Lords Sitting of 24 July 1890

NEW PEER.
E. Temple—William Stephen Gore Langton, Earl Temple of Stowe, having succeeded to that title on the death of his uncle Richard Plantagenet Duke of Buckingham and Chandos, Earl Temple of Stow, &c, by virtue of a special limitation contained in a patent bearing date the 4th day of February in the Third year of the reign of His Majesty King George the Fourth—Was (in the usual manner) introduced.
PUBLIC LIBRARIES ACTS AMENDMENT ILL.—(No. 205.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  LORD HOUGHTON: In asking your Lordships to give this Bill a Second Reading, I need not detain you at any length. This Bill has come to your Lordships from the other House, where it was backed by Members of all Parties, and where it met with no opposition of any kind at any stage It was slightly amended in one or two particulars, as I shall explain to your Lordships in a few moments. I think at this time of day it is quite unnecessary to enter into any elaborate defence of the system of Public Libraries paid for out of the rates. I think your Lordships will all agree they have been of great benefit to the districts which have adopted them. The only charge I have ever heard brought against Public Libraries is that too many novels are read at them. But when you consider that the persons who use these Libraries are naturally obliged to use them more for the purpose of recreation than of study, I do not think that charge can be regarded as a very serious one. Just to show your Lordships how the matter stands, I will explain shortly what the previous legislation on the subject has been. The first Act under which Public Libraries were formed was passed in the year 1850, and the first Public Library was opened at Manchester two years later. Since then the Act has been
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  amended in the years 1855, 1877, and 1887, and last year. For some time after the passing of the first Act the formation of Public Libraries did not make any very great progress; but the statistics of later years show a much more satisfactory result. In 1879 there were only 87 Public Libraries open; in 1886 there were 133, and at this moment there are 209, being an increase of 76 in the last four years. At the same time, it would be a mistake to suppose that districts are always ready to adopt Public Libraries. On the contrary, there have been as many as 12 refusals in one year after the matter had been submitted to the ratepayers. Some supporters of this movement go as far as to say that the time has now arrived when a poll might be dispensed with altogether, and when Public Libraries might be formed on the motion of the Local Authority only. This Bill which I have the honour to present to your Lordships does not go so far as that, though I am bound to say that if such a proposition was made, I should, for my own part, not be prepared to oppose it. There is no doubt that the cost of the poll, which in some cases amounts to hundreds of pounds, is regarded by the ratepayers as a serious obstacle to having a Public Library at all. As regards the Bill itself, its object is, I think, clearly stated in the Memorandum annexed to it. Clause 1 substitutes for the very broad electorate which now votes on this matter, in boroughs the burgesses of the borough, and in counties the county electors registered in respect of their qualifications in the district. The object of that is to carry out what is supposed to have been the intention of Parliament in consolidating all the local franchises into one, and also to give a clear and authoritative list of the persons who would be entitled to vote for this object. Upon Clause 2 the Memorandum is not exactly accurate. It was originally proposed that in places having a population of less than 5,000 the proceedings should be, if it is so desired, by public meeting and not by voting papers. An Amendment was, however, introduced in the other House on the ground that public meetings cause a good deal of needless trouble and expense to the ratepayers, and that Amendment was accepted by the promoters of the Bill, Therefore, as the

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  Bill now stands, the proceedings will be in every case by voting papers. Clause 3 enables voters to state, if they so desire, and if a request has previously been made accordingly, that they wish to have a halfpenny or three-farthings rate instead of the statutory penny rate. Clause 5 prevents the question, when once it has been settled by a vote, being re-opened for a year from the time that the poll was taken. Clause 7, which is, I think, one of some importance, enables Ecclesiastical, Parochial, and Charitable Bodies to convey their property, under proper restrictions, for purposes connected with Public Libraries. Clause 13 states that the Bill does not extend to Scotland or Ireland; and, as far as Scotland is concerned, the reason is a very good one—that Scotland has already a very good Public Libraries Act, which was passed in 1887, and from which, in fact, many of the provisions in this Bill are borrowed. With this short explanation I appeal with confidence to your Lordships to read the Bill a second time, and to allow it to pass in the shape in which it has come from the other House.
  Moved, "That the Bill be now read 2ª —(The Lord Houghton.)
  THE EARL OF MEATH: My Lords, this Bill appears to be a very desirable one, but there is one clause in it which was inserted at the very last moment when it passed the other House. I refer to Clause 8. I do not think the other House or the noble Lord who has addressed your Lordships intended that this clause should have the effect which it undoubtedly will have in regard to open spaces. By this clause any land which is left, we will say, as an open space for ever, for the benefit of the citizens of this Metropolis, or of any other large town, might be alienated from that purpose. It might be either given away or sold or exchanged for a Public Library; and I know one piece of ground in a very densely-populated part of London which, under this clause, might be built upon which would involve a very great loss to the people. It would be possible for the Trustees, if they liked, to sell that open space for the purpose of building upon it a Public Library. I do not imagine that the noble Lord desires that this Bill should have that
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  effect, and I therefore propose in Committee to move the addition to Clause 8 of the following words:—
  "Provided also that land held on trust to he possessed as an open space or on trusts which prohibit building thereon shall not be granted or conveyed for the purposes of this Act."
  THE PAYMASTER GENERAL (The Earl of JERSEY): My Lords, I think it will be hardly necessary for me to say anything upon this Bill. Though it is not a Government measure, yet it had the assent of the Government in the other House of Parliament and I do not suppose it will meet with much opposition in this House. It there should be any Amendment to be made, it can, of course, be made in Committee.
  LORD HOUGHTON: As far as I am concerned, I cannot conceive that there could be any objection to accepting the Amendment proposed by the noble Lord provided it does not go further than he has stated.
  On Question, agreed to,
  Bill read 2ª (according to order), and committed to a Committee of the whole House on Monday next.

REMOVAL TERMS (SCOTLAND) ACT (1886) AMENDMENT BILL.—(No. 206.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE SECRETARY OF STATE FOR SCOTLAND (The Marquess of LOTHIAN): In asking your Lordships to give a Second Reading to this Bill, perhaps you will allow me to say a very few words to explain what the object of it is. In Scotland, as your Lordships are probably aware, it is the practice for a great many persons both in regard to the occupation of houses and also in service to change their houses and their service at the respective terms 15th May and 11th November. But a practice has grown up in Scotland under which it has been customary for people to remove from their houses or to exchange their service not at the exact dates of these terms, but to be allowed a few days' longer before the actual removal from their houses or the transference of service takes place, the time being generally about a fortnight. It has been found that this time varies very much in the

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  counties and in the burghs, and the natural consequences has been that great inconvenience has been caused to those so removing, because sometimes they have to remove from one occupancy or service before they are entitled to enter upon another occupancy or service. To remedy this inconvenience an Act was passed in 1881 called the Removal Terms (Scotland) Burghs Act, which fixed the terms for removal as being the 28th of May and 28th of November respectively. But it was found afterwards that that Act, which referred only to burghs, did not do away with the inconvenience as regarded counties, and a subsequent Act was passed in 1886 which applied that Act to counties as well as to burghs, fixing the terms both as to counties and burghs as the 28th of May and the 28th of November. But that has not done away with the whole difficulty, because those two Acts did not refer to terms of service, and it has now been found that as the terms of service may vary from the usual terms of removal very great inconvenience, and in some cases even hardship, has followed from the present practice. The object of this Bill is to make the terms of removal of service; identical with those in respect of houses. I think your Lordships will see that it may sometimes happen, especially among agricultural servants, that a servant may be obliged to leave one service before he is entitled under the present Acts to take up another, and he may be without shelter for a few days. The whole object of the Bill is to make the terms of service in agreement with the two Acts of 1881 and 1886. I may tell your Lordships that this proposal has met, as far as I know, with universal acceptance in Scotland, where this state of things is prevalent. I have myself received many applications on the subject; and I am sure that, under the circumstances, your Lordships will see it is very desirable to get rid of what is, though perhaps, a small hardship, is one which it is extremely desirable should be remedied. I hope, therefore, your Lordships will give a Second Reading to the Bill.
  Bill read 2ª (according to order), and committed to the Standing Committee for General Bills.

  SETTLED LAND BILL.—(No. 185.)
  Amendments reported (according to order); further amendments made; and Bill to be read 3a on Tuesday next.
BANKRUPTCY BILL—(No. 188.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  LORD MACNAGHTEN: I have to ask your Lordships to give a Second Reading to this Bill which comes from the House of Commons. As your Lordships know, this matter has attracted a good deal of attention in various quarters. In the House of Commons, both in Grand Committee and in the House itself, the Bill has been very fully discussed in all its stages. It has been before all the Chambers of Commerce in the United Kingdom, and it has been approved by them all. I hold in my hand a Petition from the Association of Chambers of Commerce of the United Kingdom, a body which I believe includes all the Chambers of Commerce in the United Kingdom except the London Chamber, praying your Lordships to pass the Bill during this Session, and I am informed that the London Chamber of Commerce is prepared to present a Petition to the same effect. Under these circumstances, I think the Bill comes before your Lordships with a strong claim to the favourable consideration of the House. It cannot be denied, and certainly I am not concerned to deny, that the Act of 1883 has worked fairly well, quite as well in almost every respect, and in some respects certainly better than any one of its numerous and short-lived predecessors. But the Act has now been in operation for six years and a half, and it is not surprising if, in the course of that period, many points have been discovered in which, at any rate, it is reasonable to think that the Act is susceptible of improvement. The Amendments which this Bill proposes are many and various. There are slips in the Act of 1883 which require to be corrected. Here and there in the construction of the Act there has been a view taken or a decision pronounced which is, I will not say erroneous, but which has certainly been unfortunate, and not, I should fancy, in accordance with the in-

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  tentions of the framers of the Act. Perhaps I may give your Lordships one instance by way of illustration. The Board of Trade has power to remove a Trustee for misconduct. That is a very useful and a very wholesome power, and, as far as I know, the Board of Trade have always exercised it with discretion and firmness. But I am told that this has happened: A man is Trustee of several estates; in one he is found to have misconducted himself, and the Board of Trade promptly remove him; but having done that, the Board of Trade, as I understand, are advised they can do no more, and that they cannot remove him from the Trusts of the other estates in which, it may be, he has not yet had an opportunity of misconducting himself or in which his misconduct has not yet been discovered. I cannot think that is satisfactory. I think it is almost scandalous that a man who has committed a breach of trust in regard to one estate should not be immediately removed from other similar Trusts which he holds. On that point I think your Lordships will have no difficulty in agreeing to the Amendment proposed. I only give that instance by way of illustration. There are many other Amendments which are important, no doubt, but yet which do not involve any question of principle. For instance, the Bill deals with the much-vexed question of proxies. It cannot, I think, be disputed that creditors who are unable to attend in person at meetings of creditors ought to be allowed to have an opportunity of expressing their opinions by proxy in as full and ample a manner as is consistent with the due and safe administration of the estate. On the other hand, there is nothing so mischievous as trafficking in proxies. There is nothing, according to my experience, which so much conduced to the discredit which attached to the Act of 1869 as the trafficking in proxies to which that Act gave rise. The consequence of that discredit was that with regard to proxies the Act of 1883 is very severe. Many people think it is unduly strict, and accordingly the Bill deals with that matter. Your Lordships will find there is a greater latitude allowed with regard to proxies, but yet there are restrictions which I should hope would prevent the recurrence of any such abuses as were
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  rife under the Act of 1869. Then, my Lords, there is another point. Your Lordships will find elaborate provisions are made with regard to compositions and arrangements, the object being to make the procedure in compositions and arrangements more expeditious and more in harmony with proceedings in bankruptcy under the Act of 1883. Those are all matters of detail or administration, and it would not be right that I should detain your Lordships now by dwelling upon them; but there are, as it seems to me, some matters which are matters of principle, and perhaps I may be allowed very shortly to refer to two or three of them before I sit down. The most important provision in this Bill, and the one which, it seems to me, will be the most far-reaching, and I should hope the most beneficial in its effect, is a provision with regard to the discharge of the bankrupt. Your Lordships may perhaps remember that, under the Act of 1869, it was made a condition of the bankrupt obtaining his discharge either that he had paid 10s. in the £1, or that the creditors—and I ask your Lordships to note that the power was by that Act given to the creditors—should pass a special Resolution stating that, in their opinion, the bankruptcy or the failure to pay 10s. in the £1 was due to circumstances for which the bankrupt was not justly responsible, and that they were desirous that the bankrupt should obtain his order of discharge. At first sight that seems a very reasonable provision, and, one would think, not specially open to abuse. But, unfortunately, there are creditors who care more for their pockets than for an abstract idea of commercial morality; and it was found that when the creditors had obtained all they could get in the bankruptcy, they were supremely indifferent as to what became of the bankrupt—whether he got his discharge or not. That led to various abuses. It led to bribery. Many a bankrupt obtained his discharge by means of bribery, and sometimes by fictitious votes, who, if the matter had rested with the Court or with an official body, such as the Board of Trade, would have been severely dealt with. The consequence of those abuses was that there is no similar provision to be found in the Act of 1883.

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  Under the Act of 1883 a bankrupt is in precisely the same position with regard to obtaining his discharge, other matters being equal, whether his estate pays a dividend of 6d. or 15s. in the £1. That, again, has led to abuses. A trader in a bankrupt condition, hoping against hope, goes on long after there is any possibility of retrieving his position, and the consequence is that, under the present Act, dividends are miserably small. On this point there is a very strong feeling among the commercial community. They think a man ought to know the state of his affairs, and they think he is bound to stop as soon as he finds it is impossible for him to retrieve his position. They think he is not justified in going on and wasting money, which, in reality and in truth, is not his own, but which belongs to his creditors, either in keeping up appearances or in a hopeless adventure. The Bill, therefore, proposes in this matter to return to the principle of the Act of 1869; but with this important difference: that the power which, in the Act of 1869, was rashly confided to the creditors is placed in the hands of the Court. Under this Bill the fact that a bankrupt estate has not paid 10s. in the £1 is one of the facts on proof of which the Court has power cither to refuse the discharge or to suspend the discharge, or to grant the discharge under certain conditions. I trust that that alteration, which is a very important one, will commend itself to your Lordships' judgment. Then there are two other provisions which, in some respects, certainly touch on a question of principle, to which I will very shortly refer. There is one which deals with so much of the debts provable in bankruptcy as consists of interest. That provision is directed against a class of persons who have very few friends. I do not think that even the Liberty and Property Defence League will take up the cudgels on their behalf. It is directed against the class of money-lenders. Money-lenders trade, of course, upon the necessities of mankind, and they protect themselves in this way: as regards the principal, they advance in cash as little as they can; and as regards interest, they demand a rate which is certainly liberal, if not exorbitant. Now, the Bill proposes to deal with that matter in this way: It proposes that, as regards debts provable
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  in a bankruptcy, so much as consists of interest should be calculated as between the creditors and in the administration of the estate at a rate not exceeding 5 per cent., leaving the money-lender as regards any balance to look to the estate after all the other creditors have been paid in full. I think, under all the circumstances, that is not an unjust provision. The only objection that one feels to it is that it seems rather like paying money-lenders in their own coin, in holding out to them the some what illusory hope that, after all, the bankrupt estate will prove to be solvent. There is just one other provision, and I mention it with some diffidence, because I have heard it said that this House will not fairly consider it—I do not in the least degree believe that—and that is the provision with regard to distress. Your Lordships will find the power of distress, which, under the Act of 1883, was available for the recovery of 12 months' arrears of rent,is, under this Bill, to be available for six months' arrears only. No doubt that is an important change, and some people think it an unwise one. But I am sure your Lordships will consider it fairly. Your Lordships will bear in mind that it only applies to cases of distress levied after the commencement of the bankruptcy. You will also remember that the Act of 1883, as originally introduced, proposed to do away with the right of distress altogether; and perhaps this is a case in which your Lordships may think it better, in view of the present current of legislation, to secure one-half instead of standing out for the whole. My Lords, with these observations I leave the Bill in your hands, and I beg to move the Second Reading.
  Bill read 2ª (according to order).
  LORD MACNAGHTEN: With regard to the Committee to which the Bill should be referred, perhaps your Lordships may think it right that it should be referred to a Committee of the House. The time of year is getting very late, and there are only one or two matters of principle which must, as it seems to me, be decided by the House, and it would be no advantage to pass a preliminary judgment in one of the Standing Committees. I therefore move

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  that it be referred to a Committee of the whole House.
  Moved," That the Bill be committed to a Committee of the Whole House."—(The Lord Macnaghten.)
  LORD HERSCHELL: If my noble and learned Friend will tell me that he has considered all the details of the Bill so as to be able to vouch for it, then I should not oppose the Motion; but, judging from other measures which we have had before us, although they have come up after consideration by the other House, they have not been without the necessity of careful revision.
  LORD MACNAGHTEN: I think this Bill stands in rather a different position. I may say that 'I have gone carefully through it, and I think it is one which your Lordships might deal with in Committee of the whole House.
  THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY): I hope the House will think twice before it makes so great a breach in its custom of referring such Bills to a Committee. Of course, we all place the greatest possible confidence in the assurance of the noble and learned Lord, but if it is to be a rule that simply upon the assertion or upon an assurance on the part of a noble Earl who brings in a Bill that it is of no use for the Bill to go to a Standing Committee, then I think the use and value of Standing Committees will be greatly diminished.
  LORD MACNAGHTEN: I need not say that I was not in the least claiming anything of the sort for myself. It was only in consequence of the late period of the Session that I ventured to suggest it.
  THE MARQUESS OF SALISBURY: We have still got a good three weeks, I think.
  THE LORD CHANCELLOR: I would only point out that this Bill involves important questions upon the Bankruptcy Law, and I think if a Bill dealing with somewhat delicate and difficult subjects of that nature is not to go to a Standing Committee it would be very difficult to say what Bills ought to be so referred.
  LORD BRABOURNE: In regard to referring the Bill to a Committee I think this is one of the instances in which a
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  very important Bill would be practically withdrawn from the cognisance of the House by being referred to one or other of the Committees. This practice, I think, is really becoming exceedingly unpleasant. We never know to which Committee a Bill is going to be referred; and if such a Bill as this, at the present period of the Session, is to be referred to a Select Committee, the practical effect will be that it will not receive the consideration of the House, and I do not think really that a Bill of so much importance ought to be withdrawn from your Lordships' cognisance.
  LORD HERSCHELL: I cannot at all agree with the noble Lord who has just sat down. The House is just as much cognisant of the details of the Bill after it has gone, and in spite of its having gone, to Committee, as before. And, more than that, I will venture to say that I can prove that Bills after they have gone through Committee, have been more discussed in this House than, according to former precedent, they would ever have been before.
  LORD BRABOURNE: What I meant was that they are withdrawn from the cognisance of the public by being withdrawn from the consideration of the House. They have not the public eye upon them, as they would have if discussed before the Committee of the House.
  EARL BRAUCHAMP: I must say, in a matter like this, affecting the interests of the great commercial community throughout the country, that a Bill of such importance should not be referred to a hole-and-corner Committee upstairs. It is very important indeed that the public should know not only what is actually done by this House, but also the grounds of our decision; and though our Debates may not be as fully and perfectly reported in the public journals as we may desire, I would point out to your Lordships that there is still a complete record of our Debates in the imperishable pages of Hansard. There, at least, a Report of whatever may have been said in this House will be found. Small Bills, like the Public Libraries Act, may, no doubt, be very properly and effectually discussed in Committee, but when we are dealing with great interests affecting the whole commercial community, I

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  think it is very desirable that the deliberations upon them should not be withdrawn from the cognisance of the public, as they certainly are when such deliberations take place in a small Committee upstairs, and not in full Committee of this House.
  THE EARL OF KIMBERLEY: I would point out to the noble Lord that this "hole-and-corner" system, as he describes it, was adopted by the other House in reference to this very Bill, and I apprehend that there must be there at least as many Members as in this House who have regard to the commercial interests of the country. I think, therefore, we shall be at least pursuing a course which has a very good precedent in what has been done elsewhere.
  EARL BEAUCHAMP: I am very glad to find that the noble Lord is so fond of precedent.
  LORD MACNAGHTEN: I propose, then, that the Bill should be referred to Committee of the Whole House.
  THE EARL OF CAMPERDOWN: My Lords, I beg to move, as an Amendment, that it be referred to the Grand Committee on Law.
  Amendment moved, to leave out the words ("a Committee of the Whole House") and insert ("the Standing Committee for Bills relating to Law, &c")—(The Earl of Camperdown.)
  On Question, whether the words proposed to be left out shall stand part of the Motion?
  The House divided:—Contents 22; Not-Contents 46.
  Resolved in the negative. Bill committed to the Standing Committee for Bills relating to Law, &c, accordingly.

  METROPOLIS MANAGEMENT AMEND. MENT ACT (1802) AMENDMENT BILL.—(No. 213.)
  Order of the Day for the House to be put into Committee (on Re-commitment), read and discharged.

  SUPREME COURT OF JUDICATURE BILL.—(No. 215.)
  House in Committee (on Re-commitment) (according to order).
  Clause 3.
  A verbal Amendment made.
  Clause 5.
  THE LORD CHANCELLOR: There was one point with regard to Clause 5 to which I had desired to call the attention of my noble and learned Friend; but it is too late now, I think, before the final stage of the Bill is reached. This is an Act to amend the Judicature Act of England, and I am unable to see what possible benefit can be gained by applying it to Scotland or Ireland.
  LORD HERSCHELL: It is to amend the Supreme Courts of Judicature Acts. There is nothing in the body of it confining the Bill to England, and it might be held to apply to Ireland but for those words.
  THE LORD CHANCELLOR: It certainly could not be held to apply to Scotland.
  LORD HERSCHELL: Perhaps if you say Scotland you say Ireland too.
  Clause agreed to.
  Clause 6.
  THE LORD CHANCELLOR: The clause I now propose to move, if my noble and learned Friend has no objection, is with regard to the question which was raised the other night with reference to another Bill concerning costs being granted under the Judicature Act; but it appears to me this is not a fitting opportunity to settle any doubt upon that point, and I will, therefore, not move it if my noble and learned Friend will allow a little time for considering it. What I propose is that, subject to the rules of the Judicature Act, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or Judge, and that the Court or Judge shall have full power to determine by whom and to what extent such costs shall be paid.
  LORD HERSCHELL: If my noble and learned Friend will allow me, I should like to see that in print before I say anything with regard to it.
  THE LORD CHANCELLOR: By all means; then, I will move it now.
  Amendment moved, after Clause 4, to insert as new clause—
  "Subject to the Supreme Court of Judicature Acts, and the rules of court made thereunder,

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  and to the express provisions of any Statute, whether passed before or after the commencement of this Act, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid."—(The Lord Chancellor.)
  Agreed to.
  Report of Amendments to be received on Monday next.

  POOR LAW (IRELAND) RATING BILL. (No. 183.)
  House in Committee (on Re-commitment) (according to Order): Bill reported without amendment; and to be read 3ª to-morrow.

  SHERIFFS (ASSIZES EXPENSES) BILL. (No. 218.)
  Amendments reported (according to order).
  LORD HERSCHELL: My Lords, upon this Motion I desire to say a word or two with regard to what took place when this Bill was in Committee. I am not going at all to revert to the subject which was then discussed, namely, the question of adding another person whose concurrence shall be necessary before the regulations which shall be made by the County Councils with regard to the reception and accommodation of the Judges are sanctioned. It is merely with reference to the operation of that clause that I desire to say a few words. It seems to me that its effect has not really received sufficient consideration. I do not propose to move the Amendment now, but what I would venture to throw out for your Lordships' consideration is that it would be really much better that the rules referring to these matters should be made by the Secretary of State for the Home Department than that they should be made by the County Councils, with the concurrence of the Lord Chancellor. I will point out in a moment my reasons for saying so. The proposal in the Bill might obviously in particular cases lead to a deadlock of a very disagreeable character, and one which, I think, would not tend to the dignity of the Judges in the administration of justice, or to the advantage of the country. The Bill proposes that these rules for the reception of the Judges
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  and their accommodation should be made by the County Councils; but the rules would be absolutely ineffectual unless the Lord Chancellor concurred in them. No doubt that was put in as a safeguard in order to secure that arrangements which would be suitable in the administration of justice on circuit should be made, or, at all events, that no others should be made. But let me ask your Lordships to consider for a moment what would happen. Supposing County Councils made rules which the Lord Chancellor did not think fit to concur in; he would refuse to sanction them, and the consequence would be that in that particular county there would be no rules at all. Matters then would, I presume, go on as at present, and the Judge would be left to determine upon the mode of conducting the arrangements as between himself and the Sheriff. He would still have the power which he has now of enforcing his views, and the Sheriff would have to submit to them. Therefore, the result of the Lord Chancellor not concurring in the regulations proposed by the County Councils, would be that things would be brought to a deadlock and the Sheriff would be left under his present liabilities. I cannot help thinking that, in a case where the Lord Chancellor did not concur, disputes would be engendered between the Lord Chancellor and the County Councils, and that the kind of discussion which would take place as to what was sufficient accommodation for the Judges, or what sort of lodgings would do for them, or what other provisions should be made for their reception, would not be likely to be of a very edifying character, or be calculated to be of much advantage in the administration of justice. It seems to me it puts the Lord Chancellor in a very undesirable position, because there would be a possibility of his being thus brought into collision, or into something like conflict, with any of the various County Councils, because each one of them has to form its own regulations, and to carry out its own conception of what is proper accommodation and a proper mode of receiving the Judges. It seems to me, having regard to the fact that the administration of justice is a matter of general concern for the whole community, although the administration of

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  justice may be carried out by the Judges going to each county, that the country at large is interested in the proper administration of justice and in ensuring that everywhere proper rules shall be carried out relating to the accommodation and reception of the Judges. But there is this further reason; if the whole of these expenses fall upon the county then I quite understand the feelings that the County Council ought absolutely to determine what the extent of those expenses should be. But many of these expenses do not fall entirely on the county. That part of them which relates to the accommodation of the Judges falls almost exclusively on the Treasury, and in many counties exclusively. I do not understand that my noble Friend who introduces this Bill intends that the County Councils should pay any expenses which they do not at present pay. The provision is that the regulations should be made by the County Councils, and that, of course, relates to the accommodation of the Judges. I have looked at the evidence which was given before the Committee, and it comes to this, that in many counties a very large portion of the money is found by the county for the accommodation of the Judges. The view is that they should find that money, and the only question is as to the amount to be found. Then, as regards the other expenses. When a third Assize is necessitated the Sheriff assisted in bearing the expense of that Assize. The Sheriff largely contributed to the expense of that third Assize. That, of course, would continue. Therefore, as regards the third Assize the money will be found largely by the Treasury, while the County Council is given expressly jurisdiction over the rules relating to the expenditure of that money. Of course, I am not suggesting that in every case, or in many cases, you would be likely to have these questions arising as to how the Judges should be received, or what accommodation is sufficient for them. But I can conceive County Councils existing in the future, though not, perhaps, at the present day, where there might be discussion of a very undesirable kind regarding the administration of justice, arising out of circumstances which might have taken place owing to the manner in which justice had been administered.
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  Now, that seems to me to be a result which it is very desirable to avoid. But, my Lords, I have this further reason, that in the view which may be adopted hereafter, when this matter is more thoroughly dealt with, I apprehend the counties will not have to bear any part of this expense. There are counties now which I believe bear practically none of these expenses. An arrangement is made with the Under - Sheriff, by which the fees that are raised are taken by him, and ho bears the necessary expense of the shrievalty, so that in those cases no burden would fall on the county; and I know that is the case in a very largo county which I have in my mind. At the same time you would relieve the counties of matters of Imperial interest where the burden should not fall upon them. Of course, that state of things is not brought about by this Bill, but I hope that will ultimately be the case everywhere. It is very undesirable to bring the County Councils into a matter of this description, and for them to make the rules now, when, if you have, say next year, a complete measure dealing with this matter, they will be parties really not interested in making the rules at all, because they will not have to bear the burden of the expense. I would submit under those circumstances, whether, if this be a temporary measure it would not be better to leave the determination of these matters to the Home Secretary, in which case you could not have any of these difficulties and differences of opinion, probably resulting in a deadlock, which you might have if these proposals were carried out. I do not think it is conceivable that any injustice would in that way be done to anybody, and I think that it would be better for the matter to be carried out uniformly over the whole country, than that each County Council should act according to its own ideas in reference to the rules under which the administration of justice shall be carried out.
  THE EARL OF CAMPERDOWN: My Lords, the proposal of my noble Friend, as shadowed out by him, is rather a large one to make at this stage of the Bill, and until we see the Amendment drawn out in terms, I should prefer to reserve such remarks as I may have to make to

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  it. But there are one or two things which I should like to say to your Lordships which strike me at this moment. In the first place, this question of substituting the Home Secretary for the County Councils and the Lord Chancellor had not escaped my attention, in the first instance, and I have taken steps to try to ascertain whether such an arrangement was likely to be approved of. I am bound to say I did not find that that arrangement was likely to meet with approval in certain influential quarters. But, leaving that point, there is another one which I think the noble and learned Lord has almost entirely passed over, and that is that the County Councils will have to find the money. The noble and learned Lord says the County Councils will not have to find the money, because ultimately the Under Sheriffs will become the officials of the County Councils, the fees which are received by the Under Sheriffs will go to the County Councils, and the County Councils will bo able to make such arrangements as to make the sum which is received in fees recoup them for all the expenses which have been incurred in respect of the duties of the High Sheriff. That may, or may not, be the case; we do not know how that will be until it is proved; but, at all events, even if it happens, as the noble and learned Lord supposes, that the County Councils will have the control of the Under Sheriffs, the Under Sheriffs will be the officers of the County Councils, and the money will therefore pass through the hands of the County Councils. So that, to that extent at all events, the County Councils will have to find the money. Now, with regard to the Judges' lodgings, I must remind your Lordships that the Judges' lodgings is only one of the matters concerned, and that the other point, the protection of the Judges, was left unnoticed altogether. But is it true, as a matter of fact, that the Treasury do find the money at present, and are they prepared to find it in the future? I know that in certain cases the Treasury do find a very substantial part of the money, if not the whole of it; but there are a great many other cases in which they do not, and I think the Treasury would be very reluctant to take upon themselves any additional burden. Of course, if the Trea-
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  sury will come forward and say that they will take upon themselves the whole expense of lodging the Judges, and if they are also prepared to take upon themselves the whole expense of protecting them and managing the business of the Assizes, then I quite admit the argument is a very good one, and that we may hand over the making of these regulations to the Home Secretary, or to any other official whom the House may choose. But we have to deal with the state of things which at present exists, and here I must point out that the High Sheriffs' expenses are not limited to finding accommodation and lodgings for the Judges, but that the High Sheriff has also to find the javelin men, or else to arrange for the attendance of police who are to protect the Judge. Those police are to be paid for by the county; and when it is also proposed by this Bill to throw upon the county any other expenses of that kind which may be incurred, I think the county will be very reluctant to say that they are prepared to pay whatever expenses the Home Secretary may choose to throw upon them. The reason why the Bill at present proposes to enable the County Councils to make these regulations is because it expects the County Councils to pay, and I do not know why we should not trust the County Councils in the matter. I apprehend the whole principle of our local legislation is to trust the County Councils as far as we can in these matters. Of course, it is possible there may be certain cases where the regulations made by County Councils may not be approved. The Lord Chancellor may not approve of the regulations which are made by the County Councils. If such case occurred, what would happen? Why, you will have to fall back upon the present practice, and if the present practice would be discreditable then it is discreditable now, and it is the more discreditable because it is universal. That is the reason why this Bill is introduced My Lords, I shall not offer any further remarks until I see the Amendment, but I think, at the same time, it is a very large Amendment to make at this stage of the Bill.
  THE LORD CHANCELLOR: I cannot help thinking that the noble Earl has not quite sufficiently answered the ob-

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  jection which has been pointed out by the noble and learned Lord (Lord Herschell.) He says you will revert to the old practice if the Lord Chancellor and the County Councils disagree. I do not find that in the Bill, and I very much doubt whether that is a true construction. It seems to me things would then come to a deadlock, and I do not find any provision as to what is to be done in that event. I can only say that I cannot find it in the Bill.
  THE EARL OF CAMPBEDOWN: If I may be allowed to give an answer, I think what would happen would be this: If a deadlock arose the Judge would settle the matter with the High Sheriff by telling him if he did not do so-and-so, he, the Judge, would fine him, just the same as at present.
  THE LORD CHANCELLOR: I very much doubt whether that is the true construction of the Bill. It seems to me to deprive the Judge altogether of any such power as he now possesses. Of course, I do not acquiesce that he does possess any. As the Bill is framed, it seems to me to leave the particular cases pointed out by my noble and learned Friend unprovided for. I point that out to the noble Earl, because, if that is so, and that is my present impression, he will probably think it right to meet that in the event of the Bill going further. I can. only say for myself that so long as I keep my present office I shall be heartily grateful to anybody who will transfer this function to any other member of the Government. I do not feel at all anxious to exercise the jurisdiction which this Bill puts upon me, and I am not quite certain that arrangements might not be made by the Home Secretary with the County Councils which probably would satisfy everybody. I will take this opportunity of referring to the statement of the noble Earl who spoke the other night of a Judge threatening a High Sheriff for not wearing a particular coat, and I said I had no knowledge of such an occurrence; but I must mention that I have received a letter from a gentleman who says that he remembers the circumstance well, and he goes on to give the name of the persons concerned in the incident. This only shows how such things can be exaggerated. I do
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  not name the persons to the transaction, because some of the actors in it are alive, and it might give pain to do so. It was a matter which occurred long ago, and so far from its having any relation to the dress worn by the High Sheriff, the fact is that the High Sheriff had been guilty of the greatest possible impropriety and defiance of the Queen's Representative, and it was for that that he was fined £500. It had no more relation to Court dress, or to the coat the High Sheriff was dressed in at the time, than it has to do with this Bill.
  THE EARL OF KIMBERLEY: There is just one point to which I would refer with regard to the compulsion upon the County Councils to pay. I apprehend as the Bill stands, whether they make regulations or not the construction which has been put upon the Bill is correct, that they will have to pay. It would be a considerable punishment to them that they would still have to pay all the expenses; but I really do not think we need be so very distrustful of these County Councils. We have constituted them, and our whole wish is to make them useful and responsible bodies. In most of the counties they consist of persons of considerable position in the county, and they are the principal body now in the county itself. I cannot think, therefore, that it is at all necessary we should show the distrust of them which is apparently shown by my noble Friend behind me. I have no doubt they will feel, as we all feel, that the dignity of the Judges should be consulted, and that everything which is proper to be done for the purpose of showing respect for whatever is connected with the administration of justice will be done. If it should happen, unfortunately, that any County Councils should fail in their duty, it may probably be necessary to deal with them in another way; but I quite agree with my noble and learned Friend behind me, that if the regulations are to be imposed upon the County Councils by an authority from without, then it is only reasonable that the Treasury, that is to say the Secretary of State, should act in the matter, and I do not suppose my noble and learned Friend would make any great objection to that arrangement.
  Bill to be read 3ª on Monday next.

  BIRSTALL WESLEYAN CHAPEL TRUST SCHEME CONFIRMATION BILL.— (No. 204.)
  House in Committee (according to order); Bill reported without amendment; and to be read 3a"to-morrow.
ALDERSHOT ROADS BILL.—(No. 219.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE UNDER SECRETARY OF STATE FOR WAR (Earl BROWNLOW): My Lords, the object of this Bill is so to re-construct and re-organise the roads and tracks in the neighbourhood of Pirbright and Bisley Common that a sufficient track may be found for rifle practice with the long range rifles without any undue danger to the public. The Bill has passed through the other House, and I trust your Lordships will give it a Second Reading. I propose that the Bill should bo referred to a Committee of the whole House.
  Bill read 2a (according to order), and committed to a Committee of the Whole House on Tuesday next.

  COMMITTEE OF SELECTION FOR STANDING COMMITTEES.
  Report from, That the Committee have added to the Standing Committee for General Bills the Lord Chaworth (E. Meath) for the consideration of the Pharmacy Act (Ireland) (1875) Amendment Bill, and the Lord Watson and the Lord Macnaghten for the consideration of the Marriages in British Embassies, &c. Bill. Read, and ordered to lie on the Table.
  BANKRUPTCY BILL.—(No. 188.)
  Petition in favour of; of the Association of Chambers of Commerce of the United Kingdom; read, and referred to the Standing Committee for Law, &c.
PENAL SERVITUDE.

  QUESTIONS—OBSERVATIONS.
  LORD NORTON: In rising to ask the Lord Chancellor whether the Government intend to introduce a Bill next Session on the subject of the length of terms of penal servitude, said: This is a repetition of the question which I put to the Lord Chancellor
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  at the end of last Session, and I need not repeat the reasons for the question, which I gave at full length then. The answer that I got from the noble and learned Lord was, that he was aware that the subject was under the notice of the Home Secretary, but that it had not been considered by the Government. I understand now that a Bill is ready drafted, and I hope that the noble and learned Lord will be able to tell your Lordships that it has been approved. What I want to know is, now that the commencement of the next Session is so very near, if the noble and learned Lord can tell us whether the Government have made up their minds to introduce this Bill early next Session. I can only say it is a far more important Bill than it seems from the size of the Bill, the proposition being simply to restore among the terms of penal servitude a minimum term of three years which was omitted in the Act of 1879. In a very interesting little pamphlet, published by Sir Edmund Du Cane, in 1885, he pointed out two things: first, that a very great mistake was made by Parliament in 1854, when penal servitude was substituted for the exhausted and no longer practicable punishment of transportation. I served upon the Committees which considered this subject myself, and I protested then, as Sir Edmund Du Cane says, against the mistake of assigning periods of penal servitude in proportion to the previous terms of transportation, which was a punishment, as your Lordships know, of no similitude whatever to the substituted punishment of penal servitude. It was also a mistake, that not only were the maximum terms a great deal too long, but by the omission of the minimum term, the term which comes between the maximum term of imprisonment and the minimum term of penal servitude in the Act of 1879, there is a want of sequence in the scale of punishments which is very detrimental to their efficacy. As Sir Edmund Du Cane puts it, the two punishments of imprisonment and penal servitude are absolutely similar. They are, indeed, only two kinds of the same category of punishment, the latter being the longer and ending in service on public works. But the two ingradations would make a complete scale of

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  punishments. The longer terms of penal servitude had lost much of their deterrent effect by their length, which is the principal object of all punishment; but this minimum term which has been omitted would be found to be most useful, and, by its omission, leaves a gap in the centre of the scale, and I am perfectly convinced myself that the simple restoration of that minimum term of three years, which is the whole object of the Bill which I understand the Home Secretary has ready drafted for introduction, would make the punishment of imprisonment a much more useful weapon in the bands of the Judges and Magistrates of this country. They ask for that restoration, and I believe we should not have the number of re-committals to prison, which is a painful subject of comment by all visitors of prisons at this moment. It is at this moment, I believe, the only thing which arrests the steady decrease of crime in this country which has been brought about by our improved system of education, Reformatories, and Discharged Prisoners' Aid Societies. I therefore hope the Government will be able to assure your Lordships that they intend to introduce a Bill for that purpose early next Session.
  THE LORD CHANCELLOR: I am afraid I am unable to give my noble Friend anything very satisfactory, because what I was about to state he appears already to know, that is to say, that [the Bill he mentions has been drafted, and has been approved of. It contains in it the clauses to which he refers, that is to say clauses for the introduction of a minimum term of penal servitude of three years. With regard to the other point which he asks about, I am unable to give him any information as to the time when Her Majesty's Government will introduce the Bill, as its introduction will depend on the state of public business.

MARRIAGES IN MALTA.

  QUESTION—OBSERVATIONS.
  THE ARCHBISHOP OF CANTERBURY,in rising to ask Her Majesty's Government—(1) Whether any regulations now proposed to be made, under an ordinance to be submitted to the Council of Government in Malta, to regulate the civil effects of marriages celebrated
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  heretofore, or which will in future be celebrated in that island, will in any way invalidate, or cast any doubt upon the validity of, any mixed marriages heretofore celebrated in bond fide with the sanction of the constituted authorities of the island; (2) on what ground of law it is proposed to be declared that any marriages so celebrated will be invalid in the future, said: My Lords, the questions of which I have given notice, and which are upon the Paper, arise out of certain statements which appear in the Correspondence connected with Sir Lintorn Simmons's Special Mission to the Vatican with regard to religious questions in the Island of Malta, and I must say that the statements as they stand have given rise to a great deal of disquietude. I need scarcely assure your Lordships that I shall not introduce any religious exasperation into the discussion of questions like these, although they are very important from a religious point of view. I shall import no odium theologicum into the question, but I will just read, in the first instance, two paragraphs from a letter of Sir Lintorn Simmons to Cardinal Rampolla, and when I have done so I think you will agree with me that it was not wonderful that they have occasioned disquietude. The first paragraph is this—
  "The undersigned (that is, Sir L. Simmons), hag to inform your Eminence that Her Britannic Majesty's Government will cause a project of law to be introduced in the Council of Government of Malta in accordance with its declarations."
  The first declaration—being a declaration of the Pope, having for its object to regulate the civil effects of marriages celebrated heretofore, or which will in future be celebrated—is this—
  "That marriages celebrated in Malta by all those who profess the Catholic religion, whether both contracting parties be Catholics, or whether one of them be a Catholic and the other a non-Catholic, are not, and shall not be, valid if they are not celebrated according to the form established by the Council of Trent."
  And a second declaration of His Holiness was—
  "That persons professing any other religion may validly celebrate their marriage without the necessity of going through the form established by the Council of Trent."
  Well, a vast amount of, I do not hesitate to say, 'alarm and anxiety has been

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  created by the statement that what are called mixed marriages between Roman Catholics and persons of other religions are not at the present moment, and shall not be in future, valid unless they are celebrated according to the regulations of the Council of Trent. There have been a very great number of marriages during the. last 90 years, since we first entered upon the occupation of the island, which have not been celebrated in that manner, and, therefore, the Pope's declaration goes to show that all those marriages are invalid, that all marriages so celebrated will, in future, be invalid. That declaration affects all ranks of persons in our own Church, as well as Presbyterians, Methodists, and others, in great numbers, who have been married upon the faith of a licence from the Bishop of Gibraltar, or upon licence issued by the Governor of Malta. All those marriages, according to this declaration, are at the present moment invalid, and it is declared that no valid marriage can be celebrated in future except in the particular manner described. Of course, also a great deal of property, a great deal of character, and a great deal of position, depends upon this declaration. The British Government intend, as we were informed by a letter which appeared in the Press, by direction of the noble Marquess, on the 18th of this month, to remove the doubts which have arisen by legislation in cases in which neither party is a Roman Catholic. It is desirable to remove those doubts by legislation, and in order to secure that legislation it has been found necessary to consult the Vatican. Well, there is no doubt as to what the answer from the Vatican is. Of course, marriages in which neither of the parties is a Roman Catholic will be considered from this time as valid. But the question of mixed marriages remains. That is a very serious question, and in Malta a very large one, if the Pope's declaration is to be our law. Very serious civil effects will be created by the declaration that they are not valid unless celebrated according to the decrees of the Council of Trent, which require that where either party is a Roman Catholic the marriage shall be celebrated before a Roman Catholic priest, and the custom has grown up in modern times of a refusal on the part of
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  Roman Catholic priests to celebrate such marriages at all unless there is a promise that the children shall be brought up as Roman Catholics. That is the first point. There is another promise, though of less importance, that the marriage shall not be celebrated again by a minister of any other religious body. The action to be taken of declaring Protestant marriages, as we speak of them, to be valid in future, would seem to make those mixed marriages which have not been celebrated with Roman Catholic rites more doubtful than they can be regarded as being at present, and would make them impossible in future. It would certainly leave a wretched inheritance. There is no question whatever as to the force of the language. It speaks of marriages which have been celebrated "heretofore," and the state of matters which I have described will greatly curtail the liberty of English people in the future. We contend that such marriages are valid already, and that they do not want validity at all. We do not admit that they want to be made valid. The whole view of those who desire to introduce this legislation, that is to say, to adopt the declaration of the Pope (those persons not being, of course, our own Government, except as a matter of necessity or policy), is that these marriages are now legally invalid, and to be treated as invalid in future. But that most serious issue rests upon a single assertion. That single assertion is this, that the Canon Law is in Malta the Civil Law in respect of marriage. It is asserted that the Civil Law in Malta is, and always has been, as regards marriage, the Canon Law of the Roman Church. That is stated by Sir Lintorn Simmons perfectly distinctly in a Memorandum with which he himself, upon the advice of the Law Officers in Malta, furnished the Court of the Vatican. He says—
  "The law of Malta in regard to the forms neceesary to the validity of a marriage even as to the contract is the Canon Law, and in that respect the Canon Law is also the Civil Law of Malta"
  Now, my Lords, what does that mean? Does it not present itself as a very singular thing, in the first instance, that Canon Law should be the Law in Malta as regards the marriages of all persons? I need not refer to the fact

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  that the Canon Law rules as regards ecclesiastical benefices, advowsons, and matters of that kind. Of course, it does. But we are told that a single fragment of the Canon Law exists in Malta for all persons for this one purpose. My own idea is that neither this nor any other part of the Canon Law has been the Civil Law in Malta. I should like, parenthetically, to insert a single consideration here, namely, that it is not the Canon Law which is named in the Declaration of the Pope, but the decrees of the Council of Trent. Now I wish to observe, in passing, that it is admitted on all hands that the decrees of the Council of Trent are not ipso facto part of the Canon Law; they only become part of the Canon Law if there is some special law or Order of State by which they are inserted, importing the provisions of the Council of Trent into the Canon Law. That is a matter on which I do not wish to speak further now, and I pass it by for the present, because the point now rests upon the assertion that the Canon Law is the Civil Law of Malta. But how is it shown that the Canon Law is the law of Malta? We have had lately a Report from the Crown Advocate of Malta on this subject which the Right Hon. Mr. W. H. Smith read the other evening in another place, and with your Lordships' permission I will quote it. In his answer to a question put to him on the subject the Right Hon. Mr. W. H. Smith said—
  "The Grown Advocate at Malta has reported that the matters which in Malta are governed by the Canon Law are marriages, ecclesiastical benefices and advowsons. The Canon Law of these matters was introduced into these islands by usage long before the British occupation, and has remained in force to the present day."
  Now, I particularly call your Lordships' attention to what immediately follows in the right hon. Gentleman's statement. "This is the whole of the Report."
  There are no grounds of law alleged at all upon which that is laid down. The whole of the statement is that—
  "The Canon Law on these matters was introduced into the island by usage long before the British occupation and has so remained."
  But, my Lords, usage is never quoted in matters of this kind, and things have never been settled upon usage when there is an enactment to be produced, and clearly there is no enactment to be
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  produced in that sense. But, on the other hand, we have an enactment to produce on our side. There was an enactment made in the contrary sense, and I say the onus rests upon the Crown Advocate and other Law Officers of Malta to show us when and how the enactment was superseded, which I shall lay before your Lordships, and that it is not sufficient merely to make a statement of that kind. I will take, then, this as the text, that the existing law as regards marriages is the Canon Law, and that that was the usage in the island before the time of the British occupation. Now, it is mere matter of history that the law under which the island was governed at the time of the British occupation was a very distinct Code, called the Code Rohan. Rohan as your Lordships know, was Grand Master of the Knights of Malta, and by the year 1782 the Code Rohan was fully established. A provision in the Code Rohan orders that—
  "If a marriage shall have been contracted between a foreigner and a Maltese woman, or between a Maltese man and a foreign woman, in default of written compacts and agreements, it shall be considered as having been contracted in accordance with the practice and usage of the country."
  That is to say, unless there is some written contract or compact, or agreement to the contrary, a marriage contracted (it does not say how, there are no limitations) shall be considered to have been celebrated according to the practice and usage of the country. Therefore, of course, in the supposed case, it was not contracted according to the decrees of the Council of Trent, since an article in the Code Rohan has to state that it was to be considered as if it had been contracted in that way. So that under the Knights of Malta the Code Rohan was in force containing a provision to the contrary of what was said to be the provision of the Canon Law; and it had been so for a long time before that, because there is a book called Appeals from Malta, published in 1811, where it is pointed out that the Code Rohan (I should tell your Lordships that these appeals are put forward by the nobility, gentry, and people of Malta to the English people') differs very little from the Code which was in existence in the year 1721. Then came the occupation by the French Republic, and it is quite certain that the French did not introduce the Canon

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  Law. But we find in the history of Malta that one of the chief objections of the Maltese people to the dominion of the French arose from the feeling on the part of
  "The clergy, who not only saw themselves despoiled of their resources, but withdrawn from the influence of the Court of Rome."
  It is very clear, therefore, that the island had a distinct Code, and that in that Code there was an article which touched the question of mixed marriages, and ratified them, without providing that the supposed foreigner must he a Roman Catholic. Then, in the next place, I suppose, it will not he contended that the English introduced the Canon Law. In the year 1811 was published this book of Appeals of the Nobility, Gentry, and People of Malta to the consideration of the British Government, and there we read a complaint on this very account that the British Government had adopted and recognised this very Code Rohan. It is stated there that the Code of Rohan and the Decrees of Hornpesch, who succeeded Rohan, were in force. Those were the only rules of justice and the lex scripta actually in force; and this book is actually a tirade against the British Government for governing-the country still under the Code Rohan. I have seen the terms of the Proclamation of 1801 quoted on the other side. That declares that
  "The King's Majesty of England will protect your country, your holy religion, your persons, and your property."
  It is a promise to protect their country, religion, and rights, and not to introduce the Canon Law. That it was in force is refuted by the bold tirade against our Government which runs through this book of 1811, complaining that the Code Rohan has been adopted by the English. Throughout the whole book there is not the slightest mention made of, or request for, the Canon Law. I pass over a number of other passages, as I do not wish to weary your Lordships. But we have abundant proof there, that the Canon Law was not recognised as the law. Then there is a well-known book, or materials for a book, on the history of Malta, published in 1811, which gives us the condition of Maltese law. It states—
  "In the present practice of Malta, whenever difficulties arise, not only precedents are sought
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  for of cases formerly decided in the Island, but the Roman Law and the decisions of the Italian Doctors are referred to."
  Then came the Proclamation of the year 1813, which is in its terms very like the Proclamation issued in the year 1801. I need not detain your Lordships with that. But let us see if any of the learned persons who have investigated the question on the spot have ever found, or even heard, that the Canon Law was the Civil Law in Malta. There is not a trace of it. Take the Report of Mr. Austin and Sir George Cornewall Lewis in 1839. That bears out all that we have seen already. This was an inquiry into the law of Malta, and it says—
  "The law of Malta is mainly derived mediately or immediately from the Roman Law; its technical language for the most part is the language of the Roman Law, and it is the boast of the people that they have the Roman Law."
  Again, Sir George Cornewall Lewis and Mr. Austin say—
  "Most of the Maltese Law is derived directly from the Roman Law; and there have been new principles introduced into the Roman Law from the Law of England,"
  but not from the Canon Law. They say that many of the principles of the law of England have been introduced into it. There is not a mention of the Canon Law having any part in determining the destinies or affecting the property or persons of the people of Malta. Then, again, it is stated that
  "The members of other Churches; that is, other than the Roman Catholic Church, have complete protection in their public worship."
  I apprehend that would not have been the case if a member of any Protestant denomination was obliged as a solemn act to be married only before a Roman Catholic priest; so that if he is not married before a Roman priest, he is to lose his civil rights as a married man, and that his children shall lose their rights; or if he had been bound, upon the celebration of his marriage by a Roman priest, to make a promise as to the bringing up of his children, and also that he would not go into his own church to be married by licence of his own Bishop in accordance with the rites of his own Church. There is no indication of anything in the least like that; and the Article of the Code Rohan was established as the law of the island on this point. But, besides that,

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  we have had a perfectly continuous current of authority upon the matter from time to time. We have had the interpretation of 90 years. During the whole of those 90 years licences have been granted by the English clergy, and Civil Authorities in the island, whether the Bishop or Governor; marriages have been celebrated by our clergy, and by the ministers of other denominations there, and the certificates of those marriages have been, I am assured, received in Probate and Divorce proceedings, both in our own country and in the Courts of Malta, as establishing the validity of such marriages. My contention is, that the marriages are valid; and I say the last thing we want is that they should be now made valid by an enactment. My Lords, it would introduce a state of things in which, by our own law, every child of a mixed marriage in Malta would have to be brought up to be a Roman Catholic. There is no such state of things anywhere else in our dominions. We have other places quite as Roman Catholic as Malta—Quebec and the Mauritius, for example—and in both of those places people can be married by their own rites, and mixed marriages can be carried out without any difficulty. Such is, and should be, the case in Malta. The Canon Law is not the Civil Law of Malta, and to make it such would be to introduce the decrees of the Council of Trent for the first time as the Law of Marriage in the island. The Canon Law has had its power over all Catholic countries at one time or another; but what I particularly contend is that all I have said shows that in Malta, in regard to this particular point, it long ago came to an end there as elsewhere. It is not oar marriages that need vindication, but so strange an assertion as that in this day in respect of civil marriages—the Canon Law is the law of Malta. This would fix the yoke of the Canon Law and the Decrees of the Council of Trent together upon marriage for the first time. As I have said, the Decrees of the Council of Trent did not, and do not, become part of the Canon Law or Civil Law in any country unless by special intervention of the State. My Lords, there is a very strong feeling on this matter both among Nonconformists and Church
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  people. This very week the great Wesleyan Conference is debating this matter, and I would urge that law and justice should be done in this matter. We desire to be fair and just to Roman Catholics, and to recognise the rights of Roman Catholics, but justice to Roman Catholics in this case does not certainly involve or require the sacrifice of the rights or the violation of the consciences of our own people. I am convinced that the desire of the Government is to be just on all sides, but it would not be acting justly to our own people that these arrangements of Sir Lintorn Simmons should verbatim et literatim be carried out. I have very little doubt that the Government will be able to give an answer that will allay the great disquietude that exists on this matter—an uneasiness that is increasing from day to day; and, in these circumstances, I have thought it right to ask the Government whether they intend to do anything which will cast doubt upon the mixed marriages which have hitherto been considered valid when celebrated bond fide under the authorities of the island, and also on what ground of law it is proposed to declare that marriages so celebrated will be invalid in the future?
  THE SECRETARY OF STATE FOR THE COLONIES (Lord KNUTSFORD): My Lords, in reply to the most rev. Prelate, I have to state that the ordinance which has been referred to in his question has only been sent over in draft for the consideration of Her Majesty's Government. It does not in itself invalidate any marriages which have been heretofore celebrated. It is proposed in the Ordinance to validate marriages as to the validity of which doubts have been entertained. Those doubts have not been, and are not, created by the ordinance itself, but they have existed for many years. In the year 1865 the question was raised and laid before the Law Officer of Malta, and before the Law Officers of this country, and, after full consideration of all those opinions, Mr. Cardwell, then Secretary of State for the Colonies, advised that the doubts should be removed, and that validity should be given to marriages contracted by formalities which the parties themselves believed to be binding. He suggested that for this purpose a local ordinance should be passed under the powers given to the

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  Local Legislature to pass Acts validating past marriages. Such powers were given by the Imperial Act 28 & 29 Vict., cap 64. It does not appear, however, that anything was done at that time. There is no question as to the validity of mixed marriages celebrated in Malta by Roman Catholic priests, but doubts have arisen as to the validity of mixed marriages which have not been celebrated before a Roman Catholic priest. The highest Legal Authorities in Malta, including the present Chief Justice and the present Crown Advocate, have all advised us that marriages in Malta are governed by the Canon Law, of which the Decrees of Trent form an integral part. My answer, therefore, to a great part of the most rev. Prelate's argument is that the Law Officers have advised that the Canon Law is the law of Malta, and that the Decrees of the Council of Trent are part of that law. It may be contended that the Decrees of the Council of Trent have no force in the island unless it is proved that the Council was duly promulgated; but the Legal Authorities in Malta have advised that it was duly promulgated there; that it was accepted by the Civil Authorities; and that it has ever since continued to be the Civil Law of the island. Upon this assumption, the same Legal Authorities have advised that the celebration of mixed marriages before a Roman Catholic priest has always been deemed indispensable in order to give validity to such marriages. I understand now, from the argument which has been brought forward by the most rev. Prelate, that he disputes the opinion which is held by these Maltese Legal Authorities —namely, that marriages in Malta are governed by the Canon Law. It would, of course, be quite out of place now for me to argue in defence of the opinion which has been formed by the highest Legal Authorities in Malta, but I should like to refer very briefly to one or two points brought forward by the most rev. Prelate. In the first place, he has referred to Quebec and Mauritius. Those colonies were in a very different position from Malta, inasmuch as both were conquered, and the Canon Law was not in operation there before they were conquered. In Quebec the law is founded on the old French Code Civile,known as the Coutumes de Paris.In Mauritius no question could
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  have arisen, as there is a civil marriage under the Civil Code known as the Code Napoleon and the Civil status ordinance of 1801. As regards the Code Rohan, which has also been referred to by the most rev. Prelate, I can only say I do not profess to give a legal opinion on the clause he has mentioned, but I put a very different construction upon it. The word used in it is "forestieri," strangers, foreigners, and it provides for the case of a foreigner marrying a native, but there is nothing in that particular article to show that they may not both be Roman Catholics. All it says is that if a foreigner, a "stranger," marries a Maltese the marriage should be conducted according to the laws of that country.
  THE ARCHBISHOP OF CANTERBURY: The words are "shall be considered to have been" performed according to the laws.
  LORD KNUTSFORD: That is, for the purposes and in regard of the partition of property. The whole of that chapter, from beginning- to end, refers to the partition of property arising out of a marriage, nor, as far as I am aware, is there any provision as to the mode or formalities of celebrating marriages. However, I do not wish to argue the question. I can only say that the construction of it, as I am advised in the matter, is entirely different from the construction placed upon it by the most rev. Prelate. The Report of Sir G. C. Lewis and Mr. Austin refers to certain parts of the law of Malta which have no bearing upon marriage, and the very words quoted by the most rev. Prelate show that the Commissioners were not dealing with the whole question. I think I may say that there is, in truth, no allusion to the Marriage Law of Malta in the whole of that Report. Her Majesty's Government will, of course, carefully consider and will submit to the Law Officers of the Crown any legal opinions or arguments which may be given on this question in opposition to the view which we have been advised is correct, namely, that the Canon Law is the Civil Law of Malta. We have certainly proceeded on the assumption, which we believe to be correct, that marriages in Malta have been, and are, governed by the Canon Law. This is not the place to hold a legal argument, especially between the most

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  rev. Prelate and myself, who do not speak with authority upon the legal views of this question; and I have only to add that Her Majesty's Government fully recognise the importance of the subject, and that no decision will be arrived at until all the points have been carefully and fully considered.
  LORD HERSCHELL: My Lords, I should like to ask one question upon a point which arises out of this discussion and the answer which has just been given by the noble Lord. I understand his position to be that certain high Legal Authorities now express the view that the Canon Law at present governs the law of Malta. What I should like to know is this: Whether this has been the view acted upon by the most rev. Prelate, that these mixed marriages, which, according to that view, would be illegal, have taken place over a long series of years and have been recognised as valid marriages not only in the Courts of this country, but in the Courts of Malta. I think it is an important matter to know whether that is the case, and whether during the many years that these marriages have been taking place, they have been held judicially in Malta to be invalid, or, on the contrary, have been held to be valid, and the children of them to be legitimate and entitled to the ordinary rights of legitimate children.
  LORD KNUTSFORD: I understand the noble and learned Lord to refer to mixed marriages which have not been performed before a Roman Catholic priest?
  LORD HERSCHELL: Yes.
  LORD KNUTSFORD: We are not aware of a single case which has been brought before the Court of that kind. There have been cases in Malta where the parties have been married before a Roman Catholic priest and have been some time afterwards married before a Protestant minister, but we are not aware of any case in which that question has been raised before the Maltese Courts. That is why I am not prepared to argue the question now. I think it is quite probable that where the Governor has given a licence, and a certificate has been granted, it may be recognised in the Courts here, but I am not aware of any decision in the Courts of Malta.
  LORD KINNAIRD: May I ask whether it is proposed that any power which the Governor of Malta has hitherto exercised should be taken away under the new project of law?
  THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY): The noble Lord is asking a question in regard to the future. As my noble Friend has stated, the proposals of the Maltese Legislature in draft are now before Her Majesty's Government, and will be subjected to the most careful consideration. Therefore, it will not be possible for us to say in the present state of affairs what future legislation there may be.
  LORD KINNAIRD: May I ask whether the matter will be brought before this House before it is finally ratified?
  [No answer was given.]

TITHE RENT-CHARGE.

  QUESTION—OBSERVATIONS.
  LORD BRABOURNE,in rising to ask the Prime Minister whether, before the re-introduction of any Bill upon the subject of tithes, he will cause to be laid before Parliament statistics as to the varying incidence of the tithe rent-charge in English counties, the proportion in which the same is now paid by owners and by occupiers not being owners, and the number of distraints for tithe rent-charge which have been levied in English counties during the last three years, said: My Lords, the question I have put upon the Paper will only require a few sentences on my part to explain it, but it can hardly be denied that the matter is an important one. During the existence of the present Government several measures have been introduced upon the subject of tithes, all of which have from the force of circumstances been withdrawn; but, as far as I am aware, no statistics whatever have been placed on the Table of either House with regard to the important question with which those Bills have dealt. I think it has very often been said with regard to these measures by supporters of the Government that they really do not reopen the settlement of 1875; but how that can be said when proposals are made to alter the conditions in the country with regard to it it is rather difficult to

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  imagine. When it is said that that will be the effect that will be produced by legislation, it is desirable we should know the facts not only with regard to the difficulty which tithe owners will have in collecting their tithes, but also the present number of tithe rent-charges in the different English counties. I have seen it stated that four or five English counties pay more than half the entire rent-charge. This, I think, is a matter on which we should obtain information before we legislate on the matter. But there are other points which I think press even more severely upon us; that is to say, it is more necessary they should be elucidated, because various Governments have dealt with them. It is believed in this country that what the Government have intended to do, and will, no doubt, wish to do, is to make the owners pay some impost: and it is desirable to ascertain whether there are any owners who do not pay the charge, and whose occupiers pay the rate instead. Again, it is desirable we should know whether there is a large number of owners who do pay, what the position of the tithe-payers has been, and how the whole question will be affected. Then there is another question, and that is the number of distraints for tithe rent-charge which have been levied in the English counties during the last three years. I think it is desirable, before any legislation is proposed, that we should know something upon these points, and for this reason. We are told in many quarters that the whole legislation proposed has been in consequence of the opposition made in parts of Wales to the collection of tithes, but as far as I can understand this has not been at all in connection with the collection of tithes, but in consequence of the incidence of the tithes themselves. Of course, if the Welsh people choose to disobey the law, as long as it is the law, it is the duty of the Government to put the law in force; and why there should be legislation unless you show that there is some necessity for it upon the basis of statistical information rather passes my comprehension. The importance of this question can, I think, hardly be denied. I do not know whether the Government are aware of the gathering feeling, especially in the southern counties, with respect to the
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  legislation that has been already proposed upon this question, but that it is gaining strength I cannot doubt. I have recently seen a letter written by a very near relative of the noble Marquess the Prime Minister, of which I will only say it shows that sons do not always take the same view as their fathers take; and, therefore, I do not wish to suggest for a moment that the noble Marquess is bound by the opinion of his relative, but the writer of the letter presses for this kind of legislation, because he considers that we are upon the eve of a struggle for the endowments of the Established Church. Without passing any opinion upon this judgment, I am quite satisfied that if we are upon the eve of such a struggle, the sooner there is full inquiry made as to the endowments likely to be attacked, and they are placed on a sound footing, the better will it be for those who have to defend them. Therefore, I merely put the matter before your Lordships, that as we are threatened with a re-introduction of a Bill on this important subject, it is most desirable that statistics should be laid before Parliament which will enable Parliament to come to a just conclusion in regard to the actual position of the question.
  THE MARQUESS OF SALISBURY: I will follow the good example of my noble Friend by avoiding all contestable matter in reference to this subject, and will simply address myself to answering the question he has addressed to me. I am afraid, in the first place, I cannot make the re-introduction of the Bill of the Government subject to the completion of the statistics for which the noble Lord asks, because, even if the statistics were to be easily obtained between this and November, considering that that period includes the habitual holidays of all sorts of persons employed in public offices, I do not think there would bo sufficient time to enable the statistics to be collected with the care and accuracy necessary to give them such value chat they could be used with confidence and certainty. But, even with that deduction, I am afraid I can hardly give an unqualified affirmative to the question of my noble Friend. He asks me to lay before Parliament statistics as to "the varying incidents of the tithe rent-charge in English counties,"

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  and I should have been very glad if my noble Friend had appended a gloss which would have indicated the precise meaning which that phrase would bear when submitted to the officer who would have to make up the Return. What is "the varying incidence of the tithe rent-charge?" The tithe rent charge was imposed by the provision and machinery of the Act of 1836, and I do not think there is any general incidence for any particular county or locality. There is simply laid down by agreement what is thought to be a fair rent-charge under the provisions of the Act of 1836, and that is returned to the Tithe Commissioners. I do not believe there is any such general principle either over large or small areas as the question of my noble Friend assumes. As to "the proportion in which the same is now paid by owners and by occupiers not being owners," there is no authority that has the slightest cognisance of the facts.
  LORD BRABOURNE: There is the incumbent.
  THE MARQUESS OF SALISBURY: There is no public office which has cognisance of the state of facts. It would involve the question in each case whether the man who paid the rent-charge was of a particular bit of land the occupier or the owner. Very often a man is the occupier of a certain number of fields, and the owner of a certain number of adjoining fields; he might pay the tithe for the whole of this land, and the incumbent would have no power of distinguishing between that which was owned and that which was occupied. A Return, the value of which would depend upon its accuracy, and which must contain many very complicated figures to be obtained from 20,000 clergymen all over England—well, I will not say more of it than that it would not be completed by next November. I am not sufficiently acquainted with legal practice to know whether it is possible to obtain a Return of "the number of distraints for tithe rent-charge which have been levied in English counties during the last three years," or whether materials for that Return exist. Of course, where there have been distraints ordered by any Court they would not be difficult to
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  ascertain; but those restraints are not ordered by the Court, and, therefore, I am at a loss to know where to obtain the necessary materials; but if it is possible there will not be any objection to the Return being produced.
  LORD BRABOURNE: What I mean by "varying incidence" is the amount of the tithe in relation to the letting or rateable value of the land; in some counties the proportion is very high, and in others it is very low.
  THE MARQUESS OF SALISBURY: That, I think, is quite impossible as regards entire counties, for I know by my own experience that of two fields lying next each other the amount of the tithe in relation to the value of the land or the rent it bears will vary as much as possible, and to get at these variations you would have almost to take each particular field from one end of the country to the other.
  THE EARL OF KIMBERLEY: I suppose there would be no difficulty in giving the total amount of tithe paid in each county? It varies, no doubt, in a most remarkable manner; but I think it might be obtained.
  THE MARQUESS OF SALISBURY: It is already before the House.
  VISCOUNT CRANBROOK: Lord Beau-champ moved for the Return two years ago.
  THE EARL OF KIMBERLEY: I believe that showed that the tithe rent varied very greatly in different parts of England. I am not moving now for the Return.
  LORD BRABOURNE: My noble Friend will see that Lord Beauchamp's Return gives it for each county, the total amount in each parish, and the amount of appropriation between the lay impropriators, the ecclesiastical establishments, and the schools.
  House adjourned at twenty minutes before Seven o'clock, till To-morrow, a quarter past Ten o'clock.