Lords Sitting of 5 April 1869

MINUTES.
PUBLIC BILLS—First Reading—Tenure (Ireland)* (36); Mutiny*; Marine Mutiny*; Lord Napier's Salary* (37); Lands Clauses Consolidation Act Amendment* (38); Drainage and Improvement of Lands (Ireland) Supplemental* (39).
Second Reading—East India Irrigation and Canal Company* (31).
Committee—Governor General of India (16).
Report—Common Law Courts (Ireland)* (9).

GOVERNOR-GENERAL OF INDIA BILL.
(The Duke of Argyll.)
GOVERNOR-GENERAL OF INDIA BILL.

  (NO. 16.) COMMITTEE.
  House in Committee (according to Order).
  THE DUKE OF ARGYLLsaid, he had to propose to their Lordships the insertion of an additional clause of some importance, to which he desired to call the attention of the noble Earl opposite (the Earl of Ellenborough). The Act of 1833 contained five or six clauses, providing that Europeans should not reside in India without the consent of the Governor-General in Council, and empowering him to issue regulations as to their residences and as to licenses, amounting, in fact, to a system of passports in that country. Now, the whole condition of the country had so much altered that these clauses were practically obsolete; but nevertheless they acted as a very inconvenient impediment on the action of the Government in India in dealing with vagrants, the number of whom had

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  greatly increased since the introduction of railways, owing to the large bodies of navvies employed in their construction, and to other causes. The repeal of these clauses had consequently been contemplated; but on further consideration it was thought that, as prior to the Act of 1833 it was altogether illegal for Europeans to reside in India without the permission of the East India Company, such a step might have the effect of reviving enactments still more obsolete. He had therefore come to the conclusion that it would be better to add a clause to the present Bill enabling the Legislature of India to deal with vagrancy notwithstanding those clauses; any Act on the subject being subject, of course, to the approval of the Secretary of State in Council. This would avoid all difficulty, and one or two of the clauses were valuable, as laying down the principle that Europeans insulting or injuring the religion or customs of the natives should be subject to penalties.
  THE EARL OF ELLENBOROUGHthought the noble Duke would do well to communicate with the Horse Guards on the subject, his impression being that many of the vagrants were discharged soldiers.
  Further Amendments made; The Report thereof to be received on Thursday next.

  CHINA—MISSIONARIES AND GUNBOATS IN FORMOSA.—QUESTION.
  THE DUKE OF SOMERSET,on rising to put the Question of which he had given notice, said, he would take that opportunity of reading to their Lordships an extract of a statement from the directors of the London Missionary Society—a body to which he was exceedingly anxious to do justice—to the effect that they had nothing to do with the Inland China Mission at Yang-chow, and were in no way responsible for its proceedings. The Inland China mission was an entirely distinct society, differing in many ways from their own views and practices, since the missionaries of the London Mission Society resided in treaty ports, or at Pekin or Hong Kong, and, with scarcely any exception, had had no occasion during the past twenty years to apply to any British consul for personal protection. They added that they were always anxious, whenever
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  practicable, to co-operate with the English Government. He was glad to exonerate the London Missionary Society from being mixed up in these proceedings, for that body was well acquainted with China, and he was also glad to find that they were sensible of the imprudence of sending missionaries to ramble through the country, instead of confining them to treaty ports and to Pekin or Hong Kong, for it was the passing beyond these places which had caused difficulties and had brought our religion into hostility with the people of China. He now wished to know whether the Foreign Office or the Admiralty could furnish any information as to proceedings of Missionaries and Gunboats in Formosa? Having understood a short time ago that no hostile operations were to be undertaken by British consuls or officers without first communicating with the representative of Her Majesty's Government at Pekin, he had heard with surprise that operations not thus authorized had taken place in Formosa. Missionaries having gone there, the people, being very violent and fanatical, rose against them and drove them back—whether with any loss of life he could not say—and next attacked, as they were very apt to do, all the foreign residents. Then came the inevitable gunboat—for, as he remarked on a previous occasion, gunboats were always called in where the missionaries had made these unfortunate inroads on the feelings of the people—and ten or twelve natives were killed. Now, was this the way to promote Christianity in China? It was surely right that the attention of the public should be called to the subject, in order that, if such proceedings could not be otherwise prevented, they might stop the supplies, without which these missionaries would not carry on their operations.
  THE EARL OF CLARENDONsaid, he believed that all the information in the possession of the Foreign Office for which the noble Duke asked had already been laid on the table, being comprised between pages twenty-two and fifty-six of the China Papers. From these Papers they would gather that the affair at Formosa originated in the destruction of a mission-house, and that there were also some commercial disputes, an attack upon a British subject, Mr. Pickering, and one or two other matters for which redress was sought. He was afraid that

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  the Foreign Office could not furnish a connected narrative of what had passed; but the Admiralty had received an account from the acting consul and from the commander of the gunboat, which had enabled the Government to form a judgment on the proceedings. He was sorry to say that that judgment was unfavourable to both the officers concerned—except, indeed, as to the professional part of Lieutenant Colonel Gordon's duty, for the operations conducted by him exhibited great judgment and forethought, while the skill and gallantry with which they were carried out entitled all concerned to the highest praise. But the fact was that the operations ought not to have been undertaken at all, for all danger to life and property had passed away several weeks before, and the only question left was that of reparation. This should have been ascertained, and then if any remissness had been shown by the authorities in giving redress it would have been a matter for communication between Her Majesty's representative at Pekin and the Chinese Government, and was not to be made a subject of reprisal and violent action by, two subordinate officers. The Government wholly disapproved the exaction of a considerable sum of money—$ 40,000—as compensation for the outrage and still less of two sums of $ 5,000 each—one for the military stores used in storming the Chinese fortress and the other by way of reprisal—and they had directed that the money should be returned, with an expression of regret for what had occurred. The conduct of the vice consul also appeared to them highly reprehensible, and directions had been given that he should no longer act in that capacity. He hoped this step would have a salutary effect on the whole consular body, and that they would understand that they would incur the severest condemnation if they wantonly undertook military operations without the sanction of the Government, or without absolute necessity. He was glad that his noble Friend (the Duke of Somerset) had done justice to the London Missionary Society, for since the previous discussions on the subject he had received a numerous deputation from that most respectable body, who feared that his noble Friend had placed upon them the blame of what had occurred, and who, therefore, placed in his hands the statement to which his noble
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  Friend had referred. He wished also to refer to a dispatch that had lately been received from Sir Rutherford Alcock, because he thought that the public should know the result of his great experience in China, and of the labour and the study that he had bestowed upon missionary questions. He said that the hostility to missionaries was general throughout China, and that it did not come from religious intolerance, but was partly personal and partly political. He considered that they had an enmity against the very name of Christianity; and they disliked it on account of the support that had been given to the rebellion; and also from a spirit engendered by the French missionaries, who taught their converts to rely upon no authority but their own, and to despise the native authorities. There were also great differences between the Protestant and Roman Catholic missionaries, of which Sir Rutherford Alcock gave some very unseemly instances. There was, further, a great fear all over China that the missionaries would so exercise their influence as to interfere with the local authorities, and these officers, therefore, induced the literati and gentry to encourage and institute acts of oppression against the missionaries. Sir Rutherford Alcock truly observed that, unless we intended to carry on the work of proselytizing by the sword, it was absolutely necessary that the missionaries should not establish themselves at places where they could not have constant communication with their countrymen. It would be absolutely impossible to protect the Chinese converts except by naval and military forces; and Sir Rutherford Alcock added that if ever Christianity was to become general in China it would be through the upper classes, and not in spite of them, and therefore it was most material that missionaries should confine themselves to the treaty ports and carry on their labours with great judgment and caution. Quite recently a most offensive placard against the Roman Catholic religion had appeared on the walls of Shanghai, and Sir Rutherford Alcock doubted whether any prospect of success which the missionaries were entitled to entertain would compensate the dangers they incurred in disregarding not only the laws of the country and the prejudices of the people, but the advice of their own Government. While all must admire the undaunted

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  courage with which, in the spirit of martyrs, the missionaries laboured for the spread of religious truth, he hoped their zeal would not altogether exclude discretion, and that when once they became thoroughly convinced of the dangers to which they exposed themselves, of the risk they ran of producing riot and bloodshed and of embarking this country in war—when convinced, too, above all, that they were not in the path leading to success even in their own calling, both they and the societies which sent them forth from this country would see that the system hitherto pursued must be abandoned. He trusted that the stringent instructions which he had sent out and the good sense of the missionaries themselves would bring about a better state of things; and for this no moment could be more favourable than the present, for he had received a telegram from Sir Rutherford Alcock, informing him that order was restored in all quarters, that the instructions recently sent out had been communicated to the Prince of Kung, that the best understanding existed between the Prince and the Foreign Ministers, that there was no more cause for anxiety in any point, and that our relations with China had never been more satisfactory.
  THE EARL OF SHAFTESBURYsincerely hoped the missionaries would take the excellent advice given by the noble Earl, and of this he had not the slightest doubt, for all the great societies were acting with great moderation, judgment, and care. He believed, however, that in the case of Formosa the missionaries were not concerned. There was a Presbyterian congregation there; but it had not been the action of the missionaries which had led to the disturbances, except that they had been instrumental in making converts. The attack was made on the converts, and they being entitled to certain rights under the treaty, redress was sought on their behalf, the missionaries having nothing to do with it.

MARRIAGE LAW COMMISSION REPORT.

  OBSERVATIONS. QUESTION.
  LORD CHELMSFORDrose to call the attention of the House to the Report of the Marriage Law Commission, and to ask Her Majesty's Government whether they intended to introduce any measure founded on that Report? The Commis-
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  sion was appointed in March 1865, on account of the great difficulties that had arisen from the difference of the Law of Marriage in the different parts of the United Kingdom. This difference occasioned great embarrassment in our courts of justice, frequent conflict of opinion, and rendered uncertain the status of individuals, from the uncertainty whether a valid marriage had been contracted on one side or the other of an artificial line. This difficulty had been illustrated in a most striking manner in a late celebrated case before both the Irish and the Scotch Courts—n the one case from the peculiarities of the Scotch Law of Marriage, and in the other from the statute law relating to mixed marriages in Ireland. The controversies arising out of that case rendered desirable an inquiry into the possibility of bringing the marriage laws throughout the three kingdoms into closer conformity, and the Commissioners were accordingly directed to inquire into and report on the state and operation of the various laws in force in the different parts of the United Kingdom with respect to the constitution and proof of the contract of marriage, and the registration and other means of preserving evidence thereof. He himself had the honour of presiding on that Commission over persons than whom none could have been better qualified to investigate the subject; for England was represented by the noble and learned Lord on the Woolsack (Lord Hatherley), the late Lord Chancellor (Lord Cairns), Lord Lyveden, Mr. Walpole, Sir James Wilde, Sir Roundell Palmer, and Sir Travers Twiss; Ireland, by the present Lord Chancellor, Mr. Monsell, and Lord Mayo; and Scotland, by the Lord Justice General, the present Solicitor General, and Mr. Dunlop. Their first step was to direct the preparation of a succinct summary of the marriage law in different parts of the country, and at the request of his fellow-Commissioners he issued a Circular asking for information and suggestions. A copy of this was sent to all the Archbishops and Bishops, Protestant and Roman Catholic, to the Moderators of the Established Church, Free Church, and United Presbyterians in Scotland, to various deans, archdeacons, and other clergymen, to Roman Catholic clergymen in Ireland, to ministers and members of Dissenting

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  bodies, including the President and Vice President of the Wesleyan Conference, and to many registrars of marriages in England. This Circular elicited valuable information; and witnesses from all. parts of the country were also examined. The inquiry extended over three years, and this was not attributable to any want of diligence, the reason being that some of the Commissioners had judicial and other duties to discharge in Ireland and Scotland, which rendered it difficult to fix the meetings to suit their convenience. If, however, any of them were absent they informed themselves of the evidence which was taken, and the result was that the Report was signed by all the Commissioners except Lord Mayo, who, having been prevented by his duties as Irish Secretary from attending the later meetings, did not think himself justified in affixing his signature. The Lord Chancellor of Ireland and Mr. Monsell signed it, with the reservation that they dissented from the recommendations as to divorce, believing the marriage tie to be indissoluble, and divorce à vinculo to be contrary to the law of God; while the Lord Justice General took exception to every part of the Report involving a change in the principle of the Scotch law, holding that present consent to be husband and wife deliberately interchanged between a man and a woman labouring under no incapacity to contract, makes marriage between them, without the necessity either of a religious ceremony or of a compliance with any statutory forms or solemnities. The recommendations of the Commissioners he believed to be highly beneficial; but he would not now enter into them, since he was not asking their Lordships to adopt them. His only anxiety was that the expectations of the public should not be disappointed by no action being taken on the Report, and it being peculiarly a task for the Government he should be glad to see it undertaken by his noble and learned Friend on the Woolsack, for no man was better qualified to undertake a work of the kind.
  THE LORD CHANCELLORsaid, that his noble and learned Friend (Lord Chelmsford) had most truly stated that the subject was one of deep importance, and he felt grateful to him for having originally suggested that there should be a Commission, the result of which was a
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  Report which informed Parliament and the public generally of the anomalous state of the law with reference to marriage, and the necessity of some remedy. When his noble and learned Friend asked whether it was the intention of the Government to introduce any measure he assumed that he meant during the present Session. He must say briefly why it had been impossible for him to undertake a duty of that description. When he was first called upon to occupy the position he had now the honour to hold, he certainly had but a short time in which to prepare any measure of law reform of any general importance—though many subjects presented themselves to his attention, on throe of which he had sat upon Commissions. One was the matter that was now brought to their Lordships' attention, another the patent law, and the third our system of judicature. All of these subjects were of considerable importance, and as to the last of them the Report had only been made during the past week, and recommended an entire review and re-organization of our whole judicial procedure. The Patent Commission had reported long since, but no proceeding had been taken upon it, no doubt in consequence of the difficulty of the subject. Besides these three subjects there were two others of importance—those of Bankruptcy and the Law of Charitable Trusts. He undertook the duties of his Office in December last, a period of four months ago. For the first three months he was occupied in the Court of Chancery, and sitting judicially in their Lordships' House, and he thought it would have been an improper assumption of vigour on his part if he had attempted to grapple with the five subjects during the single month that was left to him. He therefore selected one of them, and bankruptcy naturally suggested itself to his mind because the subject had been frequently before Parliament, the defects in the existing law were universally admitted, and the whole mercantile community was anxious to have the law of debtor and creditor put upon a satisfactory footing. He had further | the advantage of considering the three different Bills that had been brought before Parliament upon the subject—all prepared with the greatest care and deliberation—and the various Reports that had been made. He also had interviews with various deputations from mercantile

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  bodies, and in this way he had been able to frame a measure which originally he intended to submit to their Lordships for consideration; but some of the deputations were extremely anxious that the measure should be introduced first into the other House. He thought there would be a general concurrence of opinion that such a measure should be introduced into the other House rather than in their Lordships' House. For his own part he readily acceded to that view, and the measure had accordingly been introduced "elsewhere," and would, he hoped, in due time, be presented for their Lordships' approbation. The Law of Marriage was a subject of the deepest interest to the whole community. After three years' consideration a Report had been agreed upon by the members of the Commission with one exception, but that exception was the Lord Justice General of Scotland. The subject, however, was one which affected every family in the kingdom, and sufficient time had certainly not been given to the public to weigh the consequences which might result from the alterations recommended by the Commissioners; and though to proceed with immediate legislation upon it might present the appearance of vigour and alacrity, still their might possibly succeed a charge of hastiness and inconsideration. With regard to charitable trusts, he hoped, at a later period of the Session, to call attention to the subject, for none required more careful consideration; but he should be sorry to propose legislation upon it at a time when there was no probability of its securing sufficient attention. A measure which equalled, if it did not exceed, in importance any measure which had been submitted to Parliament for many years past was now pending in the other House; and considering the time which its consideration must necessarily occupy, it would be unadvisable to introduce any measure involving changes in the law on subjects of great importance and difficulty. There was, moreover, considerable doubt whether, in one portion of the country at least, the recommendations of the Marriage Law Commissioners would meet with general acquiescence, and, judging from the publications expressly interested in legal objects, he doubted whether the Report had been so maturely weighed by the public as to warrant the expectation of such a general concurrence
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  of opinion as would be necessary for legislation affecting the domestic relations of the community. He trusted that, under these circumstances, their Lordships would be of opnion that he had come to a wise conclusion.

  TENURE (IRELAND) BILL [H.L.]
  A Bill to simplify the Law of Tenure in Ireland—Was presented by The Lord SOMERHILL; read 1a. (No, 36.)
  House adjourned at Six o'clock, till To-morrow, a quarter before Five o'clock.