Lords Sitting of 28 July 1851

MINUTES.
PUBLIC BILLS.—1a Battersea Park Amendment and Extension; Consolidated Fund (Appropriation); Customs; Poor Relief Act Continuance; Sheep, &c. Contagious Disorders Prevention; Emigration Advances (Distressed Districts Scotland); Commissioners of Railways Act Repeal.
2a General Board of Health (No. 2); Militia Pay; Soap Duties; Mercantile Marine Act Amendment; Merchant Seamen's Fund; Leasehold Tenure of Land (Ireland) Act Amendment; Farmers' Estate Society (Ireland).
Reported.—Local Acts (Preliminary Inquiries); Episcopal and Capitular Estates Management (No. 2); Copyhold, Inclosure, and Tithe Commissions; Commons Inclosure (No. 2); Civil Bills, &c. (Ireland); Charitable Institutions Notices.
3a Tithe Rentcharge Assessment; Public Works (Ireland); Victoria Park; Unlawful Oaths (Ireland); Turnpike Roads (Ireland); Private Lunatic Asylums (Ireland).

APPELLATE JURISDICTION.
The EARL of ABERDEENsaid, he had
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a question to put to the noble Marquess opposite (the Marquess of Lansdowne), connected with the appellate jurisdiction of that House; and he did so at the request of a noble and learned Friend, who was unfortunately now unavoidably absent, and whose opinion on this subject appeared to have been misunderstood. He (the Earl of Aberdeen) understood that there had been communications going on between Her Majesty's Government and the Faculty of Advocates in Scotland, with respect to the propriety of obtaining the assistance of a Scotch assessor in the hearing of appeal cases from that country. Now, his noble and learned Friend had been represented as expressing his approbation of that proposal, whereas all those who had heard the speech of his noble and learned Friend were aware that his opinions were directly the reverse of that. His noble and learned Friend had said, that this question had often been considered by Lord Eldon and his successors, and that they had invariably come to the conclusion that the proposal was impracticable. His noble and learned Friend was anxious to have this mistake corrected; and he (the Earl of Aberdeen) wished to know from the noble Marquess whether such communications as he had referred to had taken place, and whether the Government had arrived at any decision on the subject?
The MARQUESS of LANSDOWNE(who was very indistinctly heard) was understood to reply that some correspondence of the nature stated by the noble Earl had taken place; but the Government had come to no determination on the matter.

SMITHFIELD MARKET REMOVAL BILL.
Amendments reported (according to Order.)
EARL GRANVILLEthen rose to move certain Amendments on the Report of the Select Committee. His object was to obtain the omission of certain clauses which had been inserted in the Bill by the Select Committee (namely, of Clauses B, C, D, E, and F), and the restoration of certain Sections (namely, xxxvii., xxxviii., and xxxix.), which the Committee had struck out. The clauses to which he objected were those which directed compensation to be given to the Corporation of the City of London. He thought that those clauses must have been introduced inadvertently by the Committee; and were, as he had already stated, only carried by a majority of one. The Committee then thought that

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there was no reason for retaining the optional clauses of the Bill introduced by the Commons, inasmuch as the Corporation of London had declared that it had no interest in Smithfield market, and had declined the option of managing the new market, as tendered to them. Now, he thought that it would be fair to the Corporation, while moving that the compensation clauses should be omitted, to move also that the optional clauses should be reinserted. He hoped that no Member of the Committee would feel that he was acting unfairly by them when he endeavoured to reverse their decision; for, if their Lordships, on referring a Bill to a Select Committee, were to be bound not to deviate from its report, there was no occasion for having further stages in the Bill. They would, indeed, be stultifying themselves by such a decision, especially in such cases as the present, where the report was only carried by a narrow majority of one. The other plea offered against his Motion was, that the Corporation had a charter, and that their Lordships ought not to meddle with the vested interests which they enjoyed under it. Now, the Corporation had stated that they had no interest in Smithfield market, and that they had not claimed compensation in the House of Commons on that account. When he reminded their Lordships that the Bill had been passed by a large majority in the House of Commons, and that it was the universal opinion in both Houses that Smithfield market, as now conducted, was a public nuisance, he thought that they ought not to pass the Bill in its present state—which would insure its rejection in the House of Commons during the present Session—but that they should adopt his Amendment, and restore, the Bill to the condition in which it was when it first reached their Lordships.
Moved, to omit Clause B.
EARL POWISsaid, that the clauses in question had been considerably discussed in Committee—the Judges had been called in and consulted on the subject, and in consequence of their opinion the Committee had inserted the compensation clauses. If their Lordships now reversed the decision of the Committee, of what value would Committees of their Lordships' House be? If the reports of Committees were thus set aside, it would be a mockery to sit on Committees hereafter. It had been shown that in 1845 the City of London had received an income of 5,000 l. from Smithfield market; and it was but fair that they
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should be compensated for the loss of such a revenue. The optional clauses, as they were called, gave the Corporation power to form a new market, but they did not give them any power to purchase lands. Without very much higher tolls than the Bill gave, the Corporation could not afford to purchase the necessary site. Therefore, the offer of the management of the market was a mere pretence to cheat them out of compensation. As to the alteration in the Bill being an invasion of the privileges of the other House, he considered that if the House of Commons would not waive the objection, there was sufficient time for another Bill to be brought in and passed. If they took away the rights of the Corporation in this manner without compensation, it would go far to shake the security of all property in the kingdom.
The BISHOP of OSSORYsaid, that having been, he need hardly say, very unwillingly, a Member of the Committee whose report was under consideration, he felt it to be necessary to state the grounds on which he had voted for the Clauses introduced in Committee, which it was now proposed to omit. He had come to the conclusion that it was, on the whole, for the public benefit, that the site of the market should be changed. For though, he felt obliged to acknowledge, much more had been said and proved than he had beforehand thought possible, both as to the advantages of the central situation of the existing market, and as to the extent to which the acknowledged disadvantages and evils of its limited area would be remedied, by the enlargement and improvements which the Corporation were prepared to effect; yet, looking to the prospective increase of the supply of the metropolitan cattle market, he thought it better for the public that the site should be changed to one in which it would be comparatively easy to make the further enlargements which were likely to be required from time to time; and also to provide lairs and public slaughter-houses, in connection with the market, by which the evils of driving through the City from the market, would be so much lessened. On these grounds he had felt it to be right to vote for the removal. But he, at the same time, had felt bound to vote for compensation to the Corporation of London, from whom the removal would take away the tolls and other emoluments arising from Smithfield Market. He held that the rights of property, whether of corporate bodies or of

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individuals, were not to stand in the way of a measure which the interests or the convenience of the public required. But on the other hand, he believed it was an acknowledged principle, as he was sure it ought to be, that, when to serve the public interests or convenience, the property, whether of individuals or of corporations, is injured or taken away, the public are bound to make compensation for such injury or loss. And, accordingly, finding the Corporation in possession of a clear income of 5,000 l. per annum from the market, which they held by a charter of Edward III., confirmed by Act of Parliament, he had felt no doubt that if, for the public benefit, they ought to be deprived of this income, they ought, at the same time, to be compensated for the loss. It had been said that the Corporation had no claim to compensation, because they had no rights of property in the case. He supposed that it was meant that they had no right to divide those funds, or to expend them, for the benefit of the individual members of the Corporation. He did not know whether such was the fact; but in his judgment it made no difference whether it was so or not. For if the members of the Corporation had no such direct personal interest in this fund, yet the Corporation was the trustee of the fund, and the guardian of the corporate interests for which it was to be expended. And he believed that the rights of corporations to the incomes which they enjoy, without considering the personal interest of their members in those incomes, had been always as distinctly recognised and respected by the House, as the rights of individuals. In the case of the very right in question, the principle that it was not to be impaired without compensation, was distinctly affirmed by Parliament in the Islington Market Bill, in which compensation to the amount to which the establishment of that market might diminish the revenue from Smithfield was secured to the Corporation. It had been said too, that the claim of the Corporation was shown to be unfounded by the fact that it had not been put forward before the Committee of the House of Commons; that it was first thought of when the Bill came before the Committee of their Lordships' House; and that the Committee had been imposed upon by the statement of the counsel for the Corporation, to the effect that it was usual to reserve such a claim for a Committee in the Lords, when the object was to throw
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out the Bill altogether. And it had been said that this statement was contrary to the fact. He, of course, did not pretend to know what the practice in such cases was; but the statement referred to was distinctly made by the counsel for the Corporation, and he did not recollect that it was contradicted by the counsel for the Bill. This he did recollect, however, that in confirmation of their statement of the practice in such cases, the counsel for the Corporation had distinctly stated, and that the statement had not been contradicted, that in the Islington Market Bill the course which they stated to be the usual one had been actually pursued: that neither before the Committee of the Commons, nor at any other stage of the Bill in the Lower House, had any claim for compensation been put forward on the part of the Corporation: that the claim was, for the first time, put forward before the Select Committee of the House of Lords; that it was there admitted, and that the compensation clause, as it now stands in the Act, was then and there introduced into it. This was distinctly stated, and was not contradicted; and he thought that it was of more weight than any bare assertion of the practice on either side could be. But, to his mind, this was a matter of minor importance. The question with him was not whether the Corporation claim had or had not been put forward in the usual mode, or whether the mode in which it was put forward was or was not open to objection, but whether it was or was not founded in justice. What his opinion on that question was, was sufficiently apparent from what he had said. In fact, he had felt so thoroughly the justice of the claim, that, in voting in Committee for the Preamble of the Bill, he stated that he was doing so on the presumption that the Corporation would be compensated for the loss which they were to suffer by the removal; and that if fair compensation were not granted to them, he would feel constrained to vote against the Bill. He felt in the same way still. He believed that if Parliament were to pass an Act, by which, for the benefit or convenience of the public, the property of the Corporation was to be taken away without compensation, it would be doing what was absolutely without precedent, and what was itself a most dangerous precedent, and he, therefore, felt obliged to vote against the proposed Amendments.
The EARL of LONSDALEsaid, that

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ever since he had been in Parliament he had entertained but one impression as to the nuisance of Smithfield market. He thought that the Corporation of London ought to suffer the penalty which it deserved for not having claimed compensation, if it had any claim to it, in the House of Commons. This market had been voted a nuisance by both Houses of Parliament, and, instead of giving the Corporation any compensation for its removal, he would rather fine them 5,000 l. a month until they should remove it.
The EARL of ELLENBOROUGHobserved, that when he first came into Parliament he had taken the part of the Corporation of London on this matter. He recollected well that as he was leaving the House on that occasion the late Earl of Liverpool took him by the arm and said, "Let me, as an old Member, give you, who are a young one, a little piece of advice. Never have anything to do with the Corporation of the City of London. Its members are the greatest jobbers I have ever known in the whole course of my political life." Not having studied the subject anew, the recollection of that anecdote would prevent him from voting on either one side or the other on this occasion.
VISCOUNT SIDNEYstated, that as a Member of the Committee, he had been of opinion that no case for compensation had been made out by the Corporation. He should therefore give his vote in favour of the Amendment of the noble Earl.
The MARQUESS of SALISBURYsaid, he should support the clauses introduced by the Committee, believing that they had gone through the case most carefully, and had satisfied themselves of the claim of the City to compensation. The terms of the Charter of Edward III. expressly provided that no other market should be established within seven miles. Nothing could be more destructive of the confidence of the country than to take away those chartered rights without giving compensation.
The EARL of HARROWBYdid not mean to contend that these chartered rights ought to stand in the way of improvement, but he thought that compensation ought to be given. He would suppose the case of the Mansion House itself being moved for the sake of widening the street, and asked if compensation was not as justly due in this case as it would be for the Mansion House? It would be exceedingly difficult to draw a line betwixt this and other kinds of property.
LORD BEAUMONTsaid, the question ought to be decided on its own merits, without reference to precedent. The moment the Preamble of the Bill was declared to be proved, away went the charter and all belonging to it: it was a virtual repeal of the charter. ["No, no!"] At all events, the preamble was declared proved. The grant of the charter had been originally made for the public good, and not for the sake of putting money into the pockets of the Corporation; the latter was an accidental circumstance. By the Bill, as proposed in the Commons, compensation was given them by their being allowed to manage the new markets; they were placed in as good a position as that they now occupied. Looking at the small majority of one in the Committee for the compensation, and believing that the City would be perfectly compensated by the reinsertion of the original clauses, he should vote for the Bill being restored to that form.
LORD COLCHESTERreferred to the establishment of the Islington market, and said that the small number of buyers and sellers resorting thither was a proof that the buyers and sellers of cattle had no dislike to Smithfield market. He thought the compensation would not injure the buyers and sellers of cattle, and ought to he consented to on the ground of the great principle involved.
LORD REDESDALEsaid, he could never sanction property being taken away without compensation. If ever Lynch law had been practised in this country, it had been brought to bear against the Corporation of London in this case. If they were to be treated in this way, their property being taken away, no man's property would be safe. The Corporation was not to blame for the market having continued on that spot; they had sought its removal, but could not obtain the sanction of Parliament. The compensation proposed was on a most fair principle; and unless it were granted, great injustice would be inflicted.
LORD CRANWORTHdid not think the Bill interfered in any way with the rights of property. In point of fact, and of law, the Corporation of London had no right to compensation. The short facts were these:—The charter, as it was called, under which the Corporation claimed, was, in point of fact, an Act of Parliament passed in the reign of Edward III., and by which Smithfield market was established. But, even suppose a Royal Charter had been granted conferring ex-

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clusive privileges, the terms of the charter must in that case he strictly observed. The Corporation, in such case, would be bound to keep the market in such a state that there would be adequate and complete facilities given to all the parties who resorted to it. Now, it was a matter of notoriety that Smithfield market did not answer the purpose for which they could assume that a charter had been granted. Now, that being so, his noble and learned Friend on the woolsack would tell their Lordships that, by scire facias, the letters patent might be repealed. There would be no compensation then. But Smithfield market, as he had already said, was established by Act of Parliament, and they would be in no better position under an Act of Parliament than under Royal Charters. He, however, entirely approved of the concession which had been made to the Corporation by the Commons—granting them their privileges at another market, the right of levying tolls, &c; but this was the utmost the Corporation of London could expect. Let him remind their Lordships that Smithfield market, as originally founded by the Act, was outside the walls of the town: it was then convenient that it should occupy its present site, but circumstances had since occurred which rendered it an intolerable nuisance. When it was said by the noble Lord that this measure was brought forward because of popular feeling, he would only remark that 99 out of 100 who knew any thing upon the subject were in favour of its removal. Interested parties wished to hold that which they were not entitled to hold. It was intended by the Legislature that a convenient market should be maintained; but it never could be intended that a disgraceful nuisance should be perpetuated. The Corporation had no absolute or legal right to compensation; but they had an equitable claim to be put as nearly as possible in the same position with respect to their rights and privileges, after as before the passing of the Bill; and this had been amply provided for by the clauses introduced by the Commons, and now proposed to he restored. Their Lordships would he acting with a slavish deference to what was improperly termed vested interests, if they acted upon any other principle. He supported the Motion of the noble Earl.
After a few words from Earl BATHURST,
EARL GRANVILLEreplied: After the observations of the noble Lord (Lord Cranworth), he hoped their Lordships
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would dismiss from their minds any fear of dealing injuriously with vested interests.
On Question, "That the said Clause stand part of the Bill,"
Their Lordships divided:—Content 15: Not Content 59; Majority 44.
Resolved in the Negative.
Further Amendments made; and Bill to be read 3a To-morrow.

MERCHANT SEAMEN'S FUND BILL.
Order of the Day for Second Reading read.
EARL GRANVILLEmoved that the Bill be now read 2a.
The EARL of ELLENBOROUGHsaid, he some time ago addressed a few observations to their Lordships, in the hope that the Government would be induced to reconsider the plan then before the House of Commons, and one clause to which he then alluded had since been amended. If it had been possible to induce their Lordships at this period of the Session, for the sake of the great financial interests involved in the measure, to delay its passing until the House of Commons could reconsider the subject, he would have endeavoured to produce that impression. The Government, he thought, could not be aware of the extent to which the revenue would be affected by the inconsiderate manner in which the clause had been framed. It would cause a loss of between 400,000 l. and 500,000 l. before the clause could be finally wound up. Under the existing law there were 160,000 seamen upon this fund, three-fourths of whom had already acquired a right to pensions. The parties engaged in the foreign trade, who were employed on the average for nine months in one year, paid 9s. Those engaged in the coasting trade averaged about six months, and paid 6s. The first class would therefore pay 27 s. during three years, and the latter 18 s. Under this clause, if a seaman paid 2s. in the first quarter of three years, he would save himself from forfeiting his right during that period, and the loss to the revenue would amount to 120,000 l. The fund was treated in the Bill as one fund, but there was a fund to every port, and the trustees of those funds, which had been well managed, complained that an average was to be struck between them and those which had been ill managed. It appeared, also, that pensioners were to be paid on the average of the last five years, and it was to be left to the Board of Trade to determine the mode of taking the average. He

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thought it would have been much better if the Act had defined the rights of the parties, and he did not approve of their being left at the discretion of a board. He also objected to the ambiguity of the clause, which was so worded that in all probability many of the seamen would lose their pensions. Though by this Bill these pensions would he very burdensome to the State, yet from the reading of the clause as to the payments by the seamen, he thought it would work great hardship in individual cases. Although he did not expect that these observations would produce any effect, he trusted that the measure would operate as a caution to the Government never to permit any Bill to be introduced into the House of Commons which in the smallest degree touched on financial matters without strict inquiry.
EARL GRANVILLEbelieved it to be utterly impracticable to have introduced a Bill, previous to the difficulties of working it being ascertained, which would not have required renewed legislation. It was true that Mr. Finlaison had shown it would have been cheaper to have continued the present system than to wind it up; but that continuance was impossible, because it implied not only an advance from the Treasury, but increased contributions by the seamen themselves, and that increase they rejected. The object of the Government, when they found that the old system must be wound up, was, that the seamen should be put as much as possible in the same situation as they would have been in had they continued under the old system, either as receivers of pensions or contributors, or rather in a bettor situation.
After a few words from the Earl of ELLENBOROUGH in reply,
On Question, Resolved in the Affirmative; Bill read 2a accordingly.
House adjourned till To-morrow.