Lords Sitting of 23 March 1886

MINUTES.
PUBLIC BILLS—First Reading—Idiots* (46).
Second Reading — Union of Benefices (20), negatived; Burgh Police and Health (Scotland) (28).

PRIVATE BILLS.
Ordered, That no Private Bill brought from the House of Commons shall be read a second time after Friday the 25 th day of June next:
That no Bill originating in this House authorising any inclosure of lands under special report of the Land Commissioners for England, or confirming any scheme of the Charity Commissioners for England and Wales, shall be read a first time after Tuesday the 11 th day of May next:
That no Bill originating in this House confirming any provisional order or provisional certificate shall be read a first time after Tuesday the 11 th day of May next:
That no Bill brought from the House of Commons authorising any inclosure of lands under special report of the Land Commissioners for England, or confirming any scheme of the Charity Commissioners for England and Wales, shall be read a second time after Friday the 2nd day of July next:
That no Bill brought from the House of Commons confirming any provisional order or provisional certificate shall be read a second time after Friday the 2nd day of July next:
That when a Bill shall have passed this House with amendments these orders shall not apply to any new Bill sent up from the House of Commons which the Chairman of Committees shall report to the House is substantially the same as the Bill so amended:
That this House will not receive any petition for a Private Bill after Friday the 16 th day of April next, unless such Private Bill shall have been approved by the Chancery Division of the High Court of Justice; nor any petition for a Private Bill approved by the Chancery Division of the High Court of Justice after Friday the 14 th day of May next:
That this House will not receive any report from the Judges upon petitions presented to this House for Private Bills after Friday the 14 th day of May next:
Ordered, That the said orders be printed and published, and affixed on the doors of this House and Westminster Hall. (No. 45.)

UNION OF BENEFICES BILL.— [No. 20.]
(The Earl of Milltown.)
UNION OF BENEFICES BILL.— [No. 20.]

  SECOND READING.
  Order of the Day for the Second Reading read.
  THE EARL OF MILLTOWN, in moving that the Bill be read the second time,
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  said, that its object simply was to extend to churches in the Metropolis and their sites the same protection which was now provided for similar edifices every where else in the country Churches which had been consecrated were protected both by the Common Law of the country and by Statute Law. Only so recently as 1884 their Lordships passed a Bill dealing with disused burial grounds in the Metropolis. That Bill had been passed in consequence of the great indignation throughout the country at the desecration of old burial grounds in the neighbourhood of London by utilizing them for building purposes, and were it not for the peculiar way in which that Bill exempted from its provisions the Union of Benefices Act 1860, he would not have troubled their Lordships with the present Bill. The Union of Benefices Act of 1860 was passed with the object of consolidating certain church parishes in the neighbourhood of London and elsewhere, on the ground that their churches were no longer necessary for Divine worship, and it provided funds, which were vested in the Ecclesiastical Commissioners, to be used chiefly for the extension of churches elsewhere. It was provided by that Bill that where a church was to be pulled down another was to be built elsewhere. There was a provision that ancient churchyards were not to be sold, but were to be preserved; but, curiously enough, though the churchyards were exempted from desecration, the church itself was permitted not only to be pulled down, but its site to be sold to the highest bidder by public auction, so that it might be used for any purpose whatever. It was a singular thing that while the minor was protected the major was exposed to desecration. Now, he did not require to demonstrate that it was unnecessary to pull down these churches. All he asked was that if it was necessary to pull them down their sites should be respected. It would be easy, if necessary, to demonstrate that the destruction of these churches was wholly uncalled for. These City churches, with few exceptions, had a double claim to protection, not only as being the last resting-places of the dead, but also as having been the site of buildings which had been for generations the temples of the living God. It was true the City churches were no longer surrounded by

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  such large populations as formerly; but still the week-day population of the City was enormous—something like 1,000,000—while the Sunday population was considerably more than was generally supposed. The City churches had been grossly neglected; they had not had fair play. What could be done by a great and earnest clergyman had been demonstrated in the case of St. Paul's, which, though chiefly visited by sight-seers years ago, was now crowded on Sundays with congregations of 9,000, and attended on week-days by very large congregations indeed. St. Paul's was not the only instance of this kind. It was a remarkable fact that the City churches which were scantily filled were those which had non-resident incumbents, whereas in others where there was a resident and hard-working clergyman the congregations were by no means so trifling as was usually supposed. Of the four churches referred to in the Bill, the first to which he would call attention was the church of St. Thomas, in the Liberty of the Rolls. It was a church of comparatively recent construction, having been in existence only 50 years and immediately adjoining it was a large vacant space of ground, more than three-quarters of an acre in size. The ground belonged to the Ecclesiastical Commissioners, who some five or six years ago cleared the ground of houses, whose inmates represented a very poor class, and having thus got rid of the population they now wished to sell the church. He could not help thinking that if this ground were utilized under the Artizans' low Hings Act of his noble Friend (the Marquess of (Salisbury), it would furnish an important addition to the homes of the working men of London, and that the presence of the church in their neigh bourhood might prove a great blessing. The incumbent was an old man, 77 years of age, who lived outside the parish. The next church to which he would refer was that of St. Olave, Old Jewry. In this case the living had been vacant for four years, which was not a satisfactory state of things. It was not always the resident population that formed the congregations of City churches, for many of the congregations came from a very considerable distance. The vestry clerk of St. Olave, Old Jewry, stated that the incumbency had been vacant for four years, and that the services were performed
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  temporarily by a gentleman who did not live in London. There were an enormous number of bodies buried under the church. The third church to which his Bill related was that of St. Catherine Colman, in Fenchurch Street. This living had also been vacant for four years, and the Bishop allowed a miserable stipend to the curate in charge who did the work. The clergyman in charge informed him that he had ascertained that since 1625 about 10,000 persons had been buried in the church and churchyard, and that many hundreds of people were interred there during the prevalence of the plague and the sweating sickness. To disturb the remains might be dangerous to the living; and that really was the case some years ago at Eyam, in Derbyshire, where the old burial ground was disturbed. The last church to which his Bill referred was that of the Holy Trinity in the Minories. It was a quaint old building, erected on the site of an ancient house of Minor friars. Large numbers of persons had been interred in the church, some as late as the year 1849. It was impossible to exaggerate the immense amount of decaying humanity which really constituted the soil. Yet on this site, which it was proposed to sell by public auction, it would be necessary, if a gin palace or a warehouse were erected in place of the church, to dig up the most horrible mass of decomposition which could be imagined. It was stated that deconsecrating services were held before churches were pulled down; but he could not imagine what those services were. Whether the prayers were read backwards or not it was difficult to say. The Law Times stated that when a burial ground had once been consecrated nothing short of an Act of Parliament could divest consecrated ground of its sacred character, and that "the sacred character of the ground is part of the Common Law of Europe." Such were the facts, shortly stated, as regard these four benefices. He asked their Lordships to pass his Bill on four grounds—first, that it was offensive in the highest degree to Christians that the House of God should be desecrated for perhaps the vilest purposes; secondly, that the desecration was a disturbance of what was intended to be the last resting place of the dead; thirdly, on sanitary grounds, because the removal of

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  the remains would cause great danger to health; and, fourthly, to enable the number of open spaces in the City to be increased, supposing it were necessary to pull down the churches. To show the injury to health which resulted from the disturbance of these old graveyards, he might refer to the opinion of Sir Gilbert Scott, who stated that in these old churchyards the whole soil was composed of a mass of decayed human remains and half-decayed bodies, which could not be removed without injury to health. He would ask their Lordships to accept the Bill, because it would increase the singularly limited number of open spaces in the City. The sites of the old City churches which were burnt down in the Fire of London and not rebuilt were carefully preserved. He regretted that the right rev. Prelate should have placed on the Paper a Notice in opposition to the Bill. He did not think that in these days when Disestablishment was in the air this was a wise course. Even the Liberation Society did not ask that the churches should be destroyed and their graveyards desecrated; and it was a source of infinite pain to himself and many others that the man of all others to be engaged in this work should be the Bishop of London. He would ask their Lordships by reading his Bill a second time to put an end to this scandal—he asked in the name of decency, which was outraged; in the name of the living, whose health was seriously endangered; in the name of the dead, whose last resting place was disturbed; and finally, and most reverently, in the name of God, that an end might be put at once and for ever to this uncalled for and horrible desecration of the place where His honour dwelleth.
  Moved, "That the Bill be now read 2a."—(The Earl of Milltown.)
  THE BISHOP OF LONDON (Dr. TEMPLE), in moving that the Bill be read a second time this day six months, said, that the Bill would have been more correctly designated as one not to amend, but to repeal, the Act of 1860, because to give practical effect to it would necessarily be to repeal that Act. The Act of 1860 was passed on the ground that there were a large number of churches in the Metropolis which had become useless in consequence of the
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  population having entirely left them, and that there was at the same time a large population all around, and increasing yearly in almost unmanageable proportion, for whom it was exceedingly difficult to provide accommodation for worship. It was thought but reasonable that churches standing where they were not wanted should be transferred to places where they were so much required. That was the principle of the Act of 1860. The chief answer to this Bill he should put before their Lordships would be to lay some of the leading facts before them, so that they could estimate what had actually taken place under the Act of 1860. Under that Act the sites of 11 churches had been sold. A Return moved for in 1879 showed that 10 churches had been then sold, and one sale had occurred since. These 11 churches had been removed, the sites sold, and the proceeds applied in accordance with the principle he had indicated. After meeting all expenses and compensating all interests that had to be compensated under the Act, the whole amount realized by the sale had been £242,650. Out of that sum £180,152 had been spent in the erection partially or entirely of 43 new churches in poor and populous districts of the Metropolis. The sum of £17,950 had been appropriated for the endowment of five of these churches; £12,980 had been spent in the erection and improvement of parsonage houses, and £27,168 on the repair of the churches of the united benefices. There remained a sum of £4,400 which the Commissioners were obliged to keep in hand for the present to meet certain contingencies. Their Lordships would, with these facts before them, see what the meaning of the Act of i860 was, and understand what had been done. Numerous scattered populations existed around London without churches at all. The difficulty of providing them with churches was enormous. The want was partially met by what was known as the Bishop of London's Fund, which was started 23 years ago, by private munificence, and by the sale of the sites of churches under the Act of 1860; but they were still short of churches and were still unable to keep pace with the growing population. The rate of growth of the population in the Metropolis was 45,000 a-year, a little more than the total number

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  of inhabitants in the City of Exeter. They sought for money in all directions in order to provide churches; but even with the £250,000 derived from the sale of 11 City churches, they were unable to do the work. Was this work now to be suddenly cut short? Was it consistent with their duty to the people that in order to indulge a very respectable, a very honourable sentiment, they should refuse the means that had been hitherto employed for providing places of worship for the people? He would give the House a few instances of what had been done. The parish of St. Martin Out which contained a population of 421 souls, although it was united with the neighbouring parish. The church was sold for the sum of £37,631, out of which the Commissioners provided, at a cost of £24,138, churches for the new district of Holy Trinity, Dalston; Christ Church, Stepney; and St. Peter's, Limehouse, the populations being respectively, 7,332, 8,186, and 10,000. The church of St. Helen, Bishops gate, was also repaired, at a cost of £3,000, and a sum of £8,000 invested in Consols to meet certain annuities would be available at a subsequent date for church building. All the people in the parishes he had mentioned had been provided with places of worship by the sacrifice of a church of the parish in which there was not 400, and which by union with an adjoining parish only amounted to 420. The church of St. Benet. Gracechurch, was sold for £23,894. The population of that parish and of another with which it was united amounted to 481. Out of the proceeds of the sale the Commissioners erected, at a cost of £7,257, a new church for St. Peter's, Stepney, with a population of 9,448 souls, and provided £9,000 as an endowment; £4,000 was appropriated to the improvement and enlargement of All Souls', Holloway, and £1,500 was spent on parsonage-houses for the benefice. If it had been possible to provide for all the religious wants of the Metropolis without touching these churches he should have been glad, although it must be remembered that very fierce attacks had been made upon the Church for retaining such a valuable mass of property as the City churches locked up in a useless form. The population in many of the
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  City parishes was almost nominal. There was, for instance, a church in Thames Street with a population of 92, another in Wood Street with a population of 84, and there was St. Alphage, London Wall, with a population of 45; it was only right, therefore, that the churches should go whither the population had gone. He met the objection of the noble Earl that these City churches ought not to be touched because they had been consecrated to God, by pointing out that there were many cases in the Old Testament of land and other things which had been given to God being redeemed to secular uses. Although he admitted that consecration was a very solemn thing, and that it ought only to be set aside by Act of Parliament, yet he doubted whether any part of Europe was under so strict a law in this respect as the noble Lord proposed to enact for this country. He was certain that the Roman Catholic Church permitted consecrated lands and buildings to be redeemed to secular uses, and it would be contrary to the character of the Church of England to lay down a hard and fast line that would prevent the exchange of consecrated property for that in which the service of God could be better and morn appropriately conducted. He thought that the argument of the noble Lord with regard to the removal of the dead necessitated by these exchanges was of far more force than that which related to consecration; nevertheless, where such removals had hitherto been effected every proper precaution had been taken to insure decency. With regard to the sanitary question raised by the noble Earl, he wished to point out that no evil results had followed the removal of the dead in the case of the 11 City churches which had already been removed. It was absurd to object to the sale of the sites of these churches on the pretence that they would afford open spaces in the heart of the City, inasmuch as the sites of the 10 churches already removed—he had not the measurement of the 11th—did not form an aggregate space of three-quarters of an acre, and it was not to be supposed that such an area cut up into 10 small pieces would be any very perceptible addition to the open spaces of the City. He was fully aware of the objection there was to a non-resident clergy. No

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  one regretted this in the case of the City churches more than he did; but it was due to the difficulty and, in many cases, absolute impossibility of obtaining parsonage-houses. The importance they attached to having a resident clergy was proved by the provision they had made with reference to the new churches in this respect. He fully admitted that the sentiment which had been displayed by the noble Earl was a very proper one; but he thought that it should not be allowed to override such considerations as those which he had stated. If they were to override those considerations, he put it to the House that if Parliament was in all cases to stop the removal of a church on the ground that it had been given to God, they must apply the same rule whenever a new street or anew railway were made in a town, and it was proposed to remove a church for such an improvement. They must resolutely put a stop to every improvement, either in London or any other large city, wherever it interfered with consecrated ground, and still more if it interfered with a burial ground. He knew that local improvements involving operations of that kind had been made in different places; and the alleged scandal in the present case therefore appeared to be not that they were removing churches or the dead, because they did that for secular purposes, but that they were doing it in the service of God. But if the convenience of mankind and the ordinary improvement of cities were sufficient to justify such things, far more so were the spiritual needs of the large population with which they had to deal; and he trusted that the House would not put a stop to a work which was doing God service to such a degree as he was constantly a witness of wherever he went in the Metropolis. As he went from church to church he found an active clergy devoting themselves with all their strength to the good of the population among whom they lived. Only yesterday he was at an 8 o'clock evening service in a church far in the East which was provided by such means as those. He saw a large and earnest congregation with a clergyman who was evidently carrying his people with him, and he thought that such a work as that which was now going on at all times ought not to be checked. Therefore,
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  while fully admitting the force of the sentiments expressed by the noble Earl, he said that they ought to be limited by the consideration of what was best for God's service and the good of mankind.
  Amendment moved, to leave out ("now,") and add at the end of the Motion ("this day six months.")—(The Lord Bishop of London.)
  THE EARL OF POWISwas understood to say that the Act of 1860 dealing with that subject was the result of a careful and well-considered compromise, and he did not think that the noble Earl had made out a case to show that it was now necessary to interfere with the arrangement then made.
  THE ARCHBISHOP OF CANTERBURYsaid, he felt very strongly the force of the arguments against disturbing the remains of the dead or interfering with buildings which had been so long consecrated, and he owned that for a very long time those sentiments had prevailed with him; but when he looked at the spiritual necessities of the neighbourhood of London, which were so constantly multiplying, he was not able to maintain his sentiment against his sense of those necessities. He desired to see all that was possible done to restore the use of those ancient churches, and to bring their clergy near to them and congregations within them. But when all was done that could be done, there would remain many churches which had little practical use. They ought not to be misled by the speech of the noble Earl as to imaginable uses to which the relinquished sites of churches and churchyards might be put. It was only in one sense they were parted with when the worth of them was applied to the noblest and holiest uses. When they saw that the population of London was increasing at the rate of 40,000 or 50,000 a-year, they must ask themselves whether sums could be raised by gift or in any way by which the spiritual needs of those people could be adequately met and the services of the Church provided for them; and even if such could be raised—as they knew they could not—they needed to be spent in still further increasing the spiritual ministrations required for that population. But at present the very existence of those churches, with the immense wealth attached to them

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  so unserviceable and uselessly, was an actual hindrance in men's mouths to the progress of church extension, and would remain so, while their sale would enable thousands to be provided with religious services where but scores were so provided for before. The utmost care ought indeed to be taken in making the choice of those to be removed, and further in dealing with the buildings and with the ground; but he could not agree with the noble Earl that every parting with things that had been given to God was unknown to the Church. The term desecrate was corruptly used in the sense of profaning; but the word dese-crare was technically parallel to the word consecrare and meant to remove the sacred character attached to a thing. In old times some of the most touching and most striking incidents in Church history was the way in which great famines and pestilences were met. It would be within the recollection of their Lordships how the most precious treasures of the Church—even chalices which had held the consecrated element—had been sold in order that the proceeds might be distributed among the poor. He thought they would not dispute that this was a holy use to which jewels could be put. If they looked at the object with which the pious founders of old days granted these gifts, surely it would be acknowledged that in the churches already removed, seed had been sown which had wonderfully increased and grown, and was now, through that removal, bearing fruit to man and to God thirty-fold and even sixty-fold.
  THE EARL OF MILLTOWNsaid, he did not propose to go to a division after what had been stated by the most rev. Prelate. At the same time, he was bound to say, with reference to the statement that the new churches were well attended, that he was credibly informed that many of the new churches were not so well attended as those which had been pulled down. The people of the City of London thought it a hardship that they should be called upon to supply this spiritual destitution of others by the sacrifice of their own churches. They considered it a system of robbing Peter to pay Paul; and they naturally asked whether the charity of this great country was not sufficient to supply the spiritual destitution without pulling down the ancient houses of God.
  On Question, That ("now") stand part of the Motion?
  Resolved in the negative.
  Amendment agreed to.
  Bill to be read 2a this day six months.

INDIA—ADMINISTRATION OF JUSTICE.

  MOTION FOR AN ADDRESS.
  LORD FITZGERALD, in moving for—
  "A Return of the taxes and duties raised or levied on the administration of justice in India during the year 1885, whether by stamps, ad valorem duties, or otherwise, under the Act of the Governor General of India in Council in 1870, or any of the Acts referred to therein or otherwise; and that the subject of the taxation of justice in India may be referred to the Select Committee on the operation of the Act for the better government of India (1858), and certain other Acts relating to India,"
  said, that this was a matter of considerable importance, affecting, as it did, the welfare of the inhabitants of India, representing a population of 250,000,000 persons. The matter might appear to be a very small one in the eyes of their Lordships; but he could assure them that it was of very great interest to the Indian people. He was impelled to bring forward this Motion by a sense of public duty; and he would endeavour to explain why he had taken the subject up. He was a Member of the Indian Committee which sat in 1853, and to whose labours they were indebted for the Government of India Bill of 1858. While sitting on that Committee his attention had naturally been directed to three subjects—the administration of justice in India, the judicial appointments, and the taxation of justice in India. Petitions were presented to the Committee from Indian subjects relating to the taxation of justice. The following was an extract from one of the many Petitions presented:—
  "Your petitioners have to complain of a heavy taxation on all law proceedings by means of using stamped paper rising from 2s. to £200 on plaints and petitions alone, and which way-lay the suitor at every subsequent step. 'Where is your stamped paper?' asks the Judge; if not produced he is obliged to stop the pleader and the suit. An error in the stamp is often irremediable, and the constant cause of a failure of justice."
  Pestonjee, a leading Indian witness before the Committee of 1853, in giving his evidence, said—

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  "I have another grievance to mention. Parties engaged in litigation are obliged to undergo very heavy taxation for stamped paper; the revenue from this is very large. Every plaint and every petition to either Court of Appeal must be written on stamped paper from one to 2,000 rupees, according to a certain scale. In addition, all supplementary sheets, all pleadings, exhibits, and all papers and documents relating in any manner to the suit are not received unless on stamped paper. It sometimes rises to 32 per cent."
  All economic writers agreed that—
  "The worst of all taxation is that on the administration of justice. It acted as a 'prohibition' and deprived man of everything by depriving him of justice. By means of this taxation the poor—that is, the bulk of the community, and especially the oppressed—were put out of the protection of the law."
  The proceedings of the Committee of 1853 terminated with the great Constitutional Act of 1858, which swept away the Board of Control and substituted for it a Government of the Queen and the present Government of India. Two years afterwards he ceased to be a Member of Parliament; but, returning to London 22 years after, it was his privilege to become a Member of the Privy Council. While sitting as a Member of the Judicial Committee of the Privy Council, he I found that many appeals from India were brought under the notice of Her Majesty. He returned to the questions which had interested him 20 years before, and with reference to the judicial appointments he found a wonderful improvement had taken place. Great progress had been made in India during that period in reference to the appointment of the Judges and the administration of the law. It was one of the greatest blessings to the Indian people that now they had a pure administration of justice, under Judges who might be thoroughly trusted. There existed among the Indian population the utmost confidence in the administration of justice; but while he found this improvement had taken place in the interval, he also found that nothing had been done potentially to reduce the amount of taxation on the administration of justice. There were general Indian Stamp Acts parsed prior to 1870; but they culminated in the Court Fees Act of 1870, passed by the Governor General in Council during the time of Lord Mayo. That Act was a regular sweep-net, from which there was no exception and no escape. It extended
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  to the whole of British India, and to all Courts, great and small, including the Small Debts Courts in the Presidency towns. By Schedule 1 of that Act the fee on the initiation of the suit advanced on a graduated scale from a suit where the value of the subject of litigation did not exceed five rupees—which was taxed at eight annas—up to an initiatory tax of 3,000 rupees—that was to say, £300)—according to the value of the matter in controversy. This was only the initiatory tax. Among the suits specified was one to recover possession of a wife. Then there were complicated and vexatious provisions for ascertaining the value of the subject of litigation. Every step in the cause was subject to a fee or tax. The defendant had his share to pay as well as the plaintiff. There were fresh taxes when the case was moved to the District Court of Appeal and to the Supreme Court. From the Parliamentary Abstract of 1877–8 he gathered that the receipts under the head of law and justice in India amounted in that year to £813,221. Stamps yielded £2,993,483, the greater part of which, according to a note by the compiler of the Abstract, was derived from fees on litigation. The expenditure on law and justice, on the other hand, was £3,555,000. The accounts for 1882–3 showed that the receipts for law and justice were £657,000, and for stamps £3,380,000, while the expenditure was £3,255,000. In 1883–4, again, the sale of Court fee stamps yielded £2,416,825. Probably the noble Earl the Secretary of State for India would tell their Lordships that the expenditure on justice in India was not, after all, more than the receipts, and that the charges, large though they might be, were not more than the people were apparently prepared to pay. But that was no answer at all; nor was it an answer to say that taxation on justice tended to prevent litigation. He had always looked upon the noble Earl as a pound economist, and he would doubt-less remember the doctrine laid down by Bentham on this subject, to the effect that "nothing can be worse than the taxation of justice." Expensive law deprived the poor man of his rights, it did not check litigation, and left a power of oppression in the hands of the rich. Justice was taxed in India in a way that would not be tolerated in this country; and his desire was to call attention

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  to the grievous injustice inflicted upon the millions of India in this matter, in the hope that some means might be devised to mitigate a great and crying evil.
  Moved, "That an humble Address be presented to Her Majesty for Return of the taxes and duties raised or levied on the administration of justice in India during the year 1885, whether by stamps, ad valorem duties, or otherwise, under the Act of the Governor General of India in Council in 1870, or any of the Acts referred to therein, or otherwise; and that the subject of the taxation of justice in India be referred to the Select Committee on the operation of the Act for the better government of India (1858), and certain other Acts relating to India."—(The Lord Fitzgerald.)
  THE SECRETARY, OF STATE FOR INDIA (The Earl of KIMBERLEY)said, the noble and learned Lord had brought under the consideration of the House a subject of very great importance; and no one was better qualified to explain it in all its details. It was, at the same time, a subject of extremely technical nature; and he did not propose to follow the noble and learned Lord through the details which he had placed so clearly before the House. He would, first of all, observe that his noble and learned Friend had been good enough to credit him with being a sound economist; and the quotation from Bentham, no doubt, went to show that justice should be made cheap. Notwithstanding the great authority of Bentham, however, one had yet to learn that justice was extremely cheap in England. In India, as his noble and learned Friend rather admitted, there was an extreme desire for litigation; and it was certain, at all events, that the fees which had been levied had not stopped litigation. Whether these fees had given too great an advantage to the rich he was not prepared to say; but that litigation went on in India on a very large scale was apparent to everyone. Undoubtedly the matter required attention; and complaints had been made that the fees were too high, and these complaints had been seconded by persons in authority. Sir Richard Garth, the Chief Justice of the High Court, Calcutta, had drawn attention to the subject in an interesting memorandum. The Viceroy and a Committee of the Legislative Council were now specially dealing with the question; and as long ago as 1881 a Bill was brought in by the Council which, though it was originally of a financial character,
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  had led to an examination of the whole question. In 1884 a Circular was sent round to all the Courts in India requesting information. There was a strong opinion in favour of revision of the institution fees; but, at the same time, it was impossible for Governments to leave finance out of sight. India was just now under great financial pressure, and it was absolutely necessary to consider the question, not merely with reference to the particular tax or fee, but to the whole financial position of the country. The Viceroy and the Government were desirous of removing any grievance which might be found to exist. As the question was of an extremely technical character, and was already in the proper hands for its investigation, he would appeal to his noble and learned Friend to withdraw his Motion. He deprecated his noble and learned Friend's proposal to refer this question to the Committee on Indian affairs which was about to sit. That Committee would not be precluded from inquiring into it. But, looking to the technical character of the matters involved, the Committee probably would not think it desirable to deal with them. He hoped, therefore, that his noble and learned Friend would be content with his assurance that the subject should receive the careful consideration of the Government, with a view to the redress of any grievances which might be proved to exist. With regard to the Return asked for by his noble and learned Friend, he might inform him that in the finance and revenue accounts of the Government of India a general statement would be found which would probably answer his noble and learned Friend's purpose. The Return asked for could not be obtained for a considerable time, and would involve a rather heavy expense, which he did not think ought to be incurred.
  In answer to Lord STANLEY of ALDERLEY,
  THE EARL OF KIMBERLEYsaid, that if the Committee should think fit to inquire into the subject, all the information in the power of the Government would be afforded.
  LORD FITZGERALDsaid, that as he was satisfied with the assurances that had been given him by his noble Friend the Secretary of State for India that the question was under consideration, he had no objection to withdraw his Motion.

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  But, in doing so, he must point out to their Lordships that the taxation of justice in. India was tenfold what it was in England.
  Motion (by leave of the House) withdrawn.

DISTURBANCES IN THE METROPOLIS—THE DUTIES OF SOLDIERS.

  OBSERVATIONS.
  LORD DE ROS, in rising to call attention to the uncertainty which existed as to what was expected of the military during mob riots in the Metropolis, in order to have their duties more clearly defined, said, that when the subject was under discussion the other evening in that House divergent views had been expressed by noble and learned Lords, and views which had not been generally accepted by officers in the Army. The Queen's Regulations said that the troops were not to be called out, except upon the request of the magistrates in writing, or upon occasion of great and sudden emergency. In case they were called out and loss of life should ensue in consequence of orders being given to fire if the troops were Infantry, or to charge whore they were Cavalry, the question arose who was to decide whether the action was justified. The only tribunal he could think of was a jury who might be empannelled to try the officer for his life who had given the order. An officer in such circumstances would be placed in a very awkward position, and one in which he ought not to be placed. The officer would practically have a rope round his neck, as if he acted precipitately he would be exposed to a trial by jury, and if he thought the circumstances did not justify his taking action he would be liable to be tried by a court martial for neglect of duty. He held that such a state of uncertainty ought no longer to be allowed to exist. When an officer was engaged in foreign war it was his duty to get as many of the enemy killed as he could, whereas in a civil disturbance he was bound to spare human life as much as he could. There was a well-known case in the year 1852 when soldiers were employed to escort voters to the poll. Disturbances arose and the soldiers fired without the command of their superior officer. Some lives were lost, and the men were put on their trial; but the Grand Jury threw out the bill
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  on the ground that the men were acting in defence of their lives. His own opinion was that the military ought not to be called out in aid of the civil power, except in the most extreme cases and in opposition to an armed mob, and should always be accompanied by a magistrate. He trusted that these few remarks might lead to a clearer definition of what was required of military officers when they were called out to aid the civil power.
  LORD HALSBURYsaid, he wished to point out the mistake of the noble Lord in regarding as a proposition of law what was simply advice as to the most prudent course to adopt. For instance, it was said that soldiers should not be called out, except in extreme cases. But the difficulty was that a case would arise when neither a magistrate nor a military officer was present. Since the discussion which took place on this subject the other evening he had perused the Judgment delivered by Lord Chief Justice Mansfield in the Exchequer Chambers. His Lordship said—
  "Since much has been said about soldiers, I will correct a strange mistaken notion which has got abroad that because men are soldiers they cease to be citizens. A soldier is gifted with all the rights of others, and is bound to all the duties of other citizens, and he is as much bound to prevent a breach of the peace or a felony as any other citizen. In 1780 this mistake extended to an alarming degree. Soldiers with arms in their hands stood by and saw felonies committed, houses burnt and pulled down before their eyes by persons whom they might lawfully have put to death if they could not otherwise prevent them, without interfering, some because they had no commanding officer to give them the command, and some because there was no justice of the peace with them. It is the more extraordinary, because formerly the posse comitatus which was the strength to prevent felonies must in a great proportion have consisted of military tenants who hold lands by the tenure of military service. If it is necessary for the purpose of preventing mischief or for the execution of the law, it is not only the right of soldiers, but it is their duty to exert themselves in assisting the execution of legal process or to prevent any crime or mischief being committed."
  That which the noble Lord opposite desired to lay down as a proposition of the law was impossible in the very nature of the case. It was a question as to what was necessary and appropriate violence to meet violence. The resistance must be made appropriate to the occasion, and to the degree and extent of the force against which it was to

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  be used. No absolute rule could be laid down, because the thing must depend upon the degree of the necessity and the urgency of the occasion. He did not believe that on the former occasion there was any real difference of opinion between his noble and learned Friends, the Lord Chancellor, Lord Bramwell, and himself, on the subject.
  LORD ELLENBOROUGHsaid, he thought that military officers had a considerable grievance in this matter, and ought to have some decisive legal opinion upon which they might rely in justification of their action when called upon, and the more so since the opinion of the Attorney General of the day, given in 1801, had until recently continued in the Queen's Regulations; but, in common with the modern childish practice, had been removed from Her Majesty's Regulations without being replaced by any similar authority of the present time for the guidance of officers placed in trying and difficult positions at a time of sudden tumult.
  LORD FITZGERALDsaid, the true answer to give to the noble Lord who had introduced the subject was to refer him to the Queen's Regulations, which set forth the duties of soldiers when called out in aid of the civil power. It was almost impossible for either officers or soldiers to err as long as those Regulations were followed. The Queen's Regulations laid down the duty of military men in the event of riots; but it should be remembered that they did not supersede the Common Law, and it was to that they must look to find what the soldier's duty really was. A soldier was bound by military law to act under the orders of his officer; but if the officer gave an unwise order, or one that he ought not to have given, and that could not be justified, the soldier, if he acted under it, was liable to the Civil Tribunals, and might be brought to justice. On the other hand, the soldier, had he refused to obey the orders of his officer, might be tried by court martial and punished. That was not a pleasant position for the soldier. Chief Justice Tindal, at the the trials following the Bristol riots, charged the Grand Jury as follows. He said—
  "By the common law every private person may lawfully endeavour on his own authority and without any warrant or sanction of a magistrate, to suppress a riot. He may disperse or
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  assist in dispersing, those who are assembled. He may stay those who are engaged in it from executing their purpose; he may stop or prevent others from joining in the riot; and not only has he authority, but it is his bounden duty as a good subject to perform this to the utmost of his ability. If the riot be general and dangerous he may arm himself to keep the peace. Such was the opinions of all the Judges of England in the time of Queen Elizabeth; but they added that it would be more discreet to be assistant to the justices in doing this.…. But if the occasion demands immediate action and no opportunity is given for procuring the advice or sanction of a magistrate it is the duty of every subject to act for himself and on his own responsibility in suppressing a riotous or tumultous assembly, and he may be assured that whatever is honestly done by him in the execution of that object will be supported and justified by the common law."
  In 1801 Lord Chief Justice Ellenborough, when Attorney General, gave an opinion on this subject, in which he said—
  "However, it is by all means desirable to procure a justice of the peace to attend, and for the military to act under his immediate orders, when such attendance and the sanction of such orders can be obtained, as it not only prevents any disposition to unnecessary violence on the part of those who act in repelling the tumult, but it induces also, from the known authority of such magistrates a more ready submission on the part of the rioters. But, still, in cases of great and sudden emergency the military, as well as all other individuals, may act without their presence, or without the presence of any peace officer whatsoever."
  In the absence of his officers and in the absence of a magistrate a soldier was bound in a sudden emergency to act as an ordinary citizen in suppressing riot. When a magistrate was present, and a soldier acted in execution of the orders of his Commanding Officer he was indemnified by statute. This was the state of the law, and in his opinion it would be better to leave things as they were rather than to disturb and upset a fabric which had been built up in the course of generations, and was well understood.
  LORD NAPIER OF MAGDALAobserved, that the House was exceedingly indebted to the noble Lord who had introduced this subject, because the soldier required, and ought to have, the most precise instructions in the civil law, which was superior to the military law under which he served. Soldiers were informed that in whatever they did honestly in the bonâ fide belief that they were discharging their duty they would receive the utmost consideration; but if a soldier were put upon his trial

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  by the civil power in respect of any act done by him, the Judge would have to be guided by the evidence and could show him no consideration whatever. The position of a soldier, therefore, under existing circumstances was very difficult. If he were attacked while on sentry duty by several people and he had the misfortune to kill one in defending his post he might find himself indicted for manslaughter. Thus he might suffer at the hands of the civil power for merely carrying out the orders of his superior officers. Not very long ago a sentry, having challenged a man who attempted to pass his post in the night, killed him and a verdict of "Manslaughter" was brought in against him. He thought, therefore, that the duties of soldiers in all circumstances ought to be very distinctly defined.
  THE LORD CHANCELLOR (Lord HERSCHELL)said, he was afraid that the noble Lord who had brought forward this subject had not obtained any very useful information, or derived any complete comfort or satisfaction, from the variety of views that had been expressed on this question by the different lawyers who had taken part in the discussion. He, however, did not think that there was so very much difference of opinion among them as regarded the law—it was the particular facts of each case that struck legal minds differently. But, however that might be, it could not be denied that officers and soldiers acted to a certain extent at their peril, or refrained from acting at their peril; and he quite agreed that it was desirable to make that peril as slight as possible. He did not think it was possible to remove that peril altogether, but, at the same time, he thought that when the matter was looked at from a practical point of view that peril would be reduced to a minimum. When they discussed the question theoretically it was possible to conceive all manner of cases in which a soldier might incur danger, which, however, never arose in actual practice. In looking at this question it could not be too strictly borne in mind that the duty of keeping the peace and of preventing riots rested primarily upon the civil force of the country acting under the civil power, and it was more important to bear that in mind now than ever it was. In former times it had been the practice to call in the aid of the military
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  on frequent occasions; but at the present day, when the organization of the civil force had been carried to so high a point of efficiency, it was very seldom that recourse need be had to the military to maintain order. There were, however, occasions when the civil power might properly call in the aid of the military force, and that aid should be given when regularly called for by the civil power. There might be cases in which it would become the duty of the military to give their aid to the civil power without its being regularly called for, and with regard to such cases it was impossible for any hard-and-fast rule without exceptions to be laid down. In general practice common sense would tell the military man when it was his obvious duty to take action without waiting for the authority of the civil power. But these cases would be very rare. It was impossible to define what a great emergency was, and it must be left to the military authorities to take upon themselves the responsibility of acting in each particular case. For instance, a soldier who saw a policeman being trampled to death by a riotous crowd would be justified in interfering for the protection of the policeman without waiting to be called upon by the civil power to take action. If the military acted on those lines he did not think that they would be likely to go wrong, or that they would often find themselves placed in positions of danger or difficulty. Of course, difficulties might arise in certain cases as to the amount of force which it was justifiable to use—thus, more force might lawfully be used in arresting a man who was committing a felony than one who was merely committing a misdemeanour, and these were legal distinctions which a soldier was not expected to understand. The case he had put was that of a soldier acting, not in his military capacity, but rather in that of an ordinary citizen, and he did not think that the instinct and judgment of a soldier was likely to be worse than that of any other man. He had endeavoured to place this matter before the House as free as possible from legal technicalities. The great thing to be borne in mind being that the duty of keeping the peace lay primarily upon I the civil force, that the military were only to be called for in the regular way by the civil power, and, the other cases

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  being exceptional, trust must be placed in the good sense and the good faith of the military to act properly.
  THE DUKE OF CAMBRIDGEsaid, that, as far as he understood, the noble and learned Lord on the Woolsack had said that the Queen's Regulations could not override the law. Nobody ever imagined that they could. But what military men wanted to see was that what was contained in the Queen's Regulations was really the law of the land. That was the point which, with all respect for the observations made by the noble and learned Lord, he had not been quite able to make out. It was laid down in the Queen's Regulations that wherever it was possible a magistrate was to attend. He understood from his noble and learned Friend that it was not necessary to read the Rio**t Act, but he himself believed that it was necessary. He did not pretend to say that it would be necessary in the case of an attack, because, if troops were attacked, they had a right to defend themselves, just as any one of their Lordships, if attacked, had a right to defend himself. And, if in doing so they had the misfortune to kill their adversary, they would, of course, be acquitted. The troops, if attacked as a body, would defend themselves as individual citizens. But he was under the impression that if the troops were called out to support the civil power, and the civil power found themselves no longer in a position to hold their own, or to carry out the necessary requirements of the law, then the Riot Act ought to be read before the troops were allowed to act. And yet after what had been said that night there was some doubt whether that was so or not. There ought to be no such doubt. He concurred with the Lord Chancellor that there must be great exceptions to ordinary proceedings. There were instances in everyday life which no one could foresee. A commotion might suddenly arise when there was no idea that anything was going to happen. In these cases, of course, they ought not to wait for the Riot Act to be read, but to act on the spur of the moment on their own responsibility. But the ordinary rules laid down in the Queen's Regulations did not make it at all as clear as he should like to see, and as every officer and man would like to see, how and in what circumstances he was to do certain things.
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  He thought that it would be a very desirable thing that, as far as possible, the Queen's Regulations should be made absolutely compatible with the ordinary and existing law of the land. It would be very desirable, after the discussion which had taken place, to put a case before the Government in order to ascertain the law on the subject, with a view to have the Queen's Regulations and the ordinary law so clearly going together that there could be no mistake or misunderstanding as to how, when, and in what spirit the troops ought to act when called upon to support the civil power.
  THE LORD CHANCELLORsaid, there was no doubt that an ordinary tumultuous assembly could not properly be dispersed by the military force until after the Riot Act had been read, because after that Act had been read it then became a felony to remain after being told to disperse; and the troops might use all the force that was legitimate for the purpose of preventing felony. But in the case of a mere ordinary tumultuous assembly, not meeting for felonious purposes, it was obvious that they would not be justified in resorting to the force that might be used in the case of felony.

BURGH POLICE AND HEALTH (SCOTLAND) BILL.
(The Earl of Elgin.)
BURGH POLICE AND HEALTH (SCOTLAND) BILL.

  (NO. 28.) SECOND READING.
  Order of the Day for the Second Reading read.
  Moved, "That the Bill be now read 2a."—(The Earl of Elgin.)
  LORD BALFOURthought it necessary to say a word or two with regard to this Bill. Their Lordships were aware, when the Bill was before the House last year, he had called attention to some of the provisions contained in it. It came before the House last Session, and ultimately it was referred to a Select Committee of their Lordships. As he believed he was the only Member of that Committee present, it was necessary to say a few words in regard to its procedure. They went through the Bill, which was a large and a long one, very carefully—first with written statements before them, and then called for oral evidence on such points as seemed necessary.

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  Ultimately they went through the Bill again, making amendments. He ventured to say that, as this Bill was introduced in almost exactly the same state as it left the Committee last year, their Lordships might safely pass it, and let it go to the House of Commons. He did not mean to say that, as it stood, it was a perfect Bill; he thought there were some points in it open to grave objection. But it seemed to him that those who were best entitled to speak for the inhabitants of the burghs to which it referred were practically unanimous that some such Bill was required. It was an attempt to codify the law which had reference to police matters; and although he and several of the Lords who sat on the Committee thought that any attempt to codify the Law of Burghs of all sizes in Scotland on all points was attempting too much, and that it would be much better to leave the larger towns and cities to their own Private Acts, and to attempt a codification of the law only for those smaller burghs which were more numerous throughout the country, he was not prepared to force his opinion upon the House or those chiefly concerned; and in all the circumstances, as the Bill had been carefully considered, he thought it would probably be the wisest course that it should go as soon as possible to the other House of Parliament, and be dealt with there. There were some points to which he should like to draw attention if the Bill reached the Committee stage. If the noble Lord who had charge of the Bill would allow him to confer with him before that time, probably 10 or 14 days before taking the Committee stage, he thought they should be able to arrive at a pretty general agreement with regard to most of the provisions contained in the Bill. If the noble Lord would put off the Committee stage, as he had suggested, that would give time for full consideration to the various parties interested in Scotland.
  THE EARL OF GALLOWAYsaid, he would confine his observations to one portion of the Bill—that referring to the police. Now, with respect to that, both the last and the present Government had given a pledge to bring in a Bill for the establishment of local government. The present Government he might describe, in the language of Mr. Chamberlain, as a "stop-gap Government;" but whether that were so or not, the present
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  Government, as well as the last, were under a pledge to bring forward this Session a Bill to establish Local Government Boards. The provisions of this Bill for placing the police under the different Municipal Authorities in Scotland would naturally be extended to the new Local Government Boards. It would be well, therefore, before passing those clauses in the third division of the Bill for the present Government to consider whether this was not now the time, rather than increase the number of local forces in the Kingdom, to establish one general Police Force of an Imperial nature. It was not by what had happened recently in the Metropolis, or in some other towns, that he made the suggestion but it certainly seemed to him that the Police Force, as at present constituted in Great Britain, might be made far more valuable. Their Lordships were aware that the Police Force was constituted half-a-century ago, when they were not acquainted with steam or electricity—or, at least, when steam was in its infancy. The result of those great discoveries brought us very much nearer to one another, and there was thus a necessity for a modification of the scheme of police. The Irish Police Force, for instance, was one of the finest Police Forces in the country, and that was principally because it was an Imperial Force, and not confined to one district. This Bill gave large powers in regard to the appointment and distribution of police in small burghal communities; and as they had the promise of a Bill somewhat of a similar nature dealing with all the rural districts of the country, he thought it would be well before passing this measure to give some further consideration to the matter of an Imperial Police.
  THE EARL OF ELGINsaid, he did not think it necessary to enter into any defence of the principles of a Bill which had already been confirmed by their Lordships. What had fallen from the noble Earl really touched the principle of the measure, and he could not agree to what his noble Friend had proposed. The noble Earl was in error in thinking that this Bill would increase the local Police Forces to any appreciable extent, for it was laid down in the Bill that no burgh which had less than 20 000 inhabitants should, after the passing of this Act, have a new separate system of police.
  THE EARL OF GALLOWAYsaid, he did not say it would increase the number of police, but the number of jurisdictions.
  THE EARL OF ELGINsaid, the Bill would not increase the number of Police Forces. With regard to what had fallen from his noble Friend opposite, he thanked him for what he had said, because the Bill now presented to their Lordships was, as the noble Lord had stated, the Bill which came from the Select Committee last year. He believed there had never been any discussion upon it since it was presented to the House by the Select Committee; and, therefore, anyone who wished to discover what changes had been made by the Select Committee would have to compare it with the original Bill, which, in the case of a Bill of 550 clauses, would be a somewhat laborious task. It might, therefore, be necessary for some discussion to take place upon questions of detail in Committee. The Government proposed to give ample Notice of any Amendments which they might think necessary; and he should be very glad if his noble Friend opposite would confer with him as to anything which he wished to suggest. He would now propose that the Bill should at present be set down for this day week, not with the intention of taking it that day, but in order to fix a day for the Committee stage.
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.

  IDIOTS BILL [H.L.]
  A Bill for giving facilities for the care, education, and training of Idiots and Imbeciles—Was presented by The Lord Chancellor; read 1a. (No. 46.)
  House adjourned at half past Seven o'clock, to Thursday next, a quarter past Ten o'clock.