Lords Sitting of 19 May 1854

MINUTES.
PUBLIC BILLS.—1a Navy Pay, &c.; Manning the Navy.
2a Railway and Canal Traffic Regulation. Reported. Boundary Survey (Ireland).

THE WAR WITH RUSSIA—LOSS OF THE "TIGER."
THE EARL OF MALMESBURY: I beg to ask the noble Duke opposite (the Duke of Newcastle) a question with reference to a report which has caused great anxiety to many people within the last day or two, and which has not been contradicted. The report is, that Her Majesty's ship the Tiger has been lost on the coast of the Black Sea, and that her crew have been made prisoners by the Russians. I wish to ask the noble Duke if he has any reason to believe the report true, and if he has received any information on the matter? I wish also to ask whether a statement which I have seen in the Moniteur is true, and which has reference to a certain number of Russian prisoners taken on board merchant ships in the Black Sea. According to the despatch of the French Admiral to his Government, it appears he took those men to Odessa, and made some offer to the commander of that place to exchange them for French and English subjects, but that no agreement was come to. I understand that no answer was given by the Russian commander, and that the English Admiral had thought fit to set those prisoners free. We cannot expect to be always successful, and we may expect to sustain losses such as those alluded to in those reports during the course of the war—we may lose ships by accident, and their crews may be made prisoners. It is evident, therefore, that if we do not retain a sufficient number of the prisoners taken from the enemy, we shall have none to exchange against those we
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may lose. I am sure your Lordships will not suppose that I am throwing any blame on the Government for any recommendations which they may have given to our officers to carry on the war in the most humane manner possible; at the same time, it is clear that the carrying on the war with such measures of humanity as that to which I have just alluded may be extending the maxims founded on civilisation and Christianity too far, and may even be the cause of the contest being eventually prolonged.
THE DUKE OF NEWCASTLE: I wish it were in my power to relieve your Lordships from any apprehensions you may entertain with respect to the supposed loss of the Tiger steam vessel. I am not, however, able so to relieve you. At the same time I am equally unable to confirm the report. So far as any opinion that I can form goes, I should rather hope that the report is not true. The only information which has been received, either by the Government or by anybody else, so far as we can ascertain, was by a telegraphic message which was received yesterday by a mercantile house in the City, and the contents of which subsequently appeared in the newspapers. One amongst other reasons for hoping that the report is incorrect is, that the steamer which was lost is represented as being a screw-steamer, while the Tiger is a paddle-wheel vessel. This obvious inaccuracy might lead one to hope that this report is as untrue as that which was received some little time since with respect to the loss of the Amphion, which was quite as circumstantial in its details as the present story. Taking both these facts together, I have great hopes that this report of the loss of the Tiger may prove to be but a Russian fabrication. As regards the second question, with reference to the prisoners taken by the Black Sea fleet, I have not seen the statement in the Moniteur; but, certainly, if the noble Earl has quoted it correctly, that newspaper has not on this occasion given so accurate a report of the transaction in question as it is in the habit of doing with regard to all matters connected with the carrying on this war. The real circumstances are these—our cruisers had taken some forty or fifty prisoners, mostly men from Russian coasting vessels, and having nothing whatever to do with the men-of-war. Admiral Dundas having reason to suppose that some English sailors of the same class were de-

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tabled prisoners at Odessa, wrote to Baron Osten-Sacken to propose an exchange of prisoners. The Baron, so far from making no reply, wrote a very courteous reply on the same day, stating that he had no instructions with respect to an exchange of prisoners, and therefore he was not able to carry out the proposal of Admiral Dundas, but that he would write forthwith for instructions to Prince Paskiewitsch, who would be empowered to give them. No answer has yet been received from the Prince, and I have no reason to suppose that Admiral Dundas has released his prisoners without exchange. But be that as it may, definite instructions have now been sent to Admiral Dundas with respect to any prisoners that may henceforward be taken by our vessels of war.
THE EARL OF ELLENBOROUGH: My Lords, we are at the commencement of what, I fear, will be a very long war; and however nervously anxious we may be at home with respect to the events which are from day to day recorded in the newspapers, I do not think it expedient that we should carry our nervousness into this House; and it is a subject of regret to me that the noble Earl thought it necessary to put the question that he has done to the noble Duke opposite with respect to the reported loss of a single ship. We must expect that accidents will occur in the course of the war. War has its chances, and both sides must abide them. With regard to what is stated with respect to the loss of this ship, even if what is reported is true—and certainly nothing that we have heard with respect to Russian public documents is of a character to impress us with the conviction that all their contents are true—I am satisfied that we do not know the whole truth. If it be the fact that two steamers came up after the alleged loss of the Tiger and fired, it is my impression that they retook the steamer which was aground, and were endeavouring to bring her off.
THE EARL OF MALMESBURY: This is the second time the noble Earl has favoured me with a lesson on my duty as a Member of your Lordships' House. On this point I must throw myself on the good feeling, the good taste, and the indulgence which your Lordships have always shown towards all whose motives in trespassing on your time were as well known as are those which actuate me on the present occasion. If the lesson with which the noble Lord has favoured me, had come
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from one of the many Members of your Lordships' House who, though competent to give you the most valuable advice, are nevertheless restrained by their habits or by their modesty from addressing your Lordships, I should not have made any observations whatever upon his remarks, because he would have added example to advice. But when I consider that the noble Earl has made not only this war, but all wars, the peculiar subject of his eloquent addresses; when he takes upon himself in this House not only the duties of an illustrious general but of a great admiral; when he never loses an opportunity, on any question, of advising the noble Duke opposite, who is peculiarly responsible for the management of the war, upon what he should do, or of criticising what he has done; when, beyond that, the noble Earl does not confine himself to events which have passed, and about which the Government have no objection to give explanations; but when his advice and his questions have more than once—nay, very often—tended to extract from the caution—the necessary caution—of the Government, replies which would be dangerous to the public service—I think he is quite the last man who should venture, notwithstanding his high reputation for ability, and his great experience in war, to give a lesson to another Peer, who merely asked the noble Duke opposite—for the sake of the relations of those persons who may be on board the ship, and for the sake of the public generally, who are very anxious on the subject—whether the reported loss of the Tiger was a fact. When the whole of this country is agitated by the report in question, and when it was perfectly possible—as I wish it had been the case—that the noble Duke and the Government might have received intelligence which would have at once assuaged alarm, I think I cannot fairly be accused of any indiscretion or bad taste for asking the noble Duke as to the simple fact of whether Her Majesty had had the misfortune to lose a ship, and whether many families might perchance have to deplore the loss of some of their Members.
THE EARL OF ELLENBOROUGH: If I gave the noble Earl a lesson it was a very short one, while the lesson he has given me is by far the longest I ever had in my life. But notwithstanding the extraordinary length of that lesson, I shall continue to do what I have always done in this House, especially from the commence-

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ment of this Session—I shall endeavour to do everything which in my opinion will tend to strengthen our position for carrying on this war.

CHURCH BUILDING ACTS AMENDMENT BILL.
THE EARL OF HARROWBYmoved that the Report of the Committee upon this Bill be received and adopted.
EARL FITZWILLIAMsaid, that by this Bill the power of amalgamating parishes was vested in the Diocesan and the Church Building Commissioners; but he thought that the inhabitants of the parishes to be dealt with should have a voice in the matter; and he wished to know whether his noble Friend had any objection to insert a provision to that effect?
THE EARL OF HARROWBYsaid, that the parishioners would have every opportunity of being heard before any order for the amalgamation of the parishes was made; but he thought the provision suggested by the noble Earl would render the Bill entirely nugatory. When they considered the sort of agitation against any amalgamation that would be got up by the vestry clerk, the churchwardens, the sextons, and others similarly situated, it was quite clear that if the consent of the parishioners was rendered necessary, no union of parishes would ever take place. Besides, under the present law, parishes could be united without any such consent being given on the part of the parishioners.
THE BISHOP OF LONDONsaid, he quite agreed with the opinion of the noble Earl that the introduction of such a provision as that suggested would be fatal to the efficiency of the Bill. In no case would a church be pulled down in pursuance of the powers given by this Bill, without the parishioners being heard upon the question; but if their assent was indispensably requisite to any union of parishes, any one conversant with the construction of vestries in London would be well aware that it always would be quite easy, on any proposed amalgamation, to get up such an agitation as would prevent that assent being given.
THE BISHOP OF OXFORDsaid, that the noble Earl had remarked that under the existing law the consent of the parishioners was not requisite in order to the union of parishes. But it should be recollected that the existing law did not contemplate the pulling down of the parish church. And as power to do that was given by the present Bill, he did not think it was asking
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too much for the laity of the parish, that no such step should be taken without the consent of a majority of the vestry. If the carrying out the objects of the Bill were liable to be obstructed by a factious minority, he would not recommend the introduction of such a provision; but he certainly thought a church ought not to be pulled down without the consent of a majority of the ratepayers.
THE BISHOP OF LONDONsaid, that, under the existing law, when two parishes were united, one of the parish churches might be pulled down, in pursuance of a faculty issued by the Ecclesiastical Court. The parishioners were heard before this was granted, but their consent was not requisite.
EARL FITZWILLIAMsaid, that the question was whether the propriety of taking down the old parish church should be determined solely by two ecclesiastical authorities, or whether the lay element should have a voice in deciding it. He believed that all parties were pretty well agreed with respect to the expediency of this measure as far as regarded the City of London; but it was proposed to make it a general measure, and to enforce it in towns which had never anticipated such a step. He certainly thought their inhabitants should have some voice in deciding whether their parishes should be united and their old churches pulled down.
THE EARL OF HARROWBYexplained that the power had been vested in the Diocesan and Ecclesiastical Commissioners for the purpose of saving expense, but that the parishioners would have the same opportunity of expressing their opinions as they had under the existing law; but he did not think it advisable to confer a veto upon them.
Amendments reported; further Amendments made; Bill re-committed to a Committee of the whole House on Tuesday next.

RAILWAY AND CANAL TRAFFIC REGULATION BILL.
Order of the Day for the Second Reading read.
LORD STANLEY OF ALDERLEY moved, that the Bill be now read 2a. His Lordship stated that the object of the Bill was twofold; it first defined the duties and obligations of railway and canal companies, and proceeded to establish a code by which these duties and obligations would be enforced. It had been found a matter of some difficulty to determine

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the best way of proceeding. It was considered that there were two modes by which the rules might be carried into effect. The one was by the establishment of a separate and independent Board of the Executive Government, and the other by leaving it to courts of law, to whom all complaints should be made to enforce obedience to the laws that were prescribed. There were no doubt a great many authorities in favour of establishing an independent Board, but it was perceived that there were difficulties in the way of doing so. There was no doubt much weight in the argument that had been urged that there would be an objection to commit the necessary powers to a portion of the Executive Government, who would be liable to the imputation of being influenced by political feelings, and though they should not be liable to such imputation such charges would be made and destroy their utility. The other course, therefore, was adopted, and it was proposed that any party having to complain of any infraction of the Statutes and obligations might apply for relief to any of the superior courts of law, who could proceed by way of injunction to have obstacles removed or cause facilities to be given that were required to be given. They conceived, likewise, that the decision of a superior court of law was more likely to be carried into effect than the decision of any Board. Throughout the whole of the communications between the representatives of the railway interest and the Board of Trade, he had every reason to give great credit to those gentlemen for their anxious wish to co-operate with Her Majesty's Government in making this a really efficient and working Bill for carrying into effect the objects which Parliament had in view. Very great importance must be attached to their co-operation in order to do that which otherwise would be extremely difficult, and the objections they had advanced appeared in many instances far from unreasonable. He believed that the Bill now proposed would secure most of the objects which Parliament wished to see carried out; it would give greater facilities to those who necessarily made use of railways; and at the same time it was well calculated to improve the property of the shareholders themselves, preventing the disposition which at present existed, on the part of railway directors and others, to make what was called "fighting lines," and to enter into useless competition with other railways, not so much for the pur-
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pose of advantage, as to deprive rival companies of a country which they thought they ought to possess. He trusted, therefore, that their Lordships would not object to give a second reading to this Bill, which he hoped would be productive of all the good effects expected from it.
LORD CAMPBELLlooked upon the object of the Bill as an excellent one, but he thought the machinery was not well adapted for carrying that object into effect, and that it would not work beneficially. In its enactments the Bill fell far short of what might have been expected; but, besides this, it seemed wholly ineffective, and, he must say, not very well conceived. The Act sought to turn the Judges of the courts of common law into railway directors. Now, those Judges were most willing to perform the duties devolving upon them in administering the law of the land, and any fresh duties of a judicial nature which their Lordships might think ought to be imposed upon them; but the duties now sought to be cast upon them had nothing at all to do with law. The Judges were, as he said, only made railway directors by this Bill. No rule was laid down which they were to enforce. The whole of this enacting law, as far as railways were concerned, was to be found in the second section; and what did that say? It said this, and no more—that railway companies ought to act honestly; and common-law Judges were to be called on to say whether railway companies had acted honestly or not. They had no statutable or common law authority to which they were referred; no decisions of their predecessors to guide them; but, to be able satisfactorily to discharge their new functions, they must go as apprentices to civil engineers and travel upon the railways, in order to acquire some knowledge of engineering, and of the manner in which these railways were conducted. This second section, he repeated, was in substance merely, that railway companies should do their duty. If they did not do their duty, there might be a complaint to the courts of common law, who were to judge whether those companies had or had not done their duty. The language of the second section was, that "every railway company, canal company, and railway and canal company, shall afford all reasonable facilities for the receiving and forwarding, and delivering of traffic, upon and from the several railways and canals belonging to or worked by such companies respectively." Well, but did not this duty of affording all

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reasonable facilities devolve upon railway companies before? Then the clause enacted that traffic was to be forwarded "without any unreasonable delay," and so that "no obstruction may be offered to the public." Well, but there ought not to be any obstruction now. This was not laying down any new rules binding the company. "No such company" (the clause continued) "shall make or give any unreasonable preference or advantage to or in favour of any particular person or company." This, too, they ought not to do at present, and railway directors were acting very improperly if they did so.—" Nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable disadvantage in any respect whatsoever;" and they were to afford "all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such railways or canals," and were to show no undue favour to one or undue prejudice to another. This was what was proposed to be enacted by their Lordships. But all that was just saying, as he had before observed, that railways ought to conduct their business according to the rules of morality and honesty. Well, but how was the Bill to be carried into effect? Why, there might be a complaint to a court of law, that the companies had not done what they should do, that is, that the trains had started too late, that there was not a sufficient number of carriages, that the staff employed was inadequate, that the time was not punctually kept, that one person was favoured to the prejudice of another, or that the luggage trains were not properly conducted. These complaints were to be made. The Judges, then, had first to try upon affidavit whether the trains were sufficiently equipped, whether time had been properly kept, and the fares were just and reasonable, without favour to one or prejudice to another. Hitherto the maxim had been, that the Judges were to answer questions of law, and the jury questions of fact; but here they were called upon to answer questions of fact, upon which they must be wholly incompetent to form an opinion. It might be said that engineers might report to them; but the report of an engineer did not decide the case. The Judges must hear the matter over again after this report was made. They must hear all that could be said against it and in its favour, and after many days' discussion they were to say how many trains should start, what should
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be the number of carriages, what should be the fares, and all those particulars which would remove the complaints that had been made, taking care that no prejudice was done to one, and no favour shown to another. If the Bill could be at all modified, so as to meet these objections, he should heartily rejoice; but he did trust that their Lordships would not give their assent to the second reading of the Bill unless those objections were entirely removed, which could hardly be done without remodelling the measure. There was, indeed, one section which to a certain degree relieved his anxiety, because it appeared that the Judges might get rid of all this responsibility by passing it over to another tribunal. By the fourth section, any nine of the Judges—of whom the Lord Chancellor, the Master of the Rolls, the Lord Chief Justice of the Queen's Bench and Common Pleas, and the Lord Chief Baron of the Exchequer, were to be five—were to have power from time to time to make general rules and orders "touching the practice and otherwise in carrying this Act into execution before such courts and Judges, as they may think fit;" so that they might transfer these cases from the courts of common law in Westminster Hall, and send them to the petty or quarter sessions or a pie-poudre court. With regard to anything of a judicial character, he hoped the Judges of the courts of common law would never shirk their duties; but, looking at the duties entailed upon them by this Bill, he certainly thought they lay beyond the province of the Judges.
THE LORD CHANCELLORsaid, it must be admitted that the object of the Bill was a very desirable one, and that a remedy was required for the evil to which it had reference. The public complained exceedingly that at the railway stations in different parts of England there not only were not the facilities which ought to be afforded to railway passengers, but that there was obviously intended there should be a want of proper facilities in order to serve the purpose of particular railways. Facilities were given for forwarding the commodities of particular companies to the prejudice of others. Thus, on the Great Northern—and he supposed it must be mentioned without blame to the officials of that line, who, of course, did so for the benefit of their shareholders—some persons had the means of forwarding their coals to London, while others had none. This was one of the grievances of which

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great complaint had been made to the Government. Was it not necessarily the duty of the Government to try and remedy that evil? When first appealed to on the subject, he said the abuse could only be reached by instituting a sort of autocratic Board; but, on consideration, he thought this would not do, because it interfered with the pecuniary interest of parties, and it would be always thought unsatisfactory that the Board of Trade, or any railway Board, should be substantially able to put their hands into the pockets of railway companies. It seemed impossible, therefore, to regulate all these matters merely by an administrative Act on the part of the Government, and the companies felt this. Reasonably enough they said, "We don't object to be under regulations, provided it be first legally established that we have failed to do something we ought to have done." This objection you were forced to meet by enacting as well as you could what it was that railway companies were bound to do, and then providing a machinery to see that that was done. The present Bill, which was framed for that purpose, consisted substantially of only two clauses. It enacted that companies should afford all reasonable facilities for receiving, forwarding, and delivering traffic upon the several railways and canals worked by such companies, no undue preferences being given to anybody, but perfect fairness being observed to all. It was said that this was enacting nothing, that it was merely laying down that railway directors should be honest people. This, however, he denied. The Bill enacted that companies must give reasonable facilities for traffic. He might, perhaps, be asked what constituted "giving reasonable facilities?" ["Hear!"] It was very natural for noble Lords to cry "hear" to this, but pray what was the "reasonable facility" which an innkeeper must give? An innkeeper was bound to receive guests who presented themselves, and he might be indicted, or an action be brought against him, if he failed to give reasonable facilities in this way. The difficulty of saying what was reasonable, and what was unreasonable, had not stopped the wisdom of our ancestors in saying that this was a law which ought to be enforced. Then, again, a common carrier was bound to give reasonable facilities in taking all goods which were presented to him. He admitted it was unsatisfactory to be able to say nothing
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more definite than this in the present Bill; but he did not see it was more difficult to say that a railway company had not given "reasonable facilities," than it was to say that a carrier or innkeeper had failed in complying with the requirements of the law affecting them. This, then, was the substantial meaning of the Bill. Now, how could it be carried into effect? When he was first consulted on this subject, he said, "It seems to me that, having defined, as well as you can, what is the duty of the companies, you should then leave it to those who complain to bring an action against them, and to say, 'You have not given us reasonable facilities;' and when it is established on the trial that such reasonable facilities have not been given, then the Board of Trade should have power to make such regulations as are necessary." The railway companies did not object to this, but said, "You are occasioning to us and to the public an unnecessary expense, and a complication of machinery which we wish to get rid of. We will be perfectly satisfied to take it without trial at all. If a Judge is satisfied upon affidavits that there is cause for inquiry, upon the report of that Judge let there be an order of the court for putting an end to the inconvenience complained of." What was there in principle to make this course either inexpedient, difficult, or objectionable? It seemed to him to be a very simple proceeding. You established, by judicial or quasi-judicial proceedings, that that had not been done upon a certain railway which ought to have been done in a particular instance; and this being established, you gave power to the court by an injunction to make the company do that which it ought to have done. Perhaps in theory this might not seem so efficacious as the plan he had first alluded to, of proceeding, after an action brought, by any private person who thought himself aggrieved. If this opinion were general, nothing could be easier than for their Lordships so to alter the Bill in Committee; but he believed that by doing so they would only be encumbering the measure without adding to its efficiency. As to what had been said by time noble and learned Lord with regard to the power of the Judges to transfer the trial of these cases to the sessions, it must be quite evident that if the clause implied this at all, it must only be from a little defect in grammar. The clause ran thus —

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"It shall be lawful for the said courts, or the Judges thereof,….from time to time, to make all such general rules and orders as to the forms of proceedings and process, and all other matters and things touching the practice and otherwise in carrying this Act into execution before such courts and Judges as they may think fit."
Now, it could hardly be supposed that the clause meant to authorise the Judges to transfer these cases to the sessions; it clearly intended to confine the trial of those cases to the superior courts of law at Westminster. If, however, there was any defect in the clause, it might easily be altered in Committee. He trusted, therefore, that their Lordships would give their assent to the second reading of this Bill.
THE EARL OF DERBYsaid, that as the object of this Bill professed to be to define and specify the duties and obligations of railway companies, he wished to direct the attention of the Government to a point which was not at all touched in this measure, but which was, nevertheless, of some importance—he meant the claim set up by a portion of the railway companies, and be believed admitted by the courts of law, to exempt themselves from responsibility for accidents, or for damage to passengers and goods conveyed on their lines, notwithstanding proved negligence on the part of their officers, by simply placing on the back of their tickets a statement that the company would not hold itself liable for any damage that might occur on the journey. There was a case tried not long ago where a number of cattle, having been placed in railway trucks to be brought to Smithfield market, were allowed to get out of the train, and loss ensued to their owner by the proved negligence of the servants of the company, and the defective construction of the vehicles in which they were conveyed. An action was brought against the company, and it was proved that the person who put the cattle on the train received and accepted a ticket stating on the back of it that the company would not hold itself liable to make good any loss that might take place on the line; and, therefore, although the accident was proved to have arisen from inefficient management and defective arrangements on the part of the company, there was no remedy for the party who suffered, and the company escaped entirely scot free. He thought the noble and learned Lord opposite said the remedy for the party would have been, in the first instance, to
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refuse to accept the ticket tendered to him, and then, if the company should refuse to carry either him or his goods, he might bring an action against them, treating them as common carriers who had refused to fulfil their duties as such. But, in the first place, this would be no practical remedy, because there was all the expense and all the trouble to a private individual of proceeding against a great company, and with no great certainty of success in the action after all, because the question of law as to the liability of common carriers was itself not very clear, and therefore they would throw upon an individual the onus of attempting to settle a doubtful point of law. But supposing he were to succeed in recovering a certain amount of damages, that would be no satisfaction to him if his cattle had been prevented from arriving at a particular point by a particular time. In the case to which he had referred, the cattle were going to Smithfield market, where they ought to arrive on Monday morning; and it might be all very well to ask the party to remain at Northampton with his cattle until he could bring an action against the company to try whether they were liable to carry his six beasts to Smithfield market; but what would be the practical value of such a remedy as that? The railway companies were now the great monopolists of the carrying trade of the country, because they were the single and sole conveyance by which passengers and goods could be carried to and from distant parts of the country; and, therefore, to say that a person might refuse to sign a ticket, without which ticket the company declined to take him and his goods along their line, and then could subsequently bring an action against them for their refusal, was really saying that you deprived him of all practical remedy whatever. Now he could not understand on what principle it was that the railways, having received this entire control over the whole traffic of the country, should be permitted to exempt themselves from that liability and responsibility which ought to attach to them as common carriers, and as having, moreover, a monopoly of the common carriage of the country, by simply putting on the back of their tickets, which if the passenger refused to accept he lost all chance of getting to his destination, the declaration that they did not hold themselves liable for anything that might happen on their lines to passengers or goods. Nothing de-

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manded more attention from the Legislature, or more required definition, than the state of the law as to whether the railway companies had or had not the power of divesting themselves of all responsibility for any danger arising from their own negligence, and of thus leaving to the public, who were entirely dependent on them for their conveyance, no other choice but that of losing their transit, and subsequently instituting proceedings against the companies; and he thought it desirable to bring this point under their Lordships' notice, seeing that the present Bill purported to define the duties, responsibilities, and obligations of railways.
LORD LYNDHURSTsaid, that by the common law of this country a common carrier was bound to accept goods when offered to him for the purpose of being carried to their destination; and if he were guilty of negligence, and the owner of the goods suffered in consequence, he was bound to make reparation. The common carriers endeavoured to limit their liability by notices similar to those to which his noble Friend had referred, and it was decided, when the case came before the courts of justice that they had a right to do so. The consequence of this was, that an Act of Parliament was passed to prevent that species of defence from being set up. Therefore, as far as common carriers were concerned—he meant the general class of common carriers—that species of defence could no longer be pleaded. But he understood that a case had come before a county court of this description, the very case to which his noble Friend had alluded; and the Judge of the county court was of opinion, that the railway company had no right to insist on the protection of such a notice as that which he had stated; and he was informed, that in consequence of that decision the case came before the Court of Common Pleas, and the Act of Parliament which he had mentioned was there referred to, and the Court of Common Pleas was of opinion that that Act did not apply to railway companies. The consequence of this was, that railway companies, although they were common carriers, stood upon a different footing from that on which the common law and the Act of Parliament placed common carriers. Now, it was clear, that if it was proper to put such a restriction on ordinary carriage where great competition existed, there was a much stronger reason for the application of such a restriction when they
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came to railways, where the public had no choice and the companies had a monopoly. Under these circumstances he thought a clause should be introduced into this Bill, placing railway companies and common carriers on the same footing in this respect.
EARL GREYconcurred in the view taken by the noble and learned Lord who had just spoken. He knew a case where a railway company delivered a ticket, stating that the company received goods for conveyance on the following conditions—namely, that the owners would undertake all risk from the loading or unloading of the carriages, or whether arising from the negligence or default of the company's servants, from defects in the stations, or "from any other cause whatsoever." So that actually the servants of the company might wilfully cut the throats of valuable animals in the trucks, and the company, under the security of this ticket, might turn round and repudiate all responsibility for what had happened. He understood that in the Common Carriers Act, which had been referred to, there was a particular clause which exempted special contracts from the operation of the Act, and that therefore by this clause railway companies could relieve themselves from their just responsibility. He believed that, as the law had been interpreted in the courts of justice, there was no redress afforded to farmers and cattle jobbers. They must send their property to market by railway, and if they were injured by the negligence of the company they could obtain no reparation. It was therefore absolutely necessary that some restraint should be put upon the power of these companies. If he was not misinformed, one of them had attempted to carry this power of self-exemption much further, and had declared in its tickets that even if death was caused on the line, the relatives of a passenger should be entitled to no compensation. The courts of law, had, however, decided that this was a little too strong. [Lord CAMPBELL: Such a ticket would be mere waste paper.] There, ought, therefore, to be a clause inserted in this Bill to settle this matter. At the same time, he thought the liabilities of the railway companies ought to be limited; so that if a valuable racehorse, worth 500 guineas, for instance, was put upon the line without a special notice, the company should not be bound to make good the whole value in case of accident. He believed this Bill, as origi-

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nally drawn, had a clause suitable for the necessities of the case, but it had been expunged through the powerful influence of the railway interest in another place, to cope with which nothing but extraordinary firmness on the part of those who had charge of such a measure would suffice. He felt that by this Bill the Government were calling upon the courts of law to enforce obligations certainly substantial in their nature, but yet of so vague and undefined a character that it would be extremely difficult for such tribunals, whose proper functions were to expound the common and statute law, to discharge such new duties satisfactorily. Again, it would be very hard towards a private individual, say a cattle jobber dealing in the Newcastle market, to compel him to come into a court of law to oppose perhaps a wealthy and powerful company like the Newcastle, York, and Berwick Railway. He understood that in France, when undue favour was shown by a railway company to the prejudice of other parties, the injured persons laid the case before the Minister of the Interior, who considered it, and if the circumstances warranted it, prosecuted the company in a court of law on behalf of the Government itself.
THE LORD CHANCELLORsaid, that was very much the mode proposed by this Bill, because it would enable the party aggrieved to go before the Board of Trade, when, if the case justified it, the Board of Trade would instruct the Attorney General to prosecute.
EARL GREYsaid, if that were so, his objection so far was removed. When he looked at this Bill and saw how far it fell short of what was required, he more and more regretted that the Government did not, as he had suggested in the early part of the Session, consider what facilities the railways ought to give to the public, and particularly to the Post office, which had not received from the companies the facilities which that department had a right to expect; and then have framed clauses to be enforced upon the railway companies. They ought to have made it a standing Order of that House that no additional powers should be given to any existing company, unless it inserted in its Bill clauses ensuring to the public corresponding conditions for its benefit. They were told that in the other House the railway interest was formidable; but that difficulty might be overcome in the manner he had pointed out. There was
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no company in the kingdom that did not from time to time come before Parliament to ask for additional powers, and nothing could be more reasonable than that they should, as guardians of the public interest, say to the companies, "We are willing to grant you the powers for which you apply, but only on the condition that you on your part accept those clauses which we consider to be essential for the protection of the public." It was not too late for their Lordships to take that course now, because there were many railway Bills that had not yet passed; and if they acted on that principle, he believed that, whether they passed such a Bill as the present or not, in three or four years' time there would not be a railway in the kingdom which would not be subject to the liabilities and obligations which their Lordships wished to impose upon it.
LORD STANLEY OF ALDERLEYsaid, he thought, with reference to the last suggestion of the noble Earl, that it would hardly be desirable to pass such a standing Order as would give the go-by to all the railway legislation of the other House during the present Session. With regard to the Post-office, and the facilities to which it was entitled from the railways, that subject had been under the consideration of the Government, and clauses with respect to it had been prepared; but a Committee had reported that it would not be expedient to introduce those clauses. A separate Bill would therefore be introduced on the subject as soon as the Committee who were considering it had made a further report. He conceived that there would be no objection to putting the railway companies and the common carriers on the same footing, and he would take time to consider the preparation of a clause to be inserted in this Bill for that object. He had not been aware of the decision of the Court of Common Pleas that had been referred to, and had supposed that the law was the same already with regard to railways and common carriers. This Bill laid down the great principle that there were certain duties and obligations attaching to railways which ought to be performed, and the machinery it proposed had the concurrence of the companies. Let that machinery therefore be tested, and should it be found insufficient to attain its object, it would then be competent for Parliament to substitute a better machinery in its place.
THE MARQUESS OF CLANRICARDEsaid, if it was desired really to grapple

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with the question, they must begin at the beginning, and reconsider their whole mode of procedure with regard to railway legislation. The whole of the mischief, the enormous losses, the ruin to which thousands of individuals had been exposed, the immense inconvenience to which the public had been subjected in connection with railways, arose entirely from the imperfect system under which railway legislation had been conducted in both Houses of Parliament. He was glad to see in the House his noble and learned Friend (Lord Brougham), who had taken so active a part in promoting many useful reforms, and who had already made attempts, which lie trusted the noble and learned Lord would not abandon, to induce their Lordships to legislate on this important subject. It was to him (the Marquess of Clanricarde) a matter of wonder that the people of this country had so long borne the neglect with which a question of such vast importance had been treated by the Legislature. It was, he thought, a great misfortune that, in 1837, cold water should have been thrown upon the modest attempts at the regulation of railways made by Mr. Labouchere. About that period most eloquent and powerful speeches were made on the subject by his noble and learned Friend (Lord Brougham); but Sir Robert Peel unfortunately threw overboard the recommendations of Lord Dalhousie, which were undoubtedly the result of great labour and diligence and were of the highest value. Since that time no effort had been made by any Government to improve our mode of legislation on the subject, and the noble and learned Lord opposite had been almost alone in his efforts to attract attention to the matter in their Lordships' House. It was not yet, however, too late to deal with the question. As had been observed, constant applications were made to Parliament by the great railway companies, and he thought it was most desirable that a proper tribunal should be appointed, which might decide upon the policy and safety of the propositions involved in the Bills that were submitted to Parliament. Their Lordships would then be enabled to deal with the subject in a rational manner, and, by degrees, they would get those great bodies, that now enjoyed a monopoly which was injurious to the country, more or less under their control. The noble Earl below him had thrown out very practical and excellent suggestions; but he (the Marquess of Clanricarde) thought those suggestions
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could not be carried out unless a better tribunal were established for the consideration of Bills of this description. At present, railway Bills were referred to a tribunal of five Peers, chosen, he could not say by chance, but certainly not from the most efficient Members of the House; and the same observation would apply, with still greater force, to the Committees of the other House of Parliament. One consequence of the existing system was, that most contradictory decisions were adopted upon the important questions relating to railways which were referred to Committees of both Houses. It was most important that they should have a better code and a better tribunal for dealing with this subject; and until some such plan as had formerly been proposed by his noble and learned Friend (Lord Brougham), and which he trusted the noble and learned Lord would again propose, was adopted, it was impossible that railway legislation could be placed upon a footing that would be satisfactory to the public, that would avoid an enormous waste of money, and that would really fully and safely develope the resources of the country.
LORD BROUGHAMentirely agreed with his noble Friend (the Marquess of Clanricarde) that they had mistaken their way from the beginning in their railway legislation, and he was also of opinion that the true remedy to apply to the mischief was an alteration in that course of legislative procedure. But with respect to this particular measure, he also thought that it did not go far enough by a great deal, and that, to a certain degree, it did not go in the right direction. He felt very much the difficulty to which his noble and learned Friend the Lord Chief Justice had called their attention—the difficulty in which the courts of law and the judges would be placed by the Bill, because there was to be an application to any Judge upon affidavit calling upon him to enter into the question whether a given railway that might be complained of had done its duty in providing reasonable facilities either for the goods or for the persons of the parties complaining. He said there would be great difficulty indeed in following this up, so as to carry it into effect; but he did not despair that it might possibly lead to some check in the abuses now so generally, and he was afraid he must add so justly, complained of. There was, however, another alteration which he thought was of tenfold importance—namely, to prevent the possi-

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bility of railway companies limiting their liability by putting persons to the election either of not travelling at all or having their goods carried by railway, or of taking tickets which would exempt the companies from the liability which the law cast upon them, or ought to cast upon them. The railway companies sought neither more nor less than to evade responsibility by this special contract—a contract forced upon a passenger—a contract into which he entered upon compulsion—a contract which might almost be said to be bad on account of the duress under which the passenger was compelled to enter into it; and, if persons did not enter into this contract for the purpose of exempting the companies from the liability which the law of the land cast upon them, they were to be prevented from travelling at all or from having their goods carried by railway. In his humble opinion, this Bill should be so improved as to prevent the possibility of such a system continuing. He was afraid that it would not be sufficient merely to impose upon railway companies the responsibility that attached by law to common carriers, because common carriers were only bound to convey goods. He knew of no obligation upon common carriers to carry persons. But were persons who wished to travel by railway to be told that unless they agreed to take tickets, limiting the liability of the companies in case of accident, they should not be conveyed at all? Railway companies might so refuse to take passengers as the law now stood, and it would not be sufficient, therefore, to put them simply on the same footing with common carriers. He was very far from wishing to press hardly upon the railway companies; on the contrary, he should be the last person who would desire to interfere unjustly with that most important branch of the commerce of the country; its importance, indeed, could scarcely be overrated. But it must be recollected that the railway companies enjoyed a monopoly. From the immense capital required to enter into competition, any company to which the Legislature had given power to establish railway communication between one point and another might be said substantially to enjoy a monopoly. Nevertheless, taking all the railway interest together, he was very far from desiring to see the Legislature, in any alterations they might make, press too hardly upon those interests. 248,000,000 l. of capital were vested in railways, and the revenue
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from these undertakings was said to be 15,000,000 l. a year. He must remind their Lordships, also, that all the suffering and hardship from wrong or negligence in the owners of railways was not on the side of the public. Parliament and the country complained in some respects of the companies; but, in his humble opinion, the railway interest had no little cause on its part to complain of the Legislature. To how many private Bills did Parliament assent in the course of a Session in which rail way companies were interested, and with regard to which it might be said they stood in the position, not of plaintiffs, but of defendants, for the protection of their own interests, and so were obliged to apply for Acts? He would take the case of the South-Eastern Railway. He had seen a statement of the number of Bills which in the course of the last ten years that company had been compelled to prosecute, and of the far greater number of Bills brought forward by other parties, to the discussion of which that company was compelled to be a party. In one Session, as he was informed, the South-Eastern Railway Company had been compelled to become parties to twenty-seven Bills, only one of which was promoted by themselves, but the company's interests were so far involved in the other twenty-six that, whether they would or not, they were compelled to appear before the Committees of the two Houses. That company, it was stated, had, during a period of ten years, paid very nearly half a million of money for Parliamentary expenses; so that the company had been paying at the rate of 50,000 l. a year in consequence of the course of Parliamentary proceedings with respect to private Bills. He was told, also, that the expenditure of the Great Western Company, under the same circumstances, had been even more considerable. It was unquestionable that means must be found, notwithstanding the great power of the railway interest elsewhere, for coming to an understanding with those important bodies, not by way of threat—for it would be below the dignity of the Government, and still more below the dignity of Parliament, to adopt such a course—but by holding out to them inducements—by saying to them, "If you do so and so, you shall have such and such relief or benefit." In consideration of such relief—which the companies might regard as most precious—they should be required to submit to certain alterations for the benefit of the public; and in adopting a course

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of this description the Legislature would further have the satisfaction of knowing that they would also mightily improve the course and system of transacting Parliamentary business in general. He hoped that this subject would, with the least possible delay, be specially considered by both Houses of Parliament. He had repeatedly called the attention of their Lordships to it; and had laid before them some years ago a body of Resolutions for effecting the improvement in Private Bill legislation. He had the happiness of knowing that the attention of the greatest authority in the other House—the Speaker—had lately been directed to it, and he was confident that the more the subject was examined the more strong would be the conviction of the absolute necessity of making some alterations in the course of private legislation. Within the last eight years great improvements had been effected in the proceedings with regard to private business in the other House by the appointment of Examiners, who perform the duty which used to be discharged by preliminary Committees, of ascertaining whether the Standing Orders had been complied with. The appointment of those Examiners had, he understood, been productive of the greatest possible benefit. They got through their inquiries in one-third of the time that used to be occupied by the preliminary Committee. He understood that during the last Session 366 private Bills passed through Parliament, and the Examiners were able to discharge their duties in connection with those Bills in five or six weeks, while, under the old system, the Committees would have been engaged for as many months. There was not only a great saving of time, but considerable saving of expense to all parties, and the inquiry conducted by the Examiners had the advantage of being much more deliberate and satisfactory than that of the Committees. He hoped the recommendation contained in a Resolution that had been passed, he believed, almost unanimously in the other House, would be adopted—namely, that the same general plan of procedure with respect to private Bill legislation should be common to both Houses. He would not be satisfied with the mere appointment of Examiners by their Lordships; but he hoped to see joint Committees of both Houses of Parliament substituted for the separate Committees of the two Houses, according to the plan laid down in his Resolutions, a plan originally
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suggested by the Duke of Wellington in one particular case, that of boroughs charged with corruption, but a plan of unusual application.
EARL GREYremarked, that there was nothing novel in the proposal that their Lordships should attach certain conditions to their consent to pass measures of private legislation, and that such a course would be no invasion of the rights or privileges of the other House, but would be a legitimate exercise of their Lordships' powers.
LORD CAMPBELLhoped that, as the second reading of the Bill would not be opposed, ample time would be given for considering its provisions before their Lordships were asked to discuss it in Committee. He also wished to have an opportunity of consulting with his brother Judges as to the additional duties proposed to be cast upon them by this measure.
LORD STANLEY OF ALDERLEYexpressed his readiness to meet the wishes of the noble and learned Lord.
On Question, agreed to; Bill read 2a accordingly; and committed to a Committee of the whole House on Friday next.
House adjourned to Monday next.