HC Deb 24 May 1860 vol 158 cc1696-709

Order read, for resuming Adjourned Debate on Question [19th April], "That the Bill be now read a second time."

Question again proposed.

Debate resumed.


said, he rose to move that the Bill be read a second time that day six months. He believed he might safely say that the distinguished statesman whose name had been so often brought before the House, never contemplated the celebrity which he was to acquire in after times. Strongly as he felt on this question—[A laugh.]—That laugh proceeded from some hon. Gentleman who was probably altogether indifferent about the morality of the country. He felt strongly on this question because he thought it was an important one. Hon. Gentlemen would remember that some complications had arisen in the earlier stages of the financial arrangements which suggested the measure, and it was accordingly transferred from the position it occupied in another Act, and made a separate Bill. The Chancellor of the Exchequer and other hon. Members who had advocated the measure had nearly all regarded it in different lights, and he believed all of them had seen it in a wrong light. The Chancellor of the Exchequer, with that power of language which always characterized his remarks, had contrived to a certain extent to mystify the House upon the subject. The right hon. Gentleman had endeavoured to show that the effects of Sir J. Barnard's Act were extremely inconvenient to trade; that they interfered with the business of the City; that the public morality had really no connection with this question, and that therefore the objections to this Bill were totally unfounded. Now, in the first place, if Sir J. Barnard's Act had been so extremely inconvenient to trade, it would hardly have been allowed to exist for 130 years. That Act could not have done much harm if it had done no good. The truth was that the first two or three lines of the preamble of the Act itself contained the whole gist of the matter—namely, "Whereas great inconvenience has arisen by the wicked, pernicious, and destructive practice of stock jobbing," &c. The object of the Chancellor of the Exchequer was to place a penny stamp on time bargains, and to do that it was necessary to defend the principle of time bargains. Upon this question he (Mr. Bentinck) took issue with the right hon. Gentleman. A pamphlet had been sent to him (Mr. Bentinck), in which he found the following statement referring to a great authority in City matters: — The Times is aware that credit is lower on the Stock Exchange among themselves than among any other mercantile body; that, in addition to seventy failures in May, 1857, there were thirty-seven failures declared publicly, after which The Times declared that there was no such gambling to be found on the turf, or in any London gambling hells, or at any German watering-place. That was the opinion expressed by The Times newspaper, and yet how was the law carried out? Persons were frequently taken up for betting, and fined; and recently a publican, who had for many years carried on his business near Grosvenor-square, was refused his licence because be allowed persons to bet in a subscription-room in his house, upon the door of which was marked "private." Betting upon horse races was an amusement indulged in by the highest persons in the land, and what were its immoralities compared with the vices of the system which the right hon. Gentleman proposed to legalize? The comparison could only be paralleled by the comparison of an angel to a fiend. Then how could the right hon. Gentleman the Chancellor of the Exchequer be so indifferent upon a question of public morals—and this was essentially so—as to propose the repeal of a Bill the real object of which was to discourage such proceedings? A melancholy case had lately been brought before our criminal courts of a man who had succeeded in defrauding a bank of more than a quarter of a million, and the explanation of its disposal was, he had speculated in time bargains. In no other place than the Stock Exchange could so much money have been wasted in the time. The gambling on the Stock Exchange, indeed, was perfectly unlimited, extending to hundreds, thousands, and millions. An- other important consideration was the manner in which the repeal of this Bill would affect the immense funds placed by the depositors in savings banks in the hands of the Government. It had been said, however, that Sir J. Barnard's Act might he construed into interfering with perfectly bona fide transactions on the Stock Exchange when the delivery was not immediate. He admitted such might have been the case. But his hon. Friend (Mr. Bovill) had lately sought leave to introduce a Bill the effect of which would have been to repeal all the objectionable features of this Act, retaining that portion which would apply to the malpractices to which he had alluded. Yet, strange to say, the Chancellor of the Exchequer had refused to agree to the introduction of that Bill, but was now endeavouring to repeal the only good that could be done by the Act. Without it was understood to be an admitted proposition that gambling was beneficial, he really could not see any ground for the repeal of Sir J. Barnard's Act, and he therefore hoped the House would not sanction it. The Chancellor of the Exchequer, in the admirable speech he lately made at Edinburgh, had said that a hope of an enduring fame was, without doubt, a great incentive to virtuous actions. He (Mr. Bentinck) would like to know, supposing some pert young student of the north had risen just after that sentiment had been expressed, in the harmonious terms always adopted by the right hon. Gentleman, and had said, "That is all very well, but how about the repeal of Sir John Barnard's Act?" He thought the right hon. Gentleman would have found it rather a difficult question to answer. He could only say that this Bill was an unwarrantable attack on the morals of the people for the sake of putting a few pence into the public Exchequer, and he therefore moved that the Bill be read a second time that day six months.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."


said, he was glad that issue had been at length joined on the Bill, after so many postponements, and that there was some chance of laying the wandering ghost of Sir John Barnard at last. He trusted that the House would find no difficulty in acceding to the second reading of this Bill. The hon. Gentleman (Mr. Bentinck) had ad- verted to the case which had recently occurred, in which the servant of a bank had disposed of large funds belonging to his employers in gambling transactions on the Stock Exchange. There was no doubt those defalcations had occurred, and had arisen out of gambling in the Funds, but the case had, in fact, no legitimate bearing on this question. If it had any, it argued rather in favour of the Bill than against it, for it showed the utter insufficiency of Sir J. Barnard's Act to prevent such transactions. It was but one of many instances, well known in the legal and commercial world, which showed that the Act, notwithstanding its stringency in terms, and probably owing to that stringency, and its cumbrous machinery, was a dead letter. The hon. Gentleman asserted, too, that the Chancellor of the Exchequer, zealous for the finances of the country, had overlooked the dictates of honour and morality, and, for the sake of getting a small revenue out of contracts on the Stock Exchange, was prepared to do away with one of the existing barriers against gambling; but the answer to that was very simple. In fact, supposing the Act were repealed the next day, the law would still remain abundantly efficacious against gambling transactions. The law as to the invalidity of time bargains would remain just where it was, and the inducement to use stamps on the Stock Exchange or not to use them, would be just the same. There wore two main enactments in Sir J. Barnard's Act. The first and the few following clauses were directed against time-bargains. They were declared void; and penalties were made recoverable at the suit of a common informer against all persons who might enter into them. Time bargains were defined thus in a judgment of Baron Alderson in the Court of Exchequer:— Sir J. Barnard's Act was intended to prevent gambling transactions where stock was not delivered, and where all that was recovered was compensation for a fictitious sale, which was merely imaginary between the parties—in truth, nothing more nor less than a gambling transaction or bet as to the price of stock. Had there been no subsequent enactment he should have been very much disposed to agree with the hon. Member for West Norfolk, in the expediency of retaining this portion of Sir J. Barnard's Act. The 8th and following sections of the Act rendered illegal, under penalties recoverable by a common informer, the mere fact of a person not possessed of particular stock entering into a contract to sell that stock. That clause prohibited a class of dealings perfectly wholesome and legitimate, which had been common on the Stock Exchange when the Act was passed, and which had continued to prevail there, notwithstanding it, ever since. Nobody, he believed, objected to the repeal of those sections. The question then arose whether the House would repeal the 8th clause and those hearing on it by themselves, or whether they would repeal the whole Act? By the 18th section of the 8th &c 9th of Victoria, chap. 109, commonly called the Gaming and Wagering Act, it was provided in effect that every contract, however made, by way of gaming and wagering, should be null and void. The difference between this Act and Sir J. Barnard's Act was simply this,—that, while the Act of Victoria prohibited gaming and wagering with respect to every kind of vendible commodity, Sir J. Barnard's Act prohibited them with respect to only one species of property—namely, stock in the British Funds. The latter Act had no reference to foreign stocks, to railway stocks, or to any one of the innumerable kinds of property which might be made the subject of dealing, with the single exception of the British Funds. If it were disputed whether the Gaming and Wagering Act really applied to gambling contracts in the British Funds, every lawyer know that it was now too late to raise that question; for it had been decided by the Court of Common Pleas that a colourable contract for the sale and purchase of railway shares, where the parties intended only to pay the difference, according to the rise and fall in the market, was gaming, within the Act of the 8th &, 9th of Victoria. It followed, therefore, that the provisions of that Act would equally apply to wagering in the British Funds; and the apprehensions of the hon. Member for Norfolk that, if Sir J. Barnard's Act were repealed, fresh encouragement would be given to gambling in the Funds, were not well founded. The real truth was that Sir J. Barnard's Act had proved inefficient, and bad practically been a dead letter, and, upon its repeal its place would be occupied by the Act of Victoria, which had been found beneficial and effective for its purpose.


said, he had stated when this question was originally mooted, that as regards the repeal of Sir J. Barnard's Act he should vote with the Chan- cellor of the Exchequer; but he entertained the suspicion that the present Bill was not introduced simply to repeal Sir J. Barnard's Act, but as a portion of the Budget for the purpose of getting a revenue from contracts void under that Act. He believed that the effect of 8th &c 9th Vict, was not known to the Chancellor of the Exchequer, and that the present Bill formed an essential part of the Budget, its object being to allow those contracts which were void under Sir J. Barnard's Act to be valid. If a Bill had been brought forward to sweep away Sir J. Barnard's Act as being obsolete, no suspicion would have been created, but when the present Bill was proposed as an essential portion of the Budget, suspicion was naturally engendered. The hon. and learned Solicitor General had said that the opponents of this Bill need not have raised the ghost of Sir J. Barnard, and sent him wandering through the House. To carry on the metaphor, be (Mr. Edwin James) would apostrophise this Bill as Hamlet did the ghost of his father:— Thou com'st in such a questionable shape, That I will speak to thee.


said, the members of the Stock Exchange had very naturally objected to the stamp duty which the Chancellor of the Exchequer sought to impose on contracts to which they were parties. They had waited upon the right hon. Gentleman, and put forward representations as to the onerous and unjust nature of the lax, and they had also asked to be relieved from liability to certain penalties imposed by an obsolete Act on transactions which in themselves he maintained to be perfectly legitimate, and in accordance with the usages of the present day. Time bargains were frequently the most convenient mode in which investments could be made; and as long as the seller of stock fulfilled his contract, he did not believe the legitimacy of the transaction ought to be affected by the period at which it came into his possession. For instance, if a gentleman, being left as trustee, or in any other capacity, had £50,000 to invest, he would go a stockbroker and desire him to purchase stock to that amount. The broker would, of course, buy it in at the most favourable times, and would make a contract with the gentleman to deliver the whole amount of stock on a particular day. In many kinds of marketable securities it was impossible that business could be carried on in any other way. Foreign stocks and railways, for instance, were not dealt in from day to day, but at stated intervals. Transactions in reference to them he regarded as by no means of an equally gambling character with fire insurances, where the agreement was clearly in the nature of a bet. The hon. and learned Member for Guildford (Mr. Bovill) had used a very strong expression when he applied the word "gambling" to the transactions of the members of the Stock Exchange, but he could mention places where practices much more open to objection were carried on without question. The bargains in stock were based upon sound commercial principles, and great practical inconvenience would be felt, if, owing to any reason, these were put a stop to. The gentlemen of the Stock Exchange were quite justified in their desire to have the character of illegality removed from their proceedings, and the Chancellor of the Exchequer, with their representations before him, had acted most properly in undertaking as far as in him lay to accomplish the repeal of Sir J. Barnard's Act.


said, he had not intended to charge the Members of the Stock Exchange with gambling. He regretted that the hon. Member for Peterborough (Mr. Hankey) or his friends had not availed themselves of the assistance of the Solicitor General, who would have told them that some of the transaction; as to which they entertained such unpleasant apprehensions were perfectly legal, and were not declared to be otherwise by Sir John Barnard's Act, although, as the language of the Act was obscure, he (Mr. Bovill) was not surprised at the mistake having occurred. He had been delighted to hear from the hon. Gentleman the history of this measure, which, it now appeared, had been introduced, not from any pressing necessity for the amendment of the law, and consequently had not been intrusted to the law officers of the Crown, but in fulfilment of a contract between the Chancellor of the Exchequer and the Stock Exchange for the legalizing of gambling transactions. The House had been made acquainted that Session with a great many measures for the amendment of the law, but the proposal under consideration had originated from the Resolution by the Committee to grant a penny stamp duty on contracts, provided Sir John Barnard's Act was repealed. In drawing up the Bill for this purpose the able assistance of the hon. and learned Solicitor General had not been invoked, and the law officers had not even seen the Bill; but the Government had re- course to the assistance of some person so wholly inexperienced that it was first boldly proposed to repeal an Act, the operation of which only lasted for throe years, and which expired nearly a century ago. It was now manifest by the speech to which the House had listened that no real amendment of the law was contemplated, the only object being to carry out the agreement by which in return for a penny stamp the Chancellor of the Exchequer was to bargain away the morality of the country. He remembered the feeling of utter astonishment with which in the first instance he had heard the Chancellor of the Exchequer introduce the subject by laying it down that, as it was impossible to prevent those transactions, it was better to render them legitimate, and to turn them into a source of revenue. What portion of the community, he would ask, had ever complained of the provisions of Sir John Barnard's Act; what classes had petitioned for its repeal, and what were the grounds suggested for sweeping away that enactment? The hon. and learned Solicitor General being uninformed as to the true reasons for the repeal of the measure, had ascribed the Bill now before the House to the fact that Sir John Barnard's Act was a dead letter. Had the House ever before heard of a case in which it was thought necessary to impede other useful legislation, and to keep a Bill on the paper night after night for a month, whoso simple object was to repeal an obsolete and ineffective Act of Parliament? He ventured to think it was precisely because it was not a dead letter, and because its provisions were found a serious obstacle to the carrying out of those illegitimate gambling transactions that some parties were so eager for its repeal. He had lately prepared at considerable trouble a Bill, preserving all that was useful in Sir John Barnard's Act to prevent gambling, and sweeping away the obsolete provisions. Unless the Government wished to sanction these illegal practices, he asked why had they refused to accept his Bill? He would tell the House why. It was because it would not have fulfilled the compact between the Chancellor of the Exchequer and the Stock Exchange for a total repeal of that Act. The hon. and learned Solicitor General had said that Sir John Barnard's Act did not stop gambling; but, because Acts of Parliament were not sufficient to repress the evils they were intended to remedy, that was no reason why they should be repealed. Gaming-houses existed, but no- body would seriously propose to repeal the Acts against gaming. It was singular that with Sir John Barnard's Act before him the hon. and learned Solicitor General had omitted to state almost the only important part which affected the Stock Exchange. By that Act gambling transactions were prohibited, a penalty was imposed, and a bill of discovery was authorized to be filed, but there was also this further and most awkward provision, that if time bargains were made by way of wagering and gambling, the money so paid on such time bargains might be recovered hack by the person who paid it. Would any person tell him that that was not a restriction on the facility for gambling? It was a restriction, and that was the reason which made the Stock Exchange so anxious for its repeal. The Government proposed to leave gambling under the Act of 1845, but that Act did not say that money paid upon time bargains might be recovered back. He repeated that the effect of the repeal would be to encourage gambling, and if they encouraged it in one case, they would have the small tradesman resorting to the Stock Exchange for the purpose of retrieving his fallen fortunes, and he should vote against the second reading of the Bill.


said, that he had listened with great attention to the speech of the hon. and learned Gentleman who had just sat down, because he was in hopes that his hon. Friend would have shown that Sir John Barnard's Act was of some use. His hon. and learned Friend had failed to do so. He had failed to show that it had ever punished anybody who had committed a bad act on the Stock Exchange. He had failed to show that it had prevented such acts. It had, indeed, been a terror to honest and respectable people, but was ineffectual either for the punishment or prevention of fraud. Such was his hon. Friend's admiration of this useless Act, that he bad brought in a Bill to perpetuate some of its provisions, but with what result? His hon. Friend had not been able to find one Member of the House to support him and his Bill was negatived without a division. His hon. and learned Friend had addressed the House that as a common jury, and a very common jury indeed, but he had failed to convince them that it would be unwise to pursue the course to which they were invited by the Chancellor of the Exchequer in repealing the Act in question. It was said that the Act was to be repealed in consequence of a bargain which had been made between the gentlemen of the Stock Exchange and the Chancellor of the Exchequer. In making that bargain he thought the right hon. Gentleman had done quite right. The gentlemen of the Stock Exchange disliked the imposition of a penny stamp on their contracts, and they said, here was an Act for which none but antiquaries could have any respect, but which did, in some way or other, interfere with stock transactions. The Chancellor of the Exchequer gave up to the Stock Exchange this worthless Act, and in return it gave the right hon. Gentleman a penny on each transfer. The hon. Member for Guildford had supported the hon. Member for West Norfolk, a gentleman for whom he (Mr. Locke) entertained the highest respect, but as he sat on the opposite side of the House, he did not place the same unlimited confidence in his judgment as the hon. Member for Guildford was pleased to do, and therefore he (Mr. (Locke) was not disposed to support him on this occasion. These two hon. Members had hunted the ghost of the unfortunate gentleman up and down that House for the last three weeks; but he (Mr. Locke) trusted that this evening it would be finally laid.


said, that when the subject was first mooted he had ventured to express his regret that the repeal of Sir John Barnard's Act should have been brought forward in the shape of a clause in the Stamp Act, and the Chancellor of the Exchequer appeared surprised at the objection he made; but his surprise must have long since vanished, considering the nature of the objections the circumstance had produced. That circumstance had given rise to an assertion that the object of the Chancellor of the Exchequer was to raise a revenue by a stamp duty upon contract transactions, which in themselves were illegal and immoral, and so legalize those transactions. No stamp of any amount would make moral and legal transactions that were illegal and immoral in their very nature. Many cases came before the Courts of law which depended on documents evidently given for an immoral consideration. Whether such documents were required to be stamped or not he did not know, but he was sure no stamp would render them legal. He denied, however, that there had been any mystery or concealment about the compact of the Government to repeal Sir J. Barnard's Act. The repeal was made a condition in a clause of the very Bill that imposed the penny stamp. Nothing could be more open than the way in which the Government had brought the matter before the House. The hon. Member for West Norfolk (Mr. Bentinck) had quoted a passage from The Times, written several years ago, giving a very vivid description of the immorality of the Stock Exchange gambling. Evidently, then, Sir J. Barnard's Act had not prevented gambling transactions. But what were its negative effects? The chief objection to the measure was, not that it prevented transactions in the Funds of an objectionable kind; but that men, and those not mere gamblers only, sometimes took advantage of it to defraud those whom they had employed to operate on the Stock Exchange. But, as a London merchant, he must speak in behalf of a body of men who had been much maligned by Sir J. Barnard's Act itself and also by much that had been said during this debate. Did the charge of immorality apply only to time bargains in the Funds? Did it not equally apply to similar transactions in foreign Funds and many great articles of consumption, in which speculations were made of enormous extent and value, and which were quite as ruinous as any gambling in the Funds? Fortunes were lost and made by lucky time bargains in indigo and cotton, and nobody took exception to them. In fact, they could not he prevented, and it was an excessive detriment to liberty of action to fetter it merely because in its abuse it led to bargains which they might call immoral. The repeal of Sir J. Barnard's Act now stood on its own merits, and by voting for that repeal he should not consider himself bound to vote for the penny stamp. He found in the Parliamentary History a note of Tindal the historian, to which he begged the attention of the House:— The friends of this Bill were disappointed in its being passed. They had endeavoured to possess the public with the notion that the greater part of the Minister's (Sir Robert Walpole's) power and income and that of his friends arose from stock jobbing, and that as he was in the secret of affairs at home and abroad, he made use of his knowledge to influence the funds to the advantage of himself and his creatures. The notion was not more injurious to his character than it was false in itself, and he treated it with a becoming disdain by suffering the Bill to pass, though some parts were contrary to his private judgment. He should vote unhesitatingly for the re-repeal of a statute which was in its spirit utterly opposed to the policy of the pre- sent day, and which, as he had shown, had originated in party strife and personal malevolence.


said, that on that occasion he felt compelled to vote against those with whom he usually acted. They could not go into the motives which led to the passing of Sir John Barnard's Act, but must look at the present state of the law and consider whether they ought not to repeal the act. The Chancellor of the Exchequer proposed to put a tax upon the gentlemen of the Stock Exchange, and they came to him and said there was a certain Act of Parliament which might act oppressively towards them—which was a public inconvenience, and it would much reconcile them to the new stamp duty if the right hon. Gentleman would remove that inconvenience. He agreed to do so and in his (Mr. Malin's) opinion the bargain was a perfectly fair and open one on both sides, and ought to be carried out. Sir John Barnard's Act would, if rigidly acted upon, debar any stockbroker from selling stock unless he had it in his possession. What would the House say if a railway company were to insist that, before he began his contract, the contractor was bound to produce all his iron and wood to satisfy his employers that the contract would be carried into effect? If morality was only to be preserved by Sir John Barnard's Act, it must have been destroyed long ago. [Divide!"] As the House seemed impatient, he would content himself with saying this, that if the principle of Sir John Barnard's Act was right, it fell far short of what it ought to do, because it ought to include bargains in the foreign funds, in timber, and other commodities. He agreed with the learned Solicitor General in thinking that there was sufficient protection against illegal transactions, by the 8th and 9th Victoria, and that the right hon. Gentleman the Chancellor of the Exchequer acted wisely in seeking to repeal this Act.


said, he wished to state in one or two words the reasons which would guide him in the vote he was about to give. It had been openly stated and not contradicted, that a bargain had been made between the right hon. Gentleman and certain parties on the Stock Exchange, by which, in consideration of the repeal of this Act, they consented to pay the tax. Now, he did not pretend to be very conversant with what went on inside that place, but he believed they were a very shrewd set of follows that frequented the Stock Exchange, and that they never would have consented to pay this penny tax upon every one of their transactions unless they found that this Act put them to some special inconvenience. He had almost arrived at that conclusion before, but he was confirmed in it by the observations of his hon. Friend the Member for Buckingham (Mr. Hubbard). His hon. Friend said that transactions of a certain kind went on there— that men sometimes fell among thieves, that they got robbed; that these time bargains, very honourable no doubt, could not be carried out; and that the Act prevented the carrying of them out being enforced. Now that convinced him that a great deal of gambling went on there which the Members were desirous of legalizing. His hon. Friend said it was of great benefit to the country, but he was not of that opinion; he thought it worked great mischief, and therefore he would vote for the Amendment.


said, he also wished to state in a sentence the grounds on which he would vote against the second reading of this Bill. It totally repealed an Act in which he found several good provisions, particularly in bringing the light of publicity to bear on the transactions of the Stock Exchange. It was clear that the Stock Exchange was wiser than the House, for that body was endeavouring to make regulations to prevent the repetition of such disgraceful transactions as had lately allowed a quarter of a million sterling to be lost there. Now one of the provisions of Sir John Barnard's Act was, that a public register should be kept of all transactions that took place on the Stock Exchange, by which the light of day had been let in upon them. He therefore could not agree to the total repeal of the Act, though he should not have objected to its amendment.


said, that if an informer were to bring a qui tam action against a respectable merchant on the faith of the provisions of this Bill, the House would act as it did in the case of the qui tam actions for horse-racing—it would not only repeal the Act, but pass an ex post facto law to prevent the enforcement of the penalties, He should support the second reading.


said, he regretted to see the Chancellor of the Exchequer, having recklessly thrown away millions of the public revenue, now attempting to get it back by having recourse to the pettifogging expedient—wholly unworthy of a Chancellor of the Exchequer—of the imposition of a penny stamp upon every document connected with commerce, and upon every movement in our warehouses. They had had evidence that evening of the fact that the right hon. Gentleman had actually been negotiating with the Stock Exchange in this matter, with a view to obtain from it, a miserable contribution towards filling up the deficit which he had so wantonly made.

Question put, "That the word "now" stand part of the Question."

The House divided:—Ayes 181, Noes 58: Majority 123.

Main Question put, and agreed to.

Bill read 2°, and committed for Tomorrow.