Lords Sitting of 26 February 1856

MINUTES.
PUBLIC BILLS.—1a Mercantile Law Amendment; Mercantile Law (Scotland) Amendment; Delamere Forest.

MERCANTILE LAWS OF THE UNITED KINGDOM.
THE LORD CHANCELLOR,pursuant to notice, rose to call the attention of the House to the Second Report of the Commissioners for inquiry as to the Mercantile Laws of the different parts of the United
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Kingdom. He must first state to their Lordships that, in the latter part of the year 1852, and the beginning of 1853, very great complaints were made in the manufacturing districts of England and Scotland, particularly at Manchester and Glasgow, that, with regard to a number of matters of everyday occurrence to parties engaged in trade, there were a number of differences between the laws of the two countries which embarrassed them much, and for which there were no adequate reasons. Meetings were held at Manchester, Glasgow, Birmingham, Leeds, and other large towns, and petitions were presented complaining of this state of the law, and praying that the laws of the two countries on mercantile subjects might be assimilated. He felt that, however desirable it might be, that there should be one uniform law pervading the whole of Great Britain and Ireland, yet that any attempt to make the laws of Scotland identical with those of England must end in failure, because the people of Scotland were naturally attached to their own laws, and though he thought them generally not so good, he was ready to admit that in some respects they were better than those of England. The law of Scotland being familiar to the people of Scotland, any attempt to alter it in its nature would be absurd and chimerical; but, at the same time, that was not sufficient reason why differences of law in matters connected with trade and commerce common to either side of the border should not be rectified, or why useful improvements, impossible to obtain in their integrity, should not be obtained partially. With that view a Royal Commission was issued to inquire into the subject, composed partly of lawyers, and partly of mercantile persons. At the head of the Commission was a distinguished lawyer—the present Master of the Rolls in Ireland (Mr. Smith), and with him were associated an English Judge, Mr. Justice Creswell; a Scotch Judge, Lord Curriehill; and two barristers of high repute—Mr. Bramwell, now Baron Bramwell, and Mr. Anderson, who had the good fortune to possess a thorough knowledge of the laws of both countries, and being a Scotch Advocate, and one of Her Hajesty's Counsel at the English bar. To those were united three gentlemen of great eminence in commerce—Mr. Hodgson, president of the Chamber of Commerce at Glasgow; Mr. Bazley, president of the Chamber of Commerce at

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Manchester; and Mr. Slater, of the firm of Morrison and Co., the largest retail firm, he believed, that existed in the United Kingdom. In order to ascertain what the grievances were and what remedy might be applied, papers pointing out the differences in the law and requesting opinions how far changes were practicable, and, if practicable, how far desirable, were sent to the different Chambers of Commerce in the kingdom, to the law societies, and to such private individuals as were supposed to be able to throw light upon the subject. At the end of twelve months a vast number of answers had been received, and upon those answers the Commissioners proceeded to frame a Report, recommending what changes it would, in their opinion be desirable to accomplish. To attempt to explain those changes would be as impossible, as he thought useless, because from the very nature of the inquiry, they related to a series of fragments of the law, unconnected with each other, and unlikely to arrest the attention of any one who had not gone through the whole Report, and comprehending the whole course of reasoning on which the Commissioners acted. He had given full attention to that Report, and, although he could not say that he was prepared to concur in all the recommendations of the Commissioners, he had had two Bills prepared—the one altering so much of the law of England as they had very properly recommended should be assimilated to the law of Scotland; and the other, under the sanction of Lord Curriehill, and the Lord Advocate, assimilating the law of Scotland to the law if England, to the extent which he could recommend their Lordships to approve. He should lay those Bills on the table, and if their Lordships would, after they had been circulated, give them a second reading, he should then move that they be referred to a Select Committee, to meet as soon as possible after the termition of the circuits. His noble Friend, the Chief Justice, would probably afford his assistance. If there should be another eminent lawyer in the House, whether for life or longer, he trusted to receive his assistance also, and his other noble and learned Friends would, no doubt, give the subject their best attention. He did not mean that the Committee should consist entirely of lawyers. He should be glad to see some noble Lords connected with Scotland upon it, and, if they were not familiar with the subject, they could
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be the organs of communication from others, should any of the alterations be deemed inexpedient or useless—for it was needless to say that his sole object was to place the law in the state most convenient to persons engaged in trade between the two kingdoms. The subject to which he should first refer was that of Bills of Exchange. It was surprising there should be, on the borders, such a difference in the law on this subject as actually existed. In England the holder of a bill of exchange was in the first place bound to apply to the acceptor for payment, and, if the acceptor failed to pay, then he could have recourse to the other parties to the bill—to the drawer or endorser—provided that, within what the law called a reasonable time, he gave notice to those persons that the acceptor had failed to make payment. A "reasonable time" had long been settled in England to be the day or next day after the bill was presented, but in Scotland fourteen days were given, and it must often happen that poor persons on the borders, whom the laws ought to protect, were not aware of the difference, thought they had fourteen days to give notice, and lost the right to apply to any of the other parties. On the other hand, in Scotland, to have recourse to other parties a bill must be protested before a notary; but that was not necessary in England. It both respects the Commissioners recommended that the law in Scotland should be made to conform to that in England, and it certainly was very desirable, whether the time was fourteen days or two days, that there should be one uniform rule. Connected with the same subject there were points on which the laws of both kingdoms ought to be not merely assimilated, but altered. In former times acceptance of a bill of exchange might be made, either by writing on the face of the bill, by writing on another piece of paper, or even verbally. By an Act passed in the first year of the reign of George IV., it was enacted that the acceptance to inland bills of exchange should not be valid unless the acceptance was in writing on the bill itself; and that had been found to be extremely convenient. This enactment, did not, however, affect foreign bills, with regard to which there might be acceptance by anticipation by writing, or by mere word of mouth as far as Scotland was concerned. The Commissioners recommended that there should be only one way of acceptance

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throughout the United Kingdom—that acceptance of bills, whether foreign or English, should be by writing on the face of the bill itself. In England, if a bill were transferred by endorsement, after it was due, the person to whom it was transferred did not take an absolute right, but only the same right as the person transferring it; for the obvious reason that, if it had been paid, the transfer should not enable the person receiving an overdue bill to enforce payment again. That was not so in Scotland, and the Commissioners recommended strongly that the same rule should be adopted. The next subject to which he should refer was a very important one—with regard to contracts for the purchase of goods. In England, if a man contracted to buy so many bales of cotton or bushels of wheat, and the seller failed to deliver them, the purchaser could only bring his action for damage for the breach of contract; but in Scotland the purchaser, as in the case of real estate in England, could obtain a decree that the specific goods, whether cotton or wheat, should be delivered, and, if the seller failed, then that he should make good the deficiency by damages. It was strongly recommended by the Commissioners that this law should be extended to England, and he could see no reason why it should not be adopted. There was now a proceeding under the Common Law Procedure Act, by which in a case where chattels were detained the party claiming could obtain judgment to compel the holder to deliver them up, and the Commissioners believed it would be easy to frame a clause to apply a similar rule in respect of contracts to deliver goods, and Mr. Baron Bramwell had framed a clause to meet that object. In another matter there was an anomaly in Scotch law with respect to carriers, who were responsible for accidents which happened to goods while under their charge, except in ease of fire. The Commissioners could not see why there should be that difference, and recommended that the exception should be abolished. With respect to shipping there was a rule which now prevailed, that when the ship was in a foreign port, if repairs became necessary, the captain of the vessel by implication of law had authority to perform the repairs, and to pledge the owner's credit for the expenses incurred; but not so when the owner resided at what was called a home port. That was reasonable enough; but the question had
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arisen, what constituted a home port? The distinction drawn was sometimes absurd enough. For instance, it had been decided that Leith was a foreign port to Newcastle. That appeared to be a strange state of things to exist in the present days of rapid intercommunication, and the Commissioners recommended that all the ports of the United Kingdom, including those of the Channel Islands and the Isle of Man, should be considered as home ports. The Commissioners had further recommended a change which he (the Lord Chancellor) had introduced into the Bill, but at the same time with considerable doubt whether it would be advisable to adopt it. It was well known to all lawyers as well as to most non-legal persons, that in the reign of Charles II. the statute called the Statute of Frauds was passed with a view to prevent, as far as possible, fictitious contracts being palmed off upon persons, and which might be supported by perjury; and, among other things, it was enacted that no contract for the sale of goods above the value of £10 should be valid unless it was in writing, or unless there had been part performance, or unless there had been money paid on account. That was the law of England, but in Scotland it was different, and great inconvenience had arisen upon the borders from that difference of the law of the two countries. The Commissioners discussed which of the two laws should be adopted, and came to the conclusion that that particular section of the Statute of Frauds should be repealed. They were influenced in coming to this conclusion by the examination of persons engaged in trade and commerce at Manchester, Leeds, Glasgow, and Dublin, who stated that the law was practically disregarded, for not one contract out of 100 was put into writing. He (the Lord Chancellor), however, had recently received a communication from Mr. Levie, a very eminent solicitor in the City of London, who informed him that in almost all cases in that City contracts were reduced to writing, and was of opinion that the change proposed by the Commissioners would be distasteful to the mercantile community of London. If upon examination it should appear that the balance of advantages would be to reverse the recommendation of the Commissioners, he (the Lord Chancellor) would be quite willing to strike the clause out of the Bill, though, on the whole, he inclined to think, that the balance of advantage was in favour of its retention. Having stated the recommendations

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upon which he had acted, he would next advert to one or two matters in which he had not been able to agree with the Commissioners. According to the law of Scotland, a minor—that was a person above fourteen, but under twentyone—could enter into trade and make contracts relating to trade to any extent; so that a boy of fifteen might involve himself in speculations to such an extent as to swallow up all the property to which he might succeed on attaining twenty-one years of age. He (the Lord Chancellor) did not feel sufficiently confident of the advantages of that law to recommend its adoption in England. Again, in Scotland, married women could bind themselves as partners in trade; but the Commissioners did not recommend the extension of that principle in England. They had, however, recommended, and he had adopted, an alteration in the law of prescription relating to mercantile contracts in Scotland, which every one admitted to be in a most complicated state. The Commissioners proposed to adopt the limit, as in England, of six years, and a clause had been framed with that view. Upon showing the Bill, however, to his hon. Friend the Lord Advocate, that learned Gentleman conceived a difficulty would be produced by confining the change to mercantile contracts, and had undertaken to introduce, in the present Session, a Bill of a more comprehensive description, entirely remodelling the law of prescription in Scotland. Again, there was another law in Scotland which did not appear to be conformable to good sense, which required certain facts to be proved in writing. Thus, payment could not he proved, except by writing—a rule which appeared to be exceedingly inconvenient, and a clause had been framed to alter that rule; but, as the Lord Advocate thought the laws relating to evidence generally should be amended, the clause had been struck out. There were other minor changes, but he had explained the general nature of the Bills which he sought to introduce, one of which was to amend the laws relating to trade and commerce in England and Ireland, and the other to amend the laws relating to trade and commerce in Scotland. Those Bills he now asked their Lordships to read a first time, and upon the occasion of their second reading, a week or ten days later, he should move to refer them to a Select Committee, in which he should be most happy to receive any assistance, in order to
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produce measures which would be useful and satisfactory to the community.
The noble and learned Lord then presented a Bill to amend the Laws in England and Ireland relating to Trade and Commerce; and a Bill to amend the Laws of Scotland affecting Trade.
LORD BROUGHAMsaid, he highly approved the course which had been taken by his noble and learned Friend in having, in this instance, departed from the general rule adopted by their Lordships in introducing a Bill for a first reading without entering into any argument in support of its provisions. However good that rule might be in regard to Bills in general, yet, when it was proposed to make an alteration in the law affecting the mercantile interests of the country, it was a matter of great convenience that some statement should be made at the earliest stage, in order that public attention should be attracted to it. He approved of its being proposed to legislate on this important subject. Their Lordships would remember that in the month of November, 1852, a very important congress of persons from all parts of the country—England, Scotland, and Ireland—sat to take into consideration the subject of assimilating the mercantile law of the three portions of the United Kingdom. A Commission was afterwards appointed to inquire into the subject, and the result of the inquiries of that Commission was the Report which formed the foundation of the measures now proposed to their Lordships; many of the recommendations contained in that Report were exceedingly fit to be adopted by Parliament, and all of them were worthy of being made the subject of full and continuous discussion. There were many other Bills necessary to be introduced in order to assimilate the commercial law and many other laws that were now at variance in the different portions of the kingdom.
LORD CAMPBELLexpressed his entire approbation of the introduction of those measures, and saw no reason why the law affecting the matters they related to should not be assimilated throughout the United Kingdom. With reference to the transfer of land, which in Scotland was comparatively simple, but in England was a most complicated process, there would be more difficulty. The feudal law had existed so long under very different circumstances in the two countries, that the assimilation of the law affecting real property would be a most stupendous undertaking. But with

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respect to mercantile law, and the law relating to contracts made by minors and married women, they might be altered without difficulty or inconvenience; and no doubt the alterations would work well. The latter subject must of course be made to depend very much upon the law of marriage, with respect to which he might almost say that there was no law of marriage in Scotland at all. All along the border country, between Carlisle and the German Ocean, the marriage customs were so various and uncertain, that there was not one child in fifty of whom it could be accurately said whether it was legitimate or illegitimate.
Then the said Bills were severally read 1a.

CONVICTS—TICKETS OF LEAVE.
VISCOUNT DUNGANNON VISCOUNT DUNGANNON moved an Address for—
"Return of the Number of Convicts who, since the passing of the Act 16 & 17 Vict. cap. 99, have received Orders of License:
"Of the Number of Convicts who, after receiving such Orders of License, have been convicted of or charged with subsequent Offences:
"Of the Number of Convicts whose Orders of License have been revoked: And—
"Of the Number of Convicts whose Licenses have been refused or withheld in consequence of their Misconduct."
EARL GRANVILLEsaid, that there was no objection to grant the Returns moved for; but he begged to inform the noble Viscount that similar returns had been already ordered to be laid before the other House of Parliament.
VISCOUNT DUNGANNONsaid, that those Returns would answer his purpose. He would now ask the question of which he had given notice on the subject—whether it was the intention of Her Majesty's Government to continue giving tickets of leave to convicts? He believed it was a well-known fact that a very considerable proportion of these persons had, since their liberation, returned to their former course of crime, and it was shown by proceedings at quarter sessions and elsewhere, that throughout the country cases of the most atrocious character had been participated in by them. It seemed to him that the ticket-of-leave system, so far from having been attended with any good result, had proved most mischievous in its tendency and productive of serious evils. He could not, therefore, forbear from asking what were the intentions of the Government wishing it, at the same time to be understood that, should the answer he received
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be unsatisfactory, it was his intention, after the production of the returns which had been moved for in the other House of Parliament, to bring under the consideration of their Lordships some Resolution bearing upon the subject.
EARL GRANVILLEsaid, it was not in the power of the Government to make any alteration in the ticket-of-leave system without an Act of Parliament, and he could only state that it was not at present their intention to bring in any Bill for that purpose.
VISCOUNT DUNGANNONwished the answer he had just received had been of another character, for he felt assured that the system, as it now existed, tended largely to the increase of crime, and crime, too, of the worst possible description. Throughout the country he believed the system was universally condemned, and he hoped that for the good of society some attempt would be made to remedy the evil.
THE MARQUESS OF SALISBURYsaid, it was quite in the power of the Government to effect such alterations in the system as to cure the evil complained of. He was surprised to hear the noble Earl (Earl Granville) say, that it would be necessary to have an Act of Parliament to alter the system. It was in the power of Government to diminish the evil, by placing these persons under the surveillance of the police, and no Act of Parliament was required to enable them to do that. The present system was causing great mischief in the country. The regulations of the system were in the power of the Government, and they were responsible for its operation. As chairman of quarter sessions, he could bear personal testimony to the evil consequences of the system at present pursued.
THE EARL OF HARROWBYsaid, that necessarily, if no transportation was allowed, criminals, after a certain period of imprisonment, must be turned out again upon the country. And if they were detained until their sentences had expired, they would be released without any surveillance at all. It might be a question, whether they were not let loose upon society too soon; but it could hardly be said that they would be likely to do less mischief without what was called a ticket of leave, than they did now in spite of this precaution. He did not sec how, if transportation were no longer possible, the evils attending the necessary release of criminals in this country when their sentences expired, could be

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chargeable altogether upon the ticket-of-leave system. The whole question, however, was a most difficult one, and if any suggestions could be offered involving a practical improvement upon the present mode of proceeding, he was sure they would be gladly received and acted upon by the Secretary of State for the Home Department.
THE EARL Of MALMESBURYconsidered the speech of the noble Earl (Earl of Harrowby) to be one of the most alarming he had ever heard in his life. The noble Earl declared it was perfectly impossible to retrace our steps with regard to transportation.
THE EARL OF HARROWBY: No; I merely said, that a great portion of the evils attributed to the present system arose from the fact that, having abolished transportation, our criminals must, sooner or later, be turned upon the country.
THE EARL OF MALMESBURYsaid, he understood the argument of the noble Earl to lead to this conclusion, that we could not return to the system of transportation. He utterly dissented from that. We were at present in a period of trial and experiment. We were trying to see if the system of transportation could be dispensed with; and it remained to be seen whether the substituted system would succeed. It might be that its evils might be remedied without abolishing it; or other means of punishment might possibly be within our reach. But he hoped that it would not be taken for granted that expatriation as a punishment was impossible. At present the degree of apprehension entertained throughout the country as to the operation of the ticket-of-leave system was very great. It was not only timid persons who partook in this apprehension, but really experienced and well-informed people in responsible positions were beginning to be alarmed. In his own county (Hampshire) this year a proposition had been made by a very able chairman of quarter sessions, Sir W. Heathcote, for the addition of seventy constables to the county police force. Now, as the rates in Hampshire were double what they were ten years ago, the proposition was not at all a pleasant one, and it was opposed by himself and others; but they wore compelled to yield to the force of reasoning, by which their chairman showed that the great increase of crime owing to the number of convicts returned under the tickets of leave, and who were hovering on the
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borders of Berkshire (where there was no rural police), rendered absolutely necessary such an increase of the police force. This was not the period for the abolition of transportation. If experience should warrant us in dispensing with it, well and good; but the Government must not consider the present system as established for ever; and he would venture to add, that if it be possible we must return to a system of transportation.
THE DUKE OF ARGYLLsaid, the Government did not mean to say that we could not return to transportation, but certainly we could not return to the system of transportation which had been departed from, and send convicts to colonies which had already refused to receive them, unless, at all events, they altered their minds, which they were not likely to do. If any new system of transportation was adopted, it must be to new territories which had not the advantages of our older colonies. He feared that the present system, which was merely experimental, could not be permanent, and then no doubt it would be necessary to consider how a new system of transportation could be carried into effect.
LORD CAMPBELLsaid, he hoped the present system was not fixed, and that there was no irrevocable determination to abandon transportation. It was quite true that prisoners at home must be set free at some time or other, and without any surveillance; and this rendered it most important, if we would avoid the monstrous calamity of having London and our large towns filled with forcats, that we should return to some system of transportation. Undoubtedly, we could not force our convicts on the old colonies which had rejected them; but there might be in the Falkland Islands or elsewhere other settlements to which they might be sent; not, however, with the advantages belonging to the older colonies, where there was a population to absorb the discharged convicts, and where they could renew their character; as above 40,000 of them had done in Australia, where they were now earning their livelihood honestly. He hoped that ere long the Government would earnestly endeavour to restore some system of transportation.
THE EARL OF ST. GERMANSsaid, the subject was much too important to be discussed incidentally. But he believed that any future system of transportation must be based upon a principle perfectly

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different from that which had formerly been in operation. We must reflect with horror upon the dreadful abuses of the old system, which was quite useless for punishment or reformation. The colonies were right in pressing for its abolition. The prædial system was so uncertain, that if a convict happened to fall to the lot of a kind master, he was scarcely in a state of punishment at all; whereas, on the other hand, if a different fate befell him the horrors of Norfolk Island might have been realised—horrors which it was impossible for him farther to advert to, so fearful were the crimes which had been committed—such were the horrors which had been disclosed in the evidence taken before the Committees which had sat upon the subject. He hoped that some noble Lord would ere long give notice of bringing the subject forward, that it might be properly considered.
LORD MONTEAGLEhoped that the House would not finally decide on this most important question on the evidence which was taken before the Committees referred to by the noble Earl, because it was partial, limited, and one-sided. He would never force the colonies to accept convicts; but if the question were properly and discreetly managed, he thought the colonies would accept convicts for their own advantage. The colony of Western Australia accepted convict labour from this country, and the colony of Moreton Bay petitioned to have the same advantage as the people of Western Australia. The objection to the reception of convict labour did not come from those places, but from the other colonies. He admitted that if the principle of transportation were taken up again, it should be taken up on the ground of its being beneficial to the colonies, and not on the ground of economy to this country, or the necessity of getting rid of our criminal population. He did not believe they could ever revert to the system of Norfolk Island, which formed a dark page in the history of this country. The question of transportation had been decided against the best feelings of the Legislature, and against the wishes and experience of the colonies. If they had been properly dealt with, with due management he thought a time might come when those who rejected transportation would be least disposed to resist it, if resumed under proper regulations.
House adjourned to Thursday next.