§ Lord Cottenham
said, that he did not rise on the present occasion to renew the discussion on this Measure, but he was anxious to offer a few, and they should be few, words for their Lordships' consideration. He thought he should be excused in thus troubling their Lordships, when he found that he had been charged with taunting the Government for the course they had adopted. He never charged the Government with giving up their opinions to a majority of the other House of Parliament. It was, however, no great merit on the part of the Government in yielding to a majority of the House of Commons. They could not help themselves in such a case. What he complained of was, that they had given up the opinions which they had expressed—they had given up the opinions expressed by the House of Commons—they had not yielded to Parliament, because the House of Commons had supported them; they had not altered their course in consequence of what had taken place within the walls of the House of Commons, but they had abandoned their measure because of what took place out of doors. He would refer to the speech of a right hon. Gentleman in the House of Commons on the second reading of the Government Bill of last year, in which he (Lord Cottenham) entirely concurred. The right hon. Gentleman uttered these opinions:—He could not consent to its withdrawal after all the pains bestowed on it by the Government, because it was his sincere conviction, regretting, as he undoubtedly must, that many private interests would be more or less injured by it, that it would greatly promote the public interest. Such being his firm conviction, and combined with the knowledge that ample compensation would be afforded to all those injuriously affected by it, it was impossible that he should accede to any proposition for the withdrawal of the Measure. It was equally impossible for him to acquiesce in the suggestion of the right hon. Baronet the Member for Devonport, because with all his respect for the Select Committee which the right hon. Baronet might propose to appoint, with all his conviction of the advantage which such a Committee could not fail to derive from being presided over by the right hon. Baronet, he felt assured that the details of the Measure had been arranged with the advice and concurrence of higher authorities than would be found in any Select Committee which could be appointed. The right hon. Gentleman could not deny that all the details, without exception, were admitted by the Admiralty Commission. He had also the author- 1685 ity of a Measure almost identical with the present one, introduced in 1835, when the right hon. Baronet, now at the head of the Government, was in power. On the part of Earl Grey's Government, he (Sir J. Graham), after the Report of the Admiralty Court Committee, prepared a Measure identical with the present. Earl Grey quitted office, and Lord Melbourne succeeded, and Lord Campbell and Lord Cottenham undertook the same subject, and after bestowing infinite trouble and labour upon it, did not materially alter the measure which he (Sir James Graham) had framed. He had the opinions of three Chancellors in its favour; of the Ecclesiastical Commission, the opinions of Attorneys General, men of the highest legal authority on both sides of the House, and the Report of a Committee of the House of Lords. He, therefore, could make no concessions with regard to the principle. The details had been framed after the most minute investigation, and with the advice of the highest authorities; and with all deference to the House, he could hold out no hope—if this Bill should be rejected—that he should be able to offer any other which would be more acceptable with regard to its details. It was a question of principle which the House were now called on to decide, and should it be their pleasure to reject it on the second reading, he should deeply deplore such a result, nor could he help believing that for reasons which it would be indecorous in him to state—from the effects of private interests powerfully operating on the minds of individual Members the public would be deprived of a Measure which, it was his firm belief, would materially promote their interests.
expressed a wish that his noble and learned Friend had mentioned what the majority in favour of the Bill was, on being read a second time, because there was a considerable majority—a majority of nearly two to one, he believed.
said, that still, although they had a majority of nearly two to one upon the last occasion when this Bill came to a division, they had since themselves abandoned it. There could be no doubt that if they had supported it with determination, they would have succeeded in passing it through both Houses of Parliament. The Bill might have given offence in some quarters, where parties' interests were affected by it, but that was no reason why they should have abandoned the interests of the public. He could not help remarking, though he did not wish to enter upon that subject at 1686 present, how different the conduct of Her Majesty's Government had been in respect to this Bill to what it had been recently in regard to another measure, with which they had persevered, although the House of Commons had three times divided against it.
The Lord Chancellor
said, that it was not fair to say, that Her Majesty's Government had abandoned the Measure of last year upon this subject. The present Bill departed from the Measure of last Session only in one particular, that of the abolition of the Diocesan Courts. This the present Bill did not propose to do. The Government had adopted this course upon the conviction that although the principle of their Measure was generally agreed to, they should never be able to carry the abolition of those Courts. They, therefore, sent the Bill to a Committee, who had returned it in the very shape in which it was now before their Lordships. It was impossible to run entirely counter to the opinions of the House of Commons; but the Government, instead of "abandoning" the Measure, brought in one in its present form. The preceding Government had brought in Measures similar to that of last Session, and had failed; nor were the difficulties of modern origin. Sir W. Scott had stated, in the discussion on the Measure he had proposed upon the subject, that so long ago as the reign of James I. complaints had been made of the Ecclesiastical Courts' jurisdiction, and complaints which it had been unsuccessfully endeavoured to remedy in the reign of that King, in the reign of Anne, and, again, in the reign of George III. (1772). The present and the preceding Government had alike failed in Measures abolishing the Diocesan Courts. But the present Government unlike the former, endeavoured now to carry a Measure which was substantially that proposed by Sir W. Scott who (in 1813) said, in his statement of what his Measure purported to effect:—" He began with reforming part of the law as to excommunication; "—which the Government had not thought it necessary to advert to, as Bills upon the subject had in recent years been passed. "Next there was a provision for the abolition of a number of the minor Ecclesiastical Courts, on the principle that improvements in jurisprudence were promoted by the extension of jurisdiction;" that was just what the Government had done in 1687 their present Measure, they having therein abolished all the "Peculiars," which were the Courts alluded to by the learned Personage whose authority he was alluding to. "And it is intended to remove the proceedings in those inferior tribunals into the Diocesan Courts," so that Sir W. Scott recommended the continuation of the Diocesan Courts, and the removal into their jurisdiction of the business of the "Peculiars;" precisely what in the present Bill it was proposed to effect. "The qualifications of the Judges were also to be attended to" (and the rest of Sir W. Scott's Measure was occupied by provisions respecting Tithes and Church Rates). Now, the qualifications of the Judges in the continued Courts had been fixed at the rate which was deemed requisite; and Tithes also had not been overlooked; though, probably, nobody would consider that they had acted unwisely in not mixing up in the Measure the important, the difficult, and delicate question of Church Rates. Sir W. Scott had proceeded to explain that he had not extended his Bill to Ireland on account of his not feeling himself sufficiently acquainted with the Ecclesiastical Law of that country; and that eminent individual thus concluded his address upon the proposition of his measure: "Under many circumstances of disadvantage, he had discharged the duty the House had imposed upon him with great diffidence, well aware of the magnitude and importance of the subject. If the House should adopt his Bill, he should feel gratified; but if they should reject it, he should part from it without much regret." Sir S. Romilly said, "he regretted that a Measure which promised to be so generally advantageous should not be communicated to Ireland." Under all the circumstances, and with such authorities, had not the Government pursued a proper course? Was it not advisable to attempt to carry a Measure which every one admitted was advantageous, rather than run the risk of losing it by adding a provision disagreeable to the other House? On these grounds he recommended the Measure to their Lordships as one which, while it did not go the whole length some might wish, would yet effect highly useful and advantageous alterations in the law.
§ Lord Cottenham
begged to be allowed to observe, that the Bill of 1836 was not proceeded with for this reason, that the most Rev. Prelate at the head of the 1688 Church said it would be inconvenient to pass it before some Measure had been adopted for regulating the discipline of the Clergy. That was the only reason why the Bill was then abandoned. Indeed, he believed, that setting aside this one difficulty, he had the support of the majority of the Rev. Bench for the principle of his Bill.
The Lord Chancellor
But there have been several Bills of this kind abandoned within the last eight years. In 1832, the Bill brought in by the then Lord Chancellor; in 1833, another Bill by the same noble and learned Lord; in 1835, a Bill brought in by the then Attorney General: and in the same year, another Bill by the noble and learned Lord now sitting near me. Then came his noble and learned Friend the Lord Chancellor, in 1836, who brought in a Bill which also failed.
§ Lord Denman
could not help regarding it as a most melancholy and mortifying circumstance, that a Court whose abolition had been recommended for fourteen years—a Court which was a public nuisance, whose operation was most oppressive towards individuals, which had been condemned by all authorities of every description entitled to respect, should baffle the attempts of a Government which had come in with so much power to effect its removal. He would not enumerate cases of individual hardship, but there were some which would make their Lordships shudder. He observed a statement made in the debate which took place in the House of Commons on this subject, that the petitions were not numerous against these Courts, but were on the contrary numerous against their abolition. That would always be the case in grievances of this nature, where the sufferers were not sufficiently numerous to make an impression on the public, while at the same time the combination of interested individuals possessing power and influence in the country by means of private communication with Members of Parliament and the Government was often effectual in accomplishing their object. No doubt if the Bill should pass in its present imperfect state it would leave a most important question on the mind, whether by permitting the existence of these Courts, they did not, in fact, give their sanction, and thus add strength to the combination of interested persons in resisting any future 1689 attempts at reform. For the sake of the benefit which it did unquestionably confer, however, it was well that it should pass; raising though it did the important question, whether it would not, by continuing in existence, appear to extend a Parliamentary sanction and approval to the preservation of these Courts, and might not add strength to the combination of those interested in their opposition to the abolition of those Courts on future occasions? He heard, indeed, with pleasure, that the principle of that abolition had not been abandoned by the Government, who had yet thought it right, at present, to attempt only what they were certain of carrying. But his experience of late years had not led him to deem it disadvantageous for the ultimate success of any measure, that one of less extent, but tending to the same result and founded on the same principle, should previously be carried; and he hoped that this would be exemplified in the present instance.
The Bishop of London
said, that he felt compelled to say a very few words in consequence of what had fallen from the noble and learned Lord who had just sat down. Having been one of the Commission which had sat on this subject, he must beg to say that he was not aware of any opinion which had been expressed by them at all, to the effect that the Diocesan Courts were a public nuisance. It certainly was stated in the report of the Commission that these Courts were founded during a totally different state of society, and were not adapted to the present state of society, and recommended that their jurisdiction should be transferred to a superior Court. But, as he said before, he never heard these Courts called a public nuisance in any document or report of which he was aware. With respect to the cases of hardship which were found in these Courts, he was aware that there had been some. But were there not also cases of hardship occurring continually in the Courts of Common Law, and in the Courts of Equity? The real fact was, that the hardship of many cases which had occurred in the Ecclesiastical Courts, arose from the restricted nature of their power. They could only go a certain length; they could sentence and commit to prison for contumacy, but had no authority to release. But he hoped that cases of this kind would not occur again; because the peculiar matters upon which they 1690 usually arose were taken by this Bill out of the jurisdiction of the Diocesan Courts.
§ Lord Denman
would willingly submit to the rebuke of the right Rev. Prelate if he had used expressions too harsh; but he certainly had always been accustomed to consider these Courts as nuisances; and he had never heard in any other Courts of cases of such extreme hardship as he had known of in these. He owned he heard the right Rev. Prelate's concluding observations with apprehension, intimating, as he was afraid they did, a disposition rather to continue than to abolish the Diocesan Courts. He thought, really, that the appointment of a Committee to inquire into the character of the opposition to the Measure for their abolition might not be wholly inexpedient.
denied that the Church Courts would by this Bill be deprived of all power to inflict punishment. A man might still be libelled in those Courts for Church Rates, and put to an expense of 100l. He also protested against the assertion of his noble and learned Friend on the Woolsack, as to the identity of the present Bill with that introduced last year, from which, he contended, it differed both in detail and in principle. The principle of that Bill was the establishment of one Court for the whole of England and Wales, with regard to all contentious jurisdiction with respect to wills and marriages. This Bill, on the contrary, not only preserved all the Diocesan Courts, but established two new ones, and those who hoped for their speedy abolition would find themselves miserably disappointed since this new creation. His noble and learned Friend had referred to the opinion of Sir S. Romilly, forgetting that it was not between the establishment of a single Court for England and Wales, in matters of contentious jurisdiction, and the Diocesan Courts, that he had to decide, but mere improvement on the old system. Seeing the favourable sentiments manifested in favour of last year's Measure by the right Rev. Prelates and others, what reason was there for supposing that it could not have been carried?
§ Bill read a third time and passed.
§ House adjourned.