Lords Sitting of 25 July 1889

NATIONAL PORTRAIT GALLERY BILL. (No. 144.)
Returned from the Commons with the Amendment agreed to.
GRANTS TO MEMBERS OF THE ROYAL FAMILY.
Message to the Commons for copy of the Report from the Select Committee.
TOWN HOLDINGS.
Message to the Commons for copy of the Report from the Select Committee.
COMMITTEE OF SELECTION FOR STANDING COMMITTEES.
Report from, That the Committee have added the Lord Archbishop of Canterbury, the Earl of Brownlow, the Earl of Kilmorey, the Earl of Kimberley, the Lord Bishop of London, the Lord Bishop of Rochester, the Lord Wemyss (E. Wemyss), and the Lord Kenry (E. Dunraven and Mount-Earl) to the Standing Committee for Bills relating to Law, &c., for the consideration of the Cruelty to Children Prevention Bill, read, and ordered to lie on the table.

SMOKE NUISANCE ABATEMENT (METROPOLIS) BILL. (No. 13.)
Order of the 31st of May last, re-committing the Bill to a Committee of the Whole House, read.
LORD STRATHEDEN AND CAMPBELL: My Lords, as the Bill which I have introduced dealing with this sub-
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ject has had the essence taken out of it by the Standing Committee, although the principle of the Bill has been frequently affirmed by this House, I think the Bill had better be withdrawn. I think the Standing Committee has acted ultra vires, and I have determined to withdraw the Bill. In conjunction with the Smoke Abatement Institute, of which the Duke of Westminster is Chairman, I am endeavouring to frame a new Bill, which I expect to be able to lay on the Table during the present Session.
Order discharged and Bill (by leave of the House) withdrawn.

MERCHANT SHIPPING (TONNAGE) BILL. (No. 174.)

  SECOND READING.
  Order of the day for the Second Reading read.
  LORD BALFOUR: My Lords, the object of this Bill is to remedy defects in previous legislation on this subject in regard to gross and registered tonnage of merchant shipping, as contained in the principal Act of 1854. The regulations there laid down are to the following effect: That in measuring for the gross tonnage the internal capacity of the ship is to be taken—that is, the hull and the erections upon and above the upper deck, which could be used for stores for passengers or for cargo—and then calculating the contents in cubic feet; dividing that by 100 the result would give the gross tonnage, with this exception—that all the space occupied by the crew, if it does not exceed 5 per cent, of the whole tonnage, is deducted from the result of the gross tonnage as arrived at. My Lords, in other words, therefore, the gross tonnage of the ship is the

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  entire cubical capacity of the hull less the crew space if it does not exceed 5 per cent of that amount. In arriving at the registered tonnage on which dues are paid certain deductions are made in respect of the propelling power. That depends upon the size of the ship, and also varies according to whether the ship is propelled by paddles or screw. My Lords, that Act was amended by an Act passed in 1867, mainly in the interests of the seamen and crews employed in merchant vessels, and has for its object lightening the rates put upon those parts of the ship which are occupied by the crew, and it provides that all the crew spaces, whether above or below the deck, shall be deducted from the calculation for the registered tonnage. Of course, my Lords, this Act of 1867, and its provisions, were to that extent intended to come entirely in the place of the provisions of the Act of 1854; but the provisions of the Act of 1854 were not in so many words specifically repealed, and a year or two ago some ingenious person discovered that by taking the two Acts of Parliament and reading them together a ship-owner might be entitled to deduct from the registered tonnage under the Act of 1867 that which had not been calculated into the tonnage under the Act of 1854. For example, as I have already said, under the Act of 1854, 5 per cent of the crew space above deck was deducted from the gross tonnage before the gross tonnage was certified, and the whole of the crew space is entitled to be deducted under the Act of 1867. Therefore the crew space above deck, if it does not exceed 5 per cent of the whole tonnage, is not to be added under the Act of 1854, but it falls to be deducted under the Act of 1867. That, of course, would be obviously unfair, and one object of this Bill is to remedy that defect. My Lords, under the same Act of 1867 certain spaces which are placed above the engine room, and which obviously cannot be used for cargo, are also entitled to be deducted from the calculation for registered tonnage; but owing to the Act of 1867 those spaces are not calculated in the cubical capacity of the ship for the gross tonnage, and that defect is also proposed to be remedied by one of the clauses in this Bill. Your Lordships will easily under-
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  stand that as some years have elapsed since those defects were first discovered a certain number of quasi-vested interests have arisen, and, therefore, the law as now proposed will require to be carefully applied and adjusted in reference to existing vessels which have been measured under those conditions. Your Lordships will find a clause in the Bill carefully prepared for the purpose of suiting the new order of things to the old, with the least possible hardship; but those matters will be the subject of consideration in Committee rather than upon the present occasion. My Lords, there are other provisions in the Bill, such as allowing sailing ships to make certain deductions from those calculations of tonnage, but those provisions are all matters of detail, and are in accordance with the recommendations of the Royal Commission on Saving Life at Sea. My Lords, I think there is no further explanation which I can give at the present stage. I propose, if your Lordships will pass the Second Reading of the Bill, to refer it to one of the Standing Committees, and I move now that the Bill be read a second time.
  Bill read 2a (according to order), and committed to the Standing Committee for General Bills.

  BRIBERY (PUBLIC BODIES AND OFFICERS UNDER THE GROWN) PREVENTION BILL. (No. 90.)
  House in Committee (on Re-commitment) (according to order): Bill reported without further Amendment, and to be read 3a on Monday next.
  TELEGRAPHS (ISLE OF MAN) BILL. (No. 113.)
  House in Committee (on Re-commitment) (according to order): Bill reported without Amendment; and to be read 3a To-morrow.

  COUNTY COURT APPEALS (IRELAND) BILL. [THE LORD HERSCHELL], (AMENDMENTS) (No. 104.)
  House again in Committee (on Recommitment) (according to order).
  LORD FITZGERALDsaid, on the question of the County Court Judges granting an appeal, he would confine the proposed Amendment to inserting

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  after the word "vexatious" the words "or unreasonable."
  LORD HERSCHELL: My Lords, on this Question, that the words "or unreasonable" stand part of the Clause, I shall not trouble your Lordships by repeating at any length what I said on the previous occasion. I still adhere to my view, that it is objectionable to leave the question of appeal open whether it is reasonable or not. My Lords, I strongly object to appeals being allowed in those cases. My noble and learned Friend seems to assume that the case will necessarily go by way of appeal to the Judge of Assize. I think the power to state a case on a point of law will not cause additional expense; but I believe that putting in these words, instead of saving expense to the parties will put them to expense. However, as the noble Viscount opposite voted against me on the matter when it came to a Division, I do not feel that there would be much hope for it if a Division were again taken, and, therefore, I will not trouble your Lordships with it further.
  Amendment (by leave of the House) withdrawn.
  LORD FITZGERALDsaid, upon the Question whether Clause 9 should stand part of the Bill he wished to add the words, "and that no such appeal shall have the effect of staying further proceedings unless the Judge shall direct." He supposed there could be no objection to that.
  LORD HERSCHELL: My Lords, I am1 not quite sure that I follow this Amendment. I had understood it to mean that execution shall not be stayed; bit surely execution is a stay of further proceedings. One mode of staying further proceedings is to obtain execution, and of course execution would go at once unless the Judge saw reason to the contrary.
  Amendment, by leave, withdrawn.
  LORD FITZGERALDsaid, he objected to Clause 13, because under it litigants would be able to carry on appeals to any extent they pleased. For the assistance of the House he would state that he had received a letter on the subject pointing out that the clause had evidently been taken from 14 and 15 Vict.
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  cap. 57, sec. 138, providing that any person who shall think himself aggrieved by the decree of the Court, and who does not appear by an attorney at the hearing, may obtain a re hearing, upon depositing the money and entering into a bond. Thereupon an appeal was given to the next going Judge of Assize. So that provision was thereby made for payment of the money into Court. In place of moving the omission of the section he would propose only to modify it.
  EARL CADOGAN: My Lords, I agree that it is not right that the leave to appeal should remain open for an unlimited time. I should, therefore, ask the noble and learned Lord to withdraw his Amendment and to move another limiting to some extent the time within which the appeal can be made.
  LORD HERSCHELL: I should like to explain to your Lordships the circumstances under which this clause came into the Bill. It was not in the Bill as originally introduced in the other House. It had its origin in a suggestion of the Bar Committee after the Bill had been framed as it was proposed to be carried. Attention was called to the fact (of which there can be no doubt) that the 127th section of the Act of 1857 was repealed by the ninth section of the Act of 1882. It was stated before the Bar Committee by a learned gentleman who was formerly in the House of Commons and who had taken part in the Bill of 1882, that that section had been omitted per incuriam, and he was the person who proposed its insertion in the Bill now before your Lordships' House. It is a very necessary section. Suppose a person receives a County Court summons for a debt; he goes to the place and says, "What do you mean by this? I have paid the money?" But, notwithstanding that, the proceedings go on behind the man's back, a decree is obtained, he, of course, having paid no further attention to the matter, and execution can be enforced against him. There are no means by which under the existing law he can obtain a remedy. My Lords, that is sufficient to show that such a clause as this is necessary. Therefore, I propose at line 51, after the word "appeal," to insert the words "to the next going judge of assize."
  THE EARL OF MILLTOWN: I desire to call attention to one thing. As I gather, Clause 127 of the Act of 1887

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  provided for giving an appeal to persons who do not appear personally.
  LORD HERSCHELL: No, it has just the same operation as this clause.
  THE EARL OF MILLTOWN: As I understand, Clause 4 excludes persons who do not appear by counsel or attorney.
  LORD HEESOHELL: It refers to persons who consider themselves aggrieved and who do not appear by counsel or attorney.
  THE LORD CHANCELLOR: There may be cases in which the defendant never heard of the proceedings until execution issued. This Bill contemplates, no doubt, the case of a person who by his own fault did not appear by counsel or attorney, but if he himself appeared he would not be within this clause. My noble Friend seems to be under a misapprehension as to what the clause means. If any person was inops concilii and did not know how to appeal, this clause would not enable him to do so.
  LORD HEESCHELL: It only affects persons appearing by counsel or attorney.
  THE LORD CHANCELLOR: But it is consistent with the fact that he might have appeared himself, and if he did there is no appeal.
  LORD HERSCHELL: If he appeared himself he would come within the section.
  EARL CADOGAN: What I under-stand my noble Friend to mean is that the section only applies where the defendant was not represented by a solicitor or counsel, whereas it ought to apply to cases where the defendant did not appear himself.
  THE LORD CHANOELLOE: Yes.
  LORD EITZGERALD: The clause was only introduced in the House of Commons at the last moment. It was introduced on the night of the 30th of June, and the Bill was read a third time the next day. There was no time to consider it, and I have not been able to find out who proposed the Amendment. It does not appear on the records of Parliament. Originally the appeal was given where the party did not appear by attorney. That was the whole thing.
  Amendment agreed to.
  Report to be received on Monday.

THE ASTRACANA IN COWES ROADS.

  QUESTION—OBSERVATIONS.
  LORD COLVILLE OF CULROSS: My Lords, I rise to ask whether the Board of Trade will renew the application which they recently made to the Trinity Corporation, and ascertain if they still decline to remove the obstacle to navigation and anchorage in Cowes Roads which they have created by the sinking of the ship Astracana. On the 28th June I called the attention of the House to the same subject, and was then told that the Board of Trade had no power to compel the Trinity Board to remove the wreck. I was in hopes that, as the obstruction of the shipping anchorage at Cowes was produced solely by the act of the Trinity Board, they would consider it their duty to remove it. A month has elapsed, and nothing has been done; the wreck still remains in a most inconvenient position with a buoy above it. The Trinity Board informed the Board of Trade that on the 25th of June there were 17 feet clear all over the wreck at low water spring tides, and nothing above the level of the sand. But I am glad to say I am in a position to give your Lordships a little further information. The Local Board of Cowes have employed an experienced diver who last week made six visits to the wreck, and instead of finding nothing above the sand (according to the Trinity version), he reported a great quantity of loose wreckage which might be raised without difficulty, and some timber upright, and fixed, quite five feet above the ground. He also said:—
  "If a vessel anchored there, she would never see her anchor again. The upright pieces of timber are very dangerous to vessels passing over the wreck—particularly to coasting vessels drawing more than 10 feet at low water."
  The Trinity Board stated that there were 17 feet of water over the wreck at low water. The Local Board have had most careful soundings made (which correspond with the report of the diver), and they show that instead of 17 feet of water there were only 11 feet over the wreck. It certainly is not to the credit of the Trinity Board, whose functions are supposed to be the protection of navigable channels and anchorages along the coast, that they should create this obstruction and then

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  refuse to remove it. I beg to call your Lordships particular attention to the fact that some time since they called for tenders for the purchase of the wreck; but they now ignore the obligations which they then imposed upon the purchaser—namely, that the wreck should be removed within a given time. My Lords, the Trinity Board are not represented in this House, but I see here several noble Lords who are Elder Brethren, and I should be very happy if they will stand up and explain the conduct of the Trinity Board. I am compelled to put my question to the noble Lord who represents the Board of Trade, and I hope he will give me a more satisfactory answer than I received on the last occasion.
  LORD BALFOUR: My Lords, when notice was given of this question I at once communicated with the representatives of the Trinity House in London, and I had an interview with a gentleman who came from their office to see me a few days ago. To-day the information, which I will read to the House, has been furnished by the Trinity Board—I will give it in their own words:—
  "Memorandum on the Wreck Astracana.
  "It has been already explained that when this wreck was found floating bottom up, and extremely dangerous to shipping, endeavours were made to sink it, but without success. It may be added that as the cargo proved to be oil it would have been impossible to sink her without breaking up, running the risk of sending large fragments free, and multiplying the risk to navigation. It has also been explained that the wreck was not voluntarily taken to Cowes, and it may be further stated that it was in such an unmanageable condition that the Trinity House officers were simply able to take her along with the tide and beach her at the first opportunity. As the fore-end of her keel was bent obliquely by their efforts to sink her, when once beached she could not be moved.
  "When the process of recovering cargo was completed the Trinity House invited tenders for the purchase and removal of the hull, but no offers being received, they proceeded with that work themselves, and on June 20th it was reported by their diver that nothing remained above the mud.
  "A few days since the Trinity House, being informed that, probably by the action of the tide and weather having disturbed the wreckage, some portions are sticking up and dangerous, gave instructions to resume operations to remove them, and a diver has to-day been sent to assist in the work.
  "The Trinity House wish it to be understood that they are not at all indifferent to the convenience and safety of vessels frequenting Cowes Roads, but that the cost of entirely removing this wreck is estimated at £1,000, and
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  they are anxious to guard against a needless expenditure of public money. Their superintendent at Cowes has been also instructed to watch the wreck, and remove any portions which may become dangerous."
  I hope that answer will be satisfactory to the noble Lord and those whom he represents. It shows, at any rate, that the Trinity House are making every effort to repair the mischief caused by the vessel sinking in that position; and I hope that the operations will have a satisfactory result.

  SMALL DEBTS (SCOTLAND) BILL. (No. 177.)
  House in Committee (on Re-commitment) (according to order): Bill reported without further Amendment; and to be read 3a to-morrow.
  ADVANCE NOTES TO SEAMEN BILL. (No. 93).
  Amendment reported (according to order); and Bill to be read 3a on Thursday the 8th of August next.
  CHARITIES RECOVERY BILL [H.L.]
  A Bill to facilitate the recovery of rent-charges and other payments owing to Charities—was presented by the Lord Herschell; read 1a; and to be printed (No. 183.)

IRELAND—GWEEDORE.
THE DUKE OF ARGYLL: My Lords, I move for the production of the file in the Irish Land Commission Court numbered 9,133; and to ask Her Majesty's Government whether they can produce a letter found in the house of the Rev. James McFadden, P.P., Gweedore, written by the Rev. D. Stephens, C.C., Falcarragh, and produced in evidence at the Letterkenny Quarter Sessions on the 12th April, 1889. Perhaps your Lordships are aware of the existence of a Blue Book giving the proceedings of the Irish Land Commission, and giving particulars with regard to the Poor Law Valuations, and the Judicial Valuations. That is all they give, except certain observations generally of an empty character, and there are, in fact, my Lords, no means whatever of judging from those particulars the principle on which the rents are fixed. I understand from questions put in the House of Commons and from information in the newspapers, that the Land Commission Court has within a very recent period adopted a new system which I must say

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is an immense improvement on the old one, and which goes a considerable way to remove, at all events, some of the objections which have been taken to the operations of that body. They now require all the Sub-Commissioners fixing rents to fill up a schedule which contains very full particulars if the schedule is carefully filled up. That is a great improvement on the old system. They require the Sub-Commissioners to give not only the acreage, but the quality of the land, the proximity to a market town, the state of buildings which may have been erected by the tenant, and all the information which any land valuer would require. Since I put the notice on the Paper, I have understood that all these schedules are accessible to persons in Dublin on payment of Is., and that land proprietors and tenants going to the Land Court can get all the information they may desire. To move for these Returns would cause considerable inconvenience to the Court, and expense to the public, and, therefore, I ask to be allowed not to press for them, and also to move that the Order for the Returns which I recently obtained should be discharged. But the letter to the Rev. J. M'Fadden stands in a different position. The other evening my coble Friend seemed to express some doubt whether I had any evidence as to some of the matters to which I referred. I do not suppose my noble Friend has gone much into the matter, and I am not surprised at his request, because I certainly entered into some details which might naturally appear to him to be unsupported by legal proof. But I can assure my noble Friend that he was mistaken. The statements I made were founded upon a document which I wish to bring to the attention of your Lordships, and which I beg to move may be laid on the Table of the House if there be no objection. I hope the House will believe that in making a statement in regard to the operation of an important Act of Parliament I took very great care to inquire into the accuracy of the facts which I brought before the House. My Lords, I stated that in the opposition to Mr. Olphert and the strike against rents on his estate, as well as on the better known estate of Lord George Hill, there were two priests in connection with the movement. That statement was made upon the evidence of a letter which has
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been produced in an Irish Court of Law. Your Lordships will remember the terrible murder committed on the occasion of the arrest of the Rev. J. M'Fadden, and that in consequence of that arrest his house was searched, and in the house was found a letter which has I understand been verified in a Court of Justice, and was not denied by the person who wrote it—the curate of the parish in which the Olphert Estate is situated. That letter is a very remarkable document, and such an illustration of the manner in which evictions are got up that I will read it to the House. [The noble Duke read the letter, in which the writer urged that the particular attention of Dillon should be called to the necessity of despatching an M.P. to the scene of action as soon as the operations were to commence, that he himself had never seen an eviction and would not undertake to manage the matter successfully; he reminded the Rev. J. M'Fadden that he promised to be present at the eviction, and that success or failure depended entirely upon that promise being kept; he reminded him also that it was at his instance the writer took up the flag, and that it was he who was responsible for the whole business, and therefore that whatever engagement he might have he should lay aside and rush to the scene of conflict. The writer added, "You know what Olphert is. You know it will take all our united energies to beat him down."] Now, my Lords, I think that letter shows that I was entirely justified in the statement which I made to the House. I beg the House to remember that in both these cases the agitation was against rents which had been fixed by the Court; they were not the old rents. In nine cases out often they were rents fixed by the Land Commission, and the agitation was directed against two landlords who of all in Ireland had perhaps done most for their tenants.
Moved,
"That there be laid before this House a letter found in the house of the Rev. James McFadden, P.P., Gweedore, written by the Rev. D. Stephens, C.C., Falcarragh, and produced in evidence at the Letterkenny Quarter Sessions on the 12th April, 1889."—(The Lord Sundridge, D. Argyll.)
THE LORD PEIVY SEAL (Earl CADOGAN): My Lords, I am glad

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the noble Duke has exercised his discretion with regard to the Motion he has placed on the Paper, and furthermore that he has thought it right that the Order for the Return granted him under a misunderstanding a few days ago should now be discharged. The noble Duke has stated fully the reasons for that withdrawal, and I think the House will agree that it would not be very advantageous for the Public Service that the files of the Land Commission proceedings should be moved for from time to time and granted as Parliamentary Papers. It is quite true that the proceedings in connection with the action of those Courts are published in a schedule, and that those interested in any portion of the proceedings are able to obtain the information they required at the cost of 1s. At any time, therefore, they can obtain full particulars. Under the circumstances, I think it is not desirable that such Motions should be made in Parliament and that Returns should be granted with the result of turning records of those summary proceedings into Parliamentary Papers, whereas other similar proceedings are not to be moved for in Parliament. Now, my Lords, with reference to the letter found in the house of the Rev. J. M'Fadden, I have to say that not only to the knowledge of the Government, but of every one, that letter has been proved in open Court to be entirely and absolutely genuine. It was found in a search made in Father M'Fadden's house, I think, in February of this year. I am not surprised that the noble Duke should have brought that matter forward after the remarks of the noble Earl, who appeared to think that the noble Duke had made statements about Father M'Fadden of which there is no proof in official documents. In 1888 Father M'Fadden was tried in open Court. The facts proved on that occasion have been public property ever since, and the Government have no other knowledge on the subject. Father M'Fadden is now awaiting his trial on another and more serious charge, and I thought it would be the wish of your Lordships that nothing should be said that could prejudice him upon that trial. As to the proceedings which are complete, the Government can only express their regret that any minister of the Gospel, to whatever denomination he belongs, should use the
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authority he acquires from his sacred office to assist and encourage those who, for reasons of their own, are opposing the law of the land. I regret I cannot agree to the Motion that that letter should be printed and laid on your Lordships' Table. I do not think it is for the public interest that one special paper or part of any legal case should be excepted from the general body of the evidence in that case and made use of for any particular purpose. If the Motion had been for the production of the whole of the evidence it would have been open to argument. I hope the noble Duke will see the force of that consideration, and that he will not press that part of the Motion which he has put forward.
THE DUKE OF ARGYLL: My Lords, I do not wish to press for the production of a document which has reference to proceedings yet to be completed. It was only in reference to the general question of evictions, which is quite a separate matter, that I desired to ask for it. I will not therefore press for the production of the letter.
Motion (by leave of the House) withdrawn.

IRELAND (GWEEOORE AND OLPHERT ESTATES).
Order of the 15th instant for Returns Nos. I. and II. to be laid before this House, discharged.
House adjourned at half past Five o'clock, till tomorrow, a quarter past Ten o'clock.