Lords Sitting of 5 February 1850

MINUTES.
PUBLIC BILLS,—1o Proceedings against Clergy.
2o Registrar's Office, Bankruptcy.

CASE OF LIEUTENANT GRAHAM AND MR. ELLIOT.
LORD BROUGHAMrose to put a question, which he would ask on another day if the Members of Her Majesty's Government, which had no representative of the Admiralty in that House, were not prepared to answer it at that moment. His question had relation to the case of Lieutenant Graham and Mr. Elliot, a master in the Navy, who had been brought before a court-martial last autumn for desertion and misconduct, had been dismissed the service in consequence, and, what was worse, had been declared incapable of serving Her Majesty in any capacity whatsoever. He had always been one of those who were of opinion that, as a general rule, no interference with the proceedings of any naval or military court-martial, or with any part of the discipline of the Army and the Navy, ought to be ever dreamt of by the Legislature; but still there were some exceptions to that rule, and the case of these young officers was one. These young officers bore an unimpeachable character—a circumstance which ought not to be overlooked in awarding punishment. A great error had been committed in the management of their case, they had been recommended to plead guilty of desertion—most unadvisedly, for they had given themselves up to the naval authorities after a short absence, and there was nothing like desertion meditated on their part. They had, however, been so goaded by the oppression and tyranny of their superior officer, Commander Pitman, that they left the vessel lest they should commit,

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in a moment of passion, some act of indiscipline and indiscretion. Nor was that without sufficient cause, for Commander Pitman had so far forgotten himself as to call Mr. Elliot a liar on the quarterdeck, and had since been tried by court-martial, and found guilty and dismissed the service, not only for oppression and tyranny, but also for having given in fictitious and false accounts. He was confident that if the dismissal of Commander Pitman from the service had taken place before the trial of these two young officers, they would never have been convicted, or certainly not stigmatised as incapable of serving Her Majesty. He now asked his noble Friend opposite whether there was any intention on the part of the Admiralty to extend mercy to these young officers, who bore an unimpeachable character, and were now undergoing their sentence in the Queen's Bench prison?
The MARQUESS of LANSDOWNE, in reply, said he had no official information himself upon the subject to which the noble and learned Lord had directed his attention; but he would take an early opportunity of making inquiries relative to it from his right hon. Friend the First Lord of the Admiralty.

PROCEEDINGS AGAINST CLERGY BILL.
The BISHOP of LONDONmoved the first reading of a Bill to regulate proceedings against clergymen accused of holding heresy and false doctrine. This Bill contained a clause to which he wished to call the attention of all their Lordships, and particularly of the learned Lord on the woolsack, before it underwent a second reading. It related to the erection of a new court of appeal in all suits against clergymen for heresy and false doctrine. The ultimate appeal in such cases was formerly to the High Court of Delegates, but it was found to act inconveniently, as the delay and expense of the proceedings were very great; it was therefore thought fit to substitute for the Court of Delegates the Judicial Committee of the Privy Council. That tribunal, however, was not a proper one in questions of church discipline, and was evidently not within the contemplation of those who had constituted it. But it had been found that the Judicial Committee of the Privy Council, of which he desired to speak with the utmost respect, as now constituted, was not a suitable tribunal for the decision of such questions. With regard to appeals under
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the Clergy Discipline Act, no objection could be taken to the Judicial Committee of the Privy Council; but with respect to the discussion of questions affecting matters of religion, it was quite clear that the Judicial Committee of the Privy Council was not the most fitting tribunal. It was not a clergy tribunal; and at this moment a great number both of the clergy and the laity of the Church felt their consciences burdened by the fact of questions of heresy and false doctrine being ultimately referred to such a tribunal. In another Bill it was provided that no court of appeal, formed out of the Judicial Committee of the Privy Council, should be considered as properly constituted unless one bishop was a member of it. That provision introduced the Church into the tribunal as a member of it. With respect to the cases now brought by appeal from the Court of Arches to the Judicial Committee of the Privy Council, involving points of heresy and false doctrine, it was not provided that either one or more of the bench of bishops should be members of that tribunal; and not only was it not provided that any member of the episcopal bench should sit as a member of that Committee, but no care was even taken that the members of it should be members of the Church of England. It might happen that the majority of the members of that tribunal might be dissenters from the Church; and in that case, which he admitted was not very likely, they would have to decide whether the teaching of a clergyman was conformable to the doctrines of a church from which they themselves dissented. In the Bill now before their Lordships, and which had already been submitted on several occasions during the last three years, he had introduced a clause which he hoped would remedy all the defects of which he had complained. It provided a new tribunal for heresy and false doctrine, and had been framed, after most careful deliberation, by a Committee of their Lordships which sat last Session on the Clergy Proceedings Bill. He proposed only a slight alteration in the tribunal appointed to try these offences. He had always thought—and he still continued to think—that there should be an appeal to the bishop and archbishop, and that there the appeal should end. That would be a strictly church tribunal, and in such a case the conscience of a clergyman would not be wounded by the construction of the court. As far as the Church was concerned, there

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would be no objection to see the Court of Delegates restored, as that was originally a church tribunal. That would satisfy the Church; and if Her Majesty would allow the Convocation to assemble, to take this single point into consideration, it would create in the Church great satisfaction. He hoped that their Lordships would consider the clause which he had framed with great attention, for this one question—the constitution of the ultimate tribunal of appeal—involved, in a degree which they could hardly imagine, the safety and prosperity of the Church of England.
The ARCHBISHOP of CANTERBURYexpressed his concurrence in the observations which had fallen from his right rev. Friend the Bishop of London, and hoped that his proposition for a new tribunal would meet with the support of their Lordships, and trusted that the Bill for its erection would be carried into law during the present Session. The present state of the law on the doctrine and discipline of the Church was acknowledged to be excessively defective; and he must say that it was chiefly owing to the defective constitution of the court of appeal that the Church now stood in a position of some difficulty. It could never be satisfactory that questions relating to the doctrines and discipline of the Church should be submitted to a tribunal of laymen. They ought to be submitted to a tribunal of ecclesiastics, and such would be the constitution of the tribunal proposed by the present Bill.
LORD BROUGHAMapproved of the course which the right rev. Prelate had pursued on this subject. He had not been present at the arguments in the great case of "Gorham v. the Bishop of Exeter;" but he had heard the echo of them at a distance. Anything which could relieve the Judicial Committee of the Privy Council of such cases would be a great boon to its members, and would be generally beneficial; but whilst the law continued in its present condition, the members of that Committee must perform their duty. Referring to the observations of the right rev. Prelate in favour of the restoration of the High Court of Delegates, he pointed out the great anomalies and absurdities in its constitution, and declared that, in his opinion, it had very properly been abolished in a late reign. The Judicial Committee of the Privy Council was a great improvement upon it. He would give the proposition of the right rev. Prelate, when he saw it, his best consideration.
The LORD CHANCELLORobserved, that it was contrary to custom to discuss the principle of a Bill upon its first introduction. At present the House knew nothing, and could know nothing, of the Bill. When it was printed, he should pay the greatest attention to its provisions, and give his best assistance for his improvement.
The BISHOP of LONDONreminded their Lordships that he had earnestly implored them to give, every consideration to his clause when it was printed. His Lordship had previously remarked in a sort of "aside," that he had brought in his Bill at this early period of the Session, in order that it should precede the decision of the Judicial Committee of the Privy Council in a case which had been recently before it.
Bill read 1a.

MARRIAGES IN SCOTLAND.
LORD CAMPBELL, after recounting the efforts which he had made during the last two Sessions to carry through Parliament a Bill improving the law on this subject, and having mentioned his success in that House, and his failure in the other, reminded the Earl of Aberdeen, who had strongly opposed all his efforts, that he had stated in the last Session of Parliament, that, so great were the evils of the present state of the law, if no one else proposed a measure competent to remove them, he would himself do so in the present Session. He therefore rose to ask the noble Earl when he proposed to lay that measure on the table of the House? To encourage the noble Earl in his attempts to improve the law, he would read to their Lordships a letter which he had that morning received from Berwick-upon-Tweed:—
"I have been here for some days on a visit to a friend. Hard by I saw advertised in large letters, upon a board, 'Marriages celebrated at Lam-berton-toll. For further particulars inquire within.' Yesterday I went to the toll to inquire about the particulars, and found that 300 couples had been married there last year. The ordinary fee was 8s. 6d., but sometimes a fee as low as 2s. 6d. was taken."
The letter writer then proceeded to state a fact with which he thought that the Duke of Wellington, as Commander in Chief of the Army, ought to be acquainted, and that was, that fifty soldiers of the 33rd Regiment of Foot, now in garrison at Berwick, had been wedded within the same time. It was also stated that in the last month five bodies of infants had been

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picked up on the banks of the Tweed. Such were the evils of this demoralising system. He hoped that the noble Earl would persevere in the plan which he seemed to have had some time ago under his consideration, and that their Lordships would soon find it embodied in a Bill, which he should have much pleasure in supporting.
The EARL of ABERDEENobserved that it was true that he had felt it to be his duty to oppose the Bill for the Registration of Marriages which the noble and learned Lord had introduced in the last two Sessions. In doing so, he had admitted the great extent of the evil to which the noble and learned Lord had adverted, and had stated his anxiety to support any measure which was calculated to correct it. But it was an evil arising from the desire of the natives of England to evade the law of their own country by going to Scotland; and to that extent he joined in supporting the Bill which attempted to put a stop to such a practice. He did not, however, wish the noble and learned Lord to improve the social condition of the people of Scotland with regard to marriage in the way which he had proposed. The people of Scotland were satisfied with their law of marriage—and no wonder—for it was preferable to the law of marriage in England, Last year he had said that he should be most happy, and was most desirous, to see one of the noble and learned Lords in that House introduce a Bill to amend that law, and had referred to a Bill which his noble Friend near him (Lord Brougham) had introduced in 1835, and again in 1846, as one with which he should be completely satisfied. In despair of seeing any of the noble and learned Lords introduce a Marriage Bill with that limited object, he did undoubtedly say that he would himself propose a new one. But he knew the weight and influence of the law Lords in that House so well that he would not introduce such a Bill until he had previously secured the support of the noble and learned Lord near him (Lord Brougham), and also of the noble and learned Lord opposite (Lord Campbell). He believed that he could already reckon upon the support of one of them; and if he could only be sure of the support of the other, he should not be unwilling to proceed.
LORD BROUGHAMthought that the limited measure alluded to by his noble Friend near him did not go far enough; if he would enlarge its provisions, he should be most happy to support it.

RAILWAY RETURNS AND RAILWAY AUDIT.
LORD MONTEAGLErose to move for some Railway Accounts, as well as to put a question to the Vice-President of the Board of Trade on a subject of no slight importance to the people of England, upon which it was fitting that their Lordships should well consider the course which they were about to pursue. In two successive Sessions their Lordships had adopted the principle that it was necessary to establish an improved railway audit, not only for the benefit of the public, but for the security of the shareholders. In the interval during which that principle had been under consideration, an enormous amount of railway property, consisting of 200,000,000 l. already invested, and of 143,000,000 l. more, which the shareholders might be called upon to pay up, had been subjected to great vicissitudes. No other description of property had, he believed, been subject to such great depreciation—the insecurity of this property and the want of confidence in their accounts had led their Lordships to make inquiries into the subject; and by the disclosures which had been made before the Select Committee and before Committees of investigation, they had gained some knowledge of the course which had been, in too many cases, pursued. It was proved that at one period directors of railway companies had not hesitated, in breach of the law, to raise their dividends by a misapplication of their capital. When that became impossible, owing to the exhaustion of the capital itself, other measures were adopted to avert for a time what could not permanently be prevented—the frightful and ruinous depreciation which ensued. If their Lordships would apply their observations to the cases which were most notorious, and would ask themselves whether the inconvenience to individuals, and the fraud on the public, which had occurred in those cases, could have occurred under a correct system of audit, he believed that such a question must be answered in the negative; candid inquirers would agree that such a vicious system would have acted both as a corrective and a preventive; and yet it had not pleased Parliament to afford a remedy for such dangerous frauds and such terrible losses. The misfortune of continuing so bad a system of railway finance was, that those who had honestly discharged their duty as railway directors, were involved in much of the obloquy

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and suspicion which had fallen upon those who had discharged their functions fraudulently. In the case of the Caledonian Railway a vast capital had been intrusted by Parliament for one specific purpose to certain individual directors charged with the functions created by their Incorporation Act; and yet they had illegally applied from 300,000 l. to 400,000 l. to other and quite different purposes. In that case, no imputation rested upon the honesty of any of the parties engaged in the direction. The fact was that they did as too many other directors were in the habit of doing—they took the course they thought was beneficial to the company, but in so doing they acted illegally, and violated every principle contained in their Act. He had introduced in the two last Sessions Bills upon this subject which had met their Lordships' concurrence. They were framed on different principles. His first Bill was only to come into operation on the application of a certain number of shareholders. When this Bill went down to the other House, it was objected to on the ground that the remedy was not a more general measure. It was said, "Make your audit generally applicable, and there will be no objection to pass it." Believing that there was some force in the objection taken, he introduced a general Bill last year, and then the same interest that had objected to his first Bill as special, objected to his second as general. That second Bill also passed their Lordships' House last year, but at a late period of the Session, the reason being there had been a protracted inquiry before one of their Committees, where every railway proprietor had an opportunity of being heard. Witness after witness proved the usefulness of, and indeed the absolute necessity for, a railway audit. Such being the case, his Bill passed almost with unanimity; it was sent down to the other House, where the late period of the Session, and the opposition with which it was menaced, compelled the Government, in whose hands it was placed, to consent to its withdrawal. The Government admitted the necessity of legislation on the subject, and they are reported to have declared that in case the directors of the railway companies did not prepare a measure themselves during the recess, and propose it early in the ensuing Session, Ministers would no longer shrink from the performance of a duty which, though invidious, was most necessary. He, therefore, wished to know whether such
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was still the intention of Her Majesty's Government? If they did not intend to fulfil their intention, the public might depend upon it that this important subject would not be allowed to rest as at present, without the proposal of some remedy. There was another point to which it was his duty to advert: during the recess it had been very sedulously circulated that a successful attempt had been made in the House of Lords to introduce, surreptitiously and unfairly, into two private Railway Bills clauses for the auditing of railway accounts, thereby seeking to entrap the House of Commons into an approbation of that principle. Now nothing could be more untrue than this suggestion. The intention to propose such clauses was open and undisguised. The clauses were made known to the parties, acquiesced in, and were both carried after some discussion. He denied that there could have been any intention to entrap the other House of Parliament; and the best proof of that assertion was that the clauses in question were taken out of a Bill which had been introduced and passed by the House of Commons, and which was afterwards sanctioned and passed by the House of Lords. Either by mistake, or with intent to delude the shareholders, great pains had been taken to misrepresent the Bill of last Session as a Bill intended to establish a Government audit. The object of the Bill was the institution of an independent rather than a Government audit, as he showed by reference to the Bill itself. Two auditors would have been named by the companies, one only by the Government; and the auditors would neither have possessed a power of surcharge or of disallowance. They were bound to report to the shareholders and directors themselves, who would thus have obtained an adequate security for the truth of the accounts annually made up. To say that it was intended to establish the superintendence and control of the Government, was contrary to facts and the evidence of truth. After moving for some other returns, he gave notice that on a future day he would call the attention of their Lordships to the fact that there were already sixty-one railways in the Private Bill Office, to which they would be invited to give their attention and assent; and upon the propriety of passing which, much, he begged to say, should depend on the character of the respective companies, and to the progress of the Railway Audit Bill. If it should appear

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that the passing of an Audit Bill were to be indefinitely postponed, he should propose that by a sessional order their Lordships should provide that ton days before any Railway Bill was read in that House a second time, there should be laid on the table the whole financial accounts of the company, together with an account of the amount of its traffic and of the scheme required by law to be made out before the declaration of a dividend; the specific enactment being that no dividend should be declared declaring the amount of the capital stock of the company. Such a regulation would not require from the railway companies any new account—it would only require the production of that account which they were already required by law to produce to their shareholders. If railway companies came to Parliament to obtain powers to raise additional capital, it was not only the right but it was also the bounden duty of their Lordships to inquire how they had expended the capital which they had already been permitted to raise, and how they had exercised the powers which they already enjoyed. He therefore concluded by moving—
"That the Railway Returns ordered to be laid before the House on the 3rd of May in the last Session, and which have not as yet been produced, be made forthwith."
EARL GRANVILLEhad no objection to produce the returns for which the noble Baron had moved, and showed that it was not owing to any fault of the Railway Commissioners that they had not been produced already. As to the question which the noble Baron had asked respecting the intention of Government to introduce a Railway Audit Bill this Session, he must be permitted to make a short statement before he gave any answer. As soon as the Government received information that the Railway Bill of last Session had passed the House of Lords, a deputation of railway directors waited on the First Lord of the Treasury, and announced that it was their intention to meet that Bill in the House of Commons with the most decided opposition. The deputation admitted, at the same time, that the system wanted improvement, and pledged themselves to consider, during the recess, the best mode of improvement. He believed that they had now abandoned their attempt as hopeless, and had determined to introduce a Bill for the same purpose during the present Session. The Government had been carefully considering the whole question during the recess, and
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would be glad to receive information upon it from any quarter. The Government had also provided itself with information as to all the details of the subject; at the same time it was of opinion that it would be more satisfactory to have a Bill introduced by the railway proprietors themselves. If such a Bill were not introduced by the railway proprietors, or if, when introduced, it should not prove satisfactory, he would then be prepared to state what course the Government proposed to pursue.
EARL FITZWILLIAMwas of opinion that neither the Government nor either House of Parliament seemed disposed to go far enough in the legislation which they intended to pursue on this subject. One of the most important considerations for Parliament to undertake, was the relation in which these railway companies and the House of Commons stood towards each other. He was afraid that there now existed in that House a power which that House was incapable to control. His noble Friend had alluded to the vast sums of money which were embarked in railway property, and said that it was the interest of the shareholders, who were so largely concerned in that class of investments, to exercise a strict control over the administration of their property. That was quite true; but certainly it was equally true that, considering the relation in which these companies stand to the country, the Government ought to have a greater control over them than they had hitherto possessed, not only over their financial arrangements, but also in respect to the way in which the public had been and were likely to be served. It was important to observe that numerous as were the railways of the country, they were in the hands of only a very few companies. His noble Friend had spoken also of the general depreciation of railway property, and, according to his mode of dealing with the subject, one would imagine that he conceived that that general depreciation was in a great measure, if not entirely, to be attributed to the malversation of the managers of particular companies. Now, it might be true that such had been the fact to a certain extent, but he apprehended 'that there were other reasons which operated along with it. The great cause of the depreciation he thought was due to the fact that the country had been saturated with railways; and the directors having, in consequence, been driven to economy, they had made the public service suffer by diminishing the number of trains. Railway property

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was depreciated, but not from malversation only, for there were some to which the term could not be applied. He begged to say, with reference to the directors of the North Western Railway, that he believed they were as much entitled to the reputation of honour and integrity as any body of men could be. It seemed to him that Government was afraid to exercise that control over railways generally which a due regard to the public interest demanded; but they might depend upon it, if they wished to see the country properly served with railways, they must exercise a much greater control than they had ever yet done. He had not the slightest objection to an Audit Bill; but he repeated that he was quite sure that if the Government wished to put the railways upon a proper footing, they must introduce a most efficient and stringent measure with regard to those in whose hands the means of communication in the country were at present placed.
The DUKE of RICHMOND, in reply to one observation made by the noble Lord opposite, as to the fact of the parties declining to rate a certain railway on the ground of its yielding no profit, said, if that principle were to be acted upon, it would be applicable to the farms of this country, for hardly one of them at present yielded to a profit.
LORD BEAUMONTwished to ask, whether it was the intention of the Government to introduce the Bill of last Session, which was to enable railway companies who had not been able to carry out their works for which they had obtained Bills, to wind up their affairs? This was a subject that created great interest at that moment amongst many persons, particularly amongst those who had their money locked up, and it would be desirable if the Government would satisfy the public mind on that head. The difficulty that stood in the way of the Bill of last Session passing, was the absence of a clause giving the right of pre-emption to the former owners of land, from whom the railway companies had purchased it. It would be also desirable if a clause were introduced giving a facility to such parties to purchase the land on either side of the intended railway at a fair and reasonable price.
EARL GRANVILLEwas understood to say that it was his intention to introduce such a Bill early in the ensuing week.
On Question, agreed to.
House adjourned to Thursday next.