Lords Sitting of 22 April 1864

MINUTES.
PUBLIC BILLS — First Reading— High Court at Bombay * (No. 57); Sentences of Death [H.L.] (No. 58).
Second Reading — The Consolidated Fund (£15,000,000)* (No. 54).
Select Committee—On Improvement of Land Act 1864, The Earl of Bandon, The Viscount Hutchinson, and The Lord Ponsonby added.

SENTENCES OF DEATH BILL.

  BILL PRESENTED. FIRST READING.
  THE EARL OF ELLENBOROUGH presented a Bill to regulate the Mode of Proceeding in Cases of Sentences of Death. The noble Earl said that recent events had shown it to be most desirable, that the law relating to the infliction of capital punishment should be placed upon a more satisfactory basis. It seemed to him to be necessary that the greatest weight and authority should be given to the ultimate decision as to the carrying out the sentence, whatever the sentence might be. It seemed most inexpedient that the final decision in cases of so much importance should be cast upon the sole responsibility of the Home Secretary, and that where the life of any man was concerned it should depend upon the peculiar views or temperament of any particular man. In endeavouring to put an end to the evils of the present practice, and to establish more confidence than was now placed in the decision finally arrived at, he had only to recall his own experience; and though the course he had to propose to their Lordships had not much of the merit yet it had not the inconvenience of novelty. Looking back to his own official experience, extending back a period of more than thirty-five years, he remembered when the Recorder of the City of London presented his report of the capital cases for the decision of Government. In these cases all the principal Members of the Government, with the addition of the Lord Chief Justice of the King's Bench, were summoned to attend the King, who presided on the occasion, and took part in the discussion. He knew that his late Majesty George the Fourth regarded this duty as one of the most important that he had to discharge. He had no recollection that in those days, under any circumstances, distrust was manifested concerning the decisions arrived at. On the contrary,
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  they appeared to give general satisfaction. This course of proceeding continued until the accession of Her present Majesty. It was then deemed advisable—and he did not dispute the expediency—that a youthful female sovereign should not be present to adjudicate concerning certain crimes then capitally punishable. He remembered sitting beside the Duke of Wellington when a Bill giving effect to those views was introduced into that House, and though the noble Duke admitted the necessity of the alteration at the commencement of a female reign, yet he deeply regretted the necessity for a change in the course of procedure which had existed for so many years. The penalty of death no longer attached to certain of these crimes, which it was then deemed improper to bring under the notice of a youthful Queen, and that reason for the new system therefore no longer existed. At the same time, he did not propose to place any additional burden on Her Majesty; but, recollecting the value of the solemn proceeding of the Sovereign in Council with regard to decisions or sentences of death, he thought it desirable that it should be revived, with the condition that the presence of the Sovereign should not be insisted upon. His Bill therefore proposed that the final decision upon cases where the life of a subject was concerned should rest with a body of persons selected from the Privy Council, together with the Chief Justice of the Queen's Bench, and not as at present with the Home Secretary alone. The Bill, therefore, to some extent, proceeded upon a revival of the ancient practice to which he had referred. If the principle of the Bill met with approval, he trusted the Government would adopt it, for he felt it was more appropriate that the responsibility of such a measure should rest on them than on an individual peer. If, on the other hand, the Government would not accept the Bill, he hoped that at the earliest opportunity they would submit some proposal of their own on the subject, better than that he now tendered. He was satisfied that the practice of the law ought to be amended, so that the utmost authority and weight should attached decisions in regard to capital sentences, and that the whole responsibility should not be thrown on the Home Secretary alone. Unless the country was made to understand that entire confidence could be placed in the decisions on these questions,

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  there would be some danger of our being forced to abandon a punishment which he believed to be necessary to the interests of society.
  Bill read 1a; and to be printed, (No. 58).

ENGLISH AND IRISH COURTS OF COM MON LAW AND CHANCERY COMMIS SION.—OBSERVATIONS.

  QUESTION.
  THE MARQUESS OF CLANRICARDErose to call Attention to the First Report of the Commissioners of Inquiry into the English and Irish Courts of Common Law and Chancery; and to ask, Whether the Government intend to introduce Bills in accordance with the Recommendations of that Report during the present Session of Parliament: also, whether a further Report of the Commissioners is likely to be presented soon: and when we may expect to have the Irish Judicial Statistics? The noble Marquess said, their Lordships were aware that notice was given last year by his right hon. and learned Friend the Attorney General for Ireland of a Bill to carry out the recommendations of the Commissioners with respect to the Common Law Courts in Ireland. It was subsequently withdrawn; but he had no doubt it would be carried through this Session, and that a similar course would be taken with respect to the Irish Courts of Chancery. The Report to which he referred had been considerably misrepresented in Ireland, and so had the objects of the Motion which he had made on the subject, and therefore he wished to address a few-words to the House in explanation. It had caused him no regret to find that the Commissioners recommended that there should be no diminution in the number of the Irish Judges. He was, however, astonished at the great importance attached to that part of the Report by a certain portion of the Irish Bar, for he attached but very little to it himself. He did not care whether the number of the Judges was to be twelve, fifteen, or twenty-five, but he did care for the saving of the money of the suitors, and for the improvement in the practice of the Courts of Law of the United Kingdom. It was not because the Report contained anything new or original that he considered it valuable. Indeed, one of its great merits was, that it recommended nothing which had not been approved by former Commissions and by
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  the highest authorities that had inquired into the subject. One of his complaints had been that the alterations which had been, introduced in the Irish Courts were founded upon the opinion—he might call it the crotchet—of an individual; whereas in England an entirely different course was taken, and the Reforms there introduced were the result of ample inquiry. The Commissioners appointed in 1851 in England reported—
  "It seems to us that the combination of the writ and declaration together would lead to greater expense than is at present incurred. It would render a declaration necessary in every case, while we have seen in one-half the actions actually commenced no declaration is prepared or required."
  And yet in the teeth of that Report a Bill was introduced, in 1853 and an Act passed which made summons and plaint combined the foundation of every action at common law in Ireland. Their Lordships would not be surprised to hear that one of the strongest recommendations of the Commissioners was that the provisions of the law in England on that point should be extended to Ireland. All the changes which they recommended had the character of assimilating the laws of the two countries, the changes which had been recognized in this country as improvements being recommended to be extended to Ireland, while a few alterations in English practice in accordance with the practice in Ireland were suggested, especially in some minute details where the Irish practice was beneficial. The case with regard to the Courts of Chancery was infinitely stronger The Commissioners said at page 23—
  "In November, 1851, a Commission was issued to inquire into the Irish Incumbered Estates Court, and whether its powers should be transferred to the Court of Chancery, and by their Report the Commissioners recommended that the office of Master in Chancery in Ireland should be abolished, one Master being retained for the management of the business of receivers and for auditing certain public accounts under statutes provided for that duty. They also stated their opinion that it would be for the interest of the public and of the profession that the practice of the English and Irish Courts of Chancery should be assimilated as closely as circumstances would permit, so that the decisions of each should be applicable to both, and thus tend to establish a uniform system of equity in the two countries. We have come to a unanimous resolution in favour of this assimilation. We think it is of paramount importance to restore and preserve as far as possible an uniformity of system in the equity jurisprudence of the two countries."

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  Again, at page 24, on the general question of assimilation of equity practice and procedure, and the changes connected with it, they said—
  "We are of opinion that the practice and procedure of the Court of Chancery of England are generally to be preferred to the practice and procedure of the Court of Chancery in Ireland."
  The Lord Chancellor of Ireland now was the Lord Chancellor of Ireland ten years ago when the Report of the Commission of 1854 was drawn up, and one of the names signed to it was Chancellor Brady. He hoped, therefore, he should receive an assurance that in the present case the Report of the Commissioners would not be allowed to remain a dead letter. The Master of the Rolls, one of the highest authorities upon the matter in Ireland, was the only person that made any objection whatever. The Commissioners said—
  "The Master of the Rolls in Ireland, in the paper which he submitted to us, indicates only one objection to his undertaking the carrying out of the share of a new system of Chancery practice which would, under our recommendations, devolve on any new holder of that office. He objects to work out the arrears of business now in the office of any of the Masters."
  Their Lordships were aware that it had been shown that the Chancery business in Ireland was not one-fifteenth of the business in England, and yet so full of arrears was the Court that the Master of the Rolls suggested the great difficulty of altering the system to be the working out of the arrears. The noble Marquess concluded by putting his Question.
  EARL GRANVILLEsaid, he was glad to hear the noble Marquess speak in such high terms of the Report of the Commissioners, because the measure proposed by the Government had for its object to carry out the recommendations embodied in that Report, and he rather thought the Attorney General for Ireland had already given notice in the other House of his intention to bring in the Bill. With regard to the Judicial Statistics, part of the Return had been, already made; but this being the first year of their preparation, there had been some delay with regard to some portions of them. Those received, however, had been arranged and digested, and there was hardly any doubt that they would be published about the middle of June, very nearly at the same time that the English Judicial Statistics appeared.

METROPOLITAN RAILWAYS.— WORKING CLASS TRAINS.

  RESOLUTION.
  THE EARL OF DERBYsaid, the attention of their Lordships had been so often called by himself and others to the great amount of distress and suffering entailed upon the middle and lower classes of the metropolis by the extensive displacements consequent on public improvements and railway enterprise, that in introducing the Motion of which he had given notice he should only think it necessary to trouble their Lordships with very few observations. A further inducement to brevity presented itself, as from communications held with the noble Lord the Postmaster General on the part of the Board of Trade, and the noble Lord the Chairman of Committees, he believed they both concurred in the appropriateness of the remedy he proposed to apply. There were certain classes of the metropolis who suffered peculiarly from these displacements, to whom nevertheless no compensation could be given. Small tradesmen and shop-keepers, for instance, being removed from the positions they had long occupied, were frequently unable to find in the neighbourhood any place suitable for the purposes of their business, and were, therefore, obliged to break up their connection and sacrifice their trade prospects. Workmen and artisans, again, were dependent for their daily bread upon proximity to the scene of their labours; and in taking steps to diminish the inconvenience under which they laboured it might even be possible to extend to them some other advantages. In these days nearness did not depend merely upon distance between one place and another; the time occupied in the transit and the convenience of the journey entered largely into the calculation. On a recent occasion he had presented a petition from one of the large parishes of London, praying that all new Railway Companies should be compelled to make provision for the labouring people who were displaced by the removal of their houses for the construction of the railways; and for this purpose they prayed the House to pass a measure causing all railways having termini in London to run at least one train morning and evening, bringing persons into town in time for their work, and taking them back again upon its completion at such rates as would enable them to live in the country and yet to attend to their work

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  in town. The expenses of such a journey would be repaid to the working classes by the difference between the cost of lodgings in the country and in town; their families would enjoy the almost inestimable advantage of pure air contrasted with that which they had to breathe in crowded rooms in London, and workmen themselves would at any rate be able to sleep out of town and to spend Sunday and a good portion of Saturday there, a boon which the better classes so greatly enjoyed. Inconveniences were inseparable from suburban residence, but in this case he believed they would be more than balanced by the advantages attendant on the plan. On a former occasion he mentioned to their Lordships that the London, Chatham, and Dover Railway— a line which seemed to run from everywhere to anywhere — had voluntarily adopted the principle embodied in his Motion, and had consented to a clause pledging themselves to run trains morning and evening at no higher charge than 1s. per week, being at the rate of 1d. per journey. He was not then aware that a direct precedent existed for the plan he was about to submit; and, as it was rather difficult to lay down precise rules on such a subject in a Resolution of a general character, he proposed to refer, by way of example, to the Act passed in 1861, in which the principle was recognized. That Act had reference to the North London Railway, and was entitled the 24 & 25 Vict. c. 196, s. 45. The Companies were at all times after the passing of the Act, Sundays, Christmas Days, and Good Fridays alone excepted, to run a train every morning and evening between Liverpool Street and Kingsland, not later than seven a.m., or earlier than six p.m., at such hours as might prove most convenient to the working classes, and at prices not exceeding one penny per passage for each journey. And the Act very judiciously provided that, in case of any complaint being made of the want of proper facilities, the Board of Trade from time to time; should have power to fix and regulate the hours of starting. There was a further provision, which was only a matter of justice to the railway company, and if for a continuous period of a certain duration the railway authorities should be able to show that less than 100 passengers on an average had been conveyed by such trains, the company, on proof of that fact to the satisfaction of the Board, might obtain
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  their assent to discontinue the trains; but the Board were to be at liberty to order their resumption whenever they thought proper. Such a clause as that introduced into every Metropolitan Railway Bill would accomplish the object which he had in view. He, therefore, asked the House to pass a Sessional Order requiring that it should be an instruction to the Committee on every Bill providing for the construction of any new railway within the metropolis; and this their Lordships would see applied as well to the extensions of existing railways as to novel undertakings, to insert in the Bill provisions analogous to those contained in the North London Railway Act, 24 & 25 Vict. c. 196, s. 45, for the purpose of securing to the labouring classes a cheap transit to and from their labour by a morning and evening train, with such modifications as may appear to be required by the circumstances of each case. That Resolution laid down a principle which should guide the Committee, and the Committee would be able to specify within what limits, and to what distances, it would be for the public convenience that the regulations affecting these trains should extend. He hoped that in the end this proposal would not prove disadvantageous to the railway companies; but even if it entailed upon them some degree of loss, the sacrifice was not too great to require at their hands, seeing what immense sacrifices had been imposed for their convenience upon large classes in the metropolis having no power to protect themselves. The noble Earl concluded by moving a Resolution.
  Resolved,
  That it be an Instruction to the Committee on every Railway Bill providing for the Construction of any new Railway within the Metropolis to insert in the Bill Provisions analogous to those contained in the North London Railway Act, 24 & 25 Vict. c. 196, s. 45, for the Purpose of securing to the Labouring Classes a cheap Transit to and from their Labour by a Morning and Evening Train, with such Modifications as may appear to be required by the Circumstances of each Case.— (The Earl of Derby.)
  LORD STANLEY OF ALDERLEYsaid, that when the intention of the noble Earl was made known to him, he communicated with the Board of Trade, and was informed that they had no objection to the proposal. He thought it very desirable that the principle should be made to apply to extensions of existing lines, as well as to new lines coming into the metropolis, otherwise it would be practically inoperative, inasmuch

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  as he thought it very improbable that many new lines would seek for power to enter London. It was extremely important that these provisions should be placed under the supervision of the Board of Trade, both in regard to the hours of the trains and the power to discontinue them under certain circumstances. He had heard that the inconvenience represented by the noble Earl had been felt to some extent in Paris, and that provision had been made for securing to the labouring class the means of cheap access to the city, and had been found to work exceedingly well.
  THE EARL OF ELLENBOROUGHsaid, that the working man usually began his day's work at six, and it would be necessary the train should run at an hour which would enable him to be at his work at the usual time.
  THE EARL OF DERBYsaid, it would be better to leave the regulation of the hours to the Board of Trade.
  EARL GREYthought that the arrangement ought to be carried into effect on metropolitan lines, even if they did not come to Parliament for an extension of powers.
  THE EARL OF SHAFTESBURYagreed as to the desirability of the morning and evening trains proposed by the noble Earl, but the great difficulty they had to contend with in the matter was in providing residences. At present, there were no residences suited to this class of the community in close proximity to railway stations, but the Society for Improving the Dwellings of the Labouring Classes had under their consideration plans for building large blocks of model houses suited to their wants. The difficulty was not so much in the cost of the land or the erection of the houses, as in the objection raised by the labouring people themselves. Their Lordships knew that the metropolis was grievously over-crowded, and he could not see how the evil was to be effectually encountered. There was an immigration of 60,000 into London every year, which largely increased the evil. When the more provident families now living in the metropolis were asked whether they would like to reside in these model buildings out of town, they objected, for this reason— that some members of their families went out as charwomen, and others to nurse the children of persons superior in position to themselves; if, however, they went down the line to live in these houses, they would all be on the same level, and they would
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  lose many opportunities of making up their wages which they now enjoyed. These were the objections raised by almost every woman in the humbler ranks to whom he had spoken on this subject. It was, however, most desirable that the present experiment should be made. The 60,000 persons who immigrated into London had not yet formed the connections which those long resident in the metropolis had made, and it would be a great inducement to them to stop at some of these villages on the line of railway if they could find good house accommodation and railway facilities for going to and from their work. It would be necessary, he thought, to have two morning and two evening trains. A working man might be too late for his morning train, and if there were no chance of getting another, he would not be able to get to his day's work, and would lose his day's wages. The experiment was very well worth trying, and he trusted that all who could help in providing good house accommodation, either in single houses or blocks of houses, would come forward and assist in the work.
  Motion agreed to.

RETIREMENT OF NAVAL CAPTAINS.

  OBSERVATIONS.
  LORD CHELMSFORDrose to call the attention of the First Lord of the Admiralty to the Effect of the Order in Council of the 1st of August, 1860, upon those Naval Captains who did not become Applicants for the Retirements offered by the Orders in Council of the 1st of September, 1846, and 25th of June, 1851. He was desirous of calling public attention to what he considered an act of great injustice inflicted by the Admiralty upon these naval officers, to whom all redress had been refused. He was glad to hear from a right hon. Friend of his fully acquainted with the subject, that it was likely to come under the notice of the other House of Parliament in the course of a few days. Captains on half-pay were entitled to different rates of pay, according to their standing on the List— the first seventy received 14 s. 6d. a day, the next hundred, 12 s. 6d. a day, and the remainder 10 s. 6d. a day. Inducements from time to time were held out to officers to retire, and with this object the Orders in Council of 1846 and 1851 were passed. The Order in Council of 1846 offered to those who received 12 s. 6d. and

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  10 s. 6d., an addition of 7s. 6d. to their pay on retiring, thus making up their incomes to 18s. and 20s. a day respectively. They were to advance to the rank of Bear Admiral, as though they were on active service, but they would be placed on a retired list, which was to consist of one hundred, the first twenty-five of whom would receive 25s. a day, but none of the others were to advance to that amount until the list was reduced below twenty-five. These Orders in Council left it optional to the captains whether they would accept the retirement, or remain on the active list, Several officers refused the retirement of 1851, and preferred remaining on the active list. They had a perfect right to choose for themselves, and by the exercise of their choice they acquired a vested right to advance ultimately to the rank of Reserved Rear Admiral, with a pay of 25s. a day. Under these circumstances, in the year 1860 a new Order in Council was issued, providing for the retirement of officers, giving them no option, but making it compulsory that all officers who had not served the proper time in their rank, and had arrived at the age of sixty, should be placed upon the retired list with half-pay, which would never exceed 20s. a day. That was a gross injustice, and a direct interference with the vested rights of the officers who had made their choice, and were entitled to receive all the advantages which had been promised to them. Under this Order in Council, nine of the captains who refused to accept retirement in 1851 had been forced upon this retired list. Their Lordships would naturally be anxious to hear what arguments were put forward to justify so arbitrary an act, and fortunately they had an opportunity of becoming acquainted with them. The noble Duke the First Lord of the Admiralty was examined on this subject by the Select Committee for inquiring into Naval Promotion and Retirement, and he said—
  "The officers have benefited by the reductions. They have gained promotion by them, and obtained advantages from them quite unexpected when they entered the service." "For instance," said the noble Duke, "when any future measure touches thorn, they seem to forget all the advantages gained by former retirements and say that any new arrangement is a breach of faith with them."
  That was not an argument, but rather a statement of the very ground of complaint. These officers had refused to accept the retirement upon the view which
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  they took of their position and of the advantages which they were offered, and no one had any right to deprive them of a right which was vested in them by their choice. The private secretary of the noble Duke, who was examined by the same Commitee, said, that he did not believe that any officer had been damaged by the order—
  "The officers who refused the 18s. a day, and have been forced to retire, received 2s. a day additional, making 20s., and in several instances officers have preferred the retirement of 1860 to that of 1851."
  He admitted, however, that they were deprived of the prospective advance to 25s.; nor was it surprising that some officers—those, for instance, who were low down on the list, and above the age of sixty—should prefer this scheme of retirement to that of 1851, because it would advance them to a position on the list at which they would otherwise never have arrived. When this subject was mentioned in another place, the noble Lord the Secretary of the Admiralty stated that the case of these officers had been considered by the Committee to which he had already referred, and that the conclusion arrived at was that they had no grievance to complain of. The noble Lord must have made this statement under an entire misapprehension. The subject of pay and allowances was never considered by that Committee, and in their Report they stated that—
  "All that your Committee have ventured to do is to decide, so far as the limited nature of the inquiry would admit, what, irrespective of financial considerations, would be most conducive to the public service with regard to numbers, promotion, and retirement."
  He said that the Admiralty might as well have taken from the officers who accepted the retirement of 1851 the right to receive 25s. a day as have deprived those officers who chose to remain upon the active list of their right to advance to the rank of Rear Admirals on the reserved list with 25s. a day. He believed that nothing had ever created greater dissatisfaction and alarm among naval officers than had this Order in Council, which they felt had deprived them of all security as to their positions, or as to the pay which they enjoyed; and, therefore, he had thought it his duty to bring the subject under the notice of the noble Duke and of their Lordships.
  THE DUKE OF SOMERSETsaid, that as this question involved a great many

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  details, and was very difficult of explanation, it could be better discussed before a Committee, in which, questions and answers might elicit the facts of the case, than in their Lordships' House, and it had had the advantage of such a discussion. It was the subject of inquiry by the Committee to which the noble Lord had referred, and he was satisfied that the majority of that Committee were convinced that no great injustice had been done to these officers. The noble and learned Lord said that an injustice had been done to these men, and that faith had been broken with them. To ascertain whether there had been a breach of faith, their Lordships must look at the engagement which was made with these officers when they entered the service and the position which they then occupied. When these officers who were now complaining entered the service, they had no claim, to any Order in Council. The Orders of 1847 and 1851 were Orders made for the general good of the service. The Orders in Council were the gratuitous gift of the Crown for the benefit of the service; but no officer entering the service before they had passed had a right to say an Order in Council to a certain effect shall be issued; and no injustice, therefore, would have been done to them if no Order had been made either in 1847 or 1851. And where, he would ask, in the event of no Order in Council having been issued in the year 1847, would those captains stand? The senior captain who complained was then at the bottom of the list; the list of captains, instead of 570, was 730. And what was the rate of promotion? It then took a captain to rise from the bottom to the top of the list thirty-seven years on an average; and those captains, therefore, who were at the bottom could not reasonably look forward to having their names placed on the flag list before the expiration of that period. That was their position and they knew how they were situated. Assuming, under those circumstances, that no Order in Council had been issued in 1847, 1851, or 1860, those officers would not yet have reached the 14s. 6d. list, and would now be in the receipt of only 12s. 6d. a day, and for fourteen years more would be in the same position. Was he wrong, then, when he had stated before the Committee that the measure of 1847 had been to them a great advantage? Not one of those men, whose case is now specially brought forward, he
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  might add, was in a position to take advantage of the Order in Council of 1847, because he must have been fifty-five years of age and must have served twenty years on the list of captains; while those very men who complained had not yet been twenty years on that list. He should next refer to the Order of 1851, which said that captains above fifty-five years of age, and who had been ten years on the list of captains, might be eligible for retirement, and would receive a certain rate of retiring allowance. When, however, the Admiralty again considered this subject in the year 1860, they had to take into account what was the condition of the Admiralty list. We had then passed through fifty years without a naval war. We had now 327 Admirals, and the question was naturally asked in the country how many Admirals are required for the navy. It could do very well with from twenty to thirty; but the taxpayers were called upon to pay for 242 Admirals, and were we to go on adding to the Admirals list? — for that was the real question. For his own part, he must confess that, even for the interests of the navy itself, he thought that great caution should be used in adding to the list of Admirals, otherwise there would probably be a reaction against the whole system. The senior of the captains in question, he might add, had served as a lieutenant for six years, and as a commander for nine years and nine months, and for that service he had been paid as a captain for a long time, while he claimed to be for ever after paid as an Admiral. The commanders' list, he might further observe, when he came to the Admiralty stood at 500, and it had been reduced to 450, a step which created more rapid promotion to the great benefit of the service. He, therefore, contended, that without the Orders in Council, which constituted, no part of the engagements of the Admiralty, the senior captain whose cause the noble and learned Lord advocated, would have stood in a worse position than that in which he was now placed.
  THE EARL OF HARDWICKEsaid, that the case was not without difficulties, but it might be understood exclusively of the list altogether. A certain number of officers on the post captain's list had been assured by the Orders in Council that they might accept their retirement or not, as they thought fit, on 25 s. a day, with the rank of Rear Admiral; but that it was

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  left to their own option whether they should accept the proposal or not. The great injustice perpetrated was the Order of 1860, which expelled these officers from the list and gave them only 18 s and 20 s. a day. If they had known in 1851, that such an Order as this was to be issued in 1860 they would, undoubtedly, have accepted the offer then made to them. The noble Duke asked, what was the moral under standing with officers who enter the service? He (the Earl of Hardwicke) answered that the moral understanding with officers was, undoubtedly, the state of the law of the service of the day, whatever that might be; and the great hardship of the profession was the uncertainty as to the different Orders which might be issued. This was the kind of policy which would take away all inducement to enter the navy, and would certainly, in the end, alienate the gentry of the country from it. But, after all the heartburnings and dissatisfaction which had been created, and after loading the country with a great additional outlay, the Admiralty had not yet succeeded in obtaining an active list of entirely able-bodied men perfectly fit to serve the country. The noble Duke, by some extraordinary oversight, had not touched on the strong point of his case; and as the case stood at present, and as he had defended it, an act of the grossest injustice had been perpetrated. There were upon the list referred to by the noble and learned Lord, only fifteen officers altogether, and to give those men what they were morally entitled to, would cost the country only £1,293 a year.
  THE EARL OF DERBYsaid, that having listened with considerable interest to the speeches which had been made, it appeared to him that there was one very important point upon which the noble Duke had not answered his noble and learned Friend. The noble Duke had argued that there was great advantage to the service from the Orders in Council of 1847 and 1851, and there was no doubt that by these Orders almost all the officers in the service had gained considerable advantage in more rapid promotion and in the clearing of the list. But the question was, whether the Order in Council of 1860 did not do away with the option which had been given to officers by the Order in Council of 1851. Now that Order gave to the officers the option of either receiving an immediate increase of pay, or, on the other hand, prospective advantages if they remained at
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  the lower rate. From 1851 to 1860 they received the diminished rate of pay instead of the higher rate that they would have had; they took the alternative; on the footing of the Order in Council they consented to remain on the lower rate until the time when they would succeed to higher rank, on the distinct understanding that they would receive the progressive increase of pay to which they would but for this Order have been entitled. The hardship of these officers was that they were left at a low rate of pay for a series of years, and that by the Order in Council of 1860, they were deprived of the advantages that had been held out to them by the Order of 1851. He defied the noble Duke, if he could not contradict these facts, to say that there had not been a gross breach of faith committed in reference to those officers who had consented to receive the reduced rate in order to get the prospective increase of rank and pay.
  THE DUKE OF SOMERSETsaid, he could no tat all agree with the view of the noble Earl. Arrangements had been made in 1851.
  THE EARL OF DERBY: Were they proposed as conditions of a bargain between the officers and the Government?
  THE DUKE OF SOMERSET: No, they declined to take it. They said they would remain where they were. With the men who accepted the terms there was a bargain, but with the men who refused them there was no bargain. If there was a bargain with these particular officers, then, there was a bargain with every commander and lieutenant in the navy.
  LORD CHELMSFORDsaid, that it was perfectly clear that under the Order in Council of 1851 certain captains on the list were offered retirement upon a certain amount of pay, and that Order in Council left it entirely optional to officers upon the active list to accept that retirement or not. Certain of the officers, in view of the advantages that the Order in Council held out, accepted the retirement, and, as the noble Duke said, entered into a bargain. Certain other officers upon the active list preferred to remain there, and did not accept retirement, and therefore, in a certain sense, did not enter into any bargain. Remaining upon the active list upon a lower rate than they would have had if they had retired, they would advance in due course until they became reserved Rear Admirals, when they would receive 25 s. a day. The noble Duke would not

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  deny that they had an undoubted right to choose for themselves whether they would retire or would remain upon the active list with the prospective advantages. Having remained upon the active list they received between 1851 and 1860 the old rate, instead of having had 7s. 6d. added to their pay in the former year, hoping that they would in, time advance to 25 s. a day as being on the reserved list of Rear Admirals. He asked whether they had not a vested right to do as they had done; and whether the Order in Council did not deprive them of the rights which they had expected to enjoy, because, instead of advancing to 25 s. a day, that Order forcibly put them upon the retired list, and the maximum of their pay was 20 s. a day. The question was, whether these officers had in 1860 a vested right to remain on the active list and to advance till they became Rear Admirals upon the retired list, for if they had that right then the Order in Council of 1860 was arbitrary and unjust.
  THE EARL OF HARROWBYsaid, the case of these officers seemed to be a very hard one, and would, in his opinion, have met with different treatment in a court of justice from that which it had received at the hands of the Admiralty. In private life, if a person had made such a bargain he would have been bound to carry it out.
  THE DUKE OF SOMERSETsaid, that the officers who did not choose to accept the terms offered in 1851 remained on the active list subject to any Order in Council which might be made afterwards, and had no right to complain because the arrangement did not turn out to be as advantageous as they had expected.
  House adjourned at Seven o'clock, to Monday next, half past Eleven o'clock.