Lords Sitting of 21 July 1857

MINUTES.
PUBLIC BILLS.—1a Transfer of Real Estate Simplification; Reformatory Schools; Attornies and Solicitors (Colonial Courts).
3a Crowded Dwellings Prevention; Turnpike Trusts Abolition (Ireland); Transfer of Real Estate Simplification.

TRANSFER OF LAND.

  BILL PRESENTED AND READ, 1a.
  LORD ST. LEONARDS, in rising to draw attention to the measures proposed for facilitating the transfer of land, and to lay on the table a Bill for simplifying titles to land, said that every owner of property must feel deeply interested in the subject. What their Lordships were desirous of accomplishing, as far as he understood it, was to unite the simplicity of the common law of the transfer of property with the benefits in the complications which had been introduced in later times in the ordinary settlements

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  of property. The problem to be solved was whether that could be done. He believed it would be found quite impossible to avail themselves of common law simplicity of transfer, and at the same time to preserve that power which this beyond all other countries enjoyed—namely, that of settling property upon their children, of providing portions for their younger children, of giving power to sell, exchange, or lease that property, and at the same time to retain to themselves (the settlers) the ownership of that property during their lives, without any man interfering with that power. There was no other country which possessed the same power; there was no other country in which a man could settle his property upon himself and upon his family, and yet enjoy that property without impediment during the whole of his life. The question had been raised in the Report of the Royal Commissioners, to which he should presently draw their attention, whether, if there were any incongruity between the marketability, as it was called, of estates and that right of settlement, the latter should give way. It was said that there was no incongruity, and that even if there were, looking at the old rule of law which required that there should always be a tenant in possession to answer the feudal service, and considering that that was a necessity required under the feudal law, the spirit of commerce now required for its own purposes that there should always be a representative of the fee of every man's estate, to enable him to carry it into the market. That idea had been carried so far that it was proposed that a certificate of title should be as negotiable as a bill of exchange, but he trusted that no title to land would ever be put on that footing. There was an essential distinction between real and personal estate which it was impossible to remove. The owner of a quantity of stock, if he required a sum of money for a given purpose, had only to sell a part of his stock; whereas the owner of real estate could not sell off a part of the property, but must raise what money he wanted by mortgage upon the whole of the estate. In the case of land, therefore, as the owner went on borrowing the encumbrances increased, and the difficulties of transfer necessarily increased with them. If, then, they preserved to the owners of land the power of dealing with it in the manner he had described, it was impossible they could extend to land the same facilities for immediate and simple
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  transfer as existed in regard to the sale of stock or shares. The common law applicable to this subject was simplicity itself. No land could be transferred at common law without a charter of infeoffment and livery of seisin where the possession was vacant, or where there was a tenant in possession, a deed of grant with the attornment of the tenant. Having described the formalities incident to the delivery of seisin, the noble and learned Lord referred to the expedients formerly adopted by those who wished to dispose of their land secretly and not to make their titles public. The practice grew up of leaving the legal right to an estate in one man and the beneficial interest in another. Hence the doctrine of uses. Many statutes were passed in early times to meet the evils which this system engendered, and finally a statute was passed in the reign of Henry VIII. to restore the principle of common law; it was provided that where one man was seised for the use of another the seisin of the man so seised should go to the person who had the use. Another Act was passed requiring all bargains and sales of the freehold to be enrolled. The intention was to have a legal tenant only, and to allow the property to be transferred solely by deed enrolled. But this statute, however wisely designed, literally fell to the ground, and it had no other operation than as a simple mode of conveyance. By an ingenious contrivance the principle was transferred, by a deed executed in chamber, without the necessity of livery of seisin, of attornment, or of enrolment. What were in old times called uses became the same as trusts, and equity executed those trusts which could not have effect given to them by law as uses. This result should teach the Legislature how vain it is to attempt to run counter to the general wish and determination of the people. Men were determined to transfer their estates privately, and to vest the legal estate in one person and the beneficial interest in another, and this they accomplished in direct opposition to a statute which intended to abolish uses and to require transfers of estates to be enrolled. In regard to the safety of purchasers both the Judges and the Legislature were in every period anxious to protect them. Many ancient rules of property law were said by the Judges to have been instituted to protect the rights of purchasers. Several statutes were passed to protect purchasers from fraudulent deeds. So great was the anxiety of men to secure their right to

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  their landed possessions that, in order to obtain a good title, it was not an uncommon thing for a person to raise an action at law with a view to bring his title before a court, and then to compromise the matter with his antagonist. This plan of levying fines used to be a great protection to purchasers, because every man having a present right must have claimed it within five years after proclamation, or, having a future right, within five years after he became entitled, or be debarred from it for ever. However, the system of fines had been swept away by legislation. The protection afforded by terms of years had been also removed, as it led to expense in conveyancing and on soles, and in other respects caused great difficulty and dissatisfaction. He must ask the House to bear in mind that by recent acts of the Legislature purchasers have been deprived of the speedy means of barring adverse rights by a fine with proclamations, and also of the protection from concealed encumbrances still in force, which was afforded by an old term of years, assigned to a trustee for the purchaser to protect and defend the inheritance. The courts of equity had established a rule very conducive to honest dealing, but which led to a great difficulty—viz., the doctrine of notice. If a man had notice of an equitable right at the time of purchasing an estate, he was not to be defended against that right. Where a notice was express, few would desire to see the law altered. But courts of equity held that an implied notice was just as powerful as an express notice, and he could give their Lordships many instances of the injurious extent to which the doctrine of implied notice was sometimes carried against a purchaser. The legal difficulty that pressed most heavily upon purchasers was the possibility of concealed settlements. From his large experience, however, he could say with confidence that a concealed settlement very rarely occurred, and yet to guard against such cases great and permanent injury was sometimes inflicted. Then, if a suit in equity were pending relative to an estate at the time of its purchase, the purchaser, although he might not know of the suit, was bound by everything that took place in that suit, upon the ground that every man was supposed to know what was taking place in a court of justice. And yet a decree which finally settled all rights is not deemed implied notice. At this time of day nothing would be more absurd. The expense of making out a title to land proceeded
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  in a great degree from the circumstance that men were indisposed to place confidence in the respectable legal advisers by whom an abstract of title might but a few months previously have been investigated for the person from whom the purchase was about to be made. If men were to place more reliance upon the abstract thus prepared for the party by whom the sale was effected they would be under no necessity of consulting legal advisers of their own, and a considerable outlay would thus be avoided. He might add that he himself, acting upon that principle, had sold several lots of land with respect to which he had declined to enter into any contract for title with the purchasers, and had simply presented them with the abstract of title which he himself had originally obtained, and on the faith of which he had purchased the property, and the purchases were all completed without delay, and without putting him to a shilling of expense. But it was urged that there might be concealed encumbrances to which lands were liable, and in order to obviate the injustice to which the want of knowledge that such encumbrances existed might give rise, it had frequently been proposed that a system of general registration should be adopted. The promoters of that scheme, however, had never been able to carry it into effect, and he must, for his own part, say, that any such plan would be likely to be productive of much greater mischief and expense than the law even as it now stood. The subject was one which a Commission had been appointed to consider, and, if he were at all disposed to object to the recommendations which were embodied in the Report of that Commission, he begged at the same time to assure their Lordships that nobody could entertain a higher respect for its members, of whom his right hon. Friend (Mr. Walpole) was at the head, or for the ability and learning by which the Report was characterized. The last Bill for establishing a general registrar went down from this House shortly after his noble and learned friend on the woolsack took his seat there and was introduced by him. The same Bill had in a former Session or two passed this House. When last introduced he had the misfortune to differ from all his noble and learned friends. But in the other House, the Bill met with no favour, and a Commission was issued to consider the subject. It is a simple question of profit and loss. The establishments, maps, &c.—for after all there were

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  to be maps although the Commissioners report against them—would cost millions. The maps for the tithe Commission have already cost £2,500,000. Let noble Lords bear in mind that whatever share of the expenses may fall on any individual, the landed interest, as a body, must bear the whole of the vast expense of the proposed register if established. The Report of the Commissioners advocated the adoption of what was called a register of titles, under the operation of which system it was provided that there should be always upon the register of lands a registered owner, who was to have the power of selling or mortgaging the estate. Now, a person wishing to have his name placed upon the register, in accordance with the plan which he had just mentioned, but who did not feel satisfied with his title and was anxious to secure it, would be enabled to do so by means of an officer of the Crown, who would be empowered to examine into the title, and, if he considered it to be correct, to insure it. He (Lord St. Leonards) however, should contend that it is extremely inexpedient that the Crown, through its officer, should be able to secure to a man his title to property upon that which, after all, could amount to nothing more than an ex parte statement. The effect of the Report in that respect would be, that in the case where an estate had been thus insured a rightful owner to it might appear; but, as the Crown had already insured it to another person, that person would keep the estate as purchaser, and the real owner would be compensated in money. Now, that was a system of which he certainly could not approve. A person registered as owner of the fee and not buying a title of the Crown would of course still be subject to all the objections which might be made to his prior title, and would upon a sale have for a long period to deduce his prior title in the usual way. Another effect of the proposal of the Commissioners would be to strike at the root of all settlements for family purposes; for, from the very nature of the case, no settlement could ever find a place on the registry. In order to guard against fraudulent sales a system of caveats had been invented, by which the person who was put upon the registry might be prohibited from acting as owner of the property until the caveat had been disposed of, either by order of the Court of Chancery or in some other way; but the result of such a system would be in every case of a settlement to call in the aid of the Court of Chancery,
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  thereby greatly adding to the expense. The real history of the transaction was that, in order to render land saleable with as great facility as stock or railway shares, it was proposed to sacrifice all the advantages derived from the power of making family settlements. Again, in addition to its being impossible to include settlements in registrations, the effect of the registration would be to take away the authority of exercising powers created under the settlement; for if the whole fee simple of an estate was vested in the person who was registered, it was impossible that any one else could concurrently claim the exercise of any powers connected with that estate by settlement, so as to carry the legal estate. The charges, that is the mortgages of the registered owner and his leases might be registered, but not the charges or leases of the real owners under a settlement. If even a volunteer got upon the register as owner, he might sell and make a good title. As between a registered owner not having the beneficial interest and the persons entitled to it, these charges would bind him and might be enforced in equity; but if he sold or mortgaged, all rights would be barred and the real owners would have only a personal remedy against the registered owners. Johnson tells us that "sham" is a vulgar word, but still he must say this plan of placing a stranger on the register as the real owner is a sham, and yet with a terrible reality, for this sham owner may sell or mortgage the estate. Let any noble Lord imagine his estate to stand in a public registry as the property of Thomas Jones or William Smith, and his own rights and those of his family under his settlement ignored. Registration was not to be compulsory in the first instance, but if once on the register, the plan would for ever find the property. No man on the register as owner of the fee could make a settlement entitling the parties to be placed on the register without transferring the legal fee to some person to be registered as owner. If he were left on the register as owner, he would be able to sell or mortgage as owner notwithstanding his settlement. A caveat could no doubt be entered, but this might not be agreeable to the settler and none would like to show any distrust in him. Estates already in settlement can take no benefit from the proposed register, for the first person registering must be seised in principle. The system, also, would prevent persons purchasing land for purposes of

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  speculation as tenants in common, for the registrar would say that there must be no division, and the land must be held subject to survivorship. The Report of the Commissioners had been laid before Parliament, and his noble and learned friend (Lord Brougham) had introduced a Bill which, to a certain extent, carried out the system of registration. This Bill was admirably calculated to try the system. It began with dividing any county in England and Wales and establishing districts in every division. Buildings, maps, and all other requisites were provided for on a large scale, with of course powers to borrow money. There was to be a chief register in London, and a recorder in every division, and a registrar in every district, and also a treasurer, with powers to appoint deputies and with retiring allowances, and all were to have the necessary aid of secretaries, clerks, messengers, and other officers. As regards the establishments everything was perfect. As regards the plan of the register it had all the vices of the plan of the Commissioners with some variations, of which he could not approve. The noble and learned Lord was proceeding to comment upon the plan in Lord Brougham's Bill, when—
  LORD CAMPBELLsuggested that it would be better to wait until the Bill was explained by its author in moving its second reading.
  LORD BROUGHAMwas much flattered that his noble and learned Friend should take the trouble to explain his Bill, to which he would, no doubt, except in one particular, do more justice than he could himself. The only objection was that his noble Friend would accompany his explanation with an answer at each step, and it would be most inconvenient if ho (Lord Brougham) were to get up and reply to his noble Friend's account of this Bill.
  LORD ST. LEONARDSwas under stood to accede to the suggestion of the noble and learned Lord and to desist from any further reference to this measure. The noble and learned Lord proceeded to explain the provisions of a Bill of his own for facilitating the sale and purchase of land, which he concluded by laying on the table. He said that his plan was to avoid the necessity of establishing a register, and to facilitate sales by simplifying titles an giving to purchasers further protection to supply that which they have lost by the abolition of fines and of attendant terms. In the first place, he proposed to limit the rule as to creating a perpetuity, and no
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  longer to allow lives in being and twenty-neo years as a term in gross to be taken as the limit. That term of twenty-one years and the time for gestation were allowed originally by analogy to the common limitation to one for life, remainder to his unborn son, for until the birth and majority of a son the estate would be inalienable, and he proposed to restore the true rule, and thus to prevent any unnecessary creation of a perpetuity which of course prevented all alienation. His next proposition was, that a bona fide purchaser's title should be unimpeachable after twenty-five years. At present he may be attacked within forty years. The twenty-five years is a great advance upon the five years allowed in the reign of Henry VII. It would cover the right of any issue under a concealed settlement. But in order to effectually guard against any such wilful concealment, and against any falsifying of a pedigree, he proposed to make such acts, whether by the seller or his solicitor, or agent, a misdemeanor punishable by fine or imprisonment, or both, and yet to preserve to the purchaser his right to recover damages from any loss which he may sustain. These provisions would justify him in proposing what would be a great boon to both sellers and purchasers, viz., confining abstracts of title to forty years instead of, as at present, extending to sixty years. Sixty years was the limit for recovering an estate under the old statute of limitations, and when the time was reduced to forty years under the new statute he thought that in general abstracts of title might be reduced in like manner. But the contrary was held, as under some settlement a life estate might endure for more than forty years. He proposed, however, that the Court should have power to enforce the production of an earlier title if there should be reason to suppose that some settlement, or will, prior to forty years may have been executed, which might prejudicially affect the purchaser's title. Judgments, crown debts, and the like, although now brought into one register, which is a great saving and safeguard to purchasers, yet still find the estate in the hands of a purchaser and therefore must be discharged, Now he would leave to judgment, &c., creditors all the rights which they now possess until the estate was conveyed to a bona fide purchaser for value. This would at once induce creditors to execute their judgments and relieve purchasers from considerable difficulty. As a seller would get the value

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  for the estate, the creditors would have a better chance of the payment of their debts. As he had already intimated, he proposed not to make a lis pendens binding on a purchaser unless he have express notice of it at the time he purchases. And as regards notice generally he proposed that no bona fide purchaser for value should be bound by any other than express notice, the disregard of which would amount to a fraud, of any charge, or any other act, matter, or thing, affecting the title to the estate purchased. It remained only to provide that trustees for sale should always have a power to give receipts for the purchase money, and to enact that no purchaser shall be bound to pay or tone to the payment of succession duty not charged on himself; with these observations he moved that the Bill be read a first time. The noble and learned Lord then presented a Bill to simplify the Transfer of Real Estates, and to relieve Purchasers, and moved that it be read 1a.
  THE LORD CHANCELLORsaid, there was no Member of their Lordships' House more entitled than his noble and learned Friend to call attention to this very important and very difficult subject. With all branches of the law, but more especially with this, he was pre-eminently conversant, and their Lordships and the country owed him a deep debt of gratitude for laying this Bill upon the table. Having said thus much, he (the Lord Chancellor) hoped his noble and learned Friend would not think him wanting in courtesy if he did not presume or pretend to give any opinion upon the details of the measure. To say the truth, he could not distinctly follow his noble and learned Friend; but, independently of this, it was usual among their Lordships to discuss Bills of this description upon a future stage, when more time had been given for consideration and they were better able to form an opinion on their details. He should stop here if it were not for the allusions made by his noble and learned Friend to the Report of the Royal Commission, upon which subject he thought there was some little misunderstanding on the part of his noble and learned Friend. It would be in their Lordships' recollection that in 1853, very soon after he had had the honour of receiving the Great Seal, he brought in a Bill for the Registration of Assurances. That Bill was much discussed by their Lordships; it was opposed by his noble and learned Friend; but ultimately, went
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  down to the other House, where it was referred to a Select Committee, who thought the subject of such importance that they recommended the appointment of a Royal Commission to inquire into the whole subject of registration of titles. The recommendation was thought by the Government to be a reasonable one, and a Commission was therefore issued. The very learned persons of whom it was composed, directed their attention to this subject from the beginning of 1854 until the busy time of the present year, when they made their Report. Upon receiving this Report he was not ashamed to say that, although he read it through, he could not, consistently with his other avocations, pretend to make himself master of its details or of its various bearings; and he thought that if anything was done with regard to so complicated a subject it must be in another Session of Parliament. Before this Report was made he had framed the heads of a measure extremely small with reference to the subject considered by the Committee, but which he thought would lead to extremely beneficial results. One of the great impediments in the way of the transfer of land arose from previous mortgages or transfers made—sesecret transactions of which the purchaser could not easily become cognizant. His Bill had for its first object to replace the complicated form of modern mortgage by a simple deed received by the lender from the borrower something to this effect:—"I have borrowed £5,000 which is to be repaid on such and such a day, with such and such interest, and is to be charged in favour of the lender upon such and such lands," describing them as shortly as possible. Then, in order that no man might lend his money upon lands which were already charged, he proposed that, in lieu of the cumbrous machinery of a register-office, these charges should be in the simplest possible form, registered in the Court of Common Pleas, where judgments were now registered. Then he proposed that judgments as a mere security upon land should in future be done away with; anybody who wanted security would take it in the form of one of the mortgages he had described; and, if the money were not paid at the stipulated time the mortgagee would have the power to sell the land just as he had at present. This was certainly a small measure, as compared with the large scheme contemplated by the Commission, but he did not like to lay it before

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  their Lordships pending the consideration of the Report, or until it was seen whether anything was to be done with respect to that Report. On this subject he thought his noble and learned Friend was mistaken as to what had occurred in the other House of Parliament. He did not mean to say that the Government might not in the next Session of Parliament act upon the Report of the Commission, though they would not be justified in doing this until it was better understood. Long before the Commissioners made their Report he had a communication with one or two of them, and stated that he thought their Report would be extremely imperfect and of very little value unless it were coupled with a Bill to show how their Report could be carried into practical effect; and therefore he had no doubt that the announcement of his hon. and learned Friend the Attorney General, in the other House of Parliament, referred to that Bill. He thought that it was extremely proper that the Attorney General, not so much the organ of the Government as of that Commission, should lay upon the table of the House a Bill, by way of appendage to the Report, showing how it could be carried into effect. That was all that he knew of any Bill which had been introduced by the Attorney General on this subject. He did not profess to follow his noble and learned Friend throughout his very able statement. It was of great importance that their Lordships should discuss the subject, but he did not feel that he could do more at the present moment than express his thanks to his noble and learned Friend for the pains he had taken in framing a measure which he (the Lord Chancellor) trusted might prove to be a useful measure. or which might at all events serve as a useful suggestion in some future Session of Parliament. He would therefore simply confine himself to putting the question that the Bill be now read a first time.
  LORD BROUGHAMthanked his noble and learned Friend for the attention which he had bestowed on the subject, and for having introduced the Bill.
  LORD CAMPBELLsaid be would content himself by entering his protest against what his noble and learned Friend had said against a general system of registry. He entirely agreed with his noble and learned Friend that unless it could be shown to be profitable to the landed interest the question of a general registry ought not to be debated; but, instead of
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  its being a burden upon the land, his belief was that it would be one of the greatest reliefs to it. It would simplify the transfer of property beyond conception. It had answered well in Scotland, in the Colonies, and in every country in which the experiment had been made. In no country where there had once been a registry established had it been abandoned. His firm belief still was, that until they resorted to that they could not lay a foundation for the improvement of the law of real property.
  Bill read 1a.

  SALOMONS v. MILLER.—RIGHT OF JEWS TO SIT IN PARLIAMENT—QUESTION.
  LORD CAMPBELL: My Lords, I rise, in pursuance of the notice that I have given, to ask my noble and learned Friend on the woolsack what is the present state of an appeal, of very great importance, which has been pending for some years in your Lordships' House—namely, the appeal of Salomons v. Miller. I am sure that it is not owing in the slightest degree to any default in my noble and learned Friend on the woolsack that this appeal has not been disposed of. But it is one of great importance, because upon it depends this most important and interesting question—whether, according to the existing state of the law of England, Jews may lawfully sit in Parliament. In the year 1851, Mr. Salomons, a gentleman of great accomplishments, of high honour, and whom I am pround to call my friend, was returned to Parliament for the borough of Greenwich. [Lord BROUGHAM: You may call him your learned friend]. And, as has been suggested by my noble and learned Friend, I may call Mr. Salomons my learned friend, because he is an ornament of our profession. He was called to the bar, and I am sure he would have been greatly refreshed and delighted by the discourse which has been delivered this evening by my noble and learned Friend opposite (Lord St. Leonards). Being of the Jewish persuasion he objected in the House of Commons to take the oath of abjuration according to the form which the statute prescribes. He would only take and subscribe to that oath by leaving out the words "upon the true faith of a Christian." The Speaker of the House, I believe, very properly intimated to him that under those circumstances he was not en entitled to sit and vote in the House. But Mr. Salomons

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  formed a different opinion upon the law, as he was entitled to do, and he sat and voted without having taken the oath in the manner prescribed by Act of Parliament. To try that question, an action was brought against him for penalties, the Legislature having enacted that any Member of Parliament who shall presume to sit or vote without having taken the oath in the manner prescribed, shall incur for each breach of the enactment a penalty of £500. That action was brought in the Court of Exchequer. There was what is called a special verdict, by which the jury found the simple fact of his having taken the oath in the manner that I have described, leaving it to the court to say whether he had incurred the penalty or not. That special verdict was solemnly argued before the Court of Exchequer. Three of the Judges were of opinion that he had incurred the penalties, and the fourth Judge dissented; the great question being whether "on the true faith of a Christian" was the mode of taking the oath, or a part of the oath—of that which was to be sworn to. There being a majority of the court against Mr. Salomons, judgment was pronounced against him. He then appealed to the Court of Exchequer Chamber, consisting for this purpose—the appeal being from the Court of Exchequer—of all the Judges of the Court of Queen's Bench, and all the Judges of the Court of Common Pleas. That appeal came on to be heard in the year 1853. It was my duty to preside as Chief Justice of the Court of Queen's Bench. We heard it elaborately argued, and I, for one, formed my own opinion. I was clearly of opinion that the judgment of the Court of Exchequer was right. In both Houses of Parliament I have voted for the admission of Jews to Parliament. I thought that the law by which they were excluded was unjust, and I have therefore, on all occasions when the question has been introduced, voted for their being admitted constitutionally and lawfully. But sitting as a Judge, in which capacity I had not to make but to declare the law, it appeared to me that the arguments of the three Barons who decided against Mr. Salomons were unanswerable, and that it really was the intention of the Act of Parliament, when read and fairly construed, that no person should be allowed to take that oath except in the manner which is prescribed by the Act of Parliament. And I was above all induced by this consideration—that both Houses of Parliament had
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  repeatedly put the same construction upon that oath; for early in the reign of George I. they parsed an Act in favour of the Jews, with respect to particular purposes, releasing them from swearing "upon the true faith of a Christian," where it was thought that that might be permitted. And, my Lords, I myself had proposed a Bill under which Mr. Salomons became sheriff of London,—which would have been wholly unnecessary if the words objected to were not a part of the oath. That Bill met with the approbation of both Houses of Parliament. I was Attorney General when I proposed that Mr. Salomons should be allowed to be Sheriff for the city of London. My noble and learned Friend who sits opposite (Lord Lyndhurst) did what I did not venture to do, because it was with some difficulty that the Bill to allow a Jew to fill the single office of sheriff was allowed to pass; but my noble and learned Friend brought in a Bill, which I rejoiced to have the honour of supporting, whereby Jews were enabled to hold all municipal offices of whatever description. And that met with the approbation of the Legislature. Now, these Bills would have been wholly unnecessary if a Jew could have taken the oath of abjuration without the words "on the true faith of a Christian;" and therefore the Legislature by passing those Bills clearly declared their opinion that, as the law stood, wherever the oath of abjuration must be administered, it must be taken in the form prescribed. My Lords, all the learned Judges assembled (both of the Court of Queen's Bench and of the Court of Common Pleas) concurred in the view that I have stated. And so clearly were we of that opinion that, after having heard the question elaborately argued on one side in support of the appeal, we thought it unnecessary to hear the other side; because we were convinced, by the judgments of the three Barons of the Exchequer, and I may say particularly by the very powerful and elaborate judgment of my noble and learned Friend (Lord Wensleydale), that that judgment was right, and by the unanimous judgment of the Court of Exchequer Chamber the judgment of the Court of Exchequer was affirmed. There was a writ of error brought upon the judgment of the Court of Exchequer Chamber by Mr. Salomons in the year 1854 to your Lordships' House. In the natural course of things that appeal ought to have been decided in 1855. It was not decided, however, in that year,

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  nor in 1856. Indeed, it has not been de-decided up to this hour. It has only been appointed for a hearing. Now, I consider that it is of the greatest importance that that writ of error should either be determined or be dismissed. In the latter alternative the judgment of the Court of Exchequer Chamber would be held to be final. But, as far as I know, no step has been taken for bringing the writ of error to a hearing. In the meantime both Houses of Parliament have acted as if the decision of the Court of Exchequer Chamber were right, for the Commons have refused to allow Baron Rothschild to take his seat in their House without taking the oath according to the form prescribed by statute. More than this, there have been Bills introduced into the other House of Parliament, and sent up to this House for altering the law. When you bring in a Bill to alter the law, is not that a Parliamentary declaration of what the law is? Unfortunately, as I think, the Bills sent up from the other House for the entire emancipation of the Jews have not met with the approval of your Lordships. Yet your Lordships can hardly be blamed for this, because until the present Session there was reason to believe that public opinion was in harmony with the opinion of this House. I trust this House will ever be the rallying point of public opinion; because as long as you have the voice of the country on your side you may safely affirm or reject any proposal made by the other branch of the Legislature. But I must confess I was in hopes that the manifestation of public opinion during the present Session would have led to a different result. The measure was carried in the other House by an overwhelming majority, its supporters mustering a greater number than they ever did before. Gentlemen of great eminence, who are politically connected with the noble Earl opposite (the Earl of Derby), and among others Sir John Pakington, who had previously voted conscientiously against the Bill, voted on this occasion in its favour. I therefore entertained a sanguine expectation that the most powerful arguments of my noble and learned Friend opposite (Lord Lyndhurst) who has distinguished himself so much by his advocacy of this measure, would have prevailed with your Lordships, and induced you to assent to the removal of the Jewish disabilities. The noble Earl opposite (the Earl of Derby), of whose brilliant talent I have the highest admiration, and for
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  whose honourable motives, I have the greatest respect, deemed it his duty to persist in his opposition to the Bill, and it was again rejected. I now expected hat the matter would have stood over till another Session of Parliament; but my attention has been drawn to the votes of the other House, and on looking over those votes I found to my great surprise a notice of Motion to the effect that, whereas Baron Rothschild has declared that the words "on the true faith of a Christian" are not binding upon him, the House of Commons should resolve that the Clerk be instructed to omit those words in administering the oath to him, and that Baron Rothschild be admitted to take his seat by a Resolution of that House—in defiance of what has been done by the House of Lords, and without the consent of the Crown. I should be very slow, indeed, in commenting on what occurs in the other House of Parliament in cases where your Lordships would have an opportunity of constitutionally discussing the question at issue. But if the Motion of the other House to which I have referred should be carried there, it will never come before your Lordships, but will at once be treated by the other House as law. This I regard as a flagrant usurpation. To use the mildest term that I can bestow upon it, I should call it nothing less than a coup d'état, such as is sometimes resorted to in a neighbouring country to bring about a revolution. A law of this description is contrary to all law, because it attempts by a Resolution of a single branch of the Legislature to repeal an Act of Parliament, and to pass a law against the expressed will of your Lordships, and without the sanction of the Sovereign. I hear that it is sought to justify this proceeding by the precedent of the election of Mr. Pease, in 1832, for the county of Durham. Being myself a Member of the House of Commons and a law officer of the Crown in that year, I took an active part in that investigation, and I venture to say that what was then done has not the smallest application to the case now to be considered. Mr. Pease was a Quaker. There was no question as to the manner in which the oath was to be taken. The real point was, whether there were not Acts of Parliament passed by Commons, Lords, and King, by which the Quakers were absolved from taking oaths and from swearing to what appears in the oath of abjuration. It was our opinion, and it is my firm and

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  sincere opinion at this moment, that by two Acts, one of which was passed in the reign of George II., a Quaker was allowed to affirm in regard to all that appears in the oath of abjuration without swearing at all. The language of the statute is so strong, that it admits of no other construction. It declares that wherever any oath is to be taken, the Quakers are absolved from the necessity of swearing, and are allowed to affirm. At the time of the passing of that Act the same arguments were used against the Quakers as are now used against the Jews. It was said that the admission of the Quakers would unchristanize the Legislature. Petitions were presented against the measure, stating that the Quakers were not Christians; and in your Lordships' records protests will be found against the Bill on the ground that they are not Christians because they object to all sacraments, even to baptism, and the Lord's Supper. The Bills exempting the Quakers from swearing were, however, passed; and on that ground, and on that ground alone, Mr. Pease was allowed to affirm, and to take his seat with the unanimous concurrence of the House of Commons. The proceeding was therefore according to law. We then did what we believed the law required us to do. We did not make the matter one of privilege. There was no attempt to alter the law by a Resolution of the House of Commons. It was a simple declaration and determination of what the Legislature had done. There is no pretence, then, for saying that this precedent has any application to a case like the present, where the proposition has been solemnly adjudged to be contrary to law, and where it would be contrary to the decision of one branch of the Legislature, and without the consent of the Crown. Another precedent referred to relates to what took place in this House in regard to life peerages. I do not intend to revive the late controversy excited by that subject; but whether your Lordships were right or wrong in your decision upon that question, that decision has not the slightest application to this case, because in what you did you only exercised a jurisdiction analogous to that which the House of Commons itself exercises when it decides whether a person taking his seat in that House has been lawfully returned. The House of Lords did not on that occasion alter the law, but were guided by it. What then would be the consequence of
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  the course of proceeding now suggested? The Judges cannot stop a Resolution of the House of Commons; but if an action were brought, I, or any other Judge, would be bound to lay down the law as it has been declared by the Court of Exchequer Chamber, to say that the penalties had been incurred, and to direct the jury to find a verdict for the plaintiff. There would be no difficulty in proving the fact. The House of Commons, to do it justice, offered the clearest evidence in support of the action, and every Member of that House would be bound to give evidence, and to explain what had taken place when the oath was administered. I see it has been proposed by some that a Resolution should be passed by the House of Commons, declaring it to be a breach of privilege in any person who should bring an action against a Member of the House of Commons who had been allowed to take his seat without swearing in the manner required by law. My Lords, I have been during the course of my Parliamentary life a strong supporter of privilege. I do not regret the lengths to which I went when there was a controversy upon the question of privilege between the House of Commons and the Court of Queen's Bench. But that was an action for doing that which the House of Commons, in the clearest exercise of its rights, had directed to be done. The House was bound to take up that question, and to deal with it as a breach of privilege. But to declare it to be a breach of privilege to bring an action against a Member of the House of Commons who had violated the law would be perfectly absurd. The House of Commons might just as well resolve that it would be a breach of privilege to bring an action on a Bill of Exchange against the acceptor, or to bring an action of ejectment to recover an estate that had belonged to a man and his ancestors for 500 years; the House of Commons might as well attack the prerogative of the Crown, and resolve that it would be a breach of privilege to acknowledge the appointment of any officer in the army or navy without the previous consent of the House of Commons,—or a breach of privilege to declare war, or conclude peace without their previous sanction. My Lords, if such a course should be adopted, it seems to me that a revolution threatens this country, and that it may lead to the most fatal results. If this contest is wantonly stirred up between the House of

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  Commons and the Courts of law, I, for one, shall not be afraid of the consequences personally to myself. I hope, however, that if the House of Commons should order me to be sent to Newgate or the Tower, the people will rise in my defence and come to the rescue. I am prepared to do my duty. I have, however, great confidence in those who now direct the deliberations of the House of Commons. I have had the honour to sit in the same cabinet with two of the most distinguished leaders of that House, and I shall be very much mistaken if they give their sanction to the passing of such a Resolution. I have, indeed, read of a scheme that certain Members of the other House of Parliament are said to have come to, by which the Prime Minister is to be pressed and urged and almost compelled to agree to such a Resolution; but I have great confidence in the firmness as well as the good sense of the present Prime Minister, and I believe that he will give them a very courteous but very decisive answer, that such a proceeding would be contrary to the law and constitution of the country. My Lords, I have thought it my duty to inquire into the present state of the case of Salomons v. Miller. If the judgment of the Court of Exchequer is reversed upon an appeal to your Lordships' House, I, for one, shall rejoice—I shall rejoice to see the Jews, my fellow subjects, constitutionally and lawfully introduced into Parliament. I believe that there will be no danger from such a proceeding, but that it will take off a reproach under which we now suffer. It is, however, only by Act of Parliament that they can be introduced into the Legislature. I hope the time is not distant when such an Act may be passed, but until then the Jews must submit to the privations under which they now labour.
  THE LORD CHANCELLOR: My answer to my noble and learned Friend's question must be very short. The writ of error in the cause Salomons v. Miller was sent down in 1854, and was to have come on in May, 1855. Nothing, however, was done, and last year an application was made from the plaintiff and defendant praying that the cause might stand over until this Session. [Lord CAMPBELL: That was an application from one party.] My noble and learned Friend may know more about the matter than I do, but the application purports to come from both plaintiff and defendant. On
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  June 15th, in this year, a joint application was again made that the case might stand over for two months. That would carry it until the 15th of August, and it would thus most probably stand over until next Session, as judgment is not likely to be given at that period of the Session.
  LORD BROUGHAMtrusted that no such indiscreet act would be done, or attempted to be done, elsewhere as that to which his noble and learned Friend had adverted. He was no great advocate of privilege, and thought that his noble and learned Friend had carried his advocacy of privilege too far in the question at issue a few years ago between the House of Commons and the Court of Queen's Bench. It hardly seemed credible, but it was on the Journals of the House of Commons, that they had tried, by way of privilege, a right of fishery claimed by an admiral who was a Member of that House. Instead of coming to the Queen's Bench, the Admiral complained of an individual who had interfered with his fishery. The man was summoned and taken into the custody of the Serjeant-at-Arms. He acknowledged his offence, promised not to repeat it, and was dismissed on payment of the fees. The gallant Admiral by this proceeding had obtained, not a verdict and judgment by a court of competent jurisdiction, but a pre-judgement by the House of Commons, proceeding by way of privilege. He trusted that there would be no attempt to push a matter of privilege to such a length on the present question. He very much feared that if the House of Commons made a law by way of Resolution of the kind described, they would expose the person who took his seat under such a Resolution, to great inconvenience, and, he would also say, to very great loss; because, if an individual trusted to the force and sufficiency of that Resolution, every time that he was present in the House of Commons and heard the Speaker put the Question, he would make himself liable to a penalty of £500, from the payment of which he could not escape without something that he abhorred the thought of—a violent conflict between the Courts of Law and the House of Commons.
  LORD CAMPBELLsaid, that with reference to the explanation of his noble and learned Friend, as to the cause of the delay in bringing the writ of error for decision before the House, it appeared that though it was fairly and honestly argued, the plaintiff and defendant appeared to have a close understanding on the matter, and whatever

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  one suggested the other agreed to. With all respect for his friend Mr. Alderman Salomons, he must say that he thought it desirable that the case should be speedily brought to a conclusion.
  House adjourned at Eight o'clock, to Thursday next. Half past Ten o'clock.