Lords Sitting of 4 July 1853

MINUTES.
PUBLIC BILL—la Westminster Bridge; Battersea Park; Sheriff Courts (Scotland); Resident Magistrates (Ireland); Leasing Powers (Ireland).
2a Copyholds.
Reported.—Soap Duties; Malicious Injuries (Ireland).
3a Excise Duties on Spirits.

THE SCOTCH BANKRUPT LAW.
LOUD BROUGHAMrose to present a petition from merchants and traders of the City of London who were concerned in the trade with Scotland, on the subject of the Scotch bankruptcy law. After doing so, he said he should certainly feel much disappointed if their Lordships did not favour him with their attention while he stated some matters respecting this petition, for it must be admitted that, generally speaking, though petitions were respectfully received by their Lordships, there was a great indisposition to attend to anything respecting them unless they had to touch upon some personal or party matter, and then there was no lack of attention either to the petition or the Motion made thereupon, on any matter mingled with it. He was sorry, however, to add that not only

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was this a petition, but it was a petition on a subject which was in itself not very likely to be a lively one. It was upon the subject of Scotch bankruptcy law, and praying their Lordships, that the Bill for the improvement of the administration of bankruptcy and insolvency in Scotland, which he (Lord Brougham) had lately introduced into their Lordships' House, may speedily become the law of Scotland. Before entering on the subject of the grievances of which they complained, he should first state to their Lordships who the petitioners were, and what their interest was in the subject, before he proceeded to give their statement of their grievance, and their suggestions for the remedy of that grievance. The petitioners represented the first houses in the City of London in every respect, and the first houses concerned in the trade of Scotland. There were upwards of 200 of these firms, the partners in which had signed this petition; and when he looked at the names of these firms, many of them he recognised as well known to him as being among the first in the City of London, and others he knew as holding that position by their description from persons intimately acquainted with them. To show their importance, it might suffice to state, that five of the houses out of the 200 represented by the petition carried on business with Scotland to the amount of considerably upwards of 1,000,000 l. sterling a year. He had other petitions to the same effect, complaining of precisely the same grievance, from parties not in London, but connected with and carrying on trade in Scotland. There was a petition from Sir James Campbell, and other office-bearers in the Glasgow and West of Scotland Guardian Society for the Protection of Trade, and who, as such, were interested in the proper administration of the estates of bankrupts and insolvents. Every one who was acquainted with Glasgow was acquainted with the house of Sir James Campbell and Company; and this society was composed of mercantile houses who were all great traders in the city of Glasgow. He had also a petition from a corporate body (the directors of the Chamber of Commerce and Manufactures, established by Royal charter in the city of Glasgow, under the seal of the corporation), and signed by the chairman and secretary. Another petition with which he was entrusted was from the Merchants' House of Glasgow, also a corporate body, signed by the Lord Dean of Guild, and sealed with the seal of the corporation.
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He had also two petitions, to nearly the same effect, from different parts of England; one from Bradford from the Town Council; and another from Carlisle, the merchants and manufacturers of which city, from their proximity to Scotland, were deeply interested in this matter, arising out of the constant commercial intercourse between them and the northern parts of the United Kingdom. From Huddersfield he had a petition signed by twenty-three merchants and manufacturers, and from Cupar Fife a petition signed by various procurators practising before the Sheriff Court there, who were parties interested in the proper administration of the estates of bankrupts and insolvents in Scotland, and in the assimilation of the bankruptcy and commercial laws throughout the United Kingdom. He believed that a vast number of other petitions would very soon be presented to their Lordships, all upon the same subject, all complaining of the present system, and all craving a speedy and effectual remedy. The case was shortly this—and he would solicit the attention of his noble and learned Friends while he alluded to it, for it must be admitted, that though they were not bound to listen to all the suggestions which mercantile men might give for the reform of the law relating to bankruptcy, and though their Lordships were bound to exercise their own discretion according to the best lights they could obtain, yet when the question was as to the sufferings which were experienced under the present state of the law, they were bound to listen to those who were the sufferers, and who addressed their Lordships for the purpose of detailing their grievances, because it was the most important fact in the case that such grievances existed, and that such sufferings were by the petitioners endured. Now, the petitioners set forth the manner in which the law affected them, and he should endeavour, as distinctly as he could, to explain the state of the law. In 1831 a great change took place in England on the subject of the bankrupt law, as was well known to his noble and learned Friends, and that change was deemed to be necessary by the evils of the previously existing system. Now, suppose that, instead of the evils then complained of, and which led Parliament to reform the law—suppose it had been the case in England that the assignees of a bankrupt not only were apt to forget their duty, to go to sleep over their duty, and not duly to gather in and realise the bankrupt's estate, but that

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they had an indirect interest in not doing their duty. In one instance, he remembered, it had been found—and this was one great ground of the change made in 1831—that there was occasionally an indirect interest on the part of the assignees inconsistent with their duty; and where a bankrupt had funds, it was found that there was a tendency to allow the proceedings to linger on the part of the persons intrusted with these funds. In Scotland, however, the matter was a great deal worse. There was not only the same chance of neglect, and the same tendency on the part of these persons to slumber over their duties, but the trustee was there a paid officer, which the English assignee never was, and he was interested directly in delay by receiving payment. The trustee received a commission, which commission was awarded to him in the manner he would presently describe, and the consequence of his being a paid officer their Lordships would soon perceive. Suppose another difference had existed between the English bankrupt law in 1831, and the law as it at present stood in Scotland. Suppose the assignee had not only been the administrator of the funds arising out of the estate, but had been also vested with judicial functions, and had to adjudicate upon the claims of creditors as well. Yet that was the case in Scotland at this instant. He did not believe a system could have been more cunningly devised to frustrate the great object and views of the equal distribution of the bankrupt's estate, and the prevention of fraud and of delay—he did not think anything more cunningly devised to accomplish these two ends could have been conceived than the system which had long prevailed, and which still, he was sorry to say, almost in the full force of its abuses, continued to prevail in the bankrupt law of Scotland. First, there was the choice of the trustee. For this officer no qualification was required. He ought to be both an accountant and a judge. Instead of this, however, he was required to possess no learning whatever—no qualification of any sort. But there was one requirement—the trustee must have a majority of votes. Every kind of means, approaching even to corruption, were consequently used for the purpose of obtaining office, and after that, as in the case of an election for the other House of Parliament, the return of the trustee was capable of being set aside. As there was always a competition for the office—always what
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might be called a contested election—so there was, he would not say always, but very often, a petition, as it were, against the return of the trustee; and an application to the Court to set aside that return, led, as in the case of a Parliamentary petition, to "a scrutiny,"—namely, a scrutiny of the votes of the creditors by whom the trustee was elected. The case would, under such circumstances, be heard before the sheriff, who was judge-ordinary of the district, from whom there was an appeal to the Court of Session, and from the Court of Session to this House. The trustee had judicial functions. He had to decide upon the claims of creditors; but from his decision there was again an appeal to the sheriff, from him to the Court of Session, and from the Court of Session to that House. The trustee was never a lawyer, but it happened generally that he was a; trader, though he was not sometimes even that He ought to be both a lawyer, and an accountant, while it often happened that! he was neither the one nor the other. As the office of trustee was a paid one, there were many who devoted themselves to the post for the emoluments to be derived from it, and thus was created a class of accountants such as existed a few years ago at Guildhall, and whom his noble and learned Friend the Lord Chief Justice would, if he were present, recognise under the description of accountants who could give no account. In his judicial capacity, when sitting to decide upon the claims of creditors submitted to him, questions of the greatest difficulty were brought before him—sometimes questions of law, sometimes questions of equity, and constantly questions of fact—in all which the trustee acted both as judge and jury. Those who were acquainted with the state of the Scotch law would know that the practice in the Courts there was unhappily different from our own—that the principle of fusion had been adopted there, and that there was no difference between the court of law and of equity. This trustee, however, was in all cases ignorant of law, so that when a very important bankruptcy occurred he was aided by an assessor, who was a lawyer. This was, of course, all at the expense of the bankrupt's estate, and therefore, at the cost of the creditors, and he himself had known an instance not long ago—not more than twenty or twenty-five years since—of a very important bankruptcy in which the trustee was aided by a learned person who was afterwards a Judge

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in the Court of Session—Lord Cuninghme—and they sat for many days, and he might say weeks, in unravelling the circumstances connected with this bankruptcy, eminent counsel being engaged, with appeals possible at every stage and at every decision given by the trustee, and with the appeal of which he had reason to know something; for it did not stop with the Sheriff, but went next to the Court of Session, and afterwards to their Lordships' House; he referred to the remarkable case of "Grant and Baillie," the only instance he remembered in which the Judges of England were called in to decide a Scotch case. By the Bill which he (Lord Brougham) had introduced, power of appeal was only given to the Court of Session, for he looked upon the appeal of the trustee to the sheriff as entirely useless. Under the present system three of the creditors, or agents of the creditors, were chosen commissioners. These commissioners had no qualification, and were supposed to be a council, by whose advice and opinion the trustee might, if he thought fit, be ruled, though he was not bound to be so. The natural consequence was, that when the trustee considered there was a responsibility involved in the trust, he would call in the council; but when he thought He could do without them, he would not call them in. One function of great importance was performed by these commissioners—they audited the accounts of the trustee and awarded his commission, so that his salary was so far in their hands. Now, the trustee was frequently enabled to exercise a great voice in the choice of the commissioners; the kind of votes by which they were elected very much depended upon him; and the consequence was, that in many cases it was found that the commissioners, owing their election to the trustee, were disposed to favour him in auditing his accounts, and in fixing his payment. There was one part of the existing law which very much facilitated any improper proceedings on the part of the bankrupt and trustees. Not less than eight, though not more than fourteen, days from the period of sequestration, as the bankruptcy was called, were allowed the bankrupt for all these contrivances, and for fraudulent purposes, if he was inclined to devote it in that way. There was no power of taking possession of the bankrupt's property until eight days, and it might be fourteen days, after the bankruptcy. In the meantime the bankrupt
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could make away with his property, and, if a dishonest man, he might occupy that time in creating votes on fraudulent or fictitious claims, so as to elect a trustee of his own nomination, in giving illegal preferences, and in making away with and concealing his property. Now, it was quite bad enough that there should be an elective court of justice at all, but it was monstrous that there should be a court of justice appointed by election in each particular case; and that, be it remembered, not a court of arbitration appointed by the choice of the two parties, but by a number of creditors, with all the evils incident to such a system. By that body, and in that way, was the court in each instance constituted. He had referred to the possibility of appeal. The appeal might take place in the case of the choice of the assignee, or trustee as he was called in Scotland, and perhaps two or three years, as had been known to be the case, elapsed before the choice was confirmed. All this while the unhappy creditors, who had or ought to have had no interest whatever in the matter, were kept out of their rightful claims. They did not care one rush which of the two rival candidates to the office was successful: all they wished was to have the business done. The petitioners stated how much they suffered under this system. "The season," they said, "for which the bankrupt's goods were manufactured passes away, the articles get out of fashion, and a fall in the market often takes place which greatly diminishes the value of the bankrupt's property." Another evil was, that the bankrupt was often disposed to offer a composition with which the creditors would be satisfied, but, until the choice of trustee was finally confirmed, that composition could not be accepted, and in the meantime the bankrupt otherwise disposed of money with which he had intended to satisfy the claims against him, and the creditors were often entirely frustrated in their endeavours. With regard to the system of class certificate which now prevailed in this country, instead of adopting the English change in the law in this respect, and taking from the creditors the whole of the power of granting certificates, this power remained throughout Scotland in the hands of the creditors, subject to all the evils pointed out by the Commission of 1839 and 1840. By dint of canvassing, by private interest, and not unfrequently by direct bribery, the bankrupt now gave certain powers to certain creditors for the

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express purpose of obtaining their vote. Again, no provision was made for the public examination of the bankrupt. The old Act said he should be examined publicly; but, practically, the bankrupt was never examined in public, but always privately. There was also no examination—at least no effectual examination—of the creditors themselves. He would fain hope that the petitioners were mistaken in their statement that, under the present system, there was no provision for the examination either of the bankrupt or of the creditors. He thought that must be a mistake, because under the Act of 1851 he believed provision was made to enable the Court to examine the bankrupt, and, in fact, to compel his examination. Upon all these grounds the petitioners prayed their Lordships to adopt the Bill which now lay before them awaiting a second reading—a Bill which he had the honour of introducing; and they added also, that the course which that Bill took relating to arrangements in cases of insolvency was advisable, and ought to be adopted. The Faculty of Advocates having had under their consideration the Lord Advocate's Bill on the subject, disapproved of a good part of the Bill, expressed no opinion as to whether it went far enough or not, but added that they did not approve of one portion of the Bill, which, in his opinion, was the only step of any importance in the measure—namely, that of giving immediate possession of the bankrupt's papers and books. He was bound to say that the measure which he brought before their Lordships, and in behalf of which these petitioners addressed the House, the other petitioners joining in that prayer, had been most carefully prepared by persons well versed in the Scotch bankruptcy law—by practitioners both at the Scotch and English bars; and the measure had been by them prepared with the greatest possible knowledge of all the details. He had only to mention the name of his learned Friend, Mr. John Gilmour, who had framed the measure, to prove that the Bill had received attention from one possessing a perfect knowledge of the law on the subject, and a complete acquaintance with the practical working of the present system. It was said that the change which had taken place in the English law, and to which he had alluded, was less applicable to Scotland than to England. There might be other parts of the law than those he had mentioned, in which the Scotch was more to be approved than
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the English law. What was the moral of this? It was that the whole matter should be carefully considered by those Commissioners who had been recently appointed to take into consideration the assimilation of the mercantile law in different parts of the United Kingdom. That Commission proceeded from the Government, as their Lordships were aware, in consequence of a great conference held last year, at which, in the first place, the noble Lord on the cross bench (the Earl of Harrowby) presided, and over which, secondly, he (Lord Brougham) had presided, composed of representatives from all the great trading towns in England, Scotland, and Ireland. The idea of that conference had, he believed, arisen from the formation of different societies for the amendment of the mercantile law, particularly in some parts of Scotland. A learned person, Mr. James Stewart, having been in Scotland, had had communications with those parties, and he rather believed it was in consequence of the communications between him and some of those bodies in the west of Scotland, that the conference was appointed. It had given him (Lord Brougham), he must say, great satisfaction to preside over the conference in question, because a more moderate and more rational assembly of persons could hardly be conceived upon any matter so interesting to the feelings of the individuals themselves. They were all interested in the trade, commerce, and manufactures of the different towns from which they came; but there was no tone of violence, no headlong steps taken towards a change, no desire of change from the mere love of change, but, on the contrary, what was done was done in the most rational and temperate manner he had ever heard. Another gentleman, Mr. Leone Levi, who had devoted a large degree of attention to the subject of the continental mercantile law, had promulgated the idea of an international commercial code: and a noble Duke and his Royal Highness Prince Albert were understood to support the opinion he expressed, that the state of the world was ripe for the formation of a general international commercial code. Others, however, had had some doubts about this, and had thought that, at all events, we should begin more humbly, by considering whether or not a commercial code should be established for the United Kingdom, leaving other countries out of the question—at least for the present. The conference had bound itself to that opinion, but without

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giving up the hope that they might live to see a more general union among the different nations of Europe on this subject, and the formation of one general international commercial law among all civilised nations. The differences at present existing between the various codes were not very great; but where those differences existed they were very embarrassing. He ought to apologise for having so long detained their Lordships; but he had deemed it his duty to the petitioners who had entrusted to him the presentation of the petition to state the facts which he had laid before the House. He did not intend to press forward this Session the Bill to which he had alluded; but he considered it would be in its proper place if referred to the Assimilation Commissioners.
Petitions read, and ordered to be on the table.

CHURCH BUILDINGS ACTS AMENDMENT BILL.
The EARL of HARROWBY,in moving that their Lordships go into Committee on this Bill, stated that it had two principal objects:—The first of these objects was to provide for the aggregation of small livings in populous towns and cities, with a view to make better provision for the population on the outskirts of these places. Their Lordships must be quite aware of the manner in which churches were crowded together in some of our ancient cities. In London, for instance, there was an immense accumulation of churches, forming, no doubt, a great external ornament to the City, but tending but little to the spiritual advantage of the inhabitants. Even at the time of the fire of London it was felt that the number of churches in the City of London far exceeded what was requisite for the wants of the population; and the first Act of Parliament which was passed for the rebuilding of the City provided that only thirty-nine churches should he rebuilt. Three years later the number was increased to fifty-one; but even then it was found convenient to supress forty-eight churches which had existed before the fire, and to combine their endowments, and the parishes to which they belonged, with those of other churches that were preserved. There was, however, still such an excess in the number of churches, that he might mention one case in which there were five churches in an area no larger than Grosvenor-square, and not containing an equal population to that of that square.
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There were similar cases scattered over-the City in every direction. In fact, the population of the City, and with it the necessity for these churches, was diminishing every year, and the houses were becoming mere shops and warehouses; nor was this all, for the population that still remained' resident in the City were more and more in the habit of leaving it on Saturday-evening for some more agreeable and healthy retreat, where the Sunday was passed. You might find many very noble churches where there were not above fifty or sixty persons constituting the congregation. Some churches admitted even literally addressing the congregation in the very terms of the Irish curate, who began the service with "Dearly beloved Roger!" This did not arise from any diminution of attachment to the Church, for the same thing was observable with respect to dissenting meeting houses, eight or ten of which had within the last few years been pulled down and abandoned. The same process, though not to the same extent, was going on in several other of our ancient cities. In old times, when those cities were enclosed within walls, the population resided in high houses, and in narrow streets, and were crowded together in a small space in the heart of the town; but this was so no longer, and the hearts of the cities were becoming places of business, while the population resided in the suburbs. The question was, whether the churches should be allowed to remain where they were, and to remain empty; or whether they should be made to follow the population? He thought the latter alternative should be adopted. For this purpose it was requisite that there should be some extension of the powers existing under the present Acts for the pulling down of churches and the union of benefices. The bishop of a diocese had at present the power, under certain circumstances, to pull down churches and to unite contiguous parishes; but the process by which this was to be done was encumbered with inconvenient formalities, and was restricted by the condition that the parishes should be contiguous. Now, it was often desirable to unite parishes which, though not contiguous, were yet within a very short distance of each other. It was not surprising that some persons shrunk from the idea of demolishing churches; but as the great object of the Church was to sub-serve the wants of the population, he thought that, keeping that object in view, it was desirable that the churches and the

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endowments should follow the population. Nor was it a new proposition to pull down churches. Churches without end had been pulled down for secular purposes—in order to the construction of a railway or a dock, for the widening of a street, or the improvement of the health of a town. Would they then shrink from doing so when the object in view was the supply of the spiritual wants of the population? The object, then, of the first eight clauses of the Bill was to facilitate the union of small city parishes, and the transfer of their endowments elsewhere. It would, he thought, he for the benefit of the Church that the churches should not remain, as at present, without congregations. For what must be the effect on the public mind of nonresident clergymen and empty churches, and, in consequence, specimens of every kind of scandal that was most injurious to the Church? The next object of the measure was to give additional facilities for the surrender of patronage. There were a great number of cases in which parties were quite willing to give up their patronage to benefices in order that the endowment of these might be improved, if the opportunity were offered to them. In the Report of the Commissioners it was stated that
—"in a large number of cases of small livings however, we find the right of presentation vested in the Lord Chancellor. In these eases we conceive that, by a process which we will presently describe, the income of the benefice might be greatly improved, and the efficiency of the Church proportionately augmented. The Lord Chancellor at present administers the patronage of no less than 754 livings, having an annual value of 190,000 l. He has likewise the alternate presentation of 23 benefices, of which the annual value is 7,877 l., making a total of 777 benefices, with an aggregate annual value of nearly 200,000 l. The income, however, of a great portion of these benefices is very small, too small to be desirable as preferment, and insufficient to secure the services of a resident pastor. We find, so far as it is in our power to ascertain, that there are six of less than 50 l. annual value, 56 above 50 l. but under 100 l., 124 above 100 l. but under 150 l., and 144 above 150 l. but under 200 l., making a total of 330 insufficiently endowed. It is obvious that the advowsons of benefices of this description can have no value as patronage in the ordinary sense of the word. It is difficult to find persons willing to undertake the charge of cures which entail more than the responsibility, but yield less than the salary, of a curacy. Speaking generally, they are not and cannot be sufficiently served, and the spiritual interests of their population are almost necessarily neglected. We are of opinion that these evils might be greatly diminished, so far as the benefices in the gift of the Lord Chancellor are concerned, by offering the right of presentation to persons interested in the welfare of the population resident within these cures, on the
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condition that the whole purchase money, or so much of it as would suffice to raise the annual value of the benefice to 200 l., should be applied to that purpose. This additional endowment would, of course, increase the value of the advowson, and the sum which would be given for it. The marked and growing interest felt by the wealthier classes in the spiritual as well as the temporal welfare of the people, would, we believe, under the circumstances and conditions we have described, induce many persons to give for the advowsons of these insufficiently endowed benefices a sum far exceeding their mere market value; and if the example so set were, as is not improbable, to be followed to the extent of selling the next presentation by public bodies and private patrons, a vast number of parishes now almost without religious instruction for want of an adequate endowment might be brought within the regular ministrations of the Church. The direct effect, however, of this proposal would he, to place nearly 330 cures of souls now in the gift of the Lord Chancellor, but which are almost useless for spiritual purposes from the insufficiency of their endowment, on a footing to secure to the people resident within their limits all the advantages to be derived from the ministrations of a resident pastor. The remaining benefices in the gift of the Lord Chancellor are 447 in number, and vary in value from 200 l. to 1,207 l. per annum."
These two which he had mentioned were the principal objects which this Bill had in view, although there were other clauses dealing with matters if less importance—for instance, to enable ertain corporations to part with their patronage, not for their own advantage, but for that of the Church. He ought, perhaps, to apologise for meddling in this matter, as some, parties thought it indecent for a layman to interfere with the affairs of the Church; he believed, however, that their Lordships would not be of that opinion, and would not think that he had at all transgressed the line of his duty in proposing this Hill for their adoption.
The EARL of POWISthought that there were some parts of this Bill which would on consideration bear a less favourable construction than that which the noble Earl bad placed upon them. Under its provisions it would he competent for an Archbishop or a Bishop of a diocese to unite parish A to parish B; and then, if the united parishes had an unnecessarily large income, to transfer the surplus to parish C. But the Bill did not stop here, for, in the next place, in order to create the surplus, it gave the Bishop power to order church B to be pulled down. Thus it proposed to promote church extension by pulling down churches; to provide for the cure of souls by giving two parishes to one minister; and, instead of diminishing pluralities, to enable one person to hold two livings.

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The noble Earl had referred to cases of parishes in which the population was very small; but these were extreme cases, and the Bill was not limited to them, as by it the union of parishes was in future to take place without any of those restrictions on the score of population which the present law imposed. The smallness of the population might be a very good reason for diminishing the endowment, but not for taking away the church and the minister from the parish. It was possible that a change might take place, as, for instance, by the erection of gigantic lodging houses; and that the population might once more return to the heart of the city where they had to work; and in that case an originally largely endowed benefice would be in a worse position than one poorly endowed, since it would have been despoiled simply for the benefit of another parish. He did not think it was at all objectionable that there should be a number of small parishes in a diocese like that of London—to which the Bill almost entirely applied—to which clergymen worn out by a life of active duty might retire for repose in their old age, and still do good service to the Church. The sixth clause enabled the bishop of the diocese to order any church included in such a union of parishes to be pulled down, and its site, and the building materials of which it was composed, to be conveyed to the Commissioners for the building of new churches, to be by them sold. Now, he could not help referring to the painful feelings which must be excited by the sale of churches, particularly amongst the friends and relatives of deceased persons who were interred in their graveyards. What, too, could be more unseemly than that the materials of which fine old churches had been composed, should be sold by public auction, when they might be bought by some speculator, perchance for the erection of a beer shop or a gin palace upon the very site now consecrated. It was said that churches were pulled down for other purposes; but in general when they were destroyed to make room for a railway, or other public work, there was a provision for their re-erection in some other quarter oftentimes much more convenient for the parishioners. Besides, in each case, such destruction was agreed to in view of a particular public benefit, which was a very different thing from authorising a general measure of that kind. Moreover, in these instances the civil power overruled and coerced the Church; it might be a neces-
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sity, and agreed to under pressure; but he had yet to learn that it was a work of piety, a work such as the chief ministers of the Church should themselves set forward and promote. If the right rev. Prelates dealt with consecrated ground and fabrics in this secular and commercial spirit, the precedent so set would be carried further than they might like. With respect to the other objects sought by this Bill, he thought there would be no objection, in the case of parishes with large incomes and small populations, to applying a portion of their funds in aid of less wealthy districts, because then they would not destroy existing churches or parishes; whilst power would be reserved to the Archbishop of altering the arrangement, should the circumstances of the parish change.
The BISHOP of LONDONsaid, this Bill was the result of a Commission appointed to inquire into the best means of subdividing large parishes, and making more effectual provision for the spiritual wants of poor districts, and the provisions embodied in it were the mode chosen to effect the object in the districts where the anomalies complained of existed. The noble Earl had brought forward the measure not on his own responsibility, but as representing the Commission to which he alluded, of which both himself (the Bishop of London) and the Archbishop of York were members. It was not to be supposed that the persons of whom that Commission was composed, would allow any measure to be brought forward that would bring discredit on the Church; and the need of some such Bill as was now proposed, had for some time been generally recognised. The condition of the City of London as respected population and church accommodation was well known to their Lordships; the disproportion was very great at the period when the Ecclesiastical Commission was instituted, and bad even increased since that time, and no one could traverse the City without seeing church towers in vastly greater abundance than the number of inhabitants required. What it was now proposed to do was, to take the churches down where they were not wanted, and erect them in localities where they were imperatively required. The principle of the Bill was far from being new; there were many instances in which churches had been pulled down where they interfered with public convenience. Many of our streets never could have been widened, and many of our most useful public buildings could not

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have been erected, if that religious feeling which was amiably cherished on behalf of the maintenance of our ancient structures, had been permitted to interfere with the public requirements. One of the most objectionable features of such alterations was, that which concerned the desecration of the burial grounds, and the removal of the bodies. On this head he would only say that every care had been taken to avoid any violation of public feeling, or offence to public decency. He had never received a remonstrance from any person in reference to the removal of the remains of any individual deceased; and provision was made for their removal, in all cases where it was practicable, under the superintendence and control of the relatives themselves. It was a case of frequent occurrence that persons who had had their relations buried in one churchyard, after a lapse of some years, translated their remains to another. The sale of their chapels and burial grounds was a common occurrence in the case of dissenting communities. The truth was, that cases arose in which our feelings for the dead must give way to the requirements and interests of the living; and he did not hesitate to avow his conviction that the remains of former generations must not interfere with the temporal or spiritual welfare of the present. For himself, he would not object to the removal of the sacred relics of his dearest friend, if he were satisfied that such objection would interfere to prevent provision being made for the spiritual instruction of those who were now destitute. Be it observed that it was not proposed to give any power of demolishing a church, unless where means were provided for the erection of another. He recollected a case in which he had consented to the demolition of a church in the City of London, provided the corporation placed in the hands of the parties a sum of money which would enable them to erect a church in another destitute district. The bargain was made, the church was pulled down, and another church was erected where it was greatly needed. During twenty-six years, in which he had been intimately concerned with such measures as the present, he had never heard objections brought against pulling clown existing churches which had become useless or dilapidated, when provision was made for the remedy, by this means, of urgent spiritual destitution. At present he anxiously wished to secure sites for two new churches in the district of Copenhagen-fields, near
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the new cattle market, where they were much wanted, and he had made a proposal to the City authorities, that if they would furnish him with the sites, he would con-sent to their pulling down two churches in the City. The noble Earl said, why not take the surplus of existing benefices, and transfer it to the incumbents of new churches? On this point he could say that the only two valuable livings which had fallen into his gift since he become bishop, he had cut down, transferring a large portion of their endowments to new districts. He hoped their Lordships would pass the Bill; he did not mean to say it was perfect, but it would certainly facilitate objects which he had much at heart, and enable them to make a considerable progress towards securing those objects. He felt thoroughly convinced that the inhabitants of any district in which he was called upon to consecrate a new church would feel thankful to him for having overcome any material prejudices that might stand in the way of those objects, and would be of opinion that feelings, pious and commendable in themselves, ought not to be allowed to act as obstacles to our duties towards the living.
The MARQUESS of BATHdoubted whether the difficulties in the way of the measure would be so easily surmounted as the right rev. Prelate supposed; and he questioned whether the people would so easily acquiesce in the desecration of burial grounds and the removal of remains. He knew that in one or two instances in which this had been attempted, it had caused great commotion. He objected especially to the disposal of the sites for secular purposes.
The BISHOP of LONDONsaid, he relied on the proceeds of the sale of the sites very greatly for the raising of funds requisite to erect the new churches.
The EARL of MALMESBURYexpressed some doubt as to the operation of the Bill.
House in Committee.
The EARL of POWISrepeated his objections to it, and pressed particularly for some limit in point of time.
The BISHOP of LONDONreminded the noble Earl that already, by a recent Sewers Act, he, as bishop, possessed powers similar to those with which this measure would invest him, only to a larger extent; for under that Act the Commissioners, with the assent of the bishop, could pull down any church, or remove any burial ground.
On Clause 6 (Giving power to sell and dispose of the edifices and sites of old churches),
EARL POWISmoved the rejection of the clause. He urged that when the Bill was passing through their Lordships' House for pulling down and disposing of the Royal Pavilion at Brighton, a clause was inserted to prevent the demolition and disposition of the chapel unless with the consent of the bishop of the diocese; and accordingly the Bishop of Chichester refused his consent until it had been provided that the chapel should he re-erected somewhere else, which was done.
The EARL of HARROWBYstated, that it had been quite a common practice, from the period of the great fire downwards, to pull down churches in the City, and replace them with secular edifices. He referred to an old book, from which it appeared that at the fire the consecrated sites of many churches were disposed of for the purpose of erecting banking houses or warehouses. A church had been pulled down to improve the approaches to London Bridge, and the Bank now occupied the whole site of an ancient parish, including that of the church belonging to it. Surely the noble Earl could not scruple more to pulldown churches for spiritual purposes than for secular?
The BISHOP of SALISBURYentirely-agreed with the motives which had induced the noble Earl opposite (the Earl of Powis) to move the Amendment; but if it were pressed to a division, he would feel compelled to vote against it. If it were found expedient to remove a church and to close a burial ground, was it possible that in the heart of a crowded city like this, the church could be allowed to remain a permanent ruin, and that the site of the burial ground could continue unoccupied? If the noble Earl could suggest any amendment, with the view of providing that, in the event of a burial ground being removed, the fullest respect should be paid to the feelings of even the poorest of Her Majesty's subjects, he would give such amendment his cordial support; but as he had felt assured that the authorities who were charged with the duty of carrying out this measure, would act with the greatest consideration for the feelings of all concerned, he hoped the noble Earl would not press the Amendment to a division.
The EARL of DERBYapprehended that, under the present law, in the case of its becoming necessary to remove a church or burial ground for purposes of public im-
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provements, the bishop was enabled to act not on his own sole authority, hut to consent to an object which was thought desirable by a public body. He entirely sympathised with the views expressed by his noble Friend behind him (the Earl of Powis) as to the general feeling of the public with regard to the sites of churches and burial grounds; but he confessed that after the case presented by his noble Friend (the Earl of Harrowby) and the right rev. Prelate (the Bishop of London), and more especially within the ancient limits of the City of London, he thought such considerations ought altogether to give way; for it was impossible to withhold assent to a measure which, although it might he attended with a minor evil, would still effect, in the only mode that was possible, a great and important object for the spiritual benefit of the inhabitants of the City of London itself. But, perhaps, the right rev. Prelate would consider whether it would seriously interfere with the operations of his measure, and whether it might not obviate objections to it if, in provincial towns having municipal corporations, the consent of the municipal body, as representing the feelings of the inhabitants generally, were made necessary before a church was pulled down, or a burial ground disposed of? To a certain extent such a provision might impose a useful additional check; and he was sure that the right rev. Prelate would himself desire that every check; not inconsistent with the principle of the Bill should he established, so that the bishop might not he placed in the position of having to exercise his own undivided and individual authority.
The BISHOP of LONDONthought that there might be no objection to some such limitation as that of requiring the consent of the municipal authorities with regard to the disposal of burial grounds; but with respect to the pulling down of churches, he thought it would be much safer that the bishop should be the originator of such a measure, and should act under the control of the Church Building Commissioners, and under the final supervision of the Secretary of State.
The EARL of POWISreiterated certain of his objections to the clause, and thought that if it were agreed to, the words of the consecration service, which professed to set apart grounds for ever for sacred purposes, ought to be altered.
The EARL of HARROWBYcould not consent to sacrifice the substantial objects

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of the Bill in deference to what he regarded as a mistaken feeling.
On Question, Clause agreed to.
Amendments made; the Report thereof to be received on Thursday next.

EXCISE DUTIES ON SPIRITS BILL.
EARL GRANVILLEmoved the Third Reading of this Bill, the principal object of which, he explained, was to increase the duties of Excise on spirits in Scotland to the extent of 1s., and in Ireland to the extent of 8d.
LORD MONTEAGLEsaid, that he viewed this Bill, both in its principle and application, with the greatest alarm, as to the effect it was likely to produce on public morals, on the peace of the country, and on the revenue. There could be no dispute as to the general principle that the Legislature was warranted in imposing the highest amount of duty upon spirits that could with safety and certainty he collected; but he doubted extremely whether, from the peculiar circumstances of Ireland, the Excise Department would be able to collect the increased duty now proposed. He thought he should be able to show their Lordships, on the contrary, that the effect of the Bill would be to lessen revenue, and not to increase it. He begged the House to bear in mind the amount of revenue they were risking by this experiment. The spirit duties of the United Kingdom amounted to nearly 4,000,000 l per annum, and constituted a burden of which nobody complained with justice. The fact was, that in Ireland the spirit duties constituted considerably more than one-fourth of the entire revenue collected in the country. The present Bill was founded upon an utter oblivion of every principle laid down by the highest authority, and established by the experience of all past legislation on this subject. In England there were very few distillers—the firms were large, they had extensive and costly premises, and contributed tens and hundreds of thousands a year each to the revenue. In Ireland, however, the case was totally different. There was no analogy between these establishments and an illicit distillery in Ireland. There, a man could obtain a small still at an expense of 3l.; he could get his fuel for the mere labour of procuring it, and his grain might be of his own growing. Two stone of oats, at 10 d. per stone, a little malt, would produce for him one gallon of spirits, which would sell at the lowest at from 4s. to 5s.
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per gallon. He maintained, then, that with such a temptation to fraud upon the revenue as increased duties on spirits presented, no machinery they could devise, and no force they could employ, would be able to collect the duty. This was proved abundantly by experience. The history of the Irish spirit duties was instructive. In 1822 there was a high duty upon spirits; and the Government of Lord Liverpool being exceedingly anxious to consider all questions of Customs and Excise, and, above all, whether any loss to the revenue resulted from these duties, appointed a Commission, of which Lord Wallace was the head. In 1823 the Commissioners reported—
"Our inquiries have satisfied us, and we think experience has fully proved, that in the remote parts of Scotland and Ireland it is impracticable to levy the high rate of duty at present charged on spirits. On evidence, and after much reflection, we are led to conclude that, if a higher rate of duty than 2s. 6d. to 3s. is put upon spirits, the licensed distiller cannot enter into competition successfully with the illicit distiller; and we cannot, therefore, hesitate to recommend a reduction to that amount. We hope that the reduction will not be attended with loss, but that an augmentation may be expected."
A reduction of duty was then made to 2s. 4d. per gallon, being an amount lower by 1s. than what was now contemplated by the Government to levy; and the effect was, that the consumption, which, in 1823, had been 3,342,000 gallons, rose, in 1824, to 6,690,000 gallons. In 1830 the Government of the day repealed the window tax in Ireland, upon the ground that it cost more to collect the tax than it yielded to the Exchequer. That might have been a very satisfactory fiscal reason for the repeal of that tax, but it was not a remarkably logical reason for imposing a new tax in its place. At that time, however, an additional 1s. per gallon was added to the spirit duties, which brought them exactly to the level now proposed by the Government, namely, to 3s. 4d. This addition immediately led to a falling off in the receipts; and Lord Grey, like his predecessor, appointed a Commission of inquiry, of which Sir H. Parnell was the head. The Report made in 1833 was in those terms:—
"There is a complete concurrence of opinion that the practice of illicit distillation has almost uniformly kept pace with the advance of duty; that in 1823, when the great reduction of duty took place, the habits of the smuggler were nearly annihilated, and that the revival and subsequent increase of these practices have nearly been

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contemporaneous with the consecutive increases of duty in 1820, 5½d, and in 1830, 1s. It seems unnecessary that we should enter into the grounds on which we consider a reduction of the duty to the amount at which it stood under the recommendation of the former Commissioners as the only remedy for the evasions of duty which can be proposed with any prospect of success. A firm conviction induces us to urge the necessity of retracing the steps taken in increasing the spirit duty. We confidently expect a general suppression of illicit distillation, and a full compensation to the revenue."
In the following year, 1834, Lord Althorp introduced a measure with the view of putting down illicit distillation, and restoring the revenue by a reduction of the duty from 3s. 4d. to 2s. 4d.; and his Lordship then said—
"That the Government had felt it their duty to consider the subject of the Irish spirit duties, with the view of ascertaining whether it might not be advisable by a diminution of duty to prevent illicit distillation, and at the same time not to expose the revenue to much loss. He felt confident that by repealing the increased duty of 1s. very advantageous results would be obtained, and that the amount of spirits brought to charge would rise from 8,000,000 to 10,000,000 gallons, and that in future years the revenue would suffer no loss whatever."
Immediately upon that alteration taking place, the amount produced rose not merely from 8,000,000 to 10,000,000 gallons, as Lord Althorp had anticipated, hut to 12,296,000 gallons, and by this means the revenue was replaced in the position in which it had stood previous to the inconsiderate increase of the spirit duties in 1830. From that period until 1840 no alteration of the spirit duties took place; but in that year his right hon. Friend Mr. Baring added to them 4d.—a sum less by one half than was now contemplated. Such was the sensitive nature of the spirit duties, however, that the quicksilver did not respond more certainly to the heat of the hand applied to the bulb of the barometer, than did smuggling follow upon any augmentation of their amount. Accordingly, the addition of the small sum of 4d. per gallon at once increased illicit distillation, as Mr. Goulburn, who had the experience of 1830 before his eyes, had warned Mr. Baring would be the consequence of imposing that additional sum. Thus matters stood until 1842, when the Government of Sir Robert Peel, undismayed by the difficulties which had before occurred, proposed the addition of 1s. a gallon on spirits. Exactly the same results again ensued; and in the very next year Mr. Goulburn in the other House, and the Duke of Wellington in their
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Lordships' House, proposed the repeal of that additional duty. These were facts which could not be mistaken or controverted, and they clearly proved that illicit distillation had increased, and the revenue decreased, on every addition made to the duty. There was one other portion of the subject to which he wished to call attention, and that was the effect of illicit distillation upon crime. This was not a mere question between the distiller and the Treasury. He had shown that every rise in the duty had been attended with loss to the revenue, and every fall in the duty with an increase to the revenue. He would now show how it acted upon crime. He would take, for example, the returns from the gaol of Carrick-on-Shannon, as affording a fair illustration of this. In 1834, when the duty was 3s. 4d. per gallon, 52 persons charged with illicit distillation were confined in that prison, which only contained accommodation for 79. In 1840, when the duty was reduced to 2s. 4d., the 52 prisoners had dwindled down to 2. In 1843 came the increase of duty to 3s. 8d., and the 2 instantly mounted up to 26. In 1847 Mr. Goulburn's 1s. was removed, and the duty brought down to 2s. 8d.; immediately people ceased to distil, and the 26 declined to 3. He had similar returns from Lifford, Castlebar, and elsewhere, showing the same results. In the whole of Ireland there were in 1842 368 persons imprisoned, charged with the offence of illicit distillation; and in 1833–34, when the duty was 3s. 4d., the number of prisoners was augmented to between 400 and 500. He thought it impossible to carry demonstration further of the ill effects of any measure. It might be asked, if the increased duty yielded nothing additional to the revenue, and the people of Ireland paid nothing more than before, where was the grievance? The question was childish, though, to his surprise, it had been put. To remit taxation was one thing; but to put a country in the position of evading and cheating the revenue, was not to be considered as a relief from taxation, nor yet, on other grounds, as a very desirable course to pursue. Certainly that was not the way in which he, for one, wished to profit by the financial arrangements of the Government. His noble Friend was trying a duty now which had failed before; but he was trying it under circumstances which must occasion it to fail at this time, even if it had succeeded on former occasions, because the prices of agricultural produce

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were now so much lower than they were then, that there was now a much greater temptation for a man to convert his grain into spirits than to sell it in the market, and many persons, therefore, would be induced to smuggle, who in other circumstances might not have attempted it. He must say, if this experiment were tried under circumstances which were calculated to deprive it of the small chance it would otherwise have of success, it would not be likely to gain the slightest fragment of popularity which could by possibility attach to it. When it had been proposed on former occasions, it had been to permit the repeal of other taxes. In 1832 the tax was proposed to compensate for the removal of the window duties from Ireland; and in 1842 as an equivalent for not extending the property tax to Ireland. On the present occasion it was just the reverse, and Ireland had got an increased duty on spirits, and the income tax and other onerous taxes into the bargain. Indeed, no one could consider the present Budget without seeing that, however it acted upon other parts of: the Empire, it operated with a most unjust pressure upon Ireland. By the repeal of the soap duties, the assessed taxes, and post horses, and by the extension of the income tax to incomes of 100 l. a year, there was remitted altogether to Great Britain 1,040,000 l. a year. In Ireland, on the other hand, while the total remitted was only 245,000 l. of consolidated annuities, there were imposed, the income tax, 460,000,000 l., and spirit duties, 198,000 l.—total, 658,000 l.; or, in other words, there was additional taxation imposed upon Ireland to the extent of 413,000 l. a year, while in Great Britain there was a remission of above one million. From 1800 to 1815, Chancellor of the Exchequer after Chancellor of the Exchequer had, in search of revenue, imposed new taxes upon Ireland year after year, until in 1815 the Minister was obliged to admit in Committee that, having imposed taxes to the amount of 3,000,000 l. sterling, the result had been a loss of 10,000 l. a year. He had felt the Bill to be so important to the interests of Ireland, that he deemed he should not have been doing his duty had he not trespassed upon them to the extent he had, even at a time which was, no doubt, inconvenient for the discussion of a question of this nature.
The EARL of DERBYdid not rise to make any observations on the speech of his noble Friend who had just sat down
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He would only say that, omitting, perhaps, the latter portion of his speech, in which he alluded to the relative relief from taxation afforded by the recent Budget to England and Ireland, and which, perhaps, was not necessary to the illustration of the question, he was bound to say that, with regard to the whole of his remaining arguments, with regard to the authorities which he had brought to bear upon the subject with respect to the practical effect found to result from previous corresponding increases of the duty, and to the anticipations for the future, he entirely concurred with his noble Friend. He was satisfied that this was an impolitic addition to the duty, which would not increase the revenue; but in the then state of the House, considering that the Bill was one to which the Government attached importance, and from which they anticipated to derive an increased revenue of 400,000 l., a deprivation of which would convert their present imaginary surplus into a deficiency, he should be unwilling to do more than to express his entire concurrence in the views and opinions of his noble Friend. He should be sorry to see a Bill which had passed the House of Commons rejected by so small a number of their Lordships as were present at that time. That consideration alone—a consideration of the small numbers by which if the Bill should be rejected it would be rejected, and the consequent absence of weight which such a decision would carry with it—that consideration alone it was, and not any doubt of the mischievous character of the measure before them, which prevented his taking the sense of those Members present with regard to the passing of the Bill. He was disposed to leave this case in the hands of the Government. He believed that as former Governments had found it necessary to retrace their steps, so the present Government also would see the evil consequences that would flow from this proposition, and would have the unpleasant duty of confessing that they had been altogether mistaken in the effects which they had anticipated.
EARL GRANVILLEsaid, that of course he was perfectly aware, from the high character of the noble Earl opposite, that there was no chance of his trying to defeat this Bill at that particular stage. It was not necessary for him to go further into the discussion of the subject than to say that he entirely concurred with the noble Earl as to the amount of ability and

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knowledge which had been shown by the noble Lord near him (Lord Monteagle), in the speech which he had just made; and he certainly should not follow the noble Lord into that which he had admitted to be irrelevant—namely, the whole question of the Budget. He might, however, say that having lately been in Ireland himself, nothing had struck him more than the general concurrence, not of political partisans merely, but of that class most connected with commercial undertakings, and most interested in the general welfare of Ireland, in the opinion that there was a general return of prosperity to that country, and in an entire disclaimer of anything like a disapproval of the Government proposition as affecting them. He would simply observe, with reference to the loss to the revenue when the shilling duty was imposed, that it took place just at a period when a great change took place in the consumption of spirits, owing to the exertion of Father Mathew.
On Question,Resolved in the Affirmative.
Bill read 3a accordingly, and passed.
House adjourned till To-morrow.