Lords Sitting of 4 May 1852

MINUTES.
PUBLIC BILLS.—1a Disabilities Repeal,
2a Colonial Bishops.

COLONIAL BISHOPS BILL.
The ARCHBISHOP of CANTERBURY: My Lords, on moving the Second Reading of the Colonial Bishops Bill, it is right that I should briefly state to your Lordships the object which it has in view, especially as it might be supposed from the title to have reference to an important subject which must, at some not very distant time, be brought under your Lordships' consideration—I mean the ecclesiastical government of our Colonies. The present Bill, however, is merely of a technical nature, and
is intended to remove an inconvenience which was not contemplated when the Act was passed for creating the sees of Madras and Bombay. By that Act, 3 & 4 Wil. IV. c. 85 sec. 92, it was enacted that the Bishops of Madras and Bombay shall not "have or use any jurisdiction, or exercise any episcopal functions whatsoever, expect as limited to them respectively in the letters patent by which they were created." Then, further, by the 59 Geo. III., c. 60, and 3 &c 4 Vict., c. 33, it was enacted, "that no person ordained by a Colonial Bishop not at the time possessing episcopal jurisdiction should be capable of officiating as a minister of the Established Church." Now, it is unquestionably proper that a Bishop should not exercise Jurisdiction beyond the limits of the see to which he is appointed; but there is no reason why he should not exercise Episcopal Functions, as our Bishops at home are constantly doing, by commission from their brethren. This, however, the Colonial Bishops cannot at present do, by the letter of the statute, without subjecting themselves to the penalty of misdemeanour. The object of the present Bill is solely to remove this inconvenience, and to allow a Colonial Bishop who may have retired from his diocese, or who may be temporarily sojourning in another diocese, to assist his brethren without violating the law, or performing an act which shall be invalid. This, my Lords, is the purport of the Bill to which I have now to request your Lordships to give a second reading.
After a few words from the Earl of DESART,
The BISHOP of LONDONexpressed his approval of the Bill, and briefly alluded to an apprehension which had been suggested, that the Colonial Bishops might take advantage of this amendment of the law as a pretext for returning home.
Bill read 2a.

CASE OF MR. SALOMONS—DISABILITIES REPEAL BILL.
LORD LYNDHURSTrose to call the attention of their Lordships for a few moments to certain disabilities imposed by the statute 1 Geo. I., cap. 13. Some of their Lordships would perhaps recollect, that when he was last in office he introduced a Bill to repeal several penal Acts which stood on the Statute-book, but which could not be enforced on account of their severity, and of their being at variance with the feelings and opinions of the pre-

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sent times. In the same spirit and on the same principles he now submitted to their Lordships that they ought to review the disabilities imposed by the Act to which he had just referred. Their Lordships were aware, that by that Act any person who takes his seat in Parliament, and gives a vote on any question, without having previously taken the oath required by that Act, which was subsequently altered in one particular clause, was rendered liable not only to very severe penalties—first of all to a penalty of 500 l., and next to a similar penalty of the same amount on every subsequent offence of the same kind; but also, in addition to these penalties, to several disqualifications of the most severe and serious description, to which he should presently direct their attention. He had no intention of suggesting at present any alteration of the pecuniary penalties inflicted by that statute. Those penalties were of an accumulative character; and as they were renewed for every separate offence, he considered them to be a sufficient security against the repetition of the offences against which the Act was directed. If so, then these severe disqualifications were unnecessary, and, if unnecessary, were unjust, impolitic, and ought to be repealed. He would in a few words state the nature of those disqualifications, for he was sure such a statement would lead their Lordships to concur in his proposition for a repeal of them. Any person offending against this Act, besides the pecuniary penalties to which he was liable, was disqualified from maintaining an action at common law or a suit in equity. Whatever grievance he might suffer either in his person or in his property, he was left entirely without remedy. Any property belonging to him in the possession of another, might be withheld from him, and any property in his own possession might be taken from him with impunity. No court of law, no influence of Government, nothing but the intervention of Parliament, could give him redress. Now, he was sure their Lordships would agree with him that disqualifications so severe and so independent of all ordinary authority in this country, ought not to be continued in the present day, except it was shown that they were absolutely necessary. In the next place, a person in this position could not act as guardian to an infant, however important it might be in a moral or a physical point of view that the infant should experience his care, attention, and protec-
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tion. In the third place, a party offending against this Act of Parliament could not receive a legacy from any deceased friend or from any other person. He could not receive a deed of gift of any property whatever. Further, he could not be either the executor or administrator of any person whatever. He was also rendered incapable of holding any office, or of giving a vote at any election. In point of fact, the disqualifications were so severe, that he hoped they would induce their Lordships to adopt the suggestion which, he was about to make. Indeed, they had been recently described by one of the Judges in the Court of Exchequer as being of such fearful severity as to place the party offending almost in the position of an outlaw. It was after due consideration of these disqualifications and of their severity that he had come to the determination of advising their Lordships to repeal them. His attention had been directed to them by a recent decision in the Court of Exchequer; and he proposed not only that those disqualifications be repealed, but that the individual who was recently declared by that Court to have incurred them, should be included by name in the Bill for their repeal. He begged to state that he had had no communication with that individual, nor, indeed, with any other person on this subject, until he came down to the House that eyening. It might be said, that with respect to that Gentleman, his act was wilful and deliberate; that he knew the consequences of it; and that he ought not to complain of the severity of a punishment brought on him by his own rashness and want of care. But such of their Lordships as were acquainted with the facts of that case, must have seen that his sole object, after the various discussions on the subject in the House of Commons, was to place his case in such a position that it might be brought before a legal tribunal, for the purpose of obtaining the opinion of a court of law thereon; and he thought that if their Lordships referred to the decision of the Court of Exchequer, they would be satisfied that that was his sole object, and that he had conducted himself throughout with as much propriety and decorum as was possible, consistently with the object he had in view. It had not been said that the course which he had taken was either frivolous or vexatious—nor could anything of that kind well be said; for when his case was in the House

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of Commons, some lawyers of the highest learning and eminence had expressed themselves decisively in favour of his right; and when it was before the Court of Exchequer, one of the Judges, a magistrate of great eminence and learning, had given his judgment in favour of the defendant. Under such circumstances, then, their Lordships might think it not improper to include this Gentleman in the provisions of a Bill for the repeal of the disqualifications. Independently, however, of that case, and acting solely upon the consideration of the general question, he (Lord Lyndhurst) had prepared a short Bill on this subject, and, if he were encouraged by the voice of their Lordships, would lay it upon the table, and hope for their concurrence in a measure of this charitable description.
Bill to repeal certain Disabilities imposed by the First of George the First, chapter 13, presented.
LORD CAMPBELLheartily rejoiced at finding his noble and learned Friend placing such a Bill on the table. It was a Bill which reflected great credit on his noble and learned Friend; and it came gracefully from him, who had on other occasions brought forward other Bills of great liberality for the relief of members of the Jewish persuasion from legal disabilities. There was no doubt that the disqualifications to which his noble and learned Friend had referred, were a discredit to the age in which we lived; they were the remnants of the barbarous prejudices of former times, in which the man who had incurred the penalties of a prœmunire carried about with him a caput lupinum, and might be knocked on the head with impunity. The pecuniary penalties, according to his noble and learned Friend's proposition, were still to remain; and, therefore, if the Jews were to be excluded from Parliament, these disqualifications were unnecessary, as the penalties would be sufficient to prevent a repetition of the offence. He only regretted that his noble and learned Friend had not gone further than he had done in his proposition, and had not included in his Bill provisions to enable persons of the Jewish persuasion, when elected to represent the people, to take their seats in Parliament. That would have been the crowning glory of his noble and learned Friend's career; and he trusted that having attained within a step of that eminence, his name might yet go down to posterity as the emancipator of the Jews.
The EARL of DERBY: I hope the ex-
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ample set by the noble and learned Lord opposite (Lord Campbell) will not lead your Lordships to deviate from the real question under consideration into a discussion on the general merits of the question of the admission of the Jews to Parliament. The noble and learned Lord has spoken of this measure as if it had been brought forward as a Bill specially and exclusively confined to the case of the Jews. But it is no such thing. It is quite true that the occasion which probably suggested this alteration of the law to my noble and learned Friend (Lord Lyndhurst), is the ease that has arisen relating to a Gentleman of the Jewish persuasion, who, under a misapprehension of his legal rights, attempted to take his seat in Parliament without taking the oaths prescribed by law. But the existing penalties are by no means applicable exclusively to Jews, but to all persons who, without taking the necessary oaths, presume to take their seats and vote in either branch of the Legislature. The remedy of my noble and learned Friend, therefore, although prompted by a special case, goes generally to the removal of these disabilities, and is not confined to the narrow object which the noble and learned Lord opposite seems to suppose. I am quite ready to acknowledge that where penalties are extravagantly severe, their tendency is in most cases to defeat themselves; and I cannot deny that the penalties attached to this specific Act, involving all the consequences that have been stated, and which can only he averted by the intervention of the supreme authority of Parliament, appear to be at variance with the character of the penal legislation of this day, and to be altogether disproportionate to the offence—which, by the way, is not a slight offence, namely, that of presuming to sit in Parliament without the proper qualification. Nor am I prepared to say that the pecuniary penalties which my noble and learned Friend proposes to leave untouched, would not afford sufficient protection against the commission of the offence; because this pecuniary penalty does not attach to a single offence, but attaches to every separate vote given either in this or the other House—thus throwing around the law the shield of a very severe and heavy punishment where its violation may be persevered in. At the same time, I think there is always some inconvenience in discussing general principles arising out of a particular case. Although I do not complain of my noble and learned Friend for introducing a

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Bill based on general grounds—for I am sure that no more fitting person could be found to discharge such a task—still, I think it is a little unfortunate that the subject should be brought under discussion at the very moment when the question to which the Bill refers has not been settled, but is now actually pending. And as the noble and learned Lord has adverted to this specific case, I think it right to state what has occurred with regard to it, in order to show the views that have been entertained with respect to it by Her Majesty's Government. About a week ago I received an intimation from the Gentleman to whom reference has been made (Mr. Salomons), requesting the Government forthwith to bring in an Act of Indemnity setting him free from the whole of the penalties except those of a pecuniary nature; that is, from all the penalties which the present Bill is designed to do away with. I stated that it was a subject on which I could not give a hasty answer—that it was necessary I should bring it under the consideration of my Colleagues. We did take it into consideration, and by their direction I made a communication to that Gentleman to the effect that, before bringing in any Act of Indemnity, I thought it very desirable to know if the question was to be taken as being definitely settled by the judgment of the Court of Exchequer. The answer I received complained of the apparent restriction that was sought to be put upon the Act of Indemnity, but still prayed for the introduction by the Government of an Act of Indemnity for his particular case. I have not the correspondence now by me, but I am quite sure I am accurately stating the substance of it when I say that the answer of the Government was to this effect, that, looking to the circumstance that the question was raised partly for the determination of a point of law, and also that the Court to which it was referred was not unanimous, and consequently that the proceedings could not be considered as frivolous on the part of the person who, I will not say referred the question to the Court, but in consequence of whose conduct it came before the Court, that Her Majesty's Government were of opinion that, on the case being closed, that Gentleman would be fairly entitled, upon a representation of his case to Parliament, to an Act of Indemnity; but at the same time that we were of opinion—and I do not think the proposition was an unreasonable one—that some steps should be taken by the party who al-
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leged himself to be aggrieved, such as the laying his case before Parliament, and praying it by petition to pass an Act that would absolve him from the penalties to which he had subjected himself. But there stood this other difficulty in the way, that there still remained an appeal from the jurisdiction of the Court below to the Judges of the Exchequer Chamber; and, again, that a further appeal might thence be carried to your Lordships' House. We therefore felt that there would be some difficulty in introducing an Act of Indemnity to protect a person from consequences that had not accrued, but only might accrue; and that until the question of law was decided either by his abandoning all further appeal, or by the appeal going against him, there would be no sufficient ground for bringing in a Bill to avert consequences from him that might never really attach: for in the event of his appealing, and the judgment already given being set aside, then cadit questio, and no indemnity would be necessary. And although, on the other hand, it is quite true that from the moment that the original judgment of the Court of Exchequer is entered up, the penal consequences would accrue, yet they would be held in abeyance, and not capable of being put in force till the final judgment of the Court above had been pronounced. For these reasons, looking at the general question, and not merely to the specific case to which my noble and learned Friend has adverted, the Government were of opinion, that if the defendant presented a petition to Parliament, stating grievances that had actually devolved upon him, and not grievances which he contemplated on the possibility of an adverse decision, under the circumstances he would be entitled to an Act of Indemnity. But I hope your Lordships will not think—I am sure nothing was farther from the wish of Her Majesty's Government—that we have shown any indisposition to listen to the fair case of the claimant, if we have required in the first place that the indemnity asked for should not be against a merely contingent, but against an actual evil; and further, that, if an Act of Indemnity is to be passed, that it should be introduced upon the ground of an application to Parliament on the part of the individual in consequence of whose act the apprehended consequences have arisen, and who, in the event of the existing law being allowed to take its course, would be liable to suffer. I have

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thought it convenient, my Lords—as the noble and learned Lord has referred to this particular case—to state the course which has been pursued by Her Majesty's Government with regard to it. I offer no opposition whatever, as a general measure, to the Bill which he now proposes to lay upon your Lordships' table; and I think that the pecuniary penalties attaching to the offence in question will probably he sufficient to prevent its repetition, or at all events, if there should be a repetition, that they will form a sufficient punishment.
LORD LYNDHURSTobserved, that he had had no communication with Mr. Salomons on this subject. His Bill was entirely a general measure; though no doubt it was true that it was the hardship of the punishment inflicted upon that Gentleman for having voted in Parliament without taking the oaths that had induced him to bring it forward.
The MARQUESS of LANSDOWNEhoped that, notwithstanding the observations of the noble Earl at the head of the Government, the noble and learned Lord (Lord Lyndhurst) would not postpone this measure, but would bring it forward at once, independently of allusions to the case of Mr. Salomons. That case involved two descriptions of penalties. One of them comprised pecuniary penalties, which would still impend over the heads of all offenders against the statute of George I. notwithstanding this Bill. The other comprised disqualifications which were objectionable in themselves, which it was barbarous to retain, and which, it was a matter of astonishment to all, should still be allowed to disfigure our Statute-book. No one had expressed a desire to retain them, and yet they were left hanging over the heads of individuals, not only over those who knowingly offended, but also over those who inadvertently, as many did, transgressed against that statute. The absurdity of that statute was sufficiently exposed when it was shown that the Government was ashamed, ay, and did not dare, to execute it. He would also add that he did not understand his noble and learned Friend behind him (Lord Campbell) to mix up the general question of Jewish disabilities with the question then before the House. His noble and learned Friend had only expressed a hope that Lord Lyndhurst would carry his benevolent intentions further than he had carried them in his Bill; but he had not mixed up this Bill, which was for
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the general relief of Her Majesty's subjects, with the exclusive relief of the Jews. He therefore hoped that their Lordships would proceed with this Bill without delay.
The EARL of DERBY: The Bill of Indemnity which Mr. Salomons required was not to relieve him from pecuniary penalties, but from certain severe disqualifications to which he was supposed to be liable. He was of opinion that such a Bill of Indemnity ought not to be granted until the legal question was finally settled—for it might turn out that a Bill of Indemnity was not at all required.
LORD CAMPBELLobserved, that the noble Earl at the head of Her Majesty's Government objected to granting a Bill of Indemnity to Mr. Salomons on the ground that that Gentleman was assuming that he had incurred certain severe liabilities and disqualifications which were not yet fixed upon him by the final Courts of Appeal. His noble and learned Friend opposite thought that Mr. Salomon's object would be equally attained if he made this Bill retrospective to the first of January, 1851. The general question of the emancipation of the Jews was quite distinct from the particular question raised under this Bill. If Mr. Salomons should appeal from the judgment of the Court of Exchequer to the Exchequer Chamber, it would be his (Lord Campbell's) duty to preside over that tribunal. It was not, however, irregular for him to express his opinion on this subject in his place in Parliament. When he was in his Court he should have to examine and declare what the law was; not, as in that House, to declare what, in his opinion, it ought to be.
The EARL of WICKLOWcould not avoid taking this opportunity of reminding their Lordships that there were other members of the community besides the Jews who had conscientious objections to the oaths prescribed by Parliament; and so strong did those objections appear to Her Majesty's late advisers, that they had brought in a Bill for the purpose of relieving them. In the present Session the noble Lord lately at the head of the Government (Lord John Russell) had himself brought forward a measure on the subject, and it was only in consequence of the change in the Government that that measure was not now persevered in. He (the Earl of Wicklow) hoped that Her Majesty's present Ministers would take into consideration that there were Members of that House who were precluded from taking

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their seats in it by their conscientious objections, and that they would consult the feelings which prevailed very generally throughout the country on the subject.
Bill read 1a.
House adjourned to Thursday next.