Lords Sitting of 19 July 1867

MINUTES.
SELECT COMMITTEE—Report—On Vaccination.
PUBLIC BILLS—First Reading—Maintenance of Families * (244); Reformatory Schools Amendmend* (245); Investment of Trust Funds* (246); Dogs Regulation (Ireland) Act (1865) Amendment * (247); Master and Servant * (248).
Second Reading—Industrial Schools (223), negatived; Sir John Port's Charity * (206).
Committee—Trades Union Commission Act (1867) Extension * (243); Prorogation of Parliament * (228); Turnpike Trusts Arrangements* (229).
Report — Vaccination* (239); Christ Church (Oxford) Ordinances* (190); Prorogation of Parliament * (228); Turnpike Trusts Arrangements* (229).
Third Reading—Offices and Oaths * (218); Merchant Shipping*(219); Patriotic Fund*(201).
Withdrawn—Meetings in Royal Parks (113).

MEETINGS IN ROYAL PARKS BILL.
(No. 113.)—(The Lord Redesdale.)
MEETINGS IN ROYAL PARKS BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  LORD REDESDALEsaid, that he did not intend to persevere with the Bill, for the reason that Government were going on with a measure on the subject in the House of Commons, and he thought that the legislation on the subject should be as large as practicable. Under these circumstances he should now propose that the Order for the second reading should be discharged.
  Order discharged; and Bill (by Leave of the House) withdrawn,

MEXICO—FATE OF THE EMPEROR MAXIMILIAN.

  NOTICE WITHDRAWN.
  VISCOUNT STRATFORD DE REDCLIFFE,who had given notice to move—
  "That an humble Address be presented to Her Majesty expressing the Condolence of this House with Her Majesty on the afflicting Death of Her Majesty's near Relation the Emperor Maximilian, and their deep indignant Sense of the Violence done to Humanity and the Usage of civilized Nations by the barbarous Execution of that most unfortunate and heroic Prince,"
  rose to bring forward his Motion.
  THE EARL OF DERBYinterposed, and appealed to the noble Viscount not to postpone his Motion only, but to allow it to drop altogether. The noble Earl said he was sure that no argument would be necessary to induce their Lordships to express their sorrow for the tragical event which had occurred to one whose conduct—whatever might be thought of its prudence—had been influenced only by the noblest motives, and whose private character would have dignified any public position Nor would it be necessary that their Lordships should formally express the sentiments of extreme regret and abhorrence with which they witnessed the cruel system of retaliation which for many years has characterized the revolutions in Mexico, culminating at length in the unjustifiable judicial murder of the unfortunate Prince. He doubted very much whether it would be expedient for their Lordships formally to express their opinion, not of a foreign Government, but of one of the parties engaged in this sanguinary civil war. If there were any organized Government in Mexico with which Her Majesty was in diplomatic
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  relations which had sanctioned this proceeding, it might be proper for their Lordships to address Her Majesty to direct that a representation should be made to that Government on the subject. But, as their Lordships were aware, Her Majesty's Government had no relations of the kind with Mexico—the Minister whom we last sent to that country was accredited to the late Emperor. There was at present no organized Government in Mexico which could be held responsible, and to whom any representation on the part of the Sovereign of this country could be made. It would be quite unprecedented, therefore, that their Lordships, under such circumstances, should sanction the proposal for an Address. It would also be undesirable to enter into a discussion which might re-open the whole Mexican question. He hoped, therefore, the noble Viscount would allow the matter to drop.
  EARL RUSSELLwished to add his voice to that of the noble Earl in requesting the noble Viscount not to persevere with the Motion. It would not be possible to do so without entering into the whole question of the civil war in Mexico, and the barbarous cruelties which had been practised there. Under present circumstances he thought that it would not be at all advisable to proceed with the Motion.
  VISCOUNT STRATFORD DE REDCLIFFEsaid, that appealed to as he had been by the Leaders on both sides, he could have no hesitation in adopting the course which had been recommended. His original, motive for bringing the subject forward was that it had not been taken up by Her Majesty's Government; and he was not aware at the time that there was any well-grounded objection to making it a matter of discussion in their Lordships' House. But what had passed in "another place," and other circumstances connected with the subject which had been more recently brought to his knowledge, led him to the conclusion that it would be more advisable in the interests of the question itself not to persevere with the proposed Motion. It appeared to him that both sides of the House had, as far as circumstances would admit, done justice to the character of the illustrious, but unfortunate Prince, whose cruel fete was so justly to be deplored. He had now nothing further to state except that circumstances over which he could exer-

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  cise no control had caused several postponements of the matter, and that so much time had elapsed since he first brought it forward, that much of what would have been appropriate at the time had since ceased to be so. Taking into account all these considerations, he concluded that he should only be meeting the general wish of the House if he gave way to the representations made by the noble Earl at the head of the Government and the noble Earl the Leader of the Opposition, and, therefore, he should not hesitate to withdraw, with their Lordships' permission, the Notice he had given.

INDUSTRIAL SCHOOLS BILL—(No: 223.)
(The Marquess Townshend.)
INDUSTRIAL SCHOOLS BILL—(No: 223.)

  SECOND READING.
  Order of the Day for the Second Reading read.
  THE MARQUESS TOWNSHEND,in moving that the Bill be now read a second time, said, that the Bill was introduced to make further provision respecting industrial schools in Great Britain. The Bill might be divided into two parts, the first of which related to the class of children who, it was proposed, might be detained in certified industrial schools. These were children under fourteen years of age who might be found in company with beggars, &c., or sent abroad to beg, or cruelly or illegally beaten by the persons who had charge of them, or who were found singing in the street for the purpose of obtaining money, and to boys under twelve, or girls under fourteen, offering things for sale in the streets. All these might be taken by any person before two justices, or a magistrate, who might, if he thought proper, send such child or children to a certified industrial school. The second part of the Bill related to the institution of industrial schools in the metropolis. He had followed out the plan, according to which the district asylums and hospitals were to be built under the Bill of this year. The Poor Law Board was authorized to divide the metropolis into districts, and to direct an industrial school to be formed in any; the expenses were to be repaid by the district or union who were to be repaid out of the Metropolitan Common Poor Fund. The schools were to be under the Industrial Schools Act of 1866; and he proposed that the children sent to the schools should, in addition to being taught reading, writing, and arithmetic, receive
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  a sound and practical industrial training, with the view of making them useful and industrious members of the community. He regretted that a matter of so much importance as this had not been taken up by the Government. He should be ready to accept any suggestion for improving the details of the Bill, and moved that it be read a second time.
  Moved "That the Bill be now read 2a"—(The Marquess Townshend.)
  THE EARL OF DEVONsaid, he had no desire to throw any unnecessary obstacle in the way of the Bill, the purpose of which appeared to be praiseworthy; but he must say that he entertained such strong objections to its provisions that he could not consent to the second reading. The Bill was divided into two portions. The object of the first appeared to be to extend the classes of those who might be brought within the provisions of the Industrial Schools Act of last year; while the second part had for its object the division of the metropolis into districts for facilitating the erection of industrial schools, to be placed under the management of the Boards of Guardians, and supported out of the rates. The noble Marquess proposed to extend the operations of the Industrial Schools Act of last year to children found in company with beggars; to children who were found in the company of, or encouraged to wander abroad by, persons within the provisions of the Vagrant Act; to children whose parents had been convicted of assaulting or beating them; to children singing or playing music in the streets; and to children under a certain age selling or hawking any article between certain hours. Now, with respect to some of these classes, he thought that public opinion would not support, nor public necessity require or justify, the compulsory sending of the children to industrial schools. With respect to others, they were already provided for by the Act of last year. In his opinion no further legislation was required. To the second part of the noble Marquess's Bill, which proposed to place industrial schools under the Board of Guardians, he entertained very great objections. The Bill, as a whole, was founded upon a new and very extraordinary principle, and one which he did not think their Lordships ought to sanction. Another, and vital, objection to the Bill was that it proposed to throw upon the

  1713
  metropolitan rates the support of these schools; and it would be quite contrary to the privileges of the House of Commons to send down to them a Bill which imposed any money burden upon the people. Therefore the Bill could not go down without being mutilated in this important respect. No doubt an industrial training was exceedingly important, but he must remind the noble Marquess that already a number of poor children received an industrial training in the district schools, and in consequence found their way to respectable employment. At present, moreover, it was inexpedient to give the guardians any additional work, because they were already fully employed undertaking the new duties imposed upon them in connection with the arrangement for the sick and lunatic poor.
  An Amendment moved to leave out ("now") and insert ("this Day Three Months.")—The Earl of Devon.
  THE MARQUESS TOWNSHEND,in reply, said, that he was not surprised to find the measure opposed by the Treasury Bench—that was only in accordance with the custom of Ministers—but he was surprised to hear what flimsy arguments had been set up in opposition to it. His Bill simply proposed to establish industrial schools on the principle set up by the Government in the matter of the sick and lunatic poor, and as such it could not consistently be objected to. He insisted on the importance of rescuing poor children from exposure and crime, and in answer to the noble Earl (the Earl of Devon) who had said that only a few of such children were now unprovided for, he contended that if few only, which was not the case, those few should not be left uncared for. The objection on the ground of cost was unworthy of consideration; but it was very natural for a Poor Law Board which hankered after popularity to advance it, because they naturally considered the temper of the guardians whose very title was an absurdity and a reproach to those who bore it. The only reasonable argument used by the noble Earl was that having reference to the privilege of the Lower House. He hoped their Lordships would read the Bill a second time and amend it in any way they pleased in Committee; for if only one or two of its provisions were adopted it would operate very beneficially.
  On Question, that ("now") stand Part of the Motion? Resolved in the Negative and Bill to be read 3a on this Day Three Months.

CASES OF THE "MERMAID" AND THE "TORNADO."

  PETITION—OBSERVATIONS.
  THE MARQUESS OF CLANRICARDEpresented a Petition of W. Baxter & Co., owners of the ship Mermaid, complaining of the sinking of that vessel by the Spaniards and praying for redress; and, asked Her Majesty's Ministers whether the Tornado has been restored to her Owners, or the legality of the Detention submitted to a proper Tribunal? The facts relative to the case of the Mermaid were simply these — the vessel was fired into while passing the Spanish fort at Ceuta, on the African coast, and sunk. The reason assigned by the Spanish authorities for having fired at the ship was that she did not display her ensign when passing within the prescribed distance of the coast. The owners' case was that stress of weather drove them near the coast, and rendered them unable to show their colours in consequence of their rigging being damaged. The case was considered by Her Majesty's Government, and compensation demanded; but the demand was refused by the Spanish Government, and the demand had not been persisted in. There seemed to be a determination on the part of the Spanish Government not to do justice with regard to this case; and he regretted to say that there appeared a disposition on the part of Her Majesty's Government not to press the matter. With regard to the Tornado there seemed to be a similar determination on the part of the Spanish Government not to do justice. The Spanish Government undertook that the case should be adjudicated upon "in accordance with international rights and natural equity;" instead of which there was a trial, which was a perfect farce, and which was admittedly informal in every respect. On those proceedings being declared null and void, the Spanish Government still refused to release the ship, on the ground that there was to be a new trial. No proper tribunal, however, for that purpose existed in the country, and until the Government chose to erect one they detained the ship. This was not justice. The crew, moreover, had been treated in a most unjustifiable way. They were robbed of their

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  property, their working tools, and their money—the Spanish Government admitted so much—and then the Papers would not be given for the inspection of our Minister until they were subjected to a previous examination by the Spanish authorities, which examination could not take place for a long time. Now, he would put it to the noble Earl whether the Spanish Government were not wanting in that due respect and consideration which were due to Her Majesty's Government?
  THE EARL OF DERBY: I understand the noble Marquess to put two Questions—in the first place whether the Tornado has been returned to her owners; and, in the next place, whether the matter has been referred to any Court for adjudication? I can only say that the objections which have been taken by Her Majesty's Government with respect to the Tornado are not in the slightest degree connected with the assumed merits of the case—and I respectfully decline entering upon them now—but only with the mode in which the trial was originally conducted, according to which the parties were condemned without having had an opportunity of making their defence. The noble Lord the Foreign Secretary made a strong representation on that subject, and the result was that the original proceedings were declared to be null and void in consequence of informality, and the Spanish Government expressed their intention of proceeding to a new trial. I am not aware that that new trial has as yet commenced. The case, however, has not been lost sight of by Her Majesty's Government. The noble Marquess knows that the Spanish Government are not remarkable for the rapidity of their proceedings; but I must say that the owners of the vessel, though desirous of getting her back, do not seem very desirous of any investigation upon the merits of the case. Indeed, so far as I can learn, neither party is anxious for an investigation upon the merits.
  THE DUKE OF ARGYLLsaid, that the noble Marquess (the Marquess of Clanricarde) had frequently in the course of the Session put on the paper notice of Questions on this subject—his obvious intention being to urge Her Majesty's Government to high-handed measures against the Spanish Government. Having read the papers on the subject with great care, he was bound to say that he entirely approved the course taken by Her Majesty's Government, and he believed it would be very
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  wrong to urge them to any stronger measures against the Government of Spain. It was very natural, when a vessel carrying British colours was seized, that Members either of that or the other House should desire that strong measures should be taken; and it was, moreover, impossible to deny that the Spanish Government had behaved cruelly and, as he believed, unjustly to the crew of the Tornado. That had been taken strong notice of by Her Majesty's Government; but, as regarded the ship, he could not help saying that, to use the mildest language, she was seized under circumstances of the most violent suspicion. This case threw an important light upon the imperfect state of the law with respect to such matters. It was impossible to doubt that a regular trade in ironclad vessels of war would become a regular item in the shipbuilding of this country. In time of peace that trade would be legitimate and ought to be encouraged; but in time of war the Legislature had declared that the supply, to belligerent countries, of ships of war, even partially equipped, was liable to expose this country to serious risk. The weaker of two belligerents usually required ships. Now, in time of peace, they could buy what ships they wanted and carry them to their own country; but in time of war there was the greatest risk that those vessels would be seized by the stronger belligerent. The temptation, therefore, was irresistible to come to a private understanding with a builder that the ostensible change of property should not take place in this country, but that the vessel should go out with the British flag until it reached the country which had made the purchase. Now, that class of vessels must be built to contract; because they were so expensive that it was out of the question to suppose that they should be built on mere speculation. It was not a case of guns and other arms which were manufactured in the ordinary course of trade, for the capital invested in ironclads was so great that no shipbuilder would build them except upon a specific contract. Therefore, the House might take it for granted that such vessels were all sold before they sailed from this country. Under these circumstances, no nation that was strong enough to resist would permit such vessels to pass their shores or their ships of war. He was quite sure that in our own case we would not suffer it. It seemed to him, therefore, that some change in our laws

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  was absolutely required which would enable the Government to do, as a matter of course, what the late Government had done, as it was alleged, in violation of the law in the case of the Alexandra and other vessels. It was because the same thing was not done in the case of the Alabama that we were now involved in very disagreeable proceedings with the United States. There was, he believed, a Commission now sitting upon the subject, and he hoped that the result of its recommendations would be to strengthen the hands of the Government in such cases. With respect to the Tornado, numerous attempts had been made to induce the Government to arrest that vessel; but they did not consider themselves armed with sufficient authority to do so. There were few things which he deprecated more than that this country should insist upon a course towards nations comparatively weak which she would not pursue towards nations comparatively strong.
  THE MARQUESS OF CLANRICARDEsaid he did not wish to make any observation in reply to the opinions of the noble Duke, but as to some matters of fact he desired to say a few words. The noble Duke if he referred to the Papers, would see that the vessel had been examined by the officers of our Government, and reexamined, or as he had quoted on a former occasion, she had been "rummaged and re-rummaged," without anything being found to criminate her. As for such ships being always built to order, as the noble Duke had said, the fact was that the very parties who owned the Tornado took four ships previously across the Atlantic and sold them to the Brazilians; and not only that, but after the outward voyage they chartered them before the sale in such a way as to make an exorbitant profit.
  EARL RUSSELLexpressed his approval of the course taken by the noble Lord the Secretary for Foreign Affairs on this question, and saw no reason for impugning the conduct of Her Majesty's Government in the matter.

JAMAICA—CHARGE OF THE LORD CHIEF JUSTICE—MR. PURCELL.

  QUESTION.
  EARL RUSSELLasked the Secretary of State for the Colonies, whether his attention had been called to the remarks made by a Stipendiary Magistrate in Jamaica, Mr. Purcell, on the Charge of Chief Justice
  1718
  Cockburn in the case of General Nelson? No doubt their Lordships were all well acquainted with the elaborate Charge made by the Lord Chief Justice to the Grand Jury at the Old Bailey. It appeared that this Mr. Purcell had spoken disrespectfully of the Charge, and when his attention was called to the impropriety, said he did not care for the opinion of Sir Alexander Cockburn. He (Earl Russell) did not think that such observations ought to be made by a stipendiary magistrate, and he would therefore ask whether the attention of the noble Duke had been called to it?
  LORD DENMANsaid, he would remind their Lordships that the Grand Jury did not think much of the Charge for they threw out the Bill.
  VISCOUNT MELVILLEsaid, that a more unjust, unfair, and partial Charge never was delivered by any Judge from the Bench.
  THE DUKE OF BUCKINGHAM: In reply to the Question put by the noble Earl (Earl Russell), I have to state that my attention has been called to the language used by Mr. Purcell. Some colonial newspapers have been forwarded to me which contained it; and I have received a despatch from the Governor, who felt it to be his duty to call my attention to the statement which had been made, and to communicate with Mr. Purcell on the subject. Perhaps I ought to explain the position Mr. Purcell holds. Towards the close of last year an arrangement was made for the constitution of some Courts in Jamaica, similar to the County Courts in England, to take cognizance of certain cases which had formerly been under the jurisdiction of stipendiary magistrates, who had been reduced in number through vacancies not having been filled up. It was proposed that the new Courts should have jurisdiction in cases of debt not exceeding a limited amount, and should also deal with small cases of trespass. It was desired that the Judges for these Courts should be obtained from England. To avoid the difficulty and delay that would wise from a number of cases remaining undisposed of through the reduction of the number of stipendiary magistrates it was thought desirable by Sir John Grant that the gentlemen selected to fill the office of Judges should be sent out as early as possible, in order that, pending the enactment of the law established by the Courts, they might act as stipendiary magistrates, and so prevent the accumula-

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  tion of legal business and the practical denial of justice. Six gentlemen conversant with the law were selected by my predecessor, and one of these was the gentleman who made the remarks in question. He appears to have been a man of considerable ability and legal knowledge, and the Governor, in his despatch, bore testimony to the fact; but I regret to find that Mr. Purcell's explanation does not convey a denial of the language imputed to him; and that his own explanation, to my mind, certainly decides that, however able he may be, he is wanting in those qualifications of discretion and decorum of manner on the Bench necessary to constitute an efficient Judge. I felt it to be my duty at once to inform Sir John Grant that Mr. Purcell's appointment to the office of Judge was not to be completed and confirmed. With regard to his appointment as a stipendiary magistrate, that rests with the Governor; but I have little doubt that Sir John Grant will not think it consistent with the due administration of justice in Jamaica that Mr. Purcell should continue to be employed in any judicial capacity. It is not easy or possible to obtain for the salaries the colonies can offer, barristers of eminence, and therefore opportunity has not always been afforded, by any actual practice in open court, to test the temper and discretion of those who may be selected. It is right, however, that it should be known that of the six gentlemen sent out the remaining five have given the greatest satisfaction. I have in my hand a private letter with reference to one of these Judges, which states that nothing can exceed the satisfaction which his judgments and his deportment have given in the island; and I understand that letters containing similar expressions of satisfaction have been received with respect to two or three other Judges.
  LORD CAIRNS: My Lords, I happen to be aware of the circumstances under which these appointments were made. In the course of last year, when I had the honour of holding the office of Attorney General, and when the noble Lord near me (the Earl of Carnarvon) was at the head of the Colonial Office, he informed me that he desired to send some members of the bar to Jamaica to act as stipendiary magistrates, and ultimately to be appointed Judges; and he asked me to submit him the names of any gentlemen of the Bar whom I thought
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  might be competent to fill the office. Your Lordships can readily imagine that there is a difficulty in finding in this country gentlemen who have made for themselves a position at the Bar and who have prospects of success here, and who yet are willing to accept an appointment with the moderate salary which a colony can afford to give. That difficulty lay very much in the way of many names that I should otherwise have been able to submit to my noble Friend. I have no personal acquaintance with Mr. Purcell; but he had on former occasions been pointed out to me as a gentleman who had attained a high University reputation, and who possessed an amount of legal knowledge very much above the average, and it occurred to me that he might be disposed to accept one of these appointments. I therefore submitted his name to my noble Friend, and he was nominated. From the Papers since sent to me, I am glad to find that there is every reason to be satisfied with respect to the legal ability of Mr. Purcell; but I am bound to confess that the observations made by him, and to which the noble Earl has called our attention, appear to me to admit of no justification whatever. They are deserving of the gravest censure; and I cannot conceive that the noble Duke could have adopted any other course than that which he has taken.
  THE EARL OF CARNARVON: The noble and learned Lord having stated the manner in which the appointment of Mr. Purcell was made, I can only say, after having heard the discussion, I think the noble Duke at the head of the Colonial Office acted with every propriety in declining to complete the appointment of Mr. Purcell. The language he has used was indecorous in the highest degree, and utterly disqualified him for the administration of justice in the island. Under these circumstances, I think the noble Duke has acted with the greatest propriety.
  THE LORD CHANCELLOR: When the noble Duke called my attention to the speech of Mr. Purcell, and asked my advice on the subject, it appeared to me that nothing could be more offensive and indecorous than the expressions he used on the occasion referred to. I understood Mr. Purcell was a stipendiary magistrate, and was to be appointed to a district Judgeship. I asked whether he had been appointed to the Judgeship, or whether he was merely in course of appointment—for

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  I thought that a different view ought to be taken of the case under these different circumstances; that however improper and indecorous the expressions he used might be, they could hardly be deemed a sufficient ground for removing him from his office; but that, if he had not been appointed, it would be quite proper to withhold the appointment. I rise now, not so much to express an opinion with regard to what Mr. Purcell has said, the matter having been sufficiently discussed, as to say that I cannot help expressing my very great regret that my noble Friend on the right (Viscount Melville) should have used such very strong expressions with regard to the able Charge of the Lord Chief Justice. That Charge, I understand, occupied five hours in the delivery, and, of course, before my noble Friend expressed so strong an opinion against it, he has taken care to read every part of it.
  VISCOUNT MELVILLE: I have read all that was published.
  THE LORD CHANCELLOR: Well, but it was published in an octavo volume, and I am bound to assume that my noble Friend has read every part of it, and has well considered it before he criticized it. All I can say is, that it is impossible to do ample justice to the research and the ability which that Charge displays. As to the law on the subject, persons may differ from the learned Lord Chief Justice; but there can be no doubt that the Charge was the result of the conscientious conviction of the Lord Chief Justice, expressed after due deliberation, and that in that Charge my right hon. and learned Friend displayed great ability and research. I can only say that I am sorry my noble Friend (Viscount Melville) has expressed himself so strongly on the subject. A great many persons differ entirely from my noble Friend, and are of opinion that the Charge is deserving of the highest praise.
  VISCOUNT MELVILLEsaid, he did not question the law of the Lord Chief Justice; but he did say that a Judge ought not to have displayed so much partisan feeling as was manifest by the Lord Chief Justice on this occasion.
  Lord DENMANAfter some inaudible remarks from Lord DENMAN,
  LORD CRANWORTHsaid, that, as a legal Member of their Lordships' House, and a personal friend of the Lord Chief Justice, he could not allow the remarks of the noble Lord (Viscount Melville) to pass without notice. He fully concurred in the
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  remarks of the noble and learned Lord on the Woolsack; and would bear his testimony to the great learning and ability displayed by the Lord Chief Justice in the Charge referred to. He must further say that, if his noble Friend could establish the charge he had made against the Lord Chief Justice, instead of holding the position of high respect which he enjoyed, that Judge deserved to be impeached at the Bar of their Lordships' House.
  THE EARL OF SHREWSBURYsaid, it was not for him to express an opinion upon the Charge—he had heard many persons say there were grave errors of judgment in it, and that many matters which were asserted by the learned Judge could be contradicted. He hoped those who had read the Charge had also read the answer to it.

  MAINTENANCE OF FAMILIES BILL [H.L.]
  A Bill to amend the Law relating to the Maintenance of Families—Was presented by The Marquess TOWNSHEND; road 1a. No. 244.)

  REFORMATORY SCHOOLS AMENDMENT BILL [H.L.]
  A Bill to amend the Law relating to Reformatory Schools—Was presented by The Marquess TOWNSHESD; read 1a. (No. 245.)
  House adjourned at a quarter past Seven o'clock, till Monday next, Eleven o'clock.