HL Deb 29 July 1845 vol 82 cc1182-6
On the Motion of the Duke of Buccleuch

, the Bill was read a third time.

On Question, that the Bill do pass,

The Marquess of Breadalbane

said, that the Government would best consult the interest of Scotland, if they postponed the passing of that measure till next Session. If they persisted in passing it during the present, the consequence would be, that they would have to bring in a Bill to amend it next Session.

Lord Cottenham

proposed to strike out the 17th Clause, which had no connexion with the Bill, and which went to unite South Leith to Edinburgh, for the purpose of parochial assessment for the poor, which was in direct opposition to the judgment of the Court of Session, and that of their Lordships, on the point involved in it.

The Duke of Buccleuch

said, he could not consent to the omission of the clause. The decision of their Lordships had made the alteration in the law necessary.

Lord Campbell

was surprised that Her Majesty's Government should still persist in this clause, which would bring a reproach on the Government. It completely reversed the decision of that House, confirming the decision of the Court below, on an appeal which he, as an advocate, sup- ported, and his noble and learned Friend (Lord Cottenham), as Judge, being at the time Lord Chancellor, gave his unprejudiced opinion in favour of that decision. He had no hesitation in saying, therefore, that to attempt to upset it by a clause of this kind would be regarded as an iniquitous proceeding. He trusted, that his noble and learned Friend on the Woolsack would not hesitate to give the House the benefit of his opinion judicially upon the subject.

The Earl of Dalhousie

defended the clause as a simple measure of justice. There was no intention whatever in proposing it to impugn the decision of that House, or to question the correctness of the opinion as to the law of the case laid down by noble and learned Lords opposite; but he was certainly astonished to hear it now argued, that because that House had decided that the law was so and so, therefore the Legislature was to be precluded from altering it. He admitted, that by the law, as it existed, the parishioners of South Leith were liable to be assessed for Edinburgh; but it was most unjust that they should be so, and he hoped their Lordships would not refuse them relief by acceding to this clause.

The Lord Chancellor

said, he had read the case, and looked at the Act of Parliament, and would state his impression as briefly as possible. In the year 1756 the Heriot Hospital was the owner of the ground in question. That hospital had granted it under a certain contract to the persons under whom the present parties claimed. That was a contract for building houses, and it was provided that, if upon any future occasion it should be taken within the royalty of Edinburgh, it should pay poor-rate burdens to that city. It was clear that the contract entered into between these parties could not affect the parish of Leith, and the land in question was liable to pay parochial burdens to the parish of Leith. Therefore, in consequence of this contract, if the land in question had been included within the royalty of Edinburgh, it would have been liable to pay parochial burdens both to that city and to the parish of Leith. It was clear that that would be the effect of the contract between the parties, because no contract between particular individuals could affect the rights of the parish of Leith. The next point of the case was this—an Act of Parliament was passed ten years afterwards for the purpose of carry- ing the contract into effect. It recited the terms and provisions of the contract, and declared in express terms, according to the stipulations of the contract, that the spot in question should be included in the royalty of Edinburgh, and contribute to the public burdens of the city of Edinburgh. It had been said that it dissevered or disjoined that district from the rest of the parish of Leith; but although it did so, it said, in express terms, it should continue to contribute to the public burdens of the parish of Leith as heretofore. If there had been no Act of Parliament, the contract would have imposed double burdens. The Act of Parliament did not vary the case; on the contrary, it confirmed it, and in express terms stipulated that it should be liable to double burdens. That was the case decided before the Lord Ordinary, and the Court of Session, in conformity with the contract and the terms of the Act of Parliament. It afterwards came before their Lordships' House, and was argued at the bar, and their Lordships confirmed the decision of the Court below on the same grounds, viz., on the footing of the contract. Now what was the state of the case? The parties who held the property at this time, held it subject to all the liabilities of the original agreement, by which they were bound. The agreement passed with the land, with the title, and the parties were as much bound by the contract as the original contractors, and that was the decision of their Lordships' House. Under these circumstances what was now proposed to be done? It had been decided that the property was to be arranged between the parties by a certain mode. Their Lordships were now interposing after that decision, and, by Act of Parliament, practically to reverse it. They were saying this right shall be decided in a different way. If two parties litigated together in a court of law, and the decision was in favour of A, would it be reasonable to come to the Legislature and say, "Although the right is with A, we will legislate and say that in future the right shall be with B?" And that was really the case in the present instance. He had been called upon judicially to give his opinion, and he felt bound, however favourably disposed towards the measure, to say that he concurred in the decision that had already been pronounced on the question. Whatever decision their Lordships might come to, he was bound to state his real opinion. He did not believe that the parties anticipated all the consequences of such a contract—that they would be liable to be taxed according to their "means and substance," and not according to the value of the land. The effect of it was hard, because persons residing in the district were liable to be taxed, not according to the value of the land, but by their means and substance, to Leith and also to Edinburgh. That was no doubt a case of extreme hardship, but still it was a contract, and a binding contract. Whether their Lordships would interpose and put an end to it, was for their Lordships to determine.

Lord Campbell

trusted, after the declaration of his noble and learned Friend on the Woolsack, that the noble Duke opposite (the Duke of Buccleuch) would at once withdraw the clause.

The Earl of Haddington

, speaking as a legislator, and not judicially, was of opinion that the clause ought to be retained; for the purpose of removing the hardship complained of.

Lord Cottenham

felt extremely surprised that the Government should persist in transferring, by Act of Parliament, the property belonging to one man into the hands of another. He was quite certain that the clause had been framed by parties who knew nothing of the facts; and he could not imagine how the clause could be retained, after the opinion delivered by his noble and learned Friend the Lord Chancellor.

The Duke of Wellington

said, it was rather unfortunate, that in the consideration of this question, the abstract legal question should have been mixed up a little with party views. It certainly did appear to him, when the question was first started, that the legal question was brought forward very much with the view of promoting the postponement of the consideration of the Bill to a distant period. His noble and learned Friend on the Woolsack had stated his entire concurrence in the legal opinion of the noble and learned Lords opposite; and, most undoubtedly, notwithstanding the law was intended to make a great alteration in the system of administering the Poor Law in Scotland, and most particularly on this very spot—in the very locality which was the subject of this clause, he felt that it was absolutely impossible for the House, upon a question of this description, to differ in opinion with such authorities as the two noble and learned Lords opposite, backed by the opin- ion of his noble and learned Friend on the Woolsack. Under these circumstances, he should recommend his noble Friend to withdraw the clause.

The Duke of Buccleuch

, after what had fallen from his noble Friend, said he would not persist in pressing the clause.

Clause omitted.

Bill passed.