Lords Sitting of 14 August 1846

MINUTES.
PUBLIC BILLS.—2a. Waste Lands (Australia); Naval Medical Supplemental Fund Society.
Reported. Sugar Duties (No. 3); Militia Pay; Court of Common Pleas; Forms (Assessed Taxes); Patent Commission.
3a. and passed. Mandamus (Ireland); Citations (Scotland); Tithe Amendment; Adverse Claims (Ireland); Joint Stock Banks (Scotland and Ireland); Deodands Abolition; Highway Rates; Loan Societies; Turnpike Acts Continuance; Stock in Trade; Copyhold Commission.
PETITIONS PRESENTED. From Inhabitants of South Molton, for the Abolition of Flogging in the Army.—From several Municipal Corporations in Dublin, praying to be heard by Counsel at the Bar against the Exclusive Privilege of Trading Abolition Bill.—From Free Church Presbytery of Lockerbie, Synod of Dumfries, for Relief in the matter of the Free Church Congregation of Canonbie.—From Mayor, Aldermen, and Citizens of Worcester, in favour of the Small Debts Bill.

FLOGGING IN THE ARMY—THE LATE INQUEST.
EARL FORTESCUEpresented a petition, numerously signed by the inhabitants of the borough of South Molton, in the county of Devon, praying for the total and immediate abolition of flogging in the army. The noble Earl expressed his satisfaction at having heard the noble and gallant Duke the Commander-in-Chief (the Duke of Wellington) declare his hope that he might live to see the day when flogging should be abolished; but he could not, in the face of the diverse opinions expressed by the noble Duke and other high military authorities, concur in the prayer of the petition for its immediate abolition.
LORD REDESDALE, in adverting to a representation made by the petitioners of the fatal effects of the punishment of flogging, "as proved by the death of Frederick White," said, that having read over the whole of the evidence given on the inquest, he had come to the opinion, which he believed to be also the opinion of every one who did not take the strong and
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violent view adopted by the coroner and jury, that there had never been an inquiry conducted in a more objectionable manner. He believed the impression left upon the mind of every fair man was, that the evidence did not justify the verdict, and that White did not die from the effects of the flogging. When he saw a coroner rejecting the evidence of four medical men, and charging on the evidence of one who was his own personal friend—rejecting the evidence of the four other, because it was not such as he wished—he (Lord Redesdale) said, if such was the mode in which coroners' inquests were to be conducted, it would be a great injustice to those who might be charged on proceedings before coroners' inquests; and if such proceedings were not noticed and reprobated, they would lead to the grossest injustice to those who might hereafter be placed upon their trial. If any person were charged, for instance, with murder (there had been no charge in this case), the evidence would give a most unfair impression against the person so charged. He believed many of the Judges of the land would have charged a jury directly in contradiction to the charge delivered by the coroner. He had thought it right to take the opportunity offered by the petition presented by the noble Earl, stating positively that the death had been occasioned by the flogging, to make these few remarks. With respect to the punishment itself, he did not entertain the same prejudice against it which was exhibited by those who suffered their passions to be excited on the subject. He regretted, indeed, that our army was not composed of such a class of men as would enable us to dispense with the punishment of flogging. But it ought to be borne in mind that flogging had been reintroduced of late years by the Legislature, and was found very efficacious in restraining offences against the person of the Sovereign; and he did not see why, if it was effectual in these cases, it should not be equally effectual—if properly applied—to other cases than those of offences against the person of the Sovereign. If it were not found that this punishment was likely to be productive of death in healthy subjects and sound constitutions, it would be easy, by restricting its application to such cases, to prevent any evil consequences. But if every case of death was to be followed by such reprehensible proceedings, we must give up punishment in all cases of weak constitutions, because even imprisonment,

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although it was the mildest of all punishments, was fatal in many cases.

RAILWAY PARCELS.
LORD LYTTELTONpresented a petition from the Booksellers of Worcester, complaining of the power excised by certain railway companies, of opening parcels, and charging separately for each enclosure; and he begged to call the attention of the noble Earl at the head of the Board of Trade, to the vexation and grievance which arose out of this practice.
The EARL of CLARENDONsaid, that the matter had been brought under the notice of the Board of Trade, and he had seen several persons who complained of the practice. He had the satisfaction, however, of saying that the practice was not a general one, but was confined to certain companies. The practice was certainly a very hard and a very improper one; and he had intended to call their Lordships' attention to it, in reference to a particular Bill in which such a clause was contained; but he found that the Bill had received the Royal Assent on the very day on which he proposed to bring the matter forward. He certainly felt no difficulty in expressing a strong opinion on the subject on the part of the Board of Trade. He felt it would be highly improper that railway companies should not only be allowed to charge separately for enclosed parcels, although the whole parcel was paid for by weight, but should assume, as they did, a right to open parcels to ascertain whether there was any enclosure. A case of that kind had recently been brought before a magistrate in the City; but, as in that case the company did possess under their Bill a power of preventing parcels from being enclosed, the magistrate could not give any redress. He would take care that the whole subject should be attended to; and he thought that perhaps the best way in which a remedy could be applied, would be by a Standing Order of Parliament.
LORD MONTEAGLEsaid, it ought not to be allowed to be supposed that in such a case Parliament would not interfere by a Bill, if necessary, for the purpose of preventing this practice. It was one which, in some instances, would be particularly inconvenient. It was well known that at certain periods literary publications were sent to the country booksellers for distribution; and it would be a great inconvenience if those parcels were opened constantly
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under pretence of containing many separate parcels. In like manner it would produce the greatest possible inconvenience, if newspaper agents were not to send packages of newspapers, without coming within this regulation. He trusted that if it were necessary, a Bill would be carried during the present Session to prevent this practice. It was necessary that those concerned in railways should know that if an objectionable power of this nature were granted to a railway company in consequence of being overlooked by Parliament, the Legislature had a power immediately to remedy the evil.
LORD BROUGHAMsaid, that the attention of the House ought to be extended, not merely to this clause, which certainly was highly obnoxious and objectionable, but to other clauses, which the least attention would have kept out of Railway Bills. He could mention one instance of a clause in the Bill under which a particular railway company was constituted, and which clause his noble and learned Friend the late Lord Chancellor and himself could not believe possible to have been sanctioned in any Railway Bill. The clause had the effect of neither more nor less than making any copy, or any writing pretending to be a copy or statement in the company's books, evidence, without the verification by the proper officer of the company. This was not what he complained of; but it was the further provision, making any extract from the company's books—not of money they had received, because that would be properly admissible—but of money paid or stated to have been paid by them—for instance, for poor rates, for which they paid between 3,000 l. and 4,000 l. a year—conclusive evidence of their having paid the money. He could not have believed that such a clause would have been admitted, because it presented the means of accomplishing a direct fraud. The company would have no more to do than to get a clerk or a charity child who could write to make a copy of something which they might state was an entry; and this clause made that copy evidence of payment. He must take that opportunity of observing that there ought to be some better mode of conducting the private business of the two Houses of Parliament; and not only that, but a great improvement was required in drawing up public Bills; for a great part of the business of the Courts now was—and the Judges bitterly complained of it—to construe unconstruable

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clauses, and to assign meanings to provisions which had no meaning at all. Suspicions did attach to the conduct of Committees upon Private Bills, which never could attach to a judicial tribunal. Something like the Resolutions he had laid before their Lordships upon a former occasion ought to be adopted; and he gave notice, that if he were spared to attend their Lordships' House next Session, he would again call their Lordships' attention to the subject.

INFANT SCHOOLS.
LORD BROUGHAMpresented a petition from Robert Owen, late of New Lanark, in Scotland, but now of the United States of America, in which was set forth the peculiar opinions he has so long professed, and praying for the establishment of a State education founded upon them. After eulogising Mr. Owen for his moral qualities, the noble and learned Lord said the opinions of that gentleman were not merely theoretical—he had reduced them to practice, for he informed him that during the twenty years he was proprietor of New Lanark, he employed nearly 2,500 persons, who, together with their wives and families, resided there. In those thirty years thousands must have been in his employment; still never once, during the whole period, had he had occasion to apply to the magistrates to settle any civil disputes between them, nor any one single time had to call their notice to any criminal conduct on their part. Mr. Owen was also the founder of infant schools in this country. He (Lord Brougham), associated with the late Mr. John Smith, the Marquess of Lansdowne, Mr. Fowell Buxton, and others, had been the first to take another and a most important step, that of transferring the system from agricultural and manufacturing establishments, and planting infant schools in towns. He could appeal to his noble Friend (Lord Lansdowne) for the confirmation of all he had stated. He had been with him (Lord Brougham) for three mornings early, receiving the children into their school at Brewer's Green, near that House, in the month of November, 1818, long before Mr. Wilderspin was so engaged in Spitalfields; and all this he (Lord Brougham) had stated in the House of Commons, in December, 1819, and his statement had been confirmed by Mr. J. Smith and others.

CAPTAIN WARNER'S INVENTION—THE EARL OF DUNDONALD.
LORD BROUGHAMwished to ask a question of his noble Friend the First Lord of the Admiralty. He saw that it had been promised in another place that some inquiry should be instituted into Captain Warner's combustible invention; he wished to know whether the same justice ought not to be awarded to the invention claimed by his noble Friend the Earl of Dundonald?
The EARL of AUCKLANDthought it would be desirable that the invention of the noble Lord should undergo the same test as that of Captain Warner.

AUSTRALIAN WASTE LANDS.
EARL GREY, in moving the Second Reading of the Waste Lands Australia Bill, said that the object was much the same as the Bill which had been introduced by his noble Friend (Lord Lyttelton) when Under Secretary for the Colonies, and was intended to provide facilities for the occupation of lands, for the purposes of grazing, a subject of considerable importance in the present state of these Colonics. Some years ago the land was granted to individuals, and it was found impossible, even with the greatest care, to prevent large tracts from falling into the hands of persons who made no proper use of them, and thus drove the bonâ fide settlers to a great distance, obstructed improvement, and affected injuriously the interests of the Colony. Fifteen years ago his noble Friend (the Earl of Ripon) changed the method of disposing of land by abolishing the system of grant, and adopting the system of sale. The price was originally 5s. an acre; but it was now fixed by Act of Parliament at 1l. an acre, and the effect of the new system had been upon the whole satisfactory. The parties were at the time averse to the change, and predicted its failure; but from January 1832 to the end of 1844, the amount of money received from the land sales in New South Wales had been 1,116,000 l., and by far the larger proportion of that amount had been expended on emigration to that Colony. There had been expended in carrying out emigrants to that Colony 964,000 l., or, including incidental expenses and free passages to clergymen and schoolmasters, 1,032,000 l.; and the number of emigrants who had arrived in the Colonies was 95,775. The effect of this upon the population and wealth of the country was in all respects most re-

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markable. The revenue, which in 1831 amounted to only 122,000 l., had risen in 1844 to 394,000 l. The value of the exports in 1831 was 237,000 l., including 75,000 l. for wool; but in 1844 they amounted to 871,000 l.; and the value of the wool in 1844 was no less than 471,000 l. All those results the House must see were highly beneficial both to the mother country and the Colony, the abundant supply of wool being of great value to one of the staple manufactures of this country; and those results he undertook to say arose from the sale of land, more than from any other cause. But it had been found that that system was attended with some inconvenience. Their Lordships might probably be aware that in a state of nature the land throughout a considerable extent of Australia yielded pasturage for sheep and cattle; but then it required a great extent of land to supply animals with food—it took as many as four acres to feed a sheep; it was still, however, desirable that stock and sheep farming should go on to a considerable extent, because it was the great source of the Colonial wealth, provided it was not allowed to interfere with the sale of land. A great deal of the land at present used for pasturage was occupied by persons who held it under yearly licenses, and the district which they held was not less than 1,600 miles in length by 300 in width. The population occupying that extensive district amounted to about 9,000 or 10,000 persons; but they tended a vast amount of sheep and cattle; that state of things added greatly to the wealth and prosperity of the Colony; but unhappily the people so circumstanced were in a very unsatisfactory condition. There were amongst them no schools, no places of worship—not a clergyman was to be seen. At first the care of those flocks and herds was undertaken by single men; but gradually women were added to the population; and the population now consisted of persons of both sexes and all ages. Amongst them there were no means of instruction, improvement, or civilization—nothing to prevent their continuing in a state of the rudest barbarism. Some change was necessary; but the mode of effecting that change of course constituted the main difficulty. It was thought, both by his predecessors in office and by himself, that it would be expedient to allow the squatters and stock-feeders of Australia some more permanent interest in the land than they at present enjoyed under
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their annual licenses; leases, in fact, for such a period as would induce them to build houses, form tanks, and dig wells. Noble Lords might not be aware of it; but the fact was, that the land in Australia was greatly affected in its capability of supporting stock by the quantity of water which it was possible within a reasonable distance to procure; and therefore every encouragement for that species of improvement ought to be held out. It was proposed, then, that under certain limits, the tenure of land should be extended. The Bill which he now intended to move should be road a second time would enable the Government to grant leases for less periods than fourteen years. Practically the period would probably be much less; but it was thought best to take a sufficient power at once, and to avoid the necessity of troubling Parliament a second time on the subject. The late Governor of the Colony recommended eight years, and that would probably be the average length of lease. If the holders of lands under those leases wished to purchase the lands which they had in their possession, a right of preemption was to be given them, subject to arbitration respecting value. On the other hand, if they refused to purchase them, the lands were to be sold by auction. He proposed also that these who had already gone to the expense and trouble of discovering what were called "good runs" should also enjoy rights of preemption. The licenses were now granted at the rate of 10 l. for every 400 sheep, or an equivalent quantity of cattle that the land was capable of maintaining, and he still proposed to retain that rate of payment. In letting lauds, means, he thought, should be taken to insure the good conduct of the holders; and he therefore proposed that persons convicted of misconduct should lose their lands, and in aggravated cases should be deprived of them without any condensation for improvements; and on the other hand it was proposed, with a view to encouraging improvement, that at the expiration of leases or licenses, if the lands were not otherwise required by the circumstances of the Colony, the occupants, if their conduct had been good, should be entitled to a renewal of their lease, or licenses. With respect to the regulations necessary for carrying these objects into effect, the introduction of a sufficient number of them into an Act of Parliament must have the effect of unduly extending such a statute; and therefore it was thought that the best course would be

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to give the power to Her Majesty in Council to make the necessary regulations; copies of which were to be laid before Parliament. It would be impossible for Parliament to legislate upon matters of such minute detail as the establishment of those regulations required. But, on the other hand, Orders in Council were not considered to possess that fixity and permanence which might be thought desirable; and therefore he proposed that no repealing order should come into force until six months after it had been laid before Parliament. He concluded by moving that the Bill be read a second time.
LORD BROUGHAMobjected to giving the power to the Crown of legislating all the year round. He thought that the power of making those regulations should be limited to the Session of Parliament.
LORD LYTTELTONapproved of the measure generally, and in particular of the plan proposed by the Bill for giving the Crown the power of making regulations from time to time. The noble Lord pointed out some verbal imperfections, to which he called the attention of the noble Earl.
EARL GREYexplained.
The DUKE of GRAFTONinquired whether provision was made for applying any part of the revenue in Australia to religious purposes?
EARL GREYsaid, there was at present a provision that a portion of the revenue derived from the Crown lands in that Colony should be applied to augment the religious establishments. But there was a difficulty in making provision for religious purposes arising from the extreme dispersion of the population. Where from 9,000 to 10,000 persons were scattered over a country 1,600 miles long by 300 miles wide, it was obvious that it was physically impossible to make adequate provision for the religious instruction of such a population.
Bill read 2a.

THE POOR LAW COMMISSIONERS.
LORD BROUGHAM: I beg to call the attention of your Lordships to a Notice of Motion which I made on the previous evening, and to the Motions made on several other occasions relative to certain returns affecting the administration of the Poor Law. The cause of the delay has now been very sufficiently and very fully accounted for; and it has not been, I find, in consequence of any unwillingness on the part of those having these returns to produce
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them to your Lordships' House. It was their undoubted duty to comply with the order; and on receiving the intimation, ten days ago, an effort was made to prepare the returns immediately; but to make them out it was necessary to go over the whole of the books for the last five years. This would, as might be expected, occupy a very great deal of time; and I believe, therefore, there has not been the least, not the slightest unnecessary delay, and, much less, any contumacious, or improper, or in any way reprehensible feeling on the part of those honourable — those most honourable—persons the Poor Law Commissioners; that is, so far as concerns the last ten days; and the previous delay, I hear, arose from a doubt as to whether the returns were wished for by the House within any particular time; but, of course, there was no intention of avoiding the order, or of offering by that avoidance, or in the delay, any disrespect. I cannot, my Lords, state so much without saying that it is with great pain, with very great regret, I find that in any quarter there should exist any wish whatever to increase that obloquy under which these honourable and able persons must needs—must of necessity, whether they will or not—perform their difficult, arduous, and, as I think, and as every one must admit, their delicate duties. When, as a Member of Her Majesty's Government, I, many years ago, took part in carrying the Bill respecting the Commission through this House, I found that, in recommending those most fit to be appointed to its administration, there were several gentlemen refused—for I made an offer to one or two to whom, as I should have supposed, the appointment would be of importance—to accept of that appointment; and they rejected the offer on the ground that they could not stand the inevitable odium which would fall on them in carrying out, for the first time, the important, beneficial, and, as it then was, novel system. Sir Frankland. Lewis and Captain Nicholl, who had been most successful in all they undertook, with other able gentlemen, obtained by their exertions the greatest possible amount of benefit to the country; they proved themselves able and excellent men; but, from, the very first, from the very beginning, they were assailed in all quarters, in the press, at public meetings, and in anonymous communications. This I know; and I especially know the latter fact, because I myself received many of them, not one of which contained less—that was very mode-

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rate and civil indeed—than a threat of corporal vengeance; and they were generally ornamented with very remarkable and significant little pictures, from which, as conveying the meaning of the correspondent, I should have derived great advantage had my education, in the point of reading, been neglected. So that, from my experience, I know that the Commissioners were frequently, and still more violently, so assailed. It certainly may be ludicrous to look upon it in this light now; but this potty annoyance has been most painful to them, they being men—and conscious that they were undeserving of the abuse — of the greatest humanity. I believe that Commissioner Nicholls, Mr. Shaw Lefevre, Sir F. Lewis, are men of extremely humane and compassionate dispositions, and yet they were never called less than hard-hearted tyrants and Somerset-house despots. I have always defended them on all these occasions; I believe that they are in the right; I will not, of course, defend them, when I see that they are in the wrong. It is the system that should be blamed, if there be any blame, and not them; as a system it has to be carried into effect, however unpopular it may be in some quarters, and whatever be the abuse it is subjected to from the ignorance of some and the malignancy of others; but the men who carry it into effect stand free from all charge. I maintain, too, that the system is good. I have followed it in all its operations; I have examined all the proceedings and reports; and I have never yet seen any reason to complain except in two things. One of these was the introducing of a certain change, which must be lamented, and which was made on improper grounds—the granting outdoor relief, and adding wages with the rates, which was the very object of the whole Bill, and the very corner-stone of the Bill, to prevent. And I trust that the intention is to remedy those defective portions of the system, and to extirpate such of the poisonous and mischievous weeds as have found their way in.

LAW REFORM.
LORD BROUGHAMsubsequently referred to the delay which had taken place in passing several of his Law Bills, which he had carried through that House, and which were now in the House of Commons, and he begged to explain, in answer to the numerous inquiries which had been made of him, that it was in consequence of the changes which had recently taken place in
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the Government, that the necessity had been found to exist of postponing several of the Bills, in order to have a full discussion, until next Session. The delay in going forward with the Bill containing the digest of the Criminal Code, resulted from the Commissioners having suspended their other labours, and applied themselves solely to the alteration of that part of the digest referring to penal enactments and penalties for religious opinions, and which would necessitate the omission of 200 sections. This obstacle would speedily be removed; and next Session he looked forward with confidence to being able to proceed with it, and, by it to confer the greatest boon on this country which legislation on the state of the law had ever granted—what, in fact, it was the duty of every Government to give to its subjects, viz. in a clear and distinct view, knowledge of those laws, especially on criminal matters, with which they were bound to comply, and by which they were ruled.
The JOINT STOCK BANKS (SCOTLAND AND IRELAND) BILL was read a Third Time and passed.
House adjourned.
Protest against the Third Reading of the Scottish Joint Stock Banks Bill:—
DISSENTIENT—
1. Because the Bill is inconsistent with those free and liberal principles of trade by which Her Majesty's Ministers are understood to be governed, inasmuch as, under the pretence of removing a monopoly disadvantageous to the public, it covers the monopoly with a protection that fixes it more firmly than ever.
While it professes to open the door to an equal dispensation of chartered privileges to all Scottish banks that may petition for them, it bars it, at the same time, against any bank but such as may choose to submit to vexatious conditions, calculated to create in the public mind invidious distinctions between them and the old chartered banks, who by this Bill are to be exempt from such conditions.
2. Because the legislative interference with the management of joint-stock companies, which this Bill provides, is erroneous in principle: but even if it were sound, the inconsistency of its application is conspicuous, as it imposes rigid rules and restrictions on one class of banks, whose constitution and unlimited responsibility offer to the public the most perfect security; while it exempts from all such interference another class of banks less securely constituted, and in which the probabilities of mismanagement are as great, if not greater.
3. Because the confining of certain privileges to one class of banks in Edinburgh, while the banks in other large towns are by this Bill to be debarred from the attainment of such privileges on equal terms with their competitors, is disadvantageous to the public; for the exclusive privilege of receiving deposits of public money, trust funds,

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railway deposits, &c., greatly increases the trading power of the chartered establishments; and the large sums which are thus directed to these banks, in place of being permitted to flow in their natural channels, enable them to change the rate of discount, when the existing state of commercial affairs does not warrant such a step, and the relations depending between other banks and the public are thus liable to be disturbed, and speculation encouraged.
4. Because this Bill takes away all discretionary power of granting charters of incorporation to banks, founded on such equitable principles as circumstances may at the time suggest, and as was done in the case of the Commercial and of the National banks of Scotland; and because it limits the power of Her Majesty to the granting of charters according to the specific provisions of this Bill only—that is, upon terms and conditions which no bank in Scotland is likely to accept; consequently this Bill, if passed into a law, will become an Act for no apparent object of public advantage; but in reality an Act for preserving to the five chartered banks of Edinburgh their existing monopoly. RADNOR.