Lords Sitting of 17 July 1860

MINUTES.
Sat First in Parliament.—The Lord Heytesbury—after the Death of his Father.
PUBLIC BILLS.—1a Postage (Army and Navy); Nuisances Removal and Diseases Prevention; Common Law Procedure (Ireland) Act (1853) Amendment; Crown Debts and Judgments: Inclosure (No. 2); Conjugal Rights (Scotland).
2a Annuity Tax Abolition (Edinburgh and Montrose), &c; Burial Grounds (Ireland) Act (1856) Amendment; Friendly Societies Act Amendment; Titles to Land (Scotland) Act (1858) Amendment.

ANNUITY TAX (EDINBURGH, MONTROSE, &c.) BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  THE DUKE OF ARGYLLsaid, he rose with great satisfaction to move that the Bill be read a second time. Five or six attempts had been made to settle by legislation the disputes arising out of this obnoxious tax; but until now none of these measures had reached their Lordships' House, although more than one had received the sanction of the House of Commons to the second reading, and although it had been the anxious desire of successive Governments to settle this disagreeable, and, as far as Edinburgh was concerned, obnoxious question. To such an extent had the ill-feeling occasioned by this tax been carried in Edinburgh that the officers of justice who endeavoured to enforce payment had been assaulted, and criminal prosecutions brought against the aggressors failed from the impossibility of getting a jury to convict them. The ministers of the Established Church in Edinburgh were not, as in England and other parts of Scotland, supported out of the ancient property of the Church, but entirely by a personal tax, upon the occupiers of houses, which was imposed by an Act of the reign of Charles II. It was analogous to ministers money in Ireland, which had recently been abolished. He was ready to admit the truth of the arguments upon the other side, that property was taken subject to the tax; but the impost was growing more and more obnoxious, and the necessity imposed upon clergymen of having recourse to law to enforce payment called for immediate legislation. The Bill satisfactorily accommodated the difficulty by providing from other means the stipend of £600 a year payable to all the existing ministers of Edinburgh and to their successors, whose number was, as vacancies occurred in certain churches, to be reduced by five. As at present levied the tax was very oppressive, and but a portion of the city of Edinburgh was liable to the demand. The whole College of Justice, moreover, was exempted; so that while the lawyers, who formed a very considerable, and by no means the least thriving portion of the population of the city, had nothing to pay, the poorer classes found themselves subject to a tax of 10 d. in the pound. To remedy this grievance, and to provide a substitute, the same sum of £2,000, at present de-
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  rived from the revenues of the Leith Harbour Fund, would be retained; a new arrangement of the moneys received from pew-rents would be made, and the balance would be raised by a fixed rate of 4d. in the pound, which would be collected with the police tax, to obviate those conscientious scruples which certain persons might entertain. The security and permanence of the Established Church would thus be provided for, and a difficulty in the way of every successive Government would be got rid of. The magistrates and Town Council of Edinburgh, from whom the noble Marquess opposite had just presented petitions, had been active in urging on various Administrations the necessity of effecting a settlement, but they wholly neglected to suggest a substitute for the tax. Every one of the principles embodied in this Bill had successively received their sanction, and it was with regret and surprise that the learned Lord Advocate learned their determination to oppose it. The Bill had passed the House of Commons by a considerable majority, and all the Scotch Members present, with the exception of two, voted in its favour. He hoped their Lordships would consent unanimously to its adoption, as any Amendments which might now be introduced would endanger its success in the present Session.
  Moved, That the Bill be now read 2a.
  THE EARL OF DERBYsaid, that having examined the provisions of the Bill, and watched the spirit in which it had been introduced, he was of opinion that it was an honest attempt to settle a very difficult question. For this reason, therefore, and considering the inexpediency of postponing the settlement of the question, he hoped their Lordships would not endanger the passing of the Bill by introducing any Amendments into it.
  THE LORD CHANCELLORsaid, he had represented the city of Edinburgh for some years, and with great pleasure to himself, except for this question of the Annuity Tax, which was the bane of his life. He, along with others, had endeavoured to come to some accommodation on the question, but unsuccessfully; and it was with great pleasure, therefore, that he now saw a Bill introduced which was likely to pass with the approbation of both sides of the House.
  Motion agreed to.
  Bill read 2a, and committed to a Committee of the Whole House on Thursday next.

TITLES TO LAND (SCOTLAND) ACT (1858) AMENDMENT BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  THE LORD CHANCELLOR, in moving the Second Reading of this Bill, said, the best mode of acquainting their Lordships with the previous history of this Bill would be to read a letter which he had received from the Lord Advocate on the subject.
  "The Titles to Land (Scotland) Bill never was discussed in the House of Commons in any of its stages. It is not a party Bill, but a Bill introducing certain legal reforms in conveyancing, on which both sides are substantially agreed, and the general scope of which was the same as one prepared by the Lord Advocate under Lord Derby's Government. Any difference of opinion which ever existed in regard to it, related to incidental details."
  He was glad to say that, whatever party had been in office, there was no diminution in the zeal for legal reform; and he could not but acknowledge that, in this respect, the noble Earl near him had been very fortunate in the selection of his law officers. The Lord Advocate proceeded to say:
  "It was introduced on the 8th of March; it was read a second time on the 20th of March without opposition or discussion of any kind. It met with warm approval and careful consideration from the profession in Scotland. On the 7th of May it was committed, pro forma, to have certain Amendments of my own introduced, without a single word of discussion. It was then reprinted, as amended in Committee; a form which every Member of the House of Commons is aware does not imply consideration or discussion. As reprinted it stood for Committee, and has so remained from that time to the present without a single step of progress. It was on three several morning sittings sent with five other Bills to the same Committee; but of these only two made any progress. The rest, including the Titles to Land Bill, have not yet had a single clause considered; and not one word has been said in the House of Commons on any one of its provisions. I thus found myself, on the 9th of July, with six or seven important Scotch measures, only two of which had even entered Committee. I therefore selected the two purely legal measures which might fitly commence in the Lords; stated in my place in the House of Commons that I withdrew them with the intention of having them introduced elsewhere, and placed them next day in your Lordships' hands. They arrive a fortnight sooner than they could have done, even had it been possible to overtake them in the Commons, and will come down when the overcrowding of the orders in that House has ceased. Before I took this step, I arranged all the clauses with the town-clerks and the superiors in a way which is satisfactory to them; and the question with the local registrars, which is a very subordinate one, is the only point on which, as far
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  as I am aware, any difference of opinion exists in any quarter. I only endeavoured, in very difficult circumstances, to prevent two important measures, which would have met with no other obstruction than fair discussion of their details, from being defeated by want of time; nor can I see that any interest, public or private, has suffered by the course I have pursued. These are the facts, and I think it right that your Lordship should be in possession of them."
  With regard to the Bill itself, in the year 1858 an Act was passed for simplifying the forms and diminishing the expense of completing titles to land in Scotland; but it did not include burgage tenure; and the great object of this Bill was to extend the same legislation to that class of titles. There was a clause which gave advantages to the registration of deeds in Edinburgh, and the local registrars were afraid that it would abstract business from them; but he was happy to say that the Lord Advocate had come to a satisfactory arrangement with them.
  Moved, That the Bill be now read 2a.
  THE EARL OF DERBYsaid, he knew nothing of the merits of the Bill. He still thought that the course adopted by the Lord Advocate was not only unusual, but highly irregular, and one that should not be drawn into a precedent. Whatever that irregularity, however, it was nothing as compared with the irregularity of which the noble and learned Lord had just been guilty; because it certainly was the first time that, in reference to any proceedings in that House, a Member of the other House had been furnished, through the medium of a Member of this House, with an opportunity of making a speech to their Lordships, and by the voice of the Lord Chancellor explaining his reasons for adopting a particular course of proceeding. Such a complication of irregularities as bad been effected by the noble and learned Lord in this House, and by the Lord Advocate in the other House, he must say he never recollected in the whole of his Parliamentary experience. With that single observation he would dismiss the question of the Lord Advocate's letter. If the Bill had met with opposition at a particular stage in the House of Commons, it was solely owing to the course which had been pursued by the Lord Advocate himself. It was stated by that learned Lord that the Bill contained the same provisions as the measure of the late Lord Advocate, and which measure met with general approval, although circumstances prevented its passing last year, and it was understood that

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  it would be reintroduced. If the Bill had undergone no discussion in the House of Commons, it was because the Scotch Members were in the habit of facilitating their business more by their action out of doors than in the House; and it was owing to the Lord Advocate having, without an understanding with the Scotch Members, introduced material alterations, that had led to the whole difficulty. Had these alterations and Amendments not been introduced, and had the Bill been carried on as it was originally introduced, no objection would have been raised on either side of the House, and it would long since have come up to their Lordships in the regular course. But the learned Lord chose to introduce a number of Amendments upon which great differences of opinion arose and objections were taken; so that at the time the Bill was withdrawn from the House of Commons, there were four-and-a-half pages of Amendments of which notice had been given. In these circumstances the Lord Advocate withdrew the measure from the House of Commons for the purpose of reintroducing it in this House, and sending it back to the Commons at a late period of the Session. He (the Earl of Derby) might have used the expression that it looked like smuggling a Bill through Parliament. The Lord Advocate rather indignantly repudiated any notion of such an intention, and he was bound to assume that no such intention was entertained; but all he could say was, that if it were desired to smuggle a Bill through Parliament, a more effectual plan could scarcely be devised than to withdraw it from the House of Commons when the Scotch Members were present, to introduce it into this House, and to send it back to the other House in the last few days of the Session, when most of the Scotch Members had left town. He was assured, however, that what had been done had been done in perfect good faith, and he did not hesitate to assume that that was the case. But the noble and learned Lord (the Lord Chancellor) was very much mistaken and very much misled if he believed that the Bill now lying on the table was the Bill which was withdrawn in the House of Commons, because the Lord Advocate had withdrawn the greater portion of his Amendments and restored the Bill to a form in which it was perfectly satisfactory to the late Lord Advocate. If the same course had been pursued in the other House, there would have been no occasion for any irregularity at all. He acquitted
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  the noble and learned Lord of any desire to obtain an undue advantage; but he could not acquit him of irregularity in the course which he had pursued, still less in the part which he had taken to-night. But, as the Bill was amended, he had no wish to impede its progress, although he hoped in the future more regularity would be observed.
  EARL GRANVILLEsaid, the noble Earl complained very much of the irregularity of the course which the Lord Advocate and the Lord Chancellor had pursued. There might be a certain amount of irregularity, but the letter did not refer to anything which had passed in their Lordships' House. The noble Earl himself had not only been guilty of great irregularity in describing minutely what had passed in the other House, but he was sorry to say had given an impression which was not correct. The Amendments of the Lord Advocate had not been the cause of the delay: and as to the Bill being different now, it was a perfect proof of the good faith of the Lord Advocate, because he could not wish to take any advantage when he endeavoured to put the Bill in a shape which would be acceptable to the House of Commons. He held that the course which had been pursued in regard to this Bill was very desirable and necessary for the furtherance of the public business, the present state of which had attracted the attention of the noble Earl as well as of others.
  LORD CRANWORTHhoped the Lord Chancellor would consider the case of the local registrars, whose interests would be seriously affected by this Bill.
  LORD BROUGHAMsaid, he would have been exceedingly sorry if the Lord Advocate had, from any motive whatever, even that of self-defence, written a letter to his noble and learned Friend on the woolsack, referring to any proceedings in their Lordships' House. He had listened carefully, however, to the letter of his right hon. and learned Friend, and did not catch a single allusion, even the most remote, to anything that had passed in this House. In considering the propriety of the course which had been taken, it should be remembered that, whoever objected to the introduction of Bills as now proposed, and contended that they should pass through the other House in regular course, knew very little of the manner in which business was carried on in that House. Whether it was owing to the superhuman eloquence that was now so abundant, or the

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  deeply interesting character of the reasoning, the House of Commons was rapidly justifying its ancient etymology and becoming a Parliamentum, a Colloquium, a place of talk, and of nothing but talk. But, whether from this, or from whatever other cause, it was certainly the case that important measures were delayed in the other House not only for days or weeks but for months, without the possibility of a single step being taken in advance, and then hurried through or thrown over in the most wholesale manner. He understood that this Bill was hung up in the Commons from the 2nd of May to last week, without the least progress being made. He believed, therefore, that the transfer of the measure to their Lordships' House was the most convenient course that could be taken.
  THE EARL OF DERBYexplained that he did not impute to the Lord Advocate any irregularity in referring to the proceedings of their Lordships' House. He was aware that the right hon. Gentleman had avoided any such allusions, although, of course, the letter was written entirely on account of what had taken place in this House. The irregularity consisted in the Lord Advocate, by means of a letter, practically making a speech in their Lordships' House for the purpose of explaining the course he had pursued in the other branch of the Legislature.
  THE LORD CHANCELLORsaid, he had hoped that after hearing the letter of the Lord Advocate the noble Earl would have apologized for the mistake into which he had fallen. He thought the facts which had been stated must have convinced the noble Earl that there was no foundation for the suspicion that he (the Lord Chancellor) and the Lord Advocate had conspired to smuggle a Bill through Parliament, and now that he was undeceived, some expression of regret was to be expected. He could not see that the right hon. and learned Gentleman had committed any irregularity whatever in writing the letter he had read to their Lordships. He had simply stated the facts, which it was indispensable should be made known for the vindication of his conduct.
  THE EARL OF DERBYsaid, he had not charged the noble and learned Lord and the Lord Advocate with what he was pleased to term a conspiracy. He must say, however, that the facts of the case, as they came before them on the introduction of the measure, did justify him in calling the
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  attention of their Lordships to the matter, and he should certainly make no appology for having commented upon what he believed to be a Parliamentary irregularity. He never had, and never would apologize for commenting publicly on public matters. If he had hurt the personal feelings of the noble and learned Lord or of the Lord Advocate no one would regret it more than himself; but he was not aware that he had done anything in the course of the discussion which required apology.
  EARL GRANVILLEsaid, that the propriety of making an apology was for the noble Earl himself to consider; but he trusted their Lordships would feel satisfied that the Lord Advocate was not open to the charge of having pursued any irregular or underhand course in regard to this Bill.
  THE EARL OF DERBYrepeated, that he disclaimed the idea of imputing such conduct to the right hon. and learned Gentleman.
  Motion agreed to.
  Bill read 2a accordingly; and committed to a Committee of the whole House on Thursday, the 26th instant.

CONJUGAL RIGHTS (SCOTLAND) BILL.

  BILL PRESENTED. FIRST READING.
  THE LORD CHANCELLORsaid, he had to offer to their Lordships another Bill, which was the brother, if he might say so, of the one they had been discussing, and which he hoped would meet with a more gentle reception. It was a Bill to amend the Law of Scotland in regard to Conjugal Rights. Had this Bill remained in the other House it would certainly never have reached their Lordships' House during the present Session. The Scotch Courts of law had the power of dissolving marriages, and that power was often abused by collusive expedients being resorted to by Englishmen in order to obtain the advantages of the Scotch law. For instance, it was a common thing for persons to go from England to Scotland for a divorce who were not domiciled there. In consequence this state of things arose. A marriage contract in England could be dissolved in Scotland, and while the parties remained in that country they could marry again and their children would be legitimate; but if they crossed the Border, the English marriage still subsisting, if they married again, they would be guilty of bigamy and their children would be bastards. As English marriages were no longer in-

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  dissoluble, the law of England and Scotland must be regarded as the same. The main object of this Bill was to prevent collusive divorces, by providing that no persons should be allowed to sue for divorce in Scotland unless domiciled there in such a manner that if they were to die their personal property would be administered according to the law of that country. It enacted further, that if a divorce had been regularly and solemnly pronounced by a Scotch Court it should be valid throughout the empire. The noble and learned Lord then laid the Bill on the table.
  LORD BROUGHAMbelieved that the Bill which he had unsuccessfully introduced into Parliament in 1835 and 1845, forbidding marriages without a very lengthened residence, would have been a better remedy for the evils of the marriage law of Scotland than the measure of his noble and learned Friend. Nothing could be more vexatious and unsatisfactory than the present state of that law, and he sincerely hoped some amendment would be made in it.
  LORD REDESDALEsaid, it should he remembered that there was a very wide difference in the grounds upon which a divorce could be obtained in England and Scotland. If they extended the force of the Scotch decree to England without greatly altering the Scotch law they would be only giving a wider scope to the abuse which already prevailed.
  LORD CHELMSFORDsaid, it would be better to reserve the discussion upon the Bill until the second reading.
  Bill read 1a.
  House adjourned at Half-past Six o'Clock to Thursday next, Half-past Ten o'Clock.