Lords Sitting of 27 April 1863

MINUTES.
PUBLIC BILLS—Second Reading—London, &c. Dioceses [H.L.] (No. 68).
Committee—New Zealand Boundaries [H.L.] (No. 73); Offences (South Africa) [H.L.] (No. 74).
Report—Alkali Works Regulation [H.L.] (No. 77, 81); Local Government Act (1858) Amendment (No. 78).
Third Reading—Office of Secretary at War Abolition (No. 71), and passed; Dockyards Protection Act Amendment [H.L.] (No. 66), and passed.

PRIVATE BILLS.
On the Motion of Lord REDESDALE, Standing Order No. 189, Section 14, considered (according to Order), and amended, as follows:—
14. In every Railway Bill in which new Works are authorized, the Committee shall make Provision for ensuring the Completion of the Line of Railway by impounding the Deposit, or by providing that after the Expiration of a Period to be limited by such Bill, not exceeding Five Years from the passing of the Act in the Case of a new Line, and Three Years in case of the Extension of Time for completing any Line, the Company shall be liable to a Penalty to be fixed in the Bill, which shall not be less than Twenty Pounds and shall not exceed Fifty Pounds per Day, to be recoverable as a Debt due to the Crown, for every Day after the Period so limited, until such Line shall be completed and open for public Traffic; but no Penalty shall accrue in respect of any Time during which it shall appear, by a Certificate to be obtained from the Board of Trade, that the Company was prevented from completing or opening such Line by unforeseen Accident or Circumstances beyond their Control, but the want of sufficient Funds shall not be held to be a Circumstance beyond their Control.

UNITED STATES—SEIZURE OF BRITISH VESSELS WITH MAIL-BAGS.

  EXPLANATION.
  EARL RUSSELL: My Lords, you will expect me, no doubt, to answer the questions which were put to me on Friday night; but what I have to say will, I think, convince your Lordships it is not desirable that at this time I should state the opinion which I have received from the Law Officers of the Crown. On referring to the papers already presented to Parliament—to the Parliamentary Papers, "North America, No 5"—your Lordships will see that a good deal of correspondence passed subsequently to the 8th of August. The letter written on the 8th of August is, in fact, continued by that correspondence. I wrote afterwards to Mr. Stuart, on the 27th August, to the following effect:—
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  "I have at present only to observe that the orders for the future guidance of the United States officers, as stated in Mr. Seward's letter to the Secretary of the Navy of the 8th inst., appear to be satisfactory, and ought to suffice."
  And on the 10th of October I made a further communication to the same gentleman. It is not necessary to trouble your Lordships with the whole of the last mentioned despatch. Part of it has already been presented to Parliament; but the despatch, after the passages published in the printed papers, goes on to say—
  "Her Majesty's Government are glad to find from your despatch of the 12th of August last that the orders originally given to American cruisers in regard to interference with neutral vessels have been rescinded. If these orders had been sanctioned and continued in force by the Government of the United States, they would have called for prompt and firm remonstrance on the part of Her Majesty's Government, and it will be proper that you should intimate to Mr. Seward, while expressing the satisfaction of Her Majesty's Government at their revocation, that Her Majesty's Government are glad to be thereby spared from the necessity of stating their decided objections to their tenour. You will say that to order vessels, though apparently and primâ facie carrying on a lawful trade, to be systematically seized on the high seas, without any preliminary search, or without the discovery during such search of any strong evidence of suspicion against such vessels, would be to subject the mercantile marine of neutrals to a system of oppression and annoyance which no neutral Government could be expected to tolerate. The unjust seizure under urgent circumstances of a neutral vessel may be considered as one of the occasional burdens which a state of war may impose upon a neutral, and it may be partially compensated by the condemnation of the captor in costs or in costs and damages; but the indiscriminate and general seizure of merchant vessels, without previous search, converts an occasional exception into an intolerable rule. The question which has arisen in this case as to the seizure of Her Majesty's mails on board the Adela, while it forms a new and very important clement in this case, deserving very grave consideration, raises a point of some delicacy and difficulty. Her Majesty's Government cannot doubt that the Government of the United States are prepared to concede that all-mail bags, clearly certified to be such, shall be exempt from seizure or visitation, and that some arrangement shall be made for immediately forwarding such bags to their destination in the event of the ship which carries them being detained. If this is done, the necessity for discussing the claim, as a matter of strict right, that Her Majesty's mails on board a private vessel should be exempted from visitation or detention, might be avoided; and it is therefore desirable that you should ascertain from Mr. Seward whether the Government of the United States admits the principle that Her Majesty's mail-bags shall neither be searched nor detained."
  On the 4th November, Mr. Stuart wrote to say that he had read it to Mr. Seward, who was ready to admit the principle therein laid down with regard to the seizure of

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  mail-bags. That there might be no misunderstanding on the subject, arising out of unofficial communications, it was agreed that special instructions should be issued. Accordingly, on the 31st of October, Mr. Seward addressed the following letter to Mr. Welles:—
  "Department of State, Washington,
  October 31, 1862.
  "Sir,—It is thought expedient that instructions be given to the blockading and naval officers, that in case of capture of merchant vessels suspected or found to be vessels of the insurgents or contraband, the public mails of any friendly or neutral Power, duly certified and authenticated as such, shall not be searched or opened, but be put, as speedily as may be convenient, on their way to their designated destinations. This instruction, however, will not be deemed to protect simulated mail-bags, verified by forged certificates or counterfeited seals.—I have, &c.,
  "WILLIAM H. SEWARD."
  Those were the instructions given to American naval officers, and no question arose with respect to them until the other day, I have just received the account of the preliminary proceedings in connection with that transaction. On the 4th of April, Mr. Archibald, Her Majesty's Consul at New York, was summoned to attend the Prize Commission in regard to the peterhoff, which had been captured, as the House is aware, by the United States cruisers. On arriving at the office, Mr. Archibald was shown the mail-bag taken from the vessel, which was under the seal of Her Majesty's Postmaster General. Mr. Archibald protested against that seal being broken and the bag examined, and required that it should be sent forward to its destination. The United States officers, however, insisted that the bag should be opened, and that was accordingly done. The bag was found to contain several packages addressed to Matamoras. Nothing more took place on this occasion; and Mr. Archibald reported the matter to Lord Lyons. Lord Lyons immediately applied to Mr. Seward, and stated that the proceeding in question was in violation of the letter of the 31st of October, upon which he relied for the security of mails of this description certified and authenticated by Her Majesty's Postmaster General. Mr. Seward did not pay immediate attention to this remonstrance, but said the subject would require consideration. Subsequently, Mr. Archibald was again desired to attend the prize court, and was there informed by the counsel for the United States that it had been resolved to open the packages found in the mail-bag. The Prize Commissioners requested
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  Mr. Archibald to take, if he should think proper—indeed I believe, they asked him in the first instance to open—the packages, in order to ascertain what were bonâ fide letters, which should be forwarded to their destination, and what were papers referring to the cargo, which should be handed over to the prize court. Mr. Archibald, however, declined to be a party to such a course. If the court chose to order the packages to be opened, he said he would be present as a witness of the transaction, but could not approve or give any sanction to it. Upon this declaration the proceedings seem to have been suspended, and the opening of the packages was deferred. Mr. Archibald at once reported the matter to Lord Lyons. Lord Lyons went to Mr. Seward, and pointed out that, in accordance with the Order of the 31st of October, the letters ought to be replaced in the mail-bag, and forwarded to their destination. According to the latest intelligence which I have received, a telegram had been sent to the prize court, directing that the packages were not to be opened until further orders, but the Government of the United States had not come to any definite determination on the subject. These are the facts of the case as they at present stand. Seeing how very important the question is—seeing that the opinion of the Law Officers of the Crown must, of course, be very carefully weighed by Her Majesty's Government before any steps are taken—seeing that instructions will be sent out probably by the next mail, but that in the mean time fresh information may arrive which may quite alter the complexion of the affair—under these circumstances, I have to press for the indulgence of your Lordships in forbearing, for the present, to press for the production of the opinions of the Law Officers of the Crown; but to leave the question for the present in the hands of Her Majesty's Government.
  THE MARQUESS OF CLANRICARDEsaid, no one could approve more than he did the discretion which the Government had exercised in postponing for the present the publication of the opinion of the Law Officers. He was also glad that the noble Earl had called attention to the agreement of the 31st of October as to the security of the mails. On the 11th of the present month the owners of the Sea Queen, in addressing an inquiry to the Government as to the amount of protection which would be afforded to the mails, referred to the dictum of an American Judge, to the effect

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  that mail letters found on board a British ship could legally be opened in order to ascertain the character of the ship. Now, seeing that by the letter of October last that contention was waived on the part of the United States Government, it would have been courteous in the noble Earl, or in the noble Lord the Postmaster General, to have stated the understanding now in force. He wished to know what steps had been taken by Her Majesty's Government to obtain correct reports of the proceedings of the American prize courts. It was clearly of great importance that they should know whether there was any conflict of law between the prize courts and the United States Government. He understood that a number of ships had been seized, some of them as far back as fifteen months ago, and had been taken into port, but had not yet been brought before the prize court. The reason of that delay was believed by the owners to be the want of evidence against the vessels; but from whatever cause it occurred it was most unjustifiable.
  EARL RUSSELLsaid, he was not sure that complete reports of all the proceedings of the prize courts could be obtained; but he would take care to remind the British Minister in the United States of the importance of transmitting them whenever possible.

CHARGING OF ENTAILED ESTATES FOR RAILWAYS.

  REPORT OF THE SELECT COMMITTEE.
  LORD REDESDALErose to call the attention of the House to the Report from the Select Committee on Charging of Entailed Estates for Railways [Parl P. No. 80], and to the Evidence given before that Committee. The noble Lord, who was very imperfectly heard, was understood to point to several recommendations of the Report, as showing the difficulty of dealing with the subject by legislation. Lord St. Leonards, who was unable to attend in his place that evening, had written to him to say that nothing could be more objectionable than the scheme which the Committee had recommended. He (Lord Redesdale) had not put himself in opposition to the Report of the Committee; he had done all in his power to see it carried out, and he would continue to do so. But his recommendation would be, that nothing more should be done until the House should be prepared to pass
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  some well-considered public Bill on the subject.
  EARL GREYsaid, it had been clearly proved, before the Select Committee, that the formation of the railway about which this particular question arose was as certain to improve the land in its neighbourhood as drainage, buildings, or any other works; and there was no more difficulty in ascertaining the improved value of land arising from the construction of a railway, than there was in estimating the effect of any other improvements. It had been also clearly proved that there was very great difficulty in obtaining capital for the construction of this railway without the assistance of the landowners; and though some landowners were able to take shares to a large amount, many wore not in a situation to do so unless they were enabled to raise money for that purpose upon their estates. The conclusions of the Committee were unanimous, and derived additional weight from the fact that the Committee was composed of noble Lords who had had great experience in similar matters.
  LORD EGERTON OF TATTONsaid, that great doubts were entertained by Mr. Derby, the Commissioner for Drainage Works, whether it was practicable to fix the additional value given to estates by railways running through them; and if legislative powers were given, they should be clearly defined in a separate Bill brought in for that purpose; and that it should not be left to each separate Railway Bill to insert clauses, differing from each other in each case; and that the powers of each general Act should be inserted in each particular measure, in the same manner as the Land Clauses Act is applied.
  LORD STANLEY OF ALDERLEYthought, in respect of the particular measure which had given rise to this inquiry, as considerable expense had been incurred by the promoters of this Bill, and the evidence was favourable, it would not be unreasonable to allow the measure to proceed to a second reading. It might then be left to the Select Committee which had considered this subject, to say whether the provisions were sufficient to secure that no injury would be done to existing or future rights.
  LORD RAVENSWORTHconsidered that it would be a dangerous precedent to introduce into a Private Bill a principle which it might prove would not be desirable for general adoption.
  THE EARL OF BANDONwould warn their Lordships, from the experience he had had in Ireland, that unless some definite rules were laid down, numberless Bills would be brought in by landed proprietors next Session asking permission to encumber their estates for the objects proposed. At the same time, he was rather in favour of the principle proposed to be introduced into the present Bill.
  LORD WODEHOUSEsaid, that no doubt in passing a Private Bill with a provision of this kind they would be sanctioning a general principle; and therefore they ought to do it with their eyes open. He admitted he did not see how it would be possible to refuse the introduction of similar Bills if this measure were agreed to. He thought it could not be disputed that a railway would in most cases confer a great benefit upon the property through which it passed; but the essential point was, that there should be security that the owners should receive in increased rents as much as would be sufficient to pay off the money advanced to the railway company. They had already sanctioned this principle in the case of drainage and buildings, and an improvement such as a railway was, in fact, even more permanent, except in the case of a railway not being worked, which, though just possible, was very unlikely. He argued, however, that it would be better that a general measure should be introduced.
  THE EARL OF AIRLIEsaid, there could be no question of the value to a particular district of railway communication, but he thought it was to be regretted that the Committee had not more largely considered what guarantees ought to be taken for the efficient working of the lines after they had been opened. That appeared to be the weak part of the scheme, and the evidence with regard to it was meagre and unsatisfactory, It was often the policy of large lines to stifle instead of facilitate short landowners' lines running into theirs, either because they brought too small a profit to the main line, or else in the hope of purchasing the branch on easy terms. Sometimes, too, a portion of the stock was issued on the express condition that the holders should not be called on to pay for their shares, the object being to comply with the Act of Parliament and bring into play the borrowing powers, which could not be exercised till two-thirds of the shares had been taken. By this means the line became hampered with a large amount of debt. He hoped, therefore,
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  that if any general measure were introduced, care would be taken, not only to insure prudence in the construction of lines, but their efficient working afterwards.
  EARL GRANVILLEthought that it would be desirable that steps should be taken to obtain a decision of their Lordships' House upon this subject, but that no good would result from continuing a discussion by which that object would not be attained.
  LORD REDESDALEwished to urge upon their Lordships the importance of not allowing powers, such as had been referred to, to be introduced in any Private Bill; for if they did, they might depend upon it that they would not obtain public legislation upon it. If such power were granted to one Company this Session, they would have fifty applications for similar powers next year; and if it were found that they could go on in this way, there would be no public legislation, and a crude and bad system would grow up. On the other hand, if they refused to grant powers by Private Bills, there would be a probability of their passing a Public Act, which was a thing much to be desired. If the noble Earl (Earl Granville) wished it, he (Lord Redesdale) would himself bring the matter definitely before the House—probably by way of Resolution.

ALKALI WORKS REGULATION BILL [H.L.]

  (No. 77.) REPORT.
  Amendments reported (according to Order).
  Clause 4 (Conduct of Alkali Works).
  LORD STANLEY OF ALDERLEY LORD STANLEY OF ALDERLEY moved the insertion in Clause 4 of words providing that in respect of every offence after a previous conviction, the owner shall be subject to a penalty not exceeding £100.
  THE EARL OF DERBYsaid, that he should have liked to see the minimum ns well as the maximum amount of penalty fixed by the Bill; but as the noble Lord bad done so much to meet his wishes, lie should offer no opposition to the form of the Amendment.
  Amendment agreed to; Words inserted.
  Further Amendments made; Bill to be read 3a To-morrow.
  Bill as amended on Report (No. 81).
  House adjourned at a quarter before Seven o'clock, till To-morrow, a quarter before Five o'clock.