Lords Sitting of 21 July 1868

MINUTES
PUBLIC BILLS—First Reading—Consolidated Fund (Appropriation) *.
Second Reading—Colonial Shipping * (274); Titles to Land Consolidation (Scotland) *(268); General Police and Improvement (Scotland) Act Amendment * (267).
Committee—Railway Companies (Ireland) Advances * (226); Sanitary Act (1866) Amendment * (252); Vaccination (Ireland) * (254); Courts of Chancery and Exchequer (Ireland) Fee Funds * (171); Tithe Commutation, &c. Acts Amendment * (256); Municipal Elections (Scotland) * (263–276); Public Departments Payments * (264); Sir Robert Napier's Annuity * (265); Tain Provisional Order Confirmation * (242); Land Drainage Provisional Order Confirmation * (241); Larceny and Embezzlement * (245–277); New Zealand Assembly's Powers * (247); Militia Pay *; New Zealand Company * (154); Turnpike Acts Continuance (253).
Report—Railway Companies (Ireland) Advances * (226); Vaccination (Ireland) * (254); Courts of Chancery and Exchequer (Ireland) Fee Funds * (171); Court of Session (Scotland) * (246–275); Tithe Commutation, &c. Acts Amendment * (256); Public Departments Payments * (264); Sir Robert Napier's Annuity * (265); Tain Provisional Order Confirmation * (242); Land Drainage Provisional Order Confirmation * (241); New Zealand Assembly's Powers * (247); Militia Pay *; New Zealand Company * (154).
Third Reading—Portpatrick and Belfast and County Down Railway Companies * (238); Burials (Ireland) * (269); Bankruptcy Act Amendment * (270); Marriages Validity (Blakedown) * (271) and passed.

SOUTH EASTERN AND BRIGHTON AND SOUTH COAST RAILWAY COMPANIES BILL.
Commons' Reasons for disagreeing to One of the Amendments made by the Lords considered (according to Order).
LORD REDESDALEregretted that he felt obliged to ask their Lordships to insist on the omission of Clause 88, which they had struck out from the Bill, but which the Commons had re-inserted. The
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Commons, in their Reasons, said that the clause in question did not affect the interests of the public, but only those of the holders of stock in the South Eastern Company. They said, in effect, that the Companies ought to be left to regulate their capital in their own way. That argument, however, if it were admitted, would go towards putting an end to all restrictions whatever by Parliament on the financial operations of Railway Companies. It was desirable that there should be as little diversity of interest as possible in Railway Companies; but in this case there was a large amount of ordinary stock which it was proposed to divide—one-half into preferred, and the other half into what was called deferred stock—thus creating at once two separate interests in the ordinary capital of the Company. He had no hesitation in saying that the main object for which it was desired to effect that separation was for stock-jobbing purposes. Having one stock fixed at a high rate of interest, and another at a fluctuating rate, this enabled persons, by manœuvring the dividend on the fluctuating stock, to raise its character, and he had no doubt that this was the motive for the alteration which had been made in the Bill. As the subject was one with which many of their Lordships might not be very well acquainted, he had stated his reasons for the course he was taking in a Memorandum which had been distributed for the information of their Lordships. He knew that in these cases the promoters of Bills often canvassed their Lordships and tried to impress them in favour of their own views, and he was anxious that their Lordships should understand the real merits of the question. The matter was a serious one in connection with railway legislation, and he trusted their Lordships would insist on striking out this clause.
Moved, "To insist upon the Amendment made by the Lords to which the Commons have disagreed."—(The Chairman of Committees.)
THE DUKE OF RICHMONDsaid, he could not agree either with the course which the Chairman of Committees advised the House to adopt or with the reasons on which that advice was founded. The noble Lord had taken the extraordinary step of circulating a Memorandum among their Lordships, stating his views on a subject which was to be discussed by them in relation to a Private Bill. The noble

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Lord said, indeed, that be had done that in order to impart knowledge to those noble Lords who did not understand the question; but such noble Lords would do far better to look into the matter for themselves than be led by the nose by his noble Friend. He had listened attentively to his noble Friend; but the only reason he bad heard advanced for objecting; to the clause was because, as he elegantly termed it, they were brought forward for stock-jobbing purposes. He could not agree with him in his view of the question. He thought the tendency of Parliament of late years had been not to interfere with the financial arrangements of these companies; providing, of course, that Parliament saw that no injustice was done to mortgagees, or other parties who might be injuriously affected by legislation. For that purpose the Joint-Stock Companies Act was amended last Session; and he also had the honour of conducting through that House the Railway Companies Act, by which certain restrictions were put upon the issue of shares at a discount; and the limitation of the interest on debenture stock. Moreover, the course proposed by his noble Friend was entirely opposed to the recommendations of the Railway Commission, which went very fully and carefully into the question, and gave it as their opinion that it was the more judicious course for Parliament to relieve itself from interference in the financial affairs of Railway Companies, that it should limit itself to the questions of the construction of the lines, the relations between the public and the companies, and the requiring from them of guarantees for the due performance of the conditions on the faith of which their powers were granted. The clause to which the noble Lord objected referred only to the shareholders themselves, who need not come into the proposed arrangement unless they pleased. Instead of proving injurious to the proper management of the Company, he believed the proposed subdivison of the capital would tend to give all the parties concerned an additional interest in seeing that the Directors did their duty, and in putting the undertaking into a better state. On these grounds, he hoped their Lordships would acquiesce in the Commons' Amendment.
LORD REDESDALEremarked that this was the first attempt to apply the principle of division to paid-up stock. It was true that in a few instances companies had been
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allowed, when they otherwise would have been unable to get out a portion of their unpaid-up stock, except at a discount, to issue it as preference stock. He objected to the creation of a diversity of interests, the object of these divisions being to apply the deferred stock to jobbing purposes, unfounded statements being circulated as to the dividend forthcoming upon it. The promoters expected to obtain a great advantage in this way; but the limitation with regard to 3 per cent was an admission that the process might be disadvantageous under particular circumstances, and he believed it would be injurious both to the companies and to the principles of railway legislation.
THE MARQUESS OF SALISBURYsaid, he wished to say a few words, being acquainted with the opinion of railway men on this subject. He had hoped to hear the noble Lord (the Chairman of Committees), on rising a second time, withdraw the insinuations he had made against the Gentlemen who promoted this Bill. On a former occasion the noble Lord had no other mode of resisting a proposal to give certain powers to the Board of Trade than by insinuating that that Board was under the influence of the Railway Companies; and he now charged the promoters of this Bill with the intention of spreading reports about dividends and jobbing with the shares in the stock-market. He thought the noble Lord should make his attacks on private character in a place where he could be answered, and not under cover of the privilege of this House. Last year, indeed, the noble Lord was a little bolder and ventured into print; but the result of that experiment was so unsatisfactory that it was doubtful whether he would repeat it. Now, he protested against the noble Lord's assumption that any person whose policy was different from his own was influenced by sordid and corrupt motives. Where the public interests were concerned it, no doubt, behoved Parliament to be very vigilant; but in this case the question was merely whether a shareholder should be allowed to make his property more valuable by dividing it into two parts, one having a fixed and the other a variable dividend. Why should the owner of railway more than of any other property be debarred from making the best use of it, or from putting it into the most marketable form? The landed interest was strong in this House, while the railway interest was weak; but, if the reverse were the

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case, would it not be thought an intolerable grievance if, because some railway manager had theories about landed property, and was attached to certain narrow formulas, the House were to prohibit the division of estates as their owners pleased, and insist that all farms should be of equal size? He hoped their Lordships would adhere to the golden rule of doing as they would be done by. He could not express the aversion and dread with which he saw the extent to which the great powers of the House were used in a manner which must not only be injurious to the interests, but offensive to the sense of justice of a large portion of the people. These shareholders were the best managers of their own affairs. [Lord RFDESDALE: They have not proved themselves so.] He attributed the present condition of railway property to the petty and narrow formulas which had induced Parliament to prevent companies from managing their property to the best advantage. If their Lordships thought this property should be dealt with differently from all other property he had not a word to say; but he would entreat them not to place their whole powers in the hands of one man, and not to believe that because he had studied the question more than most of them that he was necessarily correct. He had the greatest respect for the ability and good intentions of the noble Lord the Chairman of Committees; but he was satisfied of the evil effects which his mode of legislation had worked upon a largo portion of the property of the nation.
THE LORD CHANCELLORsaid, he thought their Lordships ought to feel very much indebted to his noble Friend the Chairman of Committees for the anxiety he invariably evinced that legislation in these matters should be founded on sound principles. He (the Lord Chancellor) was the more entitled to say this, as he did not agree in the conclusion at which his noble Friend had arrived in this instance. He thought that just in proportion as their Lordships exercised a vigilant supervision over the dealings of Railway Companies with the public, so should they abstain from meddling with the companies' internal affairs. Now, the proposal was that a person having £10,000 of railway stock should be at liberty to divide it into two sections, and that until the dividend reached a certain amount it should be confined to £5,000, in lieu of being spread over the whole £10,000. In other words, it was proposed to create out of
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this £10,000 a preferential stock of £5,000, which would be much more disposable in the market, and to retain the rest for the chance of dividends after the first dividend was paid. He wanted to know why a man, should not be allowed to do that? What was the reason assigned by the noble Lord? He said that it would be very inconvenient, and very much against the interest of the Railway Companies, that there should be a variety of stocks. But supposing that were true, why should their Lordships consider what was for the interest of the Railway Companies? Were not the Railway Companies the best judge of their own interest? He spoke with some experience with regard to the legal questions which had arisen in those cases in which it had been found that Railway Companies had been mismanaged. His observation was this—that whenever there was an improper management with regard to the earnings of the company the circumstance which had always led to its detection was this, that there had been conflicting interests—that there had been two classes of stockholders in the company. If therefore their Lordships wished to make it unlikely that mismanagement should be detected, they would allow only one kind of stock in the company; but if they wished that mismanagement should be detected and exposed, then they would not prevent the creation of different kinds of stock.
LORD ROMILLYsaid, that if the public were not affected he should not be inclined to insist upon the Amendment. Did anybody believe that if the Railway Company retained all the £10,000 railway stock they were childish enough to prefer 5 per cent on £5,000 and nothing on the remaining £5,000 to 2½ per cent on £10,000? What it really would effect was to enable the Railway Companies to sell the half which was worth nothing for a substantial value. It was accomplished by what was called "rigging the market" which was by fictitious transactions and representations to give to shares worth nothing a temporary value in the market. It might be said that only foolish people would be induced to buy such shares and also that the Railway Companies would not avail themselves of this power. But laws are made to protect foolish people and Parliament was bound not to give powers to persons who might abuse them, in the belief that they would not do so. Bodies of gentlemen are frequently found to do collectively for a company what no one of them would do

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for himself individually. For the last three or four years his time had been almost wholly taken up with investigating cases in which companies had made false representations to individuals, and thus induced them to take shares. He had therefore come to the conclusion that the effect of this measure should be that Bail way Companies would be able to give an appearance of advantage to a class of worthless shares, and so induce the public to trust them in a way the state of their funds did not warrant, and that their Lordships would be doing a great evil if they consented to do so.
On Question? their Lordships divided:—Contents 11; Not-Contents 30: Majority 19.
Resolved in the Negative.

TURNPIKE ACTS CONTINUANCE BILL
(The Lord Clinton.)
TURNPIKE ACTS CONTINUANCE BILL

  (NO. 253.) COMMITTEE.
  House in Committee (according to Order).
  LORD REDESDALEobjected to the compensation clause, which their Lordships had struck out of former Bills, and the re-introduction of which created expectations on the part of officers of trusts that some provision would be made for them when the trusts expired. The officers included solicitors and surveyors who ought to have no difficulty in finding employment in place of that lost by the cessation of a trust.
  A noble LORD said that surveyors, who must have been ten years in the service to entitle them to compensation, and who in some cases might lose employment altogether, were entitled to some consideration.
  After a few words from The Earl of STRADBROKE,
  THE EARL OF KIMBERLEYsaid, he thought there was reason for giving surveyors compensation, for in many cases great credit was due to them for getting trusts out of debt.
  LORD CLINTONsaid, there was some force in the distinction which had been drawn between the surveyors and other officers of turnpike trusts. Many of the surveyors were employed exclusively in the service of their trusts, derived their whole income from them, and some of them had reached an age when it would be difficult
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  for them to turn their hands to any other occupation if deprived of their offices. This compensation clause which they were now considering was first introduced into a continuance Act in the year. 1866, and was then rejected by their Lordships; it was again introduced as a part of the Government measure in 1867 when it was again rejected; and it now appeared for the third time, inserted into the Bill by a private Member during its progress through the other House and not objected to by the Government. It was not perhaps a subject which was likely to lead to a collision between the two Houses, but the other House had shown itself sufficiently in earnest on the subject to induce their Lordships, he hoped, to give on this occasion a more favourable consideration to the clause.
  (In the Committee.)
  LORD REDESDALEsaid, that he would move an Amendment on the compensation clause on the Report.
  An Amendment made: The Report thereof to be received on Thursday next.

FORESHORES.

  MOTION FOR PAPERS.
  THE DUKE OF BUCCLEUCH, in moving an Address to Her Majesty for Copies of certain privately printed Papers relating to Foreshores, said, the subject was one of very great importance, and one in which the interests of the public were largely concerned; but it involved ft more intimate knowledge of the law than he could pretend to possess. Of late many claims had been put forward on behalf of the Crown to the Foreshores, which proceeded on the assumption that the shores and bed of the sea formed part of the proprietary rights of the Crown. He was informed, however, this was an entire misconception of the law, and that by usage they belonged to the owners of the adjoining lands. He was informed that the cases in which the Court of Exchequer had decided in favour of the Crown were always cases in which the Crown was the owner of the land on which the Foreshores abutted. There were important Papers now in the possession of the Commissioners of Woods and Forests, relating to this subject, which had been transferred to them from the Treasury. These Papers had already been printed, because, being very voluminous, the expense of multiplying them in manuscript

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  would have been very great. But, as they were in print, he thought they might be usefully produced.
  Moved, "That an humble Address be presented to Her Majesty to request that Her Majesty will be graciously pleased to order that there be laid before this House by the Commissioners of Woods and Forests, Copy of each of the following privately printed Papers: namely,
  "Report on the Right to Foreshores and the legal Decisions affecting the River Thames and the Rights of the Citizens of London from the Time of Henry III.; by J. W. Pycroft, F.S.A., M.R.A.S.; Reg. Sept. Antiq. Reg. Soc, pp. 161: Also,
  "Arguments relating to Sea Lands and Salt Shores: Objections thereto and Answers to such Objections (now first printed from MSS. in the Landsdown Collection [British Museum], London 1855, pp. 61.), disclosing that the Foreshore is the Property of the adjacent Proprietor, and not belonging to the Crown by virtue of its Prerogative, and that the latter has no primâ facie Rights therein or thereto, and of a certain Résumé of the 5th August filed on the 21st of May last:
  "As also a Copy of the Shorthand Writer's Notes in the Case of the Attorney-General v. Jones, in the Exchequer, in which Her Majesty's Barons of that Court declared that the Foreshore belonged to the Subject by Usage; as also a Copy of all the Correspondence had in reference to such Case previous to the Commencement of these legal Proceedings or subsequent thereto; as also of the Writ upon which Issue was afterwards joined, and all Proceedings subsequent thereto, including the final Decision of the Barons of the Exchequer declaring the Law of England to be that Foreshore belonged to the Subject by Usage: Also,
  "Copy of the Defendant's Bill of Costs (previous to Taxation), as also a Statement of the Amount which has been paid to him: And also,
  "Statement of the Reasons why the History of the Result of this and Seven other adverse Cases in which the Attorney-General and the Lord Advocate were defeated was omitted to be stated in their Annual Reports addressed to Her Majesty, and presented by Royal Command (in continuation of Parliamentary Paper No. 185., Session 1867.)"—(The Duke of Buccleuch.)
  THE DUKE OF RICHMONDregretted that he was not able to acquiesce in the Motion of the noble Duke. If all the Papers moved for by the noble Duke were ordered to be printed they would amount to something like four or five folio volumes, and the subject was not such as to warrant the large expenditure of public money that they would cost. Moreover part of these Papers were no more than private statements and arguments addressed to one side of the case. The matter was, in fact, a private and not a public affair—the public had nothing to do with it, and be objected to the outlay of public money in printing private documents. He had no objection to grant certain Returns in continuation of
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  what had been moved for by Mr. Augustus Smith in the House of Commons between 1863 and 1866.
  LORD REDESDALEsaid, he saw no good reason why the Government should object to lay on the table a copy of the judgment in the case of the "Attorney General v. Jones."
  THE LORD CHANCELLORsaid, that if the judgment in question decided any important principle it was to be found in the authorized Report in their Lordships' Library. There would therefore be no public good in printing it. To print at the public expenses the pamphlet of an enter-prizing and somewhat eccentric gentleman like Mr. Pycroft would, he thought, be a somewhat unjustifiable use to make of the public money.
  Motion (by Leave of the House) withdrawn.
  THE DUKE OF BUCCLEUCHthen moved an Address for—
  "Statement of all legal Proceedings which have been instituted by the Law Officers at their Instance in the Name of the Crown, or in the Behalf of Her Majesty, with respect to the alleged Title claimed by the Crown to the Bed or Shores of the Sea or the Foreshores or Beds of Navigable Rivers against Corporate Bodies or Private Individuals from the 1st Day of Jauuary 1843 to the present Time:" [and other Particulars.]
  Motion (by Leave of the House) withdrawn.

  BED OF THE SEA, &c.
  Then THE DUKE OF RICHMOND moved an Address for—
  "Statements: Of all legal Proceedings instituted by the Law Officers or otherwise on Behalf of the Crown, with respect to the Title of the Crown to the Bed or Shores of the Sea or the Beds or Shores of Tidal Navigable Rivers against Corporate Bodies or Private Individuals, from the 21st Day of July 1863 up to the 31st December 1866:
  "Of the Nature and Object of the Suit in each Case; the Name of the Law Officer by whom it was commenced; and whether the Decision or Result was in favour of or adverse to the Crown; and the Amount of Costs incurred on behalf of the Crown:
  "Of the Length of Time during which each Suit was pending before it was brought to a Conclusion or its Object was attained; the Nature of the Steps taken therein; and any Observations necessary to explain the same:
  "Of the Terms upon and Authority or Advice under which any such Proceedings have been settled:
  "Of the Estimated Value of any Property that has by means of such Suits been recovered by the Crown:
  "Of the Cases in which such Suits bare been discontinued by the Law Officers of the Crown: And,
  "Of the Particulars of all Cases in which the Title of the Crown to Property of the above Description has, between the 21st Day of July 1863 and the 31st Day of December 1860, been admitted without Litigation; the Estimated Value of the Property; with a Statement showing how the same has been leased or disposed of up to the last-mentioned Day."—(The Duke of Richmond.)
  Motion agreed to.
  House adjourned at a quarter before Seven o'clock, to Thursday next, a quarter before Three o'clock.