Lords Sitting of 16 May 1873

MINUTES.
PUBLIC BILLS—Second Reading—Referred to Select Committee—Pollution of Rivers (59).
Report—Railway and Canal Traffic (112–120).
Third Reading—University Tests (Dublin) * (103), and passed.

POLLUTION OF RIVERS BILL—(No. 59.)
(The Duke of Northumberland.)

SECOND READING.
Order of the Day for the Second Reading read.
Moved, "That the Bill be now read 2a." (The Duke of Northumberland).
THE EARL OF MORLEYsaid, there could be no question as to the evils with which the Bills proposed to deal—indeed the whole subject had already been inquired into and reported upon by a
2
Royal Commission—and the Government were so impressed with the necessity of doing something in the matter, that last year his right hon. Friend the President of the Local Government Board introduced in the Sanitary Bill clauses which were almost identical with those in the Bill which the noble Duke asked their Lordships to read a second time; but so many objections were urged against his propositions, and so great would have been the interference with several branches of industry by the provisions against the pollution of rivers, owing to their necessary stringency and the difficulty of carrying them out, that the Government felt obliged to abandon them. By way of illustration he might mention the difficulty which presented itself in reference to the definition of a "polluted liquid"—definitions had been attempted, but they were so minute that the utmost difficulty would have been found in putting them into practice. Again, one of

3
the most important considerations in connection with the subject of sanitary reform was that of the re-organization of the local authorities. It seemed very questionable that a river should be under the care of so small an authority as a local sanitary authority—it would seem better to place it under a large authority, such as that which managed highways. But as the whole subject of sanitary reform was receiving the attention of Her Majesty's Government, and bearing in mind the fate of the clauses having reference to the pollution of rivers in the Bill of last year, he could not, on behalf of the Government, promise that this Bill would receive their support in the other House of Parliament.
THE DUKE OF CLEVELANDsaid, he was far from opposing the second reading of the Bill, because there was much that was good in it, and in all these matters it was necessary to make a beginning: but before passing the Bill through a future stage it would be necessary to pause and consider very seriously whether its provisions were such as could be carried out. In his opinion they went too far. At any rate, the fate of the Government measure of last Session showed how necessary it was that the country should have time to consider provisions that so largely affected local and industrial interests. He did not know that even Parliament was in possession of sufficient information to enable them to legislate on the subject.
LORD RAVENSWORTHsaid, there did not appear to be any objection to the principle of the Bill. The objections that had been urged were rather against precipitancy in consenting to such stringent provisions as were contained in the clauses of the Bill. The pollution of rivers was so great that the interference of the Legislature was urgently called for. Many rivers in the North of England with which he was acquainted were in such a state of pollution as to be absolutely poisonous. He knew rivers which oven at a very considerable distance from the source of pollution were in some cases of the colour of deep indigo, and in others of the colour of dirty sulphurous yellow. The water was thus rendered noxious to vegetation and poisonous to fish, and if poisonous to fish, noxious also to cattle and deleterious to man. The provisions of the Bill might be stringent, but such de-
4
tails could be dealt with by a Select Committee if not by a Committee of the Whole House, and he hoped the noble Duke would persevere with his measure.
THE MARQUESS OF SALISBURYthought that before their Lordships read the Bill a second time it would be well that they should do actually what they had already done formally—read it a first time. On reading the Bill their Lordships would find that it enacted the imposition of heavy penalties on any person who caused or permitted any "polluting liquid" to flow into a river. There were very few of their Lordships who were not the owners of a ditch, and all persons who had ditches would do well to look to one of the definitions which Clause 7 in this Bill gave of a "polluting liquid:"—
"Any liquid which exhibits by daylight a distinct colour when a stratum of one-inch deep is placed in a white porcelain or earthenware vessel."
But that was not all. The liquid might be as clear as crystal, and yet under this Bill it would be a "polluting liquid" if it contained
"In suspension more than three parts by weight of dry mineral matter, or one part by weight of dry organic matter, in 100,000 parts by weight of the liquid."
It was his impression that he had often seen ditches the liquid in which would come under the prohibition in this Bill. But what was the case with some of the principal rivers? In the Thames there were 50 parts of the objectionable matter in the 100,000 parts by weight of the liquid; in the Rhine, at Bonn, 20; in the Meuse, 47; in the Mississippi, 80; and in the Ganges, from 20 to 200. He was afraid that those of their Lordships who possessed many ditches would be nigh ruined by the Bill, for it imposed upon anyone who, whether knowingly or negligently permitted any "polluting liquid" to run into any river the penalty of £5 on the first conviction, for the second conviction, a penalty of £10, with a continuing penalty of £2 per diem, and for the third or subsequent conviction £20and a running penalty of £5 per diem. This was rather severe upon the poor land owners, considering that they would incur these penalties if they did not keep their ditches very much cleaner than some of the principal rivers of the world. The two eminent scientific gentlemen who had acted as

5
Commissioners had directed their attention to the stopping of the evil; but there was always the danger of attempting too much by legislation, and before undertaking so large a subject, it would be well to have the question considered by practical men. Such a Bill as that now before their Lordships would have to encounter powerful opposition from manufacturers; and for those and other reasons, he thought it ought to be referred to a Select Committee if their Lordships agreed to give it a second reading.
VISCOUNT PORTMANhoped the noble Duke would not press the second reading of the Bill until after more mature consideration, for if it should become law it would be almost impossible to carry on the mining industry of the country.
LORD VIVIANsaid, that legislation on this subject was much needed, and therefore hoped the Bill would be read a second time.
THE EARL OF LAUDERDALEconcurred in thinking that legislation was required. There would be no difficulty in detecting noxious matter at the mouth of the drain coming from the factories before it was mixed and diluted by the water of the river. He lived in the neighbourhood of two rivers—the Whitewater and the Blackwater. You might stand on the bridge and see the salmon shooting up the first of those rivers like lightning—without stopping for an instant; but when they got about 20 yards up the other river they suddenly stopped, turned up their noses, and made a rapid retreat. This was the Black-adder or Blackwater.
THE MARQUESS OF RIPONsaid, there was no intention on the part of the Government to deny that something ought to be done. There was no question of the extent and mischief of the evil—the only question was whether the Bill before their Lordships afforded the best means of remedying it. He thought that the practical objections to the present Bill wore such that their Lordships ought certainly not to consent to it without careful consideration of its provisions by a Select Committee. What they had to consider was, whether the prohibitory clause of the Bill would not lead to an amount of public inconvenience, which would be even less endurable than the evils which it was desirable to remove.
6
His own impression was that it would be better not to press the second reading; but if the noble Duke (the Duke of Northumberland) thought otherwise the Government would not divide against him.
THE LORD CHANCELLORwished to direct their Lordships' attention to a difficulty which his experience in the Court of Chancery had made him aware of—that nothing could be more inconvenient than to pass a measure which simply forbad people to do certain things, without ascertaining, or enabling them to ascertain, in what manner it would be possible for them to avoid doing those things. Nothing was more familiar in the Court than an application to restrain nuisances on a large scale. Some towns had sent all their drainage into a river—Birmingham for instance—and when an application was made to the Court of Chancery the Court had not hesitated to grant an injunction; but when the injunction was granted the embarrassing question arose how was it to be obeyed? It might occur that in obeying it as best they could the authorities of the town would do something, which would create another nuisance quite as great as that for the putting down of which the aid of the Court of Chancery had been invoked, and then another suit, by other parties, became necessary. In all cases which arose in connection with the pollution of rivers it had to be considered whether any means could be found for abating the mischief, for it would not do to stop manufactories and works offhand; especially in cases where legal rights to discharge refuse matters into streams existed, so far as private persons were concerned, and where, according to the existing law, there was no public nuisance. If prohibitory enactments, such as those contained in this Bill, were adopted by Parliament, a sufficiently long time must be allowed for those whom the prohibitions would affect to devise means by which obedience to the law would be practicable.
After a few words in reply from the Duke of NORTHUMBERLAND,
Motion agreed to; Bill read 2a accordingly, and referred to a Select Committee.
And, on Tuesday, May 20, the Lords following were named of the Committee:—

Ld. Privy Seal.

E. Morley.

D. Northumberland.

V. Portman.

M. Salisbury.

L. Vivian.

E. Doncaster.

L. Aveland.

E. Lauderdale.

L. Penrhyn.

CRIME IN IRELAND.

  MOTION FOR RETURNS.
  LORD ORANMORE AND BROWNEsaid, he had given Notice of a Motion for certain Returns, because he thought they were necessary in order to supplement others that had already been ordered. He must, however, remark that there was such a delay in the production of Papers after they were ordered that when they were laid before Parliament it was too late in the Session to take any action on them. In this way the House had been excluded from considering the Alabama Treaty till too late and had been prevented altogether from considering the case of the Galway Election Petition. With regard to the Police Returns, he thought the Government would not object to them, for they had been referred to in the other House as already existing; and the failure of justice had of late been greatly exaggerated by the operation of the unfortunate Jury Act, which had introduced a class of jurors whose impression was that they were exposing themselves to opprobrium if they were to convict men tried for capital offences. The remarks of the Judges at the last Spring Assizes would not be very voluminous, but they were extremely important, and would carry far more weight than the evidence adduced before the Select Committee of the other House.
  Moved that there be laid before this House,
  Police Returns of all Crime in Ireland, showing where perpetrators have not been discovered and where they have been prosecuted and convicted, since the 1st of January 1872:
  Any remarks of Judges at the last Spring Assizes and of Assistant Barristers at Quarter Sessions since the new Jury Bill came into force as to the competency of Jurors.—(The Lord Oranmore and Browne.)
  THE MARQUESS OF LANSDOWNEsaid, that though Her Majesty's Government had no desire to refuse information on so important a subject, still ho would submit that their Lordships would not do well to agree to a Motion couched in language of so ambiguous a character. The noble Lord moved for "Returns of all Crime committed in
  8
  Ireland." Did this expression include summary convictions, or also indictable offences? Or did it mean only the more serious offences specially reported by the constabulary. The noble Lord further asked for Police Returns "showing where perpetrators have not been discovered." Here again the language was ill chosen. What he conceived the noble Lord did intend to move for was the number of felonies and misdemeanours committed since January, 1872, distinguishing between the cases of persons summarily convicted or committed for trial, and those in which no conviction load taken place. He believed that the whole of the information which the noble Lord sought to obtain would be contained in the Judicial Statistics annually presented to Parliament. It was possible that those Returns would not be presented to Parliament until late in the Session; and if so, there would be no objection to supplying this particular information, so far as it at present existed. With regard to "Any remarks of Judges at the last Spring Assizes and of Assistant Barristers at Quarter Sessions since the new Jury Bill came into force as to the competency of Jurors," what machinery had Her Majesty's Government by which they could obtain any trustworthy records of such remarks? It was not likely that the Judges and Assistant Barristers would keep a record; nor was it reasonable that Her Majesty's Government should depend on newspaper reports. He hoped that his Lordship would if he still considered it necessary to obtain information on the points referred to, re-consider the terms of his Motion.
  LORD ORANMORE AND BROWNEsaid, he would withdraw his Motion; but stated that the Returns referred to by the noble Marquess were now on the Table of the House till the end of the Session.
  Motion (by leave of the House) withdrawn.

  RAILWAY AND CANAL TRAFFIC BILL.
  (The Lord President.)

  (Nos. 84, 112.) REPORT OF AMENDMENTS.
  Amendments reported (according to Order).
  THE MARQUESS OF RIPONproposed to add to Clause 20 (Power to Commis-

  9
  sioners to fix terminal charges), the words—
  "Any decision of the Commissioners under this section shall be binding on all Courts and in all legal proceedings whatsoever,"
  and to transpose the clause to follow Clause 14. The effect of the alteration would be to make the decision of the Commissioners in any dispute between a Railway Company and the public as to rates and charges binding on all Courts and in all legal proceedings whatsoever. The Amendment would remove the concurrent jurisdiction which it had been thought the clause as framed established.
  THE DUKE OF RICHMONDclaimed an apology from the Government for dividing against him in Committee on this point; and still thought, even when these words were inserted, there would yet be concurrent jurisdiction. The parties would not be compelled to go before the Commissioners, but would still be at liberty to apply to a Court of Law.
  THE MARQUESS OF RIPONsaid, that in the debate in Committee he promised to consider the point, and he had redeemed his promise.
  LORD REDESDALEsuggested that some words might be added which would make it appear that the Commissioners alone should have power to decide these questions. He thought it was extremely desirable that the power should be confined to them, and he believed it was so intended by the Bill.
  Amendment agreed to; Amendments made.
  Clause 26 (Orders of Commissioners).
  On Motion of Marquess of RIPON, Amendments made for the purpose of making the decision of the Court to which a ease may be transmitted final and conclusive on all parties.
  THE MARQUESS OF HUNTLYproposed a clause enabling the Commissioners, on the application of three justices, to institute an inquiry in cases where it was alleged that owing to the absence of a bridge over or passage under any railway or canal, the public traffic was incommoded; and after inquiry by Provisional Order to direct the remedy, and to apportion the expenses to the parties by whom, in their judgment, the expense ought to be borne. It was not fair, he maintained, that a Railway Company should
  10
  be put to the whole expense involved in purchasing for the purpose adjacent property the value of which had been increased by the railway, and that the burden ought to be shared by the public and by private owners.
  THE MARQUESS OF RIPONsaid, this matter did not come properly within the scope of the Bill, because the functions of the Commissioners were confined to questions relating to traffic upon railways, and they had nothing to do with traffic on roads. It was not quite accurate to say the Commissioners would have to deal with all railway matters, because questions of safety would still be dealt with by the Board of Trade.
  Clause withdrawn.
  Bill to be read 3a on Monday next; and to be printed, as amended. (No. 120.)

QUESTION.
THE MARQUESS OF SALISBURYwished to ask his noble Friend the President of the Council, Whether any proposals for the alteration of College Statutes without the sanction of the Visitors have been submitted to the Privy Council; and, if so, what course the Council has taken in respect to them? Perhaps the noble Marquess would be able to tell them how many such applications had been made, from what Colleges, and what course it was proposed to take with respect to them?
THE MARQUESS OF RIPONwas understood to say, that his noble Friend's Question did not mention dates, but he presumed it referred to applications made recently. The matter stood in this position. In 1871 the question was raised whether alterations in College Statutes could be proposed without the consent of the Visitor. The question was referred to the Committee of Privy Council, where it was argued, and the conclusion come to was that Her Majesty should be advised that the consent of the Visitor was not necessary. The mere fact that the Visitor hail not consented would not of itself be a bar to an ordinance making alterations in the College Statutes. Since then the Commission presided over by the noble Duke (the Duke of Cleveland) had been appointed; and he had received a letter

11
from his noble Friend the noble Marquess, pointing out that, pending the inquiries of the Commission, it would be very desirable that no alterations in Statutes affecting the Fellowships and revenues of any particular College should be made. The Government fully recognized the reasonableness of that view, and it was their intention to act upon it with regard to the Colleges of Oxford and Cambridge, pending the Report of the Commission. He might add, as he did in his written reply to the noble Marquess, that there might be special cases with which the Commission had nothing to do, in Which it might be desirable that changes should be made. He proposed, for the information of the House, to lay the two letters on the Table. That was the exact position of the matter at present. The applications sent in for more than a year were only three—one from Brasenose College, Oxford, where the Visitor, the Bishop of Lincoln, had intimated that he entertained serious objections to the alterations proposed to be made in the Statutes. The other two Colleges were Oriel College, Oxford, and Trinity College, Cambridge.
THE ARCHBISHOP OF CANTERBURYsaid, this was a matter of very great interest in the Universities, and there were two points on which a little further information was most desirable. The first was, whether the noble Marquess's attention had been drawn to the distinction between the original Statutes of Colleges, and the ordinances made of late years under the authority of the Parliamentary Commission. He thought it was contended by his right rev. Brother, the Bishop of Lincoln, to whom allusion had been made by the noble Marquess, that the power to alter the original Statutes stood on different grounds from the power to alter Statutes made of recent years under the authority of the Parliamentary Commission; and it was contended that to alter the former without reference to the Visitor would be going beyond the powers which had been conferred. The other point to which he would call attention was this—it might have been decided, and no doubt after a patient hearing, that the Visitor's consent was not required for an alteration of the Statutes; but what he should like to know was, whether it had been decided that the Visitor should be passed over and altogether ignored?
12
For example, if such a case as this should occur—suppose there had been a division in a College as to some matter in the Statutes, and the Head of the College, being in a minority, applied to the Visitor to direct his attention to the point; the next day, perhaps, the Visitor went to the Privy Council to bring the matter before them—would it be quite in accordance with the rules that he should find the matter had been decided without the slightest communication with him, and that the alterations proposed had been made in the College over which he presided? He hoped he might receive some information on these points from the noble Marquess, or from his noble and learned Friend on the Woolsack, who, he believed, was cognizant of all that had occurred on this subject.
THE LORD CHANCELLORsaid, that with regard to the points mentioned by the most rev. Prelate his impression was that the decision of the Privy Council as to the power of the Crown in Council to give assent to alterations in College Statutes where the majority of the Governing Body of the College were in favour of them had reference only to the alteration of ordinances made by the Commissioners under the particular clause which dealt specially with that case. He did not apprehend that the question as to any alteration of the ancient Statutes had been determined by the Privy Council; and the most rev. Prelate must see that it would not become him to express an opinion now on a matter which he might possibly, at some future time have judicially to consider. With reference to the other point, after what had fallen from the most rev. Prelate, no doubt the Council would take into consideration how far it might be expedient, in cases of this kind that notice should be communicated to the Visitor, so that the Council might have the benefit of any representation, which he might think it his duty to make to them before deciding upon the advice to be offered to Her Majesty.
THE MARQUESS OF RIPONsaid, it certainly was not the practice of the Privy Council to give notice in such cases, but he was quite sure it was far from the intention to ignore the Visitors.
THE MARQUESS OF SALISBURYsaid, he was very glad to hear what had fallen from the noble Marquess, but the impression had gone abroad that the Privy

13
Council had come to a decision that as the consent of the Visitors was no longer legally necessary it should therefore be entirely dispensed with. That would clearly be a most improper and unjust decision, because in that case the consent of the Privy Council would be given to the action of a majority of the Fellows without any legal authority on their part to make a change of themselves without the consent of the Visitor. He looked on the office of Visitor as a connecting link between successive generations of Fellows; and though on the one hand it might be improper to allow the opinion of a Visitor to overbear the opinion of the majority of the Fellows, where that opinion might be deliberately formed, on the other hand it would be disregarding the wishes of the Founders and transgressing the ancient constitution of the Colleges to allow the mere passing fancy of a particular majority of the Fellows to over-ride those judgments, which the Visitor, in obedience to his official duty, was compelled to give. He was therefore glad to hear that the opinion of the Visitor should have its full weight.
THE LORD CHANCELLORapprehended that the duty of the Crown under the Act of Parliament would be to consider every application made to it from the majority of the Fellows on its merits, and it would not be right for the Crown to give the effect of a veto to the Visitor's disapproval. On the other hand it might be very proper that the Visitor should have the power to state the objections which he might entertain. But the Crown could act on the dissent of the visitor only if the reasons for that dissent appeared to the advisers of the Crown to be such as ought to influence its decision.
House adjourned at Seven o'clock, to Monday next, Eleven o'clock.