Lords Sitting of 27 June 1845

Preamble
MINUTES. BILLS Public.—1a. Drainage by Tenants for Life.
2a. Sir Henry Pottinger's Annuity.
3a. and passed:—Infeftments (Scotland); Heritable Securities (Scotland).
Private.—1a. Belfast Improvement; Great Western Railway, Ireland (Dublin to Mullingar and Athlone); Great North of England, Clarence and Hartlepool Junction Railway; Newry and Enniskillen Railway; Richmond (Surrey) Railway; Liverpool and Manchester Railway; Birmingham and Gloucester Extension Railway (Stoke Branch); North Union and Ribble Navigation Branch Railway; Marquess of Donegal's Estate.
2a. Lyme Regis Improvement, Market, and Waterworks; Totnes Markets and Waterworks; Blackburn and Preston Railway; Trent Valley Railway; Whitehaven and Furness Railway; Eastern Union (Bury St. Edmund's) Railway; North Woolwich Railway; Dundalk and Enniskillen Railway; Glasgow, Paisley, Kilmarnock, and Ayr Railway (Cumnock Branch).
Reported.—Wolverhampton Waterworks; Exeter and Crediton Railway; Sheffield and Rotherham Railway; Yoker Road; Ellison's Estate; Manchester Improvement; Gildart's (or Sherwen's) Estate.
3a. and passed:—White's Charity Estate; York and North Midland Railway (Harrogate Branch); Glasgow Bridges; Agricultural and Commercial Bank of Ireland; Shaw's Waterworks; Glasgow, Garnkirk, and Coatbridge Railway; Crediton Small Debts.
PETITIONS PRESENTED. By the Duke of Richmond, from Magistrates and others of Dingwall, suggesting Alterations in Banking (Scotland) Bill.—From Poor Law Guardians of Kilrush, in favour of the Tenants Compensation (Ireland) Bill.—From John Final Cook, High Constable of Isleworth, for the Insertion of Clause giving Compensation to them for meritorious services, in the High Constables Bill.—From Attorneys of the Courts at Westminster, for the Substitution of Declarations in lieu of Oaths.—By the Marquess of Normanby, from Legislative Council of New South Wales, for Alteration of Law relating to the Disposal of Land.—By the Duke of Richmond, and Lord Brougham, from Merchants and others of Liverpool and Manchester, for the adoption of Measures to Enforce the Free Navigation of the River La Plata.—By the Marquess of Breadalbane, from Minister and others of Free Church of Garvald, and from a great number of other places, for the Better Observance of, and against the Running of Railway Trains on, the Sabbath.—By the Marquess of Breadalbane, from Minister and others of the Scotch Church, Saint Peter's Square, Manchester, for Preventing the Sale of Intoxicating Liquors on the Sabbath.—From Worksop, against the Increase of Grant to Maynooth College.—From Rector and others of Parish of Little Bowden, and from several other persons in favour of the Charitable Trusts Bill.

ISLE OF MAN.
Lord Broughampresented a petition from John Waters Col-
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decott, a prisoner in the gaol of Castle Rushen, in the Isle of Man, complaining of being imprisoned without a hearing, and praying for relief.
The Lord Chancellorsaid, that he had caused inquiry to be made into this case, and when he had done so, he found that his right hon. Friend the Home Secretary had also instituted a similar investigation. He understood that the petitioner had been kept in gaol for debt, and not for the cause alleged, an assault upon his wife. The result of the inquiries both of himself and his right hon. Friend had been, that the proceedings in the case had been in perfect consonance with the law, good or bad, of the Isle of Man. If the law were bad, it might be amended, which could only be done by the House of Keys, the Legislative Assembly of the island.
Lord Campbellthought that what had fallen from the noble and learned Lord on the Woolsack, showed this to be a case for their Lordships' interference; for there could be no doubt that the Imperial Legislature had the power to pass a law for the government of the island. If the proceedings had been contrary to law, the course for redress would have been an appeal to the proper legal authorities; but if it were the law in the Isle of Man that an individual could be imprisoned for seven or eight months without a hearing, the sooner it was altered the better.
Petition read, and ordered to lie on the Table.

RIVER LA PLATA.
The Duke of Richmondpresented a petition from Bankers, Merchants, and Traders, of Liverpool, praying for the adoption of measures to enforce the free navigation of said river.
Lord Broughamalso presented a petition to the same effect from Bankers, Merchants, and Traders of Manchester.
The Earl of Aberdeensaid, he should be most happy to contribute, by any means in his power, to open the navigation of the Plata, or any other river, in any part of the world, to facilitate and extend the commerce of this country. But it was not so easy a matter as the petitioners supposed to open that which lawful authorities had declared should be closed. The petitioners had spoken of a Treaty with this country, by which they alleged they were entitled to the navigation of the River La Plata. Now, Buenos Ayres was the only organ of the

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combined States with which Foreign Powers could deal; some of the provinces had revolted, and war was now waging between them. That their Lordships might judge of the manner in which the petitioners had put forward their claims under the Treaty, he would compare their statement with the Treaty itself. The petitioners alleged that by this Treaty there should be reciprocal freedom of commerce between Great Britain and the United Provinces, and perfect freedom and security for British subjects there. Now the Article of the Treaty referred to was to this effect—that there should be between all the territories of His Britannic Majesty in Europe and the territories of the United Provinces in the Rio de la Plata reciprocal freedom of commerce; that the British should have liberty to come with their ships into all the ports of the territories aforesaid "into which other foreigners are or may be permitted to come." Therefore it appeared by the Article of the Treaty, that this country had only a right to claim that which was granted to other foreigners. The Article went on to say, that the inhabitants of the two countries should enjoy perfect security for their commerce, "subject to the laws and statutes of the two countries respectively." So that this country was at the mercy of a sovereign State, choosing to make laws restrictive of free commerce, provided they gave us all that was enjoyed by the most favoured nation. This country was now engaged in the endeavour to restore peace in Rio de la Plata; and he hoped that the result would be an improvement in the present state of things, and a great extension of our commerce in those regions. But we should lose more than we could possibly gain, if, in dealing with these States, we lost sight of the principles of justice. They might be unwise in their commercial policy, and they might be following out a system which we might think imprudent and injurious as regarded their own interests as well as ours; but we were bound to respect the rights of independent nations, be they weak or be they strong.
Lord Broughamagreed that the petitioners might have overstated their claims.
Petition read, and ordered to lie on the Table.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
Lord Brougham, in moving for
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the usual annual return of the state of business before the Judicial Committee of the Privy Council, took occasion to state that only one single case remained to be disposed of before that Court. It was the only tribunal in this country which stood in a similar position; nay, he believed there was not a second example of an equal absence of arrears in the history of the judicial establishments of the civilized world. Yet it was the only body of Judges, though having under its jurisdiction, not only the British Islands, but India, and the whole of our Colonial Empire, for which this great and opulent country refused to make a pecuniary provision; and for his part he felt almost ashamed of being obliged to have recourse to mendicancy in order to procure the judicial services of his noble and learned Friends. He regretted that the Bill introduced last year for the remedy of this evil should have been rejected by the other House, under the supposition that the new judicial office to be created was intended for himself, which was totally unfounded and untrue, as everybody who knew anything about the matter was aware that it was intended for somebody else.
Return ordered.

TURNPIKE ROADS (SCOTLAND) ACT AMENDMENT BILL.
The Duke of Richmondmoved the Order of the Day for resuming the adjourned debate on the Amendment moved after the third reading of this Bill.
The Earl of Roseberysuggested that the operation of the measure might be postponed for two years, which would save the interests of those who had advanced money on the toll houses under the present system.
Lord Campbellopposed the postponement, the evils resulting from the present condition of the toll houses being so great as to require an immediate remedy. There was not a single toll house in the south of Scotland that was not employed as a public house.
The Duke of Richmondsaid, so long as the practice continued, it was evident the toll keepers would care much more about the quantity of whiskey drank, than the amount of toll collected. In some places where the license had been withdrawn, it was found that the amount of toll had not decreased.
Amendment, by leave of the House,

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withdrawn. A further Amendment moved and negatived. Bill passed.

ECCLESIASTICAL COURTS CONSOLIDATION BILL.
On the Report being brought up with Amendments,
The Bishop of London, as one of the five bishops on the Select Committee to which this Bill had been referred by their Lordships, said, that they had done all in their power to improve the Bill, but he hoped it would not be considered that they were pledged either to the principle or the details of the Bill, which would deprive the bishops of the assistance of important officers, because it would deprive them of the means of remunerating them. He did not see how it would be possible to have efficient registrars or active apparitors, without whose assistance the process of the Courts could not be carried on. The scope of the measure would be to weaken considerably the efficiency of that jurisdiction still left to the bishops. The Bill, moreover, provided no compensation for the displaced officers, against the injustice of which he felt himself bound to protest.
Lord Cottenham: If the interests of the public were promoted by the consolidation proposed by this Bill, such an object ought not to be set aside because of the inconvenience which might be suffered by certain officers. This was not the House in which compensation could be awarded. With regard to the object of the Bill, it was neither more nor less than that approved of by both Houses of Parliament, by Select Committees of both Houses, and by the Ecclesiastical Commissioners, and by two Law Commissions. The result had been an uniformity of opinion rarely found on a subject of such importance. All had concurred, without any difference of opinion, in approving the scheme now proposed to be carried into effect. As to the question of matrimonial jurisdiction, it had not been transferred without having been much considered and discussed in Committee. He understood the right rev. Prelate's objection to be urged against the transfer to a purely lay tribunal of the power of declaring a divorce in certain cases, that marriage being of a spiritual nature, it ought to be dissolved only by a spiritual court. Without adverting to the alteration of the law which made a marriage good though celebrated by a purely lay
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officer, the principle suggested by the right rev. Prelate had never been strictly acted upon. Many lay peculiars had this jurisdiction, who derived their power from no spiritual authority whatever. But what put the question beyond all doubt was, that there was at all times an ultimate appeal in matrimonial causes to the Sovereign, who, previous to a late alteration, delegated the inquiry to the High Court of Delegates, consisting of Common Law Judges and Advocates of the Civil Law, who were not spiritual persons. The duty was now delegated to the Judicial Committee of Her Majesty's Privy Council, with the holder of the Great Seal at its head—a perfectly lay tribunal. That tribunal had no power of its own, and reported to the Crown what ought to be done, though the act of pronouncing divorce was that of the Queen in Council. At present, if the ecclesiastical courts refuse a divorce, and on an appeal to the Judicial Committee the Privy Council report that the spiritual court was wrong, and ought to have granted it, the result would be that the divorce would be granted by the Queen in Council. Where, then, in such a case was the spiritual jurisdiction? But it might be said that both the spiritual and temporal authority was vested in the Sovereign as head of the Church, and that the Crown communicated to the tribunal she appointed the ecclesiastical character which belonged to it. The result would be the same under this Bill. The power of directing divorce rested always ultimately with the Crown, and this Bill no more in this respect trenched upon spiritual jurisdiction than the existing law. He ventured to say that no Bill passed this Session would communicate greater benefits to the public than the present.
The Bishop of Salisburyadmitted there were evils in the present system which it was desirable to remove. He could not object to the transfer of the testamentary jurisdiction for instance; but what he did complain of was, that this Bill destroyed the means by which ecclesiastical jurisdiction could be enforced. Now, that jurisdiction formed part of the institutions of the country, and ought not to be touched except on adequate grounds. The question of compensation which had been raised, at once showed that a measure of this nature ought not to be introduced except on the responsibility of the advisers

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of the Crown, particularly as it affected the efficiency of the Church, one of those institutions which they were sworn to maintain, and which they were bound not to touch, except after communication with those who were considered competent to give advice and information on the subject. The Bishops had every reason to believe that no measure would have been passed this year on the question. As a Bill of this description materially affected his jurisdiction, he had waited on the right hon. Gentleman the Secretary for the Home Department, at an early period of the Session, to inquire whether it was probable such a measure would be submitted to Parliament, and he received an assurance there was no chance of it. It was only on his return from London from his visitation, that he saw in the papers an account of the discussion on this Bill, in which the Ministers expressed their cordial concurrence in the object of the measure, and they had since pressed it on with a degree of zeal fully equal to that of its proposers. It surprised him that the noble and learned Lord (Lord Cottenham) should have quoted the Peculiars as an instance of a lay tribunal. They were certainly now in no sense of an ecclesiastical character, and they formed one of those abuses which it was desirable to remove; but they were unquestionably of ecclesiastical origin, and derived their power from the Papacy.
Lord Brougham: The right rev. Prelate seemed to think this Bill was the effect of a collusion between its authors and the Government. Now, his noble and learned Friend (Lord Cottenham) had introduced it in a speech of a somewhat hostile character to the Government; and when it was submitted there was not the least conception of the course which the Government would take.
The Bishop of Londonfully concurred with the observations of the right rev. Prelate, that a measure of such great importance to the Established Church, which was an essential part of the institutions of the country, ought not to have been introduced, except on the responsibility of Government. Such a step had never been taken for upwards of 200 years. It was certainly an understanding with the late Government, that no Bill affecting the Church should be introduced without consultation with the Bishops.
The Lord Chancellorsaid, that in consequence
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of what had fallen from the right rev. Prelate, he begged to state the position in which he stood as to this Bill. During the last Session he had brought forward a measure of a much more modified character; but he had stated as a reason why it was so restricted that he despaired of carrying a more extensive measure through the other House. He had said this Session it was not his intention to bring in a Bill on the subject; and this resolution had been come to after consultation with his colleagues. But when the Bill of his noble and learned Friend (Lord Cottenham) was brought in, he, without any communication with his noble and learned Friend, rose in his place, and said that as it corresponded in all its main features with a Bill submitted by one of his Colleagues in 1842, he could not do otherwise than support it. How could he act otherwise as to any Bill moved by one of their Lordships, which had been previously brought in by Government, but unsuccessfully prosecuted by them?
The Bishop of Salisburysaid, the Lord Chancellor had referred to the Bills of 1842 and 1843. It was not convenient to speak of that Bill now without having it to refer to; but, if he did not mistake, there was an important distinction between that Bill and this, inasmuch as the former contained the clause respecting spiritual discipline, which was struck out by the Select Committee. He remembered distinctly that it was in 1842 he first had any intimation that the present Government meant to introduce a Bill on this subject. On Ash Wednesday in that year he attended a meeting at Lambeth Palace, specially summoned by the Archbishop of Canterbury, to confer respecting a Bill on this subject which the Government had laid before the Bench for their consideration; and it was the unanimous opinion of the Bench on that occasion that the clause relating to spiritual discipline ought not to be included. Soon afterwards he met the Secretary of State for the Home Department, and in the course of conversation that right hon. Gentleman said to him, "I have been endeavouring to meet the wishes of the Bishops on that subject," and a few days afterwards an amended Bill was sent to all the bishops for their approval. That Bill, however, did not propose to abolish altogether spiritual discipline, but it pro

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posed a clause to carry it into effect which he thought was inadequate, and accordingly he wrote a letter to the Primate on the subject, with a request that he would lay it before the Government. That Bill was not brought in in 1842; but the Bill his noble and learned Friend alluded to was brought in in 1843, and he believed it did not contain the clause relative to spiritual discipline which was contained in the Bill when the noble and learned Lord expressed his approval of it. Being accused of inconsistency, he thought it his duty to point out that in this respect the Bills were materially different.
Lord Broughamsaid, that the difference was that this clause was contained in the Bill, but was now struck out to please the right rev. Prelates. The right rev. Prelate was complaining that he had had his own way in the Select Committee. His noble and learned Friend had only said that he would give his general support to the Bill, without pledging himself to every clause. The right rev. Prelate complained that a great surprise had been practised upon him; but, because the Government had no intention of bringing in the Bill themselves, were they necessarily to oppose it because it was brought in by his noble and learned Friend? Less ground for surprise he never heard. It amounted to this—that the right rev. Prelate thought, when a Peer would not bring in a Bill himself, he did not mean to allow another Peer to do so.
The Bishop of Londonsaid, his complaint was not that the Government did not bring in this Bill, but that they did not make up their minds whether such a Bill should be brought in or not; and if they determined that it should, that they did not bring it in themselves. He maintained that a Bill of so much importance to the Church ought not to have been brought in except by the Government, and not by them until alter due consultation.
Lord Campbellbegged to remind the right rev. Prelates who had spoken, that the Bill originated with the Commission of which they and four or five other Prelates were members, and that they were unanimous in recommending it in all its main features. It was he who asked his noble and learned Friend on the Woolsack whether he meant to bring in the Bill, and his noble and learned Friend's reply was, "You bring in the
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Bill, and we will consider the course to be adopted."
The Bishop of Londonsaid, it was quite true he was one of the Commissioners in 1832, and signed the Report, the recommendations of which tallied to a great extent with the provisions of the present Bill. He had, however, yet to learn that, in the course of thirteen years, additional experience might not properly tend to modify his opinions on a measure like the present. In fact his opinions respecting it were modified to a certain extent, though he did not now object to the whole Bill, but only to some of its provisions. As to his signature being attached to the Commission, if it were worth while he could tell a story on that subject which would effectually refute the charge of inconsistency.
The Lord Chancellorsaid, his noble and learned Friend (Lord Campbell) had a little mis-stated what he said, in reply to his question. His words were, "I have no intention to bring in a Bill, but if you bring one in, I will tell you what we will do with it."
Report agreed to. Further Amendments made.
House adjourned.