Lords Sitting of 11 May 1869

MINUTES.
Sat First in Parliament—The Lord Wynford, alter the death of his Father.
PUBLIC BILLS—First Reading—Stannaries * (9S).
Second Reading—Aggravated Assaults Amendment (66), negatived.
Third Reading—Sea Birds Preservation* (92).
Withdrawn—Lodgers' Property Protection (65).

REPRESENTATIVE PEERS FOR SCOTLAND.—DOUBLE RETURN".
Petition of the Right Honourable Walter Coningsby Earl of Kellie, claiming also to be Earl of Mar; and also the Petition of the Right Honourable John Francis Erskine Goodeve Erskine Earl of Mar, Baron Garioch, presented on the 7th instant: Committee for Privileges on, met; the Attorney General and the Lord Advocate being present (according to Order); counsel heard; and Committee resolved, That the petitioner the Earl of Kellie having by his counsel prayed leave to withdraw his petition, the Committee do not think it expedient to investigate the double return under the certificate of the Lord Clerk Register with a view to its amendment; and report thereof to be made to the House.
THE DUKE OF BUCCLEUCHdesired to call attention to the fact that there was a double return in the number of Scotch Peers returned to Parliament at the last election. Now though it might
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be true that two Peers had each an equal number of votes it did not follow that there was a double return. But, as the Committee of Privileges had decided that they could not enter this question, of a double return, he -wished to call the attention of Her Majesty's Government to the question, to consider whether it was possible to advise Her Majesty to issue a proclamation under the Great Seal for filling: up the vacancy which practically now existed.
THE LORD CHANCELLORsaid, all he could state on the present occasion was that Her Majesty's Government would take the matter into consideration. Under the statute there seemed to be some doubt whether they could issue such a Proclamation; and, of course, that doubt must be cleared up before they could decide.
Report read, and agreed to; and to be printed. (No. 99.)

LODGERS' PROPERTY PROTECTION BILL—(No. 65.)—SECOND READING.
(The Marquess Townshend.)
Order of the Day for the Second Reading, read.
THE MARQUESS TOWNSHEND, in moving that the Bill be now read the second time, said, its object was to protect lodgers from the seizure of their property in case of default in payment of rent by the tenant. The equitable rights of the landlord would be placed in no jeopardy by the operation of the Bill. If the landlord was careless enough to let his property to bad tenants, he had no claim to consideration, and was not entitled to shift the burden on to the shoulders of the innocent lodger. The proper security for a landlord was the solvency and respectability of his tenant; and if he did not exercise sufficient caution on this head, he ought not to make the lodger suffer for circumstances entirely beyond his control. It was true that the lodger and the superior landlord could enter into an agreement; but the latter had no inducement to take this course; and the lodger was not always able to ascertain who the superior landlord was. A tenant was now able to send part of his goods to a place of security, knowing that the landlord would come upon the lodger's effects to make up the deficiency, and the applications which were

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constantly made at the police courts on this subject proved how harshly the law operated. Provision was made in the Bill to prevent possible collusion between the tenant and his lodger to defraud the landlord of his rights in respect to the tenant's furniture, by requiring the lodger to satisfy a justice of the peace for an order to protect his property against distraint by the superior landlord; and the justice, on being satisfied that the goods were the goods of the lodger, was to give a protection order, which was to be registered with the registrar of the Comity Court.
Moved, "That the Bill be now read 2a."—(The Marquess Townshend.)
THE LORD CHANCELLORsaid, he had no doubt of the noble Marquess' benevolent intentions towards persons who suffered great inconvenience from a seizure of their furniture for rent due to the superior landlord. A right, however, which had been vested in the landlord from the remotest times as a security for his rent ought not to be lightly interfered with. But the Bill afforded no security against the grossest frauds being practised on the landlord. It proposed that the lodger might obtain a certificate from a magistrate that the property belonged to him, and that on this certificate being registered the property should be protected from the superior landlord. A compact would obviously be made in many cases between the lodger and his immediate landlord, who of course did not wish his goods to be seized, by which the furniture of the latter would be represented as the property of the lodger: and thus the security held by the superior landlord would be altogether defeated. It might or might not be that the Law of Distress sometimes pressed heavily on lodgers; but the remedy for this would be a remodelling or abolition of the power of distress, and the House could not be reasonably asked to assent to this Bill.
An Amendment moved to leave out ("now") and insert ("this day three months").
After a few words from the Marquess TOWNSHEND,
Amendment, together with the original Motion, and the Bill (by Leave of the Housed) withdrawn.

AGGRAVATED ASSAULTS AMENDMENT BILL—(No. 66.)—SECOND READING.
(The Marquess Townshend.)
Order of the Day for the Second Reading, read.
THE MARQUESS TOWNSHEND THE MARQUESS TOWNSHEND moved that this Bill be now read the second time, describing its object to be to give power to two justices of the peace in petty sessions, or a police magistrate, to punish in a summary way persons convicted of assaults on females and children under fourteen years, occasioning actual bodily harm; and, under certain circumstances, to add to imprisonment the punishment of flogging. On one occasion he obtained the second reading of a similar measure in the House of Commons, though it failed to pass the further stages, and the Returns of the convictions which occurred under the present Act showed the necessity of a more stringent punishment. The punishment of the lash had been successfully applied to garotters, and these brutal offenders were even more deserving of it.
Moved, "That the Bill be now read 2a—(The Marquess Townshend.)
THE EARL OF MORLEYsaid, that while sympathizing with the noble Marquess's object, he did not believe the Bill would promote that object. The Preamble recited that the present law had been found inefficient for the protection of women and children; but he learnt from Sir Thomas Henry—than whom there could be no higher authority—that it was working satisfactorily, the number of offences against which it provided having materially diminished. In St. Giles's, and other poor districts of the metropolis, it was a common thing for a wife who was being beaten by her husband to bid him take care what he was doing, or he would get a "sixer," meaning six months' imprisonment; and this warning had a considerable effect. The Bill would require the testimony of two competent witnesses in case the aggrieved person was not examined, and this alone would render the measure in-operative, for in districts inhabited to a great extent by notorious criminals, where these offences were chiefly committed, it was difficult to get competent witnesses. He saw no reason why Fitzroy's Act of 1853 should be altered

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in this respect, nor why the evidence of a single constable should not suffice. He objected also to authority being given to a magistrate, on summary conviction, to sentence offenders to flogging; for such sentences required great care and discretion, and the natural indignation of a magistrate might induce him to impose such a punishment—which at present he could only do in the case of juvenile offenders—without sufficient consideration. Such a punishment, moreover, would excite vindictive feelings on the part of a husband towards his wife; for whereas, in case of imprisonment, he might often be released on her petition—in which case there was ground for hoping that better feelings would influence him—she could never unflog him. On obtaining his liberty he would be likely, therefore, to abandon her altogether. Moreover, the reluctance to prosecute which at present existed would be much increased. The Bill, again, would allow an appeal. Now this Mould be seldom resorted to, and no sufficient reason had been shown for altering the Act of 1853. He moved that the Bill be read a second time this day three mouths.
An Amendment moved to leave out ("now") and insert ("this day six months.'")—(The Earl of Morley.)
THE MARQUESS TOWNSHEND, in reply, admitted that the Act of 1853 was a great improvement, but contended that for extreme cases the maximum punishment of six months' hard labour was insufficient. The number of these offences, in comparison with other countries, was a disgrace to England. The power of appeal would be a protection against hasty sentences; and as to the desertion of the wives, they would be better off if they did not see their husbands again. The requirement of two witnesses was an inadvertence which he should be willing to remedy, as he did not wish to deviate from the present Act on this point. He could not consent to withdraw the Bill.
EARL DE GREY AND RIPONhoped the noble Marquess would not press for a division, since the House could not pass the second reading in the face of Sir Thomas Henry's testimony to the efficiency of the present law.
On Question, That ("now") stand part of the Motion? Resolved in the negative; and Bill to be read 2a on this day six months.

NORTH BRITISH RAILWAY—SUDDEN OR ACCIDENTAL DEATHS (SCOTLAND).

  MOTION FOR A PAPER.
  LORD KINNAIRDwished to bring under the notice of the Government the state of the law in Scotland with respect to inquiry into cases of sudden or accidental death. In England coroners' inquests were held under such circumstances, but he was not prepared to say that that mode of inquiry was altogether satisfactory; indeed, in many districts in England it was very unsatisfactory; and it was within his own knowledge, as a member of the Mines Commission, that in many of the mining districts the jury consisted of mining agents, or, as they were termed, "mine captains," whose policy was to bring in no verdict contrary to the interests of the mine-owners, and during the time that he sat on the Commission, though the accidents were fearfully numerous, the verdict was uniformly ''accidental death." Nor was this surprising, when not only the jury but frequently the coroner also was interested in mines. The accidents from the bursting of boilers were very frequent, there being in many eases no steam guage, and the boilers being worked till they became so thin that he had seen them almost palpitating under the pressure of the steam. In one case in which two deaths occurred, the boiler was third-hand, having been worked in two mines, and having then been purchased by another set of mine-owners, though well known to be dangerous. Notwithstanding the strong evidence of the imperfect state of the boiler, and of the men having expected an accident, a verdict of "accidental death" was returned. While doubting, for these reasons, whether the principle of coroners' inquests should be applied to Scotland, he thought it important that there should be some public inquiry. At present no inquiry was made into cases of sudden death, or death from accident, unless it was brought under the notice of the public prosecutor, or Procurator Fiscal, whose duty it then was to make inquiry. It thus depended on the vigilance of the police, or on the chance of his hearing

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  of the, accident, whether an inquiry was instituted, and numerous deaths occurred of which no notice was taken. An accident which occurred on the 6th of November last, on the North British Railway, had appeared to him to present an opportunity of drawing: attention to the subject—more especially as an inquiry was now going on with regard to the Scotch system of judicature. In this case there had been an investigation by the Railway Department of the Board of Trade, and doubtless also by the Procurator Fiscal. St. Boswell's was a station where seventeen trains ran daily each way; and Mr. Lisle, a tradesman, who was on a journey for the purpose of visiting his daughter, from want of proper accommodation, had to cross the line in order to change carriages. "While so doing a train threw him down and so seriously injured him that, while being carried away, he expired. The station-master, six of the company's servants, and several passengers were on the platform at the time, but it could not be ascertained that any of them saw him crossing the line—and, indeed, it never happened that railway officials, when inquiry was made, had seen anything. The report added that the accommodation at the station was inadequate to the traffic carried on upon the railway. What had been the result? The railway company had done nothing, although the state of things at this station was notoriously bad; and the Board of Trade had no power to enforce any order, or to compel the company to improve the station. The noble Lord concluded by moving for a Report of proceedings taken by the legal authorities of the district of St. Boswell's. N. B., with reference to the death of Sir. Lisle, who was killed on the North British Railway on the night of the 6th of November, 1868.
  THE EARL OF MORLEYsaid, there would be no objection to furnish the Report for which the noble Lord just moved. The accident occurred on the 6th of November, and next day information in the usual form was sent to the Board of Trade, and ten days afterwards the Crown. Counsel at Edinburgh instructed the Procurator Fiscal that it was not a case in which criminal proceedings should be instituted, but directing him to communicate to the company that there was a want of proper accommodation at the station. On the 26th of December the
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  Board of Trade applied for the evidence taken before the Procurator Fiscal; so that no delay had occurred in the matter. The inquiry was found to have been conducted in the most excellent manner, and the decision was clearly a correct one. Under these circumstances, the; case rather tended in favour of the Scotch system, which might, he thought, compare favourably with the inquiries conducted in England under similar circumstances. There was no power to compel the railway company to provide proper accommodation; but, if they neglected to do so after the warning given by the Procurator Fiscal, it might be of serious consequence to the company if any future accident occurred. He had been told on the best authority that there was scarcely an authenticated instance of any sudden death in Scotland occurring that was not inquired into, or of any abuse arising through the inquiry being conducted in secret. If they referred to the returns of the proportion of persons convicted to the whole number tried, it would be found that in Scotland, in the year 1867, the proportion was 89 per cent, while in England it was only 74 per cent. The onus of showing that the Scotch system did not work well was thus rather upon those who wished to alter it than upon those whose duty it was to defend it.
  THE EARL OF DALHOUSIEheld that something was to be said in favour of the Scotch system, though probably it admitted of improvement. It was the duty of the Procurator Fiscal to take cognizance of all deaths from accident and sudden deaths, if they came to his knowledge; but it was well known that many cases of sudden death and death from accident occurred which ought to be inquired into, but which never came to the knowledge of the Procurator Fiscal. That system was upon the whole a very good one, but it might be very much improved if a law were passed to make it compulsory on parties, upon the occurrence of any fatal accident, to report to the Procurator Fiscal, so that he might inquire into the cause. If that were done no accident could occur without due inquiry, and at the same time the inquiry would be made without injury to the feelings of the parties concerned. He hoped that the Lord Advocate would call the attention of the Law Commission to the subject. If there

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  were some compulsory means of bringing these matters to the knowledge of the Procurator Fiscal that was all that was required to amend the law of Scotland on this subject.
  THE DUKE OF MONTROSEsaid, he did not think it would answer to make it penal to give notice to the Procurator Fiscal.
  THE EARL OF DALHOUSIE: I did not say penal, but compulsory.
  THE DUKE OF MONTROSE: He did not see that there was much difference between the two. In England the coroner got fees for holding the inquest, while the Procurator Fiscal had not the same inducement. The result was, that in England inquiries were instituted which, if due regard had been had to the feelings of the survivors, might very well be spared. The law in Scotland depended very much upon the Procurator Fiscal. In cases where he was a very active man few or no cases escaped inquiry; but where he was old or negligent, he was tempted to abstain from making inquiries from which he derived no pecuniary benefit.
  THE EARL OF MINTOsaid, he was glad his noble Friend (Lord Kinnaird) had brought this matter under their Lordships' notice. The first steps of criminal proceedings in Scotland were taken entirely in secret, and his firm conviction was, if the matter were thoroughly investigated, great advantage would be found in the system of publicity There would be much less chance of abuse if those proceedings took place before the eyes of the public. Some evidence was taken on this subject incidentally last year by a Committee of which he was a Member; but, as it was felt they were getting rather beyond the fair scope of their inquiry, it was not thought proper to pursue the investigation. The chief constable of the county of Ayr, among others, was examined, and stated that he considered great public benefit was missed by not having inquiries into cases of sudden death. These cases were not overlooked—they were carefully inquired into—but the public knew nothing of the facts. It was quite possible to have a good system of public prosecution—which was most valuable in Scotland—and at the same time to give publicity to the earlier proceedings. Mr. Jamieson, a practitioner in the Sheriff's Court. Elgin, thought the system of private
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  precognitions should be altered, and that all inquiries should be made before the magistrates sitting in open court. The sheriff of Aberdeen, who, in some respects, was in favour of the present system of private precognition, thought that in cases of sudden death publicity was most desirable. They might have all the benefit of coroners' inquests without their abuses. The principle of having public prosecutors in Scotland was most admirable; but the office of Procurator Fiscal was one not only of importance, but great delicacy; it was, therefore, to be regretted that, with the exception of Edinburgh, Glasgow, Dundee, and four other places in Scotland, these officers were allowed to accept private agencies and acted as legal advisers in their capacity as lawyers. He had been told of a case in which an assault had been committed with a deadly weapon: the public prosecutor happened to be the private law agent of the offender; nothing more was heard of the case. Of course the comments of the public were uncomplimentary. In another case a horse was stolen; an action was raised for delivery of the horse or payment of the price. The public prosecutor entered an appearance for the horse stealer and defended him. These facts showed that there were ample grounds for inquiry into the whole of this subject.
  LORD COLONSAYthought the suggestions which had been thrown out by his noble Friend were valuable; but the office of public prosecutor in Scotland, as an institution for investigating and discovering crime, for the prevention of crime and the preservation of the peace, was a most valuable one. It was a very grave question whether any material interference could be made with the existing system without producing unsatisfactory results. The whole system hung together, and it was a system gene- rally approved, practically useful, and which had long existed; no part of Her Majesty's dominions could boast of more successful means for the detection and prevention of crime. It was a very serious tiling indeed, therefore, to open this large question or do anything that would tend to throw discredit on such a system. At the same time he was not going to defend abuses. If there really was an unworthy officer who did not execute his duties properly there were the means of dealing with him. That was no objection to

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  the system; it was an individual case which might happen under any system. If the whole investigation into crime with a view to its discovery or prevention, and to the preservation of the peace, were made public that would be uprooting a beneficial part of the present system, and might often frustrate the ends of justice. A system prevailed in England different from that in Scotland, and they had heard from the noble Earl (the Earl of Morley) the practical results. With regard to the particular ease of the railway accident in question, no benefit could have been derived from a public inquiry. The investigation had been complete, and machinery was immediately set in motion to have such improvements made in the railway station as would prevent such accidents in future. As to whether this matter was within the range of the Commission which had been referred to, he should say, speaking for himself alone, that an inquiry into the whole system of public prosecutor in Scotland was not within the scope of the Commission. If the duty of inquiring into and reporting on that system was intended to be devolved on any Commission, it would certainly have been expressed and not left to inference. But some matters connected with the system did come incidentally before the Commission, and evidence in regard to these matters had been taken and would accompany the Report.
  LORD KINNAIRDagreed with the noble and learned Lord as to the advantage of the system of public prosecutor in Scotland; but in it, as in all other things, amendments might be made. For instance, the public prosecutor ought not to be allowed to continue private practice. It was represented as an advantage that the inquiry in this case had been immediate; but he did not believe that any individuals, except the officers of the Crown, were aware of the investigation. If it had been known that an inquiry was being made, the relatives might have been able to produce evidence with regard to the death of the man and to the state of the railway station.
  THE EARL OF MORLEYsaid, the Board of Trade sought information on the subject but could get none.
  Motion agreed to. (Parl. P. 118.)
  House adjourned at Seven o'clock, to Thursday next, a quarter before Four o'clock.