Sitting of 31 May 1844

MINUTES.
NEW MEMBER SWORN. — For Kilmarnock, the Hon. Edward Pleydell Bouverie.
BILLS. Public.—2°. Limitation of Actions (Ireland).
Reported.—Slave Trade Treaties; Vinegar and Glass Duties.
3°. and passed:—Courts Martial (East Indies).
Private.—2°. Marquess of Ailsa's Estate.
Reported.— Epsom and South Western Railway, and Croydon and Epsom Railway.
PETITIONS PRESENTED. By many hon. Members (148 Petitions), against Dissenters Chapels Bill, and 13 in favour of same.—By several hon. Members (4), for Alteration of Ecclesiastical Courts Bill.—By Viscount Bernard, from Schull, against Education System (Ireland). — By Mr. S. Davies, from Cardiganshire (2), against Union of Sees of St. Asaph and Bangor. — By Mr. Christie, from Leeds, for Inquiry into Universities.—By Mr. Hume, from Agricultural Society of India, for Admission of Indian Wheat By Sir John Yarde Buller (16), from Devon, by Lord Rendlesham (13), from Suffolk, and by Mr. W. Wynn (1), from Montgomery, against Repeal of Corn Laws.—By Mr. Langston, from Oxon, for Repeal of Duty on Hailstorm Insurances.—By Mr. Du Pre, from Chesham, for relieving Licensed Victuallers from Window Tax.—By Colonel Rushbrooke, from Suffolk (2), for Alteration of Law of Arson.—By Mr. Hume, from 2 persons, for Alteration of Law of Blasphemy.—By the same, from T. Sturgis, against Commons Inclosure Bill.—By Captain Beresford, from Harwwich, in favour of County Courts Bill.—By Mr. Broadley, from Bridlington Quay, for Liquidation of Danish Claims.—By Mr. Langston, from Oxford, against Poor Law Amendment Bill.—By Mr. Loch, from Cromarty, against Prisons (Scotland) Bill.—By Sir C. Lemon, from Falmouth, for Rating Owners of Tenements. — By Mr. G. Hamilton, from Kingstown, for a Small Debts Bill.

ECCLESIASTICAL COURTS.
On the question, that the House resolve itself into a Committee on the Ecclesiastical Courts Bill,
Mr. T. Duncomberose to move an instruction to the Committee to abolish all Ecclesiastical Courts, and to transfer the jurisdiction of those Courts to civil tribunals. Although the notice which he had given was sufficiently explicit, yet he thought it right, in order to avoid all misapprehension on the subject, to say that his object was, if possible, to induce the House to agree that all the temporal affairs of the people of this country should betaken entirely out of ecclesiastical jurisdiction— that the liberties and property of the people of this country should no longer be at the caprice, and be treated according to the prejudices, of the Ecclesiastical Courts. To effect this, there could be no doubt that the whole of Doctors' Commons must be swept away—that the whole of the Ecclesiastical abominations which were a disgrace to the country, must also be swept away, and in their place he proposed that other tribunals should be erected, and that those presiding over them should abolish the mummeries, the
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mystifications, and the spiritual impositions, which he would maintain, were at present not only a disgrace to this country, but were prejudicial to the property and liberty of the people, and he believed, the best interests of religion. He did not believe, it would be hereafter credited, that 658 gentlemen, calling themselves reasonable and sane men, should be occupied at this time of day in endeavouring to bolster up these Courts, which were the foundation, as he should endeavour to prove, of a practice that was inconsistent with common sense and reason. Before he proceeded any further—not that he supposed much alarm would be created in Doctors Commons at the present moment, for he believed that was almost the first time that the question had been so clearly propounded in Parliament as to do away with all Ecclesiastical Courts; but to avoid all alarm in the minds of the Gentlemen who infested Doctors' Commons and elsewhere, he would beg leave to declare, if he was asked what he meant to do with all these doctors and proctors, with Sir Herbert Jenner Fust at their bead, that he would give them all the compensation which they could prove themselves entitled to. He thought that the best course, if the House would get rid of those nuisances, for they were nothing else, altogether. If they looked back for the last ten or twelve years they would find from the expectations excited, that this Bill was calculated to create the greatest disappointment throughout the country. It was well known that a Commission was appointed by the right hon. Baronet opposite in the year 1829, to inquire into the nature and jurisdiction of the Ecclesiastical Courts, and it made a Report in 1832. Shortly afterwards a Bill founded on it was submitted to Parliament, which was afterwards abandoned: and since that time several other Bills had been laid before the House and not proceeded with. They were attended with this remarkable circumstance, that all the Bills introduced into Parliament, whether by Whigs or Tories on this subject had been proceeding from bad to worse, until they arrived at the ne plus ultra. What could they ever expect in attempting to amend these Courts? Indeed, he believed, that the learned civilian himself would at last be obliged to get rid of them as the materials which he had to deal with were so bad that he could not go on mending them; but

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that, like the tinker perplexed, he would find when he attempted to mend one hole he made two others. The present Bill did not attempt to carry out one-tenth of the recommendations of the Commissioners. These Courts, as he had before stated, were founded in corruption, and, therefore, the people had a right to complain of the very limited extent to which this Bill went. They had a right to complain that the jurisdiction of these Courts in a great variety of cases was not taken away by this Bill. It certainly was taken away in questions of tithes defamation and smiting in a churchyard. Certainly it was quite time to get rid of the latter, for how did the House think that these Courts were empowered to punish an offender in this respect? A man smiting another in a churchyard rendered himself liable to the loss of one of his ears, and if he should happen to have no ear, he was to be branded on the cheek with the letter F. One of the alterations proposed in the Bill, was to get rid of the jurisdiction of the Ecclesiastical Courts in such cases. He was not going into the question of the testamentary or matrimonial jurisdiction of these Courts, which it was proposed to maintain; but he would only observe that the Commissioners recommended that the jurisdiction of the Courts in both these particulars should be abolished. But that the salus animœ, or the health of the souls of Her Majesty's subjects might not be altogether neglected, they retained cognizance, and were enabled to punish criminally under this Bill in cases of simony, heresy, brawling, blasphemy, perjury, drunkenness, incest, adultry, fornication, incontinence, and other evil habits. The jurisdiction of these Courts in cases of Church-rates was also to be continued. Why did they continue Church-rates? Had the right hon. and learned Gentleman heard what the Ecclesiastical Commissioners recommended? They recommended that the jurisdiction of these Courts should be abolished in such cases, or rather that they should be taken out of the jurisdiction of these Courts. The Commissioners said, "The whole subject of Church-rates demands immediate attention, from the mischiefs arising from the present state of the law are rapidly spreading." He wished to know whether what had recently occurred with regard to these Courts was calculated to lead to their obtaining public confidence? There
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had been cases recently reversed by the Civil Courts on appeal from the decisions of the Ecclesiastical Courts in questions of Church-rates. There were three decisions on this question, which had been made rather prominent, namely, the Braintree case, the Norwich case, and the very recent case of the appeal of Mr. Higgot, the shoemaker, of Romford, with respect to which the hon. and learned Member for Bath, who was counsel in the case, would be enabled to give the House some information. But he wished to know why the jurisdiction of the Ecclesiastical Courts in cases of Church-rates should be continued? He could conceive no other reason why this should be kept up, than that it occasionally promoted brawling, and thus brought grist to the mill of the lawyers of Doctors' Commons. He would mention a recent case of brawling which had occurred from this cause. The Rev. Theodore Williams, the vicar of Hendon, proceeded against Mr. James Hall, a parishioner, for brawling at a vestry meeting, held for the purpose of making a Church-rate. Let the House look at the iniquitous transactions which grew out of these proceedings, and he would show this by the conduct of the vicar himself. He would venture to say, that there never was worse conduct manifested on the part of that person, and there never was a more absurd decision given by a Judge, than was given in that case by Dr. Lushington. Mr. James Hall was cited before the Court, by the Rev. Theodore Williams. There was a meeting of the vestry, at which a motion was made for a Church-rate, to which an amendment had been proposed, that the consideration of the matter be adjourned. This amendment was carried, and the vestry was about to adjourn, when Mr. Williams, who had been expected to be present, but who was behind time, entered the room and took the chair, and was very angry. Words ensued between Mr. Hall and the vicar, when the latter said that Mr. Hall was mistaken if he thought that he held any place in his estimation. To this Mr. Hall replied, "You are anything but a gentleman; your conduct is disgraceful to a clergyman; and you are a disgrace to your cloth." Mr. Williams, at the same meeting, had a quarrel with another parishioner. The case was this:—Because Mr. Farlar, in addressing the meeting, made use of the word Hendon, and in the pronunciation

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thereof did not aspirate the H, sounding it "Endon," instead of Hendon, the vicar observed, in a sneering manner, "I beg pardon—I beg pardon—there is an H in Hendon; to which Mr. Farlar replied, that he did not receive his education at the public expense." And for this he was proceeded against for brawling, by Mr. Williams. After being exposed to litigation in the Consistory Court, and after the learned Judge had partially acquitted Mr. Williams of blame, on the ground that he was aggravated to make an attack upon Mr. Farlar, in consequence of his not showing proper respect, judgment was given. Dr. Lushington, in giving judgment, was made to speak as follows:
"I am under the necessity, therefore, of saying, that I am of opinion that the charge against Mr. Hall is proved by evidence, and then I come to this question—the question whether Mr. Hall has any extenuating circumstances in the case which ought to induce me to withhold what otherwise would be the necessary sentence of the law—a condemnation of Mr. Hall in the whole of the costs. I greatly regret that the proceedings have gone to the length which they have done, but at the same time I do not know that blame is to be attributed to any person in consequence of the length of the proceedings, because if Mr. Hall believed that he had not made use of the expressions, it was not unnatural that he should attempt to defend himself; and, also, if anything was said on the part of Mr. Williams which gave him just provocation, he had undoubtedly a right in his own defence to plead that matter. Now the expression—and I shall be glad if the Council will correct me if I am in error—the expression is as nearly as possible this, upon which it is relied as extenuating Mr. Hall's conduct, 'If you think you hold any place in my estimation you are very much mistaken." These are the words, and that, so far as I can recollect, is the sole ground upon which Mr. Hall rests for his justification—so far as the words were addressed to himself. Now I am first to look to see whether these words are proved as stated, and I am of opinion that they are proved as named by Mr. Hall. I see no reason to doubt it, looking at the evidence on both sides. And if these words are proved, the next question is, whether they are of that tenor and meaning as would produce the effect contended for on behalf of Mr. Hall. Now here arises a considerable difficulty in this case—the time and the circumstances under which these words were spoken. I am utterly unable from a perusal of this evidence, to fix the time and circumstances accurately. It is argued on the one side that these words probably followed an expression which had been used by Mr. Hall, which was very disparaging to the past
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officers of the parish of Hendon. But I cannot say that I see that there is any necessary connexion between them. I must, therefore, say, that in my judgment these were words of provocation. What are words of provocation? Words denoting contempt. And what so much excites irritated feeling as expressions of contempt for an individual? There are many persons who would submit with infinitely greater patience to words reflecting on their character. At the same time they could not, and it is not to be expected of human nature, submit with perfect patience and entire self-control to expressions denoting individual contempt. Now I think that Mr. Williams has used these words, and I think that I am bound to consider these words in pronouncing the judgment I am about to give, and the judgment I must pronounce is this, 'that Mr. Hall is to be suspended from entering the Church for the space of one week, and I condemn him in the whole of the costs, save and except 30 l., which 30 l. I direct to be deducted."
What was the result? Why 30 l. was to be deducted from the costs of the rev. vicar, because he had said, "If you think that you hold any place in my estimation, you are very much mistaken." This was a specimen of one of the courts which it was proposed to maintain under this Bill. The House would be surprised to hear what the costs were in this case. He found from a copy of the bill of costs annexed to the report of the ease, that Mr. Hale's costs amounted to 185 l.—not less than 185 l. under this infamous state of the law, or what might be properly called nothing but robbery. There was the same amount of costs, also, in the case of Farlar. This was a state of things which arose out of the conduct of this minister of the gospel and magistrate for Middlesex. There was another case, in which a man of the name of Goodyear was cited by this vicar before this court, and in which he had to pay between 80 l. and 90 l. costs. By looking into such cases as these, a little insight might be got into the working of the Ecclesiastical Courts. Among the items of this bill of costs was a charge for attending and settling his viatics, and another one of paid his viatics. This was a charge in these Christian courts, established for the health of souls, and this was a charge to promote the souls' health. [Laughter.] Gentlemen might laugh, but they would find the item stated, and the courts described as being pro salute animœ. He supposed that this was something for the departed soul to take with it in its travels to the other

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world—a sort of viaticum, he supposed. I ["No, no."] Yes, he replied, because he found that this was for the expiation of the soul originally, but it had been transferred from the soul to the stomach, and Peter had been robbed to pay Paul, or rather to pay Theodore. Nobody could tell the absurdity of these proceedings who had not looked into such cases as these. Well, what was the next charge? He did not know very well what the word meant—it was "sportulage," 3s. 6d. He really could not throw any light on the subject, unless indeed it was an alms or dole to the Bishop's basket. The right hon. and learned Gentleman, however, would probably tell them what was the benefit of these charges, as he was one of the vicars-general. He would, no doubt, show what "sportulage" was, and whether it was advantageous to the vicar, or the court, or the suitors. He would not ask the right hon. Gentleman (the Secretary for the Home Department) the reason of them, for there was no reason in them, and he would not insult the right hon. Gentleman by asking him to find a reason. He must come now to the judgment, and he must say, that he never read so absurd a judgment in his life. The judgment was, that Mr. James Hall should be suspended or excommunicated from entering the parish church for one week of seven days. The judge said that the words used by the Rev. Theodore Williams were words of contempt, and that Mr. Hale spoke under provocation when he said that Mr. Williams was a disgrace to his cloth, and he would therefore order that 30 l. should be deducted from the costs; but even after this deduction, Mr. Hale's costs amounted to 185 l. But what was the punishment upon Mr. Hale, besides the payment of his money? He was to be shut out for seven days from the parish church, into which he would never enter if he had a spark of spirit. Now, let them look to the class of offences to which the jurisdiction of these courts extended—blasphemy, heresy, adultery, drunkenness, idolatry, fornication, incontinence, and other evil practices, for all of which any of you may be liable to be cited before any of the Ecclesiastical Courts, and even before the right hon. and learned Gentleman himself, and for any of them they might be called upon to do public penance for the good of their soul, and that in any place that the judge might
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appoint. In case of some of these offences they would be called upon to do public penance in the church, and to recant. Yes, they would be obliged to recant, as well as to perform penance publicly in the parish church. This was not an imaginary state of things, for in the district which he had the honour to represent, a recent case—that was not more than two or three years ago—had occurred, which was brought before the Bishops' Court of the diocese of London. He had been informed of the case, and he had requested some information from one of the parish officers of St. John's on this subject, and by whom he had been informed that a case of penance had occurred in that parish, in consequence of one sister having imputed a want of chastity to another. He would read the communication which he had received on the subject:—
"Clerkenwell, July, 1843.
Dear Sir—The following scene, a relic of the dark ages, was actually, and to the great scandal of religion, performed in the parish church of St. John's, Clerkenwell, in the year of our Lord 1840; Rebecca Cohens, a Jewess, having imputed to Deborah, her sister, a total want of chastity, process was commenced in the Spiritual Court of the Bishop of London, and after some 70 l. was ran up in fees, Rebecca was allowed to expiate her offence by going to the church in service hours, and then and there, before the churchwardens, overseers and minister, recant, which was done by her repeating after the minister a long rigmarole, after which a certificate of recantation was signed by the churchwardens, and returned to the office of the Bishop of London.
"Observe, the recantation was a fraud, because, instead of its being done publicly in the church as ordered, the parties were let in and out of the vestry at a private door, and hundreds of persons who had heard that this ceremony for the good of Rebecca's soul was to take place, were choused out of the entertainment they expected.
"I am, dear Sir, yours very faithfully,
" T. S. Duncombe, Esq. M.P."
Such were the proceedings, pro salute animœ, Rebecca. Well might the parochial authorities and the Ecclesiastial Courts be ashamed of such a proceeding; but that House ought to be more ashamed if it continued its sanction of courts from which emanated such an amount of absurdity. What a hardship was it upon the subject that this individual had to pay 70 l. for this process. Now, with regard to the brawling, what had happened to Mr. Theodore Williams within the last

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few days? He had been brought before the bench of Middlesex magistrates, at the Edgware sessions, for inciting to a breach of the peace one of his own parishioners, a respectable freeholder. He certainly did not do this in the churchyard, but on the public highway, and proceeded to excite a breach of the peace, by telling him that he dare not fight. The House would recollect the language used by Hall to Williams; let them now compare it with that used by Williams to Mr. Smith. It appeared that the vicar had cast some imputation on the veracity of the plaintiff's son, and complainant replied, "My son's word is as good as your son's any day in the week;" and Mr. Williams then exclaimed, "Walk out of my place, sir." Complainant walked out, and defendant followed, and slammed the gate; but immediately opened it again, and coming out of the highway, said to complainant, "You are a thick-headed fellow." He then came forward and said, shaking his fist near complainant's face, "You are a dirty fellow, you are a shabby fellow, you are a coward." He then followed complainant along the path, and added, "You dare not fight, you make an excuse of your policy—fellow, it is forfeited." Complainant replied to this, If I am a coward, I will meet you on any spot you please," when defendant interrupted him by saying, menacingly, "What, what, what?" And complainant then continued to finish the sentence— "to discuss the question, Sir." Now he (Mr. Duncombe) should like to know how the right hon. Secretary for the Home Department meant to deal with this reverend magistrate. Did he intend to let him continue to disgrace the bench of magistrates of Middlesex? And this was the man who had cited Hall, and Farlar, and Goodyear, for using language not one-tenth as strong that which he had used, but for which he was sued under the Police Act, and had inflicted upon him the full amount of the fine. At the conclusion of the report of the case, it is stated that Major Abbs addressed the reverend defendant, and said the majority of the magistrates being satisfied that the case is proved against you, they fine you in the penalty of 40 s. with costs. So that, in point of fact, there was one law in the police or civil courts, and another in the Ecclesiastical Courts—that in the one case 40s. was the highest fine that could
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be inflicted, while in the [other 185 l. costs, and seven days banishment from church would be imposed. But were all these offences allowed to remain in the Statute Book? He had another very high authority to refer to on the subject. He had the authority of a right Rev. Prelate in favour of his views. A Bill had been introduced into the other House of Parliament by the Bishop of Exeter for the purpose of putting down incontinency, fornication, and all those other evil habits, proving that these Ecclesiastical Courts had neglected their duty, and were not adequate to suppress the immorality of the age. If the state of morality was such as was described in that Bill, he confessed that he had not been aware of it; but the Bishop might have much better opportunities of ascertaining the facts of the case, and of arriving at the truth than himself; but he confessed that he did not believe that so much immorality existed as was described in the 5th Clause and the preamble of the Bill. The hon. Member was proceeding to read an extract from the Bill, when
The Speaker: The hon. Member cannot quote from the Bill in question, as it is not before the House.
Mr. T. Duncombe: After what had taken place that evening he supposed that there was little probability of its coming down to that House. He could, however, refer to the subject, and he found that the Bishop, after describing the shocking state of immorality in the metropolis and other large towns, proposed a Clause to the effect which he would presently describe, and he would venture to say that such a state of things as was assumed no man at York or Exeter would believe. The Clause enacted, that if any parent or step parent, or uncle or aunt, or guardian or trustee, or other person having the care of any young person, should promote or permit, or connive at the seduction or the committal of fornication with such person's daughter, niece, or ward, or any husband permitting, promoting, or conniving at the commission of adultery with his wife, shall, on conviction, be liable to the punishment of transportation. What must be the state of society in this country, if the inference from such an enactment was true—namely, that parents would sell their daughters, and husbands their wives, for the purposes of fornication and adultery? If such was the state of society, how much had

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the Ecclesiastical Courts attended to their duty? Why did not the Diocesan Court of the Bishop of London, as well as the other Diocesan Courts, call for more stringent laws, or even exercise the authority which they possessed? He could not believe that there was such a state of immorality, as nothing of the kind had occurred. For his own part, he believed that the Bishops and their Ecclesiastical Courts would have quite enough to do if they confined their jurisdiction to the maintenance of the discipline of their own clergy. They could not take up a country newspaper without seeing some paragraph headed after this fashion, "Another Clerical Miscreant." One day they find a charge brought against a clergyman of having seduced the daughter of one of his parishioners—another day a charge is brought against a clergyman of having, from a feeling of malice, hamstrung some sheep belonging to a neighbour—in another they would find a charge brought against a clergyman of shooting some pigs, and they might meet with other charges of too horrid a nature to mention them. It would be well, then, if the Ecclesiastical Courts would confine themselves to preserve the good conduct of the clerical body, and not interfere with other matters. It was said, that the present Civil Courts were at present so much engaged, that they could not take up the business of the Ecclesiastical Courts. If this were the case, let another Civil Court be established; but he did not believe that anything of the kind was wanted. The Real Property Commissioners recommended, that the jurisdiction in testamentary cases should be transferred from these Courts to the Court of Chancery. He could not see why the Court of Assize was not competent to decide on all those criminal and civil questions, which were now usually brought before the Ecclesiastical Courts. He would urge hon. Members to look to a Return lately laid before the House, relative to the advocates practising in the provincial Ecclesiastical Court at York. This paper was signed by Mr. Egerton Harcourt, the registrar of this Court, and it stated that the only two advocates in that Court practised as counsel at the Common Law Bar, and attending the Assizes and Sessions. But mark what it proceeded to state:—
"In addition to the two advocates named, there are (including the Recorder of York)
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four other counsel resident at York, but no application for admission into the Ecclesiastical Courts of the Province had been made by them, probably in consequence of their doubts as to the intention of the Legislature respecting these Courts. The admitted advocates of these Courts have exclusive right to practise therein, though in cases of weight and difficulty counsel on the Northern Circuit are occasionally taken in to give their assistance."
Such, then, was the state of the Bar of this Court, that whenever there was a case of weight the parties were obliged to resort to counsel at the Common Law Bar. He was satisfied that the country would willingly support the House if it should appear necessary to establish another Court to have the jurisdiction of cases now decided on by the Ecclesiastical Courts. He was convinced that the utmost satisfaction would be manifested if the Government would get rid of the Ecclesiastical Courts, and transfer their jurisdiction to some tribunals founded on principles of common sense and justice. This was not merely his opinion, but it had been expressed by all the highest legal authorities in the country, from Holt and Hale to the most learned Judges of the present time, one and all of whom denounced the existence of Ecclesiastical Courts as repugnant to the liberties of mankind. All that he asked was, that the House would act upon the principles urged by the eminent authorities to which he had just referred. He confessed that he was not very sanguine as to the result of his Motion, for he knew that that House was ready to support any abuse and corruption sanctioned by the Minister of the Crown. But this he did believe, that the first administration which had the courage to abolish these Courts, and to manifest a sense of justice of getting rid of these abominations, would be entitled to the gratitude of all succeeding generations. The hon. Gentleman concluded by moving, that it be an instruction to the Committee to abolish all Ecclesiastical Courts, and to transfer the jurisdiction of those Courts to civil tribunals.
Mr. Hume, in seconding the Motion, observed that it had been recommended, on the highest authority, thirteen years ago, that these Courts should be swept away. They had been got rid of at that time in Scotland, and the whole business of the Consistorial and Admiralty Courts had been transferred to the civil tribunals of the country, and not the slightest in-

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convenience had been experienced in consequence.
Dr. Nichollsaid it appeared to him that the speech of the hon. Member for Finsbury would have been better addressed to the House when it was called upon to consider the principle of the Bill on the second reading, instead of making this Motion on going into Committee. The House, in fact, by its division on the second reading of the Bill, had entirely disposed of the suggestion of the hon. Member, for the Bill was not merely to consolidate, but to improve the practice of these courts; it was, therefore, quite clear that the principle which the House affirmed on the second reading was involved in this Motion, viz., the retention for some purposes, at least, of the Ecclesiastical Courts; but the hon. Member did not propose to take away a portion of the business of these Courts, but to sweep away the jurisdiction altogether. In answer, then, to the hon. Member's proposition, it was not necessary to prove that the whole of the present jurisdiction of the Ecclesiastical Courts should be preserved to them; it was enough to show that it was essential that a part of it should be retained. The hon. Member himself, indeed, established that his Motion ought to be rejected, for towards the close of his speech he recommended that the Diocesan Courts should be preserved for the purpose of maintaining the discipline of the clergy, and for that purpose it was obvious that they were quite necessary. The Court of Arches and the Provincial Court at York were the courts of appeal in all such cases. These several Courts, then, were necessary to maintain the discipline of the Church, so far as the clergy were concerned, and were an integral part of the Church Establishment, but they were not merely necessary for carrying on proceedings for the correction of clerks, but for the maintenance of the authority and discipline of the Church over its Members generally, lay and clerical. Every Church —every sect—must have such a power over all who claim to belong to it, or to partake of its ordinances; that power in an Established Church could only be exercised by tribunals recognised by the law of the land. Every sect—every body of persons associated together—must have the power of excluding from their society those they may deem unworthy of it, but the Law of England would not allow the
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Church of England to excommunicate any person without a sentence pronounced in due course of law, and, consequently, without Ecclesiastical Courts. The Church of England could not exclude from church membership and from holy ordinances the most notorious and profligate evil liver. It was not necessary at the present moment, and in answer to the hon. Member's Motion, to argue the importance of retaining the rest of the jurisdiction of these Courts; it was sufficiently shown—as he submitted he had shown—that they must be maintained for the purposes of Church discipline. Accordingly it would be found that the Diocesan and Provincial Courts were, in some shape or other, and to a greater or less extent, maintained by every former Bill. Lord Cottenham's Bill of 1836, for instance, retained them under the denomination of the Courts of the Vicars General. He did not stand there to defend the character of Mr. Williams, the vicar of Hendon, as he knew nothing about him; but from what appeared in the proceedings before the Consistory Court of London and before the magistrates, what, after all, did the hon. gentleman's statement, as affecting the character of Mr. Williams, or the Ecclesiastical Courts, amount to? That one litigious man might harass another litigious man, and that a large amount of costs might be run up in a very trumpery matter; but this might equally be the case in a Civil as in an Ecclesiastical Court. However, he believed that, in such cases, for the future, the jurisdiction of the Ecclesiastical Courts would be destroyed by the Bill which he had brought under the consideration of the House, for he understood that the brawling in that case took place in the vestry, and his Bill proposed to do away with the jurisdiction of the Ecclesiastical Courts over all cases of brawling which did not occur in the body of a church or chapel. [Mr. Duncombe —The brawling took place in church.] Surely, the hon. Member would not stand up in that House and maintain that the decency of the church was to be violated with impunity. The next case to which the hon. Member referred was that of "defamation." Why, the whole jurisdiction of the Ecclesiastical Courts in matters of defamation would be done away with by the Bill. The cases of the hon. Gentleman, therefore, were not at all applicable. The hon. Gentleman

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had made a very amusing speech, and a very amusing attack upon a certain Bill said to hare been prepared by a right rev. Prelate. Of that Bill he had never heard one single word until it was mentioned by the hon. Member. All he could say was, that certainly, as far as he understood the hon. Gentleman, the Bill was not one of which he should be tempted to take charge in that House. The hon. Gentleman had alluded to him, as being connected with these courts. He had been connected with them formerly, but he had ceased all connexion by practice with them ever since the year 1841, and he had now ceased to hold any office in them. He had no interest, either direct or indirect, in any of those courts. He undoubtedly felt desirous of maintaining, improving, and adding to the efficiency of these tribunals, more especially the Provincial Courts, where he believed justice was administered in a manner satisfactory and advantageous to the public. With reference to charges made against himself, he could assure the House, that he had never contemplated receiving, nor would he ever have accepted any, the slightest, advantage from any Bills which he had ever introduced into that House. The hon. Gentleman had said that certain Commissions which had sat upon this subject had recommended the transfer of a part of the business of these courts to the Court of Chancery. That, however, was not exactly the case. The Ecclesiastical Commissioners made their report in 1832, and recommended that the jurisdiction in testamentary matters should be retained to the Ecclesiastical Courts; and the Real-Property Commissioners recommended that it should be referred to the Court of Chancery. The matter was brought under the consideration of Earl Grey's Government, and a Select Committee was appointed to consider those two Reports. That Select Committee having investigated the whole question, and having examined witnesses of the highest competence to judge upon the subject, arrived at the conclusion that it was not desirable to act upon the Report of the Real Property Commissioners, but that it was advisable to adopt the recommendations of the Ecclesiastical Commissioners, with some modifications. Lord Grey's Government determined to propose to Parliament to retain the testamentary jurisdiction in the Civil Law Courts, and in
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1834 a Bill was prepared under the superintendence of his right hon. Friend the present Secretary for the Home Department, retaining the testamentary jurisdiction in those courts. In the following year a Bill of the like purport was prepared under the directions of the right hon. Baronet now at the head of the Government, and subsequently a similar Bill was introduced by Lord Campbell, then Attorney-General. He did not think it necessary, however, to go further into the matter. The whole question had been already disposed of by the House, when it came by a large majority to the decision that the Bill should be read a second time. He trusted that the present Motion of the hon. Gentleman would be rejected by a majority equally large.
Sir G. Greybelieved that the question had been substantially decided by the House, when the second reading was carried by a large majority. Being one of those who formed the minority, he might perhaps be excused for troubling the House with a few words. If he understood the right hon. Gentleman aright, the reasons which he gave for opposing the Motion of the hon. Member for Fins-bury were, first, the necessity of retaining criminal jurisdiction to those Courts, on the ground that the Established Church, if those Courts were deprived of that power, would be deprived of a power possessed by every other body, of correcting offences committed against its established regulations. But the hon. Member for Fins-bury, as he understood, did not propose to interfere with the Clergy Discipline Act, or to withdraw from the Ecclesiastical authorities their power over the clergy. The jurisdiction of the Ecclesiastical Courts applied to brawling, defamation, incest, adultery, and fornication. It was not expedient to keep up such a jurisdiction. With regard to defamation, as he understood the Bill, the jurisdiction of the Ecclesiastical Court was to be altogether abolished. With respect to incest, adultery, and fornication, he would call the attention of the House to the Report of the Ecclesiastical Commissioners—a Commission which was presided over by the Archbishop of Canterbury, and composed of men of great weight and authority. They said,—
"If our proposition for instituting a new tribunal for the correction of clerks be adopt-

103
ed, and the cognizance of disturbances in the church and churchyard be transferred to other Courts, very little would remain on which the criminal jurisdiction of the Ecclesiastical Courts would, according to the present state of the law, operate."
They further said,—
"It is competent to institute criminal proceedings for incest, adultery, and fornication; but in the Arches' Court and the Consistory of London, no such suit has been brought for a long series of years: in some of the country courts they have been very rare. It may be greatly doubted whether any beneficial effects have resulted from these proceedings, or at least so beneficial as to counterbalance the odium they had excited, and the oppression which, in some instances, has been occasioned. We think that the cognizance of such offences cannot be advantageously conferred on the provincial courts; and, on the whole, we are of opinion that these prosecutions should be abolished. Incest is, however, a species of offence of so aggravated a character, that some remedy ought to be substituted: and it appears to us that the correction of this grosser violation of morality and public decency might be, with propriety, transferred to the Courts of Common Law, the offence being made indictable as a misdemeanor, to be punished by fine and limited imprisonment."
It was clear, therefore, that the Commissioners considered it expedient to abolish that kind of jurisdiction, in order to remove the odium which had been excited. So far, then, as the removal of this criminal jurisdiction from these Courts was concerned, he was quite ready to support the instruction to the Committee. As to what the hon. and learned Gentleman had observed with reference to the several recommendations of the Real Property and the Admiralty Court Commissioners, on the subject of the transfer of testamentary jurisdiction to the Civil Courts, it certainly appeared to him that the opinions of the Real Property Commissioners, considering the character of these gentlemen, and their intimate acquaintance with the varied matter of their inquiries, were entitled to very great attention indeed. The objections which they stated to continuing the jurisdiction in testamentary matters in the hands of the Spiritual Courts were of very great weight, exhibiting most forcibly the extreme inconvenience of having two different Courts of Law acting on entirely different rules, applying entirely different principles to the consideration of the same instrument, and pointing out, in the most convincing manner, the very great evils
104
arising from the conflicting decisions which of necessity must be come to, and the great public scandal which must inevitably be occasioned; and they stated, that all these evils might be obviated by a very simple remedy. If it should be necessary to transfer this business to other Courts, the facilities for the transfer had been greatly increased by the constitution of two new Courts of Equity, the business in which might not probably keep them fully occupied. On the present occasion they were offered the choice of either abolishing these courts altogether, or of continuing thirty-five Ecclesiastical Courts with new salaries and a new staff of officers, which might have the effect of perpetuating them. Under these circumstances, looking at the recommendations of the Ecclesiastical Commissioners for the abolition of the criminal jurisdiction, and looking at the circumstances in which they were now placed, owing to the altered character of the present Bill, he must say, that he could not vote against his hon. Friend, and must, therefore, support the Motion which his hon. Friend had submitted to the House.
The Solicitor Generalsaid, until the right hon. and learned Gentleman had addressed the House, he was not aware that it was intended to go to a division. He had listened with great attention and entertainment to the statement which had been made by the hon. Member for Fins-bury to establish the proposition that the Ecclesiastical Courts ought to be swept away, and he must say he thought the reasoning of the hon. Member a little inconclusive. The hon. Member alluded to one peculiar portion of the ecclesiastical jurisdiction—namely, brawling and defamation. He did not stand up to defend the proceedings of the Ecclesiastical Courts in these matters; they might be absurd and such as ought not to be continued in the present day. But it did not follow that all the other authority of the Courts should be entirely abolished, and their powers in other respects, which in his experience had been usefully exercised, should be transferred to other jurisdictions. He had no prejudice in favour of the Ecclesiastical Courts; but, as regarded some of the important parts of their powers, in testamentary and matrimonial questions, he was not aware that any objection had been made to the manner in which they had been exer-

105
cised. Was it to be said that these ought to be abolished because the hon. Member for Finsbury adduced certain ludicrous instances, which depended on other powers which perhaps the Courts fought not to possess, but which, while they possessed, they were bound to exercise. The hon. Member jumped to an extraordinary conclusion when he said, because such absurdities existed in relation to brawling and defamation, these Courts ought to be swept away, and their powers transferred to the Civil Courts. He thought that the hon. Member had not come to any conclusion as to how the powers of the Ecclesiastical Courts were to be exercised by any other courts. He had not considered how the Civil Courts with their present powers, were to exercise those functions. This was a crude and ill-digested Motion of the hon. Member, who had got some materials by which he roused the feelings of Gentlemen opposite against these Courts, as regarded some minute particulars of their jurisdiction, but was not able to suggest any mode by which their powers were to be transferred to any other jurisdiction. As far as his experience went, and he had had some experience, he had never seen any reason to complain of the mode in which those powers were exercised, or that they were such as to induce him to adopt the strong language of the hon. Member for Finsbury, that they were a nuisance, or that any benefit would arise from transferring their powers. When the House was in Committee, the hon. Member might suggest any alterations, in addition to the clauses which took away the jurisdiction in brawling and defamation, but in this stage of the question all those observations were beside the question, which was to decide whether these Courts were to be abolished or or not. He did not understand whether the right hon. Baronet (Sir G. Grey) went the entire length of the bon. Member for Finsbury. He understood the right hon. Gentleman to desire the abolition of the Courts so far as their criminal jurisdiction was concerned. The right hon. Gentleman had used an incorrect expression; he should have said that the criminal jurisdiction was to be taken away. It was important to know what length the right hon. Gentleman went, and he understood him to say that he would not vote for the entire Motion of the hon. Member for Finsbury, but that all he
106
contended for was, that the jurisdiction in criminal matters should be taken away, which was a matter for future consideration. With regard to the testamentary jurisdiction, it was easy to state possible difficulties from clashing opinions of the courts which decide on real and personal property, but the occasions of those clashings of opinion were much diminished since the late Act, which assimilated the execution of all wills on both real and personal bequests. All the differences of opinion as regarded wills, therefore, would turn on the capacity of the testator, and the occasions would not be numerous enough to justify the taking away the jurisdiction of the Courts in these matters.
Sir G. Greyexplained.—So far as the criminal jurisdiction was concerned, he felt no hesitation whatever on the subject. With regard to the testamentary jurisdiction, he would rather see it taken away altogether than retained in thirty-five courts.
The House divided on the question that the words proposed to be left out stand part of the amendment.—Ayes 115; Noes 70: Majority 45.

List of the AYES.

Ainsworth, P.

Dodd, G.

Alford, Visct.

Douglas, Sir H.

Antrobus, E.

Douglas, Sir C. E.

Baird, W.

Eliot, Lord

Barrington, Visct.

Escott, B.

Beresford, Major

Estcourt, T. G. B.

Blackstone, W. S.

Fitzroy, hon. H.

Boldero, H. G.

Flower, Sir J.

Borthwick, P.

Forbes, W.

Botfield, B.

Forman, T. S.

Bowles, Adm.

Gardner, J. D.

Boyd, J.

Gladstone, rt. hn. W. E.

Bramstone, T. W.

Gladstone, Capt.

Bruce, Lord E.

Godson, R.

Bulkeley, Sir R. B.

Gordon, hon. Capt.

Burrell, Sir C. M.

Gore, M.

Cardwell, E.

Gore, W. R. O.

Charteris, hon. F.

Goulburn, rt. hon. H.

Chelsea, Visct.

Graham, rt. hn. Sir J.

Clerk, Sir G.

Greenall, P.

Clive, Visct.

Greene, T.

Clive, hon. R. H.

Hamilton, Lord C.

Cockburn, rt. hn. Sir G.

Henry, J. W.

Codrington, Sir W.

Henniker, Lord

Corry, rt. hn. H.

Herbert, hon. S.

Cripps, W.

Hodgson, F.

Darby, G.

Hodgson, R.

Davies, D. A. S.

Hogg, J. W.

Denison, E. B.

Hope, hon. C.

Dickinson, F. H.

Hope, G. W.

D'Israeli, B.

Hussey, T.

107

Ingestre, Visct.

Oswald, A.

Irving, J.

Palmer, R.

Jervis, J.

Patten, J. W.

Kemble, H.

Peel, rt. hn. Sir R.

Knatchbull, rt. hn. Sir E

Peel, J.

Knight, H. G.

Pollington, Visct.

Lascelles, hon. W. S.

Pringle, A.

Lemon, Sir C.

Reid, Sir J. R.

Lennox, Lord A.

Repton, G. W. J.

Lincoln, Earl of

Round, J.

Lopes, Sir R.

Rushbrooke, Col.

Lowther, hon. Col.

Russell, J. D. W.

Lyall, G.

Sholefield, J.

Lygon, hon. Gen.

Shirley, E. J.

Mackenzie, W. F.

Sibthorp, Col.

Mackinnon, W. A.

Somerset, Lord G.

M'Neill, D.

Spry, Sir S. T.

Manners, Lord J.

Stanley, Lord

Mastermann, J.

Stewart, J.

Meynell, Capt.

Sutton, hon. H.

Mildmay, H. St. J.

Tennent, J. E.

Morgan, O.

Thesiger, Sir F.

Mundy, E. M.

Thompson, Ald.

Neeld, J.

Wood, Col. T.

Nicholl, rt. hn. J.

Wortley, hon. J. S.

Norreys, Lord

TELLERS.

Northland, Visct.

Young, J.

O'Brien, A. S.

Baring, H.

List of the NOES.

Barclay, D.

Leveson, Lord

Baring, rt. hn. F. T.

Macaulay, rt. hn. T. B.

Barnard, E. G.

Mangles, R. D.

Barron, Sir H.

Martin, J.

Bernal, R,

Mitchell, T. A.

Bouverie, hon. E, P.

Ord, W.

Bowes, J.

Paget, Col.

Bowring, Dr.

Palmerston, Visct.

Bright, J.

Parker, J.

Brotherton, J.

Pattison, J.

Browne, hon. W.

Pechell, Capt.

Buller, C.

Philips, G. R.

Byng, G.

Phillpotts, J.

Christie, W. D.

Plumridge, Capt.

Clay, Sir W.

Ross, D. R.

Clive, E. B.

Rous, hon. Capt.

Cobden, R.

Russell, Lord J.

Collett, J.

Stansfield, W. R. C.

Dennistoun, J.

Stewart, P. M.

Duncan, Visct.

Strutt, E.

Duncan, G.

Tancred, H. W.

Easthope, Sir J.

Thornely, T.

Ebrington, Visct.

Trelawny, J. S.

Ellice, E.

Tufnell, H.

Elphinstone, H.

Vane, Lord H.

Evans, W.

Villiers, hon. C.

Forster, M.

Wall, C. B.

Gibson, T. M.

Warburton, H.

Grey, rt. hn. Sir G.

Ward, H. G.

Guest, Sir J.

Williams, W.

Hastie, A.

Wrighton, W.

Hawes, B.

Wyse, T.

Hill, Lord M.

Yorke, H. R.

Humphery, Ald.

Hutt, W.

TELLERS.

Langston, J. H.

Duncombe, T.

Layard, Capt.

Hume, J.

Question again put, that the Speaker do now leave the Chair,
Mr. P. Borthwickmust oppose the Motion. He complained that some short time before, when he brought forward a Motion of considerable importance to the country, he was not allowed an opportunity of proceeding with it, as the House was counted out during his address. He had, however, always acted in a different spirit from that which was evinced towards himself in that respect, for he had since been in the House when the right hon. Baronet the Secretary for the Home Department addressed it for a considerable period with only thirty-five or thirty-seven Members present, and the right hon. Baronet was followed by the hon. and learned Member for Bath, who spoke for an hour with less than forty Members present. He wanted to assist the Government in preventing the House being counted out if possible, so that he had not adopted a course similar to that which had been taken with respect to himself. He asked the Government to "look upon this picture and on that"—to contrast his conduct in assisting them to prevent the House from being counted out with that which had been pursued with regard to himself—was it by such means as counting out the House that an important Motion ought to be met—was that the use that ought to be made of influence in this House? He thought it too bad that independent Members should be prevented from submitting to the House matters which they thought deserving its highest consideration. He would have the right hon. Baronet at the head of the Government remember, that
—" it is excellent
To have a giant's strength; but it is tyrannous
To use it like a giant."
Forgetting the example of
"Merciful Heaven,
That rather with its sharp and sulphurous bolt
Splits the unwedgeable and gnarled oak
Than the soft myrtle. But man, proud man,
Drest in a little brief authority,
Plays such fantastic tricks before high Heaven
As make the angels weep."
[Mr. G. Knight.—You have left out the "angry ape" from the quotation.] The hon. Member for Nottinghamshire says, (continued the hon. Member,) I have omitted the "ape" from the quotation. I

109
am very sorry for it, for I was not looking at him at the time. I do not mean the observation at all offensively." He would ask the House what was its opinion of those who took the advantage of counting out the House, and thus disposing of a Motion on a subject of much importance. He hoped that hereafter, when the Government made arrangements for counting out the House, they would give notice to hon. Members who had Motions coming on, that they had done so, and thus let them know how the matter stood, for it was impossible for a single Member to resist the purpose of the Government. The Motion of which he had given notice for that evening, was not one that had been lightly adopted—it was brought forward by him, because he believed that the bill to which it related Was one that could only produce mischief if carried into a law. He admitted that the Ecclesiatical Courts required some reform, but not such as was now proposed. The institutions they were attacking were instinct with the genius and spirit of better times than those in which we lived; they breathed in every one of their forms the acknowledgment, on the part of the people, that there was a power from which all law, ecclesiastical and civil, was derived, by which alone "Kings reign and princes decree justice." It was on the principle that from the mouth of the Church should proceed Ecclesiastical Law that these institutions were framed. But we lived in altered times, when everything was being revolutionized in religion, morals, and politics, and this Bill was an attempt to reform the Church Courts in accordance with the prevailing spirit of convenience, cheapness, and expediency, irrespective of the principles of truth and justice. The Bill as originally proposed was the suggestion of the Ecclesiastical Commission. But the proper court in which to consider the question of the abolition of these courts was the Convocation of the Clergy, the legal court of appeal from their decisions, and the authority constituted by the statutes for the consideration of such subjects. In former times, when the clergy taxed themselves at these convocations, the Crown was very glad to see them there; but since 1664, when they paid their last subsidy, no more had been heard of a wish that the clergy should assemble in Convocation. Yet it was owing to the forbearance of the clergy that the Convo-
110
cation was not now sitting and deliberating side by side with that House on the subject which they were now discussing. He brought forward a Motion for an Address to Her Majesty on the subject of a Convocation of the Clergy, one effect of which would be to enable them to have the assistance of a Convocation of the Clergy in this very matter; but he was met by a proceeding which was equivalent to telling him that it was not worthy of their consideration. This Bill was not at all similar to the Bill of last year, both being brought in by the same Government. Would any man tell him that there were, in the wide range of chemistry, any two substances more unlike than this Bill and the Bill of last year. Yet they were both the Bills of a Conservative Government; and this was the mode in which they changed their course of proceeding, and introduced a totally different Bill from that of last Session, after telling the country, through their miserable organs, that they required no advice on the subject. The Bill of the present year preserved some of the Diocesan Courts, whilst it abolished others. Now, why, he would ask, had some of those Courts been abolished and some preserved? For two very clear and intelligible reasons—first, on account of deficient authority; and, secondly, in consequence of the absence of all principle in the Bill, he should oppose it in every manner which the forms of the House allowed. The hon. Member then moved that the House go into Committee this day six months.
The House divided: Ayes 62; Noes 25: Majority 37.

List of the AYES.

Ackland, T. D.

Forman, T. S.

Antrobus, E.

Fremantle, rt. hn. Sir. T.

Arkwright, G.

Gaskell, J. Milnes

Baird, W.

Gladstone, rt. hn. W. E.

Boldero, H. G.

Glynne, Sir S. R.

Botfield, B.

Gordon, hon. Capt.

Bowles, Adm.

Graham, rt. hn. Sir J.

Broadley, H.

Granger, T. C.

Chetwode, Sir J.

Greene, T.

Clerk, Sir G.

Hamilton, Lord C.

Cockburn, rt. hn. Sir G.

Heathcote, Sir W.

Corry, rt. hn. H.

Herbert, hon. S.

Cripps, W.

Hinde, J. H.

Darby, G.

Hodgson, R.

Davies, D. A. S.

Hope, hon. C.

Dickinson, F. H.

Hope, G. W.

Douglas, Sir C. E.

Hussey, T.

Escott, B.

Jervis, J.

Flower, Sir J.

Johnstone, Sir J.

111

Kemble, H.

Richards, R.

Knatchbull, rt. hn. Sir E.

Round, J.

Knight, H. G.

Rushbrooke, Col.

Lennox, Lord A.

Sibthorp, Col.

Liddell, hon. H. T.

Smyth, Sir H.

Mackenzie, W. F.

Sutton, hn. H. M.

Masterman, J.

Thesiger, F.

Milnes, R. M.

Trench, Sir F. W.

Munday, E. M.

Vivian, J. E.

Nicholl, rt. hon. J.

Williams, W.

Palmer, G.

Peel, rt. hon. Sir R.

TELLERS.

Plumptre, J. P.

Young, J.

Praed, W. T.

Pringle, A.

List of the NOES.

Baring, rt. hon. F. T.

Humphery, Ald.

Barnard, E. G.

Manners, Lord J.

Berkeley, hon. H. F.

Murray, A.

Bouverie, hon. E.

Phillpotts, J.

Butler, hon. Col.

Protheroe, E.

Christie, W. D.

Russell, Lord J.

Dalrymple, Capt.

Thornely, T.

Duncombe, T.

Tufnell, H.

Dundas, D.

Vivian, hon. Capt.

Elphinstone, H.

Warburton, H.

Grey, rt. hn. Sir. G.

Wrightson, W. B.

Hawes, B.

TELLERS.

Hill, Lord M.

Borthwick, P.

Hume, J.

Collett, W. R.

House in Committee.
On the first Clause, Repeal of former Acts,
Sir G. Greymoved an amendment,
"In page 3, line 12, after 'defamation,' to insert the words 'schism, heresy, blasphemy, perjury, incest, adultery, fornication, drunkenness, or other evil-living, and of smiting or laying violent hands on another, in any church or churchyard, and of maliciously striking any person with, or drawing any weapon, in any church or churchyard, to the intent to strike another with the same, and of brawling;' "
which would remove from the Ecclesiastical Courts all criminal jurisdiction. He was at a loss to know why, in the face of the recommendation of the Ecclesiastical Commissioners, this jurisdiction was retained in several cases in which the Commissioners represented that, even if the power was attended with any benefit, that advantage was counterbalanced by the odium which the Courts excited. Indeed, the most effectual argument that could be advanced against this jurisdiction would be to read the terms in which the Archbishop of Canterbury and his colleagues had denounced it.
Dr. Nichollsaid, it was his object (and if it were not effected by the Clause as it stood he would amend it) to preserve the criminal jurisdiction of these Courts in
112
cases of brawling only in the church or church-yard, not in edifices connected with the church. The effect of this would be to give the clergy the means of checking any indecorous insubordination in the church, or any indecent interruption of sacred offices, but not to interpose ecclesiastical authority in cases arising out of proceedings in vestry rooms, &c. Unless the jurisdiction of these Courts were so far, at least, preserved, there would be no means of controlling any unruly clerk or organist, for example, who might improperly conduct himself during the service of the church. As to the punishment of parties for immoralities and other like offences of Ecclesiastical consequence, he was willing that the penal consequences should not follow, and that the Courts should not have power even to inflict costs on parties cited; and that if those who were cited did not appear no process of contempt should issue. But the Church should have the power of excluding from her communion those who misconducted themselves: a power possessed by all religious sects, and surely not to be withheld from the Established Church. A clause so framed would be acceptable to certain parties; who would feel the entire abolition of ecclesiastical jurisdiction in such cases as an undeserved injury and injustice to the Church of England.
Mr. Jervissaid he wished to make the Bill as perfect as possible, and therefore entreated the right hon. Gentleman to reconsider the proposition of the right hon. Baronet. Last year the great merit of the Bill then proposed by the Government was stated to be the removal of all criminal jurisdiction, and its enactments were framed in accordance with the Amendment now proposed. As to disturbance of public worship or brawling, that was an offence punishable at Common Law, without the expense of a citation and protracted litigation in an Ecclesiastical Court, and therefore there could be no real ground for retaining this jurisdiction. When the right hon. and learned Gentleman spoke of all religious sects possessing the power of rejecting from their respective communions parties who misconducted themselves, let it be remembered that no sects possessed courts for adjudication on offences. Nor was there any necessity why for the Church of England there should be any greater security against the admission into her com-

113
munion of improper persons than the power which her clergy, in common with all others, possessed of excluding from the sacred rites those who were known evil livers, or who notoriously misconducted themselves. In addition to this the criminal jurisdiction of those Courts without penal power or process of contempt was utterly nugatory.
Lord J. Russellthought that the solemn recommendation of the Commissioners, supported as it had been by them in their Report, ought not to be disregarded.
The Committee divided on the question that the words be inserted:—Ayes 40; Noes 62: Majority 22.

List of the AYES.

Bannerman, A.

Humphrey, Ald.

Baring, rt. hn. F. T.

Maher, N.

Barnard, E. G.

Phillpotts, J.

Borthwick, P.

Protheroe, E.

Bowring, Dr.

Richards, R.

Brotherton, J.

Roebuck, J. A.

Browne, hon. W.

Russell, Lord J.

Buller, C.

Stansfield, W. R. C.

Butler, P. S.

Strutt, E.

Christie, W. D.

Tancred, H. W.

Collett, J.

Thornely, T.

Dalrymple, Capt.

Tufnell, H.

Duncombe, T.

Vivian, hon. Capt.

Dundas, D.

Warburton, H.

Elphinstone, H.

Watson, W. H.

Escott, B.

Williams, W.

Evans, W.

Wrightson, W. B.

Granger, T. C.

Yorke, H. R.

Hastie, A.

Hawes, B.

TELLERS.

Hill, Lord M.

Jervis, J.

Hume, J.

Grey, Sir G.

List of the NOES.

Acland, T. D.

Gladstone, rt. hn. W. E.

Baird, W.

Glynne, Sir S. R.

Baskerville, T. B. M.

Godson, R.

Botfield, B.

Goulburn, rt. hon. H.

Bowles, Adm.

Graham, rt. hn. Sir J.

Boyd, J.

Heathcote, Sir W.

Buck, L. W.

Henley, J. W.

Cardwell, E.

Herbert, hon. S.

Chetwode, Sir J.

Hinde, J. H.

Clayton, R. R.

Hodgson, R.

Clerk, Sir G.

Hope, hon. C.

Copeland, Ald.

Hope, G. W.

Corry, rt. hon. H.

Hotham, Lord

Cripps, W.

Hussey, T.

Darby, G.

Kemble, H.

Dickinson, F. H.

Knatchbull, rt. hn. Sir E

Fitzroy, hon. H.

Knight, H. G.

Flower, Sir J.

Liddell, hon. H. T.

Forman, T. S.

Lopes, Sir R.

Fremantle, rt. hn. Sir T.

Mackenzie, W. F.

Gaskell, J. Milnes

Manners, Lord J,

114

Masterman, J.

Rushbrooke, Col.

Milnes, R. M.

Sibthorp, Col.

Morris, D.

Smyth, Sir H.

Muntz, G. F.

Somerset, Lord G.

Nicholl, rt. hon. J.

Sutton, hon. H. M.

Palmer, R.

Thesiger, Sir F.

Plumptre, J. P.

Trench, Sir F. W.

Pollington, Visct.

Vivian, J. E.

Praed, W. T.

Price, R.

TELLERS.

Pringle, A.

Baring, H.

Round, J.

Young, J.

Sir G. Greymoved an Amendment, to the effect that the jurisdiction of the Ecclesiastical Courts should not extend to cases of brawling in the churches or church-yard.
Dr. Nichollcontended that the jurisdiction of the Church extends to the maintenance of order within itself.
Mr. C. Bullersaid, that the opinions of the arch-bishops and bishops composing the Ecclesiastical Commission was, he believed, that the Common Law of the land was sufficient to meet the offences in question. It was absurd to suppose that the ordinary tribunals were not competent to punish such offences.
The Solicitor Generalthought, that the hon. and learned Gentleman (Mr. C. Buller) was mistaken as to the opinion of the Ecclesiastical Commissioners. The Common Law was not sufficient to meet every case of brawling in churches; there were many cases in which a congregation might be scandalised, but in respect to which no indictment at Common Law would lie.
Mr. Jervissupported the Amendment, and remarked that to disturb public worship in a church was indictable at Common Law. To be consistent the right hon. Baronet (Sir R. Peel), who had consolidated the Criminal Acts into one code, should withdraw from that code all ecclesiastical offences. This Bill, as it stood, would leave the same offence, if committed in a church or church-yard, to be dealt with by a different tribunal from that which would take cognizance of it were it committed in a dissenting chapel or burial-ground.
Dr. Nichollremarked, that to disturb any Christian congregation was a criminal offence, and punishable as such by the law as it stood.
Mr. Watsonsaid, that any disturbance of public worship ought to be punishable as a criminal offence; but what he and his hon. and learned Friends contended,

115
was, that the civil tribunals of the country were fully competent to deal with those offences; and it was absurd to say, that because the offence was committed in a church, therefore it should not come under the jurisdiction of the Courts in Doctors'-commons.
Mr. Roebuckwas at a loss to understand why there should be a separate and distinct jurisdiction for this class of offences. He denied the necessity for Ecclesiastical Law; he quarrelled with the name "Ecclesiastical Jurisdiction." What was the ground upon which that jurisdiction was asserted? That the Church was bound to take care of the souls of the people, and required, therefore, the power to punish offences. But it was a bare superstition that any one could take care of any man's soul but his own. Let him take care of that, and it was as much as he could do. To take care of my soul's health (said the hon. and learned Gentleman), is the plea put forth by the clergy; but that means to have the power of dipping their hands into my pocket, and, under the name of excommunication, to obtain ruinous costs. The whole question is one of money and costs, and, under the name of Ecclesiastical Jurisdiction, you give the means of drawing from the people a larger sum in costs, than you could get by the Common Law—so that this sole remnant of the old gigantic papal power in this country is maintained to enable the right hon. and learned Gentleman opposite (Dr. Nicholl) to get costs. Let us not mince the matter. That is what is meant by it and nothing else. The soul's health! The soul of man is a matter of far too high consideration for any purpose of Ecclesiastical Jurisdiction at this time of day. In the fourteenth century, it might have made him (Mr. Roebuck) very unhappy, had he been told by the right hon. and learned Gentleman, that he had committed some offence against the Church, and it was necessary for his soul's health, that he should be punished by the Ecclesiastical Courts; but now, with the increased knowledge of the nineteenth century, he bade the right hon. and learned Gentleman defiance, and would tell him, that his soul was under his own jurisdiction, and not under that of the right hon. and learned Gentleman, or his Bishop. He said then, that this so-called Ecclesiastical Law, was merely the administra-
116
tion of ordinary law, under an extraordinary form, and paid for by extraordinary penalties. If one man assaulted another in the street, it was as much an offence as if the assult were committed in a church-yard. Why then should there be a different tribunal in the one case than the other? If a man knocked another down on the highway and robbed him, he would be tried by the magistrates, or a jury; but if he were charged with brawling in a church or church-yard, he was made subject to the Ecclesiastical Courts, and must be tried by the right hon. and learned Gentleman. But what made the right hon. and learned Gentleman an Ecclesiastical Judge? He had none of the properties of a priest about him? He was a layman, like himself (Mr. Roebuck). It was understood that all Ecclesiastical Law, as such, had been abrogated; and the Ecclesiastical jurisdiction was simply a different form of administering the common law in certain matters. Then, what was meant by bringing in an Ecclesiastical Courts Bill, at this time of day, at all. Under the name of Ecclesiastical jurisdiction, it was supposed that religion was taken care of, though those courts had now no connection with religion whatever. The Ecclesiastical Court was but another and a bad form of administering the civil law, divested of all the safeguards and advantages with which the ordinary tribunals were accompanied. He could see no grounds for refusing the admission of the words proposed, and should vote for the Amendment.
Sir G. Greysaid, the object of his Amendment appeared to be somewhat misunderstood by the hon. and learned Gentleman. He proposed to follow out the recommendations of the Ecclesiastical Commissioners, and the principles of common sense, by abolishing the jurisdiction of the Ecclesiastical Courts, in regard to this description of offences, and bringing them under the cognizance of the ordinary tribunals of the country. He had no desire that persons guilty of brawling should escape punishment, but that they should not be subject to the Ecclesiastical Courts.
Mr. Warburtonwould ask, what superior sanctity there was in the burial-ground of a church over the burial-ground of a dissenting chapel?
Mr. B. Escottcould not understand why, if there was already a law providing pu-

117
nishment for the offence, they should institute another tribunal, and, as it were, heap up accumulative punishments for the same crime.
The Solicitor Generalremarked, that there were certain offences in the class in question which were, no doubt, punishable by indictment at Common Law, but there were others which were not. For instance, a person scandalizing a congregation by standing with his hat on during divine service, and persisting in the offence, that was not an offence punishable by indictment, and, therefore, the Ecclesiastical jurisdiction was necessary.
Dr. Bowringwould put to the hon. and learned Gentleman, the case of a person entertaining conscientious convictions that under no circumstances ought he to uncover his head, entering a church with his hat on. Would the hon. and learned Gentleman make that person liable to all the pains and penalties of Ecclesiastical law?
The Solicitor Generaldid not think he ought to give any answer to the hon. Gentleman's question; but the answer he should give, was, that such a person as he had spoken of ought to keep away from the church.
Mr. Elphinstoneadmitted, that any person disturbing a place of worship, ought to be punished; but he could not understand what difference they could, as legislators, make between the offence when committed in a church, than if committed in any other place of Christian worship.
Mr. Jerviscontended, that to disturb public worship in the church was an indictable offence at Common Law. If the offence was aggravated, they could increase the punishment in proportion, without withdrawing it from the jurisdiction of the Civil Courts. The only object of making that offence cognizable by Ecclesiastical Courts must be to ruin the party offending, by subjecting him to enormous costs. The proposition, too, he might add, would not preserve churchyards from desecration.
Colonel Sibthorpremarked, that during the seventeen years in which he had sat in that House, he had never heard such an observation as that made relative to wearing a hat in church by the hon. Member for Bolton. All he could say was, that if the hon. Member attempted any such thing in a church of which he was church-
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warden, or indeed was present in, he would make very little difficulty of seizing and turning him out. He was a churchman himself, but if he went into a meeting-house, and sat with his hat on, he thought he would richly deserve to be put in the stocks, as the hon. Member for Bolton would, did he behave in a church in a similar manner.
Dr. Bowringremarked, that there was a very numerous and respectable religious sect, who, in their places of worship, never took their hats off. His inquiry was, whether if a Friend—a Quaker—acted so injudiciously as to persevere in remaining covered, the Common Law would reach him? The gallant Member for Lincoln was hardly justified in supposing that he would be the individual likely to be guilty of such an indiscretion.
Mr. C. Buttersaid, he feared that if the hon. and gallant Member for Lincoln turned the hon. Member for Bolton forcibly out of a church, he himself would be guilty of brawling, and liable to Ecclesiastical punishment. What he wished to know was, why they refused to place improper acts committed in a church in a position to be reached by the Common Law? The Common Law, he contended, contained in itself sufficient power. Why, then, should he, for a certain class of offences, be deprived of the benefit of trial by jury —of vivâ voce cross-examination of witnesses— of all those safe-guards which caused the people to place confidence in the administration of the law, under the jurisdiction of which they lived?
Mr. Roebuckwould ask the simple question, whether or not there were a class of offences which the Common Law would not reach? That was the doctrine of the Solicitor General; that was his doctrine with reference to the illustration of a man keeping his hat on in church. Now, was there no Common Law jurisdiction which would extend to a man offending a congregation by such a proceeding? If such a jurisdiction did exist, they had no right to introduce another touching the same point.
Mr. Watsonsaid, that any man wearing his hat in church for the purpose of offending the congregation was guilty of an indictable offence, and one upon which a temporal tribunal was quite competent to decide.
Sir R. Peelthought there were many offences connected with behaviour in

119
churches of so indefinite and undefinable a character, that they had better be left to the jurisdiction of Church Courts.
Mr. Humeunderstood that the right hon. Baronet wished to leave offences of an indefinite character to the decision of Ecclesiastical Courts.
Mr. Roebucksaid, that any offence cognizable by Ecclesiastical Courts was, under another name, cognizable by Common Law Courts. He challenged the hon. and learned Gentleman, the Solicitor General, to point out a single instance in which such was not the case. Let him give them another illustration—that of the hat was not fortunate. Was it only because an offence was indefinite, it should be subjected to Ecclesiastical jurisdiction? The right hon. and learned Gentleman opposite must know very well, that the mode in which Ecclesiastical Judges dealt with facts, was the most preposterous attempt to get at truth which was ever palmed off upon a civilized nation. He wished to know why they were to withdraw from the ordinary jurisdiction of the country—one in which the people had confidence—an offence, because it was an indefinite one, and he again challenged the hon. and learned Solicitor General, to cite an instance in which offending a congregation was not an indictable offence.
Sir R. Peelsaid, that the hon. and learned Member for Bath was remarkably pugnacious to-night. He had uttered so many challenges, that he thought he would be placed in an awkward position if they were all accepted. Now, as to jurisdictions, independent of the Common Law Courts, he might cite the instance of the House wherein he sat, in which there was a jurisdiction established to maintain order quite independent of the Courts of Common Law. The Speaker, as they all knew, exercised a jurisdiction for that purpose, and was enabled to punish a breach of order. He remembered, indeed, the case of a member of the Society of Friends in that House, who persisted in wearing his hat in the House until the Speaker exercised his authority to remove it. It was, then, occasionally necessary to exercise a jurisdiction independent of the Courts of Common Law.
The Solicitor-Generalsaid, that whatever might be the general legal accomplishments of his hon. and learned Friend the Member for Bath, there was at least
120
one part of the law in which he seemed quite at home—in the law of peremptory challenge. The hon. and learned Member was, indeed, so much in the habit of catechising hon. Members of that House, that he came naturally to adopt on all occasions a very magisterial air. However, he would not be moved by the lofty manner of his hon. and learned Friend, but he would answer his question, as well as that of the hon. Member for Kinsale. It was certainly not decorous to see two lawyers in that House contradicting each other, and quarrelling about a point of law. His hon. and learned Friend staked his professional reputation upon his proposition —a proceeding which placed him in somewhat an unenviable position, because he did not at all agree to stake his own professional reputation on the original doctrine which he had laid down; and yet had it not been for the bold assertions and confident tone of his hon. and learned Friend, he would have been inclined to say, that he considered it to be an unquestionable doctrine of law, that for a man to offend a congregation by sitting with his hat on, was not an indictable offence. He might entertain that opinion yet, but he did not choose to put it forward in the bold and confident manner of his hon. and learned Friend. With respect to some of the challenges thrown out, he must say, that the hon. and learned Member, using the word "cumulative," was quite mistaken in its employment: that word was only applicable when more than one punishment was allotted to the same offence. The cases which he referred to, were those in which he maintained that the Courts of Common Law had no jurisdiction. The hon. and learned Member for Bath had called on him for additional instances of a man offending a congregation, and not being liable to indictment. He could mention many. On the subject of brawling itself, with reference to an assembled congregation, the hon. Member for Bath knew well that brawling was in general constituted by offensive words used in a church or other sacred place. Now, that might occur when no congregation was assembled for the purpose of worship, and it was only an ecclesiastical offence, by reason of the sacredness of the place. The hon. and learned Member for Bath knew that for such offences there could be no civil or criminal proceedings in Common

121
Law Courts. He thought, therefore, that he had settled the challenge thrown out upon that point.
The Committee divided, on the question that the words proposed by Sir G. Grey be inserted.—Ayes 61; Noes 109; Majority 48.

List of the AYES.

Baring, rt. hon. F. T.

Langston, J. H.

Barnard, E. G.

Layard, Capt.

Berkeley, hon. Capt.

Maher, N.

Bowes, J.

Mitcalfe, H.

Bowring, Dr.

Mitchell, T. A.

Brotherton, J.

Morison, Gen.

Browne, hon. W.

Murray, A.

Buller, C.

Ord, W.

Busfeild, W.

Palmerston, Visct.

Butler, P. S.

Parker, J.

Christie, W. D.

Phillpotts, J.

Clive, E. B.

Plumridge, Capt.

Colebrooke, Sir T. E.

Protheroe, E.

Collett, J.

Roebuck, J. A.

Dalmeny, Lord

Smith, rt. hn. R. V.

Dalrymple, Capt.

Stansfield, W. R. C.

Duncan, G.

Stock, Mr. Serj.

Duncombe, T.

Strutt, E.

Dundas, D.

Tancred, H. W.

Ebrington, Visct.

Thornely, T.

Elphinstone, H.

Trelawny, J. S.

Escott, B.

Tufnell, H.

Evans, W.

Vivian, J. H.

Forster, M.

Warburton, H.

Granger, T. C.

Ward, H. G.

Guest, Sir J.

Watson, W. H.

Hastie, A.

Williams, W.

Hawes, B.

Wrightson, W. B.

Hill, Lord M.

Yorke, H. R.

Hobhouse, rt. hn. Sir J.

TELLERS.

Hume, J.

Grey, Sir G.

Humphery, Mr. Ald.

Jervis, J.

List of the NOES.

Acland, T. D.

Clayton, R. R.

Alford, Visct.

Clive, Visct.

Antrobus, E.

Clive, hon. R. G.

Archdall, Capt. M.

Cockburn. rt. hn. Sir G.

Bailey, J.

Codrington, Sir W.

Baird, W.

Copeland, Mr. Ald.

Barrington, Visct.

Corry, rt. hon. H.

Baskerville, T. B. M.

Cripps, W.

Boldero, H. G.

Darby, G.

Borthwick, P.

Davies, D. A. S.

Botfield, B.

Dickinson, F. H.

Bowles, Adm.

Disraeli, B.

Boyd, J.

Douglas, Sir C. E.

Bramston, T. W.

Du Pre, C. G.

Broadley, H.

Eliot, Lord

Bruce, Lord E.

Fitzroy, hon. H.

Buck, L. W.

Flower, Sir J.

Cardwell, E.

Forman, T. S.

Carnegie, hon. Capt.

Fremantle, rt. hn. Sir T.

Charteris, hon. F.

Gardner, J. D.

Chelsea, Visct.

Gaskell, J. Milnes

Chetwode, Sir J.

Gladstone, rt. hn. W. E.

Cholmondeley, hn. H.

Gladstone, Capt.

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Glynne, Sir S. R.

Marton, G.

Gordon, hon. Capt.

Master, T. W. C.

Gore, M.

Masterman, J.

Goring, C.

Mordaunt, Sir J.

Goulburn, rt. hon. H.

Mundy, E. M.

Graham, rt. hon. Sir J.

Neville, R.

Greenall, P.

Nicholl, rt. hon. J.

Gregory, W. H.

Norreys, Lord

Hamilton, Lord C.

Oswald, A.

Hanmer, Sir J.

Palmer, R.

Hardy, J.

Patten, J. W.

Heathcote, Sir W.

Peel, rt. hn. Sir R.

Henley, J. W.

Plumptre, J. P.

Henniker, Lord

Polhill, F.

Hinde, J. H.

Pollington, Visct.

Hodgson, R.

Pringle, A.

Hope, hon. C.

Pusey, P.

Hope, G. W.

Rashleigh, W.

Hotham, Lord

Round, J.

Hughes, W. B.

Rushbrooke, Col.

Hussey, T.

Sibthorpe, Col.

Inglis, Sir R. H.

Smyth, Sir H.

Johnstone, Sir J.

Somerset, Lord G.

Kemble, H.

Stanley, Lord

Knatchbull, rt. hn. Sir E.

Sutton, hon. H. M.

Knight, H. G.

Thesiger, Sir F.

Law, hon. C. E.

Thompson, Mr. Ald.

Lennox, Lord A.

Trench, Sir F. W.

Liddell, hon. H.T.

Vivian, J. E.

Lopes, Sir R.

Wood, Col. T.

Lyall, G.

TELLERS.

Mackenzie, W. F.

Young, J.

Manners, Lord J.

Baring, H.

Sir G. Greyproposed, as another amendment, to insert words abolishing Ecclesiastical jurisdiction in cases of Church-rate.
Dr. Nichollsaid, there was no other tribunal at present to decide the validity of Church-rates; and as the question of extent of jurisdiction in this respect was in several cases raised before the temporal courts, it was manifestly impossible to legislate with such a view as that proposed, until those cases were decided.
Mr. Collettbegged to ask to what purpose Church-rates were applied.
Dr. Nicholl: To the necessary repairs of the fabric of the Church, to the celebration of divine service, and, with the consent of the majority of the vestry, to the purposes of ornament.
The Committee divided on the question that the words be inserted.—Ayes 66; Noes 107: Majority 41.

List of the AYES.

Anson, hon. Col.

Brotherton, J.

Baring, rt. hon. F. T.

Browne, hon. W.

Barnard, E. G.

Buller, C.

Bellew, R. M.

Busfeild, W.

Bowes, J.

Butler, P. S.

Bowring, Dr.

Chapman, B.

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Christie, W. D.

Murray, A.

Clive, E. B.

Ord, W.

Colebrooke, Sir T. E.

Palmerston, Visct.

Collett, J.

Parker, J.

Cowper, hon. W. F,

Phillpotts, J.

Denison, W. J.

Plumridge, Capt.

Duncan, G.

Protheroe, E.

Ebrington, Visct.

Roebuck, J. A.

Elphinstone, H.

Scott, R.

Evans, W.

Smith, rt. hon. R. V.

Forster, M.

Stansfield, W. R.

Granger, T. C.

Stuart, W. V.

Grey, rt. hon. Sir G.

Stock, Mr. Serj.

Grosvenor, Lord R.

Strutt, E.

Guest, Sir J.

Talbot, C. M.

Hawes, B.

Tancred, H. W.

Hill, Lord M.

Thorneley, T.

Hobhouse, rt. hn. Sir J.

Trelawney, J. S.

Hume, J.

Vivian, J. H.

Humphrey, Mr. Ald.

Wakley, T.

Hutt, W.

Warburton, H.

Labouchere, rt. hn. H.

Ward, H. G.

Langston, J. H.

Watson, W. H.

Layard, Capt.

Williams, W.

Mangles, R. D.

Yorke, II. R.

Mitcalfe, H.

Mitchell, T. A.

TELLERS.

Morris, D.

Tufnell, H.

Morison, Gen.

Jervis, J.

List of the NOES.

Acland, T. D.

Du Pre, C. G.

Alford, Visct.

Eliot, Lord

Antrobus, E.

Fitzroy, hon. H.

Bailey, J.

Flower, Sir J.

Baird, W.

Forbes, W.

Baring, T.

Forman, T. S.

Barrington, Visct.

Fremantle, rt. hn. Sir T.

Baskerville, T. B. M.

Gardner, J. D.

Boldero, H. G.

Gaskell, J. Milnes

Borthwick, P.

Gladstone, rt. hn. W. E.

Bowles, Adm.

Gladstone, Capt.

Boyd, J.

Glynne, Sir S. R.

Bramston, T. W.

Godson, R.

Broadley, H.

Gordon, hon. Capt.

Bruce, Lord E.

Goulburn, rt. hon. H.

Buck, L. W.

Graham, rt. hn. Sir J.

Cardwell, E.

Greenall, P.

Carnegie, hon. Capt.

Gregory, W. H.

Charteris, hon. F.

Hanmer, Sir J.

Chelsea, Visct.

Hardy, J.

Chetwode, Sir J.

Heathcote, Sir W.

Cholmondeley, hon. H

Henley, J. W.

Clayton, R. R.

Henniker, Lord

Clive, Visct.

Hinde, J. H.

Clive, hon. R. H.

Hodgson, R.

Cockburn, rt. hn. Sir G.

Hope, hon. C.

Codrington, Sir W.

Hope, G. W.

Copeland, Mr. Ald.

Hotham, Lord

Corry, rt. hon. H,

Hughes, W. B.

Cripps, W.

Inglis, Sir R. H.

Darby, G.

Johnstone, Sir J,

Davies, D. A. S.

Kemble, H.

Dickinson, F. H.

Knatchbull, rt. hn. Sir E.

Disraeli, B.

Knight, H. G.

Douglas, Sir C. E.

Law, hon. C. E.

Drummond, H. H.

Lennox, Lord A.

124

Lopes, Sir R

Rashleigh, W.

Lowther, hon. Col.

Round, J.

Lyall, G.

Rushbrooke, Col.

Mackenzie, W. F.

Shirley, E. J.

Master, T. W. C.

Sibthorp, Col.

Masterman, J.

Somerset, Lord G.

Maxwell, hon. J. P.

Stanley, Lord

Mordaunt, Sir J.

Sutton, hn. H. M.

Mundy, E. M.

Tennent, J. E.

Neville, R.

Thesiger, Sir F.

Nicholl, rt. hon. J.

Thompson, Mr. Ald.

Norreys, Lord

Trench, Sir F. W.

Oswald, A.

Vivian, J. E.

Palmer, R.

Waddington, H. S.

Palmer, G.

Wood, Col. T.

Peel, rt. hon. Sir R.

Wortley, hon. J. S.

Plumptre, J. P.

TELLERS.

Pollington, Visct.

Young, J.

Pusey, P.

Pringle, A.

Mr. C. Bullerproposed an Amendment, to the effect that testamentary matters should be taken out of the jurisdiction of Ecclesiastical Courts, and referred to the Common Law Courts, or the Court of Chancery. He looked on it as a disgrace to the jurisprudence of England that, in the year 1844, it should be necessary for anybody to move that such subjects as wills should be taken from the Ecclesiastical Courts and given to the competent judges of the Civil Courts. The law now maintained this absurdity, that the will of one man was two documents, one relating to his personal, and another to his real property. This had its origin in the times when real was the only property in the kingdom, and when extensive mercantile incomes, shares in companies, and 30,000,000 l. from the funds were never dreamed of. He approved of a probate of wills, but thought there would be no difficulty in attaching such a system to the Common Law Courts, or the Court of Chancery. In the case of real property, however, Doctors' Commons had no jurisdiction. But was it not preposterous, that the same identical document should be inquired into before different tribunals, which were not amenable to the same court of appeal? Take the will case of Mr. Wood, of Gloucester. It had given rise to much litigation; and as Mr. Wood had left personal and real property, the Privy Council might hear the Appeal in one case, and the House of Lords in the other. The will might be held good in one court and a forgery in the other. He had the testimony of the Real Property Commissioners that the time was come when the jurisdiction of the Ecclesiastical Courts should be put an end to. Was there anything in the

125
character of those concerned in the business of those Courts, that could induce men to submit to such an anomaly? It was notorious that the proctor's judgment was not trusted on points of law, and that the only effect of their business was, to add to the fees. Their modes of conducting a legal inquiry through interrogatories, was also a source of great expense. But it was said, that Doctors' Commons was composed of men who soared above the prejudice of mere municipal law; and who, being versed in that civil law which was the foundation of the general laws of most European states, were frequently able to enlighten the public with their views on great international questions arising in the Court of Admiralty and elsewhere. He did not speak disrespectfully of this body, because, though he wished to put an end to their existence, he should do so in the most respectful manner. If it was desirable to keep up a body of men to cultivate a branch of abstract science, it was all very well to send them to schools or elsewhere, where they could indulge in this intellectual exercise; but it was monstrous to make the people pay for that which was of no benefit to them. It was strange that these learned doctors were never consulted on that Roman law, of which we were told they had an exclusive knowledge. It so happened that he practised a little in a court where questions arising in Ceylon, the Cape of Good Hope, &c, were litigated. Now, these arose out of Dutch law, founded, as every body knew, on the Roman. Again, questions of Scotch law came there, also founded, in a great degree, on the Roman. Now, if there was the great proficiency supposed in these learned doctors, in all such cases doctors would be seen coming in to expound the laws of the Romans. He believed he might appeal to his learned friends the doctors in that house, whether since Dr. Lushington had retired, a learned doctor was ever seen to practise in the court alluded to? The fact was, the public looked to minds practised in general judicial questions in preference to any such select body as those learned doctors.
Dr. Nichollsaid, this question would be raised on a further stage of the Bill by the right hon. Member for Devonport (Sir G. Grey), who had given notice of a Motion for that purpose. [Sir G. Grey said, he had no notice on the Paper to that effect.] He must in that case meet as well as he
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could the Motion of the hon. and learned Gentleman, though it was rather a surprise upon him. This jurisdiction had been exercised from time immemorial by the Ecclesiastical Courts. [Mr. Hume—As a remnant of Popery.] It might be a remnant of Popery or anything else, but having been so exercised, he conceived that the House and the Legislature would not be disposed 10 transfer the jurisdiction unless it were shown that it had been inadequately exercised by those Courts hitherto, or that the transfer would be attended with great and decided advantage to the public at large. He believed it was granted that the Superior Courts of London had done their duty satisfactorily. Including all sorts of business the expenses of the Ecclesiastical Courts were not so great as in matters of similar importance in the Courts of Common Law. The suitors were satisfied in the great majority of cases, and the judges of the Common Law Courts had frequently declared, in cases which they had had to examine, their satisfaction with the decisions of the ecclesiastical judges. Very few cases had been appealed in which judgment had been, reversed. Their cases were brought to a decision as speedily in the Superior Ecclesiastical Courts as in the Courts of Common Law. That was proved by the evidence taken by the Admiralty Courts Committee. The petitions for an alteration of the system had been sent up for the most part from persons who were directly interested in the question. He had received that morning, from a solicitor in his neighbourhood, a copy of a circular form which had been sent into the country by the solicitor's agent in town. That showed the way in which these petitions were got up. On the whole, he was altogether opposed to the Motion.
Mr. W. H. Watsonthought the public ought to have to pay only one set of lawyers. It was certainly a very fascinating plunder to plunder the estates of deceased persons, and that he supposed was a reason why they should be plundered right and left. The object of the Bill before the Committee was, to perpetrate the most offensive kind of plunder that ever was perpetrated. Supposing, for instance, the right hon. Gentleman who last addressed the House were to say in his will, " I devise all my real and personal estate to A. B." [Lord Stanley: "To Mr. Watson."] He thanked the

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noble Lord. Well, immediately all kinds of expenses of caveats, proctors' fees, examinations in a private room in the country, and other matters were to be met, before what was called probate of the will could be granted. The will was disputed, the sanity of the testator was called in question, and then they came to another system of law. The common lawyers then came in, and they came to a legitimate mode of litigation, and examined witnesses viva voce by cross-examination in the face of a jury. The question was tried after perhaps five years, or it might not be till nineteen years, and till after the party had sold his estate four or five times over. He gave country gentlemen notice that their estates were left open to the litigation of the common lawyers for nineteen years, 364 days, and some hours after they might have obtained them by will, though they might have changed hands many times. They first went through Doctors'-Commons for the personalty; then, if disputed, the will was taken to the Common Law Courts, and at last it was carried to the House of Lords to have some question determined upon it; but they did not end there, for they wanted to know what it all meant, and they then went to Chancery to determine its meaning. Then they had to litigate another question—the trusts of the will, which the Court of Chancery had to determine. Really, at this period, they ought to have one tribunal to determine these questions, either by Judge or Jury, and for the purpose of establishing wills.
Mr. Jervisthought it was not fair to pick out one or two isolated cases upon which a will was subject to be contested, and to forget the advantages generally to the public in having cheap local courts for the administration of wills. The hon. Member for Liskeard, and those who supported him, voted for the Bill of last year, which went to centralize the courts which they now wished to abolish; this, certainly, was not very consistent. The Bill under the consideration of the House, would provide local courts open to every body, and there would also be local registry accessible for immediate inspection. These he thought to be great advantages.
Mr. Humewould support the amendment of the hon. Member for Liskeard, and wondered that such strenuous churchmen as the hon. Gentlemen opposite were
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so willing to support abuses which were the relics of Popery.
Sir R. H. Inglismaintained, that the practice of the Ecclesiastical Courts for cheapness and rapidity had the preeminence by far over the practice of Chancery. Out of 10,000 cases of wills that passed every year through these courts, not 200 became the subjects of subsequent litigation. The hon. Member for Montrose knew perfectly well that, though the Bishops nominated the Judges of the Ecclesiastical Courts, they had nothing whatever to do with the administration of the law. He should oppose the Motion.
Mr. Elphinstonesaid, that all business connected with wills in Doctors'-Commons was exceedingly well done, and the charges were much less than they would be in Courts of Equity, and in his opinion, the proposition of the hon. and learned Member for Liskeard would have the effect of increasing the grievances complained of rather than of diminishing them.
Mr. Roebuckobserved, that it had been admitted by his hon. and learned Friend that these courts, as regarded testamentary cases, were only another stage in the proof of the validity of a will. If this was the case, the continuance of these courts was only to impose an enormous expense without the least necessity, as they were told that the final decision rested in the Court of Chancery. He saw no necessity for proving the validity of a will through the medium of an Ecclesiastical Court. He should, therefore, vote for the amendment of his hon. and learned Friend.
Mr. C. Bullerobserved, that the only question was whether the two courts should decide the validity of a will or one. His hon. and learned Friend the Member for Lewes said the expense would be less; and the hon. and learned Member for Bath, that it would be greater. The Committee must decide between these conflicting opinions.
The Committee divided on the question that the words proposed by Mr. C. Buller be inserted.—Ayes 58; Noes 121: Majority 63.

List of the AYES.

Archbold, R.

Buller, E.

Baring, rt. hn. T. F.

Busfeild, W.

Bowes, J.

Butler, P. S.

Bowring, Dr,

Cavendish, hon. G.H.

Brotherton, J.

Chapman, B.

129

Christie, W. D.

Plumridge, Capt.

Colebrooke, Sir T. E.

Pulsford, R.

Collett, J.

Redington, T. N.

Collins, W.

Roebuck, J. A.

Denison, W. J.

Scholefield, J.

Duncan, G.

Scott, R.

Duncannon, Visct.

Shelburne, Earl of

Easthope, Sir J.

Smith, rt. hon. R. V.

Ebrington, Visct.

Stansfield, W. R. C.

Ellis, W.

Stuart, W. V.

Evans, W.

Strutt, E.

Forster, M.

Talbot, C. R. M.

Fox, C. R.

Trelawny, J. S.

Hawes, B.

Troubridge, Sir E. T.

Hume, J.

Vane, Lord H.

Hutt, W.

Vivian, J. H.

Leveson, Lord

Wakley, T.

Mitcalfe, H.

Warburton, H.

Mitchell, T. A.

Ward, H. G.

Murray, A.

Williams, W.

O'Connell, M. J.

Wilshire, W.

Palmerston, Visct.

Yorke, H, R.

Parker, J.

Pechell, Capt.

TELLERS.

Pendarves, E. W. W.

Buller, C.

Philips, M.

Watson, Mr.

List of the NOES.

Acland, T. D.

Fuller, A. E.

Adare, Visct.

Gardner, J. D.

Alford, Visct.

Gaskell, J. Milnes

Allix, J. P.

Gladstone, rt. hn. W. E.

Baird, W.

Gladstone, Capt.

Barrington, Visct.

Glynne, Sir S. R.

Baskerville, T. B. M.

Godson, R.

Bodkin, W. H.

Gordon, hon. Capt.

Boldero, H. G.

Goulbourne, rt. hn. H.

Bowles, Admiral

Graham, rt. hn. Sir J,

Bramston, T. W.

Granger, T. C.

Broadley, H.

Greenall, P.

Bruce, Lord E.

Grimston, Visct.

Buck, L. W.

Hale, R. B.

Cardwell, E.

Hanmer, Sir J.

Charteris, hon. F.

Heathcote, Sir W,

Chelsea, Visct.

Henley, J. W.

Chetwode, Sir J.

Henniker, Lord

Clayton, R. R.

Herbert, hon. S.

Clive, Visct.

Hollond R.

Clive, hon. R. H.

Hope, G. W.

Cockburn, rt. hn. Sir G.

Hotham, Lord

Codrington, Sir W.

Hughes, W. B.

Corry, rt. hon. H.

Hussey, T.

Cripps, W.

Ingestre, Visct.

Darby, G.

Inglis, Sir R. H.

Davies, D. A. S.

James, Sir W. C.

Dickinson, F. H.

Jervis, J.

Douglas, Sir C. E.

Johnstone, Sir J.

Douglas, J. D. S.

Knatchbull, rt. hn. Sir E.

Du Pre, C. G.

Knight, H. G.

Eliot, Lord

Lascelles, W. S.

Elphinstone, H.

Lennox, Lord A.

Estcourt, T. G. B.

Lincoln, Earl of

Ferrand, W. B.

Lopes, Sir R.

Fitzmaurice, hon. W.

Lowther, hon. Col.

Flower, Sir J.

Lyall, G.

Forbes, W.

M'Geachy, F. A.

Freemantle, rt. hn. Sir T.

Mackenzie, W. F.

130

McNeill, D.

Round, J.

Manners, Lord C. S.

Rushbrooke, Col.

Master, T. W. C.

Russell, J. D. W.

Masterman, J.

Ryder, hon. G. D.

Maxwell, hon. J. P.

Sandon, Visct.

Meynell, Capt.

Shirley, E. P.

Mordaunt, Sir J.

Sibthorpe, Col.

Morgan, O.

Somerset, Lord G.

Morris, D.

Sotheron, T. H. S.

Mundy, E. M.

Stanley, Lord

Neeld, J.

Stock, Mr. Serjeant

Nicholl, rt. hon. J.

Sutton, hon. H. M.

O'Brien, A. S.

Taylor, J. A.

Owen, Sir J.

Tennent, J. E.

Palmer, R.

Thesiger, Sir F.

Patten, J. W.

Thompson, Mr. Ald.

Peel, rt. hon. Sir R.

Trench, Sir F. W.

Peel, J,

Vesey, hon. T.

Pennant, hon. Col.

Waddington, H. S

Plumtre, J. P.

Wood, Col. T.

Pollington, Visct.

TELLERS.

Pusey, P.

Young, J.

Rashleigh, W.

Pringle, A.

Mr. Brothertonmoved, that the Chairman report progress.
Mr. Jerviswished that the House would agree to get through this Clause at least.
Mr. Warburtonhoped that his hon. Friend would press his Motion. It was desirable that the Clause, as it had been amended, should be printed before they proceeded further.
Sir R. Peelobserved, that that was the 31st of May. There were eighty-three clauses in the Bill, and as that was the first Order Day after the recess, he hoped that they would be allowed to pass at least one Clause, as there were only three or four lines more to be got through.
The Committee divided on the question that the Chairman do report progress.- Ayes 45; Noes 88: Majority 43.
Dr. Bowringmoved, that the Chairman do leave the Chair.
The Committee again divided.-Ayes 39; Noes 82: Majority 43.

List of the AYES.

Archbold, R.

Forster, M.

Brotherton, J.

Granger, T. C.

Buller, C.

Hawes, B.

Busfeild, W.

Hume, J.

Butler, P. S.

Leveson, Lord

Chapman, B.

Mitcalfe, H.

Christie, W. D.

Mitchell, T. A.

Collett, J.

O'Connell, M. J.

Collins, W.

Palmerston, Visct.

Duncan, G.

Parker, J.

Easthope, Sir J.

Pechell, Capt.

Ebrington, Visct.

Philips, M.

Ellis, W.

Redington, T. N.

Elphinstone, H.

Roebuck, J. A.

Evans, W.

Scholefield, J.

131

Shelburne, Earl of

Watson, W. H.

Stansfield, W. R. C.

Williams, W.

Strutt, E.

Wilshere, W.

Stuart, W. V.

TELLERS.

Tufnell, H.

Bowring, Dr.

Wakley, T.

Warburton, H.

List of the NOES.

Baird, W.

Hughes, W. B.

Barrington, Visct.

Hussey, T.

Baskerville, T. B. M.

Ingestre, Visct.

Bodkin, W. H.

Inglis, Sir R. H.

Boldero, H. G.

Knatchbull, rt. hn. Sir E

Bowles, Adm.

Knight, H. G.

Broadley H.

Lascelles, hon. W. S.

Bruce, Lord E.

Lennox, Lord A.

Cardwell, E.

Lincoln, Earl of

Clayton, R. R.

Lowther, hon. Col.

Clive, Visct.

McGeachy, W. F.

Clive, hon. R. H.

Mackenzie, W. F.

Codrington, Sir W.

M'Neill, D.

Corry, rt. hn. H.

Mastermann, J.

Cripps, W.

Meynell, Capt.

Darby, G.

Morgan, O.

Davies, D. A. S.

Morris, D.

Dickinson, F. H.

Neeld, J.

Douglas, Sir C. E.

Nicholl, rt. hn. J.

Douglas, J. D. S.

O'Brien, A. S.

Du Pre, G.

Peel, rt. hn. Sir R.

Eliot, Lord

Peel, J.

Estcourt, T. G. B.

Plumptre, J. P.

Fitzmaurice, hn. W.

Pollington, Visct.

Forbes, W.

Rashleigh, W.

Fremantle, rt. hn. Sir G.

Rushbrooke, Col.

Fuller, A. E.

Ryder, hn. G. D.

Gaskell, J. Milnes

Sandon, Visct.

Gladstone, rt. hn. W. E.

Sibthorp, Col.

Gladstone, Capt.

Somerset, Lord G.

Glynne, Sir S. R.

Sotheron, T. H. S.

Godson, R.

Stanley, Lord

Gordon, hon. Capt.

Sutton, hon. H.

Goulburn, rt. hon. H.

Talbot, C. R. M.

Graham, rt. hn. Sir J.

Taylor, J. A.

Grimston, Visct.

Tennent, J. E.

Hale, R. B.

Thesiger, Sir F.

Hanmer, Sir J.

Vesey, hon. T.

Heathcote, Sir W.

Waddington, H. S.

Henry, J. W.

Henniker, Lord

TELLERS.

Herbert, hon. S.

Young, J.

Hope, G. W.

Pringle, A.

[These lists being much the same as the lists immediately preceding, and the divisions being on an exactly similar Motion, it is thought unnecessary to give the former.]
Mr. J. Collettmoved, that the Chairman do now report progress.
Dr. Nichollsaid, that he saw that it was useless for him to persist; he, therefore, would not trouble the Committee to divide.
The House resumed. Committee to sit again.
House adjourned at a quarter to one.

MINUTES.
BILLS. Public—1a. Assaults (Ireland); Stamp Duties; Courts Martial (East Indies).
Reported. — Factories; Customs; West India Relief; Edinburgh Agreement.
3a. and passed:—Night Poaching Prevention.
Private.—1a. Harris's Estate.
2a. Mackenzie's Estate; Ramsden's Estate.
Reported.—Farrington and Cwmgilla Inclosure.
PETITIONS PRESENTED. From Burnley, Colne, and Clitheroe, against the Creditor and Debtors Bill.—By Lords Lurgan, and Campbell, from Kilrea, and 17 other places, for Legalizing Marriages solemnized by Presbyterian and Dissenting Ministers in Ireland; also from Kilrea, and 3 other places, against the Dissenters Chapels Bill.—By Lord Lyttleton, from Leigh, in favour of the Ten Hours Factory Bill. — By Earl Brownlow, from Sedgebrook, and 20 other places, for Protection to Agriculture.

CROWN CHALLENGES. [IRELAND.)]
The Marquess of Normanbyreferred to what he had stated a few weeks since, relative to certain facts at the Monaghan Assizes, which showed an absence of sincerity on the part of the Government, or of infidelity in obeying their instructions, when it had been declared that impartiality should be observed in setting aside juries, and he had stated that he had not brought forward his statement without information from most respectable, and, he believed, trustworthy sources. His noble Friend had thereupon read a letter from the Crown Solicitor of the Circuit, giving his own explanation of the circumstances, which he (the Marquess of Normanby) was surprised to find directly in contradiction to the information he had himself received. Three jurors, it appeared had been set aside. With regard to the first, it was stated, John Hume had been servant to a Ribbon man. This was not the fact.
Lord Wharncliffe: It was stated that he was son-in-law to John Rice, who had been recently convicted at the Armagh Assizes.
The Marquess of Normanby: With respect to his being son-in-law, he was not, and had not been intimate with him. Then with reference to Henry Caulfield, it had been stated that he had been at the head of a faction which had committed agrarian outrages, but he was a respectable farmer, and had never been so charged; and with respect to Edward Blakewell, it had been said, that his brother had been convicted of an offence, whereas he was a person who held a considerable farm, and had never been charged with Ribbonism or any other crime. He had made an inquiry into the truth of this information, and was told that they were all respectable and unobjectionable. He believed that there had been some mistake or other with respect to them, and he complained that Mr. Hamilton had not taken pains to inform himself of the facts. Seven Catholics had been excluded from the jury, and only one left on; the general impression being, that he was left on by mistake, especially as there was only one Protestant taken off, who was declared to have been taken off by mistake. With reference to Caulfield, so far from being at the head of an association for agrarian outrage, he understood that he was an opulent person, and a large farmer; that he had been a poor-law guardian, and, like Hume, had before served on juries, and the only ground on which the statement could rest, was, that between his brother and brother-in-law, there had been a dispute—yet the brother (the person actually concerned) had served on a jury at these assizes. He believed that all three were unexceptionable men, and he regretted that Mr. Hamilton had not obtained more accurate information before he wrote to his noble Friend.
Lord Wharncliffesaid, that supposing all the noble Marquess had stated, were true, it did not impugn his statement, unless the noble Marquess asserted, that these persons were struck off the jury, because they were Roman Catholics. The noble Marquess forgot that the offence which was to be tried was Ribbonism, and it was known, that these societies were almost exclusively confined to Catholics, and it was therefore the more likely that the Crown would not leave Roman Catholics on the jury. If Mr. Hamilton was at the time satisfied of the truth of the circumstances represented to him, he was justified in passing these persons by;

79
that they were Roman Catholics, was the more probable from the nature of the crime.
Earl Fitzwilliam: And, therefore, because the offence was confined to Catholics, the prisoners were to be tried by an exclusively Protestant jury. That was the doctrine of his noble Friend. If he understood the institution of Trial by Jury, it was that the defendants might have some one on the jury who would give due weight to their good character; if, therefore, the parties to be tried were Catholics, it was the more necessary that Catholics should be on the jury. Would his noble Friend reverse the case? and if there should be a class of crimes confined exclusively to Protestants, would he have an exclusively Catholic jury? If his noble Friend would do that, he had not another observation to make.
Lord Wharncliffe: No, he would not. He had been unfairly, he was sure, most unintentionally, misrepresented. He did not say that a Catholic should be tried by a Protestant jury, but if a Catholic were tried for a conspiracy, and if information was given to the party conducting the case, that any person on the jury was likely to be favourable to the conspiracy, it was right to strike him off. As this conspiracy was confined to Catholics, the objection was more likely to fall upon the Catholics than the Protestants, that was all. He denied that he had said they should be confined to Protestants.
The Marquess of Normanbysaid, his noble Friend assumed, that this conspiracy was confined to Catholics. He doubted whether it was; but if it were, why was it? because seven-eighths of the whole population, and a still larger portion of the lower orders, were Catholics. When it appeared by the evidence that the Catholic priesthood did all they could to discourage these societies, it was not fair to say, that Catholics, as Catholics, should be viewed with suspicion when they came to the jury box. If his information were true, the Crown Solicitor did not do his duty when he set aside a person at the head of agrarian outrages, who was known to his neighbours as a respectable man, and who had before acted on juries.
Lord Wharncliffedenied that the noble Marquess had produced anything to falsify Mr. Hamilton's statement. In a dispute which had existed, this very person
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had collected the mobs. In reference to the Ribbon societies, it appeared from the Report of the Committee, that they were almost exclusively confined to Catholics —he doubted whether they were not entirely.

THE FACTORIES BILL.
The House resolved itself into a Committee of the whole House on the Factories Bill.
On Clause 9,
Lord Teynhamsaid, there was no provision in the Bill requiring the inspection of children at stated periods, and rendering it imperative to exclude from work any child who was found to be injured by the work or confinement of Factories. He thought this an omission. The objections of many persons to the Twelve Hours Clause would be done away with, and many heartburnings on this question would be put an end to if such a provision were introduced into the Bill, and a provision requiring that no child should be re-introduced into a Factory until a certificate from a surgeon had been obtained that it was recovered, and that the labour would not injure it. He would not propose any Amendment, but threw this out as a suggestion.
Lord Wharncliffethought that sufficient protection was afforded already by the certificate required by the Act.
Clause agreed to.
On Clause 18,
Lord Broughamsaid, he had not seen much in the Bill to excite his admiration and respect for it; but this Clause was the height of absurdity. It was a Bill to protect people from the consequences of their own improvidence—to give increased wages for lessened work—to interfere in the market of labour. The present Clause related to the cleansing of factories. Distinguished foreigners visiting this country might be induced to ask, when they saw our factories—huge unsightly buildings— if they were remnants of the feudal ages —specimens of the architecture of the eighth or ninth century? The answer would be, "Oh, no; of the nineteenth century, and towards the middle thereof." In their interference with this question, their meddling and dabbling, they had exceeded themselves; for about the middle of the 18th Clause he found it provided,
"That all the inside walls, ceilings or tops of rooms, whether plastered or not, and all the

81
passages and staircases of every factory, which shall not have been painted with oil once at least in seven years, shall be lime washed once at least within every successive period of fourteen months, to date from the period when last whitewashed; and all the inside walls and ceilings or tops of rooms in which children or young persons are employed (meaning thereby women of sixty or seventy years of age—interesting young persons) and which are painted with oil, shall be washed with hot water and soap."
It did not say (and he marvelled at it) of what temperature. It should not be less than 212 of Fahrenheit, or 100 of Raumer; and this hot water and soap was to be applied "once at least within every successive period of fourteen months, as aforesaid." He hardly knew what age of the world he was living in. He hoped the House would not overlook altogether the comfort of the peasantry, and he hoped to see a Bill brought in, enacting that all the inside walls or tops of cottages, whether plastered or not, and all the passages and staircases of cottages which had a staircase, should be lime-washed once in fourteen months, and that all the chinks and crannies through which any wind, hail, snow, or sleet could pass, should be barred up with straw or clay, or otherwise, and that this should be covered with a little plaster, not exceeding so much to keep out the weather; and with a preamble stating, that "whereas it was unwholesome for young persons to be exposed to night air (not merely young persons of seventy), and that it was desirable that there should be a special provision against damp beds and damp clothes, to be made dry and comfortable at the expense of their employers; and, above all, that no pigstyes should be allowed to be near their dwellings, or any dunghills near where they slept, for nothing could be more unwholesome,"—cow-houses might be permitted where pulmonary complaints existed, for they were thought in some cases wholesome; and for greater accuracy he would state in what cases cow-houses might be allowed, and where not—all these were matters of detail. His object was to show how absurd was this kind of legislation. It was impossible they could enter into all these details. Then there was a provision for preventing the escape of steam into any room occupied by workmen. "Really," continued the noble and learned Lord, "really, my Lords, I feel that this is great nonsense."
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The noble Lord threw the Bill on the Table, and sat down.
Lord Wharnclifiesaid, it was necessary to lay down regulations for the protection of persons working in Factories, and this was the whole object of the Clause. It was merely following out the Act which now existed.
The Clause was then agreed to.
On Clause 29,
Earl Fitzwilliamsaid it was singular that everybody was in favour of this Bill—the Whigs, the Tories, and the political economists. ["No!"] Oh! many political economists in the other House of Parliament had come forward to support the Bill, for One or two of whom he had the greatest regard; and not only had they taken the Bill under their protection, but they were not satisfied with it, and wished to carry it a little further. There was much, he must be allowed to say, in the present Bill which occasioned in his mind no small surprise. He could not, for the life of him, understand upon what grounds the Bill was limited to this particular species of labour. He wanted to know why the Bill should comprehend the particular classes of children which were made the subject of its care? He desired to be informed why the Bill did not go a little further? Why did not the framers of the measure take better care of the moral character of other classes of the community—why were all others thrown overboard? He observed that this measure in its passage through the other House had enjoyed the support and patronage of the landed interest. They appeared to take the Bill quite under their protection. Now, he could not help lamenting that those Gentlemen did not extend their protection to that portion of the working classes who were more immediately connected with them. He knew that it might be said that those mines and factories were dismal places in which to shut up poor human beings; but, from his own experience, he was enabled to say that the temperature in these mines was surprisingly equable and agreeable, and when they talked of the bad air in which factory children were confined, he begged to remind their Lordships that the air in the old House of Commons was much worse than that of any factory. If the condition of working children so very urgently needed protection, he wanted to know why they did not extend the Bill to agricultural labourers? How much worse: off than a child in a mine or a factory was the unfortunate

83
child planted in an open tilled field to scare off birds or trespassers! He had often seen children—under the age to which the Bill gave protection—stationed in fields, exposed to all sorts of weather, and asking passers-by the hour of the day, earnestly hoping for that which should emancipate them from their painful and laborious posts. He wondered, then, that nothing was to be done for the agricultural labourers. The gentlemen of landed property were ready enough to give what they called protection to the farmer, on a question totally different from the present, but in the present case they overlooked altogether the necessity of protection. For his part, he felt bound to object to this species of interference. He saw no reason why the Legislature should meddle with the right which every man possessed to do as he thought proper with his own industry: —it was a monstrous misapplication of benevolence thus to interfere with the only property which the poor man had. He not only complained of the interference, but he complained of the manner in which that interference took place—the interference was one-sided, it was one-eyed, it was an unjust limitation of the productive powers of the country; and he desired their Lordships to recollect that the strikes amongst the pitmen of the north were encouraged, if not produced from this species of unjust and unequal legislation.
The Marquess of Normanbydenied that this Bill was, as had been represented, a retrogression. It was nothing of the sort. He admitted that the agricultural classes underwent some hardships, but which of the working, classes escaped hardship, and their toils were light and pleasing compared with the sufferings endured by factory children. The agricultural classes enjoyed many more domestic comforts, and the duration of life was much greater amongst them, even in the county of Dorset, than in the manufacturing districts. In those districts only 1,068 persons out of every 10,000 attained the age of fifty; whereas, in Dorsetshire, 1,556 out of every 10,000 attained that age; in Rutlandshire, 1,608; and in the North Riding of Yorkshire, 1,699; and in the county of Westmoreland, the difference was as nine to seventeen under one year of age, and over fifty still greater. His noble Friend inquired why they did not interfere for the benefit of the agricultural classes; to that it was only necessary to reply that the course of
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nature sufficiently protected them. As to saying that the whole profit of the manufacturer depended upon the last two hours—that was said in 1816, when the late Sir Robert Peel obtained a Committee of the House of Commons, and when the proposition was to reduce the working hours from sixteen to fourteen. At all times it would be necessarily believed and said, that the whole profit depended upon the last two hours. Now recent facts clearly showed that for apprehensions of this kind there was no solid foundation, for manufactures had flourished under these shortened hours of labour, and one, that of cotton twist, had increased 1,300 per cent.
The Bishop of Ripon, expressed, on behalf of the hundreds of thousands of factory children committed to spiritual care, at the limitation about to be imposed on factory labour, begged to state, that he believed the changes proposed to be carried into effect by the Bill now before their Lordships would give very general satisfaction. He was glad to observe the limitations of labour fixed by this Bill, but he could not help regretting that that limitation was not carried further.
The Earl of Winchilseasaid, he deeply regretted limitation of labour had not been extended to ten hours. He admitted that the Bill was a great improvement upon the existing state of the law. Formerly, persons had been compelled to work for sixteen hours; but still he deeply regretted that the limitation was not to ten hours.
Clause agreed to, as were the 30th and 31st.
On the 32d Clause, which enacts that no female above eighteen years of age shall be employed in any factory save for the same time and in the same manner as young persons,
Lord Kinnairdmoved that this Clause be struck out of the Bill, as the effect of it would be to sanction an improper improper interference with labour. He thought that this Clause was of so much importance that be should divide the House upon it.
Lord Campbellopposed the restriction on adult labour.
Lord Wharncliffethought that this was the most material Clause in the Bill, there existed a strong feeling in the country against the excessive employment of females, and he thought it would be well if female labour could be altogether dispensed

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with, so that females could turn their entire attention to domestic matters. But as circumstances did not permit this, the Bill proposed to place some restriction on their excessive toil.
Lord Broughamagreed with his noble Friend (Lord Kinnaird) that the Clause ought not to be in the Bill. He contended that the support which it had received from some of the labouring classes was owing to their ignorance of its effects, many believing that it would secure to them twelve hours' wages for ten hours' work. This misapprehension, however, was disappearing in the manufacturing districts, and the change of sentiment was travelling southward. He did not see why, if the Legislature limited the labour of women in factories, they should not interfere on behalf of washerwomen, who began at five o'clock in the morning and left off at eleven o'clock at night; and also with wetnurses. And the health of the last class was of much importance, as they suckled the children of both Houses of Parliament, with the exception of, perhaps, one per cent. When any complaint was made of the over-working of these and [other classes it was said, "Oh, let them take care of themselves;" and why should not women in factories be allowed to take care of themselves? He repeated, that the labourers in the factories would be the first to feel and complain of the ill effects of this Bill.
The Marquess of Normanbysaid, it was his intention to vote against the Motion of his noble Friend (Lord Kinnaird). But still he contended that more time should be allowed to women in factories to fulfil their domestic duties and to acquire education. It appeared from the returns that the proportion of women who could not write in the counties of Lancaster and Dorset, was nearly two to one against the former. The effect of labour in manufactories was shown by the fact that regiments raised there did not last half so long as those raised in agricultural counties. Recruits from the former were often rejected on account of unfitness. He would vote in favour of the amendment of his noble Friend.
Lord Campbellsaid, he thought the Clause an unnecessary and mischievous interference with female labour, and he would vote for the Amendment of the noble Lord (Lord Kinnaird), By the decree of Providence it was the fate of
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women as well as men to earn their bread by the sweat of their brow; and he believed that labour in factories was better adapted to the female frame than many other descriptions of work. At the same time he considered, twelve hours a-day a sufficient period for female labour.
Lord Broughamsaid, as the question had been put upon a moral ground by a noble Lord opposite, and by a right Rev. Prelate whom he did not then see in his place, and who no doubt, was much better engaged, he begged to call their Lordships' attention to a return showing the comparative number of illegitimate children born in the manufacturing and agricultural districts. (The noble and learned Lord read the return at length, from which it appeared that the number of illegitimate children in the agricultural districts considerably exceeded that in the manufacturing districts.)
The Rarl of Winchilseasaid, that in the manufacturing districts a great number of children were born out of wedlock, who were supposed to be legitimate from the fact of the parents living together, and representing themselves as married. Of these children no account was taken in the returns quoted by the noble and learned Lord.
Lord Redesdalesaid, that the return read by the noble and learned Lord referred not to the number of illegitimate children actually born, but to the number relieved from the Poor Rates.
The Committee divided on the question that the Clause stand part of the Bill.— Contents 48; Not Contents 21:—Majority 27.

List of the NOT-CONTENTS.

MARQUESS.

Teynham

Lansdowne

Gardner

EARLS.

Ponsonby

Lovelace

Monteagle

Auckland

Somerville

Radnor

Campbell

Fitzwilliam

Brougham

Fitzhardinge

Sudeley

Morley

Lurgan

Minto

Foley

LORDS.

Beaumont

Colbourne

Rossie

The other Clauses of the Bill agreed to, and the House resumed.
House adjourned.