Lords Sitting of 28 June 1847

MINUTES.
PUBLIC BILLS.—2a Police Clauses.
Reported.—Royal Marine Service.
3a and passed:—Bishopric, &c. of Manchester.
PETITIONS PRESENTED. From the Parish of Calne, Gloucestershire, for the Repeal of the Law of Settlement.—By the Earl of Wicklow, from Guardians of the East Preston Union, for Alteration of the Law of Settlement.

PRIVATE BUSINESS OF THE HOUSE.
LORD BROUGHAM, in rising to bring before their Lordships the subject of the Private Bills and business of the House, felt that he was not superfluously or prematurely, needlessly or too early, calling their attention to this very important subject. A great and an enormous augmentation had taken place of late years in the bulk and importance of the private business of the House—a class of legislation which arose gradually from very small beginnings. Anciently, Private Bills were presented in the form of petitions, claiming justice from Parliament, before Parliament consisted of two chambers; and, subsequently to that division, it was the practice of Parliament to receive and deal with such petitions. They were referred to persons appointed at the beginning of each Parliament or Session—for Parliaments were then yearly—called Receivers and Triers of Petitions. The recevours originally were not, of necessity, Members of either House of Parliament; the triours originally consisted partly of Prelates, partly of Temporal Peers, and partly (but in a small proportion) of members of the legal profession; but after a time the triours were selected wholly from Members of that House, but were desired to take to themselves the assistance of the King's Serjeants. "Matters of great amount, and of importance, and of great example"—so it was expressed on the Parliament Roll—were referred to Parliament for its decision; matters which appeared to be purely of a judicial nature were referred by the triours to the courts of justice, and to an increasing extent as

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the jurisdiction of the Chancery and the Equity Exchequer grew up into definite form, most of the petitions being for equitable relief; but still a third class was dealt with by these receivers and triers of petitions, and dealt with in Parliament. Up to the present day such persons were appointed at the opening of every Parliament, and even "for petitions from Gascony." The reason given in the Roll of Parliament for their having the assistance of the Judges and Serjeants was—"that so the King and the Lords may have the more time for the urgent business of the State." What would our ancestors who thus spoke have said, if they had lived now, to have 700 Bills presented to them in one year, and between 400 and 500 actually passed, containing nearly 14,000 sections, all binding every subject of the Crown? Not, however, that these Bills were of minor and secondary consideration; the amount of this private business was not more enormous than its intrinsic importance was grave. Now, he (Lord Brougham) begged to give at the outset the same pledge with which he introduced in the other House nearly twenty years ago a proposition for the general amendment of the law—a proposition which, with the aid of the then Lord Chancellor (Lord Lyndhurst), bore most important and precious fruits; he himself might so say, for he was but by accidental circumstances the originator of it, and without any merit of his own. In the present instance, also, as then, he would not state one fact, nor refer to one point, nor advance one position, for which he had not the warrant in his own individual experience, professional, or judicial, or legislative. Let the House, then, mark, first, what these Private Bills were, and what the interests were with which they dealt; next, the manner in which these interests were dealt with; and then, the mischiefs that followed from the nature of those enactments, and from the manner of dealing with those interests. When a common case was brought into a court of law or of equity, and a matter of law or of fact was in issue between two or more individuals, the court had to be guided by the law of the land, found either in the Statute-book, or in text writers, or in the reports of decided cases. They were not let loose without principle, and thrown wholly upon their own resources, to hear what one party asked and another refused, and to gratify one or other, or strike a medium in the exercise of an un-
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bounded discretion. They had a chart to guide and a compass to steer by. The chances of error or of misdecision were therefore much diminished, and also (though this topic was more delicate) the chances of corruption. A fair prospect existed that right and justice in each case would be done; and, if not done, it was the fault of the general law, which might be mended, or of the judge, who might be punished or removed. And, what was involved in the result? Damages to the amount of 40 l. or 50 l.; it might be, indeed, as many hundreds, but that was not so in the average of cases decided according to well-known rules by the learned Judges. On asking the prothonotary, once, on the last day of the assizes at Lancaster, what was the amount of the verdicts that had been given, during the whole sittings, he (Lord Brougham) found that the average amount for the whole 220 cases was but 13 l. 15 s. True, a question of right of way, or other easement over property, or of title to land, or a question between creditors, or a question of bankruptcy, or of mortgage, might be of more importance than the amount of the verdict indicated; but to talk of their bearing the very remotest comparison with those matters which were every year, by the score or by the hundred, disposed of by the private legislation of the two Houses of Parliament, would be utterly preposterous. Whether a whole neighbourhood should be disturbed in its possessions—whether all the rights which the general law of the land gave to us should be set at nought by a particular law—the most sacred rights of property violated, and a man's property taken forcibly from him —taken forcibly against the title which the law of his country gave him—whether a man's dwelling-house was to be made untenable, and himself and his family expelled from their home—whether the possessions which he valued above all price were to be forcibly wrested from him for a sum fixed by others, and to benefit others alone—whether settlements and latter wills deliberately made by undoubted owners of property were to be rudely set aside, and new dispositions of that property made—these were the sort of questions disposed of by those Acts which Parliament passed year by year, and passed by the hundred. Was he (Lord Brougham) proposing that the caprice of an individual landowner, or even his just reluctance to part with his property, should be suffered to stand in

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the way of a great public interest, and to defeat a measure well framed, and judiciously, and even cautiously and scrupulously devised, for gaining an important public good? Very far from it. He admitted the right to legislate. But he had to institute, in the second place, a comparison between the manner in which the constitution of this country dealt with ordinary questions, comparatively insignificant and certainly more easy of solution, and the manner in which it dealt with those other questions, departing, as he thought, altogether from sound principle. In those more trifling cases, decided according to known principles and the settled rules of the law of the laud, see how the rights of the parties were fenced about, and how scrupulously a watch was kept over every gate, or door, or cranny, or chink, through which wrong, or error, or oppression, or injustice might find its way. There must be the Judges of the land to administer justice; very reluctant had Parliament been to delegate to others jurisdiction over the more unimportant cases decided by local courts; and, after all, the local courts were not allowed to deal with questions of right to land, or where the matter in dispute exceeded 20 1., or to have, as yet at least, any jurisdiction in equity. Whence arose this reluctance? Only because we thought that in the superior Judges of the land, we had the best security for great learning, great professional skill, and for incorruptible integrity, those learned individuals being removed from the strifes of common life, and from the contention of politics and of party. But what course had they taken with respect to a different matter, and one of greater importance to the individuals concerned? What course had they taken with respect to the transcendental power of altering or suspending the law, or making a new law applicable to a special case, and a particular party? In tin's far more difficult and delicate matter, had they provided any of those checks, or raised any of those guards, which he had just referred to, to surround the rights of parties? Had they fenced or encompassed them about with any of those brazen walls, as one of the Judges once expressed it, through which no corruption and no injury could penetrate? On the contrary, he would venture to assert that the wit of man could not have devised a more rude, ill-fashioned, inartificial, he would almost say absurd, if not ridiculous, mode than the present of performing that transcendental branch of
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the duty of Parliament which was connected with the private legislation. The Members of the House of Commons were unfitted to transact the business connected with Private Bills, including Road Bills, Canal Bills, Enclosure Bills, Railway Bills, &c, because as Members they were unaccustomed to the exercise of judicial functions, and still more because the construction of the other House rendered its Members ill adapted in another sense for that purpose. Each Member had his constituents, whose representations he must hear; he was naturally not indisposed to oblige them, particularly in reference to matters of local interest; and from hearing one party, and not hearing the other, he became even unconsciously, and as it were conscientiously, biassed. But it might be said that against this influence of the constituency, the Standing Orders recently agreed to—against the appointment of interested parties on Committees for Private Bills—afforded a valuable safeguard, the Commons having, after a long delay, and with great reluctance, adopted the Standing Orders which he (Lord Brougham) had had the good fortune of inducing their Lordships to adopt ten years ago. Alas! it was not so, for a "shift" took place; the meaning of which was, that an arrangement was made by which a Yorkshire Member sat on a Cornwall Bill, and a Cornish Member sat on a Yorkshire Bill, by which means the constituencies of both were gratified just as completely as if the Standing Orders had never passed. But let not their Lordships wrap themselves up in their dignity, and thank God, like the Pharisee, that they were not like other men—that they were not like those publicans and makers of taxes; for it was just possible that some such "shift" at times might take place within their Lordships' walls, in their more judicial, and therefore more pure, atmosphere. But to speak of the capacity of the parties who had to deal with this private business, he must say that it was of the highest importance to have skilful, experienced, and learned persons to decide on matters which were more difficult and more important than those which ordinarily came under the cognizance of the Judges of the land. The Members of Private Committees, in either House, were, to all intents and purposes, judges. They heard counsel and witnesses, and they came to decisions on conflicting testimony. They constituted, in fact, both judge and jury. Yet what

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experience had those individuals, to give them capacity to perform their high and transcendental functions? Why, a man might be two or three times a Member of a Committee in the course of the year. That did not give him sufficient experience; and when two lawyers disagreed before a Committee, the Members, to settle the matter, might take the opinion of another lawyer out of doors, to whom they stated the case (and very likely imperfectly stated it), and who gave his opinion without having ever heard either side. Thus it frequently happened that contrary decisions on the same points were pronounced. In an Election Committee, he knew that not long ago this happened: the question was one of law, and by a single vote it was decided in a Committee one day—next day the same point arose in another Committee; a Member of the former who had voted with the majority, and seated his political Friend thereby, now was called upon by his party duty to vote the opposite way, and for the same purpose: had he voted as before, his Friend would now be defeated. How did he act? He was taken ill, and a medical certificate relieved him from attendance; and the decision of the day before was wholly disregarded by the majority of the second day: the point of law was decided the very opposite way, and the sick Gentleman's Friend prevailed by his absence, as his other Friend had prevailed the day before by his vote. Of the Private Bills brought before Parliament of late years, a great proportion had been Railway Bills; but their Lordships must not suppose that because more than 400 Railway Bills were passed last year, and nearly the same number this year, they had done with legislation on the subject. There was no doubt that railways were of infinite use in promoting communication between one part of the country and another, especially in the conveyance of passengers; and therefore a great number of railways would undoubtedly be established. It was requisite, for the public convenience, that there should be smaller branches to connect the main lines of railway, or to connect outlying places with those lines. There was no doubt, therefore, that nearly, though not quite, as great an amount of railway business would be brought before Parliament during the next Session, and for some succeeding Sessions, as had been brought before them during the last and the present Session of Parliament. It must be remembered, also, that with re-
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gard to nearly every Railway Bill which was passed by Parliament, it was necessary to introduce a new Bill to alter, or amend, or extend the provisions of the original Act. He considered that they ought to deal with these great interests by means of some responsible tribunal; but there was no responsibility in Parliamentary Railway Committees, or in Committees on private business. The members of those Committees were singled out once or twice in a Session; but the instant they fell back into the body of the House to which they belonged, they had no individual known personality, and therefore no responsibility. He might be asked whether he attached blame to the professional men employed in Parliamentary Committees on Private Bills? He might be asked what he thought of that which was so loudly complained of—of counsel taking briefs in ten Committees, when there was not a possibility of their attending more than three or four, and of their receiving immense sums of money, 10,000 l., 20,000 l., 30,000 l., or 40,000 l. in one Session? He might be asked what he thought of men receiving large sums of money with the certainty that they could not discharge the duties for which they were retained? He might be asked whether he blamed them for it? He knew the profession too well to blame them. The public said, "Why do they take briefs when they cannot attend?" But a counsel could not refuse a brief; he must take every brief offered to him, and his client must run the risk of his not being able to attend. His noble and learned Friend opposite (Lord Campbell) and himself had often been in that situation; and his noble and learned Friend knew that it was impossible to avoid it. But it was said that these gentlemen, when briefs were offered to them, ought to tell their clients they would be unable to attend. He knew that the late Sir W. Follett had over and over again told persons from whom he had received briefs, "Mind, I can't come;" and the reply was, "We know you can't come, but take the brief." And why was this? Because, after counsel had taken the brief, he could not be retained on the other side. The client had this benefit by giving him the brief; and all he got or could get was the beneficial chance in the lottery—the chance of his counsel attending. But then it must be a chance, and one equally open to all clients. If counsel took a brief from any client, with an additional sum to secure his attendance upon that client's case, and

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so gave a certainty to one while others were thus deprived even of a chance, he was guilty of conduct of which he (Lord Brougham) wholly and entirely disapproved. He had heard that cases of that kind had occurred; he disbelieved the statement; hut he did say that, if the assertions were true, he had no language in which he could express too strongly—and he spoke as a Judge—his disapproval of such conduct. From every point of view in which he regarded this subject, he saw the importance of appointing a responsible tribunal to transact the private business brought before Parliament; and if this were necessary at present, how much more so in the next Parliament? He now saw in the columns of newspapers containing election advertisements the names of chairmen and deputy-chairmen of railway companies, and of large proprietors of shares in such undertakings, as candidates for seats in the other House; and, in many cases, these parties, who had the gift of numerous situations, ranging from 40 l. to 70 l. or 80 1. a year, might probably be able to influence constituencies, and to obtain seats in Parliament. Their Lordships had heard of some Parliaments which were distinguished by particular names; they had heard of the "Habeas Corpus Parliament;" they had heard of the "Long Parliament," and of the "Lack-learning Parliament;" and he believed that next Session they would see a "Railway Parliament." He looked forward to a great change—nay, he doubted if our language itself would be safe. There would no doubt be first-class, second-class, and third-class Ministers; and persons would change their stations instead of their places. The power would be said to shunt from side to side; there would he many sleepers, and some signal men. They might even hear of some railway Member commencing his speech by saying, not "Had I caught your eye," but "Had my steam been up, Mr. Speaker." He had no doubt these railway Members would be found most temperate, most obedient, most submissive—not to the Treasury bench—but to their own signal—to their own flag—to their own boatswain's whistle—which summoned them to the charge against any reform— any improvement—any amendment of the existing railway system, which might be proposed; and it was not improbable that many jobs might be perpetrated, that much mischief might be done, and that much good might be prevented, in conse-
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quence of the perfect discipline and close subservience of these persons to their leaders. Those leaders would be implicitly followed without regard to any reasoning at all. The scene he saw before him reminded him of the famous simile of the great Italian poet:—
"Like silly sheep that issue from the fold
By one, by two, by three—the others stand
Timid, with mouth and eye to groundward turned,
And what their leader does, they all must do;
Stop if he stops; and if he moves, go on;
Simple and silent—but the reason why—
Of that they nothing know and nothing care."
(Semplice e quete e lo imperche non sanno.)
In such a Railway Parliament he expected little improvement as regarded the legislation upon Railway Bills. He therefore preferred the present, and hence his Motion. He had deemed it his bounden duty, from the interest he had always felt in the business of that House, to call their Lordships' attention to the subject; and he thought that now, more than at any other time, it became their duty to apply an effectual and timely remedy to the evils which he had endeavoured to point out. The minor matters of conferences, and of the mode of bringing up Bills from the other House, which he had incidentally brought under their Lordships' notice last week, were fit subjects, in his opinion, for the consideration of the Committee whose appointment he felt bound to propose. The noble and learned Lord concluded by moving—
"That a Select Committee be appointed to take into Consideration the Mode of dealing with Private Bills, and holding Conferences with, and sending Messages to the other House of Parliament."
LORD REDESDALEconcurred in many of the objections advanced by the noble and learned Lord against the course of conducting private business in that House; but at the same time he must say he did not think the evils of the present system were so great as the noble and learned Lord had described them to be. He (Lord Redesdale) must state, from his experience on the Committee of Selection, that no bar- gains were made by Members of that House with regard to their appointment or con- duct on particular Committees. The question was, whether that which was now suggested did not contain on the face of it greater objections than the system which it was proposed to amend. It was highly desirable that some improvement should be made in the existing system; but the pre-

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sent was too late a period in the session to take so important a question into consideration, he felt bound to say, after very attentively watching the proceedings of their Lordships' Committees, that instances of wilful partiality on their part were of the most limited description.
The DUKE of RICHMONDhoped the noble and learned Lord would withdraw his Motion for the appointment of a Select Committee, since it would be impossible for that Committee to make a report during the present Session. There was one alteration in the present method of procedure which he trusted would be adopted next Session, viz., that when Railway Bills passed the Standing Orders' Committee of the House of Commons, they should come at once before the Standing Orders' Committee of their Lordships' House, instead of first having to pass through all their stages in the other House. If this alteration should be adopted, both Houses ought never to consent under any circumstances whatever to suspend their Standing Orders. He trusted that, in the next Session of Parliament, the Standing Orders would be reviewed with a view to their improvement.
The MARQUESS of LANSDOWNEconcurred in the application made to the noble and learned Lord to withdraw his Motion, although, at the same time, he should be sorry to have it supposed that he undervalued the great importance of the subject, or the necessity of providing against the inconvenience necessarily attendant upon one of the greatest changes that had happened in our social system. While he was ready to admit that further improvements were required in the mode of dealing with Private Bills, it could not be denied that considerable progress had been made in checking abuses in railway legislation. He would especially mention the appointment of the Committee of Selection by the other House, and the selection of a chairman by them, instead of leaving each Committee, as before, to elect its own chairman. he doubted whether the resolutions of the noble and learned Lord would prove as efficient in practice as he might suppose. Parliament would do well to give its attention to the matter at some future time; but he would not at present recommend to their Lordships to appoint a Committee, which could not, at this advanced period of the Session, do justice to the subject, or make a report which would give satisfaction to the public.
LORD BROUGHAMreplied.
Resolved in the negative.
House adjourned.