The Sun.
London, England, 1851-06-28 00:00:00

THE SUN,

say, " I see, by the Acts ( f Richard the Second and
Elizabeth, that such acts on the part of a foreign power
are illegal, and I ern strengthened in that opinion by
what occurred in 185 D, when Parliament declared by
Act en. Parliament a rescript issued by the Pope in
Sspteenber of the preceding year to be 'void and H-
iker!): " That was the construcdou which he thought
any' learned judge before whom such a case might
come would put upon the matter. The lion. and
Learned Gentleman said that the contrary would be the
effect; that the judge would declare that while all such
rescripts were deel end illegal by the Acts of Richard,
the S, cond, and Elizabeth, tha Act of 1851 only ren-
dered one of these rescripts illegal, aed that conse-
quently a doubt weci raised as to the legality of all others.
He did net, as he had said, think that any judge would
come to such a conclusion, and that being the case, he
did not think there was any necessity for adopting the
amendment on that clause, as he thought they would
lose the effect of the measure unless they confined it to
this particular rescript. With regard to the case of Ire-
land, he had elways considered that any Act of such a
nature as this should refer equally to all parts of the
United Kingdom.—(Hear, hear.) But then there could
be no doubt that when the present Pope came into
power, finding that ever since about forty years after the
Reformation, archbishops and bishops belonging to the
Roman Catholic Church had been appointed to sees in
Ireland, he felt himself justified in continuing those ap-
pointments. The case, however, was different as re-
garded England, for here the Pope had divided the
country into dioceses, and had appointed to them
archbishops and bishops without . even asking
the consent of the Queen or • Government of
this country, and it was that Act with which
the Government and the House had now to deal. With
respect to those Irish bishops, it was not to be ex-
pected but that the Pope would fill up the vacancies in
any of the sees when such occurred, and such might not
be considered much aggression; but with respect to the
aggression of 1850, that was one which the Pope might
and ought to have avoided, and at all events asked the
consent of the Sovereign of this country before he had
made it. There was, therefore, in point of common
sense and reason, a considerable difference in that which
had been done in Ireland since, he believed, the year
1600 in respect of the appointment of Roman Catholic
bishops, and what had been done in England in Sept.,
1850. That appeared to be the opinion of the people of
this country, for he had never heard them object to the
appointment of Roman Catholic bishops in Ireland, al-
though they had done so when the same was attempted
in England. With respect to the other amendment to
the enacting part of the Bill, he did not consider it of
much importance, and would not trouble the House with
referring to it.—(Hear, hear.) Then came, however, what
was more important, for the Hon. and Learned Gentle-
man proposed next, that any one should not be allowed
of himself to institute proceedings against parties who
might infringe this Act, but thattany party might do
so with the consent of the Attorney-General. He
owned that prosecutions of this nature were matters
which so affected the State, that those who repre-
sented the State sought to have the sole power to
institute them. Let the House consider what were the
considerations which those who represented the Go-
vernment ought to have in view previous to ,instituting
them, Previous to instituting all such prosecutions
there were four considerations which Government ought
well to weigh. Ia the first place, had the offence been
committed? Second, could they adduce legal and suffi-
cient evidence of its having been committed? Third,
supposing the offence had been committed, and that
there was legal evidence of its being so, were they likely
to obtain a verdict? And in the fourth place, suppos-
ing they were sure to have a verdict, would any public
benefit ensue from such a prosecution being instituted?
All these were natters for Government to consider.
With respect to the two first, not a reek passed but what
they might institute prosecutions for libel, and prove
them by most satisfactory evidence ; but if these tall
place, the jury who tried the case would be told that the
prosecution had been raised to cover the delinquencies of
a corrupt and persecuting Government, so that the
parties prosecuted for libels would be raised in public
consequence, and their libels more extensively read
than ever. It was a serious matter, therefore, for the
consideration of the Government whether such pro-
secutions ought to lie instituted or not, end whether
any public advantage would accrue from them. Wise
men ale° herd formerly held high positions in the
Government of this country had seen the propriety of
always observing great forbearance in respect of these.
There was a well-known story told of a circumstance
which took place between Sir Robert Walpole and Sir
William Wyndham in that House. Sir William Wynd-
ham made an attack in that House on the Sovereign, and
used language most disrespectful; upon which Sir
Robert Wulpole said, "I see what he wants; he wants
me to send him to the Tower, but I shall do no such
thing." In his opinion Sir Robert Walpole acted wisely,
for Sir William Wyndham would have been greatly
raised in public notoriety by such imprisonment. He
said then that as all these matters required so much con-
sideration, they ought not to be left to be instituted on
the bidding of every individual, but left to the decision
of the Government. Besides the proposal, be thought,
would defeat itself, for the Attorney-General would of
course refuse his consent in all cases where he thought
prosecutions ought not to be issued, and, therefore, there
would be little effect which could attach to the amend-
ment. The Hon. and Learned Gentleman had com-
plained that Attorney-Generals had not done their duty
in not instituting these prosecutions in cases where the
Act of 1829 had been infringed, but that was a com-
plete mistake, for his belief was that Chief Justice
Blackburn and the Master of the Rolls in Ireland
had done their duty in that respect. If they had
neglected their duty, why did not the Honourable
and Learned Gentleman, when Attorney-General and
Solicitor-Genera], which he was for a considerable time,
remind the Home Secretary that they were failing to do
su? That he had not done, and, therefore, he could now
have no ground of complaint. Upon the whole he
thought that the effect of the Hon. and Learned Gentle-
man's amendments would be to weaken, instead of
strengthen, the measure; and he would therefore leave
the House to decide as to whether they ought to be
adopted. The House, in considering the question, could
not forget what had taken place at the commencement of
the discussion, when a considerable number of Members,
who represented counties and towns in Ireland, had re-
tired from the House. In an ostentatious manner they
had refused to take part in the deliberation of the ques-
tion.—(Hear, hear.) They must, however, be held as
consenting parties; and if the Hon. and Learned Gentle-
man succeeded, be would consider those parties who
had left responsible far such success.—(bear.) He
found nothing in these amendments which would pre-
vent him from going on with the measure, which he
would do his hest to carry through successfully.
Mr. NAPIER supported the amendments, and contended
that while there had not been any infringements of the Act
of 1829 in Ireland, during the time the Hon. and Learned
Member for Abingdon was Attorney-General, yet there had
very soon after the Noble Lord came into power. He then
found, on Lord Clarendon being sent to Ireland, that Dr.
M'Hale, in an address which was presented to that Noble
Lord, designated himself as Archbishop of Tuam, and was,
in the reply to that address, styled by Lord Clarendon "My
Lord," and recognised as a peer of the realm. That, there-
fore, was an intringement of the Act of 1829.
The ATTORNEY-GENERAL said he did not so much
object to the first two amendments proposed by his lion. and
Learned Friend, although ho considered that the measure
was much better as it stood. With reference to the introduc-
tion of words 'respecting rescripts introduced into England
and Inland, there was no necessity for the allusion. The law
in the two countries was the same. The sovereignty of the
Crown was the same. Government directed their legislation
against this act of aggression on the part of the Roman Pon-
tilt because it was an invasion of the rights and prerogatives
of the sovereignty of the Crown. He undertook to say that
no judge who was called upon to enforce the law in Ireland
would have any difficulty in administering the law for Ire-
land, as it was intended it should affect rescripts in England.
The Biil, in is present state, was equally applicable to all
rescripts received in Ireland as to the special rescript consti-
tuting bishoprics in England, but he did not regard it as a
matter of any great importance which way they decided, one
way or the other. With respect to the amendment which
proposed to make parties receiving and acting on rescripts
liable to the penalties of the Bill, he objected to it because
of its tendency to make the penalties cumulative. Be-
yond this, he did not see any great harm in the
amendment. If the House chose to inflict a double
penalty for taking titles, and procuring, publishing, and
putting in use, within any part of the United Kingdun, any
Papal briefs or rescripts, that was a subject for the House to
consider and determine on. They should boar in mind,
however, that the object of the amendment was to inflict
two penalties for what was substantially the same offence.
The third auiendment, giving power to the common informer
to institute actions, with the consent of the Attorney-
General in England and Ireland, or her Majesty's Advocate
in Scotland, was the most objectionable. That was a
matter of serious importance, and should be well weighed
by the House. The cases contemplated by the Bill were not
those in which the common intormer should be allowed
to act. Such prosecutions should be left to the public pro-
undet the responsibility of the Government.
to urge that they could not depend upon a
ei et c
Ntvi taosr,aabcstui nr
public officer, such as her Majesty's Attorney-General and
paying a poor compliment to public officers.
Judge Advocate, discharging his public duties. Such a
statement was
Let him not be told that in the present state of public
opinion in England the Bill, when it became law, would
not be enforced. If prosecutions were not instituted in
Ireland by the law officers of the Crown against parties
offending, it was because public opinion in Ireland did not
desire or demand an enforcement of the law; but the case
was different in England. The public mind was in a state of
excitement in consequence of an attempt on the part of the
Roman Pontiff to infringe on the rights and prerogatives of
the Crown. No law officer of the Crown under such circum-
stances would sleep at his post, and no Government with
which he was connected would permithim to do so. By intro-
ducing the common informer, and allowing hint to prosecute,
it was clear they would lower the ,character of the offence to
the character of those other ()fleeces where common in-
formers were permitted to prosecute. They would lower
the character of the prosecutions and of the public prose-
cutor. For these reasons he would oppose the alterations
proposed to be made by the Hon. and Learned Member for

Abingdon.
The House then divided on the question of substituting in
the preamble the words " briefs and rescripts" for " brief and
rescript." There appeared—
For the amendment ... .•• 135
Against ... 11.0
Majority for Sir F. Thesiger's amendment
and against Government ... —35
The announcement of this Ministerial defeat was followed
by tremendous cheering from the Opposition benches.
It was then proposed to insert in the preamble the words
"and particularly by a certain brief, rescript, or letters epos-
tolical. '
Lord J. RUSSELL considered the words unnecessary, but
he would not divide against their insertion.
The preamble; as amended, was then ordered to stand part
of the Bill.
On the question that Sir Frederick Thesiger's third amend-
ment—namely, that in the first clause the words " all such
briefs and rescripts" should be inserted, for " the said brief
and-rescript,"
The SOLICITOR-GENERAL said that, before the House
proceeded to deal with the next part of the Bill, he desired
to ask the House if they were not, to a certain extent, prac-
tising a delusion on.the public, by holding out that the sug-
gestion, or additions, or amendments of the lion. and Learned

Member for Abingdon were towers of strength and bulwarks
of the Protestant Church in Vila country?—(Hear, hear,
and Oh, oh.) These were the words user by the Hon. and
Learned Member for Abingdon. He said that his amend-
ments would not only render the Bill complete, but, in a
speech of great abiPity, he stated that at a peri,cl of their
history where every step they took was of the greatest im-
portance, and where every treachery was put in motion to
surprise, it became of the first importance to mark well
their towers, and to set up bulwarks for strengthening the
Church against the attacks of assailants; and the Honour-
able and Learned Gentleman concluded by telling the House
that he proposed to Eubstituce his masonry for the rubbish of
the Government Bill. Now it never was his (the Solicitor-
General's) view of the Bill that the Church of England
should rely upon it for support. He had diecovered that
while they were looking merely at this wretched rescript di-
viding the kingdom of England into Popish dioceses, that
the Pope had created a Bishop of Ross and a Bishop of Gal-
w .y. Now, if they declared only that one rescript was ille-
gal, the judges in Ireland would be apt to think that the
others were not illegal. Now the Hon. and Learned Gen-
tleman knew very well that all these briefs were illegal.—
(Divide. ):The case stood thusiThe merit of his Hon. Friend
consisted in this, that whereas it was now a misdemeanour
to do these acts, he would make it punishable instead of by
fine and imprisonment by a fine of 1001. That was the ut-
most extent of his merit. Now why had he said all this?
(Cheers and laughter.) If they were not setting up any
new bulwark and increasing their securities, it seemed to
him that they were in effect destroying the Bill, the object
of which was a solemn declaration of independence of Papal
authority. Was it worth while to adopt these partial
amendments, whichdid not in any way affect the main
principle?
The House then divided, when there appeared—
For the amendment ... ... 165
Against it ... ... 109
Majority against the Government —56 717:
Lord JOHN RUSSELL here intimated that be would not
divide on the next amendment, but would take the sense of
the House on the third reading.
The amendments were then agreed to.
Sir J. GRAHAM said, he understood tt was not the inten-
tion of her Majesty's Government to offer any opposition to
the amendment of the Hon. Member for Abingdon, and,
under these circumstances he wished to call the attention of
the House to the preamble, which was of unusual length,
and to the fact that the two clauses had been altered in such
a manner as to materially alter the character of the Bill.
The Bill having been so materially changed, and her Ma-
jesty's Government still adhering to the measure, he sug-
gested that it should be printed with the amendments. for
the consideration of Hon. Members before the third reading.
Lord J. RUSSELL said that he had no objection to the
Bill being reprinted in the form in which it now stood, and
he proposed to take the third reading on Friday next.
Sir J. GRAHAM had no objection to Friday next, but he
thought there should be time given to send the Bill to Ire-
land in its altered form.—(Hear, bear.)

The third reading was then agreed to.
OATHS OF ABJURATION (JEWS) BILL.
The third reading of this Bill was postponed till Thursday
next.

The Supply Report was then brought up and agreed to.
COURT OF CHANCERY ADJOURNED DEBATE, ON

MOTION FOR ADDRESS (27TH MAY).
On the order of the day being read for resuming this
debate,
The SOLICITOR-GENERAL regretted he was not pre-
sent when the Hon. and Learned Member for Newark brought
forward the subject. The motion, he thought, pointed to two
distinct matters—one, that the commission on which he had
the honour to serve should be augmented by two Members
not belonging to the profession; and the other, that the
commission should be directed to attend to the proceedings
in the Masters' offices, with a view to make an immediate
report on the subject. He should shortly state why he con-
ceived the motion would frustrate the object which his Hon.
and Learned Friend had in view. No doubt the object of
his Hon. and Learned Friend was speedily and effectively to
make a reform in the Court of Chancery. The present com-
mission consisted of seve❑ commissioners, who were mem-
bers of the bar, but since its appointment two of the commis-
sio ers—the Master of the Rolls and Vice-Chancellor Turner

—had been appointed to the bench. With regard to the
proposal of adding two additional members to the commis-
sion, ho thought all who had experience in these matters
would admit that seven members were quite enough for
the speedy and effectual carrying out of its object. He
believed there was not a single member on the commis-
sion who was not desirous of Chancery reform—the Master
of the Rolls, for instance, and Vice Chancellor Turner. He
did not see what could be gained by making the commission
nine in number, specially to include persons not members of
the legal profession. The last two meetings of the com-
mission were occupied with hearing evidence on the subject
of the Masters' offices in Chancery; and they were now
busily engaged with the subject. But the vast question at
issue was not to be settled in an off-hand manner, and he
(the Solicitor-General) could not therefore promise a report
this season.
Mr. ELLICE said there had been various inquiries made
into the abuses of the Court of Chancery by the legal pro-
fession, but as yet the unlearned public had derived no ad-
vantage from them. Since 1839, when two new Vice-
Chancellors were appointed, nothing had been done to
remedy the grievances of the over-crowded state of business
in the Masters' offices. He appealed ,particularly to the
Noble Lord at the head of the Government, and said it was a
lamentable fact that this most enormous of all abuses had
been forgotten in the reforms that had been achieved by the
party of which he was at the head. He (Mr. Ellice) did not
attach any blame to the Masters in Chancery, nor even to
the solicitors; but to the system of abomination which pre-
cluded relief from any quarter except the Legislature. In
this great commercial country no contested partnership ac-
count ever went into the Masters' offices and came out
settled with a report. It was a sad fact. Was it not, he
asked, a miserable thing that in a country like England
there should be no court for partnership cases but this court?
He was given to understand that no number of judges would
be of avail unless there was a reform in the office of the Tax-
ing
Master in Chancery. When Lord Grey came into power
he (Kr. Ellice) was one of a commission to inquire into the
Court of Exchequer, and they found the old tally-stick sys-
tem prevail there. They reformed that court, however, and
now it was one of the most effective in the country. The
same might be done with the Masters' offices, but if it was
left solely to lawyers it would never be reformed. A mer-
chant or two, an accountant or two, and perhaps a barrister
and a solicitor, would make the best possible commission. A
deep knowledge of law was not needful to that end. Almost
every department had been reformed, but no daylight had
ever been permitted to entetr that den of Cacus—the Masters'
offices in Chancery. He hoped, therefore, his Noble Friend
would not let the matter sleep, but would bestir
himself, as the head of the Government, to get rid of
this scandal, which was a disgrace to the country.
The MASTER of the ROLLS said he had not been idle,
but had been doing what he could to facilitate the adminis-
tration of justice in all its departments. He had admitted
the evils of Chancery to be not less strong than his Right
Hon. Friend bad stated. One of the greatest abuses in
Chancery was certainly in taking accounts ; but that could
not be remedied by an accountant or a barrister. The evil
was this—that if partners went into a contest as to the ba-
lance in their boots, every item was obliged to be proved by
vouchers, though they might amount to thousands, and
extend over a period of many years. This was the reason
why a report never came out of the Master's offices in a part-
nership account. He had proposed a clause in the Irish
Chancery Bill, making the books prima facie true, unless
they were proved to be the contrary. The constant com-
plaint in his early acquaintance with Chancery was the
arrear of business in original causes. This had been
remedied; and though there was now a great ar-
rear in appeals, there was little or none in ori-
ginal business. Attention had been called to a case where
a bill had been filed in Chancery 'in 1815, and the case was
heard in 1851; but the cause of that arose from the fact that
the Court of Chancery had acted as a trustee in the case,
and that the question had been raised in connexion with
the trust only in 1849, when the lady, the original party,
died, though the bill had been filed so early. The public
should not, therefore, be misled by dates. Ho believed
that one of the most useful reforms that could bs
adopted was to make the Court of Chancery general trustee,
and to enable it to decide without delay disputed cases. He
begged the House to believe that nothing was further from
his wishes than to defend the real abuses of the Court of
Chancery. On the contrary, he was most desirous to see
them removed ; and he believed all his Learned Friends who
were joined with him on that Commission were equally
anxious with him on the subject. When they had met in
that Commission they had divided themselves into sub-Com-
mittees of two ; and a large number of most valuable sugges-
tions, which they were then considering, had been contri-
buted. It was not possible for them to take all these subjects
together, for the question was a very large one. The Com-
inissioners, however, were desirous of getting as much infor-
mation as they could upon one branch, and then to make
their repOrt upon that before they went to another. With
respect to the taking of evidence, they had drawn up
a great number of questions`which they had sent to masters,
solicitors, officers, and even judges, and they had received a
great number of valuable suggestions, upon which they
were on the eve of making a report. They had also begun
to examine into the subject of the Masters' offices. The
Honourable Member for Newark proposed that two new
Members should be added to the Commission, and the
names of the Right Hon. Baronet the Member for Ripon (Sir
J. Graham) and the Hon. Member for Oxford had been
suggested for that purpose. He fully admitted that more
valuable assistance could not be obtained than that which
these two Hon. Gentlemen could afford. But there was a
great difficulty always in too numerous a Commission. Then
it might be a long time before lay members, however intel-
ligent, could be made acquainted with the principles and sys-
tem of taking evidence. Another difficulty arose in the at-
tendance of members. They had appointed Tuesdays, Thurs-
days. and Saturdays, from four to six o'clock, to go through
the business of the Commission. Would it be possible for
lay members to attend on those days and at those hours,
consistently with their other public business? If they
could, nothing would give him greater pleasure than that
they should have those Hen. Members; but in the present
state of the Commission, he had his doubts whether the in-
troduction of other persons would be of so much benefit as
his Hon. and Learned Friend thought. Amongst the evils
stated to exist were, that if a Bill were to be taxed one had to
wait three or four months, and if an order were required it
would be three or four weeks before it could be got out of
the Master's office. There was no doubt but that there
were evils; but it was said they might be remedied by the
appointment of two new taxing officers and additional
masters. No doubt such was wanting; but if a proposition
to that effect were made in the House, it would be com-
plained of that new offices were being created. He agreed
with the Hon. Member for Coventry that it was of the ut-
most importance to take up that subject seriously and
earnestly, and such was the intention of the Gov -rnment and
the Commission which had been appointed. He was sure
übtlniuettilltllitoheuasbti,t
eCswoonculmolduirsissn soinst on a full inquiry into the subject;
whichshould i t
hcaovuel d
madetak e
its wouldreport,
be
atno waitd
not
to seek to add to it for the present any new members. Be-
fore next session he trusted they would have made such a
report as would tend in a great degree to point out the re-
medy for many of the most obvious existing abuses and
evils in the administration of the affairs of the Court of
Chancery.
Mr. CHRISTOPHER thought, after the speech they had
just heard from the Righ Hon. and Learned Gentleman who
had addressed the Ilouse, there could be no more cogent
reasons advanced for the proceeding recommended by his
Hon. and Learned Friend near him. As to the delays of the
Court of Chancery, there could be no doubt on the mind of
any one. He had been dragged into that court against his
will on one occasion, and had been kept there six years with-
out any result. After every effort to obtain a hearing at the
end of that period, he had obtained one which lasted ten mi-
nutes, and he had be told by the Master of the Rolls that
he had no business in that court. It was subsequently nine
years before lie succeeded in getting the suit terminated.
He agreed with the Hon. Member for Coventry, that unless
they got rid of the whole system from the beginning, there
was no use in appointing new judges, new masters, or new
officers, and that they should strike at the root of the evil,
1 if they intended to accomplish any real practical good.
Mr. BETHELL concurred very sincerely in pa't of the
appeal made by the Hon. Member for Coventry; and he
hoped the Noble Lord at the Head of the Government,
whose name was associated with eca many useful reforms,