Lords Sitting of 12 July 1867

MINUTES.
SELECT COMMITTEE—On Railways (Guards' and Passengers' Communication), Ld. Steward, E. Lucan, and L. Ponsonby added; on Vaccination nominated.
PUBLIC BILLS—First Reading—Local Government Supplemental (No. 5)* (221); Industrial Schools* (223).
Second Reading—Christ Church (Oxford) Ordinances (190); Trusts (Scotland)* (195); Court of Appeal Chancery (Despatch of Business) (215), Committee negatived.
Report—Consecration of Churches and Churchyards (15 & 222); Public Records (Ireland)* (210).
Third Reading—Local Government Supplemental (No. 4)* (207). and passed.

LONDON, BRIGHTON, AND SOUTH COAST RAILWAY.—OBSERVATIONS.
LORD REDESDALEsaid, that the London, Brighton, and South Coast Railway

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Bill would be reported that day, and as some of the provisions were peculiar and important, he wished to take that opportunity of calling their Lordships' attention to what had been done, in order that they might see whether there was any objection to the course proposed, The Bill had come up from the House of Commons as an unopposed Bill, and therefore came under his notice as Chairman of their Lordships' Committees. The company being very much in want of funds proposed to raise money by the issue of preference stock; but being unable to raise the amount required by such means, they now sought to issue ordinary stock at a discount. He (Lord Redesdale) confessed that was an objectionable course, but he thought it far less objectionable than the creation of pre-preference stock, and he therefore felt disposed, under the circumstances, to allow the company to issue stock at a discount. The Bill had come before him as an unopposed Bill, and the parties were anxious to make progress withit; but, as no inquiry had taken place into its provisions, he thought that he ought to call the attention of their Lordships to the subject.
LORD ROMILLYsaid, the proposal was perfectly new, and the noble Lord had only been able to recommend it on the ground that though it was a bad thing it was not so bad as another course which might have been adopted had the company been able to put it into execution. He hoped the House would have ample notice of the next stage of the Bill, in order that it might be fully discussed.
THE DUKE OF MONTROSEsaid, that the course proposed would be ruinous to the company if allowed, for it entirely destroyed the chances of the original shareholders of any return for their investment. The noble Lord allowed this Bill to go forward, although he said that he saw the objections to it; but he had refused to allow Bills creating pre-preference stock to go forward until they had been sent before a Select Committee and reported upon. This Bill should at least be put in the same position with those measures.
EARL GREYsaid, he thought the system of allowing stock to be issued at a discount better than the system of pre-preference stock, which was not only unjust in itself, but was calculated to injure other railways, besides the particular undertaking thus treated. When a railway company was in difficulties it was the interest of all parties that money to carry it
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on should be raised in some way; and he did not see how this could be done so fairly to all parties as by issuing fresh stock at the fair market rate. Such a course did not infringe the rights of any person but seemed to be the natural resource of railways in want of money. In his opinion, therefore, the noble Lord (Lord Redesdale) was wise in approving this plan as a lesser evil to the issue of pre-preference stock. At the same time, he thought it would be well that the Bill should stand over until the subject could be considered by their Lordships.
LORD REDESDALEsaid, that where the preference shareholders consented to the creation of pre-preference stock, there could be no objection to that plan of raising money. Volenti non fit injuria. But to allow a company to take that course where such consent was withheld would destroy public confidence in railway investments, and inflict, even on solvent undertakings, a permanent injury.
EARL GRANVILLEsaid, the subject was one of great importance, and it would be desirable to know on what day the Bill would be before the House. It would be also desirable that their Lordships should then know the opinion of the Government upon so important a question.
LORD REDESDALEsaid, the next stage of the Bill would be the third reading, and it would then be competent for any one of their Lordships to move that the Bill be re-committed. He did not see, however, that any advantage was to be gained by re-committing the Bill, for the question was one of principle. At the same time if their Lordships thought it desirable that inquiry should take place before a Committee he should be happy to concur. He had done what he thought right in calling their Lordships' attention to the matter, and he left it in their hands.

MEETINGS IN ROYAL PARKS BILL.
(The Lord Redesdale)
MEETINGS IN ROYAL PARKS BILL.

  (NO. 113.) SECOND READING.
  Order of the Day for the Second Reading read.
  THE EARL OF DERBYsaid, that he entirely agreed with the object of the Bill; but he begged to point out that a Bill dealing with this subject, and prepared by the Government, was now before the other House of Parliament. The Home Secretary had given notice of certain Amendments; but the House of Commons

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  had been occupied lately by more important duties. He would suggest that the noble Lord should postpone the second reading for a week, in order to give time to proceed with their measure in the other House.
  EARL GRANVILLEthought that the Question was a most important and most difficult one, and ought to be dealt with, after due consideration, by Her Majesty's Government. It was not fit that such a measure should be introduced on the responsibility of an individual Peer, however much he might be respected in that House.
  LORD REDESDALEsaid, his object in introducing this Bill was to find out what; was intended by the Government in this matter. The Bill before the other House had been so often postponed that he almost doubted at last whether it would go forward at all. He thought that the public were entitled to some protection in this matter, and to some legislation in the course of the present Session. But, under all the circumstances he did not object to postpone the second reading of the Bill.
  Second Reading put off to Friday next.

CHRIST CHURCH (OXFORD) ORDINANCES BILL—(No. 190.)
(The Archbishop of Canterbury.)
CHRIST CHURCH (OXFORD) ORDINANCES BILL—(No. 190.)

  SECOND READING.
  Order of the Day for the Second Reading read.
  THE ARCHBISHOP OF CANTERBURY, in moving that the Bill be now read the second time said, that its object was to take the College out of the anomalous position in which it was left by the Commission of 1854. Christ Church was not only a college, but a cathedral, The Commission was not empowered to deal with the cathedral body in the first instance, and the fact that it had not done so led to considerable difficulty and to disagreements between the Students and the Dean and Chapter. The students of Christ Church stood in the same relation to the Dean and Chapter to that in which the scholars of other Colleges stood towards the Fellows. The Dean and Chapter previously were the governing body; they had the sole management of the estates, and the Students were in a subordinate position. The statutes of the several Colleges having been altered, close fellowships were done away with, and the competition between the different colleges placed the
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  Students of Christ Church at a disadvantage. Being no part of the governing body, and not having sufficient funds to promote educational purposes, difficulties arose which it was the object of the Bill to remove. One disadvantage from which they suffered was that sermons could not be preached in the chapel for the benefit of the undergraduates. These matters were submitted to five referees—Sir John Coleridge, Sir W. Page Wood, Sir Roundell Palmer, Mr. Twisleton, and himself, and the result was the preparation of the Ordinances attached to this Bill.
  Moved, "That the Bill be now read 2a."—(The Archbishop of Canterbury.)
  EARL STANHOPEsaid, he was glad the most rev. Primate had brought forward this Bill, He approved in particular of the 28th clause, the effect of which, as he understood it, was to abolish academical distinctions of dress and designation between the three classes of students; distinctions moreover which involved three different scales of charges to students sitting at the same table.
  THE EARL OF DERBYsaid, he feared the noble Earl was mistaken about the effect of the 28th clause, which seemed to him to be in effect permissive, inasmuch as it was exempted from taking effect along with the other ordinances. He entirely approved the general scope and tenor of the Bill.
  EARL STANHOPEthought he was substantially right, as he had lately been assured, on competent authority at Oxford, that the Bill would give power to the Governing Body to abolish these distinctions.
  THE EARL OF CARNARVONsaid, that the clause removing academic distinctions was qualified to the extent that there was a transference of the power of fixing the terms of admission for Noblemen and Gentlemen Commoners; and he should not have said that the question of distinction was raised in the way the noble Earl (Earl Stanhope) supposed. He objected to the transference of the power to the Governing Body, inasmuch as it placed the Dean of Christ Church in a position occupied by the Head of no other College; it disqualified him from exercising a power he always had exercised; and so far the clause would be productive of inconvenience. It did not follow that the Governing Body would exercise their powers in the way contemplated by the

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  28th clause, by removing distinctions of dress and designation; but it was competent for them to do so whether the Dean approved or not. The clause, he believed, was no part of the original ordinances, but it had been introduced since they were drawn up.
  THE ARCHBISHOP OF CANTERBURYsaid, a few words in explanation.
  Motion agreed to: Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.

CONSECRATION OF CHURCHES AND CHURCHYARDS BILL—(No. 15.)
(The Archbishop of Canterbury.)
(Formerly CONSECRATION OF CHURCHYAEDS (No. 2) BILL.—(The Bishop of Oxford.)
Amendments reported (according to Order).
THE EARL OF PORTSMOUTHmoved the insertion of the following clause:—
"And whereas, by an Act passed in the 4th and 5th years of the reign of Her present Majesty, entitled, 'An Act to afford further facilities for the Conveyance and Endowment of Sites for Schools,' and by another Act passed in the 13th and 14th years of the reign of Her present Majesty, entitled, 'An Act to extend and explain the provisions of the Acts for the granting of Sites for Schools' powers are given to persons being seised in fee-simple, fee-tail, or for life of and in any manor or lands of freehold, copyhold, or customary tenure, and having the beneficial interest therein, may grant, convey, or enfranchise by way of gift, sale, or exchange in fee-simple or for a term of years, any quantity not exceeding one acre of such land as a site for a school subject to the provisions in the said Acts, and it is expedient that the same powers should be extended to persons willing to grant land for the enlargement of churchyards or burial places in England or Wales; be it therefore enacted that the said Acts shall be deemed to apply to all persons desirous of granting land for the purpose of such enlargement, in the same way as if the said land had been granted as a site for a school, provided, nevertheless, that no such grant shall be made Otherwise than in fee-simple."
Motion agreed to.
Clause added to the Bill.
Further Amendment made; Bill to be read 3a on Monday, the 22nd instant; and to be printed as amended (No. 222).

INLAND FISHERIES OF IRELAND—ADDRESS FOR RETURNS.
THE MARQUESS OF CLANRICARDE, in moving an Address for certain Returns connected with the Inland Fisheries of Ireland, complained that the Salmon Fisheries
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(Ireland) Act Amendment Bill, introduced by his noble and learned Friend (Lord Cranworth), was rejected on the 5th instant on the Motion for the third reading, at the instance of a noble Lord (Lord A Linger) who had not given notice of his intention to oppose it.
Moved, That an humble Address be presented to Her Majesty for,
Return of all Expenses of the Special Commissioners for the Inland Fisheries of Ireland and attending the Administration of the Act of the 26th & 27th Vict. Cap. 114. and any Renewals thereof since the passing thereof; specifying the Salaries, Fees, or Gratuities paid to each of the several Special Commissioners, naming each Person, to the Secretary and the several Clerks appointed or employed under that Act, naming each Person, and also to all other Persons in any way employed, with the several Amounts of all travelling Expenses or Allowances paid to each or any of the said several Parties from the Commencement of that Act: Also,
Return of all other incidental Expenses defrayed by Public Money, including legal Expenses attending Appeals or other Administration of that Act and the several Renewals thereof: And also,
Similar Returns in relation to the Special Commissioners for England and the Administration of the "Salmon Fishery Acts 1861 and 1865," the 24th and 25th Vict. Cap. 109., and 28th and 29th Vict. Cap. 121.—(The Marquess of Clanricarde.)
THE EARL OF BELMOREsaid, there was no objection to granting the Returns moved for. The Irish Commission would expire shortly by lapse of time, but that it had nearly completed the business which it was appointed to do; the English Commission, however, had far from finished its work.
THE EARL OF MALMESBURY, with reference to the complaint of the noble Marquess (the Marquess of Clanricarde), said, that it was very inconvenient and almost always unfair to oppose a Bill in its last stage without notice. The Bill of the noble and learned Lord (Lord Cranworth) referred to no common matter; it did not deal with the question as to whether we should have more or less salmon in England, but with a question of justice to certain persons. The measure was therefore of importance, and several noble and learned Lords took great interest in it. The noble Lord who moved the rejection of the Bill (Lord Abinger) had certainly surprised their Lordships, though, he believed, unintentionally, as the noble and learned Lord who had charge of the Bill had told several Peers that it would not be opposed. This case exhibited in a marked manner the inconvenience arising

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from making important Motions in their Lordships' House without notice.
EARL DE GREYsaid, he had not expected such a reflection as that which had fallen from the noble Earl to come from the Ministerial Bench, as only last evening the Secretary for the Colonies (the Duke of Buckingham) had moved the rejection of the Adjutants of Volunteers Bill, without having given notice of his intention to do so, on its third reading. Believing that the Salmon Fisheries Bill referred to would have reversed the policy which had been pursued for years, with regard to an important branch of industry in Ireland, he thought that he and those who had acted with him were justified in the course which they had taken.
THE EARL OF MALMESBURYunderstood that notice was given by his noble Friend (the Duke of Buckingham) of his intention to move the rejection of the Bill.
EARL DE GREYsaid, he had heard to a contrary effect, and he asked the noble Marquess whether he had given notice to his noble Friend (Lord Abinger) of his intention to bring forward this matter to-night, in order that he might have been present to defend himself. For his part he thought his noble Friend justified in the part he took.
LORD CRANWORTHsaid, his noble Friend had had recourse to the very worst of all arguments in opposition to the noble Earl, the tu quoque. It certainly seemed as if a canvass had been made with the express purpose of securing the rejection of the Bill.
LORD DENMANinterrupted the noble and learned Lord by saying that the noble Lord who moved the rejection of the Bill on its third reading, assured him that he had made no canvass (out of doors) at all.
LORD CRANWORTHsaid, that when the Bill was read a second time, fifty-one Peers voted in its favour, and twenty-two against it, while at the time appointed for the third reading, out of a House of only forty Members, twenty-three voted against the Bill.
THE EARL OF ROMNEYexplained how completely the noble Lord (Lord Abinger), who had been absent in Scotland, had acted without conferring with those who came down to oppose the Bill of the noble and learned Lord.
THE EARL OF KIMBERLEYsaid, that, as far as he himself was concerned, he had felt perfectly at liberty to vote against the
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Bill, and the majority, he believed, was not due to any canvass.
LORD CAMPBELLrose to defend his noble and gallant Relative (Lord Abinger), and denied that his course was identical with that which the Government had taken yesterday.
THE DUKE OF BUCKINGHAMsaid, that at the earliest possible moment after he found it necessary to object to the Adjutants of Volunteers Bill he sent a note by a messenger to the house of the noble Lord who had charge of that measure (Lord Campbell).
LORD CAMPBELLsaid, he had received the note sent by the noble Duke, but it only stated that some objections might be taken, and opposition was therefore possible. On coming to the House he was informed by the noble Earl the Under Secretary for War that the noble Duke objected to the Bill individually, but no opposition was intended on the part of Her Majesty's Government. But for that assurance he should not have thought of proceeding that night with the third reading.
THE EARL OF DERBYcould assure the noble Lord that the subject of exempting Adjutants of Volunteers from service on juries was never at any time brought under the consideration of Her Majesty's Government, or made a Cabinet question in any way. So far, indeed, from there being any previous consultation as to the course to be pursued, very little conversation at all on the subject passed between the Members of Her Majesty's Government, and that little was confined to the period when the noble Lord rose at a late hour and in a very thin House to move the third reading of a Bill which had not been discussed at any of its previous stages. As noble Lords were aware, the Members of Her Majesty's Government were frequently under the painful necessity of remaining in the House after most other noble Lords had left, and noble Lords who brought forward Motions at such a time, if they had reason to anticipate opposition from the Government, did so at considerable disadvantage. The fact that at the time of the division there were only twenty-four Peers present was sufficient to show that no great effort had been made to secure its rejection, and among those who honoured the majority with his vote was a noble Lord opposite who was not generally regarded as an active supporter of Her Majesty's Government. If the noble Lord

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who had introduced the Bill believed it to be one of so much importance, it would at least have been wise on his part to have secured the attendance of some of his Friends, and to, at all events, have taken care not to be left in a minority of 6.
LORD CAMPBELL, so far from having reason to anticipate opposition from the Government, had reason to count on their support.
THE EARL OF LONGFORDsaid, he told the noble Lord that he had heard no intention of opposing the Bill, although he had heard the noble Duke, some few nights previously, express himself unfavourably on the subject. He certainly never pretended to possess any authority for stating the course which the Government intended to pursue; but, as a matter of fact, the Bill did not meet with any Government opposition at all. He did acknowledge that he had no opposition to offer to it on behalf of the War Department—and he had, indeed, intended to vote in its favour; but he was induced to alter his decision on hearing the arguments which the noble Lord offered in its support.
the Marquess of CLANRICARDEAfter a few words from the Marquess of CLANRICARDE,
Motion agreed to.

BOOK OF COMMON PRAYER.

  ADDRESS FOR PAPERS.
  THE BISHOP OF OXFORD, in moving an Address to Her Majesty praying that Her Majesty will give directions to the Queen's Printers, and to the Delegates of the University Press at Oxford, and the Syndics of the University Press at Cambridge, to make a Return to their Lordships of a List of the Alterations from the text of the "Sealed Books" existing in the Book of Common Prayer as now issued, and other particulars, said, that he had put this Motion on the Paper because it was of the greatest moment that there should be the utmost accuracy in the printing of the Book of Common Prayer, and that those who were specially intrusted with the duty should make no alteration of their own in giving the book to the public. The object of the monopoly which had been given was for the purpose of insuring accuracy. At this moment, however, the Prayer Book issued by the three different authorities differed in many points, and therefore the original object was defeated. He thought it very desirable that full information should be obtained in the matter. It had, however,
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  been suggested by the noble Earl at the head of Her Majesty's Government that the object which he had in view could be better attained through the Commission now sitting, and he would not, therefore, ask their Lordships to agree to an Address, reserving to himself the right of opening the matter hereafter if it should seem advisable.
  Moved, That an humble Address be presented to Her Majesty, praying Her Majesty to give Directions that Her Majesty's Printers and the Delegates of the University Press at Oxford and the Syndics of the University Press at Cambridge should return to this House:

  1. A List of the Alterations from the Text of the sealed Books existing in the Books of Common Prayer as now issued:

  2. The Dates of such Alterations:

  3. The Authority under which they were severally made.—(The Bishop of Oxford.)

  THE BISHOP OF LONDONsaid, that there were some fears on the part of the Delegates of the Press at Oxford that an impression might get abroad that the duty intrusted to them by the Legislature had not been performed with that accuracy with which it ought to be done. He had been therefore instructed by one of the most distinguished of the Delegates, to state that Commissions had been appointed in 1746–7 and again in 1796–7 to inquire into the subject, and to bring back the Prayer Book to the closest conformity to the "Sealed Books"; and from that day to the present time no alterations had been introduced, except the substitution of a comma for a semicolon in one place, and such changes as were made necessary by the Acts of the Legislature.
  THE BISHOP OF OXFORDsaid, he had not intended to bring a charge against any one, much less against the Delegates of the Oxford Press. But, if, as appeared by the admission of the right rev. Prelates, those gentlemen could so alter the Book of Common Prayer as to make it agree with what they thought was the intention of Parliament, there was a manifest necessity for adopting some such course as he had suggested.
  Motion (by Leave of the House) withdrawn.

COURT OF APPEAL CHANCERY (DESPATCH OF BUSINESS) BILL.
(The Lord Chancellor.)
COURT OF APPEAL CHANCERY (DESPATCH OF BUSINESS) BILL.

  (No. 215.) SECOND READING.
  Order of the Day for the Second Reading read.
  THE LORD CHANCELLOR, in moving that the Bill be now read the second time,

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  said, that its object was to facilitate the despatch of business in the Court of Chancery. On the introduction of the measure, he stated that the two Lords Justices of Appeal were compelled to act together, and neither could perform any judicial act separately. In the present state of arrears it was absolutely necessary to get rid of a quantity of business which was overwhelming. It was, therefore, proposed by the Bill that certain duties might be taken separately; but the Lords Justices were not to sit separately on appeal. He had been authorized to say that Lord Cranworth entirely approved of the Bill; the noble Lord the Master of the Rolls sanctioned it; and the Lord Justice Cairns was also in favour of it. As despatch was important, he should propose to read the Bill a second time now, to suspend the Standing Orders, and have the Bill read a third time on Monday.
  LORD ROMILLYsaid, he fully approved of the Bill. He wished, however, to take that opportunity of making a few observations on the general subject of appeal. The present system of appeal in the Court of Chancery was open to grave objection. The principle upon which appeal should be established was well understood—there ought to be but one appeal. But in the Court of Chancery the parties might introduce fresh evidence, and bring forward fresh material. Now, such a course was open to very considerable objection; because, in the first place, it induced persons not to bring forward the whole of their case in the beginning; and, in the next place, it led to a prolongation of litigation. With regard to appeals to their Lordships' House, he would speak with some hesitation. He had already delivered his opinions on that subject before a Committee of their Lordships; and, on that occasion, he had stated that he thought there ought to be an infusion of the lay element into that Court, so as to correct the unavoidable bias of the legal mind. It was only by an infusion of the lay element that that accurate judgment upon ordinary affairs which was usually called "common sense," and which was requisite to a fit decision, could be obtained. In fact, the recommendation which he made was the theory of the Constitution. Their Lordships' House used formerly to decide on questions of appeal, and had the Judges, as their assessors, to assist them with their legal knowledge. Jeremy Bentham, who devoted a great intellect and a long
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  life to the study of jurisprudence, was of opinion that it was not improper that the Judges should be laymen. Certainly he (Lord Romilly) would not go to that length; but, looking at some of the most eminent Judges who had existed in Europe—L'Hôpital and D'Aguesseau among the rest—it was a fact that none of them were advocates. In some instances they bought their places. That, no doubt, would not now be the most convenient mode of qualifying for judicial offices. There was, however, abundant evidence to show that this House contained within itself men qualified to perform judicial functions. A much esteemed Friend of his, and an ornament of this House, Lord Macaulay, in a memorable speech made by him in the other House of Parliament, pointed out the judicial functions now performed by lay persons as chairmen of Quarter Sessions, and in other capacities. If you wanted to make the law good, you must prevent it from running into technicalities. It was of the greatest importance that this tendency should be checked by the ultimate Court of Appeal; and if some of their Lordships who had received a certain amount of legal training in the discharge of judicial duties were selected to sit in appeal cases, he thought that an appellate tribunal would be formed infinitely superior to any that had hitherto existed. He did not mean to say that such duties should be performed gratuitously; but these were details into which he would not now enter. There was a good deal more that he wished to say upon this subject, but he would not say it now. At some future period — possibly next Session—he might call attention in greater detail to the importance of some reform in the constitution of the existing tribunal for hearing appeals in this House. At present he would merely express his entire concurrence in the necessity for passing the Bill now before their Lordships.
  LORD CAIRNSsaid, that the whole subject of the appellate jurisdiction of this country was so important and at the same time so difficult and so large that it would be inconvenient to enter upon any discussion of it while considering a measure of the kind now proposed. He did not, therefore, rise for the purpose of following the observations—entitled, as they were, to the greatest weight and respect—which had fallen from his noble and learned Friend opposite (Lord Romilly). With regard to the Bill, he hoped that there

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  would be no delay in passing it. The state of the appellate business of the Court of Chancery was very serious — it had fallen very greatly into arrear, and the few weeks which remained before the long vacation could at the best but make a small impression upon it. The only possible mode of expediting, to some extent, that business was by enabling the Judges of the Court of Appeal to exercise their functions separately. He was enabled to say that the present Bill had the full sanction and approbation of the very eminent Judge (Lord Justice Turner) whose loss at this moment the public and all his friends so deeply mourned, and in whom we had lost as wise and upright a Judge, as efficient and conscientious a public servant, as ever sat upon the Bench.
  Motion agreed to; Bill read 2a accordingly; Committee negatived: and Bill to be read 3a on Monday next.

  INDUSTRIAL SCHOOLS BILL [H.L.]
  A Bill to make further Provision respecting Industrial Schools in Great Britain—Was presented by The Marquess TOWNSHEND; read 1a. (No. 223.)
  House adjourned at Seven o'clock, to Monday next, Eleven o'clock.