Lords Sitting of 9 February 1880

MINUTES.
PUBLIC BILL—First Reading—Employers' Liability (4).
ROLL OF THE LORDS.
THE LORD CHANCELLOR THE LORD CHANCELLOR acquainted the House that the Clerk of the Parliaments had prepared and laid it on the Table: The same was ordered to be printed.(No. 3.)
THE EMPRESS OF INDIA.

  PERSONAL EXPLANATION.
  THE DUKE OF ARGYLL: My Lords, I wish to ask the indulgence of the House for a few moments, in order that I may give to your Lordships an explanation of a matter personal to myself. Some of your Lordships may be aware that, at a meeting held a few weeks ago in Midlothian, the noble Lord who a short time ago held the office of Under Secretary of State for India (Lord George Hamilton) stated that, during the period that I occupied the position of Secretary of State for India, I addressed a telegram to the Indian Government, which was to be communicated to the late Ameer of Afghanistan, Shere Ali, and in which I styled Her Majesty the Queen "Empress of India." Now, my Lords, I cannot say that I have that supreme contempt which the noble Earl at the head of the Government seems to entertain for what are called "extra-Parliamentary utterances;" and least of all could I have it for the words of one who

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  always speaks with great spirit, and who, I hope, has a distinguished future before him. It so happened, my Lords, that I did not see the speech of the noble Lord; and I did not even know that he had made the statement to which I refer until the day before the meeting of Parliament, when I arrived in town. When I did hear of it I at once wrote to the noble Viscount the Secretary of State for India (Viscount Cranbrook) asking him to be good enough to allow me to see the telegram, and the noble Viscount was so kind as to say that the document would be open for my inspection whenever I called at the India Office. That was on Friday evening. In the Parliamentary Intelligence of The Times I found on Saturday morning this passage—
  THE DUKE OF ARGYLL: 'THE EMPRESS OF INDIA.
  "Sir H. DRUMMOND WOLFF asked the Under Secretary of State for India whether there exists in the archives of the India Office a telegraphic despatch transmitted to India in 1869, on the responsibility of the Secretary of State, the Duke of Argyll, for communication to the Ameer of Cahul, in which, among other titles, Her Majesty the Queen is designated as Empress of India; and if so, whether the Government are prepared to lay a copy of such despatch upon the table.
  "Mr. E. STANHOPE.—The circumstances in which this telegram was sent wore these: After the conclusion of the conference with Lord Mayo in 1869, it was decided to send a friendly message to the Ameer Shere AH in the name of her Majesty. A telegram was accordingly prepared by the political department at the India Office, and submitted to the Secretary of State for India. The telegram was headed 'From the Queen of England,' which the Duke of Argyll altered—apparently in his own handwriting—to 'the Queen of Great Britain and Ireland and Empress of India' (loud and continued cheering from the Ministerial benches), and in that form it was sent (renewed cheering). There can be no objection to producing the telegram, if it is thought worth while to do so. (Cheers).
  "Sir H. DRUMMOND WOLFF expressed a wish that the telegram should be presented to the House in fac simile.(Laughter.)"
  Whether the hon. Gentleman proposes that the cost of producing the fac simile should be borne by the Revenues of India or not, I cannot say. I went to the India Office this morning, when the noble Viscount showed me the telegram. Beyond doubt or question the telegram was drawn up by my late distinguished friend Sir John Kaye; but the title of Her Majesty was partly altered, and in my own handwriting the words "Em-
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  press of India" were inserted. Therefore, Lord George Hamilton was perfectly justified in the statement which he made. At the same time, I have not the slightest recollection of the circumstance. It has entirely passed from my memory. Well, my Lords, shortly after my leaving the India Office I met a Conservative friend, who approached me with a cheerful, if not triumphant, countenance. I do not know whether he had joined in the vociferous cheering with which the statement in the House of Commons had been received. He said to me—"Is this story true about the telegram? Is it really true, after all the violent opposition which you brought to bear on us for bringing in the Bill as to conferring the title of 'Empress of India?'—is it true that before this you had yourself addressed a telegram to the Ameer Shere Ali, in which you styled the Queen 'Empress of India'?" Well, my hon. Friend was in such very high spirits that I was very unwilling to interfere with his pleasure. He added—"What explanation have you to give?" I said—"It is an awkward circumstance; but I shall wait till Monday and give my explanation in the House of Lords. But are you quite sure that I made any violent attack on the Government in respect of the Bill conferring that title?" He said—"Yes." I said—"Who told you so?" He replied—"Oh, everybody told me so, that you blamed, the Government very much for doing what you did yourself. One hears it in all the Clubs and everywhere." "You had better go to Hansard and read what I did say," observed I to my friend; and I am afraid that my hon. Friend went away "a sadder if not a wiser man." Now, my Lords, the fact is, I took no part in the discussion on the Bill for conferring upon Her Majesty the title of Empress of India. I did not say one word in that discussion against giving Her Majesty that title. I came down to the House to hear the debate, and I thought there was some exaggerated feeling on both sides of the House. I thought, on the one hand, it was not very wise to raise the question, and, on the other hand, I could not attach to it that importance which my noble Friends behind me did. I walked out of the House, and did not vote; and I never have said, in public or in private, one single word against

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  the Bill. There is an extraordinary misunderstanding flying about in reference to that telegram, and also in connection with another document, a letter. The noble Duke who brought in the Bill (the Duke of Richmond and Gordon) quoted a letter from the late Viceroy (the Earl of Northbrook), and that statement was to the effect that a letter was written by him to Atalik Ghazee, Yarkand, in which the Queen was called "Empress of Hindostan." In both these cases the object was to give an English word that could be translated into Persian as showing the supreme governor, and it had nothing to do with giving any increased title; the object was, as I said, to get an English word that in Persian would convey the impression of one of the supreme Sovereigns of the world. The phrase which my noble Friend (the Earl of North-brook) employed for this purpose was "Empress of Hindostan." Well, the Government brought in a Bill to confer the title; and in the course of the discussion, it was said that it had been the custom, more or less, to call the Queen "Empress of Hindostan," and no doubt it was more or less, though I doubted whether it was wise to give a new title, and, in lieu of that which previously constituted mere description, to confer a formal English title. There is a great difference between the two things. I do not know whether your Lordships have remarked in the Papers what was the reception Shere Ali gave to the Act conferring the title. Writing to the Viceroy on the 22nd of May, 1876, he says—
  "Kind Friend, by hearing the good news of the Shahinshahi (office of Shahinshah) of Her Majesty the Great Queen, in view of the friendship and union of the two Exalted Governments, much joy and pleasure and happiness were produced in the penetrating heart. Consequently the firm hope is this, that from the most excellent title of Shahinshah of Her Majesty the Great Queen repose and security in all that he-longs to the affairs of the servants of God … more than in former times, will be experienced in reality."—[Afghanistan,No. 1, 1878, p. 175.]
  I am bound to say that if this is the foundation of the new Imperial policy in India I rather owe an apology to my noble Friends behind me for not having read the proposition contained in the Bill by the light of subsequent events; and if I have any expression of repentance to make it is not that I refrained
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  from voting on the measure, but that I did not join them in opposing it. In conclusion, I wish to give Notice that the Motion that I propose to move on the 20th instant will be for an Address for Copy of any Correspondence found at Cabul between the late Ameer Shere Ali Khan and the Russian Authorities in Turkestan or St. Petersburg; and, if Her Majesty's Government should say, as was said in "another place," in spite of the information which had reached the public through the Press in regard to the nature of this Correspondence, that they cannot, in the interest of the Public Service, produce it, I shall be obliged to state why I think that it is in the interest of the public they should know what was the nature of those Papers.

BASUTOLAND.

  QUESTION. OBSERVATIONS.
  THE EARL OF KIMBERLEYasked the Under Secretary of State for the Colonies, "Whether it was intended to disarm the natives in Basutoland without distinction; and whether the measure was enforced under the authority of an Act of the Cape Parliament, or by the authority of the Governor only? The noble Earl said, he believed that in South Africa there was no tribe better affected towards this country than that of the Basutos. The proposition of indiscriminate disarmament was causing considerable dissatisfaction and even disaffection among them, and that was a result greatly to be deplored. He did not find fault with the general policy of disarmament in South Africa; on the contrary, he was inclined to think that if such a policy was gradually and cautiously carried into effect it would be productive of excellent results; but he was of opinion that indiscriminate disarmament of all the Natives, whether loyal or disloyal, would create disorder and disaffection. He had, therefore, placed his Question on the Paper, and was anxious to know by what authority disarmament was to be carried out; because if it were on the authority of the Governor alone, he should not contemplate good results from the measure.
  EARL CADOGAN,in reply, said, the noble Earl would recollect that under his (the Earl of Kimberley's) auspices in

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  1871 Basutoland was annexed to Cape Colony, and that the responsibility for the preservation of the peace in that country rested entirely with the Government of the Cape. The latest intelligence which the Colonial Office had received was contained in a Minute dated December 16, 1879, in which the Cape Government announced their determination to proclaim in Basutoland the Peace Preservation Act of 1878. That Act would be found in the Papers as Act 13 of 1878. It was entitled "Peace Preservation Act of 1878," and it empowered the Governor to proclaim districts as areas within which no person should have or carry arms or ammunition without a licence, unless such person were a magistrate, justice of the peace, or field cornet, or were serving in Her Majesty's Forces, or were enrolled in any colonial, burgher, or volunteer force. Compulsory disarmament could only be carried out under that Act, and not by authority of the Governor only. He might be permitted to call attention to a Cape despatch dated December 16, 1879. It was in these terms—
  "Colonial Secretary's Office, Cape Town,
  "Cape of Good Hope, December 16, 1879.
  "Ministers beg to forward to his Excellency the Governor for transmission to the Secretary of State the official report of the proceedings at the Pitso, held at Masera, British Basutoland, on the 16th and 17th of October last, which contains a full explanation of their policy with respect to disarmament. The rebellion in Basutoland having terminated, and peace being apparently established throughout the colony and its dependencies, the Peace Preservation Act will shortly be proclaimed in Basutoland, and Borne other parts of the eastern districts of the colony to which the Act has not yet been applied. Intelligence has within the last few days been received from the Chief Officer of the Government in Basutoland that many head men have informed him that they are quite ready to surrender their arms when called upon to do so. The precautions that have been used in the past will be exercised in the future, and Ministers have every expectation that their continued efforts to insure permanent peace in this part of Her Majesty's dominions will be attended with success.
  "J. GORDON SPRIGG."
  That was received on the 7th of January. He might state, in passing, that it would be embodied in Papers that would be presented to their Lordships in the course of this week or next. A telegram, which some of their Lordships might have seen, appeared in The Times of to-day, stating that—
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  "The Cape Government, according to the request of Letsea, the Basuto chief, has granted a delay for the surrender of arms by the Basutos, pending the result of the Petition which the chief has addressed to the Cape Parliament."
  He was not able to confirm the statement, as they had heard nothing of it officially; but, from all they had heard, he was in a position to state that disarmament, when it was carried out, and if it was carried out, would be done with due consideration for the feelings of the inhabitants, and would, he hoped, tend to their welfare and the tranquillity of the Colony.

EMPLOYERS LIABILITY BILL.

  BILL PRESENTED. FIRST READING.
  THE LORD CHANCELLOR,in moving for leave to bring in a Bill to amend the law relating to the liability of employers for injuries sustained by their servants, said: This is a subject that has attracted of late years very considerable attention; and therefore I would ask permission to say a very few words as to the nature of the measure, and the course which the Government intend to take with regard to it. Your Lordships have, no doubt, observed that according to the existing law an employer of labour, if his servant sustains injury in the course of his employment by reason of the personal negligence of the employer, is liable to pay compensation. But, on the other hand, he is not liable if the injury is sustained in consequence of the negligence of another servant, the two being engaged in a common employment. That state of the law has been very much complained of on the part of those who are affected by it, and two alternative amendments of the law have been proposed. Some persons have proposed that the law should be altered in this way—that the employer of labour should be liable to all those in his employment for the negligence of his servants, just in the same way as he is liable to the outside public—that is to say, that an employer of labour should be a kind of insurer in reference to any accident sustained by his workmen. That is the change of the law that is proposed in the interests of workmen. There is another proposed amendment of the law, which does not go to the same extent. An employer is now liable for personal negligence, and

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  it has been proposed that where an employer does not himself act, but delegates the functions of authority, of supervision, and of command to third persons who take his place, he should be liable for the negligence of those to whom he so delegates his authority. The subject was considered very carefully by two tribunals, whose opinions entitle them to the greatest weight. In 1877 there was a Royal Commission to inquire into the subject of Railway Accidents, and in their Report they made this recommendation—
  "We recommend that in any action against a railway company for compensation for the death or injury of a servant through the defendants' negligence, the officials whom the company intrusts with executive authority shall no longer be deemed to be merely the fellow-servants of their subordinates; or, in other words, that where a railway servant can establish against any official of the company empowered to direct the act or control the matter complained of such proof of negligence as would make him liable if he were himself the master, his negligence shall be deemed to be negligence on the part of the company. We do not intend, moreover, that this should apply only where the injured servant is the subordinate of the official in default and in the same department of work, but that the company should in every case be liable to its servants for the negligence of those to whom it delegates its authority as master."
  That is the recommendation of the Commissioners; but it would be very difficult to put into the language of a Bill the kind of servants that was referred to in general terms. In the same year there was a Select Committee in the other House that considered the subject; and, in the first place, I should state to your Lordships the terms of the Reference to that Select Committee. They were—
  "Appointed to inquire whether it may be expedient to render masters liable for injuries occasioned to their servants by the negligent acts of certificated managers of collieries, managers, foremen, and others to whom the general control and superintendence of workshops and works is committed, and whether the term 'common employment' could be defined by legislative enactment more clearly than it is by the law as it at present stands."
  That was in the Reference to the Committee, and they made their Report almost unanimously that—
  "There can be no doubt that the effect of abolishing the defence of 'common employment' (as has been actually proposed in a Bill submitted to the House) would be a serious disturbance in the industrial arrangements of the
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  country. Sooner or later the position of master and workman would find its level by a re-adjustment of the rate of wages, but in the meantime great alarm would be occasioned, and the investment of capital in industrial undertakings would be discouraged. … Your Committee, therefore, are of opinion that no case is made out for any alteration in the law relating to the liability of employers to their workmen for injury in the course of their employment, except in the matters to which they now proceed to refer. … The development of modern industry has created large numbers of employing bodies, such as corporations and public companies, to whom it is not possible to bring homo personal default; and there are other cases in which masters leave the whole conduct of their business to agents and managers, themselves taking no personal part whatever either in the supply of materials or in the choice of subordinate servants. Your Committee are of opinion that in cases such as these—that is, where the actual employers cannot personally discharge the duties of masters, or where they deliberately abdicate their functions and delegate them to agents, the acts or defaults of the agents who thus discharge the duties and fulfil the functions of masters should be considered as the personal acts or defaults of the principals and employers, and should impose the same liability on such principals and employers as they would have been subject to had they been acting personally in the conduct of their business, notwithstanding that such agents are technically in the employment of the principals. The fact of such a delegation of authority would have to be established in each case, but this would not be a matter of difficulty."
  Last Session the Government introduced a Bill into the other House of Parliament upon the subject, their object being to carry out, as far as they could, the general recommendations that had been made. Of course, it was a matter for much consideration in what words these recommendations should be expressed. Last Session we could not proceed with the Bill, and I propose now to lay it upon the Table, and to ask your Lordships to read it a first time. I will refer shortly to the general proposition which the Government would ask Parliament to lay down. It is that—
  "If any person in the service of any employer in any railway, mine, manufacture, or works, is injured or killed by the negligence of a servant in authority of such employer in the course of his employment as such 'servant in authority,' and under circumstances in which, but for the fact of both persons being in the service of the same employer, the person injured, or if he was killed his personal representative, would have a right of action against the employer, such right of action shall subsist notwithstanding the fact of the common employment."
  Then comes the question, what is a servant in authority, and that is a matter

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  of immense difficulty. In the first section I propose to define that, in reference to railways, mines, manufactories, and works, and last year the definitions were subject to much criticism both on the part of the employer and the employed; and I am not surprised that there was criticism on both sides. But the question is, what is to be the best solution of a question which gave rise to criticism from two quarters of the kind to which I have referred? I will not read these definitions now; but I may say that the course which the Government desire to take is this—We do not anticipate that there will be any serious contest upon the general provision laid down in the second section of the Bill; and if your Lordships should assent to the Second Reading, we think that in no way can the question of the definitions of "servants in authority" be better considered than before a Select Committee of the House, where those interested on one side and on the other can be heard, whose evidence can be heard, and whose objections can be carefully and, I may say, judicially considered by those who compose the Committee. I would, therefore, ask your Lordships to let us now read the Bill a first time, and I may say it has only two sections.
  Bill to amend the law relating to the liability of employers for injuries sustained by their servants—Presented(The LORD CHANCELLOR.)
  EARL GRANVILLEagreed with the noble and learned Earl that there was a great variety of opinion on the subject. He felt greatly obliged to the Government for bringing it in at such an early period of the Session, and for stating the object of the measure; but, at the same time, he thought that Notice ought to have been given, because he knew that there were several noble Lords who were interested in the subject who would have been glad to have been present to hear the noble and learned Earl's interesting and lucid statement. He thought it was a wise course to refer the Bill to a Select Committee.
  Motion agreed to;Bill read 1ª to be printed;and to be read 2ª on Thursday next.(No. 4.)
  House adjourned at a quarter before Six o'clock, till To-morrow, half past Ten o'clock.