HC Deb 18 August 1871 vol 208 cc1850-63

Order for Second Reading read.


, in moving that the Bill be now read the second time, recapitulated the circumstances under which the Reductions ex capite lecti Bill had been brought in and passed through the House; and the reasons which had induced him to take the extraordinary step of proposing a Bill to suspend the operation of an Act which had been passed by both Houses during the present Session, and which had only received the Royal Assent on the 16th instant.

Motion made, and Question proposed, "That the Bill be now read the second time."—(Mr. Sinclair Aytoun)


said, this was one of the most extraordinary proceedings that had ever taken place in that House. A Bill had just passed both Houses of Parliament, and the hon. Gentleman, on almost the last day of the Session, proposed the second reading of a Bill, which had not even been printed, having for its object the repeal of that measure. [Mr. SINCLAIR AYTOUN: The Bill was to suspend, not to repeal.] The only reason he could gather from the hon. Gentleman's statement for suspending the operation of this Act was, that the Bill was passed in the early hours of the morning. No person could speak more feelingly on that subject than he himself could. He knew very well, from his own experience, that no Bill to which any section, however small, of the Members of the House were opposed could be carried at an early hour of the morning. It was only those Bills which received general assent, and the details of which might be very well settled out-of-doors, which it was possible to pass at those early hours; and if this Bill had passed—knowing as he did how vigilant and critical Scotch Members were in regard to all matters relating to their own interests—he could not but assume that it received the general assent of the representatives of Scotland in that House. He was not prepared to say whether or not all the stages of the Bill were taken at early hours of the morning; but if they were, that could only have been because the Bill was generally received amongst those who had taken a special interest in bringing the question forward. As to the Motion of the hon. Gentleman, he (Mr. Bruce) trusted that as they had arrived at almost the last day of the Session, the House would meet the proposition for the second reading of the Bill with a decided negative.


said, the circumstances of the case were very extraordinary. This was the only piece of legislation that had taken place for Scotland this Session, and yet it had been smuggled through Parliament in a manner of which it was impossible to approve. He called the attention of the Government to this, because they were likely to hear more about it. The right hon. Gentleman the Home Secretary said that the vigilance of Scotch Members was great, and that he must assume that the Bill had passed with their general approval; but he (Mr. Kinnaird) would remind his right hon. Friend that the title of the Bill "Ex Capite Lecti" was not a thing to attract attention. He thought that they had a right to complain that the Lord Advocate was not present to defend the measure which had been passed through the House under such extraordinary circumstances.


said, the right hon. Gentleman the Home Secretary had expressed an opinion that Scotch Members had been consenting parties to the passing of that Act for the repeal of the law of deathbed in Scotland. It happened that a document had appeared which showed that the House of Lords was literally taken by surprise, through the fact that Scotch Members of that House were not aware of the substance of that Act. Thus, Members of the other House of Parliament were also taken by surprise. It appeared on the authority of a noble Lord, who was perhaps as good a judge of the business of the Upper House as any Member of that House, that the House of Lords was taken by surprise, through the fact that Members for Scotland in this House were also taken by surprise. That was a serious matter, because that very law of deathbed, which controlled the disposition of property by persons during their last illness, was brought before the Committee on Monastic and Conventual Institutions last Session by Mr. Adam, a learned person who was deputed by the Lord Advocate to give evidence to that Committee with respect to the law of Scotland, and that learned person by no means manifested the slightest expectation that that law was to be or ought to be abrogated. On the contrary, he stated distinctly in his evidence that it was the only law existing in Scotland which was equivalent to the law of mortmain; and he referred the Committee to Erskine's Institutes and to Shaw's Digest. He (Mr. Newdegate) had referred to those works, and he found in Ershine's Institutes that that law was described as one of the most ancient laws of Scotland; and the whole tenor of the treatise on that law manifested the value which the author attached to it, and his belief of its importance to the Scottish community. Now, the manner in which the House had been misled—indeed, both Houses had, to a great extent, been misled—with respect to the Bill, was this—he held a copy of the Bill in his hand, and on the back of it the title was "Fees of Conquest, &c. Abolition (Scotland) Bill." He took the trouble to inform himself what those "fees of conquest" were, and he found that they were certain portions of the law of entail, being in the nature of the remaining feudal or copyhold tenures in this country. He then, not knowing the terms of the Scotch law, concluded that that was a measure that could only produce a similarity with the abolition of copyhold tenures in England, so far as Scotch law was concerned; and he thought no more of the Bill. But late at night, on the 28th of July, the Bill was taken in Committee, and the whole of what related to the "fees of conquest" was struck out. The title was altered, and the remainder of the Bill relating to that law of deathbed in Scotland was alone retained. The Bill never was reprinted. When it reached the House of Lords a noble Peer, who had for 50 years been experienced in the law of Scotland (Lord Oolonsay), objected to the Bill; he seemed to have been taken by surprise at finding such a measure before the House, whilst Lord Romilly protested against the passage of the Bill without Amendments. The noble Lords who were opposed to the thrusting on of this Bill were overpowered on a division. Their protest had appeared; and the hon. Member for Kirkcaldy (Mr. Aytoun) was only echoing Lord Colon-say's objections by the Motion which he had then made in the House. That was the only form in which a Scotch Member could enter a protest against the hasty abrogation of one of the most ancient and valued laws of Scotland. The hon. Member was, in fact, only doing his duty. It was quite true that the Bill of which he had proposed the second reading was not printed; it could not have been printed by to-day; but he (Mr. Newdegate) had seen the Bill, and he vouched to the House for this—that the Bill contained but one clause, and that not to repeal the Act of that Session, but merely to suspend its operation for one year—in the sense, in fact, of the Peers who objected of the other House of Parliament—that that ancient and valued law of Scotland ought not to be totally abrogated until Parliament had the opportunity of reviewing its decision. The hon. Member for Kirkcaldy had adverted to the fact that one of the witnesses before the Committee on Mortmain in 1844—the last Committee on the subject, which this House appointed, gave evidence in favour of assimilating the law of England to the law of Scotland with respect to deathbed bequests. But that was not all. That Committee, who recommended a modification—nay, the abrogation—of a great part of the law of mortmain in England, and upon whose Report the Bequests Act for Ireland was founded, expressed themselves in these terms with respect to this deathbed law in Scotland— The only imaginable case in which these considerations may be supposed unavailable is that which your Committee have recognized as the religious objection—namely, the fear lest undue influence over the mind of a dying or languishing person should be exercised by a minister of religion in favour of charity or religion, to the prejudice of the heir. And this is certainly the objection to which they are inclined to attach the most weight. Lord Hardwicke is even reported to have said—'One of my chief reasons for laying a restraint on such donations is, lest the clergy of the Established Church should be tempted and instructed to watch the last moments of dying persons, as insidiously as even the monks and friars did in the darkest times of superstition and popery.' Afterwards, the Committee went on to say— But while they think the popular fears on this subject exaggerated, your Committee admit the propriety of guarding against possible abuses by provisions founded on such principles as that of the Scotch law of deathbed, by which the heir can defeat a will made to his prejudice within sixty days before death, if the testator were then ill of his mortal disease, or that of the Code Napoleon, which renders the confessor incapable of inheriting from his penitent; as well by safeguards similar to that contained in the measure now before Parliament for regulating charitable bequests in Ireland. Therefore, the last Committee appointed by that House to consider the law of mortmain reported directly in favour not of abrogating the Scotch law, but of assimilating the law of England to that law which had just been abrogated in this extraordinary manner, by a Bill introduced at the close of the Session, and never discussed in that House, as he could answer for it, if discussed at all, before 1 o'clock in the morning. If he wished for an illustration of the necessity for some regulations for their business, such as those of which he had given Notice, and which he should venture to propose next Session, he had it in the conduct of that Bill. He begged to repeat, that the measure introduced by the hon. Member for Kirkcaldy, the second reading of which was now proposed, was not to abrogate the Act of this Session—not to repeal it, but merely to suspend it until Parliament should have the opportunity of considering what Amendments or modifications of that hasty Act ought to be introduced.


said, he supposed that at that period of the Session it was not a very important matter whether that Bill was read a second time or not; but it afforded an opportunity of calling attention to the way in which Bills relating to Scotland had been passed. When they were brought in there were generally three names on the back of them—those of the right hon. Gentleman the Secretary of State for the Home Department, the right hon. and learned Gentleman the Lord Advocate, and the hon. Member for Clackmannanshire (Mr. Adam), whose duties required that he should always be in that House up to the latest moment of the Sitting. The Bills appeared upon a Notice Paper; but no Scotch Member could by any possibility know when they would be brought on for discussion. As a rule, no explanation was made of their provisions, and if the hon. Member for Clackmannanshire, or the Lord Advocate, or the Home Secretary, at a very late hour, there being no Scotch Member present, knows of no opposition, they very naturally—he was not mentioning it as a proceeding in which they did any wrong—moved that a certain Bill be read a second time. Then they moved again that it go into Committee, and again that it be read a third time; and in that way Bills were passed of which Members for Scotland literally knew nothing. There was a Bill passed with regard to the Register of Sasines. That Bill of one clause was introduced, carried through, and sent up to the House of Lords, within one week. The legal profession in Edinburgh knew nothing about it. It passed that House before they had seen it, and it was found to be a most objectionable Bill, and was stopped in the House of Lords. Another Bill was introduced for the purpose of enabling the Crown to send criminal lunatic prisoners to any asylum they thought fit. One of the clauses was so drawn that all lunatic asylums in Scotland, including private and subscription asylums, were made into prisons. The Bill passed rapidly enough through that House, for this simple reason—that no one knew what would be the real effect of it; but when it went up to the House of Lords statements were made with respect to it, by deputations from Scotland, which explained its real character, and all those noble Lords who felt an interest in Scotch questions were up in arms against it, and considerable discussion ensued upon it, although those who objected to it were not able to procure its rejection, and were fain to content themselves by entering their protest against it, and getting some of its more obnoxious provisions altered. He thought therefore, the right hon. and learned Gentleman the Lord Advocate would admit that they had just grounds of complaint with respect to the manner in which that Bill was passed through the House. But he had said before, and he now repeated it, that they ought to have some proper mode of having Scotch business brought before the House, in such a way, and at such times, as would enable them to discuss it. In point of fact, it appeared to him that Scotland was treated something after the manner in which a conquered province of the Roman Empire was treated. Almost all its just claims and just rights were either disregarded or neglected, and no opportunity was given to Scotch Members to become aware of the character and take part in the business brought before the House. The right hon. Gentleman the Secretary of State for the Home Department had been complimentary to Scotch Members for the vigilance with which they watched the progress of opposed Scotch business in Parliament. How far that compliment was deserved the House could judge as well as the right hon. Gentleman. He (Mr. M'Laren) did not take any credit in that way for himself; but what he would say was, that he had not the physical power to sit there night after night until an advanced hour in the morning, for the purpose of watching all the Bills brought in by the Government in regard to Scotland; and he did think that it was very unjust that any Member of that House should be required to endure such fatigue as had been imposed upon some of them that Session regarding one Bill. The House would agree with him that a fair Notice should be given, and a fair opportunity afforded, for discussing Scotch measures, and it was not right that they should be passed through the House at an early hour in the morning, without any debate or any explanation being given by the Government. In the case of the Bill now under discussion, there was really no statement made even of the objects of the measure. He was in the House at the time the right hon. and learned Member for the Universities of Glasgow and Aberdeen (Mr. Gordon) moved the omission of the clause which had been referred to; but he was ashamed to say that his ignorance of the nature of the Bill was such that he really did not know the effect of it until after it was explained in "another place." He entirely approved of the main object in view—to enable a person to transfer land by will as easily as money. He saw no reason whatever why, if a man could give away £10,000 a few days before his death, he should not be able to give away land for the benefit of his relatives. As the law existed, a man was prevented from, doing any such thing; and he said that there was no common sense in such a law. But at the same time, when the law which prevented it was repealed, he quite agreed with those who thought that some security should be taken against such bequests being made for charitable or religious or benevolent purposes, so as to protect a man upon his deathbed from being influenced by others, under pretence that he would immortalize his memory by giving his estate to some great hospital or other benevolent institution at the expense of his family; and he could not help thinking that many of the hospitals and other institutions provided by such means were frequently places for commemorating the gifts and vanity of the founders, and were too often monuments which commemorated the deprivation of relatives of their just rights. It was to protect them against such influences as were sometimes brought to bear on the deathbed that the law was framed; and some substitute for it ought to be provided; for no one would say that persons ought to be subjected to such influences. He did not think it necessary to divide the House on the question, and indeed it would effect no good result, seeing the thinness of the House. He rather understood his hon. Friend to have brought forward that question as a sort of protest against the way in which Scotch legislation had been conducted that Session, and he could quite sympathize with him in everything he had said upon that point.


said, he did not at all deny that Scotland had reason to complain of the partial inefficiency of the Parliamentary machinery for settling with dispatch the various intricate questions that arose with reference to that country. But he wanted to know whether the same thing was not also true, and was felt to be not the less true, with regard to the questions specially and peculiarly affecting both England and Ireland? But if his hon. Friend meant that Scotland had had no share in the legislation of this Session, just let them see what were the principal Bills of the Session. They were the Army Bill, the Ballot Bill, the Trades Unions Bill, the Ecclesiastical Titles Bill, the Prevention of Crime Bill, the Merchant Shipping Bill, and the Factories Bill. Now, the whole of those Bills referred to Scotland exactly in the same degree as they affected England. One Bill there was which did not refer to Scotland in the same degree—the University Tests Bill; but he was sure his hon. Friend would not say that that was a question in which Scotland had no interest. There was no class of persons in England itself who were more interested in the opening of the Universities of the country to the public than the energetic and intelligent people of Scotland; and whatever benefit was secured to the people of England by that measure, he believed that Scotch Members would admit that they also would obtain considerable benefit by it. However, he was quite prepared to admit that there had been occasions which showed that the House needed to facilitate the progress of business by a reconsideration of its rules and arrangements; and at that time he hoped that Scotland would have special attention given to it, especially in regard to one great measure—that of Public Education—in the coming year. The inconvenience, however, under which they laboured was really one wider in extent than had been represented, and it was only fair to those who looked with interest—especially at English and Irish questions—to admit that they likewise had a grievance in reference to various questions on which legislation was desirable.


said, he very much regretted that the Lord Advocate, in bringing forward this Bill, did not draw attention to it, and the changes it was calculated to effect in the law of Scotland. It evidently was meant by the Lord Advocate to do something, and it was now apparent that it had done a great deal more than he intended. The Bill had, in point of fact, abolished the whole law of mortmain, and that was a question of the very gravest character. Every stage of the Bill was passed at a very early hour in the morning; and surely it was not an unreasonable proposal that the House should have the opportunity of re-considering a measure that had been passed in that manner, which effected a repeal of a most important law, and which was either utterly unknown or entirely misunderstood by every Member of the House—not excluding the Minister within whose charge all questions relating to Scotland chiefly lay. He also thanked the hon. Member (Mr. M'Laren) for having called attention to the manner in which the Scotch legislation of this Session had been dealt with by the Government. Never in his experience had it been so badly conducted. Never had there been anything like it. All that they had done was little enough; but for Scotland they had done nothing at all—except that they had destroyed a good law. He hoped that the Government would attend to Scotch legislation a little more than they had hitherto done; for, in his opinion, Scotland was entitled to as much attention as Ireland. The Prime Minister just now said that the question was much wider than that which affected Scotland, and he spoke of some re-arrangement of the mode of procedure in that House. That was not the first time the right hon. Gentleman had attempted to throw the blame of the failure of his measures on the Members of the House, or upon its procedure. He could only say that when the Government did proceed to consider the alterations necessary to facilitate business, they would also consider the expediency of not having too great a bill of fare at the commencement of the Session, and not to put more measures in the Queen's Speech than they could reasonably hope to pass. He hoped they would not have such ill-considered measures brought in again—measures which were not in consonance with public opinion and public feeling, such as the measures which were introduced in the Budget, the Ballot, and other matters; and that Ministers would not try to carry them through that House with what they called a vigorous determination, but what other persons called want of tact and business arrangement. He (Lord Elcho) had never heard until then—and he had been for many years in Parliament—that the machinery of Parliament had been found defective; and he therefore hoped that the Government, in considering this matter during the Recess, would turn their attention to something besides the machinery of legislation. All machinery, in order to go well, required good management, and required to be oiled to prevent friction, and to prevent grit getting into it. Let the House of Commons clearly understand what it was threatened with. They were threatened, as every man could see, with some curtailment of the privileges of Members, and they must look carefully to see that their independence and privileges were not taken away. If such attempts should be made, he hoped there would be independence enough on both sides of the House to prevent their success, and that next Session they would not see proceedings similar to what they had witnessed during the present. Let the Prime Minister remember that there was no one who spoke on some questions more than he did himself. When the right hon. Gentleman talked to them about "facilitating the progress of the Business of the House," and hinted that their speeches should be curtailed, he (Lord Elcho) hoped the right hon. Gentleman would not forget the conduct pursued by a very distinguished Minister, of whom it was recorded that he made 68 speeches in Committee on a Bill to which he was violently opposed—the Divorce Bill—and that that Minister was the Prime Minister himself.


Good advice is an excellent thing. It is always freely offered, and sometimes, but not always, gratefully accepted. That depends very much on the quarter from which it proceeds. The noble Lord looks back with interest, as so well he may, upon the business of the present Session. I only hope that if in future years we are to derive any benefit from his advice, we shall be careful to avoid the example he has set. No doubt he gives the advice, in order that he may make some reparation for the mischief he has done. On the part of the Government, I have only to say that we shall be happy to avail ourselves of good advice; and I venture, in return, to suggest, that if there has been grit in the machinery of the House, no one can do more than the noble Lord to remove the obstructions and increase the polish in another year.


said, he considered the law of mortmain one of the most valuable laws they had; but he could not agree that this Act had been passed without any notice, because not only had the Bill been altered on the Motion of the right hon. and learned Member for the Universities of Glasgow and Aberdeen (Mr. Gordon), who was one of the ablest members of the Scotch Bar, but it had been opposed, though unsuccessfully, by a noble and learned Lord, whose knowledge and experience as a Scotch Judge were well known to everybody. It was therefore a misrepresentation to say that a Bill had been smuggled through Parliament that had been brought distinctly under the notice of, and its provisions opposed by, those who were of all men the best able to judge of its effect and necessity.


said, he thought the Bill a very good illustration of the manner in which the business of the Session had been conducted, for they were not waiting for people out-of-doors to complain of what had been done or left undone, but they were absolutely finding fault with each other, and making Motions to undo what they had already done. The form under which the Bill was introduced was probably not very intelligible to Scotchmen; but to Englishmen it was absolutely and totally unintelligible. Notwithstanding that it related to a subject in which the three countries were greatly interested—the subject of mortmain—it was brought in at a late hour at night, and afterwards at another late hour one of its two enactments were struck out, and its title was altogether changed. He would not apply the terms which he thought ought to be applied to the manner in which a Bill of this kind had been passed through the House. It seemed to him that every matter that was not of political consequence had been "shoved over" to a time in the morning when it could not possibly be properly discussed; and they all knew that the public out-of-doors could not get any notice at all of these matters, because what took place after a certain hour in that House was not reported. He did not think that measures of social importance ought to be passed through the House in the way in which they had been—they ought not to have been made to give way to political matters. He could not but think that such a proceeding was very much calculated to bring Parliament into contempt. As soon as the House separated they would have to give some account of the business that had been disposed of in Parliament this year, and the people of Scotland would not unnaturally during the Recess ask themselves what it was that induced the Government to shove this Bill upon one side. They were a very shrewd people, and they would naturally set themselves to inquire into these matters, and to endeavour to find out—as they very quickly would find out—what it was that induced the Government to take the course they had adopted. The whole of the ordinary legislation of the country had been thrown into a state of confusion; and though he was not going to make any complaint in the matter, he could not help thinking that if England had been treated in the same manner during the past Session as Scotland had been, they would have been everywhere asked by their constituencies in very plain and intelligible language what it was that induced the Government to take the course upon which they had resolved. They did not make alterations in the laws without proposing to benefit somebody or other by doing it. This Bill very greatly affected the people of Scotland. He must confess that he did not himself know much about it, or about the people of Scotland; but he thought that there must be something radically wrong when they found that it was necessary within three days of Prorogation to bring in a Scotch Bill for the purpose of remedying an important defect in an Act which had been passed this Session. The circumstance was a most unusual one, and there was no doubt that it would set them all thinking a good deal of the manner in which the Government had thought fit to conduct the business of that House.


said, he felt sure the House would not wish to impute wrong motives to the Lord Advocate in his absence. The right hon. Gentleman who had just spoken (Mr. Henley) seemed to think that the object the Lord Advocate had in view in introducing this measure was to benefit some particular class of persons. For his own part, he (Mr. Parker) believed that it was simply part of an endeavour in which the Lord Advocate was engaged, to clear the Statute Book of obsolete or antiquated laws. On the general question of the conduct of Scotch business, there had been some ground for complaint; but this particular question, he thought, had received quite as much attention and as much discussion as was necessary to satisfy hon. Members learned in the law of Scotland. He agreed with the Prime Minister that Scotland felt as deep an interest in the measures that had occupied the House as England could, and whatever might be the dissatisfaction of Scotch Members with the progress of legislation, especially Scotch, the Imperial measures which had been passed were more important even to Scotland than any local measure would have been.


said, he was not at all surprised that the measure should have passed through Parliament without discussion, for the terms of the Bill were such as to confound any non-professional man: and there were only two legal Scotch Members in the House at the time it was passed. If the Bill really abolished the law of mortmain in Scotland, and the hon. Member (Mr. Aytoun) would bring in a Bill to repeal it, he was certain the hon. Member would have the support of the great body of the Scotch lawyers.


said, it was absurd to ask the House to pass a Bill for the suspension of an Act which had only been passed that Session. The Act originally had two principles—the first to abolish the law of deathbed, and the other to abolish the fees of conquest. On the first point, the feeling in Scotland was not perhaps unanimous; but it was very nearly so. There was no law that had been so productive of unfair legislation and such injustice as the law of deathbed, and there was a strong desire to get rid of it. With regard to the other principle—namely, the abolition of fees of conquest—there was a good deal of difference of opinion, and for that reason the Lord Advocate agreed to withdraw that part of the Bill.

Motion made, and Question, "That the Bill be now read a second time," put, and negatived.