Lords Sitting of 16 June 1874

MINUTES.
PUBLIC BILLS—First Reading—Churches and Chapels Exemption (Scotland) * (114); Alkali Act (1863) Amendment * (115); Apothecaries Act Amendment * (116); County Courts * (117).
Second Reading—Married Women's Property Act (1870) Amendment * (173); Local Government Provisional Orders (No. 2) * (92).
Committee—Supreme Court of Judicature Act (1873) Amendment (56–118); Statute Law Revision * (77); Tramways Provisional Orders Confirmation * ().
Committee—Report—Infants Contracts (80).
Report—Pier and Harbour Orders Confirmation * (37).
Third Reading—Church Patronage (Scotland) * (113); Magistrates (Ireland) and Commissioners of Dublin Police Salaries * (86).

THE CAPE COLONY—DISTURBANCE IN NATAL.—QUESTION.
THE EARL OF KIMBERLEYsaid, that as the recent disturbances in Natal and the trial which had resulted in the condemnation of one Kaffir Chief who had instigated the rebellion against the Government, had given rise to considerable interest in this country; and as the

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Colonial Office were now possibly in possession of the details, he wished to ask his noble Friend the Secretary for the Colonies, Whether there were any Papers referring to those matters which he could lay on the Table of the House?
THE EARL OF CARNARVONsaid, the Question put to him by his noble Friend had been asked more than once in the other House of Parliament. He was not surprised that some interest should be felt on the subject, but up to this time he had felt disinclined to produce any Papers relating to it, because the Correspondence showed that there had been very warm feelings on both sides, and he was apprehensive that its production—especially as it was as yet incomplete—might tend to produce prejudiced views. He had, however, been in communication with his noble Friend and other persons with reference to this Correspondence; and, after a careful consideration of the matter, he now saw his way to laying on the Table a first instalment of the Papers without any public inconvenience. This instalment would contain the history of the disturbance, or the insurrection, as his noble Friend called it—for himself he hardly knew what to call it—and also an account of how it was suppressed, of the trial of the Kaffir Chief, and of the course adopted towards the prisoners. He had mentioned that there had been a good deal of warm feeling on both sides. On the one hand, there were allegations of undue severity, and, on the other, those allegations were denied. It was found impossible to allow the prisoner the benefit of counsel. He regretted that should have occurred; but there were technical difficulties, and the advocate felt himself unable to conform to the regulations of the Court and so to be justified in undertaking the defence of the prisoner. He thought this was unfortunate; but he had since heard—not officially, but through the usual sources of public information—that in the ease which had been reserved Bishop Colenso, in default of a paid advocate accepting the defence, intended to argue the question for the prisoner. There had recently been received a letter addressed to the Colonial Office by Captain Lucas, who was in command of a part of the forces—indeed, he believed he had the command of the whole of them at one time—in which that gallant Officer gave
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a pointed denial to the statement that there had been unnecessary severity. After he should have laid on the Table the instalment of the Papers, there would be a certain gap in the history between the issue of the trial and the next proceedings. He had made inquiries which had not yet been answered. In the meantime he had studiously refrained from expressing any opinion or pronouncing any judgment on the affair; and he hoped Parliament would also refrain from expressing an opinion on it while it was still sub judice.

INFANTS CONTRACTS BILL—(No. 80.)
(Viscount Midleton.)
INFANTS CONTRACTS BILL—(No. 80.)

  COMMITTEE.
  House in Committee (According to Order.)
  VISCOUNT MIDLETONsaid, that acting on a suggestion of the noble and learned Lord on the Woolsack, he had taken means to obtain the opinion of the Common Law Judges with reference to this Bill; and through Mr. Justice Keating he had received an answer that they entirely approved its principle. The second clause was thought to be stringent; but it was intended to be so. It frequently happened that advances were made to minors at usurious interest; that no pressure was put on them till they came of age, and that then they were tempted by some small additional advance to make themselves responsible for the principal and interest incurred by them when they were under age. It had been found that the provisions of Lord Tenterden's Act were insufficient to meet those cases; but the second clause of this Bill would prevent a man from being sued at law upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification of any such contract, whether there should or should not have been any new consideration for such ratification. This provision would prevent any young man being sued for debts for which through the fraudulent machinations of money-lenders or others, he had inconsiderately made himself liable. The third clause left the question of what were "necessaries" for an infant to the decision of the Court or Judge, instead of as at present to a jury of tradesmen.
  Bill reported, without Amendment, and to be read 3a on Thursday next,

SUPREME COURT OF JUDICATURE ACT (1873) AMENDMENT BILL—(No. 56.)
(The Lord Chancellor.)
Committee (on Re-commitment).
House again in Committee (according to Order).
Clause 10 (Amendment of 36 and 37 Vict. c. 66, sec. 53 as to Divisional Courts of Imperial Court of Appeal).
LORD PENZANCEsaid, that by this clause the First Divisional Court of the Imperial Court of Appeal was to consist of three ex officio members—the Lord Chancellor, the Lord Chief Justice of England, and the Master of the Rolls in England; of any number not exceeding three of the additional Judges of the Imperial Court of Appeal, and three of the ordinary Judges of that Court, or of any five or more of them. He objected to this, that all these Judges, with the exception of the three ex officio members, were to be nominated to sit for a term of three years. Their nomination was only to have effect for that period. This was a new principle in our judicial system. These temporary Judges might reverse the judgments of the other Imperial Courts of which they were members. Again the Court which reversed decisions should be something superior to the Court whose decisions it reversed; but, as the Bill stood, the members of the various Divisions of the Court of Appeal would be all placed on the same footing; for the whole of the 17 members would be shifted about from one Division to another, and those in the First might be reversing the decision of those in the Second or Third Division. This system was not calculated to secure public confidence in the decisions of the highest Court of Appeal. He must remind their Lordships that the Irish and Scotch, as well as the English, Ecclesiastical appeals, and Colonial appeals, were all to go to this First Division of the Imperial Court; and many of these raised questions which required special knowledge and varied experience; and his second objection to the constitution of the First Division was, that no sooner might one of these shifting Judges be supposed to have acquired some experience in the business of the Court than he would cease to be a member, and would be returned to another Division, where his judgments were open to appeal
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to a Court to which the Judges had only just been transferred from the inferior Divisions. The result must be that the judgments of the Court could never have that certainty which was at the very foundation of legal decision, and delay and expense would be multiplied. He would propose an Amendment which would to some extent remedy the evil he had pointed out.
An Amendment moved, page 6, line 34, leave out the whole line to the end of the sub-section and insert—
("and the judges so nominated shall continue to sit in the said first Divisional Court so long as they remain judges of the said Imperial Court of Appeal."—(The Lord Penzance.)
THE LORD CHANCELLORsaid, the first objection of his noble and learned Friend (Lord Penzance) was the most plausible one; but it was entirely fallacious. His noble and learned Friend laboured under a misapprehension as to these triennial appointments. The Judges of the First Division were not to be appointed for three years. Like all other Judges, they were to be appointed for life, or until an Address from both Houses of Parliament removed them from office. His noble and learned Friend confused two very different things. It was one thing to appoint a Judge for three years; it was quite another thing that Judges appointed in the usual way should be enabled to manage among themselves the duty of hearing by rotation the appeals in the First Division of the Imperial Court of Appeal. This principle was not new. It was now acted upon in the case of Election Petitions, for the trial of which certain of the Judges were appointed Election Judges each year, the nomination for that particular duty being only for one year, and at the end of that year other Judges were nominated. And so in the Imperial Court of Appeal certain of the Judges of the other Divisions would be nominated to sit in the First Division, and at the end of three years would return to their Divisions, and other Judges would succeed them. The two next objections of his noble and learned Friend were antagonistic to each other. The first was that the Judges of the First Division might over-rule the decision of those of the other Divisions, and that the Judges of the latter would be in a subordinate position. His noble and

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learned Friend went on to say that he objected to the system of nomination proposed in the Bill, because its effect would be to preserve an equilibrium as between all the Judges. It was impossible his noble and learned Friend could stand by both these objections. What proposal would his noble and learned Friend make? He must wish for one or other of these two arrangements. One of these plans would be, that Parliament in creating this Appellate Court should say nothing as to how the three Judges were to be chosen; in which case they would arrange it among themselves, and the effect would be that one day one set of Judges would sit in the First Division and the next day another set would take their places. That would be fatal to the organization of the Court. Then there was the other proposition—the one which his noble and learned Friend had moved as an Amendment—namely, that Judges once appointed to the First Division should continue to sit on it during the whole tenure of office as Judges of Appeal. Such an arrangement as that would at once draw a broad line between the Judges of the First Division and the Judges of the other Divisions, and the Judges of the Second and Third Divisions would be placed in a subordinate position. He thought the proposal in the Bill steered clear of both difficulties.
LORD SELBORNEsaid, he would prefer that the period of appointment to the First Division should be two years instead of three, and that the appointment should come in turn to all the Judges, rather than be by nomination.
LORD PENZANCEsaid, he would not persevere with his Amendment, as his noble and learned Friend on the Woolsack was not willing to accept it. His noble and learned Friend who had just spoken was perfectly consistent in wishing the Judges of the Appeal Court to be all equal in position, because he was in favour of one appeal only, and deprecated any further hearing after the Appeal Court had once decided. But his noble and learned Friend on the Woolsack was inconsistent, for he proposed a second appeal from one Division of the Court to another Division of the same Court, and this could not be effected without placing the First Division of the Court, which was to entertain this second appeal, in a position of superiority
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over the other Divisions whose decisions it was to reverse. It was not in the nature of things that this superiority should not exist, and it was useless to struggle to maintain an equality in the different Divisions of the Court under such circumstances. It was for this reason that he objected to the plan of shifting the Judges backwards and forwards between the Superior and Inferior Divisions of this new Court.
Amendment (by leave of the Committee) withdrawn.
LORD PENZANCEsaid, he thought the provisions for a re-hearing did not go far enough. As the clause stood, the 9th Sub-section provided that
"Any appeal heard before any Divisional Court other than the first, in the decision of which the Judges of the Court are not unanimous, shall, if any party to such appeal so desire, he re-heard before the first Divisional Court."
This, he thought, was narrowing too much the right of a second hearing. It might be that the Appeal Court, even if unanimous, would be only three Judges over-ruling the judgment of three Judges in the Court below. Besides which, it was by no means the case that erroneous judgments were not arrived at unanimously. On the contrary, it often happened that the entire Court were most strongly and rapidly impressed by a particular view, and those were the really dangerous cases. He had given Notice of an Amendment to strike out the words "in the decision of which the Judges of the Court are not unanimous." But as he saw no chance of carrying that Amendment he now begged to move after the word "unanimous" the insertion of these words, "or where such decision in any question of law reverses a material part of the judgment or order appealed from."
THE LORD CHANCELLORsaid, he did not think that there should be in all cases a right of re-hearing. Where both the Courts—those of Primary Jurisdiction and the First Divisional Court of Appeal—were of the same opinion, then the litigation should stop; but when there was a difference of opinion between those Courts, or where the judgment reversed any part of the judgment appealed from on any question of law he thought the right to a re-hearing should be given. He had received various representations from the

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Incorporated Law Society and from members of the Bar on the subject of this second hearing, and under all the circumstances he did not object to the Amendment now proposed by his noble and learned Friend with a slight variation.
LORD SELBORNEsaid, he was not for multiplying the opportunities of appealing unnecessarily. He thought the proposal of the Amendment which left the right of re-hearing, in all cases, to the decision of one of the parties objectionable, and thought it should not be allowed, except in the special cases proposed by the noble and learned Lord on the Woolsack without the permission of the Court itself.
LORD COLERIDGEalso doubted the advisability of the Amendment. Finality and equality were the objects to be achieved by the new Court of Appeal. To give the right of appeal in all cases would lessen the authority of one Division and increase that of the other, and the chances of finality would be diminished as facilities for going from one Division of the Court to another were granted to suitors.
Amendment made; Clause, as amended, agreed to.
Other Amendments made.
The Report of the Amendments to be received on Monday next; and Bill to be printed, as amended. (No. 118.)

POOR LAW—ST. PANCRAS UNION— MORTALITY OF YOUNG CHILDREN.

  QUESTION.
  EARL DE LA WARRasked if it is correct that the Inspector of the Local Government Board has recently reported that during the past year out of 407 children under two years of ago in the St. Pancras Union-house 89 have died? He was not in possession of sufficient information to enter upon the subject of the general management of St. Pancras Union, nor had he any information which would enable him to state particulars relating to the terrible mortality; but if the facts to which he desired to call attention were correct, it was quite certain there must be some unusual circumstances connected with this institution which demanded inquiry, the mortality being an annual death-rate of 215 in 1,000, which, unless it arose from some contagious or infectious disease, was almost
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  unprecedented. The noble Lord who represented the Local Government Board in that House (Lord Walsingham) would correct him if he was wrong; but he believed that in the St. Pancras Workhouse all the nurses, with one exception, were pauper inmates; and as regarded the dietary of the children it chiefly consisted, as he was informed, of preserved milk largely diluted with water, and of pork. The case to which he had referred was, he hoped, an exceptional one; but in calling the attention of Her Majesty's Government to it he desired to remind their Lordships that there were many evils arising from the crowding together of children in Union schools and Workhouses. Some years ago—he believed under the advice of the Poor Law Board—large District Union schools were formed which, it was supposed, would be advantageous both in a sanitary and moral point of view; but there was reason to fear that those expectations had not been realized, and it had recently been brought under his notice that a Committee of the Croydon Board of Guardians had reported that these establishments did not answer the purposes for which they were intended. In a sanitary point of view the subject was one which he thought deserved the attention of Her Majesty's Government. He begged to ask the Question of which he had given Notice.
  LORD WALSINGHAMsaid, the Local Government Board had not received any official reports on the matter referred to—the information they had received was contained in some informal Minutes written by their Inspectors—but it was true that out of 407 children admitted last year into St. Pancras Workhouse 89 had died, showing a death-rate of 215 per 1,000. The Local Government Board, having had its attention called to the subject, addressed a letter to the Guardians of St. Pancras Union, directing their serious attention to the high rate of mortality which had prevailed, and to some matters connected with the diet of the children, as well as some slight dereliction of duty on the part of one of the nurses, and requesting the Board of Guardians to acquaint them with the result of their inquiries. In answer to that letter a communication was received from the Board of Guardians in which it was stated that the matters referred to had been made the subject of

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  careful inquiry, and some reasons were mentioned which had contributed to the high rate of mortality. The mortality occurred chiefly in the sick children's ward, and many of the children were sent there in a hopeless condition. Owing to the illness of mothers, and in numerous cases of desertion, many of the children were brought up by hand, and in such cases the death-rate was always high. Seven children had died from wilful neglect and exposure to cold before they were admitted, and two from accidents. Measles had also prevailed during four weeks of last year in a severe form, and caused, directly or indirectly, 10 deaths in the sick children's ward. As to diet, pork had been mentioned; and the medical officer considered pork was not fit food for children; he entirely disapproved of it, and it was not in the general dietary of the children. It turned out, however, to have been given in one instance without his knowledge, but only to the extent of 1½oz., and to children of two years of age and upwards—so that it could not have contributed to increase the rate of infant mortality. Condensed milk had been used during the latter part of the year; but it was of the best quality, of the same specific gravity with cows' milk, and was liked better. It had, however, been given up, and cows' milk substituted. The general condition of the nurses had occupied the serious attention of the Guardians, and there were certain alterations proposed which were now before the Local Government Board for approval. The general death-rate of children up to two years was found to be 150 in 1,000, and certainly the case which had been brought under their Lordships' notice was one of excessive mortality; but he had no doubt that now that the Board of Guardians had had their attention directed to it, further precaution would be adopted, and the mischief diminished. He had no objection to lay upon the Table the Correspondence relating to the case to which he had referred if his noble Friend would move for it.
  Moved, "That there be laid before this House Report of the Inspector of the Local Government Board on the subject of the high rate of mortality among infants in the workhouse of the Parish of St. Pancras during the past year."—(The Earl De La Warr)
  Motion agreed to.

  COUNTY COURTS BILL [H.L.]
  A Bill to amend the Acts relating to the County Courts—Was presented by The LORD CHANCELLOR; road 1a. (No. 117.)
  House adjourned at half-past Six o'clock, to Thursday next, half-past Ten o'clock.