Lords Sitting of 19 July 1844

MINUTES.
BILLS. Public.—1a. Parish Constables; Unlawful Oaths (Ireland); Soap Allowances; Western Australia; Farm Buildings; Trafalgar Square; Loan Societies; Party Processions (Ireland).
2a. Roman Catholic Penal Acts Repeal; County Coroners; Colonial Postage; Assessed Taxes Composition, etc.; Law Courts (Ireland); Transfer of Property.
Reported.—Art Unions; Aliens; Butter and Cheese.
3a. and passed:—Linen, etc. Manufactures (Ireland).
Received the Royal Assent. — Bank of England Charter; Three-and-a-Half per Cents. Exemption; Dissenters Chapels; Customs Duties (Isle of Man); Education of the Poor, etc.; County Rates; Militia Ballots Suspension; Stock in Trade; Vagrants Removal; Turnpike Acts Continuance; Parishes (Scotland); Prisons (Scotland); Charitable Loan Societies (Ireland); Turnpike Acts Continuance (Ireland).
Private.—1a. Great Southern and Western Railway.
Reported.—W. H. B. Jordan Wilson's Estate; Lady Le Despencer's Estate; Mariners and General Life Assurance; London Gas Light Company.
3a. and passed: — Brighton, Lewes, and Hastings Railway; Harris's Estate; Passingham's Estate; Bishop of London's Estate.
Received the Royal Assent.—Edinburgh, Leith, and Granton Railway; Ashton, Staleybridge, and Liverpool Junction Railway; Sheffield, Ashton-under-Lyne, and Manchester Railway (Ashton-under-Lyne and Staleybridge Branch); Taff Vale Railway; Eastern Union Railway; London and South Western Railway; Garnkirk, Glasgow, and Coatbridge Railway; Delabole and Rock Railway; Liverpool Docks; Newport (Monmouth) Dock; Birkenhead Docks; Southampton Improvement; Coventry Improvement and Cemetery; York United Gas; Hythe Landing Place (Hants.); Holmfirth and Dunford Road; Market Harborough and Coventry Road; Earl of Guilford's Estate; Necton Tithes (Bishop of Norwich's); Irvine's Estate; Stone's Estate.
PETITIONS PRESENTED. By Earl of Radnor, from Stratton, St. Margaret's, Wilts, in favour of Free Trade.—By Duke of Richmond, from Cuckfield, Worthing, and Brighton, for Protection to Agriculture.—From Schoolmasters of Ellon (Scotland), for Inquiry, with a view to their better Remuneration.

ACTIONS FOR GAMING DISCONTINUANCE (No. 2).
At half-past four o'clock the Lord Chancellor took his seat at the Table, when,
Mr. Jameswas heard as counsel on behalf of Mr. C. H. Russell, of Percy-street, Bedford-square, in the county of Middlesex (clerk to Mr. J. T. Russell, of the same place, solicitor), whose Petition against the Bill was presented yesterday.
Mr. J. T. Russellwas then examined in support of the prayer of the Petition.
On the Motion of Lord Brougham the evidence was ordered to be printed, and the witness to attend at the Bar at five o'clock on Monday, to which day the further proceedings on the Bill were adjourned.

THE WRIT OF ERROR—MISREPRESENTATION.
The Lord Chancellor: I beg to call your Lordships' attention to a matter which, although personal to myself, is of importance to the public, as connected with some proceedings which recently took place in your Lordships' House: I allude to the trial and arguments on the writ of error in the case of the Queen v. Daniel O'Connell and others. I have been informed that in certain Irish papers there has been published a most erroneous account of some statements made by me on that occasion; and in consequence of that information, I thought it my duty to examine into the source in which such an erroneous statement could have originated, and I find that it had its origin in a report, or rather in a commentary on this case, which appeared in the Morning Chronicle a day or two after the termination of the arguments of

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counsel. Now though I think it necessary to call your Lordships' attention to this subject, I do not mean to charge the writer of this article with any act of wilful misrepresentation; indeed, I am anxious, and bound, and ready to suppose that it arose from misapprehension, which a person not acquainted with the law of the subject would be very likely to fall into. Therefore I have no complaint to make against the editor of this journal in this matter, although on account of the nature of the statement, I feel it my duty to enter into some explanation upon the subject. I will beg now to call the attention of your Lordships to one or two sentences in this article, for the purpose of explaining what I am about to state to your Lordships. The first passage runs as follows:—
"Whilst Mr. Hill was upon the subject of the manner in which the jury had been composed, and which had been made the subject of a challenge by the defendants, the Lord Chancellor said, 'There is no dispute about the facts. It is clear from the record that there was a fraudulent list, that the book was made up from that list, and that the panel was made out from the book.' His Lordship afterwards observed—'The only question was, whether this was the right course of proceeding, whether the fraud formed a ground of challenge to the array.' At the same time Lord Campbell observed—'The question is, whether this [fraudulent composition of the Jury List] 'was a cause of challenge, or whether the parties ought to have applied to the Court of Queen's Bench in Dublin to quash the panel.' Here then, we have the deliberate and judicial declaration of the Lord Chancellor, that the trial took place before a Jury, which, as his Lordship expressly declares, the Crown prosecutors themselves, upon the record, admitted to have been fraudulently composed. Can any mortal who has the slightest acquaintance with the feelings and the temper of the people of England imagine that they will not receive such an admission with an universal burst of execration?"
Further on, the writer says—
"We cannot imagine it to be possible that any Minister of the Crown would have the audacity to maintain a judgment which is founded upon a verdict returned by a Jury who have been selected from a list which, according to the authority of the Lord Chancellor of England, has been fraudulently concocted, and at the hands of whom a verdict of conviction was anticipated as a matter of course."
This, my Lords, is the principal matter of the article to which I have now called
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your attention. In order to explain the transaction to which it refers, I must mention that in legal proceedings, when parties state a fact, or a series of facts, for the purpose of leading to a legal conclusion, the opposite party may demur to the point of law so raised upon that statement of facts; and the effect of his so doing is this, that for the purpose of argument, and of coming to a conclusion upon the point of law, and for this purpose only, the fact may be considered to be admitted. If he demurs, he cannot deny the facts; he must make his election. If he demurs, he admits the facts for the purpose of argument. He says, "Assuming the facts as the opposite party states them, I don't believe, that they will lead to the legal conclusion, in point of law, that you contend for." This was the case in reference to the challenge of the array. The facts were placed on the record. In order to support the challenge of the array, these facts were stated—"that a fraudulent list was made out by some person unknown with a view to prejudicing the case of the defendants; and that the Jury-book was made out from that list." These were the facts stated on the record, as the ground for supporting the challenge to the array. To this statement the Attorney General for Ireland demurred; the effect of which was as much as to say to the traversers, "assuming the facts to be as you have stated them, still I maintain they are no ground for a challenge to the array." Now, in the course of his argument on the Writ of Error, Mr. Hill, who was of counsel for some of the traversers, was going into some detail as to the facts alleged in the challenge of the traversers, when I observed to him "that it was not necessary to go into those facts, for that they were all admitted; it was admitted on the record that the list was fraudulently made up, and that from this list the Jury Book was made up to the prejudice of the traversers." It was so admitted for the purpose of legal argument; it could not be denied that it was so admitted on the record. I never intended to say, nor could I be expected, or supposed to say, that the facts were true of my own knowledge. My observation extended to the record merely. It is very possible, my Lords, that the person who wrote this article was not aware of these legal technicalities, nor of the effect of my observations—I do not, therefore, charge him with wilful

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misrepresentation. But when it goes forth that the High Chancellor of England has used such remarks, and made such admissions as those this writer states of me, it becomes necessary that I should set the matter right. I am the more anxious to give this explanation, because I understand from some noble Lords who sit near me that it was set forth in the Irish newspapers in large letters—in large characters—that it was admitted by the Lord Chancellor of England himself, "That the Jury-List was fraudulently made out for the purpose of prejudicing the defendants." I have, therefore, felt it necessary to explain this matter to your Lordships as clearly, and with as much perspicuity, as I can. I am sure that your Lordships have understood me, and are satisfied that what I did say on the occasion referred to did not lead to the conclusion in argument which has been arrived at by this writer; nor warrant the inference appended to it; that it can hardly be supposed possible
"That any minister of the Crown would have the audacity to maintain a judgment on which is founded a verdict returned by a jury who have been selected from a list which, according to the authority of the Lord Chancellor of England, has been fraudulently concocted, and at the hands of whom a verdict of conviction was anticipated as a matter of course."
This was a most perverse representation of what had fallen from him. The party making it must have been misled by not understanding the nature and object of the law, but if be did understand it, nothing can be more mischievous, nothing can be more improper, than the representation that had been made by him. There is another passage in the article in which the writer says that if the counsel for the Crown thought proper, they might have taken issue upon the matter of fact averred in the challenge. I shall not now give any opinion upon this point; but I may mention that the Attorney General for England stated in argument at the Bar of their Lordships' House that it was impossible to traverse any fact which was material to the issue. I trust your Lordships will think that I am justified in making these observations to the House. I seldom take notice of anything that is published relating to myself; but on the present occasion the publication is important, as having a tendency to prejudice the administration of justice.
Lord Broughamsaid, that the misrepresentation
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adverted to was certainly a most extravagant one; but he was also clearly of opinion that there was no ground for designating it as a wilful misrepresentation. It was certainly the greatest possible misrepresentation, but it arose from the greatest possible misapprehension of the course of the law, and of the nature of proceeding in making up the record. His noble and learned Friend stated, that he was charged with having gone out of the case to give an opinion on a point of fact, the evidence of which was not before the House. His noble and learned Friend was not the only person so charged; for in the Irish newspaper which he (Lord Brougham) had seen, it was assumed that all the Law Lords concurred with his noble and learned Friend because they had not contradicted him. Undoubtedly they did not contradict his noble and learned Friend, because they understood his statement exactly in the sense in which he had just explained it. He would not go into the other questions adverted to—as to the non-traversing the facts, simply because that question was not now before them. The present question was, whether the noble and learned Lord on the Woolsack had pronounced a judicial opinion that those facts were true, and his noble and learned Friend had set that matter right by contradicting the statement. He (Lord Brougham) did not, however, consider the misrepresentation wilful.
The Lord Chancellorsaid, that the other passage in the newspaper to which he had referred, but had not read, was as follows:—
"If the Crown lawyers thought proper they might have taken issue upon the matters of fact averred in the challenge, but, instead of doing so, they demurred to the statement itself."
In answer to that he had stated, that the Attorney General in his argument at the Bar of the House said he could not with propriety have taken issue on the facts; but he (the Lord Chancellor) made no observations on that point, because it was not now the question before the House.
Lord Campbell, after approving of the conduct of the noble and learned Friend on the Woolsack in correcting the misrepresentation to which his observations had been subject in the paper referred to, said, that when the matter came regularly before the House, and when they would

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have to consider the manner in which these trials had been conducted, he should feel it his duty to give an opinion entirely different from that which had been expressed by his noble and learned Friend.
The Lord Chancellor: I must beg to set my noble and learned Friend right; I gave no opinion whatever on the subject; on the contrary, I said I would not do so.
Lord Campbell: Well, then, he begged to give notice that when their Lordships came to consider this subject in their political and constitutional capacity, he should be prepared to contend that the Attorney General for Ireland was not justified in going to trial in the way in which he had done; that it was his duty to have seen that the Jury was impartially selected which was to try the question between the Crown and the traversers.
Lord Cottenhamsaid, that the explanation which his noble and learned Lord had given, he was sure must be satisfactory to every one who heard it. The fact was, that the noble and learned Lord's observation to the counsel for the traversers could not have been stated as between court and counsel in any other manner than it had been. Lawyers were so in the habit of treating matters alleged in demurrer as true, that the observation of the noble and learned Lord would have been at once understood by all who were acquainted with the principle and rules of pleading. Such, however, might not be the case with persons who were not informed upon the subject; and therefore he did not think there was any ground even to suspect that the misstatement of the writer now in question had any other origin than his misunderstanding the precise bearing of the case he treated of.
The subject then dropped.

ART UNIONS.
Lord Monteaglemoved, that the House resolve itself into a Committee on this Bill.
The Duke of Cambridgesaid, I have great pleasure in seconding the Motion of the noble Lord, and I trust your Lordships will forgive me if I take this opportunity of saying a very few words on the subject to which this Bill relates, having had the honour of presiding over more than one association of the kind to which the Bill now before your Lordship refers. The extraordinary interest which I feel for the welfare of the Arts prompts me to address
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a very few observations to your Lordships, although I feel that it will be needless for me to occupy your time at any length after the clear and able speech delivered last night by the noble Lord. About four years ago I was requested to take the chair at a meeting convened for the purpose of establishing a society for the encouragement of the Arts, it being known that five or six years previously I had interested myself in the formation of a similar association in the country where I then resided. I have reason to know from experience the advantages conferred by such institutions in diffusing a taste for the Arts, for although at the time when that institution was first projected no one in the town—I may almost say no one in the country where I then lived—cared anything about the Arts, the number of subscribers there is now nearly 4,000; and when I four years ago took the chair for the first time at the meeting of the Art Union Society in London, their number was about 6,000, but the last time I presided it was not less than 13,000. At this moment, as your Lordships are aware, there is above 20,000 l. in their hands in consequence of the legal difficulties which have intervened to prevent that money from being expended in promoting the objects of the Society. My Lords, every one at all acquainted with the proceedings of these Art Unions knows, that these bodies are not actuated by any desire of lucre or paltry gain, but that they seek nothing but the advancement of art. I trust, therefore, that every effort will be made to pass this Bill without delay, for, as the matter now stands, your Lordships, and all who have subscribed to these Associations, will be, like myself, liable to be imprisoned. The only comfort I have is, that I shall be in very good company. My Lords, I have great pleasure in seconding the Motion for the Committee on the Bill, and I sincerely hope that your Lordships will pass the Bill as soon as possible, for it would confer a great boon on artists if advantage could be taken by the Art Unions of the exhibitions of works of Art which now remain open.
The Marquess of Northamptonsaid, the question was one of life and death to artists. The objection raised against Art Unions was, that they had not brought forward any talent of the first order; but in art, as in everything else, time was required before eminence could be attained

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and even Michael Angelo and Rembrandt had their beginnings.
The Marquess of Lansdowneacquiesced in the necessity of passing the Bill during the present Session, and suggested that the exhibitions should be kept open somewhat longer than usual, in order to allow selections to be made from the pictures there collected.
Lord Colbornethought these Associations calculated to encourage mediocrity of talent, but, nevertheless, taking into consideration the number of individuals interested, he was anxious that the Bill should pass during the present Session, and then, if it should be found inadequate for the objects contemplated, it might serve as the skeleton of a more comprehensive measure next year.
After a few words from Lord Monteagle, Bill went through Committee, and the House resumed.

MAGISTRATES' CLERKS FEES.
The Marquess of Lansdownesaid, that perhaps it was not to be expected that a Bill could be introduced for the regulation of the fees paid to Magistrates' Clerks during the present Session, but he would ask the noble Duke opposite, whether, after the various discussions which had taken place, and the number of Returns that had been moved for, it was intended to bring forward any general measure for regulating the fees of Magistrates' Clerks? A Report had been made by the Commissioners appointed to investigate the causes which led to the disturbances which had occurred in South Wales, in which it was stated that, next only in importance to that great and crying evil, the exaction of illegal and unnecessary tolls on the highways, stood these fees claimed by the magistrates, as an incentive to insubordination. A Bill had, he believed, been introduced to remedy the former evil, which he trusted would not be abandoned; but he did not find that any notice had been taken of the abuse to which he had ventured to direct the attention of the Government.
Lord Wharncliffesaid, that the Government would not lose sight of the subject; and they would direct their attention, not only to the case of Magistrates' Clerks, but also to the case of the Clerks of the Peace and the Clerks of Assize. They hoped to be able to introduce a measure upon the subject in the course of the next Session.
The Duke of Richmondsaid, that he
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could never understand why the Clerks of the Peace or the Clerks of Assize in one district should have different fees from the clerks in another district. With respect to Clerks of the Peace, he should wish that their fees were abolished altogether, and that the counties should give them salaries instead. The practice of paying such officers, half by fees and half by salaries was an extremely injurious one, and it would be a great boon if the Government would introduce some measure to amend the system.

CHURCH FUNDS.
The Marquess of Clanricarderose to move, pursuant to notice, for a return of sums under the control of the Ecclesiastical Commissioners of England and Wales. The noble Marquess said, that he did not anticipate any objection to the Motion; and he should not therefore enter into any lengthened observations upon that occasion. His attention had been directed to the matter in consequence of the debates which had taken place upon the subject of the Union of the Sees of St. Asaph and Bangor. He had observed in the course of those debates that the House possessed no accurate information respecting episcopal revenues; and as the subject of the Union of those Sees would no doubt be again brought under their consideration, he thought it desirable that they should have all the information connected with it which could possibly be obtained. The noble Marquess concluded by moving that there be laid before this House,
"A Return of all Sums under the Control of the Ecclesiastical Commissioners of England and Wales, not appropriated to any particular Purpose, up to the latest Period to which the same can be made out; distinguishing the Episcopal Fund from that which is appropriated to the Augmentation of small Livings; and stating the sources from which such Sums are derived."
Lord Wharncliffesaid, he had no objection to the production of those Returns.
The Duke of Richmondsaid, that, in his opinion, it would be very advisable that the Ecclesiastical Commissioners should furnish to Parliament an annual Report stating the whole of their proceedings with regard to Church property, and the rules and regulations they might have laid down for their guidance.
The Marquess of Lansdownesaid, that when he had the honour to be one of the

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Commissioners, he, as well as he believed, every other lay and ecclesiastical member, assented to the principle that this property might be made available for Church improvement, for which otherwise funds of a different nature would be required. Three years had, however, since elapsed, and he thought there had been time to do that which would be most beneficial, not only to the holders of Church property, but also to the country at large, that is, to lay down rules by which parties should be governed in the option either to renew, or to refuse to renew, or to purchase, or refuse to purchase. He wished that the holders of Church property should know in this respect what they had to look to, and that to this extensive description of property the same system of improvement should be applied, as he was happy to say was now pervading every part of the country, but which required an outlay of capital which no tenant could be expected to incur, without his having some security for a fair return for his expenditure. He thought it incumbent upon the Commissioners to make known the principles upon which they were about to proceed, and that they should not incur the appearance of a capricious or partial arrangement, but that their rules should be applicable to all descriptions of cases.
Lord Wharncliffesaid, he did not wish to express any opinion as to whether it would be advisable that the Ecclesiastical Commissioners should lay down certain fixed rules for the management of Church property. He should observe, however, that he doubted whether it would be possible to lay down rules upon that subject which would be applicable to all cases. He quite agreed in thinking that the property of the Church ought to be made available for the purposes of the Church, at the same time having regard to the equitable interests of the tenant.
After a few words from Lord Redesdale and from the Marquess of Clanricarde, the Motion was agreed to.
Return ordered.

ROMAN CATHOLIC PENAL ACTS REPEAL BILL.
Lord Beaumontmoved the second reading of this Bill.
The Lord Chancellorsaid, that this Bill went to repeal no less than twenty-nine Acts or parts of Acts. With regard to many of these Acts no question could arise as to the propriety of their repeal,
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and he had therefore to propose that the Bill should be allowed to pass with reference to those particular parts upon which no question could arise. During the vacation the Government would take into their consideration the other Acts included in the Bill, but in the meantime he thought it would be better to read the Bill a second time, with the view of its being committed on Monday, when the Amendments might be introduced.
Lord Beaumontassented. Bill read a second time.

COUNTY CORONERS BILL.
The Duke of Richmond, in moving the second reading of this Bill, said that though he had undertaken its management, there was a Clause in it which he meant to vote against in Committee. The Clause related to the travelling allowance for Coroners. Now that travelling had become so much cheaper in consequence of railroads, he could not see any ground for an increase of mileage to Coroners. If Parliament were of opinion that Coroners were not sufficiently remunerated, let them pay the necessary amount out of the Consolidated Fund. When he looked at the great increase which had lately taken place in the county rates, he objected to this additional charge being imposed upon them.
Lord Beaumontsaid, that his objection to the Bill rested chiefly on the Clause alluded to by the noble Duke. It was his intention to have moved, that the Bill be read a second time that day six months, but as the noble Duke had given notice of his intention to move the erasure of the Clause in question, he had not now the same grounds for opposing the measure. After the increase which had been made to the county rates, he did think it was monstrous to propose an increase of this kind. He would like to know whether the expulsion of the Clause could be effected without defeating altogether the Bill, (it being a sort of money clause) for he would rather that the Bill should be thrown out altogether than that it should pass with such a Clause.
The Duke of Richmondcould not answer the question of the noble Lord. For his own part, he should certainly move the expulsion of the Clause, because he would prefer that the Bill should not be received elsewhere than that it should be passed with this Clause. Let the other House throw out the Bill if they should

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think fit, or let them send up another Bill without this Clause.
Lord Beaumontexpressed himself satisfied with the course proposed to be taken by the noble Duke.
The Lord Chancellorhad no doubt that the omission of the Clause would cause the loss of the Bill. In his opinion it was one of those cases which the other House would consider as affecting its privileges.
The Marquess of Normanbywould not say that he would vote for the expulsion of the Clause, for he did not know upon what ground the addition to the mileage rested; but clearly the noble Lord had put his objection upon grounds which did not apply. His noble Friend said, that travelling was much cheaper now than it was formerly, because of the railroads. Undoubtedly it was so by railroad, to those who had need to transfer themselves over 200 or 300 miles in a journey; but he doubted whether it would be cheaper to Coroners, who had to travel not merely from one railroad station to another, but from one part of the country to another by the same mode of conveyance as formerly. He would, therefore, reserve his opinion of the Clause in question until he had further considered the matter.
Lord Wharncliffedid not think that there would be any difficulty if they should throw out the Clause, whatever there might be in merely amending it.
Bill read a second time, to be committed on Monday.
House adjourned.