Lords Sitting of 24 April 1885

MINUTES.
PUBLIC BILLS—First Reading— Metropolis (Tabard Street, Newington) Provisional Order Confirmation* (81); Metropolis (Hughes Fields, Deptford)* (82); Local Government (Ireland) Provisional Orders (Public Health Act) (No. 2)* (83); Local,
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Government (Ireland) Provisional Orders (Labourers Act) (No. 3)* (84); Arbitration* (85).
Second Heading—Referred to Select Committee— Burgh Police and Health (Scotland)* (57).
Committee—Report— Drainage and Improvement of Lands (Ireland) Provisional Orders* (70); Local Government Provisional Orders (Poor Law) (No. 2)* (71); Local Government Provisional Orders (Poor Law) (No. 3) * (72); Royal Irish Constabulary Redistribution* (75); Egyptian Loan* (74).
Report—Infants* (78).
Third Reading—Local Government Provisional Orders* (66); Local Government Provisional Orders (Poor Law)* (67); Solicitors (Ireland)* (53), and passed.

BURGH POLICE AND HEALTH (SCOTLAND) BILL—(No. 57.)
(The Earl of Dalhousie.)
BURGH POLICE AND HEALTH (SCOTLAND) BILL—(No. 57.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE EARL OF DALHOUSIE, in moving that the Bill be now read a second time, said, that about a week ago a Memorandum was circulated among their Lordships describing the general scope and operation of the Bill. That statement contained a very concise and lucid description of the provisions of the Bill, and as he presumed that those of their Lordships who were interested in the subject had read the document, they would not expect him to enter into the matter at such length as would have been necessary if that Memorandum had not been issued. He would, neverthless, say a few words as to the reasons which had induced the Government to deal with the subject in this particular form. In the first place, he would remind their Lordships that this Bill was no new measure. It had already been before the House of Commons, and, in fact, had passed through a Select Committee of the House last year. The Bill was now before their Lordships precisely in the shape in which it left the Select Committee of the House of Commons last year, with the exception of a few verbal changes. The Bill dealt with the whole municipal administration of towns. It consolidated and amended the existing legislation. It covered the same ground as was covered by the Police Bills of 1883 and 1850, and the General Police Act of 1862. The series of enactments had a twofold object. In the first place, they provided a municipal government for populous places which had grown up without

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  having any constitution granted them by Royal Charter, or any other form of municipal government. And, secondly, they conferred upon the authorities of the existing Royal burghs and other burghs such additional powers as they did not then possess. These burghs had already a constitution of Magistrates, of Councillors, and other officers. The Magistrates exercised considerable jurisdiction, both criminal and civil; but under their constitution the powers of assessment which they possessed were of a very limited character. They had no means, and, indeed, it was not their duty by statute, to support any regular Police Force. Neither had they the means of making improvements of any kind—of providing for a water supply, or of taking any effective measures in reference to public health. These serious defects it was intended to remedy by these several Acts. The previous Acts of 1850 and 1862, were permissive in their character. They could be adopted either in whole or in part; but, as a matter of fact, they generally were adopted by a great majority of the towns. The last Act, that of 1862, was adopted by a very large majority of the burghs of Scotland. That Act was passed five years before the present Public Health Act, and it dealt with various topics relating to public health. Some of these matters were afterwards dealt with by the Public Health Act, such as cleansing of streets, the ventilation of buildings, the management of public sewers, the management of slaughterhouses, and many other matters of that kind. But it was a matter for serious consideration whether these subjects should be left out of this Bill, in order to be dealt with by some future measure as an amendment of the Public Health Act, or whether the Municipal Code, which was already provided by the series of Police Acts, should in these matters as well as in other respects be brought up to the present day. After much consideration the latter course appeared to Her Majesty's Government to be, on the whole, the best course to pursue. In the first place, the Public Health Act was a general Act, and applicable not merely to the urban, but also to rural communities. Any amending Act would also have to be general in its character, and would have to apply to all sanitary matters in urban as well as in rural dis-
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  tricts. It appeared to the Government that any such general measure of amendment ought to be followed by a reform of local county government. The Government were already pledged to deal with that question; but the period at which they could hope to deal with it was still distant, and the matters requiring to be dealt with were of most urgent importance. The second reason was, that the municipal burghs of Scotland were taking a great interest in this Bill, and were very anxious that their sanitary provisions should be incorporated in a Burgh Police Code. In proof of this, he might mention that the largest towns in Scotland had private Police Acts of their own, and that most of these had been passed subsequent to the passing of the General Public Health Act. The Convention of Royal Burghs, to whom the Government were very much indebted for their careful consideration of this Bill, had unanimously approved of this manner of dealing with the subject. In fact, the opinion of Scotland was unanimous, with the exception of the Police Commissioners of Glasgow. Their objections, however, were only recently raised, and until quite lately this Bill had the absolute and unanimous approval of the burghs of Scotland. As he had already said, the previous Acts were permissive in their character; but after an experience of 50 years of nearly all the towns of Scotland, it was thought that probably the right principle of dealing with the municipal administration in Scotland ought to be pretty nearly settled. The great majority of the existing police burghs and the inhabitants of those populous places which had no previous municipal constitution of their own, having adopted the Permissive Bills, the provisions of the present Bill were made compulsory. But there was a partial exception. Six of the largest towns in Scotland had obtained in recent years private Police Acts of their own. These Acts had been found to meet the peculiarities of each case. These Acts, consequently, the towns themselves were very anxious to retain so far as they possibly could. It seemed reasonable, however, that those provisions in the Bills which applied to certain matters pertaining to the public law should be made compulsory in all towns—such provisions, for example, as the estab-

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  lishment and regulation of the Police Force. The Police Force was, of course, supported in great part by the Imperial Government of the State. That alone was some reason for dealing with it in a compulsory manner. But it was desirable that the case should be dealt with by one uniform system. The second matters which were compulsory were those portions of the Bill which related to public health, and also matters pertaining to the Criminal Law. While all these portions of the Bill would be compulsory, the remainder would be optional to the large towns. Therefore, while the Bill provided for a general repeal of the Police Acts, those parts of the private Police Acts which dealt with other matters which the Bill did not make compulsory were saved; while the other parts of the private Police Acts dealing with matters which were dealt with compulsorily by this Bill were repealed. This might, perhaps, seem rather a complicated explanation; but the Bill itself was as clear and as well-arranged as the complicated nature of the subject admitted of. The complication was in the subject, and not in the Bill. To sweep away all existing Private Acts, as was suggested, and to substitute a General Act of Parliament to simplify the law, would be a very unpopular measure, and would meet with considerable opposition. An objection to this Bill was that it had a somewhat grandmotherly tendency. To that he would reply that there was scarcely anything in the Bill that was not already contained in Private Acts of Parliament. There was very little new matter in the Bill, and certainly it contained no new principle. Therefore the Government, in asking the House to pass the measure, were not asking their Lordships to take a leap in the dark. An experience of 20 years, it seemed to them, ought to suffice to discover the right method of dealing with municipal matters. If their Lordships sanctioned the second reading, he would move that the Bill be referred to a Select Committee of their Lordships' House. It was a very long measure, and one which the House would hardly care to deal with, except by a Select Committee. He begged, therefore, to move the second reading, on the understanding that it would be afterwards referred to a Select Committee of their Lordships' House.
  Moved, "That the Bill be now read 2a"—(The Earl of Dalhosie.)
  LORD BALFOURsaid, he was glad to hear from the noble Earl that he proposed to move that the Bill be referred to a Select Committee of their Lordships' House. When their Lordships considered that there were 529 clauses in the Bill, besides 50 pages of Schedules, they would probably be of opinion that that was the right way of dealing with it. At the same time, there were one or two matters of general principle in the Bill to which he wished to call the attention of the House before the Bill went to a Select Committee—chiefly some of the provisions in regard to the police administration, and as to the enormous powers—he believed the unprecedentedly large powers—given to magistrates in burghs to deal with offences, many of which were of the most petty kind, and which he could not help thinking would be much better left to the general good sense of the community. With regard to the administration of the police, the present state of the law was this—that all burghs of 7,000 inhabitants or more might, if they chose, maintain their own police. The proposal in the Bill was that all burghs of 20,000 inhabitants should do so, and that all burghs which had more than 5,000 inhabitants, and which at present maintained their own police, should continue to do so. He thought it would be much more satisfactory if this Bill had gone a little further in abolishing independent jurisdiction in the matter of police. The Bill itself admitted this principle, because it said that in future no more new independent jurisdictions of this kind would be created, and it just continued those which were at present in existence. He did not think he should be contradicted when he said that it was in conformity with the general policy of Parliament—and it was a sound policy—that these small independent jurisdictions in the matter of police should be as far as possible abolished; and he ventured to express the opinion that no burgh which had less than 10,000 or 12,000 inhabitants was large enough to maintain its own police. It was the experience of everybody connected with the administration of police matters in Scotland that these small jurisdictions were very prejudicial to the efficient service of the

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  police; that in many cases in small burghs there were constant complaints that the discipline of the police was not so efficient as in the counties; and there were also frequent complaints that in the small independent jurisdictions obstacles were raised to prompt apprehension of criminals who had committed crime within the bounds of their jurisdiction. In a small community of 5,000 or 6,000 inhabitants it was impossible to expect that the authorities would be able to engage a Chief Constable of the same education, efficiency, and ability as was the case in a larger community. There was not scope for the energies of an energetic and efficient public servant in such a small district. He wished to call their Lordships' attention to some of the large powers which the Bill proposed to confer on magistrates. He did not think it would be possible for the State regulation of individual conduct to go further than this Bill proposed. There were pages upon pages dealing- with some of the most minute offences. How far these provisions were in advance of some of the Private Acts of burghs he was not able to say; but this he would say—that if the present Code as it stood was to be extended to all the burghs in Scotland, it would cause a very great deal of inconvenience and heartburning, and it would be a great surprise to the population, because he did not believe that one-half of them knew what was being proposed in their name by the magistrates and Commissioners of Burghs. He would like to mention one or two of the provisions of the Bill by way of illustration. It was provided that no refreshment of any kind might be sold after 12 o'clock at night, not even in a baker's shop, under a penalty of £5. A chimney sweeper might not walk on the footpath, and you might not carry a bundle on the footpath if it incommoded anyone else. There was no definition of a bundle, and he believed this would be a fruitful cause of litigation. If anyone had a spite against a person, he might jostle against that person when he was carrying a bundle, and that person might be taken before a magistrate and accused of "incommoding." Then there was a provision that no colourable imitation of a bank note was to be made or exhibited. That was a reasonable provision; but he did not see why there
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  should be any further regulations as to a forged bank note in a burgh than in a country district. Then there was a provision against unlawful games, and a person could be find 40s. for playing any unlawful game in the streets. But there was no definition of an unlawful game. All tables for billiard playing were to be licensed; and if they were kept open and anyone was found playing upon thorn between 12 o'clock at night and 8 in the morning, they were to be fined 40s. or £5—he forgot which. Just to show their Lordships how very far-reaching this Bill was, he would tell them what it was thought necessary not to make an offence. Sub-section 36 of Section 393 provided that—
  "It shall not be deemed an offence to lay sand or other materials in any street in time of frost to prevent accident, or litter, or other suitable materials, to prevent the freezing of water in pipes, or, in case of sickness, to prevent noise, if the person laying such things causes them to be removed as soon as the occasion for them cases."
  When anything of that sort had to be specially exempted, it showed how far-reaching the provisions of the Bill were. There were provisions which were extremely onerous upon another matter. As had been shown more than once on the Criminal Law Amendment Bill, there was a difference of opinion as to the clauses anent the keeping of disorderly houses; and he thought a very general opinion had been expressed in the House, or a very considerable body of opinion, that many of these clauses were not in conformity with public policy. They would find all these clauses embodied in this Bill. He knew what the answer would be. Some large towns had got Acts, such as Edinburgh and Glasgow and Dundee, and he thought Greenock, in which these clauses were incorporated, and the surrounding districts and other burghs, such as Leith and other places, complained of the effect of these clauses in Private Acts for large towns. Houses which these clauses were intended to suppress simply migrated beyond the bounds of these large towns, and went to the country district; and if they extended all these clauses to other parts of Scotland round the outskirts of every town, the same class of houses would grow up, and there would be no proper supervision. There would not be even

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  the same amount of possibility of dealing with these matters as in towns. He thought it would be better if these matters should be dealt with comprehensively in one general Bill for the whole country. As the noble Earl had said, this Bill was now compulsory. Formerly any burgh might or might not adopt the measure if it wished it, according to a plebiscite of the inhabitants; but under this Bill, in any burgh of 2,000 or more inhabitants, any seven ratepayers might present a petition to the Sheriff, and the other inhabitants of the burgh would have no option but that the Act should be adopted. Surely the 1,993 other inhabitants might be allowed to have some say in the matter as to whether this Bill was or was not to be adopted. There were also some provisions as to the compulsory taking of land which he should certainly like to have explained. He did not know how far they came in advance of the present law; but there were provisions in the Bill to enable the Commissioners of any burgh to take land compulsorily for the purpose of storing manure, and for making gasworks and waterworks. They had not to go to Parliament for the powers, but might go to the local Sheriff-substitute, whose judgment was final. It seemed to him that this was a provision which should be very carefully considered by Parliament before it was allowed to pass. Then there were various other matters of detail; but he thought he had said enough to show that this Bill required most careful consideration, and that the Select Committee upon it should be a strong and representative one, and that plenty of time should be given for its consideration. He might venture to make a suggestion. He had a strong impression that before such a Bill was passed affecting Scotland everybody should be made thoroughly aware of its provisions, and he would not be sorry to see the Select Committee sitting in public. He had no intention of opposing the second reading; but the subsequent stages of the Bill would require most careful consideration.
  THE EARL OF WEMYSSsaid, from the speech which the noble Lord had just delivered, their Lordships must see how desirable it was that a measure of this character should be carefully considered before it became law. The Bill
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  embodied, in a compulsory general Act, all those different provisions intefering with men in their private business; and it confirmed, he thought unnecessarily, those provisions which had already been passed by both Houses of Parliament in Private Bills. When clauses such as these were inserted in Private Bills, those who were opposed to them had an opportunity of appearing by counsel or otherwise in opposition. It became, therefore, more necessary, when all these provisions were to be embodied in a general Bill, to carefully consider how far they should apply. Under the provisions of this Bill the municipal authorities could regulate the size of every room and of every window in every dwelling house, and the ventilation of every dwelling house. It imposed heavy fines on omnibuses that were not in a proper state of repair; and if the horses were not properly trained there was a heavy penalty. There was a penalty of £2 or £5 if a slow vehicle did not immediately get out of the way of a faster vehicle passing. But he thought the most extraordinary provision of all was one dealing with morals. The object, no doubt, was that everyone should live in the Palace of Truth. It was provided that anyone who attempted to commit a falsehood would be liable to a penalty of £10 or two months' imprisonment. What they were fast coming to, if this kind of legislation was about to pass, was a state of things where every citizen would only be able to live and move and have his being by the favour of the Secretary of State, or of some municipal authority. He hoped their Lordships would put their foot down on this kind of legislation, and that the Bill would come out of the Committee very different to what it was now.
  THE DUKE OF ARGYLLsaid, this was, no doubt, a very important Bill. Having devoted weeks to the consideration of the measure, he had tried to understand it, but had failed to do so. The whole principle upon which the Bill was drawn up was most inconvenient. It was partly a mere condensation of the existing law, and it was partly an addition to the existing law. It was very difficult to make out what clauses were new legislation and what clauses were old legislation. He suggested that what was a mere re-enactment should have been treated in one type, and what was

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  new in another type. His noble Friend who had charge of the Bill (the Karl of Dalhousie) said there was very little in it that was new; but he (the Duke of Argyll) could not believe that all the provisions that had been detailed could be found in existing Statutes. Certainly, he had never heard any such powers in regard to the classes of offences which had been mentioned being exercised by magistrates, although he had no objection to sweeps being prevented from walking on the footpath. There were one or two clauses in the Bill with respect to which he bad heard very serious remonstrances. One in particular was a very important one—that was the power given to populous places to annex parts of counties with the view to include them in the rates. That was a very important question. He had heard contests on behalf of his own tenants and feuars, who objected to be included in towns or cities that wanted to annex them. As he understood the Bill, this power of annexation was carried much further than under the existing law. Under the Bill, not only great cities and important towns, but populous places, constituted into police burghs, would have the power of annexing parts of neighbouring counties at the discretion of the Sheriff of that part of the district which had the majority of ratepayers, which was, of course, the populous place itself. Therefore, the Sheriff had the power of annexing new land to these populous places; and if the Sheriff of the less populous place objected to the annexation he would have no power to resist it. He had heard remonstrances on these points from persons well versed in the law. It would be absurd to oppose such a Bill as this on the second reading; but it was one that would require the very close attention of their Lordships.
  THE EARL OF ROSEBERYsaid, it might be as well to state, with reference to the expression "falsehood," which had a somewhat ridiculous appearance, that the Scotch law phrase "commit falsehood, fraud, and wilful imposition," was a synonym for the old English word "swindling."
  Motion agreed to; Bill read 2a accordingly, and referred to a Select Committee.

INFANTS BILL.—(No. 78.)
(The Lord Fitzgerald.)
INFANTS BILL.—(No. 78.)

  REPORT.
  Amendments reported (according to Order).
  Clause 3 (Mother may appoint guardian).
  THE EARL OF LIMERICKsaid, he objected to the provision in the clause which gave the mother of the infant power to appoint and nominate a guardian by deed or will. Whatever was to be done on behalf of the wife ought to be done openly during her lifetime. It ought not to be possible for her to make an arrangement in secret, which should be kept secret until after her death. It was a dangerous and invidious power to give to enable a wife to appoint a guardian by will. He, therefore, proposed to amend the sub-section of the clause by providing that the Court might, upon the application of the mother of an infant, appoint a person or persons to act as guardian or guardians jointly with the father if the Court was satisfied that this was necessary or desirable.
  Amendment moved,
  In Sub section 2, line 22, leave out from ("The") to end of sub-section and insert ("court may, upon the application of the mother of any infant, appoint some fit person or persons to act as guardian or guardians of such infant after her death, jointly with the father of such infant, if satisfied that such appointment is necessary or desirable for the welfare of such infant."—(The Earl of Limerick.)
  LORD FITZGERALDsaid, the objections of the noble Earl would in some respects apply to any appointment of a guardian by will, for until the death of the testator, if it was the testator's wish, the provisions of a will must be kept secret. As the clause stood, it was the clause of Lord Cairns; and the Amendment would restore the clause to its original form. There might be cases in which the wife had the strongest reason for believing that her husband was not a proper person to be intrusted with the charge of their children after her death.
  LORD INCHIQUINsaid, he could not agree with either the Amendment or with the clause as it stood. The noble and learned Earl (the late Earl Cairns) said that in case of a temporary differ-

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  ence between the husband and wife the latter might make an application to the Court to annoy him and put him upon his defence. In any case the clause would be a fruitful source of inconvenience. The person or persons appointed by will would most likely be hostile to the husband, and even if not hostile could scarcely assert a claim to act without offending the father. The father might say that if he was to be interfered with the children might be taken from him altogether, and he would not leave them any of his property. There might be individual cases in which the father should be interfered with; but for that the law already provided. He should, therefore, move that the sub-section of the clause be omitted.
  Amendment moved, to leave out Subsection 2.—(The Lord Inchiquin.)
  LORD WATSONsaid, he approved of the clause as it stood rather than of the proposed Amendment. The clause could have no operation until it was proved that the father was not a fit person to have the control of the children, and that the person nominated was a fit person. A person nominated as guardian would have to make up his mind before applying to the Court whether he was likely to obtain the confirmation of his appointment. He would enter the Court with the responsibility that the case for his appointment must be proved.
  THE LORD CHANCELLORsaid, there was some inconvenience in having two Motions before the House at once. He had already explained that the law at present was very different from what it would be under that clause. It was true that the Court had power to take children from their father, either in the lifetime of the mother or at any other time, for causes which the precedents had established as sufficient. But that power was circumscribed by the rules for its application laid down by Lord Eldon and other Judges, and was never exercised save in the most extreme cases, not only of immorality or profligacy on the part of the father, but of such immorality as was proved to be likely to directly influence or affect the child. Even if the father was living in scandalous profligacy, but did not bring his children into the society of his paramour, or did not deprave the child
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  by wicked teaching, the Court would not interfere. The cases chiefly meant to be provided for by the sub-section were those in which, in the opinion of all reasonable persons, it must be altogether wrong to allow the child to fall back under the power of the father. Take an extreme case. When the father and mother were living apart, and when there were young children, girls, living under the care of the mother during her life. In such cases, after the mother's death the children fell back under the power of the father, however undesirable such a result might be, and even if the mother, herself being pure and blameless, had obtained a divorce from her husband. In such a case as that, this clause would enable the wife to anticipate and make provision for the event of her own death, and to name the person whom she would wish to succeed to her own place, so far as that was possible. But the clause as framed by his lamented Friend Lord Cairns did not give her an absolute power, or enable her to do even this, for any reasons which were not grave reasons. The Court could only confirm the exercise of the power in cases where it was absolutely necessary to do so for the benefit of the child.
  THE MARQUESS OF SALISBURYsaid, he must protest against the use which had been made of the name of his noble and learned Friend the late Earl Cairns, whose authority was so great in that House. He knew that at the end of last Session his late noble and learned Friend had expressed himself privately as perfectly horrified with this Bill, and his wonder that it had ever been allowed to pass the House of Commons. What Earl Cairns might have said to the Committee to mitigate legislation which he did not feel himself strong enough to avert in the way of compromise he did not know; but as the noble and learned Earl was now no more, he asked their Lordships to dismiss from their mind any prejudice in favour of this Bill which might be raised by citing the name of Earl Cairns. It was impossible to exaggerate the importance of the decision at which they had arrived, because it was a decision which might affect the happiness of any married man who had the misfortune to be a widower. A man might be exposed to interference to which he had never been exposed before. It became them,

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  therefore, to watch whether the securities were sufficient to save a father against whom there might be no complaint from undue and improper interference. The language of the noble and learned Lords who had spoken was very different from that of the Bill. They said it was necessary, where a wife was living separate from her husband, and the father's influence would be dangerous to the children, that they should be saved from his influence; but there was nothing of that kind in the Bill. If their language could be imported into the Bill he should not have so much objection to it. The Bill said nothing of the cases to which the Lord Chancellor had referred, or of a father who wilfully corrupted his children's mind. It allowed a wife, by a will secretly made and locked up in her desk, to appoint any guardian or guardians, male or female, no matter what their character or capacity as guardians, who were to have equal power with the father; and if there were two of them they could outvote the father in everything which appertained to the bringing up and management of his own children. What security was there that the wife would exercise such a power wisely? None whatever. Of course, in a vast number of instances the power would not be exercised at all, or if it were it would be rightly exercised; but there might be a case where a woman, living in loneliness, subject to the influence of mischievous or gossiping persons, misled by false stories, or guided by mistaken spiritual advisers, might exercise this power in circumstances which would make it improbable that she was exercising it wisely. The mother would have the power of projecting into the family of the father two representatives of her own, who would have the right of determining how the children should be educated. Let their Lordships consider what cases might arise. There might be the case of a Catholic or a Protestant mother, the father being of the opposite religion. Or there might be a very Low Church father and a very High Church wife, and the latter might appoint two High Church guardians, who would proceed to bring up the children in a manner wholly opposed to the wishes of the father. The Bill would enable the wife to exercise after her death a. power which she could not
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  have exercised while living. The two guardians appointed by her would obtain a power which she never possessed, and however odious they might be to the father, she, being dead, would be incapable of retracting what she had done. Keeping cases of scandal out of view altogether, they would wreck hundreds of households if they were to allow guardians to be forced into a family at variance with the opinions of the father. The father might be a man who took an old-fashioned view as to the way his daughters should be educated. The wife might be a strong-minded woman, and appoint as guardian a woman with a taste for male studies and occupations. They might, on the other hand, have a father with an austere view of the duties of life, and wished to bring up his sons in virtue and frugality, and perhaps an undue abstinence from the amusements of the world; and the friends of the wife might be of an opposite character. They might be persons who had a great love of amusement, who might, perhaps, attach an exaggerated importance to our great national sports at Epsom and Newmarket. What would be the effect on the children? It was bad enough for the father, for he could not imagine anything more deplorable to a father than having his children wrested from him in this way, and brought up in a manner he did not approve of. But what would be the effect on the children? There would be constant squabbling between the father and the guardians as to what kind the religious teaching should be—what morality should be considered right or wrong. It would completely wreck the morals and the faith of the children, who would see those who had the bringing of them up differ on every point on which their bringing up depended. He was aware the answer would be that this was not to take place unless a Court deemed it necessary and desirable. No doubt, there was a great deal of majesty in a Law Court, and his noble Friend thought he had disposed of every question when he said it would be decided by a Court. For his own part, however, he was not an absolute believer in the divinity of a Court. He was not prepared to give that absolute confidence to the Court except under well-defined conditions. Under the Bill, if only a single Judge thought it desirable not to interfere

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  with, the dying wishes of a wife, the guardians she appointed would be thrust upon the father.
  THE LORD CHANCELLOR: No, no. The burden of proof was the other way.
  THE MARQUESS OF SALISBURY: The words of the Act were—
  "The court, after her death, if satisfied that such appointment is necessary or desirable for the welfare of the children," &c.
  He did not say that in a considerable number of cases the Judge would not insist on confining the confirmation to cases of proved incapacity or unfitness of the father; but they had no security whatever that that would universally be the case. If they laid down in an Act of Parliament what they required to be done, no doubt the Judges would give effect to their wishes; but if a Judge were to decide, without any guidance whatever, whether he would set aside the nomination of guardians by the mother, the decision would be left absolutely to the accidents of his own individual disposition. The Judge's intentions might be good, but then he might be a man with peculiarities. For instance, he might think that religion was not of much importance. He had been treating the matter on the supposition that the High Court would have to decide the question; but, under the provisions of the Bill, a County Court Judge would have the power of forcing guardians into a family at the will, perhaps, of a wicked, an infamous, or a frivolous wife. He could not conceive that their Lordships would, with light hearts, make such a revolution in all English families as was shadowed forth by this Bill. If words were introduced to supersede the father, where he was shown unfit to have the guardianship, he would not resist any such proposal; but the Bill, as it stood, seemed to him to be the greatest interference with the rights and privileges which men valued more than they did their own lives, on the mere opinion of a County Court Judge. To oust the father from all care of his own children seemed to him so unwise, and so unlike anything ever done in legislation before, that he earnestly hoped the House would pause before agreeing to it. He thought the best plan would be not to divide, but to bring up a clause dealing with those cases on which they were all agreed.
  EARL GRANVILLEsaid, the noble Marquess had spoken in an impassioned way against reference to the opinion of the late Earl Cairns, and had called on their Lordships not to allow their minds to be biassed by what had been said in that connection, and then the noble Marquess proceeded to give a very strong expression of opinion on the part of Earl Cairns against the Bill, which, it appeared, had been confided to the noble Marquess last year. He (Earl Granville) thought it better to be guided by the public utterances of Earl Cairns; and, so far as he knew, Earl Cairns had never expressed his opposition to this Bill, though he had said it was a Bill which required great care and attention with regard to its details. Acting upon that opinion, Lord Cairns suggested that the Bill should be referred to a Select Committee, and in that Select Committee he took immense pains himself. It was an extraordinary thing for the noble Marquess to ask the House to vote against a clause on the authority of Lord Cairns, which Lord Cairns himself had framed. The noble Marquess went further, and made a speech in which he spoke of the danger of giving a posthumous power to a wife to overrule her husband in respect of guardians, and then, at the end, the noble Marquess anticipated what their answer would be—namely, that they should read the words of the clause, which showed that there was no such power given. The Bill provided simply that the Court should have power to intervene, and if it thought proper might confirm the appointment of the guardians so nominated. But if the noble Marquess was right, the argument was strong against the power which the Court of Chancery possessed in regard to children. Then he said he was putting his case too weakly; this decision was to be taken, not by a Court of Chancery, but by a County Court Judge.
  LORD ELLENBOROUGH: Hear, hear!
  EARL GRANVILLE: Of course the noble Lord was quite right to cheer his Leader, whatever he might say. But he was going to state what was in the Bill itself. If the noble Marquess had read the Bill, he would have found that it was in the option of either of the parties to go to the County Court Judge or require the case to be taken to a higher Court,

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  and if first decided by the County Court Judge, there was a right of appeal to the highest Court in the Kingdom. He really never saw a case which more completely disposed of the arguments of the noble Marquess than the present.
  LORD BRAMWELLpointed out that by the 5th clause of the Bill the wife would have the power to go to the Court in the lifetime of her husband; and it occurred to him that unless some such provision as that under consideration were inserted, the wife, if she had reason to be dissatisfied with her husband, would be almost driven to go to the Court in his lifetime to get the power to appoint guardians, and scandals would thereby arise which otherwise would never be made public.
  Amendment negatived.
  On Question, That Sub section 2 stand part of the Bill?
  VISCOUNT CRANBROOKsaid, he hoped the clause would not be struct out altogether, as he felt the force of the remarks of the noble and learned Lord who had just sat down, as the wife might be driven into Court to do what, under the Bill, she could do in private. He thought it would be most undesirable to drive the husband and wife into a quarrel. There were many cases in which a wife would endure a great deal for the sake of the children rather than raise a scandal.
  THE DUKE OF RICHMOND AND GORDONsuggested that it would be well to strike out this particular clause then, and to bring up another clause which would more completely meet the views of noble Lords on the third reading. He thought the power of the wife in respect to appointing guardians to act after her death should be confined to cases in which the husband had been guilty of misconduct as to make him an improper person to have the absolute control of his children. What was desired was, the introduction of words which would set out the cases in which it would be desirable the wife should have the power to appoint guardians.
  THE LORD CHANCELLORhoped his noble and learned Friend would not agree to the suggestion. It would be better to amend the clause on the third reading if thought necessary.
  On Question? Their Lordships divided:—Contents 42; Not-Contents 28: Majority 14.
  Amendment disagreed to.
  Clause agreed to.
  Clause 5 (Court may make orders as to custody).
  EARL BEAUCHAMP EARL BEAUCHAMP moved an Amendment limiting the power of the Court to make an order to cases in which the father and mother are separated by deed or decree of a Court or otherwise. He explained that the Amendment was drafted and proposed by the late Lord Cairns, when the Bill was before the Select Committee. If some such alteration were not introduced into the clause a mother would be able to make an application to the Court upon any frivolous pretext. To prevent such occurrences the power of applying to the Court ought to be limited to cases where the parents had separated. Under the clause as it stood husbands would be at the mercy of their wives, should the latter choose to carry their domestic quarrels into Court.
  Amendment moved,
  In page 2, line 12, to insert at the beginning of the clause ("Where the father or mother of any infant are living separate under a separation by deed or decree of the Court or otherwise.")—(The Marl Beauchamp.)
  LORD FITZGERALDopposed the Amendment. There was no public expression on the part of Lord Cairns as to the proposal contained in the clause. Was it not a shocking thing that this right should not be given to the wife unless she was divorced or lived separately from her husband?
  LORD BRAMWELLsaid, that by the clause as it stood when the husband and wife were living together the wife might require the Court to make an order, the effect of which would be to transfer the control of the children, which the father now rightly possessed, to both father and mother. That would be a Dual Control of the most vicious kind. The reason why this right should be given. to the wife when living separately was that she was no longer a member of the household, and then it might be proper that she should have a voice in the management of the children. When husband and wife were separated in that way there was no increase of scandal

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  in her going to the Court. What he remembered that great lawyer and. consummate Judge, whose loss he so much regretted, did when he dealt with this provision was, he objected to it on the ground, among others, that every little quarrel between husband and wife, which might otherwise be easily made up would enable her to rush off to the Court.
  LORD BRABOURNEsaid, that whilst the Law Lords on the Select Committee had differed upon this Amendment, the three Lay Lords had all voted against it; and as he had the honour to be one, he wished to say why he had ventured to dissent from Lord Cairns's opinion. In most cases of husband and wife disagreeing, the wife would never desire to apply to the Court, and the question would never arise. But there might be cases—as for instance, when it had been agreed before marriage that the children of one sex should be brought up in one religion, and those of the other sex in another—in which the wife might desire so to apply. If this Amendment were carried, she could not do so whilst she lived with her husband; but the moment she separated from him, "either by the decree of a Court or otherwise." she could make the application. Therefore, this Amendment would offer a direct premium to the wife to separate from her husband, by making that separation the only way by which she could acquire a right which it was generally conceded that she ought to have. His (Lord Brabourne's) noble and learned Friend (Lord Bramwell) said that the clause without the Amendment would strike at the supremacy of the husband; but he should recollect that the whole of this Bill was based upon the desire to elevate the status of the mother, and give her a greater right over her children than she had hitherto possessed, and if his noble and learned Friend wished to maintain unimpaired the entire supremacy of the husband, he should have opposed the Bill upon its second reading.
  On Question? Their Lordships divided:—Contents 28; Not-Contents 30: Majority 2.
  Amendment disagreed to.
  Clause agreed to.
  Bill to be read 3a on Thursday next.

PUBLIC HEALTH—CREMATION.

  QUESTION.
  THE EARL OF ONSLOWsaid, he wished to call attention to the erection of a public crematorium at Woking, and the cremation of a body there on the 26th of March last, and to inquire, Whether Her Majesty's Government would use whatever powers they had in the matter for the discouragement of the practice?
  THE EARL or DALHOUSIEasked what powers the noble Earl referred to?
  THE EARL OF ONSLOWsaid, he understood the Home Secretary to state in "another place" that Her Majesty's Government had power to discourage the practice.
  THE EARL OF DALHOUSIEsaid, he was not aware of the existence of such power. Some time ago the Government was asked to legislate, with a view of surrounding the practice by certain safeguards. The reply of the Secretary of State was that the people of this country were not in the least inclined to adopt cremation as an ordinary mode of disposing of the dead. He would, however, endeavour to ascertain what the views of the Home Secretary were upon the subject, so that he might be able to give the noble Earl a more satisfactory answer if he desired it.
  THE EARL OF ONSLOWsaid, he would repeat the Question on a future occasion.

  METROPOLIS (TABARD STREET, NEWINGTON) PROVISIONAL ORDER CONFIRMATION BILL [H.L.] (NO. 81.)
  A Bill to confirm a Provisional Order of one of Her Majesty's Principal Secretaries of State for the improvement of an unhealthy area situated at Newington, within the Metropolis: And
  METROPOLIS (HUGHES FIELDS, DEPTFORD) PROVISIONAL ORDER CONFIRMATION BILL [H.L.] (NO. 82.)
  A Bill to confirm a Provisional Order of one of Her Majesty's Principal Secretaries of State for the improvement of an unhealthy area situated at Deptford, within the Metropolis: Were presented by The Earl of DALHOUSIE; read la; and referred to the Examiners.

  LOCAL GOVERNMENT (IRELAND) PROVISIONAL ORDERS (PUBLIC HEALTH ACT) (NO. 2.) BILL [H.L.] (NO. 83.)
  A Bill to confirm certain Provisional Orders of the Local Government Board for Ireland re-

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  lating to the Drumcondra, Clonliffe, and Glasnevin Township, and to waterworks in the town of Cavan: And

  LOCAL GOVERNMENT (IRELAND) PROVISIONAL ORDERS (LABOURERS ACT) (NO. 3) BILL [H.L.] (NO. 84.)
  A Bill to confirm certain Provisional Orders of the Local Government Board for Ireland under the Labourers (Ireland) Act, 1883, relating to the Ballymahon, Carrick-on-Shannon, Enniscorthy, Gorey, Kanturk, Longford, Wexford, and Youghal unions:
  Were presented by The LORD PRESIDENT: read 1a: and referred to the Examiners.

  ARBITRATION BILL [H.L.]
  A Bill to consolidate the law relating to arbitration—Was presented by The Lord BEAM-WELL; read 1a. (No. 85.)
  House adjourned at Seven o'clock, to Monday next, a quarter before Eleven o'clock.