[1138 as to put every kind of limitation out of amble that the claim had been for a long the question-checks may be desired to time abandoned. A better precedent was prevent the collusion. The control of to be found in Scotland, where a most rethe ordinary may be superadded, the ligious prince, the fast friend of the church, period may be extended, and if three or and one whom the church, on her part, four incumbencies are joined to the lapse regarded with peculiar favour, Charles 1st of time, the probability of successive col- had immediately, on coming to the ancient lusions during a change both of parsons crown of his family, carried through a and patrons becomes extremely small. measure for the universal abolition of tithe, The change of patrons was a most mate- commutation, and sale. But this measure, rial consideration in this view, for each how beneficial soever it had proved for collusive bargain made by the parson Scotland, he did not cite as an example might then be expected to expire, there for this country, where any such violent being no interest on his part to renew it change was quite out of the question.. with the succeeding patron. He asked, He only gave it as a specimen of the inwhether the House was prepared to say, terference with church rights, which parnot only that church property was pecu- liament had from time to time sanctioned. liarly circumstanced, but that it was so In England it had also dealt with them for completely different from all other pro- the public weal-to promote agriculture perty, that it never could be left to the it exempted newly-cultivated land, in legal protection which was deemed suffi- Edward 6th's reign, from all tithe for cient for every other kind of right? The seven years. In the reign of king William right hon. gentleman had frequently de- it fixed the tithe of hemp and flax at a scribed it as most sacred, and had dwelt certain small sum in money; and just beon this expression; if he meant very fore the present king came to the throne, sacred, he was not at all disposed to deny it made a similar regulation for exempting it. But if he meant to speak in the superla- madder from tithe. He called for no entive degree, as instituting a comparison croachments; he only asked, that when with the sacredness of other property, he the plain interests of the community, and must deny the justice of the expression, the quiet of men's possessions required it, or say, that to him it was unintelligible. the House should not deem itself preHe admitted the rights of the church to cluded from legislating, because the be as sacred as those of other property church was in question. He verily be-when he said they were rights of pro-lieved the interests of the church itself, perty, it was enough, for all property was in some sense sacred; it was not to be touched unless the public good imperiously required it; and the legislature always held, that the rights of individuals were to be respected, and never to yield unless where the necessities of the whole community demanded the sacrifice; in which case they every day were interfered with. That parliament had repeatedly legislated upon the rights of the church, was a matter of notoriety in every part of the united kingdom. He did not go to Ireland only for examples: he would not cite the famous vote of the Irish House of Commons against tithe agistment, as subversive of the Protestant interest; but if the act of the Irish parliament abolished that tithe, he did not feel himself at liberty to speak with the same disrespect, not only because it was brought in by the noble lord (Castlereagh), but because it was an act of the whole legislature. It proceeded, too, somewhat like Henry 8th's statutes dissolving the monasteries, upon a pre(VOL. XXXVII.) and those of religion, required it as much as those of the lay proprietors. The same arguments which are now urged against limiting the church, had been used againstthe Nullum Tempus bill respecting the Crown. The church, too, it might be remarked, was the first author of the statutes for limiting the Crown. The maxim, that no time should bar the Crown, was first objected to by the church, with whose quiet it was found to be incompatible. Lord Coke, whose authority was relied on so much, finds no epithets severe enough for the concealors in those days; he calls them gluttons and harpies but it is "templorum helluores"-they swallowed up the church property by availing themselves of the dormant claims of the Crown. As soon as the church took the alarm, the first bill for limiting the Crown passed in the 39th of Elizabeth, and it was confined to securing the diocese of Norwich against such claims. In the next reign, the more general measure was brought forward; but it was met, as the present bill is, with many arguments (4 D) on the danger of limiting the Crown. The Crown property, it might be said, is held in trust for the benefit of the state. The king does not himself superintend its manager ent; he confides in persons who have no permanent interest in it: favorites whose interest is not only different from, but opposed to, that of the community, may obtain possession, and keep it by connivance of the prince and his advisers; and thus the Crown may be despoiled of the property vested in it for the benefit of the commonwealth. All such arguments, perhaps more applicable to the case of the Crown than of the church, were urged in vain, both in James 1st's time, and against the more effectual measure of 1769. After much opposition, both from the sovereign and in parliament, the first bill passed, and the 9th of George 3rd was again carried through parliament after ample discussion. Placing the claims of the Crown upon the same footing with those of every other person; and giving the subject the same perfect security against the Crown, as he enjoyed against all others except the church, it was only just and reasonable that now at length the same principle, modified in its application according to the circumstances of the case, should be extended to the church itself. The gentlemen on the other side, were apt to forget the origin, and the history of property in tithe. He did not mean to mention the early division of them, by which at first a fourth and afterwards a third alone, were enjoyed by the rector. But it might be observed, that for many ages they were held by the church upon conditions, from which the lapse of time and the provisions of the legislature had wholly relieved it. One condition was, the repair of the whole building of the church; this by the common law, is now confined to the chancel. Another condition was, the maintenance of the poor, now thrown upon the landowner. Nor was this last condition confined to early times. As late as the end of the 14th and beginning of the 15th century, there were express provisions for setting apart a yearly sum out of the tithe to support the poor of the parish, as often as any rectory was appropriated. The statutes of Richard 2nd and Henry 4th required this provision to be made, as well as that for a vicar; and it was the condition, sine quâ non, of every appropriation. This continued to be law, as long as appropriations were practised. Blackstone considers (in which opinion he has not perhaps been followed) that an appropriation may still be made. If it is, it can only be effected legally by a compliance with the statutory conditions of endowing a perpetual vicarage, and providing permanently for the support of the poor. The residence act of Henry 8th proceeds upon a statement, that one of the chief duties of the rector is the support of the poor, and the keeping of hospitality. This principle runs through its whole provisions; and also through all the decisions upon it, down to the time of lord Mansfield. Nor can any weight be given to the opinion of those who question the position, that the maintenance of the poor formerly devolved on the church and the monasteries, and who vouch for this from sixty years having elapsed between the dissolution of the religious houses and the 43d of Elizabeth—for it iş well known, that no less than ten statutes for the relief of the poor were made between those two periods; one of them the same year that the lesser monasteries were dissolved. Now, when the church has gained so much by lapse of time; when the change has been so great in its favour, that it now, and for many years past, has enjoyed its tithe and lands wholly unfettered by the conditions under which they were first given, and for so many ages held, surely it is not asking too much to require the adoption, upon the other hand of such regulations as may communicate to the land owner something like a secure and quiet enjoyment of his property. The burdens formerly annexed to church property are, by usage and positive law, indisputably made to rest on the owner of land. He only asked, that the course of time and events might be suffered to complete the security of his tithe, which he takes with all its burdens, new and old. He counted it a grievous mistake to complain of innovation in this question and on the church. The truth was, that they on his (Mr. B.'s) side of the question, had alone the right to make such a complaint. Every year changed the period of limitation (such as it was) in favour of the church; for every year carried us farther away from the 1st of Richard 1, and the 13th of Elizabeth. There was a constant change going on in favour of those who cried out against alteration, and against those who desired that rights and titles should be fixed in security. What, he asked, was to draw the line, and prevent this innovation from going on any longer, until it rendered | fect, so that the pastors shall not have every thing like certain, and quiet pos- the inauspicious appearance of a taxsession impossible.-He had only applied gatherer."-This, too, was his (Mr. himself to answer the arguments brought Brougham's) earnest wish. Among the forward professedly in behalf of the causes of irreligion or lukewarmness, and church, and as he thought really contrary ecclesiastical feud and schisms, he beto its true interests. But nothing what- lieved none to be so prominent as the disever had been urged in defence of the lay putes which arose out of tithe and of impropriator's right to hold his tithe free these disputes by far the most irksome to from all limitation. To his case none of both the parson and the land owner, were the arguments had any application. In- those which grew from the insecurity of deed, the right hon. gentleman had almost possessions, and the liability to be disadmitted this, although he endeavoured turbed after long enjoyment. He wished to set up something like a claim on the to see the ground of these for ever repart even of the lay impropriator, by as- moved, that nothing but peace and harserting that every thing which affected the mony might prevail within the sacred preright to tithes, in whose hands soever it cincts of the church, and that the pastor might be, indirectly, if not immediately and his flock might live in uninterrupted injured the claims of the church. To concord. this, he should only say, that it proved too much; for tithe was not the only kind of property enjoyed by the church. It was richly endowed also with land; and the right hon. gentleman might, therefore, just as reasonably contend that there should be no limitation to claims of real property generally in laymen, because the kindred rights of the church to its real estates might suffer consequently. This kind of argument, he could not help thinking somewhat refined, and even fantastical. It betokened no great solidity in the distinction taken upon tithe property. Indeed, he conceived the case of the lay impropriator to be abandoned by the antagonists of the bill. Hence alone, if there were no other reason, he should have expected the bill to be at least sent to a committee. His learned friend (Mr. Wetherell), had defied them to produce any authorities in favour of their principle. He had already referred to Mr. Justice Blackstone, no great enemy to the establishment, and no very rash reformer. But he should now cite another, still higher name among the friends of the existing system, and the adversaries of all innovation-he meant Mr. Burke-who had strenuously supported the bill of 1772, for quieting men's possessions against the claims of the church-and these were his words-" This is to take nothing from the church, but the power of making herself odious. If she be secure herself, she can have no objection to the security of others. I heartily wish to see her secure in such possessions as will enable her ministers to preach the gospel with care, but of such a kind as will enable them to preach it with full ef Mr. Peel declared, that he should not have trespassed on the patience of the House, by opposing the bill in its present stage, had not the hon. and learned gentleman thought proper to allude to the sentiments of his right hon. friend. The hon. and learned gentleman had objected to the words, "most sacred," as descriptive of the patrimony of the church. Perhaps there might be some difficulty in such an application of the word, but at any rate there were peculiarities in the property of the church which distinguished it above all property that ranked as secular. It was set apart for the support of the ministers of religion; and although he would not insist on this point, the House must be so far aware of the importance of religious instruction to the community as to respect the maintenance of those who imparted it. It was greatly to be feared that the tithe-holders formed the majority in opposition to the claims of the church. With respect to the hon. member's bill, he must say, that in his opinion, it was the most extraordinary that could well have been framed, considering the magnitude of the subject. The preamble did not even state the grounds and objects of the bill; and if the hon. mover should withdraw the first paragraph, which he seemed disposed to do, it would declare any thing, except the matters to be enacted by it. The House divided: For the second reading of the Bill, 15; Against it, 44: Majority, 29. The Bill was consequently lost. * See New Parliamentary History, Vol. 17, p. 307. HOUSE OF COMMONS. Tuesday, March 17. MOTION RESPECTING THE RIGHT OF MAGISTRATES TO VISIT COUNTY GAOLS.] Lord Folkestone observed, that pursuant to his notice, he rose to move for leave to bring in a bill to remove certain doubts, supposed to exist, as to the right of Magistrates, to Visit Common or County Gaols, under the act of the 31st of the present reign. Whether it was thought by some, that such a power should exist in the magistracy-whether it was thought, by others, that such power should not exist, or whether it should exist in some cases, and not in others all, he should suppose, would agree as to the propriety of having the law on the subject clear and explicit, and no longer capable of doubtful or forced interpretation. As the object of his motion was to settle the question, he could not expect any opposition. Certainly, the bill which he should feel it his duty to introduce, would give to the magistracy of the county the right to visit common gaols. But if the gentlemen opposite did not wish to afford that right, or to limit its exercise in certain cases, it would be open to them in the committee to submit enactments to those purposes. That doubts now existed on the subject was undeniable, and his great object was to put an end to them. The House had in its recollection, that during the last session, he had submitted a motion to its consideration, relative to the refusal given to the magistrates of Berkshire, who wished to visit the county gaol. That motion having been refused, he had preferred an indictment. against the gaoler of Reading. The verdict of a jury had since acquitted him. With respect to that verdict, having himself attended most minutely to the trial, he must say, that if the charge of the judge who presided did not actually direct, it bore so strong to the one side as to lead to that verdict. He felt that he would not have discharged his duty to the country, if he had not complained of what fully and solemnly struck him as the partiality of the judge-not a personal partiality, but a marked partiality to one side of the question. This impression of his conduct, he felt at the time-he felt it the stronger the more he considered it, as being demonstrated in the whole of the summing up. Though it was a question, on each side of which, it appeared to him a great deal might be advanced-though it was a subject the most removed from any very decisive opinion, yet it was remarkable, that the learned judge who tried it, who confessedly had turned his attention to it, had consulted authorities, yet could not find any one argument, but what bore on the one side. He verily believed, that on any question where the government was the one party, and himself the other, he should not stand a chance of a verdict. If he had mistaken, or mistated any thing, the gentlemen opposite were in possession of the documents, and might correct him. The whole appeared to him to hinge upon the statute of the 31st of the king, and upon a particular clause in that act, namely, the fifth clause. The act in question was intituled, "An Act for the better regulating Gaols and Places of Confinement," and the point to be considered was, did the act or did it not, refer to gaols? The preamble of the act was stated in words which were very equivocal, but it must be a forced construction upon them to suppose, that it was not meant to refer to gaols as well as to other places of confinement. The four first clauses were solely confined to houses of correction and penitentiary houses. The fifth clause referred to the gaoler's fees, and expressly spoke of sheriff's officers. The eleventh clause manifestly and. clearly referred to the common gaols and to the sheriff's gaols. The eighth clause directed the keepers of common gaols, and also the governors and keepers of common penitentiary houses, to make returns on the first day of every assize, which returns were to be signed by the visiting magistrates appointed in the manner thereinbefore mentioned. He should like, then, to know, by what act of parliament gaolers had a right to prevent the visiting magistrates from entering the common gaols, when it was a duty incumbent upon them at certain times so to do? To explain this, he supposed he should be referred to the 24th of George 2nd, and to the 19th of the king, c. 74. The act of 1791 was passed upon contemporaneous usage, and grounded on the practice of all similar occasions. At the late trial, a portmanteau had been produced stuffed with warrants (which certainly had a good stage effect), from the year 1660 down to 1817. The lieutenant of the tower was called upon to bring them forward, and it was true that all of them directed, that the persons committed should be kept in safe and close custody. He was perfectly ready to admit, that the secretary of state always committed to safe and close custody. The reason for this was, that it was the duty of the gaoler to keep the person safe and close, and no fault could be found with the mittimus for directing him to do so. What then was gained by producing any number of warrants? It was not the meaning of the warrants that the persons should be kept in solitary confinement. He would not state this upon the simple authority of the English language, but he would cite lord chief justice Coke upon the subject. The words were sub salva et arcta custodia, and this was translated, safe and close. A person might be in salva custodia while within the rules of the King's-bench prison, and might be in arcta custodia, when within the walls of that prison, though perfectly free to communicate with whom he pleased. In the State Trials in the time of king William, in the case of Cooke and others charged with high treason, application had been made by the friends of the parties for access to them when in gaol. That application had been complied with, and their friends had been allowed access to them under certain restrictions. He (lord F.) had made inquiry as to the practice upon former occasions, and had found that since the year 1791, it had been the practice of magistrates to visit the prisons, and that no instructions of the same nature with those recently given had been delivered upon former occasions. The act of king William, which allowed the benefit of counsel to persons charged with high treason, had also provided free access for the counsel to the prisoners; and by a subsequent act of parliament magistrates had also been allowed to visit the prisons. Upon the recent trial the court had only said that the case was attended with doubts, as to one of the rights of the magistrates in the visiting of prisons. Upon a former occasion much had been said as to the prerogative of the Crown and of the gaols being the king's, which did not seem to him to bear upon the point. The act of the 31st of the king was the first of a series of acts, when the gaols began to be more attended to than they formerly had been; and should the magistrates be prevented from visiting the gaols, things would fall back to their former state. The noble lord concluded with moving, "That leave be given to bring in a bill for removing Doubts whether Magistrates may visit Common or County Gaols, not being Houses of Correction." The Attorney General expressed the astonishment which he had felt at hearing the noble lord in the House of Commons accuse, in plain terms, the learned judge who had tried the cause in question, of partiality. It was impossible that any man, exercising the functions of that high office in the state, could have a more serious charge brought against him, for it implied every thing that was base and unworthy. If an individual, who had sworn to administer the law with strict impartiality, lent himself to any purpose, political or otherwise, he did that which ought to subject him to universal reprobation. Although he (the attorney-general) was not present at the trial, he had the most accurate information of all that had passed; of the patient and laborious attention, without any interruption, on the part of the judge, to the learned and ingenious, though fallacious statement of the noble lord's counsel, and to the evidence in every point of the noble lord himself (in which evidence there were certainly very extraordinary parts, although he had not the slightest idea of insinuating that they were not founded in truth), as well as the patient and laborious attention which he gave to the statement on the part of the defendant. And this last he supposed the noble lord would not deny, that the learned judge was bound more especially to do, when a man was charged with a crime (whether by the noble lord or any one else), who had (he spoke it parenthetically) been punished already on ex parte evidence, by the magistrates of the county in which he was faithfully discharging the duties of his station. If ever there was an individual entitled to call on a learned judge for protection from the prejudices excited against him, the defendant was assuredly the man. When, therefore, the noble lord vented a charge of partiality against a learned judge, let him not be quite sure that he himself, at two successive quarter sessions, did not exhibit great bias, partiality, and prejudice; more especially when he and the other magistrates voted this person guilty before he was tried-a person placed undoubtedly in a situation of the greatest embarrassment and difficulty, having the whole-no, that would be an unjust accusation against the |