Lords Sitting of 19 April 1866

MINUTES.
Sat First in Parliament—The Earl of Jersey, after the Death of his Grandfather.
Several Lords took the Oath.
PUBLIC BILLS—First Reading—Postmaster General* (75).
Committee—Cattle, &c., Contagious Diseases* (70), and Cattle Sheds in Burghs (Scotland)* (71), considered in Committee, reported, read 3a, and passed; Parliamentary Oaths Amendment (54 & 76).

PARLIAMENTARY OATHS AMENDMENT BILL—(No. 54.)—(Earl Russell.)

  COMMITTEE.
  House in Committee (according to Order).
  Clause 1 (Form of Oath to be taken by Members of Parliament).
  THE MARQUESS OF BATH, on rising to move to insert in the oath the words "and I make this declaration on the true faith of a Christian," and to omit from the Schedule the words "23rd and 24th Vic. c. 63," and also the words—
  "An Act to amend the Act of the 21st and 22nd Vic. c. 49, to provide for the relief of Her Majesty's subjects professing the Jewish Religion,"
  said, that in the ostensible and avowed objects of the Bill—to simplify the oaths taken by Members of Parliament to relieve Roman Catholic Members from a grievance which he considered more imaginary than real—he cordially concurred. But the Bill, in addition to an open and avowed, had also a covert and insidious object, which had not been alluded to by one of its supporters in the House of Commons, or by the noble Lord at the head of the Government, or the noble Duke (the Duke of Argyll) who addressed the House in support of the Bill. It had, however, been alluded to by his noble and learned Friend (Lord Chelmsford), who stated that he had always conscientiously opposed that object. That object was, for the first time, and by an Act of the united Legislature, to un-Christianize the Houses of Parliament. When a majority of their Lordships, in 1858, for the purpose of saving the two Houses from a conflict, and the Government from a dilemma, did violence to their convictions by supporting the Amendment of his noble and gallant Friend (the Earl of Lucan), he had thought that the ques-

  1617
  tion of the admission of the Jews had been settled for ever. It was then discovered that a Jewish Member of Parliament, although incompetent to vote upon a division, could sit and vote in Committee, and enjoy all the other privileges of a Member of Parliament. That was a startling anomaly, and a Resolution was brought forward to enable the Jews, in spite of the existing law, to take their seats in the House of Commons. The decision of the Judges upon the matter, if it were brought before them for the recovery of the penalties, was not doubtful. There was therefore the greatest danger of a conflict between the House of Commons and the Judges. To save the country from this danger and the Government of the day from the dilemma in which they were placed, he and many others on that (the Opposition) side voted in support of the Bill of his noble and gallant Friend (the Earl of Lucan). He would recall to their Lordships' attention how that Bill dealt with the question. It left the whole subject of oaths as it stood before; but it enabled the other House of Parliament by Resolution to dispense with certain portions of the prescribed oath, so as to allow Jew to take their seats in the House of Commons. He admitted that was a compromise, and to some extent a concession of principle; but let their Lordships consider what it was they conceded. And here he would say that it was to that (the Opposition) side of the House rather than the other that he addressed himself. The point that was conceded was the permission to the House of Commons to admit by Resolution Jews into their House by the omission from the oath of the words "on the true faith of a Christian." Half of that power the House of Commons already possessed, for it had been discovered that a Member without taking the prescribed oaths might enjoy all the privileges of a Member, except those of sitting and voting in the whole House. It was also unquestionable that the House of Commons would persist until they should find some means, whether legal or illegal, of seating the gentleman in question in their House. All, therefore, that their Lordships conceded was half the point—in fact, a half which they hardly had to give. What did their Lordships' House retain? It retained the power of maintaining intact the Christian character of that House, and it also saved, as it were, the acknowledgment on the part of the united Legislature of the right of other
  1618
  than Christians taking their sent in either House; it saved the country, as he had said, from a conflict between the House of Commons and the Courts of Law; it avoided an unpleasant difference between the two Houses; it set at rest a question which he could distinctly say, from his knowledge of the House at that time, was as much disliked by those who supported the Bill as by those who opposed it; and last, and not least, it saved the Government of the day from a dilemma in which they were placed by the causes to which he had alluded—and the fact that there was a considerable difference of opinion among the various Members of the Cabinet on the subject. Now, he would ask, why was this question, then set at rest, again to be disturbed? Who were dissatisfied with the present state of the law? What arguments wore there in favour of the proposed change? He certainly had heard none. Although he thought it would have been better and more straightforward if the Government had from the first called attention to this most important feature of the Bill, even in their silence on that point they were justified by the conduct of noble Lords oil that side; and therefore he would bring no charge against the Government on that ground. Though he thought Her Majesty's Government bound by the compromise entered into in 1858, yet he was bound to admit that when those who were as it were the managers of the compromise on that (the Opposition) side acquiesced by their silence or by their voices in the course which the Government had pursued, they were justified in considering themselves absolved from the conditions of the treaty. He was not going to inflict on their Lordships a speech on the Jewish question. If any one sought for reasons against admitting the Jews to Parliament, they might be found in Hansard, in the speeches of the noble Earl (the Earl of Derby) and the noble and learned Lord (Lord Chelmsford) by his side, and so convincingly stated that it would be difficult to understand why those noble Lords should go back from opinions which they had so long deliberately entertained. He had, indeed, heard one reason given by his noble and learned Friend (Lord Chelmsford) when, in passing, he alluded to this part of the question on the second reading. If he was not incorrect, the argument of his noble and learned Friend was this—He said he had consistently opposed the admission of the Jews

  1619
  to Parliament, but that the whole principle was compromised by the measure of 1858; the game was up, the battle over, and there was nothing left to fight for. He could hardly think his noble and learned Friend could have been serious. In all treaties, compromises, and arrangements between nations, parties, or individuals, a certain sacrifice of views, and therefore of principle, was made on the one side or the other, or both. But did the noble and learned Lord seriously mean to maintain that, because he could not retain all that he asked, he would come to no terms, make no treaty, submit to no compromise on any occasion? Would his noble and learned Friend say, "I cannot obtain what I seek, therefore I will take nothing. I cannot retain what I want, therefore I will throw the whole overboard." He could not believe that. Every principle contained principles in it, and was itself contained in the principle of doing what was right to the best of one's ability. Did his noble and learned Friend mean to say that, because in his opinion a wrong had been done in admitting the Jews to the House of Commons, that wrong created a right, and the Jews ought to be admitted to both Houses? Now, in the case of tithes, the right to them lay originally in the inviolate right of the Church to one-tenth of the produce of the land. It was found, however, that tithe acted as a tax and as an impediment to the improvement of the land, and tithes were commuted to a rent-charge based on the tenth of the produce at that period. Again, in the case of church rates, which was the topic of the present day, there were few in that House who did not desire to see that question settled by relieving Dissenters. Would the noble and learned Lord maintain that, because the supporters of church rates would be willing to consent to such a compromise, church rates must be done away? If that was the argument of the noble and learned Lord, it could not be taken to be the argument of those who voted in favour of the Motion of his noble and gallant Friend (the Earl of Lucan). The noble Earl (the Earl of Derby) when First Minister of the Crown, having summoned a majority of the House to aid him in excluding Jews, aliens in race and religion, from entering Parliament, was never weary of assuring the House, on the Motion of his noble and gallant Friend, that their Lordships still main-
  1620
  tained their opinion, that they conceded no principle, although they were ready to satisfy, to some extent, the wishes of the House of Commons, and that there was no abandonment of principle. He confessed that, influenced by the authority and eloquence of the noble Earl, though with much hesitation, he voted in favour of the Motion of his noble and gallant Friend. But what were the reasons why the noble Earl passed in silent acquiescence over this portion of the Bill before the House? Was it because he considered the question an unimportant one? The noble Earl could not consider unimportant a question upon which he for several years made a chief display of his eloquence and of the personal influence which he exercised over the House. The question was set at rest in 1858, and had remained at rest until now—until now there had been no demand for a change; the advocates of religious emancipation were satisfied with the Act of 1858, and there had not been even a single allusion during the passage of the Bill through the House of Commons to this very important question. What, then, were the reasons why they were to turn their backs upon their former opinions, and to stultify themselves in the way proposed by this Bill. What the noble Earl's reasons were he knew not. What others thought he was equally unacquainted with. What the fate of his Amendment might be, whether anybody would vote for it, he did not know; but he could not silently acquiesce in passing a measure which a majority of that House so earnestly, so frequently, and so consistently opposed. He would, on the contrary, give their Lordships an opportunity to-night of vindicating by their votes the Christian character of that House, and their determination not to be moved or induced, without reason assigned or argument employed, to abandon a principle which they had so long defended. In the Amendment to the Schedule of the Bill of which he had given notice he proposed to continue the Act brought in by his noble and gallant Friend below him.
  Amendment moved, to insert after the word "subject" the words "and I make this Declaration on the true Faith of a Christian."—(The Marquess of Bath.)
  EARL RUSSELLsaid, that the question of the admission of the Jews into Parliament was a question which was for

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  many years advocated, with great ability and perseverance, in the House of Commons. These discussions at length led to a conference between the two Houses, in which a most awkward and inconvenient decision was arrived at, the effect of which was that, although a Jew might not sit in the House of Commons, he might sit upon its Committees and join in their Reports. Eventually, in 1858, both Houses agreed to a compromise, which was that either House might pass a Resolution authorizing a Jew who sought to take his seat to take the oath without the words "and I make this declaration on the true faith of a Christian." That was a very convenient compromise, and it saved the Government of the day from great embarrassment, and there was no ground for saying that there remained any difficulty after that compromise. Many Resolutions were passed by the House of Commons to admit Jews by omitting these words from the oath taken by them; and at length it had become a Standing Order of the House of Commons that when a Jew presented himself at the table of the House to be sworn, the words "and I make this declaration on the true faith of a Christian," should be omitted from the oath. It was under these circumstances that the Legislature were called upon to consider a general law for placing the question of oaths upon a fair and intelligible footing. It would be far better that there should be a uniform law for both Houses, that there should be one oath for all Members, and that there should be no distinction on the ground of the religious faith of a person who had a right to sit in either House. It was surely better not to have an Act of Parliament that said Jews should be admitted, and another that they should not. The proposal of the noble Marquess would revive the whole controversy as to the admission of Jews, and as that would lead to great inconvenience, he hoped that the Amendment would be rejected, and that Parliament would accept a general oath for all Members.
  LORD CHELMSFORDsaid, he did not think the noble Earl opposite (Earl Russell) had correctly stated the effect of the Amendment. It would not revive the contest with respect to the admission of Jews to Parliament; but it would simply maintain the compromise of 1858. But, notwithstanding the arguments of his noble Friend the Marquess of Bath, he (Lord Chelmsford) was unable to agree with him. The noble Marquess was perfectly correct
  1622
  in his recollection of his (Lord Chelmsford's) observations on the second reading of the Bill; but although the noble Marquess had roundly taken him to task for those remarks, he had not convinced him that he had taken a wrong view on the subject. He (Lord Chelmsford) had always opposed the admission of Jews to Parliament on principle, and he objected to the compromise of 1858 entirely upon the ground that it was a violation of the principle which he contended for. But the House of Commons had chosen to adopt a Resolution by means of which a person of the Jewish faith presenting himself at the table could be admitted on taking the oath, omitting the words "on the true faith of a Christian," and that Resolution had now become a Standing Order of the House; it was therefore clear that, so far as the House of Commons was concerned, there was no impediment whatever to the admission of Jews to Parliament. The Resolution had broken down the barrier completely, and the Jew walked in without any difficulty and took his seat. With regard to their Lordships' House—suppose Her Majesty were to be advised to raise a Jew to the dignity of the peerage, would their Lordships refuse to pass a Resolution dispensing with that portion of the oath which required him to say he made the declaration "on the true faith of a Christian?" Their Lordships would hardly be disposed to adopt a course which would be an insult to the Crown; and therefore he considered that there was practically no impediment to the admission of Jews to their Lordships' House. Under these circumstances there was, as he had said, nothing left to fight for! Immediately the principle he had maintained was sacrificed all grounds for further resistance were gone; therefore he did not oppose the second reading of the Bill, and must now decline to vote for the Amendment.
  On Question, Resolved in the Negative.
  Clause agreed to.
  Clauses 2 to 5 agreed to.
  Clause 6 (Repeal of Acts).
  LORD CHELMSFORD LORD CHELMSFORD moved to add the following words:—
  "Provided always that the repeal of these Acts, or any of them, or of any Parts thereof, shall not be construed to weaken or in any manner to affect any Laws or Statutes now in force for preserving and upholding the Supremacy of Our Lady the Queen, Her Heirs and Successors, in all Matters Civil and Ecclesiastical within this Realm and other Her Majesty's dominions."
  LORD CAMOYSsaid, that on the part of Catholic Members he must return thanks for the boon now offered, which put Catholics on a perfect equality, as far as Parliament was concerned, with their Protestant fellow-subjects, a position, he believed, they had not occupied for centuries. Their thanks were due first to Her Majesty's Government for having proposed this measure, and next to the noble Earl opposite (the Earl of Derby) and his political friends for the manner in which they had received it. A great deal had been said about a compact between the Legislature and the Roman Catholics, said to have been entered into at the time of the passing of the Emancipation Act; but there was no compact made previous to the passing of that Act, and the noble Earls opposite to and below him (the Earl of Derby and Earl Russell) would confirm him in the accuracy of that statement. After the passing of the Emancipation Act an understanding, not expressed, but implied, was made between the Legislature and the Roman Catholics. The Legislature said to the Catholics, "Here is emancipation, but you must take that oath;" and the Catholics on the other side said, "We accept emancipation and we will take this oath;" but there was nothing in that understanding to prevent Catholics from asking the Legislature to abolish that oath or to prevent the Legislature complying with that request. He did not think the oath now proposed conferred upon Catholic Members any right of voting which they would otherwise possess; but still, the present Bill would prevent their being declaimed against for voting on questions relating to the Established Church. Catholics had been accused, for instance, of perjury aggravated by treachery because they voted for the abolition of church rates. He himself had always voted for their abolition without any idea that he was doing any injury to the establishment, but solely because he thought it was unwise and impolitic to retain them. Questions would, no doubt, arise relating to the Established Church and affecting national and Imperial interests. On such questions Catholic Members had always claimed a right to vote. But when questions were brought forward relating to the internal regulations of that Church—such, for example, as the alteration of their Liturgy—the good sense of Catholics led them to abstain from voting altogether. On such occasions he himself had always retired. And
  1624
  if anything could confirm them in that course it would be the Liberal measure now proposed. Another advantage conferred on Catholics by the Bill was that they would be relieved from the odium of denying a doctrine which they had never entertained. At the present moment there was in Italy an ex-communicated Sovereign; but who had ever heard of even the wildest Ultramontane asserting that any one might assassinate Victor Emmanuel because he was excommunicated? Then, at the end of the existing oath was a declaration that it had been taken without any equivocation or mental reservation whatsoever. To him that declaration appeared wholly unnecessary, because if they were open to that accusation, it was just as applicable to that part of the oath as to any other part of it. Catholics were required to swear that the Pope had no temporal power in this country, while Protestants took an oath that he had not nor ought to have any jurisdiction, temporal or spiritual, within the realm. But it was notorious that the Pope did exercise spiritual power in this country, witness the "Papal aggression" and the appointment of the Archbishop last year. Indeed, one English and one Irish Peer had declined for some time to take their seats in that House because they could not conscientiously swear that the Pope had no spiritual power in the country. Well, the consequence was that a somewhat singular state of things was brought about. The explanation, he knew, was that the Pope had no power "by law;" but then the words "by law" were not in the oath. Therefore, while Catholics were obliged to declare that they made no mental reservation, and they re-required none for the explanation of their oath, Protestants, who were not called upon to make that declaration, were under the necessity of making use of a mental reservation in order to give to the part of the oath relating to the Pope's spiritual power a meaning which the literal words did not convey. He did not say this for the purpose of making any accusation, but only with the view of showing the advantages which Protestants, and the greater advantages which Catholics, would derive from this measure. He very much regretted that the noble and learned Lord (Lord Chelmsford) had moved the Amendment—not that he could find any fault with the meaning of the words of that Amendment, but because he was quite sure it would give rise to much discussion among

  1625
  the Roman Catholic body. To his mind the Amendment merely affirmed a truism; but he was quite certain that many Catholics would look upon it rather as a blow dealt against them by an enemy than as a suggestion made by a friend. For his own part, he wished that nothing should be introduced which would provoke fresh discussion when the Bill went back to the House of Commons; he must, however, leave the matter to the discretion of the noble and learned Lord and of the House. He was not much in the habit of addressing their Lordships, but he could not help taking this opportunity of expressing the satisfaction he felt at the liberal measure proposed on this side of the House and so generously accepted on the other.
  LORD CHELMSFORDsaid, he must express his regret at some of the remarks made by the noble Lord, and particularly at his statement that the Amendment now before their Lordships would probably give rise to discussion elsewhere. The noble Lord had stated that the Amendment was nothing but the expression of a truism—and, indeed, it had been said that for that reason it was quite unnecessary. Now, in order to prevent misunderstanding, he would explain the reason which had induced him to press for the insertion of the Amendment. The supremacy was an essential part of the Constitution. Well, the Bill proposed to repeal a number of Acts which were enumerated in the schedule, and many of which Acts contained oaths in which there was a recognition of the supremacy of the Crown. He was apprehensive, therefore, that when persons came to compare the oath now proposed with the oaths contained in those Acts, a conclusion might be drawn in some degree adverse to the supremacy. In other words, he thought some persons might conclude that, as the Legislature had repealed the Acts containing the oaths recognizing the supremacy, and had given a form of oath in which no such recognition was made, therefore he thought it was not right and proper to recognize the supremacy at all. In order to guard against such a consequence he had proposed the Amendment, which, although termed a truism, was, at all events, a protection against such a conclusion being drawn. It could injure no one, and would give satisfaction to those who were anxious that the supremacy should not be in any way affected. He trusted, therefore, that when the Bill was calmly and dispassionately considered no one would en-
  1626
  tertain the slightest objection to the Amendment being inserted.
  THE EARL OF ELLENBOROUGHsaid, he should undoubtedly vote for the Amendment, which there could be little doubt would be accepted by the House of Commons. He recollected the circumstances under which the Catholic Relief Bill was passed. At that time he happened to be a Member of the Government. Now, there was no doubt that the oath contained in the Act of 1829 was not a matter of compact with the Catholics—indeed, it had never been so understood; but the oath which under that Act was imposed upon Catholics when taking their seats in Parliament was substantially a matter of compact, not with the Roman Catholics but with the Protestants, and the Roman Catholics accepted it. It was in consequence of that oath that the Bill was passed, and although Parliament might now deem itself at liberty to sweep away a security which, whatever its actual value, English Protestants then thought they derived from the oath, he could not think such a step would be right. Others might be of opinion that at this distance of time they might deal freely with the oath. At any rate he (the Earl of Ellenborough) was not at liberty to do so, because he had been a party to the transaction.
  EARL GREYprotested against the doctrine laid down by the noble Earl, and utterly denied the power of any Parliament to prevent any subsequent Parliament from doing what, under altered circumstances and in other times, they might consider expedient. Therefore, he had always held that arguments founded upon oaths and compacts were powerless to influence the decision of Parliament. He cordially concurred with his noble Friend (Lord Camoys) in regretting that this Amendment had been moved. Of course, as both sides of the House appeared willing to accept it, he should offer no opposition, nor would he even argue the matter. The noble and learned Lord (Lord Chelmsford) had failed to show that any practical advantage whatever would arise from the introduction of the Amendment into the Bill. That being the case, it seemed to him very impolitic, unwise, and injurious to the reputation of that House and of Parliament to show, as it were, a slight which could not be acted upon, and to make a concession which was deemed necessary with as bad a grace as possible. If there had been the slightest prospect of succeeding in resisting the

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  Amendment, he, for one, should have voted against it.
  THE MARQUESS OF WESTMEATHobserved, that if the sentiments which had been enunciated by the noble Baron (Lord Camoys) had been avowed in 1829 the Emancipation Bill would never have been passed. He could not see what greater relevancy the proposal to abolish the declaration against transubstantiation had to this measure than it would have to a Railway or Gas Bill. If the Heir Apparent should be advised by the lawyers that there was no need for him to take the declaration, he (the Marquess of Westmeath) saw a prospect of civil war.
  EARL RUSSELLsaid, he quite agreed with his noble Friend (Earl Grey) that it was competent to any Parliament to repeal what a previous Parliament had enacted. In point of instance, the Act of Supremacy was repealed in the reign of Queen Mary. It was true that some of our laws were more intimately connected with the Constitution than others, and such a law was that which related to the supremacy of the Crown; but there was nothing in this Bill to affect that law. At the same time, he saw no harm in Parliament declaring that nothing in this Act contained shall be construed to invalidate the supremacy of the Crown as affirmed in preceding statutes. He must say that, in his opinion, the conduct of the noble Earl opposite (the Earl of Derby) and the noble and learned Lord (Lord Chelmsford) had been perfectly fair in this matter. They had not shown any wish to impair the Bill, and though some Roman Catholics might think that the words proposed to be inserted might as well be left out, he would make no objection to the Amendment.
  THE EARL OF DERBYsaid, he did not want to enter into a discussion as to the character of the compact made in 1829, but he wished to say that the noble Earl on the cross-benches (Earl Grey) had misunderstood his noble Friend (the Earl of Ellenborough) in respect of that compact. His noble Friend did not deny that it was competent to any Parliament to do away with any engagement entered into by a former Parliament; but his noble Friend said that, having regard to all the circumstances under which the engagement with the Protestants was made in 1829, and to which the Roman Catholics had acceded, he, as one of the Government who had been a party to that engagement, felt himself bound to object to the alteration
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  which this Bill would make in the oath. He would, in conclusion, express a hope that the passing of the measure might be attended with the beneficial effects anticipated.
  THE EARL OF ELLENBOROUGHsaid, he had to thank his noble Friend for removing the erroneous interpretation placed upon his words by the noble Earl on the cross-benches. For himself, he thought the remarks so clear that they did not need explanation.
  EARL GREYregretted that he had misunderstood the noble Earl. But he had certainly heard from some one the argument that Parliament was bound by a supposed pledge or compact, and against that idea he had risen to protest.
  Clause amended, and agreed to.
  On Motion that the Preamble be agreed to,
  THE EARL OF DERBYsaid, the Preamble simply recited that it was expedient to amend the laws in the manner proposed, but without assigning any reason. He thought it would be advisable to make some reference to the main ground upon which noble Lords, though entertaining some objections to the measure, had been induced to give it their support. This ground was the desirability of adopting one uniform oath, which could be taken without difficulty by Members of Parliament belonging to all religious denominations.
  EARL RUSSELLsaid, there could be no objection to the course suggested.
  Preamble amended accordingly, and agreed to.
  Amendments made: The Report thereof to be received To-morrow, and Bill to be printed, as amended, (No. 76.)

COURT OF QUEEN'S BENCH (IRELAND)

  QUESTION.
  THE MARQUESS OF CLANRICARDE, who had given notice to call Attention to the State of the Court of Queen's Bench in Ireland, and to ask a Question, said, he would preface the Question of which he had given notice by some observations as to the measures adopted, or rather not adopted, in pursuance of the Report of the English and Irish Law Commission. The Commissioners made their first Report in 1863, and a very favourable Report it was; but, although several Bills had been since

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  presented to Parliament for the purpose of carrying into effect their recommendations, nothing effectual had been done. The Commissioners seemed to think the legal machinery of the Irish Courts too extensive, but they abstained from recommending any reduction in the number of Judges, believing that a large increase of business would probably take place; whereas the very reverse had happened. He had been accused of unpatriotically seeking to diminish the amount of Imperial revenue expended in Dublin; but per se he did not care one straw how many Judges there were, or how much money they each received from the State. His object was to benefit the suitor and to cheapen and improve the administration of justice. But there were some circumstances connected with the Irish bench to which he felt bound to invite the attention of their Lordships. It would cause him much regret to wound the feelings of a learned and venerable Judge, who enjoyed the warm esteem of all who knew him, and who was entitled to respect and the utmost consideration at the hands of the country. But it was matter of notoriety that the learned functionary who presided over the Court of Queen's Bench in Ireland was of extremely advanced age. It was very painful to be obliged to state such a matter in Parliament, but that was not the first time that it had been necessary to appeal to Parliament in a similar case, or, indeed, in this very case. Some years ago a most learned and able Irish Judge (Baron Pennefather) unfortunately became blind, and afterwards remained upon the bench for three years. He was a man of extraordinary powers, and the ends of justice did not appear to have been frustrated at any period during that time. Nevertheless, he was blind; and the Irish public often asked the question whether any Judge in England would have been allowed to sit in Westminster Hall for three years if he had the misfortune to labour under such an infirmity? That eminent Judge presided at a celebrated trial called the Mountgarret case, which lasted four days.
  LORD CHELMSFORDwas understood to say, the case to which the noble Marquess alluded was not the Mountgarret but the Colclough case.
  THE MABQUESS OF CLANRICARDE: The Mountgarret case also. Well, the trial occupied four or five days, and the judgment delivered by Baron Pennefather
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  was described by the counsel who heard him as one of the most extraordinary and prodigious efforts of mental power they had ever witnessed. But they did not want prodigies on the Irish bench; and a Judge, however distinguished, ought not, under the circumstances which he had named, to have been suffered to remain at his post. He referred to this case as a precedent for the course which a sense of duty now compelled him to take in regard to another learned and very venerable person in Ireland; because very soon, subsequently to the previous debate to which he alluded, Baron Pennefather tendered his resignation. Whether that resignation was a case of propter hoc, or only of post hoc, he could not say; but he believed the act of resignation shortly followed the discussion in Parliament. In another instance, a petition was presented from Mr. O'Connell, in 1826, to Parliament against Lord Norbury's continuance on the bench, based upon a ground analogous to that which existed in the case which he was now about to mention—namely, extreme age. Lord Norbury was of so advanced an age that he fell into lethargic habits, and was quite unfitted for the proper discharge of his official duties. What then happened? Although Lord Norbury had remained on the bench up to that time, Mr. Secretary Peel did not attempt to defend such a proceeding. The matter was notorious, and all that was urged was, that as the petition stated nothing affecting the learned functionary's honour or character, he was about to retire; and Lord Norbury did so. Again, on another occasion, when the administration of justice in Ireland was impugned, it was laid down in the strongest terms by a noble Earl opposite (the Earl of Derby), and also by the present Prime Minister, that justice ought to be administered with a due regard to the capacity and conduct of the Judges as well in Ireland as in England. Well, what Mr. O'Connell complained of in respect to Lord Norbury unfortunately now applied to the very distinguished and venerable person who was still at the head of the criminal law and the common law of Ireland—the Lord Chief Justice Lefroy. A remarkable trial took place last winter at Birr. An officer stationed there had been barbarously murdered, and a guide or boatman was tried for the crime. He was informed, upon authority which he could not doubt, that the presiding

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  Judge at that investigation so far mistook the course of the testimony adduced that he was proceeding to charge the jury directly contrary to the evidence upon a point perhaps the most important of all, and certainly most important as concerning the prisoner, because it was the only scintilla of evidence that he could produce to lead the minds of the jury not to think him guilty. The evidence was wholly circumstantial, and the learned Judge totally mistook a most important circumstance. The point was one that was evident to everybody except the learned Lord Chief Justice; but of course he was set right by counsel, and the point was placed correctly before the jury. The jury having found the prisoner guilty, it became the duty of the Lord Chief Justice to pronounce sentence upon the prisoner; but his Lordship was not able to do that in a becoming manner. The sentence was written for him in large hand writing; the judge could not read it; and the Law Officer of the Crown had to stand by him to prompt him in the execution of a duty of the most important character. These are facts which could be proved to the satisfaction of their Lordships, if an inquiry were instituted by the House; and he wished to ask whether the recurrence of such a state of things ought not to be guarded against? If the slightest mistake had been made in the delivery of the sentence, the prisoner would have escaped without any punishment. Such a thing had happened in Ireland. A Judge, now no more, overcome by emotion or agitation, after sentencing two men for murder and robbery, accidentally omitted the words relating to the disposal of the bodies within the gaol. The counsel for the prisoners afterwards made a point of the sentence not having been pronounced in the legally-prescribed form, and the men would wholly have escaped punishment, but that they were subsequently sentenced to imprisonment for life for robbery. But what must be the effect upon the minds of the Irish people of trials so conducted? Without making any charge whatever against the learned Judge, he said it was the imperative duty of the Government to have interfered sooner in that matter; and it was now the duty of Parliament to interpose rather than allow the possibility of such a scene being permitted to continue. Could such things happen in England? Was it to be supposed that any Judge of ninety years of age would be permitted to preside at circuit in England or to sit in West-
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  minster Hall? [The noble Marquess then read to the House an article from The Fortnightly Review.] The writer, who gave his name, had been a public functionary for several years, and was, he believed, a Member of the bar. He (the Marquess of Clanricarde) wished to speak with every personal respect of this very learned and venerable Judge. He complained of nothing but his prolonged tenure of office. Chief Justice Lefroy was over ninety years of age; he had the infirmities incident to that age, and it was not becoming that the head of the criminal and common law of Ireland should be a person of such extreme age. The noble Marquess concluded by asking, How soon the Second Report of the Commissioners appointed in December, 1861, to inquire into the Procedure of Irish Courts of Law with a view to reduce Costs to Suitors and the Expenditure of the Public money will be presented to Parliament?
  LORD DUFFERINsaid, that the Report of the Commission on Procedure was in a forward state, and had been already agreed to by the Irish Commissioners and also by the English Commissioners, with the exception of one Irish and one English Commissioner. On Monday the Report would be submitted finally to the English Commissioners, and he hoped in a very few days to lay it upon their Lordships' table.
  LORD CHELMSFORDsaid, he desired to make a few observations in answer to the remarks of the noble Marquess. He must express his regret that there had been no intimation in the notice the noble Marquess had given of his intention to make this attack, as he might term it, upon the Lord Chief Justice of the Court of Queen's Bench in Ireland; and it was hardly fair, under a general notice of this kind, to make remarks which the friends of the learned Judge could not be prepared properly to meet, and it was indeed only by accident that they became aware that any observations prejudicial to him would be made. He (Lord Chelmsford) was very imperfectly furnished with any information in answer to the noble Marquess' complaint; but he had obtained some particulars which would enable him to show that at least the noble Marquess was imperfectly informed, and that some at least of the observations he had made were not well founded. He quite agreed that primâ facie the noble Marquess was right, and that the presumption was that a Judge who had arrived at a time of life far beyond the ordinary period of man's

  1633
  existence could not be perfectly competent to the duties he had to discharge. The noble Marquess, however, must be a little cautious in measuring capacity by age. A distinguished ornament of their Lordships' House had not long passed away, who had adorned every debate with the most profound wisdom and a judicial eloquence that had never been surpassed. That noble and learned Lord (Lord Lyndhurst) on the night that he entered upon his ninetieth year, addressed their Lordships in a most remarkable speech that riveted their attention for more than half-an-hour, in which the most perfect clearness, lucidity, and wisdom showed that his powerful intellect was setting without a cloud. Suppose that that distinguished person had held a judicial office at the time he made that speech, would it have been justifiable to call upon him to resign on the score of his age? And yet, if he understood the noble Marquess, the whole ground of his accusation against the learned Judge was that he had arrived at the age of ninety. Even if there had been any error or mistake on the part of a Judge, that would not be a ground for bringing the matter before the Houses of Parliament, unless it was clear that the mistake arose from the decay of his mental power. But there was not a practitioner in the Court of Queen's Bench who would say that a single decision of the Lord Chief Justice was not what it ought to have been, or that they showed any decay of his mental faculties. From the year 1862 to the present period there had been only four writs of error from the Court of Queen's Bench, and during the last two years only one bill of exceptions had been offered to the ruling of the learned Judge. The noble Marquess asked whether it would be possible that an English Judge of that age would be able to endure the labours required of him here. For twenty-five years the Chief Justice had not missed a single circuit, or town in any circuit, except in the year 1847, when he was suffering from low fever, and was obliged to absent himself for six weeks. He had up to the present moment discharged duties of the most important kind. The criminal business of the Court of Queen's Bench was very considerable; besides which the important questions connected with the New Fishery Acts went to the Court of Queen's Bench. The Chief Justice performed his part in the discharge of those duties, and every one of his decisions met
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  with the most perfect approbation. The state of business of the Court of Queen's Bench showed how much that Court was resorted to in Ireland. The amount recovered in the Queen's Bench in 1864 was £345,740, in 1865, £445,000; whereas in the Court of Common Pleas the amount was in 1864, £148,000; in 1865, £150,000; and in the Court of Exchequer in 1864, £330,000: the account of the latter Court in 1865 had not been made up. Now, as the attorneys had a choice of their courts, the circumstance that the business of the Queen's Bench was so much greater showed that it must have been the favourite Court. And here he might be permitted to read a portion of a letter which he had received to-day from a gentleman perfectly cognizant with all the facts—Mr. Napier, the ex-Lord Chancellor of Ireland. He said—
  "As to the Chief Justice, he is the best Judge we have, although he is very old and not very vigorous for complicated cases. But he always finishes his nisi prius cases sooner than the other chiefs. He is so good a Judge that the Bar respect him, and decency and order prevail in his court."
  They all knew what was attributed to Lord Norbury in the petition of Mr. O'Connell—that he used to fall asleep on the bench; but that had never been said of the Chief Justice, who was always awake and understood the case before him from beginning to end. With regard to the case of King, which had been alluded to by the noble Marquess, he did not know upon what authority the facts were stated; but if he wanted a case which would satisfy him of the strength and vigour of the Chief Justice's intellect it would be that very case. Their Lordships might recollect that a question of law arose in that case with respect to the indictment. By an Act of Parliament in Ireland, if a murder was committed within 500 yards of the boundary of a county the indictment might be laid either in that or the adjacent county. In the case of King, the murder took place not in the county in which the venue was laid, and an objection was taken that it ought to have been stated in the indictment that the murder took place within 500 yards of the boundaries of the county. That question was argued before the Chief Justice with very great ability, and he was of opinion that there was no necessity for introducing that averment in the indictment; but the question was so important, especially as the life of a human creature

  1635
  was concerned, that he reserved the point. It was accordingly argued before the Judges, and they decided almost unanimously that the judgment of the Chief Justice was right. The only dissentient was Mr. Justice Hayes; but he differed on a point which did not materially affect the decision of the Chief Justice. It had been stated that the Chief Justice began his charge to the jury upon some erroneous view of the real nature of the case. He should like to know upon what authority the noble Marquess had made that statement. He had seen a letter from Mr. Battersby, who was the Crown Prosecutor on that occasion, and that gentleman positively denied many of the allegations made with respect to the Chief Justice. But supposing the Chief Justice had, in the course of the summing up, made some observations which the counsel for the prisoner thought not correct, that was no more than continually happened upon trials in this country. Therefore, unless the noble Marquess meant that the Chief Justice began to sum up as if he were summing up a totally different case, how could it possibly be alleged as a proof of failure of intellect that there was some interruption on the part of counsel for the prisoner? Then it was said that the Chief Justice was so worn out and completely exhausted that when he came to pass sentence he was obliged to have it written out for him in a very large hand, and that then he was scarcely able to read it. But he was informed by Mr. Battersby that such an allegation was entirely erroneous. The noble Marquess said that there was a chance of the jury being so far misled as to acquit the prisoner in consequence of the way in which the learned Judge summed up.
  THE MARQUESS OF CLANRICARDEexplained, that the Chief Justice stated that a certain article of dress had been found when it was not found.
  LORD CHELMSFORD: Was that all? Was that the only ground for attributing to the Chief Justice failure of intellectual powers and incapacity to perform his duty? If the imputation on the Lord Chief Justice rested on the fact that he was ninety years of age, it behoved their Lordships to be a little cautious and take care of themselves, because it might affect them very materially if that were the ground upon which a person was to be considered incompetent—and, moreover, they could not tell at what precise age the line of demar-
  1636
  cation might he drawn. He remembered that some time ago, when Lord Leitrim in presenting a petition made certain charges against the Chief Justice of the Common Pleas in Ireland which he (Lord Chelmsford) did not think sufficient, he induced the noble Lord to withdraw his Motion. But Lord Leitrim was on that occasion very sharply rebuked by Lord Campbell, then Lord Chancellor, for having brought a charge against a Judge unless he was prepared to found thereon an Address to the Crown praying for his removal. Now, he did not mean to say that if a Judge was really incapable—if his mental faculties were so impaired as to render him unfit for the discharge of his duties, and if he still clung to the bench so that the force of public opinion could not induce him to resign, both Houses of Parliament might not address the Crown to remove him. But no case ought to be brought forward unless it were of a nature so serious as to lead to that result. Age, and age alone, being the ground upon which the noble Marquess had proceeded, and there being no proof whatever that there had been any failure of justice or any display of mental incapacity, the noble Marquess might very well have spared the observations he had considered it his duty to make. Having such an accusation to bring against the learned Judge, it was hardly fair of the noble Marquess not to give distinct notice of it and of the grounds upon which it was made, in order that the learned Judge might have been able to answer categorically every charge that was made.
  VISCOUNT LIFFORDsaid, he thought the attack which the noble Marquess had made on the Lord Chief Justice was altogether unfounded. It did not inevitably follow that the infirmities of age disqualified Judges for the discharge of their duties. The noble Marquess had said that they did not want prodigies on the Irish bench. He (Viscount Lifford) thought they did, and that when they had got one they had better keep him. The noble Marquess had said that a Judge of such an advanced age would not be tolerated in England. But the noble Marquess seemed to have forgotten that there was such a Judge as the Lord Chief Baron Pollock, who he hoped would live to adorn the bench many years yet. He was honoured with the friendship of Baron Pennefather, who, when past the age of eighty, and perfectly blind, presiding over a trial,

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  followed a long arithmetical calculation so closely as to detect an error immediately, and on another occasion explained a question of boundaries better than any of the jury could have done, although they had studied it with the aid of maps. Chief Baron Pollock was not much younger than Lord Chief Justice Lefroy, and yet no complaint was made of him. The noble Marquess had hinted that the love of emolument kept the Lord Chief Justice on the bench. He (Viscount Lifford) submitted that it was something higher. They loved their profession; they were naturally proud of doing better than they believed younger men could, and there was the unwillingness to give up the successful performance of important duties. He would read the letter, to which reference had been made, from the leading counsel of the Home Circuit, who, writing on the 31st of March, said—
  "The Chief Justice discharged his duties as well as he ever did last circuit, and better than many of his juniors could have done. He tried at Maryborough as complicated a right of way as could be conceived, and at seven o'clock p.m. charged the jury most accurately and clearly upon the law and facts. When Parliament meet, I should think they will have something else to do besides trying to make vacancies for their friends here."
  The amount of money recovered in the trials in the Court of Queen's Bench in 1864 was £345,740. What would have been thought if, after the delivery of that remarkable speech which Lord Lyndhurst made on the day he attained his ninetieth year, any of the younger Members of their Lordships' House had risen, and, in Parliamentary language, said, "Go home, you dotard; you are ninety; let younger men perform the duty to which you are unequal?" Yet this was what the noble Marquess had practically said in reference to the Chief Justice of the Queen's Bench.
  THE MARQUESS OF CLANRICARDEsaid, he was glad to have been reminded of Lord Lyndhurst, and would ask—Did he continue to discharge judicial duties up to the age of ninety? He had long ceased before that age to sit in that House on appeals avowedly on the score of his age; yet the occasional hearing of an appeal, still less the delivery of a speech in that House, did not involve the fatigue inseparable from presiding over the Court of Queen's Bench. The information he had was inconsistent with what had been stated with respect to the conduct of the business of the Irish Court of Queen's Bench. It was, he understood, notorious
  1638
  that the business was arranged so that complicated cases did not come before the Chief Justice, and that cases were postponed in order that he might not try them. It might be true that for a part of the day his intellect was as clear as it was in his youth; but it did not follow that his physical faculties would enable him to give throughout a day equally sustained attention to a lengthened case. He had done his duty in bringing forward a grievance; he would leave the matter in the hands of the Government for the present, and if there were an inquiry he would undertake to support what he had stated by the best possible evidence. The mention of Baron Pennefather's blindness reminded him of a case which came before that learned Judge. The charge was forgery, and the question turned upon a comparison of handwritings. The prisoner knew well the infirmity of the learned Judge, but pretended not to know it, and begged of the Judge to compare the two writings, well knowing he could not do so. Would blindness in a Judge be tolerated at Westminster, or even at Clerkenwell?
  THE EARL OF LONGFORDregretted that the attacks which had been made elsewhere on the Lord Chief Justice had been repeated in that House. He had never heard any complaint from any suitor in Ireland as to any failure of justice in cases before the Court of Queen's Bench. He had the great advantage of constantly meeting the Lord Chief Justice, both in town and country, and frequently at late hours; and he could affirm that no ground existed for the charge that he was incompetent to perform the duties of the great office which he so worthily filled.

BREECH LOADING SMALL ARMS.

  QUESTION.
  VISCOUNT LIFFORDsaid, that in consequence of the Danish War and the great success of the Prussian breech-loaders a Committee had been appointed to inquire into the matter. That Committee reported in favour of the breech-loading system; and accordingly an advertisement was issued to the effect that the Secretary of State for War desired to receive communications from gunmakers as to the best means of converting Enfield rifles into breech-loaders on certain specified conditions. In reply to that advertisement fifty specimens of arms were sent in and trials were made of five out of eight which had been selected. In

  1639
  the end it appeared that only one rifle, that of Mr. Westley Richards, complied with the conditions; but, nevertheless, that of Mr. Snider was chosen. That was not all. Mr. Snider's rifle was sent back to him in order that he might make certain alterations—in which, however, he failed. It was then handed over to two Government officials who, he believed, had succeeded in making it a very perfect arm. He did not doubt that there were obvious reasons for adopting Mr. Snider's rifle; but it was unfair to accord him a privilege denied to the other competitors, and particularly to the inventor of the rifle which alone complied with the conditions. It would, indeed, be difficult to devise a system better calculated to deter gunmakers from competing on future occasions. The noble Viscount concluded by asking, Whether the Under Secretary for War will lay before the House the Correspondence of the leading Gunmakers in reference to the War Office Circular of December, 1865, asking the Reasons which had deterred them from taking any part in the proposed competition for military Breech-loading Small Arms; and, whether any Departmental Officers, having had the benefit of the experience of the various trials of Small Arms made at the Government expense, have taken out patents for Improvements in connection with Small Arms?
  LORD DUFFERIN, in reply, said, that inasmuch as the correspondence to which the noble Lord had referred was still under the consideration of the Small Arms Select Committee it would not be advisable at present to lay it before the House. With regard to the second part of the Question, he had to state that it was the fact that officers connected with the War Department, after having devised inventions of considerable importance, had protected those inventions by taking out patents. In the opinion of the noble Lord the Secretary of State for War, that practice was very objectionable. The point had been referred to the Law Officers of the Department, and in all probability it would be found expedient to deal with the matter hereafter when a measure respecting the patent laws generally should be introduced. Clauses might then be inserted to prevent the recurrence of the practice.
  THE EARL OF HARDWICKEexpressed his pleasure at hearing what had fallen from the noble Lord in reference to these patents. It was very wrong that Officers of the Crown should be permitted to take
  1640
  advantage of the ingenuity and experiments of private inventors, and be permitted to experimentalise upon those inventions at the expense of the public, and then for their own profit patent the improvements suggested by those experiments.
  THE EARL OF LONGFORDsaid, the reply of the noble Lord the Under Secretary for War would hardly be satisfactory to the principal members of the gun trade. Although two years had elapsed since the project was formed of arming the infantry with breech-loaders, scarcely any progress had been made in the matter. The matter was one of a serious character; and he hoped this short conversation might have the effect of procuring for the subject more attention than it had hitherto received.

  RAILWAY BILLS AFFECTING THE CITY OF LONDON.—QUESTION.
  THE EARL OF CARNARVONhad to present petitions referring to a very important subject—the Railway Bills affecting the City of London during the present Session. The first of these petitions was one from Merchants, Traders, and Inhabitants of the Ward of Billingsgate, against allowing any Bills introduced by any Railway Company whose line is proposed to enter the City of London to pass into law; and contained some general statements as to the inconvenience and hardship arising from the construction of railways in the metropolis. He believed no one could doubt that the construction of those railways did cause very great inconvenience, and no one could deny that it was attended with considerable hardship to the working classes. To a certain extent this was inevitable in the formation of any new railway, and on this ground alone it would not be right to interfere with a scheme which was otherwise beneficial. The second petition was from the Lord Mayor, Aldermen, and Commoners of the City of London, and prayed that all Bills affecting the City of London may be referred to the same Committee, and made subject to the general laws relating to railways. The statements made in this petition were of a more specific character. It alleged that the Bills now being promoted in Parliament would monopolize a very large acreage in the City—not less than twenty-six acres in the very heart of the metropolis. Their Lordships might perhaps have seen a paragraph in The Times stating that in the immediate vicinity of St. Paul's

  1641
  Churchyard property had been sold at the rate of £1,000,000 an acre. Now, though we could not think that these twenty-six acres would be worth £26,000,000, it was certain that the land required by railways in the City was of enormous value. The petitioners expressed a hope that means might be found of prescribing certain limits as to the quantity of work to be constructed at one time, so as to mitigate the inconvenience resulting from having portions of the City blocked up. Some time ago he brought under the notice of their Lordships the fact that in some of the Railway Bills now being promoted the promoters sought for very remarkable powers, and powers quite inconsistent with public statutes. The petition of the corporation of London referred to some of those Bills. The petitioners complained that one Company proposed to enter on house property without purchase, and also sought for powers to use part of a house without taking the rest of it. Such powers would be in contravention of the provisions of the Railway Clauses Consolidation Act. Another Company proposed to make use of the vaults and cellars of houses without purchasing the houses themselves; and another Company required a clause providing that no owner or occupier of a house should be entitled to compensation for any mischief done to it in consequence of the railway running underneath. This again would be contrary to the provisions of the Railway Clauses Consolidation Act. He would suggest to their Lordships that some general rule should be laid down for these cases, and that provisions overriding statutory enactments should not be permitted in Bills promoted by railway companies. He thought it would be very desirable to reduce so important a matter to a general rule. The petition of the corporation prayed that the Bills for metropolitan railways should all be referred to one Committee. He himself thought it would be advisable to adhere to the recommendation of the Select Committee of 1864 on metropolitan railways, and, as far as possible, to refer all those Bills to one Committee. He was told that this year the number was so considerable it would be impossible to send them to one Committee. If that were so, the next best thing would be to refer such of those Bills as had any connection with each other to the same Committee.
  LORD REDESDALEsaid, that no doubt very important and peculiar considerations arose in connection with Bills for railways
  1642
  in the metropolis; but he did not think the Committee of 1864, to which the noble Earl alluded, had any reference to the points submitted in the petitions which the noble Earl had brought under their Lordships' notice. The recommendations of that Committee were directed to the general effect of all railways running through London, and not to the details of particular Bills. Having regard to the number of metropolitan Bills promoted this year, and to the period of the Session, he did not think it would be possible to have all those Bills referred to one Committee. No doubt there were very peculiar clauses in some of them, most of the clauses having for their object to lessen the cost of construction. This was an important consideration; but Parliament could not allow an injurious and unfair interference with property merely for the purpose of reducing the cost of a construction to the promoters of the line. He must say he had not found any disposition on the part of the Committees to which such Bills were referred not to pay due attention to the details; and he trusted this would continue to be the case. With regard to the domolition of property, it was consequent on the introduction of railways into the metropolis; and though the construction of those railways would impede the traffic of the streets for a time, they might have the effect ultimately of very much relieving that traffic. He did not think the poor would suffer to the extent that was generally supposed; because, if the value of land in the City was so great, it was obviously impossible to suppose that as the old houses fell into decay they would be reinstated as dwellings for the labouring classes. No doubt, great numbers of bad and offensive buildings were being removed. Much good must ultimately result from that circumstance; and, in the meantime, the City must adapt itself to the change. The first inconvenience to which parties were now subjected was, doubtless, severe. At the same time, the change was so intimately connected with the work itself, that, however much to be regretted, he did not see how it was to be avoided.
  Petitions to lie on the table.
  House adjourned at a quarter past Eight o'clock, till To-morrow, half past Ten o'clock.