Lords Sitting of 2 August 1861

MINUTES.
PUBLIC BILLS.—1a Revision of the Statute.
2a Consolidated Fund (Appropriation); East India Loan (No. 2); Militia Pay; Militia Ballots Suspension; Wills and Domicile of British Subjects Abroad, &c.; Corrupt Practices Prevention Act (1854) Continuance; Landed Estates (Ireland) Act (1858) Amendment; Metropolitan Police District Receiver; Parochial Offices; Volunteers Tolls Exemption (No. 2); Treasury Chest Fund.
3a Appropriation of Seats (Sudbury and Saint (Albans); Trustees (Scotland); Conjugal Rights (Scotland); Municipal Corporations Act Amendment; Removal of Irish Poor; Public Works (Ireland); Windsor Suspended Canonries; Accessories and Abettors; Criminal Statutes Repeal; Larceny, &c.; Malicious Injuries to Property; Forgery; Coinage Offences; Offences against the Person; Public Works and Harbours; Lord Clerk Register Salary Abolition; Durham University; Metropolitan Building Act Amendment; Drainage of Land; Public Offices Site; Pensions, British Forces (India); Edinburgh University; Inland Revenue; Stamp Duties on Probates, &c.; Revenue Departments Accounts.

REVISION OF THE STATUTES BILL.

  BILL PRESENTED. FIRST READING.
  THE LORD CHANCELLOR,in presenting a Bill for the Revision of the Statutes from the Commencement to the End of the Reign of Edward the Third, said, their Lordships were aware that some time antecedent to the year 1859 a Commission was issued for the purpose of consolidating the statute law. He could not say that the proceedings of that Commission had met with general approbation, or that they had done much to accomplish their object. The Commission was not renewed in 1859,
  1836
  in consequence of an adverse vote of the House of Commons, and when the present Government came into office it was necessary to consider what steps should be taken in the circumstances. It appeared to the late Lord Chancellor and to himself that the proper course was to ascertain what the statute law really consisted of, before they proceeded to the introduction of any consolidating measure. They determined, therefore, to appoint certain gentlemen of great ability and industry to proceed with a revision of the statute law. These gentlemen had already proceeded in the task with a revision of the statute book from the beginning of the reign of George III. down to the present time, and a Bill, embodying the results of that revision was passed in their Lordships' House early in the present Session; and, having also passed through the other House, was now again before their Lordships. The statutes thus swept out of the statute book had become unnecessary from various causes. Many of them had been expressly repealed. Others had fallen into desuetude from the circumstance that there was no longer any subject matter on which they could operate. There was another class of statutes which were repealed in general terms—that was to say, subsequent enactments had declared that all preceding enactments inconsistent with the provisions there enacted were repealed; there were others which were in effect repealed because, although there were no words in subsequent enactments which specially or generally repealed them, yet they—those subsequent statutes—enacted what was inconsistent with and repugnant to the olden statutes. Other statutes were not repealed, but superseded by subsequent Acts introducing new modes of dealing with the matters. Other statutes referred to customs that had since passed away, and were, consequently, inoperative. All those classes of Bills were as completely superseded as if they had been actually repealed; but they could not be omitted from the statute book without an Act of Parliament, and that authority as to one portion of the statute book was given in the Bill which, as he said, passed their Lordships' House early in the Session. He wished, however, that the present Session should not pass without proceeding one step farther, and accordingly he had prepared a Bill, which he would now lay on their Lordships' Table in order that it might he maturely considered during the recess — a

  1837
  Bill for revising the statutes from the earliest times to the end of the reign of Edward III. The Bill proceeded on the same principle of revision as that he had already described with regard to the statutes of George III. and downwards, and the effect of this measure, if it were sanctioned by Parliament, would be to reduce the present bulky volume containing these earlier statutes to one-tenth of its present size, and he anticipated, as this work went on, to reduce the volumes containing the statutes in a still greater degree.
  Bill presented, and read 1a.

  MODENA.
  LORD WODEHOUSElaid before the House "Despatches relating to the Affairs of the Duchy of Modena, from Her Majesty's Ministers accredited to the Courts of Central Italy, during the years 1855, 1856, 1857, and 1858, (pursuant to the Address of the 22nd July last.)
  THE MARQUESS OF NORMANBY,who had given notice of a Motion for an Address to Her Majesty for Copies or Extracts of any Letters from Her Majesty's Consul Mr. Walton, as to the State of the Duchy of Massa-Carrara during the years 1855, 1856, 1857 and 1858, said he wished to explain to their Lordships the reason why it was not his intention to persevere with his Motion. When he asked for the production of his own Reports upon the events which passed in Modena during the four years to which the charges made against the ruler of that Duchy particularly referred, he did so because upon every occasion on which ho had made a periodical visitation in Modena he had received from the Government authorities every information and every facility for ascertaining the true state of the Duchy. Therefore, if some of those accusations which had been made against the Duke of Modena were well founded he should himself have been culpable for not having noticed the facts in his Reports to Her Majesty's Government. His noble Friend had just presented those Reports; and he wished to state that, when he asked for further Reports from the Consul in the Duchy of Massa-Carrara, he did so because that particular Duchy had been the scene of crimes of unusual violence, owing to the action of secret societies and other political causes. He had, therefore, been anxious to have the Reports of that intelligent and impartial gentleman who had long represented Her Majesty's Government as Consul in
  1838
  that quarter. His noble Friend had, however, intimated that although there was no objection on public grounds to the production of these papers, yet that in the present state of that country their publication might, perhaps, lead to serious inconvenience, owing to the peculiar situation of the writer. Under all the circumstances it occurred to himself, also, that it would be more prudent not to press for the production of these papers, at least at present. After the first accusation which had been made against the Duke of Modena relating to the proceedings before the Commission of 1857, an appeal had been made to him (the Marquess of Normanby) by a gentleman connected with the whole of these proceedings, namely, the Judge Advocate, who had acted with singular humanity in the discharge of a painful duty, and that appeal made it desirable that the imputations which had been made in this matter should be removed by the testimony of the British agent, who was in that country at the time. He understood, however, that the friends and advisers of the Duke of Modena who had hitherto furnished him with the materials for defending that ruler had determined that the whole of the proofs should be made known to the British Government by the publication of the official documents. He was quite sure that the facts of the case would in that manner meet the public eye in a much more accessible form than through that strange and somewhat confused compilation which he had seen in the hands of some noble Lords opposite, and which he knew to have been the foundation of the charges that had been made in "another place." He was quite certain that the production of these official documents would show that Count Cavour had been a conspirator for the last twelve years, and would also disclose the means by which his conspiracy had been carried on. He would now merely conclude by withdrawing his Motion.
  LORD WODEHOUSEsaid, that Mr. Walton was not in the position of a paid Consul, but was a very intelligent and respectable merchant residing at Carrara; and it had been thought by his noble Friend the Foreign Secretary that it would not be expedient to publish his confidential reports. He had communicated that fact to the noble Marquess, who he was glad to find, had come to the conclusion to withdraw his Motion.
  Motion withdrawn.

  INDIA.—PETITIONS.
  LORD MONTEAGLE presented several petitions from Natives of Bengal, Behar, Orissa, Bombay, Madras, and Tanjore, respecting the operation of the income tax in India, and praying for the admission of Natives to the offices of Zillah Judge and Assistant Judge. The noble Lord was understood to urge upon the Government the necessity of the speedy production of the official documents relating to the finances of India, and said he wished to know whether the Government would lay on the table of the House the speech which Mr. Laing lately made in the Legislative Council of India, explanatory of his views respecting the finances of India. The similar statement made by the late Mr. Wilson, the predecessor to Mr. Laing, had been submitted to Parliament, and to render the present condition of India intelligible it was necessary that Mr. Laing's speech should be produced likewise. He also wished to know whether the reports of the moral and material progress of India would be laid upon the table according to the enactments of the Bill of 1853?
  EARL DE GREY AND RIPONreplied, that most of the objects which were sought by the petitioners had already, to a considerable extent, been anticipated by legislation suggested by Her Majesty's Government in the course of the present year. The noble Lord had asked two questions. First, he had asked for a copy of the speech of Mr. Laing to the Legislative Council of India. It was true that a similar speech of Mr. Wilson's had been laid before Parliament; but that was done because it was an essential part of the question which had arisen with regard to the conduct of Sir Charles Trevelyan. But he would submit whether it was a desirable practice to lay on the table of the Houses of Parliament speeches made in the Legislative Council of India. The whole of the financial information which the noble Lord sought for would be laid before the House in the shape of financial dispatches. As to the other question, whether the statements with regard to the moral and material progress of India would be laid on the table he might say that the papers containing the information had been presented within the time prescribed, and they had already been printed and circulated, and he held a copy in his hand. They contained a detailed report of all the acts which had been passed by the Indian Legislature during the year.
  LORD MONTEAGLEsaid, the book did not contain all the documents he wanted; and if the papers had been presented within the time required by the law this was of little avail if an undue delay occurred in the printing. In this case the printing was not finished till August.

  BANKRUPTCY AND INSOLVENCY BILL.

    COMMON'S CONSEQUENTIAL AMENDMENTS.
    THE LORD CHANCELLORmoved that the Commons' Consequential Amendments in this Bill be agreed to. As the Bill originally stood it was provided that the Lord Chancellor should, with the consent of the Chief Judge, make orders touching the forms of procedure of the Court; but of course the appointment of Chief Judge having been struck out of the Bill that provision fell to the ground. Their Lordships had suggested, that for the Chief Judge should be substituted the Lords Justices; but a further alteration had become necessary in consequence of the period at which the Bill came into operation, and for the Lord Justices the Commons had inserted "two of the Commissioners." This Bill had been to him a matter of deep anxiety, and it would now be his duty to endeavour so to frame and regulate the orders of the Court that the fullest scope and operation would be given to the measure, and that it might work as beneficially as possible.
    LORD CHELMSFORDsaid, that the alterations and Amendments made in the Bill were only such as were absolutely necessary.
    Amendments considered and agreed to.

  NEWSPAPERS, &c., BILL.

    SECOND READING. ORDER DISCHARGED.
    LORD STRATHEDENsaid, it would ill-become him, after having on the 29th of July endeavoured to insist on the necessity and policy of the Resolution to arrest Bills before that period, to urge upon the House at so late a day as this a controverted measure. It never once occurred to him to do so. He gave notice of the second reading that their Lordships might be made publicly aware of the fact that the other House of Parliament, without any opposition, had sent up a Bill to repeal the Act of 1819, which first imposed securities on publishers and printers; so that if a Bill of this kind next year came before them at an early time in the

    1841
    Session, it might have whatever weight—he did not wish to over-estimate it—this previous sanction was entitled to confer upon it. And here he should sit down had it not been for a statement which fell last night from the noble Lord, the Chairman of Committees, that the judgment of the House had last year been given on the Bill. Such a statement would entirely mislead them. Last year a Bill on the subject of the press was introduced, but, so far from being identical with the Bill he now had charge of, it related in a great measure to an Act of 1799, which this Bill does not even touch. Unless the present Bill had been framed to meet various objections which last year were started, he (Lord Stratheden) would not have been connected with it. The division last year, besides, was never taken on the merits of the Bill which the House rejected. The Bill was brought forward with no explanatory argument, because no notice had been given to oppose it. It was not defended in reply, because those who viewed it with suspicion were still prepared to grant the second reading; until on a sudden after-thought, when he (Lord I Stratheden) had set down, a noble and learned Lord resolved upon dividing. Having thus explained the object of the notice, he, with their permission, would withdraw it.
    LORD CHELMSFORDcomplained of the way in which their Lordships were treated with respect to this measure. Although a similar Bill to this had been introduced into the other House of Parliament in every Session since 1859, it had never been discussed by the other House. The Bill of 1860 proposed to repeal three Acts of Parliament, and came up to that House in the latter part of July. He (Lord Chelmsford) having stated his objections to some of its provisions, moved the rejection of the measure. The result was the defeat of the Bill by a majority of 36 to 10, and amongst this majority were several of the Cabinet Ministers. So quietly had the Bill of the present Session been introduced into the other House and passed through all its stages, that he should not have known of its presence upon their Lordships' table had he not been informed of the fact by an anonymous correspondent, who signed himself "Amicus," and who pointed his attention to some of its provisions. Under these circumstances he thought it rather hard that the House of Commons, knowing that a similar measure had been
    1842
    decisively rejected by their Lordships last year, should have now sent up to them this Bill at this period of the Session
    EARL GRANVILLEthought it rather hard upon the noble Lord (Lord Stratheden) that the noble and learned Lord should make an attack upon a Bill which, as far as the noble Lord was concerned, was dead and gone.
    LORD STRATHEDENassured his noble Friend, the President of the Council, that he would not imitate the example of the noble and learned Lord, who might, however, be excused as he had come up from the country, and was, no doubt, extremely disappointed at the withdrawal of the Bill he had intended to attack. If next year it was his (Lord Stratheden's) fortune to address their Lordships on the subject, he should then endeavour to reply to as many of the noble and learned Lord's remarks as he thought at all likely to influence the House.
    Order of the Day for the Second Reading read and discharged; and Bill to be read 2a on this Day Month.

  WILLS AND DOMICILE OF BRITISH
    SUBJECTS ABROAD, &c, BILL.

      SECOND READING.
      THE LORD CHANCELLOR, in moving the second reading of this Bill, observed that the subject of domicile was a very difficult one. If a man died abroad and he retained his English domicile his property would be liable to legacy duty; whereas if he was domiciled in a foreign country it would not. The law of domicile had also a great deal to do with questions of marriage. There was no difficulty as to the rule of domicile; but there was often the very greatest difficulty in its application, for the moment a question arose as to a man's domicile it became necessary to inquire into everything that he had done and everything that he had said, in order to discover whether he had ever formed the intention of abandoning his country. The infliction upon parties litigant of the present law of evidence on the subject was very grievous; and for that it was the object of this Bill (which had already passed the House of Commons) to furnish a remedy. It provided, therefore, that no British subject resident abroad should be held to have changed his domicile unless he had declared his intention of doing so by an unmistakeable and public act. There was a similar provision with regard to foreigners resident in England. That

      1843
      Dr. Corrigan—all gentlemen of high poportion of the Bill could not be carried into effect without the co-operation of the foreign Governments; but the success which had followed the International Copyright Act led him to hope that there would be no difficulty on that score. The Bill also contained a provision with regard to persons dying in a foreign country without friends. In such cases it gave power to the Consul of the nation to which he belonged to take out letters of administration and to act as his representative.
      Bill read 2a; Committee negatived; and Bill to be read 3a on Monday next.

  APPROPRIATION OF SEATS (SUDBURY AND ST. ALBANS) BILL.
  Bill read 3a.
  Question put, "Whether this Bill, with the Amendments, shall pass?"
  Resolved in the Affirmative.
  Bill passed.

  PROTEST.
  Protest of Lord CAMPBELL against the Third Reading of the APPROPRIATION OF SEATS (SUDBURY AND ALBANS) BILL.
  "DISSENTIENT:—
  "1. Because the Third Reading took place out of the Order in which the Bill stood upon the Notice Paper, at a Time when Public Business was not in any way expected, and not upon the Motion of the Minister in whose Name the Bill stood, thus making it impossible for Peers who wished to do so to take any Part on this final Stage.
  "2. Because a former Stage, viz., the Second Reading, had been virtually annulled and moved pro forma only at an Hour when by general Admission it was not possible to go into Debate, all Consideration of the Bill being thus reduced to the single Stage of going into Committee on the 29th July.
  "3. Because a Resolution of the House has frequently declared, that at that Period important Measures cannot have the full deliberation which they merit.
  "4. Because a Precedent has thus been formed for passing to the Statute Book a Measure of organic Change without the genuine and bona fide Sanction of the House of Lords; and if such organic Change as the Public Interest requires is now to be developed in a Series of Measures, and not included in a single Scheme, the Danger of such a Precedent being often followed is apparent.
  "5. Because while the Bill has not had the bona fide Sanction of the House of Lords, so neither has it had that of either Party in the Commons, the Opposition and the Government in that House of Parliament having both declared in the Course of the Session that the vacant Seats ought to be otherwise distributed.
  "6. Because so long as these Seats were va-
  1844
  cant a notorious Defect in the Reform Act might eventualy be remedied, without increasing the Numbers of the House of Commons, the Defect in consequence of which since 1832 distinguished Public Men, against the Wishes of the Country, have been excluded from the Legislature, and which arises from the Want of a corrective Power in the State to return those whom the united Body of the Nation would have chosen, but who from local Circumstances have not been chosen by any of the Sections into which the Country at a General Election is divided.
  "7. Because the Existence of such a Vice in the Reform Act is convincingly established by the Fact, that since 1832 Sir William Molesworth, Lord Macaulay, Lord Carlisle, Sir Edward Lytton, Mr. Bright, Mr. Cobden, Mr. Milner Gibson, the late Mr. Bernal, among others, have, after General Elections, been kept out of Parliament, while the Public could not be said in any of these Cases to have either caused or sanctioned the Exclusion.
  "8. Because to form any System by which the casual Deficiences of a General Election might be afterwards removed, according to the Interest and Voice of the Community, the four vacant Seats, if not essential, were desirable, as the Space to build on; while they are now appropriated in a Manner which no Necessity dictated, which meets no popular Demand, which takes away no Public Inconvenience, and bestows no Kind of new advantage on the Empire.
  "9. Because the Defect to some Remedy of which these Seats might have been devoted leads to serious Results beyond a palpable Anomaly. An Anomaly of this Kind occurs when a State, however firm in its Opinion that given Individuals ought to serve it in its Representative Assembly, has no Power to return them if they have been outvoted by a single local Body at a General Election, and that upon an Issue joined not of Merit, but of Party.
  "10. Because before 1832 the State had the Power in question by a Medium it is not now desirable to call again into existence, the Opposition and the Government possessing at that Time the Means of bringing into Parliament distinguished Men whom the General Election had excluded by the Boroughs which each had at its Disposal. It is only, therefore, necessary that an important End which was gained for many Years by objectionable Means should be now secured by Means which are legitimate.
  "11. Because, whatever Means are now resorted to to invest the State with this necessary Power since the vacant Seats have been appropriated, such Means can only be applied by increasing the Number of the House of Commons beyond a point which is generally felt to be excessive. In order, therefore, to remove One Evil in our representative Arrangements, it becomes essential in some degree to aggravate another, a Dilemma into which States may be forced by various Events, but which it is against the Rules of Policy to choose and to create by doubtful Legislation.
  "12. Because among the Results of the Evil it has thus become more difficult to remedy, the State may be and has been in this Manner deprived of official Talent it requires, but which can only be exerted in conjunction with a Seat in Parliament. Beyond this, until the Country has the Power, after a General Election, of calling to its Repre-

  1845
  sentative Assembly those whom it deems erroneously excluded, Public Life must always be embraced with the Risk at any Moment of an arbitrary Exile, such as no other Career involves. It cannot, therefore, be embraced by Men whom Prudence governs, and whom the State would most desire to draw into its Service. In effect it is confined to the few whose Property or Family insure a permanent Connexion with a County or a Borough; and at every Change in the Reform Act these few are likely to become fewer.
  "13. Because, apart from the Public Wrong these vacant Seats might have been devoted to removing, a Bill which increases the Number of the County at the Expense of the Borough Members, and forms Constituencies open to none but Persons locally connected with them, in place of Constituencies at which all Public Men might equally be Candidates, appears retrograde in Character, and ought not to have been passed without a greater Show of Argument to vindicate it.
  "14. Because the Gift of Two Seats to the West Riding of Yorkshire, not to come into use until a Dissolution, is an uncalled for Sacrifice of the deliberative Freedom which might have otherwise employed them, and is no present Gain to the Locality it favours. The Right of Parliament to deal with these Two Seats without Fruit to any Interest or Place or Party is abandoned; and neither Precedent nor Policy imposed upon the Legislature the Duty of appropriating the Four Seats in One Measure, becoming vacant, as they did, at different Times, and under different Acts of Parliament.
  "STRATHEDEN AND CAMPBELL."
  House adjourned at a quarter before Seven o'clock, to Monday next, Two o'clock.