Lords Sitting of 17 April 1891

SAT FIRST.
The Earl of Carnarvon, after the death of his father.
NEWFOUNDLAND FISHERIES BILL.

  QUESTION—OBSERVATIONS.
  THE EARL OF KIMBERLEY: My lords, I wish to ask my noble Friend the Secretary of State for the Colonies a question of which I have given him private notice. I have looked at the precedent quoted by my noble Friend the other night with regard to Procedure in the House of Commons in hearing Petitioners at the Bar of that House, and I find that in 1838, upon the Canada Bill, they pursued what seems a very singular course — namely, that although the principle of the Bill was objected to by the Canadians, they read the Bill a second time without Debate, and then Mr. Roebuck was heard on behalf of the colony, and afterwards the Debate, as it was distinctly laid down, took place upon the principle as if the Second Reading was not past, upon the question that the House should go into Committee. But I have been informed that there has been found some precedent in this House the other way. If that is so, I am sure my noble Friend will be glad to take advantage of it, and enable us to pursue the more rational course of hearing the Petitioners if they should think fit to Petition the House first, and read the Bill a second time afterwards, when we are in full possession of their case. I desire to ask the noble Lord whether, if it be found on the further consideration of the matter, that that course can be taken, he will put off the Second Reading of the Bill for a reasonable time?
  THE SECRETARY OF STATE FOR THE COLONIES (Lord KNUTSFORD): I am much obliged to the noble Earl for bringing this question under consideration. When I made some remarks a few nights ago about the invariable practice of having the Bill read a second time before Counsel were heard against
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  it, I confined them strictly to the House of Commons, but since that time I have found that in the Jamaica case in 1839 in this House Counsel were heard upon the Order for the Second Reading. When the Order for Second Reading was read, Counsel were heard and then the Second Reading was taken. Therefore, in hearing Counsel before the Second Reading, we should be acting strictly in accordance with the precedent of 1839, which was the last time that Counsel were heard at the Bar of this House. Moreover, since I made those remarks my attention has been called to the fact that the Procedure of the House of Commons has been altered since 1839, and, whereas formerly after the Second Reading of a Bill there was an opportunity of further Debate on the Motion that the Speaker do leave the Chair—and that is the Motion to which my noble Friend has referred, and on which the Debate took place—that has now been swept away, and the consequence is that the Speaker leaves the Chair at once on the Bill going into Committee. Therefore, it is probable in the House of Commons, under the altered procedure, if the representatives of Newfoundland desire to be heard in the House of Commons, they would be heard before the Second Reading. In view of that fact, and considering also that it is desirable that there should be uniformity of action between the two Houses, I propose not to move the Second Reading of the Bill on Monday, but to put it down for Thursday or Friday, and that will give plenty of time for the Petition, which I believe is nearly if not quite ready to be presented, and for the Motion to be made that Counsel be heard before the Second Reading.
  THE EARL OF DUNRAVEN: Perhaps it would be convenient to your Lordships that I should take this opportunity of saying that I shall have a Petition to present from the Legislature of Newfoundland praying to be heard by Representatives at the Bar of your Lordships' House with reference to the legislative proposals of the Bill which has been introduced by the Government. I shall, therefore, on the Second Reading of the Bill, move that the prayer of the Petition be granted.

THE AUSTRALIAN CONVENTION.

  QUESTION—OBSERVATIONS.
  LORD NORTON: In asking Her Majesty's Government whether they would lay upon the Table of the House Papers relating to the draft constitution agreed to by the Australian Convention, said: My Lords, I know that the Draft Bill for the Constitution agreed to by the Convention for the Australian Colonies has appeared in extenso in the newspapers, and it is for that reason, and because of the comments which have been made upon it in the Press, and in general conversation, that I think it would be most desirable that the noble Lord should, as soon as possible, give what I may call an authoritative correction of a very false impression which has become prevalent of the nature of this Bill, and which, for the great interests involved, requires information before the discussion of the Bill in the Imperial Parliament, and before its ratification by any of the individual Australian Colonies. It seems to be considered by many that the Bill shows an intentional departure from the Constitution of the Mother Country, and that its framers have preferred for its model the more democratic version of that Constitution, which a blunder in policy led our most powerful old colonies, now the United States, to adopt in actual separation from us. I believe that more authoritative information, and the presentation of Papers upon this subject, will show precisely the reverse, that the closest possible reproduction of the Home Constitution has been aimed at by the Australians as far as possible in a distant colony. The circumstances of a new and offset community are, of course, such as not to admit of an actual fac simile of the ancestral Constitution, but as far as they could adhere to it it seems to me they have. The double House of Legislature was at once adopted by the Convention, without any Debate whatever. This point, indeed, is universally agreed upon. It was long ago exhaustively discussed by the founders of our first great colonies, and the celebrated lessons drawn from their English experience, and recorded in the Federalist, have left no rational question as to the necessity, in the interests of freedom, of a Second Chamber in the
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  Legislature to check the tyranny of sudden impulse or inconsiderate changes emanating from the single action of the first. That being conceded without any difficulty, and at once adopted, the principal Debate of the Convention was upon the status of their Senate and its composition, and I think it is clear, as far as we can gather from their Reports, there was a wise consensus that, in imitation of the House of Lords, the Senate should be as differently composed as possible from the Representative Assembly. The object clearly was, and wisely so, to make the two Chambers supplement each other, as the centripetal and centrifugal forces combine in mutual regulation, and to avoid anything like rivalry or conflict which might be caused by similarity of composition. The difficulty, of course, was in a new Assembly to make such a distinction. This old country has the enormous advantage of old-established and long-accustomed emanation of one of the Chambers from the Crown, and of the election of the people, or rather, I would say, the managers of the people, for the constitution of the other. There is a difficulty in that extent of distinction being imitated by a new community. The utmost they can do is to make two Chambers by as different kinds of election as possible. but no difference of election can completely succeed in constituting such an unconflicting partnership as we enjoy in the old country. The Australians seem, as far as possible, to have followed the example of the United States, which adopted, as far as they could, the model in this respect of the Constitution of the old country. I think the Australians in the Convention have shown an anxiety to keep their country within what I may call the popular Monarchy of the British realm, and avoid any appearance of separating themselves from it, or of substituting for themselves a pure Democracy. It is in the hope of this being made clear while the Bills for this purpose are still under discussion that I put the question; and as the subject will soon have to come before this House for discussion, it is desirable that there should be no prejudice from the American terms in the Bill. Therefore I beg to ask the noble Lord if he will furnish these Papers, and, if so, as soon as possible, for I think it is important

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  that they should be presented at an early date?
  LORD KNUTSFORD: My Lords, it is not the practice to present to Parliament unauthenticated newspaper reports of proceedings, however important, and at present the Colonial Office has only received, two or three days ago, two numbers of the Official Record of the Debates, and those two numbers carry the account of the proceedings only up to the third day. It would be very undesirable, nor do I imagine that the noble Lord would wish it, to present the Papers1 in an incomplete form, that is, giving each number of the Record as it comes over here. I propose, therefore, to wait until we have the whole of the Official Record. When complete, I see no objection, on the contrary, I see every reason, why the Papers should be presented to Parliament. The noble Lord asks me to give an authoritative statement as to the point which he has raised. I can conceive nothing more unwise than that the Secretary of State for the Colonies should give his view upon Debates which have recently taken place in Australia. I can give, however, if I may be allowed to do so, an" authoritative statement" of my opinion upon one point, and that is that every one who reads the Debates, even as they appear in the newspapers, must be sensible of the good commonsense judgment and ability with which the proceedings in the Convention have been conducted.

PUBLIC BODIES(PROVISIONAL ORDERS) BILL.—(No. 74.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  LORD THRING: My Lords, this is a Bill to remove a doubt which exists as to certain provisions with regard to the application of borough funds under the Borough Funds Act and the Local Government Act of 1888, when considered in relation to the Railways and Canals Traffic Act. The question, though a very small one, is this: Under the borough Funds Act and the Local Government Act, Local Bodies are given the power of opposing, at the expense of the rates, any local Act. Under the Canals Traffic Act, the Local Government
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  Board had power to make Provisional Orders, but, instead of calling them Local and Provisional Orders, they have been called Public Acts; and some weighty authority in the law has declared that there is a doubt whether under those circumstances Local bodies can oppose these Provisional Orders under the Canals Traffic Act. I need not tell your Lordships that there cannot be a shadow of doubt they are more than within the mischief of the Acts. These are provisions which affect all Local bodies. It was obviously intended that the provisions of the borough Funds Act and the other Act I have mentioned, the County Act should apply, and that the Local bodies should be allowed to oppose those Acts which involve matters that may be prejudicial to them. I therefore ask your Lordships to allow this Bill to be read a second time, so as to settle the doubt by placing for this purpose the berough funds under the provisions of the Canals Traffic Act.
  Bill read 2a (according to order), and committed to a Committee of the Whole House on Monday next.

EVIDENCE BILL [;H.L.]-(NO. 71.)

  COMMITTEE.
  Order of the Day for the House to be put into Committee, read.
  LORD DENMAN: I have to trouble your Lordships with a few observations upon this Bill. This is a very great change in the law, and the Grand Committee will have considerable trouble in arriving at a conclusion in respect of it. We have had Law of Evidence Amendment Bills passing first in this House and then in the other House, but no decision come to upon them. By this Bill any person accused of murder may be allowed to swear to his innocence—
  THE LORD CHANCELLOR: Will the noble Lord allow me to interrupt him in order to prevent his speaking under a misapprehension? This Bill contains no such provision as he imagines; it is simply a Bill for the consodidation of the existing law.
  LORD DENMAN: I am much obliged to the Lord Chancellor for correcting me, and I will not trouble your Lordships with further remarks.
  House in Committee (according to order); Bill reported without Amendment, and re-committed to the Standing Committee.

TRUSTEE BILL [H.L.]-(No. 72.)

  COMMITTEE.
  Order of the Day for the House to be put into Committee, read.
  LORD DENMAN: My Lords, this Bill deals with a very important subject. For the protection of Trustees a Bill was brought in on a former occasion saving them from all liability if they had invested money of cestius que trusts in undertakings without limited liability, and that was a great step in advance. There is also a very important alteration in this Bill in reference to the Law of Breach of Promise. My noble Friend who generally sits on the Front Opposition Bench wished to entirely abolish all such actions, and there is a provision this Bill, as far as I read it, by Which these actions will not go forward, This may be just, and probably will be So In regard to taking evidence, I fear that perjury has greatly increased in County Courts by the admission of parties as witnesses in their own cases. I have watched this as a Magistrate, and I have seen that in certain cases there is almost sure to be unblushing perjury committed, and the persons implicated seem to glory in it. I trust that the Grand Committee will take these few observations of mine into consideration as I am afraid I shall not be able to attend upon it, and I very heartily wish success to this Bill.
  THE LORD CHANCELLOR: Lest any misapprehension should be caused in the mind of any of your Lordships by the remarks of the noble Lord, I wish to say that this also is purely and absolutely a Consolidation Bill. There is not a single alteration in the law proposed by it, and as I have said, it is simply for consolidating in one Act what is at pre sent spread over a great number of Statutes.
  House in Committee (according to order); Bill reported without Amendment, and re-committed to the Standing Committee.

MIDDLESEX REGISTRY BILL.—(No. 87.)

  COMMITTEE.
  House in Committee (according to order).
  LORD DENMAN: This Bill is certainly a very necessary one, because a very important office has been discontinued, and now there is a power given to the Lord Chancellor to arrange everything under this Bill. The noble and learned Lord will have a most difficult task in arranging how those who have really to do the duty shall be remunerated in future; but in case his Lordship's alterations should not meet the approbation of the country, I do think the country and beth Houses of Parliament ought to have an opportunity of seeing what those alterations are. Therefore, I venture to move that this Bill should only be for the space of one year. That cours3 was adopted with regard to the Ballot Bill, and it has been a continuance Bill from year to year. I do not believe that any inconvenience would arise from the adoption of this Amendment.
  THE LORD CHANCELLOR: I am afraid I cannot acquiesce in what the noble Lord suggests. Practically, the effect of this Bill is to put into the coffers of the State what has hitherto gone to the holders of a particular office I may remind your Lordships that the history of the Middlesex Registry has been rather a curious one. From time to time its numbers have been altered. By a Statute of Anne it had consisted of four Registrars. The number was then reduced to two; but, though there was then power to appoint in respect of two, the good feeling of those who had the right of appointment induced them not to exercise that power, and only one was appointed. The effect of the present Bill is that, there being an existing staff in the Registry office which exists for the purpose of registering titles, there shall be amalgamated with it the Middlesex Registry, which for all purposes will have the same staff and be worked in the same manner as formerly, except that there will be a real head actually working. Under those circumstances I cannot recommend to your Lordships that the improvement should only last for one year, the whole

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  object of this Act being to amalgamate the two systems together and to nominate one person as the responsible head for the administration of the office. I must, therefore, ask your Lordships to negative the noble Lord's Amendment.
  LORD DENMAN: I am quite satisfied with having been the means of obtaining from the noble and learned Lord an explanation of what his views are upon this question.
  Amendment (by leave of the Committee) withdrawn.
  Bill reported without Amendment; Standing Committee negatived; and Bill to be read 3a on Monday next.

ELECTORAL DISABILITIES REMOVAL BILL.—(No. 85.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE LORD CHANCELLOR: My Lords, this Bill is to supply a defect which has been found to exist in the Act with reference to persons exercising the franchise. By a particular. decision it has been adjudicated that persons absent, although away on public duties, during the qualifying period, were deprived of their franchise. That has been considered to be unjust, and therefore the object of this Bill, which has passed the other House, is to remove that difficulty by providing that persons absent in the performance of public duties during the qualifying period, not exceeding four months, should not on that account be deprived of the franchise. Your Lordships will no doubt consider that they should be permitted to exercise their right of franchise notwithstanding their absence for that period.
  Read 2a (according to order), and committed to Committee of the Whole House on Monday next.

HERRING BRANDING (NORTHUMBERLAND) BILL.—(No. 92.)
  TAXES (REGULATION OF REMUNERATION) BILL.—(No. 93.)
  Brought from the Commons; read la, and to he printed.

  REGISTRATION OF CERTAIN WRITS (SCOTLAND) BILL [H.L.]-(No. 61.)
  Returned from the Commons; agreed to.
  House adjourned at five minutes before
  Five o'clock, to Monday next, a
  quarter before Eleven o'clock.