Lords Sitting of 13 February 1866

MINUTES.
Took the Oath— The Lord Aveland. PUBLIC BILL—Second Heading—Sale of Land by Auction (2).
SALE OF LAND BY AUCTION BILL.

  (NO. 2.) SECOND READING.
  Moved, That the Bill be now read the Second Time.—(The Lord St. Leonards.)
  THE LORD CHANCELLORsaid, that since the first reading he had looked through the Bill, which he thought would probably be a very useful measure. But his noble and learned Friend (Lord St. Leonards) had inserted clauses in it excepting sales ordered by the Court of Chancery from the operations of the measure. It was perfectly true that the precautions taken by the Court of Chancery with respect to sales carried on under its orders rendered such a Bill as that under consideration unnecessary; but, at the same time, no harm would result if the Court of Chancery sales were not excepted, and it was very possible that if the excepting clauses were allowed to remain an invidious construction might be placed upon the measure.
  LORD CHELMSFORDentirely approved the principle of the Bill, and concurred with the noble and learned Lord on the Woolsack in recommending the omission of those clauses which excepted sales made by order of the Court of Chancery.
  LORD KINGSDOWNalso expressed approval of the Bill.
  LORD ST. LEONARDS, in replying to the objections taken to the measure, was understood to say that the Court of Chancery had machinery at its command to do all for its suitors that it was proposed by this Bill to do for the people at large, and it was, therefore, unnecessary to give to the Court of Chancery what it already had.
  Motion agreed to: Bill read 2a, and committed to a Committee of the Whole House on Tuesday next.

PRISONS ACT 1865.—QUESTION.
THE EARL OF CARNARVON, in rising to inquire of Her Majesty's Government, What Arrangements they nave made for
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giving effect to the Prisons Act of last Session, by securing an adequate Inspection of the several County and Borough Prisons, said, that the Act to which he referred had placed much power in the hands of the local authorities. A Committee of the House, of which he had the honour of being appointed the Chairman, had given great consideration to the subject, with the view of securing, as far as possible, uniformity of action; and the Committee found that the Prison Inspectors, who had formerly numbered five, had for various reasons, which it would not be necessary for him to go into, been gradually reduced to two, so that the inspection of prisons had in reality become a mere formality. Even in the last Report of the Inspectors, he found that all the prisons in the kingdom had not been visited once in the year. He did not now rise for the purpose of asking an increase in the number of Inspectors, but he did desire to see some machinery established which would secure effectual communication with the local authorities, and by which a harmonious and uniform system would be adopted.
EARL RUSSELLwas understood to say that instructions had been given upon the subject by the Home Secretary.
THE EARL OF CARNARVONthought that the answer of the noble Earl was in reality no answer at all. The noble Earl did not say what was the nature of the instructions given by the Home Secretary; and he thought, therefore, that he should not be doing wrong in pressing the noble Earl for a little further information on a matter so important.
EARL RUSSELLsaid, he would furnish the noble Earl with further particulars as soon as he received some more information from the Home Office.
THE EARL OF CARNARVONsaid, that under these circumstances, he would repeat his Question on Thursday.

THE CATTLE PLAGUE.—QUESTION.
THE EARL OF WINCHILSEArose to ask the First Lord of the Treasury, Whether Her Majesty's Advisers are prepared to recommend to Parliament that an Indemnity be granted out of the Public Purse to all such Persons as have been compelled to slaughter any Beast or Beasts (not offered for Sale in any Market, Fair, or other Public Place where Animals are commonly exposed for Sale), by Order of an Inspector appointed by or under the Authority claimed

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by the Lords of Her Majesty's Privy Council, to be contained in the Act of 1848, c. 107, which Act still continues in force? The noble Earl said that the Privy Council had issued instructions to their Inspectors to slaughter any diseased cattle they might find on the premises of the owners. Now, that Order purported to be founded on the Act of 1848; but it appeared that the operation of that Act applied only to cattle exposed at any public fair or market, and gave no authority to direct the slaughter of cattle on private premises, and there was, therefore, reason to suppose that the Privy Council had in that matter overstepped their powers. But if that were so, it was clear that those persons whoso cattle had been killed under the sanction of that Order had a peculiar claim on the Government for compensation, and he trusted that that claim would be recognized.
THE DUKE OF MARLBOROUGHsaid, that he was desirous of reminding the noble Earl, before he answered the Question which had just been put to him, that the issuing of the Order in Council giving power to Inspectors to kill any cattle they might think infected with the cattle plague, unaccompanied by any restrictions upon the cattle traffic, was the most successful—if he might use the term—method of spreading the disorder that could have been followed. The effect of that Order was that owners of cattle, knowing what fate was to befall them, and knowing that they should receive no compensation for any cattle which might be slaughtered under the Order, took the matter into their own hands and sold their infected cattle; and the result was, to use the words of Her Majesty's Commission, that the disease was sown broadcast over the country.
LORD POLWARTHwished to know, whether it was the intention of Her Majesty's Government to renew the Order in Council complained of, or whether it would cease when the new measure upon this subject came into operation?
THE LORD CHANCELLOR: The noble Earl (the Earl of Winchilsea), in putting the Question of which he has given notice, has clearly pointed out that which I am perfectly ready to admit—namely, that there are no distinct terms contained in the Act of 1848, authorizing the Council to make such an Order as that of the 25th of August; but I must ask leave of the House to state how the matter stood at that time. The object of the Act
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of Parliament passed in 1848 was to prevent the spread of contagious or infectious diseases among sheep, cattle, or other animals, and the preamble of that Act was to this effect—
"Whereas a contagious or infectious disorder, known or described as the sheep-pox, or variola ovina, now prevails among the sheep in some parts of the United Kingdom, and it is necessary to take measures to prevent such disorder from spreading,"—[11 &c 12 Vict. c. 107.]
The Act then proceeds to give the Privy Council authority to make such orders and regulations as are necessary to give effect to its provisions. There is no doubt in the world that the preamble of this Act referred to sheep, and to sheep only; but, on the other hand, the clauses of the Act are not confined to sheep, but will bear a construction permitting the provisions to be applied to cattle. The question the Government had to determine was whether or not, if it were shown to them—as it was shown to their satisfaction—that no other Order would have any beneficial effect, they would be justified in issuing an Order calculated to give effect to the spirit of the Act, although, if strictly construed, that Act might not expressly give them the necessary powers. It must not be forgotten that remedial Acts are always to be liberally construed, and under the circumstances we felt it to be our duty to put a liberal construction upon this one. The matter had to be determined at once—there was no time for deliberation—and I do not hesitate to say that it was upon my advice that the Order was issued, as I thought it was fairly to be argued that such an Order came within the real meaning of the Act. There is, however, great doubt upon the subject; but if the Order does go beyond the strict letter of the law it may easily be met by compensating the parties who have suffered under it, although the injuries they have suffered in consequence of its issue must be very slight, as the infected cattle slaughtered under its regulations must have been of little or no practical value to their owners. Acting upon the opinion I had formed, I did not hesitate to advise the Government that they were bound to put a liberal construction upon the Act, as it would be useless to issue any Order that was not calculated to meet the requirements of the case.
THE EARL OF DERBY: The noble and learned Lord has placed two constructions upon the Order in Council. First of all, he

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says that it is within the spirit of the Act; and then, that it goes beyond the strict letter of the law. Now, I cannot quite concur with the doctrine laid down by the noble and learned Lord, that the Order in Council comes within even the spirit of the Act, because the law lays down distinctly what are the offences it creates, and in what manner they are punishable. On the other hand, it is quite true that although the preamble refers to sheep alone, the enactments refer to cattle generally. Now, what are the enactments contained in the Act?—
"That in case any sheep or lambs infected with or labouring tinder the said disorder, or any disorder of the like nature, be exposed or offered for sale, or be brought or attempted to be brought for the purpose of being so exposed or offered for sale, in any market, fair, or other open or public place where other animals are commonly exposed for gale, then, and in any such case it shall be lawful for any clerk, or inspector, or other officer of such fair or market, or for any constable or policeman, or for any other person authorized by the mayor, or by any two justices of the peace having jurisdiction in the place, or for any person authorized or appointed by Her Majesty in Council, to seize the same, and to report such seizure to the mayor or any justice of the peace having jurisdiction in the place; and it shall be lawful for such mayor or justice either to restore the same, or to cause the same, together with any pens, hurdles, troughs, litter, hay, straw, or other articles which he may judge likely to have been infected thereby, to be forthwith destroyed or otherwise disposed of in such manner as he shall deem proper, or as may be directed in manner hereinafter provided; and any person bringing or attempting to bring any sheep, lambs, oxen, bulls, cows, calves, or other horned cattle into any such market, fair, or open or public place as aforesaid, knowing such sheep, lambs, or cattle to be infected with or labouring under either of such disorders as aforesaid, shall, upon conviction thereof, forfeit and pay for each and every such offence a sum not exceeding £20."
Now, these are the whole of the offences contemplated by this Act. The fourth clause is as follows:—
"And for the more effectually preventing the spreading of contagious or infectious disease be it enacted that it shall be lawful for the Lords and others of Her Majesty's Privy Council, or any two or more of them, from time to time, to make such orders and regulations as to them may seem necessary for the purpose of prohibiting or regulating the removal to or from such parts or places as they may designate in such order or orders, of sheep, cattle, horses, swine, or other animals, or of meat, skins, hides, horns, hoofs, or other parts of any animals, or of hay, straw, fodder, or other articles likely to propagate infection; and also for the purpose of purifying any yard, stable, outhouse, or other place, or any waggons, carts, carriages, or other vehicles; and also for the purpose of directing how any animals dying in a diseased state, or any animals, parts of animals, or other things seized under the provisions of this Act, are to be disposed of; and also for the purpose of
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causing notices to be given of the appearance of any disorder among sheep, cattle, or other animals."
Then come the words on which the noble and learned Lord relies—"and to make any other orders or regulations for the purpose of giving effect to the provisions of the Act,"—not for the purpose of giving effect to the "object" of the Act, but for the purpose of giving effect to the provisions of the Act. It enables the Lords of the Council, by Orders in Council, to issue any Orders that may be necessary for the purpose of enforcing its provisions. I would humbly submit to the noble and learned Lord that it is a most extraordinary stretch of the provisions of an Act of Parliament to use the powers which were given for the purpose of enforcing its provisions to enable you to make any order you may think fit for the purpose of giving effect to what you consider the object of the Act—namely, to provide against contagious diseases in cattle. The noble and learned Lord frankly admits that the object, though within the spirit and intention, did not come within the letter of the Act. Well, a number of farmers have had their cattle destroyed under the authority of the Government and by the direction of inspectors acting under their orders, but contrary to the law. Now I say that, under these circumstances, the persons so deprived of their property—I will not use harsh words—have a fair and legitimate claim for compensation, and for compensation not to be levied on their neighbours and themselves, but compensation from the Government on those persons acting under the authority of the Government, who, contrary to law, deprived them of their property. Any one of those persons whose cattle the inspectors destroyed has a perfect right to bring an action of damages against them. I do not complain of the Government for the steps they have taken—except in this case, they have rather fallen short of their duty; but I say that in a case where they have undoubtedly gone beyond what the law allowed, compensation to any person suffering from their wrong ought to come from the public funds, and not from their neighbours. Let me observe that until the Bill brought in yesterday no intimation was given in the slightest degree that any of these persons would receive compensation from the public or from any other source. I rather think it was intimated to them they need not

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expect compensation from any source. But I would much rather look forward to the future than back to what has been rightly or wrongly done. I would much rather look forward to what can be done best at the present moment; and I think the Members of Her Majesty's Government will admit that in this House, and also in another place, no indisposition has been shown fairly to consider the questions brought before them. Certainly there has been no factious spirit—no disposition to create embarrassment to the Government. On the contrary, all parties have been desirous of pushing forward the remedy proposed as fast as possible. But, if I am rightly informed—and I have no means of information other than those which all the public have—the measure proposed is one of a very intricate and complicated character. There is another Bill—a rival Bill—brought forward by an independent country Gentleman, and which is also of a somewhat complicated character. But there are certain general provisions with regard to which all parties seem agreed, and there are, on the other hand, a variety of minute details on which the greatest possible difference of opinion prevails. Now, I would offer a suggestion to Her Majesty's Government. The emergency is pressing, and must terminate towards the end of next month; it is, therefore, essentially necessary that the measure should be brought into operation with the least possible delay, I would suggest whether it is not practicable, instead of proceeding through all the details of the Bill, and through all its stages in both Houses, open as it is to discussion in various complicated provisions, to introduce simultaneously in both Houses Resolutions embodying those points on which there is no difference of opinion. Take, for example, the power to prohibit fairs and markets; the power to prohibit the moving of stock between this period and the 25th of March; the power in certain circumstances to slaughter diseased animals, or infected animals—the word "infected," I believe, has been interpreted elsewhere to mean animals brought into contact with diseased animals, and are, therefore, supposed to be infected with disease, it may be quite right to take absolute power to slaughter them. Pass Resolutions prohibiting the transit of cattle on roads and railways, except fat cattle for immediate consumption; give power to slaughter infected animals, and where they are slaughtered under the direction of in-
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spectors authorized by the Government, declare that the owners shall be entitled to compensation. These three or four simple Resolutions might be passed by the two Houses together, leaving out of consideration for the present all the details of the Bill. In my mind, nothing is more doubtful than the provisions as to compensation; but I would suggest to Her Majesty's Government that they should propose a Resolution merely affirming that owners of cattle slaughtered under these circumstances should be entitled to compensation; and then pass another Resolution, authorizing Government to pass Orders in Council for giving effect to these Resolutions, such Orders in Council being of no validity after the 25th of March. If Her Majesty's Government will take that course you may have an effective measure in three days. I am quite certain, that with every desire to forward the Bill, there is very great doubt whether a Bill of such complicated provisions can pass the two Houses in less than three weeks. Well, but these three weeks are of the utmost value, and if you could anticipate that by ten days, or even a week, by proceeding by way of Resolutions rather than by Bill, when the object is to meet a temporary emergency, which will last only from this time to the 25th of March, you will remove the greatest possible difficulties, you will save the country an enormous sum of money, and take the best means in your power of putting an early stop to this most formidable plague. Of course, it rests with Her Majesty's Government to adopt it or not. I only suggest that arrangement. As far as I am concerned, if they are disposed to take that course, I shall not be too strict in criticizing the terms of the Resolutions they may bring forward, the great aim and object being to give the Government the requisite powers of promptly, expeditiously, and, I hope, successfully, dealing with this great calamity.
EARL GREY: I hope the Government will be very cautious before they adopt the suggestion which has just been thrown out. It seems to me a very dangerous principle to establish, even under the pressure of such an emergency as now exists, to legislate by Resolutions. I think nothing is more important than that Parliament should adhere to the ordinary practice of legislating on graver matters itself, and there are many points connected with the proposed Resolutions which obviously and clearly exceed the powers of the law. The reason

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why the Bill is brought forward is that they find there are powers necessary which the existing Act does not enable the Government to exercise by Order in Council. For instance, one of the great faults of the present system is that there is no power of stopping animals on the road. In my own county parties openly defy the law. [The EARL of DERBY: Why don't you take that power?] It seems to me that it would be better that Her Majesty's Government on the one side, and independent Members of the two Houses on the other, should show an earnest desire to come to an agreement as to what ought to be done. I cannot help thinking that by proper communications between some of the leading agriculturists on the one hand, and Her Majesty's Government on the other, the principle of the arrangement to be made might he agreed upon; and, that having been done, the case being one which does not admit of delay or long discussion, the Government might be allowed to pass their Bill as rapidly as the forms of the Houses would allow, Parliament taking it very much on their judgment and responsibility. I am quite prepared to take that course. I do not think it would be impossible that the decision of Parliament should be pronounced on some of the great leading questions—for instance, on the point mentioned the other evening, whether cattle should go to the butcher or the butcher should go to the cattle. Guided by the opinion pronounced by Parliament, I do not see why the Government should not pass a Bill, such as they have laid on the table, modified, if need be, according to the expressed opinion of the two Houses, the details being taken pretty much as a matter of confidence in the Government.
THE MARQUESS OF BATHsaid, he thought the Government ought to be careful before adopting the course suggested by his noble Friend (the Earl of Derby). A great deal might depend on the details of the arrangements to be adopted. One point to which farmers and owners of stock attached importance was the question of slaughtering cattle, and another point of importance was in whose hands the power to slaughter cattle should be placed. He had no hesitation to say generally that it would not be satisfactory to the country that that power should be in the hands of the present inspectors. With regard to the movement of cattle, he believed that that might be safely prohibited until the end of this month; but in many parts of the country,
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particularly in the West of England, it could not be prevented after the end of the month, without certain relaxations. The question then arose, in whose hands should the power of granting these relaxations be placed? It was not merely necessary to pass general Resolutions expressing the opinion of Parliament on the more important matters; but every minute detail should be considered if they desired to pass a measure giving satisfaction to all parties affected by it. He would suggest whether it might not be possible, while the Commons were passing the Bill through their House, for their Lordships to appoint a Select Committee to consider the subject, so that they might be ready without loss of time to recommend alterations in the measure when it should come before them.
EARL RUSSELL: I do not think it necessary, after the explanation given by my noble and learned Friend the Lord Chancellor, to detain your Lordships on the question of law. It appears to me that the Act of 1848 being for the purpose of preventing the spread of disease among sheep in the first place, but its provision being made applicable to cattle also, the regulation which the Privy Council made came, in fact, within its scope. The order given for slaughtering diseased cattle was necessary to prevent the spread of disease; and within the last fortnight various resolutions have been passed in different parts of the country, recommending the slaughter of such cattle as the one thing needful. A good deal of objection was at first made to the slaughter of these cattle, but after a time, opinion settled down generally as to the measures which ought to be taken. The special question which the noble Earl opposite has raised, as to whether public funds should be employed to pay the compensation—
THE EARL OF DERBY: Only in respect to those cases where cattle have been slaughtered by inspectors without sufficient authority by Act of Parliament.
EARL RUSSELL: If the inspectors have done anything illegal, no doubt there would be a legal remedy against them. Of course, the Government would not allow the inspectors to bear the loss. But I do not admit, what my noble Friend takes for granted, that the order given by the inspectors for the slaughter of these cattle was beyond the authority of the Act of Parliament. In fact what these inspectors did was to de-

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stroy a nuisance which would have resulted from allowing these cattle to go through the country, and so spread the disease. As the diseased cattle were actually doing mischief and evil they constituted a nuisance. There is an enactment by which certain officers in the City of London are empowered to destroy all unwholesome fish in the fish market, and as these cattle, being diseased, would have spread the infection throughout the country, it was quite right that they should be slaughtered. The noble Earl (the Earl of Derby) has made an important suggestion to the effect that certain Resolutions should be passed by both Houses, and that the Government should be empowered to carry out those Resolutions by Order in Council; but I agree with the noble Earl who spoke from the cross-bench (Earl Grey), that it would be very dangerous to take that course. The very same question as has been raised to-night might be raised with regard to the authority of those Resolutions; because it would be impossible in those Resolutions to provide for all the minute details which would be necessary. It would be better to accept another suggestion, that all matters most urgent should be taken out of the Bill of the Government, and passed in the ordinary way. If Resolutions were good for the purpose, I do not see why the same Resolutions should not be put in a Bill which should be brought in and passed in the usual way, I quite agree with the noble Earl in thinking that, without distinction of party, your Lordships will concur in any measure necessary for preventing the spread of the cattle disease; and I hope that the House will pass it soon, as time is of the utmost importance.
THE EARL OF CARNARVONsaid, that with regard to the legal part of the question he must say that after reading the Act of 1848 he was more and more puzzled, and he must ask for some further explanation on one or two points. The Act, as his noble Friend stated, referred in the first instance to disease among sheep, and, in the second place, to disease among cattle; and these two subjects appeared to be jumbled together in the most extraordinary and confused manner. By the first clause power was given to justices of the peace to slaughter any sheep or lambs; so that their Lordships would perceive that the power of slaughtering simply related to sheep and lambs; but, by the Order in
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Council which they were now discussing power was taken not to slaughter sheep or lambs, but cattle as well. Now, he wanted to know how it happened that the Order in Council took a power which did not appear in the Act. These Orders in Council ought not to be called Orders in Council at all, for they were not the Orders of the Queen in Council, but of certain Lords of the Privy Council. The Queen in Council had power to exercise a certain authority, but any authority which the Lords of Council exercised must be derived from some Act of Parliament. The fourth clause of the Act of 1848, which was the only clause which dealt with this matter, gave the Lords of the Privy Council power from time to time to make certain regulations and orders; but it seemed that the Lords of the Privy Council had transferred these powers to local authorities, though nothing could be more distinct that the legal maxim, delegatus non potest delegare. He should be very glad to receive some explanation from the Government on the points to which he referred.
EARL GRANVILLEsaid, the Government had acted in the course which they pursued in accordance with the best legal advice—that of the Law Officers of the Crown. The Orders in Council were, under the operation of the Act of Parliament, prescribed to be passed some in one way, some in another, and there could not be the slightest doubt that those to which the remarks of the noble Earl pointed had been passed in conformity with the law. [The EARL of DERBY: The Lord Chancellor says not.] He appealed to the noble and learned Lord whether that was not the case; but, be that as it might, if the noble Earl who had raised these legal questions would give notice that he would again bring them forward, he should be prepared to give him a distinct answer.
THE LORD CHANCELLORsaid, he must protest against the assertion that he had admitted that the course that had been taken in reference to the Order in Council was illegal. What he had admitted was that the Government found themselves in great difficulty owing to the loose manner in which the Act was worded. The preamble referred only to sheep; but in the body of the Act there were general words, which included cattle as well. He had also stated that the Act was of a remedial character, and that therefore it must be construed with a view to promoting the object intended to be effected by it. With

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respect to the observation of the nobleEarl, delegatus non potest delegare, this point had not escaped the notice of the Attorney General. The Law Officers came to the conclusion that there had been no delegation. The acts authorized to be done were authorized by the Council:—what the justices were to do was to say whether the Orders were applicable to particular districts. He had not the clause before him, and could not therefore analyse or scan its provisions, but if the noble Earl looked at the wording he would see that this was so.
THE EARL OF MALMESBURYsuggested, that the only way of settling the question satisfactorily would be to bring an action either against the Government or their inspectors, for the slaughter of cattle in some particular instance.
EARL GRANVILLEsaid, he should like to know what amount of damages would be obtained under the circumstances.
House adjourned at a quarter before Seven o'clock, to Thursday next, half past Ten o'clock.