wished to ask his noble Friend the President of the Board of Trade, whether there was any objection to the Return which he had moved for, relative to the South-Eastern Railway and the Kentish Railway, being laid on the Table?
The Earl of Dalhousie
said there could be no objection to lay any Returns on the Table that it was in the power of the Government consistently to furnish. He had not the slightest objection to lay on the Table a Return of the date of Captain O'Brien's appointment as a Member of the Committee of the Board of Trade. But with respect to the date of the appointment of Mr. W. O'Brien to the management of the South-Eastern Company, and the number of shares held by him, he could give no return, for he had no control over the Company.
was aware of that, but he thought that the kindness which the Board of Trade had shown to the South-Eastern Railway Company might have excited the courtesy of that Company, and induced it to furnish the Government with 512 the requisite information. However, he (Lord Brougham) had found that the information given to him on Friday last was perfectly correct. It appeared that Mr. W. O'Brien purchased 204 shares in South Eastern Railway stock on the 17th of December, and that, by the rule of the Share Stock Exchange, when a person had made a bargain with a broker for a purchase of stock, and the broker could not furnish the whole he had undertaken to provide, an advertisement was immediately placarded of the number of shares required, and the name of the purchaser. In consequence of this rule, the name of Mr. W. O'Brien was published as the purchaser of 204 shares, in order that the balance might be made up by any body who chose to complete the bargain. Under these circumstances, the name of Mr. W. O'Brien had been published; but the instant his name appeared as a purchaser, the value of the shares mounted up. Mr. O'Brien's name had a talismanic effect; but if he (Lord Brougham), or any other noble Lord—except his noble Friend the President of the Board of Trade—not that he meant to say his noble Friend had ever dreamt of anything of the kind—had purchased South-Eastern Railway shares, there would have been no sensible increase in their value, no such change would have taken place. He (Lord Brougham) was entirely ignorant of the subject until he heard his noble Friend's speech on Thursday night; but he thought such things might reasonably happen, and they had turned out to be fact. The Board of Trade, it appeared, did not examine witnesses, but came to a resolution, more or less in detail; which resolution was then brought before Parliament. But would it assist Parliament? Not at all. It might mislead; it could not assist them; for what signified a statement made up from one party's account? It might tell all sorts of fables and fantasies to Parliament, but could not assist them in coming to a just decision. But the Resolution of the Board of Trade was produced, and then came the side which had been defeated, and said, "We have got a crowd of witnesses, and could produce them before Parliament; but it is now too late, the decision is against us." Now, that happened in nine out of ten cases. Now, supposing that his noble and learned Friend on the Woolsack were overloaded with business, although he did it cheerfully, and a Board of Masters in Chancery were to inquire into a matter, not hearing evidence, but shutting out the light, and groping 513 their way and deciding in the dark, and then furnished a Report to his noble and learned Friend—what would he do? It might mislead, but it could not assist him.
The Lord Chancellor
said, he should do as his noble and learned Friend was then doing—except to the Report.
had no doubt his noble and learned Friend would do so, and properly; but Government did not except the Report of the Board of Trade—they swallowed it down. Some people might say, that what he had stated happened 99 out of 100 times; but he thought it occurred 100 out of 100 times, and that it was a serious interference on the part of the Government with private dealings. What would their Lordships think if any other mercantile transactions were carried on in that way—and railway matters were now the largest branches of practical business—for in the lines now referred to ten or twelve millions were to be invested, with large sums of money constantly changing hands? A man might say, "I have lost 10,000l. by the decision just out without the slightest chance of redress." Now he (Lord Brougham) could not help feeling, under those circumstances, that that was a dreadful interference by Government with men's estates and properties, and with the large sums of money that were vested in railway undertakings. He should have much less objection to the course pursued if the House of Commons would adopt what he, with the asssistance of the gallant Duke and the noble Lord the late Governor General of India, who had also lent his assistance, had introduced into that House—namely, if in the other House of Parliament there was an impartial and calmly-judging tribunal, formed on the principle of the Committees of their Lordships' House, which decided judicially; but even that would be an anomalous and inconsistent proceeding, and had much better be dispensed with. Now he wondered if it was true that the South-Eastern Railway matter had been decided by the smallest majority of the Board—that two of the Members of it voted one way and two the other, his noble Friend the President of the Board of Trade, as Chairman, having the casting vote? His noble Friend had said that Captain O'Brien did not vote at all. Why, then, he should be present, he (Lord Brougham) did not know. Generally, the best way not to take part in a proceeding was to be absent. He knew nothing, however, 514 but that Captain O'Brien was present assisting, in the French sense of the word, not in the English, because he did nothing. But there was a easting vote. His noble Friend the President of the Board of Trade voted, first as a private individual, and then as Chairman of the Board; and although the majority was as three to two, the numbers were, in point of persons, two and two. If he had been rightly informed, such was the case — if he was wrong, he should be glad to be set right. But then, that ancillary power must have much less influence with the Committee than if there were a majority of votes by different parties. It might be, there was a rule that whichever way a man voted in respect of a measure; he signed for it. But those things being done in secret, he could only say what he (Lord Brougham) had heard, and he had been told what he had stated by a gentleman who believed it himself, and who could neither be deceived himself, nor would deceive others for all the railway shares in London, although he had been a sufferer to the extent of 10,000l. He (Lord Brougham) would appeal to a Report which had been furnished, and to the opinions which had been entertained on the subject. Mr. Caldwell, a most respectable Gentleman, a Member of the other House, and now a Member of the Government, had been in favour of giving large powers to the Board of Trade, but he said they ought to receive evidence. Mr. Laing, another Member of the Board, seemed to think nothing so bad as a Court of Law, a Judge, and a Jury; and next to them that nothing was so bad as a Committee of the House of Commons. He thought all power ought to be given to the Board of Trade; but of course, if he did away with the Courts of Law and the House of Commons, he did mean that evidence should be called before the Board of Trade. He could not help thinking that this was a most important subject, both from the statement of his noble Friend, and from the evidence he had received of hardships done to individuals and private property by that ill-omened system. He should, therefore, feel it his duty to bring in, in the early part of the Session, a Bill on the subject, in order that the important question might be discussed; because of all the branches of legislation he looked with the greatest caution and watchfulness at that kind of legislation that went to interfere with the sacred rights of persons.
The Earl of Dalhousie
fully agreed with the noble and learned Lord as to the importance of the subject; but with respect to the question that the noble and learned Lord had asked relative to the shares purchased by Mr. W. O'Brien, and with respect to Mr. W. O'Brien's share in the transaction alluded to by the noble and learned Lord, it was not his (Lord Dalhousie's) business to undertake the defence of Mr. O'Brien in reference to his connexion with the South-Eastern Railway Company. His only duty was to offer a defence for a Member of the Board to which he belonged when attacked; and as Captain O'Brien's name had been mixed up with the South-Eastern Railway shares, he would again state that the circumstances of the transaction entirely exculpated Captain O'Brien from the slightest fault. With respect to the other question of the noble Lord—namely, that he had learned upon information, which might or might not be right, that a division had taken place in the Railway Board on the subject of the South-Eastern scheme, that certain Members had voted one way and some another, about which the noble and learned Lord wondered very much, and desired extremely to know whether that was the case, the only answer he (Lord Dalhousie) had to give was this, that the noble and learned Lord might be right or might not; he might wonder whether it was the fact or not; but it was his (Lord Dalhousie's) duty to leave the noble and learned Lord to wonder on.
The Earl of Dalhousie
said, that with respect to the wonder the noble and learned Lord had expressed as to the decision of the Railway Board, it certainly was a matter of wonder to him (Lord Dalhousie) that any noble Lord who had the knowledge of business that his noble and learned Friend possessed should expect any answer to be given to such a question. Every arrangement which had been made with respect to that Board was the same as those made for other boards, at the head of which was placed a Parliamentary Member with Parliamentary responsibility. Suppose his noble and learned Friend had called in question any decision of the Board of Admiralty, would the noble and learned Lord, or any other noble Lord, have thought of asking, or would that 516 House or the other House of Parliament have expected an answer to the question, if it had been asked, whether one Member of the Board had voted one way and one another? Again, suppose a question arose with reference to a Report from the Board of Customs, would any person be allowed to ask, respecting that or any other Government Board, what were the opinions of the different Members, what divisions, or whether any divisions had taken place? The Reports of the Railway Board were laid before Parliament on the responsibility of the Board in connexion with the Government, and upon that responsibility it must rest. With regard to the observations that the noble and learned Lord had made on the constitution of that Board itself, and its influence generally, he must be allowed to ask why was not that grave objection made last year when the Bill was proposed?
The Earl of Dalhousie
hoped his noble and learned Friend would excuse him when he said that the Bill was as much before that House as it was before the other House of Parliament. The question was raised before the Committee of the other House—it was discussed there, and the noble and learned Lord must remember that he raised the question with respect to Government superintendence being exercised over railways; and in consequence of observations made by him, and at his urgent request, he (Lord Dalhousie) had moved that the Committee of the House of Commons should be requested to furnish a Report to that House, and as soon as the Committee had finished their Report they did furnish it. In that Report it was distinctly brought to the knowledge of their Lordships that the Select Committee of the House of Commons had agreed to recommend to Parliament that there should be a previous supervision of all the then projected railways, and that this duty should be performed by a Board acting under the orders and control of the Government. The Report went further: it distinctly pointed out the Board of Trade as the department of the Government to which this duty ought to be confided; and it went even further than that and recommended that the then existing Railway Department of the Board of Trade should be reconstructed; and that to this newly-constituted Board the whole of the railways 517 should be submitted, in order to undergo a previous examination, and to be reported upon to Parliament. In consequence of this Report it was moved in the House of Commons, that the Standing Orders be suspended, and he (Lord Dalhousie) simultaneously moved the suspension of the Standing Orders of their Lordships' House. And, perhaps, he might be allowed to say that the alteration had not been smuggled through that House; but, on the contrary, he had taken the opportunity, probably to the annoyance of their Lordships, of dwelling at considerable length on the alteration that was proposed to be made in the practice of Parliament, with respect to Railway Bills; and he dwelt with much precision and detail upon the jurisdiction and the nature of the powers that were proposed to be given to the newly-constituted Railway Board. On each of the opportunities to which he referred, the question which had been started by his noble and learned Friend, ought properly to have been raised, at the moment when the Railway Committee of the Board of Trade was first constituted, which was surely the most fitting occasion for questioning the extraordinary functions to be confided to it. He did not mean by this to imply that his noble and learned Friend was shut out from making any remarks upon its constitution or its decisions, by not having before done so; but what he meant to say was, that the Executive Government having under the authority of Parliament constituted the Railway Board, whilst his right hon. Friend (Mr. Gladstone) was at the head of the Department from which it emanated, it was unfortunate that the strong objections now brought against it were not stated at the time when they would have availed. If there were imperfections in the Board, it ought to be recollected that all that the Executive Government had done in respect to it was deliberately sanctioned by Parliament, and after the fullest consideration had been given to the responsibilities which rested on it. After the subject had undergone this consideration it was resolved by the Parliament, that looking at the difficulties and inconveniences which surrounded the whole question of railway projects, it was impossible for the House of Commons to do its duty with respect to those Bills, or to adjudicate correctly and advantageously upon the merits of the various rival schemes, unless some previous revision and examination of the projected lines of railway were instituted 518 by a Board acting under the authority of the Government. Now, what he asserted was, that there was no inconsistency between the acts of the Government, or of the Railway Committee of the Board of Trade, and the authority by which the latter was constituted, as he (the Earl of Dalhousie) had entered upon the whole question fully on a former evening.
intimated that he withdrew that observation altogether, and had merely referred to the inconvenience and discrepancy which had resulted from the proceedings of the Railway Board being regarded as influential in the fate of the projects.
The Earl of Dalhousie
The noble and learned Lord had alluded to the inconsistency of the proceedings of the Railway Board in so far as they were regarded as influential upon the decisions of the Parliament with respect to the Railway Bills reported upon. But he must beg to remind his noble and learned Friend that those proceedings and Reports would only be so far influential as they would turn out to be founded upon reason; and he must repeat what he had said on a former occasion, that the decisions of the Railway Board, so far from being conclusive, would only have weight, in proportion as they were ascertained upon a careful consideration of the different projects by the Committees, to be founded in reason and in justice to the different parties, as well as based upon a due regard to the public interest. He would not at that moment enter into any vindication or into any details with respect to the proceedings of the Railway Committee of the Board of Trade; he would only observe, with respect to the non-examination by the Committee of witnesses, that such a course was, under its constitution, and the whole circumstances taken into consideration, utterly out of the question. But he must deny that the Railway Board had not examined into the evidence which was accessible relative to the different projects. They had, on the contrary, gone carefully through the documentary evidence on both sides of the question, and by this as well as by the other considerations to which he had alluded, the decisions of the Board were guided. Whether sound decisions could be pronounced upon such grounds, or whether they would be borne out by the documentary evidence, would depend upon the determination of Parliament after the 519 whole matter had been reconsidered and sifted in Committee. But it was unjust to assert that the system had not succeeded until it had been fairly tried; and it could hardly be said that this was the case when the first Report had scarcely been laid upon their Lordships' Table. Before they were called upon to abolish the Board, it would be more in accordance with justice and propriety to give its proceedings a fair examination. Whenever his noble and learned Friend thought proper to bring his Motion on the subject forward, he (the Earl of Dalhousie) would be found ready to defend the proceedings of the Railway Officers of the Board of Trade. With respect to the constitution of that Department, or the propriety of remodelling the Board, it was not for him to say one word on the subject, nor until the reports which had issued from it had been carefully weighed and subjected to a close scrutiny. He must on palpable grounds decline giving his noble and learned Friend any answer to his question touching the internal proceedings of the Railway Department of the Board of Trade.
§ The Duke of Wellington
One word, my Lords, with respect to Mr. W. O'Brien, who has been referred to so repeatedly both here and in another place, in connexion with the Reports of the Railway Department of the Board of Trade, and to whose prejudice many things have been said. I happen to know something of this gentleman. He formerly served as a most respectable officer in one of the corps of the army. He was highly respected by all his brother officers. His information was of a superior, description, nor is it possible for an officer to stand higher in the estimation of all with whom he served. I also acquired some knowledge of his relation, who is one of the officers of the Railway Board, whilst that gentleman was attached to the office of the right hon. Baronet the Secretary for the Home Department, who had every reason to be satisfied with his integrity, his zeal, and his services in general. I think it necessary to state these facts in justice to these two gentlemen.
was extremely glad to have afforded an opportunity for the explanations offered by the noble Earl and his noble Friend opposite. He never blamed, nor meant to impute the smallest collusion either to Captain O'Brien or his brother. All he had referred to, was a 520 fact which was notorious—namely, that Mr. W. O'Brien's name had been placarded on the Stock Exchange as a purchaser of South-Eastern Railway shares, a circumstance which gave point to the reports that were so prevalent with respect to the proceedings of the Railway Board. When his noble Friend had told him he might wonder on, he did not appear to be aware that there was no longer any ground for wonder after the declaration he had made. He had no longer any curiosity on the subject; that was satisfied; he believed the information he had received to be correct. He had stated the circumstances hypothetically, and he now found them to be substantially true: but his noble Friend was quite in error when he drew a parallel between the proceedings at the Board of Admiralty or the other public Boards, and those of the Railway Department of the Board of Trade. His noble Friend had stated that the Members of the Board of Admiralty conjunctively and unanimously signed all Reports issued under their authority. That was true; but then he ought to have borne in mind that the Admiralty was an executive Board, having authority to carry out its own Reports and plans; but that it was not a judicial Board, nor were its Reports like those of the Railway Committee of the Board of Trade, which were simply expository—mere opinions; and if those opinions were not unanimously agreed to by the Members of the Board, the Houses of Parliament and the public were deceived by their being signed by the whole Board, as if they had been all agreed. His noble Friend had expressed his surprise at his (Lord Brougham's) not having stated his objections to the constitution of the Railway Committee last year. But from what the noble Earl had stated, it would be supposed that the House of Commons had come to a distinct resolution in recommendation of the constitution of the Board upon its actual basis: whereas all that the Resolutions to which the noble Earl had referred said, was that when the plans and estimates of the different projected railways were ready to be laid before Parliament, they were first to be submitted to the inspection of the Board of Trade. He must say, in vindication of his having brought the subject under consideration that evening, that he was entirely confirmed in the views which he had taken with respect to the non-examination of witnesses before the Railway Board; and when he saw the consequences that had resulted, and were still likely to result from 521 that course, he could not but express the objections he entertained to it. When the mere connexion of Mr. W. O'Brien's name with the South-Eastern projects raised the shares from 13½ premium to 38, or even to 48, within a few days, he certainly did consider the circumstance as very justly exciting the attention, if not the suspicions, of the public.
The Earl of Dalhousie
protested against being misunderstood by his noble Friend. What he had said was, that he did not object to his raising any question with respect to the proceedings of the Railway Board or its constitution. He was at full liberty to do so. But he had called attention to the fact, that the Board owed its existence to the deliberate determination of Parliament during the last year; and he had observed that it was only reasonable to have expected his noble Friend to object to its constitution at the time it was proposed, as the same grounds for his objections existed then as at present. His noble and learned Friend might object at present to its constitution: he was fully entitled to take that course. With respect to the unanimous signing of the Reports by the Board, he could only repeat what he had already said, namely, that the Railway Board was constituted in the same manner as other boards in the Public Departments. He was sorry he could not, consistently with his public duty, give the noble Lord the satisfaction he sought relative to the other topic of his speech.
hoped he might be allowed to express a hope that the whole subject relative to the proceedings of the Board of Trade would be reconsidered. The noble Earl at the head of that Department had displayed throughout the purest honour and the greatest ability. He had heard the noble Earl's praises sounded in all quarters, and with great justice; at the same time, he must express his belief that the Railway Committee of the Board of Trade was a failure, and he believed some new plan would be found necessary. Noble Lords should consider that the Railway Board was not created by any Act of Parliament, nor by any Resolution of the two Houses of Parliament. Its functions, its duties, and its powers were altogether undefined. It was a voluntary tribunal, and they might just as well have twelve drunken porters, whom they might meet in any alehouse in Westminster, 522 to give their opinion upon the expediency of any scheme to be brought forward in respect of railways, as the noble Lords and the right hon. Gentlemen who composed that Board. They had no authority except that which they gave themselves. The Common Law gave them none—they had none given them by statute—nor had they any Resolution of that House of Parliament. On that ground it was impossible that their decisions could be binding, although it was most desirable that their decisions should have some authority, if it were only to redeem the respectability of the Board of Trade. But then there was another point, in which it struck him as being very bad in its present shape—namely, that no witnesses were to be examined. The Board was to decide according to what was alleged—not what was proved. Now, it had been said that they examined written evidence; but the written evidence must be the statement of the parties themselves, must contain their allegations, and it would be very easy for a dexterous solicitor to keep the Board from seeing any evidence that might contradict what was stated. It was, therefore, impossible that the decisions of that Board could carry with them the weight which it was desirable they should possess. Could they assist the two Houses of Parliament if they were given without evidence having been heard? They must be either conclusive or not. If they were conclusive, they must be so without evidence; if they were recommendations merely, they carried no weight whatever with them. He apprehended, therefore, it would be indispensably necessary that the noble Earl should consider some other mode by which those questions should be decided. With respect to the question put to him by his noble and learned Friend, he could not imagine any reason for his (the Earl of Dalhousie's) being so fastidious. He had no curiosity himself on the subject, but when the noble Earl compared the Railway Board to the Board of Admiralty, he begged to remind him that the functions of the latter were both deliberative and executive; whereas, as his noble and learned Friend had observed of the noble and learned Lord who presided on the Woolsack, the functions exercised by him in his judicial capacity were deliberative, and there could be no reason whatever after his decision, or after the decision of any body of Judges had been made, for concealing the opinions 523 of those Judges, or for stating that they had differed in opinion—as such difference would in no degree shake his confidence in the result. When the Judges were divided their decisions were sometimes of greater weight. So, in like manner the individual opinions of the Railway Board might with great propriety be made public, as the decision would not be in any way shaken by such a course. He ventured to throw out a suggestion to the noble Earl,—whether it might not be better to consider how to improve the Railway Department of the Board of Trade, so as to inspire the public with more confidence in its proceedings and Reports.
could not reconcile a discrepancy which appeared in the objections taken by the two noble and learned Lords opposite to the proceedings of the Railway Board. One of these noble Lords had stated that the Reports and decisions of the Board would be far too influential; whilst the other noble and learned Lord had declared, on the contrary, that the said Reports and decisions were possessed of no authority or value whatever.
begged to recall the circumstances under which the Railway Board was constituted to the recollection of their Lordships. The House of Commons, finding during the last Session that the difficulties attendant upon the examination of the details of the multitude of railways in the Committees on the Bills were very great, in consequence of their numbers, thought it advisable that the whole of them should undergo a preliminary examination by the Board of Trade, previously to their being brought under the consideration of Parliament. This determination was not a sudden one. It was preceded by the appointment of a Select Committee, before which body witnesses were examined to a very great extent, and that Committee framed and agreed to certain Resolutions, wherein were detailed the reasons which guided its members in recommending the House to send all railway projects for the future before the Board of Trade. Was the Government to refuse to act upon such a Resolution as that? The Government could do no such thing. The consequence was, that Ministers constituted the Railway Department of the Board of Trade. He agreed in the statement, that the Reports of that Committee were not to be regarded as conclusive. 524 All the Committee did was to assist the House of Commons in dealing with the various projects when they came under the notice of that Assembly. And at a moment when the Railway Board had got through three-fourths of the business assigned to it to transact, the Government was called upon, in the manner which had been resorted to, and peremptorily desired to stop the Railway Committee short in its proceedings. Now, he would put it to the two noble and learned Lords opposite if this was a proper course to pursue. Admitting, for the sake of argument, all the objections that had been urged, he (Lord Wharncliffe) thought it was the duty of Parliament to let matters take their course for the present. Let the effect of that course be closely watched and appreciated, and having seen what it was, then would be the proper time, if it were thought necessary, to reconstruct the Board; and the proper moment for calling upon Parliament to come to some Resolution on the subject would be after the results of the railway projects now under consideration were fully known. The proceedings of the Railway Board, any more than its decisions, were no secret. The whole of their determinations had been made public as they had been come to, and yet that publicity had been made one of the strongest grounds of censure on the Government.
said, he had got the Report of the Select Committee, containing the Resolutions on which the Railway Board was constituted, and he put it to the candour of their Lordships whether he could be blamed for having put the construction that he had done upon the words of that Resolution. He would read a portion of it, to be found in page 15 of the Report:—It is the opinion of the Committee that such Reports should on no account be regarded in any other light than as intended to afford to Parliament firstly additional aid"—And he would call upon their Lordships to notice in what manner this additional aid was to be afforded; he called upon them to mark the words,—In the elucidation of facts by the testimony of witnesses.By witnesses, their Lordships would observe, and not by documentary evidence only. In the Courts of Law those who 525 practised there were not accustomed to such tricks as a Judge suddenly vaulting from the Bench into the witness-box, and then back again to give his decision as a Judge upon his own testimony as a witness. The noble Lord then resumed,—Testimony of witnesses competent by knowledge.Ay, but it turned out that these were not witnesses, but judges,—Competent by knowledge, habit, and opportunity, and officially responsible. And secondly, recommendations founded upon such elucidation; that their purport should be not in any case to give their absolute advice,"—Ay, but they had done so, and that pretty strongly too,—That a given railway should be made, but to state whether there were public reasons which ought, in the opinion of the department, to be decisive against it, or whether it ought to be postponed until its merits could be examined—[The noble Lord was here about to close the book, when several noble Lords called out, "Read on; read on."]Examined in connexion with those of some other scheme, or which of two or more contending schemes appeared preferable, in the event that only one should appear likely to receive the sanction of Parliament; and in particular, it is the judgment of the Committee that no such Report should be held to prejudice the claims of private persons, the examination of which should be altogether reserved to the Houses of the Legislature.The recommendation and even the judgment of the Committee distinctly stated, in the words he had read, that all private claims were to be reserved for the decision of the Legislature; and yet the Reports of the Board could not be said to have implicitly obeyed that intimation. But with respect to the constitution of the Board, his remarks were completely borne out by the Resolution which followed upon the paragraph he had read, which was simply as follows:—Resolution—That it is expedient that all Railway Bills should henceforward be submitted to the Board of Trade previously to their introduction into Parliament.Surely the House would agree with him when he said that he was not accustomed to be told that the word "witness" was of the same meaning as the word "judge." Until so enlightened he should not, in reading the account of last year's proceedings, have ever arrived at any such conclusion as that "witness" meant "judge."
§ Conversation dropped.