Lords Sitting of 20 February 1882

MINUTES.
ROYAL COMMISSION—First Report—Cathedral Churches in England and Wales.
PUBLIC BILLS—First Reading—Settled Land (19); Conveyancing (20).

LAND LAW (IRELAND)—THE SELECT COMMITTEE.

  OBSERVATIONS.
  EARL GRANVILLE: My Lords, I think it respectful to your Lordships to state the course which the Members of
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  Her Majesty's Government in this House intend to pursue in regard to the Committee which was agreed to be appointed on Friday last upon the Irish Land Act and the condition of Ireland. We have consulted our Colleagues, and we are of opinion that the objections stated by my noble Friend the Lord Privy Seal, and which would have been reiterated by me if the noble Marquess (the Marquess of Salisbury) had attempted to answer my noble and learned Friend on the Woolsack, are of so grave a character that we should not be justified in taking any part in the constitution or in the proceedings of the Committee.
  THE MARQUESS OF SALISBURY: I wish to state, with reference to one remark made by the noble Earl, that the reason why I did not answer the observations of the noble and learned Lord on the Woolsack was that it was a quarter to 1 o'clock when he sat down, and that, in my opinion, the House preferred to go to a division; but I did not think there was anything in the argument of the noble and learned Lord on the Woolsack that was not sufficiently answered, in anticipation, by my noble and learned Friend behind me (Earl Cairns). With regard to the course just announced by the noble Earl on the part of the Government, it is a grave one, and, as the noble Earl is probably aware, it is entirely without precedent. I will not now express a further opinion upon it; but I can hardly think that the noble Earl looks with much satisfaction to the issue and the verdict of the inquiry, if he is unwilling to join in it in the ordinary course of Parliamentary procedure.

SETTLED LAND BILL.

  BILL PRESENTED. FIRST READING.
  EARL CAIRNS, in rising to present a Bill for facilitating sales, leases, and other dispositions of Settled Land, and for promoting the execution of improvements thereon, said, the measure was substantially the same as the one their Lordships on two previous occasions assented to and sent down to the other House of Parliament. The object of the Bill was to give to tenants for life and other limited owners of settled estates, as an incident of their estate, full and, as he thought, satisfactory, powers for the beneficial enjoyment and improvement of settled property. There was no

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  doubt that, more or less, it had been the object of settlements, more especially of modern settlements, to give powers of this description in the settlements; but the principal points in which those powers had been found to come short were these:—In the first place—and to this he attached great importance—the powers were given with very rare exceptions to the trustees and not to the tenants for life. They knew that trustees wished to act with great safety and, as far as they could, with freedom from responsibility; and there had been a reluctance on the part of trustees to engage in any exercise of those powers. The natural arrangement would, therefore, be to have the powers safely guarded, and to intrust the exercise of them to the tenant for life. The next failure was that the powers had not gone far enough. They did not provide for leases and the execution of improvements to that extent and in that way which circumstances required. There was another matter in regard to which there was a failure. So far as he knew there was no power of settlement to authorize the trustees of a limited owner, if the limited owner should be of opinion that it did not suit his taste and capacity to manage landed estate, to sell the estate and convert it into money under conditions. All these shortcomings this Bill proposed to remedy; and he thought; he stated what was correct when he said that if this Bill became law it would for every good purpose put the limited owner of property in the position in which the owner of fee simple stood; and it would lead to the more easy and free circulation of land and the execution of improvements of land as if the land were owned by an owner in fee simple. He owned himself—having observed the reception this measure met in the country—that, so far as he knew, it had been approved by all persons interested in the development of land, and had not been disapproved of by any persons who wished to go further than that Bill proposed to go—looking at the circumstances, he regretted very much that the Bill had not become law a couple of years ago. He believed if it had become law a great amount of the suffering which had been endured would have been avoided. It was a remarkable thing, in the two large volumes which had been laid upon the Table of the
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  evidence taken before the Royal Commission on Agriculture, that of the great number of witnesses who had spoken on this measure he did not find one who did not approve of this Bill. In the two volumes—more evidence, no doubt, had yet to come—the witnesses who gave evidence took different views on many things; but they all agreed in approving of this Bill. He thought this was very strong testimony from those who were practically acquainted with the subject. There was one qualification in the Bill as to the power of sale—namely, that before the tenant for life could sell an estate it would be necessary to obtain an order of the Court. He also observed that in the former Bills a distinction was drawn between future settlements and existing settlements; but, after full consideration, he had come to the conclusion that no distinction was necessary, and that the powers proposed to be given by the Bill should apply to existing and future settlements alike. He begged to move that the Bill be road a first time, and he hoped that his noble and learned Friend on the Woolsack, who had supported the Bill when not in Office, would give it his support during the present Session.
  Bill for facilitating sales, leases, and other dispositions of Settled Land, and for promoting the execution of improvements thereon—Presented (The Earl CAIRNS.)
  THE LORD CHANCELLORsaid, he had expressed himself in favour of the principle contained in the Bill not only when he was not in Office, but when he was in Office, and he believed he repeated his opinions on every occasion. Nothing that had happened had changed his opinion that the measure, if passed, would be a very decided improvement on the present state of the law. The change which his noble and learned Friend had made with regard to existing settlements had been supported by him. Whether or not the Government would still be prevented from giving active assistance to the passing of the Bill was a point as to which he was not authorized to enter into any undertaking on their part; but he was glad that the noble and learned Earl had again drawn the attention of Parliament to this subject.
  Bill read la. (No. 19.)

CONVEYANCING BILL.

  BILL PRESENTED. FIRST READING.
  EARL CAIRNS, in presenting a Bill to further amend the law and practice of Conveyancing, said, that it was supplementary to a Bill which was passed last year on the same subject. Its clauses were originally included in that Bill, but they gave some rise to controversy in the Select Committee of the other House to which the Bill was referred; and as controversy of any kind at that period of the Session would have endangered the Bill, it was decided not to proceed with the disputed clauses. He now desired to re-introduce them.
  Bill for further improving the practice of Conveyancing; and for other purposes—Presented (The Earl CAIRNS); read la. (No. 20.)

ELECTION OF REPRESENTATIVE PEERS FOR SCOTLAND—THE EARLDOM OF MAR.

  QUESTION. OBSERVATIONS.
  THE EARL OF GALLOWAYrose to ask the Chairman of Committees, Whether he is prepared to advise the House as to the course of action to be pursued in consequence of the protests made by sixteen Scotch Peers and one Scottish Peeress (in her own right) against the acceptance of the vote of the Earl of Kellie as the Earl of Mar upon the Union Roll of Scotch Peers, officially reported to the House in the
  "Minutes of the Election of the Lord Polwarth as one of the sixteen Representative Peers of Scotland, held at the Palace of Holyrood House in Edinburgh on the 11th January 1882 in obedience to Her Majesty's Royal Proclamation,"
  in the Return by the Lord Clerk Register of Scotland? The noble Earl said, that he wanted particularly, although it ought to be unnecessary, to guard himself against the imputation that this was in any light a question of a personal nature. He did not mean personal with regard to the Chairman of Committees himself, but as regarded the noble Earl to whom the Question alluded. So far from being a personal question, he would maintain, as he had maintained before, this—that it was a question of a Constitutional nature of very great importance. It was simply a question whether our Most Gracious Queen should be asked by their Lordships'
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  House, at the instance of the Committee of Privileges, to actually override the Statute Law of Scotland. He would only remind their Lordships of this fact—that from the date of the Union between England and Scotland in 1707 for over a century, whenever there was any protest made on the occasion of an election at Holyrood in consequence of a Royal Proclamation summoning the Scottish Peers there, it was the custom, if there was any protest made by any Scottish Peer, for that protest to be fully taken into consideration by their Lordships' House in a Committee of the Whole House, or else a Special Committee was appointed in order to investigate and report. For a good many years that system had dropped. He was not going into the question whether the Resolutions arrived at, after an investigation of these protests, were or were not wise. As a matter of fact, he found it recorded that they were very apt to be repealed; but, at any rate, an amount of respect and consideration was shown to these Scottish Peers who, by the terms of the Treaty of Union, were not permitted to sit in their Lordships' House. Therefore it was that he wished some notice to be taken of the protest made on this occasion. The protest, which no fewer than 16 Scotch Peers and one Peeress (in her own right) had made in the same terms, came to this—that Lord Kellie, as a Representative Peer, should not be allowed to give his vote as Earl of Mar upon the Union Roll of Scotland. The protest was made by many other Scotch Peers before; but they did not think it necessary to repeat it, though they still adhered to it. It was high time that the Chairman of Committees should say what course he advised the House to pursue.
  THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES)said, he certainly did hold Office as Chairman of Committees, having been so appointed by the House; but he was not created, in consequence of that appointment, adviser of the House, and in this matter he had no particular advice to give. What he knew was that the House had found that there was an Earldom of Mar created by Queen Mary upon her marriage, and that every Peer bearing the title who had sat in that House since that Earldom was created had sat as Earl of Mar in direct descent from that

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  creation. He did not see that there was anything the House ought to interfere with in these circumstances. On the contrary, as the noble Earl had asked him to give advice to the House, he would recommend that the noble Earl, and the other Peers who joined in the protest, should desist from taking a step which was, in some degree, condemnatory of the proceedings of the House in coming to the decision which they did judicially.
  THE EARL OF GALLOWAYsaid, he did not understand what was the advice the noble Earl had given.
  THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES)remarked, that the advice he gave was that he and the other Peers should not protest against a decision of the House to which the House came judicially.
  THE EARL OF GALLOWAYsaid, he did not protest against any decision to which the House came judicially. [Cries of "Order!"] If the noble Earl said the House came to the decision in question judicially, he must join issue with him. If this question had been brought before the House of Lords, as the Court of Final Appeal, it was quite impossible that the opinion arrived at could in that case have been arrived at, and for this reason—By the 22nd Article of the Treaty of Union it was specially reserved that no judgment ever arrived at by the Court of Session should be reversed—of course, unless it were done by Act of Parliament. But here was a case tried for two years in the Court of Session, from 1624 to 1626, upon the three counts, and upon every one of them the Court decided that the old Earldom of Mar was still in existence. He maintained that it was not within the functions of their Lordships' House to advise Her Majesty to declare that one Earldom was created in 1565, and in order to find a place for that Earldom on the Union Roll to excise an Earldom already on the Roll of Scotch Peers for 140 years before that date. He (the Earl of Galloway) believed he was not wrong in quoting it as the opinion of the noble and learned Lord on the Woolsack that the Order of the House on this subject was inexplicable. It was not within their Lordships' proper powers to advise Her Majesty as they had done; and it was really causing their Lordships' House to be looked upon with an amount of ridicule in
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  a part of the country which he, for one, was very sorry should be the case. He hoped to have heard his noble Friend give some advice on the subject; but, as he had declined to do so, he (the Earl of Galloway) must consider further what step would be best to take. That these protests would continue was quite certain.
  THE LORD CHANCELLORsaid, he must not let the observation which the noble Earl had just made with reference to himself pass without a word. He never said that the Report of the Committee for Privileges, or the Order founded upon their Report on the subject of the Peerage adjudged to the Earl of Mar and Kellie, was an inexplicable one. What he did say was that the position of the Earldom of Mar upon the Union Roll, and in the old Decreet of Ranking, was inexplicable, so far as he knew, whatever date they referred the Peerage to.
  THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES)said, that by the Act of Union it was specially provided that every privilege possessed by the Peers of England should be possessed by the Peers of Scotland. One of the greatest privileges which belonged to the Peerage of England was that that House was the only tribunal to determine who were possessed of any particular Peerage or title. This was the position of the House when a question of this sort came before it. The noble Earl spoke about proceedings in the Court of Session; but the question there was entirely in regard to landed property. From the time of the death of the last heir male in 1377 down to the present day, neither in the Parliament of Scotland before the Union nor in the House of Lords since the Union, had any person been admitted to hold the ancient title to the Earldom of Mar; and this was proved most distinctly by several successive Earls of Mar, under the creation which had been allowed by the House, having claimed to be put upon a higher precedence than that which was allowed them. No notice was ever taken of any protest from them, and none of them had ever attempted to prove their right in the Court of Session before the Union, or in this House since. That had been an extinction for more than five centuries, and he thought that ought to be enough to satisfy the noble Earl.

STATE OF IRELAND—POLICE PROTECTION FOR CARETAKERS.

  QUESTION. OBSERVATIONS.
  LORD ORANMORE AND BROWNErose to ask Her Majesty's Government, Whether it is true that notice has been given to the agents of the Property Defence Association that within a short period police protection will be withdrawn from caretakers who have been put in occupation of farms; and, if so, on what grounds? The noble Lord said, that the answer to a similar Question given by the Chief Secretary for Ireland in "another place" was unsatisfactory, and was so considered by men of moderate views in Ireland. It was said that the Government were determined to give every protection in their power, but that they had the choice of the manner in which to do so. That was a matter of course; but he could state that the protection given to caretakers had been the means of preserving many lives. Irish landlords had been left for 12 months very nearly at the mercy of the Land League; and, therefore, when they saw a change of policy, especially with regard to the protection of caretakers, taken in conjunction with the speech of the Prime Minister the other day on local government and his indefinite answer to the Lord Mayor as to assistance to the Property Defence Association, they must regard it as very unsatisfactory. A correspondent from Ireland had pointed out that the increase in the number of outrages within the last few weeks had excited fresh apprehension, and had diminished the confidence in the power of the Government to check lawless violence. The withdrawal of police protection from the caretakers would lead to deplorable results, and farms would be abandoned because the owners could not afford the expense of efficiently guarding them. He hoped the Government would be able to give some satisfactory assurance as to the policy which they intended to carry out in enforcing the law for the protection of life and property.
  LORD CARLINGFORD: I am sorry that the noble Lord thinks that the answer given to a similar Question the other day in "another place" was not satisfactory. To me it appeared a very reasonable answer, and I am not able, upon the part of the Irish Government,
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  to give any answer differing in substance from that of the Chief Secretary. The Government are fully prepared to give all the protection in their power to persons in the situation of these caretakers, or to other persons who may be threatened or in any position of danger in Ireland; but they wish—and that, I believe, was the main intention of my right hon. Friend—to reserve to themselves the right to consider, on its own merits, every application for protection of this kind—the right of choosing the best means of providing protection in any particular case. It would be impossible to assign a party of police to protect every caretaker on every farm in Ireland, as that would interfere with the working of the system of patrolling, to which the Irish Government attach the greatest possible importance, and which, as is well-known, has latterly been productive of very good results. That system the Government desire to maintain in its fullest efficiency. Therefore, they do not wish to tie their hands by any general rule or announcement on the subject. They think that caretakers may be expected to do something, at any rate, for their own defence; and it cannot be too widely known and understood in Ireland that persons in that position, when threatened with violence, are at perfect liberty to resist force by force. At the same time, the Government fully recognize the responsibility of giving protection to persons in the situation of caretakers. They only desire to reserve to themselves freedom of action, and to treat every application that comes before them on its own merits.
  EARL FORTESCUEobserved, that the declaration as to deciding each case upon its own merits was quite reasonable; but it was the apprehension of a change of policy towards the caretakers that had so seriously alarmed the increasing number of landlords who had to provide for the safety of their farmhouses and buildings. The dangers to which caretakers were exposed were notorious. On a farm of his own, the incendiaries first barred in the caretaker and then fired the house, from which the man escaped with the greatest difficulty. The Government had shown remarkable helplessness and tardiness in their measures for the enforcement of the law, the protection of the law-abiding, and the

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  defence of the rights of property. For more than a year, frequent cases of the intimidation, ill-treatment, and sometimes even murder, of persons engaged in serving notices or other legal documents had been notoriously occurring, and yet it was only last month that the Government, in concert with the Judges, took the simple and obvious course of enabling such documents to be legally served by post in proclaimed districts; and their newspaper organs had done all in their power, by persistent calumnies and misrepresentation, to cripple the efforts of the Property Defence Association, which comprehended landlords and defenders of the rights of property belonging to all political Parties. And now, having discouraged the contribution of money in aid of the distressed landlords, they imposed on them the heavy additional expense of protecting the caretakers. A question might be raised as to whether the recent declaration made on the part of the Government that they would deal with each case on its merits was to be construed into an intimation that the caretakers must defend themselves as best they could, and that the Government encouraged a sort of general despairing surrender of the rights of property and the occupation of farms under the terror produced by the Land League.
  LORD ORANMORE AND BROWNEsaid, a recommendation from the Government to defend themselves, because the Government could not be everywhere, was nothing but a recommendation to resort to civil war.
  THE EARL OF COURTOWNsaid, it could not be supposed that caretakers would be so carefully chosen that they would be capable of exercising great discretion in an emergency; they would not be disciplined to act with such caution as policemen would do, and in case of a house being attacked and shots being fired the Government must be prepared for a loss of life which might, perhaps, be averted if proper protection could be afforded.

ENGLAND AND FRANCE—THE CHANNEL TUNNEL SCHEME.

  QUESTION. OBSERVATIONS.
  LORD STRATHEDEN AND CAMPBELLrose to ask Her Majesty's Government, To what extent and with what
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  reservation their sanction has been given to the project of a tunnel in the English Channel? The noble Lord said, that some of their Lordships might have acquiesced in the views of the promoters, and others might have been influenced by the opinions of Sir Garnet Wolseley. His views, no doubt, deserved consideration on a question so important, and the more so that he was a man usually inclined to favour new ideas. Apart from military considerations, there might be conflicting views as to the utility of the proposal. The passage by steamer would soon be reduced to about an hour, and by the tunnel it could not be much shorter. If it had been a question of connecting Newhaven and Dieppe, or Southampton and Havre, the utility would have been much more obvious than in the case of Dover and Calais, which were but 20 miles distant. The railway in the tunnel could not be free from the vicissitudes to which other railways were exposed; and, in case the tunnel were obstructed by accident when they had come to depend largely upon it, the non-existence of the steamboat service which the tunnel would have superseded, and the difficulty of extemporizing one, would place them in a worse position than ever with regard to the communication between England and the Continent. The noble Lord concluded by asking the Question of which he had given Notice.
  THE EARL OF DONOUGHMOREsaid, there had been a Departmental Committee appointed to consider the subject, a Committee of which Mr. Farrer, Mr. Smith, and Mr. Phillimore were members. Would the Report of those gentlemen be laid on the Table of the House before the Government sanctioned the scheme?
  EARL GRANVILLE: I shall be glad if the noble Earl will give Notice of his Question. In reply to the noble Lord, I have to state that communications between the English and the French Governments, and between the English Government and certain persons in this country, have gone on since 1868 on the subject of the Channel Tunnel. Assent to the general principle has been given, but with reservations, by successive Governments. In December, 1874, Her Majesty's Government signified to the French Government their assent in principle. A Joint Commission was appointed

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  to consider and report on the conditions on which the two Governments could agree to the construction of the tunnel. This Report was laid before Parliament; but the time specified in it for the commencement of the works has elapsed. There are two Private Bills on the subject before Parliament this Session. Important objections having been raised, Her Majesty's Government have instituted an inquiry, and are carefully considering the subject, and will announce the result to which they come before the Private Bills are dealt with.
  House adjourned at a quarter past Six o'clock, till To-morrow, half past Ten o'clock.