Lords Sitting of 28 July 1845

MINUTES.
BILLS. Public—1a. Taxing Masters, Court of Chancery (Ireland); County Rates; Real Property (No. 3).
2a. Railways (Selling or Leasing); Bills of Exchange, etc.; Bonded Corn; Testamentary Disposition, etc.; Criminal Jurisdiction of Assistant Barristers (Ireland): Stamp Duties, etc.; Militia Pay; Land Revenue Act Amendment; Lunatics; Compensations.
Reported.—Poor Law Amendment (Scotland); Lunatic Asylums (Ireland); Drainage (Ireland); Highways.
3a. and passed: — Unclaimed Stock and Dividends; Spirits (Ireland); Excise Duties on Spirits (Channel Islands).
Private—1a. Leeds and Bradford Railway (Mistake Rectifying).
2a. Brighton, Lewes, and Hastings Railway (Hastings, Rye, and Ashford Extension); Darby Court, Westminster.
Reported.—South Wales Railway; Monmouth and Hereford Railway; Glasgow Junction Railway; Guildford, Chichester, and Portsmouth Railway; Brighton and Chichester Railway (Portsmouth Extension); Direct London and Portsmouth Railway; Duddeston and Nechells Improvement; Erewash Valley Railway; Glasgow, Barrhead, and Neilston Direct Railway; Manchester and Leeds Railway.
3a. and passed:—Birmingham and Gloucester Extension Railway (Stoke Branch); London and South Western Railway; South Eastern Railway (Greenwich Extension); South Eastern Railway (Tunbridge to Tunbridge Wells); Gravesend and Rochester Railway; Rothwell Prison; Shrewsbury and Holyhead Road,
PETITIONS PRESENTED. By Duke of Buckingham, from Clergy and others of Aylesbury, for Abolishing Punishment of Death.—By Bishop of Norwich, from Rotherfield, and several other places, for the Suppression of Intemperance, especially on the Sabbath.

DECEASED PEERS.
Lord Campbellsaid, that he should take the opportunity of calling the attention of the House to a subject of one of the Standing Orders, No. 113, with respect to which he had given notice. The Standing Order was to the effect, that any person presuming to publish the works, or life, or will, of any deceased Lord of Parliament, without the consent of the heir or executor of such Lord, should be deemed guilty of a breach of the privileges of that House. He should best discharge his duty on that occasion by referring to the history of the Standing Order. It took its origin from the proceedings of the well-known Edmund Curll—the infamous, the dauntless, the shameless Edmund Curll. In 1720 died John Sheffield, Duke of Buckingham, a celebrated poet of that day; and in 1722 Curll published an advertisement in a London paper, called the Daily Journal, in which he announced that he intended to publish a libellous life of the deceased nobleman. In consequence of this, the family of that nobleman interposed, and caused a complaint to be made to that House on the subject. He found this stated in the Journals of the House of the date of the 22nd January, 1721–22, and the advertisement was read, announcing that the Life and Works, in prose and verse, of John Sheffield, Duke of Buckingham, together with a true copy of his last will and testament, would be published on a certain day named by Edmund Curll, over against Catherine-street. This person was summoned to the bar of the House, and ordered to attend next day. The Journals for the next day stated that the House being informed that Curll was in attendance, he was called in and examined as to the advertisement, and was ordered to withdraw. The House then came to this Resolution, "That it is resolved by the Lords Spiritual and Temporal in Parliament assembled, that any person presuming to publish the life, or will, of any deceased Peer, without the consent of his heir or executors, was
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guilty of a breach of the privileges of that House." Curll was then reprimanded by the Lord Chancellor for allowing the advertisement to be printed, and also forbidden to publish the work. In the course of the proceedings upon that occasion, a Committee was appointed; but he could not find that that Committee ever made any Report to the House, though he had made diligent search on the subject. On the 31st of January following, the matter was, however, again taken into consideration, and the Resolution was duly passed as a Standing Order. That was the Order now appearing on their Lordships' Books, and which had remained in force to this hour. He found that the Order was not intended to remain as a dead letter, for an attempt had been made to enforce it in the year 1735. In that year the same Edmund Curll issued another advertisement, which was published in the daily journals, and which gave great alarm to the Members of their Lordships' House. On the 12th day of May, 1735, this advertisement was brought under the notice of the House. It was published in the Daily Post Boy, and was to the effect that there had been just published Mr. Pope's literary correspondence for thirty years, namely, from 1704 to 1734, being a collection of letters written by him to the right hon. the Earl of Halifax, the right hon. the Earl of Burlington, and many others—printed for Edmund Curll, in Rose-street, and sold by all booksellers. It was ordered by the House that the Gentleman Usher of the Black Rod should go and seize all the copies of the book, and that the said Edmund Curll, together with John Wilford, by whom the newspaper had been printed, do attend the bar of the House next day. The parties accordingly attended on the following day, and being examined, were ordered to withdraw. The Gentleman Usher of the Black Rod then reported to the House what he had done under their Lordships' order. He stated that he had ordered all the copies of the book found at Mr. Curll's house to be seized, and that he believed they might be 500 in number. A Committee was appointed, to whom the copy of the book presented by the Gentleman Usher of the Black Rod was referred; and Edmund Curll was ordered to attend the Committee. The Earl Delawarr brought forward the Report of the Committee in the House, and it appeared from it that

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this was an illegal seizure, that no letters from any deceased Peer was contained in the publication, and that the Committee did not think it contrary to the Standing Order, and they therefore recommended that the books which had been seized, should be restored to Edmund Curll. The Report was read by the clerk attending the House, and agreed to, and the books were given back to the publisher. He was not aware that there had been any other seizure under this Standing Order, though there had been many lives of deceased Peers and of deceased Prelates, Members of their Lordships' House, published on various occasions, without the leave of the friends or representatives of the deceased parties. His noble and learned Friend, who, he regretted to perceive, was not then present (Lord Brougham), had published lives, powerfully and ably written, of several deceased Members of that House, more especially of Lord Chatham and Lord North, and he had no doubt without the consent of the heirs and representatives of those noblemen. He (Lord Campbell) had also employed many laborious hours, without, he hoped, incurring the censure of that House, in writing the lives of the predecessors of his noble and learned Friend on the Woolsack, both spiritual and temporal.
The Lord Chancellor: Not down to the present time, I hope.
Lord Campbellsaid, he hoped many years would pass before any one could have an opportunity of writing the life of the present Lord Chancellor as a deceased Peer. Curious enough it was, that the Standing Order did not apply to his noble and learned Friend, for any body might take such a liberty with him. The Standing Order did not apply to the life of any except a deceased Peer. In fact, it only followed the rule de mortuis nil nisi bonum. It must, if enforced, serve as an entire prohibition against writing the lives of some Chancellors. For instance, St. Swithin had been Lord Chancellor to King Ethelbert, and St. Thomas A'Becket was also Lord Chancellor of England, and who the heirs or personal representatives of these deceased Members of their Lordship's house might be, he had been unable to discover. Besides, he considered the Standing Order unnecessary, inasmuch as the law allowed an indictment to be laid for a libel reflecting on the memory
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of a deceased person, and a very remarkable action of that kind was tried in the early part of the reign of George II. He considered this Standing Order one having a strong tendency to bring into disrepute the necessary privileges of their Lordships' House, and he, therefore, begged to move that it be rescinded.
Motion agreed to.
Standing Order, No. 113, vacated.

COMMONS' ENCLOSURE BILL.
Lord Stanley, the House resolved itself into Committee.
On Clause 1 being read,
Lord Portmancomplained that under the clause, the entire control of the commons to be enclosed would be given to the First Commissioner of Woods and Forests; and when the Drainage Bill passed, the whole landed property of England would be under the control of the Government of the day. He thought, that either the Chairman of the Woods and Forests, or the other unpaid Commissioner, who was not named in the Bill, should be struck out, as he had no doubt but that the latter would also be immediately connected with the Government.
Lord Stanleysaid, the House of Commons had thought proper to send up the Bill with provision for only one paid Commissioner, and if but one unpaid Commissioner were appointed in addition, the two Commissioners would not be able to work as satisfactorily, in case of differences among themselves, as a Board consisting of three Members. These Commissioners would not have so much power as the noble Lord supposed. All they had to do was, in the event of a certain number of persons interested in the enclosure, making an application to them for the purpose, first to make inquiry, and they were then empowered to frame a scheme or draft bill of the enclosure. That scheme was to be referred to the parties interested in the inquiry, and unless these assented to the proposal of the Commissioners, then the whole matter fell to the ground. Even if the parties did assent, the subject should then come before Parliament. The main object of the Bill was to save expense, and he thought, under the circumstances, that some one of the Commissioners ought to be a responsible Minister, who would be answerable to Parliament for what was done.
Clause agreed to.
Clauses, up to Clause 11, agreed to.
On Clause 12 being read,
Lord Stanleymoved the omission from the clause of the words—
"That no royal forest, or any part thereof, shall be deemed common land under the provisions of this Bill,"
For the purpose of inserting the words—
"No part of the New Forest, in Hampshire, or of the Forest of Dean, shall, &c."
He proposed the alteration, because he understood there were forest lands in some parts of Wales that might be advantageously brought under the provisions of the Bill.
The clause as amended agreed to.
Clauses 13, 14, 16, 17, and 18, agreed to.
Clause 15 postponed.
Clause 19 was agreed to, after some discussion between Lord Stanley, Lord Portman, Lord Cottenham, Lord Lyndhurst, and Lord Camoys, as to the mode in which the interests of infants were to be represented in cases of enclosure.
Clauses 20 and 21 agreed to.
Clause 22 was postponed at the instance of Lord Campbell, as it was founded upon the supposition that the existing law had been violated.
The other clauses agreed to, with a few verbal Amendments.

POOR LAW AMENDMENT (SCOTLAND) BILL.
The Duke of Buccleuch, in moving that the House do now resolve itself into Committee, adverted to the Report of the Commissioners of Inquiry on this subject, detailing the present state of the law and its administration. It was well known that the present provision for the relief of the poor in Scotland was very inadequate; an inadequacy not arising from any want of charitable disposition among the people, but from the defects of the machinery created for carrying out the law. In providing for the more effectual relief of the poor, it was not intended to alter the principle of the present law; the Bill was framed in accordance with the evidence taken before the Commissioners, and he believed was regarded with general favour in Scotland.
Lord Campbellallowed that there was in the Bill much that was good; but still thought it might be made better; he would, therefore, suggest that it should stand over, so that it might be improved
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during the recess. He admitted that the state of the Poor Law in Scotland was most objectionable, and, above all, that part of the law with reference to pauper and criminal lunatics. That most important portion of the Bill having reference to the medical relief of the poor, he greatly approved of. He was satisfied that it was for the interest of the poorer classes that there should not be too lavish a measure of relief for the destitute poor, for by so doing, a strong stimulus to exertion was removed. There were some persons who thought that every ill affecting humanity could be removed by the Legislature; but this was merely chimerical. To offer inducements to a young man and young woman, without any means, to marry at an early period of life, and to bring into the world as many children as their fecundity would furnish, was a principle which was most objectionable, and to which he never could give his assent. These early marriages had been productive of one of the evils under which Ireland suffered, and any checks to so great an evil must prove salutary. There were some of the clauses of the Bill which he was satisfied would give rise to considerable litigation, and would cause an enormous expenditure. Those parts of the measure having reference to the Law of Settlement were also open to objection. Some parts of the Bill, also, would fall rather heavily on English persons taking up a temporary residence in Scotland. Voluntary assessment formerly existed to a considerable extent in many parts of Scotland; but they might depend upon it, under the operation of this Bill, that they would be got rid of altogether. It might be held that all property liable to the Property Tax ought to be made liable to this tax also; but at present they had no rule whatever. The noble Duke was wrong in supposing that this Bill would not alter the existing law, as there were to be three new modes of assessment introduced under it, and there would be agitation and disunion produced in every parish in Scotland, in fixing on which particular mode they should select. One of the most gross instances of injustice which the Bill would inflict, would be in cases where Englishmen had a temporary residence in Scotland. In every such case, all the property which the individual possessed in any part of the world would be liable to assessment in the parish in which he resided. He trusted, therefore, that the Government would introduce some provision to guard

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against this injustice. Having stated these objections, he would not, for the present, detain their Lordships with any additional remarks. His principal objection was to the clauses regarding assessment. They were calculated to produce infinite litigation, and unless they were altered, it would, he thought, be much better to withdraw the Bill altogether, and to wait for another year before legislating on the subject. If persevered in as it at present stood, he had no difficulty in foretelling that the Bill would be hereafter called the curse of Scotland.
House in Committee.
Lord Campbellsaid, he had some Amendments to suggest as to the Assessment Clauses, and also respecting South Leith, which he would bring forward on the bringing up of the Report.
The Earl of Haddingtonwished to observe, in reference to what had fallen from the noble and learned Lord who had just sat down, that the principle of assessment to which he objected was the principle of the old law, and was also admitted in various local Acts. It had been tried for a long period, and he never heard of its having created any of the litigation or difficulty which the noble and learned Lord seemed to apprehend. He could not understand why any Scotchman who, as was sometimes the case, made a large fortune in England, should not be taxed when he returned to reside in his native country. Besides, he believed it did not happen that means and substance were rated in England.
Lord Campbellsaid, the noble Earl had entirely misunderstood him. He by no means objected to the principle of means and substance being taxed, as he believed it to be perfectly just and proper; but what he wanted was, that there should be a definition of the term given in the Bill.
The Lord Chancellorsaid, he did not understand the Bill to introduce any new principle in the law. The courts of Scotland would decide on the construction of the term means and substance, in accordance with their usual mode of proceeding; and if that was not thought sufficient, he should wish to hear the noble and learned Lord himself try his hand at a definition.
The Earl of Dalhousiesaid, the law existed in Scotland for 300 years, and, to his own knowledge, was constantly acted upon.
Bill reported without Amendment.
House adjourned.