Lords Sitting of 29 February 1876

MINUTES.
PUBLIC BILLS—First Reading—Drainage and Improvement of Land (Irelan) Provisional Orders* (21).
Second Reading—Crossed Cheques (12).

CHURCHYARDS—THE BURIAL LAWS.
THE ARCHBISHOP OF CANTERBURY: My Lords, I have been intrusted with a number of Petitions from various parishes in my diocese praying your Lordships' attention to the subject of an alteration in the Laws of Burial. I desire, my Lords, in presenting these Petitions, to guard myself against being supposed to agree in every expression contained in Petitions which, as they do not refer to any Bill before your Lordships' House, deal rather with general propositions on the subject of the Laws of Burial. It may not be generally known to your Lordships that the two Houses
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of Convocation of the Province of Canterbury are at this moment, under Her Majesty's licence, engaged in a revision of the rubrics which have reference to the Burial of the Dead. In the discussion of those rubrics many questions will naturally arise with respect to the general Law of Burial in this country. It appears to me very desirable that those who are intrusted with Her Majesty's licence to discuss these questions should approach them quite unpledged, with a full consciousness of all the difficulties which surround the question, and having no desire to increase those angry feelings which unfortunately have been called forth by discussions which have already been raised on this Question. My Lords, I beg to lay the Petitions on the Table. I am sure they will receive every consideration from your Lordships, though those who present them are not pledged to any propositions which the Petitions themselves may contain.
Then Petitions against authorising any other religious service in churchyards other than those of the Church read, and ordered to be on the Table.

CROSSED CHEQUES BILL.—(No. 12.)
(The Lord Chancellor.)
CROSSED CHEQUES BILL.—(No. 12.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE LORD CHANCELLOR, in moving that the Bill be now read the second time, said: My Lords, when I brought this Bill before your Lordships' House, I postponed any explanation of it in order that it might be in your Lordships' hands in the first instance. I am now about to give a short explanation of the objects of the Bill, and of the reasons which render a measure on the subject necessary. Your Lordships are aware that crossed cheques have been for a very long time in use in this country; but it was not until 1856 that any notice was taken of them by the Legislature. Up to that time the crossing of cheques and the effect of it remained a matter of convention, or courtesy, between the banks; but in 1856 an attempt was made by the Legislature to give a statutory security to cheques which were crossed. A Bill was brought into the other House by a private Member, which became law;

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  and I am sorry to say that it is not a very happy specimen of legislation. It enacted nothing but this only—that any cheque crossed either generally "and Co.," or specially to some banker, should be paid only, in the one case through a banker, and in the other through the banker to whom it was crossed. My Lords, I think it is obvious that the framers of that measure overlooked one peculiar characteristic of a cheque—that no one can bring an action against the banker on a cheque but the person who draws it. This is because a cheque is simply a direction by the drawer to pay money of his which is in the banker's hands. Well, what happened after the passing of the Act of 1856 was this—some cheques from which the crossing had been obliterated were presented for payment. Bankers paid thorn, saying—"These are not crossed cheques, and there is nothing in the Act which tells us not to pay them." The consequence was that in 1858 another act was passed to remedy this defect. It provided that the crossing of a cheque should be taken to be a material part of the cheque itself, and that no banker should pay it if the crossing was removed, obliterated, or erased. That has been, then, the state of the law since 1858: But a case has occurred lately which has given rise to a great deal of apprehension and excitement in the commercial world. There was a cheque drawn on a particular bank—the Union Bank of London. The person who first received that cheque crossed it with the name of his own bankers, the London and County Bank. A servant took it to pay it into his master's bank, but lost it on the way. Some person found it, and subsequently it was passed for full value to a person who had no notice that the cheque had been found. The person to whom it was passed in the way I have just mentioned took it and paid it into his own banker, the London and Westminster Bank. This bank passed it through the Clearing House; and the Union Bank, not observing the name of the London and County Bank crossed on the cheque, paid it. That, of course, was an oversight, and such a peculiar case is not likely to occur again. But the person to whom the cheque was originally given, and who had lost it, Mr. Smith, brought an action against the Union Bank of London for the amount. The Court in which the action
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  was brought—the Queen's Bench Division of the High Court of Justice—and afterwards the Court of Appeal, held that the action could not be maintained, and for these two reasons:—First, the Courts held that the cheque was a negotiable instrument to pass from buyer to buyer, and that the person who had taken it for full value without notice of infirmity of title had acquired a good title to it, and that Mr. Smith had lost his property in the cheque; secondly, that no person could bring an action on a cheque but the drawer, and that the drawer in this case had lost his property in the cheque, and consequently had lost his right to bring an action on it. This, my Lords, exhibited a new phase in the crossed cheque system, and, as I have said, it has given rise to no small amount of anxiety, and it was desired that a remedy should be provided. In the Bill now before your Lordships I have taken the opportunity of repealing the two Acts to which I have referred—the Acts of 1856 and 1858—but I re-enact the important and material provisions of both in a better form, so that the whole of the law of crossed cheques may be found in one enactment. Your Lord-ships will find in the Bill before you that the first eight sections do not contain any new law, but a simple re-enactment of the existing law. The 9th clause, on which I shall make some further observation, provides that—
  "A person taking a cheque crossed specially shall not have, and shall not be capable of giving, a better title to the cheque than the person from whom he took it had. But a banker to whom a cheque is crossed specially, and who has in good faith and without negligence received payment of such cheque for a customer, shall not, in case the title to the cheque prove defective, incur any liability to the true owner of the cheque by reason only of his having received such payment."
  Now, as to the particular form a provision of this kind should assume, there is no doubt that the question has been raised that, as to whether you should impart this infirmity of title to cheques, crossed generally, or confine it to cheques crossed specially. Many persons advocate that you should legislate in this way for all crossed cheques. My Lords, it appears to me that would be a very dangerous course, and that it would be found so irksome in practice that there would be soon a demand for its repeal. Your Lordships

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  will readily understand this if you consider for a moment one or two matters. A very great many persons in business will take in the course of a forenoon 20 or 30 cheques crossed simply "and Co." They receive and collect money due to them in that way, and send all those cheques to their bankers, who in the ordinary course pass them through the Clearing House. If, in the case of such cheques, an infirmity in the title of any one person through whoso hands one of those cheques had passed were to prevent the ultimate holder from recovering the amount, the consequences would be very serious. A person who takes, perhaps, 20 or 30 of those cheques in a forenoon might find, not in weeks even, but in months after he had received a certain number of them, that one of that number had been stolen, and had passed through the hands of a thief, or some other person who had no title; but to require that the payment ultimately made for that cheque to a holder for value must be handed back would be so monstrous that such a practice could not be tolerated. I will give a further illustration of how unwise such a law would be. I dare say your Lordships have heard of a bank established in very recent times, and called the Cheque Bank. I do not know much of its details, but I have heard that it has proved a great convenience. Well, every cheque of that bank bears the printed crossing "and Co." The object of the cheques of this bank is that they should pass over a counter and from hand to hand like money, until they ultimately come back to the bank itself. Of course you would defeat that object if you were to enact that an infirmity in the title of any of the hands through which one of those cheques passed should prevent the ultimate holder from receiving payment of the money for which it was drawn. Take the case of a bank-note; what would become of the negotiability of a bank-note if it was enacted that an infirmity in the title of any holder was to prevent the ultimate holder from receiving payment? When any of your Lordships cross a cheque, generally, all you mean is that the cheque ought to be paid through some banker, in order that there may be some mode of tracing the hand which ultimately receives the money; but you do not wish to attach the property in the cheque to any particular
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  person. It is, however, quite different if you cross the cheque with the name of a particular bank. The moment you do that you intimate by the crossing that the cheque must be regarded as the property of the person who has that particular bank, and not as an instrument which may pass from hand to hand. For these reasons I propose that Parliament should confine itself to enacting that no person taking a cheque crossed specially shall have or shall be able to give a better title to the cheque than the person from whom he took it had—that persons must take such cheques subject to any infirmity of title in previous holders. But I think it right that there should be a protection for the banker to whom a cheque is crossed specially. Accordingly, if, for instance, a cheque is crossed specially to the London and Westminster Bank and it receives payment of it for a customer, that bank shall not, in case the title to the cheque prove defective, incur any liability to the true owner by reason only of that act of the bank. Those are the two provisions of a Bill which, if adopted by Parliament, will be an addition to the existing law on the subject of crossed cheques.
  Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday the 9th of March next.

ARMY—KNIGHTSBRIDGE BARRACKS.

  QUESTION. OBSERVATIONS.
  LORD SANDHURSTinquired of the Under Secretary of State for War, On what grounds the decision of the late Government affecting the choice of a site for Barracks on account of the cavalry regiments now stationed at Knightsbridge has been reversed? The late Government had condemned these Barracks, and the Commission which in 1863 considered the question reported very strongly against them, not only on account of the bad condition of the buildings, but also on account of the site on which the Barracks were placed. He asked their Lordships to recollect the important bearing which the second ground of the adverse Report of the Commission had in respect of the decision

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  which Her Majesty's present Advisers had reversed. The Commission condemned the site quite as forcibly as the bad condition of the buildings. He imagined that there were various matters which had engaged the attention of the noble Viscount (Viscount Cardwell) when he was considering the question. Independently of the site being considered unhealthy, everybody must know that Knightsbridge Barracks were unfit for Cavalry, owing to tactical reasons or arrangements required for the convenience of regimental administration. They were exceedingly narrow, and very long. On the other hand, he was informed that there was a strategical argument in favour of the site—namely, the great value which many persons attached to having a Cavalry regiment available in the immediate vicinity of an open space like Hyde Park in the event of any outbreak among the people. That argument did not recommend itself to him, but must be taken for what it was worth. He thought everybody should deplore the idea of ever seeing the Household Cavalry engaged in aiding the civil power. That was a contingency which should be avoided if possible. For obvious reasons it was the last body of troops in the Army which should be applied to such a purpose. It was said that the householders in Knightsbridge had no claim to have their property improved by the removal of the Barracks. Their Lordships must remember that almost all the public improvements in the various parts of the Metropolis had been brought about by private improvements in their several localities, and he did not think that it should be a reproach to the owners of property in Knights-bridge that they wished to see improvements effected in that neighbourhood. He believed it had been determined by the present Government to make a still further extension of the present long and slender slip of ground by taking some ground the property of a noble Duke. This would scarcely mend matters if, for the want of sufficient area, the Barracks would have to be built on a principle which sanitary considerations had condemned—namely, that of having the rooms for the soldiers over the stables for the horses. The rooms of the men ought to be in a building separated from the stables. The late Government had condemned the Barracks, but with the
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  change of Ministers a change had come over the policy of the War Office, and it was now proposed to build the new Barracks on the old site. He should like to hear some Ministerial explanation of this action.
  EARL CADOGANsaid, that in his Question the noble and gallant Lord (Lord Sandhurst) assumed that the decision come to by the present Government was, in effect, a reversal of the decision of the late Government. He had searched through all the somewhat voluminous correspondence and other Papers on the subject which he could find during the last 10 or 11 years, and he had not been able to discover any record in the War Office of any decision on this subject having been come to by the late Government. Therefore, he could not agree with the noble and gallant Lord that the action of the Government in the present instance was a reversal of the decision of the late Government. He ought, however, in candour to state that, in all he wrote on the subject, the feeling of the noble Viscount the late Secretary for War (Viscount Cardwell) seemed to be that the Cavalry barracks were not destined to remain on the present site at Knights-bridge; and the noble Viscount left on record that it had been his intention to go into the question in the year 1874, had the Government of which he was a Member remained in office. Under the late Government, Mr. Lowe, when Chancellor of the Exchequer, proposed a scheme for the removal of the Bar-racks; but he understood that an important part of the plan of the right hon. Gentleman was to sell the ground on which the Barracks stood, and to apply the money received for it to the erection of new barracks on another site. He believed, also, that if the War Department had given up the Barracks the Woods and Forests would have stepped in and claimed the land. He thought, therefore, that all proposals based upon the sale of the site at present occupied by the Barracks must be abandoned. He thought it would be found, also, that no suitable site could be obtained elsewhere without considerable difficulty. The noble and gallant Lord asked the grounds on which the Secretary of State had arrived at his decision. He had arrived at it entirely on military grounds. It was not for him (Earl Cadogan) to

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  enter into the military advantages of the site; but it had been recognized by the Duke of Wellington and other military commanders. He was sure the noble and gallant Lord would not allow his great authority to be made use of for private interests, but based his opposition to the decision of the Secretary for "War on military grounds and the good of the soldier, in whom he took so deep an interest. He (Earl Cadogan) hardly liked to characterize the agitation which had been carried on in opposition to these Barracks, or the proceedings of the promoters of that agitation. One of the objections put forward was the unhealthy character of the Barracks. Now, last Session he had the honour to lay on the Table Reports which gave a very favourable account of the sanitary condition of the Barracks. Again, charges had been made against the conduct of the soldiers quartered in the Knightsbridge Barracks. He thought he might say that no more unfounded charges were ever made against any body of men. He was not afraid to say that it would be difficult to find an equal number of men filling any other position in this country whose character would stand examination better than that of the men of the Household Cavalry. Another ground of objection to the continuance of the Barracks at Knightsbridge was the number of public-houses in the neighbourhood. Last Session he was able to show that those public-houses were not frequented by the soldiers. Those who were anxious for the closing of some of them ought to apply to the licensing magistrates instead of agitating for the removal of these Barracks. Neither the Government nor the Legislature was responsible for the "bulling" and "bearing" of house property in the neighbourhood which had been caused by the proceedings of persons who might have been speculating on the removal of the Barracks. He was not aware of any general wish for the removal of the Barracks, nor did he see any prospect of the Government being able to obtain a site as little open to objection as that at Knightsbridge. He hoped, therefore, that their Lordships would approve the decision at which Her Majesty's Government had arrived after a full consideration of the subject.
  VISCOUNT CARDWELLsaid, he had no fault to find with the statement of the
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  noble Earl the Under Secretary for War that no decision had been arrived at by the late Government with respect to these Barracks; but lest he should convey a false impression if he left the noble Earl's statement where it stood, he thought he ought to amplify it by some further explanation. When, in 1868, the late Government succeeded to office, he found that the question of the Knights-bridge Barracks was not only being considered, but was giving rise to no little excitement. He thanked the noble Earl for having given him access to the official correspondence which was in the Office at the time to which he referred, and in that which passed in 1866, when General Peel was Secretary for War, he found these passages, after considering Report of Army Sanitary Committee—
  "Quartermaster General informed for His Royal Highness that it appears to the Secretary of State most desirable that no time should he lost in acquiring a new site. Under all the circumstances of the case, and the difficulties attendant thereon, it appears to the Secretary of State that the site at Millbank may he worthy of consideration, and he would be glad to he favoured with the further opinion of His Royal Highness
  … "had under consideration, and in the absence of any better site which can he obtained within a reasonable distance His Royal Highness recommends that the ground now occupied by Millbank Penitentiary should he made available."
  That was not a decision of the late Government, he admitted, and he did not wish to convey the impression that it was; but it showed what were the views of the War Office in 1866, and upon which it was acting at that time. He was not aware that there was any trace of his immediate predecessor having adopted the same view—he believed he did not adopt it—but when he (Viscount Cardwell) came into office it was his impression that the feeling of the community and the feeling of Parliament was in favour of the removal of the Barracks; and his right hon. Friend the Chancellor of the Exchequer at that time (Mr. Lowe) caused notices to be served in respect of property extending from Albert Gate to Knightsbridge Barracks. The idea was that the sum of money derived from the sale of the site would go materially towards the erection of new barracks at Millbank. The noble Earl opposite seemed to be under the impression that the site of Knightsbridge Barracks was

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  not capable of being made of pecuniary advantage to the country if the Barracks were removed elsewhere. That was not his impression, nor had it been the view of his right hon. Friend, who had expected that it would realize a large sum. The notices, however, came to nothing, and he (Viscount Cardwell) therefore never had the opportunity of deciding conclusively upon what might have been a great improvement. He had never ventured to throw any doubt on the military opinion expressed by the Duke of Wellington, nor had he ever joined in the least imputation on the admirable soldiers quartered at Knightsbridge. The objection against the site which, to his mind, seemed to have great force was that it was not large enough to admit of the erection of the new Barracks, if they were to be built in accordance with modern requirements. Millbank was a site which had been very much considered by high authorities, and in both military and sanitary points it had been much commended, and anybody who only looked at the map could see the position it occupied between the Bar-racks at Chelsea and the Wellington Barracks, connected with both by a broad way, flanked on one side by the Thames, and commanding a ready access both to the Houses of Parliament and to Buckingham Palace. He did not, however, wish to say a word by way of military opinion. He took part in this conversation rather as a witness than as assuming to himself the right to speak as an authority on points of strategical opinion.
  THE DUKE OF CAMBRIDGEsaid, he fully endorsed what had been said by the noble Earl and the noble Viscount, so far as his knowledge went; but he took issue with the noble and gallant Lord (Lord Sandhurst) who had brought this question under the notice of their Lordships. The noble and gallant Lord seemed to be under the impression that there were other sites which, on military grounds, were preferable to that at Knightsbridge; but the Duke of Wellington and other high authorities had expressed their opinion that no other site in this great Metropolis was so suitable for the purpose to which the site of the Barracks at Knightsbridge was applied. Considering the very limited number of the Household troops there could be no
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  more convenient place than the Parks for exercise, while the site gave immediate access to the Park, and thence to every part of the Metropolis. The noble and gallant Lord expressed his hope that the troops at Knightsbridge might never be called on to assist the civil power. He (the Duke of Cambridge) also hoped sincerely that there never would be occasion for it; but they could not ignore the possibility of its arising. The noble and gallant Lord must know that, whenever the civil arm had been found insufficient to do what was required of it in ordinary times, it had been on those extraordinary occasions supplemented by military aid—but this on all such occasions must be most tenderly applied. He appealed to noble Lords on both sides of the House whether that had not been the case in this country; and he appealed to his noble Friend (Earl Spencer), who had lately filled the office of Lord Lieutenant of Ireland, whether in that country he had not called on the Commander-in-Chief to support the civil power with military aid, which had been afforded with ready alacrity, but which he had felt bound to apply with that tenderness and delicacy which should always characterize any assistance rendered by the military to the civil power. But the noble and gallant Lord said that in a sanitary point of view the site was unsuitable for Cavalry Barracks. He concurred with the noble and gallant Lord in wishing they had more space for the purpose; but when the noble and gallant Lord spoke of the necessity, in a sanitary point of view, of the men being separated from the horses, his reply was that he believed it would be found that the most healthy Cavalry Barracks in the country were those in which the rooms of the men were over the stables. During the time the noble Viscount presided over the War Department Cavalry Bar-racks were built partly on the one plan and partly on the other; and all the officers of Cavalry regiments which had had experience of both plans, including the medical officers, were of opinion that the men who slept over the stables enjoyed better health than those who slept in buildings away from the stables. If men were separated from the stables they would walk to and from stable duty without coats or jackets, and so contract colds. No doubt there was a certain miasma from stables; but by good shafts

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  and good ventilation that could be got rid of. The conduct of the men had not been impeached in this debate, and therefore he need not say anything on that point. As to the injury to property in the neighbourhood, it must be remembered that it was not the Barracks which were going among those who had created the property there, but it was those persons who created property there who had come to the Barracks. It was speculative landlords who had taken property in Knightsbridge—and that was quite a different thing from bringing down Barracks upon the improving owners of property. But he did not see why, with a proper elevation, a Barracks at Knightsbridge might not be made a very agreeable-looking building. He quite admitted the document which had been quoted by the noble Viscount; but he had agreed with the matter stated in that document solely because he believed that at the time the question had reduced itself to that of the choice of another site. As to his ever having expressed any desire to remove the Bar-racks from the admirable position at Knightsbridge, he believed there was an abundance of documentary evidence to prove that he never had expressed such a desire.
  THE EARL OF LUCANsaid, that the Duke of Wellington used to say that the defence of London must be chiefly carried on from the Parks, which permitted the concentration of troops to any amount; and in this respect the Bar-racks at Knightsbridge possessed the same advantage. He concurred with the noble and gallant Lord (Lord Sandhurst) that it was a calamity for the military to have to aid the civil power; but the best way to prevent that calamity was to provide against it. The noble and gallant Lord was against providing for such a contingency.
  LORD SANDHURSTexplained that his objection was to any particular body of troops being placed in the invidious position of being specially told off to assist the civil force in case of disturbance; this remark especially applying to the Household Brigade—the Royal Body Guard.
  THE EARL OF LUCANsaid, that the object of having the Barracks in that particular place was not that any particular troops should be employed for that purpose, but of having a large open space
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  in which troops could be readily assembled in case of need. The late Government had considered the different advantages offered by other spaces in the Metropolis for that purpose, but had been convinced that the present site for the Barracks could not be improved upon. The movement against the Knightsbridge Barracks was no more than a cabal of builders, house-agents, and shopkeepers.

SCOTTISH TEINDS.

  QUESTION. OBSERVATIONS. RETURNS. LEGISLATION.
  THE EARL OF MINTOasked Her Majesty's Government, "Whether certain Returns moved for last Session relating to Scotch Teinds (Tithes) have been completed, and will be soon distributed to Peers; also, whether it is the intention of Her Majesty's Government to introduce a measure to place the Law of Teinds on a reasonable and an equitable basis? The very fact that he was obliged to ask his first Question was strong evidence that the Office of Teinds in Edinburgh, no less than the whole of the antiquated and unjust procedure and law connected with teinds, stood urgently in need of thorough reform. Early last Session, in the month of April, certain Returns calculated to throw considerable light on the defects of the present system were ordered by the House; and that now, 10 months later, he was unable to learn whether they had been completed, or even commenced. Unless there was good reason for such extraordinary delay, he thought an immediate inquiry ought to be instituted into the condition of the Office, to ascertain whether it must be attributed to the negligence and incompetency of the officers at the head of it. His second Question required no explanation.
  THE DUKE OF RICHMOND AND GORDON, in answer to the last Question, said, that in view of the various Bills Her Majesty's Government had in hand, and intended to introduce before Parliament, he could not give the noble Earl any assurance of being able to deal with the Question to which he had referred during the present Session. With regard to the noble Lord's first Question, he had correctly stated that on a Motion made by him in the early part of last Session, an Order was made for certain Returns

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  relating to Scotch Teinds, which Returns certainly ought to have been prepared and laid upon the Table long before this time. He could not account for the delay, but would promise to take immediate steps to ascertain why the Returns had not been prepared, and would, so far as was in his power, insist upon their being laid on the Table forthwith.
  House adjourned at half past Six o'clock, to Thursday next, half past Ten o'clock.