Commons Sitting of 22 July 1846

MINUTES.
NEW WRITS. For Dundalk, v. Thomas Nicholas Redington, Esq., Under Secretary to the Lord Lieutenant of Ireland.
NEW MEMBERS SWORN. For Yorkshire (West Riding), Viscount Morpeth.—For Leith, &c., Andrew Rutherfurd, Esq.
PUBLIC BILLS.—1°. Sugar Duties.
Reported. Art Unions; Commons Inclosure (No. 2).
PETITIONS PRESENTED. By Mr. George Hamilton, from Members of the Bath Church of England Lay Association, for Increasing the Number of Bishops.—From Mayor and Commonalty and Citizens of the City of London, Governors of the Possessions, Revenues, and Goods of the Hospitals of Edward late King of England the Sixth, of Christ, Bridewell, and Saint Thomas the Apostle, against the Charitable Trusts Bill.—By Viscount Sandon, from Merchants, Bankers, Brokers, Shipowners, and other Inhabitants of the Borough of Liverpool, for Equalization of the Duties on Sugar.—By Mr. Wyse, from a great number of places, in favour of the Art Unions Bill.—By Sir William Clay, from James Hedgman, William Sowter, and James Esdaile, Proprietors of Public Baths in the Metropolis, and by Mr. Thomas Duncombe, from Joshua and Thomas Watts, of Peerless Pool, City Road, London, against the Baths and Washhouses Bill. — By Sir De Lacy Evans, from Rector, Churchwardens, Overseers of the Poor, and Ratepayers of the Parish of Saint Clement Danes, in Vestry assembled, in favour of the Baths and Washhouses Bill—From Mayor, Aldermen, and Burgesses of the Borough of Liverpool, against the Deodands Abolition (No. 2) Bill.

CHARITABLE TRUSTS BILL.
On the Motion that the House go into Committee on the Charitable Trusts Bill,
SIR G. GREYsuggested to the hon. Member for Montrose the propriety of withdrawing the Bill. Last week the House affirmed by the second reading the principle of the measure, which principle was the accountability of persons holding charitable trusts to Parliament, through the Secretary of State for the Home Department. Since the second reading he had received a great number of communications from persons interested in the matter, not offering any objection to the principle of the accountability (on the contrary, they fully approved of it), but urging additions that had not been contemplated

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by the hon. Member for Montrose, and making various suggestions of great weight and importance, which demanded and ought to receive the most serious consideration. The Government desired to devote their best attention to the matter; and his noble and learned Friend the Lord Chancellor would soon have under his consideration another measure, affirming the principle of the Bill introduced by the hon. Member for Montrose, but more general in its import, and much more comprehensive in its details. The principle of the Bill at present under consideration having been deliberately recognised by the House, he trusted that his hon. Friend, taking into consideration the lateness of the Session and all the other circumstances of the case, would be induced to withdraw the Bill for the present, or at leat postpone it on the understanding that a measure similar in object, but more comprehensive in detail, would be brought forward by Government at an earlier period next Session.
MR. HUME, since last week, had received several communications on the subject of the Bill, all showing the necessity of the measure, but all requiring more to be done than he had contemplated. The only object that he had been desirous of effecting was, that a balance-sheet, showing the revenue and expenditure on account of these charitable trusts, should be laid before Parliament, thereby affording to that House and the public generally the means of obtaining that information for which they had for many years looked in vain. This was his object; but if it could be satisfactorily proved that it was desirable that more than this should be effected, he would willingly assent, and admit that it would be much more satisfactory to him that Government should take the matter into their own hands and bring forward next Session an extensive measure to meet all the views of the case. If Government would pledge itself to introduce next Session a comprehensive enactment of this description, he would willingly accede to the suggestion of the right hon. Baronet. Under all the circumstances of the case, he would at once consent to postpone the Bill until next Wednesday, and if on that day distinct assurance was given of the Government's intention to bring in a comprehensive measure next Session, he would withdraw the Bill altogether.
Order of the Day read pro formâ, and Mr. Hume postponed until Wednesday
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next his Motion for going into Committee on the Bill.

LANDS AND COMPANIES CLAUSES CONSOLIDATION BILL.
On the Motion for the Second Reading of this Bill,
MR. M. GIBSONsaid, he would take the liberty of suggesting that it would not be wise to commit the House of Commons to the principle of this measure under existing circumstances. A Committee had been appointed, of which the hon. Member for Inverness was chairman, and they had directed their attention to railway matters; therefore until the House was in possession of the evidence taken before that Committee, and the Committee had made a report to the House, it would, he thought, be premature in the House to commit itself to the principle of this Bill. If the hon. Gentleman who had charge of it would consent to a postponement, it would not be necessary to go into the merits. Persons who were well acquainted with the subject had come to a conclusion that it was a measure which should not be allowed to pass under any circumstances. It contained difficult questions, and several provisions which many railway companies would not be able to comply with, not having contemplated such matters when they obtained their Acts of Parliament. The object of the hon. Member was, he believed, by the application of forcing powers to extinguish companies of an inferior description, but not to allow parties to escape from their engagements. He did not know whether hon. Gentlemen were aware of the precise objects of his hon. Friend, who wished, by limiting the time within which capital should be paid up, and limiting also the time within which the registration of shareholders should take place, to force companies to make their calls, and register their shareholders, and thus extinguish those companies which were not strong enough to bear his forcing process. Under all these circumstances he hoped the House would pause before they agreed to the second reading of this measure. If the hon. Member pressed his Motion, he must, as an amendment, move the previous question.
MR. HASTIEsaid, his object was to prevent gambling, and if this Bill were allowed to pass he believed it would do much good by opening the market to real bonâ fide undertakings. To show the necessity of compelling companies to complete registration,

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he would mention three of the schemes which kept scrip hanging over the market to a very large extent. A Bill had passed the House for making a railway from London to York. That company had issued scrip to the amount of five millions and a half. The Direct Northern Company, which proposed to go the same way, had issued scrip to the amount of five millions; and the Eastern Counties Company had a scheme for going the same way, upon which they had issued four millions of scrip, all of which was kept floating in and greatly disturbing the money market.
MR. HAYTERobserved, that the House seemed to suppose that the Bill related solely to railway companies; now, it referred equally to joint-stock companies. [Mr. HASTIE: That objection might be obviated in Committee.] He took the Bill as he found it; and he perceived that it required all the capital to be subscribed within two months, and perfect registration to take place within three months; and if the Bill were to pass, and those regulations were not complied with, the result would be, that any Railway Act, belonging to any company that could be convicted of non-compliance with the provisions of this Bill, would cease to be law. Any shareholder would thus be invested with the power of repealing the Act. He objected to such a power as dangerous and unconstitutional. The Bill proceeded on the assumption that the shareholders were the only parties interested in a given railway; but it should be remembered that the public also were interested; and he objected to the Bill on this further ground, that it had the effect of ex post facto legislation.
MR. HUDSONdiffered from the hon. Member who last spoke. He was not prepared to say that the Bill in its present shape was the best possible measure; but he thought that in Committee they might so amend it as to obviate any reasonable objection. He thought that they ought to consider the Bill; for it was the duty of Parliament to apply some remedy to the great evils which prevailed.
Bill withdrawn.

DEATH BY ACCIDENT COMPENSATION BILL.
On the Order of the Day being read for the House to go into Committee on the Death by Accident Compensation Bill,
SIR F. THESIGERsaid, he believed
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his hon. Friend who had charge of this Bill (Mr. Bouverie) had never yet explained to the House the objects and provisions of it; and that no explanation had been given of it except some pleasantries that had occurred elsewhere between two noble and learned Lords, as to the losses of one and the profits of the other. He (Sir F. Thesiger) conceived that this was a question which deserved the serious attention of the House. He was desirous that the law should be improved to the utmost extent; but he wished, at the same time, that no sudden changes should be made without regard to the consequences that might result from them. He trusted that the House would indulge him for a few moments while he explained to them the view he had taken of the Bill which was now proposed for their consideration, and the course which he would suggest to his hon. Friend as the one that it would be proper to adopt under the circumstances. The Hosse, he believed, was perfectly aware of the state of the law on this subject. When a person had received any injury arising from the carelessness or negligence of another, he was entitled to maintain an action to recover damages for that injury; and supposing the person who committed the injury was the servant of another, he was entitled then to maintain an action against the master of that servant; but if death ensued from the accident, all parties were exempted from civil responsibility; and, most unquestionably, the distinction appeared to be very inconsistent and very unreasonable; and for his own part he should be quite prepared to support any measure which would have the effect of relieving the law from the anomaly which existed in this respect. He thought there would be no difficulty in introducing a measure of that description. Many hon. Members were aware that the old common law on the subject of personal action was, that it died with the person; but the statutes had introduced a relaxation of the law in that respect; and the executor or administrator was entitled to maintain an action for any damage that had arisen to the personal property, and in many instances, by a recent statute, to the real droperty of the deceased. He should have no objection at all to continue and enlarge that principle, and apply it to this particular subject, and to say that the executor or administrator of a party who had received an injury that occasioned his death, should be entitled to maintain an action; precisely

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in the same way as the person himself would have been entitled had he lived. He saw no difficulty at all in introducing a measure of that kind. He should, in the next place, refer to the provisions of the Bill, which presented some instances of the careless and hasty way in which the Bill had been prepared. It appeared that it was to be applied not merely to cases of negligence; but suppose a person, by an act of violence, should destroy the life of another, under such circumstances, when it only amounted to manslaugher, an action might be maintained by the executor or administrator. Why, he asked, should they stop short there, and say, where the act of violence only amounted to manslaughter there should be an action, but where it amounted to murder there should be no action? What possible distinction as to loss could they make between the two cases? If their objection should be, that with regard to murder a party would be liable to forfeiture of all his goods and chattels, and therefore incapable of paying damages, the same argument would apply to manslaughter, of forfeiture of goods and chattels on conviction. Suppose two persons went to fight a duel, and one of them was killed, if they passed a law of this kind, making persons liable to damages who had committed an act which amounted to manslaughter, that was no reason at all why they should not extend it to the case of a person killed in a duel, and make the survivor liable to all the damages that ensued from that act; and probably it would be a very desirable mode of putting an end to that most objectionable practice. He would next call the attention of the House to the clause under which damages were to be given. He observed that the only persons who were regarded by the provision were the next of kin; but that might be altered in Committee; and he would call their attention to another point. If an action were brought, and damages given according to the loss which a widow sustained by the death of her husband, the widow whose case was the subject of consideration (in case there were children) was to receive only one-third of the damages, and the children were to receive two-thirds of the damages; though the children were independent of the father, and though the damages were estimated on the loss of the widow. He mentioned that as an instance of the hasty and careless way in which the Bill was prepared. He would venture to propose some alterations for the consideration of
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his hon. Friend; and if his hon. Friend adopted his views it might be as well to postpone the Bill for the purpose of taking into consideration the suggestions he was about to make. With reference to the first clause, he apprehended it was intended by that clause, where death ensued by the negligence of a servant, the master should be liable; but the person causing the death was the only person referred to in that clause; and he proposed an alteration to remedy that omission. It was proposed under this Bill, that all the damages should go to the widow and next of kin; whereas all the persons who were injured by the death of the party ought to be entitled to compensation in respect of that injury; and the damages when recovered should be assets distributable under the Statute of Distribution. He thought these were matters of very great importance; and he trusted his hon. Friend would take into consideration the suggestions he had made.
The ATTORNEY GENERALentertained considerable difficulty with reference to this measure, which would introduce a new principle into the law of England, though altered as suggested by his hon. and learned Friend. His hon. and learned Friend had referred to the practice of duelling; but it was quite clear that both the Bill and the suggestion of his hon. and learned Friend avoided that question altogether. A great reason given for the introduction of this measure was the manner in which the law on this subject had worked in Scotland; but the suggestion of his hon. and learned Friend was this, that having enabled the executor or administrator to commence an action, the damages that were proposed to be given for the support of the widow and children should in fact be considered as assets and part of the estate, and go to satisfy creditors; now, whatever latitude was given to the law in Scotland, he believed that principle was never adopted. Would it not, therefore, be well not to adopt any suggestion that would carry it much further than the law of Scotland? The suggestion which had been made might have this effect: the proprietor of a colliery, or mine, or any species of machinery whereby an accident should happen, would not only be made answerable for the support of the widow and children of the person destroyed, but, according to the caprice of a jury, might be made to satisfy all the debts of the party; or if the jury thought it right merely to give damages to the widow and

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children, they would become part of the assets and subject to the debts of the estate, and all debts would have to be satisfied before the widow and children got anything. He wished to show his hon. Friend who had taken charge of the Bill the difficulty of carrying it out; and he would put it to him, whether it would not be desirable to postpone it for the present. Suppose an accident occurred on a railway by which two persons were killed, the one an artisan maintaining his family by his weekly wages, the other a party who had a life estate of 10,000 l. a year; though it was for the same act, the parties bringing the action would in one case recover one amount of damages, and in the other case another; so that, in those cases, although arising from the same cause, there would be a contrary result. It seemed to him that there would be some difficulty in carrying out the measure: those subjects required consideration, and he hoped he would induce the hon. Gentleman to pause before he proceeded further with this Bill. He had alluded to the result of the Bill as it was now framed, and likewise what would be the results of the Amendment suggested by his hon. and learned Friend, if carried out without qualification and without the measure being assimilated, as it ought to be, to the law in Scotland.
MR. BOUVERIEwould not, after the observations of his hon. and learned Friends, at present go into Committee on the Bill, but postpone it until next Wednesday, with a view to consider the suggestions that had been made.
VISCOUNT SANDONwished to know how it was proposed to secure to the children of a deceased person the advantages which the present Bill proposed to give them. In the event of a jury awarding compensation to them for the death of a parent, would it be made in a gross sum or in an annuity? [Mr. BOUVERIE: In a gross sum.] But supposing the widow married another man, how would the benefits be secured to the children? The money might all be expended the day after the verdict in a drunken frolic.
SIR J. GRAHAMobserved, that he saw the Lord Advocate of Scotland was about to address the House, and he should be glad to hear his opinion on the matter, because from his experience of the law in Scotland he was capable of explaining what the practice was on this important subject. He would mention a difficulty that occurred to his mind; first of all, with reference to the
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phraseology of this Bill, he knew not whether it were intended to adhere strictly to the phraseology, but it appeared from it that the party who was to be liable was the party who had caused the death; and he wished to know what construction was to be put on those words. The right hon. Gentleman the Secretary of State for the Home Department knew that in the mining districts in the north of England death to a frightful extent occurred. There was hardly an instance in which any of those fatal accidents had occurred that they did not arise from the neglect and inattention of some ignorant and comparatively ill-paid person. If they were to put the wide construction on the words "causing death," that the employer should in every case be responsible for the acts of the employed, what would be the consequences? He regretted to say, that in some cases about ninety persons in an explosion had lost their lives. It frequently happened that one individval was not the owner of a colliery, but that there were partners, who, if they put the wide construction upon it that they caused the death, would be answerable for damages on separate issues to try eighty or ninety suits, not on behalf of the widow and children only, but on the part of the next of kin. Then the question would arise, who was the next of kin? He might be resident in some distant part of the world; and was that next of kin, having really sustained no damage by the death of his relation, to be entitled to damages against all the proprietors of a collery, though he had really received no damage? The principle of the measure was right; but the practical working of it, and giving effect to it, appeared to him to be surcharged with difficulty. He wished to hear the opinion of the Lord Advocate on the subject; and he felt convinced that there could be no higher opinion on any matter connected with the law of Scotland.
The LORD ADVOCATEsaid, that with respect to the first point, namely, the construction to be put on the words "causing death," the right hon Gentleman would observe, if he read the 1st Clause of the Bill, that it was not intended to alter the ground of liability at all. It said, if the party was guilty of such misconduct as would make him liable if death had not ensued; and, therefore, it appeared that there was no intention to alter the liability. He was not defending the exact phraseology of the Bill; but he did not understand

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it to be the principle of the measure, or the intention of the party who brought forward this Bill, to establish a new ground of liability. The question was, who the parties were that were entitled to sue and recover? and he did not know there was any distinct limit in the law of Scotland as to the degree of relationship that would justify the act; but a person looking for damages must properly qualify himself, and he conceived that a jury would never listen to an action for damages by some distant relation. A person living abroad, totally removed from the person whose death was caused, could not, he conceived, expect the remedy. At the same time he thought, as they were going to legislate on the subject, that perhaps the expression next of kin was extremely indefinite; and it would not be objectionable that the particular relations whom the Legislature thought should be entitled to seek damages should be directly specified. It was only a near relation that ever should recover damages, and practically they had found no difficulty in Scotland on that subject. He might mention a railway case in which lately the widow and children had brought an action. He happened to be employed for the railway, and his advice was to compromise it, giving the children 1,000 l. and the widow a large sum. The objection of the noble Lord (Lord Sandon) might easily be met, by allowing the jury to apportion the damages. He did not know whether there would be any difficulty on the subject as regarded the law of England, but it was not the case as respected the law of Scotland. As for the suggestion of his hon. and learned Friend, he considered that the adoption of the principle of allowing a creditor to recover damages, in the case of a debtor being killed, was a very different thing from allowing a relative to recover in such a case. He thought that much might be done to improve the Bill, which was open to some serious objections at present.
SIR F. THESIGERhad not suggested that an action should be maintained for the benefit of creditors. What he said was, that when a sum was recovered by the executors of a man killed on a railway, that it would be open to the demands of the creditors, and the residue would be paid over to the relations.
MR. WAKLEYthought the hon. Member for Kilmarnock had reason to be gratified at the manner in which this measure
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had been received; and he thought the House had manifested a strong disposition to legislate not only extensively but correctly on this subject. He must say, however, that the Bill was an extremely crude measure; he had scarcely ever seen a Bill more carelessly drawn; and, in his opinion, it must have been drawn by some legal gentleman who was practising as an amateur. The first clause, especially, was utterly incomprehensible. The Attorney General had recommended the postponement of the measure; and he hoped the hon. Member for Kilmarnock would act upon that suggestion. He would suggest that the Bill should be referred to a Select Committee for revision; and if the Lord Advocate and some other hon. and learned Gentleman would act upon that Committee, and would endeavour to assimilate the law of England with the common law of Scotland on this subject, he had no doubt a very useful and practical measure would be produced. As the Bill at present stood, it was by no means clear who were the parties liable to be proceeded against for damages. It was quite obvious, from numerous cases which had occurred, that the law of deodands ought not to remain in its present state. One instance he might mention; that of an accident on the London and Birmingham Railway. It appeared, on the investigation of the occurrence, that one of the men to whose carelessness the accident was attributable, had previously been guilty of very gross offences, but still he had been retained in the service of the company; and under these circumstances, the jury imposed a deodand of 2,000 l. upon the company. He felt satisfied that, if the matter was tried in a court of law, the inquisition was not very likely to stand; and he therefore consulted his solicitors, by whom the inquisition was drawn, and it was then submitted to a learned gentleman, under whose consideration it remained for several days. It was then laid before the hon. and learned Attorney General, who revised it, and gave his opinion that it was perfectly good. He thought, however, that when the inquisition went into court, its drawing would at once be attributed to the medical coroner, and that it would be treated as nothing better than so much waste paper. He therefore consulted an hon. and learned Gentleman who had recently been raised to the Bench (Sir T. Wilde), and he asked that learned Gentleman to inform him who was the best man at the Bar before whom

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he could lay the inquisition for revision. Sir T. Wilde hesitated to give an answer at the moment; and he (Mr. Wakley) therefore asked him to consider the matter, and to favour him with his advice. After some time Sir T. Wilde named two gentlemen. [Cries of "Who were they?"] He had no objection to mention their names: they were Mr. Serjeant Stephen and Mr. Peacock. He then asked which of the two he should go to, as he did not like to make his own choice; and Sir T. Wilde eventually mentioned Mr. Serjeant Stephen. The inquisition was laid before that learned gentleman: it remained in his possession for forty-eight hours; he went over it without altering a word or even a syllable, and he said it was perfectly good, his expression being that "it would hold water." He said to himself, "Well, it is now clear that for their gross misconduct the company will have to pay 2,000 l." He was, however, sadly disappointed by the result. The case was taken by the defendants into the Court of Queen's Bench, where the inquisition was at once declared to be utterly worthless—it was cast aside, and treated as almost worse than waste paper. He believed that no inquisition had ever been drawn with so much care and attention as that to which he was referring; and he thought it was quite clear, from the result, that the law ought not to continue in its present state. At the same time, great caution was requisite in dealing with the subject; and he entreated the hon. Member for Kilmarnock to consent to refer this Bill to a Select Committee, or at once to abandon the hope of carrying it into law during the present Session.
SIR G. GREYthought that the necessity for some alteration in the law had been shown by the case mentioned by the hon. Member for Finsbury, which proved the impossibility of carrying out the existing law relating to deodands. He hoped, however, that the hon. Member for Kilmarnock would accede to the suggestions which had been made, and that, instead of asking the House to go into Committee on the Bill, he would consent to refer it to a Select Committee. He thought the observations of his hon. and learned Friend the Lord Advocate, with regard to the party liable to be proceeded against for damages, had not been rightly apprehended. That hon. Gentleman had said that the sole intention of the Bill which ought to be kept in view was not to allow
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the liability to be shifted from one party to another, but to extend the liability which now existed with regard to accidents not resulting in death, to the case of accidents which did result in death. There was at present a gross anomaly in the law on this subject. If a man, through the gross carelessness of a railway company, met with an accident, by which he sustained serious injury, or lost a limb, he might bring an action against the company, or the parties liable in law, to recover damages for the expenses of medical attendance and the loss he might sustain from inability to attend to his profession; but if, while such action was pending, the injured man died, the proceedings were at once stopped, and his family, besides sustaining the loss of perhaps their most important member, were not only subjected to the cost of medical advice, but to the costs of the action which had been commenced. He hoped the hon. Member for Kilmarnock would consent to refer this Bill to a Select Committee, when its details might be fully considered; and that the same course would be taken with regard to another measure—the Deodands Abolition Bill, which stood on the Paper.
SIR J. GRAHAMsaid, that it appeared to be the general opinion of the House that the law of deodands was in a very imperfect state. He would suggest that the Bills should be postponed until Monday; and considering that Lord Campbell, the Colleague of the right hon. Gentleman, had taken great interest in the subject, that the Government would, before that day, determine whether the whole question of the law of deodands should not be referred to the Criminal Law Commissioners. It was not, certainly, a part of the criminal law, but it was germane to it, and he could not see what objection there could be to refer it to them, so that at the commencement of next Session they might have their report on the subject. It was impossible that this subject could be referred to more competent or able persons than Mr. Starkie or Mr. Amos, both of whom were members of it. At that period of the Session was it likely that the measure could be carried to a successful termination?
MR. HENLEYconcurred in the suggestion to refer the matter to the Criminal Law Commissioners. There was one point worthy of consideration—whether or not it were intended by the Bill to place a man in such a situation that he might be

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first tried for manslaughter, and afterwards have an action for damages brought against him.
The ATTORNEY GENERALobserved that, of course, the Government could not say what should be done with this Bill, without the assent of the hon. Gentleman who had charge of it. It was very desirable that the deodand should be made the means of affording some compensation to the family of a person killed. There was no difficulty as to the law of deodand itself: the difficulty was, whether it should be abolished, or how it should be applied.
LORD GRANVILLE SOMERSETwould suggest that in any alteration of the law of deodand, the manorial rights should be taken into consideration.
Bill postponed until Monday.
House counted out and adjourned at a quarter before Five o'clock.