Lords Sitting of 22 July 1872

MINUTES.
Sat First in Parliament—The Viscount Clancarty, after the death of his father.
PUBLIC BILLS—First Reading—Grand Juries (Middlesex)* (235).
Second Reading—Statute Law Revision (No. 2)* (217); Metropolitan Tramways Provisional Orders Suspension* (220).
Committee—Tramways Provisional Orders Confirmation (No. 3)* (145–236); Inclosure Law Amendment (221–238).
Committee—Report—Withdrawn—Acrobats (207).
Report—Summary Jurisdiction* (200–237); Ecclesiastical Dilapidations Act (1871) Amendment* (233).
Third Reading—Public Schools Act (1868) Amendment* (212); Tramways Provisional Orders Confirmation (No. 4)* (146), and passed.

IRELAND—GALWAY ELECTION PETITION—JUDGMENT OF MR. JUSTICE KEOGH.—EXPLANATION.
THE EARL OF GRANARD: My Lords, I have to ask your Lordships' indulgence in making a statement of a personal nature. I thought I should have had an opportunity of entering into an explanation which I was prepared to give if Earl Russell, who is not now present, had put to the noble and learned Lord on the Woolsack the Question of which he had given Notice for this evening; but on Friday night I received a note from the noble Earl stating that he would defer putting his Question till

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the 29th instant. The note was in these terms—
"Pembroke Lodge, Richmond Park, July 19. "Lord Russell presents his compliments to Lord Granard. He has resolved to put off his Question to the Chancellor till Monday, the 29th."
Well, my Lords, I have now to state that, having read very carefully the Papers which have been laid on your Lordships' Table in reference to the Gal way Election case—the judgment of Mr. Justice Keogh and the other documents connected with it—I find myself unable conscientiously to modify the opinion I had formed when I wrote the letter to which allusion has been made in your Lordships' House, or to retract the expressions I made use of in reference to the language of Mr. Justice Keogh respecting the Catholic clergy. Under those circumstances, and being most reluctant that any act of mine should cause the slightest embarrassment to Her Majesty's Government, I considered that the most honourable course for me to pursue was to place my resignation of the Lord Lieutenancy of the county of Leitrim in the hands of the Lord Lieutenant of Ireland. Accordingly, I have done so. I wish to add, my Lords, most explicitly, that I took this step without the slightest pressure having been put on me by any Member of Her Majesty's Government. I have taken this step entirely on my own responsibility, considering that I ought to act in a matter of the kind on my own judgment. Indeed, from the outset, I was perfectly willing to send in my resignation. That resignation having been accepted, I think it will be unnecessary for me to make any further observations, except in the way of thanks to your Lordships for your indulgence in having permitted me to address the statement to the House.

THE COUNTESS OF MAYO.

  THE QUEEN'S MESSAGE CONSIDERED.
  Order of the Day for the consideration of the Queen's Message respecting a provision for the Countess of Mayo, read.
  THE DUKE OF ARGYLL: My Lords, in moving that Her Majesty's gracious Message be taken into consideration, I do not think it will require any words or arguments of mine to induce your
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  Lordships to associate yourselves with the Crown and the other House of Parliament in increasing the provision which has already been made for Lady Mayo. I feel it, however, to be my duty to state in a few words the circumstances under which this Message has come down from the Crown. As soon as intelligence had been received in this country of the assassination of Lord Mayo, it became my duty, as Secretary of State, to consider with the Council of India—which is the only body having power to vote money chargeable upon the Revenues of India—what would be the most appropriate form in which to recognize the services of the murdered Viceroy. I need hardly remind your Lordships that though in the earlier days of the East India Company there were many cases in which large sums of money were voted to the distinguished men by whom we acquired our Eastern Empire, yet in recent years such grants have been almost strictly matters of rule and precedent as similar grants out of the Imperial Exchequer. In this case the precedent which appeared to us most immediately in point was that of the provision made for the widow of the late Lord Elgin; and we thought it would be a fitting provision for Lady Mayo if we voted out of the Indian Treasury alone a sum equal to what had been voted for Lady Elgin both out of the Indian Revenues and the Imperial Exchequer. After communication with the friends and relatives of Lady Mayo as to the form which the Vote could most conveniently take, we thought the most suitable would be to vote her a pension for life of £1,000 a-year, with a capital sum of £20,000, the interest of which would be available for the education and support of her younger children. The provision that was made for Lady Elgin was considerably less, for it was only a life annuity of £2,000, and there was no capital sum at all. But, my Lords, before the arrangements were finally made it became apparent that the House of Commons desired to be associated with the provision for Lady Mayo. I have no doubt that the same feeling was entertained by your Lordships' House; and I must say for myself that I rejoice at it, because I think it well that not only the people of India should recognize the services Lord Mayo had rendered to that Empire, but that the Imperial Par-

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  liament should make a recognition of the services which he had rendered to the Crown and the people of this country. I shall, therefore, my Lords, ask your Lordships to associate yourselves with the Crown and the other House of Parliament in making a provision of £1,000 a-year from the Imperial Exchequer for Lady Mayo, which will be in addition to £1,000 a-year charged on the Indian Revenues. My Lords, it will not be necessary to say anything as to the merits of the late Lord Mayo in addition to what I ventured to address to your Lordships on a former occasion, further than to mention that during the months which have elapsed since the time of his assassination I have had an opportunity of conversing with many military officers and civil servants who had an opportunity of seeing what was the noble Lord's mode of fulfilling the duties of his high office; and I have found their unanimous impression to be that his rule in India was such as to win for him the respect and affection of the natives of India as well as of those who served under him in the government of our Indian Empire. Considering that the basis upon which our oriental Empire must ultimately be that of respect and affection, I think it no small matter that we should have had a Viceroy who has been able to make himself thoroughly beloved by all classes of the people he was sent to rule. The noble Duke concluded by moving—
  "That an humble Address be presented to Her Majesty, to return Her Majesty the thanks of this House for Her Majesty's most gracious Message informing this House, That 'Her Majesty taking into consideration the distinguished services performed by the late Richard Southwell, Earl of Mayo, Her Majesty's Viceroy and Governor-General of India, and the loss of his life in Her service and in the discharge of public duty, and being desirous in recognition of such services and in view of the circumstances of his death to confer some signal mark of Her favour upon his widow, Blanche Julia, Countess of Mayo, recommends it to the House of Lords to concur in enabling Her Majesty to make provision for securing to the Countess of Mayo a pension of one thousand pounds per annum for the term of her natural life;' and to assure Her Majesty that this House will cheerfully concur in such measures as may be necessary for securing to Blanche Julia, Countess of Mayo, a pension of one thousand pounds per annum for the term of her natural life."
  THE DUKE OF RICHMOND: My Lords, it is scarcely necessary for me to say with what unanimity we respond to
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  the Royal Message from this side of the House, and how cordially we desire to associate ourselves with the Crown and the other House of Parliament in making a suitable provision for the widow of the late Lord Mayo. I quite concur with the noble Duke in the eulogy he has passed, and in thinking that the loss of Lord Mayo is a national one; and I think it is a wise arrangement that some portion of the provision to be made for Lady Mayo and her children should be paid out of the Imperial Exchequer, in order that the people of India may know that the people of England appreciate Lord Mayo's services and lament his death. My Lords, I believe no public man was ever more untiring in the discharge of his duty. I believe no hero ever lost his life more nobly than Lord Mayo. It was from his conscientious discharge of his duty, his determination to take nothing for granted, but to see everything personally, that he was exposed to his untimely death. I do not wish, my Lords, to prolong a conversation on this melancholy subject, but I will say that it must be, at least, some comfort to the widow and children who mourn his loss to know that it is felt by his Sovereign and his country, and that his countrymen—those who were his private friends and those who were opposed to him in politics—are vieing with each other in carrying out a scheme to do honour to his memory.
  Then the said Address was agreed to, Nemine Dissentiente; and ordered to be presented to Her Majesty by the Lords with White Staves.

ACROBATS BILL—(No. 173.)
(The Lord Buckhurst.)

COMMITTEE. (ON RE-COMMITMENT.)
House in Committee (according to Order) (on re-commitment).
THE EARL OF SHAFTESBURYsaid, that the Interpretation Clause was defective, and the prohibitory portion of the measure also was defective, because it only prohibited the performance of children as acrobats, and did not deal with the training of children for acrobats, where most of the mischief lay. To show how necessary it was to forbid the training of children as acrobats, he begged to read to their Lordships an extract from a letter which a friend of

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his had received within the last few days from a lad of 17—
"No other chap in the world is so supple, and can tumble and twist himself like me. My father, who injured himself with a fall from a high rope, trained me into it. He began by twisting my limbs and back bone when I was a little baby. I used to suffer dreadful, and I remember when I was from four to nine years of age he used to make me twist myself, and remain twisted up, till my bones seemed to come away from each other, and I was often ill with the pain."
The training began at two years of age, when there was no bone, but when all that subsequently became bone was mere gristle—at that age the poor infants under training as acrobats were curled up for hours, and the number of children who must become diseased or crippled under the process was appalling to think of. The operative part of the Bill only took cognizance of performances whereby the life and limb of the persons engaged might be endangered—but to be effective it should deal with whatever might be prejudicial to the health of the children while undergoing their training. He put it to the noble Lord (Lord Buckhurst), who had introduced the Bill whether it would not be better to withdraw it for the present Session and introduce it again after he had obtained further evidence, and had had an opportunity of enlarging the provisions of the measure. If, however, the noble Lord persevered with the present Bill he would support him, because he approved its principle; but in such case it would be necessary to move an Amendment to include acrobatic performances which were injurious to health as well as those which were dangerous to life or limb.
LORD BUCKHURST, agreeing with much that had fallen from the noble Earl, said, it would be impossible to enlarge the Bill at that advanced period of the Session. He had no objection, however, to withdraw it provided there was any prospect of the dangerous performances on the elevated tight rope, &c., being put a stop to.
THE EARL OF KIMBERLEYsaid, he thought it was impossible for their Lordships to proceed with this Bill without some better definition of "acrobatic performance" than that contained in the interpretation clause. The Bill first declared that "acrobat" should mean "a person engaged in any acrobatic performance. It next declared that—
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"Acrobatic performance should mean any muscular exercise, or any performance through the agency of muscular action practised or given by way of trade and for the purpose of gain, whereby the life or limb of the person so engaged should be endangered or injuriously affected."
Something more definite than this was required.
LORD ROMILLYsaid, that the definition of the cases intended to be covered by the Bill was this—
"Any muscular exercise or any performance through the agency of muscular action practised or given by way of trade and for the purpose of gain, whereby the life or limb of the person so engaged shall be endangered or injuriously affected."
He did not believe that "acrobat" was an English word, and he had therefore suggested that a definition of the term should be conveyed in the Act, the object being to include any species of muscular instruction that might be dangerous to children. They might be sure that if the exercises themselves were stopped, the preliminary instruction would also be effectually prevented, and he therefore considered that much good would be effected by the measure.
THE MARQUESS OF SALISBURYpointed out that the legal definition just supplied by the noble and learned Lord opposite might lead to strange conclusions; for instance, was a jockey riding a race to come within the operation of the Act? He did not know much about such matters, but assuredly a jockey could not exercise his calling without the agency of muscular action—he did it for gain—and his life and limbs were frequently endangered, and sometimes he lost his life.
LORD ROMILLYsaid, the Act was confined to children under the age of twelve years, and therefore would not apply to such a case. Acrobatic performances might perhaps be briefly translated to mean performances in which a person "went aloft"—an exhibitor on the tight rope, or on the top of a pole.
THE MARQUESS OF SALISBURYsaid, a sailor fulfilled that condition—and as he exercised muscular action for gain at risk of life and limb, he would come under the operation of the Act. It must be remembered that a Court of Law would construe the Act according to the definition, without any regard to the meaning of the Greek original.
THE DUKE OF MANCHESTERsaid, some of the performances on the rails in

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Rotten Row came under the definition of "acrobatic performances." He did not think they would come under the operation of this Bill, because they endangered the life and limb of others rather than of the peformers.
THE EARL OF KIMBERLEYagreed that the Act was at present very loosely drawn, and that if it passed in its existing form many difficulties might arise.
THE DUKE OF RICHMONDsuggested that the Bill should be withdrawn for this Session, for there was really no chance of its passing the other House in its present form. Next Session a Select Committee might be appointed on the subject, and something like a useful measure might then be introduced.
LORD BUCKHURSTsaid, he would accept the suggestion of his noble Friend and withdraw the Bill for the present, but would take an early opportunity next Session of again drawing attention to the subject.
Bill reported, without Amendment; Then Bill (by leave of the House) withdrawn.

INCLOSURE LAW AMENDMENT BILL—(Nos. 169–204–221.)
(The Earl of Morley.)

COMMITTEE (ON RE-COMMITMENT.)
Order of the Day for the House to be put into Committee, read.
LORD REDESDALEsaid, that before the House again went into Committee on the Bill, it was much to be desired that reliable information should be laid before their Lordships respecting the number of commons to be inclosed, and particulars concerning their position, surroundings, &c. He was convinced that if it had not been so near the end of the Session their Lordships would never have proceeded with such haste with a measure of this kind, and he hoped that the Committee would at least be deferred until the information he had indicated, and which he should be willing to move for, had been obtained.
THE EARL OF MORLEYsaid, that all the particulars desired by the noble Lord were already in print, in the Reports of the Inclosure Commissioners.
House in Committee.
LORD DUNSANY LORD DUNSANY moved, after Clause 3, to add these words—
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"Provided also, that where such land is not within five miles of any town or within three miles of any village or hamlet, and where the population within three miles of the centre of the proposed inclosure shall not exceed ten inhabitants to the square mile, the Commissioners may use their own discretion as to the allotment of any recreation ground or field garden, having regard, nevertheless, to any such right or custom of user as is expressed in clause 4."
In Wales and elsewhere there was much land which it would be desirable to inclose, in districts almost uninhabited, or at best but very sparely populated, and where it would be simply absurd to set apart any portion for the recreation of the inhabitants, seeing that hardly any were to be found. At the same time, his Amendment would preserve all existing rights in the cases in question.
THE DUKE OF NORTHUMBERLANDagreed with the noble Lord, and desired to point out further that in many instances a number of commons were situated close together; and was it to be said that the stipulated portion from each of them was to be set aside for recreation? Such a thing would be absurd. Yet, as the Act now stood, the Commissioners would be compelled to do it.
THE EARL OF KIMBERLEYsaid, that the portion to be set aside might be used either for recreation or allotment.
THE DUKE OF NORTHUMBERLANDanswered that his objection applied equally in either event, because in the districts he referred to the poorer inhabitants were furnished with such large gardens that further allotments to them would be wholly superfluous.
LORD HOUGHTONasked whether, in the present state of the business of the other House, it was worth while to attempt to proceed further with this Bill? What chance had it of passing the Lower House? By those who opposed all inclosures, the Bill would be regarded as a mere sop, while it would be sure to provoke much opposition.
THE EARL OF MORLEYsaid, the last speech would have the effect of impugning the spirit of the Bill. He emphatically denied the assertion of the noble Lord that the measure would be received as a mere sop. He had already several times explained the principle of the Bill, which would give facilities for inclosing commons, without at all interfering with the rights of the public. He

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trusted that the noble Lord would not press his Amendment.
THE DUKE OF NORTHUMBERLANDsaid, the measure ignored the rights of the lord of the manor.
THE EARL OF MORLEYsaid, it could hardly be contended that the rights of the lord of the manor were disregarded, as he had an absolute veto over inclosure. The rights of the commoners were of comparatively little importance, but those rights were respected by Parliament. At the same time, Parliament had the right, on behalf of the public and the poorer inhabitants, to impose some conditions upon inclosure.
THE MARQUESS OF SALISBURYdoubted whether the right of veto possessed by the lord of the manor under the old Acts would remain when this Bill had passed. The lord and the commoners were entitled to ask from Parliament the means of obtaining a full enjoyment of their rights, and Parliament was now asked to interpose and levy blackmail upon them. If their Lordships adopted the advice given some time ago by a noble and learned Lord (Lord Romilly), and went to their dictionaries for the meaning of words, nothing was "confiscated" which did not go into the Exchequer; but it was certainly spoliation to enact that when the lord and commoners desired to inclose they should be forced to concede to other persons rights which were perfectly new.
Amendment negatived.
Clause 5 (Situation, &c., of allotment for recreation ground and field garden.)
THE DUKE OF RICHMOND THE DUKE OF RICHMOND moved to strike out from the clause all words relating to commonable land. His reason for doing so was to meet this case:—Suppose he was the owner of a farm of 600 acres, of which 100 were commonable land—as much his freehold as the other 400, but subject to an easement during certain months in the year by parties who had the right of putting their stock there. Perhaps during that part of the year when the 100 acres were not subject to the easement he might lay them down for hay. If these portions of the clause, however, were allowed to stand, these 100 acres might be taken from him, and he might receive in exchange an allotment of common
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land on the hill-side which would not keep a donkey if you turned him out on it, and which would be of no use to him whatever. He, therefore, proposed to strike out all the words in the clause relating to commonable land;—the result of which would be that a man could not be deprived of that which was his property as much as anything else that he possessed.
Lines 22–23, moved to leave out ("of the commonable land instead of out of the common or out.")—(The Duke of Richmond.)
THE EARL OF MORLEYdefended the clause as it stood. There was a considerable difference between "common" and "commonable land," and the Bill recognized the distinction between these two kinds of proprietorship. By "commonable land" he meant open fields owned in severalty, liable to be inclosed under the General Inclosure Act, and subject to common rights. He put it to their Lordships whether it was not almost useless to grant allotments at a distance from the houses of those to whom they were made, when, if there were "commonable land," the allotments might be made near the houses? This clause said that where there were both common and commonable land the Commissioners might say that the allotments should be taken out of the commonable land; but if there was a gross injustice—which, however, was not likely to occur—two-thirds of the proprietors would never be found to consent, and the provisional order on the subject would fall to the ground.
LORD WENLOCKsupported the Amendment, on the ground that commonable lands were matters of sale and settlement, and could not be interfered with without giving rise to a great deal of difficulty.
On Question, That the words proposed to be left out stand part of the clause? their Lordships divided:—Contents 55; Not-Contents 81: Majority 26.
Amendment agreed to.
Words struck out.
THE EARL OF MORLEY THE EARL OF MORLEY moved, after Clause 38, to insert a clause enabling those persons who had given their consents to inclosures proposed to be made

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under the law as it now existed, and in respect to which the Inclosure Commissioners had issued their provisional orders, to withdraw such consents if they should think fit to do so. The Commissioners were, therefore, authorized to modify the provisional orders so as to bring them under the Act; and the proprietors might either accept the modified orders or withdraw their consents.
THE DUKE OF RICHMONDsaid, those persons who had agreed to inclosures under the existing law and who had complied with all the terms necessary for the carrying out of inclosures ought to be allowed to complete the inclosures they had begun.
LORD ORMATHWAITEwished to know what arrangement the noble Earl proposed in cases where the number of landowners was large, and part of them were willing to accept the conditions which this Bill would impose, but the other part were not willing?
THE EARL OF MORLEYsaid, the applications for the inclosures which were not yet completed were made after a Committee of the House of Commons reported that no further inclosures should be made until a new measure on the subject had been passed. Therefore, he thought it was not unfair to subject landowners to the conditions which this Bill would impose if they wished to go on with the inclosures they had proposed; but in case they did not like these terms to allow them to withdraw their consent to the inclosures.
THE MARQUESS OF SALISBURYsaid, the House of Commons was a changing body, and he did not think that the Resolution to which the noble Earl referred was a reason for imposing the conditions of this Bill on landowners who had consented to inclosures under the existing law if they wished to complete those inclosures.
On Question? their Lordships divided:—Contents 50; Not-Contents 71: Majority 21.
Amendment disagreed to.
On Motion, that the Amendments be reported on Friday next,
THE DUKE OF NORTHUMBERLAND THE DUKE OF NORTHUMBERLAND moved that the Amendments be reported this day three months.
THE EARL OF KIMBERLEYurged that courtesy required notice of such an attempt to reject the Bill. Amendments had certainly been made in it which he disapproved, but it was still a useful Bill.
THE MARQUESS OF SALISBURYremarked on the uselessness of Amendments being made by this House unless the Government assented to them. Without that assent, the Bill would be returned by the House of Commons a few days before the end of the Session, when no Peers would be present to insist on such Amendments.
LORD CHELMSFORDappealed to his noble Friend to postpone his Motion to a future stage.
THE DUKE OF RICHMONDjoined in the appeal, promising his noble Friend his support on a future occasion. He hoped the Bill would not leave this House; but it would not be fair to reject it without notice to-night, when the division already taken had shown on which side the majority lay.
THE MARQUESS OF RIPONsaid, the Government simply asked for fair notice.
THE DUKE OF NORTHUMBERLAND, disclaiming any wish to take the House by surprise, said he would defer his opposition to the Bill till the next stage.
Amendment withdrawn.
The Report of the Amendments to be received on Friday next, and Bill to be printed, as amended. (No. 238.)
House adjourned at a quarter past Seven o'clock, till To-morrow, half past Ten o'clock.