Lords Sitting of 22 February 1866

MINUTES.
The Right hon. Sir Charles Wood, baronet, G.C.B., having been created Viscount Halifax—Was (in the usual manner) introduced.
Several Lords Took the Oath.
PUBLIC BILLS—Committee—Sale of Land by Auction [H.L.] (2); Art [H.L.] (15).
Report— Art (25).

SALE OF LAND BY AUCTION BILL.

  COMMITTEE. (No. 2. 2a.)
  Order of the Day for the House to be put into Committee on the said Bill read.
  LORD ST. LEONARDSsaid, this Bill had been introduced for the purpose chiefly of putting an end to the conflict between law and equity, law holding that every appointment of a puffer vitiated the sale, whereas equity, on the contrary, recognized the now almost universal practice of appointing a puffer, so far as this was necessary, to prevent the estate from being sacrificed. The Bill did not introduce any novelty—it was intended rather to con-

  881
  form the strict letter of the law to the existing practice, and to give protection, as far as possible, both to the owner and bona fide bidder. It therefore provided that the conditions should be read before the sale; it provided that if it was declared in the conditions that the sale was "without reserve," no "puffer" should be allowed; but, if not, a puffer was permitted; but if the biddings did not reach the reserve price, the auctioneer was to declare that the land had been bought in on account of the owner. The Court of Chancery was expressly exempted from the operation of the Act.
  LORD ROMILLYsaid, that although no one could doubt the importance of the measure under consideration, yet he was of opinion that it did not go far enough, and that it ought to extend to personal property. He had intended to explain his objection in detail, before their Lordships went into Committee, to the noble and learned Lord who introduced the Bill, but he had been prevented by his occupations from doing so, and he had therefore given notice of the Amendments he should propose. No one could doubt the great importance of the object of the Bill, The conflict between law and equity ought to be put an end to, and one uniform system should prevail. But he was at a loss to understand why this measure was confined to sales of landed estates. He ventured to say that not one reason could be advanced in support of this Bill with reference to sales of land by auction which could not be advanced with far greater force in support of a similar Bill respecting sales of personal property. The number of sales of the latter description was far greater, and the property more valuable. Sales of pictures, ships, reversionary interest in stocks, large quantities of goods in bulk, and sales of plant and machinery were continually occurring and realized a very large amount. But the law regulating both classes of sale at present was the same; and it would be a matter for regret if the law were altered in one and not in the other. It had become his duty, quite recently, to order the sale in the Court of Chancery of a large factory, with the machinery; and it was sold in two lots, one the freehold of the factory, and the other the plant and machinery. If the Bill under consideration passed into law, their Lordships would observe that the freehold of the factory would be sold in accordance with one
  882
  law, and the plant and machinery under another. It might be said that if the principle laid down by his noble and learned Friend were extended to personal property it would bring in all cases of the sale of books, furniture, and stocks, including mock auctions; but if the object of their Lordships was to prevent persons from being deluded into giving a higher price than the articles were worth, there were no cases in which the interposition of the Legislature were more required than in sales by auction of personal property. In case of sales of land the buyers generally employed an agent to bid on their behalf, and this arrangement was attended by this benefit—that an agent was never carried away by his feelings to give a higher price than the property was worth, but acted merely upon the instructions which were given him. In other cases, however, buyers were continually influenced by their feelings. It was a common thing in sales of farming stock to hold a luncheon before the sale, and the bidders were consequently often in a state of semi-intoxication. That was a great evil, and one which ought undoubtedly to be got rid of. The Bill, therefore, only dealt piecemeal with a subject which ought to be, and might be, treated as a whole; and he therefore suggested to his noble and learned Friend that he should postpone the Committee upon the Bill, as they were as yet at the commencement of the Session, and, after framing it anew to meet the necessities of these cases, to proceed with it again at a later period. Another serious objection to the measure was that it had the appearance of class legislation. The upper classes were those most interested in sales of land by auction, and while laying down principles for the protection of their interests, they appeared to be neglecting those of the remainder of the community. He did not, however, intend to take any further step to stop the Bill, and would leave the matter in the hands of his noble and learned Friend. He had, if persevered in, given notice of some Amendments on the Bill as at present framed. It had been found by long experience that in sales by auction by order of the Court of Chancery the auctioneer ought to be allowed as little latitude as possible. An auctioneer should not be permitted to make a declaration, but ought to be compelled to state everything in writing. A person frequently came into Court with ten or fifteen wit-

  883
  nesses, who swore in their evidence that the auctioneer had not made the particular statement in question; that they were in the room the whole time of auction, and that if he had stated it they must have heard it. The auctioneer, on the other hand, would bring two or three persons who swore that they heard the statement made; and the decision that the Court was consequently compelled to arrive at was that the declaration had been made but that it had been made in such a manner as not to be audible to one-half of those present. He wished, there fore, to have all these matters printed upon the particulars of the sale. He did not understand from the Bill before their Lordships whether his noble and learned Friend intended the omission to read the conditions of sale on the part of the auctioneer to constitute invalidity in the sale; if he did it would create a new source of litigation; if he did not the clause would be complied with or not, at the pleasure of the auctioneer. His noble and learned Friend's measure also provided that property knocked down to the puffer bidding in contravention of the law should be sold to the last bonâ fide bidder, supposing he were willing to complete the purchase. But there would, no doubt, be conflicting evidence as to the last bonâ fide bidder, and, moreover, as property was constantly sold by trustees, if the last bonâ, fide bidder was allowed, to take the property on account of an error by the agent employed to bid, it might be sold very much below its value. What he wished was that there should be an opportunity, by the reserved price given to the auctioneer, to prevent the accidental error of a person employed to bid destroying the property. The only other suggestion he had to make was that a clause should be introduced putting an end to the practice of the Court of Chancery opening biddings after the property had been knocked down to a bonâ, fide bidder at a sum equal to or higher than the re served price. The practice had been condemned by Lord Eldon, the present Lord Chancellor, the noble and learned Lord who introduced the Bill, and many other authorities. The only two Amendments he had to propose affecting the scope of the Bill were, first, that the declaration proposed to be made by an auctioneer should be put upon the particulars of sale; and, secondly, that the bonâ fide bidder should not be allowed by the mistake of
  884
  the agent to get possession of property at very much less than its real value.
  House in Committee.
  Certain Amendments having been made,
  Lord ROMILLYproposed an Amendment to Clause 8 (Rule respecting open Sales).
  After a short discussion,
  Amendment agreed to.
  Whereupon,
  LORD ST. LEONARDSsaid, the Amendment which had been accepted by their Lordships was entirely at variance with the principles on which the Bill was founded, and he should decline to proceed further with the measure.
  EARL STANHOPEtrusted they might still have the benefit of legislation on the subject, notwithstanding that the noble and learned Lord had somewhat hastily, as he thought, thrown up the Bill.
  THE LORD CHANCELLORobserved, that before the Bill went into Committee, his noble and learned Friend had stated some objections to the principle of the Bill. It did not go far enough, and applied only to auctions of landed property. No one had more experience on this subject than his noble and learned Friend as Master of the Rolls. He therefore hoped his noble and learned Friend would introduce a measure to embrace the objects he had indicated.
  LORD ROMILLYsaid, if this Committee were adjourned for a short period, he would endeavour to frame clauses with that view.
  House resumed.

ART BILL—(No. 15.)

  COMMITTEE.
  House in Committee (according to Order).
  Clause 1 (Power to lend Works of Art for public exhibition).
  LORD TAUNTON, referring to the wording of the side note, said, it would appear that the Bill was intended to have a general application.
  LORD STANLEY OF ALDERLEYsaid, that the Bill only applied to works of art lent to two Exhibitions—the Exhibitions of Historical Portraits, which it was proposed to have in London this year and next, and the Paris Exhibition next year.
  EARL GREYsaid, that he thought it was rather a strong measure for Parliament to authorize the trustees of minors

  885
  and idiots to send valuable pictures out of the country.
  LORD STANLEY OF ALDERLEYsaid, a great number of pictures had been sent to the last Paris Exhibition, and he had not heard of any of them being damaged.
  LORD OVERSTONEsaid, that a picture by Turner belonging to the National Gallery which had been removed for exhibition elsewhere, had been returned damaged by rubbing, though not very seriously; and another picture by the same artist had been returned with the canvas actually broken. He felt very strongly the danger of sending pictures of great value away from the places where they were deposited, and he thought that trustees would more efficiently discharge their duty by affording to the public every reasonable facility of access for seeing them.
  Clause 2 agreed to.
  Clause 3 (Definition of Owner for the time being).
  THE DUKE OF MARLBOROUGHsaid, that this clause contained a principle of serious importance, started for the first time, and which he thought was highly objectionable. By this clause the national works of art might be sent to the Paris Exhibition; but there was such a rage for exhibitions now in every part of the globe, that if they once allowed works of art to leave this country, although only to Paris, that might be a precedent under which they might be sent anywhere, not only in Europe, but even across the Atlantic. Their Lordships ought to be very careful not to admit such a principle as this; and he would certainly, if the House divided on the subject, support the omission of the words of the Preamble extending the power to lend to the Universal Exhibition at Paris in 1867.
  THE EARL OF DERBYremarked, that if these words were left out altogether its omission would defeat the object of the Bill, which he did not suppose his noble Friend (the Duke of Marlborough) to intend.
  THE MARQUESS OF BATHdrew attention to the fact that this objection was the same as that raised on the second reading of the Bill; and was, in fact, an objection to the whole measure.
  THE DUKE OF MARLBOROUGHsaid, that his object was not to prevent any work of art from being lent by trustees in this country; but simply to make such alterations as should have the effect of
  886
  preventing trustees from sending works of art out of the country. If he consented now to pass the clause, he would, on the third reading, propose an addition to the clause, which would have that effect.
  LORD TALBOT DE MALAHIDEsaid, that in removing pictures the principal danger to be encountered was in the packing and unpacking, and many accidents occurred in consequence of inexperience and unskilfulness in conducting those two operations. Of course, a great deal of judgment and discretion must be exercised by those who had the selection of the pictures for removal, as many pictures, from old age and other circumstances, could not be exposed to the risk and danger of travelling. He thought it would be undesirable to extend the power now sought to the case of all trustees of private property, and that it would be better to limit it to those who had the charge of public property. He wished all success to the great undertaking which it was intended to carry out in this country in the present year; but he thought that it would be an ungracious and churlish feeling to deny to the Emperor of the French the gratification of seeing some of the chef d'eeuvres of English art in the Great Exhibition to be opened next year in Paris, especially considering the liberality and generosity with which the Emperor had frequently sent pictures to exhibitions in this country.
  EARL GREYhoped that the noble Duke would not press his Amendment. France and other foreign countries had acted very well in respect of our exhibitions, and it would be a bad return on our part to say that pictures from our public galleries might not be sent to the French Exhibition.
  THE DUKE OF MARLBOROUGHdoubted whether any foreign Government ever had sent its pictures here. He thought Parliament would be putting the trustees of our public galleries in an invidious position if it invested them with a power which it might not be judicious of them to exercise.
  LORD TAUNTONconcurred with his noble Friend (Earl Grey) in thinking that we should not be acting very courteously towards France if a limitation were inserted which would prevent trustees from lending pictures for the Great Exhibition of 1867.
  THE EARL OF MALMESBURYsaid, he did not recollect any case in which any ancient works of art had been sent from abroad to our exhibitions. Modern pic-

  887
  tures had been sent, the private property of foreign sovereigns, or belonging to the artists themselves, and the country was grateful for the loan of those pictures; but, as a matter of history and of fact, he did not recollect any pictures being sent from the Louvre, Florence, Milan, or any of the other places containing the art treasures of Europe to this country for exhibition.
  LORD STANLEY OF ALDERLEYthought the noble Earl was mistaken. To the last Great Exhibition in London works of art were sent by the Government of France, by the Belgian Government, and, he believed, by other Governments. These works were modern, no doubt, but they were very valuable.
  THE EARL OF MALMESBURYbelieved it would be found that the works alluded to by the noble Lord were from private collections.
  LORD STANLEY OF ALDERLEYthought not.
  THE MARQUESS OF BATHthen moved an Amendment to leave out words of the clause which gave the power of loan to the trustees of married women, and of persons labouring under incapacities; and thus confining the power to the trustees of public institutions and to tenants for life.
  After a short discussion, Amendment agreed, to.
  Clause, as amended, agreed, to.
  Preamble read.
  THE DUKE OF MARLBOROUGH THE DUKE OF MARLBOROUGH moved to omit the words "and to contribute British works of ancient art to the Universal Exhibition at Paris in 1867."
  THE EARL OF DERBYappealed to the noble Duke not to press the Amendment, on the ground that it would be ungracious to refuse the trustees of our public institutions power to send their pictures to France, while we were permitting them to lend to our own portrait exhibitions in London.
  EARL RUSSELLalso urged the noble Duke not to persevere with his Amendment.
  THE DUKE OF MARLBOROUGHsaid, that he should be sorry to do anything ungracious or discourteous towards a country with which we are on such friendly terms as we were with France. He would, therefore, withdraw his Amendment.
  Preamble agreed, to.
  Report of the Amendments to be received To-morrow; and Bill to be printed, as amended. (No. 25.)

CATTLE DISEASES ACT—THE ORDERS IN COUNCIL.—QUESTION.
THE DUKE OF BUCCLEUCH, pursuant to notice, asked Her Majesty's Government, Whether the Local Authorities established under the Orders in Council still exist and will continue until the new local authorities, under the Cattle Diseases Act, are constituted? His Question meant, in other words, whether the Act which received the Royal Assent on Tuesday last abrogated the powers of the local authorities created under the Orders in Council issued by virtue of the Act of 1848. The agricultural world was in a state of the greatest uncertainty on these points. In Scotland considerable time must elapse before the new authorities could be constituted. First, ten days' notice was required; and then, after the Commissioners of Supply met, they had to nominate a number of their body, and the names thus nominated must be sent to the lord-lieutenant, wherever he may happen to be, for approval. The lord-lieutenant then had to find out in the best way he could who were the tenant-farmers to be nominated by him to join this irresponsible body—irresponsible they were, because when once appointed they could not be removed. After the lord-lieutenant had nominated the tenant - farmers not one could be removed, however inefficient and incapable he might be found. Nor was there any power given in the Act to fill up vacancies that might occur from time to time. Never was there a public body so constituted, nor an Act of Parliament so loosely drawn. He had also to ask, whether the Act of 1848, 11 & 12 Vict. c. 105, has been repealed by the Act passed this Session, or whether it was only in abeyance; and, if so, what portions of the same Act could be put in force? There was the greatest confusion on this subject both in England and Scotland.
THE DUKE OF ARGYLLwould first remind his noble Friend opposite that, although bound to support the Government measure, he had been quite willing to accept the Amendment of his noble Friend, retaining the local authorities as originally constituted. He apprehended that the old local authority, established under the Orders in Council, was by no means extinguished until the new body actually came into existence; and with regard to the interval of time which

889
must elapse, he pointed to the words in the first line of Clause 5 "as soon as conveniently may be after the passing of this Act." With regard to the continued validity of the orders of the old local authority, the 32nd clause of the Act provides that they
"Shall, so far as consistent with this Act, remain in full force until they are revoked or have expired by lapse of time."
The 11 & 12 Vict. certainly was not repealed by the late Act, and only three days ago an Order in Council had been issued under its provision with regard to the outbreak of smallpox among sheep. In one respect, however, there would be a serious interregnum under the recent Act if measures were not taken by the Government before the 1st of March. The Act passed the other day gave full powers as to slaughtering and disinfection, but contained no provisions in reference to matters such as excluding town manure from districts previously healthy. The Bill as originally drawn by the Government contained provisions on all those points; but it was cut in two in the other House, and the first half had been passed by their Lordships without alteration. If the second portion should be sent up to that House in time to be passed before the 1st of March, no difficulty need arise, as the Government, of course, could introduce clauses upon the point. If not, it would be necessary to renew the Order in Council; and he believed public opinion was fast tending towards the conclusion that it was by these after all that the difficulty could best be met.
THE DUKE OF BUCKINGHAMsaid, only a week now intervened before the 1st of March, the period to which reference had been made by the noble Duke. He thought it most important that some intimation should be given at once by the Government to traders and farmers, as to whether the markets would probably be open at the time named in the first instance, or whether they were to look forward to the renewal of restrictions for a limited time. He hoped the measure which it was stated was about to be submitted to them would be in a shape intelligible to all, and not form such a specimen of crude legislation as that which they had recently been led to adopt, and which must give rise to extreme difficulties all over the country. Thinking, then, that those interested in the disposition of cattle should be relieved
890
at once from the uncertainty in which they were at present placed with regard to the course they had to pursue during the next few days, he strongly urged Her Majesty's Government to take the subject of his remarks into their early and serious consideration.
THE DUKE OF MONTROSEconcurred with the noble Duke as to the importance of the subject he had introduced to their Lordships' notice, and hoped the Government would consider whether the Orders in Council should not be renewed.
THE MARQUESS OF BATHremarked that it would not do to continue the Orders in Council for too long a period, or the new Acts of Parliament would only be in force for a few days. Even if the Cattle Plague Bill passed the House of Commons tonight, and their Lordships sat on Saturday, it would be inexpedient, in his opinion, with so little notice, to consider so important a measure until Monday. Then, as Amendments would doubtless be made by their Lordships, it would have to be sent back to the Commons, and thus it could not receive the Royal Assent before Wednesday. But the sittings of the quarter sessions were fixed for Monday, and many of their Lordships would think it their duty to attend them. In that case it would be inconvenient for them to attend to consider the Bill on Monday; and he therefore thought they would come better prepared if the Government were to fix Tuesday for the Cattle Plague Bill, and continue the Orders in Council in operation for four or five days.
LORD REDESDALEalso counselled delay. It was impossible fairly to consider the Bill in so short a time as he feared the Government would propose. It was imperatively necessary that the whole subject should be dealt with calmly and deliberately, even if it lessened the period of its duration by some days. It certainly should not be introduced before Tuesday, as their Lordships would not otherwise have time to go over it in as careful a manner as it deserved.
THE EARL OF CARNARVONthought the Bill demanded their best attention, so that when it became law it should not be found to contain the inconsistencies which he was sure the Cattle Diseases Bill would. At the same time, he was sorry to see the matter postponed.
THE DUKE OF MARLBOROUGHsaid, it was of the utmost importance that the provisions of the next Bill should be dis-

891
cussed quietly and calmly, and he trusted that the House would he afforded the opportunity of fully considering them.
LORD POLWARTHhoped it would be distinctly stated whether the Orders in Council would be renewed.
THE DUKE OF ARGYLLsaid, that the most serious attention of the Government was being given to the whole subject, and every care would be taken against any difficulty arising between the period for the expiration of the old Orders in Council and that for the new ones coming into operation.
THE EARL OF ELLENBOROUGHremarked that if the Bill were delayed beyond the 1st of March it would be necessary that some measure should be adopted by the Government to bridge over the intervening period.

HER ROYAL HIGHNESS THE PRINCESS HELENA.
Her Majesty's most gracious Message of Tuesday last considered (according to Order): Then an humble Address of Thanks and Concurrence Ordered Nemine Dissentiente to be presented to Her Majesty thereupon: The said Address to be presented to Her Majesty by The Lords with White Staves.

HIS ROYAL HIGHNESS THE PRINCE ALFRED ERNEST ALBERT.
Her Majesty's most gracious Message of Tuesday last considered (according to Order): Then an humble Address of Thanks and Concurrence Ordered Nemine Dissentiente to be presented to Her Majesty thereupon: The said Address to be presented to Her Majesty by The Lords with White Staves.
House adjourned at half past Seven o'clock, till To-morrow, half past Ten o'clock.