HC Deb 29 June 1864 vol 176 cc467-78

Bill considered in Committee.

(In the Committee.)

Clause 1 (Repeal of recited Provision and Substitution of amended Provision).


said, he wished to know whether "Punch" would be abolished by this Bill?


said, he regarded "Punch" as an institution of the country, which ought on no account to be disturbed.


said, that "Punch" was generally accompanied by drum and fife, which, under the Bill as it stood, might be removed on account of music.


said, that if the hon. Gentleman would introduce a clause to provide a remedy, it should have his hearty concurrence.


said, there was a more stringent clause on the subject in the Police Act.


said, he was in favour of the exemption of that national pastime from the Bill.


said, the hon. Gentleman opposite (Mr. Cavendish Bentinck) had got some Amendments on the paper which would improve the Bill, and to which the hon. Member for Derby had no objection. The hon. Gentleman had better submit those Amendments at once.

MR. CAVENDISH BENTINCK moved that after the words— Any householder within the metropolitan police district personally, or by his servant, or by any police constable, may require any street musician or singer to depart from the neighbourhood of the house of such householder"— to insert the words— On account of the illness, or on account of the interruption of the ordinary occupations or pursuits of any inmate of such house, or for other reasonable or sufficient cause.


said, that he wished to have a definition of the phrase, "the interruption of the ordinary occupation," and to know who was to be the judge of what constituted an interruption. Was the interpretation to be left to the person who professed to be aggrieved, to the policeman, or to the magistrate? If left to the complainant it might mean anything. "Ordinary occupation" might mean knife cleaning. He was at a loss to discover the principle on which the Bill was based. There was not only the right of the person making complaint to be considered, but the right of the person complained against. The Bill seemed to aim at this—that the owner of a house had a right to regulate what was done within sound of the house. Was that an assertion of the rights of property? Some persons interpreted "rights of property" to mean the most exclusive enjoyment of it; but if the owner of a park so regarded his rights he (Mr. Ayrton) doubted whether such rights would be long respected. If the claim to remove the musicians was based on the rights of property, the Bill ought to be made conformable to the principles on which it was founded, and the owner limited to that which was annoying to him from the front of his own house to the middle of the road. What possible right could a man have to regulate every kind of noise which was within ear-shot? The public street was no more the property of a man than was the house of his neighbour. But if the right of property were not the principle of the Bill what was it? His hon. Friend the Member for Derby had circulated a little volume containing letters which had been addressed to him on the subject. Not only professors and other learned men had communicated with his hon. Friend, but ladies had also written to him, promising him if he would put down street music to play for him any evening, and signing themselves "with kind love, &c, &c." He did not wonder that the hon. Member was not proof against such appeals. Nobody could resist them. The literary Punch was also on the side of his hon. Friend against its dramatic rival, which was nothing without the overture; but a concession, he understood, had been made on that point. It appeared that the gentlemen connected with the literary Punch could not manufacture their jokes when any music was being played. The editor of another journal, whose mission it seemed to be to put an end to all harmony in the political world, was also in favour of prohibiting harmony in the streets. These letters displayed a misanthropic disregard of the feelings of other people. Because some hundred people in the metropolis were of so nervous and sensitive a character that street music did not agree with them, the pleasure of two or three millions were to be interfered with. Persons who were so easily annoyed should not sit at their front windows—if they retired to the back of their houses they would be left in peace. [Mr. BASS: The musicians come both at the front and back of the house.] People who were so sensitive ought not to select houses inconvenient to themselves. The great majority of the houses were not exposed both behind and before; and if in this great metropolis a man required such seclusion he ought to look out for a house specially suited to him, and not apply for a law to enable him to enjoy perfect quietude. There was one much greater annoyance in London than street music, and that was the rolling of carriages. If people were ill they were obliged to take means for preventing the annoyance arising from the noise of carriages; but no one would venture to say that because he was of a nervous temperament carriages should not be allowed to roll by his door. If street music were prohibited the result would be to drive poor people who wished to hear music to the public-houses. That was the case abroad. The law was directed against their servants. How was it that gentlemen who did not encourage street music found it playing before their houses? Why, it was because they kept their domestic servants buried below the surface of the ground. It was easy to understand how delighted these poor buried people must be when having nothing but a vacant area before them, they caught sight of a musician. He never yet saw a wandering Italian looking up at the drawing room window for money. He always looked down to the kitchen window. That being the case with respect to music in private streets, he asked hon. Gentlemen would it be a wise or decent thing to pass a law against these wandering Italians when it would in reality be a law against their domestic servants, who paid the street musicians to play for their amusement. If gentlemen could not control their household it would be better to leave them to the quiet enjoyment which they now possessed, which was no real annoyance to people upstairs unless they were of that sensitive character which rendered every kind of noise an annoyance. The only ground on which anything like a justification could be offered for the measure was the right of property; and, by way of limiting the exercise of that right in accordance with the law, he moved that instead of "near any such house" should be inserted "in front of any such house."

Amendment proposed, in page 2, line 3, to leave out the word "near," and insert the words "in front of."—(Mr. Ayrton.)


said, he quite concurred in the opinion that "Punch"—whether the Punch of literature or the "Punch" of the streets—ought to continue to be privileged, for both "Punches" were national institutions. [An hon. MEMBER: With the music?] Certainly with the music. Beyond that, he doubted whether the inhabitants of the Tower Hamlets would agree with their representative. The Amendment of his hon. Friend (Mr. Bentinck) was scarcely worth pressing, as there was no material difference between his proposition and that of the hon. Member for Derby. The question before the House was this—either to leave the law as it stood, or else to enact that every householder should have the absolute right to send away any street music which was annoying or unpleasant. He should be very sorry to get rid of the German bands, for some of them were well worth listening to. He thought, however, that it should be in the discretion of a householder to have everything which he considered an annoyance removed from the front of his dwelling.


said, he would be the very last to say that any annoyance to a person in front of his house should be allowed to continue against his will, but the Bill was simply ridiculous, since a special exemption was to be inserted in favour of "Punch." The right hon. Gentleman who had just sat down was in favour of the German bands; then it was to be assumed that he would desire an exemption in their favour. The right hon. Gentleman had a fine ear for music, and he believed had a very fine voice as a vocalist; and he cultivated his taste at the opera. Those who delighted in street music had no opportunity of going to the opera, but they took as much delight in music as those who could pay to listen to a Patti or a Mario. If the Bill was good for the metropolis it would be equally good for Brighton and other large towns, and he saw no reason why London should be selected for special legislation. It had simply been brought forward at the instance of such persons as Mr. Babbage, who was now commencing a crusade against the popular game of tip-cat and the trundling of hoops. Where were they to stop if such a Bill were to pass? They must legislate against the noise of carriages in the streets. He believed if the Bill passed it would be wholly inoperative.


said, the Bill as it originally stood would have enabled any person to remove street music simply because he did not like it, but the Bill as amended would so far alter the existing law only as to enable a householder to object to street music if it interfered with his calling. The existing law was differently interpreted by different magistrates. In the case of Mr. Babbage, it was held by one magistrate that the being engaged in abstruse calculations was reasonable cause for removal, by another it was held that it was not. The Bill, with the Amendment of the hon. Gentleman, would remove that uncertainty. It would be left to the magistrate to decide what was a reasonable interference with a person's calling to the satisfaction of the community. No magistrate would say that music could interfere with knife-cleaning, as suggested by the hon. Member for the Tower Hamlets; but if a gentleman were writing his speech or writing an article a magistrate would hold, on complaint, that street music would be an annoyance. People living in a place like London might be seriously annoyed by disagreeable neighbours without any hope of redress, but there was no reason why they should not be protected against avoidable inconveniences.


said, he quite admitted the principle that property had its duties as well as its rights; but he denied the right of any man to obstruct the public highway, and who could deny that a band of musicians was such an obstruction? An hon. Gentleman told him that he lost a division because his horse refused to pass through a band of German musicians. Again, the hon. Member for the Tower Hamlets was in error in supposing that the complaint against street music only emanated from a few individuals of peculiar idiosyncra- sies, who had no feeling of sympathy with the rest of the community. He had received representations on the subject from thousands of persons, including some of the first men in the kingdom, all expressing the hope that the Bill might be passed into law. Among his correspondents were gentlemen who took a great interest in the welfare of the poor; and it was incorrect, therefore, to say that the Bill was opposed by the working classes and their friends. Mr. Charles Dickens was in favour of the Bill, and he had letters from the Poet Laureate, Mr. Carlyle, all the leading artists, and between 300 and 400 of the first musicians of the day, who declared that the interruption caused by street bands rendered it quite impossible to carry on their profession. One of the most distinguished musical geniuses in Europe—a young man—had actually been obliged to give up composing during the day, and was now compelled to work at night. Mr. Tennyson wrote that he was driven from London by street bands, and the late Mr. Thackeray used to say that he had often been glad to take refuge in the fields. It was absurd to pretend that the nuisance of which he complained was kept up for the amusement of the poorer classes. What had poor people to do in Belgrave and Eaton Squares? His hairdresser recently told him that the street bands were encouraged mainly by scullery and nursery maids. Now, he had a great affection for scullery maids, but he must say that they too often poked their heads out of window to listen to street music when they ought to be attending to their work inside. He hoped the House would support the Bill.


said, he could not help thinking that they were then engaged in peddling legislation. He admitted that some persons suffered from the evils of street music, but there were evils of greater magnitude which no one sought to remove. There were people who suffered from the rolling of carriages at two or three o'clock in the morning, and yet it was not proposed that the practice should be discontinued. He would remind the House that the working classes might have their own opinion upon that subject, but they had no opportunity of expressing that opinion. If music was to be driven out of the streets, some arrangement ought certainly to be made by means of which bands, &c, would be allowed to play in the parks.


said, that the object of the Bill was merely to give effect to the existing law. The highways were meant for the passage of the Queen's subjects, and street music in them was printâ facie illegal. The rolling of carriages, on the other hand, was one of the special objects for which highways were constructed, and there was no analogy between that case and the case contemplated in the present Bill. The most efficient magistrates had always held that personal annoyance was a "reasonable cause" for ordering away a street band, and in that judgment he cordially acquiesced. In its present shape the Bill went no further. A constable could not act under the existing police regulations, and it was time that Parliament should interpose with fresh legislation.


said, he considered the subject of the Bill was not a fit matter for legislation. Moreover, the Bill was a tyrannical measure, providing for the comfort of the higher classes at the expense of the labouring poor. He would also remind the last speaker that Regent Street was obstructed by long lines of carriages whenever there happened to be anything going on at St. James's Hall.


said, that several hon. Members seemed to think that the Bill would drive music out of the streets altogether. But such was not the case. By the Bill street music would be only removed from that part of the town where it was not wanted to that part where, according to many hon. Gentlemen, the people were anxious to enjoy it. The existence of nuisances for which a remedy was either difficult or impossible was no reason why the House should not deal with an evil to which a cure might easily be applied. Such was the case with street music, and he hoped the Bill would be passed.

Question put, "That the word 'near' stand part of the Clause."

The Committee divided:—Ayes 201; Noes 87: Majority 114.


then moved to insert in line five, after the word "shillings," "or, in the discretion of the magistrate before whom he shall be convicted, may be imprisoned for any time not more than three days."

Amendment proposed, In line 5, after the word "shillings," to insert the words "or, in the discretion of the magistrate before whom he shall be convicted, may be imprisoned for any time not more than three days."—(Mr. Cavendish Bentinck.)


said, he objected to the Amendment, as carrying the penalty for a trifling offence much too far.


said, he would ask the hon. Member for Taunton, whether the imprisonment proposed was not rather too severe for what, after all, might be a mistake?


said, he thought the Amendment most reasonable and intended to persevere in it. The term of imprisonment would practically be only one day, because the day on which a man went in and the day he came out were counted.


said, he hoped the Committee would not sanction the proposal. It would be the first time they had passed a law inflicting imprisonment in lieu of a pecuniary penalty where it was impossible for the person to know at the time that he would be liable to it or not. There was no accurate definition in the Bill by which a man would be able to tell whether he was committing an offence or not. To justify such a punishment the offence ought to be distinct and patent, and not one depending on a nice question about reasonable cause.


said, that an organ grinder usually had a monkey with him, and he wished to ask whether the hon. Member for Taunton did not intend to make some provision for the monkey when his master went to gaol. Would it be sent to the workhouse?


said, he thought the monkey should be provided for at the expense of the metropolitan Members.


said, the Amendment gave very little additional power beyond what already existed, because now a magistrate might fine an organ-player 40s., and if the man could not pay he might be sent to prison.

Question put, "That those words he there inserted."

The Committee divided:—Ayes 121; Noes 111: Majority 10.


said, they had now come to the last provision of the Bill, which made it lawful for any constable to take into custody, without warrant, any person who should, offend as before described. After the alteration which had been made in the former part of the Bill, he thought that provision ought to be struck out. As the Bill originally stood, the householder might ask the musician to go away, and if he did not go away the offence was committed. But since the alteration it was left doubtful until the magistrate had given his decision, whether an offence was committed or not; and did his hon. Friend mean to say that when two persons differed about a doubtful thing one was to take the other into custody? The authors of the Bill ought to rest satisfied with the power of imprisonment for so trivial an offence, and not carry their exceptional legislation any further. He moved the omission of this provision.

Amendment proposed, in line 5, to leave out the words "and it shall be lawful for any constable."—(Mr. Ayrton.)

Question proposed, "That the words proposed to be left out stand part of the Clause."


said, the chief difficulty of the existing law was, that if a householder ordered a street musician to go away and he refused he had no power to give him into custody, and the only remedy was to summon him. If therefore that part of the Bill was expunged, the law would remain as it was at present. Of what practical use was the remedy of proceeding against an itinerant musician by summons? He hoped, therefore, that the hon. Member for Derby would adhere to the most valuable power of giving the offender into custody.


said, if he understood the argument of the hon. Member for the Tower Hamlets it was very strong. The Bill a3 it originally stood gave the householder absolute power, without any reason, to require a street musician to depart from the neighbourhood of his house, and that then, if the musician refused to depart, the offence was at once complete, and the police constable might immediately take him into custody. But the Amendments that had been introduced essentially altered the character of that part of the Bill. The demand for the street musician's departure was to be effectual law only if it was sustained by reasonable cause, and the reasonable cause was a matter for trial, not by the householder or the police constable, but by the magistrate before whom the musician was taken. It would be an infringement of the principles of liberty if, while the matter might be entirely dependent on the trial before a magistrate, the street musician was at once to undergo a penalty which stopped his means of livelihood, and that at the will or the judgment formed as to reasonable cause by a police constable at eighteen shillings or a guinea a week. He thought there was no doubt that in that part of the Bill they were treading very near to dangerous ground, and that the Bill would be much improved if they adopted the sugges-of the hon. Member for the Tower Hamlets.


said, he apprehended that the Bill would be deprived of all its efficacy if the recommendation of the Chancellor of the Exchequer were adopted. The object of the measure was to give the householder a summary remedy, and avoid the necessity of his going about to find where an itinerant musician lived in order to summon him. That Bill had been called "tyrannical;" but how was it to be compared with the tyranny of these wandering people, who, as the law now stood, at their will and pleasure might come under a man's window and render his house uninhabitable? It was necessary that the inhabitants of this great town should be armed with a summary power of abating a nuisance which had been allowed to continue too long, and as that was the essence of the Bill, he trusted that the hon. Member for Derby would not surrender it.


said, he thought there was a great defect in the clause. Let them take an analogy from the Game Laws. If a man was found on the land of another committing a trespass, and armed, he could not be taken into custody or removed from that land until certain questions were put to him and certain statements made to him; and it was necessary that all that should, be proved in a court of law. As the Bill had been altered, a street musician was to be required to move away for a reasonable cause, such as the illness of an inmate or some other ground; but the words of the clause would not render it necessary that the street musician should be told the reason why he was ordered away before he could be taken into custody.


said, his hon. and learned Friend was mistaken in the matter. The Bill had certainly been altered to some extent in deference to the suggestions of the Home Secretary, but if the Amendment of the hon. Member for the Tower Hamlets were to be adopted, why they had better all go home. The language of the clause was perfectly consistent, and he hoped the Committee would agree to it.

MR. BUTT moved that the Chairman then report Progress.

Whereupon Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. Butt.)

The Committee divided:—Ayes 54; Noes 175: Majority 121.

Amendment again proposed.


said, there was another provision in the clause besides that of a person being ill or being disturbed in his occupation, and that was that a musician might be taken into custody for other sufficient and reasonable cause. Now, surely that was much too indefinite, for under such a provision a person might be kept in custody from Monday to Saturday, and it might then be discovered that no sufficient or reasonable cause had been assigned.


said, it was something quite new to propose that such extraordinary confidence should be placed in a policeman by giving him this arbitrary power.


said, that to give a constable the power of taking a person into custody was practically to withhold from him any remedy.


observed, that if the words proposed to be left out were omitted the law would remain as at present. Offenders could only be proceeded against by summons, and when summoned to appear before a magistrate they could not be found. But he was aware of no case in which a constable had power to apprehend a person under the Metropolitan Police Act unless the offence were committed within his view. He should move afterwards the insertion of the words "within view of such constable."


said, in cases of annoyance under the Bill, the difficulty would be to find a policeman, and when he was brought to the spot the street musician would not be playing on his instrument, but probably sitting on the doorway of the householder, so that the constable could not act.


said, that in an assault case, it was not necessary for the officer to see the assault; it was sufficient if he perceived marks upon the person complaining.

Question put, "That the words proposed to be left out stand part of the Clause."

The Committee divided:—Ayes 151; Noes 68: Majority 83.


said, he would then propose the insertion of the words "within the view of such constable."

Amendment proposed, at the end of the Clause, to add the words "within view of such constable,"—(Sir George Grey.)


said, he should oppose the Amendment. He was greatly surprised at the quarter from which this Amendment proceeded.


said, unless the words "within the view of such constable" were inserted, the constable would be called upon to act upon the mere allegation of the householder, which would be totally unprecedented and exceptional.

Question put, "That those words be there added."

The Committee divided:—Ayes 83; Noes 118: Majority 35.

House resumed.

Committee report Progress; to sit again To-morrow.