§ Order of the Day for the House to be put into Committee, read.
§ LORD STANLEY OF ALDERLEY,in consequence of the absence of the Lord Chief Justice, moved, That the House be put into Committee on the said Bill on Tuesday next.
§ LORD LYNDHURSTrecommended that the Bill should be referred to a Select Committee.
§ LORD STANLEY OF ALDERLEYsaid, that the proper time for discussing that question was not upon a mere Motion for postponing the Bill.
§ EARL GREYthought it would be greatly to the advantage of the House to send the Bill to a Select Committee. The more he looked at the measure the more he was satisfied that it was imperfect, and would require more detailed consideration than it was likely to receive in a Committee of the whole House. He called it imperfect, because some of the most important topics connected with railway management had been deliberately excluded from it by the Government, and the House was totally ignorant of the intentions of the Government in regard to them. The subject of accidents was inti- 982 mately mixed up with the general management of railways, yet that had been entirely omitted from the Bill. It was impossible, in fact, to consider any one question satisfactorily without having before them the whole scheme. So, also, with regard to the Post Office arrangements. On both these points the House ought to know what the intentions of the Government were before they proceeded to dispose of the present Bill. But that was not all. He thought the Bill was defective also in not providing all that was necesary for the security and convenience of the public, and in not making arrangements on other points, in regard to which railways were greatly interested. He should be sorry to be supposed as speaking in a spirit hostile to railways. On the contrary, he was persuaded that the well-understood interests of railway companies and the public were the same. He complained particularly of the Bill, because it did nothing relative to the great question of amalgamation. When his noble Friend moved the second reading on a former evening, he did not disclose anything of the intentions of the Government upon that subject. Originally, hopes were held out, in the place of amalgamation, of some arrangement for giving railways certain districts for specified periods. In this matter railway companies had been hardly dealt with. Both during this and the last Session a great variety of amalgamation Bills had been brought forward by railway companies, but had all been either indefinitely postponed or rejected, on the ground that the whole question would be considered by the Government. He was of opinion that railway amalgamation, with due security for the public, would be very useful. It was quite clear that two railways could, by an united management, carry on their business with greater economy and efficiency than they could do with separate staffs and establishments. He thought that a certain amount of amalgamation was required; but care should be taken that in every instance advantage accrued to the public, and that due security was given against the abuse of the increased power obtained by companies. It was quite apparent that, under the existing system, competition did not answer either as regarded the companies or the public. These were only some of the points which ought to be carefully considered by the Government, and the longer they were postponed the more 983 difficult they would be of settlement. He entirely approved of the suggestion of the noble and learned Lord, to send the Bill to a Select Committee.
§ LORD LYNDHURSTwould move that the Bill should be referred to a Select Committee. He quite agreed with the noble Earl, that the interests of the railway companies and the public, though apparently at variance, were not really so, and might be reconciled by a careful investigation before a Select Committee. Such an investigation could not, however, be entered upon in a Committee of the whole House. One question which required very careful consideration was as to the tribunal which was to decide what was a "reasonable condition" to be affixed by the railway companies to the conveyance of traffic. The Bill proposed to intrust this power to the fifteen common law and six equity Judges, each of whom might be called upon separately to pronounce an opinion upon questions not of law, so vague and so incapable of being reduced to fixed rules, that it was impossible conflicting decisions should not be given. Another result would be, that as the common law Judges were absent on circuit from London twice a year for a considerable period, the investigation of these matters would principally devolve upon the equity Judges, who were stationary. Now even at the present moment the Judges in these courts were barely able to despatch the business before them, and he was informed that when the vacation arrived, there would be a considerable arrear of business to be disposed of at a future period. The business before them would be still further increased by the Testamentary Jurisdiction Bill; and if to that they added the business that would arise under this Bill, it was quite evident that all the benefits which it had been attempted to secure to the public by the late reforms in the Court of Chancery would be lost, and that the delays and arrears of business in that court would soon be as bad as ever. He thought that, in order to ensure uniformity of decisions, questions of this kind should be dealt with by one tribunal; and he would suggest that the Court of Common Pleas—the Judges of which had ample time—should be the court for that purpose as far as England was concerned. It would still remain for consideration to what tribunals in Ireland and Scotland they should intrust the decision of these 984 questions. Another point to which he wished to draw their attention was the desire on the part of railway companies to free themselves from the consequences of their negligence by setting up special contracts. It was for the House to decide whether they should put some restraints upon these contracts, and, on the other hand, whether in favour of the companies they would not somewhat limit their liability. He had understood, also, that the railway companies disputed their liability to carry horses and cattle under the word "traffic." He could not see why the words "horses and cattle" were not used instead of the word "traffic," which had no definite meaning whatever. These and other similar questions, which could not be dealt with in a confused debate in the whole House, might be very well considered by a Select Committee, and he should, therefore, press his Motion for referring the Bill to such a body.
§ Amendment moved, That the Bill be referred to a Select Committee.
§ LORD STANLEY OF ALDERLEYhoped the noble and learned Lord would not press his Amendment. The Bill was on Friday last fixed for that evening, on the express understanding that, if the Lord Chief Justice—who desired to consult the Judges with respect to some of its provisions—desired a further postponement, it should not then come on. He had received a note from the Lord Chief Justice, expressing his desire that the Bill should be further postponed; and, under these circumstances, he trusted that their Lordships would not, in the absence of the Lord Chief Justice, enter upon a discussion of the general merits of the measure, or entertain any proposition for referring it a Select Committee. He must confess that he had as yet heard no reasons which convinced him of the necessity of such a step, nor could he see why the various points that had been mentioned could not be discussed perfectly well in a Committee of the whole House. With respect to the word "traffic," it was perfectly well understood in connection with railways; and if the noble and learned Lord referred to the interpretation clause, he would find its meaning fully defined. The noble Earl (Earl Grey) near him had complained that several subjects, and particularly that of accidents, were not embraced in this measure. This Bill, however, only professed to deal with the regulations as to traffic. It was complete 985 as far as it went; and with respect to the subject of accidents, a distinct Bill was already prepared, and would be placed on the table of the other House in the course of a few days.
§ LORD LYNDHURSTobjected to the use of an insensible word, and then attempting to attach to it a sensible meaning by a definition in the Bill.
§ LORD REDESDALEheld it to be highly important that the Bill should pass without delay. That something might be done to make it more perfect he would not deny, but it proposed to remedy many deficiencies now existing in railways. A number of other Bills were really dependent on the passing of this; a number of companies whose traffic was now impeded were waiting in the hope of surmounting the obstacles in their way when the Bill should be passed, and he should therefore deprecate anything which should delay its progress. As to the proposed reference to a Select Committee, he entertained no decided objection one way or the other; if the Committee would go on vigorously, and without loss of time, he would not object to the reference; but if, on the other hand, the Committee, not confining themselves to the Bill alone, should enter into all matters connected with railway traffic, he should give the proposal of the noble and learned Lord his decided opposition.
§ THE EARL OF DERBYcertainly thought there was very considerable force in what had been said by the noble Lord who had just sat down as to the desirableness of passing the Bill at an early period. The proposed reference to a Select Committee was not for the purpose of considering the Bill itself, but for that which his noble Friend most deprecated, namely, for entering into extensive considerations with a view to framing a more efficient Bill, which would occupy the greater portion of this Session of Parliament. If that were the case, as he believed it to be, he would urge upon his noble and learned Friend to reconsider, or at all events not to press, the question of a reference at the present time. Before sitting down, he wished to ask the noble Lord opposite, who had the charge of the Bill, whether he had considered the particular point, which had been the subject of observation by various noble Lords as well as by himself, with regard to the liability and great responsibility of railway companies, and the possibility of their avoiding that responsibility by a simple notice; and whether he were 986 prepared to introduce, on the part of the Government, a provision to prevent that avoidance?
§ LORD STANLEY OF ALDERLEYsaid, that the case had been most fully considered, and he was informed that railway companies were subject to precisely the same liabilities as common carriers. There was, therefore, no necessity for introducing a special provision on the question; it would only be necessary to enforce the laws at present existing.
§ EARL GREYsaid, that railway practice abounded in cases of injustice and oppression, which were not heard of in connection with the profession of a common carrier. If this Bill was not to be referred to a Select Committee, and if Her Majesty's Government should not propose any more effectual measure, he did trust that some of their Lordships would move for a Select Committee on the general subject, with a view to ascertaining whether some further legislation were not necessary. The Bill, as it stood, was a most insufficient attempt to deal with a subject of very great and urgent importance.
§ LORD LYNDHURSTsaid, that by the common law, carriers were obliged to receive all goods given to them to carry. They had attempted, however, to get rid of their liability on account of the goods by putting up notices limiting their liability. As, however, the goods were not always delivered at places where those notices were posted, it was decided that they were of no effect. They next affixed a notice limiting their liability to the receipt which they gave for the goods, and this would have been effectual in the then state of the law. Parliament, however, then stepped in, and by the 11th Geo. IV. declared that they would not allow their liability to be limited by these notices, but it was at the same time provided that this Act should not prevent parties entering into any special contract. Taking advantage of that the railway companies had by a special notice made it part of the contract on which goods were received, that they would not be liable for loss or injury from whatever cause it might arise. Now, this was not in accordance with the spirit of the Act of George IV. It was an evasion of it; a species of fraud which should be prevented by this Bill.
§ LORD STANLEY OF ALDERLEYsaid, that the Lord Chief Justice had expressly declared that these notices were so much waste paper; and that if the railway 987 company refused to take cattle or horses or other goods, except upon the terms of such a special contract, it was perfectly competent to any one to bring an action for damages against them in a court of law. The remedy was precisely the same against a railway company as against a common carrier who refused to take goods except on special contract.
§ LORD LYNDHURSTsaid, that the remarks of the Lord Chief Justice had exclusive reference to the non-effect of notices issued by railway companies in defeating the operation of the Act introduced by himself for giving damages for personal injuries. It was all very well saying that an action would lie against a railway company if they refused to take goods; but how unequal was the contest between an individual and a powerful company?
§ EARL GREYcould not at all agree that those notices were mere waste paper, for he knew of a case in which the Court of Common Pleas, setting aside the verdict of a county court, held that, by the publication of such a notice, the Newcastle and Berwick Railway Company had freed themselves from a liability which would otherwise have attached to them.
THE LORD CHANCELLORwas afraid that this inequality was inherent in the nature of things, and that it would still operate whatever might be the nature of the remedy provided. He thought the subject of the liability of railway companies was not yet fully understood by the House. Every common carrier was bound to take goods which were tendered to him, and he believed that railway companies were equally subject to this liability. In former times, no doubt, carriers—on account of the nature of their conveyances—were not required to carry cattle. But now, when they—at least railway companies—had the means of doing this, they were, he had no doubt, just as much bound to receive cattle and horses, if tendered to them, as any common carrier was to take a parcel which was put into his hands. Nor could they refuse to take such horses and cattle except on the terms of a special contract, although, no doubt, if a party did enter into such a contract with them, he would be bound by its terms.
§ THE EARL OF DERBYwished to know whether the Government would have any objection to insert in the present Bill a clause precisely in the words of that of the 11 Geo. IV., the Act relating to carriers, declaring that the tickets issued 988 by railway companies should not affect their liability as common carriers, except in cases where a special contract was properly constituted, and where the parties sending the goods had the option of entering into or of refusing such contract.
§ LORD STANLEYsaid, that if it were the opinion of the noble Earl and of the noble and learned Lord (Lord Lyndhurst) that such a clause was necessary, he should have no objection to insert it in the Bill.
§ LORD REDESDALEpointed out that the 6th clause provided that, when any proceedings should be taken for any contravention of the Act, an order should be issued by the court, imposing a penalty upon the company only if such a thing should be done in future. The complainant was, therefore, not to have any damages himself, and no private party would complain upon these terms. The clause ought to be altered, and the party enabled to bring his action for damages and his action to have the company restricted at one and the same time.
§ EARL FITZWILLIAMsaid, the noble Lord had objected to sending the Bill to a Select Committee, seemingly because he had wished to make their Lordships' House a Select Committee. Undoubtedly there existed a strong objection to a Select Committee at this period of the Session; but if the noble and learned Lord let slip the present opportunity, he would get no other this year of bringing under the consideration of Parliament, Her Majesty's Ministers, and the House of Commons, those matters which had been improperly omitted in the Bill. Such a Committee would not be exclusively confined to the questions contained in the Bill, but would take the opportunity of duly deliberating on all those questions which they might think worthy of being introduced into it. It was upon that very ground that he (Earl Fitzwilliam) had come to the opinion that the appointment of such a Committee would be most desirable. If the subject were not fully gone into, their Lordships would not have credit given them for wishing to legislate satisfactorily upon this important question.
§ LORD BEAUMONThad no objection whatever to go into Committee on this Bill; but before he agreed to that Motion he should like to understand whether it was proposed that a Select Committee should sit on this Bill or on the general subject of railways. If it was merely pro- 989 posed that a Select Committee should sit on this Bill, as the Bill was a very short one, and omitted nearly all the matters concerning railways, and contained only one or two clauses on the outside, the Committee might confine themselves to that subject, and in the course of a single day make the necessary alterations. If, however, on the other side, they were now to do what it was their duty at some time to do, namely, to go into the whole of the question of railways, and were to select the occasion of this Bill for fulfilling that intention, then he would say that he must object to the Motion; for although they were bound to consider the question, he thought it would be injudicious to take the opportunity of this Bill to appoint a Select Committee for the purpose. He thought so, not so much because of the delay as on other grounds. He believed the whole of the legislation on the subject of railways must be matter of compromise, because, in consequence of the power which the railway interest had in another place, they could not expect to carry a complete measure; and he was not quite certain whether the Government had not been wise to divide the subject into various Bills, in the hope of getting some of these Bills through, and of obtaining some good, which they certainly would have failed to obtain if they had put all that was desirable into one Bill. He agreed that the Bill was imperfect as a matter of legislation, and that most important matters were omitted; but he was fully convinced that a more perfect measure would not have succeeded in another place, and he would rather get the little they could get than by attempting more to lose all. The objection raised by his noble Friend opposite was one that particularly struck him the other day. It was proposed to take away the power of recovering damages by the party aggrieved, though they gave to the public at large a power of procedure by which the aggrieved party could obtain an injunction from a court of justice to prevent the repetition of the wrongdoing; and it struck him that that was one of the compromises which had been effected in another place. He thought the matter would be much better discussed in a Committee upstairs; and on the condition that this Bill alone should be the matter for consideration, he would have no objection whatever to agree to the proposition of the noble and learned Lord opposite.
§ LORD ST. LEONARDStrusted that 990 the Government would take into consideration the suggestion of his noble and learned Friend, that the questions arising under the operation of this Bill should be referred only for adjudication to the Court of Common Pleas.
LORD BROUGHAMthought there was every reason why those questions should be disposed of in one court. It would not only increase the facilities and experience of that court in the disposition of such questions, but preserve a uniformity of decision, and the Court of Common Pleas, to which alone it was proposed by his noble and learned Friend to refer them, was anything but over-worked.
§ Amendment, by leave of the House, withdrawn. Then the said Motion was, on Question, agreed to; and House to he put into Committee on the said Bill on Tuesday next.