Lords Sitting of 1 June 1869

MINUTES.
PUBLIC BILLS—First Reading—Evidence Amendment* (110); Irish Church* (109).
Second Reading—Stannaries (98).

STANNARIES BILL—(No. 98.)
(The Lord Portman.)
STANNARIES BILL—(No. 98.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  LORD PORTMAN, in moving that the Bill be now read the second time, said, its object was to amend the law relating to mining in Cornwall and to facilitate arrangements for working the existing system. The distress which existed in the mining districts of Cornwall, and which had led to the emigration of a considerable number of miners, had induced the consideration of a variety of remedies with a view of re-invigo-
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  rating the mining interest. This measure is one of them, and as the Cornish-men know well what is best for their interest, and earnestly support this Bill, he (Lord Portman) could safely advise their Lordships to pass it. It was only due to the inhabitants of that great county to state that, in spite of the great pressure to which they had been subjected, they had refused to solicit any extraneous aid, and had, within their own borders, raised all the funds necessary to meet the emergency. They were, therefore, entitled to the utmost consideration of Parliament, and they looked forward with hope to the future on account of having discovered a means of working the ore more cheaply, and of having also discovered large lodes of tin where it could least have been expected—for hitherto tin had been found above the copper; but, the latter having been worked through, tin had been found below it, and was likely to prove exceedingly valuable. It had seemed desirable that there should be greater facilities given for improving the "cost-book" system, being that by which the mines were principally worked. Under this system a body of neighbours put their funds together and worked a mine at their own expense, the accounts being adjusted at monthly or quarterly meetings; but in course of time, many of those shares had become the properly of persons living in all parts of the world, rendering it very difficult to enforce the calls which were necessary for the working of the mine. Moreover, whereas formerly sixteen shares was the usual number, and latterly 200 had not been unfrequent, now 6,000 or 7,000 are more usual, and the holders are scattered all over the world. It was, therefore, proposed to apply the Law of Partnership in such a way as would facilitate the working of the "cost-book" system. The latter part of the Bill had been suggested by the Vice Warden of the Court of Stannaries, Mr. Smirke, who deserved great credit for the pains he had taken to carry on the business of the court in a most satisfactory manner. He (Lord Portman) could have wished that the Bill had been placed in the hands of one of the Law Lords, who would have better understood the subject, than he could pretend to do. But ha had taken the responsibility as the Cornish mine-owners desired him,

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  as Warden of the Stannaries, so to do. He would readily attend to any suggestion that may be made to him prior to the going into Committee.
  Motion agreed to; Bill read 2a, and committed to a Committee of the Whole House on Tuesday next.

  OFFICE OF UNDER SECRETARY TO THE LORD LIEUTENANT.—QUESTION.
  THE EARL OF LONGFORD, pursuant to notice, asked if the recent appointment of Under Secretary to the Lord Lieutenant of Ireland had been made as a permanent appointment, and whether a military commission was held to be a disqualification for the office? Doubts had been expressed as to the propriety of making this a permanent appointment, and his Question was therefore put merely with the view of obtaining information, and not with any intention of raising a discussion on Irish affairs generally, or of raising any objection to the appointment that had recently been made. His second Question, however—whether a military commission was held to be a disqualification for the office—required some words of explanation. The late Government, not long before their resignation of Office, nominated the late Sir Edward Wetherall to the post in question—an appointment very creditable to themselves, and entirely for the public interest. It did not, however, suit the views of a noisy party in Dublin, who loudly cavilled against it; and the present Government on coming into Office adopted the unfavourable view of the appointment then in circulation. He would not say, indeed, that they acted at all in concert with the gentlemen to whom he had alluded, but their sympathies apparently took the same direction. Earl Spencer, the new Lord Lieutenant, on arriving at Dublin, frankly told Sir Edward that it was under the consideration of the Government whether his appointment should be recognized. The Chief Secretary for Ireland, however, took another course; for, without any intimation to Sir Edward, with whom he was at the time in daily communication, he opened a correspondence with the Commander-in-Chief, with the view of obtaining military employment for him—even suggesting a command in India as a convenient solution of the
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  difficulty, since it would remove Sir Edward Wetherall from Dublin, and would leave the office at the disposal of the Government. This would have been governing Ireland according to Irish ideas; for nothing could be more in accordance with ideas than the creation of vacancies for the purpose of filling them up with political Mends. He doubted, however, whether their Lordships would altogether approve such a principle—indeed it would only be a parallel cast; if the Under Secretary at the Home Office were promoted by surprise to the judicial bench at Hong Kong. The Commander-in-Chief had, at the time, no means of making the arrangement suggested, and nothing further was done; but the local press and those who inspired it continued to express their disapproval of Sir Edward's continuance in Office. In March the Government, having an opportunity of giving their opinion, stated that the appointment had been regularly made by their predecessors, who were quite competent to make it; adding, however, that two serious errors of judgment had been committed—one in the time of making the appointment, the other in the selection of a military officer—and that they consequently held themselves free to provide some other employment for Sir Edward, and call upon him to accept it. The Chief Secretary, on behalf of the Government, spoke in complimentary terms of Sir Edward Wetherall, regarding him as quite blameless, and as innocently placed in a false position—though it was difficult to understand how a gentleman who had been regularly appointed, and who was competent for the office, could be described as occupying a false position. The Chief Secretary further stated that nothing had occurred prejudicial to Sir Edward Wetherall's character or unworthy of his high reputation—a remark in which he (the Earl of Longford) quite agreed; but he doubted whether as much could be said of all the other parties concerned in this business. The present Government, it seemed to him, had imported into it quite as many blunders as those they charged on their predecessors; for, if they had not dealt with it in a party spirit, they had so dealt with it as to render it difficult to distinguish between their action in the matter and a pure party proceeding. When an office

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  of this kind was regularly filled up and the appointment completed, the person, appointed ought to have as much title to permanency as any Judge on the Bench. Again, it was but just that the holder of such an office should look with confidence for the support of his superiors in any emergency; whereas Sir Edward Wetherall was left to discharge the duties of an important post under notice to quit, leaving the impression that if any difficulty arose he would receive but slender support. He did not say that the Government would have left him in the lurch, but, from the language of the Government, those with whom he was dealing had that impression. It was not judicious, moreover, to offer a gratuitous affront to all the members of an honourable profession by pronouncing a military officer of Sir Edward Wetherall's capacity unfit for the office. Military men were not disposed to listen patiently to the assertion that they were disqualified for an office which had frequently been held by members of their profession. They could not claim any appointment outside their commission; but they did claim that they should not be pronounced ineligible for appointments for which they had hitherto been considered competent. He (Lord Longford) was ashamed to find himself even entering upon Sir Edward Wetherall's qualifications for such an office; but he might shortly mention that, in addition to a distinguished military career, during which he successfully directed several administrative departments, he had completed the two years course of study at the senior department at Sandhurst, and had lately resided for five years in Dublin, with an office in Dublin Castle almost as much of a civil as a military character, which constantly brought him into communication with the Government. This, at least, ought to have protected him from being represented as almost an incumbrance to the Irish Government. The Government having declared themselves at liberty to remove him—an intention which, if challenged, they might have carried out—he had refrained from bringing forward the question, lest he should precipitate an injustice to Sir Edward Wetherall and an injury to the public interest; but the calamity which had deprived himself and many others of so esteemed and valued a Friend had enabled him to call
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  attention to this breach of the principles of good government and good faith, and to protest against its standing on record as a Ministerial statement that such an appointment was "a serious error of judgment."
  LORD DUNSANYsaid, he did not question the right of Her Majesty's Government to make such appointments or such changes of appointments as they might think for the advantage of the public service; but he thought it would have been better had the Prime Minister acted on the maxim—"Do what is right, but do not give your reasons;" for it might turn out that though the thing done was right, the reasons given might be so unsatisfactory as to give rise to a suspicion of the motives; and, in this ease, the reason given for disapproving the appointment—namely, that Sir Edward Wetherall was a military man—was so insufficient as naturally to excite suspicion of something behind. He would remind the House that among the many other qualifications a military man possessed for filling an office satisfactorily was, that he had learned both how to command and how to obey, and was, moreover, generally animated by a very strong sense of duty. It had been represented as undesirable to make a military appointment in Ireland; but, as an Irishman, he believed there was no more prominent trait in the Irish character than their military genius, and their liking for military appointments. The objection was the more strange, too, in this case, inasmuch as General Sir Thomas Larcom had filled this very office of Under Secretary for fifteen years, and another military man previously held it with the approbation of the whole Liberal party. People in Ireland, not accepting the alleged reason, naturally believed that a certain gentleman who was wholly unobjectionable, being, no doubt, a very capable man, was to be Sir Edward Wetherall's successor; and if asked the reason why, the answer was because he was a Roman Catholic. Now, he should be sorry to say that Roman Catholics ought not to be appointed to high offices in Ireland, for his nearest relations and some of his best friends were members of that Church; but this office was a very important one, as was shown by the common saying, which, like other sayings, though possibly exaggerated, contained

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  much truth—"The Government of Ireland means Larcom and the police." Ireland was, to a great extent, governed by the Under Secretary, and this was a reason why a military man was the least objectionable, for he was not generally so much connected with a particular party as civilians; and, while knowing how to obey, there was one kind of obedience to which he was not much disposed—obedience not to lawful superiors, but to those who set up a claim to authority and control. It would be an objection to a man having the direction of the police, that he was. to a certain extent, in the hands, not of Her Majesty's Government, but of the Roman hierarchy, and an occasion might arise to-morrow—and it was very likely to arise in July—when impartiality, firmness, and moderation on the part of the police might save the country from much bloodshed. Some time ago there was a little election row in Dublin, the offenders being undergraduates and students at the University, and the police, after receiving considerable provocation, made an onslaught on them. This affair caused much discussion, and the remark was made that all the Dublin police were Roman Catholics. This was indeed the fact, though he would not say they were wanting in temper or discretion; but this instance showed how easily suspicion arose; and the police might be called upon to act in Orange demonstrations in the North—which no one deprecated more than himself—in which case the instructions issued by the Under Secretary, though perfectly proper, might lead to much misconception. In Ireland the authority of Lords 'Lieutenant and local magistrates had, to a great extent, been superseded, there remained only the action of the stipendiary magistrates and of the police, under the Under Secretary. He had no doubt the Government had appointed a very good man; but he regretted that they had contemplated the removal of so excellent an officer as Sir Edward Wetherall, though he would give them credit for having a better reason than that which they had given.
  EARL GRANVILLEsaid, he objected to the statement of the noble Karl (the Earl of Longford) that it was usual to create vacancies in order to fill them with political friends. [The Earl of LONGFORD denied that he had said that.]
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  The Government had adopted the usual course in this case; and it was competent for them, acting for the public good, to remove any officer. The noble Earl asked whether this appointment was a permanent one? He (Earl Granville) answered, yes, though not exactly in the sense understood by the noble Earl. The noble Earl had argued that the late much-regretted Under Secretary had the same right to his office that a Judge had; but for his own part he (Earl Granville) held any civil servant might for any grave reason be removed by a Minister of the Crown, acting on his own responsibility and for the public good. With regard to the noble Earl's second Question, whether a military commission was held to be a disqualification for holding this office, he had to say that it was certainly not a disqualification. The objection to the gentleman whose loss was so much to be regretted was that, although a most distinguished and gallant soldier and the son of a gallant soldier, he had not that knowledge of Irish civil business which made him fit for the particular office for which he was selected. Not a word had been said against his character or reputation as a soldier; but it was felt that one of the most difficult posts in Ireland required a person of great experience in civil administration, and not one who had chiefly devoted himself to the military profession. He had not before heard of the saying that "the Government of Ireland was Larcom and the police;" but he was quite sure that was not the right mode of governing Ireland, and that it was by other moans than mere police administration that we must undertake to govern that country satisfactorily. There had been no better Under Secretaries than Colonel Drummond and Sir Thomas Larcom, both of whom wore officers of Engineers—a corps from which a great number had been selected to fill civil offices—and both of them having been long employed in civil services in Ireland, were intimately acquainted with the country. The late lamented Under Secretary, on the other hand, had had no period of civil service, and though he should be sorry to disparage his merits as a soldier, the Government did not think him the proper person for a difficult civil position.
  THE EARL OF DERBYsaid, he saw no reason to complain of the speech of

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  the noble Earl (Earl Granville), or to object to the principle he had laid down—that, the office being in its nature a permanent one, it was not competent for the Government to dismiss the holder of it except for some cause of unfitness. That principle, however, ran counter to the proposition which he even now appeared inclined to support—that they would have been justified in setting aside the appointment, because the gallant officer had had no previous experience of civil business. In justice to his right hon. Friend who was at the time Chief Secretary (Colonel Wilson-Patten), he was bound to say there was a most anxious desire to appoint not only a person fully qualified, but a person against whom on political grounds no objection could be taken; indeed, one of the foremost men on the list of candidates was the very Mr. Burke who had since been appointed, and it was matter of serious consideration whether his claim should not be preferred even to Sir Edward Wetherall's. Immediately after his death a very prominent member of the Liberal party called on his right hon. Friend and said—"I hope from this time the question of Sir Edward Wetherall's competency will be entirely dropped and the case forgotten; because I am bound to say that, having since the appointment had constant means of communication with him, I never found a man with whom it was so satisfactory to deal, or who discharged the duties of his high office so entirely to the satisfaction not only of his friends but of his opponents." He did not feel at liberty to state the name; but this gentleman was a strong political opponent of the late Government. He thought the noble Earl had sufficiently answered the question as to the disqualification of military men for the office by a reference to Sir Thomas Larcom and Colonel Drummond; and he himself could go a little further back, for when Chief Secretary for Ireland the person who held the office of Under Secretary was Sir William Gosset. Indeed, the present was the first occasion since 1831 on which a civilian had been appointed.
  VISCOUNT HALIFAX: There was Sir Thomas Redington.
  THE EARL OF DERBYsaid, there had at any rate been three military men who had in recent times hold the office. He had felt it due to the memory of Sir
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  Edward Wetherall to say thus much to show that he was not undeserving of the appointment, and that it was not made from political motives, but after due consideration, and with a desire to find not only the man most fitted but one to whom, in the event of a change of Government, which then appeared probable, the present Administration could not have the slightest reason for objecting.
  LORD DE ROSfelt bound to bear testimony to Sir Edward Wetherall's distinguished services, his career having commenced under his own command. The late Lord Hardinge, when appointed Chief Secretary, had had no experience of Irish affairs, but his natural ability for business very soon made him perfectly qualified, and no man could have discharged the office better.

  REMOVAL OF MUNICIPAL MAGISTRATES.—QUESTION.
  EARL GREY: On rising to ask my noble Friend the Secretary of State for the Colonies, Whether it is the intention of Her Majesty's Government, during the present Session, to submit to Parliament any measure to provide for re-moving from municipal offices, to which magisterial functions are attached, persons who may have been guilty of misconduct? I need hardly say that I have been influenced by what has recently occurred with regard to the late Mayor of Cork. Your Lordships will remember that this person had so conducted himself as to lead to an almost universal conviction in this country that he could not be allowed to retain his office, and in virtue of it administer the law as a magistrate, without great public scandal; but the Government, sharing that general conviction, found there was no way of meeting the scandal except by bringing in a Bill for the removal of Mr. O'Sullivan from his office. Now. I am not sure that the passing of that Bill would not have been almost a greater evil than the confessedly great evil of allowing him to retain office. Bills of Pains and Penalties are in the highest degree objectionable. It is now above a century since any such measure has been passed by Parliament, and T should have been sorry to see so bad a precedent revived; for we all know that a measure of that kind, though passed for very strong reasons,

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  is too apt to become a precedent, and that a bad precedent once established, it has a tendency to become more and more frequent, and to lead to very great abuse. For that reason I was of opinion that to have recourse to a Bill of Pains and Penalties was in the highest degree dangerous to the liberties of the country. Fortunately the Government were saved from the great misfortune of having either to submit a Bill of Pains and Penalties, or to allow the late Mayor of Cork to remain in office, by his most properly and judiciously resigning the; office which he held. Now, however, that the question is entirely disencumbered of all personal considerations, it appears to me to be desirable to consider whether some means should not be taken to prevent our being again placed in the position of having to choose between two such evils. There are several municipal offices the holding of which gives the right of acting as a magistrate, and those I believe are the only officers in the kingdom concerned in the administration of justice whom there is no recognized means of removing if guilty of misconduct. With regard to the highest judicial officers, the Judges of the land, an Address from both Houses of Parliament to the Crown affords a means of removing them; those who are put in the Commission of the Peace by the authority of the Crown can be removed by the same authority, if sufficient cause be shown; but those who become magistrates by election to municipal offices cannot be got rid of in either of those modes. The question may now be dealt with with perfect calmness and impartiality; and though an Address by both Houses of Parliament is far too cumbrous a machinery to be adopted—for it is not proper that the time of Parliament should be occupied with such matters—the Government may easily discover a plan which, without being open to abuse, would provide for the removal of magistrates guilty of grave misconduct.
  THE LORD CHANCELLOR: I hope the noble Earl will not think it discourteous if I answer the Question which he has addressed to my noble Friend (the Secretary for the Colonies). It is impossible that such an event as that which has recently occurred should not have attracted the attention and consideration of the Government, and I am not sur-
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  prised that the noble Earl should think it right to ask what are our intentions in the matter? Now, I believe that the old adage with reference to judicial administration is equally applicable to legislation—"Hard cases make bad law"—and a course of procedure founded on individual or even local instances of misconduct would be a system open to the same objection. It is not desirable to legislate upon the spur of any individual or local miscarriage which surpasses the usual limits for which the law has provided. I may cite an instance which will show that it is not desirable to act hastily in matters of this description. Some years ago, when the conspiracy of Orsini occurred, it was felt to be a gross abuse of the hospitality afforded by England to men of all countries, who are obliged from political causes to take refuge here, and there was a general feeling of indignation; the Government of the day shared in the general feeling, and their first suggestion was to bring a Bill intended to remedy the evil under the consideration of Parliament. It passed the first and second readings; but, after a very able address from a noble Earl (Earl Russell), the House of Commons thought it unadvisable to proceed with it, and to this day no measure has been passed on the subject. That was a case of individual, now take the case of local agitation. Only last night your Lordships were engaged in repealing Acts which wore passed on the spur of local agitation and local alarm, when a great deal of excitement existed with regard to political offences. They were Acts of a very serious character, and it was singular that they should have remained so long unrepealed. We were rather taunted by the noble and learned Lord (Lord Cairns) for having put them in execution on an emergency which had occurred, though on the whole we thought it desirable that they should be repealed. This shows the desirableness of taking time to consider questions of this sort; and. without pledging the Government to propose any legislation, I may state that the subject will be deliberately considered. It is not altogether so simple a matter as the noble Earl seems to suppose. The noble Earl has correctly stated that the difficulty exists only in the case of persons who become magistrates by virtue of their being elected to a municipal office. Well,

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  there is the great Corporation of the City of London, who hare always had the right of electing its Aldermen, who thereupon become magistrates for life; and from the time of the Conquest downwards no occasion, as far as I am aware, has arisen for removing an Alderman for misconduct parallel to the case of the late Mayor of Cork. Under the Corporation Act, moreover, boroughs are entitled to elect mayors, who thereby become magistrates for their year of office and the ensuing year; and that Act has now been in force thirty-four years, and up to this recent case there has been no complaint of the working of the Act either in England or Ireland. This is, therefore, an individual and very exceptional case. We have to consider how far it would be desirable that these officers, elected by their fellow-townsmen, should be subject to control by the Crown, which control might create a not unreasonable jealousy on the part of the electors. A coroner, it is true, is subject to removal for misconduct; but that office is one of a peculiar character, and is distinct from the administration of justice, he being an officer of the Crown, though elected by the county. Under these circumstances the best course for the Government is to avoid hasty legislation, in consequence of one case of misconduct—for it would not be very acceptable to the various corporations that they should be dealt with in consequence of the misconduct of one eccentric individual—and to consider the matter maturely without reference to any individual.
  THE EARL OF BANDONbegged to remind their Lordships that this was not the late Mayor of Cork's first offence, he having been removed from the Commission of the Peace for refusing, when accused of having subscribed to Fenian funds, to offer any explanation. He was afterwards elected Mayor of Cork, where he repeated and aggravated his offence; for an advertisement appeared daily in some of the Irish newspapers appealing for subscriptions to be administered by Mr. O'Sullivan, as treasurer of the fund for the benefit of the Fenian, prisoners. In this advertisement there was this passage—
  "We would also remind those who look upon the proposed disendowment of the Established Church as a boon, that according to the statement of the present Premier they are indebted to
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  the Fenian movement for that tardy measure of justice."
  For three months, during which Mr. O'Sullivan held the office of Mayor of Cork, the municipal business of that city was involved in the utmost confusion, and was conducted in the most improper manner; and since he had resigned that position he had been a party to this advertisement. What he particularly wished to press upon Her Majesty's Government was that language such as this was doing incalculable mischief in Ireland, and he wished to know whether they had disavowed the statements attributed to the Prime Minister. Mr. O'Sullivan had not been silent since his resignation. In a recent speech he had said—
  "Let any man look to the meaning of Mr. Bright's speech on the Irish Church question delivered within the last fortnight. What is the meaning of that speech? It is this—that the land of Ireland is to be handed over to the people of the country. [Loud cries of 'Hear, hear,' and continued cheering,] When Ministers in England give forth that opinion would I, I ask you, be an honest man if I for one moment stood in the way of the party who say that Ireland must be governed according to Irish ideas, that the Catholic must be master in his own land, and that there must be in Ireland no denomination either of race or creed."
  People should not be allowed to put forward these statements as conveying the opinions of the Government unchecked. He might say that of all places in Ireland the City of Cork had the least reason for being disaffected. His conviction was that some power should be given to the Government to veto the election of certain persons to municipal offices, in order to prevent the chief cities of Ireland from being left to the mercy of any injudicious man who might happen to be appointed.
  House adjourned at a quarter past Six o'clock, to Thursday next, half past Ten o'clock.