Lords Sitting of 5 August 1851

MINUTES.
PUBLIC BILLS.—2a Crown Estate Paving; Collection of Fines, &c. (Ireland); Constabulary Force (Ireland); Summary Jurisdiction (Ireland); Petty Sessions (Ireland); Canterbury Association; General Board of Health (No. 3).
Reported.—Metropolitan Interment; General Board of Health (No. 2A); Emigration Advances (Distressed Districts, Scotland); New Zealand Settlements; Coal Duties (London and Westminster and adjacent Counties).
3a Lunatics (India); Metropolitan Sewers; Battersea Park Amendment and Extension; General Board of Health (No. 2); Lands Clauses Consolidation (Ireland); Merchant Seamen's Fund; Appointment to Offices, &c.

GENERAL BOARD OF HEALTH (No. 2A) BILL.
House in Committee (according to Order); Bill reported without amendment.
The DUKE of NEWCASTLEmoved the omission of certain words in the first clause, which related to the confirmation of the provisional orders of the General Board of Health for applying the Public Health Act of 1848 to the towns included in the Bill. The words of the clause said, that the provisional order "shall be, and the same is hereby confirmed, so far as it is authorised by the Public Health Act." He wished to expunge the words, "so far as it is authorised by the Public Health Act." These words led to endless litigation, and rendered it impossible in many cases to carry into effect the intentions of the Legislature. This remark particularly applied to the town of Reading, where the Commissioners under the Act of 1848 found themselves completely paralysed.
The EARL of CARLISLEdid not then intend to oppose the principle of the Amendment of the noble Duke; but he put it to his noble Friend whether, looking at the lateness of the Session, and the state of public business, he would not withdraw his proposition for the present, in order not to endanger the passing of sanitary Bills for another year.
After a few words from the Earl of SHAFTESBURY,
The DUKE of NEWCASTLEconsented to withdraw his Amendment, and trusted that the Government would consider the whole subject in the interval before another Session. The present mode of bringing in so many separate Bills of this character in a single Session, was highly unsatisfactory, and calculated to bring the General Board of Health into disrepute. It was plain that unless that Board was to be swept away entirely, its powers must be placed on a different footing. The Government must either repose implicit confidence in the Commissioners, or the functions of the Board must undergo a revision.
LORD BEAUMONTthought the Amendment of the noble Duke would enable the Board of Health to make provisional orders without confining themselves (as required by the original form of the clause) within the limits prescribed for them by the law. He was certainly not inclined to assent to any such proposition; and, indeed, after what had taken place the other night with respect to that very sensitive body, the General Board of Health, he was rather disposed to keep a sharp look-out upon them, to see that they did not go beyond the bounds of the law.
The DUKE of NEWCASTLEwas surprised that the noble Lord could be so grossly ignorant (if he would excuse him the expression) of the state of the facts as to suppose that the Board of Health were entitled, unless these words were retained, to act contrary to the law of the land. They were just as much bound, without the insertion of the words he had proposed to omit, to act within the limits of the law, as they could be if the words were retained. In fact, the words were perfectly useless, except in producing endless litigation. In the case of the General Enclosure Act, which he had the honour of introducing into the other House seven years ago, and which had since worked very satisfactorily, the Enclosure Commissioners had kept within the law, without the restraint of these words, and they had avoided the litigation which had so embarrassed the General Board of Health.
Amendment withdrawn; Amendments made; and Bill to be read 3a To-morrow.

REMOVAL OF DOUBTS AS TO PENALTIES ON ASSUMPTION OF ECCLESIASTICAL TITLES BILL.
Order of the Day for the Second Reading read.
LORD MONTEAGLErose to move the Second Reading of a Bill which he had introduced, for the purpose of removing doubts as to the penalties attaching to the assumption of Ecclesiastical Titles under the Act which had recently engaged so much of the attention of Parliament. The noble Lord said, the object of the Bill was exactly the same as that of the clause which he had proposed a few nights ago as an addition to the Ecclesiastical Titles Assumption Bill. That clause had been introduced in the spirit of peace, in order to prevent the mischievous consequences which he considered might arise under the Bill as it then stood. During the recent discussion only one feeling had been manifested on all sides, namely, that of extreme regret that any circumstances should have occurred to render legislation of such a description necessary; and it had also been admitted in the debate that if all that the Roman Catholics of England professed to seek by the recent act of the Pope had been asked for in what was called a reasonable manner, no objection could have been offered, and the Government might have acceded to the demand. But there were three points of view in which the Rescript of the Pope had been made the
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subject of animadversion, namely, first, because it claimed territorial authority by establishing prelates terming themselves bishops or archbishops of particular sees in this country. Nobody had denied the power of the Pope to send bishops to this country in a spiritual capacity, if they did not take territorial titles. The next objection was, that the Papal Rescript put forward a claim to authority as it were over the whole of the Queen's subjects, and not simply over the members of the Roman Catholic Church; and the third objection was, that the prerogative of the Sovereign had thereby been invaded. After what had transpired, he wished distinctly to state (and he particularly called the attention of the noble and learned Lord on the woolsack to this fact), that the clause which he had proposed for the removal of doubts as to the exercise of rights to which nobody had objected, had been twice printed in the Votes, and it remained on the notice paper from the 25th to the 29th ult., so that there was not one of their Lordships who was not in possession of its precise purport; and the House had therefore been fully forewarned that it would come under its consideration. The noble Lord went on to say that he thought the people of Ireland ought, at all events, not to be left in doubt and uncertainty respecting the operation of the Ecclesiastical Titles Assumption Act, and therefore he hoped their Lordships would give a second reading to this Bill.
Moved, That the Bill be now read 2a.
The MARQUESS of LANSDOWNEsaid, he felt bound to oppose the Bill on the same grounds as those which he had stated on a former occasion, when he entreated their Lordships not to admit into the Bill, which had now become law, the clause proposed by the noble Lord. He moved, as an Amendment, that the Bill he read a second time that day three months.
Amendment moved, to leave out "now," and insert "this day three months."
The LORD CHANCELLORobserved that the Bill, as framed, instead of removing doubts, tended to create a great deal of doubt and ambiguity.
The EARL of ST. GERMANSinquired whether, in the opinion of the noble and learned Lord, an indictment would he against a Roman Catholic bishop for collating a priest to a benefice, which was strictly a matter of jurisdiction within his diocese?
The LORD CHANCELLORreplied, that any act done by virtue of the spiritual office of bishop would not he an act of jurisdiction in the sense intended by the noble Earl; and the act referred to he conceived to he such a one as the bishop would discharge in his spiritual character.
On Question, that the word "now" stand part of the Motion? Resolved in the Negative; and Bill to be read 2a this Day Three Months.

ADMINISTRATION OF CRIMINAL JUSTICE IMPROVEMENT BILL.
The LORD CHANCELLORmoved, that the Commons' Amendments to this Bill be considered. He would advise their Lordships to agree to the Amendments which had been made, with one exception. The Commons had struck out the clause which gave the Judge, when he directed an amendment in an indictment, to be made on the trial, the power of discharging the jury, and postponing the trial of a prisoner, so that no one might be taken by surprise. The Commmons had struck out this provision, thus leaving the law in a state which he was satisfied would frequently work injustice, and therefore he recommended their Lordships not to assent to that alteration.
The Motion was agreed to.
Some Amendments agreed to, and others disagreed to; and a Committee appointed to prepare Reasons, to be offered to the Commons for the Lords disagreeing to one of the said Amendments.

LAW OF EVIDENCE AMENDMENT BILL.
The Commons' Amendments considered.
The LORD CHANCELLORmoved, that their Lordships should dissent from the Amendment introduced by the Commons enabling wives to be examined in civil suits for or against their husbands. He said that this question had, when the Bill was originally before their Lordships, been very much discussed, and that he believed the unanimous decision arrived at was, that it would not be advisable to alter the law with respect to the admissibility of wives as witnesses. He contended that any clause which should render their testimony admissible, would be a direct violation of the confidence necessary to domestic life; that if such a law were to prevail, there would no longer be that unrestrained and familiar intercourse between husband and wife, which was essential to real happiness; that an attorney is not permitted
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to disclose his client's secrets, much less ought a wife to be compellable to betray her husband; and that if a wife were competent to be examined on her husband's behalf, she would constantly be liable to undue solicitation and pressure on his part, in order to induce her to overstep the boundaries of truth. He also moved to reject the Amendment of the Commons which had struck out from the Bill the clause requiring notice to be given whenever any party desired either to give evidence himself, or to call his opponent. He said that this was a most beneficial clause, which would save much expense, by absolving parties from the necessity of attending in court from day to day, in the event of no notice being sent, and that otherwise they would always have to attend lest their opponents should give some testimony which they could either contradict or explain away.
LORD CRANWORTHdiffered from his noble and learned Friend on both points. As to the examination of wives, he originally thought, and he was still of the same opinion, that a middle course ought to be adopted between the extreme views of the Commons on the one hand, and the extreme views of his noble and learned Friend on the other, and that wives ought to be competent to give evidence for their husbands; but not compellable, except in due course of cross-examination, to testify against them. There were many cases, especially among the humbler classes, where the wife acted as the husband's agent, and where to exclude her testimony, would be to deprive the husband of the power of establishing a just, or defeating an unjust, claim. He felt as forcibly as his noble and learned Friend, the expediency of preserving inviolate the sanctity of domestic confidence; but this argument did not in any way apply where the husband voluntarily tendered his wife as a witness. His noble and learned Friend's illustration with respect to attorneys was, in fact, his argument. He would place the wife in a position analogous to that which an attorney occupied, who might be examined for his client, but could not be forced to betray his secrets.
The EARL of MINTOstrongly urged his noble and learned Friend on the woolsack to yield to his noble and learned Friend's suggestion, contending that it was of the greatest importance to avoid any hazard of losing so inestimable a Bill as that before the House.
The EARL of CARLISLEmade a si-

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milar application, saying, that in order to render quite safe a Bill of such paramount importance, it was advisable to meet the Commons half way.
The LORD CHANCELLOR, however, declined to yield.
LORD CRANWORTHthen said, that he would not divide the House.
Amendment respecting competency of husband and wife, disagreed to; that as to notice, agreed to; other Amendments, disagreed to.
House adjourned till To-morrow.