Lords Sitting of 11 July 1845

MINUTES.
BILLS. Public.—1a. Field Gardens.
2a. Law of Defamation and Libel Art Amendment.
3a. and passed:—Documentary Evidence; Real Property (Lord Chancellor); Seal Office Abolition.
Private.—1a. Brighton and Chichester Railway (Portsmouth Extension); Guildford, Chichester, and Portsmouth Railway; Glasgow, Barrhead, and Neilston Direct Railway; Direct London and Portsmouth Railway.
2a. Preston and Wyre Railway; Runcorn and Preston Brook Railway; Norwich and Brandon Railway (Diss and Dereham Branches); Glasgow Junction Railway; Bermondsey Improvement; Londonderry and Coleraine Railway.
Reported.—Middlesbro' and Redcar Railway; Waterford and Limerick Railway; Dublin and Drogheda Railway; Newry and Enniskillen Railway; North Union and Ribble Navigation Branch Railway; Irish Great Western Railway (Dublin to Galway); Cromford Canal; Reversionary Interest Society.
3a. and passed:—Cork and Bandon Railway; Lynn and Dereham Railway; Glossop Gas; Great Southern and Western Railway (Ireland); Cockermouth and Workington Railway; North Walsham School Estate (Lord Wodehouse's).
PETITIONS PRESENTED. From Stockholders and others of the Colony, residing at Maneroo, for Alteration of Law relating to Territorial Revenue and Disposal of Land (New South Wales).

PRIVILEGE.
The Lord Chancellorlaid upon the Table the Report from the Committee appointed to search for Precedents in reference to the petition of Thomas Baker for Protection. Read, and ordered to lie on the Table; and to be printed.
The Duke of Richmondwould now move that Thomas Baker be called to the bar, to deliver in the declaration he had received.
The Lord Chancellorstated the course he would recommend: The Report was of some length, and it would be some time before it could be printed, and in the hands of their Lordships. He would merely now call the petitioner before them to identify the transaction; after which the plaintiff and his attorney, if their names could be ascertained, should be ordered to attend on Monday. By that time the Report would be printed, and before any other step, such as calling them to the bar, was adopted, there might be a discussion; and those noble Lords who dissented from the course proposed might state their objections.
Lord Campbellentirely approved of the course proposed by his noble and learned Friend.
Lord Radnorhad no objection to the course, except that when the petition was presented, a Committee had been appointed to search for precedents; and now, when the Report had only been handed in, and not printed, they were called upon to take a step.
The Lord Chancellordid not consider

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this a step by which the House would commit itself.
Lord Broughamdid not object to calling in the petitioner, which was a very different matter from calling the plaintiff and his attorney before them.
Thomas Baker was then called in, and examined by the LORD CHANCELLOR.
Were you examined before a Committee of this House in the month of April of last year?—Yes.
What was that Committee?—A Committee to inquire into the Gaming Laws.
Were you aware that that Committee was appointed to inquire into the laws affecting gaming?—Yes.
Did you give evidence before that Committee?—I did.
Have you since been served with a declaration in any suit, or with a copy?—I received one, which is now in the hands of my attorneys.
Is your attorney in attendance?—Mr. Barnes is here.
Will you ask him for the declaration? Is that the declaration?—Mr. Barnes informs me it is the copy of one filed against me in the Court of Queen's Bench.
Have you read it?—It has been read to me by the clerk of Mr. Lyons.
Does the statement in the declaration correspond with the language used by you before the Committee?—It don't make use of the whole language made us of before the Committee.
By Lord BROUGHAM.—Do you find any of your evidence before that Committee made use of?—Some of it.
By the LORD CHANCELLOR.—In the declaration do you find those words of yours charged?—Yes.
Do the words charged correspond with part of the evidence given by you before the Committee?—Yes.
Did you ever before any other Committee make precisely the same statement as is contained there?—Not precisely the same.
By Lord BROUGHAM.—Did you make anything like the same statement?—Not with respect to him.
Not with respect to Mr. Harlow?—No.
Never?—Never.
By the LORD CHANCELLOR.—Did you make any statement with regard to him except that to which you were sworn, and before a Committee of the House?—Never.
Is that a copy of the declaration which was delivered?—Yes.
By Lord BROUGHAM.—Did you say anything with respect to Mr. Harlow except before this Committee?—No.
By Lord CAMPBELL.—Have yon any doubt that this action is brought for the evidence given by you?—I believe it is solely brought for that evidence.
Do you know the names of the plaintiff's solicitors?—Messrs. Ward and Harbin.
What solicitors do you employ?—Messrs, Lyons, Barnes, and Ellis.
Are they in attendance?—Mr. Barnes is.
Then Mr. Barnes was called in, and examined by his Lordship.
Did you receive a declaration of the plaintiff in this suit?—No; it was filed by the plaintiff's attorney, and taken out by my clerk.
Is that a copy?—That is the original.
Who is the plaintiff's attorney?—Mr. Peter Tait Harbin.
By Lord BROUGHAM.—How did you know it was filed?—Notice was served on the defendant.
By Lord CAMPBELL.—With a notice to plead?—Yes.
By Lord BROUGHAM.—What notice?—Eight days. The declaration was filed on the 7th of July.
By the LORD CHANCELLOR.—Do you know where the plaintiff's attorney lives?—The address on the back of the writ is 16, Clement's Inn.
Thomas Baker was recalled, and examined by the LORD CHANCELLOR.
Do you know where the plaintiff lives?—Yes, my Lord, in Leicester Square.
By Lord BROUGHAM.—What number?—16.
What sort of a shop does he keep?—A tobacconist's.
Thomas Baker and the other parties in attendance were then ordered to withdraw.
The Lord Chancellorthen moved, that Peter Taite Harbin and John Harlow do attend their Lordships' House on Monday next.
Lord Broughamwould not at this stage of the proceeding take an objection to the course suggested, which, however, was not the same matter of course as that of calling the petitioner before them. He purposely abstained from raising the question at that moment; and he trusted that those who agreed with him would also abstain; and he would take such objection as he might be advised, if any further proceeding should be urged against the plaintiff, or if he should be called to the bar. The present, however, was a material step, and he should content himself with protesting against it.
The Lord Chancelloralso reserved his opinion, and upon the same grounds. Their Lordships could not be properly prepared to discuss this question till the Report of the Committee should be printed;

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but for the purpose of saving time, he proposed that the parties should be ordered to attend.
The Marquess of Clanricardehad not had the good fortune of attending the Committee, as he had been obliged to attend a Railroad Committee; but it now appeared that no inconvenience would have been felt if the House had proceeded last night in the straightforward course he had suggested. The same course they were now about to take could have been taken yesterday, and the House might have taken it whether they bad found a precedent or not. It was a gratification to him, as he had entered a Protest on the Journals against the step taken yesterday, that the opinion he had recorded had now met with unanimous approval.
Motion agreed to, and
The Lord Chancellormoved that the Lords be summoned.
Lord Campbellwas so delighted at the turn the matter had taken, that he would not charge their Lordships with inconsistency, though they were no doubt reversing their decision of last night.
Lord Stanleysaid, there was this material difference in the two courses; last night it was moved that the parties be summoned to the bar, when they had not determined what to do; whereas now they had the advantage of precedents.
Lord BroughamAfter a few words from Lord Brougham,
The Duke of Wellingtonsaid, the great difference in the position of the House that evening, and the position last evening, was this:—a petition was presented by the noble Duke sitting on the cross-benches yesterday evening: he (the Duke of Wellington) for one, believed every word contained in that petition: but they were in a different position that night as a House of Parliament. He last night believed in the statements of the petition, as the noble Duke had vouched for them; but that night they had evidence before them on oath, that this man had given evidence before the Committee; that the evidence was the same as the words contained in the declaration, and that he had never stated anything respecting these matters anywhere else. Therefore this declaration must have reference to the evidence given before a Committee of their Lordships' House, and to nothing else. That was the difference of the situation in which they stood that night; and he thought it would turn out that the
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plaintiff who had filed this declaration would rather find himself in a difficulty.
Motion agreed to.

RAILWAYS AND THE BOARD OF TRADE.
The Earl of Dalhousielaid upon the Table of the House a Minute of the Lords of the Committee of Privy Council for Trade, dated the 10th day of July, 1845, relative to the constitution and mode of proceedings of the Railway Department of the Board of Trade. As the subject was one of considerable importance, he felt himself called on to state shortly, the alteration which it was intended to make, and the grounds upon which they proceeded. Their Lordships would recollect that, at the commencement of the last Session, a Committee had been appointed by the other House for considering the subject of Railway Legislation generally. That Committee sat for many months, and made a very full Report on various matters connected with railways. Upon one point in particular, it reported very fully—viz., the degree of supervision which the Government ought to exercise over schemes before they were brought under the consideration of Parliament. That Report was laid before the House, and adopted, and the Government proceeded to carry into effect its recommendations. It had now become necessary for the Government to consider what provisions should be made for the future conducting of railway schemes. They had found that the circumstances connected with the subject differed materially from those which existed at the beginning of last Session. Having maturely considered the question, and having due regard to the constitution and operations of the Committee of the House of Commons, and to the feeling which had been evinced by Parliament in the course of the present Session, the Government had come to the conclusion, that the Board of Trade should not, in future, prepare or submit to Parliament any Report upon the merits of railway projects. But in relinquishing this function of reporting upon the merits of schemes, previously to their being considered by Parliament, their Lordships must not be induced to consider that the Board had failed in the object for which it had been instituted. He had seen it stated as a curious fact — and curious it, no doubt, would be if true—that only one

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decision of the Board of Trade had been approved of by the House of Commons, and that that one decision had been reversed by the House of Lords. But what were the real facts of the case? The Railway Department of the Board of Trade had reported on 247 schemes, comprising nearly 8,000 miles of railway; of these 58 had been withdrawn, and 19 had failed upon the Standing Orders, leaving 160, which had been read a second time in the House of Commons. Of these 160, nine still remained undecided, making the number, actually decided on, 151; and of these 151 schemes decided on both by the Board of Trade and the House of Commons, there were only six in which the House of Commons had directly reversed the opinion of the Board of Trade, which six schemes were involved in what was termed the gauge case, and only nine other cases in which the opinion of the Board of Trade had not been confirmed, owing in the mean time to a change of circumstances, or to a compromise between the contending parties; so that, out of 151 schemes which the House of Commons had decided upon, only 15 had been rejected, while 123 of the decisions of the Board of Trade had been absolutely confirmed. He thought he was, therefore, entitled to say that the Board of Trade had not failed in discovering the truth, and that their Reports were not to be considered as waste paper. The Minute of last year proposed that a distinct Committee of the Board of Trade should be appointed for railway business; but it was now intended to discontinue that Committee, and allow the business to be carried on by the ordinary Committee. The same preliminary steps on the part of railway companies which were now required, such as depositing with the Board of Trade a copy of the plan and a statement of the objects of the Bill, would continue to be required. They would also be expected to deliver a copy of the Bill when prepared; and if, upon the examination of its provisions, it should appear to the Board of Trade to be desirable, on public grounds, to direct the attention of Parliament to the nature of those provisions, the Board of Trade would be at liberty to submit to Parliament a Report upon the subject; but in no case to pronounce any opinion upon the merits of the Bill. That was a considerable change from the former system; and he ventured to think that it would be impossible for
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either House to feel, under the remodelled form of procedure, that there could be any invasion of their powers in deciding upon such matters.
Lord Broughamthanked the noble Earl for his very fair and candid statement. The noble Earl said that a new arrangement had been made. It might well be called a new arrangement. It was just such an arrangement as took place in the body natural, when it was consigned to its parent earth, and suffered decomposition in the course of nature. He condemned the system of delay which was pursued in Committees by the opponents of different Bills for the purpose of insuring their defeat; and particularly instanced the case of the London and York Bill, which had now been about fourteen weeks in Committee. He had always been opposed to the appointment of the Board of Trade Committee, considering that their proceedings were calculated to encourage gambling, and being convinced that they could not have the materials before them which would enable them to come to a correct conclusion. He, however, could not see any objection to the plan now proposed.
Report to be printed.

RAILWAY AND OTHER BILLS.
Lord Broughamthen asked their Lordships if it was their intention to proceed with the Adjourned Debate on the following Resolution, as amended, which, he thought, would put a stop to a good deal of hardship and oppression, viz.:—
"That where any Party or Parties have appeared and contested any such Bills at the Bar or in the Committees of the House, it shall be lawful for the House or Committees, if in their Discretion they shall think fit, to direct the Expences of such Party or Parties incurred in the Proceedings before this House or its Committee to be paid by the opposite Party promoting the Bill; the Amount of suck Expences to be ascertained and certified by the Clerk of the Parliaments or Clerk-Assistant, by like Taxation and in the same Manner and upon the same Terms in all respects, as Costs on Appeals and Writs of Error are directed to be ascertained and certified by the Standing Order of this House, of the 3rd of April 1835 No. 215; and that the Petitioners for any such Bill, or some of them, as shall be approved by the Clerk of the Parliaments, shall, before the same is read a Second Time, give Security to the said Clerk, by Recognizance to be entered into to The Queen, of the Penalty of 5,000 l., conditioned to pay all Expences which may be ordered by the House or the Committee to be paid to any Party

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or Parties opposing the Bill: That where any Committee has directed Expenses to be paid by any such Party, it shall report such Direction to the House specially, with the Circumstances inducing them so to direct."
The Duke of Richmondsuggested, that where the opposition was vexatious, the parties opposing should be made to bear the costs.
The Earl of Wicklowsaid, that in all ordinary suits the person who lost was made to pay costs; and it certainly appeared rather absurd to him that in these suits those who were in the right, if they happened to be promoters of the Bill, should have to bear costs.
Lord Broughamexplained that, in ordinary cases where an action was brought, it was presumed that the defendant held some property belonging to the plaintiff. If a verdict were found for the plaintiff, he had, for a certain time, been kept out of that which belonged to him; and therefore the defendant was saddled with all costs. In this case the fact was different, for parties appearing to contest any of these Bills were about to have their property taken from them whether they would or no; and for that reason he thought that, even if unsuccessful, the House or Committees should have the discretion of directing the expenses to be paid by the party promoting the Bill.
Lord Monteaglesupported the Resolution. As powerful companies would, in the progress of railroads, become opponents of Bills, unless security were taken against undue opposition to, as well as undue promotion of, railways, injustice would be done. He proposed that recognizances should be taken on both sides.
Lord Broughamaltered the Resolution conformably to this suggestion.
Lord Redesdaleobjected to the requiring recognizances, which would operate to the exclusion of the poor man.
Lord Broughamsaid, that in the case of a poor man, recognizances, to whatever amount, would, in effect, be merely nominal.
The Duke of Richmondsaid, it was well known that in this city there was a certain class of low attorneys, who had no character to lose, who could get up opposition to Bills, and that was what he wished to guard against. He believed that by and by the great body of the people would not be satisfied unless they had
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a railroad within a mile of their own houses.
Lord Wharncliffesaid, the power of inflicting costs should be given by Act of Parliament. He should take the sense of the House upon the Resolution. It was certainly wrong to do it by means of a Standing Order.
Lord Ashburtontook the same view of the subject.
The Earl of Wicklowsaid, the Resolution as it stood would interfere with the right of petitioning. If a petition was presented and referred to a Committee, the poorest man must be prepared with his recognizances. Were their Lordships ready to place such a bar against the right of petitioning?
Lord Broughamsaid, the Resolution could never injure any man whose property was affected by a railway. It was monstrous to say that the opposition of a man against his property being taken away without his consent, could be frivolous. Noble Lords were running away with a false idea. If this Resolution were to be put off day after day, he should wash his hands of it. He had reported the Resolution from the Committee, which was unanimous, and the House were now about to reject it, and pass a Bill. They might do so, and send their Bill down to the other House, and then (as had been done with some of the best Bills) a Minister might get up and say, "I have considered this matter, and I think there is not time to pass the Bill this Session." And men's property would be taken away without the possibility of getting the costs of resistance. He would, however, defer the Resolution till Monday.
Lord Wharncliffesaid, the House had no right to exercise the power, if they had it, of requiring every person coming there against a Bill to give recognizances. No alteration could reconcile him to the Resolution.
Lord Brougham: That seals the fate of the Resolution. If Her Majesty's Government oppose the Resolution, I, as an individual, must submit.
The Lord Chancellor: I do not consider this to be a question of the Government's.
Lord Wharncliffe: I speak as a Member of the House of Lords.
Lord Brougham: The Resolution does not interfere with the right of petition; even the Amendment does not interfere with that right. It does not prevent the

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presentation of petitions, but the granting of the prayer of the petition. The right of petition is not the right to have the prayer of the petition granted, but to have it received and read.
Lord Portmanthought that all this matter should be regulated by Act of Parliament. The proper way was to send a Bill for the consideration of the other House, or to receive a Bill from that House for their Lordships' consideration. There was a reference in the noble and learned Lord's Resolution to a Standing Order, which was made effectual by an Act of Parliament brought in by Lord Eldon, who must have considered it necessary to have an Act of Parliament to tax costs. It was the first time it was ever proposed by a Standing Order to give costs in their legislative proceedings. He thought the House would be wise if they adopted the view of the President of the Council, and negatived the Resolution.
Lord Broughamsaid, he had never heard so many mistakes in any one speech as in that which the noble Lord who had just sat down had thought proper to make.
The Earl of Devonobjected to the Resolution in toto. It held out to the people this:—"We must receive your petitions, but we will put such a clog upon the right as will make it nugatory." He would not be a party to such a Resolution.
The Lord Chancellorsaid, his noble and learned Friend did not press the Resolution now; he wished to withdraw it, and to bring it forward amended on Monday.
Lord Wharncliffe: The noble and learned Lord has no right to withdraw the Resolution without the consent of your Lordships.
The Marquess of Lansdowne: Then I move that my noble and learned Friend have leave to withdraw the Resolution. I move this without giving any expression of opinion. The only modes of proceeding are by Resolution or by Act of Parliament, and the best course is, to allow my noble and learned Friend to consider between this and Monday whether it should be by Resolution or by Bill.
The Lord Chancellorobserved, that it had been stated that the House of Commons were disposed to concur in the Resolution; if so, they would agree to a Bill.
Lord Broughamwas repeating several of his arguments in explanation, as well as in support of the Resolution, when
The Earl of Devonmade an observation which was not distinctly heard, relative to the number of times the noble and learned Lord had spoken in the course of the evening.
Lord Broughamcontinued, and said he should speak in that House as often as he pleased, without considering whether it was pleasing to the noble Lord or otherwise. If the noble Lord did not like his speeches, he was not compelled to listen, to them, and he certainly did not care for the noble Lord's attention. When the noble Lord sat at that Table he was compelled to listen to him, but he was not compelled now; and, therefore, if the noble Lord did not wish to do so he had the means of relieving himself. He (Lord Brougham) did not object to listen to the noble Lord; but when he did so, instead of interrupting him, he should adopt those means and relieve himself.
The Earl of Devon: My Lords, I shall not comment upon the good taste and the personal feeling which have prompted the noble Lord to make the observations which your Lordships have just heard. I do not know whether it be a well-merited observation; but as the noble and learned Lord has now avowedly and openly put himself in a position of defiance of this House, it becomes necessary to consider what are the rules and orders of the House upon this subject; and I tell the noble and learned Lord that, although he tells us in the strong language he is accustomed to use, that he will speak in this House as often as he likes, when he does again speak twice or thrice on the same question, contrary to the rules of this House, I shall call upon your Lordships to vindicate and enforce these rules.
Lord Brougham: I hope there will be equitable justice extended to all, on both sides of the House. I never rise frequently unless other noble Lords do so.
The further debate thereon, adjourned to Monday.
House adjourned.