Lords Sitting of 3 April 1851

REFUSAL OF BURIAL RITES.
The DUKE of RICHMOND, in presenting a petition from the Town Council and City of Chichester, complaining of the conduct of the Vicar and Incumbent of the parish of St. Peter the Great, otherwise Subdeanery, in that city, for having refused to read the Burial Service over the body of Mr. Parsons, on the ground of his having been a Dissenting minister; and also for having declined to read the Burial Service over the remains of a woman who had destroyed herself, notwithstanding that the coroner's inquest had found that she did so when "lunatic and distracted"—said, he had felt it his duty to give notice of his intention to present this petition, because he was quite satisfied that their Lordships would feel that the subject deserved the serious consideration, not of the House only, but of every true well-wisher of the Church of England. In presenting this petition, he must say, for himself, that he had not been in any manner involved in the religious differences to which the petition had reference; neither had he mixed himself up in the slightest degree with any division which, unfortunately, had taken place in the Church of England: and, further, in presenting
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the petition, he disclaimed making any attack upon the rev. gentleman's respectability; because, from what he had heard of that gentleman previous to these transactions, he had always believed that he was a pious, good, and charitable man; and, while he was curate in the large parish of Horsham, in the western division of the county of Sussex, he had greatly promoted, out of his private means, the erection of churches and schools, and diffused a great deal of good in the neighbourhood. It was with great pain that he (the Duke of Richmond) felt himself impelled, by a sense of public duty, to arraign the conduct of a clergyman of the Established Church, and, more particularly, as he believed that gentleman to be honest and conscientious, though most deficient, in these transactions, of right and proper judgment. The facts of the case were these: A gentleman of the name of Parsons, who had for sixteen years been the respectable and respected minister of a dissenting congregation, known as Independents, purchased recently a small spot of ground in the churchyard of St. Peter the Great, in the city of Chichester. Of this gentleman's respectability there could be no doubt; he had been acquainted with him, and believed him to be as honest, conscientious, and upright as any man in the country. The wife of Mr. Parsons died, and she was buried in this spot of ground, the late incumbent reading the prayers. Mr. Parsons also died, after expressing a wish to be laid in the same grave with her; and a person, acting for the congregation, applied to the present incumbent for his consent to bury the body in the churchyard. The rev. gentleman said, he had no objection to its being buried in the churchyard; but he declined reading the Burial Service of the Church of England, because he was a separatist, and a teacher among separatists. Now, he (the Duke of Richmond) did not wish to misquote what the rev. gentleman stated; and, although their Lordships did not very much like listening to extracts from letters, it was desirable to listen to the words of the rev. gentleman, which would show that he was perfectly aware he was violating the law of the land. This was an extract from his letter:—
"I understand that the funeral of the late Mr. Parsons is to take place on Sunday next. You, no doubt, are well aware that every person, whether Churchman or Dissenter, is, of common right, entitled to be buried in the churchyard of

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the parish in which he lived and died. Every person also, except under certain circumstances, has a legal claim to the Burial Service being said at his grave. But, although every person has a legal claim, I cannot think that one who is a separatist, and especially a teacher among separatists, has any just claims to her services. That Dissenters have a legal claim, is, unfortunately, but too true. For those who, in time past, legislated for the consciences of Dissenters, overlooked the consciences of the clergy; and, whilst they let the one go free, they kept the other bound. It is on the ground that Dissenters have no just claim to the services of the Church, that I feel compelled to refuse the use of the Burial Service at the grave of the deceased."
He begged their Lordships to remark what followed:—
"I am perfectly aware to what I am subjecting myself, and the odium, if not penalties, I shall incur. But, until some such stand is made, and made at all risks, nothing will be done, but the consciences of the clergy will continue to be aggrieved; or rather they themselves will be treated, as they have long been treated, as having no conscience at all."
He (the Duke of Richmond) hoped and believed there were not many clergymen who would deliberately give as a reason for disobeying the law of the land, that if they did not disobey it there would be no chance of getting that law altered. He could conceive nothing more dangerous than that a respectable gentleman, of high education, should hold and maintain such an opinion as that. He had always felt that if any clergyman, or any man, be he who he might, could not, according to his conscience, perform the duties of the office which he had undertaken, and which the law desired and ordered him to do, that he ought to resign the situation, and not violate his conscience, or otherwise violate the law. Upon the receipt of this letter from the rev. gentleman, the person who represented the executor of Mr. Parsons wrote to the Lord Bishop of the diocese; and when he read the letter which the Bishop sent in reply, he was sure their Lordships would see how well it became the right rev. Prelate, and every Christian and truly charitable spirit. That letter had done much to allay the great ferment and excitement which arose on these events becoming known:—
"About five o'clock this afternoon I heard, for the first time, of Mr. Parsons' death, and of Mr. Kenrick's declared intention of refusing to read our funeral service at the interment of the corpse. Assuming the late Mr. Parsons to have been baptized, a fact I have never heard questioned, there can be no doubt that Mr. Kenrick is mistaken in his view of his duty. I have written to him, in the hope of convincing him of this. My letter is
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nearly copied; and, probably, by the time you receive this, it will be in Mr. Kenrick's hands. I shall trust it will have the effect for which it is designed, and that you, and the other friends of the deceased, will be spared the pain which at present I have reason to apprehend."
This letter had no effect on the rev. gentleman, and the result was, that Mr. Parsons was buried within the Dissenters' chapel. He (the Duke of Richmond) anticipated he should be met with the objection, why did not the friends of the deceased go into the Ecclesiastical Court? His answer to that was, that it was expensive, and there must be some delay. The body must be buried, and the great object of going to the court would be lost, because the relatives would not have the satisfaction of having had the burial service read, and the clergyman would be I only suspended. But in this case it must be fairly admitted that the expense was not a matter of consideration, as every man in the city of Chichester, and every country gentleman in the neighbourhood, would have subscribed for the purpose of defraying the expense of bringing the case before the ecclesiastical tribunal. They did not take all the steps which the law required; they acted upon the answer of the incumbent; but being a penal clause, they did not do all—they ought to have taken the body to the churchyard, and thus offered a locus penitentiœ, and if the clergyman had refused, he would then have been liable to suspension for three months. But they did not do this. It would be carrying things to a point when it would be very dangerous to trifle with the feelings of the people. There was a strong feeling among the inhabitants of towns and cities on the subject of the burial service, more, perhaps, than among the Army and Navy, the members of which had often seen their best friends disposed of without any burial service at all. That feeling on the burial service sprung from a good feeling, and a clergyman should not be allowed to violate this feeling, because it would not only destroy the efficiency of the clergy, but if the people thought nothing of the burial service, they would begin to think nothing of the services of the Church. This gentleman, Mr. Parsons, was baptized, and it was declared in the petition of the Town Council of Chichester that the incumbent said he would not bury members not of the Established Church. Since the petition had been got up, the rev. gentleman said he did not particularly pledge himself not to bury a Dissenter; but not to bury

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any teacher among Dissenters; or, in other words, that all Wesleyan ministers, or ministers of any other persuasion throughout the country, were to be refused having the burial service read over them. He (the noble Duke) would now allude to the second case in the petition. A young woman, named Mary Rogers, was, five years ago, delivered of an illegitimate child, which was taken care of by her mother, and she herself entered the service of a most respectable gentleman, well known to his right rev. Friend opposite (the Bishop of Chichester), and she bore a good character. Unfortunately she left one day to go and see her child; she was seen walking towards the canal, and nothing was heard of her until seven days afterwards, when she was found in the canal. The usual course of proceeding was adopted. The coroner summoned a jury, before whom evidence was brought, and they pronounced a verdict that she drowned herself, being lunatic and distracted. The coroner signed his permission and warrant for the burial, and the document was taken to the incumbent. He took time to consider, desiring the relations to come again in the afternoon. When they did come, he said he had reason to believe she had drowned herself, and that she was not distracted or lunatic; and that he should not read the burial service. The result was, that the body was buried without any burial service being read at all. Was the rev. gentleman present at the inquest? Did he hear the witnesses examined before one of the oldest judicial bodies in the country? No! He said he cared not for coroners' inquests; he had heard no evidence; he cared nothing about it; he thought deceased destroyed herself when she was quite sane; and he would not read the burial service over her. But the coroner's inquest was a primâ facie proof of the person being lunatic, and surely the clergyman was not to go about to gather the scandal of the parish. It had come out since that the verdict of the jury was a legitimate expression of the tendency of the evidence, by which it appeared the young woman had been dejected and low spirited some time before her death. He deeply regretted the entire want of judgment which had been shown by the rev. gentleman on these occasions, and the unhappy effect such proceedings would have on the feelings of the people, if the body of a Dissenting minister, who had preached to a congregation every day for the last sixteen years, was taken
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to the grave, and the clergyman refused to read the burial service—if such a transaction occurred in some of the large towns over which he had the honour of presiding as lord lieutenant, he should deeply deplore, but he should not be surprised at a disturbance of the peace, and at the mob showing a violence which he should not approve, but endeavour to repress. It might he said that in this case it was a matter of conscience, and that the rev. gentleman was the best judge of what he ought to do. He could only say, that if there was any reason why he could not conscientiously discharge a duty which the State required of all magistrates to discharge, he would request the Lord Chancellor to erase his name from the commission, as he could no longer perform duties which he had sworn to perform. When this gentleman was appointed to this living he held in Chichester, he was aware of the duties which he would be called upon to perform. Far better would it have been to have refused to accept the living than to discover afterwards that his conscience did not permit him to perform them; but having discovered that he could not perform them, he was bound to resign the preferment he had accepted with these duties attached.
The BISHOP of CHICHESTERsaid, it was with pain, almost with intense pain, that he rose to make some remarks, which their Lordships had a right to expect from him on this occasion. He was grateful to the noble Duke for the testimony he had borne to the high character and respectability of the reverend gentleman. He was grateful also to him for the moderation with which—all the circumstances of the two cases considered—he had stated them to their Lordships, and with which he had supported the views he entertained. He (the Bishop of Chichester) was quite sure this gentleman had acted on strong conscientious motives, and no one would doubt it after what the noble Duke had said concerning him. The reverend gentleman was a man of irreproachable character and most benevolent feelings. He practised charity at great personal sacrifices; and during several years that he was a curate, as their Lordships had been already told, he was greatly instrumental in the erection of new churches, in the foundation of schools, and at his own expense he had built almshouses for poor people. When he stated these facts concerning the rev. gentleman, it would be

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admitted that he was not one likely to act upon any other views than those he conscientiously believed to he right, however mistaken those views might be. He (the Bishop of Chichester) lamented most deeply that he did take such views of the line of conduct incumbent upon him on this occasion. With reference to one part of the case as stated by the noble Puke, he believed it was well known that the rev. gentleman regarded Dissenters in such a way, that he would decline reading the burial service over them—that it was well known to those who applied to him, he would decline reading the service over this Dissenting minister. But he (the Bishop of Chichester) could state the additional fact, that within a short time the incumbent had read the burial service at the graves of six or seven Dissenters, and he had not heard any complaint on the part of the inhabitants of Chichester that he had since refused to read the burial service over any Dissenter. He had stated that he deeply regretted the conduct of the rev. gentleman; he had spoken of the conscientious ground upon which the rev. gentleman would vindicate it; but he begged to say he had no sympathy in the defence which be had attempted to establish for himself. On the contrary, he had always considered it as a most happy circumstance, that when Dissent first began to manifest itself in this kingdom, Dissenters were content with erecting a place of worship in which Divine Service might be performed according to the tenets they professed, and still continued to bury their dead in the graveyards surrounding the churches where their ancestors had worshipped. When families had unfortunately fallen into dissent, those ties had sometimes a powerful effect at the burial of a member where their fathers bad worshipped, and different generations had been entombed. That effect was a most fortunate circumstance for the Church, the returning from the principles of dissent to the Church of England being strongly facilitated thereby. He could not but think that the individual conscience of a clergyman ought not to counteract that, wish on the part of Dissenters, and he represented that opinion to this very gentleman; but, notwithstanding, he felt bound to persevere. He (the Bishop of Chichester) represented that he would be violating the law of the country and the canons and laws of the Church, and that it was not for an individual clergyman to set himself
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in opposition to these laws by a self-willed action, even if he thought that some one should stand forward in defence of a principle, but that he should submit to the regulations of the Church, and consider the way in which the Church regarded her ministers. When they reverted to the consideration of the directions of the Church, they found it was directed that the clergyman should read the burial service, after notice, over every dead person, unless he should find that the deceased person had not been baptized, or had died excommunicate, or had laid violent hands upon himself. Neither of those exceptions bore on the case of the gentleman in question. I Admitting the exception that he was entirely wrong upon his religious tenets, he (the Bishop of Chichester) believed him to have been one of the most respectable and most respected among the inhabitants of the city in which his family lived. Nevertheless, with regard to him, this rev. gentleman declared his intention to refuse to read the burial service. He only wished, that instead of taking that view of his duty, he had adopted that which he (the Bishop of Chichester) recommended. There were many other cases in which the clergy of the Church of England were called upon to read the burial service, when he could well understand their consciences would be deeply pained. When the deceased was brought to his end at the moment of the commission of a crime, or when in a state of intoxication, it was certainly clear that a minister would be placed in a most difficult situation. Their Lordships would bear in mind the words of the burial service:—"Forasmuch as it hath pleased Almighty God, of his great mercy, to take unto himself the soul of our dear brother, or dear sister, departed;" and then the minister had to go on and declare, "the sure and certain hope of the resurrection to eternal life." He could understand how the consciences of the ministers must be sorely taxed to use those words at the grave of every one, however much a sinner, however certain he might be that to the individual, under the circumstances, it was awful to apply those words. He hoped and trusted it would not be supposed he justified the conduct of the gentleman on this occasion; but he ventured to make the remarks incidentally, that their Lordships might view his conduct with forbearance and consideration. With regard to the case of the young woman who destroyed herself, he had always felt, and whenever the question had

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been put he had represented to the clergy, how was it possible, or how was it at all right, that they should venture to give an individual opinion? What means had they of inquiring into the state of mind of the person deceased? How could they call evidence? The only authority upon which they could rely was the legal and constitutional tribunal for taking inquests, and therefore the verdict of a coroner's jury was good in every case, and ought to guide the conduct of the clergyman, as much as that of any other subject of the realm, or rather more so, for it was his duty to inculcate obedience of the law, and to advance that which in morality and religion was right. Whilst saying that, he felt it his duty to represent to their Lordships many complaints of the clergy on this matter, without intending any disrespect or imputing to coroners or coroners' juries forgetfulness of their duties. It was stated that there was something like a general feeling gaining ground that coroners' juries were somewhat lax—somewhat inclined to take, not the view which the evidence thrust upon them of the sanity or insanity of the person who destroyed himself or herself, but to decide without evidence on a verdict which authorised interment with the rites and ceremonies of the Church over their bodies. He feared there was a too-prevalent impression among a certain class in life, that the mere fact of a person having taken the control of his own existence into his own hands, and flinging it back in the face of the Creator, justified a verdict of insanity. He deplored that persons who were called upon to exercise so solemn a duty as that which was imposed upon coroners' juries, should be actuated by that feeling rather than by what might appear by the evidence. Such an argument clearly went to justify a grievous crime; and, in proportion to the enormity of the crime, might it be more strongly contended that it was impossible to commit the crime of self-murder without the person being at the same time insane. In such instances the clergyman was called upon to say, "It hath pleased Almighty God to take unto himself the soul of our dear brother departed," when the act of the individual had rebelled against that Almighty will. It was a most trying position for a minister of the gospel; but he did not justify the minister here. If the verdict was recklessly given, whose sin was it? It was not the sin of the minister, it became the sin of those who required him to
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read the service. There was one further remark which he wished to make. The petition comprised two cases. It was an accidental circumstance that it did so. It must not be supposed that one case occurred some long time ago, and the provocation of the second forced the conviction that it was high time to appeal to the Legislature. It was an accident. The two cases came close together, with only an interval of two or three days, so that the interment of the Dissenting minister, and of the unfortunate woman, occurred within three days of each other. He had not endeavoured to defend or extenuate the rev. gentleman, but to present considerations showing the difficult positions in which the clergy were sometimes placed; and that it was not so much to be wondered at if their judgments were occasionally overpowered. He would add that he hoped, with reference to the present gentleman, that upon more mature consideration he would be led to the conviction that such a line of conduct was not one which he could either justify, or which would render his ministry effectual for the Church.
The BISHOP of LONDONobserved, solely in reference to the remark of the noble Duke upon the ecclesiastical courts, that it was his full purpose to have introduced a Bill for amending the laws with respect to the proceedings against clerks. Duly considering the present state of public business and of public feeling, he had thought it more prudent to abstain during the present Session from introducing any measure upon that subject. It was, however, too important to be laid aside, or delayed much longer, the inconveniences of delay and expense of proceedings in the ecclesiastical courts being such as to cause great evils. In connexion with another subject, with reference to which he introduced a separate measure last Session, which did not receive that favour which he had hoped it would have met with, he wished to state that while it was his full intention in the course of another Session to introduce a measure relating to proceedings for the correction of clerks, after due deliberation, and after consulting the opinions of those whom he ought to consult, it was also his intention to introduce a Bill for the establishment of a tribunal to determine ultimately questions relating to the Church.
LORD BROUGHAMbore his testimony to the most defective state of the law with respect to the correction of clerks. He

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alluded specially to facts unfortunately too well known, that for doing his duty, and nothing more nor less than his duty, a right rev. Prelate, not now present, was severely mulcted in sums by costs which the offending clerk was not able to pay. There was another case very well known, of the right rev. Prelate (the Bishop of London) having had to pay several thousand pounds not for exceeding, not for falling short, but for doing that which it was his bounden duty to do. He knew other cases, equally glaring, which proved the necessity for some alteration in the law.
The BISHOP of EXETERwished to say one word. He thought the noble Duke had spoken on this subject with great discretion when he said that a coroner's inquest was primâ facie ground for supposing that the party had really died in a state of lunacy. He rejoiced that the noble Duke had so stated it, and that he did not say that such a verdict must be held as absolutely conclusive. That, he apprehended, was, in point of fact, the whole legal effect of a coroner's jury, and that proceedings in law might be taken in such a case, after, and even in spite of, such a verdict. He apprehended, for instance, that when a party died by his own hand, and a coroner's jury found a verdict of lunacy, that would not, prevent an Insurance Office from resisting payment of the sum which that party might have insured; and he believed that cases of that nature were on record. That showed that the verdict of a coroner's jury was only primâ facie evidence, as the noble Duke had said. If then it was only to be taken as a primâ facie, ground of belief, he apprehended that common justice said, before they pronounced sentence upon this party—though, in fact, they were not pronouncing sentence—it was most important that the whole circumstances of the case should be before them. He was well aware that it was felt to be most undesirable on all sides to give an opinion on the question, which was not, strictly speaking, before the House; but still it would be brought before the country; it would be discussed to-morrow morning in every newspaper in London, and the clergyman in question would be accused as if the House of Lords had decided that he was bound to bury a party who had destroyed herself, because the coroner's inquest had brought in a verdict of lunacy. If the clergyman had a doubt—the noble Duke spoke as if in this case there was no reason for doubt, and if there were none
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he would concur in condemning the conduct of the clergyman in refusing to bury her—but if he had good reason for believing that the party died by her own act in a sane state, then he would be justified perhaps—at least it was a question for the proper tribunals whether he would be justified or not—in withholding the rites of burial. In saying this he was speaking not his own sentiments only, but the sentiments of one of the best, the most pious, and not the least learned or able bishops that ever had adorned this country—he was speaking the sentiments of no less a man than the late Bishop Wilson, Bishop of Sodor and Man. In one of his charges to the clergy of the diocese of Man, he particularly warned them on this subject. That venerable Prelate said that there were several instances of self-destruction that had happened of late, in which the coroners' juries had brought in a verdict of lunacy; and when there was no evidence that showed the contrary, or that tended to excite a strong presumption to the contrary, that might be sufficient; but whenever they had a good reason to believe that the case was otherwise, he advised them to set aside all respect to such verdict, and if they were satisfied on sufficient grounds that the party had died in a sane state, to refuse the rites of burial. He stated that, because he thought it highly important that clergymen should not suppose that they were prevented from taking that course by an obiter discussion on that question in the House. He intentionally abstained from entering into the particular merits of this particular case, as all he wished to be understood was, that if a clergyman had any good ground for believing that a party had destroyed himself in a sane state, it might be his duty to refuse Christian burial.
Petition read and ordered to lie on the table.

COUNTY COURTS FURTHER EXTENSION BILL.
Order of the Day for the House to be put into Committee (on recommitment) read.
The LORD CHANCELLORsaid, he had several objections to make to the Bill in its present form, as he believed that the law did not require the alterations which the Bill proposed to make. The first series of clauses provided that if parties should agree to try any matter, whether in law or equity, before a Judge of the

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County Courts, the Judge should he empowered to hear the cause. Now, in the first place, he would be glad to know, before they proceeded to impose any further obligations on the County Court Judges, how far their time was occupied by their present duties; and he thought such an inquiry was the more necessary since the Legislature had extended the jurisdiction of these courts to 50 l. There was another clause in the same series which gave parties the power, if they agreed, to have any matter, however special, tried before these Judges, by way of reference. Now, as this clause stood at present, the effect of it would be, under the pretext of facilitating arbitration, to give the Judges of County Courts power, with consent of parties, to try any cause whatever. No matter how important or complicated the question, the multitude of witnesses, the contradictory nature of the evidence, the question might be tried and settled by one of these Judges of the County Courts. He saw no reason for these clauses relating to arbitration, however they might be guarded from the consequences he had alluded to. The law had already given every facility for arbitration, and there was no necessity for these new enactments. The next series of clauses related to the establishment of Courts of Reconcilement. He had a great respect for the experience of his noble and learned Friend, but he must own it did not appear that these courts were suited to the genius and habits of the people of this country. It was proposed in these enactments that if one party proposed to be reconciled to another in respect of any matter in dispute, he must summon the opposing party before the Judge of Reconcilement, which party must then give notice whether he meant to appear or not. If he gave notice that he would appear, and did not, he would be liable to the costs. If he did appear, the parties were then to go without attorney or adviser of any kind before the Judge, and state before him their respective differences; and if the Judge was not able to reconcile them, a certificate was to be given to that effect, and then the case was to be tried before another tribunal. Now he did not see what end such a proceeding was to serve, except in enabling a cunning party to get a knowledge of his opponent's case—to see what evidence he had to bring forward, and how it might be best met; after which nothing would be easier than to find out some reason for not being re-
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conciled, and then going to law. But did the people of this country require a Court of Reconcilement? He was satisfied they did not. The utmost that could be said for such a measure was, that it would do no harm; but he did not think the dignity of the Legislature was best consulted by enacting laws which were to be of no practical use. He did not think there was any difficulty in people becoming reconciled, if they had a disposition to be reconciled; and he certainly did not think that the present state of society in this country required such laws as these. The next series of clauses dealt with equitable rights, and he must say it did not occur to him that it was desirable to graft the proceedings of the Courts of Equity upon the practice of these Courts. All that was practicable in these clauses, appeared to him to be already provided for in the existing Act, 9 & 10 Vict. ch. 95, which provided that anything in a case which was incidental to equity practice might be done by the Judge of the County Court, under the authority of the Master in Chancery, and subject to all the rules and regulations which applied to the officers, of that Court. If more than this were required, it would be better to introduce it as part of a general system, rather than in this incidental manner. There was another clause which provided that a clerk to an attorney, of six months' standing, might appear in these courts and advocate the cause of his client. Now he would appeal to his noble and learned Friend, whether it would be possible to enact a greater nuisance than this clause threatened to be? It was constantly happening that certain parties who were not attorneys, but who pretended to be clerks of attorneys, and who allowed a low grade of attorneys a portion of their earnings for the use of their names, haunted the criminal courts, and produced mischief which it was hardly possible for his noble and learned Friend to conceive. Their Lordships could not fail to have read several cases mentioned in the newspapers of prisoners being brought to the bar of a criminal court, looking about for a counsel to defend them, but finding none; and when the case came to be afterwards inquired into, it was found that they had been deceived by persons who pretended to be clerks of attorneys, and who had engaged to provide counsel for them, and after squeezing as much as they could out of the poor creatures or their families, in order to fee a counsel, had left them to

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take care of themselves. Besides, in the course of civil actions, the most nefarious practices frequently took place from the same cause. Of all the evils which they were hound to repress, and to punish with severity, he thought this was the most crying; but he feared the present clause would rather encourage the nuisance. What sort of a case must that be about which a man would go to an attorney, and which a six-months' clerk of the attorney would be sufficient to defend? A man went to an attorney in the hope of getting the benefit of his experience, but if he only obtained the services of a six-months' clerk, he did not think that would much benefit him. He therefore hoped, on all these grounds, that his noble and learned Friend would reconsider this clause with a view to strike it out of the Bill. There was another clause to which he had a strong objection, in fact producing a total alteration in the present law—he meant the clause relating to the recovery of the tithe rent-charge, which, from some influence or other, had been very adroitly palmed off upon his noble and learned Friend, and by him inserted in the Bill. At present the power of recovering the tithe commutation rent was by distress on the premises; but unless there was property on the premises there could be no remedy—the consequence of which was, that if a farm was unproductive, if it produced no titheable articles, then the tithe-owner had no remedy. But, on the ground that some clergymen had a delicacy in enforcing the law of distress, a clause was introduced into this Bill which would give the clergyman power to summon the occupier of the farm into the County Court, and, failing to pay, he would be sent to prison. Now, this was altering the entire law upon the subject of tithes, and it was not even pretended that any amount of tithe was lost under the existing law, but simply that it hurt the feelings of some clergymen to proceed by way of distress. He was satisfied that the attention of his noble and learned Friend had not been called to the present state of the law on this subject, or he never would have sanctioned such a course. He concluded by moving that the Bill be recommitted for this day six months.
LORD BROUGHAMthought he had a great right to complain of the course which his noble and learned Friend had taken. If he had given him the slightest indication—the remotest hint—he would not have
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brought forward the Bill at that time, but would hare postponed it till to-morrow. There was not one single objection which his noble Friend had stated to these clauses which was not one of detail, and which might not have been taken in Committee; and, however inconvenient to himself and to their Lordships, he was now driven to follow every one of the arguments—as he thought, inconclusive arguments—which the noble Lord had urged against the Bill. I And with reference to the equity clauses, his noble and learned Friend said, "What is the use of these clauses, since they are all contained in the 27th section of the Act of 1846?" Now he would show that his noble and learned Friend was entirely and absolutely mistaken, and that the mistake was as great as it was possible for any person to commit upon the subject. These equity clauses were not now proposed for the first time; they were in the Bill of 1833. That Bill underwent a most full and deliberate discussion. These clauses were canvassed, altered, amended, and varied; and when the Bill was ultimately thrown out, they were lost with it. When Lord Cottenham adopted Lord Lyndhurst's Act of 1846, upon the retirement from office of that noble Lord, he found the equity clauses were not in the Act. He was so pressed by the noble Lord the Master of the Rolls to insert them, that, after some hesitation, he yielded, and those were the clauses which Lord Cottenham agreed to. His noble and learned Friend, who had been for fifteen years a Judge of that Court, and twenty-five years a practitioner in it, was so impressed with the necessity for their adoption, that he came down here the other night to support them. Owing to the inconvenient course adopted by his noble Friend on the woolsack, he was deprived of his assistance.
The LORD CHANCELLORwas very sorry to occasion any inconvenience to the noble Lord, He did not mean to act unfairly by him, in withholding notice of his opposition. What he now wished to propose was, that, if it suited the noble and learned Lord better, he would withdraw his Motion, and take the discussion upon the third reading. He did not wish to take the noble Lord by surprise.
LORD BROUGHAMnever meant to complain of any intentional unfairness. If the noble Lord had done anything like unfairness, it would have been the first he had ever known him to have done so during a very long intercourse of years. The noble

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Lord was equally wrong in saying that he had taken him by surprise. All he complained of was, the inconvenience of the course adopted. He could not now refrain from saying something. The conduct of the noble Lord forced him to make some statement of the facts. He should not occupy, however, much time. He would deal with the cargo—he said it with all respect—of his noble Friend's arguments by way of sample; he would not break hulk by doing more; and only dealing with them in this manner, he would show how very incorrectly, how absolutely without foundation, how entirely futile, the objections of his noble Friend were. With respect to these equity clauses, he had already stated that his noble Friend the Master of the Rolls came down the other night to bear his testimony to their value. He had told him what passed in the year 1846; he stated how desirous he was that they should be inserted: how, after great delay and trouble, these clauses were selected out of a number of others, as the only ones which Lord Cottenham would adopt and approve of. And these were the clauses which were now before their Lordships, which his noble and learned Friend designated as being unapproved of and unsanctioned. This would be something to show the gross error, the very gross error, which the noble Lord on the woolsack had fallen into—a gross error which it was more extraordinary should have been committed by his noble Friend—though perhaps he should say the less extraordinary—considering the short time the noble Lord had been in the Court of Chancery—long might he there flourish, that it might benefit from his talents, learning, and his unexampled assiduity!—but considering the short time he had been in that Court, the noble Lord had not been enabled to see the advantages of these clauses, or the greatness of the error he had committed in opposing them. One thing, he was sure, would be admitted, that Lord Cottenham understood that Court, and that forty years' practice had acquainted him with the practice of that Court. Lord Langdale pressed upon Lord Cottenham the adoption of these equitable clauses in the Bill of 1833. By the ultimate rejection of that Bill they were lost; and they were now again before the House. Lord Langdale could only obtain the consent of Lord Cottenham to a very small portion of the clauses he proposed; and it was to that portion for which his assent was obtained, that he now directed
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the attention of the House. When the noble Lord on the woolsack said that these equity clauses were contained in the 26th section, he, on the contrary, said they were not. There was nothing like them in that section; there was only one small infinitesimal portion of them contained in it. The object of these equity clauses was to give to the County Court Judges the same powers as were now vested in the hands of the Masters of the Court of Chancery. Nothing was clearer, and all those who knew anything of the Court of Chancery, admitted that those clauses were an improvement on the practice of that Court. They were most carefully prepared—the noble and learned Lord shakes his head—but he could assure him that these clauses were most carefully prepared, and were not the undigested suggestions of different parties thrown together in a heap. They were carefully prepared first in 1833; then they went through the Committee of the same year, where they had the benefit of the alterations and amendments of Lords Eldon and Lyndhurst. Since that period they had undergone further revision. They had been before the Equity practitioners here; they had been before Masters in Chancery who had made in them improvements and amendments, He himself, as well as his noble and learned Friend the Master of the Rolls, gave them further revision; and he even thought that his noble and learned Friend opposite (Lord Cranworth) had seen them. Practical suggestions had been adopted, and there was no doubt that the Bill was now improved by being rendered more compendious. He had communication with all the County Court Judges. He had received their suggestions, as it was his bounden duty to do, and he had added several clauses to the Bill, profiting by their experience in the actual working of the County Court system. Then, with regard to permitting a tithe rent-charge to be a ground of summons before a County Court Judge. It is a very hard thing that the parson should be obliged to go without his tithe, or to have recourse to restraint; the consequence of this state of things is, that the parson not unfrequently is defrauded by the dishonest man. The noble and learned Lord said that there was no ground for a distress for tithes if there was no titheable matter on the ground; so that this provision would alter the whole law. That was certainly a very curious objection and a curious doctrine. What tithe is produced by a horse,

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by chairs and tables, by carts or household furniture, and yet they were all subject to distress for non-payment of tithe. It was, therefore, vain to produce such an argument; and there was no harm in giving a right to the titheowner to recover his tithes, which, he had heard, were better paid to the lay impropriator than to the parson. With reference to the Courts of Arbitration, the noble and learned Lord did not take the same view as he did. The course at present respecting arbitration is this: after all the expenses of a contest in a court of law have been incurred, and when the matter has come into Court, it is then found that the dispute is one which cannot be settled in public; perhaps it is a matter of account, and the parties are forced, are compelled to go before an arbitrator. What follows? The expenses have all been already incurred. The arbitrator is careless about the matter, because he is paid by the sitting, so are the attorneys and solicitors, because they have an interest in delaying the proceedings. The case is adjourned from day to day; no one is interested in arriving at the issue, save the parties themselves, and a long period elapses before a result is arrived at. Every one was aware that if they appointed a paid arbitrator, a gentleman of abilities and learning, things would be managed in a much more satisfactory manner. As to the Courts of Reconcilement, the noble and learned Lord thought it was a mere visionary scheme, and that there was nothing practical in it. Why, it is the practice of more than one-half of Europe. He had received that very day, in addition to the letters which he had already read to their Lordships, the testimony of a learned gentleman of great authority, who was connected with the Government of the late lamented King of the French. That learned person gave additional testimony to the great benefits which were received in France from the establishment of these courts. He states that more than one-half the cases which go before the Judges of the Courts of Reconcilement are settled by the Judge. In France no person is bound to tell his case, under such circumstances as could possibly give an opponent the slightest advantage; neither would he be in this country. But would it not be advisable for a Judge to say, "You have no defence, or you have no case," after hearing the parties—if the facts warranted such a conclusion? The advice thus given would be acted upon,
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and a vast amount of litigation would be put an end to. With respect to the optional jurisdiction clauses the objection to the inconvenience of bringing witnesses from a remote distance equally prevailed at present. As the law now stood, if the action was not local, but transitory, you may bring your action anywhere you please; and it was constantly the practice to try a case in London, where the witnesses have been brought from Cornwall. He should abstain upon the present occasion from further comment on the objections urged against the measure, only observing that there was not one of those objections which he was not prepared to meet, and to give to each and every one of them a perfectly satisfactory answer. One word more before he sat down. That portion of the Bill respecting the practising of clerks was inserted from this reason. Respectable solicitors and attorneys would not attend these courts; the result was that the business would fall into the hands of an inferior class of practitioners, and it was thought that if solicitors were enabled to send a managing clerk, they would have a check and control over the class of men who sought to appear before the court as agents. He would most willingly bow to the decision of their Lordships with reference to the measure; though should they reject the improvements of the law which it contained, he should regret the circumstance as one highly detrimental to the public interests. The Motion of his noble and learned Friend might have the effect of preventing for the present the public from receiving the beneficial effects of this measure. He would console himself, however, by the words of Lord Bacon, which had been adopted by Coke, "No good proposal for the amendment of the law is altogether lost." Whatever might be the delay in its adoption, whatever opposition it might meet with, whether from prejudice, or ignorance, or indeed from both, nevertheless in the end it is sure to produce its appointed fruit in good season. It may have been delayed to the injury of the community and to the benefit of that class whose benefit they ought never to consult—the benefit of the unjust debtor, creditor, or lawyer, whose interest it is to keep the law in its imperfect state. It was a fact that 500,000 cases had been determined by the County Court Act, 490,000 of which would never have been tried but for the beneficial effects of that Act, and the noble and learned Lord might now deprive the public of the

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further beneficial effects of the present Act; but he might rely upon it that when they were both passed away, the principle for which he (Lord Brougham) now contended would be received and adopted.
The LORD CHANCELLOR: After the very strong speech of my noble Friend, various parts of which were very strong indeed, although I cannot say that the arguments were, strong, I beg leave to withdraw my Motion, and move that the Bill be recommitted, with a view to have the Amendments printed.
LORD BROUGHAMproposed that the Bill should be committed pro formâ, in order to introduce the Amendments he had to propose, and which were rather numerous, owing to the many suggestions he had received from the learned Judges and others. For instance, he intended to omit the clause allowing two Judges on circuit to sit as Judges under the provisions of this Bill. If the Bill went into Committee pro formâ, these Amendments could be made, and the Bill, as amended, be printed by the time it came to be discussed again.
The LORD CHANCELLORsaid, he thought the course suggested by his noble and learned Friend was the most convenient.
The said Amendment was (by leave of the House) withdrawn. Then the original Motion was agreed to. House in Committee accordingly (on Re-commitment); further Amendments made: the Report thereof to be received To-morrow.
House adjourned till To-morrow.