Commons Sitting of 21 August 1860

MINUTES.
PUBLIC BILLS.—2° Consolidated Fund (Appropriation); Exchequer Bonds or Bills (£2,000,000).
3° Local Government Act (1858) Amendment (No. 2); Chancery Evidence Commission.

ENDOWED CHARITIES BILL.

  COMMITTEE.
  Order for Committee read.
  House in Committee.
  (In the Committee.)
  Clauses 1 to 17 agreed to.
  Clause 18 withdrawn.
  Claushes 19 and 20 agreed to.
  Clause 21 (The Salary of the Secretary).
  MR. AYRTONdrew attention to the duties which were discharged by the Inspectors under the Charitable Commission, and suggested that an increase should be made in their salaries.
  THE CHANCELLOR, OF THE EXCHEQUERdeclined to have any increase of salary which might be given to the Inspectors paid out of the Consolidated Fund. He did not think that the public purse should be charged for such purposes.
  THE ATTORNEY GENERALsaid, that there ought to be a clause proposed to give compensation to the inspectors to a limited amount, such compensation to be raised out of the trust funds committed to their charge; and for this reason, that the inspectors had thrown upon them a very great and onerous duty which was never contemplated when they accepted their present offices. The Bill of 1853 did not contemplate any such duty. He therefore approved of having a clause to this effect brought up on the Report. The inspectors would thus have £200 a year added to their income.
  MR. HENLEYsuggested that the whole subject of expense created by the Bill, should be brought before the House next Session by the Chancellor of the Exchequer.
  On the Motion of Mr. LOWE the following Clauses were added to the Bill:—
  "There shall be paid to each of the official trustees of charitable funds appointed by the Lord Chancellor, in pursuance of the first or secondly recited Act, such a salary, not exceeding the annual sum of pounds, as shall from time to time be allowed by the Commissioners of Her Majesty's Treasury."
  "No official trustee of charitable funds, appointed under or in pursuance of the first or secondly recited Act, shall be chargeable with or accountable for any loss or misapplication of the said charitable funds, or the dividends, interest, or income thereof, unless the same shall have been occasioned by or through his own wilful neglect or default."
  "This Act may be cited for all purposes by the short title of 'The Charitable Trusts Act, 1860.'"
  MR. ROLTmoved the insertion of a clause requiring the official trustees of charitable funds to lay before Parliament annually an account of the capital, stock, shares, and securities transferred to them during the previous year, and of the investment or re-transfer of the same.
  Clause agreed to.
  Remaining clauses agreed to.
  MR. HADFIELDmoved a new clause which would have the effect of giving the
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  Commissioners power to appoint an inspector auditor in certain cases.
  THE ATTORNEY GENERALopposed the clause.
  Clause (Power to appoint Auditor in certain cases,) brought up and read 1°.
  Question put, "That the Clause be read a second time."
  The Committee divided:—Ayes 6; Noes 43: Majority 37.
  Question that the Preamble be agreed to,
  MR. MELLORexpressed his thanks to the right hon. Gentleman for the Bill, which he thought would be very useful. At the same time, he could not but regret that some clauses had not been inserted to prevent fruitless litigation, in consequence of the decision of the Lords Justices in the Ilminster School case. Speculative lawyers were encouraged to take up cases, the costs being paid out of the trust, so that by-and-bye there would be no trust to administer. He hoped some Bill would be introduced next Session which might prevent such litigation.
  Preamble agreed to.
  House resumed.
  Bill reported, with Amendments; as amended, to be considered To-morrow, and to be printed. [Bill 331.]

COURT OF CHANCERY BILL.

  COMMITTEE.
  Order for Committee read.
  House in Committee.
  MR. HADFIELDsaid, he wished to call attention to the clauses of this Bill, which had been introduced for two purposes—one to make provision for the relief of persons committed for contempt by the High Court of Chancery, and as to which there could be no dispute, and the other to make provision for the better discharge and greater despatch of the business of those Courts, and for this purpose the remaining Masters in Chancery were authorized to retire upon the usual terms. There were only three Masters left, and they were all more or less incapacitated through age and infirmity for the due performance of the matters pending before them. Now, a great amount of business would be thown upon the Master of the Rolls by this Bill—indeed, had already devolved upon him which he would not have been able to get through but for the able assistance of Mr. Buckley, lale chief clerk to one of the Masters in Ordinary. He had, therefore, framed clauses directing that an additional chief clerk to the Master of the Rolls be appointed, with

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  powers similar to those exercised by the chief clerks of the Judges in Chancery, and that the first chief clerk be Mr. Buckley. Indeed, so great was the amount of work which the House was inclined to throw upon that Court that he had no doubt that before long it would be necessary to appoint a fourth Vice-Chancellor. He should also propose to have the additional chief clerk transferred at the discretion of the Lord Chancellor to any of the Vice-Chancellors, according as might be seen fit. There were other minor propositions which he should make, but he desired to say that the new clauses which he wished to propose had the sanction of the Lord Chancellor, and of all the Judges in Chancery. The clauses which he should propose would not cause one shilling extra expense on the Consolidated Fund, and the fees from the business which would be transacted would pay all the expenses. The chief clerks were very much worked, sitting every day from ten to six, and then having to take papers home with them for the evening. He hoped the hon. and learned Attorney General would give his assistance in passing these clauses.
  SIR JAMES GRAHAMsaid, that his hon. and learned Friend had cited high legal authorities in favour of his proposition; but whatever respect the House might be inclined to pay to the opinions of those great functionaries, he trusted they would pay still more deference to the authority of a Committee of their own House. When the Masters in Chancery were abolished, on the recommendation of a Commission, of which he had the honour to be a Member, it was done at great expense to the country, in consequence of the compensations awarded. The Commissioners anticipated that great evils would arise, if the duties of Judges in chambers were handed over to their chief clerks; and they therefore expressed a hope that the Judges would divide their time between the bench and chambers. The business of the bench, however, became so onerous, that the Judges could not give their services in chambers, as was intended; and the consequence was that their functions were performed by their chief clerks; so that the evil apprehended by the Commissioners had actually arisen. It was to be recollected that the clerks of the Judges were persona inferior in station and ability to the Masters in Chancery. He, therefore, thought it was the duty of the. House not to facilitate the means by which the im-
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  portant duties of the Judges should be transferred from themselves to their clerks. The proposal of the hon. Member for Sheffield was to appoint a permanent additional chief clerk to the Master of the Rolls. If the House, agreed to this appointment, they might reckon upon the appointment of an additional clerk to the establishment of each of the other equity Judges, at a great expense to the country. Though he opposed this proposal, he must say that he thought the time had arrived when an additional equity Judge should be appointed to meet the pressure of business in Chancery. The adoption of the step they were now called on to take would be subversive of all hope for the future; and, so far from being an improvement, would be one of the greatest injuries that could possibly be inflicted upon the change that had flowed from the recommendations of the Chancery Commission. Whenever the subject of law reform was brought forward, questions of a personal character invariably cropped up to disfigure it; to prevent the public from regarding it with favour, and to bring discredit on the House itself.
  MR. ROLTsaid, he was not on the Committee; but, as he had some acquaintance with the working of the new practice, he felt anxious to state that he did not agree with the views of the right hon. Baronet. No doubt there was a tendency to refer matters to chambers; but less references were made now than were formerly made to the Masters. He thought the time had not arrived for the appointment of a new Judge; for although the Vice-Chancellors at present were fully occupied, there was no arrear of business; but, in the interval between the periods of having plenty to do and having a surplus of business, it might be well to have more chief clerks. The gentleman, who it was intended should be the third chief clerk of the Master of the Rolls, had been doing the duties of chief clerk for three years, in consequence of the illness of one of those gentlemen. The Master of the Rolls stated that if he were deprived of his services, the business of his chambers would fall into arrear. He thought that greater powers should be given to the Lord Chancellor to appoint these chief clerks, if their services should be required.
  SIR JAMES GRAHAMasked if the services of Mr. Buckley could not be continued, as now, without giving a Legislative sanction to his appointment?
  MR. MALINSsaid, he agreed in the

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  main with the observations of the right hon. Baronet (Sir James Graham). Indeed unless it could be shown that an additional clerk was necessary for the Vice-Chancellors, he could not agree that it was necessary to give another clerk to the Master of the Rolls. The Vice-Chancellors' clerks did quite as much work as a single Judge could superintend, and if another chief clerk were appointed for each of the Courts there would be more work than the Vice-Chancellor could adequately supervise. He was not of opinion that the time had come for the appointment of a new Judge, but he did not mean to say that it was far distant, inasmuch as by a Bill now before the House, which would enable viva voce evidence to be taken, the business of the Courts of Chancery would greatly increase. In reply to the question of the right hon. Baronet whether Mr. Buckley's services could not be retained on the same footing as at present—Mr. Buckley was clerk to Master Blunt, who died in 1856. He was entitled to £1,000 a year as such clerk, and three years ago one of the clerks of the Master of the Rolls having become ill, Mr. Buckley offered his services without any additional salary. Since that time he had discharged the duties, and if he continued to discharge them he would not receive any additional salary to that to which he was at present entitled. He thought that, under the circumstances, the services of Mr. Buckley might be retained on the same condition as at present.
  THE ATTORNEY GENERALsaid, he had listened attentively to the observations which had been made, and he thought the public were indebted to the right hon. Gentleman the Member for Carlisle for the manner in which he had brought this subject before the House. On the part of the Government he should give a decided opposition to the addition of any more chief clerks, because he thought that the Judges could not properly superintend more business than could be transacted by two chief clerks, and the duties of these clerks should be confined to purely ministerial matters. Every question ought to be decided by the Judges, and the chief clerks ought to give no opinion or judgment in the cases before them. At the same time he admitted that there was a difficulty in depriving the Master of the Rolls of a part of the assistance which he had enjoyed. Mr. Buckley had been employed in the office of one of the Masters in Chancery, and as the business of the
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  different masters had been tranferred to the Master of the Rolls the assistance of one of their clerks should be granted to him. On that ground he thought' the assistance of Mr. Buckley should be continued. He proposed to introduce words providing that Mr. Buckley should only be employed during such time as, in the opinion of the Lord Chancellor, his assistance might be required, and that he should not be entitled to compensation.
  MR. HENLEYagreed so entirely in all that had been said by his right hon. Friend the Member for Carlisle that he would not occupy the attention of the Committee by repeating it. He must state, however, that he was not favourable to the Amendment of the Attorney General; and he must oppose it unless it were fenced and guarded in such a manner that it should not be drawn into a precedent for the appointment of other additional chief clerks in equity, whereby the evil would be perpetuated which they thought they had got rid of, and the termination of which had cost such a great sum to the country; for he feared much that if these permanent clerks were appointed they would become a new crop of Masters in Chancery. He therefore hoped that something would be stated in the preamble of the Bill which would prevent the possibility of this proposed arrangement, with respect to Mr. Buckley, being drawn into a precedent for the appointment of additional chief clerks by the equity Judges. He suggested that the Attorney General should print his clause, and bring it up on the Report.
  SIR JAMES GRAHAMviewed the Attorney General's proposal with great jealousy. When the Vice-Chancellors were sufficiently occupied in superintending two clerks he did not see how the Master of the Rolls could efficiently superintend three. He thought the time was at hand when the services of a fourth Judge would be necessary, and then the services of Mr. Buckley could be transferred to the new Judge. He thought the reasons for the present appointment, if it was agreed to, should be stated in the preamble of the Bill.
  THE ATTORNEY GENERALconcurred in the suggestion that the reasons of the appointment should be stated in the preamble, and that Mr. Buckley's services should be transferred to the new Judge, if ft new Judge should be appointed.
  House resumed. Committee report Progress; to sit again this day,

THE CAPTAINS' RETIRED LIST.

  QUESTION.
  SIR JOHN PAKINGTONsaid, that in the statement made by his noble Friend the Secretary of the Admiralty, respecting the new scheme of retirement he did not remember that any exception was made to the principle of retirement as applied to the captains' list. He was now informed that the captains on the 14 s. 6d. list were to be exempted from the application of the rule. He wished to ask whether this was true, and, if so, what was the reason for such an exemption, and also whether his noble Friend had received representations tending to show that in the opinion of those affected by it the rule had been applied in a partial manner.
  LORD CLARENCE PAGETsaid, the captains on the 14 s. 6d. list had alter-native given them of remaining in their present position. The Admiralty held that these officers had so nearly attained their flag, that they had acquired, as it were, a vested interest in it, and that, therefore, it would be fair to give them their choice of accepting 20 s. a day at once, or of waiting until they arrived at the head of the list, when they would be entitled to 25 s. a day. With regard to the captains on the 12 s. 6d. list the Admiralty were of opinion that the name rule did not hold good; and that they were so far down that many years would probably elapse before they reached the top of the list, and that, therefore, it would be fair to give them 20 s. a day at once in exchange for their present position. As to the captains on the 10 s. 6d. list, their chances were still more remote, and, consequently, they were held entitled to only 18 s. a day. Thus the captains on the 14 s. 6d. list were allowed, if they chose, to remain as they were, while in the case of the captains on the 12 s. 6d. and the 10 s. 6d. lists retirement was made compulsory. The Admiralty, after mature consideration, had felt it right to make that distinction.

NEW ZEALAND BILL.

  SECOND READING PUT OFF.
  Order for Second Reading read.
  VISCOUNT PALMERSTON: I wish to state to the House that it is the intention of the Government not to press this Bill any further. We do not doubt that if there was time for the fair and full discussion of the measure we should succeed in
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  removing the objections which are entertained to it by many hon. Gentlemen. But considering the state of the Session and the attendance of Members it would hardly be fair on the part of the Government to ask the House to go on with a measure which will certainly require careful consideration, and which, in the opinion of many persons, involves important principles of colonial legislation. The object of the Bill was to protect the interests of the aborigines of New Zealand. We are of opinion, however, that the powers which the New Zealand Constitution gives to the Crown of making regulations bearing upon the interests of the aborigines will, if properly used, be sufficient for the purpose we have in view; and if it should appear that those powers are inadequate it will be then for the Government at some future time to have recourse to legislation on the subject. Under these circumstances I apprehend that the House will think' we have exercised a sound discretion in not pressing this Bill further during the present Session, and I beg, therefore, to move that the Order of the Day be discharged.
  SIR JOHN PAKINGTONwas sorry that he could not in this instance adopt the old and excellent maxim de mortuis nil nisi bonum. Both personally and politically he had great reason to complain of the conduct of the Government on this question. He had listened to the speech of the noble Lord and he found in it no ground for the withdrawal of the Bill, which might not quite as well have been known to the noble Lord a week ago as it was at that moment. He had left Worcestershire that morning for the special purpose of opposing the Bill. He had previously addressed a letter to the Secretary of the Treasury in which he had stated, wholly irrespectively of party considerations and in perfect good faith, the reasons why he thought it was the duty of the Government not to press this Bill, and begged to be informed whether it would be necessary for him to come up to state his objections. In reply the Secretary to the Treasury, who, by his request, had shown his letter to the noble Lord, said the noble Lord felt bound to proceed with the Bill. In consequence of this he had deemed it his duty to come up to town, at considerable personal inconvenience, to state his objections to the measure; and now he was told at the eleventh hour that, at this period of the Session, and with this skeleton House of Commons, the noble Lord did not mean to

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  press it. He thought he had reason to complain of the Government for not malting up their minds sooner upon this subject. He was disposed, however, to believe that there wore other reasons than those assigned by the noble Lord which induced them to give up this Bill; that they had discovered that even in the present state of the House they would not be able to pass a measure which was opposed to all the principles upon which our colonial policy had of late years been conducted. Moreover, upon coming up to town in order to oppose this Bill he found a paper which had been recently issued, and which bore strongly upon the question involved by this Bill. It was a despatch from the Governor of New Zealand, enclosing a paper which had been drawn up by the Bishop, the late Chief Justice, and Mr. Swainson, a person of very great authority on such a subject, and which pointed out the very great objections to which the Bill was liable. That paper was received by the Colonial Office on the 10th of August, and was ordered to be printed on the 15th; and yet on the 17th the Secretary to the Treasury informed him that he must conre up to town, as the Bill would be proceeded with, although it was inconceivable how any public Department could think of pressing the measure after receiving the despatches he had referred to. It appeared also that on the 2nd of July there was to have been held a meeting of the Natives, and the Governor himself stated that he had summoned the Legislature to meet in August further to consider this subject. If the Colonial Office had ventured to press this Bill behind the back of the colonists, without their knowledge, and against the opinion of almost all the colonists now in England, it would have been an unwise and objectionable course. He was confident that if the noble Duke the Secretary of State had been in England, and had seen the despatch from the Governor, he would not have Ventured to press the Bill. As the Bill was to be withdrawn, it would be unnecessary to comment upon its details, but he could not refrain from saying that it was open to most serious objections. It would have created an irresponsible Council to act concurrently with the constitutional Legislature of the colony; and he thought that every one who considered the subject must be persuaded that the action of two such bodies must have produced constant ill-will and collision, and would have created bad feeling between the colonists and their
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  Governor, between the colonists and the Imperial Government, between the European settlers and the Natives, and must have tended to retard that amalgamation of the races which every wise and benevolent statesman must be anxious to promote. He rejoiced that the same mail which would take out the intelligence of the introduction of this unwise and imprudent measure would also convey the news of its tardy and ungracious withdrawal. The Bill would have met with opposition from men of all parties in that House, who repudiated it as wholly inconsistent with the liberal principles upon which our colonial legislation had of late years been based.
  MR. HADFIELDsaid, he did not think the right hon. Gentleman had much to complain of in the conduct of the Government in apprising him that it was their intention at the time the correspondence passed between the right hon. Gentleman and the Secretary to the Treasury, to proceed with the Bill. Why was the right hon. Member absent from his place in that House? The business of the borough represented by the right hon. Member surely was not so vast as to require his presence for many days together, and certainly it did not prevent his being in his place in that House whenever there was going to be a gala day or a party "set-to." The right hon. Gentleman had not considered that the noble Lord at the head of the Government was not always a free agent, nor that he was frequently much tossed about in his arrangements through the length to which the eloquence of the right hon. Gentleman was drawn out on those special occasions when he occupied so much time in addressing the House. He (Mr. Hadfield) honoured the noble Lord for having introduced the Bill. He believed it was calculated to confer great benefit upon the colony, and was perfectly prepared to have given the noble Lord his independent support. The right hon. Gentleman, had given advice to the noble Lord, who was a great listener, and was always ready to receive advice, particularly from the Conservative side of the House. He (Mr. Hadfield) would also venture to give his Lordship a little advice. It was—"Don't listen to the Bishops." The duty of the bishops and ecclesiastics was to instruct the wild people of the colony in Christian doctrines, and in the principles of morality, and, so long as they did so, he would say, "God bless them mid their efforts"—but they did not adhere to that principle. They

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  had meddled in politics; and to that he (Mr. Hadfield) was on principle opposed. We had quite enough of ecclesiastical quarrelling in England, and he trusted it would not extend to the Colonies.
  MR. CHICHESTER FORTESCUEsaid, that he had a petition to present from fourteen gentlemen of Auckland, New Zealand, who stated that the petition against the Bill came from the Southern Island, in which the Native question did not exist, and where no necessity had arisen for the services of the army and navy. He regretted the inconvenience to which the right hon. Gentleman (Sir John Pakington) had been put, but if he would candidly place himself in the position of the Government he would better understand the difficulty which the Government had felt in making up their minds to withdraw this Bill. It was impossible for the Government lightly to throw over a Bill thus carefully considered and introduced on the responsibility of a respected colleague now absent. He was surprised to hear the right hon. Gentleman lay so much stress on the despatch just presented to Parliament, because, in his view, that despatch was little more than a repetition of the excellent advice and information previously given by the Governor and others. He hoped the House would allow him to make a very short statement of the views with which his noble Friend the Duke of Newcastle framed the Bill, which, for the reasons stated by the noble Lord at the head of the Government, had now been withdrawn. He felt that to be the more necessary, because if there was one statesman in this country less likely than another to sanction any invasion of those rights of self-government which he had himself taken a large share in conferring upon the Colonies, that man Was his noble Friend. And yet the noble Duke was now said to have introduced into "another place," and carried through a second reading, a Bill which had been treated in some quarters as a violation of the Constitution Act, a reversal of our policy, and he knew not what epithets besides—every exaggeration and misconception, in short, that could be pressed into the service of a most active agitation against the Bill. Now, on the contrary, he maintained that this Bill—without going into the question of its expediency, or of whether the same object could be better attained by other means—was not a violation of the Constitution Act, but rather framed in its spirit,
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  and was no infringement of the rights of self-government conferred upon the colonists of New Zealand. He knew that it was not so in intention—he was convinced that it was not so in spirit and effect. The fact was that this was not a question to be disposed of by mere reference to the axioms of what was called "responsible government." Two questions had long been disputed between the Home Government and British colonists. One was, should they govern themselves? another, and a totally distinct one, was, should they govern others? The first question had been most properly and righteously decided in favour of the colonists, wherever it had been possible. That decision had been come to once for all, and no Government would wish or venture to reverse it—certainly not the present Government or the present Secretary of State for the Colonies. But on the other question the Crown held its ground, and maintained its right and duty of protection and control over Native races and Native questions, wherever and so far as it could usefully and practically exercise such control. He had but to mention British Caffraria, Natal, Ceylon, most of the West India colonies, or, to take a gigantic example, British India itself—in all of which the Crown retained more or less control, and did not commit unrepresented Native races to the government of the settlers under the extreme doctrines of responsible government. He need not ask the House what they would think of attempting to govern Ceylon—not to say India—through a Governor who would be absolutely controlled by an Assembly elected by the universal suffrago of the Europeans alone. Well, that difficulty was keenly felt when the question arose of conferring a representative constitution upon the colonists of New Zealand. It was felt that the Natives could not possibly—at all events, for a long time to come—be included in such a representation; it was felt that it would be difficult and dangerous to govern them and tax them without giving them any voice in the matter; it was felt also that it was to the Crown, and not to the settlers, that they had ceded the sovereignty over their country; and that the Crown had, in return, by solemn treaty taken them under its protection. These considerations delayed the grant of the Constitution for several years, and when it was given they were fully present to the minds of those who framed it. He alluded especially to Sir George Grey, and

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  Lord Grey, who both agreed and intended that the control of the Crown over Native affairs ought not to be surrendered. That principle was embodied in the Constitution Act, which was inherited and carried into law by the right hon. Gentleman (Sir John Pakington). That Act contained two most important clauses, which were designed by Lord Grey and Sir George Grey as the charter of the Native race. One enabled the Crown at any time, by letters patent, to form the Native territory, or any part of it, into Native districts, to maintain I within those districts Native laws, so far as was not repugnant to principles of humanity, and to withdraw them from the authority and legislation of the Colonial Parliament. The other conferred on the Crown alone or its delegate the right of acquiring land, by purchase or otherwise, from the Natives, and of prescribing all the terms and conditions upon which that should be done. That Constitution became law, and before long the entire system of responsible Government was brought into operation in New Zealand, with the marked exception of Native affairs. On that subject an arrangement was made between the Governor and his Ministers that Native affairs should not be reckoned among the ordinary domestic questions of the colony, but should be considered as among Imperial questions, upon which the Ministry should have full knowledge of what was doing, and the right to give advice, but the real control and decision resting with the Governor, or in case of serious difference with the Secretary of State. That was embodied in a memorandum, which was submitted to the Assembly and the Home Government, and sanctioned by both, and ratified in a very marked manner by the then Secretary of State, Lord Taunton. But there was a more recent and stronger assertion of the same principle only last year, and emanating from the Government of which the two right hon. Gentlemen opposite were Members. Last year a New Zealand Act of great importance, dealing with the land question and questions of Native title came before the then Secretary of State, which also imposed the condition on the Governor that he should act under it "only with the advice and consent of his Executive Council." The Royal confirmation was refused to that Act, and the reasons given by a despatch signed by Lord Carnarvon, which asserted in very strong terms the rights and duties of the Crown. Such, then,
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  was the state of things which his noble Friend found when he came into office. His noble Friend found it settled already by the very nature and justice, he thought, of the case, and by the decisions of his predecessors, that the paramount control over the Natives should not be handed over to the colonial Parliament—not by way of any reproach to them, or to the able and enlightened gentlemen who formed the present New Zealand Ministry—but because the Natives were absolutely unrepresented there. But something it was felt must be done; things were advancing rapidly to a crisis or a dead lock, and that in two main respects—the purchase of Native land and the Government of the Native race. As to land, the settlers cried out for more, they were increasing in number daily; the demand for land grew stronger and louder. On the other hand, the Natives had grown less and less inclined to sell—more and more suspicious and jealous of the invading race. Again, the Natives wanted more government. They complained that we called them British subjects, but did not govern them, did not keep the peace among them. So, in default of government from us, they were making various efforts to govern themselves, the most remarkable of these being the now well-known "Maori King movement." But, at all events, the "let alone" system would not do; the Crown must either give up its duties to others, or else perform them itself. With this view and this sense of responsibility his noble Friend examined what those powers were. He found them very wide in scope and principle, but not very efficient in practice; he found the negative powers of the Crown, so to speak, much stronger and clearer than the positive. The Crown, for instance, could tomorrow set apart all the Native territory of the Northern Island, and withdraw it from the legislation of the Colonial Parliament. The object, then, of this Bill, was to enable the Crown to act effectually, but only within the sphere and in execution of the duties already belonging to it, for the settlement of these Native questions. His noble Friend had no intention whatever of trenching upon the fair rights of the Colonial Legislature. As to the question, whether the Crown should apply to the Imperial or the colonial Parliament for the powers conferred by this Bill, he would not detain the House by any argument. It was a point on which there would naturally be differences of opinion. Our position,

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  however, was clear. The Government believed that the Crown was only coming to the Imperial Parliament for legislation within a sphere already reserved to the Crown by the Constitution Act of New Zealand, and that therefore there was no invasion of the rights and privileges conferred on the colony by that Constitution. However, as things were, Her Majesty's Government would endeavour to make the best use they could of the powers already possessed by the Crown, which he admitted to be considerable, though imperfect. If those powers should hereafter prove inadequate, it would then be time to consider how best they should be improved or enlarged. Meantime, he trusted that the Governor, with his present able and temperate Ministers, armed with all the moral and legal aid which Her Majesty's Government could give them, and with the physical force which was already, or soon would be, at their disposal, might be able to prevent the horrors of civil war, to reconcile the Queen's subjects of both races, and promote the progress and prosperity of the one without sacrificing the rights and happiness of the other.
  SIR GEORGE LEWISsaid, he was sorry that the right hon. Baronet should have been put to any personal inconvenience by the course which had been taken in regard to this Bill: but notice had been sent by telegraph to the right hon. Gentleman as soon as the decision of the Government was made. He supposed the right hon. Gentleman did not receive the message. The subject of the Bill was one on which the Government had felt considerable anxiety; and the circumstance that it had received the approbation of the other House, and the absence of the noble Duke at the head of the Colonial Department, rendered it somewhat difficult for the Government to decide whether they should proceed with it. It was only last night, after full consideration of the means which the Crown already possessed of accomplishing the object aimed at by the Bill, without having recourse to Parliament, that they decided it would be consistent with their duty not to proceed with the Bill at present.
  MR. ADDERLEYdeemed himself recompensed for the inconvenience of coming up to town to oppose the Bill by the gratification he experienced at its withdrawal. He must protest, in one sentence, against the language of the hon. Under Secretary for the Colonies, from which it might be
  1648
  inferred that the Government had merely dropped the Bill for the present Session, and intended to proceed with it on a future occasion. He believed it would be utterly impossible for the Government to pass any such Bill. He feared that a false impression might be created by the statement of the Under Secretary as to the reasons for abandoning the Bill. He believed firmly that the withdrawal had arisen, not merely from the lateness of the Session, but from the utter inability of the Government to procure support for it, even at a time when the House was occupied almost entirely by their own adherents. If the Crown already possessed sufficient power, what justification could be offered for the introduction of the Bill? Her Majesty ought to exercise whatever power she possessed, not through the Government at home, but through her representative in the colony. The entire local executive must be responsible to the local legislature; and two legislatures, side by side, and independent of each other; a Native Council and representative assembly on the same ground would make hopeless confusion, and must end in referring every question back to England. The policy of the measure was retrogressive and dangerous in the extreme. The hon. Member for Sheffield supported the Bill, and at the same time advised the Government to beware of the colonial Bishops, not knowing, apparently, that this measure emanated entirely from that body. The excellent Bishop and Archdeacon of New Zealand in their zeal on behalf of the Natives, had been led into this most erroneous project. The Chancellor of the Exchequer could hardly have heard with satisfaction the announcement of the hon. Gentleman (Mr. C. Fortescue), that the colonists were empowered to govern themselves, but not to govern the Natives as part of the same community, seeing how often budgets had been disturbed by the application of that principle at the Cape—namely, that even after a colony had the gift of self-government, its internal wars and disturbances with natives were to be conducted at the charge of the mother country.
  THE CHANCELLOR OF THR EXCHEQUERsaid, he entirely agreed with his right hon. Friend opposite as to the application of the principle of self-government to the Colonies in the largest sense; and was not aware that in the whole history of our policy we had ever committed any error in making that sense too large. The error

  1649
  had been rather the other way. The right hon. Gentleman said truly that it was very desirable that there should be no misapprehension in the colony on the subject of this Bill. He was anxious also that there should be no misapprehension, and he wished to say a single word because he thought the right hon. Gentleman had not clearly understood the effect of the speech of his hon. Friend the Under Secretary of State. The right hon. Gentleman seemed to apprehend that, although this Sill was dropped in consequence of the late period of the Session, it would he reintroduced early next Session. His hon. Friend (Mr. Fortescue), surrendered none of the rights of the Government to make any application to Parliament which public duty required, but at the same time had clearly pointed out that there was no such intention as the right hon. Gentleman opposite seemed to suppose, because his hon. Friend said that having abandoned this measure the Government would apply the powers of the Constitutional Act and endeavour in the spirit of those Powers to attain the object in view in concert with the colonial authorities. That was the intention expressed by the Under Secretary of State, and he thought the right hon. Gentleman would see that it formed no ground for uneasiness when the declaration of the withdrawal of the Bill came to be read in the colony.
  Order discharged.
  Second Reading put off for three months.

NAVAL DISCIPLINE BILL.

  COMMITTEE.
  Order for Committee read.
  House in Committee.
  Part 1. Clauses 1 to 39, "Articles of War."
  On Clause 1 (Public Worship).
  LORD CLARENCE PAGET: Mr. Massey, the House having indulgently permitted me for the public convenience the other night to read this Bill a second time without giving any explanation of the necessity of the measure or any account of its clauses, I wish to take this opportunity to give to the Committee some idea of the objects and provisions of the Bill. I confess that I regret very much that it has not been in my power to present the Bill at an earlier period of the Session. I admit that its importance is very great, and, as my hon. Friend the Member for Lambeth (Mr. Williams) has stated, I do not suppose that any measure has been
  1650
  laid on the table of greater importance than that which has to do with the wellbeing and discipline of the Navy. It is an ill wind that blows nobody good, and I cannot help being extremely rejoiced that this question of the New Zealand Bill should have called the right hon. Baronet (Sir John Pakingion) to town, so that I have the advantage of his advice and assistance. The Act of Parliament which the present Bill is to supersede is a very old Act. It was passed originally in the reign of Charles II., amended somewhat in the reign of George II., and therefore, except trifling alterations, I may say that an Act two centuries old is still the text book for the government of the Navy. I think everybody will admit that it is high time that Her Majesty's Government should consider whether this old Act may not be remodelled, whether something like a more merciful view may not be taken in many cases, and whether it is not desirable, in fact, to enter upon complete revision of the naval code.
  I will proceed to give to the Committee the general features of the Bill, and afterwards, if necessary, I will endeavour to explain any clauses which hon. Gentlemen may find any difficulty in understanding. The first great defect which the present Act manifests is the extreme difficulty of holding courts-martial. As the law at present stands no court-martial can be held unless five superior officers are available as members of the court; and three of the five must be of higher rank than commander; this, of course, generally necessitates the presence of five ships, so that it has happened on many occasions that a fleet has been kept together to hold courts-martial when the services of the ships were required in various parts of the globe. Another very great inconvenience which has for a long time been felt is that, however large may be the fleet in presence, there are no means of holding more than one court-martial at a time; so that, although there may be 20 line-of-battle ships present, and although in such a large fleet many cases must necessarily occur, there are no means of trying a second offender until the first case has been disposed of. We propose to deal with these inconveniences by a clause making the presence of three ships sufficient, and allowing lieutenants to sit as members of the Court, from which they are now excluded. As lieutenants hold a very responsible position, and have often the entire discipline of a

  1651
  ship to manage, it is manifestly an anomaly that they should not be thought worthy to sit on courts-martial. By this proposal we shall greatly facilitate the holding of courts-martial. It is also proposed, when a large fleet is in presence, to authorize the holding of two or mare courts-martial simultaneously when necessary. It is impossible to overestimate the importance of this point, because not only is there the inconvenience to which I have alluded of fleets being kept together when they should be dispersed on service, but it continually happens that offenders are kept awaiting their trial for many weeks—I may say months.
  Having stated the facilities for holding courts-martial which will be afforded if the Committee approve this measure, I will now endeavour to explain the clauses with regard to the crimes and punishments which are set forth in the Bill. And if any should think how Draconic they still appear I pray them to bear in mind that we have to deal with a great body of men of all classes, often drawn from the very dregs of society, who too frequently enter the Navy without religious or moral principles, and with tainted morals, and who are rarely improved by being boxed up together, as it were, in a ship. If any hon. Gentlemen think the punishments too severe, I beseech them to bear in mind that, unless we maintain the discipline of our fleets, no longer will our fleets do honour to the country, and that to this end the punishment must be swift, certain, and severe. The first class of crimes we deal with are those committed in presence of the enemy. Under the existing laws, the court-martial has, in some instances, only limited powers of sentencing, which has in many cases acted with undue severity on the prisoner, and in many more been the cause of his entire escape from the consequences of his crime—for whatever motives induced the crime, the sentence must be the same. Every one will remember the case of Admiral Byng. He was tried under the 12th Article of War, which declares death to be the punishment of every person in command who through cowardice, negligence, or disaffection, withdraws from action, or does not come into action, or does not do his utmost to take and destroy every ship of the enemy that it was possible to capture or destroy; or who does not assist to the Utmost of his power Her Majesty's ships or the ships of her allies. The court-martial which condemned Admiral Byng
  1652
  acquitted him both of cowardice and disaffection, and found that he had only been guilty of an error in judgment; and thereupon the clause obliged them to sentence him to death, and they had no power whatever to mitigate the sentence they were compelled to pass upon him: but they recommended him strongly to mercy, and wrote a petition to the Admiralty of that day, conveying their sense of the enormity of the punishment for such an offence. After that cruel execution of Admiral Byng, a small modification was made, giving the Court power to mitigate the punishment, but unfortunately, it was not until twenty-two years afterwards. We go further. We not only give the power of mitigation, but do not permit the Court to award the extreme penalty unless the proved motives for the crime are such as to deserve capital punishment. We deal with the class of offences before the enemy by dividing it into three categories. To the first—treachery—we award death, and I do not suppose that any hon. Gentleman will think that too severe. For cowardice before the enemy, which may be in some cases susceptible of extenuation, we propose to give the Court-martial power to award the extreme penalty of death, or of imprisonment and dismissal from Her Majesty's service. For neglect of duty, which may arise from remissness, carelessness, drunkenness—which may incapacitate a man for discharging his duty, and for a variety of other offences, we proposed to inflict punishments of a lesser degree. My object is to show that we intend to define the crimes, and to take cognizance of the motives which impelled the offender to commit a particular crime, and to deal with him according to the motives. My hon. Friend the Member for Lambeth (Mr. Williams), in calling attention to the severity of the naval code, said that everything is death in the Articles of War; but if he will look at this Bill he will see that there are only three cases in which the punishment of death, without power of mitigation of the sentence, is inflicted. There is an anomaly in the present law which we propose to do away with, and which I confess I am surprised has not been remedied long ago, and it is this,—you give a court-martial power to inflict death for almost any grave offence, but you give it no power of inflicting penal servitude, which would be commensurate with a grave offence short of a capital crime. We propose by this Bill to give power to courts-martial try inflict death or

  1653
  penal servitude, or other punishments of a lesser character. That I believe will be a great improvement. The next class of crime with which we deal is mutiny. Now, what is and what is not mutiny? I believe the highest legal authorities are divided on this point. Is mutiny the act of one man, or must it necessarily be the act of more than one? In the original Bill, as drawn by the Admiralty, we defined mutiny to be the act of two or more persons combining to resist the authority of their superior officer. The Bill however was not only very carefully considered by the House of Lords itself, but by a Select Committee of the House, which was attended by some of the highest legal authorities in the realm, and before which men of the highest naval position were examined. The conclusion was that it would be better not to attempt any definition of mutiny in the Bill; and the clause containing that definition has been expunged; but it will be seen that every mutinous act which can he committed has been dealt with under the head of mutiny and insubordination. The next difficult point which we have dealt with is desertion. There is great difficulty in determining what is really desertion. A man may desert from his ship with the intention of stopping away, and be caught and brought back in 24 hours, and another man may stop away 20 or 30 days and yet not intend to desert. Under the present law there is really no definition of the crime, any more than in a mere general way—it has been dealt with according to the custom of the service, rather than according to any known law. By this Bill we define desertion to be the absenting himself from his ship or place where his duty requires him to be, without intention of returning to such ship or place. If it can he proved before a court-martial that a man has quitted his ship with the intention to desert, the Court will have the power to find him guilty of desertion, although he had been absent but a few hours. At present we have no power to deal with offences committed on shore within our dominions. If any officer, or sailor, or marine misconducts himself in a town, the captain has no power to bring him aboard ship and try him. This has frequently been the cause of great inconvenience; and we hare taken powers in this respect which will be greatly to the advantage of the service. In addition to clearly defining offences, we propose to give power to courts-martial to find a man charged with a greater
  1654
  offence, guilty of a lesser offence only if they see fit, and if they find him guilty of the lesser offence they will have power to award the lesser punishment; in the same manner that a civil tribunal may find a man accused of murder guilty of manslaughter only, if they think the evidence warrants them. Courts-martial have no power of the sort now. For instance, if a man is charged with murder he must be found guilty or not guilty of that particular crime alone. Then, there conies the question of corporal punishment, which has always excited a great deal of attention in this country. I can assure the Committee that there is not an officer in the navy who does not suffer the greatest possible pain in inflicting corporal punishment. I am speaking the general opinion of the profession when I say that officers would give anything to get oft flogging a man, and it is only because the punishment is a positive necessity in the service as at present constituted that it is inflicted. So long as there are men of bad character in the service, who can only be acted on by fear, so long will it be impossible to suppress corporal punishment altogether; but every Admiralty has endeavoured, as far as possible, to check the infliction of the punishment and to bring it under control. The Commander-in-Chief has recently established in the army a system of classification. Every soldier who goes into the army is placed in the first class, and is not liable to corporal punishment until he has forfeited his position by a series of misconduct, and is degraded into the second class. The honour of establishing that system is due to his Royal Highness the Duke of Cambridge, and I believe it has been attended with the very best effects. We have copied it in the navy, and since last autumn we have classified the men in such a way that every man who goes into the navy goes in with the certainty that he is not liable to corporal punishment until he has forfeited the privilege by a series of misconduct. This has had the best effect. Do not let Gentlemen run away with the idea that because we have had disturbances in our fleet, that therefore the discipline is gone, and that there is a want of good feeling among the men. I can assure the Committee that there is no general or rooted disinclination to enter the navy; on the contrary, the manner in which it has been recruited during the past year is most extraordinary—nearly 10,000 men hare entered—and considering the short time

  1655
  during which the fleet has been formed, the state of efficiency and discipline into which it has been brought is most creditable to the officers and men. By this Bill we propose that whenever a sailor or marine shall be accused of any offence which will make him liable to corporal punishment, there shall be a preliminary inquiry by one or more officers into the circumstances of the offence. When they have completed their inquiry, it will be their duty to report to the commanding officer, who will either confirm their finding, or refuse to be guided by it; for we have thought it necessary still to leave in his hands the power of inflicting punishment, although the committee of officers may have reported against it. I am prepared to admit that this is not strictly in accordance with the usage of Courts of justice, but it is impossible to divest the captain of the responsibility attaching to his position; and, besides, we are but legalizing what is the practice in all well-regulated ships. I am positive that the clause will have a beneficial operation, as an officer who may be prone to award corporal punishment will hesitate to take on himself, unless under peculiar circumstances, the responsibility of ordering a man to be flogged when the report of a preliminary inquiry is that the man is innocent:—on the other hand, although the report be that the man is guilty of the offence charged to him, he, the captain, has full power to overrule the opinions of the officer or officers who have conducted the inquiry. The House will perceive that in cases of open mutiny the same undivided and unlimited power which the captain at present possesses is left in his hands. I cannot resist the pleasure of reading to the House certain statistics with regard to corporal punishment which I have been at some trouble to procure, as they show that year by year this degrading punishment is decreasing in a steady ratio, and is gradually dying out of the service. I am positive that the necessity for its continuance will even more rapidly diminish if the House will continue, as it has hitherto done, to support the Government in its efforts for the maintenance of discipline, and for the improvement of the service by the training of a large number of boys, who, having entered at an early age, become attached to the service, and in the great majority of instances turn out skilful and valuable seamen. In 1856, we had in the navy 55,000 men liable to corporal pun-
  1656
  ishment—fey which I mean under the rank of petty officers—and of these 1,397 were flogged, being in the proportion of in 39. In 1857, the proportion of those flogged was I man in every 42; in 1858, out of 64,000 men liable to this punishment 951 were flogged, or in the proportion of 1 in 48; and in 1859, with 64,000 men liable to corporal punishment, 957 were flogged, being in the proportion of 1 to every 67. The decrease has kept pace with the improved condition of the men, for whom the House of Commons has generously voted better pay, better food, and increased allowances of every description. I have now stated the principal provisions of this most important Bill, and I shall be very glad to receive any suggestion on the details of the several clauses from any of the many eminent Gentlemen who are present, and can with their intimate knowledge of legal jurisprudence give me their assistance in making as full and complete as possible the code of discipline for the government of the navy.
  SIR JOHN PAKINGTON: I am not quite sure that my noble and gallant Friend, in proposing the Bill for the discipline of the navy, has quite complied with the discipline of this House; but as you, Sir, have allowed him to enter into a lengthened statement in moving in Committee the 1st Clause of the Bill, I trust that I may be allowed, to some extent, to follow the same course. I listened to the statement of my noble and gallant Friend with the greatest pleasure, and I think it impossible that any observations on such a subject could possibly have been in better tone. My noble and gallant Friend has expressed satisfaction that the opposition which I felt it my duty to offer to the New Zealand Bill led to my presence this evening. Now, I am not one of those who ever indulge in opposition for opposition's sake. It may be my duty to oppose Ministers on general grounds, and it has been my fortune to sit on these benches for the majority of my political life. But, at the same time, I feel that men who are charged with the responsibilities of office are undoubtedly entitled to support from all sides of the House whenever it can legitimately be extended to them. I believe that the present Board of Admiralty, in bringing forward this measure, are only discharging their duty to the country, and are at the same time conferring a great boon on the naval service. One of the subjects dealt with in this Bill, to which

  1657
  when in office I gave considerable attention, is the constitution of naval courts-martial; and I am extremely glad that the noble Lord also has found leisure to direct his attention to their very defective and inconvenient constitution, with the view of providing a remedy. The noble Lord, I know, pays me the high compliment of supposing that during my fifteen months' tenure of office it was in my power to have remedied all defects whatever; at least, whenever I feel it my duty to touch on any defect, he says, "Why, then, did you not remedy it?" In this ease, at least, I have it in my power to show that I did attempt to do so. I had my attention drawn to the inconvenience, and I will go further, and add, to the hardships and injustice consequent on the present constitution of naval courts-martial; and I requested my hon. and gallant and distinguished Friend, Sir Richard Dundas, then, as now, a member of the Board, to give his personal attention to the matter, and to draw up an altered and revised scheme, to be submitted to the Board, for the amendment of our system of naval courts-martial. That gallant and distinguished officer continues to be a Member of the present Board, and I have no doubt that the noble Lord will be able to state that he is much indebted to him for his anxious exertions and for the results of his great experience. I do not think my noble and gallant Friend can, under those circumstances, with justice taunt me with having made no attempt in this direction when in office, while I sincerely trust that henceforward naval officers will not be exposed to those inconveniences and hardships under which they have hitherto laboured in consequence of the action of the old and inadequate system of courts-martial, which it is proposed by the present Bill to amend. I trust that the proposals of the Bill will be found to be satisfactory. Having said thus much, and the details of the mea-pure having been so fully explained by my noble and gallant Friend, I shall not upon this occasion, when it is more in accordance with the rules of the House that we should discuss the proposal of the Government clause by clause, enter at greater length into the subject. I may, however, in conclusion, be permitted to say that, so far as I am acquainted with the details of the Bill, it appears to me the manner in which my noble and gallant Friend, as he explained in a very interesting portion of his speech, means to deal for the future with offences on board ship is extremely
  1658
  judicious. The statement which he made with respect to corporal punishment I look upon as highly satisfactory, and shall not detain the Committee further than to add that I rejoice the Admiralty have thought proper to grapple with this important subject.
  MR. W. WILLIAMSexpressed his regret at seeing so important a measure brought forward at so late a period of the Session. He considered the measure to be one of the utmost importance, and demanding the most serious consideration, as it involved the manning of the navy, which was the great defence of the country. He was sorry to find that the Bill provided for so many severe punishments, and that it did not abolish—or that it did not go further to abolish—the punishment of flogging in the navy. The only good he saw in it in that direction was, that the punishment of death could not be carried out without the sanction of the Sovereign. He contended that there ought to be a court-martial held in every case involving a serious charge, and that nothing ought to he left to the discretion of the captain. In France and in America there was not any such punishment as flogging carried out. Formerly that punishment existed in the American navy, but it had been abolished by an Act of Congress. He objected, too, to a majority of the officers determining the guilt of the accused, and thought there should be a unanimity of opinion to constitute a verdict of guilty. He thought, also, that the preliminary inquiry proposed to be established by the Bill, before corporal punishment could be inflicted, afforded no adequate security against the disposition of the captain of the ship. As to excepting cases of mutiny from the ordinary provisions of the law, he thought such a principle highly objectionable; for how difficult was it to define mutiny. He bad certainly expected that a measure emanating from the noble Lord would have contained more humane provisions. The noble Lord had given proof of his humanity when in command of a line-of-battle ship in the Baltic. During those two years' service of the noble Lord not a man was flogged. The same could not be said of the noble Lord's successor.
  SIR CHARLES NAPIERsaid, that twenty years bad elapsed since he had brought the Articles of War under the consideration of the House. He came there to speak the truth, and he would not hesitate to do so. He must, therefore,

  1659
  give a moat distinct contradiction to the noble Lord's statement, that the discipline of the navy had very much improved. He felt it his duty to state the truth about the matter, distasteful as it might be—the information he had received from many officers was to the effect that the discipline of the navy was very much relaxed indeed. The noble Lord excused those irregularities—disturbances he should not call them—which had taken place of late on board ship; but he could not excuse them at all. They were unexampled. At no time since the conclusion of the last war had there been so many instances of irregularity and insubordination. Drunkenness had increased very much. The drunkenness which had gone on in the Edinburgh was perfectly abominable. He had heard that statement from officers of high rank. With respect to the different clauses of this Bill, he would reserve his opinion till they came consecutively under the notice of the Committee. But he must state one thing—that the Admiralty, in bringing forward these new Articles of War, would do more than had been done for years to improve the discipline of the navy. The establishment of different penal punishments would have an excellent effect. He hoped that when courts-martial were ordered on men for desertion, officers would carry out the penal punishment to the full extent, till desertion was entirely done away with. It was perfectly impossible entirely to do away with corporal punishment; no one detested it more than he did, and no one was more anxious to do away with it, but its abolition could only be brought about by establishing proper penal substitutes. He objected, however, entirely to petty officers being subjected to such a punishment, believing that it would destroy in them that feeling of dignity which he considered essential to their position.
  Clause agreed to.
  Clauses 2 to 4 (Misconduct in the Presence of the Enemy) agreed to.
  Clause 5 (Penalty for Misconduct of Subordinate Officers and Men in Action.)
  SIR CHARLES NAPIERmoved to strike out the words, "shall suffer death," it being, in his opinion, an unjust and un-Christian-like provision. It was not to be supposed that every man who—if necessity ever arose for impressment—might be pressed into the service, should possess sufficient nerve to be able to fight in an action; and to condemn such a man to
  1660
  death, would, he thought, be a most unjustifiable proceeding. It was different with officers; if an officer was a coward he should give up his ship—he had no business there. Negligence, however, was a man's voluntary act, and could be avoided, if he chose; yet this, which was, in fact, the greater offence, was visited by a lesser punishment—namely, that of dismissal from the service only.
  MR. W. WILLIAMSthought, as it would be difficult to decide whether a man, in abstaining from doing a certain act, was influenced by cowardice, or other motives of a prudential character, that the punishment of death ought not to he retained in this case.
  LORD CLARENCE PAGETdid not think that a court-martial would pass a sentence of death in such a case of cowardice as that described by the gallant Admiral. He did not, however, see how it would be possible to exclude the words suggested, because the clause ran, "Every Person subject to this Act, and not being a Commanding Officer;" and as the punishment of death for a similar offence was contained in the clause relating to commanding officers, surely the gallant Admiral did not mean that no officers, except commanding officers, should, under any circumstances, suffer death for cowardice.
  SIR JOHN PAKINGTONtrusted the gallant Admiral would accept the answer of the noble Lord to his objection. In preparing such a code as that under discussion, it was manifestly necessary so to frame it as to meet the extreme cases that could arise;*and the clause was manifestly framed with that object. Some reliance ought to be placed upon courts-martial using the powers vested in them under this Act with wisdom and discretion.
  Amendment negatived. Clause agreed to.
  Clauses 6, 7, 8 (Communications with the Enemy), agreed to.
  Clause 9 (Neglect of Duty. Penalty for abandoning Post.)
  SIR CHARLES NAPIERsaid, he was not anxious to increase the severity of punishments, but he thought the penalty awarded in this case was not sufficient. The desertion of a sentry from his post might be attended with the most frightful consequence. For instance, supposing a man stationed at the bowsprit bead, or at the cat's-heads, were to desert his post; if the vessel were one of a fleet, it might cause a collision between two line-of-battle ships, and the destruction of some 2,000

  1661
  lives. He thought the punishment of death would not be too severe in an extreme ease.
  SIR JOHN PAKINGTONagreed with the Admiral in thinking that the greatest calamity might follow upon a man deserting his post; and therefore he questioned whether, in an extreme ease, the maximum punishment should not be retained for such an offence.
  SIR FREDERIC SMITHthought the clause ill-drawn; inasmuch as it provided the same punishment for offences of different degrees—sleeping on the watch, and deserting the post; the latter was a far more serious offence than the former.
  SIR MICHAEL SEYMOURwas disposed to adhere to the old code in this respect; it provided that this offence should be punished by death, or such other punishment, as the court-martial might determine.
  LORD CLARENCE PAGETsaid, the Committee were not now dealing with the case of a man who deserted his post in face of the enemy. That offence, which he admitted to be a very grave one, was included in the 5th Clause, where the punishment of death was awarded. The present clause was directed against desertion of post, when committed under ordinary circumstances. He thought the punishment severe enough.
  SIR JOHN PAKINGTONsaid, the explanation of the noble Lord was satisfactory to a certain extent; but desertion of post was not mentioned in the 5th Clause; and that fact, coupled with the other fact that it was specifically mentioned in the present clause, might lead to the inference that it was not an offence which was to be punished with death, even when committed in presence of the enemy.
  LORD CLARENCE PAGETadmitted that desertion of post was not mentioned in the 5th Clause, but he held it was included under the words "any person who shall not do his utmost exertions to carry the orders of his superior officers into execution."
  MR. AYRTONdoubted whether the 5th Clause referred to offences committed in face of the enemy. The words were "when ordered to prepare for action, or during the action." He suggested that some general words, such as "or shall be guilty of neglect of duty in presence of the enemy," should be added.
  LORD CLARENCE PAGETwould con-
  1662
  sider the expediency of introducing those words at a future stage.
  Clause agreed to.
  Clauses 10 to 16, "Mutiny," agreed to.
  Clauses 17 and 18, "Insubordination," agreed to.
  Clauses 19 to 21 (Desertion and Absence without Leave) agreed to.
  Clause 22 (Penalty for Absence without Leave).
  MR. W. WILLIAMSconsidered the punishment for this offence very severe. It was "imprisonment for ten weeks with or without hard labour, or such other punishment as the circumstances of the case may require." With regard to the latter alternative a great deal would depend upon the character of the officers who might try the man. The offence also ought to be clearly defined.
  SIR CHARLES NAPIERsaid, the offence of desertion was clear enough without definition. Desertion had got to such a pitch in the British Navy, that it was absolutely necessary some severe punishment should be imposed in order to correct the evil. Now that such a great outcry was made against corporal punishment, ha believed that nothing less than penal servitude would deter seamen from deserting, and enable officers to preserve discipline in their ships. He therefore hoped that Government would consent to that punishment being added.
  LORD CLARENCE PAGETsaid, it was proposed to mulct the offender of two clays' pay, and, in addition, for every twenty-five hours' absence, of a sum not exceeding six days' pay. That was exclusive of the charge for apprehending the man and bringing him on board. Moreover, by Clause 46, the power of imprisonment gave the Court the power of ordering corporal punishment. These punishments he considered sufficiently severe.
  SIR CHARLES NAPIERsaid, he wished to put a stop to corporal punishment; it would not be necessary. But unless the noble Lord added penal servitude, all the Articles of War and all he was doing would be as nothing. He should, therefore, move that penal servitude be added to this Article.
  LORD CLARENCE PAGETsaid, if the gallant Admiral looked to the 19th Clause, he would see that if a man deserted to the enemy there was power to punish him with death, and if he deserted under other circumstances, then there was power to inflict penal servitude; but this clause

  1663
  applied merely to the ordinary case of absence without leave.
  SIR GEORGE LEWISsaid, it was only in accordance with the true principles of legislation to graduate the punishment to the offence. The application to absence without leave of the same punishment as was inflicted for desertion would remove from men who were so absent all inducement not to desert.
  SIR CHARLES NAPIERsaid, the Admiralty must deal with a strong hand in this matter, or else the discipline of the navy could not be maintained. Unless the sailors knew that there was a heavy punishment attached to it, their absence without leave would never be prevented. He knew the sailors well.
  SIR GEORGE LEWISsaid, sailors were human beings, and they ought to be trented as other offenders were, that was, according to the degree of their offence.
  SIR CHARLES NAPIERsaid, power to inflict penal servitude might be given to the Court without absolutely requiring that in all cases it should be inflicted.
  MR. W. WILLIAMSsaid, he thought the clause as it stood was sufficiently stringent.
  Amendment negatived: Clause agreed to
  Clauses 23 to 37, (Miscellaneous Offences), agreed to.
  Clauses 38, 39, (Offences punishable by ordinary Law.)
  Clause 38 agreed to.
  Clause 39 (Offences when punishable),
  MR. AYRTONsaid, this Bill extended the authority of the naval tribunals over seamen who were for the moment ordinary subjects of Her Majesty—namely, when they were on shore, and beyond the limits of their vessels or the dockyards. That was a serious alteration of the law, and one that ought to he carefully considered. It would enable a captain on a naval station to issue a warrant for bringing back to his ship and subjecting to his summary jurisdiction any seaman who might have committed an offence against any of the resident inhabitants, although such offence was properly cognizable by the civil tribunals. Naval officers were sometimes rather impetuous persons, who were fond of exercising authority, especially abroad, and they ought not to be empowered to supersede the ordinary action of the civil courts. He would propose, therefore, that a proviso should be inserted, declaring that
  1664
  nothing in the Bill should be held to prejudice the jurisdiction of the civil tribunals over offences punishable by ordinary law.
  LORD CLARENCE PAGETwas much obliged to the hon. Member for his suggestion, the value of which he fully recognized, inasmuch as it would make the intention with which the clause was framed much clearer.
  MR. AYRTONsaid, it would, perhaps, be more convenient that he should move the proviso on the bringing up of the Report.
  SIR GEORGE LEWISobserved, that a similar question might arise in foreign countries with respect to consular jurisdiction; but if any other than military offences were committed by a sailor on land, of course the tribunals of the country would have jurisdiction.
  Clause agreed to.
  Part III. Clauses 40 to 44, "General Provisions."
  Clauses agreed to. Part III. Clauses 45 to 49, "Regulations as to Punishments."
  Clause 45 (Punishments).
  MR. BRADYsaid, he should like to have some assurance that corporal punishment would be limited to a certain number of stripes, as it was in the army.
  LORD CLARENCE PAGETsaid, he would agree to limit the punishment to 50 lashes.
  MR. BERNAL OSBORNEsaid, that in the army the limit was 48.
  MR. W.WILLIAMSunderstood, that by the existing rule it was limited already to 48 lashes in the navy, but from the mode in which the lashes were laid on, it was much more severe than in the army. It was usual to strike with greater force, and take time between the lashes. He had been told that 50 lashes in the navy were equal to 200 in the army.
  SIR CHARLES NAPIERdid not see why two more lashes should be added to the 48. It was true, as the hon. Member for Lambeth had said, that the flogging was much more severe in the navy.
  Clause agreed to.
  Clause 46 (Regulations as to Punishments).
  SIR JOHN PAKINGTONsuggested, that the term of penal servitude in the navy should be assimilated to that adopted on shore. The minimum period proposed by this clause was four years; on land it was three years.
  MR. HADFIELDexpressed his opinion that severe corporal punishments did not promote discipline, and that public opinion was much against such punishments. In the persons in Yorkshire the "cat" had been abolished, and with advantage. The punishments under this clause included "hard labour," and "corporal punishment might be awarded in addition to any sentence of imprisonment." lie understood that there was to be only one flogging for one offence, and he should like to see words to that effect introduced into the Bill. He disapproved of flogging entirely, both in schools and in the military services, and he contended that as the discipline of neither service had been relaxed by the relaxation of corporal punishment, it might safely be dispensed with altogether.
  MR. W. WILLIAMSsaid, that by the clause as it stood, judgment of death might be passed by four officers out of five, if the court-martial consisted only of five, and in other cases by a majority of two-thirds of the officers. He thought that on such occasions the Court ought to be unanimous, as was the principle of the law in respect of civil tribunals, and moved an Amendment to that effect.
  LORD CLARENCE PAGETsaid, it was a mistake to propose, with the most philanthropic views, to strike out this part of the clause, for then the matter would be left as it now stood, and sentence of death might be given by the decision of a bare majority of the Court. It was therefore from motives of humanity that this clause, as he proposed it, required that where the court-martial did not exceed five members, four of them should concur in the judgment of death, or five if the Court consisted of seven. With regard to flogging, the intention of the Admiralty was to check and control it. He was willing to insert a proviso that the maximum number of lashes to be awarded by a court-martial should be forty-eight.
  Amendment negatived.
  MR. WHITEthought some reason should be given why in judgments of death a court-martial, like a jury, was not required to be unanimous.
  THE ATTORNEY GENERALsaid, it had never been a principle in the criminal law of the navy that a court-martial should be unanimous, and it would be a dangerous principle to introduce. All sentences must be confirmed by the Crown, and therefore there was a check upon the decisions of courts-martial.
  1666
  Proviso, that in any case of corporal punishment the number of lashes to be inflicted shall not exceed forty-eight, inserted.
  Clause, as amended, agreed to.
  Clauses 47 and 48 agreed to.
  Clause 49 (Authorities having Power to try Offences.)
  SIR JAMES GRAHAM: I have hitherto abstained from discussing the clauses of this Bill, as I am very much of the opinion of the right hon. Baronet the Member for Droitwich, that this is a matter upon which professional experience and legal knowledge are the safest guides; and this Bill being brought forward by the Executive, they have no doubt availed themselves of the excellent authorities it is in their power to consult. I have, therefore, refrained from giving any opinion upon the details of this Bill; but having been conversant, in some respects, with: naval affairs, and taking a deep interest in the welfare of that noble profession, I, entertaining an opinion upon a portion of this clause, feel it my duty to state that opinion. I need hardly say that as far as my sympathies are concerned they are with those who wish to see the utmost limit placed upon the infliction of corporal punishment. I will not discuss that punishment in the abstract, because the Committee has already adopted the principle, and ratified the opinion that the infliction of that punishment is necessary in the Navy. This clause, however, is a most important one. I think the late Lord Melville and the late Sir George Cockburn did introduce most excellent and salutary checks against the abuse of corporal punishment. It is due to them that corporal punishment, except in cases of mutiny, cannot now be inflicted in hot blood by any officer; twenty-four hours must elapse between the commission of the offence and the infliction of the punishment. There must be a written record in the shape of a warrant signed by the officer commanding, at whose discretion the punishment is inflicted, a copy of which is sent to the Admiralty. The Returns are sent quarterly; and it is one of the most important duties of the Admiralty to revise the lists of punishment. If there be any ground for supposing that punishment has been inflicted unnecessarily, oppressively, or cruelly, the Admiralty calls for an explanation. As a general rule the Admiralty judges most favourably of an officer who shows his command over his crew and whose ship is kept in good order

  1667
  without the frequent infliction of corporal punishment. But my experience leads me to think that there is a check against the abuse of this power which the Admiralty possess, but which they have not frequently exercised. The Admiralty have the power, if the explanation of the commanding officer be insufficient, to supersede him at once without paying off the ship, although I do not think there is an instance of that power having been lately exercised. The infliction of that summary mark of their displeasure would have a most salutary effect. Saving the non-exercise of that power, I do not think there is any check that is wanting against the abuse of power on the part of the commanding officer. But the 3rd section of this clause does introduce a novelty. The effect of the law as it now stands is to make the commanding officer solely responsible for the infliction of punishment. In many cases he proceeds upon the report of a junior commanding officer, but upon that report he is entitled to exercise his own undivided power. By the clause in this Bill, however, it is not upon the simple report of a junior officer that the commanding officer is to proceed, but it requires that an investigation shall—excepting in cases of mutiny—be made by one or more officers appointed by the commanding officer. I think the effect of this will be found inconsistent with the maintenance of discipline. If a captain with his own eyes sees an offence other than mutiny committed, by this clause he cannot decide upon the matter upon his own judgment and in conformity with what he has seen, but he must delegate an inquiry to his inferior officers. If those inferior officers should be at all disposed to pander to the goodwill of the crew at the expense of the commanding officer, he having come to the opinion that punishment is necessary, those inferior officers may record their opinions against his judgment, and he will have to inflict the punishment upon his own responsibility, and against their recorded opinions. The effect of that will naturally be to destroy his influence over his crew, who will become his enemies and the friends of his inferior officers. But, on the other hand, if these officers, not seeking popularity, are subservient to him, and, even in doubtful cases, recommend the infliction of punishment, the responsibility for the punishment is shared by the inferior officers. This is a question of the highest importance. It may be a most material alteration. At present the power
  1668
  of the commanding officer is undivided, subject to no responsibility, and if you make this concession once it may have a fatal effect. As I said before, this is a question upon which we must trust a good deal to the Executive. I have the greatest confidence in the judgment, benevolence, and sound discretion of my noble Friend at the head of the Admiralty, who is most fortunate in the Board by whom he is assisted, and the ability and the humanity of the noble Lord below me (Lord C. Paget). The House is able to form a due appreciation of the difficulty; they have the power of bringing the best judgment to bear upon this question; but with my doubts upon this clause I do not think I should have done my duty if I had not raised this question in the presence of the distinguished Admirals who are Members of this House. I confess that my judgment will be materially influenced by what the two gallant Admirals near me shall say on this subject.
  SIR CHARLES NAPIERsaid, he concurred with the right hon. Baronet that the regulations introduced by Lord Melville and Sir George Cockburn were salutary and judicious; but that was not conclusive of the question. If the First Lord of the Admiralty saw that a great number of corporal punishments had been inflicted he would be apt to make inquiry, and to conclude that the captain was an injudicious commander. It did not, however, follow that a ship was in a good state of discipline because few corporal punishments were inflicted. There was a natural feeling on the part of a captain in favour of an officer when the latter made a complaint. His feeling was that discipline must be supported; and if he did not take the part of the officer his men believed he did, and could not be got to believe that justice was done. He considered this clause the most important in the whole Bill. At present the captain was judge, jury, and executioner. At present men often refused to call their witnesses, because they thought it of no use, and they never came forward with the same confidence as at a court-martial. He believed he had first suggested this matter to the Admiralty, and started it in the House. When the complaint was made the captain ought to order a ship's court-martial to assemble, composed of the senior officers of the ship. The president of the court-martial should be the second in command, the witnesses should be sworn, and the inquiry should

  1669
  be public. There would be a solemnity about the system of court-martial on the open deck which could not accrue while the captain was the only person who could inquire, and in a different manner. He would not trust the officers to adjudge the punishment; their duty would be to find the prisoner guilty or not guilty, and the punishment should be awarded by the captain. He knew there was danger in the alteration, but still he thought it well worthy of a trial. He would never allow the captain to be present at the infliction of corporal punishment. If a man had a thin skin and suffered great pain and agony, the ship's company heard him calling upon the captain for God's sake to forgive him, for he could not bear it, and making use of every supplication; and if the captain were obdurate and carried out the punishment, the crew could not help saying, "What a brute the Captain is to stand by and see a man suffer like that!" Whereas, if the second in command were ordered to be present in the captain's place, the culprit might appeal to him as much as he pleased. The crew would know that the first lieutenant had no power to forgive him, and there would be no feeling that the commanding officer was a brute. It would be one of the greatest boons that could be conferred on the captain if he were forbidden to be present at the infliction of corporal punishment. He approved of the clause and believed it would be satisfactory to the men, officers, and captain.
  SIR MICHAEL SEYMOURasked whether the new system was to be accompanied by any regulations to guide officers in carrying it out? He did not think it would he productive of greater advantage than the system which existed under the Queen's Regulations. In small craft, such as gunboats, where the choice of officers was limited, there would be considerable difficulty in making an inquiry as directed by the clause.
  SIR JAMES GRAHAMsaid, the gallant officer, the Member for Southwark, appeared to contemplate an arrangement quite distinct from that for which the clause provided. The clause as it now stood did not contemplate a court-martial, nor did it provide for any sworn testimony, and, so far from its rendering the decision of the one or more officers, as the case might be, binding on the captain, it left him to act according to his own discretion after they had made their report. An offence might
  1670
  be committed under the eyes of the captain; in a gale of wind, for instance, he might see a man skulking and not laying out on the yard. Surely he was more competent to judge of such an act than any of his officers, who possibly had not witnessed it, and ought not to be bound to refer it to one or more inferior officers. He decidedly objected to the proposal of the hon. and gallant Officer that, out of consideration to the feelings of the captain, he should be relieved from all attendance while punishment was being inflicted. He thought that the feelings of the captain were altogether secondary to the feelings of the man who was bearing the punishment and of the crew who were looking on. If the severity of the order was to be fixed by the captain, he should be allowed to be present at the punishment, and to retain the merciful dispensation he now possessed if he thought the suffering which the man endured was greater than the crime deserved. He understood the argument of the hon. and gallant Officer to be that the punishment should be delegated to the second in command, so that there might be no appeal to the chief who ordered it, and who, if a witness of a man's agony, might deem it cruel to proceed. That could not, unless he were much mistaken, be the idea entertained by the Admiralty.
  SIR JOHN PAKINGTONacknowledged the force and importance of what had been stated very fairly by the right hon. Baronet, whoso opinion on such a question was entitled to great weight. He had also listened with attention to the remarks of the gallant Officers the Members for Southwark and Devonport. On the other hand, he could not forget that the proposal in the clause emanated from a Board of Admiralty composed of experienced naval officers, and that it had been proposed to the House by the noble Lord who was himself a very distinguished officer. The right hon. Baronet would concur with him in holding that there were two objects which they ought primarily to keep in view in dealing with this question. The one was to afford to the captain of a ship every possible moral support in discharging his difficult and important duty in regard to punishment; and the other was to hold out lo the crew the most ample guarantee that they would be dealt with justly. These objects were no doubt contemplated by the Board of Admiralty when they proposed this change, and would, he believed, be

  1671
  greatly promoted by the proposal contained in the clause. At the same time he felt the force of the observations which had been made by the gallant Admiral (Sir Michael Seymour) as to the difficulty of instituting an inquiry in very small vessels, and the necessity of providing for a case where an offence -was committed under the eyes of the captain. He therefore suggested that, without abandoning the valuable principle involved in the clause, it should be reconsidered as to its details, with the view of correcting them upon the Report.
  SIR CHARLES NAPIER,referring to the observations of the right hon. Baronet the Member for Carlisle, put the case of two men sentenced to the same degree of punishment for similar offences, and asked whether it would be right that the one who made a great outcry should be spared, while the other who, with more nerve and spirit, bore his punishment without a murmur, the full measure of his sentence? In former days punishment was ordered by a court-martial, and the officer who was appointed to see it carried out had no power of limiting it. In the army, if the colonel of a regiment saw an offence committed, he could not order the offender to be flogged off-hand, but was obliged to submit the matter, at all events, to a drumhead court-martial. A captain in the navy should be placed in the same position. Sailors ought to enjoy the same privilege as soldiers, of being tried by a regular court-martial, instead of being placed at the mercy of the captain.
  MR. W. WILLIAMSthought that if flogging, the abominable, brutal system of flogging, was to be continued, it ought never to be inflicted without a court-martial; and he moved a modification of the clause accordingly.
  LORD CLARENCE PAGETfreely admitted the very grave difficulty which had been pointed out by the right hon. Baronet the Member for Carlisle, with respect to a commanding officer who saw an offence committed and was naturally the best judge of the amount of punishment. He should be very sorry to take from the captain the least responsibility, because, if they did, there would be an end to the discipline of the ship. But still he believed that if a captain saw such an offence as had been mentioned—a man not laying out the yard as he was told—the proper course would be for him to send for the next officer in command, tell him the circumstance,
  1672
  and direct him to inquire whether the captain of the top had given the order, and to let him know what was his opinion of the case. The commander or lieutenant would then ascertain whether the offence had been committed wilfully, or whether the neglect of duty was owing to illness or some other physical cause. The right hon. Baronet had led the Committee to believe that it would be taking away the responsibility of the captain to desire one or more officers to report; but he did not think that it would detract in the least from that responsibility. The officers referred to would merely find the man guilty or innocent, and then it would be fur the captain to award the punishment, if he were guilty. Moreover, if the finding of the officers was not correct, the captain had power to overrule it. He was willing to admit that there might be a difficulty if the second officer was a very bad officer, and wished to set aside the authority of the captain and curry-favour with the men; but that would be mutinous conduct on the part of the officer, and he did not know any statutory enactment except the ordeal of a court-martial, which be it remembered it was always in the power of the captain to obtain, and which would be applicable to the case of such a lamentable want of discipline. He thought the clause would very much tend to improve discipline; in fact, would make general that which was now done in every well-regulated ship. There were in the service, as there always had been, captains who did not sufficiently inquire into these matters before-hand, and upon them this would impose a very salutary check. The Committee would also observe that this had reference only to the infliction of corporal punishment summarily—that the captain would still have power to inflict minor punishments, or to bring the offender to court-martial, and that in anything like mutiny the preliminary inquiry was asked altogether. He did not deny that there was difficulty in the case, but it was his conscientious conviction that the advantages of the provision out-weighed the disadvantages.
  MR. W. WILLIAMSmoved the omission of the end of the clause, in order that a clause might be brought up rendering courts-martial necessary in all cases of corporal punishment.
  SIR GEORGE LEWISthought the proper way was for the hon. Member himself to propose a clause on the Report, and not to ask the Committee now to reject a mitigation of the existing law, which, he ad-

  1673
  mitted, as far as it went, was an improvement.
  MR. AYRTONsaid, that the proposition of the hon. Member was impracticable. They could not have courts-martial in every vessel to investigate these offences.
  Amendment negatived.
  Clause, as Amended, agreed to.
  Part IV. Clauses 50 to 59, "Courts-martial,"
  Clause 50 (Constitution of Courts-Martial).
  LORD HOTHAMasked how it was intended to carry out the provision for holding courts-martial in cases where there were only two or three ships together on a station?
  LORD CLARENCE PAGETsaid that every commander of a fleet would be enabled to give power to the senior officer of every small squadron which he might send out on detached duty to hold courts-martial.
  Clause agreed to.
  Clauses from 51 to 59 (Proceedings of Courts-Martial) agreed to.
  Part V. Clauses 60 to 73, "Penal Servitude and Prisons."
  Clauses 60 to 63 (Penal Servitude) agreed to.
  Clause 64 (Term and Place of Imprisonment) agreed to.
  Clauses 65 to 67 agreed to.
  Clause 68 (Time of Detention in Naval Custody).
  SIR JOHN PAKINGTONsaid, he was glad the Government were taking power by it to establish naval prisons, and he hoped the power would not be a dead letter. He rather thought the noble Lord had spoken a little more favourably of the discipline of the navy than the facts justified.
  SIR GEORGE LEWISsaid, that the Admiralty had been already in communication with the Home Department in regard to the transfer of prisoners, and the subject had been referred to the inspector of prisons.
  MR. HENLEYsaid, it was a remarkable fact that there was no power reserved for the protection of the prisoners, though all the powers of punishment were carefully preserved. He thought the regulations which affected other prisoners ought to apply to these.
  Clause agreed to; as were also Clauses 69 to 71.
  Clause 72 (Penalty as regards Gaolers, &c).
  MR. HENLEYhoped some limit would
  1674
  be put to the number of the prisoners confined in any particular gaol.
  MR. EDWIN JAMESsaid, that there should be some provision of that sort, and also to give some protection to the prisoner. He thought, too, that there should be words added to protect the gaoler of a gaol, which was crowded, against being liable to a fine of £100 for refusing to take the prisoners in. He moved the insertion of the words "who shall wilfully refuse."
  Clause agreed to; as was also Clause 73. Part VI. Clauses 74 to 85, "Supplemental Provisions."
  Part VII. Clauses 86 to 88, "Repeal of Acts, and Saving Clause;" also Schedule, agreed to.
  House resumed.
  Bill reported, with Amendments; as amended, to be considered To-morrow.

ROMAN CATHOLIC CHARITIES BILL.

  CONSIDERATION. SECOND NIGHT.
  Order read, for resuming Adjourned Debate on Amendment on Consideration, as amended [9th August]; and which Amendment was, to leave out Clause 1.
  Question again proposed, "That Clause 1 stand part of the Bill."
  Debate resumed.
  On Question that Clause 1 stand part of the Bill.
  MR. HENNESSYinvited the Attorney General to favour the House with his opinion on the Clause.
  SIR GEORGE LEWIS: It is so long since the debate was adjourned, that I really cannot undertake to say whether I am at liberty to address the House or not. [Cries of "Spoke."]
  SIR GEORGE BOWYERthen rose, but was met with a cry of "spoke" and "order."
  MR. SPEAKER: I beg to remind the hon. Member that he has already spoken in this debate.
  Question put,
  The House divided:—Ayes 70; Noes 13:—Majority 57.
  Motion made, and Question proposed, "That the Bill be read the third time Tomorrow."
  MR. HENNESSYbegged to observe that, as his name was on the back of the Bill, he wished, in consequence of the de cision just arrived at, to disclaim all connection with it. With great respect he expressed the opinion that that clause gave to the Bill all the character of a penal law. The House had agreed to a clause

  1675
  in which occurred the phrase "superstitious" as applied to the trusts and uses attached to charities connected with the Roman Catholic Church. That word was used in an Act of Parliament that was as old as the time of Edward VI., and not since then. He was sorry that the House had sanctioned the use of such a word; and he repeated, therefore, that he disclaimed all connection with the Bill.
  SIR GEORGE BOWYER: Considering the extraordinary position in which I am placed by the conduct of Her Majesty's Government, I am anxious to offer a few words to the House by way of explanation upon the subject. I now state to the House distinctly that, whilst standing at the bar of the House yesterday, Her Majesty's Attorney General came to me and asked whether I would be satisfied with and acquiesce in the Bill, if the clause moved by the hon. Member for Hertfordshire, and the proviso of the right hon. Gentleman the Member for Kilmarnock were inserted in the place of the 1st Clause as it now stands in the Bill. I acquiesced in the suggestion, and placed the matter in his hands accordingly. I then communicated with various hon. Members on both sides of the House, and informed them what had passed. I told them that I very much preferred the clause of the hon. Member for Hertfordshire to the one contained in the Bill; and several of them, including the right hon. Gentleman the Member for Oxfordshire, expressed their satisfaction that a compromise had been effected, which was likely to settle the matter in an amicable way. I therefore looked with anxiety to the appearance of the Attorney General in the House this day, because I clearly understood that it was his intention to endeavour to carry into effect the arrangement I have mentioned; and I own I was much astonished, when the Bill was called on, to find that the Attorney General did not rise in his place and take the course I had expected. I declare to the House that I was fully convinced by what he said to me, that a compromise had been agreed upon. And, again, I say, that I communicated to various Members that it was so, and told them that the Attorney General had proposed to me to take the clause of the hon. Member for Hertfordshire, and that I fully expected the arrangement would be carried out. I must also declare my thorough disappointment, when I find that the Government have thrown me over at the very
  1676
  last moment by voting against me in opposition to the arrangement thus come to. I may now be permitted to state what are the practical objections which I entertain to the clause in the Bill as proposed by the hon. and learned Member for the University of Cambridge. In the first place, that clause gives legislative sanction to the decisions of Courts of Law regarding superstitious uses that have never had a legislative sanction before. It converts into statute law decisions as to superstitious uses which have never come before a Court of Appeal, and which, on any future occasion, might be reconsidered and reversed by such a Court of Appeal. Moreover, the Attorney General has given me his opinion more than once, that the law as to superstitious uses no longer exists; that there is no such law; and that the various statutes which have been passed tolerating and legalising the Roman Catholic religion in this country have rendered valid every part of it. The practice of praying for the dead is a necessary part of the Roman Catholic religion. No Roman Catholic ever uses private devotions without prayers for the dead. No mass is said in any of our churches without prayers for the dead. They are a necessary part of our liturgy, and they cannot be omitted in any mass that is ever said in our churches. True, there are special masses for the dead; but in all our devotions prayers for the dead are included. Therefore, if you declare prayers for the dead to be illegal, you make the whole practice of Roman Catholic worship, both public and private, positively illegal. Now, at this time of day, after Catholic Emancipation and the statutes which admit to a perfect equality all Her Majesty's subjects, whatever may be their religious creed, and allow them entire civil and religious freedom, that surely cannot be the intention of the House. I appeal to the Liberal party opposite. I tell them distinctly that, by voting for this clause, they have voted for the perpetuation of a portion of that system which they are constantly condemning when they talk about civil and religious liberty. This clause is a penal enactment. ["No, no!"] It is a new penal enactment, I repeat, against the Roman Catholics; for what does it provide? Why, it provides this:—That wherever there are prayers for the dead, which are an essential and a necessary part of the Roman Catholic religion, an essential and a necessary part of Catholic worship, both public and private,

  1677
  that portion of the Catholic worship is by statute declared to be illegal, and the funds applicable to that purpose shall be taken away and devoted to other uses—shall be forfeited and confiscated, and applied to something else. Thus, the legislature puts its seal upon an enactment which stigmatizes as superstitious an essential and a necessary part of the public and private worship of a considerable portion of their fellow subjects. ["No!"] I say that a clause of this description is a disgrace to the Parliament that enacts it. But it is doubly a disgrace to those who talk of civil and religious liberty. Let them say no more about religious liberty; for they have sanctioned a clause which declares to be superstitious that which is a necessary part of the worship of a large section of their fellow subjects. The question is, what is to be done with regard to this enactment. I do not know what may take place in the House of Lords; but I shall propose that there be added to this clause, which has just been approved of, to my deep regret at all events, the proviso of which notice has been given by the right hon. Gentleman the Member for Kilmarnock; and I trust that Her Majesty's Government will consent to its adoption, either as a proviso or a separate clause, if they are not inclined to propose it themselves.
  MR. NEWDEGATE: Sir, I deny altogether that the House, in agreeing to this clause, has done anything that is inconsistent with the great doctrine of religious freedom, whilst it has acted in perfect consistency with the prayer of the petition which was presented to the Pope by the lay Roman Catholics of England so early as the year 1839. These same Roman Catholics also petitioned Cardinal Wiseman in 1851, that he would institute such a constitution for them, under the powers granted to him from Rome, as should compound the Canon law of Rome with the statute law of their beloved country. My firm belief is that the Government and the House have acted rightly in accordance with the advice of competent persons like the late Mr. Baines in conceding, after long delay, the prayer of those petitions as presented to the House last Session, and previously enforced by their evidence before the Mortmain Committee. With respect to what the hon. Baronet the Member for Dundalk has said, let not the House be misled. We have not by the decision at which we have arrived precluded or con-
  1678
  demned prayers for the dead. All that we have done is this:—We have proceeded upon the Common law of England as it has existed for 300 years in declaring that the condition of prayers being said for the dead shall not be attached to the transmission of real estate, because out of the attachment of that condition sprung the necessity for enforcing the laws of mortmain. Therefore, this House, so far from departing from the free and ancient constitution of the country, is acting in thorough conformity with it; and beyond that, in perfect consistency with the well-known statute of provisors which was passed in the reign of Richard the II. For it has been proved before Committees of this House, that the state of the law which the House is now called upon to remedy, led to the practice of taking cases relating to English property to Rome for decision. Even in the days when this country was altogether Roman Catholic, the Legislature acted on the great principle embodied in the great charter. The words are as follows:—"Eeclesia Anglicana Libera sit, et leges suas illœsas habeat." Well, that is all the House has done. And I believe that in so doing it confers an inestimable boon upon the Roman Catholic laity and their charities in this country, acts in accordance with the justifiable and constitutional portion of the prayer of the petition to the Pope of 1839, and of that addressed to Cardinal Wiseman in 1851. So far from departing from the great principles of civil and religious freedom, the Clause now adopted will secure to Roman Catholics freedom from that oppression exercised by a foreign and usurped authority which, in their petitions and in their evidence, they state has been so grievous to them for the last ten years.
  THE ATTORNEY GENERAL: Sir, I trust to be permitted to say a few words in answer to the excited speech of the hon. Member for Dundalk. I have taken much trouble in the endeavour to settle this question, and have acted in such a manner as I hoped would have been acceptable to both parties; but, with the ordinary fate of men who try to please all, I find that I have succeeded in pleasing none. When the original clause was brought up, considerable difficulty was felt in accepting it, and in a moment of weakness I undertook to prepare another, and I thought I had done so with the perfect assent and acquiescence of the hon. Member for Dundalk and other Gentlemen who are act-

  1679
  ing with him. Accordingly, in my innocence, I rose to propose the clause, but, to my surprise, was violently interrupted by the hon. Member, who said he would have nothing to do with the clause. I therefore very humbly sat down, resigned the matter into his hands, and shortly after walked out of the house. To my great surprise, I subsequently learnt that the House I had left behind me was detained by the hon. Member until four o'clock in the morning. I felt myself relieved from all concern in the Bill; but I could not emancipate myself from the continued importunities of the hon. Member. At length I said to the hon. Member, "If you and those with whom you are acting will deliver yourselves into my hands, I shall he glad to take charge of the Bill." I then received a letter from the hon. Member telling me that he would put the matter into my hands, provided I would undertake to get rid of the 1st Clause as it stands in the Bill. Now, that was an engagement which I did not, and could not, make; and there was no arrangement whatever with the hon. Member that I should do so. I told the hon. Member, with a sincere desire to assist him, that I thought the best plan he could adopt would be to get the clause of the hon. Member for Hertfordshire substituted for the clause as it stands, and to add to that clause the proviso of the right hon. Gentleman the Member for Kilmarnock. That was the best advice I could give him, and that was the full extent of the arrangement; but the anxiety of the hon. Member has induced him to put a more sanguine construction upon the words I used than they were intended to bear. That, then, is the position in which the matter now stands; and if he could have been prevailed upon to substitute the Amendment of the hon. Member for Hertfordshire with the proviso for the clause to which the House has agreed, I should have endeavoured to assist him; but I could not engage to alter the decision of the House, more especially because I have always said that the imaginations by the hon. Member of mischief arising from the existing clause are entirely without foundation. I thoroughly believe that the clause as it now stands in the Bill will not in the smallest degree affect the present position of the law upon the subject of superstitious uses. If the law on the subject has been modified by recent legislation, the modification will still remain. I trust I have placed myself right with the House
  1680
  in reference to this question. I am extremely sorry the hon. Member has used the language he has on this occasion. He can only have done so under a feeling of anxiety and agitation, and a forgetfulness of what actually passed between us. But the treatment which I have experienced at the hands of the hon. Member justifies me in refusing to have any further connection with the Bill.
  MR. MALINS: The Attorney General has most accurately stated what passed between him and the hon. Member for Dundalk, for I was a party to the conference as we came in at the door of the house; and I say again that the Attorney General has accurately represented what passed on the occasion. I have had many conferences with my hon. Friend the Member for Dundalk also, and in a friendly spirit. I have been sincerely desirous of effecting an amicable arrangement if possible; and I did my best to bring about such an arrangement by the adoption of a clause that would at once secure the object which Parliament has in view, and satisfy my hon. Friend. I have again and again assured him of my unfeigned opinion, in accordance with that which has been expressed by the Attorney General, that the clause which we have just passed will work satisfactorily to my hon. Friend himself if he will only allow his mind to become calm and relieved from the excitement under which it is at present suffering. I venture to say that when Parliament has been prorogued, and he permits himself dispassionately to consider, in conjunction with his friends, the effect of the clause, he will very soon come to the same conclusion that I have, after giving the matter full consideration, that it will work satisfactorily to Parliament, to the country, and to every interest concerned.
  MR. MAGUIRE: I move that the debate be now adjourned.
  MR. BRADYseconded the Motion.
  Motion made, and Question proposed, "That the debate be now adjourned."
  MR. HENLEY: Having been alluded to in the course of this discussion by the hon. Member for Dundalk, I may be allowed to state what passed on the occasion of the clause being agreed to by the Committee. I was present in the House when the clause was adopted as I thought with general consent, and I conceived it to be a satisfactory settlement of the question. At least so far as I could understand it, I was perfectly satisfied. But the Bill

  1681
  itself has passed through many curious phases of lights and shadows, and amongst other things a rumour was circulated that the Government were going to throw out the clause. How the rumour arose, I am sure I do not know; but it certainly went round the House. I considered that to be impossible, however, because I understood the matter had been settled with the assent of the right hon. Gentleman the Home Secretary. I therefore deemed it simply impossible. Still, there was the rumour I have referred to, and everybody heard of it. In the face of that rumour the hon. Member for Hertfordshire put his clause in print; and the hon. Baronet the Member for Dundalk spoke to me upon the subject, and pointed out several objections to the clause in the Bill as it stood. He did not, however, convince me, and I told him that I did not see the force of his objections; but I added that, so far as I was concerned, if the matter was to be again opened, I should be content with the clause of the hon. Member for Hertfordshire. That was all that passed between us. I said that, if the question could be amicably settled on that ground, so far as I was concerned, I should be satisfied. I am better satisfied as the Bill stands, because it is always inconvenient to be doing and undoing. There may be reasons perhaps for undoing in this instance; but I cannot see them myself, and I repeat that I am better pleased with the Bill as it stands.
  SIR GEORGE BOWYER: Sir, I trust the House will allow me to say a few words in reference to what has been stated by the hon. and learned Gentleman the Attorney General. He says that I uncourteously put him down, or stopped him, when he was proceeding to address the House. Now, I must be permitted to say that I never intended the slightest discourtesy towards the hon. and learned Gentleman. I remember well what occurred on the occasion. A suggestion was made by me to the Attorney General when he rose to address the House, and the same suggestion was made at the same time by the right hon. Gentleman the Secretary for the Home Department. When the Attorney General got up, I suggested to him that the course which had been agreed upon was to support the first Clause in the Bill as it then and originally stood instead of the clause of the hon. and learned Gentleman. The Attorney General having stated to me that he was perfectly ready to throw
  1682
  aside his clause, and that he did not care about it, I thought he was ready to agree to the original clause; and all I did, simultaneously with the Home Secretary, was to remind the hon. and learned Gentleman of the arrangement that had been made between us. I was very much surprised, therefore, when upon that suggestion being made by the Home Secretary and myself the hon. and learned Gentleman walked out of the House. I was utterly surprised at his taking any offence. However, he did take offence, and the mischief was done. With regard to what took place between the Attorney General and myself, the hon. and learned Gentleman the Member for Wallingford certainly heard part of it, but not the whole. The Attorney General said to me—"Will you deliver your case up to me entirely," and upon my answering "yes," he said, "Then I advise you to take Mr. Puller's clause and add to it Mr. Bouverie's proviso." I said, "By all means, let it be so. I put the matter in your hands;" and I certainly understood that the hon. and learned Gentleman had undertaken to assist me in carrying that arrangement into effect. If I was mistaken, then I can no longer have any confidence whatever in what passes between man and man, and I am perfectly amazed at the account which he has given the House of the transaction. Moreover, acting upon the proposal of the Attorney General, I went into the Library and copied the clause of the hon. Member for Hertfordshire, to which I adopted the proviso of the right hon. Member for Kilmarnock, and delivered it to the hon. and learned Gentleman expecting that he would come down and propose it. I now find myself thrown over-board by the Government, and I own I am astonished at it, and think myself very ill-used. The hon. and learned Member for Wallingford has talked of my excitement, and speaks as if this were a private Bill which has been brought in for the interest of Sir George Bowyer. It is no such thing. I am intrusted with important public interests. I stand here representing the interests of a large body of Her Majesty's subjects. I stand here as the representative of all the Roman Catholics of England in this instance. [Cries of "No."] Yes; I say I do. I have communicated with all sections of them, and I say emphatically that the Bill, in the shape in which it stood before the introduction of the clause of the hon. and learned Member for the University of Cam-

  1683
  bridge had the assent of every section of Roman Catholics in the country, and that there is not any portion of the Roman Catholic body, whether clergy or laity, that does not assent to it as it then stood. ["Divide!"] Hon. Members say "divide"—I have a right to speak, and I will speak. I stand here, the representative of a million and a half of Her Majesty's subjects who are Roman Catholics, and I tell you distinctly that it is the opinion of the leading persons among the Catholic body that the clause introduced by the hon. and learned Member for Cambridge University is an injurious and a mischievous clause to them; and they believe, moreover, and I believe, that he introduced it with the intention to injure them. ["Order!"]
  MR. SPEAKER: That is unparliamentary and irregular. The observation of the hon. Member that a clause was moved with the intention of doing injury is neither Parliamentary nor regular.
  SIR GEORGE BOWYER: When I said injurious to them, I meant that, no doubt the hon. and learned Gentleman thought that by doing injury to the Roman Catholics he would be doing good to the Protestants.
  MR. SPEAKER: That is not an explanation which can be satisfactory to the House.
  SIR GEORGE BOWYER: I attributed no dishonest intention to the hon. and learned Gentleman.
  MR. SPEAKER: I must request the hon. Member to recal the observation.
  SIR GEORGE BOWYER: I am quite ready to recall any observation that is either unparliamentary or irregular. What I meant was, that the hon. and learned Member for Cambridge University being opposed to the Roman Catholics, of course thought he was doing good by doing anything which would injure them. I spoke of public, not private grounds. But the clause is considered to be an injurious one to the Roman Catholics. It will expose us to a great deal of litigation and expense. A great many of our charities are very small, and will be swallowed up by these references to Judges and other complicated proceedings in the Court of Chancery. The clause will, therefore, be a serious injury to us. And although the hon. Member for North Warwickshire states that it does not prohibit the use of prayers for the dead, still it does stigmatize as superstitious that observance of the Catholic religion. It casts a stigma upon our worship, and it is
  1684
  a penal enactment which confiscates a portion of the property of the Roman Catholic Church which is devoted to that purpose. It only now remains for me to state what course I propose to take. The clause, I have remarked, is insulting, mischievous, and injurious in every possible way, and if it passes into a law, I will not be responsible for it. It is not my Act, but that of the hon. and learned Member for Cambridge University. To his own conscience I leave it entirely, and wash my hands of it altogether. We shall see, however, what is done in "another place." The Bill will go to the House of Lords, and I trust that our case will there receive more justice than it has met with in this House; and that the Catholics of England will be dealt with more fairly by the Members of the Government in the House of Lords than by the Members of the Government in the House of Commons. I repeat that Her Majesty's Government have behaved most unfairly by me. From time to time they have given this Bill a lukewarm support which they had better not have given it, for that support has turned out to be a delusion and a snare—a rotten reed that only stuck into my hand when I endeavoured to rest upon it. I trust that the Catholics of England will remember the manner in which they have been treated by Her Majesty's Government. ["Oh, oh!"] I will venture to say that the Members of the late Government would have behaved in a much more straightforward manner towards us. I am not a party man. I care for neither party, except so far as they do right. I never gave a party vote in this House in my life; but I most honestly say that I have met with more fair dealing on the part of the Earl of Derby's Government than I have from the present; and in this instance, I will not say their duplicity, because I shall be called to order if I do so, but their want of reliability will not be lost upon the Roman Catholics of England. They will remember the way in which they have been treated. They will remember the laughter and jeers that have come from the Treasury bench, when the Member who represented them got up, alone and almost unsupported, to maintain their interests and the interests of their clergy, and the endowments by which their clergy and schools are kept up. They will remember that their case was treated with contempt—["No!"]—and that the Government refused to consider the just claims of that portion of their fellow-subjects who be-

  1685
  long to the Roman Catholic Church. The Attorney General says that we have no reason to fear any injury from the passing of the Bill in its present shape. Her Majesty's Ministers think they know better than we do what our true interests are. But we have a right to judge for ourselves. You say it is a good clause. We say that it is injurious. Protestant Members have nothing to do with the Bill. It cannot affect them. It affects us only. Why, then, should we not be left to judge for ourselves what we want? This was intended to be a measure of relief. We tell you what we want, and what we consider to be good for our interests. Why, then, insist upon going to the Member for a Protestant University to tell you what is good for the Roman Catholic subjects of Her Majesty? Is that a proper person to judge of what is desirable for the Roman Catholic Church in England? What would hon. Members say if I were to take a strong part with regard to the Ecclesiastical Commission or the Carlisle Canonries Bill, or any other matter which belongs exclusively to the Established Church? I never do so. On the contrary, I always go out of the House when there is a division on a matter exclusively regarding the internal affairs of the Established Church. I consider that it would be alike indelicate and indecent in me to interfere in such matters. I leave Protestants to manage their own affairs, and in like manner think that the Roman Catholics should be left to manage theirs. If I now consent to appoint a day for the third reading of the Bill, it is under protest against the injury which has been inflicted upon the English Roman Catholics, and in the hope that what has been done in the House of Commons will be reversed in "another place," where I trust justice and equity will prevail more than they have done here, and the Members of the Government will take a course more in accordance with their duty and honour, and better calculated to satisfy the Roman Catholics, whose interests, equally with those of Protestants, are entrusted to their care and keeping.
  VISCOUNT PALMERSTON: I cannot allow to pass uncontradicted the charges which the hon. Baronet the Member for Dundalk, whose uncontrollable excitement blinds his mind to facts and reason, has thought fit to bring against Her Majesty's Government. I pardon those false accusations, in consideration of the ungovernable state
  1686
  of mind which in reality hardly leaves him master, certainly not a responsible master, of his own language. I utterly deny that we have conducted ourselves in any manner which in the slightest degree affords a shadow of ground for those violent vituperations in which he has indulged against the whole of the Government. There has been no breach of faith, no breach of any engagement. We have supported a clause which was unanimously agreed to by the House. In fact, if I mistake not, the hon. Baronet himself voted for it. [Sir GEORGE BOWYEB: NO, no; I did not.] Then he stood alone in opposition to the clause, which was agreed to without a division. Now the hon. and learned Gentleman complains bitterly that we do not follow, in regard to the provisions of this Bill, the conduct which he says he pursues whenever any measure is proposed that is connected with the English Church. He says that what he does is to go out. I would really ask him in his cooler moments to consider what would have been the fate of this Bill, if every Protestant Member of the House had left when it was under consideration. Why, the result would have been that the House would have been counted out, and the Bill could not have proceeded further. I am sure I feel every sort of consideration for the state of mind which the hon. and learned Gentleman is in; but I beg leave emphatically to deny the accusations which he has thought fit to bring against the Government.
  MR. HUTT: My name is on the back of this Bill, and I beg to state that I have every reason to believe that the provisions of the Bill as it now stands are perfectly satisfactory to that large body of Roman Catholics in the north of England who asked me to take charge of the Measure.
  Motion, by leave, withdrawn.
  Main Question put, and agreed to.
  Bill to be read 3° To-morrow.

COURT OF CHANCERY BILL.

  COMMITTEE.
  Order for Committee read.
  House in Committee.
  The Clauses of the Bill having been read and agreed to seriatim,
  MR. HADEIELDproposed the addition of the following clause:—
  "As regards the said John Arthur Buckley and the Chief Clerks to be appointed under this Act, and also as regards the Chief Clerks of all the Judges of the said Court appointed since the 2nd

  1687
  day of November, 1855, and to be hereafter appointed, it shall be lawful for the Lord Chancellor if he shall so think fit, upon the certificate mentioned in the 44th section of the said Act of the 15th and 16th years of Her Majesty, cap. 80, to order and direct their salaries respectively to be increased to the full amount authorised by such Act at any one period."
  THE ATTORNEY GENERALopposed the clause.
  Clause brought up, and read 1°.
  Question put. "That the Clause be read a second time."
  The Committee divided:—Ayes 38; Noes 32: Majority 6.
  Clause added.
  MR. KINNAIRDthen proposed the addition of a clause placing the salary of the twelfth clerk of the Registrars on the same footing as that of the eleventh clerk.
  Clause brought up, and read 1°.
  SIR JAMES GRAHAMsaid, he had already pointed out to the Committee that even when cases were brought before the Select Committee he entertained doubts as to the policy of adding such clauses as this to the Bill. One argument upon which he founded that opinion was, that such cases only formed a portion of those which might be brought forward, and it was hardly possible to enter upon them without doing injustice in other instances. In the last case, the claim was made before the Committee and decided against; and as the Government and the House had not supported the decision of the Committee in that case, he could hardly hope that they would refuse to accede to this demand, which had not been before the Committee. All the responsibility of these augmentations would rest with Her Majesty's Government; and he did not think that the course which had been pursued would afford much encouragement to Committees in the zealous discharge of their duties, or would increase the public appreciation of measures of law reform, in which merely personal interests were dealt with.
  MR. HADFIELDsupported the clause.
  MR. MALINShoped that the House would agree to the clause, which he understood would be supported by the Attorney General.
  THE ATTORNEY GENERALsaid, he had not promised to support the clause, but had only said that he would not say a word against it. The House must be left to its own decision. He was sorry to have incurred the rebuke of the right hon. Baronet, but be had supported the last claim because he believed that it was only an
  1688
  accident in the framing of the Act of Parliament which excluded the claimant from a benefit which it was fully intended that he, as well as the other chief clerks, should enjoy.
  MR. HENLEYthought it hardly fail-either to the parties whose interests were affected or to the House that this matter was not brought before the Select Committee, who could have inquired into it. The case rested now only on a statement made in that House. If the eleventh clerk was to be promoted to the place of the twelfth, was there also to be a thirteenth clerk? Instead of leaving the House to do as it pleased in this matter, the Government ought to form an opinion upon it on its own responsibility.
  Motion made and Question put, "That the clause be read a second time."
  The Committee divided:—Ayes 32; Noes 36: Majority 4.
  House resumed.
  Bill reported, with Amendments; as amended, to be considered To-morrow.

  ECCLESIASTICAL COMMISSION, &c., BILL.—LORDS AMENDMENTS.
  First Amendment read.
  "Page 3, line 13, after 'allow,' add, 'Provided always, That if a difference of opinion as to the value or sufficiency of the estates which such Committee may propose to leave or to assign to any See shall arise between the Archbishop or Bishop thereof and the said Committee, such difference shall be settled by arbitration before such arrangement as is last mentioned shall be made.'"
  MR. BERNAL OSBORNEsaid, the Amendments which had come down from the other House would have the effect of increasing and perpetuating the powers of the Ecclesiastical Commission. The original objects of the appointment of that Commission were the augmentation of the small livings of the working clergy and the relief of spiritual destitution out of the large incomes of the Bishops in some cases, and out of the estates of the Deans and Chapters in others; yet it was notorious that there had been a great waste of Church property, that large palaces had been erected for the Bishops, and increased salaries given to rich Deans, while, on the other hand, the applications for increased stipends for the working clergy had been in most cases despised or disregarded. One illustration of this was furnished by the Whit by case, which was described in the papers presented to Parliament. And hero he must beg a moment's attention from the

  1689
  hon. and learned Member for Wallingford, towhom he had listened all day and all night. The incumbent of Whitby applied to the Commissioners for a small augmentation of his living out of the renewal of the tithe rent-charge, and stated that the chancel of his church was positively falling down for want of money to repair it. The late Archbishop of York had, much to his credit, entered into a correspondence with the Commissioners on the subject, from which it appeared that although the parish of Whitby contained, by the last census, a population of more than 12,000 souls, and would require the services of a whole staff of curates, its net income was only £200 a year. The Commissioners, however, when appealed to, replied that they could do nothing in the matter. This was merely one out of a hundred cases which went to show how little the Commissioners had done for the augmentation of poor livings. He came now to the great job of the Session—the increase in the salary of the Dean of York. The House was aware that by Act of Parliament the salaries of the Deans were, with some exceptions, fixed at £1,000 a year. The present Dean of York, who was a most excellent man, and who out of his property had expended large sums for the benefit of his parishioners and in keeping up the buildings, was said by the right hon. Gentleman (Mr. Disraeli) to have been appointed because he was possessed of large property. This reason was accepted; but the Ecclesiastical Commissioners increased his salary to £2,000 a year. No application was made by the Dean for such an increase; he took no part in the matter, and stood fully acquitted; but the increase took place notwithstanding. Now he (Mr. Osborne) wanted to know why no application was made to Parliament. In "another place" a noble Earl (the Earl of Derby) said that had he been at the head of the Government he would never have consented to the increase without consulting Parliament; and yet a Liberal Government had sanctioned this proceeding, which had been carried out by an Order in Council. Was the proceeding a legal one? Would not the correct thing have been to come to Parliament for a declaratory Act? How was it that this irresponsible body had been allowed to take such a step directly in the teeth of Parliament? Some explanation ought to be given by the Government of the part which they had taken in the matter. In the other House Lord Stanley of Alderley,
  1690
  an excellent man of business, whose appointment to the Post Office he saw with great pleasure, gave notice of an Amendment which Lord Derby said was absolutely necessary, and which he should support. Somehow the Amendment had not come down from the other House, and he would, therefore, take the liberty now of moving it as an addition to the first Amendment of the Lords.
  Amendment proposed to the said proposed Amendment, by adding at the end thereof the words,—
  "In all cases where any schemes are proposed by the Ecclesiastical Commission by which the incomes of any ecclesiastical dignitaries are altered or increased, the same shall be laid before the Two Houses of Parliament six weeks at least before they are submitted to Her Majesty in Council."
  SIR GEORGE LEWISapprehended that this Amendment could not be put, the rule being that in altering a Lords' Amendment it was necessary that the alteration of this House should be relevant to the words which were amended. Now, the clause under discussion, related simply to the adjustment of the estates of the Bishops at the avoidance of a See, the amount was taken to be fixed; and if at the avoidance of the See it should be found that the estate assigned to the Bishop gave either too large or too small an income—an income greater or less than the amount fixed by law—then the Ecclesiastical Commissioners were to adjust the amount, and either deduct a portion or augment it. The amount, however, was fixed, and no discretion was left to the Ecclesiastical Commissioners. This Motion, therefore, which implied a discretionary augmentation of the stipends of the Deaneries, had no application to the clause, and could not, he submitted, be put.
  MR. KINNAIRDregretted, that though the Motion might be informal, the Home Secretary had not condescended to give some explanation of the affair of the Deanery of York alluded to by the hon. Member for Liskeard. That was a case which, taken in contrast with the case of Whitby, supplied an excellent specimen of the proceedings of the Ecclesiastical Commission. Was it correct that applications had been made for the increase of the stipends of two other Deaneries?
  MR. SPEAKERexpressed his opinion that the objection of the right hon. Gentleman with respect to the irrelevancy of the Amendment was well founded.
  SIR HENRY WILLOUGHBYwished to know who was to pay the expenses of the arbitrations that would be required to settle the value of the estates to be assigned to Sees? He believed that the practice of assigning estates was a very dangerous one, and would entail great expense. The Lords' Amendment appeared to him calculated to aggravate the evil of the existing state of things.
  The said Amendment not being consequent upon or relevant to the Amendment made by the Lords, the same was not put from the Chair.
  Lords' Amendment agreed to.
  Another Amendment, page 5, line 38, "leave out from 'income' to the end of the Clause," read.
  MR. AYRTONmoved that the Amendment be not agreed to. When the Bill left the House of Commons a proviso had been inserted, the object of which was to compel the Commission to fulfil the object for which it was created, namely, the augmentation of small livings, by attending first to local claims upon each property that came into their hands. That proviso had, however, been struck out, and now there was no check left upon the extravagant propensities of high ecclesiastical dignitaries to expend money upon objects to which there was not attached the slightest spiritual idea. There was no need for these large salaries; for they were all familiar with instances in which ecclesiastics had obtained the respect of large communities without being in the receipt of an extravagant income.
  SIR GEORGE LEWISthought the Amendment was unimportant, and might be agreed to. The proviso was introduced in that House without notice, and, in fact, he believed the only difference was that the Commissioners made provision for local claims after the sale of the original lands, while the proviso required them to make provision beforehand, which was almost impossible.
  MR. DEEDESagreed that it would be difficult, and indeed practically impossible, to carry on the business of the Commissioners if the proviso struck out by the Lords were restored. A proposal had been made for the augmentation of the salaries of the Deans of Wells and Salisbury, but the Resolution had not been carried. With respect to the case of the incumbent of Whitby, the Ecclesiastical Commissioners were anxious to increase his income; but they were assured by their legal adviser
  1692
  that that could not be done. At the expiration of a certain term some property would devolve upon the parish of Whitby, and the incumbent's income would there by be increased.
  MR. WHALLEYbelieved that the ordinary administration of the Ecclesiastical Commission was very satisfactory.
  VISCOUNT PALMERSTONsaid, it was desirable to afford facilities for the enfranchisement of lands under Church corporations, which could only be effected by a sale to the tenant of the fee simple. It was doubtful whether, without the Lords' Amendment, the Bill would not interfere to prevent those sales, which were the only method of enfranchising Church property.
  MR. CRAUFURDwished to know how it was that an Order in Council could supersede an Act of Parliament?
  SIR GEORGE LEWISsaid, it was not the fact that the increase of the stipend of the Dean of York was inconsistent with the Act of Parliament. The opinion of the counsel consulted by the Commissioners was, that the augmentation was within the letter of the Act. He only doubted whether it was within the spirit.
  Question put, "That this House doth agree with the Lords in the said Amendment,
  The House divided:—Ayes 35; Noes 18; Majority 17.
  Remaining Amendments agreed to.
  House adjourned at Two o'Clock.