§ The Lord Advocatemoved, that the Amendments made by the Lords in the 2 Railway Clauses Consolidation (Scotland) Bill should be agreed to.
§ Mr. Laboucherefell compelled, on the present occasion, to take a course which was very unusual in that House. It was necessary for him to call the attention of the House to a clause in this Bill which had been sent up to the House of Lords, and not altered or amended by them; and which, consequently, the House of Commons had now no power of remedying or altering. If the course which he was now taking was unusual, it was however justified by the unusual or rather the unprecedented manner in which this clause had passed the House of Commons. It was introduced in a manner which precluded the House from discussing it, or even knowing of its existence. It was not in the Bill as introduced by the Lord Advocate, but was allowed by him to be introduced by the hon. Member for Stirlingshire without any opposition, and without the Lord Advocate undertaking the responsibility of it. The learned Lord had on a former occasion stated, that all the 3 Scotch Members were agreed as to the propriety of the clause; but he believed, on the contrary, that there was great difference of opinion amongst them on the subject. The learned Lord had also said, that a precisely similar clause was inserted in every Scotch Railway Bill, but this statement he believed to be equally erroneous; and be could not help complaining of the covert, and he must say surreptitious, manner in which the clause had been introduced. In order to make the object of the clause intelligible, he must premise that the mode of laying out turnpike roads in Scotland was very different from what it was in this country. There, the bank lent money on the security of the tolls; but also the gentry near whose property the road ran gave their personal security for the tolls of the road, and by doing so they got the money at a lower rate of interest, and facilitated the construction of the road. They were thus interested parties; and the object of the clause to which he referred was, if the tolls should fall off, to hold them harmless as to their guarantee. He admitted that a similar clause was inserted in some of the Scotch Railway Bills, but not to the unqualified extent to which it proceeded in this Bill; for it was proposed by the clause in question, that if a railway company and the proprietors of land could not agree as to the amount of compensation, the absolute decision of that point was to be left to the sheriff of the county. No jury, no appeal; but sums of enormous magnitude were to be left to the adjudication of this single officer, without check and without appeal. Now, it happened not unfrequently that sheriffs of counties were themselves proprietors of land in the counties in which they were sheriffs. He believed that in the practice lately adopted, no gentleman was appointed sheriff for a county in which he possessed land; but that was not the former practice, and some gentlemen still remained who held land in the counties for which they were sheriffs. The indecent consequence of this clause in such cases would be, that the sheriff would be awarding compensation in cases in which he was himself directly interested. He did not think that the House would have sanctioned such a clause if there had been an opportunity of considering it. It was difficult to say what course ought now to be pursued; but he had felt it his duty 4 to call the attention of the House to the circumstances; and he was anxious to hear from the Lord Advocate some more satisfactory explanation, both as to the clause itself and the manner in which it had been introduced, than it had been his good fortune to obtain on a former occasion.
§ The Lord Advocatesaid, that the clause in question was proposed in the Committee on the Bill; and he saw no objection to it, as well because no objection was then made to it, as because, as he observed at the time, and which the right hon. Gentleman now confirmed, similar clauses had been introduced into some Scotch Railway Bills. In this case no sum was specified for compensation, nor were the parties declared to have a claim to compensation. They were enabled to apply to the sheriff; and if he conceived that they had a good case, he was empowered to award compensation; if otherwise, to refuse it. As to sheriffs possessing land in counties for which they were sheriffs, he knew that was decidedly opposed to the principle generally laid down and acted upon. The principle was, that they should possess no local interest in the county for which they were sheriffs. That being the case, he considered the sheriff the best arbitrator that could be selected for such questions, he being a lawyer, an independent and impartial person, and having no interest for or against any projected railroad. Under these circumstances, he saw no objection to the clause.
§ Mr. Forbessaid, that, previous to proposing the clause, he had consulted several of his friends from Scotland and also several parliamentary agents, and all agreed that some such clause was indispensable; but as none were prepared to make any definite proposition, he had taken upon himself that duty, and introduced the clause on a principle which, as he considered, had already been established. He put it to the House whether the right hon. Gentleman opposite had not used too strong language in speaking of the mode in which the clause had been introduced?
§ Mr. Rutherfurdsaid he agreed with his right hon. Friend, who had brought this clause under the notice of the House, that it was one involving most important principles. He acquitted his hon. and learned Friend the Lord Advocate of any intentional irregularity in its introduction, 5 but certainly it was most unfortunate that such a clause should have been introduced without notice, and without having been printed. He thought that the hon. Member who spoke last had only made the case ten times worse. He had looked into the clause. His hon. and learned Friend was right in saying that the principle had been recognised in some previous Bills, but certainly not in all. In many Bills there was no provision at all for compensation for turnpike roads, while in others the principle was recognised to a certain limited extent. But here was a clause making compensation compulsory in every case. There was no safeguard nor exceptions; in fact, there was food for litigation in every line of the clause. He objected also to the provision which made the sheriff arbiter in disputed cases. What! a single individual to decide most important points. Why not give him the assistance of a jury? He repeated, he did not impute to his learned Friend any wish to prevent the discussion on the clause, but he certainly thought that he had been guilty of great incaution in allowing the clause to be introduced, as it had been, without notice, and without having been previously printed.
§ Mr. Cumming Brucebegged leave to observe that the objection to the clause seemed to be taken mainly upon the ground that the sheriffs, who were appointed to decide in the matter, might be interested as landed proprietors in the county. There was he believed, but one county, that of Inverness, in which the sheriff was so interested; and in that county no person was responsible for the tolls of the roads. Since the passing of the clause in question, he had received letters from the county which he represented, from parties interested in the promotion of railway projects, and all expressing their satisfaction that such a clause had received the sanction of the House. He would give his cordial assent to the clause.
§ Mr. Laboucherewished to ask a question of the Lord Advocate, the reply to which might probably shorten the discussion. His question was, would the Lord Advocate engage, on the part of the Government, to introduce a short Bill in the course of the present Session, either to repeal or to amend the clause objected to? If no such engagement were made, he must move that the Bill be taken into further consideration that day six months.
§ Mr. Humecondemned the clause. He thought that what was considered good for Scotland, should be introduced into England. The clause might be made of very extensive application. Were there not canals, as well as turnpikes, to be affected by railroads? He thought that the principle adopted by Her Majesty's Government, in reference to this matter—if any were adopted at all—should be one of general application. The Lord Advocate could not have been aware of the importance of the clause, otherwise he would not have allowed it to pass as it had passed through the House. He would submit that the Government should withdraw the present Bill, and bring in another. With the intent that they should do so, he would move that the Lords' Amendments be taken into consideration that day six months.
§ Viscount Ebringtonobserved, that in matters of this kind Scotland seemed to be much better represented in the Government than was England. It appeared that Scottish trustees of turnpike roads received at the hands of the Lord Advocate a degree of consideration which was peremptorily refused by the Chancellor of the Exchequer to him (Lord Ebrington) when, some time since, he brought before the House the present plan of exempting mails from the payment of toll. He hoped the English Representatives would bear in mind the manner in which Scottish turnpikes were considered by Government.
§ Mr. Christopherthought that the object of railway legislation was, or should be, to establish a uniform system throughout the whole country. If they introduced a separate system with regard to Scotch railways, the greatest hardship would be inflicted upon all interested in turnpike roads in England. In the north of England the property of some of the trustees of such roads had been reduced by the introduction of railways by some 40 or 50 per cent. If this Bill were to pass, he hoped the Government would extend the same measure of justice to England. If they did not, he should feel called upon to support the Amendment of the hon. Member for Montrose. They could only secure a uniform system of railway legislation by having its provisions extended equally to all parts of the country, unless there were some very special reasons why one part of the kingdom should be placed in a better position than another.
§ Mr. Home Drummondobserved, that the same state of things did not exist in England as existed in Scotland. The clause in question had reference to trustees personally bound.
§ Viscount Howicksaid, that the cases of England and Scotland, as he viewed them, were precisely similar. The case of Scotland was this: the country gentlemen of Scotland advanced either their money or gave their personal security for the purpose of effecting improvements upon the roads. In the county with which he was connected, the country gentlemen came forward also to effect such improvement. The western line of road, through Wooler, communicating by Northumberland with Scotland, was defective, and the gentlemen of the county were anxious to improve it. It was greatly improved, the county gentlemen coming forward and lending their own money on the security of the turnpike trusts or tolls to be levied on the improved road from Morpeth through Wooler into Scotland. That money remained unpaid. Two railway projects were now before the House, for the purpose of establishing a railway communication from Newcastle to Berwick, and one or other of these would probably pass. If either of them passed, he doubted very much if the tolls levied upon that line of road, which traversed a very thinly inhabited district, would pay the expense of collection. The parties who had thus lent their money would then entirely lose it; but thinking that the principle was so settled that no compensation in such case should be granted to them, they had not even applied to the House for it. When these same gentlemen travelled into Scotland by railway, having thus lost the money which they had advanced to improve the roads in their own country, they would find that they had to pay for compensation to Scottish landlords, who were precisely in the same situation as they were themselves. Was this a thing to be thought of? Were clauses inflicting such injustice upon parties to be smuggled into a Bill? Would such clauses be permitted to become law? He trusted that they would not, and he thought that the only means of preventing such a result would be, that the House should agree to the Amendment. The noble Lord (Lord Ebrington) had alluded to a subject to which he had some time since called the 8 attention of the Government, and which had not received the attention which it merited—he meant the exemption of mail coaches from toll. He thought that this exemption should be got rid of, both in England and Scotland. At all events, the House had no right to give to Scottish landlords the additional benefits which they now claimed, without good grounds for them, nor was he aware that any such grounds existed.
Mr. Edward Ellice, jun., observed, that it was notorious that a sheriff of a county might be a landed proprietor in the county, and, having an interest in the question of compensation on a trust, might be called upon to judge in his own case. Not only might compensation be thus granted to road trustees, but a profit might be made out of the roads. This clause, he conceived, had been jobbed into the Bill, and it was a clause which should meet with the strenuous opposition of the House. It was one of the most material parts of the Bill. It was a Government Bill, and the Government should be responsible for so material a portion of it. He could not assent to another Bill being brought in as supplemental to this. He could not trust to such a Bill. He had no security how a supplemental Bill, repealing the clause in question, might be dealt with in another place. The only course left for them was to oppose the present Bill altogether, and trust to an entirely new one being brought in.
§ Mr. Aglionbyregretted that no Member of the Government had risen to express the sentiments of the Government upon the clause disputed. If the clause were part of a Private Bill, he could well understand why the Government should take no interest in it. This was one of their own Bills; and when a direct appeal was made to them upon one of its most important clauses, he thought that some Member of the Cabinet would have risen and expressed some opinion concerning it. The plan proposed by some of those who objected to the clause was, that the Bill should be stopped in the ordinary way, and a new Bill introduced, without the obnoxious clause, and to this proposal he would assent. The present Bill recognised an important principle, and he did not see why, if it were adopted as regards Scotland, it should not be made applicable also to both England and Ireland.
§ Mr. Pringlethought that the whole of 9 this question had been much misapprehended by many hon. Gentlemen who addressed the House. The case of Scotland was different from the case either of England or Ireland. The roads in Scotland were constructed upon a principle altogether different from that on which the roads in the sister countries were formed.
§ The Lord Advocateobserved, that the clause in question had been objected to on various grounds. It was objected to on principle, and he was asked to bring in a Bill to repeal or amend it. Another objection to it was grounded upon the manner in which it had been introduced. He had already explained how it had been introduced. The clause was not in the original Bill, and he had introduced it, considering that there was no objection to it on principle, and no objection had been taken to it when it was introduced in Committee. But as it was stated that the clause had been introduced into the Bill in a manner unsatisfactory to the House, and as he was not desirous to have it carried without proper discussion, he certainly did not wish to press it at that moment. He was disposed to take the course which was considered least inconvenient with regard to the progress of the Bill, and which would afford the best opportunity for a fair discussion of the principle involved in the clause, should it be brought before the House in a somewhat modified form. The best course, therefore, he thought, would be to reintroduce the Bill, with all the other Amendments, such as they now were, when the House would have an opportunity of dealing with this clause as, upon due consideration, might appear most desirable.
§ Leave given to bring in Bill (No. 2), for consolidating Railway Clauses (Scotland).
§ Bill subsequently brought in and read a first time.
§ Amendment agreed to; and consideration of the Lords' Amendments put off for six months.