Lords Sitting of 4 July 1859

MINUTES.
Took the Oath.—Several Lords. The Right Hon. Robert Vernon Smith, having been created Baron Lyvedon—was (in the usual Manner) introduced; The Right Hon. Sir Benjamin Hall, Baronet, having been created Baron Llanover— was (in the usual Manner) introduced.
PUBLIC BILLS.—2a Petty Sessional Divisions Vexatious Indictments.

COURT OF DIVORCE AND MATRIMONIAL CAUSES.

  RETURNS MOVED FOR.
  LORD BROUGHAMsaid, be rose to call their Lordships' attention to a very important subject—namely, the working of the Court of Divorce and Matrimonial Causes, which had come into operation at the beginning of last year. They now had the experience of last year, and part of the present year, of the working of that Court, and it was highly expedient that their Lordships should direct their attention to the result. If an error in legislation has been committed either by going in a wrong direction, or by going too far, or by not going far enough, in any measure of law improvement, it became them to relax their speed, or to quicken it, or to alter their course, and seek to move in the right direction, and no shame should ever be felt to acknowledge an error. He rejoiced, however, to say that the result of the experience in that Court was not, that any error whatever had been committed in establishing the new jurisdiction, and all that was predicted by those who maintained the experiences, and even the necessity of that transfer of the power of divorce and of the power of judicial separation to a judicial tribunal had proved to be true, and the Court had been productive of great relief to many persons. He did not mean to say there were no defects in the working of the Court—quite the contrary—he was, indeed, about to call the attention of his noble and learned Friend on the woolsack, and of their Lordships, to certain defects which had an unfortunate tendency, though happily they might be easily remedied. The amount of business in the Court tended to show the necessity of an increase of the judicial force. The present arrear of business possibly might not be permanent —it might have arisen in a great degree from the non-existence until recently of a competent tribunal. Those who required the remedies which the Court now afforded had, before its establishment, no opportunities of obtaining them except by the cumbrous and ruinous treble process of a suit in the Ecclesiastical Courts, an action for damages at law, and afterwards a Bill passed through Parliament. In such circumstances many of these persons, who were entitled to the remedy, were utterly incapable of obtaining a divorce, and they all naturally availed themselves of
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  the establishment of the new Court. That of course had the effect of producing a large amount of business, at first, brought before it. But it was impossible to say whether this accumulation was the sole cause of the excess of business. The Returns showed that during the fifteen months ending March last the number of petitions presented to the Court for dissolution of marriage was 288, and for judicial separation 105; making in round numbers 400 cases. The result was that 43 cases of divorce were disposed of, in which 37 divorces were granted; and 51 cases of judicial separation were disposed of. It was said that in Scotland, where time out of mind a divorce by judicial proceedings existed, the greatest number of cases of this nature in any one year was 20; so that in proportion to the population of the two countries the number of divorces granted in England ought to be 120 instead of 37, in order to verify the adverse predictions made when the Court was established. Inasmuch, however, as owing to a want of judicial force a number of cases remained undetermined, it did not follow from the fact that 37 divorces were granted during the fifteen months ending March last that this was the number of divorces that would otherwise have been granted within that period. There were 288 petitions for dissolution of marriage on the list; of these only a small number had been disposed of, and there was an arrear waiting for trial of upwards of 100 cases. Their Lordships were aware that the Court was composed of the Lord Chancellor, the three Chiefs of the three Common Law Courts, the three senior puisne Judges of those Courts, and the Judge Ordinary of the Court, his excellent friend Sir Cresswell Cresswell. It had been found hardly possible for the Lord Chancellor or any of the Judges of the Common Law Courts to give their time and attention to the Divorce Court, and the consequence was that the Court had got greatly into arrear. No less than 35 petitions were presented to that Court during the last month, and it was therefore undeniable that a great increase in the judicial staff was desirable, either permanently or temporary. He, therefore, strongly recommended his noble and learned Friend on the woolsack to adopt some temporary remedy in order that the present arrear of business might be diminished. If it should be found that the arrear was not owing to accidental but to permanent causes, he hoped that no delay would take place in

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  increasing permanently the judicial force of the Court. There was another subject to which he wished to allude — not related to the mode in which the business of the Court was conducted, arising from the rules of practice which had been laid down with the view of saving expense to the suitors. The rules required great conciseness in the documents presented to the Court. The petition was reduced to the standard of a declaration in an action at law. He could compare it to nothing but the common counts in a declaration. The facts to be set forth were only the marriage of the parties, the date of the marriage, the act of adultery, or other acts upon which the dissolution of marriage was prayed, and the time when the knowledge of the adulterous intercourse was first obtained. To spare expense and to avoid prolixity, particulars which he thought ought to be stated in the petition were not required— he thought a far wider scope ought to be given to it. For example, the petition ought to state whether there had been a separation between the husband and wife, under what circumstances it took place, whether it had continued, whether there had been more than one separation, and what interval elapsed between the separation, and the acquaintance with the paramour commencing,—and many other particulars which it was needless for him to go over, but which would readily occur to any one familiar with the judicial proceedings in their Lordships' House, and in divorce Bills while the remedy was administered here. In those proceedings there was a full inquiry into all the circumstances; but the cases in the Divorce Court stood in this peculiar position that as 99 out of 100 of them were practically undefended, there was the greatest opportunity for collusion between the parties, and no facility of inquiry into the nature of that collusion. The husband desired a divorce against his wife, and the wife desired a divorce against her husband. Both parties equally wished for it. Then the paramour, who was co-respondent, wished it in many cases as much as the husband and the wife. Now, in such cases they might have the three parties interested all in league to deceive the Court, and therefore it was highly necessary to make such an arrangement in their rules of procedure as would tend to bring out all circumstances of suspicion. He felt that there ought to be in every case the presence of the Attorney General or some
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  one representing him on the part of the Crown and the public, and not only on the part of the public, but on that of the friends of the parties minded to prevent the divorce. Many cases had occurred within his recollection of intimation being given to their Lordships by the friends of parties, which prevented their passing a Bill of Divorce; but no such intimation could be given to the Court of Divorce under pain of imprisonment for contempt, He remembered a case which came before their Lordships, in which they were informed that the paramour was so far in league with the husband that he paid the expense of the application for divorce. They were apparently hostile parties; but their Lordships, having their suspicions awakened by information that reached them, elicited sufficient by the cross-examination of witnesses produced, and the examination of other witnesses, to satisfy themselves that there was no real opposition, and the application was refused. Such a course, however, could not be taken by the present Divorce Court, because no person could intimate his suspicions to the Judge without the chance of being committed. Yet it so happened that he himself knew that a similar case was pending in the Divorce Court, and that the same kind of intercourse was believed to exist between the paramour and husband. If the Attorney General appeared for the public the Court would become possessed of the knowledge of that fact, and might possibly have it proved in evidence. In the Judicial Committee of the Privy Council there had long been a rule that no petition should be entertained for the extension of a patent without the Attorney General or his representative, on the part of the public, being present. In most cases of extension of patents the whole of the facts were before the Court, and therefore the Attorney General was not so clearly necessary as in cases of divorce, in which facts might be concealed by the collusion of the parties. He was inclined to think that there ought to be a peremptory rule for the examination of the petitioner in every case. In the return of the cases up to March last he found that in no instance—neither in the thirty-seven cases in which divorce had been granted, nor in the six in which it had been refused —had the parties been examined. It ought to be the general rule to examine the petitioner, although there might be many cases in which the other parties ought not to be

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  examined. As an example of the advantage of having the petition extended, he might mention a case in which the Judge Ordinary objected that the petition was not according to the standard of conciseness, which the rules of the Court required, and it was, therefore, referred by the omission of a great mass of statement. But the Judge having read the petition and taken a note of the particulars, he afterwards committed these to the full Court and then called on the husband to be examined, and soon disposed of the application. There was another circumstance which required very great consideration— namely, the system of service, or means whereby notice of the proceedings of the Court was served. The first thing that should be attended to was that all parties concerned should be properly served with the petition. To this time no sufficiently stringent rule had been laid down, and consequently parties might be divorced without their knowing anything of the proceedings. No security was taken that there should be actual personal service. That, in his opinion, ought not to be the case, and the same certainty of personal service as now prevailed in those instances in which the non-obedience of the parties served rendered them liable to attachment, might, he thought, with advantage be required. The last circumstance to which he wished to call attention was this; he had been anxious to know whether there was any foundation for the rumour that the Court had disposed of twenty-seven causes in one day, and he was glad to find that it was a great exaggeration. Though it might be true that some proceedings in connection with twenty-seven cases had been disposed of in one day—the largest number of divorces actually decreed within that time was nine. Still it was a startling fact that the new Court should have granted in one day as many as, under the old system, had been granted by Parliament in three or four years. Indeed, he believed that for a period of three centuries only 365 divorces had been decreed altogether. But, notwithstanding the change which had since taken place, he felt assured that the greatest possible care and attention were bestowed by the learned Judges who presided in the Divorce Court in coming to a decision on the cases which were brought under their cognizance. The subject was one, however, the importance of which was of so transcendental a nature that it ought to be fenced
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  round with all the securities which the Legislature could provide. In the vast proportion of cases of judicial separation he found the wife took the initiative, while the husband was the prime mover in the great majority of cases of divorce; but whether in suits of the one description or the other, it was highly expedient that the question brought under the consideration of the Court should be thoroughly investigated. He could not close his observations without bearing testimony to the distinguished merits of the learned Judge, Sir Cresswell Cresswell, who presided in that Court, and who discharged the laborious duties which devolved upon him with the greatest efficiency. His learning, his acuteness, and his indefatigable industry were above all praise. The noble and learned Lord concluded by moving,
  "That the Account of the Number of Causes, Matters, and Things heard and disposed of in the Divorce Court, from 1st January to 1st June 1859, distinguishing the Number of Cases of Judicial Separation, of Dissolution of Marriage, and of all Matters relating thereto other than Sentences (laid before the House on Monday last) be printed."
  THE LORD CHANCELLORsaid, his noble and learned Friend had done good service in bringing under the notice of the House the subject to which he had just called their Lordships' attention. Its importance could not be exaggerated, and he had for some time been so strongly impressed with that feeling that he had, previous to the dissolution of Parliament, deemed it to be his duty to ask his predecessor on the woolsack whether he was prepared to introduce a Bill to remedy the defects which existed in the working of the Divorce Court. He was informed in answer that such a Bill was in course of preparation; and as the duty of dealing with the subject had since devolved upon his own shoulders, he had directed to its consideration his most anxious attention. He concurred with his noble and learned Friend in the opinion that the present Court had upon the whole worked well, and was perfectly ready to bear his testimony also to the untiring energy and consummate ability which the Judge Ordinary (Sir Cresswell Cresswell) had brought to bear on the discharge of the duties of his office. There was, however, notwithstanding that energy and that ability, a want of judicial strength in the Court which rendered it incapable of getting rid with sufficient despatch of the business which came before it. The Legislature, he was nevertheless

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  of opinion, had acted with perfect propriety in not, in the first instance, establishing a set of Judges whose time should be exclusively devoted to the discharge of the business of that Court, inasmuch as it was impossible to predict what might be its amount. Parliament ought, he thought, to proceed tentatively and experimentally, even now, in dealing with the subject; for although there had been a great influx of business into the Court since its creation, still, as yet it was impossible to say what the steady course of its business might be. He should not, under those circumstances, advise their Lordships to appoint new and permanent Judges to preside over the Court, but should, as a temporary remedy for the defects to which he had referred, propose that all the fifteen Judges should be members of the Court, and should make arrangements whereby two of them might by turns sit with the Judge ordinary to constitute a full Court and dispose of the business which might be brought under their consideration. That course being-taken for the present, their Lordships would, he trusted, before long be in a position to ascertain what judicial strength was required for the fulfilment of these duties. He also concurred with his noble and learned Friend in thinking that there was not, under the existing state of the law, a sufficient safeguard against collusion, although he believed that not a single instance of such collusion had as yet occurred. He thought, however, it should be made more difficult than it was, and he concurred with his noble and learned Friend that some functionary should be employed who should investigate the circumstances of each case before it came on in Court; while it might also be not undesirable so far to change the rules of procedure as to require a more circumstantial statement from the petitioner of all the circumstances of his case, with a view to the investigation being conducted in a more satisfactory manner. That, he thought, might be done without levying any additional burden on the public revenue, because it was but fair that the expense of the proceedings should be cast on the petitioner in the first instance, to rest on him permanently in case of the failure of his suit; if he succeeded, on the adulterer, by whose misconduct the investigation had been rendered necessary. Beyond that there were some improvements which might be immediately adopted; and one of those was that the Court should be
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  authorized to sit in camera, as was the case in Scotland and France, and whenever the details of a case were of an objectionable character to exclude the public. So in all cases of domestic quarrels it would be advisable, with a view to future reconciliation, to hear the case in private, and not to allow all the details to get into the papers. There was another point of great importance. As the law now stood, nothing could be done with regard to the custody of the children except by the full Court, but it was desirable that the Judge Ordinary should have power to dispose of them. These and other points would be dealt with in the Bill, which he hoped in the course of a few days to lay upon the table.
  LORD CRANWOUTHadmitted, that it was impossible to exaggerate the importance of this subject; but he must say that he regretted that the notice which his noble and learned friend had given was not one which was calculated to call attention to this subject. Looking to the terms of the notice (which was "to move that the Return No. 44 in the Minutes of 9th June, and delivered on the 27th June, be printed") he had not the remotest notion what it was about. He said this in justification of his being little prepared to give an opinion on the subject, which, however, was of the less importance that the subject would probably be fully discussed on Thursday next. In many of the observations of his noble and learned Friends he concurred. When the Bill constituting the Divorce Court was originally brought forward, he proposed that the Judges who should form the full Court should be the Judge Ordinary—sitting with either the Lord Chancellor or one of the Chief Justices, or the Chief Baron, of the Common Law courts — which Court alone should be competent to deal with cases of divorce "a vinculo matrimonii." That provision was so far modified as to include the senior puisne Judges of each Court. It was, however, found extremely inconvenient to secure the attendance of the Chief Justices or the senior puisne Judges, and he thought that his noble and learned Friend was quite right in proposing to empower all the puisne Judges to sit in the Divorce Court. Whether that provision would be sufficient he could not tell, for the whole process of dealing with this Court must be tentative—he thought that there was great reason for believing that it would suffice. He had had a conversation with

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  the Judge Ordinary on the subject, and had asked him to put his opinion in writing for the purpose of its being used by him on the coming on of the Motion on the subject of which notice had been given. In the opinion of the Judge Ordinary, if he could have the assistance of all the Judges for the purpóse of forming a full Court whenever it was required there would be no arrear of cases—for the cases, though important, rarely occupied much time. It was said that there was not sufficient provision against collusion, and he should be happy to assist in framing any means by which that could be prevented. He rejoiced to hear from his noble and learned Friend on the woolsack, that Sir Cresswell Cresswell had stated that not one case of collusion had occurred, and in the strict sense of the term it was not likely that there would be one ease a year; at the same time it was right that every precaution should be taken to prevent its occurrence. His noble and learned Friend seemed to think that some public officer ought to investigate the cases before they went into Court; but he thought it certainly doubtful whether such a plan would succeed; for, if they could not be thoroughly investigated in Court, how could they be better investigated by a public officer? Still, he was open to conviction. Having introduced the original Bill constituting the Court, and having been once or twice twitted with the number of cases of divorce which had arisen, he had answered that that was the greatest proof of the propriety of the measure; not one of the cases which had been brought before the Court, if they had been brought to their Lordships' bar, but would have passed, which was a proof of the efficacy of the measure in extending relief to the poor as well as the rich.
  LORD REDESDALEsaid, he could not allow the conversation to terminate without addressing a few remarks to their Lordships. They would remember the strong opposition which he gave to this measure during its progress through Parliament; and he must say that every one of the fears he then entertained upon the subject had been realised by the consequences that had followed the passing of the Act. With regard to the statement that no divorce had been granted by the new Court which would not have been granted had the case come to their Lordships' bar, he begged to draw attention to one point which was referred to in the
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  Returns, namely, the immense number of applications for divorce by wives against their husbands. It was well known that it was rarely the practice of this House to grant a wife a divorce from her husband; but upon consulting the Returns he observed that in the course of the present year, forty-two divorces had been granted by the new Court on the application of husbands, and nineteen, or nearly one-half that number, on the application of wives, not one of which nineteen would have been granted had the applications been made at their Lordships' bar under the old system. Again, at the commencement of this year, 184 petitions had been presented by husbands, and 104 by wives; and under the former law he believed that in almost every one of those 104 cases divorce would have been refused. So far as the question of collusion was concerned, their Lordships would recollect that the most dangerous cases of collusion were those which came upon petition from the wife against the husband. When a man seeks a divorce, the proof of his wife's adultery destroys her character, and she forfeits her position in society. No woman would deliberately incur this disgrace for the purpose of being divorced, and thus in the case of the husband's suit there is seldom collusion between the parties in regard to the act on which the divorce is founded. But where the woman comes as the injured person, and obtains a divorce on showing that her husband has been guilty of adultery coupled with two years' desertion without reasonable cause, both of which facts he may admit without altogether forfeiting his position in Society, there is a great chance of collusion in cases when both are mutually tired of each other, and desirous of forming new engagements. These cases required the greatest possible watchfulness on the part of the Court; and the facts he had stated, proved, he feared, that great moral injury would probably be inflicted upon the community by the facility which had been given for applications of that sort. Motion agreed to.

CHURCH RATES.

  MOTION FOR A SELECT COMMITTEE.
  THE DUKE OF MARLBOROUGHsaid, he had been anxious on several occasions this year to bring the question of which he had given notice before their Lordships' attention, but hitherto he had been disappointed in consequence of the unsettled

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  state of public affairs; and in doing so at this advanced period of the Session he feared that the consideration which their Lordships would be able to give to it would not be such as a question of such importance deserved. It was thought in some quarters, that inquiry having already taken place in the other House of Parliament, and the subject of church rates having been so fully discussed, and received so large an amount of attention, it was scarcely possible to collect any further facts, and that the appointment of a Select Committee for the purposes which he now proposed was not likely to be followed by any practical results. He thought, however, that a few considerations which he wished to offer to their Lordships would show that there was still subject-matter which might be inquired into, and inquired into with advantage. In the first place the Commons' Committee of 1S51 did not fairly represent the feelings and views of that great body which was most interested in the question of church rates—he meant the Church of England; for, looking at the composition of that Committee and the nature of the evidence that was brought before it, he must say that the investigation appeared to be of a very partial character. He found that twenty-three witnesses were examined before that Committee, of whom fifteen were thoroughly opposed to church rates, both in principle and in practice; nine of them being Dissenters. Of the remaining eight, two were clergymen of the Established Church, in whose parishes, most unfortunately, disputes had arisen respecting church rates, and who, consequently, whatever their views as to church rates in the abstract might be, could only speak to the lamentable circumstances which had occurred in their own parishes. There were, therefore, only six witnesses examined before the Committee who could be fairly said to represent the views which were likely to be entertained by the Established Church on the question, although their evidence comprised a digest of the law upon the subject which was of a most useful character. Considering, then, the importance of the question, and the immense magnitude of the interests involved in it, he thought he might ask their Lordships to grant him a Committee whose object should be to collect and present to them a fair and an impartial view of what were the opinions entertained by persons of experience in the ministry and practical working of
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  the Church of England, who would be able to say how the church-rate system operated in their several parishes, and who fairly represented the views and desires of the Church. There was another reason why his motion should be adopted. Their Lordships would remember that when the Committee of 1851 was moved for in the other House, the question of church rates occupied a very different position from what it did at the present moment. At that time most unpleasant disputes had been raging in the parish of Braintree. The well-known Braintree case originated in the churchwardens of that parish endeavouring to raise a rate in defiance of the wishes of the majority of the vestry, and in the next place, after a decision had been given against the churchwardens on that point, the vestry met together, and when the majority refused a rate the minority took the question into their own hands and proceeded to assess the rate. The case then came by appeal to their Lordships' House against the decision of the Judges; and it was an opinion expressed by witnesses before the Committe of 1851, that if the decision of their Lordships should be that a rate could be legally imposed by means of the vote of a majority of the vestry only, such a decision would of itself go far to settle the question, and prove satisfactory to the public at large. Well, their Lordships decided the law to be that a majority of the vestry must determine whether the rate should be assessed or not—the very decision to which the witnesses pointed as one that would be permanently satisfactory to the public; yet from that time to this the endeavour to overthrow church rates had been prosecuted as strongly and as virulently as ever. He thought then, that it was a matter of great importance that their Lordships should have the opportunity of inquiring into the working of the law in its new and altered form, and that they should be enabled to see how [he question had practically worked in many parishes which had been the scene of church-rate contests, and whether from the very fact of that decision having been brought into effective practice much of the evil and grievances which had previously existed had not ceased. There was yet another reason why he thought an inquiry ought to be instituted in reference to this subject. He believed that, as a matter of privilege, it was not competent for their Lordships to originate a Bill connected with taxation and send it down to the Lower House.

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  They were, therefore, in this position— that, unless they adopted the course he now proposed, they could only indulge them-selves in a barren discussion of the question, without any chance of getting at a practical result, or they would have to accept or reject any Bill which might be sent to them from the other House. He need not remark all the inconveniences of year after year rejecting Bills which wore sent from the Mouse of Commons. True, those Bills might go further than many of their Lordships deemed to he prudent or politic; yet they might contain principles which in a modified or an amended form, their Lordships would approve of. If, however, they partook of the nature of money Bills, the only alternative was that they must be accepted or rejected. Undoubtedly there were many subjects of grievance which were connected with church rates, and which ought to be redressed. In the first place, it appeared that rates had been voted for improper purposes; expenses had been included in the rate which had no business to be included in it; provision had been made by means of the rate for many things of an expensive nature for the service of the Church; and when these things were looked into, they undoubtedly formed a ground of grievance to those who, though inclined to look upon the Church as a national establishment, were not prepared to go to the extent of voting not only of necessaries, but he might say luxuries, for the use and maintenance of the Established Church. The cost of litigation formed another grievance which required consideration. In one case the recovery of the sum of 3s. 4d. occasioned an expense of £250 in law costs. Again, every time that a distress was levied upon the goods of a Dissenter, the public mind was inflamed against the system of church rates. Dissenters said, they contributed towards their own places of worship, and regarded it as a hardship that they should be made to pay for the support of a Church from whose doctrine and discipline they widely differed. Another cause of complaint was, that an unpopular clergyman sometimes created great ill-will by the harsh and violent manner in which he sought to enforce the law; while, on the other hand, where a conciliatory disposition and a desire to meet the feelings of all parties were displayed by the minister of the parish, church rates were often freely granted and paid without a murmur from any. These, then, were
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  the main grievances to which Dissenters were subject, and he thought they were all capable of being removed by careful legislation without destroying the principle of church rates itself. The next question was, what was the best measure to be adopted for removing these grievances, and placing the entire question on a satisfactory basis;—and when he said what would be the best measure, he must add that he knew of no subject on which so many measures had been proposed, and so little resolved upon or carried out. No fewer than seven different measures had been proposed, each differing from one another, in the mode of settling the matter. He himself believed that an easy means might be arrived at for the amendment of the law that would be satisfactory to the public at large. The measures that had been proposed resolved themselves principally into two different sections; one contained a proposition for charging the rate upon fixed property, while the other proposed to levy the church rate on those who constituted a church vestry, and those who occupied pews and sittings in the church. Now, the charging the rate upon fixed property did away with a most important principle—the voluntary principle—the great principle upon which Christian, conduct ought to be established, and in which a great truth was involved. It was one of the most important accompaniments of religious worship, and was the principle upon which alone, in the opinion of the Dissenters, Christian worship ought to be conducted. But if church rates were made a fixed charge on the land, this great principle would be lost sight of, and with it the system of leaving the majority to decide whether a certain sum should be voted for the maintenance of the common church. The decision by a majority would have the effect, when enforcing the rate, of reminding many, who would otherwise not be reached, of their religious obligations in respect of the Church. The other proposition, that of levying a church rate on those who constituted a church vestry, or who occupied pews and sittings in the church, would be virtually to proclaim that no person was in communion with the Church until the vestry was formed, and those who were already members of the Church would, under this arrangement, be invited to place themselves de novo under its ministrations. Now, however, the law as established looked on every person as a member of the Church of England, and considered that

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  every person in this country was entitled legally to call in the parish minister to perform the rites and offices of religion according to the ritual of the Established Church. If then they were to establish this new system, and constitute what was called a Church vestry, they would only be doing that which the Dissenters in this country were endeavouring to carry out, namely, the placing the Church of England in an isolated and sectarian position. Moreover, the effect of this proposal would be prejudicial in another respect. A large number of persons did not attend the Church of England, and there were a large number who. though nominally members of the Church of England, but who unfortunately were not habitual attendants upon public worship, and who would not be called on to contribute to the expenditure of their common church, while they could not justly claim exemption on the ground that they contributed to any other peculiar place of worship. As to the plan for throwing the maintenance of the Church upon pew rents, the principle of the Church was, that the seats should be as free as possible; and, though the system of pew rents might work very satisfactorily as far as concerned the rich, yet it would entail very grievous hardship on the poor, who regarded the Church as their common property, and were entitled to have the privilege of sitting there and enjoying the ministrations of the Gospel free of charge. Another measure that had been suggested was the simple and unconditional abolition of church rates. This would involve so serious an infraction of the rights of the Church, and strip it so entirely of any provision for the maintenance of its fabrics, that he trusted not to see the day when their Lordships would sanction it. Another remedy that had been proposed was, the specific exemption of Dissenters. To this Dissenters themselves objected, but not with very obvious justice. Not satisfied with being exempted as a body from an impost of which they complained, they rather unreasonably asked that the whole system of church rates should be abolished. Several measures had from time to time been proposed for the exemption of Dissenters, and yet they had all failed. In the year 1840 Mr. Duncombe proposed to exempt Dissenters on signing a declaration that they were not members of the Established Church, and that was represented as the best and most satisfactory mode of settling the subject
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  The declaration required them to-state that they were not in communion with the Church of England, and that they objected to the payment of church rates, not on pecuniary grounds, but on the score of conscience. But it was found that an exemption, coupled with a condition of this kind, met with a large amount of opposition, and he did not regret it. There were a large number of persons who, although they dissented from the Established Church, were not entirely Dissenters. They held an independent principle, which made them dislike the discipline and practices of the Church of England; but still there was a latent desire amongst them not to be entirely excluded from her, or to be without her privileges. There was, moreover, a large class in this country who would not be content with mere exemption, and who would accept nothing short of an unconditional surrender and abolition of Church rates; and this raised a question of such deep importance that it was their Lordships' duty, even at this late period of the Session, to institute a searching inquiry into the subject, so that remedies for all the inequalities and inconveniences of the system, if there were any, might be devised, and the latent objects of its opponents, if possible might be laid bare. The real fact was that the question of the abolition of church rates was put forward by a large and influential party in this country as a blow aimed at the existence of the Established Church, and as a means of carrying out the object they had in view — namely, that of disuniting the Church from the State, and the secularization of those vast endowments that now belonged to the parochial clergy of this country. Mr. Bright, a few years ago, speaking of the exemption of Dissenters, and on the subject of legislation on the Established Church, said he could never consent to Dissenters, because they were Dissenters, being shut out from any future participation in the distribution which might hereafter be made of the Church endowments— the time might arrive when it would become a question what would become of the funds in which the State were now interested belonging to what was called the National Church, and he could not consent that Dissenters, as such, should be dispossessed of their share, whatever course was adopted. These were views from which Mr. Bright and those that he represented were not likely to depart. They were doubtless the principles that still actuated and guided

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  them, and which only showed their Lordships and the public what were the real motives and principles of the opponents of church rates. Further than this, he would call attention to the proceedings of a society called the Liberation Society, established for the avowed principle of promoting the liberation of religion from State control. At an Annual Conference recently held it was proposed by one gentleman to add to a Resolution this rider:—"That at the same time this Conference expresses an earnest hope that the executive committee will find it practicable to bring the great question of Church and State before the Legislature at an early day." But Mr. Miall, a member of the conference, was too experienced a tactician to permit this. He opposed this proposition, showing that there was a difference of opinion among the members of the conference as to the best mode of accomplishing the object. "My hon. Friend," he said, "wishes to take up a fagot bound—we wish to take it up stick by stick." This explains the policy and objects of the opponents of church rates. The sticks in question were to be represented and enumerated under the following heads:—The abolition of church rates, which was the first stick in the fagot; the common use of the churches, the question of University tests, endowed grammar schools, the Scottish University test, the annuity tax (Scotland), and the common use of burial-grounds; and it was stated that a gentleman of intelligence and practical knowledge would shortly bring before Parliament a Bill to enable Dissenting Ministers to make common use of burial-grounds. All these subjects were to be taken up separately. He therefore thought that it was a matter of the very highest importance that their Lordships should by calm and impartial inquiry ascertain whether there were the means of removing the actual grievances which might be proved to exist with respect to church rates, and endeavour, in their report to show what might be done to set the question at rest, and thus give confidence and security to the members of the Church throughout the kingdom. There was one point which had often surprised him, and to which he would direct their Lordships' attention. The gentlemen who composed the Liberation Society had put forward a circular addressed to the various parishes, in which they say—"They have issued this useful little manual by means of which any ratepayer who wishes to prevent the assess-
  576
  ment of church rates in his parish may learn how to proceed, and may perceive that it is hardly possible to levy a church rate where the ratepayers think proper to use the existing law." And yet they called on this and the other House to abolish the existing law as an intolerable nuisance. If their Lordships granted this Committee he was sure that they would do much to relieve a vast amount of anxiety which existed in the country. It had been proved that there was not more than 5 per cent of parishes throughout the country that objected to church rates, and that upwards of £250,000 was annually collected under that head. It was said that if church rates were abolished there would be voluntary contributions which would prevent our churches from falling into decay; but he must remind their Lordships that voluntary contributions already existed in conjunction with church rates, and if church rates were abolished by law he believed that the means of maintaining the churches must certainly fail. Though the remainder of the Session was short, he was sure that before the Session terminated the Select Committee for which he moved would obtain a certain amount of information which would be of the highest importance in the settlement of the question; and even if the matter were not concluded this Session, still a further opportunity might be given for continuing the investigation on a future occasion. Their Lordships had long been the guardian of the liberties of the people, and by settling this question they would show that they were the best defenders of the surest safeguard of an hereditary monarchy—namely, an Established Church. The noble Duke then moved,
  "That a Select Committee be appointed to inquire into the present operation of the Law and Practice respecting the Assessment and the Levy of Church Rates."
  LORD TEYNHAM, (who was almost inaudible, was understood) to say, that the Established Church had been represented to be the poor man's Church. That might be so; but it was emphatically the rich man's Church. The rich and mighty of this world would not enter so lowly a place as a meeting-house. Politically our churches were of immense value. They told us facts in English history; they spoke of the manners and habits, and off times of the lives and deaths of our ancestors. He thought that if the Committee calmly and impartially considered the extent and effect of the strife originating in church-rates,

  577
  they would recommend their Lordships to abolish them in the manner which should seem best. But he rather feared that the Committee would be used as an instrument for defeating any measure which might be sent up from the other House on the subject. On the other hand the subject was of such importance that if any new facts could be elicited by inquiry, it was fitting inquiry should be made. If only 5 per cent of the parishes objected to church-rates, was not that enough to render it desirable that the source of bitterness should be removed? He believed it was a fact that under the existing law voluntary contributions exceeded the amount raised by church rates, and it would be for the Committee to inquire whether there was anything special in the parishes where voluntary contributions were raised to lead to the inference that the same liberality would not be shown if church rates were abolished. There was one further fact which might be deduced from the returns to Parliament,—that the condition of the churches where no rate was levied was equally as good as where church rates were collected. Heartily desiring that the edifices should be maintained, he thought the best way to secure that object was to abolish church rates, but, at the same time, he had no objection to the appointment of a Committee.
  THE ARCHBISHOP OF CANTERBURY: My Lords, I feel that we owe a great amount of debt to the noble Duke for the Motion which he has made this evening. I think that this House is equally indebted to him; for this House will soon be called on to legislate on the subject, which involves consequences not anticipated by many who, if they have not promoted, have not opposed the measure of abolition, but consequences well perceived by the agitators who promote it. Therefore, the subject requires the utmost deliberation, which it has never yet received, for, although a Committee was held on the subject in the lower House, no report was returned from that Committee, The subject, my Lords, is of much greater importance than in the view of many persons it seems to be. I fully believe that if it were clearly seen how great would be the danger to important interests if the Church be attacked upon the point now under consideration, the opinion of many persons would be changed, and we should never have again before us such a measure as was brought before us last Session, and
  578
  which your Lordships were fully determined should not be carried without some substitute being found for church rates. It is for the purpose of finding a proper substitute for church rates that I think it desirable that the Committee proposed by the noble Duke should be appointed. The noble Lord who has just Eat down hoped for inquiry, because he thought it would prove the inconveniences that existed. We, on the other hand, desire inquiry, because we believe that the instances to which the noble Lord alluded were anomalous, and that inquiry would establish that fact. My Lords, there are two objections to the present system of church-rates; one, which I will call the conscientious objection, originating in Dissenters from our Church, who complain of being taxed in support of a church to which they do not belong, and the doctrines or discipline of which they disapprove. The other objection proceeds from Churchmen themselves, in those large towns where the parish church is surrounded by numerous chapels, frequented by those who support them, but who are rated to the mother church, from which they receive no benefit. In the northern part of England, with which I was formerly well acquainted, the opposition to church rates had this origin. My Lords, it is right that these objections should be considered, and, as far as they are just, that a remedy may be provided for them such as may be proposed in Committee. The remedy need not be the extreme measure of releasing property from an obligation to which it has been always subject, and subject to which it was received by all its present holders, and that wholly at the expense of a Church of which I may fearlessly say that it never was more anxiously desirous to fulfil the duties belonging to it, and to provide for the spiritual wants of the increasing population. I trust, therefore, that the noble Earl the President of the Council will not object to the appointment of a Committee.
  LORD PORTMANsaid, that no one was more impressed than he was with the importance of a speedy settlement of this vexed question; and he believed that if any of the propositions which had been referred to during this brief discussion had been agreed to years ago, a settlement might have been arrived at much more satisfactory than was now, perhaps, to be anticipated. From what had recently taken place upon the hustings, from declarations

  579
  made by men who had heretofore taken a moderate course, that they would scarcely even venture to support a rate for maintaining the fabric of the church—he could not but fear that much further delay in the settlement of this question might lead to a collision between the two Houses of Parliament, although he hoped that such a result might be prevented by the deliberations of this Committee. He trusted that the Committee in entering upon its investigations would not be actuated by that spirit of antagonism which he thought the noble Duke had indicated somewhat too strongly, but would rather be influenced by the calm and considerate spirit which characterized the suggestions of the most rev. Prelate. He (Lord Portman) did not think they could hope to continue, with the goodwill of the great body of the people, n rate for supporting the fabric of the church if the proceeds of the same rate were applied to the maintenance of the services of the church and for other purposes, as well as of its fabric: for if attention were directed to the way in which church rates were levied, and to the purposes for which they had been levied, it would be found that the great objection to church rates was attributable to the abuses which had taken place in their application, such as paying rent of cottages for paupers who are thereby kept out of the workhouse, paying for the destruction of vermin, all sorts of illegal fees and items that could pass no account that is audited. If consideration were given for a moment to the abuses existing in the present system, it would no longer be a matter of wonder that church rates were objected to. There was no provision made for the auditing of churchwardens' accounts, and after the money was spent there was no means of calling the churchwarden to account for any abuse he had sanctioned in the shape of irregular payments. He had been told by many influential Nonconformists that they were quite willing to contribute their quota to the maintenance of the fabric of the Church —that they considered the Church as a monument of their religion—and that they only objected to the application of their payments to the services of the Church. He thought this subject deserved the careful consideration of the Committee, with the view of ascertaining whether some separation might not be made in the contributions for these objects. It might be that such a separation could not be effect-
  580
  ed, or that it would be an unwise course to pursue; but the information he had gathered on the subject led him to form a different conclusion, and to believe that it was perfectly feasible. It appeared to him that there was something incongruous in the term of a "voluntary rate." There was the greatest possible difference between a voluntary payment and a rate, and he could not conceive how a rate imposed by the vote of a majority binding a minority could be called a voluntary rate. It had been stated that under the existing state of things the voluntary contributions for the maintenance of churches actually exceeded the amounts obtained by rate. The most rev. Prelate (the Archbishop of Canterbury) inserted in a Bill he introduced on this subject a clause providing that in every parish in which no church rate had been imposed for two years the rate should cease. He (Lord Portman) had inserted a similar clause in the Bill he had laid upon the table, not upon principle, but because, as it had been suggested by the most rev. Prelate, he had no doubt it must be founded upon sound reason. He thought it most unfortunate that although some two or three years ago there had been an indication from the right rev. Bench of an inclination to endeavour to settle this question, so long a time had been allowed to elapse without the introduction of any practical measure with that object. He believed that if the right rev. Bench could agree upon any plan which might be discussed in an open Committee of their Lordships' House, an opportunity would be afforded to the Members of the other House, many of whom were anxious for the settlement of this question, to propose some measure which, originating in the other House, might meet with general approval. He observed that a right hon. and personal Friend of his, although a political opponent—the late Secretary for the Home Department (Mr. Sotheron Estcourt)—had told his constituents that he was prepared to submit to Parliament a measure for the settlement of this question. He (Lord Portman) could only express a hope that his right hon. Friend's change of position would not lead him to relinquish his intention, for no man was better acquainted with the general feeling which prevailed throughout the country, and no man was more warmly attached to the Established Church. He would suggest, that one subject which deserved the serious consideration of the Committee was

  581
  the grievance to which many members of the Church were exposed in being subjected to a double payment for ecclesiastical purposes—the payment of rates to the mother church of the parish, besides contributing to the support of the churches in the districts in which they resided. This double charge had led to a great deal of opposition to church rates, and the position of the new churches would hereafter be very bad unless some better system is established by Law. He (Lord Portman) had ventured to lay a Bill on the table to carry out the objects to which he had alluded, and he had made provision for an endowment to be entrusted to the Queen Ann Bounty Board, which he believed would be useful and efficient. He did not presume to think that his Bill was complete, as he could not be vain enough to believe that any one person could prepare a complete measure; but he felt he was pledged to this House to make a trial, and to do his best and meet the views of the two great parties who contend on this subject. He offered his scheme as a contribution towards the final discussion in the House that some earnest and determined effort would be made to legislate at once, and to remove this cause of discord from the parishes of the kingdom.
  THE BISHOP OF LONDON: My Lords, I feel it necessary to notice one or two observations which have been made during the discussion of this question. It has been continually said—and it was said or hinted just now by the noble Lord— that if the right reverend Bench had only done their duty, and had produced a measure to solve this problem, we might have been rid of this question of church rates long ago. But I rather think your Lordships will agree with me that no great encouragement has been given to any one, in what has hitherto occurred, to take upon himself the solution of this question by the production of a Bill. We have heard how many Bills have been proposed, and that all have been successively rejected; and I believe that the noble Lord himself who has to-night brought in a Bill will form no exception to the general rule. I think, therefore, that the right rev. Bench have perhaps pursued a wiser course in not committing themselves to undertake the solution of this question, but rather in praying your Lordships' House to appoint this Committee, that it may be gravely, calmly, and impartially considered in all its various aspects. If your Lordships would allow me
  582
  I would notice two points which, I think, ought to weigh very much with all persons in considering this question. We have heard it said, on what was represented to be good authority, that at the present moment there is only one-third of the population of England that belongs to the Established Church. I look in vain for the grounds on which that proposition rests. The only possible grounds, so far as I know, on which it can be supposed to rest is this, that the Established Church supplies accommodation for that proportion of the population of England. What an extraordinary conclusion to arrive at and to pronounce in the most public manner that, therefore, only one third of the population of England belongs to the Established Church. I hold in my hand a statement, to which, perhaps, your Lordship will allow me to refer. There are other modes of estimating what proportion of the population of England belongs to the Established Church than this, which seems to me to be illogical. I find it stated in the publication which I hold in my hand as to the education of the poor, that 83 per cent of the existing schools for the poor are in connection with the Church of England; and that of the 2,000,000 of children between the ages of three and fifteen, in course of education, 78 per cent are in connection with that Church. I find also, when we turn to the marriages contracted in England and Wales, that 84 per cent of the whole number are solemnized by Ministers of the Church of England, 11 per cent by clergymen of the Romish Church, by Ministers of the Protestant Dissenters, and Jews, and 5 per cent at the Registrars' offices. I think, my Lords, that those figures lead us to suppose that those who have made the statement that only one-third of the population of England and Wales belongs to the Established Church have jumped to a conclusion not justified by the premises. The noble Lord who spoke last but one deprecated (and none can be more ready to deprecate than the right rev. Bench) those feelings of rancour which are supposed to have arisen in all parishes where there have been disputes about church rates. But if the noble Lord will allow me to say so, I think he is referring to a bygone state of things. Why, there are disputes—if disputes they are to be called—I should rather say there are questions as to church rates raised one day in the year, and every person who has anything to say against church rates or the

  583
  Church has an opportunity of saying it; and, in my opinion, this is rather a safety valve than anything else against these rancours and heartburnings which I think exist in the imagination only, I will not say of the noble Lord, but of those who wish to make a great deal more of them than there is any foundation for. In a word, the mode of settling any dispute with regard to church rates is the common mode of settling disputes in this country with regard to any other subject. The matter is fairly put to the vote, and if carried, the minority of course are a little dissatisfied, but in the course of three or four days they forget all about it; and though in former times, while there were many difficult questions existing about church rates still unsettled, there might be these heartburnings and rancours, I do not believe they exist any longer. It does seem to me a most extraordinary conclusion to arrive at, that because in 500 parishes in England the matter has been put to the vote as to whether there should be a church rate, or no, and the majority have rejected it, therefore it is your bounden Christian duty to say that in 11,000 parishes and more you should abolish church rates altogether. I cannot see the connection between the premisses and conclusion. Then as to the parochial system and those churches which the noble Lord (Lord Teynham) is so anxious to have preserved. I give him the utmost credit for the sincerity of his wish to have them preserved; but I am quite sure that your Lordships must think it is a curious way of preserving them to do away with that legal support by means of which they are preserved. It is not very likely, for instance, that in remote places in Cumberland the churches will be kept up unless there be some legal means provided by which they are to be maintained. It is quite a fallacy to say that the most beautiful churches are those which are provided by voluntary contributions. Why, the noble Lord might as well refer to that beautiful structure which has been lately erected in London at the expense of private individuals, costing, as some people say, £100,000, and say, "If you only give the voluntary principle full sway, you would have in Cumberland another edifice that would rival its beauty." There is, in short, no connection between the position of a rich and populous district where a number of persons are to be found almost anxious to spend the wealth which they possess in the erection and maintenance of churches, and that of the remote parts of
  584
  the country, where perhaps church accommodation is still more needed. I had thought that the fallacy of the voluntary system had been long since exploded. It has, indeed, been said by a great authority that the questions of education and religion ought to be dealt with in accordance with the ordinary politico-economical principles of supply and demand; but it has, nevertheless, in my opinion, been distinctly proved that to those questions the principles of political economy cannot be applied. Instead, for example, of the supply of education being greatest where it is most needed, the contrary is almost invariably the case. Thus, too, it is with religion. Some men are completely torpid on the subject, and require something from without to imbue them with more earnest feelings; and that something is not always at hand. I would under those circumstances, earnestly impress upon your Lordships the expediency of granting the Committee which has been moved for. A great many unfounded statements on the subject of church rates have been spread throughout the country. These statements require to be distinctly tested, and I know of no better mode of testing them than through a Committee of this House. The Dissenters themselves ought to be anxious that such an inquiry should be instituted. The noble Duke who opened the discussion has read to your Lordships some extracts from the speeches of persons who I feel assured do not represent the sentiments of the Dissenters of England. I do not, however, feel quite so sure that they do not represent the sentiments of the Dissenting interest in "another place," whose voice has hitherto been most regarded in reference to the question of church rates. I am anxious to ascertain what the opinions are which the religious and not the political Dissenters of England entertain; the opinions, in short, of those Dissenters who feel as much as members of the Established Church themselves, that great moral and social interests are involved in its maintenance. I would undertake to say there are thousands of Dissenters in England who would deem it a dark and miserable day for the community at large on which the existence of the Established Church should be endangered; but it is quite certain that this class of Dissenters is not the most powerful in returning Members to the other House of Parliament.
  EARL GRANVILLEsaid, he should not

  585
  enter into the details of the important subject under discussion. He was, however, strongly of opinion that the Committee which had been moved for was not required, and would be found to be productive of no useful results. The great difficulties which beset the question of church rates arose, not from the want of adequate information with respect to it, for Committees of Inquiry on the subject had been multiplied, and blue-books accumulated upon blue-books until the result had been rather to confuse than to enlighten. Neither was there any absence of schemes on the subject; and he would undertake to say that the number of such schemes which had been submitted to the noble Earl opposite, during his tenure of the office of Prime Minister, amounted to something considerable. But, although such were the views which he entertained, he did not deem it to be consistent with his duty, after what had fallen from the noble Duke and the members of the right rev. Bench, to oppose the appointment of the proposed Committee.
  Motion agreed to.
  House adjourned at Eight o'clock, till To-morrow half-past Ten o'clock.