Lords Sitting of 17 February 1852

MINUTES.
PUBLIC BILL.—2a Office of Messenger to the Great Seal Abolition.

THE OATH OF SUPREMACY.
VISCOUNT CLANCARTY(EARL OF CLANCARTY, in the Peerage of Ireland), presented himself at the table, with his Writ of Summons, to be sworn. His Lordship said, that in accordance with a communication he had made to the Lord Chancellor, he now presented himself to be sworn, adding, that although he retained the objections he had expressed at different times by petition to their Lordships' House to taking the Oath of Supremacy, yet, being desirous of resuming his place in the House, as be was unable as a member of the reformed part of the Catholic Church, conscientiously to take that oath, he was ready, if legally permitted so to do, to take the oath prescribed for persons professing the Roman Catholic religion, which he considered unobjectionable.
LORD CAMPBELL, the LORD CHANCELLOR, and Lord BROUGHAM expressed their opinions that this proposal could not be entertained.
The EARL of CLANCARTYthen referred to the Standing Order of the House providing that no oath should be imposed by a Bill or otherwise upon the Peers, with a penalty, in case of refusal, to lose their places and votes in Parliament, or liberty of debates therein; and stated that he was willing, although retaining objections to the oath, taken in its grammatical sense, to take and subscribe it secundum sensum imponentis, if he was informed authoritatively by the House what was the sense in which they imposed the oath.
Lord CAMPBELL and Lord BROUGHAMconsidered that the House could not give a legislative exposition of the meaning of the oath, which could only he done by a Bill in Parliament.
The DUKE of WELLINGTONinquired whether Viscount Clancarty had ever been sworn?
The EARL of CLANCARTYreplied, that he had not taken the oaths in the present Parliament.
The DUKE of WELLINGTONconsidered, in that case, that it was most irregular, and contrary to all the rules and forms of the House, that Viscount Clancarty should be allowed to address them.
LORD CAMPBELLexpressed his opinion, that all that was intended by the oath was to deny the legal power of the Pope.
The EARL of WICKLOWconceived that no Protestant Peer could take the Oath of Supremacy without a mental reservation, and stated that he knew noble Lords who had taken that oath with a mental reservation. There was no clause in this oath—as was the case in the oath of abjuration—requiring that it should be taken without any mental reservation, and therefore Peers were enabled to take it with such reservation.
The LORD CHANCELLORexpressed his opinion in accordance with that of Lord Campbell, and observed that the question was entirely one of law.
The Earl of CLANCARTYthereupon withdrew.
The following is a copy of the letter addressed by the EARL OF CLANCARTY to the Lord Chancellor:—
"Garbally, Feb. 9.
"My Lord—Having, with the Earl of Bradford, repeatedly represented, by petition to the House of Lords, that as Protestant Peers we were excluded from Parliament on account of conscientious objections to the form of the oath called 'the Oath of Supremacy,' and prayed, but without effect, to have those objections examined into with a view to their removal; I should, on merely personal grounds, be disposed to regard the silence of the House as a refusal, and be content to remain excluded from a seat in Parliament, to which I could only be admitted by affirming upon oath what I believe to be untrue; but public duty requires me, no less in vindication of the rights and privileges of the Peerage, than in obedience to the Queen's writ of summons, not to acquiesce in my exclusion from Parliament upon a ground alike unconstitutional and at variance with one of the most ancient of the standing orders of the House, still, I believe, unrepealed, to the effect 'that no oath shall be imposed, by any Bill or otherwise, upon the Peers, with a penalty in case of refusal to lose their places and votes in Parliament, or liberty of debates therein.' (See
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Standing Order of the House of Lords, dated 'Die Veneris, 30th Aprilis, 1675.') Having therefore determined, when presenting myself to be sworn at the table of the House, to state that I cannot conscientiously take and subscribe the oaths as at present administered to Protestant Peers, and that I therefore claim to be admitted on taking the oath prescribed for persons professing the Roman Catholic religion, which oath I consider unobjectionable, and am prepared to take, if I may legally do so, as a member of that reformed part of the Catholic Church that is by law established within this realm, I have felt that it might be convenient, as well as most respectful towards the House and to your Lordship, as Speaker, to notify to you such my intention.
"My objections to taking the oath of supremacy, more fully explained in the three publications I have the honour of transmitting to you, may be briefly stated to have arisen from its apparent inconsistency with certain provisions of two Acts of the late Parliament, viz., the Irish Charitable Bequests Act, and an Act (local) for the maintenance of certain cemeteries in the county of Dublin, the former involving a legislative acknowledgment of the establishment of a branch of the Church of Rome in Ireland, and giving, in certain cases, a legal efficacy to the exercise of the foreign ecclesiastical authority by which it is governed; and the latter expressly recognising the spiritual jurisdiction in the diocess of Dublin of a succession of archbishops in known ecclesiastical subjection to the Pope. I cannot pretend to interpret with certainty the exact legal bearing of Acts of Parliament which afford subjects of controversy among lawyers, but, assuming Parliament itself as the best interpreter of its own Acts, my belief of the inconsistency of the Bequests Act, with the denial the oath contains of all foreign ecclesiastical authority, is much confirmed by the concluding section of the Ecclesiastical Titles Assumption Act of the last Session, the most recent, and therefore the most binding exposition of the Legislature on the subject of foreign jurisdiction. The last clause of that Act contained a proviso to the effect, that nothing therein contained should 'be construed to annul, repeal, or in any way affect any provision contained in an Act passed in the 8th year of Her present Majesty, entitled 'An Act for the more effectual application of Charitable Donations and Bequests in Ireland,' thereby implying that the provisions were an exception to the general law with respect to foreign ecclesiastical jurisdiction. An oath I am aware is only binding in the sense in which it is imposed and known to be taken; but, in the absence of any exposition more authoritative, that sense is only to be gathered from the language of the oath itself. Regarding, therefore, the oath of supremacy in the sense its wording conveys, I am constrained to refuse it; but, should this objection be met by an authoritative exposition from your Lordship on the woolsack, or from the Speaker of the House for the time being, of the legal construction of the oath, or the sense in which it is to be understood as administered, I can have no doubt that then, viewing the oath secundum sensum imponentis, and not in the sense its wording appears to convey, I should be enabled to comply with the requirement of the law, by taking and subscribing the oaths in the usual manner.
"I purpose leaving this place on Monday next,

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and, should I arrive in sufficient time on the following day, shall present myself to be sworn, unless I should in the meantime hear from your Lordship anything to alter my intention; and I need hardly say, that should your Lordship's advice he afforded in the matter, it would he received with great deference and respect.—I am, &c.
"CLANCARTY.
"The Lord High Chancellor, House of Lords."

STATE OF IRELAND.
The EARL of RODENmoved, in pursuance of his notice, to put a question to the noble Marquess opposite respecting certain Returns connected with the Disturbances in the North of Ireland, and said that he would avail himself of that opportunity to call the attention of their Lordships to that important subject. He begged their Lordships to grant him their pardon for the anxiety which he felt on this question, which involved the safety of all who were near and dear to him in that part of the kingdom. He believed that the very security of their lives depended on the course which Her Majesty's Government intended to pursue. Since he had last had the honour of addressing their Lordships, he had waited for accounts from that part of Ireland in which he lived, in the hope that he should have to congratulate them on the prospect of better hopes for the future; but he was sorry to say no such prospect was reserved either for him or for their Lordships. Since the failure which had taken place at the special commission in Monaghan, there had been a great increase of spirit in the rebel conspiracy, and many threats had issued from it against some of the most useful and respectable proprietors in the north of Ireland. He had read an account, which he had received from an authority he was not at liberty to disclose, that two of the most useful men in his own immediate neighbourhood had been denounced by the Ribband conspiracy, and bad received two notices, and it was quite certain that after two warnings they would suffer death if steps were not taken to protect them in the meanwhile, or if the arm of Providence were not stretched out in their behalf. He had communicated to those two gentlemen the account which he had received, and he hoped that they would take the necessary means for the preservation of their lives. The statements which he had made to their Lordships when he addressed them the other night might appear to some of them too highly coloured; but since that time there had been a meeting at Armagh of
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the magistrates of the counties of Louth, Down, Monaghan, and Armagh, under the respective Lords Lieutenant of those counties, with the Lord Lieutenant of the county of Armagh at their head. At that meeting those magistrates agreed to a series of resolutions, respecting the state of their counties, much stronger than anything he had said. They stated that—
"A succession of murders, attempts to murder, assaults, burning of houses, acts of intimidation, &c., had taken place within the district, all marked with the same agrarian character, and evidently proceeding from the same secret conspiracy; that this secret association possessed the sympathy of many, and had overawed the whole of the population to such an extent that the evidence of the most atrocious murders, perpetrated in the open day, could hardly be obtained; that jurors, from whatever class impanelled, were too often either disaffected or intimidated; that the audacity of the conspirators had fearfully increased with their impunity; and that the conspiracy was rapidly extending into the neighbouring districts; and that the sympathy, and yet more the terror, of the population, was proved by facts which would come under their notice daily, and were well known to the authorities—such, for instance, as an unwillingness to render the common offices of humanity to the victim of assassination or outrage, and the levy of forced contributions for the purpose of defending agrarian criminals."
Such was the testimony which these magistrates gave to the existence of the outrages now prevailing in those districts. He informed their Lordships that they were much mistaken if they conceived that this Riband conspiracy was applied only to agrarian objects, and was not applied to political and religious objects. It was guided by a secret hand and head, and appeared first in one part and then in another part of Ireland. Such was the conspiracy, and after all that their Lordships had done at different times with the view of suppressing it, they had never been able to come to the root of it. What means ought to be taken to enforce or strengthen the law, it was not for him to say; but it was the duty of Government not merely to inquire, but also to execute, for so long as this conspiracy had sway, there never would be either peace or security in Ireland. Even now the High Sheriff of the county of Louth was obliged, for his protection, to have two policemen resident at his house; and only the other day, when he paid him (the Earl of Roden) a visit, he came attended by two policemen as the guardians of his life. Was this no hardship or punishment to individuals? and had not they who suffered it a right to look up to Government for protection against such an

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intolerable state of intimidation? His Lordship then referred to the murderous attacks which had been made upon Mr. Chambre and Mr. Eastwood, neither of whom had anything to do with land. The fault which the former had committed in the eyes of these conspirators was his having committed the priest Spooner to prison on a charge of haying written a threatening letter; and the fault of the latter was, that he had deprived of his licence a publican at whose house one of their illegal meetings had been held on the Sabbath. He had already said that this Riband conspiracy had increased of late. It was not confined now to the counties of Louth, Armagh, and Monaghan; it was also rife in the county of Down. He would not trouble their Lordships by going into the details of the threatening letters which had been sent in that county; but he was anxious to draw their attention to a circumstance which had happened last Tuesday, and which he thought would naturally excite their indignation. The facts to which he referred were those which had already appeared in the public journals. [The noble Earl then read from an Irish journal an account of a trial which had occurred at one of the petty sessions in Ireland, where two policemen were fined 10 s. for stopping at 10 o'clock at night a man on the highway, who, instead of having a blunderbuss in his possession, as they suspected, had only a bottle of whisky.] If these policemen erred, they erred in the right direction, and did not deserve any punishment. That decision would damp the ardour of the police, and would throw the apple of discord among the magistracy. He hoped that the Government would inquire into that case, and would take measures to enforce and strengthen the law until it was adequate to meet the outrages now so prevalent in Ireland. The assizes in Ireland would shortly take place, and he should make a point to attend them. If any cases should occur requiring the attention of their Lordships, he should bring them forward in the Motion on the general state of Ireland, of which he had already given notice. He then moved for an Address to Her Majesty, for—
"A Return of the Number of Murders, Cases of shooting at, waylaying, and other Outrages, in the Counties of Louth, Monaghan, Armagh, and Down, from the 1st of January, 1849, to the 17th of February 1852, in which Inquests or Informations were returned to the Clerks of the Crown and Peace; specifying the Crime, when committed, the Persons charged, and Proceedings against
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them at the Suit of the Crown, and the Result of the same: And also,
"Return of the number of Threatening Letters received by Persons in the Counties of Louth, Monaghan, Armagh, and Down, between the 1st January 1849 and the 17th February 1852, which have been sent to the Government or lodged with the Police; specifying their Date and the Persons to whom they have been addressed."
The MARQUESS of LANSDOWNEwas understood to say that he had no objection to grant the return moved for by the noble Earl, who certainly had not overrated the importance of the subject; but that, with regard to any further measures of repression, the Government thought it advisable to await the termination of the forthcoming assizes in Ireland.
The EARL of WICKLOWwished to call the attention of Her Majesty's Government to a change in the law of the country which had been from time to time brought before the Legislature, but had never been carried into effect. He alluded to a measure for enabling the venue to be changed in criminal cases. It was a measure which had been recommended by the highest authorities, and he was sure that, without it, convictions could not be obtained from the juries.
The EARL of GLENGALLregretted the indisposition on the part of the Government to take efficient steps to meet the terrible emergency in which the respectable portion of the Irish people found themselves. No man had had greater experience of special commissions than he, and he traced their failure to the difficulty of procuring the necessary evidence. No doubt pains were taken to get juries of the highest respectability; but without evidence to convict, all efficient action was paralysed. Owing to the insufficiency of the evidence in this particular case coming within his own knowledge, it appeared that a man tried and found not guilty by a jury by a majority of nine to three, was again acquitted a day or two after by another jury by a majority of seven to five. The juries were composed of the most respectable persons, and no blame could be attributed to them. The question was, whether the Government were justified in sending that commission to Monaghan without sufficient evidence? Every one was satisfied that the evidence was not sufficient; and nothing could be more unfortunate than failing in a special commission. The Ribbandmen were generally known to the police, who could find them whenever they pleased at their places of resort, but could

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never find them with papers—they were too clever for them. The authorities knew them well, but had no power to arrest them. He (the Earl of Glengall) considered that changing the venue, introducing the Scotch jury system, or courts-martial, were of doubtful utility, for without evidence the trials were futile. He considered that the suspension of the Habeas Corpus Act was almost justifiable to meet such an atrocious system of Thuggee. By its suspension in 1848 the Government hsd saved the lives of tens of thousands, and of devastations and burnings throughout half Ireland. The suspension of the Act is a question for consideration to meet such an emergency. It was not astonishing that Ribbandmen should have increased enormously. Not only was it a very old conspiracy, having existed ever since 1798, and being founded upon the "United Irishmen" Association, but there had been an immense stimulus and impulse applied lately to the system by the agitation of tenant-right. Mr. O'Connell invented fixity of tenure to plunder the landlords; tenant-right had the same objects. The people construed it to mean that the tenant should occupy that land as an owner which he held now as tenant; it was the "stand-fast" system of the old American revolution, which was so successful. Nor was this all. The effect of the operations of the Encumbered Estates Commissioners had been to encourage the tenants in this agitation; for, with an appearance of justice, they might say that if confiscation was the order of the day, they ought to have a share, and that it was quite as fair they should have tenant-right as that persons should be enabled to purchase the land at half its value. It was certain, at all events, that a wide-spread combination existed amongst the tenants, and those who aided them, to denounce the landlords systematically as the cause of all the evils in Ireland. Nor was this confined to the ordinary agitation of the country; for even the adherents of a Government which had descended to pay journalists for the support of "law and order" had not been ashamed to hold up the owners of the soil to execration and assassination in the very same journals.
LORD LYNDHURSTsaid, he had intended to ask that a copy of the report of the proceedings before the late special commission in the chief cases should be laid before their Lordships; but as he understood the persons acquitted were to be again indicted, and as observations on the
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evidence might prejudice their cases, he should not at present take that course, and should wait until the result of the second trial was known.
The EARL of RODENwas understood to ask if the Government would assent to certain returns relative to the number of recent murders in Ireland?
The MARQUESS of LANSDOWNE, on the part of the Government, assented to the Motion, at least in a modified form. The noble Marquess then said, with reference to the late special commission, that he should wish the whole of the proceedings before the commission to be laid upon the table.
LORD LYNDHURSTremarked that he did not think this would be sufficient to enable their Lordships to form any judgment as to the propriety of issuing the commission, for which purpose the applications made, or the evidence sent up to the Government, should be produced.
LORD BROUGHAMsaid, with reference to the remarks made by the noble Earl (the Earl of Wicklow), as to the question of venue, that subject was worthy of consideration; and it should be borne in mind that in Scotland such a system as that suggested (of changing the venue in criminal cases as a matter of course where there was the least doubt of a fair trial) had existed from time immemorial—that is to say, a criminal trial could take place either in the county in which the offence was committed, or in any other. He could not, however, at all approve of another suggestion which had been made for abolishing the system of unanimity in juries. He thought such a change would be extremely dangerous.
LORD ABINGERbelieved the proceedings in the case of the policeman to which the noble Earl had referred, had originated under the Crime and Outrage Act, which authorised a search for weapons, so that the matter was the more unexplainable.
Motion agreed to.

HOSTILITIES AT LAGOS.
VISCOUNT CANNING: Seeing the Secretary of State for Foreign Affairs in his place, I beg leave to ask him whether Her Majesty's Government is prepared to lay on the table any papers explanatory of the events which have recently occurred at Lagos. Your Lordships will have seen in the public prints a copy of the official report from the Commodore of the West African Station to the Admiralty, in which he states the nature of the operations, and the great

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loss of life with which they were attended. It was only natural and proper that such despatches should be published at the earliest possible opportunity; but your Lordships may fairly make a claim for further information, as in the very first paragraph of the despatch printed in the newspapers, allusion is made to "the instructions of the 14th of October," and also "to the wishes of the late Secretary for Foreign Affairs as far as regards Lagos," which appear to have been the ground and guide of the recent operations. I am sure that the noble Earl will not think that I ask this question from any hostility to the progress and consummation of that great task in which we have been engaged now nearly half a century. It is on behalf of the great cause of the suppression of the slave trade that I wish these papers to be laid before Parliament early. It is too much the custom to father on the suppression of the slave trade much inconvenience and expense and loss of life which are not attributable to that cause; and we may gather even from the public prints that the disastrous loss of life which occurred off Lagos is not wholly to be assigned to our exertions for the suppression of the slave trade. Whether it was necessary for the protection of our commerce on that coast, or whether it was owing to some desire on our part to depose one Negro king and to set up another, I will not pretend to discuss, or invite the noble Earl to say; but as the noble Lord, his predecessor in office, was the protector of one black king on the Mosquito shore, I hope that his experience of the responsibility of such an office on one side of the Atlantic, has not led him to take up lightly the protection of another king on the other side. I think that it is most desirable that all papers bearing upon these transactions should be laid before Parliament, and if the noble Earl accedes to my request, I hope that he will select from the preceding papers contained in the voluminous blue books upon the Slave Trade which have been already laid before the House, any despatch which may throw light on the course which our naval officers were instructed to pursue.
EARL GRANVILLEhad no objection to furnish all the information on the subject of which Her Majesty's Government were in possession. He would take care that such selections would be made from the blue books, or any other available sources, as would aid in making both the particular transaction in question and the
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general subject intelligible to their Lordships.
The EARL of ELLENBOROUGHsaid, that if any papers connected with the unfortunate affair at Lagos should be laid before the public, he should like to know whether any orders had been sent from the Admiralty to our officers on that coast not to fight on Christmas-day. His reason for asking that question was, that it appeared that the operations were commenced two days before Christmas-day, and were suddenly stopped for that day—a circumstance to which he attributed half the loss of life which subsequently occurred. If our gallant sailors were not to be permitted to fight on Christmas-day, they had better have deferred commencing their operations on the 26th; but that men in action should stop twenty-four hours for Christmas-day appeared to him quite inconceivable; and he (the Earl of Ellenborough) desired to know whether any expression of opinion to that effect, either previously or subsequently, had come from the Admiralty? The noble Earl proceeded to say, that he thought improvements might be made on board ships destined for hot climates which would greatly conduce to the comfort and health of the crews. Some time since he went on board a vessel at Plymouth which was about to sail for the coast of Africa; he desired to see the awnings, and when they were produced he was quite astonished. It was true, there were both rain-awnings and sun-awnings; but the two together would not keep out either sun or rain. He ordered the ship to be supplied with awnings—the value of which he knew from his recent Indian experience—double tent awnings, which would keep out both rain and sun; and he had received a letter from the officer in command of the vessel stating that she was the envy of the whole station; that the crew were perfectly healthy; that they had suffered neither from rain nor sun; and that they had fresh water at all times, the manner in which the awnings were placed enabling the water to be saved whenever there was rain. Other improvements he had also in contemplation, about the efficiency of which he had not the least doubt, founded as they were upon his Indian experience, with the view of obviating that dreadful oppression from which Europeans suffered in hot climates. He believed, indeed, that many of the devices adopted in India might be applied on board ships greatly

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to the improvement of the health of the crews.

COUNTS COURTS FURTHER EXTENSION BILL.
House in Committee (according to order).
On Clause 24,
The LORD CHANCELLORmoved the omission of words from Clause 24 which enables barristers to appear for clients without the intervention of attorneys, and the substitution of words enabling the wife, clerk, or servant, bonâ fide, of any suitor, to appear on his or her behalf. He wished to offer a few observations upon two points suggested by the terms in which this clause was framed—first, upon the expediency of allowing barristers to practise who were not instructed by attorneys, but who communicated with and were instructed directly by the suitors; and, next, as to the new order in the profession which seemed about to arise from attorneys associating' themselves to practise as barristers, or rather as advocates instructed by other attorneys. Undoubtedly, as far as experience went, nothing had been considered, generally speaking, more detrimental to the administration of justice than the practising of barristers without being instructed by attorneys. Very few persons were found to practise in that way; but there had at all times been a few barristers who had communicated directly with their clients. He believed he might appeal to his noble and learned Friend (Lord Brougham), as he might to all the Judges, with regard to the conduct of such persons. It had never met with approbation, and had never been regarded as advancing the interests of justice. He believed the general rule which had been acted upon had conduced to the creation of that high character which the profession enjoyed. He had lately had some communications with gentlemen who had come from America, and were acquainted with the state of the profession in that country, and he had never heard any other remark from any member of the Bar in that country than this—that they were very much struck with the different manner in which business went on in this country and in America; that they found it went on here with much more order and much more satisfaction; and they ascribed this to the circumstance of the barristers in that country not being instructed by an attorney, and not forming a distinct profession. He appealed to his noble and learned Friend (Lord Brougham), with his former
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experience, whether he did not know that formerly it was made matter of complaint against those members who departed from the ordinary practice, and they were ungraciously looked upon. He mast repeat his opinion, that under the system proposed by this Bill, the public would not enjoy the same advantages as the present distribution of duties and business produced, and that the administration of justice would be greatly prejudiced by such a course being adopted. He considered that even in the Superior Courts at Westminster the practice of counsel receiving instructions directly from their clients would be found most inconvenient, although there the Judges possessed higher authority than the County Court Judges, and commanded a respect which the gentlemen who presided in the County Courts, respectable as they were, and competent to discharge their duties, could scarcely hope to obtain. If this clause were passed, an impression would certainly be created that this irregular practice was sanctioned by the authority of their Lordships, and it would no doubt he found to increase considerably. He submitted, therefore, that it would not be expedient to make any change in this respect. Another point to which he wished to advert, was that of attorneys themselves practising as advocates; and he feared that if the House of Lords should give their sanction to this practice, it would very much increase. He conceived this to be a course attended with many inconveniences. If an attorney wished to act as an advocate, the road was open to him; and there were instances of those who, having commenced the practice of their profession as attorneys, had afterwards pursued a successful career at the Bar. But there was no reason whatever why an attorney should desert his practice, why he should quit that path which he professed to desire to pursue when admitted on the rolls of the Court. Why the attorney should resort to another attorney to act as advocate, and not to a barrister, he could not discover, and he did not believe there there was any good reason for it. He apprehended it was likely to lead to grave inconveniences. He should therefore propose, in substitution of the existing clause in the Bill, an alteration which would leave the law as it at present stood.
LORD BROUGHAMquite agreed with his noble and learned Friend that it would be a serious injury to the profession if the two functions of advocate and attorney

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were confounded; but it did not by any means follow that he should also agree with those who, in 1846, for the first time, introduced a statutory prohibition (9 & 10 Vict., c. 95, s. 91), confined exclusively to the County Courts, preventing barristers from practising in those Courts unless they were instructed by a solicitor or attorney. Up to 1846, every barrister had the power of appearing in any Court in the kingdom, instructed by a client, without any intervention whatever of an attorney or solicitor; and the exception then introduced applied only to the County Courts. What, then, had prevented the practice from being general? The usage of the profession, professional etiquette, supported by the heads of the profession both at the Bar and on the Bench, who so discountenanced, on all occasions, the class of individuals who practised both as attorneys and barristers, that no respectable member of the profession had been known to violate the rule, by generally practising without instructions from attorneys. The County Courts Act, however, introduced a positive prohibition, and the only question was whether they should continue that prohibition or repeal it, and place the County Courts upon the same footing as all other Courts, from the highest to the lowest. He was in favour of placing the County Courts, in this respect, on the same footing as all other Courts, leaving the practice in them to be regulated by the decent and salutary professional observance which was effective everywhere else. If this prohibition had never been enacted, he believed it would not now be proposed; but it was said, that having once been enacted, its repeal would be held by the profession to give a countenance to the breach of the existing usage and general understanding. He, for one, could not think the repeal would have any such effect, accompanied as it would be by the universal desire on the part of its supporters that the matter should be left to the etiquette of the profession, but the opinion that as a general general rule there should be instructions. But some even went so far as to say that if we had to begin to legislate de novo, an exception ought to be made in regard to the County Courts, because they were more obscure, and the Judges of them would not have the same authority as the Judges of the Superior Courts. But it should be recollected that the professional etiquette, restraining barristers from appearing without the intervention of at-
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torneys, was found by experience to be as little infringed in Bankruptcy Courts, Police Courts, and all other inferior Courts, as it was in the Court of Chancery, the Queen's Bench, or on the circuits; and at Manchester, where the County Courts was attended by a Bar of fifteen or sixteen members, the practice was as rigidly adhered to as it was on the Northern Circuit. His noble and learned Friend was very justly anxious to prevent the rise of a class of attorneys-advocates, receiving their instructions not directly from the client himself, but through the medium of another attorney; but any restriction that could be adopted with the view of checking such an evil must be practically nugatory, because it would be impossible to restrain an attorney who had not the qualification, or the time, perhaps, for appearing personally in Court from instructing another attorney to appear, on the understanding that they were to divide the fee between them. He had in his possession a declaration signed by 150 highly respectable members of the Bar, praying earnestly for the abolition of this prohibition with regard to their practising in the County Courts. Their object was not to be enabled to practise without the intervention of attorneys, because in not one case out of a thousand might that ever take place; but they simply wished to be protected against the malpractices of the other branch of the profession, and against the monopoly which they wished to set up for themselves. He could tell their Lordships that there was a combination on foot among the attorneys to exclude barristers from the County Courts altogether. Barristers had been warned at various places that it would be at their peril they took a brief in a County Court; and that if they did so, they should never have another brief, neither in the County Courts nor at sessions or assizes. Thus the attorneys were attempting, by combination, to dictate their own terms to the Bar, and to exclude from all these courts; and their malpractices were likely to be effectual, unless the Bar was afforded the means of protecting itself against such a combination. At a recent meeting of attorneys and solicitors, held at the Freemasons' Tavern, one of the speakers, an attorney was reported in the Jurist (a work cited as of authority in the Courts) to have said, "that the attorneys had the power of excluding the Bar, and that the barristers should get nothing unless they choose to divide the guinea fee

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with the attorney." Now the 150 gentlemen whose cause he represented had no desire at present to infringe the rule of the profession, but only wished to be protected against such processes as these. Among these 150 petitioners were a serjeant-at-law, two recorders, double first-class men at Oxford, several wranglers at Cambridge, five fellows of colleges, an ex-colonial chief judge, and twenty authors of esteemed works on legal subjects. He mentioned this to show the respectability of the class of individuals who had signed the declaration he had referred to. There were from 90 to 100 others, amongst whom were seven Queen's Counsel, twenty gentlemen behind the bar, but in full practice, several gentlemen connected with law reports, and others of a similar standing, all of whom had declined to sign their names to a document which it was intended to make public with the signatures attached; and he believed their reason for declining it was an exceedingly justifiable one, for he knew well what the effect might have been on not a few, respectable as they were in standing—respectable in character he ventured to say they were all—but respectable in their standing in the profession, and in the amount of business which they now obtained. They had not chosen to sign their names, but he had been furnished with a copy of them. But all these persons in these different classes were strongly of opinion that the rule should be left to the etiquette of the profession, which was flexible, and liable to exception; not from a wish that it should be bent if it was not absolutely necessary, but that, if it should become absolutely necessary for purposes of self-defence, then they should be able to bend it. And the mere knowledge on the part of the wrong-doers that barristers were furnished with such a means of defence, and could practise in the County Courts without an attorney, their Lordships might trust him, would be most effectual to preclude the necessity of their almost ever having recourse to such a remedy. Not only were the gentlemen—between 200 and 300 in number—that he had mentioned in favour of this proposition; but it was supported by the Gentleman at the head of the Bar at this moment, his hon. and learned Friend the Attorney General, who had distinctly stated in the other House of Parliament that his opinion went to the full length of their prayer to their Lordships for protection. And not only the Attorney General, but
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he might mention also that a noble and learned Friend of his, whom ill health rendered unable to attend in his place in that House, and one who commanded the highest respect of all, both in the profession and out of it, the late Lord Chief Justice (Lord Penman)—in a letter to him that morning, not written in answer to one from himself on the same subject, strongly urged him (Lord Brougham) to persevere in his intention; and expressed his hope that the prohibition would be left to the professional etiquette, uninterfered with by statutory enactment. When he (Lord Brougham) reminded their Lordships that of the 80,000 suits brought in the year 1849, hardly as many as 2,000 came to trial, to a, verdict, and a judgment; and that in the County Courts 6,000 cases a year were tried from 20 l. to 50 l. in amount; he thought they would agree with him that it was cruel, in this state of the law business of the country, that this branch of the profession should be excluded, as they now were, from the County Courts. He would leave the subject in their Lordships' hands, confident that they would do justice to the parties whom he represented, and simply reminding them that although this clause had been struck out of the Bill before it was passed by their Lordships, yet it was restored in the other House of Parliament almost by acclamation.
LORD CAMPBELLsaid, this was a subject in which the public had such a deep interest that he must trouble their Lordships with a few observations. The due administration of justice, he believed, greatly depended on keeping distinct the profession of an attorney and the profession of a barrister or an advocate; and there would be great danger of that distinction being obliterated if they allowed attorneys to practise in the County Courts who had been instructed by other attorneys. That would be a great encroachment on the privileges of the Bar, and he was sure it would be extremely detrimental to the administration of justice. At the same time he thought it highly necessary and expedient to restrain barristers from practising in the County Courts unless they had been instructed by attorneys; and it was his firm conviction, after much reflection, that if this prohibition were not continued, there would be constituted all over the country a class of persons calling themselves barristers who would practise merely as attorneys, and who would get up the suit from the very beginning, and would con-

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duct it all through, and who would not in any degre be subject to the control of the Courts at Westminster or of the County Court Judges. It was very important that those who conducted suits should he under the superintendence of the Judges, because it was most essential, if there was any malpractice with regard to costs, or the-mode of executing judgment, or any other point, that the person who acted as attorney should he liable, on a summary application, to punishment for his misconduct; and this could not be the case if the party performed the functions of a barrister, because he could only be reached by application to the Inn of Court to which he belonged. That was the reason why the 91st section was introduced into the County Courts Act in 1846 for the first time; and if it had not been introduced before, he thought it would have been most politic to introduce it now. It had worked most beneficially; and if it were now to be withdrawn, he was sure the most mischievous consequences would ensue, because it would go forth that this and the other House of Parliament were of opinion that there should be no distinction between a barrister and an attorney, and not only that barristers and attorneys, but that all who chose to come forward, should be allowed to conduct cases. It was true that the prohibition was not necessary for the gentlemen who had signed the declaration that had been entrusted to his noble and learned Friend opposite (Lord Brougham); but the noble Lord must be aware that in their profession, as well as in every other, there were always certain unscrupulous and unprincipled members, and it was to control the conduct of such persons that the restriction was demanded. His noble and learned Friend had referred, he thought rather indiscreetly, to the opinion of a very eminent member of the profession, the Attorney General; for that hon. and learned Gentleman had taken a most sanguine and zealous view of what ought to be done for the benefit of his own order. Now, he (Lord Campbell) looked to the benefit of the public; but the Attorney General had proposed that in all causes over 20 l. barristers should have pre-audience in the County Courts, the consequence of which would he that the client would require to employ two agents, a barrister and an attorney. He (Lord Campbell) considered that there ought to be no necessity for employing a barrister, or more than one agent, and that the wife, or a clerk, or
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any one selected by the suitor, might appear; so that it should not even be necessary to employ an attorney—so anxious was he that there should be full freedom and facility for the public in seeking for justice through the instrumentality of the County Courts.
The LORD CHANCELLORsaid, it appeared that his noble and learned Friend (Lord Brougham) had a paper signed by 150 persons, having a bearing on this subject; and that he had the names of some 100 other persons who had refused to sign it. Now he should have thought that the signatures of the first 150 would have been a sufficient guarantee to the other 100, if they were really in favour of the declaration; and he, therefore, could not understand why they had refused to sign it, if they so highly approved of it. His own communication with the profession led him to a conclusion exactly the reverse of that come to by the noble and learned Lord (Lord Brougham); for he believed the Bar were by no means desirous of the protection which it was sought to afford them. What was the noble Lord's argument? That the attorneys had entered into a combination not to employ barristers at sessions, assizes, or elsewhere, who thought fit to appear in a County Court. It was wished to protect the Bar against that combination. How? Why, by allowing them to appear in the County Courts without being instructed by an attorney; that was, to place themselves in a position to be the direct objects of that combination. When their Lordships heard the number of causes tried in the County Courts, and if they had the means of abstracting from that number the portion of them in which counsel would be employed, not through an attorney, but directly by the client, he should wonder what sort of a Bar would be found attending the County Courts, and what kind of fortunes they would make. They could not go on circuit, because their Lordships were aware how the County Court Judges travelled through the counties. If the etiquette of the profession had hitherto been sufficient to prevent barristers practising without the intervention of attorneys, and to a great extent it had been sufficient, the barristers would still be influenced by that etiquette, notwithstanding any enactment that might be made on the subject. But if, indeed, his noble and learned Friend supposed that after the passing of that Bill, barristers would attend the County

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Courts, and act on their own account, without regard to the etiquette of their profession, then he (the Lord Chancellor) believed the result would be greatly to deteriorate the administration of justice, and to lower the dignity and respectability of the Bar. He apprehended that up to the present moment nobody had doubted the great importance of preventing the barrister from having direct communications with his client. No rule had been more inflexibly observed, and exceptions to it were only permitted in rare and important cases; for instance, where witnesses had to be examined on scientific matters. But the general rule, which it was of the last importance to preserve, was, that a barrister should never communicate with his client or with witnesses; and one of the most essential duties of an attorney consisted in the examination of witnesses to find out what they knew, and to ascertain how far the evidence would go to establish the main points of the case. But if you admitted barristers to communicate with clients, you could not prevent them from communicating with witnesses; and if a system of that kind were once established, infinite mischief would be done to the Bar, and he believed to the administration of justice also. He hoped it would not go forth as the opinion of Lord Brougham that it was not fit to prevent a barrister from communicating with parties without the intervention of an attorney.
LORD BROUGHAM: It is also the opinion of Lord Denman and Lord Lyndhurst.
The LORD CHANCELLOR: Then, if that principle, dignified by the approbation of those noble and learned persons, should once be recognised by law, a class of men would spring up in connection with the County Courts, who would attend public-houses, picking up causes, finding out defences in cases where no one would ever dream of a defence, and devising means of establishing claims which could never enter into an honest man's head. Such a class of men would not be subject to that restraint and discipline which prevailed where the Judge had more authority. He (the Lord Chancellor) feared that if that Bill should pass in its present shape, it would, notwithstanding the etiquette, prevail to a considerable extent, and that barristers would be found to act without the intervention of attorneys.
LORD BROUGHAMsaid, that his noble and learned Friend seemed to think that he (Lord Brougham) was an advocate for barristers going into court without an attorney. Now he did not maintain anything of the kind, and he did not wish it to go forth that he or either of his noble and learned Friends whom he had mentioned were of that opinion. What they said was this—not that barristers ought to go into court without an attorney—not that they would do so—on the contrary, he thought that they ought not, and he believed, moreover, that they would not do so, but what he maintained was, that barristers ought to have protection afforded to them against a gross and crying abuse, and that they should not be prevented by positive law from acting without an attorney in order that they might have the means of defending themselves in case of a combination being formed against them. His noble Friend called this a provision for doing away with attorneys. But surely it was a different thing for a person to have arms in his house for the purpose of defending himself in case of attack, and using those arms to commit murder and robbery upon the whole parish. What he wished to point their Lordships' attention to, however, was this—Was it to be supposed that the hundreds of respectable men who were subjected to those combinations to which he had alluded, would quietly lie down and die; or was it not more likely that they would reconsider the etiquette of the profession a little? Etiquette was more or less a matter of feeling, nay, of fancy; and if they were driven to it, with the simple authority of their own judgment on their own case, they would be exceedingly likely when they found themselves shut out by the state of the law from all participation in these great and increasing branches of professional business, to reconsider that etiquette which alone prevented them in other courts, and to attempt to drive the Legislature (which he ventured to predict the Legislature would not do) to apply to all other courts that which, in an evil hour, they had inconsiderately applied to the County Courts, and to them alone. The consequence would be the universal practice of barristers acting without attorneys, except in these County Courts.
Amendment made; other Amendments made.
House adjourned to Thursday next.