Lords Sitting of 31 July 1854

MINUTES.
PUBLIC BILLS.—1a Schools (Scotland); Bribery, &c.; Cinque Ports.
Reported—Parochial Schoolmasters (Scotland); Land, Assessed, and Income Taxes.
3a Towns Improvement (Ireland); Convict Prisons (Ireland); Indian Appointments, &c.; Admiralty Court; Friendly Societies Acts Continuance.
Royal Assent—Highway Rates; Turnpike Trusts Arrangements; General Board of Health; Registration of Bills of Sale (Ireland); Jamaica Loan; Sheriff and Sheriff Clerk of Chancery (Scotland); Joint Stock Banks (Scotland); Cruelty to Animals; Portland, &c., Chapels; Returning Officers; Turnpike Acts Continuance, &c.; Jury Trials (Scotland); Friendly Societies; Royal Military Asylum; Poor Law Commission Continuance (Ireland); Heritable Securities (Scotland); Borough Rates; Eccle-

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siastical Jurisdiction; Stock in Trade Exemption; Common, &c., Rights (Ordnance); Land Revenue of the Crown (Ireland); Highways (Public Health Act); Public Libraries.

BRIBERY, &c., BILL.
Bill read 1a.
LORD REDESDALEsaid, that their Lordships had read this Bill a first time out of courtesy to the other House of Parliament; but he thought he should not be trespassing improperly on their Lordships' time in asking the Government what course they proposed to take with respect to it. It would be in the recollection of the House that a Resolution, of which notice was given in February last, was agreed to by their Lordships in May, with reference to the time after which they would not, unless in excepted cases, read any Bill a second time; and it was now for them to consider what course they should take with respect to this Bill, having regard both to this Resolution and to the subject of the measure itself. He was glad, indeed, that he could refer to this Resolution in conjunction with the present Bill, inasmuch as it was not at all of a party character. He must thank the Government for the manner in which they had met the Resolution to which he had referred. They had treated it as one seriously adopted by the House after due notice, and up to the present time no attempt had been made to infringe it. The countenance which the Government had given to the Resolution had, in fact, had considerable effect upon the attendance of Peers; for every one believed that the Resolution was to be carried out, and therefore naturally expected that no Bills of importance, except such as were on the table of their Lordships' House before the 25th of last month, would be proceeded with. There could be no doubt that this Bill was not one of those which the Resolution in question excepted from its operation; and, although, undoubtedly, the subject was one of great importance, he thought it was one as to which the Resolution ought to take effect. The object of that Resolution was not only that their Lordships should have time to discuss measures of importance, and that there might be an adequate attendance of Peers for their consideration, but also, out of regard to the privileges of the other House, that they might have time to entertain the Amendments made by the House of Lords in Bills emanating from them. He believed, in fact, that the independence of both Houses of Parliament as legislative bodies
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would be materially advanced if that Resolution were properly and fairly carried out, and that more respect would be entertained for their measures if they did not pass Acts to which they were utterly unable to give a fair consideration. He had received from Earl Grey, who was unable to be present, a letter expressing his hope that the House would adhere to their Resolution with respect to this measure, and refuse to consider it in a hurry. His noble Friend added that he thought the Bill altogether a bad one, and would have opposed it if in town; and even those who approved of it must admit that it involved new and startling propositions, and required more consideration than it could receive in the month of August. With respect to this particular Bill, before it had been sent up to their Lordships' House, it had been committed and recommitted again by the other House, and had been, after all, so materially altered on the third reading, that he believed many Members who had taken part in the discussions upon it hardly knew what were the contents of the Bill as it quitted the House of Commons. And so little confidence had that House in the Bill even in its most improved state, that they only passed it after all by a majority of seven. He would, then, ask their Lordships whether they were now to proceed to consider a Bill which was not yet even printed? [Lord LYNDHURST remarked that it had been three weeks before the other House.] Many weeks. It was impossible to touch a Bill of this character without making Amendments of the most important character; and then they might have to send it down again to the other House, perhaps on the last day of the Session, to be hastily considered by the few Members who remained in town. He did not think that that was the way in which a subject of this importance should be dealt with, and he did, therefore, entreat their Lordships to adhere to their Resolution, which had already had an important effect in the present Session, although he regretted that the attention of the Government had only been recently called to it. In future Sessions of Parliament there could be no doubt that it would tend very materially to enforce the early preparation of business for both Houses; and he therefore hoped they would not break through a Resolution which had worked well hitherto, and was likely to work still more satisfactorily hereafter. He did not wish it to be supposed, that he considered the present law in relation to

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bribery at all satisfactory; but he must at the same time add that the present Bill was open to many grave objections. He was satisfied, therefore, that they could adhere to their Resolution without at all violating the courtesy which was due to the other House, because if they entertained this Bill they must make numerous alterations in it, and by refusing to consider it they were therefore only saying that they would not send Amendments down to the other House at so late a period of the Session that it would be impossible to do justice to their consideration. He was satisfied that, by adhering to their Resolution, which they had passed deliberately at an early period of the Session, they would do that which was most likely to facilitate the transaction of business in future years, and to ensure the due consideration of measures in both Houses of Parliament.
THE DUKE OF NEWCASTLEcould not deny what had fallen from the noble Lord with respect to the extreme inconvenience arising in the House from Bills of such an important character coming up so late; but, at the same time, the noble Lord would admit this was no new grievance, having been frequently the subject of complaint. He was extremely glad that the Resolution passed by his noble Friend would be tested with reference to the present Bill, because, as the noble Lord had said, it was not a party measure, and ought not, and he hoped would not, entail any party feelings or struggles in that House. His noble Friend thought the Resolution would be productive of great advantage in future Sessions, and considered it of much importance that their Lordships should insist on its literal fulfilment in the present instance. He (the Duke of Newcastle) must differ from his noble Friend as to the policy, on the first introduction of a measure of that kind, of making it so exceedingly stringent with reference to a particular case, when the other House was not entirely cognisant of the exact nature of their Lordships' Resolution; for his noble Friend admitted that the attention of the Members of the Government in the other House had only been called to it a short time ago. His noble Friend could not have considered what the Resolution was. It did not say that in no instance was a Bill to be read a second time which should come up to their Lordships' House after the 25th of July; but there were to be special exemptions of Bills of Supply and
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measures of urgency. The noble Lord could hardly deny that there were circumstances of special urgency in this measure. Their Lordships must be aware that, early in the present Session, the House of Commons had come to a Resolution, that the writs of five boroughs Should not be issued, until some legislative measure had passed of a character likely to prevent the system of bribery which had prevailed in those boroughs theretofore. It was specially with reference to the present Bill that the House of Commons had passed that Resolution, and the House of Commons had awaited the issue of this measure before consenting to issue the writs for these boroughs. He thought that their Lordships would admit that the issue of these writs ought not to be suspended longer than was necessary, and the measure therefore came before their Lordships as a special case of urgency. He hoped, when their Lordships came to a decision upon this question, they would agree that, although it was desirable to uphold their Lordships' Resolution, yet that, as regarded the particular measure now before them, their Lordships were called upon, as well from a sense of what was due to the other House, as from the constitutional doctrine that these boroughs should not be unrepresented longer than was necessary, not to insist upon applying their Resolution in this particular case, and to give this Bill a second reading. The noble Lord had himself borne evidence to the fact that the Government had met this Resolution in a proper spirit. Bills had been introduced first into their Lordships' House as far as possible, in order not to infringe the Resolution, and there had been every desire on the part of the Government to uphold it to the best of their power, so that measures of importance should not be protracted until so late a period of the Session. He, therefore, hoped that their Lordships would not insist upon applying the Standing Order to the Bill now before them.
THE EARL OF DERBYsaid, the noble Duke was right in saying that this was no new grievance, and that Session after Session complaints were made of the late period of the Session at which Bills came up to their Lordships from the other House. Therefore it was that their Lordships had determined to take steps to prevent the recurrence of this evil. His noble Friend (Lord Redesdale) had, so early as the 28th of February in the present Session, given notice of his intention to move the Resolu-

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tion, which on the 2nd of May received their Lordships' assent. Ample notice had therefore been given; and he must suggest to the Government, that if they intended to interfere with the Resolution on the first occasion when it became applicable, it would have been better not to pass it at all. They had placed upon their journals a Resolution which was intended to guide the proceedings of the other House of Parliament, which had become matter of public notoriety, and to which the attention of the Government had been specially called; and if, when a Bill of small importance came before their Lordships, it was said, "Oh, let this Bill pass; it is a Bill of such trivial importance that you will not think of adhering to your Standing Order;" and when a Bill of grave importance came up from the other House their Lordships were told, "You cannot think of applying the Resolution to this case, because the Bill is of such urgency and importance that it is absolutely necessary to suspend the Resolution," the Resolution would become practically a dead letter. There were several Bills that had been read a second time since the 25th.
THE DUKE OF NEWCASTLE: Only one, and that was upon the Motion of my noble Friend himself.
THE EARL OF DERBY: Of course, in the case of more continuing Bills and Bills making no material changes he did not wish to strain the Resolution of his noble Friend (Lord Redesdale), but he thought it would be wise to adhere to the spirit of the Resolution, in order that their Lordships and the other House of Parliament should not send forth legislative measures which were discreditable to themselves, and which could not practically work well for the country; and that their Lordships should have full time to consider any Bill, and the other House of Parliament full time to consider any Amendments which might be adopted by their Lordships, and sent down to the other House for their adoption. The noble Duke said, that the Resolution excepted measures of urgency. Now, the words of the Resolution were—
"That this House will not read any Bill a second time after Tuesday the 25th of July, except Bills of Aid or Supply, or any Bill in relation to which the House shall have resolved, before the second reading is moved, that the circumstances which render legislation on the subject-matter of the same expedient are either of such recent occurrence or urgency as to render the immediate consideration of the said Bill necessary."
Now, the events that had led to the intro-
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duction of this Bill could not certainly be said to be of recent occurrence or urgency. The Resolution agreed to by their Lordships was intended to provide for cases of unforeseen urgency; but had the House of Commons determined that it was absolutely necessary to legislate on this subject? The present Bill, after having been altered more than half a dozen times in the other House, in its progress through its various stages, had, after being read a third time, had one of its most material provisions—the declaration—expunged from it, on the strength of which it had received the support of many hon. Members. Then came a division upon the question that the Bill from which the declaration had thus been expunged should pass, and whatever the House of Commons might have thought of the original Bill, in a House of 200 Members the Motion that the Bill do pass was only adopted by a majority of seven. Now, was that a case in which the House of Commons could be said to have so strong an opinion of the necessity of passing the present Bill, that, out of courtesy to that House, their Lordships ought to violate a Resolution passed to remedy an evil of long standing? He denied that the Bill was a case of urgency. If their Lordships now set aside their Resolution, it would become in future a piece of waste paper; they would break faith not only with the Members of that and the other House of Parliament, but also with the public, who had a right to expect, from the adoption of the Resolution, that no hasty or ill-considered legislation would take place at this late period of the Session. The reasonableness of this Resolution had been acknowledged by the leaders of the Government in the other House, and it had exercised a practical influence upon the legislation of the other House. Some Bills had been dropped, and others accelerated, to meet the Resolution of their Lordships. But if the House of Commons saw that on the first occasion when this Resolution came into practical effect their Lordships abstained from adhering to it, and that Bill after Bill passed a second reading after the 25th of July, the House of Commons would say that such a Resolution stood indeed upon their Lordships' Journals, but that their Lordships did not mean to adhere to it—that they never intended to act upon it—and that it would be quite idle to take any trouble to send up Bills at an early period of the Session for their Lordships' consideration. This was a case

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which strongly confirmed him in the opinion he had before expressed, that it was desirable for each House to take into their consideration at the commencement of next Session, Bills which had passed through all the other stages in the other House. To that plan he felt convinced Parliament must come at last. Here was a Bill of great importance and of the deepest interest, in the object of which their Lordships and the other House alike concurred, and yet it was sent to them at a period of the Session when their only alternative was either to reject it altogether, or to pass it in a most imperfect state. But if their Lordships had the power of postponing it, either to the month of February or to November, if Parliament were to meet in that month, then their Lordships would be able to reconcile their duty to the public and their desire to unite with the House of Commons in considering some practical remedy. They might then make a satisfactory measure out of the present Bill, but if they passed it in its present state it would be satisfactory to none, or, at all events, to a very small majority, and their Lordships would send down a Bill to the other House which would be no credit either to themselves or to the other House of Parliament.
THE EARL OF ABERDEENsaid, the true question for the House to consider was, whether this Bill did not come under the exception contained in the Resolution. Looking fairly to this subject, he thought that there never was a Bill which more manifestly came under the excepted provisions. The noble Earl who had just sat down had found it convenient to describe this Resolution incorrectly. [The Earl of DERBY: I read it.] But the noble Earl interpreted it inaccurately with a view to show that the present Bill did not come under the exceptions of the Resolution, because he said that this is not a measure of urgency. Now, he should like to know whether the noble Earl was prepared to say that the indefinite postponement of the representation of five boroughs was a matter of indifference, sad was not to be regarded as a serious matter of urgency?
THE EARL OF DERBYhad said, that the subject-matter of the Bill was not of such recent occurrence and urgency as was contemplated by the Resolution.
THE EARL OF ABERDEENbegged to say that it was because the House of Commons had come to the resolution that the writs for these boroughs should not be
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issued until a remedy had been provided against a repetition of the offences against which this Bill was directed. He said, therefore, that it was a measure the subject-matter of which was of recent occurrence and urgency, and that it was an instance in which most properly the Resolution may be relaxed. If the noble Baron who proposed this Resolution had thought of proposing it without such exceptions as he introduced, he was sure he would have had no chance of carrying it. The only inducement he for one had to agree to the Resolution was, the prospect of a liberal construction being put upon it when a case arose to require such an interpretation. They would otherwise never have thought of imposing such an arbitrary condition upon the proceedings of the other House as would have been quite intolerable, and to which that House would never have acceded. The fact was that the Resolution had already, by the admission of the noble Earl himself, produced those good effects which the noble Baron anticipated from it, and this was exactly how he (the Earl of Aberdeen) had expected it would operate—that tacitly, and without the necessity for interfering in the main, they would accomplish what they were attempting to do. But that their Lordships should be deprived of the means of relaxing that Resolution in such cases as the present was perfectly unreasonable; and, had it not been for the prospect of such a power being given, be for one would never have agreed to the Resolution when proposed by the noble Baron.
THE EARL OF DERBYthought the noble Duke and the noble Earl would find themselves mistaken as to the effect of that Resolution of the House of Commons; he believed the Resolution of the House of Commons was not that the new writs should not be issued until new legislation had taken place, but that the new writs should not be issued except upon notice of eight days being given; but there certainly was an announcement that an Act would be passed to regulate elections. There was, he believed, a Motion coming on that night in the other House, that new writs should be issued for these boroughs, notwithstanding this Bill had not yet passed.
THE DUKE OF NEWCASTLEobserved, that the Resolution might not have been exactly in the words stated by his noble Friend (the Earl of Aberdeen), but his noble Friend had stated the object of the

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Resolution. He (the Duke of Newcastle) begged to give notice that on Thursday, instead of moving the second reading of the Bill, he would move with reference to it a Resolution similar in terms to the exceptions in the Resolution proposed by his noble Friend (Lord Redesdale) in order that the Bill might then be read a second time.
LORD BROUGHAMthought it was not necessary that any Resolution should be moved. The noble Duke might move the Bill subject to the objection that it was against the Standing Order, and he might say it was not against the Standing Order, but in accordance with the exception to the Standing Order. No unnecessary delay should take place in bringing on the second reading. It was most highly expedient that the Bill, if it were to be proceeded with in its present shape in that House, should be proceeded with as speedily as possible, and before any greater number of their Lordships had left town than had already left it. He was rejoiced to hear that the measure would not be put off until next week, which would increase the evil of discussing so important a measure when there was comparatively so small an attendance.
THE MARQUESS OF CLANRICARDEconsidered that if it were deemed necessary to suspend the Resolution in this case, the sooner the House came to a decision upon the point the better. If the Order should be suspended, there should then be a very long delay before they took any further steps upon the Bill. When they made up their minds whether they should decide upon the Bill, they should then have some days carefully to read the Bill and look it over.
LORD REDESDALEsaid, that under the Resolution their Lordships had adopted the circumstances that were to render legislation expedient were either matters of recent occurrence or unforeseen urgency. Now, he submitted that, after what had been said, it was by no means clear that the House of Commons itself thought immediate legislation necessary; but to contend that so old a question as bribery was of recent occurrence or urgency, was really one of the most extraordinary means of getting rid of a Resolution of their Lordships that he had ever heard of. To rescind the Resolution in the present case would, he thought, go far to contravene whatever advantage might be expected to result from the adoption of that Resolution. The effect of the pro-
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ceeding which was now proposed to be adopted would be, that whoever could command a majority of the House at the time could determine what Bill was a Bill that had reference to a recent occurrence, and was urgent in its nature. The rule would, therefore, do nothing at all, and there would be no protection for legislation, and he hoped the noble Earl opposite would consider the matter before Thursday; because the effect of rescinding the Resolution and considering the Bill might be, that their Lordships might make important alterations, or perhaps replace some of the provisions which the House of Commons objected to; and to send it back to the House of Commons when there would not be a large attendance of Members, would not be treating that House fairly on a question so nearly affecting its privileges. In fact, he did not think they would be paying the House of Commons a compliment by passing such a Bill at this time.

INCUMBERED ESTATES COURT (IRE LAND)—QUESTION.
THE MARQUESS OF CLANRICARDErose to ask the intentions of Her Majesty's Government as to the renewal of the Act under which the Incumbered Estates Court in Ireland was established. The noble Marquess argued that it was advisable that the present anomalous state of the law with regard to property in Ireland should not continue, but that there should be one permanent law applicable to all landed estates, and by means of which the same facilities, which he admitted had worked advantageously, for the sale of real property should be given as was afforded temporarily by the Incumbered Estates Act, while at the same time such extensive and summary powers were not vested in the Court. He begged to know whether the noble and learned Lord on the woolsack could tell him what course the Government intended to pursue, and whether he would give any promise that early next Session any plan would be brought forward for the improvement of the law of the country generally, which would enable them to do away with the Incumbered Estates Court, and improve generally the existing state of the equity courts.
THE LORD CHANCELLORsaid, their Lordships were aware that by the law as it now exists under the Act of last Session, the Incumbered Estates Court had one year to endure, the Act providing that

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they should continue till July, 1855, and that after that a further period should be allowed for winding up any suits that were pending. His noble Friend asked what were the intentions of the Government with regard to continuing that Court, or whether it was intended to unite it with the Court of Chancery, or to make any other modification in the Court as it now existed. He would not complain at such a question being asked, but he wished to explain to his noble Friend why he was unable to give him a distinct answer now. Last Session the Government had introduced into this House a Bill for facilitating the transfer of land by means of a system of registration, but which, when it went to the other House, was not sanctioned by that House, but was referred to a Select Committee. That Committee reported that the plan was not entitled to favour, but that a Commission should issue to inquire into the best plan for facilitating the transfer of land, and by which such transfer, although not so readily effected as the sale of a horse or a watch, should be made comparatively easy. He felt it his duty to issue such a Commission, which was directed to gentlemen connected not only with this country, but to gentlemen connected with Ireland. He had recently been in communication with the Commissioners, and one of them had informed him that they had held constant meetings, and they were satisfied that they had before them one or two plans which would be a great improvement on the present law, and greatly facilitate the transfer of land. He would not give any opinion as to whether the Commissioners would be able to arrive at the result they hoped for; but he should be ready to consider any plan which would render the question of the continuance of the Incumbered Estates Court unimportant, and by which the exceptional legislation in relation to that Court would be removed. But unless some such plan was brought forward, the Government did not think it would be advisable to remove the Incumbered Estates Court, for the advantages which continued to be derived from that Court appeared to be very great indeed. Since last year (as it appeared from returns made by the Commissioners), that is, from the 1st of August to the 9th of June in the present year, there had been 400 new applications to the Court, which, practically speaking, was the same amount of applications as had taken place in the previous two years. At the same
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time the Commissioners, with great caution and propriety, stated that, although the number of applications was as great, the amount of property dealt with was less, as, the applications related to smaller estates. When, therefore, the Government saw that the number of applications to the Court continued so great, unless some other satisfactory plan was found in relation to this subject, they thought they would not be warranted in depriving that country of the advantages which had been derived from the existence of the Court.
THE EARL OF GLENGALLdeclared that the most disgraceful transactions that ever had been known since courts had been invented had taken place in that Court. In many instances there had been in it the greatest jobbery that it was possible to imagine. There was a set of professional schemers in Dublin, who, by their myrmidons and agents, sent through the country to all the attorneys in the land to get cases into the Court; and the result was, that there was a system of plunder, going on that was perfectly unexampled. At least one-fourth of the cases that had been brought into that Court had been brought into it by means of one firm in Dublin and their associates—their brother schemers. He should like to know exactly what amount of the property purchased in that Court had been purchased by money which had been raised by mortgage on it by the parties who purchased it. It could be proved by a vast number of highly respectable men that hundreds upon hundreds of thousands of the money had been raised by mortgage on the property purchased, and the property having now risen in value to the extent of some eight or nine years' purchase, the parties were making a very considerable profit by it. The property of some of his friends had been sold for nine or ten years' purchase, and it was now worth twenty-five years' purchase, the property having been sold when the country was ground down by famine and disease. The estates were incumbered by those purchasers as much as they ever had been before, and they were selling those properties again. One man made a regular trade of it—an attorney in the West of Ireland made a regular trade of it. Two of the Commissioners of the Court were Irish, and four or five barristers, their relatives, had the practice of the Court, which was so very far away from the law courts that the barristers practising in the regular courts could not go up there.
THE MARQUESS OF CLANRICARDEsaid, that the first part of the reply of his noble and learned Friend was satisfactory, but the latter part was not equally satisfactory. He again urged the necessity of doing away with the anomaly of two existing codes of law in reference to landed property in Ireland. If the law was so good as it was represented to be, it ought to be extended to this country as well as to Ireland.

PAROCHIAL SCHOOLMASTERS (SCOTLAND) BILL.
House in Committee (according to Order).
LORD KINNAIRDsaid, he could not allow the Bill to pass without expressing his regret that it was but a temporary measure. He hoped the Government would prepare a measure which would place the schoolmasters' salaries at an amount which would be equal to their deserts.
THE DUKE OF ARGYLLsaid, that this being only a temporary Bill, intended for one year only, implied on the part of the Government an opinion that during the next Session it would be their duty to renew the endeavour they had made to provide for a more permanent system of national education in Scotland. But whether the future measure of the Government would be such a Bill as the one which the noble Lord (Lord Kinnaird) had just laid on the table (a Bill to amend the Law relating to Parish Schools in Scotland), it was not for him now to speculate or to state. He must, however, observe, that the measure which the Government had introduced this Session on the subject, but which unfortunately did not meet with success, did not convey a censure upon the parochial system of education in Scotland, which he (the Duke of Argyll) believed had proved of the greatest benefit to that country. The parochial schools were certainly sectarian in the sense of being denominational schools; but it was entirely untrue that they were sectarian schools in the sense of interference with the religious opinions of the people. The salaries of the schoolmasters were now paid by the landed property of the parishes, and he thought that it was a matter deserving of consideration, how far trading and commercial incomes ought to contribute a share towards the support of the system; in which case, of course, all who contributed would be fairly entitled to a certain voice in the management. He maintained that the Bill which was brought forward by the Govern-
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ment for improving the existing system of national education in Scotland, but which was unfortunately lost in the present Session, was a measure founded in the main upon the ancient law and practice of Scotland, and deviating from them only in those points where the altered circumstances of the country absolutely required it.
THE DUKE OF BUCCLEUCHhoped that they should never see a system adopted in Scotland by which the public schoolmaster would be elected by the ratepayers—a system which he believed would be a curse instead of a blessing to the country. He was extremely glad that the noble Lord (Lord Kinnaird) had prepared a Bill on this subject with great care, and laid it on their Lordships table. He had been favoured by the kindness of the noble Lord with a previous opportunity of seeing the draft of the measure, and he believed it was one that would be more acceptable to the people of Scotland than the measure which the Government had introduced without success.
THE DUKE OF ARGYLLsaid a few words in explanation.
Bill reported without Amendment; an Amendment made; and Bill to be read 3a To-morrow.

REAL ESTATE CHARGES BILL.
Order of the day for the House to be put into a Committee read.
Moved, That the House be now put into a Committee on the said Bill.
LORD ST. LEONARDSsaid, that he wished to call their Lordships' attention to the provisions of this important Bill, and to the manner in which they would affect real estate. There were two ways in which this measure could be viewed—first, with regard to the ulterior changes affecting real property to which it would prepare the way; and next, the actual provisions it contained with respect to real property. As their Lordships might be aware, another Bill, at an earlier period of the present Session, had been introduced into the other House of Parliament, having for its object to prevent primogeniture from taking effect in regard to the descent of real estate where the owner died intestate; but that measure was rejected. The present Bill was now brought forward as a measure to provide some relief for personal estate as against real estate, and to a certain extent it would give to the next of kin the real estate, which, as the law now stood, belonged to

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the heir at law. If the question were simply whether or not the law of England should be altered so as to get rid of the principle of primogeniture, and to allow real estate to be divided amongst all the children in the same way as personalty, as some persons in this country desired, it was a matter of which he thought their Lordships would very easily dispose. He did not say that there might not be much argument upon the subject; but, looking at the effect in France of the system in operation there of minutely subdividing landed property, and seeing how this country flourished under the law as it now existed, nothing could be more unwise than to introduce the change which was proposed by the Bill to which he had alluded as having been lost in the other House. Now, the present Bill was an endeavour to obtain an instalment of that former measure, an endeavour to introduce a principle, the establishment of which, step by step, might have the indirect effect of accomplishing an end which, if pursued by a more direct proceeding, by Bill in either House of Parliament, would not be successful. He admitted that, if this Bill were right and proper in itself, and capable of being carried into execution, then, although some of its advocates had further and dangerous views, that would be no reason for refusing to pass the measure, and that the time for objecting to a further measure would be when that further measure came to be proposed; yet their Lordships must be on their guard against sanctioning a principle which they wished to deny, and which could only weaken the foundation of the whole existing law regarding real property, and might be used to hamper their discretion in their subsequent deliberations. Under the law as it now stood, if a man had an estate which descended to him from an ancestor, and which was charged with a mortgage, with portions, or any other incumbrance, or if he bought an estate subject to any mortgage or incumbrance, these incumbrances did not become a charge upon his personal estate; and even if he were to do an act which would bind him personally in regard to certain incumbrances upon the estate he inherited or had bought, the law would not make that incumbrance a debt upon his personal estate, unless he showed an intention to make it his personal debt; it would be a burden upon the real estate upon which it was charged, and the personal estate of the owner would not be liable to pay the
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debt. But if a man borrow money, although he secure it on his real estate, it is his debt, and like all other his debts, is payable out of his personal estate as the first fund. Now it had been urged that cases of great hardship occasionally arose from this provision of the law, where no provision was made by will or otherwise to meet such incumbrances, and an instance had been quoted of a person having mortgaged his estate and dying without a will or making any provision for the discharge of such mortgage, the personalty became liable to the liquidation of the incumbrance upon the realty, of which the heir at law had the benefit, to the prejudice of the other children. But this difficulty would not have occurred if the father had taken the precaution to provide against it by will or otherwise, as he might have done. Consequently, the law as it stood provided the remedy. The principle of the law, for the last two centuries, was, that the burden of the incumbrance should be borne by that class of property for the benefit of which it was incurred. If the burden were incurred for the purpose of improving the personal estate, it was but just that the personalty should bear it. The principle of the law was clear, and it was open to every man to make a provision to prevent the operation of that law inflicting hardship upon those for whom it was his duty to provide. It was not for Parliament to legislate for every case of hardship consequent upon a man's neglecting to take the ordinary precautions by will against the exigencies of his own family. It was no doubt true that many cases of hardship arose under the present law; but he could point out others equally hard on heirs at law, against which no provision is proposed to be made. For instance, a man having an estate worth 100,000 l., which he intended to descend to his heir finds that there was another estate that he could buy with much greater advantage if he could sell his own. An opportunity for selling might offer, and having actually sold, he might die before the purchase-money could be reinvested; and in that case the heir at law would be deprived of both the estate and the purchase-money. Well, how could they deal by legislation with such a case? It was a man's duty to make a will meeting the exigencies of his own position; and if they were to legislate for cases of hardship arising from the neglect of this duty, thousands of cases might start

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up, and it would be impossible to provide effectually for them by Act of Parliament. He (Lord St. Leonards) would put a still harder case. A man contracted to sell his real estate, and died before the contract was executed. As that estate descended to his eldest son, one would think that he would not be badly off, because he would be entitled to the purchase-money. But not a bit of it. Every shilling of it went to the personal estate, and the heir-at-law did not receive a sixpence more than the other children. Nothing could be more illogical than to lay down general provisions upon single cases, and it was perfectly impossible to provide by legislation for all cases that might arise. It was impossible to frame the law with reference to particular instances; and if importan changes were to be made in the perfunctory and careless manner proposed by this Bill, there would be no end to the mischief that would ensue. If they were to attempt to remodel the law of England, and look to the hardships that were likely to arise on the one side and on the other, he thought it ought not to have been left in the hands of a private Member, but should at least be taken up by the responsible head of the law, and a comprehensive measure, carefully matured and well digested, should be introduced, that the country might clearly understand their intentions with regard to the law of property which had existed for centuries. Now, this Bill proposed that personal estate should not be the first fund from which to pay the debts of the deceased secured upon his real property, but that the real estate should be the first fund—that was, that the next of kin should be relieved at the expense of the heir at law. But if right it did not go far enough. If an estate were devised subject to an incumbrance created by the devisor, and an estate descended from the devisor to his heir at law, the descended estate would be the first fund to pay the debt on the estate of the devisee; so that if a man gave an estate, with a mortgage of 500 l. created by him upon it to one son, and left another estate to descend to the eldest son, the eldest son would be liable to pay the mortgage upon his younger brother's estate, and yet no provision is inserted to meet that case. He now came to the second clause of the Bill. Upon this clause he believed the other House divided at a very inconvenient hour of the morning—three o'clock he was informed
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—and it was carried but by a small majority, almost without discussion, and without consideration. This clause was a most important, and, he was justified in saying also, a most improper one. It provided that—
"From and after the passing of this Act, when any person shall die seised of or entitled to any land for an estate of inheritance, and shall have by his will directed the same to be sold for the payment of his debts or the purposes of his will, then, unless such person shall by his will have signified any contrary or other intention, the land so demised shall be deemed by a court of equity to be converted into personal estate, and the whole, or any portion thereof that may not be required for the purposes mentioned in the will, shall be divided under the Statute for the distribution of the estates of intestates."
The rule of law was, that if a man provided by will that his real estate should be sold and be converted out-and-out, as it was called, then the proceeds of the real estate become personalty; and why?— because it was so directed by the testator. And, on the other hand, if it were directed to sell the real estate to meet certain demands, and for certain purposes only, and those demands and purposes might be satisfied without selling the whole estate, the portion not required to be sold would belong to the heir at law. But this law would in every case convert the whole of the estate into personalty, and the surplus over what was necessary to satisfy the purposes of the will is to be divided under the Statute for the distribution of intestate estates. It did not enact that the whole estate should be sold and the money divided amongst the next of kin, but that any portion not required for the purposes mentioned in the will should be divided under the Statute for the distribution of the estates of intestates, so that they would thus be giving to the next of kin that which belonged to the heir at law, and, moreover dividing the real estate itself amongst the next of kin. He considered both clauses most objectionable. Moreover, he never before saw a Bill interfering with men's properties which did not save existing wills, or allow some time to enable persons to guard against the operation of the new law. Holding that the principle involved was a dangerous innovation of the law of real property, he moved as an Amendment that the House go into Committee upon the Bill on that day three months.
Amendment moved, to leave out "now," for the purpose of inserting "this day three months."
EARL FORTESCUEsaid, that he could assure their Lordships that were it not that he entertained the strongest conviction of the justice of this measure, and that it would afford a safe remedy for a great practical oppression, he would not have presumed to press upon the consideration of the House any opinion of his against the high authority of the noble and learned Lord. He thought, however, that the noble and learned Lord could not have felt so strongly as he said the justice of his own case, when he went back upon the history of the Bill, accusing its advocates of ulterior objects, and treated the Bill as an instalment of a larger measure for the abolition of the law of primogeniture. He hoped it was unnecessary for him to meet that part of the noble and learned Lord's argument; but, so far from the Bill being directed against the law of primogeniture, be (Earl Fortescue) believed that the adoption of it would tend to render that law more popular than it was at present, by depriving its operation of much hardship and injustice. The noble and learned Lord had suggested instances of hardship that might be experienced under this Bill; but he had, in moving the second reading, pointed to two out of many grievous hardships that had actually and recently occurred under the operation of the present law, a law which, be it recollected, was confined to England and Ireland, for Scotland was happily exempt from it. He had mentioned a case of a man who, having bought an estate for 1,400 l., left half that sum on a mortgage upon it, and dying suddenly and intestate, the whole of his personal property was taken by his eldest son, and absorbed in paying off the remaining 700 l., and his six younger children were in consequence left in beggary and destitution. He had mentioned another case in which a parent left the whole of his personal property to his only daughter, and his real estate, heavily mortgaged, to a distant relation. There was no doubt that his object was that the bequest to his daughter should be wholly unincumbered; but the devisee of the real estate came upon the personal property to pay the incumbrance on the land, and the result was, that the lady's estate was reduced many thousands below what her father had intended or anticipated. He would now mention a third case. A clergyman with good church preferment had ensured his life to a large amount, and from time to time bought land, leaving the chief part of the
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purchase-money on mortgage upon it. Being taken dangerously ill a few years ago, he made a will, leaving all his property to his wife, to be by her distributed between his two sons. He recovered his health, but lost his reason. His wife was now dying, and in the probable event of his surviving her, the eldest son would take the whole property, and the younger would be wholly unprovided for. He had heard nothing from the noble and learned Lord to alter his opinion of the hardship of the existing law, or to convince him that injury would be done by the proposed alteration. He should propose that the Act should come into operation from the 31st December, 1854, instead of from the passing of the Act.
THE LORD CHANCELLORsaid, that though this Bill had not been introduced under the sanction of the Government, he took upon himself the entire responsibility of saying that he believed the first clause of the Bill would be productive of unmixed good. Of the second he had not so favourable an opinion. The Bill itself would not in the slightest degree trench upon or approach the question of primo-geniture. It was simply a Bill which would in ninety-nine cases out of a hundred make the disposition of property conformable with the real intentions of the owner. He agreed with his noble and learned Friend (Lord St. Leonards) that it was impossible so to legislate that no cases of hardship should exist. What we ought to attempt was, to make our enactments of such a nature that in the majority of cases in which persons gave no directions as to the disposal of their property it should go according to their wishes. He put it to their Lordships whether they did not, any of them, suppose that if they left land which was mortgaged, and also personal property, their eldest son would take the land subject to the mortgage, while the personal property would be divided equally among all their children? Such, however, was not the law. The law said that the mortgaged estate must be relieved at the expense of the personal property, and thus the younger children of a family be made to pay a mortgage on the estate of their elder brother. He believed that in ninety-nine cases out of a hundred in which this took place, it was contrary to the intention of the person from whom the property had descended. The object of the first clause of this Bill was to remedy this evil, and to make the law conformable to what was the

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general understanding of ninety-nine out of every hundred persons owning property. He was aware that two or three alterations would be required in the clause, but he could not see how the most strenuous advocates of primogeniture could see any danger in a clause which had no reference whatever to that subject, except so far as under that law the intentions of persons as to the disposal of their property were often defeated. He regretted that this question of primogeniture should be drawn into matters with which it was not at all connected, and thus an odium should be cast upon the advocates of the Bill which they ought not to incur. He should propose, if no other noble Lord did, that the second clause should be omitted, for he did not see his way so clearly with this clause, or that it would tend to the disposition of property as parties intended. He thought that the course for his noble Friend to follow would be to consent to certain Amendments in the first clause, rendered necessary by the incautious manner in which the Bill had been framed; and, as the object of the Measure was to make the law conform with the intentions of people as to the disposition of their property, he trusted their Lordships would not object to go into Committee upon it.
On Question that "now" stand part of the Motion, their Lordships divided:—Content 26; Not Content 23: Majority 3.
Resolved in the affirmative. House in Committee accordingly.
Clause 1 agreed to with Amendments, fixing the date at which the Act should come into operation at the 31st December, 1854, and extending the provisions of the clause, not to personal property only, but also to real property other than that which was the subject of the mortgage.
THE LORD CHANCELLOR,in answer to a question from Lord St. Leonards, said, little good would be done by excepting in the present Bill wills already made; in fact, the Bill would operate less in the case of wills than in cases of intestacy. A period of six months was to be allowed before the Act came into force, to enable parties to consider whether alterations in their wills were necessary, but he would, before the bringing up of the report, consider whether a longer period than six months should be allowed for this.
EARL FORTESCUEsaid, that after what had been stated by his noble and learned Friend, he would not press the second clause.
Clause struck out.
Report of Amendments to be received on Friday next.

DRAINAGE OF LANDS BILL.
Order of the Day for the House to be put into Committee read.
Moved, That the House be now put into Committee on the said Bill.
LORD PORTMANhoped that their Lordships would not consent to proceed, at this period of the Session with this Bill, which contained sixty clauses, affecting all the real property in the kingdom. He could venture to say, from the attention he had given to the subject, that no such Bill as the present had ever passed through their Lordships' House; for it not only interfered with all the property specified in the Bill, but with a great quantity which no one would suspect was touched at all, unless, in reading the various clauses of the Bill they bore in mind the construction that the interpretation clause put on various words. He considered that the powers given to the Commissioners were too large, for under this Act they were empowered to sell any portion of anybody's land not exceeding three acres, to anybody whom they might think fit to authorise to buy it. This, he thought, was rather strong, and it was made still more so when they remembered that the word "land" meant mills. Now, as mills seldom stood on so much as three acres, the consequence of this would be, that the Commissioners would be empowered to sell every mill in the kingdom, and the Commissioners themselves were to fix the amount of compensation to be given in such cases. They were also empowered to appoint an engineer, who, as soon as he was appointed, became an assistant Commissioner, invested with all the powers given under the Drainage Act. He thought that, under the present measure, too much licence was given, and he objected to it also, because it did away with the checks which they had under the old Drainage Act. The Commissioners had large powers to deal with property under 50 l., but, in the cases of those who were able to do good battle on their own account, the Bill made exemptions in their favour, as in the case of the Crown; there was also an exception in favour of all canal navigations, because the parties concerned in such works were powerful bodies; and his noble Friend the Chancellor of the Duchy of Lancaster had thought it necesary that that duchy should be exempted.

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He (Lord Portman) thought that when their Lordships saw that the powerful had been protected, they would endeavour also equally to protect the small proprietors. Had this Bill been carefully watched by the law officers of the Crown, he believed it would never have passed the House of Commons; and, supported as the Bill had been by the Drainage Company—the vice chairman of which had the conduct of the Bill in the other House, though he (Lord Portman) believed that gentleman to be as pure as any Member of that House—still he could not help thinking that, under these circumstances, the Bill should be viewed with some suspicion. He trusted his noble Friend would consent not to proceed further with the present measure, but would next Session take up the subject and have a Committee carefully to consider whether they could not have a perfect drainage without committing the injustice with which the present Bill was fraught. The noble Lord, in conclusion, moved an Amendment, to leave out "now," for the purpose of inserting "this day three months."
EARL GRANVILLEsaid, that a few days ago, when considering the Resolution proposed by a noble Lord (Lord Redesdale) as to not taking the second reading of Bills after a certain day, they had had a debate upon the question of Bills coming up late to that House; but his noble Friend who had just sat down seemed to be pushing that Resolution to rather an extreme verge, when he endeavoured to induce their Lordships to refuse to consider a Bill, which he (Earl Granville) believed to be most unobjectionable in its character, and which had been most carefully discussed and considered in the other House, morely on account of the advanced period of the Session. His noble Friend, referring to the interpretation clause, said, that the Bill gave the Inclosure Commissioners the power of purchasing land and mills whenever they pleased. He could only say that the Commissioners had hitherto enjoyed precisely the same powers as were conferred by the present Bill, without any charge having been brought against them of having misappropriated those powers with regard to the purchase of mills. His noble Friend quite misapprehended the matter, because it was absurd to imagine that the Bill gave any arbitrary power to purchase mills. It was merely intended for the purpose of effecting an easement, where such might be necessary. His noble Friend also objected to
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what he termed the very objectionable power given to the Commissioners, of authorising any person they thought fit to purchase land wherever they pleased—as if these people were about to take possession of land for their own purpose! Why, the principle of the Bill was one which had been affirmed previously both by their Lordships and by the other House. It was, that there being at this moment a more urgent demand for drainage than at any former time, there should be the power vested in Commissioners for securing out-falls. The most useful works of this description were frequently stopped by the impossibility of obtaining outfalls, and he put it to their Lordships—who were always most anxious to preserve the rights of property—whether, when a great and useful object was to be attained, and proper conditions were placed upon the attainment of it, a proprietor was to be allowed, from a "dog-and-manger feeling," and no other, to interfere with these operations, which might be of the greatest benefit to others, and ultimately even to himself, and even although he was to be amply compensated for any damage that might accrue to him? His noble Friend had objected also to the exemption clauses. So far as the clause for securing the rights of the Duchy of Lancaster was concerned, he assured his noble Friend that it was not at his suggestion, or that of his predecessor, that it had been inserted; it had been done by those who had drawn up the Bill morely as a matter of form, there being exemptions of exactly a similar nature in previous Bills. He certainly could not think that on account of the exemptions, therefore any case had been made for throwing out the Bill. He was not inclined to think any worse of the measure because it had been promoted in the House of Commons by a Gentleman who was connected with the Drainage of Land Company. That Gentleman was no political friend of his, but he said, without hesitation, that there was no single person in either House of Parliament, of whatever politics, in whom he would more entirely confide in any matter that required perfectly straightforward, honourable conduct, than Mr. Ker Seymer, who had introduced this Bill into the other House. He should be happy to consider any suggestions for improving the Bill in Committee, but he thought his noble Friend had shown no reason why this very useful measure should be postponed to another Session.
LORD REDESDALEsaid, he had come to the conclusion that the powers granted under the Bill were extravagant beyond measure, as interfering with the property of other persons besides those who might promote the undertaking. He felt he had no other alternative than to regard the Drainage Company as the actual promoters of the Bill, and he believed that the hon. Gentleman (Mr. K. Seymer), in consequence of his position relative to that Company, had been induced to try for this extension of powers. He felt quite certain that a Bill of this nature ought, previous to its becoming law, to be fully reviewed by a Select Committee of their Lordships; and he, therefore, trusted that the noble Earl would accede to the suggestion of his noble Friend opposite (Lord Portman), and not press it this Session.
On Question, that "now" stand part of the Motion, their Lordships divided:—Content 13; Not Content 23: Majority 10.
Resolved in the negative; and House to be put into Committee on this day Three Months.
House adjourned till To-morrow.