Commons Sitting of 10 April 1878

MINUTES.
PUBLIC BILLS—Ordered—First Reading—Idiots, &c. (Ireland) *[149].
Second Reading—Employers' Liability for Injuries [11], debate adjourned; Local Government Provisional Orders (Abingdon, &c.) * [142]; Drainage and Improvement of Lands (Ireland) Provisional Orders Confirmation * [136].
Withdrawn—Hospitals, &c. (Scotland) [21].

ORDERS OF THE DAY.
  EMPLOYERS' LIABILITY FOR INJURIES BILL— [BILL 11.]
  (Mr. Macdonald, Dr. Cameron, Mr. Meldon, Mr. Bass.)

  SECOND READING.
  Order for Second Reading read.
  MR. MACDONALD, in moving that the Bill be now read a second time, said, its main object was to put upon employers the liability to compensate workmen for injuries sustained in the course of their employment, even though those injuries resulted from the laches of their fellow-workmen. It would be in the recollection of the House that a Bill similar to the present was brought before the House some two or three years ago. It was referred to a Select Committee, which reported adversely to the principle embodied in it. He had nothing to do with the framing of that Report, and did not hold himself responsible for it—in fact, the constitution of the Committee was such that it was impossible to expect that its Report could be anything else

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  than it was, or in any way favourable to the principle contended for in the Bill. The Government had not brought in a Bill to give effect to that Report, and, knowing that the question was one of great importance, and that a large class in this country were anxious for a settlement of the question, and that the Report of the Committee offered no foundation for a settlement, he had determined, after consultation with other hon. Members, to re-introduce the Bill, and ask a decision upon it. At present no one seemed to know what the law precisely was. He referred to several legal cases that had furnished rather contrary decisions. He referred in particular to the case of Wilson v. Merry & Cunninghame, as it was the foundation of the present general reading of the law. A man named Nish was, to all intents and purposes, the manager of the Haughead Colliery, having power to engage and dismiss men, and to conduct its entire business. Nish, as the facts disclosed in the case before the Superior Court in Scotland brought out, with his own hand constructed a scaffold under which fire damp accumulated in the pit. He took a young man, an entire stranger to the colliery, down the pit to do some work. He had only worked a few minutes when the gas drew upon his lamp, the scaffold was blown-up, and the young man was killed. It was pleaded that Nish was a fellow-workman with the young man who was killed; and, though it was proved that the scaffold was constructed before the young man was employed in the colliery at all, it was held, on. appeal to the House of Lords, that a person called Robson, general manager to Merry & Cunninghame, was the manager of the mine, and not Nish, who was decided to be only a fellow-workman. He would give the House an idea of the manager's knowledge of the mine. He (Mr. Macdonald) had taken up the case for the poor widow, had spent a large sum of money upon it, and had had the present Lord Gordon as her counsel. The man designated as the manager was asked if he knew there was coal in the mine, and he answered evasively; but, when further interrogated, he admitted that he did not know whether there was coal in the pit at all. There was a case recently in Scotland, and another in England, where managers
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  responsible for accidents had been held to be in common employment with the persons injured. The law as it at present stood was, in fact, in a state of almost absolute chaos, as was shown by the conflicting character of the decisions given under it; but its general scope had the effect of enabling employers to avoid responsibility for injuries if the person injured and the person by whose default the injury was inflicted were at the time of the accident in ''common employment." Lord Cairns, in the case against Merry and Cunninghame, had, after giving his decision, added—
  "At the same time, I am not surprised that the Lord Justices who tried the case should have been embarrassed by the rather conflicting state of the authorities and decisions on a breach of the law which has only lately approached maturity."
  During 25 years they had been going from one principle to another. The decision of yesterday was not the decision of to-day, nor would the decision of today be the decision of to-morrow. Judge-made law was dangerous law, and they ought not to wait until the law had matured in the minds of Judges. There was need for an immediate settlement of the question, that it might be put on a satisfactory basis, and that the public might know what it really was. He passed to a consideration of the Report of the Committee on the subject. Clause 9 of the Report said that there could be no doubt that the effect of abolishing the defence of "common employment" would cause a serious disturbance in the industrial arrangements of the country; and that to put upon employers the whole of the liability would be to discourage the investment of capital in industrial undertakings. The Committee added, that they could not better express their opinion than in the language of a distinguished American Judge—
  "When several persons are employed in the conduct of one common enterprize, and the safety of each depends much upon the care and skill with which others shall perform their appropriate duties, each as an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and can leave the service, if the common employer will not take such precautions, and employ such means, as the safety of the whole party may require. By these means, the safety of the whole is better secured than by referring to the common employer for an indemnity for the negligence of anyone."
  He was not going to use strong words as

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  to the views of the Committee; but he thought the adoption of such a doctrine was illusory, and that this description of the mode of conducting the principal industries of the country was not true in fact. It showed how great was the want of knowledge of the ordinary business of life amongst legal men, when they thus described any of the undertakings that might be called dangerous in their character. In answer to it, he would ask how one of a number of men wheeling barrows along a plank could guard against the man behind him, whom he could not see, pushing him from the plank, and, possibly, causing him fatal injury; how a labourer working for a slater could guard against the slater letting a slate fall upon him from the roof of a house in process of building; or, how a miner who was drawn over a pulley and injured or killed, could control the action of the engine-tenter who was stationed in a house removed some distance from the pit's mouth? In mines, not one of the 500 men who might be employed had control over the conduct of the others, even though that conduct involved his own personal safety. They could not see their fellow-workmen, yet a Tory Lord Chancellor had insulted the understanding of the working men of the country by telling them they could see and control their fellow-workmen. It was monstrous to call such law on facts. Not one of the men could give notice of neglect of duty on the part of others. The result was, that unskilled men employed by the owner for his own benefit, might, and often did, light a mine and destroy the miners. He believed this doctrine of common employment was a fertile source of accidents. He would, no doubt, be told that the greater portion of these accidents were caused by the workmen's recklessness. He denied it, and affirmed that if they took the Inspectors' Reports for the last 25 years they would find that was not the case. But if there was recklessness on railways and in mines, the directors and managers were to blame. They had power in their bye-laws to check the exhibition of recklessness, and to punish workmen who were guilty of it. As far as the mines were concerned, much of this salutary legislation was due to the hon. Baronet the Member for South Durham (Sir George
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  Elliot), who had done much both in and out of Parliament to promote the welfare of persons engaged in mining operations. It was puerile and misleading to talk about these accidents being the result of recklessness on the part of the men. Colonel Henderson would be dismissed if he said that the police were too demoralized to perform their duties. What would be thought of the Commander-in-Chief if he said the Army would not fight? Let them not hear any more, then, of this argument. If the law was changed in the direction he advocated, they would hear no more about recklessness, and very little about injuries on railways, or in any of the great industries of the country. He was told that men who followed dangerous employments had correspondingly high wages. The miners had been said by the hon. and learned Attorney General to be indulging in champagne. He made the House merry on the last debate by that statement. Miners in Somersetshire were now working for 2s. a-day, in South Wales for 3s. 6d. a-day for two days of the week, in North Wales for 3s. 6d. and 4s. for three or four days a-week, in Scotland for 2s. 6d. and 3s. 6d. a-day for two days a-week. How much champagne would they get out of these wages? It was the same with the wages of the railway servants. All agreed that the most dangerous employment was that of the shunter, and yet he had the longest hours and was the worst paid. Yet they were told, forsooth, that the wages covered the risk. They were also told if this Bill became law, capitalists would take their money elsewhere. Where would they go to? In France, Germany, Italy, and most of the United States, the law was more stringent against employers than here. The provisions of his Bill could be easily explained, and he hoped they would be accepted by the House. The Preamble simply stated that it was expedient to amend the law relating to compensation for injuries. The four clauses of which the Bill consisted proposed to enact— that, where any action was brought for recovery of damages in respect of bodily injury or loss of life, it should not be any defence that the person by whose negligence the loss of life might be occasioned was employed in a common employment with the person injured or killed; that the time within which pro-

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  ceedings must be taken should be limited; that the jurisdiction should be vested in the County Court; and that there should be certain stipulations regarding injuries caused to minors. The industrial operations of this country were, he thought, carried on with too much freedom. It had been said that if this Bill were passed into law, the result would be an enormous loss to the mine-owners, because they would be made responsible for the loss of life arising from explosions which they were powerless to prevent. He denied that the Bill would have any such operation. He did not propose to interfere with the existing law as regarded accidents which the employer was powerless to prevent, or such as arose from the act of God, but only to deal with the demon of neglect; and, while the employer was armed with ample powers for the punishment of recklessness, he could see no hardship in making him liable for the consequences when those powers were not in force. If the Bill were passed, instead of 10,000 lives being destroyed every year in this country by preventible accidents, not half of that number would perish. He proposed the second reading of the Bill in the name of suffering humanity.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Macdonald.)
  MR. TENNANTmoved, as an Amendment—
  ''That any alteration in the Law of Liability of Employers for Injuries to those in their employ should be founded on the Report of the Select Committee of last Session on the subject; and that, considering the importance of the question, affecting, as it does, all classes of the community, any measures on the subject should be introduced by Government."
  He admitted that the law on the question was in an unsatisfactory state, and that many and grave defects existed in connection with it; but he thought the Bill went too far, and would cause greater evils than those it proposed to remedy. The question had been the subject of investigation both by a Royal Commission and by a Select Committee of that House, before which a large amount of evidence was given by witnesses practically acquainted with the subject. Their Report, which recom-
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  mended certain important amendments in the law as it at present existed, had been fully considered, and he confessed he was surprised that the Government had not taken any action in the matter, but had left the initiative to the hon. Member for Stafford (Mr. Macdonald). He was equally surprised that the hon. Member had entirely ignored the recommendations of the Select Committee, of which he had himself been an active Member, and that he had introduced exactly the same Bill as he had done on a former occasion. It was a mistake to suppose that the hardships of the present law were one-sided and only affected the employers; for it made an employer liable to a third person, if that person received any injury from one of his servants, although that injury might be inflicted without his knowledge, and even in defiance of his orders and regulations. Still, it was but fair that, in any enterprize, he who obtained the lion's share of the profits should have the lion's share of the responsibility. No doubt, much suffering and injustice had been inflicted in many cases, entailing cruel hardships upon those concerned, under the existing law; but, somehow or other, in the experience of things, as a general rule, the families of those who had fallen victims to accidents had been compensated by the owners, and had received great assistance from societies and from the public at large. If this Bill passed into law, that compensation and assistance would be in a great measure withdrawn. He did not wish compensation to which there was a right to be only conceded as charity; but change in the law would destroy all active benevolence. It would be hard to make an employer responsible for accidents which he could in no way prevent; but working men had power to withdraw from any employment. Where there was risk they knew of it; and, if they remained in the employment, they voluntarily faced it for the profit of the employment. Still, he admitted that was no reason why the workman should be denied a legal claim to compensation where the circumstances of the case showed he was morally entitled to it. While he admitted the distinction between persons in common employment and third persons, he thought the distinction between a manager and a workman in common employment with others should not be

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  confounded. He was, therefore, of opinion, that the law ought to be altered so as to make it perfectly clear that a workman had a full right of action against an employer, whether that employer superintended the work himself or delegated the supervision of it to an agent or manager, with the same authority as he himself possessed of issuing orders to the men engaged in the execution of it. That was, indeed, one of the recommendations of the Select Committee. But the Bill as it now stood would make the owner responsible for wilful and reckless acts on the part of any of his workmen. It would make him responsible for a great disaster, even though he had done everything that lay in his power to prevent it. There was nothing in the Bill to prevent a contract between employer and employed from standing in the same relation to each other as they did before the Act was passed. There was nothing to prevent a coal-owner from making an arrangement with a contractor to work the mine and take all the responsibility, and the contractor might be a man of little means. If the Bill went before a Select Committee, not a single clause would remain. He, therefore, hoped the hon. Member for Stafford would be content with the discussion of the Bill, and that he would withdraw it—for its provisions were open to evasion, inasmuch as it would be possible, if the measure passed in its present form, for the parties interested in it to contract themselves out of the operations of its provisions—if Her Majesty's Government gave him their assurance, which he (Mr. Tennant), appealed to them to give, that they would themselves introduce a measure next year founded on the recommendations of the Select Committee—a measure by which the workpeople might obtain the security and compensation which they had a right to demand; but which, at the same time, would not place intolerable burdens on the employer. That was the best chance of any legislation this Session, and in that case it would be competent for the hon. Member to introduce such Amendments as he thought proper. The hon. Member knew the difficulties of passing a Bill only promoted by a private Member, and more especially a Bill that affected so largely the industries of the country, and that would be sure to be opposed at
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  every stage. He begged to move the Amendment which stood on the Paper in his name.
  Amendment proposed,
  To leave out from the word "That" to the end of the Question, in order to add the words ''any alteration in the Law of Liability of Employers for Injuries to those in their employ should be founded on the Report of the Select Committee of last Session on the subject; and that, considering the importance of the question, affecting, as it does, all classes of the community, any measure on the subject should be introduced by Government,"—(Mr. Tennant,)
  —instead thereof.
  Question proposed, "That the words proposed to be left out stand part of the Question."
  MR. T. BEASSEY,being closely connected with railway undertakings, the servants of which were great sufferers through the present state of the law, wished to say that the feeling of the great mass of those who were interested in railways, in common with himself, was in favour of removing the grievances which their servants now laboured under. It was shown by the evidence which was laid before the Royal Commission appointed to inquire into Railway Accidents, to whose Report he would confine himself, that in the four years before that Commission sat, 2,960 men employed on railways were killed, and 9,002 were severely injured—a yearly average of 740 deaths, and 2,250 severe casualties. This large loss of life and number of injuries called for the attention of the House. The remedy proposed by the Royal Commission was that suggested by Lord Campbell's Act; which, they very truly said in their Report, had been most effectual in promoting the security of the public travelling by railway, but which was a dead letter so far as railway servants were concerned. In the case of Railway Companies, the master was represented by the Corporation, who were so remote from their servants, that it was almost impossible to prove their complicity with the wrongs from which those they employed might suffer By a legal fiction, the persons to whom the powers of the Railway Companies were delegated were deemed to be fellow-servants with their subordinates, and the Companies were held not to be responsible for the

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  acts of their managers which led to the injury of the ordinary servants. In his opinion, there could be no doubt that too wide a development had been given to the doctrine of common employment. The law never contemplated the vast undertakings which now existed, and in the management of which the proprietors took no personal part. By declaring that managers were fellow-servants of the workmen, the law had offered a premium on the delegation of authority from the master to the servant. He did not say that the Bill before the House offered the best possible remedy for the present condition of the law, and it certainly could not be passed in the present Session of Parliament. If it should be read a second time, it would be valuable as a declaration of the opinion of the House that the present state of the law was defective, and should be amended. The Royal Commission strongly urged the Legislature to remedy the present state of the law, stating that a Railway Company ought not by reason of its acting altogether by deputy to avoid liabilities which the existing law intended to impose upon a master towards his servant; and they recommended that—
  ''Where a railway servant could establish against any official of a Company, empowered to direct the management, or control the matter complained of, such proof of negligence as would make him liable if he were himself the master, his negligence should be deemed to be negligence on the part of the Company."
  He earnestly hoped that that principle would be embodied in the Bill which he hoped to see introduced by the Government. For a more mature proposal on the subject, they must look to the Government; and the fact that a Royal Commission and a Select Committee had been appointed to investigate the question and reported upon it, showed, he thought, that the Government acknowledged their responsibilities in the matter. The right hon. Gentleman the Home Secretary had stated to a deputation, which he (Mr. Brassey) introduced, that the subject would shortly receive the attention of the Government; and he accepted that assurance as a guarantee, for which he was very grateful, that this important question would be taken up in earnest by the Government in the next Session of Parliament.
  MR. GREGORYsaid, it was not through want of sympathy with those who suffered under the present state of the law that he had put on the Notice Paper an Amendment to the effect that the Bill be read a second time that day six months, but purely with reference to the merits of the Bill. The object of the Bill was to get rid of the principle of "common employment," and to extend to workmen the general law as regarded employers and strangers with reference to injuries arising from negligence. But under the general law, as it at present existed, by which a master was liable for the acts of his servant, gross injustice had been done. The decisions were not of a uniform character. There was the case of a gentleman's servant, who drove through the City and ran over a person who was going by. The master was held liable, although it was shown that the servant had no business in the City at all, and was not acting under the master's orders. In another case, an accident happened while a servant was driving in London. The master was held not liable, on the ground that the servant was driving after certain hours, at which, under his master's instructions, he ought not to be driving. No witness except one supported the law before the Committee who considered this subject, and that gentleman went the length of saying that it was better that even an innocent person should be made to pay compensation than that there should be no compensation at all. That was a principle which he (Mr. Gregory) thought the House would not be inclined to sanction. He was of opinion that the injustice which had been done in some cases was attributable to a misapplication or a too great extension of the well-known liability of a principal for the acts of his agent. That liability might be well adapted to cases of civil contract; but, when they came to a case of criminal or quasi-criminal liability, the question became a very different one. He thought the House ought to deal with the question, and to extend its consideration to the general paint of the liability of an employer for the acts of his servants, so as to avoid the extreme length to which this had been carried on the one hand, and the distinction which had been drawn on the other between the case of injury to a stranger,

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  and the liability for such acts in the case of injury to workmen or others in common employment. Invidious legislation of that character ought to be got rid of, and the law be put on a reasonable ground. It was quite right that a master should be liable for the acts of his agents, although there might be considerable difficulty in defining who those agents were. He hoped the Attorney General would go beyond the recommendations of the Select Committee, and legislate on larger and broader grounds. No doubt, the Report was very valuable; but he was desirous that the whole law on the liability of employers should be put on a proper footing.
  SIR CHARLES FORSTER,notwithstanding what had fallen from the hon. Member for Leeds (Mr. Tennant) as to the inutility of the present measure, thought it was an important one, and that it would remedy at least one defect in the present law by preventing the plea of "common employment" being put forward as a defence to an action for compensation for injuries. It would also effect a considerable diminution of accidents. The Mines Regulation Act, of which this Bill was practically an extension, had had such a result; for under its provisions accidents in mines had been reduced from 34 cases in 1872 to only three cases in 1876. In the interest both of employers and workmen, it was desirable to redress the grievance which existed. It was not reasonable to ask the hon. Member for Stafford (Mr. Macdonald) to withdraw his Bill, considering that it had now been twice before the House, and that a great number of Petitions from workpeople had been presented in its favour. He suggested that the House should affirm the principle of the measure, and that it should then be referred to a Select Committee to see what modifications it required.
  MR. GORST, in supporting the Bill, said, he thought the law of the liability of employers to employed required the consideration of Parliament, for it was in a most unsatisfactory state. There was no doubt it was far too extensive, and that if it were not for the manner in which the law was administered by juries, its reform would have been called for and effected long ago. Every one of them who employed a coachman might almost be totally ruined. Suppose the coach-
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  man, or a greengrocer, drove over his hon. and learned Friend the Attorney General, the amount of damage that would be sustained would be so great as almost to crush even a wealthy man. The state of the law as to the liability of employers being in this way indefensible, there was also an unreasonable and improper exception to an unreasonable and improper law. He confessed he liked the principle of the Bill, which was simple and intelligible. He agreed with the hon. Member for Stafford (Mr. Macdonald) that the distinction between negligence that injured a servant and negligence that injured a third person should be removed. If an employer was liable for the negligence of his servants to a third person, he should also be liable for the negligence of his servants to one of his own employed. All that was contended for by the Bill was that the invidious distinction should be done away with, and that employed and third persons should be put on the same footing before the law. Everybody who had addressed the House had admitted the necessity for reform in the direction of the Bill. The question was, then, one as to the best course to adopt in order to procure the necessary reform. The Bill could not possibly become law this Session, and their only hope was in the Government taking action. They waited with anxiety to hear what his hon. and learned Friend the Attorney General would say on the subject. He thought the Government would be extremely unwise if they took the Report of the Select Committee as a representation of the opinion of the House and the country. If the Government would promise to bring in a Bill, and carry it through its stages, he did not think it would be necessary to take a division on the present Bill.
  DR. CAMERON, in supporting the Bill, said, that its advocates objected to an exception being made in the general law against a particular class. The greatest danger alleged against the Bill was that it would make an employer liable for an act even of disobedience on the part, of a workman. But it was forgotten that an employer was so liable where the person injured was not his workman. It had been asked why the Bill was not framed on the lines of the Report of the Select Committee; but the Report of the Select Committee only

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  embodied a compromise in support of which no principle could be adduced; whereas the friends of the Bill contended for the abolition of exceptional legislation against a certain class, and that the invidious distinction between injury to a stranger and injury to a workman should be removed. The ordinary law of the land and of every country of Europe was that an employer was liable for injuries sustained by any of the general public by the negligence of anyone in his employment. That was a law necessary for the public welfare. Our Courts of Law had held that any attempt on the part of Steam-Packet Companies or of Railway Companies to contract themselves out of their liability was unreasonable. The only exception made to the general law in relation to the liability of employers was in regard to the case of fellow-workmen. It was an entirely modern exception, which legal men had admitted was not laid down before 1837. In Scotland the matter had stood on a different basis till much later. There they were able to trace the genesis of the law, and there they had an example of what would be the effect of this law if passed. Up to about 20 years ago the law made no exception in cases of workmen injured by the negligence of fellow-workmen. The Report of the Select Committee admitted this. In 1858, however, two appeals came before the House of Lords which upset that law. But while it was then admitted that a workman had no claim for injury caused by a fellow-workman, an exception was made in the case of foremen. That exception was disallowed in a subsequent case, and last year a contractor in another case was held to be a fellow-workman. While the general law had admitted the liability of an employer, these exceptions in the case of workmen had in a hap-hazard manner been allowed to arise. He drew attention to the unfairness of the present law as between employers. A small employer, who was his own manager, was responsible for injuries to a workman, though that master paid more attention to his business and its details than a large employer, from whom compensation could only be got if it was proved that he was personally negligent. From public Companies, it was held that no compensation could be got by workmen at all. It was said that the Bill would entail great
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  hardship upon the employer, and that the owner of a powder mill, for instance, would be liable to very heavy compensation; but the owner of such a mill was already liable to a terrible extent to the public. He (Dr. Cameron) had no objection to an amendment of the general law. What he complained of was, the exemption of workmen from compensation. He could not admit that the extent of the liability could stand against the principle of liability. He only urged liability in the case of negligence, and that whatever the law in the case of the general public, the same should be the law as regarded workmen, and for compensation in a case where there had been no contributory neglect on the part of the injured workman. As to the general policy of the charge, he quoted the opinion of Lord Chief Justice Cockburn in favour of the law that used to obtain in Scotland on this subject, and he also referred to the opinion of Lord Justice Brett, who had spoken in the strongest manner in favour of the principle laid down in the Bill. They were now told that if this measure were passed it would cause a great disturbance of the relations of capital and labour. This was the language of mere theory and not of experience. The principle of the law in Scotland up to 1852 was the same as that of this Bill. If the change now proposed would disturb trade, the converse must be true. But it had not been proved that by granting the immunities to Scotch capitalists wages had been increased, or that the amount of money invested in these industries was now greater because of them. They were told that such a change in the law would drive industries to other countries, but this country was the only one in Europe where this exception against workmen existed. In Germany and France the plea of a common employment was not allowed to bar the workman's claim to compensation, and not very long ago the Imperial German Parliament passed an Act rendering it impossible for the proprietor of a mine to contract himself out of his liability for injuries sustained by persons in his employment at the hands of their fellow-workmen. The common law of the country protected the ordinary workman, and this Bill struck at exceptional law which had arisen since. He urged that the Bill should be read a second time, and that

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  it should then have engrafted upon it such clauses as the Government desired for the amendment of the general law with regard to employers' liability. If the law were so amended that in cases where servants acted in direct contravention of orders, and thus caused accidents to any person, the employer should not be held responsible, no hardship would occur.
  MR. HARDCASTLEthought that cause had been shown for some alteration in the present law; but he held that some of the arguments urged in favour of it were founded on a false assumption. There was, he contended, a very material distinction in principle between the liability of employers for accidents to the general public and their liability for accidents to their servants. For instance, when a builder built a house, he erected a hoarding and caused a certain amount of obstruction and public inconvenience in the street. If, during his operations, one of his men, in ascending a ladder, let a brick fall on the head of a fellow-workman, under the existing law, that fellow-workman, being in a common employment, would have no claim against the employer because he was engaged for his own profit, as well as his master's, and must submit to the risk incident to his calling. But if a brick fell outside the hoarding and injured a foot-passenger, the foot-passenger would have a claim for compensation, because he had no share in the profit, and it would be unfair that the public should have to submit, not only to the inconvenience arising from the builder's operations, but also to an amount of danger from the acts of persons engaged for their own profit. Working men, he believed, were under a delusion as to the advantage that would be secured to them by Bills like the present. There was more than merely theoretical evidence to show that, in consequence of legislation of that kind, wages were reduced. As to the effect of the Mines Regulation Act, Lord Aberdare, in an address given the year before last at Bristol, stated that, after a very close and careful investigation, he found that, whereas the actual wages paid were only 7½ per cent more than were paid in 1869, the cost of producing the coal was 42½ per cent more, owing to
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  various regulations and interferences with the ordinary course of labour. Now, it was quite possible, that if those regulations had not been so expensive— thus adding 35 per cent to the cost of raising the coal—wages would have risen, not 7½ per cent only, but 15 or 20 per cent, and yet the masters might have suffered no damage. Thirty-five per cent on the cost of raising the coal was equal to 15 d. per ton, and, as there were 130,000,000 tons raised in this country, the cost of the Mines Regulation Act was something like £9,000,000 sterling per annum. It behoved them to be careful how they pushed their legislation to an extent that would materially affect the comforts of the working classes and reduce their wages. He believed that a large proportion of the working men would prefer to take, as all must do, their own risks in life rather than accept the reduced wages which Bills of this kind would probably bring with them. Again, take the case of domestic service. If one maid-servant in a house left a coal-scuttle on the stairs, and another maid-servant stumbled over it and broke her leg, in ordinary circumstances kindness would be shown by the employer to the sufferer; but, if an action-at-law could be brought against him, because, perhaps, some needy attorney saw a chance of making something out of the case, the effect would probably be that the employer would try to do with one maid-servant instead of two, and thus the demand for domestic servants would decrease. Beyond that, there would be no end to claims and actions for compensation for damages. He did not say that the present law was quite satisfactory; in fact, it was defective in many instances. If an accident happened to a railway train through the negligence of the driver, and the guard was killed, the principle of a common employment applied; but if a ticket-clerk travelling in the train met with an injury, it appeared rather hard that he should be prevented from maintaining an action against the Company. Again, where authority was delegated by masters to managers, superintendents, and foremen, those persons who received such delegated authority ought to be regarded as representatives and agents, and in such cases the master ought to be liable. But if protection were carried too far, it

  1059
  would diminish the remuneration of workmen, and be injurious, instead of beneficial, to them.
  MR. SHAW LEFEVRE, as a Member of the Select Committee who had sat on the question of the liability of employers, said, he could not agree with the hon. and learned Member for Chatham (Mr. Gorst) and other speakers in the debate, in denouncing the principle of the responsibility of principals for the acts of their agents. The effect of that general law of responsibility was most useful in inducing employers to be more careful in the selection of their principal servants. But, more than that, the principle was almost universally recognized and embodied in the law of every country in Europe, and it would be impossible to abrogate it. The question arose, whether there should be an exception in the case of workmen. The exception arose from the idea that working men in common employment had a certain degree of control over each other, and could take measures for their own personal safety. But that doctrine, of late years, had been carried too far; for the Courts of Law had extended the doctrine as to common employment so as to bring within the same rule of law not only workmen engaged in the same employment, but all intermediaries acting between employers and their workmen. Again, it had been held that two servants, though they might be engaged in different operations, and in two distinct departments of work, came within the rule of law respecting common employment. He thought that injustice should be remedied, and supported the Bill in so far as it dealt with it. He would refer to the Scotch law on this subject, quoting a legal judgment to show that the law of Scotland was at one time, not very long ago, very different from that laid down in England on these two points. Though he could not go the full length of the hon. Member for Stafford (Mr. Macdonald)—who, in his idea, had gone too far in the principal provisions of the Bill—he thought what had been the law of Scotland till the House of Lords overturned it should be adopted for both countries. As to the proposal of the hon. Member for Leeds (Mr. Tennant), to relegate the matter back on the Report of the Select Committee of last year—while agreeing that that Report was extremely unsatis-
  1060
  factory, he thought the proposal to reopen the inquiry was one which could not be entertained. Nor did he fall in with the other suggestion thrown out by the hon. and learned Member for Chatham as a feeler, he supposed, for the Attorney General, that we should wait for the Government to bring in a Bill—no matter of what kind—on the subject. Two years ago the Home Secretary had admitted that the law was unjust, and, at his instance, a Select Committee had been appointed, and two Members of the Government had been placed on the Committee—the Attorneys General for England and Ireland—but neither of those Gentlemen gave any assistance to the Committee; the Attorney General for England had attended only four times, and had not been present when the Committee considered their Report. Consequently, the question had not advanced by the assistance of the Government; and, on the whole, although he thought that the Bill of the Member for Stafford went too far, he was of opinion that the wisest course would be to have the Bill read a second time, with a view to its being considered and modified in Committee.
  MR. SERJEANT SIMONsaid, that the hon. Member for Stafford (Mr. Macdonald) could not have contemplated the extent of the operation of the Bill if it became law. It would be utterly intolerable if the principle of liability for servants were introduced into domestic life. If that were done, a man would be in a state of perpetual liability for the neglect of his domestics, and would minimize the evil by endeavouring to keep as few as possible. But, with the exception of that point, he agreed with the hon. Member, and should support the Bill, believing it to be capable of improvement in Committee. At present, the law seemed to be utterly unreasonable and indefensible in its operation against humble persons who sustained injury in the course of their avocations, and were debarred from obtaining compensation by reason either of their being fellow-servants, or of being in the common employment of the same principals with the person or persons who were the immediate cause of the injury. The doctrine of common employment had been pushed to an unreasonable extent. He would mention one or two cases. In one case, an engine-

  1061
  driver had driven an engine into a workshop and killed a carpenter who was at work there. In another, a clerk in the service of a railway had been sent on a business errand for the Company on their line. A collision took place. The injured passengers were able to recover compensation, but the railway clerk was not, because he was in a common employment—that was to say, in a common employment with the engine-driver whose negligence had occasioned the collision. Such a state of the law was a palpable injustice and an absurdity, and he would amend it in these particulars; so that all persons in authority representing employers, and having the care and direction of persons carrying on works, should be held to stand in the place of their masters, and that the latter should be held responsible for their acts. Employers, no doubt, were kind enough to persons injured in their service; but that was no apology for the present state of the law. He would support the second reading of the Bill, in order that a change, such as he had suggested, might be made.
  MR. BURTpointed out that no speaker had defended the law as it stood. The general law had the merit of antiquity, if there was any value in that; but the exception was quite modern, and was confined to this country and some parts of America. No such exception existed in Scotland till 1856, and that exception was established in spite of the protest of the most eminent Scotch Judges. However, he would leave the legal aspect of the question to lawyers, and deal with it chiefly as affecting the workmen. The exception to the law of the employers' liability for injuries which deprived a servant of damages for injury occasioned by the act of his fellow-servant rested on the assumption that a workman undertook all the risks incident to his employment, including the risk of negligence on the part of a fellow-servant. This he believed to be a pure fiction. That exception, he submitted, ought to be looked steadily in the face. Suppose a railway passenger and a guard were both injured in an accident. The former would get compensation, but the latter would not; though, as far as knowledge of risk was concerned, he failed to see any difference between the cases of the
  1062
  two men. When it was laid down that the employer was not responsible to one servant for the acts of another, it became necessary to define the phrase "fellow-servants," which now meant persons taking pay from the same master. The principle involved was that one servant knew of the risk incurred by working with the other; but that, he could assure the House, was not the condition under which the mass of the working classes performed their work, and was certainly not the case in mining, except to a very limited extent. In mines, the men worked together in sets of three or four men, each of whom might properly be held to be in common employment in this sense; but any responsibility for an accident caused by the act of one of those four men could not justly apply to the other 400 or 500 men who might be in the mine. He contended that the employer, who selected his workman with a knowledge of his ability, and with the power of dismissing him, was liable to his servants, where the latter could not have that knowledge. To this principle he allowed an exception—namely, where the workmen had an opportunity of knowing each others' qualification for the work in which they were engaged. As for the Bill itself, it could not justly be said to be too sweeping, and he did not know how the hon. Member for Stafford could have avoided the abolition of the absurd distinctions between fellow-workmen and others existing under the present law. When that had been abolished, it would be necessary to define the liability of the employer. He did not think it a fair objection to the Bill that it would tend to recklessness on the part of the workmen, for a similar argument had been urged 30 years before about Insurance Companies. He denied that the question at issue turned upon money considerations at all, so far as the working men were concerned, and contended that the proposed change would not at all prejudicially interfere with the great majority of employers, who conducted their works in an efficient and proper manner. At the same time, its operation must certainly tend to make careless employers more careful than they were at present.
  MR. PULESTON, though in favour of the principle of the Bill, should deem it to be his duty to vote for the Amendment of the hon. Member for Leeds

  1063
  (Mr. Tennant). The discussion, which had been a very useful one, and for which they were indebted to the hon. Member for Stafford (Mr. Macdonald), seemed to him to have proved conclusively that the question was one which could be safely and satisfactorily dealt with only by the Government. A measure introduced by them, providing compensation for injuries such as those to which the Bill before the House related, consistently with the interests of employers and employed alike, would, he felt sure, meet with very general support. Voluntary efforts had already done much to remedy the evils complained of, and he hoped nothing would be done which would tend to diminish those efforts.
  SIR HENRY JACKSONremarked, that the hon. Member for Morpeth, in a very moderate speech, had discussed the question entirely from the point of view of the workmen. But the Select Committee, in adopting the Report, which he (Sir Henry Jackson) had had the honour to submit to them, had viewed the subject from a different point of view. They had considered it to be part only of a far larger subject— that was to say, of the question of how far it was just or expedient to make any man responsible for any act of another man which he had not himself authorized? Many of the previous speakers had admitted that the present law went dangerously far. What they complained of was the invidious exception even to what they thus admitted to be a bad law. If a proper limit could be put to the general legal liability of a master for acts for which he was not morally responsible, whether such acts caused injury to strangers or to his own workmen, then strangers and workmen might reasonably be on the same footing; and if the promoters of this Bill, or the Government, were to bring in a Bill for this purpose, he would heartily support it. But that was not the line of action adopted. The hon. Member for Stafford and his Friends say— "We detest a distinction aimed directly against working men, and we will have none of it. Put working men on the same footing with other people, and then, and not till then, will we discuss the justice of the law, and, if it is found unjust, we will think of remedying it." This was the most favourable way of putting their case;
  1064
  for the evidence actually given by working men before the Committee showed that the witnesses had not thought the matter out; and that they, in fact, relied on the master being made to pay, because he was presumably better able to pay for a fellow-workman's default than the fellow-workman himself. A demand, based upon such grounds as those, was not likely to commend itself to the House. No doubt, the present law did often operate in practice so as to prevent a working man from obtaining compensation from his own employer for injuries which would have entitled him to compensation had they resulted from the act of a man, not in the same, but in some other employment. But that resulted not from his being a working man, but from his being engaged in the same employment, which really meant in the same enterprize or risk. It was entirely wrong to say that the law was made against the working classes. This statement was untrue historically, and untrue in fact. The well-paid Chairman or Manager of a Railway Company was just as much within the law as a plate-layer, or as a partner in a private enterprise— but the workman was within the rule just for the same reasons and to no greater extent than the other persons mentioned. The principle adopted by the Select Committee was, therefore, this— that where a number of persons were engaged in a common enterprize, all those persons in their several grades undertook to run all such risks as were involved in that enterprize, and that no one of such persons was liable to any other of them, except for his own personal neglect or default—for then he was, of course, liable by the present law. This legal principle had existed from the earliest recorded times, and, until very recent years, no attempt had been made to break through it. The first attempt was made in 1837, and failed, and all subsequent attempts had met with the same result. Experience and the presumption arising from antiquity were, therefore, strongly in favour of the law as it stood—at any rate, to this extent—that the burthen of proof was on those who undertook to alter the law. The Committee considered that this burthen had not been satisfied. They were, however, of opinion, that as the law required that the negligence which gave a remedy against a master

  1065
  should be personal negligence, it was right that no servant should be so placed as that it might be said he had no master who could be personally negligent. At present, a Railway Company or other corporate employer could not be personally negligent, because they were impersonal in their constitution, and many employers delegated all their authority, and took no personal interest of any kind in their work. In cases like these, it was only right that the agent who acted as master should be in the place of the real master for liability as well as for authority, and to this extent the Committee advised a change. Such a change, however, was perfectly consistent with the maintenance of the doctrine of common employment—the principle of which was, that all who entered into the same employment undertook all the emergencies and risks resulting from such employment. The right hon. Gentleman the Member for the University of London, in the Report which he submitted to the Committee, fell foul of the enunciation of this doctrine by some Judges, because it implied a contract which was, as he asserted, never dreamed of by either party. But, surely, the right hon. Gentleman might remember that the term, "implied contract," was merely a legal mode of expressing those natural obligations which the law considered to flow from, if not to be contained in, every arrangement of this kind. Nor did the right hon. Gentleman see any difficulty in implying a contract, on the master's part, to provide everything required for the workman's safety, even to the extent of providing him with careful and competent fellow workmen, and guaranteeing their competency and care. Notwithstanding his deep respect for the right hon. Gentleman, he was bound to say that the Report which he had prepared was not altogether consistent with itself, for i1 did not absolutely adopt the principle of the hon. Member for Stafford, and make the master responsible for the neglect of every workman; but it proposed to establish a hierarchy of many gradations, and to extend the liability only down to the lowest on this scale. But would it be possible to stop there, or was there any logical standpoint short of the entire change? Again, it suggested a limit to the liability of the master, by making the "funds of the
  1066
  enterprize" alone liable for such injury. He confessed, that in the case of a private employer, he did not understand that phrase; but it indicated a very natural shrinking from the entire adoption of the principle favoured by the right hon. Gentleman. The truth was, that the subject was not yet fully understood, and public opinion was not sufficiently mature. There was a general cry on the part of railway servants that they were the victims of class legislation—a cry than which nothing could be less true, but which certain persons seemed disposed to repeat without consideration. If the Government would legislate on the whole subject of liability for accidents, and put the law on a footing of justice for all, he would heartily support them; but, in the meantime, he felt bound to vote for the Amendment of the hon. Member for Leeds, as that adopted the two practically identical Reports of the Royal Commission on Railways and of the Select Committee of this House.
  MR. LOWEsaid, the hon. and learned Baronet the Member for Coventry (Sir Henry Jackson) had supplied what he (Mr. Lowe) had felt throughout the debate to be a great want, and that was that someone would rise and say a word in favour of the Report of the Select Committee. The hon. and learned Baronet approved strongly of the present law, because he thought it was venerable from its antiquity; but nothing was more certain than that the whole of it had been created since 1838. It had not the slightest claim to antiquity. The very term "common employment" was new, and in the sense in which it was now used, had not been known till comparatively recent times. The law had been the creation of Judges, and it had been made in the most objectionable manner that could possibly be conceived. It had been introduced bit by bit as occasion required, and the manner by which that had been done was, not in the Judges saying— "This or this is the law;" but by now on one occasion, and then on another, on some statement of fact, supposing contracts which never existed, and had never been even heard of, until the emergency from which they were excogitated, arose. Thus came to be established, bit by bit, a body of jurisprudence by which working men were deprived of their right to compensation.

  1067
  Yet that was what the hon. and learned Baronet did not hesitate to speak of as a venerable institution. Now, he, for one, was entirely opposed to the doctrine of "common, employment," believing it to be a figment which never should have been introduced into the law, and certainly ought never to have been introduced without notice to the persons from whom rights were thus taken. He hoped, therefore, it would be entirely abolished. He could not, however, agree with the hon. Member for Stafford (Mr. Macdonald), that the House ought to rest there. Something ought, he thought, to be substituted, though upon that point he was, of course, open to conviction. He was of opinion they could not do better than substitute a rule, that in those cases in which a man delegated his authority, cutting it into strips and dividing it among several persons, if any one of those persons caused an injury to his fellow-workmen while acting under his orders, he, as the head of the establishment, should be bound to make the compensation good, which necessarily arose from the acts of the persons exercising the authority so distributed. That principle, he would admit, did not find acceptance with the Committee, and he could not concur with the view which they took. He would simply express a hope, in conclusion, that the hon. and learned Attorney General would turn his attention to the subject—that he would take a large view of it— and would lay before the House a proposal a little more satisfactory than a recommendation which seemed to him to be a mere trifling with the subject.
  THE ATTORNEY GENERAL(Sir JOHN HOLKER)said, he could assure hon. Members generally that the Government were not indifferent with regard to the question—on the contrary, they had considered it with the greatest anxiety, and had been endeavouring for some time past to frame a measure dealing with the question in a manner which might be regarded as satisfactory. The House, and all reasonable men, would, however, he thought, agree with him that there were few subjects which presented so many difficulties. It might not, of course, be difficult to remove what was called the exception, and to place the law as to workmen on the same footing as it stood in connection with the
  1068
  general public. But then arose the question, could they do that without entirely prejudicing the interest of commerce and trade, without restricting the application of capital, and without embarrassing the operations of trade and manufactures. If they did that, instead of conferring benefit on the working classes, they would be doing that which would be to the detriment of the working classes. It had been said that the law with regard to the liability of employers for injuries occasioned, whether to the public or to their own servants, was not on a sound footing. There was great force in that remark. The law as it stood was a very harsh and severe law against employers. Under its operation, the employer was liable with regard to a third person for injuries inflicted upon him by the neglectful act of his servant in the course of his employment to the full extent of those injuries, though he might have used the greatest possible care to select prudent and skilful servants, and though the injuries might have been inflicted in direct contravention of his instructions. With regard to the servants in the employment of a master, the latter was liable for his own negligence or that of his partner, and also liable if he did not provide adequate and proper material, or safe machinery, or did not employ capable and skilful managers and servants. The only difference between the liability of an employer to the public and his liability to a workman was that in the case of a servant, as the law stood, if a servant could show that he sustained injury from a fellow-servant, and that fellow-servant was not competent, the master was liable; but if the injury was inflicted through the neglect of a fellow-servant, in that case the employer was not held responsible. It was said the law acted harshly. He did not think it perfect. It was, no doubt, unsatisfactory, but it did not necessarily follow that it could at once be set right. If they could make a tabula rasa of legislation, and begin afresh, the general opinion would probably be in favour of making an employer liable for his own negligence, for the negligence of his partners, and for negligent acts committed under his express authority, but no further. A law of that kind would be founded on justice, and it might satisfy the hon. Member for East

  1069
  Sussex (Mr. Gregory), and even the hon. and learned Member for Chatham (Mr. Gorst), who was rather difficult to satisfy. In that case, the grievance which had been set up by the workmen would be swept away, and they would not have the slightest ground of complaint. Obviously, therefore, the workmen complained now not because they were dealt with unjustly, but because they were dealt with differently from the general public. If such a law as he had indicated was right and just, why, it might be asked, did not the Government propose it? Well, existing customs had become so inveterate, that he doubted whether it would be possible to get Parliament to sanction so radical a change. Contracts, and a variety of other transactions of life, were founded upon the existence of the law and its supposed continuance. What would happen with Railway Companies, for instance, if such a law were enacted? They would cease to be liable for accidents, and hon. Members could picture to themselves what a public outcry the introduction of a Bill to that effect would raise. As a way of meeting the difficulty, it might be suggested that Railway Companies and public carriers generally should become the insurers of passengers as well as of goods. But, then, the Government would be encountered by the directors of railways and others, who would declare that to be the most monstrous proposition ever laid before Parliament or the world. The fact was, the Government in a matter of this kind could not be entirely logical; it must confine itself to legislation which was practical, and if some discrepancies in the law were found to exist—if the law operated more hardly against one man than another—all that could be said was that that was unfortunate, but that it could not be helped. He would admit there was much ignorant clamour throughout the country on the question; but the grievance of the workmen was, he thought, to some extent, sentimental. There was an agitation against the existing law, but he did not think the House should dread that agitation. He did not think it should shrink from doing its duty because there was a clamour throughout the land for a sort of legislation which the people who clamoured for it did not understand. But,
  1070
  though he thought the workmen's grievance to some extent sentimental, he did not think it altogether so. It had been pointed out that in cases where there was a corporation, or where the masters deputed the management of their business to others, there was no one responsible, and it was hardly possible to claim compensation for injuries. He thought that was not impossible, and that there should be somebody who should be responsible for the acts of the corporation. Some change in the law in this respect ought, therefore, clearly to be made. What change the Government would propose he could hardly say. It was very difficult to know exactly what could be done until they came to frame a Bill and to put its provisions into black and white. Certainly, they would go to the extent indicated in the Report of the Committee, which appeared to him a fair and reasonable one. Perhaps it might be necessary to go further. Perhaps they might find it expedient to provide that a master should be responsible for injuries caused by the neglect of servants, to whom practically the duties of master were delegated; though here, of course, the difficulty of drawing the line would arise—a difficulty, but for which, his hon. Colleagues and himself might frame a Bill and have it ready by to-morrow morning. To go a step further, and make masters responsible for injuries inflicted by anybody who happened to be in a superior position in their service, would be unjust, and would almost have the effect of driving them out of the trade in which they happened to be engaged. He could not go that length. But he would certainly go, as he had said, the length of the Report, and perhaps somewhat further, in the direction he had indicated; and also, perhaps, in the direction of modifying the meaning of the term "common employment," so as to distinguish between workmen employed in perfectly separate and distinct branches of employment. Moreover, he did not know that the law of contributory negligence was altogether in a satisfactory state. Having stated his views, it only remained for him to say that he would bring in a Bill on the subject. If he might add one word, it would be that he did not think it necessary to make a distinction between railway servants and

  1071
  other servants, and that he hoped to be able to frame a Bill applicable alike to the servants of Railway Companies, of corporations, and of private individuals, and which he trusted would be entirely satisfactory.
  MR. W. E. FORSTERexpressed regret and surprise that the remarks of the hon. and learned Attorney General left the House no alternative but to vote for the second reading of the Bill. There was no probability of the Government grappling with the question this year, and he therefore thought that the Bill should be allowed to go before a Select Committee, as affording the only chance which the House had of speedily legislating upon the difficult subject of the liability of employers. It seemed to him that a sleeping partner ought not to escape, but ought to be responsible for the acts of every person in his employ.
  MR. MELDON,as one of those who had given their names to the Bill, supported it.
  MR. BULWERsaid, that he had moved the adoption of the Report of the Select Committee, because, in his opinion, it contained a true exposition of the law; whereas the Report prepared by the right hon. Gentleman the Member for the University of London, who was Chairman of the Committee, was founded on an utter misconception of what the law was. The right hon. Gentleman had again to-day repeated his most mischievous mis-statement—that the working men had in 1837 been deprived by the Judges of a right to compensation which they had previously possessed. Coming from a Member of the House, occupying so high a position as the right hon. Gentleman, such a mis-statement ought not not to go unanswered. It was calculated to do a deal of harm, and it was most important that the minds of the working classes should be disabused of the erroneous notion that any such injustice had been done them. There had been no alteration of the law in 1837. The present law was much older than the right hon. Gentleman the Member for the University of London seemed to suppose.
  And it being a quarter of an hour before Six of the clock, the Debate stood adjourned till To-morrow.

  HOSPITALS, &c. (SCOTLAND) BILL— [BILL 21.]
  (Mr. M'Laren, Mr. Maitland, Dr. Cameron.)

  SECOND READING. ORDER DISCHABGED. BILL WITHDRAWN.
  MR. M'LAREN: I beg to ask that the Order for the Second Reading of this Bill be discharged. The Government has introduced a similar measure in "another place," which will include my Bill; and, although I do not approve of all the Government Bill, yet I think it right to move that the Order for this Bill be discharged.
  Motion made, and Question, "That the Order for the Second Reading of the said Bill be read and discharged,"—(Mr. M'Laren,)—put, and agreed to.
  Bill withdrawn.

  IDIOTS, &C. (IRELAND) BILL.
  On Motion of Mr. ARTHUR MOORE, Bill to make better provision for Idiots, Imbeciles, and other afflicted persons in Ireland, ordered to be brought in by Mr. ARTHUR MOORE, Mr. MELDON, and Mr. O'SHAUGHNESSY.
  Bill presented, and read the first time. [Bill 149.]
  House adjourned at ten minutes before Six o'clock.