Lords Sitting of 14 February 1856

MINUTES.
Sat First in Parliament.—The Duke of Somerset, after the Death of his Father.
PUBLIC BILLS.—1a Church Discipline Act Amendment; Education.

THE FERMOY PEERAGE.
THE EARL OF DERBYrose to call their Lordships' attention to a matter relating to the Privileges of their Lordships' House. His noble Friend the Lord President of the Council had been good enough to undertake to give notice of any petition which he might receive relating to the Baron Fermoy. His noble Friend had yesterday sent him a note stating that he had received a petition on the subject, and had placed it in the hands of the noble and learned Lord on the woolsack, who by some accident had at once referred it to the Committee for Privileges. Although he (the Earl of Derby) did not mean to say that in ordinary cases the course adopted was not the proper one, the present case

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was very peculiar, and involved some important features. Now, in ordinary cases of a claim to a peerage, the course was that the claimant should prove his lineal descent from some person who had formerly been entitled to the privilege; and if there was any doubt as to the patent or if, as in the present case, there was a new patent, he would have to produce it and to prove his right to hold it. In this case there was no doubt that a patent had been granted; but the question which the Committee for Privileges would have to decide was, whether the patent was valid and in accordance with the law which regulated the exercise of the prerogative of the Crown. He must say, in passing, that he considered it a singular misfortune for Her Majesty's Government, that whereas, so far as he knew, for centuries there had been no difference whatever between the House and the Crown with respect to the exercise of the prerogative, they had contrived during the single year in which they had held office to involve the Crown and the House in two separate questions in both of which the exercise of the prerogative of the Crown was disputed, and in both of which it was proved to be contrary to invariable precedent; and in the present case it was quite clear, and indeed was not disputed, that an interpretation had for the first time been given to the law directly opposed to the interpretation which had prevailed since the passing of the Act of Union. He could not avoid upon the present occasion troubling their Lordships with a recapitulation of the facts as they bore upon the particular point of law. By the Articles of Union, it was competent to the Crown on the extinction of three Irish peerages which had existed previous to the Union, to create one Irish Peer, and to continue that practice until the number of Irish Peers, exclusive of those who sat in their Lordships' House as English Peers, should be reduced to a hundred. The House would bear in mind that it was not till the number of Irish peerages should be so reduced, but the number of Irish Peers. Almost immediately after the passing of the Act of Union in 1800, the Earl of Montrath died, the earldom became extinct, but the Barony which was left in remainder still survived, and went to the nephew of the deceased Earl. It was perfectly clear, at the time this occurrence took place, that it was not considered to have created such an extinction of a peerage as to justify the Crown in consi-
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dering it one of three vacancies which would empower the exercise of the prerogative to create a new Peer. Numberless other cases of the same kind took place; various earldoms became extinct; but the baronies connected with them not becoming extinct, it was held that the peerage was not extinct in the sense of the Act of Union, In the case of Viscount O'Neill, for instance, the earldom had become extinct; but it was not such an extinction of peerage as justified the Crown in taking it into consideration in creating a new Irish Peer, because the viscounty still remained, collateral heirs acceding to it. Another case was that of the late Marquess of Thomond, on whose death the marquisate became extinct, and a noble Friend of his, who was better known in the House of Commons as Sir Lucius O'Brien, succeeded to the barony of Inchiquin. There was, however, an earldom combined with the marquisate which remained in abeyance. That, however, did not create a vacancy in the peerage, still less, he apprehended, did it create two vacancies; and yet it was upon that principle that Her Majesty's Government, after the lapse of fifty-four years, had thought proper to act. If such a principle were affirmed it must follow as a necessary consequence that every Peer who had died since the Union, although leaving a successor, must have created as many vacancies as he held titles by separate patents, which would be quite inconsistent with the intentions of the framers of the Act of Union, who contemplated that peerages should be conferred with a view to reduce the number of Peers to 100. If the Government created a Peer for every three such extinctions the intention of the framers of the Act of Union would be entirely evaded, and the effect would be to increase, instead of to decrease, the number of Irish Peers. It happened last year that three peerages were supposed to be vacant. The Earl of Tyrconnel's was one, Lord Montrath's another, and the Marquess of Thomond's was the third; and Her Majesty's Government, contrary to all precedent, had advised Her Majesty to create a Peer in consequence of those peerages being in abeyance. To justify this, recourse was had to the supposed precedent of the earldom of Montrath; and it was for the first time contended, after the lapse of fifty years, that the extinction of that earldom was, in the sense of the Act of Union, such an extinction of a peerage as justified the exercise

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of the prerogative to create a new Peer. That was the position assumed, and if such an interpretation were to be held good it followed, from the circumstance of a number of peerages of the same kind having become extinct since the Union, that Her Majesty had at this moment the right of creating nine or ten additional Irish Peers, to say the least, if the number of peerages which were held by the same person were to be reckoned as distinct peerages. This was a very important question, and in accordance with the existing state of the law had been properly referred to a Committee of Privileges, the point to be discussed before that Committee, and decided by it, being whether the Act by which that peerage was created was in accordance with, or in contravention of, the Act of Union? That question, no doubt, would be properly considered by the Committee and by the noble Lord the Chairman of that Committee; but the question arose, who was to oppose the claimant? In ordinary cases, when a claimant for a peerage came forward to make his claim, the Attorney General, on the part of the Crown, watched the case against the claimant. In this case, however, it could not be supposed that he would do so, because the Crown neither opposed the claimant nor questioned the validity of the patent. And it was a matter for the consideration of the House whether they should not by a Resolution instruct the Committee that counsel should be employed for that purpose. How otherwise could they have the case fairly and amply argued before them, for, in point of fact, both the counsel for the Crown and the counsel for the claimant would be on one side? The creation of such a peerage, in his opinion, was not only contrary to the intention of the Act of Union, but was neither in conformity with the reason of the case nor in accordance with the practice that had prevailed from the passing of that Act down to the present time. It would be for their Lordships to adopt or reject the Report of the Committee; but, certainly, nothing more ought to be done until the Fermoy patent had been inquired into in the fullest and amplest manner, with regard to the state of the law applicable to it, and upon which it was now for the first time attempted to put an interpretation different from that which it had ever hitherto received.
EARL GRANVILLEsaid, that although his noble Friend had been good enough to
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give him notice that he meant to make some observations when the petition of Baron Fermoy was presented to their Lordships, yet he was not prepared to hear his noble Friend enter so fully into the law of the case. But even if he had been aware of it, he believed he should have exercised a sound discretion in abstaining from arguing a case which had been referred to a Committee of Privileges. No doubt Her Majesty's Government, acting upon the advice of the law officers of the Crown, and also upon the advice of the distinguished Gentleman in the other House who was Attorney General under the Government of the noble Earl, had advised Her Majesty to create this peerage in the way described by the noble Earl. But, when the noble Earl talked so much about the unusual manner in which these peerages had been given, and had assumed it for granted that the course pursued was illegal, he (Earl Granville) must beg to remind the noble Earl of something that was not unusual in the case of the elections of Irish representative Peers. Their Lordships knew perfectly well that, whatever might be the qualification of an Irish Peer, however moderate he might be in politics, and however well qualified to take part in the proceedings of their Lordships' House, yet, unless he carried with him the political approval of the noble Earl himself, he had not the slightest chance of obtaining a seat in that House. With regard to the manner in which this question should be argued before the Committee, no doubt the petitioner should be allowed to argue it by counsel on his own behalf. And although the noble Earl had said that it would not be very satisfactory that the Attorney General, who had advised upon the granting of this peerage, should be the person to watch the proceedings, he (Earl Granville) apprehended that that dissatisfaction would not be less if the learned person who held the office of Attorney General under the noble Earl's own administration were appointed to do so; though he was quite sure that neither of those hon. and learned Gentlemen anymore than Her Majesty's Government would wish to throw the least obstacle in the way of having the question fairly investigated and argued. However, Her Majesty's Government would throw no obstacle in the way of the Committee's coming to a clear understanding of the case from the want of some learned Gen-

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tleman not connected with the Government being appointed to argue it as against the claimant. With regard to the supposed analogy between the case of Lord Fermoy and that of Lord Wensleydale, he confessed he could not see any whatever. The two cases appeared to him to be as different as possible. It was necessary that Lord Fermoy, in order to obtain the right of voting for an Irish representative Peer, should have a resolution passed by their Lordships declaring that he possessed such right. There was, therefore, an essential difference between the two cases, as no act on the part of their Lordships was required in the case of Baron Wensleydale.
THE EARL OF DERBYbegged to disclaim the power and influence which the noble Earl bad attributed to him with regard to the appointment of Irish representative Peers. In the case of the creation of a new Irish Peer, that rested entirely in the hands of the Crown itself; and with respect to the election of Irish representative Peers, that rested with the Irish Peers themselves. But even if he did possess the influence attributed to him, in what manner, he would ask, could that bear upon the question before their Lordships? The noble Earl denied any analogy to exist between this and the Wensleydale case. There might not strictly be any such analogy; but the cases were alike to this extent—that in each case the House of Lords asserted the right to inquire into the question whether the Royal prerogative which conferred on the two claimants a right to a seat in that House had been exercised in accordance with the law and constitutional precedents. He supposed that even the noble and learned Lord on the woolsack would hardly assert that they were not justified in doing so in the present case.
LORD BROUGHAMexpressed his entire concurrence with the opinions of both his noble Friends, for, while he considered that there was in many respects a difference between the two cases, there was in one respect, and that a most material respect, a very close analogy between them; and that analogy consisted in the fact that the point referred to the Committee of Privileges in both instances was the same, and came precisely under the same jurisdiction—that point being that in both the House was entitled to a jurisdiction in examining whether there had
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been a proper exercise of the prerogative of the Crown in accordance with the laws and constitution of the country. It must not be supposed for one moment that he doubted the prerogative of the Crown to grant honours to any person to whom it might be advised to grant them. No one questioned the prerogative of the Crown to grant honours to any person. The only right contested was, the right to sit in that House. The right to a peerage, the right to be called a Peer—to be called a duke, a marquis, an earl, a viscount, or a baron—no person denied that the Crown was entitled, by its prerogative, to confer. The person so ennobled would, to all intents and purposes, save one, have the privileges of the peerage; he would enjoy the privilege of freedom from arrest, he would have station and precedence, and he might be a Privy Councillor; but their Lordships bad the right, the imprescriptible right, to inquire into the title of that party to a seat in that House. He was not one to question the right of the Crown to ennoble by a patent; the question was as to the right to sit in Parliament upon a writ founded on that patent.
THE EARL OF DESARTobserved, that the noble Earl opposite had chosen to throw out an insinuation with reference to the election of the Irish representative Peers. He assured the House that there was not the slightest collusion between the noble Earl (the Earl of Derby) and the Irish Peers to secure the election of Peers holding particular opinions. The election was the simple choice of the Peers; and if men of principles opposed to those of the noble Earl opposite were chosen as the representatives of the opinions of the majority of the Irish Peers, it was no fault whatever of theirs.
LORD CAMPBELLdeprecated the display of political heat, which had not been confined entirely to one side of the House, and wished rather to confine the question to the point at issue. With respect to the case of the Baron Fermoy, he concurred with the noble Earl opposite, that it was extremely desirable that the question should be fully argued before the Committee of Privileges, and he apprehended that no difficulty would arise in carrying out that object, for the bar was abundantly rich in advocates who could discuss the question for and against the claimant. In the other case, the question on which the House would feel bound to form an opinion would

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be with respect to the validity of the patent; and in this, as to whether Baron Fermoy, as an Irish Peer, had a right to sit; in both cases, therefore, the right of sitting and voting in that House was to be decided, so that so far there was an analogy between them.

DOWER—COPYHOLD AND CUSTOMARY LAW.
LORD BROUGHAM presented a petition from copyholders of the Forest of Pendle, praying for the assimilation of the law affecting freehold with respect to Dower to Copyhold and Customary Law; and observed that the question involved was a very important one. Their Lordships would remember that among valuable law reforms effected of late years, through the exertions of the Real Property Commissioners, there was one providing for the more equitable adjustment of dowers payable out of freehold estates. There could be no doubt whatever that it was not the intention of the framers of that Act to extend its operation beyond freehold estates; but the present petition, which emanated from a large number of persons holding estates on the old customary copyhold tenure, set forth—and he had no reason to doubt, correctly—the numerous advantages which would arise from the extension of that Act to copyholds. He had, therefore, to ask the noble and learned Lord on the woolsack whether the Government would bring in a Bill on the subject?
THE LORD CHANCELLORcould not undertake to say that the Government would bring in a Bill with respect to a matter which was now brought before the House for the first time. He certainly thought some reform more practically useful might be made than to extend all the anomalies attendant upon the law of dower in freeholds to copyhold estates; at the same time he would promise to give his serious attention to the subject.
LORD CAMPBELLsaid, that having assisted to frame the Act of Parliament in question, he could state that the reason why copyholds could not be introduced into the Bill was from the variety of customs respecting the apportionment of the dower in different manors, the widow having sometimes one-half, at others a third, and often smaller portions; so that there was great difficulty in framing a law that would be suitable to the two descriptions of tenure.

UNSEAWORTHY VESSELS.
THE EARL OF ELLENBOROUGH: I rise, my Lords, to present petitions from seamen of Whitby, West Hartlepool, Aberdeen, and Sunderland, for the adoption of measures giving to the crews of ships the right, by law, of demanding a survey on an unseaworthy vessel, the efficiency of her crew, the sanitary condition of her forecastle, or her equipments.—The noble Earl said, The subject, my Lords, is one of great importance, for, by the present state of the law, not only is the public interest materially injured, but the lives and properties of seamen are endangered; and I think your Lordships will agree with me in thinking that, for such an evil, Parliament ought to provide a remedy. The statement of the petitioners is, that the casualties at sea have of late years increased in a greater proportion than shipping itself, and that allegation could no doubt be supported by the public returns presented to Parliament up to the period when these petitions were signed. I am happy, however, to say, that within the last few days, it has appeared, from the return made by the Board of Trade, that within the last year there has been a great diminution in the number of vessels wrecked, as compared with the increase of shipping; and that there has been a material reduction in the number of lives lost. There can be no doubt, however, that there had been a continual increase in the number of wrecks for the last three years. In the year 1852, the number of vessels lost at sea was 1,015; in 1853, the number was 832; in 1854, the number was 987; and in 1855, the number was 1,141. The number of lives lost was, in 1852, 920; in 1853, 689; in 1854, 1,549; and in 1855, 469. The number of persons whose lives were saved amounted to 1,388, and it is gratifying to know that most of them were saved by means of modern appliances. The number of collisions which have occurred at sea during the past year is 247, as compared with 94 in 1854; and 55 vessels were totally lost thereby. Now, my Lords, in some cases collisions are unavoidable, but many also arise from causes which it is possible to remove, such as imperfect equipment, or insufficiency of manning, or having too many foreign seamen on board; and, out of the 247 collisions which occurred last year, a large proportion must no doubt be attributed to one or more of those causes, all

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of which, as I have stated, may be removed. But above all the causes which lead to casualties at sea, the main and principal cause, as alleged by the petitioners, is the appointment of masters who, in spite of their certificates of competency, are really incompetent for the duty entrusted to them; to this is added the introduction on board of English ships of foreigners who can not readily speak or understand our language; and, above all, the undermanning and insufficient equipment of the vessels. The petitioners state that it is hard upon them that, when they have once engaged with the master to navigate a ship, they are compelled, notwithstanding that they may see reason to think that the ship is not seaworthy, to go on board and navigate her. They state that cases have occurred in which seamen have believed a ship to be unseaworthy, and have gone on shore for the purpose of proving her to be so, and demanding to have their agreements cancelled on that ground, and have for that been treated as deserters, and sent to prison for terms varying from six to twelve weeks, although in reality they had only done what it was their duty to do for the preservation of their lives. This, my Lords, is a very serious state of things, and well deserves the attention of Parliament. I believe that cases of this kind are of not unfrequent occurrence. I will mention two. On the 6th of June, 1854, the bark Swan left the Tyne for New Brunswick, and on the following day put back into Shields. The crew alleged that the master and mate were drunk and the vessel not seaworthy, and, upon the advice of the river inspectors, applied to the Mayor of North Shields. The mayor recommended that the agreements should be cancelled, and the men paid for the service performed. This the master promised to do, but instead thereof he took out warrants from the South Shields bench of magistrates, among whom were three shipowners, and the second mate, carpenter, and four of the crew were sentenced to imprisonment for desertion for periods varying from six weeks to three months; and yet it afterwards appeared that the vessel must certainly have been unseaworthy at the time. In another case seamen had been compelled, by the apprehension of being treated as deserters, to proceed to sea. The vessel foundered, and the men lost all their clothes, but as they had consented to go to sea they had no remedy against
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the master for the loss which they sustained. Thus in the one case they had been treated as deserters, because they had gone ashore for the purpose of complaining of the unseaworthy condition of the vessel; and again, under the same law, they had no remedy against the master for the recovery of the property they had lost in consequence of their having consented to go to sea. This, my Lords, is the statement made by the men, and it may be exaggerated, but I have had placed in my hands an extract from the official report on prisons in the southern and western districts, confirming the statements of the petitioners to a considerable extent. The gentleman who made that report states in the gaol of Falmouth there were—
"Nine prisoners under sentence of twelve weeks' imprisonment for having deserted their ships, or refused to sail in them after having signed articles of agreement, the ground of their refusal having been the unseaworthiness of the ships, or the fact of their having on board an insufficient number of able seamen to work them with a due regard to the safety of the ships and crews."
That Report goes on to say that—
"The frequent occurrence of commitments under the Merchant Seamen's Act in this and other seaport towns has led me to bring the subject under the notice of the Secretary of State in a special report, from a feeling that the administration of the law affecting merchant seamen is attended with an amount of hardship to that class of persons not contemplated by the Legislature. A very large number of merchant seamen are committed summarily to the prisons of seaport towns for refusing to proceed to sea after having signed articles of agreement, the grounds of their refusal being, as stated above, the alleged unseaworthiness of their ships, or the insufficient complement of 'able seamen' among their crew. The first of these objections is in many cases notoriously well founded, more especially at the present time, when the great and sudden increase of trade to the Australian colonies and elsewhere has led to many ships being taken up for services, to the requirements of which they are quite unequal."
In another part it goes on to say—
"Whether the circumstances here alluded to may throw any light upon any of the numerous mischances that have occurred of late to merchant ships I am not qualified to judge; but I have the best reason to know that the prisons of several seaport towns in my district are continually supplied with seamen committed under the circumstances referred to; the good character of many of whom, obtained both in the navy and merchant service, leads to the strongest presumptions in their favour. … The above remarks apply to all prisons with which I am acquainted in seaport towns; but in the case of that which forms the subject of this report a peculiar hardship is inflicted on the prisoners by the

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closeness of confinement and the very defective accommodations,"
Your Lordships must bear in mind that the probability is, that in most of those seaport towns the magistrates are shipowners or persons connected with shipping; and, therefore, the seaman who goes on shore to complain of the unseaworthiness of a ship may be committed to prison as a deserter by a person interested in maintaining the seaworthiness of the ship, or who is more or less interested in enforcing any agreements into which the seamen may have entered. I say, my Lords, that that is a state of things which ought not to be permitted. By the Act which was passed a year and a half ago a seaman is allowed to go ashore in order to make his complaint; but it is idle to permit him to go ashore if, when he does so, he is to be taken up as a deserter and punished by a shipowner with twelve weeks' imprisonment for doing that which it is his duty to do for the protection of his own life and the property in the ship. By law a seaman may go ashore also, and may require a survey of the ship as regards the supply of provisions and water, but he is precluded from requiring a survey as to the unseaworthiness or under-manning of the vessel, which are of infinitely more importance to him. It must be in the knowledge of many of your Lordships who are at all familiar with sea scenes, that it is rare to see any small merchant vessel which appears to have a sufficient number of hands on board. The number of men is so small that they are a long time weighing the anchor, they can only get up one sail at a time, they can only take in one at a time, and, when heavy weather comes on suddenly, they are, in consequence, often exposed to the greatest danger. By the last Act which was passed upon this subject the Board of Trade has the power of appointing an inspector, but he is only called into requisition after there has been a casualty into which he is to inquire. I desire that the law should be so altered that, in all seaport towns where there is any considerable amount of shipping, the Government should not only have the power of appointing, but should actually appoint an inspector, whose duty it should be to survey every vessel before she departed from port. Then the seaman, if he had any ground of complaint could state it to the inspector when he went on board. The inspector must be a perfectly unprejudiced witness, and his appearance before a magistrate should be
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sufficient to obtain a dissolution of the agreement between the seaman and the owner, if he thought it desirable. Last year there were vessels lost representing 176,000 tons, and not less than from 7,000 to 8,000 lives were imperilled. I must repeat now what I said to your Lordships four or five years ago, when the Navigation Laws were last discussed, and that is, that it is absolutely necessary to introduce into the merchant service the same stringent regulation which exists in Her Majesty's navy—that in every case of wreck and every case of serious casualty I that there shall be an inquiry. Do that, and with the previous investigation by the inspector, you do all that the seaman can ask, and you preserve many lives and much valuable property. There is one source of disasters at sea against which I fear it will be impossible for the Legislature to provide any remedy, owing to the great demand that exists for sailors. I cannot help thinking that many of the persons who are at present employed as seamen are not seamen at all, and the incompetency of those men must necessarily often lead to the most disastrous results. I am not prepared to offer any proposition to your Lordships at present; but that which occurs to me as proper and desirable is, that you should appoint a Select Committee for the purpose of considering these two points; and I may, very possibly, at an early period, ask your Lordships' consent to the appointment of such a Committee.
LORD STANLEY OF ALDERLEY: I am bound to admit the importance of the subject to which the noble Earl has called the attention of the House, but I think that to a great extent a remedy has been provided for many of the evils of which he complains. A petition similar to that which the noble Earl has now presented has been brought under the consideration of the department over which I preside, and, in order to ascertain exactly what was the state of the law in reference to the matters in question, I desired that a case should be immediately prepared and submitted to the law officers of the Crown. For that purpose several queries were submitted to those learned persons, and I will shortly read to your Lordships both the queries and answers, merely premising that we have taken every means in our power to give publicity to them, and to bring them under the notice of seafaring people and of the authorities concerned in the

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administration of the law. The firs question was—
"Whether, when a seaman is engaged, there or is not an implied condition on the part of the shipowner that the ship shall be seaworthy?"
The opinion was—
"We are of opinion that there is an implied condition on the part of the shipowner that the ship shall be seaworthy."
The next question was—
"Whether, if the ship is not seaworthy, and the seaman refused to go to sea in her on that ground, he can be treated as a deserter, or punished under the enactments above referred to, or otherwise?"
The answer was—
"If the ship is not seaworthy, and the seaman refuses to go to sea in her on that ground, he cannot be treated as a deserter, or punished under the enactment referred to. But the burden of proof will lie on the seaman; he must establish the unseaworthiness of the vessel."
The third question was—
"Whether, if a seaman is apprehended on the ground of desertion, and alleges in his defence that the ship is unseaworthy, it is the duty of the Court which hears the case to examine into the question, and to receive such evidence as it may be possible to procure of the truth of the allegation?"
The answer was—
"If the seaman apprehended for desertion alleges the unseaworthiness of the ship in his defence, it will be the duty of the Court which hears the case to examine into the question, as it would do on any other disputed question of fact that might arise before it; and it must dispose of the question on such evidence as may be laid before it, bearing in mind, as we have before said, that the burden of proof is on the seaman."
The next question was—
"Whether, if the ship is not seaworthy, and the seaman refuses to go to sea in her on that ground, and the master and owner refuse to deliver any clothes or effects which the seaman has on board, the seaman can bring an action to recover them, or to recover damages for their detention?"
The answer was—
"We think that the seaman is justified in refusing to go to sea in the ship on the ground of her unseaworthiness, and may maintain an action to recover his effects if detained."
The fifth question was—
"Whether, if a seaman serves in a ship which is sent to sea in an unseaworthy state, and the ship is lost in consequence, and the seaman thereby suffers damage by loss of his clothes, or by injury to his person or otherwise, he has any remedy against the owner?"
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The answer was—
"On the authority of the case 'Priestley v. Fowles,'—3 M. and W., p. 1—we are of opinion that a seaman proceeding to sea in an unseaworthy ship, and sustaining injury in consequence, could not maintain an action, and would be without a remedy against the owner."
And the last question was—
"Whether, when a seaman is engaged, there is or is not an implied condition on the part of the owner that the ship shall be adequately manned (i. e. manned in such a manner as would, under ordinary circumstances, be sufficient for the safety and proper navigation of the ship on the voyage on which she is to be employed); and, if so, whether or not the non-performance of this condition is attended by consequences similar to those which would attend the non-performance of the implied condition that the ship shall be seaworthy, assuming such last-mentioned condition to exist?"
To which the answer was—
"We are of opinion that there is an implied condition on the part of the owner that the ship shall be manned by a crew sufficient to navigate her with reasonable safety, and that if she be not so manned, the consequences will be the same as though the ship was unseaworthy."
Thus your Lordships will see that we have taken every means in our power to ascertain the actual state of the law. It seems to me that the sailor has a full remedy in case he should be of opinion that his slap is unseaworthy or insufficiently manned. What is the usual mode of proceeding? A seaman is taken before a magistrate by the captain or owner, and accused of deserting his ship and breaking his engagement, and he pleads that the vessel is un-seaworthy or insufficiently manned. It is for the magistrate to take cognisance of the fact, and, having ascertained that the allegation is correct, it is his duty not only not to punish him as a deserter, but also to release him from his engagement. But, after all, the noble Earl must be aware that it does not necessarily follow, from the statement of a sailor that a ship is unseaworthy, that she really is so; and he can scarcely wish that whenever it may please a discontented seaman to allege that his ship is unseaworthy an inquiry must necessarily be instituted into the matter, a considerable expense incurred, and a prolonged delay take place before she can put to sea. At the present time, when wages are high and great anxiety is shown to secure the services of sailors—when there are persons always on the watch to seize men and hand them from one ship to another—there is a great inducement to seamen to declare their vessels unseaworthy and break their engagements. So

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much, Indeed, is that the case, that captains have considerable difficulty in obtaining crews with whom they can proceed to sea. For my own part, I do not see what we can do more than we have already done. The noble Earl has spoken of a survey; but if we were to examine every ship before she left port, as would often happen, we should have to remove her cargo, we should delay her sailing and thus produce inconvenience and loss to the trade. This, too, we are asked to do upon the representation of a common seaman, who, perhaps, wishes to transfer his services to some other vessel. With respect to another point mentioned by the noble Earl, it is quite true that the number of wrecks was larger than usual last year; but I have reason to believe that the increase exhibited by the returns laid on the table the other day is to be attributed in part to the greater care taken in recording such disasters. The noble Earl has stated that an inspector should be appointed in every port. Now, it does so happen that an inspector actually exists in almost every place around our coasts. It is the duty of the Coastguard, the collector of Customs, and some other officer connected with the Board of Trade, to report every case of wreck which occurs in his district; and, whenever it seems desirable, a further inquiry is instituted by the Board. Your Lordships will be glad to learn that, although the number of wrecks has increased, the loss of life has been very much diminished, which I believe may be attributed partly to the good effect produced by the recent alteration of the law relating to merchant shipping, by which salvage is allowed for the preservation of life as well as of property, and partly to the power vested in the Board of Trade to give rewards for conspicuous exertions in the saving of life—rewards which were given last year to the amount of £1,237. If your Lordships deem it desirable that a Committee should be appointed to investigate this matter, I shall offer no objection; but I hardly think the additional information to be acquired would justify such a proceeding, especially since the noble Earl has shadowed out no improvement or alteration of the law, with the single exception of the establishment of a survey of all vessels before they leave port—a proposition which is worthy of consideration, though I cannot pledge myself to adopt it.
LORD COLCHESTERsaid, he wished to refer only to a single point, that of calling upon the seaman, who should be taken before a magistrate as a deserter, to prove his case as to the alleged unseaworthiness of the ship. Excepting on this point, the statement of the noble Lord who had just sat down was perfectly satisfactory. As the law stood, seamen were entitled to make complaints, and if those complaints were proved, they were of course relieved from any penalty. But in this way, the burden of proving the case was laid upon the seaman, who often had not any means of substantiating his case by evidence. Suppose he were to say that the ropes were old or that the ship leaked, the magistrate would be quite sure not to take his word for it. Who, then, was to prove the assertion? There was no person to whom the case could be referred. The law was here insufficient, and it seemed to him that the duty of ascertaining the seaworthiness of a vessel should be performed by Government inspectors, armed with sufficient powers. There would be no expense, and no detention of the vessel. The question would be a very simple one, and might be disposed of by a competent person in a few hours. If the Board of Trade had at 'present the power of appointing such persons, it would he all very well; but the inspectors now appointed had no power but of reporting, and even these were only located in large ports. There ought to be inspectors in all ports, who should be called upon to give an answer whenever the case was brought before the magistrates. He must say this in defence of the seamen, that a survey of the same kind was carried out abroad with good effect, and he saw no reason why it should not be adopted here. It would be as much for the advantage of the master or for the owner, as the seamen themselves. If a complaint obliged the owners to provide new ropes or sails, it might have the effect of preserving the property from loss. He thought the House was much obliged to the noble President of the Board of Trade for the trouble he had taken to ascertain the state of the law.
THE EARL OF ELLENBOROUGHsaid, that it had been stated that the seamen had at present the real power of obtaining redress in the matter complained of. Now, he would state to their Lordships the case of a particular ship—the Swan, which left the Tyne for New Brunswick. The sea-

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men complained of this ship, and made oath before the magistrates, who were probably shipowners, as to her condition. He would read the document, though it was somewhat technical. The sailors swore, amongst other things, that the ship had no back sail; that there were no ropes to replace those that might be broken; that the main braces were broken, the standing rigging cracked, the foretop split, the hatches not stopped. Such being the state of the ship, the sailors objected to go to sea in her. The sailors were punished as deserters; yet the ship after having been out for two days was compelled to put back again into port from inability to keep the sea. Would the noble Lord have liked to have gone to sea in her? If the noble Lord had objected, the chances were that he would have got twelvemonths' imprisonment in Durham gaol.
LORD STANLEY OF ALDERLEYsaid, that in the instance which the noble Earl had just adduced there was primâ facie evidence of the unseaworthy condition of the vessel in the fact that she had been obliged, after a lapse of only two days, to return to port; and he felt assured that, under these circumstances, the magistrate must have entered into a detailed inquiry as to the justice of the complaint upon the part of the seamen. [The Earl of ELLENBOROUGH: But he did not.] The case of the Swan probably occurred previous to the publication of the legal opinion to which I have called your Lordships' attention. The magistrates will now, no doubt, be ready to deal more carefully with the complaints of seamen, when they appear upon the face of them to call for further inquiry.
THE EARL OF ELLENBOROUGHthought the noble Lord must have forgotten that, he had read a passage from the Report of the Inspector of Prisons, written in 1855, in which he made a statement of exactly the same tenor with that put forth by the seamen. He stated, that nine out of every ten persons summarily convicted in his district were seamen for desertion.
LORD STANLEY OF ALDERLEYsaid that might be, but the inspector of prisons had no means of judging as to whether those seamen had been justly convicted or not.
Petitions ordered to lie on the table.
House adjourned till To-morrow.