Lords Sitting of 7 August 1857

MINUTES.
PUBLIC BILLS.—1a Wills, &c. of British Subjects Abroad; New Zealand Loan Guarantee; New Zealand Company's Claims; New Zealand Government Act Amendment; Metropolitan Police Stations, &c.
2a General Board of Health Continuance; Attornies and Solicitors (Colonial Courts); Municipal Corporations; Burial Acts Amendment; Illicit Distillation (Ireland); Loan Societies; Burial Grounds (Scotland) Act (1855) Amendment; Valuation of Lands (Scotland) Act Amendment; Married Women's Reversionary Interest; Summary Proceedings before Justices of the Peace; Boundaries of Burghs Extension (Scotland); Jurisdiction in Siam.
3a Canada and New Brunswick Boundaries.

BURIAL ACTS AMENDMENT BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  Moved. "That the Bill be now read 2a."
  THE BISHOP OF LONDONsaid, he wished to take that opportunity of entering into a brief explanation with reference to a discussion which had been raised on the introduction of that Bill. The right rev.
  1210
  Prelate, who was more immediately interested in the matter (the Bishop of St. David's) was not able to attend the House that evening as he had intended to have done. The matter had reference to the consecration of the cemetery at Swansea. It was supposed that that right rev. Prelate had, in some way, put himself in opposition to the clergy of his diocese; but the sole object of the opposition made by the right rev. Prelate to the consecration of Swansea cemetery had been, as he (the Bishop of London) understood, to protect the rights of the clergyman of Swansea. As he was informed the cemetery was so distant from the town that it was almost impossible for the clergyman of Swansea to perform the burial service there without great pecuniary loss. The Bishop, considering it to be his duty to do what he could for the benefit of a clergyman whose emoluments in all amounted, as the Clergy List states, to only £290 a year, and who, if he had been obliged to undertake the journey to the cemetery daily would have been subjected to serious pecuniary loss, thought it right to interpose in a manner in which he was fully persuaded that the law authorised him to interpose in order to prevent the loss with which the clergyman was threatened. It had been said publicly that the right rev. Prelate had violated the law; but the Bishop was of opinion—not without reason as it appeared to him (the Bishop of London)—that the very fact of its having been found necessary to introduce a new Bill to alter the law, so as to compel him to consecrate the ground, seemed to show that in the course he had before pursued he had acted in conformity with the law. If the right rev. Prelate had violated the law, it could not be supposed that in his position, or indeed in any position in this country, the law was not strong enough to vindicate itself. There was no individual in the land who was above the law; and he was quite sure that the right rev. Prelate had acted conscientiously in this matter according to his view of what the law was. As there was a common impression that all these difficulties with regard to the consecration of burial grounds originated with the Bishops, it was well that it should be known that in this diocese there was a great cemetery for the City of London, a cemetery for nearly 100 parishes, and that that cemetery had not yet been consecrated—not on account of any difficulty presented by the Bishop of the

  1211
  diocese, but simply because the Burial Board thought that, as intrusted with the public interests, they were entitled to oppose an obstacle in the way of the consecration of that cemetery. Still it would have been regarded as something unfair if he had risen in his place in February last and had stated that the Burial Board of the city of London were violating the law because they availed themselves of that which the law obviously allowed—namely, of their power to place an obstacle in the way of the consecration of that ground, until certain difficulties which they felt should be removed. If he might be permitted, he would say one word with respect to two clauses in the Bill, the 12th and 13th, which had no connection with Bishops or with consecration, but which he believed would have a most injurious effect on the operation of the measure. These clauses introduced the principle of competition between consecrated and unconsecrated grounds. It was of the utmost importance that no such competition should exist, but that the poor should have the opportunity of being buried as cheaply in the one as in the other. In one great parish of the metropolis persons might be buried more cheaply in unconsecrated than in consecrated ground; and in that parish the number buried in the consecrated ground, where the charges were higher, was equal to that buried in the unconsecrated ground. In Marylebone, however, where there were also two burial-grounds, one consecrated and the other unconsecrated, but where the charges were alike, nearly 5,000 had been buried in the consecrated ground to only 30 in the unconsecrated. The result of making burials cheaper in unconsecrated ground would be, as he was informed by a deputation which had waited upon him that day, that the undertakers, who generally contracted for the funerals of the poor, would induce them, sometimes perhaps, by deceit, sometimes by other means, to be buried in unconsecrated ground. He was told that the most revolting scenes had occurred in consequence of this. Only a few days ago a chaplain of one of these cemeteries assured him that it was no unfrequent circumstance for bodies to be exhumed after interment and removed to some consecrated place, when the relations of the poor discovered the fraud which had been practised upon them; or, if the word fraud was rather too strong a one to use, the manner in which they had been misled; and in other cases, where bodies were not removed,
  1212
  still a very strong feeling was displayed. The fact was that the poor wished to be buried with the rites of the Church of England, and it was of great importance that there should be nothing to detract from the solemnity and the proper performance of these rites. If, however, the principle of competition were introduced, a feeling of dissatisfaction would inevitably grow up on both sides; and, in place of adopting such a principle it would be far better to follow the example of Marylebone, making the fees the same for interments in consecrated and unconsecrated ground. This question had a bearing upon the pecuniary interest of the clergy, but it was not with reference to that interest that he was now speaking. He made these observations on account of the unfortunate scenes which, he was assured, occurred in burial-grounds owing to the introduction of the principle which appeared to be embodied in the 12th Clause. He also begged their Lordships to consider that it was the bounden duty of the Bishops of the Church to defend, if they possibly could, the interests of the parochial clergy of this country. Returns lately published would show that the metropolitan clergy had suffered the greatest pecuniary loss in consequence of measures lately adopted with reference to burial grounds. Many, with large families to support, who had devoted their lives to the service of their fellow men, had been reduced almost to destitution; yet they had offered no opposition to these measures, which were believed to be for the public good. He could not help thinking that had they been members of the legal profession, or persons who possessed any great election influence, their interests would have been better attended to, and they would probably have obtained compensation. It was, however, really heart-rending to know how many excellent men, with large families and small means, had been reduced almost to want in order to advance the public good by measures making better provision for the burial of the dead. The clergy had, in this instance, no desire to claim pecuniary compensation on this ground, but they did think that in passing such a measure as the present everything ought to be done which would conduce to the orderly and decorous burial of the dead. That these evils were not occasioned by the Bishops only he might be allowed once more to say. No man was ever less likely to give way to foolish or fanatical prejudices than the right

  1213
  rev. Prelate whom he succeeded in the see of London. Of that right rev. Prelate he ought not to speak to-day without declaring how affectionately and how faithfully he had for so many years discharged the great duties of his sphere. Their Lordships had, in common with all the inhabitants of this metropolis, heard with a feeling of deep regret that it had pleased God to remove Dr. Blomfield from this world, though they rejoiced that he was removed from a scene of suffering. If ever there was a man who with deep conscientiousness and with untiring energy performed his episcopal functions, sacrificing his time and his health to the public good, it was the late Prelate. He, if any man, was free from foolish prejudices, and was able clearly to see what concessions ought to be made to the rightful demands of his fellow-men, yet he bequeathed to his successor a difficult legacy arising out of the question respecting the consecration of the Ilford cemetery. No man could say that the late Bishop was to blame in the transaction; but the fact was that these were very difficult and complicated questions, requiring very calm and dispassionate examination. He did trust, therefore, that when this Bill was in Committee no accusations would be bandied about from one side to the other, as though right rev. Prelates acted regardless of the feelings of their fellow-men, but that full credit would be given to them for a desire to discharge conscientiously the duties of their great trust.
  EARL GRANVILLEsaid, he hoped the Bill would be discussed in the spirit which had been recommended by his right rev. Friend. Nothing could be more unfair than to make sweeping charges against the episcopal bench on the subject, but at the same time a minority of right rev. Prelates, differing from the greater portion of their episcopal brethren, had pursued a course which seemed to him to have been an inconvenient one. With regard to the right rev. Prelate, whose acts were more particularly questioned at the present moment, it would be more satisfactory to the House that any discussion on the case of the Swansea Cemetery should take place when he was present. He (Earl Granville) was sure the right rev. Prelate most conscientiously believed himself bound to act as he had done. From the reports in the morning papers of what had occurred in another place he gathered that the charge made against him was that, in order
  1214
  to secure what he considered an act of justice to the incumbent, the Bishop had neglected to do what the words of the Act appeared to show he was bound to do. The point was one, however, which seemed to involve a question of law, and their Lordships would not be disposed to go into it in his absence. With regard to what had fallen from the right rev. Prelate (the Bishop of London), he (Earl Granville) agreed that there ought to be no competition between the consecrated and the unconsecrated ground. But the Dissenters complained that practically they paid more for burial in unconsecrated ground than was paid by Churchmen for interments in consecrated ground, and the object of the clause to which reference had been made was to prevent competition. In conclusion, he would express his regret in common with all their Lordships at the loss which had been sustained by the death of one who had so lately occupied the episcopal bench, and felt assured that the House would warmly concur in the eulogiums so eloquently passed by his right rev. successor.
  Motion agreed to. Bill read 2a accordingly, and committed to a Committee of the whole House on Thursday next.

VALUATION OF LANDS (SCOTLAND) ACT AMENDMENT BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  Moved, that the Bill be now read 2a.
  THE DUKE OF BUCCLEUCHsaid, the Bill contained very arbitrary powers. It enacted that if counties did not choose to appoint their own valuators the Commissioners of Inland Revenue might appoint assessors, whose valuation was to be made for all purposes relating to the Income-tax or any other taxes collected under the authority of these Commissioners. He was surprised that such a Bill had escaped notice in the House of Commons. It would make very great and at the same time very unnecessary changes in the present system of valuation in Scotland, and he therefore moved that it be read a second time that day three months.
  Amendment moved to leave out "now," and insert "this day three months."
  LORD PANMUREsaid, the object of the Bill was simply to protect the revenue. In the first place, it gave the revenue the power of appointing its own valuators, and, in the next, it gave the counties the option

  1215
  of adopting the valuation or assessments made by the valuators of the revenue. He thought it would be to the advantage of the counties to avail themselves of that power. The Bill would not impose any new burden upon the people of Scotland. His noble Friend was in error if he supposed that the Bill had passed through the other House without the knowledge of the Scotch Members, and as a proof that it had not escaped their notice, he might mention that it contained a local clause which was inserted on the motion of a Member of the other House, whose vigilant attention to all matters relating to Scotland was well known. The Bill would simply enable the Commissioners of Inland Revenue to collect that revenue fairly and honestly.
  On Question, That "now" stand part of the Motion? Resolved in the affirmative. Bill read 2a accordingly, and committed to a Committee of the whole House on Monday next.

MARRIED WOMEN'S REVERSIONARY INTEREST BILL.

  SECOND READING.
  Order of the day for the Second Reading read.
  LORD MONTEAGLE,in moving the second reading of this Bill, said he most sincerely apologised to their Lordships for having undertaken to bring this Bill before their notice, which might far better have fallen to the lot of some one possessed of more legal knowledge than himself. But the legal Members of the House would, doubtless, give him their assistance upon the measure. The Bill had, in fact, been assented to by the other House of Parliament on several occasions since 1838, and the present measure had passed with the almost unanimous consent of the House of Commons. He might state that he had received recommendations from some of their Lordships, proposing Amendments to the Bill. His noble and learned Friend (Lord Wensleydale) had suggested some alterations, which might be made in Committee, and his noble Friend on the woolsack had stated that other words might be found necessary to be added, in order to prevent the Bill from being interpreted so as to have any retrospective action. His noble and learned Friend opposite (Lord St. Leonards), he was aware, entertained strong objections to the measure; in 1838 he had, indeed, opposed its introduction in the other House of Parliament. But a few statements
  1216
  of fact would, he hoped, be sufficient on his (Lord Monteagle's) part to recommend the Bill to their Lordships' notice. The subject of the property of married women had been repeatedly under consideration since the presentation of the Report of the Commissioners who had inquired into the subject. By the Fines and Recoveries Act powers were granted to married women of disposing of their real property to the fullest extent. That Act was accompanied by provisions to guard against abuse; and every power which he now proposed to grant by this Bill in regard to the personal property of married women, had already been given in regard to their real estate by the former statute. That Act lately passed, upon the recommendation of experienced and enlightened Commissioners, had been carried into effect without giving rise to any complaint, and, therefore, on the ground of analogy, the present Bill had a claim to their Lordships' support. On what principle could they refuse to married women interested in the reversion of personal property the same power of disposition already conceded to them in respect of their reversionary interest in real estate? The effect of the present state of the law was, that personal property, in which any married woman had a reversionary interest, could not be mortgaged or sold, except exposed to the contingency of the death of the wife in her husband's lifetime; for if she survived her husband, nothing could prevent the property from reverting to her, and her right would hold good even against the claims of persons who had purchased for a valuable consideration. Practically speaking, the existence of these contingencies greatly deteriorated the value of property subject to them, and it could, therefore, only be sold at a considerable loss. Great hardship was often produced by this state of the law. It was, indeed, said that under a different state of things, and with more freedom of action, a wife might be induced by her husband to dispose of property applicable to her children, who would thereby suffer wrong. But this Bill gave the same security for independence of action on the part of a married woman as was granted by the Fines and Recoveries Act. It was true that the original measure proposed in 1838 had been rejected upon a second reading in the House of Commons; but the present Bill differed considerably from that measure, and it would differ still more with the Amendments he proposed

  1217
  to make in Committee. He therefore hoped their Lordships would allow the Bill to be read a second time, on the understanding that the Amendments suggested by his learned Friends, the Chancellor and Lord Wensleydale, should be introduced in Committee.
  Moved, That the Bill be now read 2a.
  LORD ST. LEONARDSsaid, he greatly regretted that a Bill of so much importance and involving so great a principle should be brought on for a second reading at so late a period of the Session, and in the absence of many noble and learned Lords. The Bill had been lying on their Lordships' table for several weeks, and no one of the law Lords had shown the slightest inclination to take charge of it. This Bill was the thin edge of the wedge, the object of its promoters being to enable a married woman to dispose of whatever reversionary interest she might have in personal estate. A Bill of a similar kind was introduced into the House of Commons in 1838. He moved its rejection, and it was carried by 57 votes against 21. It was said then, as now, that a reversionary interest in real estate was in the power and disposition of a married woman, and it was asked why she should not also be able to dispose of her reversionary interest in personal estate? The answer was, that it was a great blessing there should be this difference between real and personal estate. Married women had always had the power, under certain precautions, of disposing of their reversionary interest in real property; but real estate was generally dealt with after more deliberation, and he was not prepared to change the law in order that a reversionary interest in personal property might be sold to some of the parties who dealt in buying reversionary interests. This was in fact a Bill to enable dealers in reversions to strip married women of their property, and leave them penniless after their husband's death. From the earliest time such a power as was now asked never existed in this country. It was said that in cases where there was a marriage settlement the power given under the Bill was not to be exercised. But the only reason why the promoters of the Bill had not asked for this power at present was because they were sure the House would not grant it. Suppose a man by his will left his son-in-law certain property, which at the decease of the latter was to pass to the testator's daughter. The testator at present believed, when he was
  1218
  dying, that he was making a provision for his daughter; and what could be more reasonable than that she should be protected against her husband and her husband's creditors? Who was to provide for her after her husband's death if he should be able to persuade her to divest herself of the property which her father had left her? Their Lordships were asked to sweep away the protection which the law now threw around married women: and for what cause? Where was the hardship of the present law? It was said to be a hardship that a woman could not sell that which was valuable. But that was the great benefit of the law, which, for good reasons, took care that what a married woman had in reversion she could not part with. The present Bill enabled her to dispose of this reversion with her husband's consent. But would he not be able to control her when pressed for money and urged by his creditors? He need not remind their Lordships of the sacrifice at which a reversionary interest was sold. Such property could only be sold at a great depreciation, and it was well known that companies had been established for the express purpose of buying reversionary interests, and the moment Parliament passed this Bill there was not a married woman in the kingdom who had a reversionary interest who would not be persuaded by her husband to sell it if he were pressed by his creditors. Then when the time came that a woman stood in need of this property for herself and children she would find that she was left without a shilling. Entertaining these views with respect to the Bill, he should move that it be read a second time that day three months.
  Amendment moved to leave out 'now' and insert 'this day three months.'
  THE LORD CHANCELLORexpressed his approval of the Bill, as calculated to effect a considerable improvement in the existing law, by extending the principle of the free disposition of property. He felt bound, however, at the same time to observe that he could not give his assent to the passing of the Bill unless it were so amended in Committee as not to apply to any property which a person might enjoy by virtue of a will of a date previous to the 1st of January, 1858, and so framed as to exclude from its operation any property which a testator might express it to be his wish should not be disposed of in accordance with the provisions of the Bill.
  LORD CAMPBELLwas understood to support the principle which the Bill proposed to carry into effect.
  On Question, That 'now' stand part of the Motion? Resolved in the affirmative; Bill read 2a accordingly, and committed to a Committee of the whole House on Monday next.
  House adjourned at a Quarter to Seven o'clock, to Monday next, a Quarter before Eleven o'clock.