. Townshend by this bill. [Lord Brougham: "Not one farthing."] His noble Friend assured him not one farthing; then he said, that this bill not affecting the youngest child, Cecil Mina Bolivar, would make no alteration in his condition. He would be left in the same status as at present, and the day after the bill passed, he might assume the title of Lord Leicester, and claim all the property accruing under the settlements of Mr. Dunn Gardner. Lord C. Townshend might then have to go through the same process hereafter to prove the illegitimacy as the present infant, as well as that of the former children. He objected to the bill on principle, and he thought from these circumstances it would not attain the end in view.
Lord Campbellwas understood to admit, that it was possible that a marriage might be proved to have taken place between Lady Townshend and Mr. Margetts, and he thought the first amendment had been very properly drawn to meet that contingency. With respect to the other amendment the bill would now not affect an infant who was not before their Lordships, and who could not be brought before them. The bill declared Lord Leicester not to be the son of the Marquess of Townshend, and the youngest son, he had understood had already laid down the title of Lord C. Townshend, and called himself Mr. Margetts. He supported both amendments.
The Earl of Wicklowopposed the amendments. He thought that if the first amendment were carried, it would admit the possibility of the legitimacy of the children; and as under no circumstances could that be the case, he opposed it. It had been said, that Lord Leicester was

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taking on himself the honours of the peerage; but if the second amendment were passed, the younger son might assume all those honours to-morrow. He thought that the amendments would render the bill inoperative, and he therefore opposed them.
The Marquess of Clanricardesaid, considering what had come before the House in the evidence, he would suggest that the wisest course for their Lordships to adopt, and the best to sustain the dignity of the House, would be to pass a bill of attainder against the present Marquess of Townshend, which would compel him to come to the bar of the House, and state what the circumstances were under which the children were born.
Lord Broughambegged to remind his noble Friend behind him, who had said, that no person had taken any notice of the Marquess of Townshend's conduct, that he had reprobated the conduct of Lord Townshend as most unjustifiable, and stated that it was a fraud upon his brother and the rest of his heirs. The noble Earl opposite (the Earl of Wicklow) had laid down the law that there was no difference between stating that the children were illegitimate, and that they were not the children of the Marquess of Townshend. He (Lord Brougham) believed that that was the law of England; but would the noble Earl undertake to say, that that was the law of Scotland? If the marriage of the Marquess of Townshend was void ab initio; propter impotentiam, and if a Scotch marriage took place in this case, as he be lieved it did, then the children would not be illegitimate, but the children of John Margetts. The law of the two countries was so different, that a marriage which the Scotch courts held to be perfectly innocent, the English law punished as a felony. The objections to the amendments only amounted to this, that they made the bill more objectionable, and strengthened the reasons for throwing it out on the third reading. He continued to think them necessary, and should support them.
The Earl of Devonwas glad to see the amendment introduced, but that did not alter his objection to the whole bill, and he would oppose it on the third reading.
Amendments agreed to.
Bill went through committee. Report was ordered to be received.
House resumed, and their Lordships adjourned.