Lords Sitting of 31 May 1870

MINUTES.
PUBLIC BILLS—First Reading—Married Women's Property* (125); Debtors (Ireland)* (126); Prayer Book (Lectionary)* (127).
Second Reading—Felony (90).
Committee—Norwich Voters Disfranchisement (88–128); Churchwardens Liability* (101); Bridgwater and Beverley Disfranchisement (87–129).
Report—Mortgage Debenture Act (1865) Amendment* (121).

PRIVATE BILLS.
Ordered, That Standing Order No. 179. sect. 1. be suspended, and that the time for depositing petitions praying to be heard against Private Bills, which would otherwise expire during the adjournment of the House, be extended to Monday the 13 th of June next; and that so much of the Standing Order of the 15th day of March 1859, as requires "That the Examiner shall give at least two clear days' notice of the day on which any Bill shall be examined," and also section 9. of Standing Order No. 178., be dispensed with.
FELONY BILL—(No. 90.)
(The Lord Westbury.)
FELONY BILL—(No. 90.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  LORD WESTBURY, in moving that the Bill be now read the second time, said, that, as was well known to their Lordships, under the existing law conviction for treason or felony was attended with forfeiture of lands and goods. It had, however, been long felt that a more merciful view of the consequences of a criminal act was better suited to our present state of civilization; and various statutes had been passed by which the severities of the law had been much mitigated. The present Bill proposed to remove some further consequences, and to place the law upon a footing more agreeable to the times in which we live. The 1st clause provided that hereafter no conviction or judgment for treason or felony should cause any attainder or corruption of blood, or any forfeiture. The 2nd clause, however, provided that conviction for treason or felony should be attended with the forfeiture of any office, pension, public employment, or emolument derived out of any public funds, and also with disqualification, so long as the sentence remained unexpired,

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  or until pardon, for any public employment under the Crown, whether naval, military, or civil, and for holding any ecclesiastical benefice. The disqualification also extended to sitting in Parliament, and to the exercise of any Parliamentary or municipal franchise. The 3rd clause enacted that persons convicted of treason or felony might be condemned to pay all or any portion of the costs, as to the Court might seem fit; and the 4th enabled the Court to award compensation to an amount not exceeding £100 by way of satisfaction or compensation for loss of property suffered by the injured party. The convict was, moreover, disabled from bringing any action or suit at law, and from alienating property during the time he should be subject to the Act. As he had already stated, the goods and chattels of a person convicted of felony were forfeited to the Crown. But though this consequence of conviction was still in force, its operation had been much mitigated, partly by the operation of various statutes, but chiefly by the practice pursued by the Crown in making grants from the forfeited property for the relief of the convict's family and other purposes. Indeed, in minor cases, it had long been the practice not to seize goods and chattels with a view of deriving any profit from them, but to deal with them in a merciful manner for the purpose of meeting the necessities of the convict's family. He held in his hand a Return of goods and chattels forfeited to the Crown since 1864, which showed that the application of them had been very capricious, and not regulated by any definite principle. In 1864 such property amounted to about £1,500, of which only £407 was restored to the convicts' families; in 1865 to nearly £600, £440 being restored; and in 1868 to £1,800, of which £1,111 was restored. It was very desirable that the disposition of the property of a felon should be placed under some systematic rule; and this Bill proposed that henceforth such property should be vested in an administrator to be appointed by the Crown; that after all expenses incurred by the administrator in recovering the property had been paid it should first of all be liable to defray the costs of the prosecutor, if he had not been otherwise entirely reimbursed. It proposed that the property should next be liable for the payment of debts justly due by the
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  convict at the time of his conviction—thus remedying the anomalous state of the law under which creditors, unless I they had obtained judgment, were debarred payment, no matter how large the amount of personal property which, the convict had forfeited. It next proposed that the administrator should be empowered to make compensation to a limited extent to any person defrauded or injured by the criminal act of the convict; and, lastly, that he should make allowances for the support of the convict's family, and, indeed, for that of the convict himself if he should be at large under a license. The administration would operate until the sentence pronounced, or any sentence substituted for it, had been fully completed, or until a pardon had been issued. During this period any property accruing to the convict would come within the possession and control of the administrator: who, on the expiration of the term, would be bound to restore to the convict all that remained of his property, and to give him a full account of his administration. In cases where no administrator should have been appointed, the justices of the peace in petty sessions might appoint an interim curator of the property of the convict, upon application of any person who should be able to satisfy such justices that such an appointment would be for the benefit of the convict, or his family. The powers and duties of the interim curator would be generally the same as that of the administrator, and would abate on the appointment of an administrator in due form. There was one other provision in the Bill to which he desired to bring under their Lordships' notice. The 31st clause repealed the barbarous provisions of the statutes still, he was ashamed to say, in existence, by which it was enacted that the judgment required by law to be awarded against persons adjudged guilty of high treason should include the drawing of the person on a hurdle to the place of execution, and, after execution, the severing of the head from the body, and the dividing of the body into four quarters. Henceforth, this relic of the barbarism of our ancestors would cease to disgrace our statute book. The Bill had passed without the smallest opposition in the other House, and was referred to a Select Committee, by whom certain alterations were made; after which it received the marked approval of Her Ma-

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  jesty's Government through the Home Secretary. He trusted their Lordships would now read the Bill a second time, and he would then postpone the next stage for a fortnight or more, in order that the measure might receive the attention of his noble and learned Friends, and also, as he trusted, of his noble and unlearned Friends.
  Moved, "That the Bill be now read 2a."—(The Lord Westbury.)
  THE LORD CHANCELLORsaid, that the principle of the Bill was one which all their Lordships would approve, and that the Select Committee by whom its details had been scrutinized was so constituted as to entitle it to confidence.
  Motion agreed to; Bill read 2a accordingly; and committed to a Committee of the Whole House on Monday the 20 th June next.

NORWICH VOTERS' DISFRANCHISEMENT BILL—(No. 88.)
(The Lord Chancellor.)
NORWICH VOTERS' DISFRANCHISEMENT BILL—(No. 88.)

  COMMITTEE.
  House in Committee (according to Order).
  Clause 1 (Disfranchisement of certain Voters of the City of Norwich).
  Clause 2 (Persons against whom proceedings have been instituted not disqualified until adjudged guilty of bribery).
  LORD CAIRNSsaid, he had to propose an Amendment to provide for a case so very peculiar that he thought their Lordships would admit that it justified exceptional treatment. The Commissioners appointed by the Crown to inquire into corrupt practices at the last Norwich Election entered at length in their Report into a transaction in which Mr. Edward Stracey, son of one of the candidates, and a Mr. Allen were concerned. According to the Report, a consultation occurred on the polling day between Stracey and Allen respecting the expenditure of £200 in bribery, Mr. Arthur Bignold being also present, and the Commissioners on account of this transaction scheduled the last-named gentleman as a briber. According to Allen's evidence, however, Mr. Bignold, though he knew of the arrangement, took no active part in it, remarking that it was not a bad idea, but was a dangerous one. The Commissioners inserted Mr. Bignold's name in Schedule A on
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  that evidence. It naturally became the duty of the Attorney General, on the Report being issued, to consider whether he should not prosecute the persons therein scheduled as guilty of bribery; and the hon. and learned Gentleman, in a speech on the Beverley and Bridgwater Disfranchisement Bill, remarked that the duty was a very painful one, but that he had no choice but to prosecute where there seemed a proper case for a jury. The Attorney General accordingly filed a criminal information against Mr. Stracey, the entire case against him resting on this same transaction, and Allen was again examined as a witness; but, as often happened, a witness who, under the manipulations of somewhat eager Commissioners, told a very lucid story, before a Judge and under the examination of counsel adopted a different course. The result was that Stracey was acquitted; and as the present clause provided that no person against whom any criminal proceedings had been instituted by the Attorney General should be disqualified under the Act until he had been adjudged guilty of such bribery, he would be exempted from the operation of the measure. As to Mr. Bignold, the Attorney General came to the conclusion that there was no case to go to a jury, and no prosecution was instituted against him. Now he had received from a Member of the House of Commons and also of the Bar a communication, which he understood he was at liberty to use, and which was in these terms—
  "I have seen the Attorney General, and he acquiesces in being quoted as saying that the only matter in which Bignold was implicated was that on which the charge against Stracey rested, and that the evidence connecting him with the offence charged was less than that upon which Stracey was acquitted."
  From this it was quite absurd to suppose that any criminal charge could have been substantiated against Mr. Bignold. Moreover, before the issue of the Commission, the election inquiry now provided had been held before Mr. Baron Martin, and in the course of the inquiry the name of Mr. Bignold was not mentioned; and Mr. Bignold, therefore, did not think it necessary to present himself before the Commission for examination, not supposing that any charge would be brought against him. He admitted that, as a rule, the Reports of the Commissioners should be accepted, and that Parliament was not to sit as a Court of

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  Appeal to revise their decisions. The Commissioners, however, apparently attributed the absence from the country both of Stracey and Bignold at the time of their inquiry, to a desire to avoid giving evidence which would criminate themselves; but the latter had informed one of the witnesses before the Commission issued that he was going abroad as usual for the benefit of his health; but exceptions necessarily arose, and in the Beverley and Bridgwater Bill a person who had been included in the Schedule of the Commissioners' Report was excluded from the operation of the Bill; and what he proposed was that similarly Mr. Bignold's name should be made an exception in this case. The case against Bignold was so weak and unsatisfactory that proceedings against him would inevitably have resulted in an acquittal, and it was, therefore, obviously just that he should be put in the same category as those who were referred to in the 2nd clause.
  Amendment moved, to leave out ("No") and insert "Neither Arthur Bignold, mentioned in Schedule A. annexed to the said Report, nor."—(The Lord Cairns.)
  THE LORD CHANCELLORsaid, he quite agreed with his noble and learned Friend that as a rule it was undesirable to try over again questions which had been tried by Commissioners in whom confidence must naturally be placed. Their Report was, of course, sifted like any other judgment or public document; but it was impossible to enter into minute distinctions as to particular cases, and there was no further opportunity of sifting the matter and coming to a more correct conclusion. A strong representation had been made to him with reference to another person the case against whom was not very strong, but who happened to be in England at the time of the inquiry; whereas Mr. Bignold had apparently the good fortune of not being in England. Looking at the evidence he was bound to say that the case against the latter was not brought up to conviction. It was one of very grave suspicion; but the Commissioners were not entitled, on account of his absence, whatever the cause of it might be, to draw a conclusion in a matter requiring proof. There was no doubt that £200 was obtained by a publican named
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  Webster, and was employed for the purpose of bribery, the arrangement being discussed by Allen and Stracey in the presence of Bignold; and Allen in his evidence made every attempt to excuse Bignold, afterwards seeing him and telling him it was all right. That, of course, was not sufficient to convict Bignold of bribery, and he thought the Commissioners had erred in that respect. He should, however, have been loth to enter into the case were it not for the fact that Stracey had been tried for the same transaction and acquitted. He did not suppose the Attorney General would think of prosecuting every person in a list of 150 names against whom the offence seemed proved—he would naturally prosecute those who most deserved prosecution, and Stracey was obviously such a person. On the ground of his acquittal, and not on the mere ground that Bignold had not been prosecuted, he acceded to the Amendment.
  On Question, agreed to; Amendment made: The Report thereof to be received on Monday the 13 th of June next; and Bill to be printed, as amended. (No. 128.)

BRIDGWATER AND BEVERLEY DISFRANCHISEMENT BILL.
(The Lord Chancellor.)
BRIDGWATER AND BEVERLEY DISFRANCHISEMENT BILL.

  (NO. 87.) COMMITTEE.
  Order of the Day for the House to go into Committee, read.
  LORD COLCHESTERsaid, he must beg leave to say a few words before going into Committee. The Government had thought right to press the second reading of this measure at a late hour when the House was nearly empty. There seemed to be a false impression that it was intended to attack the Judges as to this matter. On the contrary, the proceedings of the Commissioners which were complained of had been considered by Her Majesty's Judges, and an unfavourable opinion had been pronounced with regard to them by no less an authority than the Chief Justice of the Queen's Bench. What he desired, however, to bring under their Lordships' notice was—not the wit or sarcasm of the Commissioners, for that had met with sufficient reprobation in public estimation—but the cruel and undeserved attack which was made in the Report

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  itself on a large and innocent body of men. There was a wide distinction between the old constituency of Bridgwater, which was undoubtedly corrupt, and the 800 voters added by the late Reform Act. The Commissioners stated that a witness (Mr. Barham) had described the new voters as standing about to be bought like cattle at a fair. He had really said nothing as to new voters. Of these only 12 were proved to have been bribed; and yet they were all involved in one common censure. The total number of persons bribed at the last election was 57 out of a constituency of 1,500. Undoubtedly, the past experience of Bridgwater was unfavourable, and, therefore, he did not ask the House to reject this Bill; but in common justice they ought not to confound the innocent with the guilty. He had no personal interest to serve in bringing forward this question; and, looking to the antecedents of Bridgwater, the course which he was taking could not be said to have any party purpose in view. It might be remembered also that he had refused to join in opposing the issue of the Commission to inquire as to the Dublin freemen; but, certainly, if that Commission had been conducted in the same spirit and manner as the kindred inquiry at Bridgwater it was hardly probable that it would be attended with beneficial results in a public point of view.
  THE EARL OF FEVERSHAMsaid, there was one result of these Disfranchisement Bills which occasionally was lost sight of, and that was that, by throwing the voters of the disfranchised borough into the county constituencies the relative strength of parties was altogether disturbed. There was a very strong feeling in Yorkshire that the seats which were taken from Beverley ought not to be lost to the county, and he begged accordingly to ask the noble Earl opposite whether he could give any intimation to the House as to the probable destination of the seats which were to be taken away under this Bill?
  EARL GRANVILLEwas very sorry—but he was not in a position to give any answer to the question.
  House in Committee.
  Clause 1 (Disfranchisement of Bridgwater and Beverley).
  THE MARQUESS OF SALISBURYsaid, he thought the time had arrived when he might fairly make a suggestion to the noble and learned Lord on the Woolsack. There could be no doubt that these Election Commissioners had carried out the powers with which they were intrusted with a very high hand, and that in one instance they had been censured by a legal authority whose rank only yielded to that of the noble and learned Lord himself. He was sorry, therefore, to hear the noble and learned Lord on the Woolsack speak in terms of approval of the manner in which these Commissioners conducted their inquiries. Considering that theirs was a strictly penal investigation, upon which future legislation was intended to be founded, he must say that their inquiries had been conducted in a spirit alien not only to the practice of English Courts of Justice, but, as far as he knew, to the practice of Courts of Justice anywhere. No doubt, cross-examination to the point of torture was applied by juges d'instruction to prisoners accused of crime; but that was with the object of obtaining information for the purpose of the particular criminal proceeding, not with a view of eliciting answers upon which penal legislation could afterwards be founded. It was the peculiarity of these Election Commissioners that the witnesses had been tortured by bullying and browbeating in a way that no Law Officers since the days of Chief Justice Jeffreys had ever attempted; and upon the evidence so obtained they were asked to proceed by legislation. He confessed that, for his own part—and he doubted not the case was so with others—he had been slow to speak upon this subject, knowing that the crime of bribery had grown to a very great height, and that it was most desirable it should be repressed. But, in connection with the present Bill, he certainly should have expected from the highest legal authority something like a repudiation of a mode of investigation that was utterly alien from all previous practice. If there was anything that would turn the sympathies of Englishmen—which at present were strongly in favour of purity of election—in favour of persons who were guilty of bribery it would be the manner and spirit in which these election inquiries had been conducted.
  LORD LYVEDENthought the fault lay in the manner in which these Commissioners were selected; and he could not help observing that, in the case of Bridgwater, one of the Commissioners was evidently a person that ought never to have been appointed. His proceedings in every stage had been of a most intemperate character—intemperate at Hong Kong, and in the Court at Bridgwater as now in Bombay. There never was a man more manifestly unfit for the duty which had been assigned to him. He had conducted the inquiry in a most unbecoming and indecorous manner. The Commissioners were appointed at so much—£5 5s.—a day; and it was perhaps after all not surprising that the inquiry should have been so protracted, as the Commissioners having little practice in the Courts, were only too glad to be employed during the whole of the long vacation. That was not the manner in which these inquiries should be conducted; they ought to be conducted with something like solemnity, so as to carry with them the influence of authority, instead of in such a manner as to excite the ridicule of the Bar and of the public.
  THE LORD CHANCELLORsaid, he was quite unconscious of having spoken in terms of high approval of the way in which these Commissioners had conducted their examinations. What he did say was, that having entrusted a certain investigation to Commissioners, they must be prepared to repose some degree of confidence in them. For himself, he was unwilling to go behind this Report in order to consider the conduct of gentlemen who had been entrusted with judicial functions; and nothing but a very strong case could have justified the noble Marquess in asking him to express an opinion condemnatory of their proceedings. He was not disposed to give any such opinion. He was too much occupied by his usual judicial business to have been able to inform himself minutely on these matters; and he could not take on himself to pronounce any opinion on the conduct of one set of Commissioners or another; and to pass a general censure on all Commissioners would certainly be far from becoming in one holding the position which he did in a profession me members of which he had always honoured and esteemed. Whenever there
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  had been any particular delinquency brought before their Lordships, or in any other quarter, he had endeavoured to discharge his duty; but he would not volunteer to perform so invidious a task as had been assigned to him by the noble Marquess.
  THE MARQUESS OF SALISBURYsaid, he had not asked the noble and learned Lord to perform any such invidious task as he supposed: what he complained of was, that the noble and learned Lord should have expressed approbation of the procedure before these Commissioners, although he had at hand the means of knowing how high-handed these proceedings sometimes were. No doubt, in some cases these inquiries were carried out in a more odious manner than in others; but in the case of Beverley, as the noble and learned Lord must have been aware, they had been occasion of public scandal. He thought that a system of procedure which admitted of such things without reproof was likely to produce an injurious effect on the public mind.
  Amendment made: The Report thereof to be received on Monday the 13 th of June next; and Bill to be printed as amended. (No. 129.)

REAL ESTATE SUCCESSION BILL.

  QUESTION.
  LORD REDESDALEasked the noble and learned Lord on the Woolsack, as to the intentions of Her Majesty's Government with respect to the Real Estate Succession Bill? That was one of the measures announced in the Speech from the Throne to be brought forward by the Government; it was, therefore, to be presumed that they had made up their minds on the subject before Parliament met. He need not say that a measure relating to the succession to real estate must have a most important bearing on the constitution of their Lordships' House, and all the Members connected with it. On a former occasion—on the 17th of February—when the question regarded the business before the House, he drew particular attention to that Bill, and suggested that it was one which might very wall originate in that branch of the Legislature. No notice was taken of that suggestion; but, on the 18th of March, the Bill was brought in and read

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  a first time in the other House of Parliament. Notice was also given of the second reading for the 28th of March. That day came, and the Bill was deferred till the 2nd of May. It was afterwards deferred till the 16th, and then, on Friday, the 13th, it was deferred till the 16th of June. There it now stood. But the most extraordinary thing connected with the Bill was that, though brought in and read a first time on the 18th of March, it was not printed, or in the hands of any one till the 13th of May. He thought such procedure very unusual. The Bill, as he had stated, now stood for a second reading on the 16th of June, and was not likely to reach their Lordships' House till that period of the Session when it would be extremely difficult to consider it. Under these circumstances, he should like to know the reason for all this delay, and what the intentions of Her Majesty's Government were with respect to this Bill?
  THE LORD CHANCELLORthought his noble Friend had certainly travelled a little beyond his Question. He was prepared to give an answer to the Question, of which his noble Friend had given Notice, What were the intentions of Her Majesty's Government with respect to the Real Estate Succession Bill? but he confessed he was not prepared to answer him categorically as to all the proceedings in relation to it in the other House, although, if his noble Friend had apprized him of his wishes in that respect, he should have been prepared with all the dates and figures. The Bill had been prepared for some time; but the subject was by no means an easy one. Though the Bill was confined to a very few clauses, the subject was one for very grave and anxious consideration. It was considered in its principle, of course, before it was announced, and also after it was announced in its details. It was announced with the expectation that it would have a very liberal acceptance on the part of the legal profession; but a very eminent member of that profession announced in the other House, on its introduction, that it would be opposed. The Bill then became an opposed Bill, and their Lordships might take almost judicial notice of the fact that the Irish Land Bill had been for some time pending in the House of Commons. A very considerable time had also been
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  occupied, and a good deal more would be spent, in discussing other Bills—the Education Bill, the Universities Bill, the Extradition Bill, and two or three others, all of which would require to be brought on in due course. The Bill in question had been set down on the earliest day that could be conveniently fixed, regard being had to the progress of other measures of more leading importance which must be carried through. Like other measures, it must take its chance of being discussed in regular course. It was the intention of the Government to proceed with the Bill, and, if possible, to carry it up to their Lordships' House. If that was not possible, they could do nothing more than retain it for another opportunity. At the same time, he could not sit down without saying that, notwithstanding all the noble Lord's exhortations that these legal Bills should be introduced in that House, he did not find, practically, much encouragement to follow the suggestion; and he certainly was not disposed to take that course.

  DEBTORS (IRELAND)) BILL [H.L.]
  A Bill for the abolition of Imprisonment for Debt and for the punishment of fraudulent Debtors in Ireland, and for other purposes—Was presented by The Marquess of CLANRICARDE; read 1a. (No. 126.)

  PRAYER, BOOK (LECTIONARY) BILL [H.L.]
  A Bill to amend the Law relating to the Table of Lessons contained in the Prayer Book—Was presented by The LORD CHANCELLOR; read 1a. (No. 127.)
  House adjourned at Seven o'clock, to Monday the 13th of June next, a quarter before Five o'clock.