Lords Sitting of 19 April 1864

MINUTES.
PUBLIC BILLS—First Reading—Registration of County Voters (Ireland)* (No. 50); Common Law Procedure (Ireland) Act (1853) Amendment* (No. 51).
Second Reading — Land Securities Company; Improvement of Land Act 1864 (No. 36).
Committee—Union Relief Aid Acts Continuance * (No. 39); Land Drainage (Provisional Orders)* (No. 27).
Report — Punishment of Rape (No. 52); Union Relief Aid Acts Continuance * (No. 39); Land Drainage (Provisional Orders) * (No. 27).

BOMBARDMENT OF SONDERBORG.

  QUESTION.
  THE EARL OF MALMESBURY: I wish to ask the noble Earl the Secretary of State for Foreign Affairs, Whether he has received any explanation from the Prussian authorities with reference to the bombardment of Sönderborg? Every private letter I have seen, and every message, confirm the original reports of what had occurred and even tend to aggravate the atrocity of the act. It is said that the Prussians gave only a general notice, which, in fact, was no notice at all; and that, contrary to the usages of civilized nations, they did not give the twenty-four hours' notice to non-combatants to leave the town. The German papers put forward a statement that there were an arsenal and a place for the manufacture or store of arms at Sönderborg, and that that was the reason of the bombardment. That may have been so; but it is no reason for not giving the usual notice. And further, if it was deemed necessary to destroy the arsenals, at least they need not have destroyed the town and the hospitals, which last were destroyed in the earliest part of the bombardment. The sick and wounded had to be removed in the midst of the bombardment, and many perished in consequence. Such, at least, are the accounts that we have received. And not only this, but the shells which were used were not fire shells, such as are used for the purpose, but shells filled with the most terrible missiles for the destruction of human life. Now, my Lords, though I am opposed to the intervention of useless despatches and superfluous advice, still, in the present instance, I do not know why that course should not have been followed which is
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  common among the nations of Europe. I think it is the duty of Her Majesty's Government to state in most positive terms what the feeling of this country is respecting the conduct of the Prussian army—feelings which are clearly expressed in the sentiment that, although the Prussian troops may have obtained a great victory in Denmark, no success can wipe out the stain which the Prussian army has inflicted on its military reputation by their conduct at Sönderborg. I wish to ask the noble Earl whether he has received any reply to the despatch which he dispatched to Berlin asking an explanation of what has occurred?
  EARL RUSSELL: In reply to the noble Earl's Question, I have to state that I desired Her Majesty's Ambassador at Berlin to ascertain the facts if possible. Our Ambassador communicated privately with the Prussian Minister, not being able to go himself. No answer was given to the inquiry. The Prussian Minister said he was not well aware of the circumstances, and that it was not usual for a neutral Power to inquire as to the proceedings of belligerents. He promised, however, that if an official inquiry were made he would give an answer. I suppose the answer would be merely that Her Majesty's Government have no right to inquire in regard to the proceedings of the belligerents, and I have not directed any official communication to be made in the matter. A statement has appeared in the official, or, at least, semiofficial paper of Berlin, to the effect that three weeks before the bombardment some notice of it had been given. I can not be surprised at the expression of opinion by the noble Earl as to the conduct of the Prussian army in this matter. I cannot apply any other terms to the conduct of the Prussian army than those which the noble Earl has applied. It is astonishing that out of mere feelings of humanity they should not have given notice of what they were going to do, in order that the women and children might have been removed from the place before the bombardment began. If it was deemed a necessary operation of war, if the Prussians imagined, as they said, that the reserves of the Danish army were placed there, and that the town contained stores of arms and ammunition, it would not at all have interfered with their carrying out the bombardment, if they had given twenty-four hours' notice stating, that for the future Söuderborg would be

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  reckoned part of the Danish fortifications, and that they would hold themselves at liberty to bombard it. The bad element of the affair is that the lives of innocent women and children and other non-combatants were sacrificed, through the inexcusable proceedings of the Prussian commander. Had any official explanation been given by the Prussian Government, it should have been laid upon the table; but as the matter stands, this act must remain under the reprobation of civilized Europe.

DEPARTURE OF GENERAL GARIBALDI.

  OBSERTATIONS.
  THE EARL OF CLARENDON: My Lords, I wish to say a few words to your Lordships on a subject, concerning which it is due not only to the Emperor of the French, and to Her Majesty's Government, but, if I may take the liberty of saying so, to myself also, that there should be no misunderstanding. I refer to the reports respecting the departure of General Garibaldi, which have been very current in town this morning, and which have been embodied in an article in The Morning Star, from which I should like, with your Lordships' permission, to read an extract, A similar statement also appeared in The Daily News. The Star says—
  "The story was in every mouth, and it would be idle to affect any reticence on the subject. People asserted that a pressure had been brought to bear by the French Government, and that tins English Ministry, desirous to remove all cause of ill-feeling from the mind of an ally, had made a direct and personal appeal to Garibaldi to induce him to cut short his visit and leave the country. Any one who has time or inclination to read through the Paris correspondences of some foreign journals will find it often asserted of late that during Lord Clarendon's mission to Paris certain concessions were asked of the English Government, in the name of good feeling and cordial alliance. The rumour pervading London yesterday asserted that one of these concessions was to be made by inducing Garibaldi to cut short his visit, and leave England. We should be reluctant indeed to believe that any part of such a statement could be true. Nothing could be more ignoble on the part of either Government than such conduct as this report imputes. That the French Government could have had the weakness, the want of dignity, the want of common self-respect, to make such a request of our representative in Paris seems almost to surpass belief. That our Government could have condescended to listen to such a request, and to act upon it, ought to appear far less worthy of credit. Yet we have heard the statement vouched for as well founded by those whose authority removes any report sanctioned by them quite out of the range of the common every-day canard."
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  Now, my Lords, if there were any foundation for that report the strictures made on it would be well deserved; but I can assure your Lordships that neither directly nor indirectly from the Emperor of the French, or from any member of his Government, was any allusion made to me with respect to the cause of General Garibaldi's arrival in this country, or as to the probable duration of his stay here. I will not say that the subject was not mentioned, for it was adverted to by myself, and, describing the entry of General Garibaldi into London, and the enthusiasm with which he was received, I said that that enthusiasm was grounded on the circumstance of his having risen from the ranks of the people by the services he rendered to his country, and because he was brave and honest, and that similar scenes of enthusiasm would await him in whatever part of England he might visit. No one can be more unwilling than I am—because no one can be more aware than I am—of the inconvenience and impropriety of alluding to any communication with which I was honoured by the Emperor of the French; but I think I am not betraying any confidence when I state that the Emperor said he fully understood and entirely believed how such qualities as those went home to the hearts of the English and commanded their admiration. No question was put to me on the subject by the Emperor of the French; for he is too well acquainted with our Constitution and with the state of public opinion in this country to deem it necessary to make any inquiry that I must have considered as an affront. I had not heard the rumour, even, that Garibaldi was going to leave this country until this day, and I can say that the French Government has had no more to do with his departure than I have myself.
  Before I sit down, I will simply refer to another matter, stated in this newspaper, with respect to myself and to the effect that during my mission to Paris certain concessions were asked of the English Government. I think that it will be satisfactory to your Lordships and to the country to know that no concessions were asked by the French Government or the English Government, by the one of the other, I found that there existed on the part of the Emperor of the French the same desire as on the part of Her Majesty's Government, that on all important questions which may arise there should be a combination of action between the two Governments and the two countries, as far as was possible, without

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  compromise of the dignity or independence of either.

LAND SECURITIES COMPANY BILL.

  SECOND READING.
  THE DUKE OF MARYBOROUGH, in moving the second reading of this Bill, said, that the Land Securities Company was formed for making advances of money on real property to landowners or others for the purpose of making improvements on landed estates, or for effecting great public works, calculated to develop the value of the land. The company would be enabled to issue mortgage debentures, but not to any amount beyond the value of the securities they held.
  Moved, That the Bill be now read 2a.
  LORD REDESDALEobjected to the Motion, on the ground that this being a mere money-lending company, having no public object in view, it ought to be under the regulation of some general public law; so that all bodies having similar objects might be upon the same footing, and all know upon what principles to proceed. If several companies were to engage in the transactions which this company proposed to itself, the consequence would be that they would all be acting by private, not by public, rules. He did not see why any special privileges should be granted to this company, whether in regard to registration, stamps, or the power to pass their debentures from hand to hand like bank-notes without endorsement.
  THE LORD CHANCELLORsaid, he could not help thinking that the noble Lord had taken an erroneous view of this measure. The noble Lord appeared to think that it ought to be the subject of general legislation; but how could their Lordships legislate upon a matter until it had come into being? The noble Lord might as well have objected to the first Railway Bill that came before the House, and say that it ought not to pass until they had some general legislation on the subject of railways. The noble Lord also regarded this as a mere private speculation in regard to which there was no security. So far from objecting to this Bill, he looked upon it as the introduction of a series of measures which would greatly benefit the landed interest, by offering facilities for the raising of money and affording the means of ameliorating the position of the landowners. The Bill had passed a sifting investigation in the House of
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  Commons, and it might be made the model for future measures of a similar kind. He trusted that the Bill would not be strangled in its present stage. If it passed a second reading, he should propose to refer it to a Select Committee.
  LORD CRANWORTHsaid, that their Lordships were asked to give a second reading to a measure of which they knew nothing, but which the noble Lord (Lord Redesdale) who had had the opportunity of examining it, declared to be highly objectionable. If the Bill were to be debated and a division taken upon its second reading, their Lordships ought to have the same facilities as in the case of other measures, by having copies in their hands. It involved no disrespect to the noble Duke (the Duke of Marlborough) to say that no one could follow his statement conveniently. He suggested, and would move as an Amendment, that the second reading be postponed till that day week, to afford time for the Bill to be printed and circulated.
  EARL GREYsaid, that copies of the Bill were upon the table, though they had not been circulated. He thought it very desirable that the Bill should be read a second time that evening and referred to a Select Committee — if possible to the Same Committee as that which would investigate the measure originated by the noble and learned Lord upon the Woolsack—the Improvement of Land Act, 1864, which, if it was read a second time that evening, it was proposed should be referred to a Select Committee. The Bill now under consideration was one of great importance to the landed interest, and had it passed in the first instance he had no hesitation in declaring that it would have prevented particular companies from obtaining powers, many of which were very objectionable.
  THE EARL OF MALMESBURYsaid, a difficulty might arise in the attempt to carry out the noble Earl's suggestion, owing to the fact that this was a Private, and the Bill of the noble Lord on the Woolsack a Public Bill. If the Bill were sent to its own Select Committee, this would not prevent the other Bill from proceeding pari passu. He thought legislation was highly desirable, for the restrictions placed by the Legislature upon the owners of land, in its effort to benefit them, had put them in the position of men in armour, whose panoply was impenetrable to club or steel, but who were so encumbered by their own defences that they could not move.
  Amendment moved, to leave out ("now") and insert ("this Day Six Months.")— (Lord Redesdale.)
  EARL GRANVILLEsaid, the measure, if carefully handled, was sure to become a model Bill. He thought it would be better to read it a second time, and to refer it, not to the ordinary Committee, but to a Committee composed of the same Peers as those who would consider the Public Bill which had been referred to.
  THE DUKE OF MARLBOROUGH, on the part of the promoters, said, he was willing to adopt the course proposed, and to consent that the Bill should be referred to a Select Committee.
  LORD REDESDALEsaid, he was entirely in the hands of the House. He had merely done his duty in calling attention to a Bill involving a principle entirely novel. If properly dealt with in Committee, he did not see why the Bill should not be passed as one of a public character.
  LORD CRANWORTHthen withdrew his Amendment.
  Motion (by leave of the House) withdrawn: then the original Motion agreed to; Bill read 2a accordingly.

PUNISHMENT OF RAPE BILL.— [H.L.]

  (No. 22.) REPORT.
  Amendment reported (according to Order).
  THE EARL OF CARNARVONmoved the omission of the proviso at the end of the first clause, so as to make it a special clause in the Bill, and moved to insert a clause placing in the hands of the Judge the discretionary power of whipping where the offender was convicted of an intent to commit the crime. Their Lordships would doubtless remember that in Committee on the Bill a change was introduced, rendering it compulsory on the Judges to award the punishment of whipping where a person was convicted of the crime. He was anxious to leave the discretion, as far as possible, in the hands of the Judge, especially as in other respects the Judge must have that discretion, and would move the Amendment of which he had given notice.
  THE EARL OF HARROWBYsaid, the crime of committing rape was such a disgusting one, that, although it might generally be right to leave the amount of punishment to the discretion of the Judge, he would in cases of rape make whipping compulsory.
  THE LORD CHANCELLORsaid, that
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  since this subject was last under discussion he had made some inquiries with the view of ascertaining whether making the infliction of the punishment of flogging compulsory would be more likely to produce greater certainty of punishment, or to augment the disinclination of juries to convict in cases of this sort. He found that in the year 1862, 135 cases of rape were tried, out of which there were eighty acquittals—an unusually large proportion. He had also consulted the Judges upon the subject, and although he had not obtained answers from all of them, the opinions of the majority of those from whom he had heard were in favour of annexing this punishment to the existing one, provided its imposition should be left to the discretion of the Judge. They admitted that it was a fitting punishment, but felt that in cases in which there was any uncertainty about the charge, if the punishment were made compulsory it would increase the disinclination of the jury to find a verdict of guilty. Under these circumstances he should be glad to see the punishment made discretionary rather than compulsory.
  LORD WODEHOUSEthought that on the whole their Lordships would do wisely not to make the punishment compulsory. The other night he thought it would be desirable to make a distinction in the punishment for the committal of the crime and the attempt to commit; but now he was of opinion that it would be safer to leave the punishment in both cases to the discretion of the Judges.
  EARL GREYpointed out that the effect of the Amendment proposed to-night, taken with the Amendment made on the previous debate, would be to render the punishment compulsory when the offence was committed, but discretionary when the offence was not committed.
  THE EARL OF CARNARVONsaid, that so far as the Bill made the punishment compulsory that was not part of his Amendment. The Amendment simply went to make the punishment discretionary on the attempt to commit the crime.
  THE EARL OF DERBYsaid, that the last time the Bill was before the House, the clause was amended to make the punishment compulsory in the case of a conviction for an actual committal of the offence. His noble Friend now sought to leave the discretion with the Judges in the cases of attempt to commit the crime.
  LORD WODEHOUSEsaid, he would

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  rather see the clause restored to its former position, that the word "shall" should stand in the place of "may."
  EARL GREYsuggested that the House should now agree to the addition to the clause, and that on the next stage of the Bill the whole clause should be again considered, with a view of making the punishment of whipping discretionary and not compulsory in all cases.
  Amendment agreed to.
  Bill to be read 3a on Thursday, the 28th instant, and to be printed as amended. (No. 52.)

  IMPROVEMENT OF LAND ACT (1864) BILL— [BILL 36].—SECOND READING.
  Order of the Day for the Second Reading read.
  THE LORD CHANCELLOR, in moving the second reading of the Bill, said, it might be divided into two parts, the one of which embodied all the provisions which had been found most useful in the numerous Drainage Acts which had been already passed, and the purposes of which it was proposed by the Bill largely to extend. These Acts had hitherto applied only to the drainage of land, while it was clear that there were many other things equally important. The present Bill would, therefore, in the first place, facilitate the power both of borrowing money and applying it to the improvements for which it was meant to provide. The Bill was accompanied also by many greater securities than existed at present. The machinery was to be worked by the Inclosure Commissioners, and there was a safeguard introduced at the outset in the shape of the Report of an assistant Commissioner, to the effect that the proposed expenditure would tend to increase the annual value of the land to an extent more than equal to the interest of the money to be raised, the principle of the measure being that the land should be charged only with a terminable annuity in respect of the outlay. Thus, suppose the contemplated improvement was to be accomplished for £100,000, the Report of the assistant Commissioner must certify that the additional annual value of the land would exceed 5 per cent on the sum proposed to be expended. Then, after the work had been accomplished, and not till then, the Commissioners would deliver to the landowner a certificate entitling him to create a terminable annuity, charging the land with the repayment of the sum ex-
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  pended, with interest, the latter not to exceed 5 per cent, and the period to be not longer than twenty-five years. Other provisions in the Bill would enable a landowner to arrange with the tenants for an augmented rent in proportion to the improvements completed. A second and a more important division of the Bill was one which had its origin in the Report of the Committee which had been appointed last Session to inquire whether it was desirable that the power given to the landlords to charge their estates with terminable annuities, in order to raise money for drainage and building, should be so extended as to enable them to raise it on similar terms for the purpose of taking shares in railways passing through their properties. The conclusion at which the Committee arrived, was that it was quite possible to ascertain the augmented value to be derived by an estate from the construction of a railway through it, or so near it as to be readily accessible, at least with the same certainty as the improved value to be derived from drainage and building. It was, therefore, proposed by the Bill to apply the same machinery with regard to the construction of railways as the former part of it provided in the case of drainage and the other improvements enumerated. All that was necessary was that a Report should be obtained from the Assistant Commissioner, stating that the land would be benefited by the landowners' promoting the construction through it of a railway either in progress or about to be commenced, by subscribing or taking shares. Then he would be empowered to act as in the case of the other works to which he had alluded. The latter portion of the Bill conferring that power, was specially hedged in, however, by precautionary provisions. For instance, it was provided that the railway should be completed and opened for public use before any charge could be made upon the land, and then that the charge should be limited to the amount actually paid up. And it was specially set forth in order to facilitate the arrangements with the tenant, that the railway shares should be issued proportionately to the parties concerned; as, for example, if £2,000 were to be subscribed, and 2,000 shares issued, and the land was charged with a terminable annuity for twenty-five years of £100 a year, and suppose the tenant to have paid the augmented rate for three or four years, amounting to £200, he would be entitled to have an equal amount of certifi-

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  cates. The great object to be attained was the accuracy, certainty, and workability of the Bill; and as the subject required most careful consideration, if their Lordships would agree to read the Bill a second time, he should be prepared to move that it be referred to a Select Committee. Much yet required to be done to place the law in regard to tenants for life and tenants in remainder in a satisfactory condition. The result of the English system of the settlement of estates was that in a great many cases the successive possessors were never more than life tenants. The consequence of that state of things was, that these persons were deprived of the power to make such improvements as might be necessary from time to time to bring out the full value of their estates. It was only lately that a course of legislation had been entered on for the purposes of investing a tenant for life under proper control with the authority absolutely required for the successful management of the property. At the same time, while it was right that the tenant for life should be at liberty to make necessary improvements on the estates, it was a question whether the remainder-man should not have power to compel the tenant to perform that duty. For example, take the law as to waste. Actual or positive waste committed by a tenant for life exposes him to legal consequences; but that which was known to the law as permissive waste was a thing for which there was at present no remedy, and in regard to which the tenant in remainder had no redress against the tenant for life. Thus, the latter might allow buildings to fall into a mass of ruins, or let the land on such terms that the very marrow of the land might be extracted from it, and might leave it in this impoverished and desolate state to his successor, who would have no means of protection or redress. He hoped that the Select Committee would take care that, while the tenant for life obtained the advantages which the Bill proposed to give him, correlative duties should be imposed upon him. He had omitted previously to state that any person interested in land, and objecting to the exercise of the power of the Commissioners under this Bill, would have a summary and expeditious mode of appealing to the Court of Chancery.
  Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
  LORD BERNERSwas understood to express approbation of the Bill.
  THE MARQUESS OF BATHsaid, the law on this subject was at present in a very confused state, and the noble and learned Lord deserved credit for having brought it before the House. The most objectionable feature of the Bill was, in his opinion, in regard to the borrowing powers.
  Motion agreed to: Bill read 2a accordingly; and referred to a Select Committee. And on Thursday, the 21st inst., the Lords following were named of the Committee;—
  Ld. CHANCELLOR, Ld. PRESIDENT, Ld. PRIVY SEAL, D. MARLBOROUGH, M. BATH, E. DERBY, E. CARNARVON, E. MALMESBURY, E. ROMNEY, E. GREY, V. EVERSLEY, L. REDESDALE, L. PORTMAN, L. STANNEY of ALDERLEY, L. OVERSTONE, L. CRANWORTH, L. CHELMSFORD.
  And on Friday, April 22nd—
  THE EARL of BANDON, The Viscount HUTOHINSON, and The Lord PONSONBY added to the Select Committee.
  House adjourned at Seven o'clock, till To-morrow half past Ten o'clock.