Lords Sitting of 23 August 1907

PRIVATE BILL BUSINESS.
Local Government Provisional Orders (No. 11) Bill. Returned from the Commons with the Amendments agreed to.
Inverness Royal Academy Order Confirmation Bill. Read 3a (according to Order), and passed.

PETITIONS.
  MARRIAGE WITH A DECEASED WIFE'S SISTER BILL.
  Petition for amendment of; of magistrates and town council of Aberbrothock or Arbroath; read and ordered to lie on the Table.
RETURNS, REPORTS, ETC.
  TREATY SERIES, No. 25 (1907).
  Treaty between the United Kingdom and Panama, for the mutual surrender of fugitive criminals; signed at Panama, 25th August, 1906. (Ratifications exchanged at Panama, 15th April, 1907).
Report on strikes and lock-outs and on conciliation and arbitration boards in the United Kingdom in 1906.
STATISTICS.
Statistical Abstract for the principal and other foreign countries in each year from 1895 to 1904–1905 (as far as particulars can be stated). Thirty-third number.

INDIA (ADVISORY AND LEGISLATIVE COUNCILS, &c.)
Papers relating to an Imperial Advisory Council and Provincial Advisory Councils, the enlargement of the Legislative Councils, and the discussions of the Budgets.
Presented (by Command), and ordered to lie on the Table.

PUBLIC HEALTH (SCOTLAND) AMENDMENT BILL [H.L.]
Returned from the Commons agreed to.
VACCINATION (SCOTLAND) BILL [H.L.]
Returned from the Commons agreed to, with Amendments; the said Amendments to be considered To-morrow.
VACCINATION BILL.
Returned from the Commons with the Amendment agreed to.
LIGHTS ON VEHICLES BILL.
Returned from the Commons with the Amendments agreed to, with Amendments.
HOUSE OF LORDS OFFICES.
Report from the Select Committee considered (according to order), and agreed to.

MARRIAGE WITH A DECEASED WIFE'S SISTER BILL.
House in Committee (according to Order ).
[The Earl of ONSLOW in the Chair.]
Clause 1:—
THE EARL OF SHAFTESBURYmoved an Amendment to remove from the Bill its retrospective character. He assured their Lordships that there was no ulterior motive on his part underlying the Amendment. He had been led to take this course for two distinct reasons—firstly, on constitutional grounds; and secondly, to avoid any additional element of confusion if the Bill passed into law. He was afraid the course he advocated would be characterised as vindictively inclined towards those who had broken the law and married their deceased wife's sister, and that it would also be said that to remove from the Bill its retrospective character would be hard on the children of such marriages, as they would thereby be compelled to face life through with the ban of illegitimacy upon them. He yielded to none in honest sympathy for those who, from whatever circumstances, had felt compelled to break the

1251
law by contracting one of these marriages. But he would remind their Lordships that as recently as the previous afternoon it had been laid down as an axiom by a responsible Minister of the Crown—the noble Earl the President of the Board of Agriculture—that in most cases, if not in all, the minority must suffer for the good of the majority. The majority in this case were those who looked for, and had a right to look for, stability in legislation, and the minority were those on behalf of whom their sympathies were enlisted. As to the children, if they were out of sympathy to pass a law the legitimise the children of past marriages with a deceased wife's sister, were they to stop there? Had not all children who were born out of wedlock equal claims to their sympathy? For the sake of the preservation of confidence in continuity in legislation he hoped the Committee would accept his Amendment. No doubt they would be told that Parliament had often made valid marriages that were invalid, and that therefore the proposal in this case was no new departure; but the only real precedent for this was Lord Lyndhurst's Act of 1835, which he regarded as a not very defensible piece of legislation, and which was passed in order to assist a peer of the Realm who had contracted one of these marriages. That Act did not validate marriages which had been declared void, but merely prevented the voidance of marriages which were valid until proceedings were taken to set them aside. There was the danger of retrospective legislation producing still further confusion. Let them take the case of a man who had married his deceased wife's sister and separated from her, leaving the children in her custody. If he had married someone else the Act left things in their present position; but if he were merely living with another woman, it might be with a promise of eventual marriage, the Act gave him the custody of the children of his deceased wife's sister. Again, supposing a man to have married his deceased wife's sister and to have left her, and then to have married another sister: to whom would he be married by this Bill? Again, there was the case of a man with a legitimate family, and also an illegitimate family by his deceased wife's sister.
1252
Under the present law the children o f the deceased wife's sister had no right of succession, and in many cases provision had therefore been made for them by the father or other relatives, it being understood that on the death of the father intestate the whole of his property would go to his legitimate children. It was obvious that many other similar cases might arise, and the probability was that there would be a great many difficulties which had not been foreseen; and it seemed a thousand pities that in order to remedy what was, after all, a sentimental grievance, risks should be run of doing serious injury to others. He hoped the First Lord of the Admiralty would be able to accept the Amendment, behind which he submitted there was great weight of argument. However, should the noble Lord find himself unable to do so, he would leave himself entirely in the hands of the Committee as to whether or not he should press the Amendment.
Amendment moved—
"In page 1, line 5, to leave out the words 'heretofore or.'"—(The Earl of Shaftesbury.)
THE FIRST LORD OF THE ADMIRALTY (Lord TWEEDMOUTH): My Lords, before I deal with the noble Lord's Amendment I should like to read to the House a very authoritative opinion expressed on this matter. It is a passage from Lecky's "Liberty and Democracy." In that work Mr. Lecky dealt at considerable length with the marriage law and paid a great deal of attention to this particular subject of marriage with a deceased wife's sister, and this is what he said in answering the arguments brought against the Bill—
"These marriages exist over a great portion of the globe without the smallest question or producing the smallest family disturbance. Experience, the one sure guide in politics, conclusively shows how quickly the best public opinion of a country accommodates itself to these marriages, how easy, natural, and beneficent they prove, how little disturbance of any kind they introduce into domestic relations."
The next passage refers, I think, especially to your Lordships' House—
"In an age when most wise and patriotic men desire that the influence and character of the Upper House should be upheld and strengthened, few things could be more deplorable than that this House should have suffered itself to be

1253
made the representative of a swiftly vanishing superstition and the chief instrument in perpetuating a paltry and ignoble persecution."
Those are passages which your Lordships should remember when you are attempting to deal with the details of this Bill. The Amendment, in the first place, is absolutely opposed to what was done by Lord Lyndhurst's Act of 1835. The intention of that Act, as originally drafted, was to legalise marriage with a deceased wife's sister whether in the past or in the future; but by an arrangement that I described the other night, the Act was altered so that it simply validated—made valid instead of merely voidable—all marriages that had taken place previous to the passing of the Act. The Amendment of the noble Earl refuses even the amount of legality that was given under Lord Lyndhurst's Act. What I want the Committee to realise is this—that the guilty persons:if indeed they may be called guilty, who have illegally married, are the ones who escape under the provisions of the Amendment, because if the Bill passed giving effect to the noble Earl's views, these persons would go through the form of marriage again, and so far as they are concerned they will be in a perfectly satisfactory position. In Scotland the marriage legitimises the children, so that the effect of the Amendment would be to make illegitimate only the English children of these marriages, which seems to me to be a ridiculous proposition. To hold as illegitimate the children of marriages which have been by law made legal would be to my mind a cruel thing, and therefore I ask the Committee not to accept the Amendment.
THE MARQUESS OF SALISBURYsaid he was at a loss to understand how, even in their Lordships' House, which was very liberal in matters of order, the noble Lord who had just sat down could have thought it proper to introduce his interesting remarks with a quotation from Mr. Lecky's history, which had to do, if anything, with the whole subject, and nothing whatever specially to do with the Amendment before the Committee. He had a great respect, and so had all their Lordships, for anything which the late Mr. Lecky had written; but if it came to the quotation of eminent authorities in
1254
order to convince their Lordships of the soundness of a particular view, he was quite prepared to quote an authority quite as high as Mr. Lecky on the opposite side. He would not, however, follow the evil example in this one respect set by his noble friend. But in all the citations of the debates in their Lordships' House in the past upon this topic, there was one particular debate which noble Lords on the other side of the House had never referred to—the debate of 1886. The debate of that year was rendered illustrious by one of the most splendid examples of eloquence which had ever been delivered in their Lordships' House. On that occasion the late Duke of Argyll stated in perfectly moderate terms, but in language which he could not hope to emulate, the case against the Deceased Wife's Sister Bill, and noble Lords who had not read that speech had not only missed a brilliant example of British eloquence, but were without an adequate notion of the strength of the case which could be made against the Bill. But he would pass to the Amendment. The proposal in the Bill was that its provisions should have a retrospective effect, and that people who had broken the law should be relieved of the consequences of their action. That was going dangerously far. There was the provision in the Scottish law, to which the noble Lord the First Lord of the Admiralty had referred, that subsequent marriage legitimised the children. There was a great deal to be said for that law; he had always thought so. Their Lordships would see how unfair the provision in the Bill as it stood would be, because the legitimate children, who had every reason to suppose that they possessed all the privileges and rights of property which accrued to legitimacy, would have those privileges and rights infringed by the legitimisation of children born before them by an illegal marriage. They could not say to people who had already acquired rights that they must surrender those rights. Lord Shaftesbury had cited the case of the guardianship of illegitimate children. As everyone knew, the guardianship of an illegitimate child rested in the mother. Let them take the case—not, he would think, an uncommon case in matters of this kind —of a man who had contracted one

1255
of these marriages not leading a very reputable life, and afterwards going to the bad. The child was in the guardianship of its mother. But if the Bill passed in its present form the father would become the legitimate guardian of the child, and the mother would be ousted. That appeared to him to be a thing which ought not to be done. There might be cases in which young people, having made a marriage of this kind, had afterwards convinced themselves that it was wrong and had agreed to separate. This might have occurred twenty years ago. This Bill became an Act and, against their will, these two persons were made man and wife. That obviously was not a thing which Parliament ought to do. In the case where a man had married a deceased wife's sister, who afterwards died, and he married again, and had thus two families, one illegitimate and the other legitimate, his property, which at present would be divided amongst his legitimate family, would after the passing of this Bill, unamended as regards its retrospective effect, be divided amongst both families, unjustly to the legitimate family. Many more unjust results of this ex post facto legislation would be discovered no doubt hereafter. He protested against the encouragement which would thus be given to people to break laws. There was such a thing as illegal marriage with a deceased wife's niece or with a stepdaughter. A man who had gone through the form of marriage with his stepdaughter—he knew of such a case—could say in answer to remonstrance that he saw no harm in it, as there was no consanguinity, and would go on breaking the law in the sure and certain hope that some day or other Parliament would relieve him. People would go on making such marriages, and a man might say:"Afterwards I shall go to the First Lord of the Admiralty, who with the assistance of the Lord Chancellor at the head of the English law, will introduce a Bill into Parliament to relieve me of the consequences of my act."
VISCOUNT HALIFAXendorsed the arguments used by the noble Marquess. It would be quite impossible after passing this Bill to maintain the prohibition against marriages within any of
1256
the degrees of affinity. By giving the Act a retrospective action, Parliament would condone the action of those who in the past deliberately broke the law. It was perfectly well known that an agitation in favour of the Bill was promoted by certain rich people who had broken the law, and the Bill would place in the hands of those who had contracted marriages within other degrees of affinity a strong inducement to set going a similar agitation.
THE LORD CHANCELLOR (Lord LOREBURN): My Lords, the point in this Amendment is really extremely short and circumscribed. It is not whether it is right or wrong to legalise these marriages, for that has been decided by the Second Reading of the Bill. It is a question whether or not the Bill should have operation retrospectively. Questions of rights and interests are fully dealt with in the second clause, and therefore no injustice is done by reason of property taking a different course from what it would otherwise take, and persons being deprived of property which they now hold. The second clause makes ample provision against that, and, if it is inadequately expressed, show us that it is inadequate and we will endeavour to make it adequate. The only question, therefore, for the Committee now to consider is whether there is anything wrong in making this Bill retrospective. Upon this point I invite the consideration of your Lordships to a concrete case. A man has married his deceased wife's sister, and has a family by her. What would be the result of passing the Bill with this Amendment and having no retrospective effect? The father and mother could go to a registry office the clay after the Bill became law and contract a perfectly valid marriage. Thereafter they would be perfectly free from blame, they would be man and wife according to law, they would be purged from any offence they had committed. But if the noble Earl's Amendment is accepted, the children, innocent of any offence, would remain subject to the stigma imposed upon them by the action of their parents, and yet from which those parents would be free. I am sure the noble Earl, who has advocated this Amendment as a matter

1257
of principle, will not contend that it is a good principle to be unmerciful to those who are blameless.
THE EARL OF ROSEBERY: I only intervene for the purpose of putting one point which has not been referred to. An objection to the Amendment is that if it passes there will be a limited number of these marriages contracted between 1835 and 1907 which alone will be invalid. All the marriages contracted before 1835 and those entered into after the passing of this Bill will be valid, but the marriages during the intervening seventy years will alone be invalid. Surely that would place the whole matter in a position of some ridicule.
THE LORD BISHOP OF SALISBURYspoke in support of the Amendment, and held that if the principle of the Bill were adopted the proper course would be to allow persons who had already contracted these unions to legalise them by a subsequent marriage, and to allow children already born to them to be legitimised by that subsequent marriage. He thought that it would be a very serious thing wholly to condone by an Act of the Legislature the action of those who in the past had deliberately broken the law, and that not unfrequently with the added circumstance of perjury.
THE MARQUESS OF SALISBURYsaid he had profound pity for the children, and he would be very sorry if any words he had used had led anyone to a contrary opinion.
LORD LOREBURN: I never thought otherwise.
THE EARL OF SHAFTESBURYsaid that, although he still held that there were many arguments in favour of the Amendment, he admitted, after listening to what had been said by noble Lords opposite and by the Lord Chancellor, that there was a good deal to be said against it. In the circumstances, he would not press the Amendment.
Amendment, by leave, withdrawn.
THE LORD ARCHBISHOP OF CANTERBURYmoved to insert the word
1258
"other than a marriage hereafter contracted in England by solemnisation thereof by a clergyman in Holy Orders of the Church of England." He took the opportunity to say that he dissociated himself altogether from the wild and, in his judgment, improper words that had found their way into the Press on this subject, especially in an important letter published in yesterday'sTimes. He deeply deplored the use of phraseology that in his view could do nothing but harm. The Amendment he proposed he could not call his, for the words he asked their Lordships to put into the clause were taken verbatim et literatim from Bills as introduced again and again into Parliament and retained in those Bills when they passed through one House or the other. They had the effect of making these marriages civil marriages so far as the clergy of the Church of England were concerned; the clergy would not be able effectively to solemniss the marriage service for people within the prohibited degrees. The words were in the Bills which passed Second Reading in the House of Commons in 1901 and the five following years, and had for the first time disappeared from the present Bill. They were in the Bill which passed through all its stages in the House of Lords in 1896; and a similar provision, though not identical in terms, was in the Bills of 1883, 1884, 1885, 1886, 1889, and 1894. It could not, therefore, be said that the Amendment was now proposed by him in order unfairly to interpose a fresh difficulty. It would simplify matters by placing clergymen outside the Bill altogether. In the debate on Tuesday the repeated votes of the House of Commons were alleged by the Lord Chancellor and others to be conclusive as to the popular view in favour of the Bill. Though he (the Archbishop) had given reasons for qualifying that conclusion he admitted the strength of the argument. But let it be remembered that the assent was given to the Bill containing this very clause. Those who promoted the Bill in the past did right to include this provision. If the Act was to work smoothly, then let Parliament keep out of its compulsory or
quasi-compulsory provisions the clergy, who, be it remembered, were under other obligations besides those they owed to

1259
the State. He would be the last to minimise those obligations to the State, but there were other and not less sacred obligations which they could not modify. Then, again, the example of our Colonies was cited, but, so far as the action of the clergy was affected, it was exactly the Colonial precedent which he asked the Committee to follow. It had been asserted that the clergy throughout the Colonies readily performed these marriage ceremonies, but those who made the assertion were absolutely mistaken. He held in his hand a copy of the present canons in force in South Africa, and in these the clergy were expressly directed to join in marriage no persons within the degrees of affinity laid down in the Prayer-book. In Canada also the table of affinity was adopted in the same way. It was, therefore, directly contrary to fact to say that in those Colonies—and so far as he knew it was the same in other Colonies—the clergy were kept wholly outside of the solemnisation of such unions. All he asked was that in this country the clergy should have the same position, that they should be absolutely free from any complicity in these marriages. If the Bill became law, his earnest desire was that it should work without needless friction or strife, and, greatly as he disapproved of the change, he would do his best, so far as the legal rights of citizens were concerned, to make it work smoothly. But to enable him to do that he asked their Lordships to put the clergy, who were in a position of extreme difficulty, outside the provisions of the Bill altogether. It would be urged that, under the provisions of the Bill, the clergyman might perform the marriage or not, as he liked; and therefore that there was no compulsion in the Bill. But under the Bill as it stood the clergyman of the parish must lend his church for the marriage if he were asked to do so by the parties supposing that they could find another clergyman to marry them. That meant that the clergyman of the parish must perforce hand over the church, which had been solemnly committed to his care, for a ceremony to which he was opposed, must proclaim the banns beforehand, must make arrangements for the marriage, must see that it was registered as a duly solemnised Church marriage; and thereby
1260
he became a contributory party to a Proceeding which he conscientiously felt to be wrong. He assured their Lordships that there were many clergymen who would simply not do it. He was not criticising them or belauding them. It was riot necessary for the purpose of his argument to say whether they were right or wrong. He was but telling their Lordships that there were scores of clergymen—to put it mildly—who would certainly not do it, who would say that to do it would be contrary to what they had solemnly undertaken, and who, rather than violate their consciences, would be driven to resign their benefices, or, failing that, in the last resort to go to prison. Then it was urged, If that be so, the better arrangement would be to make it optional to the clergyman whether or not he will lend his church. There can at least, it was said, be no compulsion then. No, but there would be a very real harm and danger in throwing upon the individual parish clergy the responsibility of making such choice. Lord Dunraven in introducing, in 1896, the Bill which passed through that House, had eloquently shown how unfair it would be to the clergy to lay upon them the responsibility of refusal or assent. He therefore begged their Lordships to relieve the clergy from a difficulty which they neither desired nor were in many cases qualified to meet in any effective way. For, be it remembered that, in country parishes, the difficulty was one which would press hardly on young and inexperienced clergymen and possibly even on young curates in charge of parishes in the absence of the incumbents. He was impressed by the words which were spoken on Tuesday last by the First Lord of the Admiralty in moving the Second Reading of the Bill. The noble Lord then said—
"The Government, in making themselves responsible for this Bill, were actuated by no spirit of hostility towards any form of religious conviction, and had no desire to do violence to any conscientious scruples. All they asked was that those men and women who did not share such scruples, or accept the premises on which they were based, should be permitted to obtain the sanction of the civil law for a union which conflicted neither with their own moral and religious code nor with the general feeling of modern Europe, of the United States, or our Colonies."

1261
He welcomed those words, and he felt perfectly char that if they were going to give effect to them they must adopt the Amendment. His noble and learned friend Lord James of Hereford, in the eloquent speech he delivered the other day, called attention to the danger under which they would lie in England if on a large scale, or even a small scale, they placed men under what he described as clerical dominance. He fully shared that view and did not wish to see any clerical domination or autocracy Let them place the clergymen outside the Bill, leave these marriages to the civil law, and these difficulties would disappear. In anticipation of the Bill, he had written to South Africa inquiring whether any trouble arose there from the clergy being prohibited from performing these marriages, and the reply was that the situation of the clergy was recognised that they were well known to be prohibited from officiating in such cases, and that the parties were satisfied with a civil marriage. That was the position also in the island of Jersey, where these marriages were legal but where the clergy refused to perform them. He appealed to their Lordships to accept his Amendment, for it was only by passing it that the measure could be made to work harmoniously through the country at large for the benefit of those who, disregarding, as they were entitled in a free country to do, the rules of the Church of England, wished to take advantage of the civil law's permission to contract such unions.
Amendment moved—
"In page 1, line 6, after the word 'without' to insert the words
'other than a marriage hereafter contracted in England by solemnisation thereof by a clergyman in Holy Orders of the Church of England.'" —(The Lord Archbishop of Canterbury.)
LORD TWEEDMOUTH: My Lords, I am afraid that I shall once more come under the ban of the noble Marquess, Lord Salisbury, for being a disorderly person, but I think that if the Committee will allow me to be so I shall really assist the business to-day. The Amendments on the Paper in the names of the most rev. Primate and the Marquess of Salisbury are all driving at the same aim—to secure the position of the Church
1262
of England and its clergy. I think I had better say what I am going to ask the Committee to agree to with regard to the Amendments on the Paper, and then deal with the special Amendment which the most rev. Primate has just moved. I cannot accept the Amendment of the most rev. Primate now before your Lordships; but as to the others, I am quite ready to accept them, though not absolutely, for I must preserve to myself the right to make verbal Amendments to them should it appear necessary on consideration before Report. With that reservation I am quite prepared to see the other Amendments put into the Bill. With regard to the Amendment standing in the name of the Marquess of Salisbury, who proposes to leave out the whole of the second paragraph of Clause 1, I should prefer that the paragraph was retained, but that in cases where the clergyman refuses to perform the service the granting of permission to any clergyman to use the church should be made optional instead of obligatory, by the substitution of the word "may" for "shall." The paragraph would then read—
"Provided also that when any minister of any church or chapel of the Church of England shall refuse to perform such marriage service between any persons who, but for such refusal, would be entitled to have the same service performed in such church or chapel, such minister may permit any other clergyman in holy orders in the Church of England, entitled to officiate within the diocese in which such church or chapel is situate, to perform such marriage service in such church or chapel."
It is perfectly true that we are most anxious to respect the conscientious scruples of all ministers of religion of all denominations throughout the country, and to make this Bill, so far as they are concerned, as agreeable and easy to them as it is possible to make it. But when I come to the terms of the Amendment that has just been moved by the most rev. Primate I see very great difficulties indeed. It is true, as the most rev. Primate stated, that it has appeared in other Bills which have been brought before the Houses of Parliament in former years. But I think myself it ought not to have been in them. At any rate, I am not responsible for the Bills that have been introduced in previous sessions, whereas I am responsible for

1263
the Bill of which I now have charge. What does this proposal of the most rev. Primate involve? It would absolutely prohibit every single clergyman of the Church of England from solemnising those marriages; in fact, the Church is asking that it should receive a new power over and above the ecclesiastical law. The Church of England can make what laws it likes for its own clergy and its own servants, but I say it has not the right to call in the Statute law to back it up. The Church must enforce its own laws. What would be the result if this Amendment were adopted? The result would be that a marriage with a deceased wife's sister could be solemnised and valid by every minister of religion throughout the Kingdom except the clergy of the Church of England. Such a marriage would be civilly legal, but if a minister of the Church of England solemnised it it would be invalid. That is an extraordinary position for the Established Church to take up. And if a clergyman committed a breach of discipline, and solemnised such a marriage, the punishment for that breach would fall on the people who were going to be married. Therefore, I say that if the Committee accept the most rev. Primate's Amendment they will be introducing an absolute novelty into our law, and we shall be creating a new difference between ministers of religion of different denominations which surely is not desirable.
THE LORD ARCHBISHOP OF CANTERBURY: Will the noble Lord explain to us what he meant when he said the Church was perfectly at liberty to act so as to protect herself absolutely? Other bodies are in a position to make any rules or provision they like, for their own protection. The power of the Church of England to do so is restricted: hence this Amendment.
LORD TWEEDMOUTH: What I impressed on the Committee was this, that with regard to this particular question the Church can make what rules it likes. What I say is that it is fair that each individual clergyman should be able to choose for himself whether he will solemnise such marriages. There ought to be perfect freedom to individual clergy-
1264
men in the matter. Such marriages are in future to be sanctioned by the law of the country, and it seems to me that to say that individuals should be estopped from carrying out the laws of the land is a mistake and undesirable.
VISCOUNT ST. ALDWYNsaid the description of the position of the clergy given by the noble Lord might be an admirable description of the position of the Congregational Church, but it was not a description of the position of the clergy of the Church of England. He understood that the clergy were bound by the canon law, which stated that these marriages were contrary to the law of God.
LORD TWEEDMOUTH: No.
THE LORD ARCHBISHOP OF CANTERBURY: I referred specifically to the canon of 1603. The mere term "canon law" is a large and vague phrase which cannot suitably be used in this connection.
VISCOUNT ST. ALDWYNsaid the clergy had undertaken to obey the canon and the canon stated that these marriages were contrary to the law of God. It was asked that the clergy should be free to disobey the canons, and the Bill proposed that a clergyman must lend the Church of which he was the trustee for the solemnisation or these marriages, and the announcement of banns. To his mind, that was a most unfair position in which to put the clergy, and it was absolutely unnecessary. Throughout, the contention of the promoters of the Bill had been that these marriages should be made legal. If the Bill passed that object would be secured, and by a registrar such marriages would be legal, and the children would be legitimate. Was that not enough? He hoped the measure would not leave that House before the consciences and rights of the clergy were completely safeguarded. It was not right that Parliament, in striving to do justice to those who desired this change in the law, should do injustice to others.
LORD STANLEY OF ALDERLEYsaid the effect of the series of Amendments

1265
which the most rev. Primate had put down would be to prohibit the use or the fabrics of Churches for services in any way connected with the solemnisation of these marriages. The most rev. Primate had gone a long way beyond merely safeguarding the feelings and consciences of those clergy who considered these marriages sinful; he proposed also to prohibit those clergy who had no objection whatever to these marriages from taking any part in their solemnisation. The most rev. Primate was evidently prepared to take away from the clergy the liberty and rights of British citizens, and to prohibit them from solemnising marriages which it was lawful for all other ministers in the county to solemnise. The canon of 1603 only applied, he believed, to the province of Canterbury, and not to the province of York.
THE LORD ARCHBISHOP OF CANTERBURY: The noble Lord is quite mistaken.
LORD STANLEY OF ALDERLEY: I await correction.
THE LORD ARCHBISHOP OF CANTERBURYsaid the noble Lord had evidently been studying Church history, but had stopped at the bottom of one page of the book and had not turned over to the next. There were one or two years when the canon was binding on the Province of Canterbury alone, but this was due to a sort of accident, and, when the facts were made clear, King James immediately issued new "Letters of Business" to the Northern Convocation. That body met, agreed to the canons, and forthwith they became operative in the Province of York. The noble Lord would find their actual signatures recorded in Wilkins'Concilia.
LORD STANLEY OF ALDERLEYsaid he had not referred to any book at all, but before he made his statement had consulted a Prelate in the Province of York.
THE LORD BISHOP OF WAKEFIELDsaid he was very sorry he had misled the noble Lord. He only went as far as to say that he believed it was the
1266
case, but would deprecate using any authoritative expression.
LORD STANLEY OF ALDERLEYsaid that even if the canon was binding throughout the whole of the kingdom, it could not be binding if repugnant to the statutes of the realm. As the law of the land was changed from time to time, these ecclesiastical canons had to give way. By the 25th of Henry VIII., Chapter 19, if was enacted that the canons were only valid in so far as they did not clash with the law of the land. and as the law was changed from time to time the canons had to give way. Indeed, many canons had been set aside, though he was not aware that they had been repealed. The first, he thought, of the canons of 1603 required every clergyman four times a year to preach a sermon on the supremacy of the King. He would like to know how many clergymen did that. He was sure that many clergymen would distinctly dislike preaching such sermons. He noticed that several right rev. Prelates cheered the statement that as these marriages were against the law of God clergymen could hardly be expected to acquiesce in them. He agreed that if particular clergymen had this conscientious objection Parliament ought to be very indulgent and give them relief; but the right rev. Primate's Amendment went too far. So long as the Church of England remained established, it must be subject to the law in a way no other Church was subject. Every step which the Church took to relieve itself of its obligations under the law was a step towards disestablishment.
THE LORD CHANCELLOR: I desire to say a few words to the Committee upon the most rev. Primate's Amendment. but I find myself in this peculiar position. I agree with nearly every premiss stated by the most rev. Primate and with every premiss stated by the noble Viscount, Lord St. Aldwyn, but I cannot see how they lead up to the Amendment. It is, I agree, necessary and just to give every protection to the consciences of the clergy, and I do not wish to compel them to do anything that would lead to ecclesiastical censure under the canons of the Church to which they have subscribed.

1267
The Government have intimated, through my noble friend the First Lord of the Admiralty, that they are ready to accept a subsequent Amendment, standing in the name of the most rev. Primate, providing that no clergyman of the Church of England shall be liable to any suit, penalty, or censure—
"For anything done or omitted to be done in the performance of the duties of his office to which suit, penalty, or censure he would not have been liable if this Act had not been passed."
If such a provision were adopted no clergyman's conscience need be violated. Should further words be necessary however, for the purpose of protecting the conscience of the clergyman, let them be inserted. The right rev. Primate has a new clause on the Paper to the effect that nothing in this Act shall relieve a clergyman in Holy Orders of the Church of England from ecclesiastical censure by reason of his contracting such a marriage. I accept all that. But the Amendment now before the House is to this effect, that whereas the Bill provides that no marriage between a man and his deceased wife's sister shall be deemed void or voidable, as a civil contract, by reason only of such affinity, this enactment shall not apply to such marriages contracted hereafter in England if solemnised by a clergyman of the Church of England. That is the Amendment. It means that members of the Church of England who find a clergyman of the Church of England willing to marry them are not to be considered as married persons. The marriage is to be vitiated. No harm is done to the clergyman; the persons harmed are those who supposed they were entitled to have the familial marriage ceremony of the Church of England. That, my Lords, is the only effect of the Amendment. How car any principle of toleration or liberty be invoked in favour of such a proposal?
VISCOUNT HALIFAXsaid there were other persons than the clergy who had conscientious scruples in this matter. The Bill would compel the laity in the various churches to listen to the putting, up of banns for marriages which the canons of the Church of England declared to be contrary to the law of God. Th noble Lord in charge of the Bill had told
1268
the Committee that the Church of England must be allowed, like any other religious community, to make her own rules, but in the very next breath he said that the clergy were to be free to disregard those rules as they liked. That was professing to give liberty with one hand and withdrawing it with the other.
THE EARL OF ROSEBERY: I wish to ask two questions on this Amendment. I am no great enthusiast on this question either way, but I am anxious to clear up this particular matter. I wish to ask the most rev. Primate whether the clergy of the Church of England will be enabled, if his Amendment be passed, to solemnise the religious service in their church after the civil ceremony has been performed?
THE LORD ARCHBISHOP OF CANTERBURY: There is a, provision in the "Civil Marriages" Act of 1836 which provides that any persons who have been so married by the registrar, and desire subsequently to have a religious ceremony, may, if the clergyman consents, go through the form of the religious service. That, however, is not to be the marriage. The marriage is to be reckoned from the time of its celebration in the registry office. I am not advocating that the clergy should adopt that course, lest I should seem to be saying that I thought that the proper procedure was for the clergy to do the thing in that informal way when prohibited from solemnising the marriage formally.
THE EARL OF ROSEBERY: That seems to me to be a practical point. I myself am under the belief that that is the best form of marriage throughout the State. I believe that marriages should be civil marriages first for the convenience of the register, and that the Church to which the married people belong should afterwards give them its blessing. Therefore on that point alone I should be rather disposed to vote for the Amendment of the most rev. Primate as a step in that direction, and as also removing a possible cause of offence to the tenderest conscience of any clergyman of the Church of England. I now come to my second question. It appears that the Amendment of the most

1269
rev. Primate—I do not state this on my own authority, it is stated on both sides—did appear in nearly every Bill that has been introduced on this subject.
THE LORD ARCHBISHOP OF CANTERBURY: I did not say quite that. It has appeared verbatim et literatim seven or eight times, and has on several other occasions been suggested in different words.
THE EARL OF ROSEBERY: At any rate, it has appeared in many previous Bills, and there must have been some reason for its introduction. My noble friend the First Lord of the Admiralty says now—quite properly—that he is responsible for this Bill, and, not agreeing with that provision, has dropped it. But why was it put in in seven previous Bills? I would like to know the history of the abandonment of those words before I can consent to vote for the Bill as it stands at present.
LORD TWEEDMOUTH: We have considered this question very closely indeed, and it seemed to us that it was not desirable to accept this Amendment because it would contravene the statute law of England and give a new power to ecclesiastical law.
LORD JAMES OF HEREFORDsaid, with regard to Lord Rosebery's second question, it would be difficult to trace the framing of any of these Bills. They had been in the hands of a great many private Members, but a Bill legalising marriage with a deceased wife's sister had never before been taken up by the Government. His Majesty's Government could hardly be held responsible for the views of private Members who had introduced these Bills on previous occasions. Those who took the greatest interest in this question were desirous to do nothing which would offend the consciences of the clergy, and they had said that no clergyman should be compelled to celebrate any one of these marriages. But there were a vast number of clergymen who wished to see the present law altered and who were willing and anxious to celebrate these marriages. The Amendment would forbid them. The persons desirous of contracting
1270
a marriage of this kind might wish it solemnised in the parish church in which their ancestors had been married, and it astonished him that it should be argued that these people should be driven to the registry office against their will. These marriages were either right or wrong; if right, surely they ought to be solemnised in a sacred building, and if wrong, they ought not to be allowed at all. The most. rev. Primate had stated that these marriages were not celebrated in the Colonies by clergymen of the Church of England.
THE LORD ARCHBISHOP OF CANTERBURY: I did not say that I had precise knowledge as to every Colony. I have no reason to doubt the general adoption of the rule, but I have not made exhaustive inquiries.
LORD JAMES OF HEREFORDsaid that in the great majority of the Colonies, now seventeen in number, where these marriages were allowed by law, he was informed on very good authority that they were willingly celebrated by clergymen of the Church of England. In Canada it was so.
THE LORD ARCHBISHOP of CANTERBURYsaid he had referred to the canon or rule laid down by the Church in Canada, which prohibited clergymen from celebrating these marriages.
LORD JAMES OF HEREFORDsaid the canon referred to, no doubt, what existed in Canada, but the clergy there took the right and legal view that where the canon law did not conform to the law of the State, then the law of the State prevailed, and they were bound to obey it. That was laid down in the judgment of Lord Hardwicke. It was not a question what the canon was, but what the clergy did; and the clergy in Canada and other Colonies willingly celebrated these marriages. We had had many statutes similar to this Bill sent over from the various Colonies, but in none of these Acts did the clergy in the Colonies ask for the protection which by this Amendment the most rev. Primate was asking for the Church of England in this country. He had only one other point

1271
to put, and it was this—a man was anxious to have a marriage of this kind celebrated with a religious ceremony. He would know, if this Amendment was carried, that it could not be done according to the rites of the Church of England, but that it could be performed in the Roman Catholic Church, and in the places of worship of Nonconformist bodies. Did they not think such a man was more likely to go where he could get his marriage celebrated than to follow his creed? It seemed to him that the Amendment was more likely to produce deserters from the Church of England than recruits to it.
THE LORD BISHOP OF BATH AND WELLSsaid he had been a bishop in Australia for twelve years, and it might interest the noble and learned Lord who had just sat down to know what his experience in this matter had been. The law of the land recognised, perhaps he might almost say encouraged, such marriages, but he only knew of two applications made to clergymen to solemnise marriages of this kind, and in neither case did the clergymen comply.
THE LORD BISHOP OF SOUTHWARKsaid that if the view of Lord Stanley of Alderley was adopted it would follow that whenever Parliament made any change in the statute law, in matters of this kind, the law of the Church would be changed. They were not living in the times of Henry VIII., and he would be greatly surprised if any but a very small number of Members of the House, accepting the modern principle of liberty of conviction, were to think that any spiritual body, be it the Church of England or any other, could prolong its existence on such terms as these. Another point was this. It seemed to him perfectly clear that the plan on which the First Lord of the Admiralty was proceeding was that of pure individualism. The notion that the individual parson was an officer of the Church to which he owed loyalty and allegiance was altogether absent. Would any Nonconformist body tolerate the view that what was to be done in their name was to depend entirely on an individual officer? There must be a corporate conviction and a corporate
1272
conscience in all religious bodies. In all other bodies an officer who did not act in common with the corporate conviction could be brought to book. Was it reasonable that the Church of England should be the only body put in an inferior position in that matter? Then the wishes and convictions of the congregation had also to be considered. There was nothing in the Church of England at this time which was causing more anxiety than the bearing of the divorce laws on its internal economy. If a parson was found, and he was glad to say he was seldom found, who would marry divorced persons in his church, it was an offence to the congregation which could not be exaggerated. Did their Lordships wish to extend the area of friction and to increase the number of cases in which that kind of harm was done in the Church of England? He had confidence in their Lordships' judgment, and he felt that they would decide that the Church ought to be so treated in the Bill as to free her from these dangers.
THE LORD PRESIDENT OF THE COUNCIL (The Earl of CREWE): I wish to call your Lordships' attention to the first of the two questions which were put to the most rev. Primate by my noble friend Lord Rosebery. My noble friend asked whether it was not possible that the actual marriage ceremony might take place civilly and be followed by a religious service in the Church. The most rev. Primate, in a passage which I confess impressed me considerably, has drawn attention to the hardship which might be placed upon a young and inexperienced clergyman by leaving him an option whether the ceremony should or should not be performed in his church; but it seems to me that the value of that argument disappears in view of the answer which was given to Lord Rosebery by the most rev. Primate, because the young and inexperienced clergyman will still be left with this painful option whether or not he is to lend his church for a religious ceremony after the civil ceremony. That seems to me also to dispose of the argument used by the right rev. Prelate who has just sat down, in which he combatted the notion that any individual choice was to be left to the clergyman. That particular individual choice—and this

1273
service, I suppose, must be not less painful to those who object to these marriages than the actual binding ceremony—is apparently left to the clergyman to exercise, and under these circumstances I confess I do not see that the Amendment of the most rev. Primate would, if carried, meet the case which he considers to be one of hardship.
THE MARQUESS OF LANSDOWNE: My Lords, if I venture to add only half a dozen words to this debate I do so with very considerable diffidence, but I feel that it would be almost cowardly to give a silent vote on an occasion like this. I have always been a supporter of this Bill; my support of it in this House extends back to a remoter period than that at which most of the noble Lords I am addressing entered this House. I have supported it on its merits, and also because, in my view, it had this great recommendation, that it was likely to bring to a close a very bitter and invidious controversy. I understand the argument of the most rev. Primate to be this, that if by the Bill as it now stands we get rid of one source of friction and controversy we are likely unless we amend it to produce another and a more serious one within the ranks of the Church. I am bound to say that, if I regard the Bill as it now stands, I am constrained to admit the force of that argument. The Bill, as it now stands, compels a clergyman, whether he likes it or not—
LORD TWEEDMOUTH: No.
THE MARQUESS OF LANSDOWNE: The Bill, as I understand it, compels the clergyman to lend his church.
LORD TWEEDMOUTH: All that is proposed is that he may permit the use of his church. I have explained that I propose to substitute the word "may" for the word "shall" as it stands in the Bill.
THE MARQUESS OF LANSDOWNE: Quite so. I am taking the Bill as it now stands. The Bill on the Table says that the minister who refuses to perform the marriage himself—
Shall permit any other clergyman in Holy Orders in the Church of England entitled to
1274
officiate within the diocese in which such church or chapel is situate to perform such marriage, service in such church or chapel.
That is the text of the Bill as it now stands. I think that goes too far, and therefore I should not be content to support that provision as I find it. Then I come to the remedy proposed by the most rev. Primate. If he will allow me to say so, I think his remedy goes rather too far in the other direction. As I interpret his proposal, it would have this result—that these marriages, if contracted in England and solemnised by a clergyman in Holy Orders of the Church of England, would be void or voidable as a civil contract. That seems to me to be a somewhat violent proposition. The effect of the most rev. Primate's proposal would also, I understand, be that it would not be possible for any clergyman to permit the use of his church for the publication of the banns of marriage or for other similar purposes on such occasions. In short, it comes to this, that the Amendment would relegate the parties to the Registrar's office. I think that is the real effect of it. That seems to me to go beyond the necessities of the case. We have now proposed to render these marriages legal; but I am sure it is within the knowledge of many of your Lordships that to many people, particularly to people in a humble position of life, it makes the whole difference whether the marriage is accompanied by a religious ceremony in the church, or whether it is performed outside the walls of a consecrated building. I cannot but think that this House would take a very serious responsibility on itself in banishing those who wish to contract these marriages to the registrar's office. I am therefore disposed to look with favour on the proposal of the First Lord of the Admiralty to deal with this question by an Amendment of the proviso in Clause 1, an Amendment which would leave it optional to the minister to permit the use of his church for a marriage of this kind. And when I say that, I trust the most rev. Primate will not think that I underrate the force of the argument which he used when he told the House that he saw great objections to making this question a matter for the discretion

1275
of individual clergymen; but to me it seems that this would be the lesser evil of the two. If a clegyman is honestly willing that one of these marriages should take place in his church, I cannot see why the Statute Law should step in and forbid him from permitting it. The most rev. Primate suggested that in his view it would be better that the clergy should stand outside this Bill altogether. Is it too much to suggest that an individual clergyman should stand aside and allow his church pro hac vice to be used by another clergyman for the purpose of solemnising a marriage of this kind? I took note, as the Lord President did, of the very remarkable statement made by the most rev. Primate to the effect that there is now nothing to prevent a clergyman, after the performance of the civil ceremony in the registrar's office, from reading a divine service of some kind in church, and thereby giving, as it were, a sort of —shall I say—sanction, or benediction to a marriage with a deceased wife's sister. Surely, if there is nothing abhorrent in the idea of a service of this kind being performed within the church by the incumbent himself, it cannot be so utterly abhorrent that in the absence of the incumbent the ceremony should be performed by some other clergyman who is willing to perform it. The right rev. Prelate who spoke last from that Bench asked us to bear in mind the feelings of the congregation. But surely if a congregation are thin-skinned upon matters of this kind the members of it would be as much affronted if there was to be a service, no matter what you call it, by their clergyman, performed over a couple who had contracted one of these marriages and been married at the registrar's office, as if the marriage service were to be performed, with the full approval of their own clergyman, by some other clergyman willing to come forward and perform the service within the walls of the church. For these reasons I shall vote for the proposal of His Majesty's Government when we come to the proviso and against the Amendment of the most rev. Primate.
LORD TWEEDMOUTH: I wish to apologise to the noble Marquess for having too previously interrupted him
1276
in his speech. I was pleased to hear that speech, for it represents very largely the views I have been endeavouring to explain to the House. As to what was said by the right rev. Prelate the Bishop of Southwark, I wish to say that I do not for one moment desire to put clergymen of the Church of England in a different position from those of any other church. On the contrary,my object is to keep them on the same level. What I complain of in the most rev. Primate's Amendment is that he is calling in the Statute Law to put the Church of England in a different position from that of any other religious denomination in the kingdom.
THE LORD ARCHBISHOP OF CANTERBURYsaid that the distinction between the informal and devotional reading of a service and the formal celebration of a marriage in church was that the latter involved a great deal more than the mere reading of the service. It involved registration, the publication of the banns, and the other preliminaries which involved in most cases the cooperation of the ministers of two churches. He did not in any way advocate the use of the particular service to which Lord Rosebery had referred. He did not think it would be used in connexion with marriages of this sort, but he could not deny that such a possibility did exist. The noble Lord denied that the Bill was making a distinction between one church and another; but the Church of England was being placed at a real disadvantage, and he contended that they should be able to defend themselves corporately as well as individually, by making it practically impossible for their ministers to solemnise a marriage which was condemned by the rulers of their Church.
THE MARQUESS OF SALISBURYcould not give a silent vote which was to be in the teeth of the one above all others whom it had been his privilege and delight to follow. On this occasion he was unable to follow his noble friend Lord Lansdowne. He could not believe that their Lordships realised how impossible a situation they would put the Church into if they said that there should be a want of correspondence between that which was suggested by the Bill and the

1277
law by which they themselves were governed. The Bill as the noble Lord proposed to amend it would provide that a clergyman might do that which was forbidden by the regulations of the Church. He was in an entirely different position from that of a Nonconformist minister. It was contrary to the law of the Church that a clergyman should do what seemed right in his own eyes. The Church of England should not be reduced to the position of the Congregationalist community, each congregation making rules for itself. That was not the view
of the Church of England; its members desired to be governed by one rule, and for a clergyman to except himself from the rule would not be acceptable to members. The responsibility should not be thrown upon the individual clergyman; he was entitled to the protection of the law in obeying the guidance of his Church. He earnestly entreated their Lordships to support the Amendment.
On Question, "That those words be there inserted,"
their Lordships divided: —Contents, 65; Not-Contents, 108.

CONTENTS.

Canterbury, L. Abp.

Bangor, L. Bp.

Gage, L. (V. Gage.)

Bath and Wells, L. Bp.

Hatherton, L.

Newcastle, D.

Birmingham, L. Bp.

Hylton, L.

Northumberland, D.

Chester, L. Bp.

Kensington, L.

Exeter, L. Bp.

Kenyon, L.

Ailesbury, M.

Lichfield, L. Bp.

Kesteven, L.

Salisbury, M. [Teller.]

Liverpool, Bp.

Langford, L.

Zetland, M.

London, L. Bp.

Meldrum, L. (M. Huntley.)

Norwich, L. Bp.

Middleton, L.

Carnwath, E.

Oxford, L. Bp.

Mowbray, L.

Doncaster, E. (D. Buccleuch and Queensberry.)]

St, Asaph, L. Bp.

North, L.

Feversham, E.

Salisbury, L. Bp.

Robertson, L.

Harrowby, E.

Southwark, L. Bp.

Sanderson, L.

Lauderdale, E.

Wakefield, L. Bp.

Scaton, L.

Mount Edgcumbe, E.

Winchester, L. Bp.

Sinclair, L.

Munster, E.

Somerhill, H. (M. Clan icarde.)

Nelson, E.

Addington, L.

Stalbridge, L.

Shaftesbury, E. [Teller.]

Alington, L.

Stanmore, L.

Waldegrave, E.

Armstrong, L.

Stewart of Garlies, L. (E. Galloway.)

Balfour, L.

Teynham, L.

Goschen, V.

Clifford of Chudleigh, L.

Waleran, L.

Halifax, V.

Colchester, L.

Hill, V.

Estcourt. L.

St Aldwyn, V.

Fermanagh. L. (E. Erne.)

Forester, L.

NOT-CONTENTS.

Loreburn, L. (L. Chancellor.

Dartrey, E.

Hood, V.

Devon, E.

Hutchinson, V. (E. Donoughmore.)

Crewe, E. (L. President.)

Hardwicke, E.

Milner, V.

Ilchester, E.

Templetown, V.

Ripon, M. (L. Privy.Seal.)

Jersey, E.

Kimberley, E.

Abinger, L.

Argyll, D.

Londesborogh, E.

Airedale, L.

Bedford, D.

Morley, E.

Allendale, L.

Richmond and Gordon, D.

Morton, E.

Ardilaun, L.

Wellington, D.

Northesk, E.

Ashbourne, L.

Onslow, E.

Barnard, L.

Camden, M.

Radnor, E.

Barrymore, L.

Hertford, M.

Scarbrough, E.

Belhaven and Stenton, L.

Lansdowne, M.

Stanhope, E

Blyth, L.

Vane, E. (M. Londonderry.)

Boyle, L. (E. Cork and Orrery.)

Camperdown, E.

Verulam, E.

Calthorpe, L.

Carlisle, E.

Wharncliffe, E.

Cheylesmore, L.

Carring on, E.

Clonbrock, L.

Cawdor, E.

Althorp, V. (L. Chamberlain.)

Cloncurry, L.

Clarendon, E.

Churchill, V.

Colebrooke, L.

Cowley, E.

Hampden, V.

Craven, E.

Courtney of Penwith, L

Haversham, L.

O'Hagan, L.

Dawnay, L. (V. Downe.)

Headley, L.

Oriel, L. (V. Massereene.)

Denman, L. [Teller.]

Hemphill, L.

Ramsay, L. (E. Dalhousie.)

Digby, L.

Herschell, L.

Ranfurly, L. (E. Ranfurly.)

Dormer, L.

James, L.

Rathmore, L.

Dunalley, L.

Kilmaine, L.

Ritchie of Dundee, L.

Dunboyne, L.

Kilmarnock, L. (E. Erroll.)

Stanley of Alderley, L.

Dunleath, L.

Kinnaird, L.

Sudley, L. (E. Arran.)

Eilgin, L. (E. Elgin and Kincardine.)

Kintore, L. (E. Kintore.)

Talbot de Malahide, L.

Ellenborough, L.

Lamington, L.

Templemore, L.

Elphinstone, L.

Lawrence, L.

Tweedmouth, L.

Eversley, L.

Leith of Fyvie, L.

Tyrone,.L. (M. Waterford.)

Farrer, L.

Lurgan, L.

Ventry, L.

Fingall, L. (E. Fingall.)

Manners, L.

Weardale, L.

Fitzmauriee, L.

Massey, L.

Welby, L.

Glantawe, L.

Konk Bretton, L.

Wemyss, L. (E. Wemyss.)

Granard,L.(E.Granard.)[Teller]

Monteagle of Brandon, L.

Wynford, L.

Muskerry, L.

On Question, Motion agreed to.

VISCOUNT HALIFAX,who had the following proviso on the Paper—
"Provided always that nothing in this Act shall be held in any way to affect the existing marriage law of the Church of England. the Established Church of Scotland, the Roman Catholic Church, or that of any other religious body,"
said that this Amendment was put down for the purpose of bringing the Bill into harmony with the declarations of the First Lord of the Admiralty in his speech in moving the Second Reading of the Bill. Its object was to prevent the law of the Church of England being affected by a side-wind; but an Amendment of which the most rev. Primate had given notice covered the whole ground, and therefore he would not move his Amendment.
THE LORD ARCHBISHOP OF CANTERBURYmoved the omission of the words "compelled to solemnise the marriage of any man with his deceased wife's sister or shall be." He understood that the noble Lord in charge of the Bill would accept this Amendment.
Amendment moved—
"In page 1, lines 10 and 11, to leave out the words compelled to solemnise the marriage of any man with his deceased wife's sister or shall be.'"—(The Lord Archbishop of Canterbury.)
LORD TWEEDMOUTHsaid he was prepared to accept this Amendment and also the remaining Amendment standing in the name of the most rev. Primate.
On Question, Amendment agreed to.
THE LORD ARCHBISHOP OF CANTERBURYmoved the insertion of words providing that no clergyman should be liable for "anything done or omitted to be done by him in the performance of the duties of his office to which suit, penalty, or censure he would not have been liable if this Act had not been passed."
Amendment moved—
"In page 1, line 12, to leave out from the word 'for' to the word 'provided' in line 22, and to insert the words 'anything done or omitted to be done by him in the performance of the duties of his office to which suit, penalty or censure he would not have been liable if this Act had not been passed.'"—(The Lord Archbishop of Canterbury.)
On Question, Amendment agreed to.
THE MARQUESS of SALISBURY,who had given notice of an Amendment to leave out the whole of the second paragraph of Clause 1 which had been read to the House earlier in the evening by the First Lord of the Admiralty,said that after the decision at which the Committee had just arrived he would not move his Amendment, but would be satisfied with the substitution of the word "may" for "shall."
LORD TWEEDMOUTHthen moved his promised Amendment to leave it optional with the minister of any church or chapel of the Church of England, who refused to perform the marriage service himself, to allow it to be celebrated in the church or chapel by another clergyman of the Church of England entitled to officiate within the diocese.
Amendment moved—
"In page 1, line 18, to leave out the word 'shall' and to insert the word 'may.'"—(Lord Tweedmouth.)
LORD BALFOUR OF BURLEIGHmoved to amend the last paragraph of Clause 1—
"Provided that in case, before the passing of this Act, any such marriage shall have been annulled, or either party thereto (after the marriage and during the life of the other) shall have lawfully married another, it shall be deemed to have become and to be void upon and after the day upon which it was so annulled, or upon which either party thereto lawfully married another as aforesaid,"
by inserting, after the first "annulled,' the words "or proceedings for the dissolution of such marriage shall have been commenced." This Amendment seemed to him to tell its own tale and to be obviously right. If proceedings had been commenced for the dissolution of such marriage it was clear that the parties did not want to have their marriage made irrevocable, and they should not be made into married persons against their will.
Amendment moved—
"In page 1, line 23, after the word 'annulled' to insert the words or proceedings for the dissolution of such marriage shall have been com: menced.'"—(Lord Balfour of Burleigh.)
LORD TWEEDMOUTH: I do not quite understand the object of the insertion of these words.
LORD STANMOREsaid he took the object to be this, that if certain persons had married illegally knowing that it was illegal and wishing not to avoid the consequences of the illegality, it was hard upon them to force them into a legal marriage which they did not wish.
THE MARQUESS OF SALISBURYsaid that the words in the Amendment might not be absolutely accurate, but it was clear that there was a case which ought to be met. There were cases where the parties were intent on annulling the marriage and had actually taken the preliminary steps to that end, and it was very hard that an Act of Parliament should interfere and declare them to be married whether they liked it or not.
LORD TWEEDMOUTH: I will consent to the words being put in now, subject to reconsideration on Report.
On Question, Amendment agreed to.
THE DUKE OF NORTHUMBERLANDmoved further to amend the same paragraph by inserting, after the last "annulled," the words "or upon which proceedings for the dissolution of such marriage shall have been commenced." This was, he explained, consequential upon Lord Balfour's Amendment.
Amendment moved—
"In page 1, line 26, after the word 'annulled' to insert the words 'or upon which proceedings for the dissolution of such marriage shall have been commenced.'"—(The Duke of Northumberland.)
On Question, Amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2:—
LORD BALFOUR OF BURLEIGHcalled attention to the provision that—
"No right, title, estate or interest, whether in possession or expectancy, and whether vested or contingent at the time of the passing of this Act, existing in, to, or in respect of any dignity, title of honour, or property, and no act or thing lawfully done or omitted before the passing of this Act shall be prejudically affected."
The object of this, of course, was to safeguard all rights of property notwithstanding the retrospective action of the Bill, but he thought that if the contingent right to property was saved they should also save the presumptive right to a title. He therefore moved to insert after the word "contingent," the words "or presumptive."
Amendment moved—
"In page 2, line 2, after the word 'contingent' to insert the words 'or presumptive.'"—(Lord Balfour of Burleigh.)
LORD TWEEDMOUTH: This Amendment was moved in the House of Commons by Mr. Cave and seconded by Lord Robert Cecil, but was opposed by my right hon. friend Mr. Haldane, who I think the noble Lord will consider to be a good legal authority. My right hon.

1283
friend pointed out that the word "presumptive" was too much of an expectancy to be considered, and the Amendment was withdrawn on the ground that this was altogether too remote and uncertain a contingency to provide for in the Bill. It seems to me that the decision in the House of Commons was a sound one, and I hope your Lordships will accept it.
LORD BALFOUR OF BURLEIGHsaid he always endeavoured to inform himself of what passed in another place, but the House of Commons had taken to such irregular hours that it was difficult to follow their proceedings, and he had never heard the objection taken to this proposal by Mr. Haldane until that moment. He would be indisposed to set his opinion against that of Mr. Haldane, but he thought the presumptive heir to a title had a grievance if an Amendment of this kind were not inserted to save him. Let them take the case of a peerage or a baronetcy. It might happen that but for the passing of this Bill a certain individual would succeed to the title because those who would otherwise stand in his way were not legitimate. As this Bill had a retrospective action, it might come in the way of the succession of that individual. He did not know whether the words he proposed to insert were the right ones or not, but it seemed to him that without some such provision there would be injustice.
LORD TWEEDMOUTH: If the noble Lord will withdraw the Amendment now I will undertake to inquire further into the point and make a statement upon it on Report.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 agreed to.
THE LORD ARCHBISHOP OF CANTERBURYmoved the insertion of a new clause, the object of which would, he said, be obvious. He understood that the Government accepted the Amendment.
Amendment moved—
"To insert the following new clause:—'(4) Nothing in this Act shall relieve a clergyman. in Holy Orders of the Church of England from any ecclesiastical censure to which he would have been liable if this Act had not been passed by reason of his having contracted or hereafter contracting a marriage with his deceased wife's sister.'"—(The Lord Archbishop of Canterbury.)
LORD JAMES OF HEREFORD: What is the meaning of the word "censure"?
THE LORD ARCHBISHOP OF CANTERBURY: That is a difficult question, and one which it is hardly reasonable to expect me to answer in a single sentence.
LORD JAMES OF HEREFORD: Would it cause the deprivation of the clergyman?
THE LORD ARCHBISHOP OF CANTERBURY: I suppose that what is technically called a "censure" might in, the last resort reach that penalty.
LORD TWEEDMOUTH: I accept the Amendment.
On Question, Amendment agreed to.
Clause 4 agreed to.
VISCOUNT GOSCHENsaid the Bill removed but one of several disabilities under the marriage law. Why should it be legal for a man to marry his deceased wife's sister and illegal for him to marry her niece? The marriage law should be as logical and consistent as possible, and before a Bill amending it in any respect was passed by Parliament there ought to be an inquiry to ascertain the views of the public on the subject. Surely when so momentous a change as this was proposed, no objection should be taken to any reasonable delay. He therefore moved the new clause standing in his name.
Amendment moved—
"After Clause 4 to insert the following new clause:—`It shall be lawful for His Majesty to appoint a Commission to inquire and report whether it is expedient to make other Amendments in the 'law relating to marriage within the prohibited degrees in order to bring the

1285
principle of these degrees into conformity with the provisions of this Act. Such report shall be laid before Parliament, and thereupon His Majesty may issue an Order in Council bringing this Act into force. The order shall be laid before Parliament, and unless within the next subsequent forty days an address is presented to His Majesty by either House of Parliament, praying that such order be annulled, this Act shall come into force accordingly, but not otherwise.'"—( Viscount Goschen.)
LORD TWEEDMOUTH: The Amendment which the noble Viscount has moved is, in the first place, dilatory, and, in the second place, altogether unnecessary. It would also be a very unusual one. Surely it is an extraordinary idea to introduce a clause into a Bill to say that it shall be lawful for His Majesty to appoint a Commission. The appointment of a Commission is part of the ordinary function of the Sovereign. It may be very suitable, I agree, that a Commission should consider the whole subject of the marriage laws, but not this particular point; and if you did appoint a Commission, as proposed, the result might be that the Bill would be postponed for another seventy years. I cannot accept the Amendment, and, indeed, I do not think it is one which would be at all proper for your Lordships to place in the Bill.
THE MARQUESS OF SALISBURYdid not think that on the point of form the noble Viscount could be quite accurate. There was no doubt that his noble friend's intention was that a Commission should be appointed, but it would not be regular in an Act of Parliament to direct the King to appoint a Commission. But that was only a matter of form. The point of the Amendment was really a very substantial one. The striking circumstance which emerged from the Second Reading debate was that the Government were unable to give any kind of consistent view on what principle they thought the table of affinity should henceforth be drawn. The point was again and again in the course of the debate put to noble Lords who supported the Bill, but they could not tell the House what they thought ought in the future to be the principles of the table of affinity. The Lord President made an ingenious
1286
speech, but did not attempt to tackle that particular point. Not one of the speakers on the other side could give even a colourable reason why the deceased wife's sister should be selected from among the host of other relationships, some of which stood even further off from the husband. He had asked noble Lords opposite whether they were willing to part with the degrees of affinity altogether, but instead of answering the question they only looked shocked. Even the dexterity of the Lord Chancellor could not extricate them from the difficulty of explaining why, if marriage with a deceased wife's sister was allowed, marriage with a deceased wife's niece should not also be legal. Then there was the very awkward question of the stepdaughter. Why were noble Lords who supported this Bill shocked at such a marriage as that? He was shocked, of course, but then he was consistent. At present our system was consistent, but if the law was to be tinkered with all the degrees of affinity ought to be considered. They were really entering upon a sea absolutely without a chart. What was it that the noble Viscount proposed? The noble Viscount said, in effect, that this matter had not been properly considered. Surely before this alteration was made in the marriage law the degrees of affinity and the extent to which they were affected by this change should be considered. Let them take the case—he knew of one—where the sister-in-law was of an age about equal to that of one of the daughters of the marriage—that was to say, quite young. She was treated by her brother-in-law in almost a paternal manner and brought up in the same house under his care and guardianship. Then on the death of his wife this man would be able to marry this child whom he had treated in a paternal manner and who had been brought up under his guardianship. Their Lordships were not shocked; then why should they be shocked at a man marrying his deceased wife's niece. All that his noble friend. who had moved the Amendment asked was that before enacting this absolutely illogical and indefensible exception there should be some inquiry. The noble Lord in charge of the Bill had stated that the acceptance of the Amendment might put off this reform for seventy years.

1287
He had heard of Commissions which took a long time to deliberate, but he had never heard of one which took seventy years. The First Lord of the Admiralty, of course, was romancing. What would happen was that the Commissioners appointed in pursuance of this Amendment would sit and consider these real difficulties. It would, above all things, have to hear the opinion of the women of England. He wished the voice of the women of England could be heard on this question. No one seemed to pay the least attention to the opinion of women on this question. He had always been an opponent of woman suffrage; but he confessed the passage of such a Bill as this very much shook him, because he believed if the women had the vote there would be a very different appearance in the House of Commons in respect to this measure. The noble Lord in charge of the Bill had described the Amendment as dilatory. No doubt it was dilatory in the sense that it would involve a certain amount of time, but it would not throw away the work of Parliament in respect of this Bill. It would not necessitate the debate beginning all over again in the House of Commons and in the House of Lords. All the work which had been clone on this Bill would stand absolutely. No doubt there would be one more stage. but after the Report of the Commission Parliament would be asked whether, in view of that Report, they still held to the opinion which was expressed on the Second Reading. That was the extent to which the Amendment would be dilatory; it would not be dilatory to the extent of destroying what Parliament had achieved. And in approaching a matter of such importance he did not think that it was asking too much that there should be a little further consideration.
LORD TWEEDMOUTH: I will answer my noble friend out of his own mouth. He asserted that we have not shown any good reason for bringing forward this Bill, and he added that this was an exceptional case. Well, that is the very reason why we are pressing this Bill. Of all the marriages coming under the law of affinity nine-tenths belong to this category. It is a very old story. In
1288
1835 the justice of this legislation was admitted, and it was only by a chance, which I have already explained, that things were not settled in that year. Ever since then there has been a great demand for this relief, and the Commission of 1847 went very closely into the whole matter, and recommended it very strongly. Since that time the question has been brought again and again before the Houses of Parliament, who again and again have assented to the principle of the Bill. I think there is a complete case for dealing with it in a quick and complete manner, and I do not think there is any necessity whatever for further inquiry by a Commission.
THE DUKE OF NORTHUMBERLANDsaid it appeared that relief was being given in this case because of the number of marriages coming under the law of affinity which belonged to this category. Therefore it was only a question of counting of noses, and not one of principle. Last year, as the Lord Chancellor had reminded them, a Bill was passed dealing with one point in the marriage law. This year marriage with a deceased wife's sister was attacked. Where would they stop? Stone by stone they were taking down the whole fabric of our marriage laws. The noble Lord in charge of the Bill had declared that if the Amendment were carried, there would be no further action in the matter for seventy years. The only possible interpretation of that remark was that the noble Lord knew how bad was the case of those who supported the Bill, and that, if a Royal Commission were to inquire into the whole subject, they would hear nothing more of this kind of legislation.
VISCOUNT HALIFAXurged the Government to consider seriously the proposal embodied in this new clause. It was said that the marriage laws were in confusion and ought to be considered as a whole. If this Bill passed he could assure their Lordships it would certainly not bring peace, for the clergy as a body would refuse to celebrate these marriages. On the other hand, only two days ago Mr. Paynter Allen, the Secretary of the Marriage Law Reform Association, while referring to this Bill as the success of his

1289
life, said there were many other extensive questions still remaining to be dealt with. If their Lordships passed this Bill as it stood they would take a step which would make it quite impossible that things should remain where they were, and he earnestly pressed His Majesty's Government seriously to consider the proposal embodied in the Amendment. The Lord Chancellor, in his speech on the Second Reading, had told the House that the whole of the marriage laws were in complete confusion; there was one law in England, another in Ireland, another in Scotland, and, again, different laws in the Colonies. The Divorce Court was a source of collusion and perjury and was poisoning the foundation of morals in this country; and he was convinced that there was nothing more important for the welfare of the country than that the whole of the marriage laws should be considered and an attempt made to put them on some reasonable and logical basis. If this were not done they would go from bad to worse.
Amendment, by leave, withdrawn.
Standing Committee negatived.
The Report of amendments to be received on Monday next; and Bill to be printed as amended. [No. 205.]

SHERIFF COURTS (SCOTLAND) BILL.
Brought from the Commons and read 1a; to be printed; and to be read 2a Tomorrow.—(The Lord Hamilton of Dalzell.) [No. 206.]
EXPIRING LAWS CONTINUANCE BILL.
Brought from the Commons and read 1a, and to be printed. [No. 207.]
PUBLIC WORKS LOANS BILL.
Brought from the Commons and read 1a, and to be printed. [No. 208.]
WHALE FISHERIES (SCOTLAND) BILL.
Brought from the Commous and read 1a; to be printed; and to be read 2a Tomorrow.—(The Lord Hamilton of Dalzell.) [No. 209.]
NOTIFICATION OF BIRTHS BILL.
Brought from the Commons and read 1a; to be printed; and to be read 2a Tomorrow.—(The Lord Allendale.) [No. 210.]

EVICTED TENANTS (IRELAND) BILL.
Order of the day read, for the consideration of Commons Amendments to Lords Amendments and Commons reasons for disagreeing to certain of the Lords Amendments.
Clause 1:—
THE EARL OF CREWE: Perhaps I may first of all remind your Lordships that the Bill to which reference is made in the Paper containing the Commons Amendments to the Lords Amendments, and the Commons reasons for disagreeing to certain of the Lords Amendments is not the Bill with which they have lately been dealing on Report, but is the original Bill, No. 148. That is the usual practice, and I think your Lordships have that Bill before you. I first have to move that your Lordships do not insist on your Amendment to which the Commons have disagreed, namely, in Clause 1, page 1, lines 5 to 13, to leave out Subsection (1) and insert a new subsection. The noble and learned Lord (Lord Atkinson) has also an Amendment; but probably it will be the most convenient course if I state the reasons on which I ask your Lordships not to insist on your Amendment. And, in doing so, perhaps I may refer to the new Amendment which Lord Atkinson has on the Paper.
LORD ATKINSONsaid that although the Amendment was in his name on the Paper, it was a mistake, and he was not moving it.
VISCOUNT MIDLETONsaid that he proposed to move an Amendment to the Commons Amendment.
THE EARL OF CREWE: Is that the Amendment in Lord Atkinson's name?
VISCOUNT MIDLETON: Yes, Clause 1, page 1, line 5.
THE EARL OF CREWE: We adhere to our original clause in the Bill with an Amendment, which I will explain to your Lordships. As the clause now stands in the original Bill, it reads thus—
"If it appears to the Estates Commissioners it is expedent to acquire any land for the purposes of this Act, and if they have offered to the person appearing to them to be the owner of the land a price which appears to them to represent the fair market value thereof."
We propose to alter it in this way—
"If it appears to the Estates Commissioners that it is expedient to acquire any land for the purposes of this Act, and if they have offered to the person appearing to them to be the owner a price which appears to represent the value of the land."
Your Lordships will observe that we leave out the words "fair market" value. I would now ask your Lordships to turn to Clause 6. The two last lines of Clause 6 ran—
"Land shall be selected with due regard to the general situation and convenience of the owner's property, so as to diminish the value thereof as little as possible."
In lieu of that, we propose to substitute these words—
"Land shall be selected with due regard to the general situation and convenience of any other property of the owner so as not to diminish the value thereof."
I am obliged to trouble your Lordships with those two Amendments together, because I think it will be clear to the House that the whole question of how the value is to be estimated depends on how Clauses 1 and 6 are dealt with. Our reason for making this suggestion is this. Section 49 of the Lands Clauses Consolidation Act, 1845, provides that what is given is a sum representing the value of the land to be purchased and also compensation for injury done, or to be done, to the lands held therewith. That, I think, your Lordships will agree to. There was a case of the Commissioners of Inland Revenue v. The Glasgow and South Western Railway Company, which your Lordships will find in the 12th Vol. of Appeal Cases, page 320. In that case, Lord Halsbury laid it down that—
"The two things, and the only two things which are within the contemplation and ambit of the Lands Clauses Act, 1845, are, the value of the land, in the first place, and such damage as may arise to other lands held therewith by reason of the particular land which is taken being taken from them."
1292
In an Irish case, Close's Estate (I. Irish Reports, page 381), Chief Baron Palles referred to the above statement of the law made by Lord Halsbury. He made express reference to the words I have quoted, and said—
"Here, as there, the expropriated owner is to receive the value of that of which he has been deprived. Were the thing in question such that something practically identical with it could be obtained at a money price—in other words, were it something for which there was an open market—the value would be the price at which that identical thing could be obtained in the market. When there is no market for the particular thing, the price must be that of a thing similar in all material respects."
My Lords, that is the principle on which we think these lands should be sold. The objection to the words "fair market" value, which, as I understand, has been taken, and I admit taken with some reason, is, that it is very difficult to say what the "fair market value" of untenanted land in Ireland is. As we know, in this country the "fair market value" of land can practically be ascertained, because you can form an idea of what it would fetch if put up for sale. That, no doubt, does not apply in this case; and therefore what we propose is that the words should be " the value of the land " in Clause 1, which means the value of the land as estimated under the general transactions which take place in land in Ireland; that is to say, that the value would be estimated as though an ordinary purchase transaction were going to take place. Then, in addition to that by our proposed Amendment to Clause 6, we take the second half of what Lord Halsbury pronounced to be the only other consideration arising under the Lands Clauses Act—
"Such damage as may arise to other lands held therewith by reason of the particular land which is taken being taken from them."
Our Amendment to Clause 6, as noble Lords will see, says that when you take land under Clause 6, the land shall be selected with due regard to the general situation and convenience of any other property of the owner so as not to diminish the value thereof. First we said "to diminish as little as possible," which is of course a very much milder way of putting the thing; but it appears to us that when we say that the value of the other land is not to be diminished, it

1293
adds an immensely increased safeguard to those whose land is likely to be taken, always bearing in mind that the actual effect of a provision of this kind would be, not that the land would be taken at a high price, but it would simply mean that the Estates Commissioners would have to look for some other land elsewhere. We think that those two changes give practically all the protection which any owner of land in Ireland is entitled to, and practically all that he would obtain under the Lands Clauses Acts. But, what we are unwilling to do is actually to incorporate the Lands Clauses Acts, because of a certain degree of odium and additional expense which attaches to those particular Statutes. I hope therefore the noble Lords opposite may see their way to accept this, which we think practically goes the whole way in giving them what they want, instead of adopting the suggestion of the noble and learned Lord (Lord Atkinson).
Moved, "That the House do not insist on its Amendment to page 1, lines 5 to 13."—(The Earl of Crewe.)
LORD ATKINSONwished to say one word with regard to the Lands Clauses Acts, into which the noble Earl had made an excursus. It was quite true that it was "the value of the land" which was to be taken into account, but it was "the value of the land" to the owner and not to the person acquiring it. If the noble Earl had looked at the case of Reckitts v. Metropolitan Railway Company, he would have seen that it was there laid down that whether the land was profitable or unprofitable to the person taking it was a matter of no concern, and two illustrations were there given of that. One was where an ordinary public-house might be taken, and although the public-house might be worthless to the purchaser, still he had to pay compensation for trade profits and everything of that kind. Therefore, their Lordships would see "the value of the land" must be its value to the man owning it. The other illustration showed that doctrine even more clearly, namely. a case where a vicar owned a graveyard which was of no use to him, but which was of very great value to the railway company who took it. The vicar got
1294
no compensation because it was valueless to him. The other matter to which the noble Earl had referred was severance injury, injury to other lands belonging to the same owner by the taking of the land which was taken. That was, of course, an entirely different matter; but, if he was very anxious to give to the landlord who was deprived of his property all that the Lands Clauses Acts would give him, then he would suggest that, instead of attempting to make a definition, the simple way was to say that the compensation would be given upon the principle of the Lands Clauses Consolidation Acts.
THE EARL OF CREWE: From what I have said, the noble and learned Lord will understand, and the House will understand, that I am afraid we cannot agree to the incorporation of the Lands Clauses Acts. If I might repeat it once more, so far as this first clause is concerned the Amendment is a very simple one; it is, simply to strike out first the words "of the land"—that is merely a drafting Amendment—and then to strike out the words "fair market," making it read "which appears to them to represent the value of the land."
LORD ATKINSONsaid that that did not get rid of the difficulty. He would take the case of an ordinary grazing, where the owner of the land was making perhaps £2 an acre by letting it for grazing. What was the value of the land under the Lands Clauses Acts? The value to the owner would be such loss as he sustained by being deprived of that user of the land which made it worth £2 an acre—that was the value to him — and, if he was deprived of it, according to the Lord President, he ought to be compensated for it. The words which the noble Earl had suggested,"the value," meant the value to the Estates Commissioners, who said that the profit the owner was making was not to be taken into account at all; and that the value, in their estimation, was the fair rent they chose to fix on a hypothetical tenant.
THE EARL or CREWE: In reply to that, if I may be pardoned for interrupting the noble Lord again, I should say that the fact that the land was

1295
producing £2 an acre would be so distinctly an element in the value as to need no affirming, but the degree of security attaching to that £2 per acre would have to be taken into consideration too. You cannot assume that it is necessarily £2 an acre for ever. All those considerations will have, I should think, to be borne in mind in considering what "the value of the land" is.
VISCOUNT MIDLETONhardly thought the intentions of the noble Earl would be carried out when the Estates Commissioners came to estimate the value of the land. After all, what was desired to be arrived at was not the market value in the case in which there was no market value, but the value in the sense of the loss sustained by the landlord in what had been taken away from him against his will—compulsorily. He did not know whether the noble Earl had considered the case of a man farming his own land; he might be making an ordinary profit on 100 acres of land which he would lose, and for which, he submitted to their Lordships, he ought to be recouped if the land was taken away compulsorily. The value of the land would be weighed by a number of circumstances, not merely by the profit he was making, but by the value as ascertained of what had been paid under corresponding tenancies, and other such data, which did not refer in the least to the loss which the landlord himself might sustain. Then again he thought they owed the Commissioners some guidance. There had been a great deal of discussion as regards what might happen in connection with the grazing lands in Roscommon; for instance, lands let for eleven months, and which were "untenanted lands" for the purpose of this section. They had been told by the Estates Commissioners what their idea was of how to estimate the value of such land. But he submitted that the landlord, who would be the loser, not of the estimated value of the land, but of the actual amount which he had been receiving for several years past, had a right to have that taken into consideration in estimating the value of the land. Therefore what he would suggest was that his noble friends should meet the Government by not insisting upon their Lordships Amendment so far as the first portion o
1296
the clause was concerned. That Amendmend made it incumbent upon the Estates Commissioners to prove that they had been unable to acquire, by agreement, suitable land for their purpose. And the Commons, in disagreeing with their Lordships, gave as their reason that the effect of the Amendment would be that of causing delay in the first place and increasing the expense in the second place, and so rendering the Act useless. If their Lordships met the other House by surrendering the first portion of the Amendment, and by adopting the words in the Government Bill, they would be making a very great concession to the desire of the Government that the matter should proceed without delay, and at the same time giving, on behalf of the landlords, the great concession that even if the Commissioners should seize upon certain lands which might be of more value to the landlord, and which he might be able to prove that they could have done without, still he would have no appeal from their decision. If their Lordships made that concession he submitted that they had a right to be fully protected in the matter of value, and that the question of whether it would cause additional expense was a question, not for their Lordships, but for the Commissioners. If they chose to take land which caused additional expense, there was no possible argument, so far as he could see, which could be addressed to their Lordships by which it could be shown that the Commissioners should not pay the full value of that land. They had the whole of Ireland before them, so far as the land was untenanted, and if they chose to take land which was bringing in a large revenue to the owner, they were bound, when taking that land, to recoup the owner. That being so, he suggested that the words instead of being "the fair market value," or "the value" as proposed by the noble Earl the Lord President, should be "compensation for the loss which would be sustained by the owner by being deprived thereof." Those words would represent simply the compensation which in any other Act that he was aware of was given to an owner whose land was compulsorily taken from him. They would not contain any provision, because, if his noble and learned friend

1297
(Lord Atkinson) insisted upon his Amendment with regard to appeal, which he understood he proposed to do, he had specially limited in a clause of that Amendment the compensation to be given so that it should not include anything for the compulsory taking. Therefore, what would be given would be simply compensation to the owner for the loss which he had sustained; and, where it was declared to be an estate the bonus which followed on a voluntary sale would of course follow on a compulsory sale, for he was sure that nobody in that House would contend that what a man had a right to receive under the law if he sold voluntarily should be withheld from him if he sold under compulsion. And he could not help believing, when they knew that the Commissioners had already in their possession sufficient land to provide for the whole of these evicted tenants, that if they worked with discrimination they would be able to obtain without undue expense the necessary untenanted land to complete this operation. Therefore he thought that the clause as he proposed to leave it would meet the reasons of the Commons in both particulars. Their Lordships would abandon that portion of his noble and learned friend's (Lord Atkinson) clause which might cause delay, and would leave in the hands of the Commissioners such provision as would enable them to work without incurring any expense, except the legitimate expense of recouping the landlords.
THE EARL OF CREWE: I do not wish to speak again; I merely wish to say that it is clear, from what I have already said, that we cannot in any way agree to this proposition. Of course, it is open to your Lordships to amend the clause in the manner suggested, but it must be understood, although I shall not take the trouble of dividing the House, that His Majesty's Government is not in any way agreeing to it.
THE MARQUESS OF LANSDOWNE: It seems to me to be a great pity that we cannot agree upon this point, which is not really one of very first-rate importance. I do not understand that the noble Earl really challenges the view which is held upon this Bench. I am very grateful
1298
to His Majesty's Government for having struck out of the clause the words "fair market" value; because our point throughout has been that the "market value" in Ireland, owing to circumstances to which I need not refer, has ceased to be a real "market" value. Therefore, we object entirely to "market" value; and "fair market" value having gone, only
"value" remains. What do His Majesty's Ministers mean by "value"? Surely, the value to the owner. What is the value to the owner? The value to the owner is that which entitles him to compensation. "Compensation" is an English word which expresses the idea which is really, I believe, common to our view, and to the view of the noble Lords opposite. Is the noble Earl quite clear that he cannot accept the very reasonable Amendment of the Government Amendment?
THE EARL OF CREWE: I am afraid I cannot agree to the insertion of the word "compensation." The noble Viscount (Viscount Midleton) did not allude to the very wide concession which we are prepared to make with regard to Clause 6, which ought to be read in with this, in order to understand what it is that we propose to do. If you do not take "the value of the land," it means that you want something more than the "value," that is to say, something more than the sum which the land would fetch in open market, if there were an open market.
LORD ASHBOURNEsaid it was obvious from what the noble Earl had said that he desired to approach the question with fairness, but surely he did not want to give the landlord too little. He was perhaps afraid of giving too much; but on the Opposition side of the House there was a fear that His Majesty's Government were not giving enough. As far as he could see, the question pivoted on the difference between the word "value" and the word "compensation." His noble and learned friend (Lord Atkinson) had pointed out that "value" in a sense might be equivocal. It could not possibly be intended to mean the value regardless of the value to the owner, yet it might be read, unless

1299
qualifying words were used, to be the value to the person who desired to acquire the land. The words might be used perfectly honestly, but they might be read in a way which would bring out an entirely unsatisfactory result.
THE EARL OF CREWE: They are Lord Halsbury's words.
LORD ASHBOURNEsaid it was one thing to use words in a judgment where they were to be read with the context, and another thing to put words into an Act of Parliament in which there was nothing but the words themselves out of which to make an interpretation. He would put it again—although perhaps the noble Earl might not be able off-hand to give an answer—that if the word "compensation" was a word which better conveyed the idea of recognising the claims of the owner to have his interest considered, surely His Majesty's Government ought to be prepared to consider whether it was not a better word to be used than the word "value," leaving out altogether the element of the interest of the owner.
LORD DUNBOYNEsuggested that the difficulty might be got over by using the words, "which represents the fair value to the owner of the land."
THE EARL OF CREWE: I really do not know what that means. Does that mean the Lands Clauses Consolidation Act? Because, if it does, as I have already explained, we are not prepared to accept it. We do not like the word "compensation" because it suggests the Lands Clauses Acts—I am perfectly frank in this matter—but we do like the word "value" founded on that observation of Lord Halsbury, because it is one of the two incidents in a purchase under the Lands Clauses Acts; and we give the other, to a very great extent, by our proposed Amendment to Clause 6.
THE MARQUESS OF LANSDOWNE: When the noble Earl talks of "value," does he mean the value to the owner?
THE EARL OF CREWE: I am afraid I must ask another question: Does that mean what the owner thinks is the value?
THE MARQUESS OF LANSDOWNE: Oh no; the Court has to decide the value. An offer is made to the owner representing what the offerer believes to be the value to the owner; then the proceedings go on and the matter comes before the Court. My question is: Does the noble Earl, or does he not, mean, when he speaks of "value," the value to the owner?
THE EARL OF CREWE: I prefer to put it in the way I put it before. It is what the value of the land would be in the open market if there were an open market.
THE MARQUESS OF LANSDOWNE: But we have dropped "market" altogether.
VISCOUNT MIDLETONsaid that was exactly the point which they were afraid the noble Earl was driving at. In the English Bill, His Majesty's Government had no hesitation, in the case of land they took away from a tenant, in talking of "compensation" to the tenant for the loss of his land; that was to say, the value of the land taken from the tenant. Why was the Irish landlord not to have the same word "compensation," which was so much disliked, for the loss of his land, that was to say, the value to him of the land, the same as in the other case, it was the value to the tenant of the land?
THE EARL OF CREWE: I do not know the English Bill very well, but I do not think the word "compensation" is used in that Bill with reference to the landlord. In any case, in considering this Bill it must be considered that the landlord is going to receive, over and above the ordinary terms of purchase, a bonus, which is a distinct extra. I am afraid we cannot carry the question further on this occasion, because I cannot agree to the insertion of the word "compensation"; and we are only wasting time in attempting to argue the matter any further.
LORD MUSKERRYsaid that in that case it would be better to let the original Amendment stand. If His Majesty's Government would not accept that which

1301
their Lordships had put in, then he suggested that Lord Atkinson's original Amendment as passed by their Lordships should be adhered to.
VISCOUNT ST. ALDWYNsaid that he happened to know the English Bill pretty well; and he observed that in the first paragraph of the first schedule which governed the compulsory acquisition of land under that Bill it was provided that the Order was to be in the prescribed form, and was to contain provisions necessary for carrying it into effect and protecting the council and the persons interested in the land, and was to incorporate the Lands Clauses Acts, and so on, subject to the modification that any question of disputed compensation should be settled by the valuers. So that in the English Bill was the very word
"compensation" to which the noble Earl objected.
THE LORD CHANCELLOR: There is no Motion before the House at present.
THE EARL OF CREWE: I beg the noble and learned Lord's pardon—I have moved that we do not insist on the Amendment to the Bill.
VISCOUNT MIDLETONwished to move to amend the Lord President's words by inserting, instead of "fair market value? the words "compensation for the loss which would be sustained by the owner by being deprived thereof."
THE LORD CHANCELLOR: I will first put the noble Earl's Motion to the House.
On Question—
"That this House do not insist on the Amendment in Clause 1, page 1, lines 5 to 13, to leave out Subsection (1) and insert a new subsection to which the Commons have disagreed."
Motion agreed to.
VISCOUNT MIDLETONsaid that he would now move his Amendment.
Amendment moved—
"In page 1, line 9, to omit the words 'fair market value thereof,' and to insert the words compensation for the loss which would be sustained by the owner by being deprived thereof.'"—(Viscount Midleton.)
1302
On Question, Amendment agreed to.
VISCOUNT MIDLETONwished to further amend this Amendment by adding, after the words "they may" in the next line of the original Government drafting, the words "subject to the provisions as to appeal contained in this Act." Obviously, His Majesty's Government had themselves admitted an appeal on the question of value. They, on their side, were not seeking to set up an appeal as regards the land to be taken, but simply an appeal as regards the value. Without that indication, no appeal would, as he was advised, appear to lie. He begged to move.
Amendment moved—
"In page 1, line 10, after the word 'may,' to insert the words 'subject to the provisions as to appeal contained in this Act. —(Viscount Midleton.)
On Question, Amendment agreed to.
THE EARL OF CREWE: The next Amendment is in Clause 1, page 2, line 4, alter "Acts" to insert "not exceeding 2,000 in all." I move that the House do not insist on that Amendment. I stated very fully, I think, on a former occasion the objection we have to fixing a limit of 2,000; but there is one consideration which I think I did not sufficiently impress on the House on the last occasion, and which I think I ought to bring before its notice now—namely, that the words "not exceeding 2,000 in all" apply, apparently, to tenants reinstated under this Act; that is to say, reinstated by compulsory power. The 2,000 would not include any tenants reinstated by agreement. It is perfectly obvious that you cannot lay down in an Act of Parliament a limit to the number reinstated by agreement; that would be obviously improper; and therefore what your Lordships have done is to fix a limit of not less than 2,000 who may be reinstated by compulsory powers. I should imagine that nothing like that number are likely to be in a situation which would demand the compulsory taking of land. I have objected all through to a number limit, on the ground that it might be assumed by some people that it would be a standard to work up to, and I still maintain

1303
that objection. I now leave the matter to your Lordships to decide.
Moved—
"That this House do not insist on their Amendment to page 2, line 4, after the word 'Acts' to insert the words 'not exceeding 2,000 in all."—(The Earl of Crewe.)
THE MARQUESS OF LONDONDERRYsaid that if the noble Earl objected to the number 2,000, he objected entirely to the figures given by the Estates Commissioners and put forward by the Chief Secretary in another place. He (Lord Londonderry) had fixed the limit at 2,000 because those were the figures given by the Estates Commissioners and put forward by the Chief Secretary in the House of Commons. He certainly had, at the time of moving his Amendment, drawn their Lordship,' attention to the extraordinary increase in the number of the people who desired to be considered evicted tenants, when compared with the numbers mentioned by Mr. Dillon in 1893, when Mr. Wyndham had brought forward the Land Purchase Bill, and when the question of the evicted tenants was very thoroughly discussed. He was speaking subject to correction, but he believed that at that time Mr. Dillon stated that there were only something like 600. Under those circumstances he thought it was necessary, and he thought the Chief Secretary was perfectly justified in stating, that there should be a limit; and, in fixing the number at 2,000, he thought he had been extremely generous, when that number was compared with the number given by Mr. Dillon. But what he had wished to impress upon their Lordships at the time he originally moved the Amendment, and what he wished to impress upon the House now, was that there should be a limit of some sort. If His Majesty's Government wished to extend it by a hundred or two, he would have no objection; but to leave the number absolutely unlimited, when they had thousands of so-called evicted tenants applying to be re-instated, was, he thought, most unsatisfactory to everyone concerned. It must be hopelessly unsatisfactory to the Estates Commissioners, because they would have to go over again all the different applications which they had gone over before
1304
and refused; it was a hopelessly unsatisfactory position to those people who, if there was to be no limit, would hope that their claims would be reconsidered and that they might be reinstated; but worst of all would be the position of those who were called the "sitting" or new tenants, who had for the last twenty years enjoyed the benefits of their tenancies.
THE EARL OF CREWE: I am very unwilling to interrupt the noble Marquess, but the point I ventured to make was, that if you leave this Amendment in the Bill, it allows 2,000 tenants to be placed on land compulsorily acquired in addition to the whole number who may be restored by agreement. I cannot think that is what your Lordships mean.
THE MARQUESS OF LONDONDERRYurged that some figure ought to be fixed_ He would be happy to agree to any reasonable figure suggested by the Government, but he did not think they would be justified in leaving it open to the whole of the possibly 4,000 or 5,000 evicted tenants who might desire to be included. He was perfectly willing to make the number an elastic one; but, in the interests of all concerned, some limit ought to be placed on the number, and he invited the noble Earl to state a number.
THE EARL OF MAYOsaid he quite understood the point of the Lord President, but it must be remembered that the other offer was made with 80,000 acres of land. They knew very well that if a limit of that sort was put into the Bill it would mean the most awful ructions, if he might be pardoned the vulgarism, in Ireland; and he thought it much safer that there should be a limit to the number. The noble Earl had said that there was a danger in 2,000 evicted tenants being compulsorily put back on the land. They were quite willing to reduce the number to a lower number than 2,000. They were rather on the horns of a dilemma, because the Government would not give them a number, and yet they hinted that there were 2,000 of these evicted tenants who would have to be compulsorily reinstated; and the other horn of the dilemma was, that

1305
there were 80,000 acres to be taken. They who lived in Ireland could not accept that, because they knew what it meant, and if the noble Earl would reduce the number some arrangement might be come to. He really did not know what the Government was driving at.
THE EARL OF DONOUGHMOREfelt bound to point out that the objection now brought forward by the noble Earl to this Amendment was entirely different from those which had been urged for the last three or four months. The objection of the Chief Secretary in another place, as he understood, was that there might be another dozen or two over the 2,000 who would be deprived of the advantages of this Act. It was now suggested that the number to be put back by compulsory machinery would be very much less than 2,000, and that the Government did not want to be forced to throw open the gates to 2,000. If they were going to restore a great many more by voluntary arrangement what was the case for the Bill? The case for the Bill, as he had understood, was that the Commissioners said that they could not get any more land upon which to put back these evicted tenants, and he did not think he had misunderstood the case as it had been put. The argument the noble Earl had just put forward seemed a very curious commentary upon the case previously put before them in the Report of the Commissioners presented to Parliament and in the debates that had taken place.
LORD ASHBOURNEwas not sure that the noble Earl had not knocked the bottom out of the reasoning for the Bill. They had great difficulty on that side of the House in understanding this absolutely new departure with regard to the statement of figures. They had had three stages o the Bill—the Second Reading, the Committee and the Report Stage—and it was reserved for a discussion on Amendments coming back from the Commons to take up a perfectly new starting point as to the number of tenants who were to be restored. They had been told that the Bill was urgent and vital, because of the great number of tenants to be
1306
restored, and after a certain winnowing down process the number was said to be about 2,000 more or less. Now it was sought to graft upon that a qualification which at present he did not follow, but he would state his appreciation of it whether right or wrong. He understood the noble Earl to say that 2,000 was a figure that was misleading, and apparently it had misled the Government. What he understood the noble Earl to say now was that 2,000 might be an entirely extravagant figure, because the Bill was intended to be confined to tenants for whom land was acquired compulsorily under this Act, and that there would not be anything like 2,000 for whom land was needed compulsorily, because they expected to get so much land voluntarily that they might be utterly overstating the case by saying that 2,000 needed compulsory treatment, when possibly the needs of a large number might be supplied by means of voluntary action. That was the meaning he gathered from the noble Earl's words, but if that was the true meaning, it knocked the bottom out of much of the argument for his Bill. Instead of 2,000 people needing this drastic and urgent treatment, without which the Government could not be responsible for Ireland, it turned out that the 2,000 was an entire over-statement. He ventured to think that the noble Earl was forgetful of what took place in Committee, which was absolutely inconsistent with his now starting this new point. Now Subsection 2(b) dealt with new tenants, and exactly the same observation would apply to them just in the same way. He (Lord Ashbourne) had put down an Amendment in terms saying in reference to 2 (b) that that was a clause which applied to new tenants, whether they were voluntarily or compulsorily dispossessed, and he was told, after consultation with the Irish Office and after looking into the matter, that his Amendment was not required, because the clause was framed so as to include voluntary as well as compulsory cases of treatment. They had discovered either what his noble and learned friend Lord Robertson called the other evening a "mare's nest," or something which knocked a tremendous lot out of the force

1307
behind the Bill in the way of reasoning. He did not see how it should in the slightest degree affect his noble friend's moving his Amendment, because he was of opinion that whether voluntary or compulsory, 2,000 in all was the maximum. It could not be confined to those who were compulsorily deprived of land, but it applied to all. The whole drafting of the Amendment showed that all the 8,000 tenants, or whatever number it was, who for whatever reason were dispossessed before the Bill, and sent in applications before 1st May, were the people to be dealt with, and it made no difference whether they were dealt with by voluntary or compulsory acquisition of land. That figure was a figure which was exhaustive and inclusive of everything. Therefore, as far as he could understand the statement of the noble Earl, his noble friend was quite right in moving his Amendment.
THE EARL OF ARRANsaid that in the House of Commons it had been stated that 2,000 was not a high enough figure.
THE EARL OF CREWE: I have not the faintest objection to the insertion of the Amendment, but as I said originally I felt bound to state my view. The point had not occurred to me at an earlier stage of the Bill, and I understood the noble and learned Lord (Lord Ashbourne) does not think it a good point.
LORD ASHBOURNEsaid he thought that if it was a good point it knocked the bottom out of much of the reasoning for the Bill.
THE EARL OF CREWE: I think I can show that it does not. The point I ventured to put was that this Bill deals with compulsory powers and compulsory powers only. Therefore, if you put a figure of this kind into the Bill, it means that that number of persons can be replaced by compulsory powers. Then the noble Earl the Earl of Donoughmore and the noble and learned Lord said, "If you do not want to restore all these people compulsorily, what is the use of the power in the Bill?" It never was contemplated that compulsion would be necessary for every person under this Bill. The Lands Clauses Acts and a great
1308
number of private Acts empower land to be taken compulsorily, but it does not follow that all the land scheduled in a Railway Bill is necessarily to be taken by compulsion. Very often nine-tenths of it is taken by agreement. The fact of compulsory power being put into an Act enables agreements to be made, and that is what will happen in this case. I have no doubt that a very large proportion of the land which changes hands under this Act will be exchanged by agreement, but agreements will be made because the compulsory powers are in the Act. But I have no wish to discuss the matter further, and if noble Lords like to insert the Amendment I have no objection.
THE MARQUESS OF LONDONDERRYsaid he spoke, of course, with the indulgence of their Lordships, but while he gathered from the noble Earl that 2,000 was the maximum required, still if the Government desired another 100 or 200, he had no objection.
Motion, "That the House do not insist on their Amendment," negatived.
THE EARL OF CREWE: The next Amendment to be considered is on Clause 1, page 2, line 15. This is what we have been in the habit of calling Lord Robertson's Amendment—
"Provided always that no lands shall be acquired compulsorily which have been purchased or agreed to be purchased under the Land Purchase Acts prior to the first day of May one thousand nine hundred and seven, nor any tenanted land which is in the possession or occupation of abona fide tenant using or cultivating the same as an ordinary farmer in a husbandlike manner."
As I pointed out before there are two distinct issues involved in this Amendment. In the first place there is the issue with regard to the time up to which the fact that the tenant had made a purchase agreement should be a protection to him which would prevent his being removed in the character of a new tenant. We originally fixed "January" and the noble Lord moved that "May" should be inserted. As y our Lordships will see on the Paper we agree in so far as the date of May in place of January is concerned. The Commons disagree to this Amendment, but propose to amend

1309
the Bill by leaving out "Estates Commissioners" and inserting the words "any two of the Estates Commissioners and the Judicial Commissioner ? (that is more relevant to the whole question of appeal), and in page 2, line 19, to leave out the word "January," inserting the word "May" instead thereof; and in page 2, line 21, to insert a new subsection: "(5) No land shall be acquired compulsorily which is subject to an annuity for the repayment of an advance under the Land Purchase Acts." This was put in according to our promise to make it quite clear that no purchase tenant should be liable to be removed under this Act. Then the further question is as regards "the possession or occupation of abona fide tenant using or cultivating the same as an ordinary farmer in a husbandlike manner." We have not succeeded, I am afraid, in getting over our dislike to that phrase. Your Lordships will remember that we were prepared to leave the general question as to whether it was just from the point of view of a Judge that a particular tenant should be removed. We offered the words "consider that such reinstatement can be effected without injustice to the new tenant," not as a mere matter of a rough opinion which a man might form as to whether the removal of a particular tenant was generally fair or unfair, but on the responsibility of a Judge sitting as a Judge, and I am afraid, therefore, I must move that the Commons Amendment, as amended, be agreed to.
Moved—
"That the Commons Amendment to Clause 1, page 2, line 15, be agreed to."—(The Earl of Crewe.)
LORD ROBERTSONcould not help thinking that the House, and he believed the country, would learn the decision of the Government and the House of Commons with profound regret. His object in rising was not to re-argue a question which had been very fully considered by the House in a former occasion, but rather to state to, and to remind the House of what was the precise position taken by the Government. He could summarise that in a word. It was a total and absolute denial of the rights of the planters. It was a very singular
1310
thing that, taking advantage of the forms of procedure on those occasions, there was no reason assigned for the refusal of the clause. What was done was that the Commons disagreed to their Amendment but proposed to do certain things. He wished to point out how absolutely futile were the things which were proposed to be done by the Commons as an answer to the claims of the planters. The House would remember that it was careful, on a former occasion, to define and limit the class of men whom it was proposed to protect. The word "planter" had been loosely and generally applied to a number of persons who held a position, not of independent tenants, but of caretakers and, so to speak, agents for the landlords, and their Lordships were scrupulous in limiting the class of men who were to be protected by this Amendment to those who were simply tenant farmers on their own feet. Accordingly there was no excuse for evading the question which was thus formulated by their Lordships' House, the question being put whether the Legislature was to disregard the contract rights of those poor men and to treat them as if they might be affected as much as anyone who had no claim of right at all. The House of Commons had seized hold—he must say a little ingeniously—of one part in the Amendment which was carried in their Lordships' House. Their Lordships had said that not merely were those men in the ordinary case tenants holding as tenant farmers, but some of them had actually got so far that they were inchoate proprietors. That was to say they were not formally seized in the property, but they had got all the substantial steps taken towards becoming proprietors, and that had been put in the Amendment in order to dare all concerned to touch them. Now the concessions made by the Government were these—that the word "May" was inserted instead of the word "January," and that "no land shall be acquired compulsorily which is subject to an annuity for the repayment of an advance under the Land Purchase Acts." All that was "leather and prunella" in the present question. These were matters of form, and were a complete ignoring of the claim substantially put forward, namely, the claim of the tenant farmers. This was merely on the fringe of the subject,

1311
and did not at all mitigate or take the edge off the denial of right to those tenant farmers. Now he would take another point, and really again it was pour rire. They were told, "Oh, but you are to be consoled with this—that each case of the compulsory acquisition of land where a farmer is to be affected will be consider by two ordinary Commissioners and a Judge." That was all very well if the Commissioners and the Judge had got any basis or footing to go upon, but in this case these people were denied all right, and accordingly the question to be decided by those two Commissioners and the Judicial Commissioner was merely whether they liked the man. That was the whole story, and therefore he returned to the position with which he began—that what had been done was to deny, out and out and from beginning to end, the rights of the planters. He was not going to make a speech on the present occasion; he had confined himself entirely to the explanations of what was the question between the Commons and their Lordships' House. But he hoped their Lordships would stand to this Amendment. It was a question of principle, of conscience, and of honour, and he could not imagine that when the country was apprised of the true issue between the two Houses there would be any doubt about their election.
THE MARQUESS OF LANSDOWNE: I agree with the noble and learned Lord (Lord Robertson) that in respect of this Amendment your Lordships' House is under an obligation from which it is quite impossible for us to recede. If I wanted to justify my case I should do so out the mouth of the noble Earl opposite. On 10th July he used these words—
"The view which His Majesty's Government also hold is that where it is shown that a man is abona fide farmer working his farm to advantage, and desiring to retain it, he ought certainly not to be dispossessed."
Those are the words which we have virtually embodied in the Amendment which we are now discussing. Now let me ask this question. What is the objection of His Majesty's Government to this Amendment? What is the difficulty which looms so large in their way? They urge that a great many of these planters are
1312
men of straw, that they are "caretakers," and that the number of bona fide farmers who would come within our definition is a very small one. Very well. That shows, I think, that the difficulty which they will have to deal with is a very small difficulty, although the total number of cases is a large one. The "caretakers," the nondescripts, the birds of passage, will not be protected under the terms of our Amendment. Then there are other of these planter-tenants who no doubt will be perfectly willing to move elsewhere, under the liberal inducements which are to be offered to them; those men are willing to go and need not be considered. What then remains? Only that residuum—that handful of courageous men —who are farming their land properly, who have their farms stocked, who are paying their rent, and who wish to remain where they are. Those are the men you want to be able to turn out in order to make room for the agitators who have been concerned in the discreditable events of the last few years. The noble Earl himself does not want to get rid of these men. He himself has stigmatised the idea of removing them as monstrous. Those were his words. It is the agitators who wish to dispossess these men, and the noble Earl, who knows Ireland as well as I do, knows perfectly well the reason for which it is sought to turn out this handful of loyal and courageous farmers. Of course, for every one of those men turned out there will be a local triumph achieved by those who have been promoting illegality and agitation for so many years past. You could not proclaim in a more aggresive manner the triumph of the forces of disorder than by permittting the men belonging to this very small and limited category to be compulsorily expropriated from their homes. Therefore I hope that the House will adhere to this Amendment which I regard as absolutely vital.
On Question, Motion negatived.
VISCOUNT MIDLETONmoved to insist on the Amendment to page 3, line 23, to leave out Subsection 6, which was simply consequential on the words already passed with regard to "compensation."
Moved—
"That the House do insist upon their Amendment to page 3, line 23."—(Viscount Midleton.)
Consequential Motion agreed to.
LORD MONTEAGLE OF BRANDONmoved to amend the Commons Amendment which provided that the purchase money should be paid within the prescribed time into the Bank of Ireland by the Land Commission by substituting ?amount of compensation" for "purchase money" and "six months" for "the prescribed time." He said the noble Earl had met them very fairly in the question of time when the Bill was in Committee. The first words he moved were merely consequential on the adoption of the word "compensation" in an earlier clause, and therefore he need not dwell upon that. But the second point was to amend the Commons Amendment by substituting the words "six months" for the words "prescribed time." He thought it would be in the noble Earl's recollection that he made an offer of six months when the Bill was in Committee and he was sure he would not wish to go back from a Parliamentary bargain.
Moved—
"To amend the Amendment made by the Commons in page 3, line 23, by leaving out the words 'purchase money' and inserting the words 'amount of compensation,' and by leaving out the words 'the prescribed time' and inserting the words 'six months.'"—(Lord Monteagle of Brandon).
THE EARL OF CREWE: As far as regards the consequential Amendment—to leave out "purchase money" and insert "amount of compensation"—I have no doubt your Lordships will insist upon it, but of course it will be understood from the long conversation we have already had on Clause 1 that His Majesty's Government do not, agree with it. As regards the second part of the Amendment—the insertion of the words "six months"—the noble Lord will see that his Amendment is to a certain degree incomplete, because he does not say from what period the six months are to run—there is no starting point. If the
1314
Commons Amendment were taken it would be, of course, in pursuance of what the noble Lord very properly called a Parliamentary bargain. A rule would have been made that the money should be paid within six months, and it would also set out the different times from which the six months would run in the different clauses as they arose—for instance, where a petition had been presented, and in another case where a petition had been presented and possibly not proceeded with.
LORD MONTEAGLE OF BRANDONreminded the noble Earl that this was a case where no petition had been presented.
THE EARL OF CREWE: But I think the noble Lord included every case.
LORD MONTEAGLE OF BRANDON: Yes, on the subsequent Amendment.
THE EARL of CREWE: But if the noble Lord presses for his term of six months in the Bill we would give it him with this condition: "Six months after the expiration of the time limited for the presentation of petitions." Will the noble Earl take those words?
LORD MONTEAGLE OF BRANDONdid not profess to be an expert in drafting but he thought that that would meet the case.
THE EARL OF CREWE: I think the noble Lord will find that those words are all right—therefore perhaps the noble Lord will move his proposal with that addition.
THE LORD CHANCELLOR: The first thing will be to deal with the Amendment of this House with which the Commons disagree. I take it the House does not insist upon that Amendment.
On Question, "That the House do not insist on their Amendment on page 3, lines 22 to 27, to leave out Subsection (6)," agreed to.
On Question, Lord Monteagle of Brandon's Amendment, with the addition of the words proposed by the Earl of Crewe

1315
—"six months after the expiration of the time limited for the presentation of petitions," agreed to.
THE EARL OF CREWE: The next set of Amendments are the Amendments to page 3, lines 29 and 30—the long series of Amendments moved by Lord Atkinson at the earlier stage of the Bill. The Commons disagree to this Amendment, and the noble and learned Lord, in the Paper which has been circulated since the Amendments were returned, also moves not to insist on that Amendment but substitutes another. We admit, of course, that in some respects the Amendment is free from certain objections which we took to it in its first form. We are not able to accept the noble and learned Lord's Amendment, but we are prepared to do this. If noble Lords will look at the Amendment proposed by the Commons in page 3, line 34 (it is on page 6 of the printed Amendments), they will see that the proposal of the Commons was to leave out from the word "shall" to the end of Clause 2, and to insert the words—
"Subject to the provisions of this subsection, be final: Provided that any person aggrieved by any determination of the Estates Commissioners fixing the price of the land proposed to be acquired, or any determination of a question arising under the provisions of this Act imposing restrictions on the acquisition of land, may, within the prescribed time, appeal to the Judicial Commissioner, who shall hear in the prescribed manner and determine the appeal.'
That is the form of appeal which we consider to be a reasonable one in these cases. The substantial difference is that instead of cases being heard by the Judicial Commissioner alone he should be supported by two outsiders acting as assessors—people who would sit with him, and who naturally, one might suppose, would be of the highest class of those who are qualified to judge in these matters and to assist him in arriving at his decision. The reason that we make this proposal is that we understand that what noble Lords particularly object to in this appeal is its being left, so to speak, entirely within the ambit of the Estates Commissioners, and we believe that we have met this objection by the proposal we have made. We have placed the number at two assessors in preference to one.
1316
Whether it would be necessary for the two always to sit I do not know, but at all events it would give an opportunity of one always sitting, and they might be men who would be busily engaged in other ways. But the intention is that they should be people who would be regarded as clear of whatever objections are supposed to attach, in the minds of noble Lords opposite, to the Estates Commissioners as the only body to deal with these matters, and we have really endeavoured to meet the wishes of the noble Lords opposite in that respect. We maintain that on these questions of value a Judge of Assize, or a Judge of the High Court, is not a valuable tribunal of appeal. He obviously is not a person with particular knowledge of the facts or circumstances, and he has to depend upon the information supplied to him by some valuer whom he calls in in all probability to, give an expert opinion, which opinion he is almost practically bound to take, because the chances are that he does not himself possess any very great share of the expert knowledge necessary to arrive at such a conclusion. We think that the Judicial Commissioner—who I think by common consent, as a person, whatever noble Lords opposite may think of his office, is regarded with great respect by all parties in Ireland—with his peculiar knowledge, assisted by two independent men of this kind, would form the best possible tribunal that could be found for a decision on a question of value.
THE MARQUESS OF LONDONDERRYasked who would appoint the assessors.
THE EARL OF CREWE: I think Mr. Justice Wylie is to appoint them. They are to be nominated by Mr. Justice Wylie.
LORD ATKINSON,in moving a new Amendment providing for an appeal to the High Court, said he had some difficulty in understanding the position, because the Amendment proposed by the House of Commons was not the Amendment which the noble Lord now proposed. The Amendment proposed by the House of Commons was that—
"Any person aggrieved by any determination of the Estates Commissioners fixing the-

1317
price of the land proposed to be acquired or any determination of a question arising under the provisions of this Act imposing restrictions on the acquisition of land may within the prescribed time appeal to the Judicial Commissioner who shall hear in the prescribed manner and determine the appeal."
It then gave him, in exercise of that jurisdiction, all the powers conferred by Section 48 of the Land (Ireland) Act, 1881, one of which was that he might appoint an independent valuer in any case, if he so desired, to visit the land and report to him. He understood now that instead of that it was provided that the Judicial Commissioner was to sit with two assessors. What those assessors were—who they were—did not appear, and most strangely of all it did not appear what their tenure was to be. If they were to be persons—to use a vulgar phrase—employed "by the job." what became of all the arguments that the Estates Commissioners in these judicial matters were to have a permanent tenure, when the assessors were only to be employed from time to time to decide upon appeal the very matters which were so judicial in their character that the Estates Commissioners could not possibly decide them without this tenure? It was a refutation of every word that had been said in reference to the elevation of the Estates Commissioners into the position of ordinary Judges. There was some difficulty, therefore, in dealing with the Amendment as now proposed, but as far as he could he would endeavour to deal with it. He might recall to their Lordships the fact that upon the Second Reading he had ventured to say that according to the Bill as introduced the Estates Commissioners might acquire any land they pleased, where they pleased, at what time they pleased, and at what price they pleased. That was an impossible position to defend. It was a thing that did not exist in the whole of the British dominions. The nearest approach to it was the case in England, where, under the Local Government Act of 1894, for Government purposes the Government might acquire land. But even then the compensation was decided by the very tribunal which was supposed to be unfit to decide the compensation in Ireland—namely, the Civil
1318
Court. It was impossible to defend that position, and accordingly an appeal was proposed, and he thanked the noble Lord for having proposed it. He did not propose for a moment to re-argue the question which was then discussed, but, as there must be an appeal, the subject for their Lordships' present consideration was, which was the best appeal—the appeal which he had sketched, or the appeal sketched by His Majesty's Government. First of all, with regard to the latter, there was no certainty whatever that Mr. Justice Wylie would sit at all. He joined in everything that had been said with reference to Mr. Justice Wylie; he was a recently appointed Judge, and he was not aware that he knew much about land; but he knew him to be a man of learning, and he believed him to be a man of honesty, courage, independence and strength—and he thought he would require all those qualities in the place where he was. Therefore, he had no objection whatever to Mr. Justice Wylie personally. But first of all Mr. Justice Wylie had a great deal more to do than he could possibly do at present in dealing with agreements with regard to over £30,000,000 worth of land which had been entered into. It had been asserted in the time of his predecessor that, as he had the important duty of distributing the purchase money, and he only could distribute it, considering that every estate in Ireland—at all events 75 per cent. of them—were in settlement, and that it was necessary to consider the provisions of wills and marriage settlements in the matter of each estate, it was impossible that the Judicial Commissioner could distribute the purchase money to a greater extent than about £5,000,000 a year. So that whoever the Judicial Commissioner was, he would be obliged to devote his entire time to disposing of that £5,000,000 a year, and putting it through the sieve of marriage settlements and wills which overlay the land to be sold, or else he must be taken away, now from the one duty, and then from the other. First of all, there was no necessity that Mr. Justice Wylie should hear these matters at all. Under Section 28 of the Act of 1870, as well as under Section 23 of the Act of 1896, and again under Section 86 of the Act

1319
of 1903, the Lord Chancellor could appoint any Judge he pleased to do the duty of the Estates Commissioners; and, if that was so, there was nothing whatever in the Amendment suggested by the noble Earl to show that those duties might not be discharged by nominated Judges as well as by the Judicial Commissioner. And therefore, to take this Amendment as it was, unless it was read with those earlier Statutes, was to play a perfectly blind game. It might be such a person as the Lord Chancellor of the day might designate to discharge the duties of the Judicial Commissioner. But that was not the main objection. The main objection was of a different character altogether. The Land Commission was a corporation consisting of three members: there were three Estates Commissioners, and they were members of the Land Commission co-ordinate in every respect with their brother members, the Judicial Commissioner, Mr. FitzGerald, and Mr. Moragh O'Brien. There were six of them altogether, and they were all Land Commissioners, and all co-ordinate. It so happened that Section 23 of the Act of 1903 enacted that the three Estates Commissioners should work the preceding sections of the Act of 1903 coupled with this provision—that on matters of law they might appeal to the Judicial Commissioner on any difference between them. It might well be that as they were not lawyers, and could not pretend to any legal knowledge which the public had ever recognised, they might submit to his decision on matters of law. And, accordingly, Section 23 of the Act of 1903 provided that questions of law might be referred to the Judicial Commissioner —who was a distinguished lawyer—for decision. But, with regard to matters of fact, it was preposterous to put one member of a body composed of six to decide questions of fact on appeal from two of his own colleagues, especially as those two colleagues claimed to be men with special expert knowledge. The two special expert people with expert knowledge—the two Estates Commissioners—were to be appealed from to the Judge who was supposed to have no expert knowledge with two journeymen brought in from time to time who were called "assessors." A more ridiculous tribunal could not be imagined,
1320
and it would be quite impossible to work it with the constant friction there would be. He could imagine a case turning up where the question was whether a planter-tenant was bona fide in possession of his farm or not; and he could imagine the difficulty which the Judicial Commissioner would have in dealing with his own two colleagues who, in the next half-hour, might be associated with him on other business as his equals in all respects. What he and those who thought with him wanted was an independent appeal from the proceedings of the Land Commission, outside the Land Commission, into the investigation of which fresh minds would be brought, new publicity given and external light let in; and no other appeal could be successful, or could win the confidence of those whose fortunes depended upon the decision of such tribunal. He had heard with amazement that Judges were not fit to try cases unless they had expert knowledge. Why, there was not a Court of Chancery in the three Kingdoms that was not an answer, and a conclusive answer, to that. Vice-Chancellors, Masters of the Rolls—
THE EARL OF CREWE: I think the noble and learned Lord is slightly, without any intention of doing so, misrepresenting what I said. I did not say the Court was not fit to try a case; I said that the Judge who tried the case had to depend upon what valuers happened to tell him.
LORD ATKINSONsaid that the Judge n this case would have to depend upon what the Judge in every other case had to depend upon, namely, the evidence given before him.
THE EARL OF CREWE: I am speaking of what happened under the Act of 1870. As the noble and learned Lord knows perfectly well, the Judge used to decide the question on the advice of a particular valuer ad hoc, not on the question of evidence at all.
LORD ATKINSONsaid that so much did he appreciate that that by his Amendment he expressly provided that the Judge should have an independent person to give him assistance. But to assert

1321
that no man could try a case dealing with the value of land unless he was himself an expert agriculturist was to contradict the whole legal system of the country, which was that a Judge had to decide upon the evidence before him and not from his own technical knowledge. Therefore, there could be no objection in the world to a hearing before a Judge of Assize or before a Judge of the High Court. Any contention to the contrary was extraordinary, particularly considering that that was the very thing that the Judge of Assize had to decide under Mr. Gladstone's Act of 1870, under provisions for appeal identical with these. Any man who could decide what was the fair rent of land could necessarily decide what was the value of the land. Anybody who could decide what was the value of improvements upon land ought to go a great way in deciding what was the value of land, and it was difficult to see why a Judge of Assize, because he happened to sit in the King's Bench Division, could not come to as true and as right a conclusion as to the value of a piece of land, or as to whether a planter was bona fide occupying his holding, as Mr. Justice Wylie sitting with two assessors or assisted by a valuer. He therefore submitted that the appeal which he suggested was more satisfactory in every way. It brought to the proceedings of these Estates Commissioners and to the proceedings of the Land Commissioners new minds; it threw new light upon them; it brought them to the test of publicity; it brought justice to the home of the peasant by means of the Court he was most accustomed to, where all his litigation was really settled. As to the trial by a Judge upon the rota, that was merely introduced to meet the objection that might be made that during the interval between two Assizes, there might be no Court where the e cases could be tried. The noble Earl would recognise that he had, in the Amendment which he now proposed, struck out the part which dealt with the question of assessors. Of course, since the Amendment of his noble friend Lord Midleton was carried, he could not insist upon that. He had also introduced a provision that the landlord, or the vendor, were to receive the ordinary 10 per cent. for compulsory
1322
purchase, and as he had said upon another occasion, he did not think he could possibly claim that in addition to what was already secured to him. He did not wish to waste time by going over ground which had been already traversed. He submitted that as between the two appeals which had been laid before their Lordships to chose between, an appeal to an independent outsider on the proceedings of these Commissioners which would bring their justice and fairness of methods to the test was a much more satisfactory appeal than an appeal to one of those gentlemen who was in daily touch with the very Commissioners from whose decision the appeal was taken. He was not quite sure, according to the Amendment proposed in the House of Commons and now supplemented by what the noble Earl had said, exactly what he meant to cover by his Amendment. Did he mean that the planter should have a right of appeal if he was dispossessed on the ground that he was abona fide owner in bona fide occupation of the farm, or did he mean to restrict the question of appeal only to Section 6? The wording was rather difficult to follow—
"All questions arising under the provisions of this Act imposing the restriction on the acquisition of land may within the prescribed time."
He really did not know whether that was intended to be confined to Section 6 of the Act or was intended, as amended, to extend so as to apply to the case of a planter who would be dispossessed, because he never for a moment could take any share in passing any Amendment that would leave the planters at the mercy of the Estates Commissioners to determine whether they were bona fide farmers occupying the farm and to shut them out from all appeal. He thought it was most essential that whatever appeal was given should extend to them, and that if they were dispossessed they should have an opportunity of bringing their case before a higher tribunal. If there was no other reason why their Lordships should give prefernece to his Amendment over that of the noble Earl, he would say that the reason lay in the fact that under his Amendment it was made plain that the planter was protected, while under the noble Earl's Amendment

1323
the position of the planter was left in doubt.
Amendment moved—
"Not to insist on the Amendment in page 3, line 30, to which the Commons have disagreed, but to insert the following new Amendment in lieu thereof. To leave out from the word 'thereon' to the end of the Subsection (7) and insert the words:—`(a) Any person aggrieved by any order or proceeding of the Estates Commissioners under this Act may within the time and in the manner prescribed by rules to be made as herein-after provided, apply as he shall elect, either to the King's Bench Division of the High Court of Justice in Ireland, or to the Judges of Assize for the county in which the lands sought to be acquired, or the greater part thereof, are situated, to hear and determine any question of law or fact arising out of any such order or proceeding, including any question of law or fact under Section 1, Subsection 3, and Section 6. Every such application shall be heard and determined by one of the Judges of Assize for the said county, or by one of the Judges of the King's Bench Division, to be selected by the said Judges according to a rota to be framed by them at the commencement of each sitting of the said High Court. Upon hearing of every such application the Judge shall have power and authority to hear and determine all questions of law and fact that may arise, including the adequacy of the compensation awarded by the said order, and he may give judgment affirming, modifying, or reversing the said order of the Estates Commissioners, and may make such order as to the costs of and incidental to the said petition, and the hearing of the said application, as he may think fit; (b) Upon the hearing of every such application the said Judge shall have the jurisdiction, power, and authority possessed by a Judge of the High Court of Justice in Ireland when presiding at a trial at Nisi Prius, including the power to administer an oath, and to compel the attendance of witnesses and the production of documents. He shall also have the power to direct that an independent valuer, to be nominated by him, should report to him his opinion upon any matter the Judge may think fit to refer to him, and he may make such order in reference to the costs of any such report as he may deem just; (c) In the determination of any question as to the adequacy of the compensation offered, the Judge shall have regard to the principles of the provisions of the Lands Clauses Consolidation Act, 1845, applicable to the compulsory purchase of land, and for the purposes of the said application before the said Judge, the Estates Commissioners shall be deemed to be the promoters of the undertaking within the meaning of the said Act. Provided that no additional allowance shall be made in respect of the purchase being compulsory; (d) The Estates Commissioners shall be competent, but not compellable witnesses upon the hearing of every such application, and they shall furnish to the Judge hearing the same all such particulars and documents as shall by him be required, including a schedule in the form prescribed by Section 7 of the Act of 1903, together
1324
with a statement of the superior interests, any, to which the lands sought to be acquired, or the estate of which they form a part, may be subject; (e) The inspectors and other officers of the Land Commission, other than the Land Commissioners themselves, shall be competent and compellable witnesses upon the hearing of every such application; (f) The said King's Bench Division and the Judges of Assize, respectively, may order that all applications pending before them in respect of the same petition or order as aforesaid may be consolidated and heard together, and for the more convenient, speedy, or proper hearing of any such applications, may order that the hearing of the same may be transferred from the said Division to the Judges of Assize, or from the Judges of Assize to that Division, as the case may be, and the said application, when so transferred, shall be heard and determined as if it had originally been made to the tribunal to which it has been transferred; (g) The Judge before whom any such application is heard may, where he deems it expedient, reserve any question or matter arising upon such application, by way of case stated, for the consideration of His Majesty's Court of Appeal in Ireland; (h) All cases stated for the Court of Appeal shall be prosecuted, heard, and determined by such Court in such manner and form, and subject to such rules and regulations as the Court may from time to time by rules direct. The said Court of Appeal shall give such judgment as ought to have been given in the Court below by the Judge thereof, and such judgment shall be of the like effect as if it had been the judgment of the said Judge, or the said Court of Appeal may remit the case with such directions as they think fit to the Court below; (i) In the interval between the lodging of any such application to the Judges of Assize and the opening of the Assizes for the county in which such application is to be heard the King's Bench Division of the High Court of Justice in Ireland shall, on the motion in the prescribed manner of the applicant, the Estates Commissioners, or any party interested, have jurisdiction, power, and authority to make any order of an interlocutory nature in the matter of the said application, as if the same were an action at law pending in the said division; (j) The provisions of Section 23 of the Act of 1903 shall apply to this Act so far as the same are not inconsistent with the provisions of the latter. Provided that a question of law which has been decided by a Judge of the High Court or of Assize, or by the Court of Appeal under the provisions of this Act shall not after the date of such decision, be referred for decision to the Judicial Commissioner nor while a question of law is awaiting decision in any application pending before such a Judge, shall the same question of law be referred for decision to the Judicial Commissioner, unless at the request of some person who is neither a party to nor interested in the matter of the said application; (k) The compensation to be paid to any owner of land in respect of the loss thereof shall for the purpose of the Land Purchase Acts be deemed to be the price to be paid for the purchase thereof; (l) Rules of Court regulating and prescribing the practice, procedure, and the costs of and incidental to the hearing of all proceedings under this section before the King's

1325
Bench Division, or any Judge thereof, or any Judge of Assize, may be made by the authority having power to make Rules of Court for the Supreme Court of Judicature in Ireland; (9) If all questions under all petitions have been determined in such a manner that the Estates Commissioners would be entitled under the order of the Judge of Assize, or of the King's Bench Division, or of the Court of Appeal, as the case may be, to acquire the said lands, and if it appears to the Estates Commissioners that they cannot re-sell the land for the purposes of this Act without incurring a greater loss than that authorised by the Lord-Lieutenant, with the consent of the Treasury, they may at any time within six weeks after the determination of the amount of the compensation by notice in writing signify to such owner that it is not their intention to acquire the land, and in such case the Estates Commissioners shall pay to the owner compensation for any loss or expenses which he may have sustained or incurred by reason or in consequence of the proceedings, but if no such notice is given within the said period, the Land Commission shall, within six months after such determination, pay the amount of the compensation into the Bank of Ireland, and the Estates Commissioners shall make an order vesting the lands in the Land Commission.'" —(Lord Atkinson.)
THE EARL OF CREWE: I suppose I ought not to speak again, but as the noble a nd learned Lord has asked me certain questions perhaps the House will allow me to do so. As regards the question he last asked, as to the planter, the noble and learned Lord will remember that we provided for the planter in another way—that any two of the Estates Commissioners and the Judicial Commissioners were to be the final authority to inquire if it was just that he should be moved—and as we have not assented to the Amendment of the noble Lord opposite relating to the planter, the question whether our appeal would apply to him is scarcely germane to the present discussion. The noble Lord still—quite naturally, and as I should have expected—adheres to the charms of his own infant and considers that the best possible tribunal that could be found is that of a Judge of Assize or a Judge of the High Court. And he said that after all this was the tribunal Mr. Gladstone had instituted under the Act of 1870. That is perfectly true, and the same statement was made in a leading article in The Times a day or two ago. But what neither the leading article nor the noble and learned Lord maintained was that as soon as any further legislation took place in that direction dealing with the subject of land
1326
—that is to say in 1881—this appeal was taken away from the Judge of Assize, —on the ground presumably that this tribunal had not been found satisfactory, —and was given by the Act of 1881, Section 47, to the Land Commission. Then came the 1903 Act, and under that Act, Section 88, it was provided that—
"All re-hearings under Section 47 of the Act of 1881?
(that was the one which amended the Act of 1887),
"and all rehearings shall be heard and determined by one Judicial Commissioner with the assistance of one specially qualified lay assessor who shall hear the evidence and on the application of either party inspect the holdings and report thereon."
Therefore in that Act of noble Lords opposite that appeal was still maintained to the Land Commission in preference to the Judge of Assize, who, for this particular purpose, has been extinct since the year 1881. I think the noble and learned Lord ought to bring some strong evidence—
LORD ATKINSON apologised for interrupting the noble Earl, but the Judge of Assize had been revived in 1898 and he was now the tribunal to determine the value of land taken by county councils.
THE EARL OF CREWE: Yes, but not for this purpose.
LORD ATKINSON: No, but for a more important purpose.
THE EARL OF CREWE: Of course nobody disputes the possibility of a Judge of Assize trying a case of this kind, and, I daresay, arriving at a very fair decision by the aid of the information which he gets in the course of the case. I have never intended for a moment to lay down, or even to suggest, that a Judge, or an arbitrator, or anybody else, in order properly to decide upon a case need necessarily be an expert—indeed it often happens that the less he knows of the case he has to decide the better. But the whole question is one of comparison, and what we say is that as a matter of fact and knowledge the Judicial Commissioner, Mr. Justice Wylie —who is a man of very great experience in these matters, and who has had a

1327
long experience, as noble Lords know, in matters connected with land—assisted by these specially- qualified assessors, is as good a tribunal as you could wish to have. The noble and learned Lord paid a very pleasing tribute to Mr. Justice Wylie's personality, and spoke of his independence and all the rest of it, but I am bound to say that I think he drew a somewhat lurid picture of the sort of terror which Mr. Justice Wylie is likely to be in towards his colleagues the Estates Commissioners. For my own part I do not believe that Mr. Justice Wylie, if he formed an opinion, would care a brass farthing what the Estates Commissioners said if he did not agree with them. And if he thought it necessary, in the exercise of his judgment, and with the assistance of the assessors, to revise some conclusion at which they had arrived, I do not believe he would be in the least deterred from doing so by the fact that he and they were also Land Commissioners. Because, after all, he is what they are not—a Judge of the High Court—and in that capacity, although in one sense they might be described as co-equals, yet in this sense, sitting as a Court of Appeal, they would be only too glad to admit he was their superior in trying a matter of that kind. The noble and learned Lord, also, I think suggested that there was no certainty that Mr. Justice Wylie would sit at all. I scarcely think that that is a fair suggestion to make. It was ingenious, no doubt, but to my mind it was more ingenious than fair, because, after all, this Act, as we know, is to have a somewhat short life—we hope these transactions will be completed within a limited period —and I think it is almost too much to make a suggestion that the Lord Chancellor would deliberately set Mr. Justice Wylie aside when the words of the proposed clause are that
"the Judicial Commissioner shall, with the assistance of the assessors, hear cases in the prescribed manner," and would appoint some other Judge possibly unpalatable to landowners in Ireland. I think it may be taken as certain that the intention which we have shown in suggesting these words—that the Judicial Commissioner should be the person to be assisted by the assessors—will be carried out as far as it is humanly possible.
1328
Under those circumstances I am afraid that we cannot assent in any way to the suggestion of the noble and learned Lord, and I should like to think that some of the points I have ventured to lay before the House may assist noble Lords opposite—although I am bound to say I have not much hope of that—in arriving at the same conclusion as we have arrived at ourselves.
THE EARL OF BESSBOROUGHdesired to say at the outset that he had no evicted tenants, neither had he any untenanted land. In any remarks that he might make with regard to the Commissioners he had not the slightest intention of casting any aspersions on that body of gentlemen. It seemed to him, however, that the appeal which His Majesty's Government had offered was hardly an appeal which they on that side could accept. It seemed to him that the Commissioners had a great deal of work to do, and that the Judicial Commissioner would be in a very unpleasant position if the duty were cast upon him of hearing appeals from the body of which he was a member. The noble Lord the President of the Council had alluded to the Bill as being of a finite character. He clearly understood that it was so, but he very much doubted whether the principles laid down and the precedents created therein would not be of an everlasting character. For those reasons he entirely supported the Amendment of his noble and learned friend Lord Atkinson, which secured an appeal to an outside tribunal.
THE MARQUESS OF LANSDOWNE: I have been much impressed during this discussion by the testimony which has been borne to the high character of Mr. Justice Wylie, the Judicial Commissioner, and speaking for myself, I think I should be very much inclined to say that if I had to refer my interests to an appellate tribunal I should be very well content to leave myself in his hands. But on the other hand there is, as the noble Earl will have seen, a very strong and, I think, a very natural feeling that in matters of this importance, and considering the extremely unusual character of the provisions of this Bill, there should be an appeal to some tribunal entirely

1329
outside the Land Commission. I would venture to suggest to the noble Earl whether it might not be possible, while retaining the Judicial Commissioner as the appellate court, to give to the parties, as an alternative, the right of going to the Judge of Assize. I think if people were aware that such an alternative were open to them a good many of those misgivings which have been expressed would be removed. I am not myself wedded to any particular proposal. I think it is extremely difficult for a layman to take upon himself to say how judicial business of this kind can best be conducted. We are all, I am sure, grateful to my noble and learned friend (Lord Atkinson) for bringing forward a self-contained proposal for dealing with these appeals, but I am not prepared to say that I regard his proposal as better than any other, and if noble Lords opposite could offer some alternative which fulfilled the conditions which I have described I should certainly recommend my noble friends from Ireland to consider it favourably.
THE EARL OF MAYOwished to make it clear at the outset that he did not desire to say anything about Mr. Justice Wylie. The real truth was that they who lived in Ireland and had dealings with the Commissioners felt that as this Bill was a compulsory Bill they would like to remove themselves, if there was an appeal, entirely from the atmosphere of the Land Commission. It resolved itself into that. The truth of the matter was that Mr. Justice Wylie and the other Estates Commissioners were, practically speaking, a firm who dealt in land, who had the power of acquisition of land, and who could do practically more or less what they liked with land. The appeal that the Government had offered amounted to this—that it was an appeal from the junior partner to the senior partner in that firm—and for that reason he thought they were perfectly justified in seeking to remove themselves entirely from that atmosphere. They knew as well as possible that if Mr. Justice Wylie was to be allowed to sit as an appellate Judge in this matter he would have frequent conflicts with his colleagues. That would not facilitate Commissioners in any way whatsoever,
1330
nor would it facilitate the hearing of an appeal in a satisfactory manner. There was another thing to remember which he hoped noble Lords from England would take to heart, and that was that if this kind of appeal were admitted in this Bill they knew perfectly well that a very much larger Bill was looming in the future, and, as coming events cast their shadows before, if they were to have compulsory purchase—and it had been foreshadowed that compulsory purchase would be the mode of dealing with the congested districts in the West of Ireland. If that were to be so, they must insist upon getting outside the atmosphere of the Land Commission when they desired to appeal. He did not wish to say anything about Mr. Justice Wylie. He believed him to be a strong man and a just man, but if such an appeal as that now proposed had been granted in no other Act in the United Kingdom, surely they in Ireland, where compulsion was being put upon them for a certain purpose, ought not to be asked to accept such an appeal. After all that had been said about the smallness of the number of evicted tenants, and now that this extraordinarily larger number had cropped up, and now that this Bill had been brought up in such a hurry to deal with the question, the least they could do was to ask for a fair, honest, and just appeal.
THE EARL OF LEITRIMsaid there was one point in which this appeal bore a strong resemblance to a similar provision in the English Land Bill. In the debate last night the noble and learned Lord on the Woolsack agreed that where the Board of Agriculture were interested parties it was not fair that the Board's valuer should act in the manner provided in the Bill, but that an independent arbitrator should be appointed to settle the price of the land. He appealed to the noble and learned Lord now to state whether he thought the Judicial Commissioner was not in some degree an interested party in the present measure. A very strong opinion was held by noble Lords from Ireland that there should be an appeal outside the Land Commission, so that they would have an independent appeal unconnected with the Estates Commissioners.
THE MARQUESS OF LANSDOWNE: May I quote, in support of what I said a moment ago, a very interesting passage which I have extracted from a paper put in by Mr. Commissioner Finucane before Lord Dudley's Commission the other day. I think that some injustice has been done to Mr. Finucane, as well as to his colleague, by the quotation of isolated passages from their evidence which, taken apart from the context, perhaps do not quite adequately represent their general views. I now quote this passage as bearing upon what we are at the moment discussing. It is in a Memorandum which your Lordships will find on page 317 of the Report of Lord Dudley's Commission. Mr. Finucane said—
"No individual, official or non-official, and no board or body of men, whether official or non-official, should be invested with absolute power of acquiring land compulsorily without an appeal on questions of price and of law to a judicial or quasi-judicial body."
Here we have a case of a board—these gentlemen are really all members of a board—and if that very sound doctrine be adopted it would follow logically that there should be an appeal, at all events in some cases, from that body to some tribunal external to it.
THE EARL OF CREWE: The noble Lord (the Earl of Leitrim) prayed in aid the English Land Bill as showing that people ought not to be judges in their own case. If it is seriously maintained that Mr. Justice Wylie, because he is a Judicial Commissioner, and these other gentlemen the Estates Commissioners are also Land Commissioners, are in any sense a party to the transaction in the case of a particular sale of land—if that could be maintained there might be something in the contention. But the noble Marquess (the Marquess of Lansdowne) said that these gentlemen constitute one Board. It is not in the least true to say that they are one Board. The three Estates Commissioners no doubt are; but the Judicial Commissioner is absolutely outside of them for this particular purpose. It is only by implying, as the noble and learned Lord (Lord Atkinson) did, that they exercised some sort of terrorising influence over the Judicial Commissioner that that argument could be main-
1332
tained at all. It is perfectly obvious that so far as these transactions are concerned the Judicial Commissioner cannot be said by any degree of straining of language to be at all an interested party. On this question of appeal upon value I confess that we do not find it possible to meet noble Lords opposite. Noble Lords will remember that at an earlier stage of the Bill I spoke of the possibility of finding a single Judge to undertake this work. I still think there might be something to be said for that course, if noble Lords opposite imagine that such a Judge can be found, but unfortunately the compulsory powers of this Act do not extend to taking a learned Judge by the scruff of his neck—if I may be allowed to use a rather disrespectful expression—and placing him on the bench and insisting on his trying certain judicial matters, and I am afraid it would be exceedingly difficult to get any member of the High Court of Ireland to undertake this work. I confess that in spite of all the elaborate and ingenious arguments which have been advanced I do not appreciate the objection which noble Lords seemed to take to the Judicial Commissioner in this matter. As far as regards the other questions—those arising under Clause 6—the same objections, in our opinion, do not apply. On all the questions which arise in Clause 6 with regard to the acquisition of land, we should be prepared, if noble Lords preferred it—and it would also have the advantage of not throwing the same amount of work on the Judicial Commissioners—a point which the noble and learned Lord put with great force, if I may say so—we should be prepared, I say, to submit all the appeals which arise under Clause 6 to a rota of Judges to take the words of the noble and learned Lord's Amendment on page 3—
"One of the Judges of the King's Bench Division to be selected by the said Judges according to a rota to be framed by them at the commencement of each sitting of the said High Court."
We should he prepared, so far as all the questions under Clause 6 are concerned, to give that kind of appeal if noble Lords preferred it instead of the other form of appeal, but I am afraid we must adhere to our own proposal so far as questions of value are concerned. I

1333
regret that I cannot go beyond I the offer we have already made to noble Lords opposite.
THE MARQUESS OF LANSDOWNE: Would the noble Lord's proposal include a reference to the Judge in cases arising with regard to new tenants?
THE EARL OF CREWE: I am afraid I cannot answer that question off-hand. The question of the new tenants rests in this way. We have made a proposition with regard to new tenants, and noble Lords have inserted a different clause. As long as that clause remains in the Bill it is impossible for me to give an answer to the question which the noble Marquess has just put.
LORD ASHBOURNEsaid that they were advancing, but it was obvious, at the same time, that they had arrived at a point at which the matter could not rest. One thing had been made abundantly plain in the course of the debate, and that was that the House—the Opposition side of the House at all events, and he thought possibly that they had the concurrence ,of many noble Lords sitting on the other side—was of opinion that the Amendment put in at the instance of his noble and learned friend (Lord Robertson) was one to which extreme importance ought to be attached, and there was not the slightest possibility that he could see of their receding from that position. That being so, the question arose, were these new tenants to be excluded from appeal? If the words of Lord Robertson were acceded to there was protection where protection was sought, but supposing that a man who was abona-fide tenant farming his land was disregarded and his land taken away, he was surely entitled to be protected by a right of appeal. That was a matter of importance. It might be that the noble Earl had not considered it; but obviously it was a matter which could not be left in doubt. The protection of the planter was a question which they had regarded throughout as one of extreme importance, and it was impossible for them to desert or abandon those men. The appeal was necessary to validate,
1334
strengthen, and support the clause now standing in the Bill. He felt, as he had said, that the position had advanced, because, originally, there was no Court of Appeal for any purpose in the Bill. His noble and learned friend (Lord Atkinson) had prepared with great completeness and ability the appeal section which was before their Lordships. That led to the introduction of the appeal proposed by His Majesty's Government, and it was obvious that although that was an advance which was recognised as showing a desire to deal with the question, still it was absolutely incomplete in its subject matter, for it excluded from the appellate jurisdiction the case of the new tenant and the planter. Mr. Justice Wylie was greatly respected, and enjoyed the confidence of his profession, but the matter was not to be treated as at all a personal question with regard to him. There was a desire to see the introduction of some authority which would represent an outside view of the case, and that desire existed without the slightest reflection upon Mr. Justice Wylie. In reference to the rota and the distribution of business, the suggestion to give the appal as to value, and appeals under Section 6 to Mr. Justice Wylie and a rota of judges, that, of course, was a matter which had now been stated for the first time; and that was an advance to some extent; he did not say that it was not entitled to consideration, but there had not yet been much time to consider it. On the subject of the rota, he considered that the King's Bench Judges would scrutinise with very great attention, and with some anxiety, the course of legislation upon this matter. It must be borne in mind that unfortunately this provision was brought in in the middle of the vacation, when all the Judges were away, and were not accessible, and, therefore, they were not in a position to send forward their views, which otherwise they might possibly have done. The question of rota was not an easy question; it would have to be considered and criticised; and he would suggest, as a possible Amendment to the clause of his noble and learned friend, that, instead of putting in that a rota should be cast for sittings four times a year, which he did not

1335
see any necessity for, it would be wiser to leave to that great tribunal, the King's Bench, the power of regulating their own times of sittings and the fixing of the rota. That was a mere matter of detail; but there was another matter with reference to the rota which, he thought, would be possibly put forward as a matter of judicial examination and criticism. The King's Bench Judges might say, "Why do you pick out the King's Bench Judges alone? Are we the only Judges to be employed in this not particularly agreeable and attractive duty? You have got Mr. Justice Ross, who certainly has not as much to do as many of us, and who is closely connected with land administration and is given distinct powers under the Act of 1896. Why is he not to bear his part, at all events, as a judge on the rota?" And then it might be suggested, if he was to go on the rota, why not his colleague the Judicial Commissioner, Mr. Justice Wylie? He ventured to think that as the Judges were away, and unable to put forward their case and their criticism, it would be well to bear in mind these things, and to make sure that in the constitution of the rota they should engage all the Judges who might be legitimately asked to take a share in work which would not be looked upon as of the most agreeable character. That was a matter which he would not dwell upon at any length, but would only indicate as one worth consideration and attention. He was more anxious, if possible, to have something like a clear view as to the question which his noble friend the Leader of the Opposition had asked as to what was to be the position of affairs with regard to this appeal. That was a matter of first-class importance. The Amendment of his noble and learned friend Lord Robertson was admirable; it gave protection by announcing what was to be the governing policy; but it must have powder and shot behind it, it must have the sanction of a Court, and if it was departed from or violated by mistake, inadvertence, or otherwise, there must be a method of setting it right by appeal. With regard to the other matter, which had now been suggested for the first time, it was a matter of novelty and one that he had not had time to consider.
1336
It proposed practically two appellate tribunals, without saying exactly what were to be their denominations or limitations. He would, of course, be glad to have the opportunity of considering that question; but, in the meantime, there was a proposal before them for consideration in addition to His Majesty's Government's proposal. The Government proposal was incomplete, because it did not contain any decision whatever in reference to an appeal for the planters. His noble and learned friend's (Lord Atkinson) Amendment was not open to that charge, and, whether they liked it or not, as a means of deciding one way or the other, for the purpose of coming to a conclusion at the present stage, it was complete in itself; it gave an appeal to the planter; it gave an appeal on the price, and it gave an appeal in reference to the other questions which might arise. It was, therefore, complete in regard to its subject matter, and it provided an appellate, tribunal above all impeachment as to character and competency. Therefore, whatever criticism might be made as to various parts of it, no one could question that it was complete, exhaustive and self-containing, and that was a matter which they could not lose sight of when they came to a division.
On Question, "That this House do not insist on their Amendment with which the Commons have disagreed," Motion agreed to.
On Question, "That this House do, disagree with Commons' proposed Amendments,"Motion agreed to.
On Question, "That Lord Atkinson's new amendment be there inserted," Motion agreed to.
THE EARL OF CREWE: On page 4, line 14, there is a small Amendment by the Commons to your Lordships' Amendment. Your Lordships proposed after "holding" to insert "and shall at the same time offer to such new tenant such sum as may be reasonably necessary to cover any expense or loss incidental to the removal of himself and his family, as well as of his crops, stock, and chattels to such parcel_of land."

1337
The Commons propose to amend the Amendment by inserting the word "other" before "chattels."
Moved, "That this House do agree to Commons Amendment of their Amendment."—(The Earl of Crewe.)
On Question, Motion agreed to.
THE EARL OF CREWE: With regard to the next Amendment, which was originally Lord Barrymore's, I am afraid I was a little over precipitate in accepting it, as I think I did when it came before us as a Committee. As a matter of fact, the circumstances are not really the same as those applying to the Amendment in line 14. This is an Amendment on line 19 to insert similar words where a man does not take a farm, and also to compensate him for moving. I think, on consideration, your Lordships' House will see that it is one thing to say that a man should be compensated for moving his goods to another farm which he has taken, but if he retires to, say, Australia, it would be rather a strong order. Perhaps noble Lords would agree to that.
Moved, "That this House do not insist on their Amendment to page 4, line 19." —(The Earl of Crewe.)
On Question, Motion agreed to.
THE EARL OF CREWE: The next is in page 4, line 22, where your Lordships proposed after "1881" to insert—
"Provided that the Estates Commissioners may, if they think proper, and the new tenant so desires, award a sum as full compensation under this Sub-section 3, without making an offer of a parcel of land under Sub-section 2."
To this the Commons disagree, but they propose to amend the Bill by inserting in page 4, line 22, the words—
"(4) Where the new tenant applies within the prescribed time for compensation under the last preceding subsection, the Estates Commissioners may, if they think proper, award him such compensation without having offered to put him into possession of a parcel of land.
Moved, "That this House do not insist on their Amendment to page 4, line 22."—(The Earl of Crewe.)
On Question, Motion agreed to.
1338
Moved, "That the House agree to the Amendment of the Commons at page 4, line 22."—(The Earl of Crewe.)
On Question, Motion agreed to.
THE EARL OF CREWE: The next Amendment of your Lordships to which the Commons disagree is at page 5, line 5, at the beginning of the sub-section to insert "except as hereinbefore provided." The Amendment proposed by the Commons is consequential, and I do not think we need discuss it.
LORD ASHBOURNEthought the Amendment of his noble friend (Lord Dunboyne) was, in a sense, not of first-class importance, but it arose in this way. It left, as well as he recollected, all the measure of the costs to the Judicial Commissioner; but, under the Amendment of his noble and learned friend (Lord Atkinson), other Judges were brought in to deal with the costs, and therefore the word "except" was put in at the beginning in order that the matter might be referred to the Judicial Commissioner.
THE LORD CHANCELLOR: I do not quite know what the Motion before the House is.
LORD DUNBOYNEmoved to insist upon the words "except as hereinbefore provided" standing part of the Bill.
Moved, "That the House do insist upon their Amendment to page 5, line 5, with which the Commons have disagreed."—(Lord Dunboyne.)
On Question, Motion agreed to.
THE.EARL OF CREWE: I think it is useless to attempt to insert here the Commons' Amendment, because the form of the Bill would be changed by it; but it is almost necessary, I think, your Lordships having put the Bill into the shape in which it is, to disagree with the Amendment.
Moved, "That the House do disagree with the Commons' consequential Amendments in page 5, lines 6, 7 and 8."—(The Earl of Crewe.)

1339
On Question, Motion agreed to.
THE EARL OF CREWE: The next Amendment of your Lordships' House with which the Commons disagree is to leave out Clause 5. The Commons propose to amend the restored clause by adding at the end the words—
"Provided that the total amount paid out of the Land Purchase Aid Fund under this section shall not exceed £100,000."
I think we are all agreed upon that.
THE MARQUESS OF LONDONDERRYagreed with the noble Earl.
Moved, "That this House do not insist on their Amendment to leave out Clause 5."—(The Earl of Crewe.)
On Question, Motion agreed to.
Moved, "That the House do agree to the Commons Amendment at the end of Clause 5."—(The Earl of Crewe.)
On Question, Motion agreed to.
THE EARL OF CREWE: The next Amendment is in page 5, line 25, after the word "farm" to insert the word "townpark." The Commons have amended this Amendment by inserting after the word "townpark" the words "within the meaning of the Land Law (Ireland) Acts." I beg to move that that be agreed to.
Moved, "That this House do agree to the Commons Amendment of their Amendment to page 5, line 25."—(The Earl of Crewe.)
On Question, Motion agreed to.
THE EARL OF CREWE: The next Amendment is in page 5, line 26, which was originally Lord Clonbrock's. Your Lordships inserted after the word "ground," the words "or ground suitable for building sites or which for any reason possesses an exceptional or accommodation value to the owner." So far as the sentence to the first comma is concerned, we prefer the word "adapted" instead of the word "suitable"; and I am afraid we cannot agree to the words "excep-
1340
tional or accommodation value to the owner." I do not know whether the noble Lord will think it worth while to proceed with that, as he has got so much already in the form of Lord Atkinson's Amendment.
LORD CLONBROCKsaid he was afraid he must ask the House to insist upon his Amendment. When he originally brought up the Amendment, cases were mentioned of very large farms, some being instanced to the number of several thousand acres, and he quite adhered to the view that it was desirable that farming operations of large extent should be carried on, both because of the amount of labour in the country and because of the example it gave to the people of the proper method of tilling. But he wished to point out that those were not the only cases, by any means, which he had had in view. It was not the cases of the large landowners which had induced him to put down the Amendment; those cases might be counted upon the fingers probably; but there were a great many small, needy landlords whose income had been reduced by the perverse and faulty legislation of recent years, and whose principal means of livelihood was in farming their land; they farmed their own demesnes, but it was impossible to farm them in most cases without also farming land outside, land which was not necessarily in the immediate vicinity, but might be at a distance off—wintering land and so on. If that land was taken from them, not only would the demand for labour cease, which he thought was a matter of great importance to the country; but they would be absolutely unable, in many cases, to live where they were now. He need not point out to the House the advantage of having a certain number of men of education living in the country, and the misfortune it would be to the whole country if they were driven out. He was convinced there were a great many people to whom the loss would be very serious if land of that description was taken from them, even if it was not of a large amount, by the compulsory action of the Estates Commissioners, and in many cases it would mean ruin to them. He must therefore urge the House to insist upon the Amendment which he had put down.
THE EARL OF CREWE: Perhaps the noble Lord on the Woolsack, in putting the Motion, will put the words "or ground 'adapted' for building sites," instead of 'suitable.'"
THE LORD CHANCELLOR: Does the noble Lord accept the word "adapted"?
LORD CLONBROCK: Yes.
Amendment moved—
"That the word 'adapted' be substituted for the word 'suitable."—(The Earl of Crewe.)
On Question, Amendment agreed to.
Moved, "That this House do insist upon their Amendment to page 5, line 26, as amended."—(Lord Clonbrock.)
On Question, Motion agreed to.
THE EARL OF CREWE: The next Amendment is also Lord Clonbrock's—to leave out "immediately adjoining and." I think in this case we can give the noble Lord the words he wants. I am still a little obscure about the meaning of the words "immediately adjoining," but I will not press their being struck out.
Moved, "That this House do insist upon their Amendment to page 5, line 32."—(Lord Clonbrock.)
On Question, Motion agreed to.
THE MARQUESS OF LANSDOWNE: Did not the noble Earl (the Earl of Crewe) intend to add some words to the last lines of Clause 6, which he mentioned earlier in the evening? Is not the clause to run, "land shall be selected with due regard to the general situation and convenience of any other property of the owner so as not to diminish the value thereof"?
THE EARL OF CREWE: Those words hinged, I am afraid, upon the acceptance of our general proposition. Noble Lords have adopted the Lands Clauses Act, and those words, therefore, are clearly not needed. I was quite prepared to restore them if the words in Clause 1 were accepted; but the two things hang
1342
together. I think the noble Marquess will see that, from his point of view, the words are not wanted.
THE MARQUESS OF LANSDOWNE: I simply regarded it as better drafting.
After Clause 6:—
THE EARL OF CREWE: Your Lordships will remember that your Lordships' House inserted a new clause to the effect that—
"Where any land is compulsorily acquired under this Act all sporting rights theretofore vested in the owner of the land shall, if he so desires, be expressly reserved to him."
This is not a point upon which we desire to lay the greatest possible stress, but at the same time I am not in a position to say that I accept the clause, although I think I have before indicated there are certain points in it which might, at any rate conceivably, create hardship. I am not able to say that we agree to the new clause; but I have no doubt your Lordships will insist upon it.
Moved, "That this House do insist upon their Amendment to insert new clause after Clause 6."
On Question, Motion agreed to.
THE EARL OF CREWE: The next Amendment is the omission of Clause 13, and upon that I beg to move that this House do not insist upon this Amendment. I do not wish in any way to argue over again the question about the status of the Estates Commissioners. It is enough, particularly at this hour of the night, to say that we adhere to the views which I stated at considerable length, that it is necessary for the protection of the Estates Commissioners that they should have the more or less judicial status provided for them in Clause 13.
Moved, "That this House do not insist upon their Amendment to leave out Clause 13."—(The Earl of Crewe.)
THE MARQUESS OF LANSDOWNE: All I have to say about this clause is that, as the noble Earl is aware, we attach considerable importance to the point. But I am bound to add that, to my

1343
mind, the question is very closely mixed up with the question of appeal which we were discussing earlier in the evening; and, if it were possible for us to arrive at a satisfactory solution of the appeal difficulty, I think many of my noble friends who sit beside me would be inclined not to press this particular clause too far.
On Question, Motion negatived.
After Clause 15:—
THE EARL OF CREWE: There is only one further Amendment, and that is a new clause as to the duration of the Act—
"The provisions of this Act conferring power for the acquisition of land and for the determination of tenancies shall continue in force for three years after the passing of this Act."
The Commons have amended that to "four" years; and I move that this House do not insist on the Amendment.
Moved, "That this House do not insist upon their Amendment after Clause 15."—(The Earl of Crewe.)
THE EARL OF MAYOsaid that he had moved the Amendment originally, but he was willing to give way, and accept "four" years.
On Question, Motion agreed to.
THE EARL OF CREWE: My Lords, there is one point upon which I am afraid I am out of order, and we shall all be out of order, but as a matter of fact I ought to have reminded the House before that the omission of Clause 13, if insisted upon, has a serious effect upon the Bill. If your Lordships wish to take the course of amending Clause 13, then the Bill would go back to the House of Commons with the clause as amended, but the insistance on the omission of the clause will, I understand, have a disastrous effect upon the life of the Bill.
THE MARQUESS OF LANSDOWNE: If I am not out of order, I would move that the Estates Commissioners shall hold office by the same tenure as heretofore as if they were county court Judges in Ireland.
The Marquess of Lansdowne.
LORD ASHBOURNE: "During and after the passing of this Act."
THE MARQUESS OF LANSDOWNE: "The same tenure as heretofore" and strike out the rest of the clause.
THE EARL OF CREWE: Does the noble Marquess move those words?
THE MARQUESS OF LANSDOWNE: Yes.
THE EARL OF CREWE: Perhaps the noble Marquess would give the words to the noble Lord on the Woolsack.
THE LORD CHANCELLOR: First of all, so that the House may be in order, I will move that the decision of the House in regard to Clause 13 be superseded.
Moved, "That the House do rescind their Resolution to insist upon the omission of Clause 13."—(The Lord Chancellor.)
On Question, Motion agreed to.
Moved, "That Clause 13 be amended by inserting after the word 'shall' the words 'from and after the passing of this Act."—(The Marquess of Lansdowne.)
On Question, Motion agreed to.
A Committee appointed to prepare reasons for the Lords insisting on certain of their Amendments and for disagreeing to certain of the Commons Amendments. The Committee to meet forthwith.

PUBLIC HEALTH BILL.
Order of the Day read for the House to be put into Committee on the Public Health Bill.
THE CHAIRMAN OF COMMITTEES: Before the Motion is put for the House to put itself into Committee, I should like to explain to the House the action that has been taken upon this Bill. The Bill, as your Lordships will remember, was referred to a Select Committee of your Lordships' House. That Committee has sat on

1345
three occasions, and the Amendments it proposes are embodied in the Bill that is before your Lordships for consideration this evening. But I want to point out that, owing to the lateness of the session, it was impossible for the Committee to hold as many meetings as, I think, it ought to have held in order to complete its work. Therefore your Lordships will be asked, at this stage of the proceedings, to insert a certain number of minor Amendments which the Committee had not the opportunity of fully considering. There is one Amendment upon the Paper, to be moved by the Earl of Carlisle, with regard to which it was thought by the Committee that the Committee of the Whole House ought to have the opportunity of hearing what the noble Earl has to say, and therefore, the consideration of that question was not undertaken by the Committee to whom your Lordships referred the Bill.
House in Committee (according to order).
The Amendments proposed by the Select Committee made.
Clauses 1 and 2 agreed to.
Clause 3:—
LORD EVERSLEY,in moving the insertion of a new subsection, providing for the insertion of advertisements in the local newspapers of applications under the Act, said that this matter had been discussed by the Committee; and the proposed Amendment was one which had the approval of Lord Allendale.
Amendment moved—
"In page 2, line 21, after the word 'place,' to insert the following new subsection: '(2) the local authority shall, one month at least before applying for an Order, give notice of their intention to make such application by advertising the same in one or more of the newspapers circulating in their district once at least in each of two successive weeks, and no Order shall be made under this section until proof of such advertisement has been given to the satisfaction of the Local Government Board, and until at least one month has elapsed after the date of the last of such advertisements.'"—(Lord Eversley.)
On Question, Amendment agreed to.
Clause 3, as amended, agreed to.
Clauses 4 to 11 agreed to.
Clauses 12 to 48, with drafting Amendments, agreed to.
Clause 49:—
LORD MONK BRETTON,who had an Amendment upon the Paper to insert the words "Provided that within the county of London the administration of ambulance shall be in the hands of the metropolitan police.'" said he did not wish to move.
Clauses 49 to 74, with drafting Amendments, agreed to.
Clause 75:—
THE EARL OF CARLISLE,in moving to amend the clause so as not to give the heal authorities powers with regard to the sale of intoxicating liquors, said he was exceedingly unwilling to occupy their Lordships' time at that hour of the night; but, as he had put down Amendments, he would like to state his reasons for doing so. It seemed to him that if the clause were passed in its present form, there might be an inducement to some town councils or municipalities to start public houses on their own account. That was a course which he believed every Party objected to theoretically. At the beginning of the session the Leader of the Opposition stated particularly that he hoped the promised Government Bill would not include any scheme of municipalisation. It was a subject on which all temperance reformers agreed, and he had no doubt the Government did not intend it themselves, but he thought there was a danger that some of the many bodies, who would be able to do so under this clause, might be tempted to try the experiment, particularly if they were in financial difficulties. He knew it would be said that there were a number of municipalities and public bodies who already had power under private Acts, and that the fact that they had not availed themselves of the power showed that there was not a real want felt in that

1347
direction. But these bodies all represented important towns; and the fact that a few hundred of those had not tried to set up public houses was no proof that if this facility were given to the 26,000 public bodies, some of them might not yield to the temptation. He believed the fact that the magistrates would have to licence such houses was no real safeguard, because it would be impossible, or practically impossible, far a licensing bench to refuse a proposal that was made by a municipality on this subject. Very likely the same individuals who sat as licensing magistrates would themselves be members of the town council or municipality. He hoped that His Majesty's Government might see their way to make this slight alteration, which, he believed, would not be at all contrary to their intentions. Intentions, by themselves, were not sufficient, because both the Education Act and the Licensing Act of the late Government had shown that clauses might be interpreted in a way to lead to difficulties which were never anticipated by those who had brought them forward. They were lately told that in an Act passed two generations ago a clause was introduced which the Government of the day promised to repeal immediately, and that that Act passed the House of Commons on that understanding; yet they were at present engaged in carrying out that Government promise. That showed, in his opinion, that if any mistake—anything that was not anticipated by the framers of the measure—were to take place owing to the vagueness of this clause, it might be an exceedingly difficult and long business to correct it. He hoped, therefore, His Majesty's Government might see their way to accept his Amendments. He begged to move.
Amendment moved—
"In page 33, line 21, to leave out the words 'either manage themselves, or, if they see fit.'"
"In page 33, line 23, after the word 'years' to insert the words 'provided that such refreshment rooms shall not be licensed for the salt of intoxicating liquors.'"—(The Earl of Carlisle.)
LORD ALLENDALE: I think I may treat these two Amendments as one for the purposes of my reply, as they are practically bound up together. I regret it is not possible for His Majesty's Govern-
1348
ment to accept the Amendments of the noble Earl. It is perfectly true, as Lord Carlisle has said, that Parliament has granted these powers before by certain local Acts, and during the session of 1904–06 there were at least seventeen cases in which powers were given in this way to local authorities to provide and maintain buildings in recreation grounds and public resorts, and in several of them refreshment rooms were sanctioned. I can assure the noble Earl that nothing can be further from the intention of His Majesty's Government than to encourage municipal authorities to undertake the management of refreshment places, and especially those licensed for the sale of intoxicating liquors. On the other hand, nothing in this clause indicates that there will be any compulsion or any encouragement for local authorities to enter upon any such undertaking. There is nothing either to compel them to do so, or to give them any encouragement. But I think it would, on the whole, be rather a strong measure to exclude every form of intoxicating liquors from all the parks and recreation grounds to which the clause would apply. There is another reason why His 'Majesty's Government cannot accept this Amendment. The question was raised before the Standing Committee in another place, and there was a good deal of objection taken to it, and it was largely on account of His Majesty's Government giving way with regard to this point that the Bill was allowed to go through and to pass the House of Commons. This, and a good many other controversial questions, were struck out of the Bill in order that the Bill should not be lost during this session. I am advised that it would be to some extent a breach of faith with Members of the other House who let this Bill go through if this Amendment was inserted, and I fear that at this period of the Session it would end in the Bill being altogether lost. I very much regret, therefore, that, much as I sympathise with the noble Lord, His Majesty's Government cannot see their way to accept the Amendment.
THE CHAIRMAN OF COMMITTEES: Perhaps the Committee will permit me to say a few words on this subject, although I am in the Chair. The proposal is

1349
simply to allow local authorities to establish refreshment rooms in their open spaces; and that has been taken advantage of by a great number of local authorities whose accounts are not at present audited by the Local Government Board. I ought not to say that they have the power, but they exercise it as a matter of fact. If the Amendment were inserted, they would be deprived of this privilege. I confess I cannot see upon what grounds the noble Lord urges the omission of the words "sale of intoxicating liquors." I remember not many years ago that those who were very enthusiastic in favour of temperance reform believed that what was known as the Gothenburg system—in other words, the control of the sale of intoxicating liquors by municipalities and local authorities—was the best remedy for intemperance. The noble Lord shakes his head, but I well recollect that my right hon. friend Mr. Chamberlain, in those days which I think the noble Lords on this side of the House call his unregenerate days, was a very strong advocate of that form of licensing reform. And, when it is borne in mind that the magistrates will have exactly the same powers in granting licenses for these places as elsewhere, I cannot think that your Lordships would be well advised in interfering specially to say that magistrates should not have a right to grant such licences I think myself that much less flange] is likely to arise where a refreshment place is conducted by a local authority than where it is conducted by public house, when the sole object is gain to an individual. I think we may safely leave it to the magistrates to grant licences in this, as in all other cases. I very much hope your Lordship will not do anything to imperil the fate of this Bill, and I am very much afraid that if this Amendment is accepted by your Lordships the Bill will be likely to be lost in another place.
THE EARL OF CARLISLEsaid that he was not anxious to make another speech but he might say that, though he was not one of the party which bad bees referred to, he was perfectly certain that that important party who favoured what was sometimes called the Gothenburg
1350
system, did not approve of the municipalisation of public houses. Theirs was a perfectly different idea, namely, that the management of public houses should be by a disinterested body; but their exponent, Mr. Sherwell, who had a right to speak for them, insisted particularly that the profits should not go in aid of the rates. That they considered to be particularly objectionable. Sir Thomas Whitaker, who, he believed, was the representative of the party in the House of Commons, expressed his strong disapproval of this clause, as he thought it would tend to increase the number of public houses, which was a state of things which both the late and the present Governments objected to. He did not wish to press the Amendment if it would really endanger the Bill. He noted with satisfaction that the Government had distinctly said that they had no intention of promoting what he dreaded. He begged leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 75 agreed to.
Clauses 76 to 93, with drafting Amendments, agreed to.
Clause 94:—
LORD ALLENDALE,in moving to insert a proviso that the local authority should not undertake certain works calculated to create nuisance except after inquiry by the Local Government Board, said: I do not know, my Lords, that this Amendment needs any explanation from me, but its effect is that on any lands appropriated the local authority should not permit any nuisance, and that certain works, such as the construction of cemeteries, destructors, sewage farms, and so on, should not be undertaken without local inquiry and authorisation by the Local Government Board.
Amendment moved—
"In page 44, line 2, after the word 'Act' to insert the words provided that the local authority shall not on any lands so appropriate I create or permit any nuisance, and that the local authority shall not on any such lands sink any well for the public supply of water or construct any cemetry, burial ground,

1351
destructor, station for generating electricity, sewage farm, or hospital for infectious disease, unless after local inquiry and consideration of any objections made by persons affected the Local Government Board, subject to such conditions as they think fit, authorise the work or construction.'"—(Lord Allendale.)
On Question, Amendment agreed to.
Drafting Amendments agreed to.
Clause, as amended, agreed to.
Standing Committee negatived.
Then (Standing Order No. XXXIX. having been suspended): Amendments reported. Bill read 3a with the Amendments, and passed, and returned to the Commons.

PATENTS AND DESIGNS BILL.
House in Committee (according to order).
Clauses 1 to 6 agreed to.
Clause 7:—M
THE MARQUESS OF SALISBURY,in moving to omit Clause 7, said the proposal in this clause was a perfectly new one, which had never yet found its way into patent legislation. Under it the Comptroller, who, though an admirable official of the Board of Trade, was not a judicial officer in any sense of the word, had a right to stop absolutely an application for a patent if he thought it had been wholly anticipated. As a matter of fact, there was no more difficult issue to try as whether a patent had been wholly anticipated. The experience of the Courts showed in case after case and time after time that patents which had the appearance of having been wholly anticipated, so far from having been in fact anticipated, had been sustained by the highest Courts, and had been of the greatest use to the community and to the industries of the country. At a more congenial period he could have gone into that subject at great length; but he might mention one case in order to illustrate his meaning to their Lordships. A patent was applied for which had for its object the disin-
1352
fecting of clothes by means of superheated steam. When the specification was looked at that patent appeared to have been completely and absolutely anticipated by a former patent. The one which it was alleged. anticipated it was a complete and disastrous failure, for the reason that when the pressure of steam was put on the machine it burst, and therefore it did not succeed. As far as the description of the patent was concerned, the new patent was precisely the same as the old, only in this case when the pressure of steam was put on it did not burst, and the result was just the difference between complete failure and complete success. It would have been exceedingly difficult to have told that beforehand upon the terms of the specification; but when the case came to be tried by the superior Courts after the new patent had been in use for some time, the patent was sustained. He only mentioned that in order to illustrate that the issue of whether a patent had been anticipated or not was a most difficult one, and was not one which ought to be entrusted to the Comptroller of his own motion to interpret and decide upon. This clause had attracted a great deal of attention. It was not in the original Bill of His Majesty's Government, but it was put in in Grand Committee of the House of Commons. A letter had been written to The Times protesting in the warmest way against is, and signed by a large number ofgentlemen, including Lord Kelvin, Sir Douglas Fox, Professor Silvanus Thompson, and many other eminent men who had great experience of inventions and patents. And, lastly, the London Chamber of Commerce had communicated with him through their representative, begging him to use his best endeavours to induce their Lordships to prevent the passing, of this clause. He need not remind their Lordships that the London Chamber of Commerce was a very important body, and that they had a special connection with patents, and upon the strength of their suggestion he had ventured to place this Amendment before their Lordships. No ultimate injustice would be done, even if the clause were struck out, because the granting of the patent afterwards could be opposed, if it was desired to oppose it, on behalf of any

1353
aggrieved party. That was not touched by this clause, nor was the right to have a patent revoked hereafter if the aggrieved party desired to have it revoked. The object of the Amendment was only to prevent the Comptroller taking the tremendous responsibility of stopping on his own motion the granting of a patent.
Amendment moved—
"To leave out Clause 7."—(The Marquess of Salisbury.)
THE LORD CHANCELLOR: I feel confident that if the noble Marquess had been in the habit of considering patents and specifications, he would not have lent his ear to those who oppose this clause. Patents are monopolies granted by the State in order to benefit those who are real inventors; but there is a class of patents taken out which are show patents, and to which I refrain from attaching a still more serious epithet. They are patents which have been partly anticipated; they are not new at all, but previous specifications have, in the words of this clause, "wholly and specifically" claimed them. But there are poor people who cannot afford to fight those who have got a patent; and the consequence is that by means of these bogus patents those people who obtain them frighten those who are poor and who cannot contest with them in courts of law, and thereby they require them to take out licences and make some sort of payment rather than have a litigation. That is the plain fact. One of the purposes of this Bill is to put an end to practices which I will not stigmatise further than I have already described them—and I think that is a most meritorious object. This is what the clause says—
"Provided that the comptroller, if satisfied that the invention claimed has been wholly claimed or described in any specification to which the investigation has extended may, in lieu of requiring references to be made in the applicant's specification as aforesaid, refuse to grant a patent."
The noble Marquess is quite mistaken if he thinks there is much difficulty about that.
THE MARQUESS OF SALISBURY: I think there is.
THE LORD CHANCELLOR: I have had a great deal to do with specifications, and I do not think there is any difficulty in deciding whether there is ground for saying that an invention has been previously claimed. The whole thing is set out in print; you can see it at any time. But let me tell this to the noble Marquess: the Comptroller, himself a skilled official, has had the power of refusing patents since 1883 in cases where there has been opposition, and there is an appeal to the law officer. It is not the Comptroller alone, but there is an appeal to the law officer. I venture to think that nothing can be more desirable than to give an opportunity, in such obvious cases as these, of preventing what is really altogether an abuse of the system of patents for the sake of profit, and which has been a source of real complaint on the part of the trading classes.
THE MARQUESS OF SALISBURYsaid that, having been a law officer, no doubt the noble and learned Lord knew as well as he did that in any case where a patent was alleged to have been anticipated, and the Comptroller thought so, the patentee had to put on his own specification, in black and white, the other patents which were said to anticipate his, so as to give such notice to the public as to enable them to resist an unfair patent. That was under the Act of 1892. The noble and learned Lord had also forgotten to remind their Lordships that, unless he was very much mistaken—he spoke under correction—in the Report of the Royal Commission on this subject, on which the Lord Chief Justice sat, as well as other persons of great eminence on these subjects—Lord Justice Fletcher Moulton amongst others—it was definitely recommended that this power should not be given; and there was a specific recommendation of that Committee upon which the Act of 1892 was founded. The House had not had a real opportunity of dealing with this Bill. He had cut down his observations to a minimum; but the Bill was presented to their Lordships' House on the 22nd August with these new principles introduced. It ought to have come to their Lordships earlier in the session, and to have been sent to a Select Committee.

1355
That would have been the proper proceeding, and he thought their Lordships were entitled to insist that a totally new clause should not be put into an Act of Parliament, to the prejudice of very great interests and in the teeth of a protest signed by such influential persons as he had mentioned, and by the Chamber of Commerce, without some better opportunity for consideration than had been afforded. If His Majesty's Government had treated their Lordships' House properly, and had sent the Bill in in proper time, it would then have been sent to a Select Committee; and not only would he not then have resisted it, but he would not even have dared to raise his voice, because then there would have been the Lord Chief Justice, Lord Avebury, Lord Collins, and others who knew very much more about the matter than he did, who at present were away on their holidays and therefore not able to take part in this discussion. He thought His Majesty's Government ought to give way.
THE LORD CHANCELLOR: I hope I have not said anything that can legitimately cause pain to the noble Marquess.
THE MARQUESS OF SALISBURY: Not at all.
THE LORD CHANCELLOR: The noble Marquess has said that this Bill ought to have come before your Lordships' House before. We all wish it had; and we all know the causes why it has not. I have had occasion to say before that until you alter the causes you will never be quite certain of being able to prevent these things happening. In regard to what the noble Marquess has said about the recommendation of the Committee, that is quite true. They thought the practice would be stopped by an additional sealing fee being put on. It has turned out, however, that the additional sealing fee has not had the effect of stopping these sham patents. In regard to the point about notice of previous patents, all that the noble Marquess says is perfectly true; but that has not prevented the abuses—because the point
1356
is that you have got a patent and, whatever the patent is, you prevent or terrorise poor people from using the old invention unless they are prepared to come to terms with you. The thing is wrong on the face of it; and no one has ever denied that the practice is carried on. I am quite satisfied that this is a fair thing to do, and I hope the noble Marquess will not press his Amendment.
On Question, Amendment negatived.
Clause 7 agreed to.
Clauses 8 and 9 agreed to.
Clause 10:—
THE EARL OF GRANARD: There are several Amendments standing in my name on this clause, but they are simply drafting Amendments rendered necessary in consequence of some inadvertence on the Report stage of the Bill.
THE MARQUESS OF SALISBURY: Why does the noble Earl strike out "wholly and specifically" in line 31?
THE EARL OF GRANARD: In answer to the noble Marquess, if "wholly and specifically" were allowed to remain in the clause, instead of widening its operation it would curtail it. I can give an example. If these words were allowed to remain it would not be possible for anybody to object to any part of an invention being taken.
Drafting Amendments agreed to.
Clause 10, as amended, agreed to.
Clauses 11 to 14 agreed to.
Clause 15:—
THE EARL OF GRANARD: As the clause stands at present, it will not come into operation until the expiration of a year from the commencement of this Act; that is to say, not until 1st January, 1909. The intention of this Amendment is that it should come into operation at the end of twelve months after the passing of the Bill. I may

1357
mention that the word "commencement" was accepted inadvertently in the House of Commons on the Report stage.
Amendment moved—
"In page 6, line 23, to leave out from the word 'patent' to the word 'of,' in line 26, and insert the words 'and not less than one year after the passing.'"—(The Earl of Granard.)
THE MARQUESS OF SALISBURY said that there was a diff- erence of opinion between the noble Earl and himself as to the opening words of this Amendment as it stood, whether Clause 15 should apply to the question of patents granted before the commencement of this Act. He did not feel that their Lordships would care that he should raise that point at that hour of the night in a House not very numerously attended. It was a very important point, and, personally, he was very much astonished that His Majesty's Government had lent themselves to limiting the rights of the persons who had got their patents before the passage of this Act. It was a very strong measure; but he would not attempt to contest it at the present moment.
On Question, Amendment agreed to.
Drafting Amendments agreed to.
Clause 15, as amended, agreed to.
Clauses 16 to 22 agreed to.
Clause 23:—
THE EARL OF GRANARD: I beg to move to leave out the words "did not arise from any misconduct on the part of the patentee," and to insert the words "that no undue delay has occurred in making the application." We are of opinion that it is very improbable that omission would arise from any misconduct on the part of the patentee, and that what really should disqualify the application from obtaining restoration of the patent is undue delay in applying for such restoration.
Amendment moved—
"In page 10, lines 4 and 5, to leave out the words 'did not arise from any misconduct on the
1358
part of the patentee' and to insert the words 'that no undue delay has occurred in making the application.'"—(The Earl of Granard.)
THE MARQUESS OF SALISBURY: Who judged? The Comptroller?
THE EARL OF GRANARD: The Comptroller, yes.
On Question, Amendment agreed to.
Clause 23, as amended, agreed to.
Clause 24:—
Drafting Amendment agreed to.
THE LORD CHANCELLOR: The next Amendment is one that I move and it arises in this way. There is a provision that certain conditions to the sale of patented articles shall not be valid. I will tell your Lordships exactly the sort of thing that happens. People who live abroad, and take out patents in this country, do not work them in this country, but manufacture the patented articles in, say, America or anywhere they please, and then they sell the right to use the patent here, and they affix conditions—for instance, conditions that all the machinery for the purpose of making the patented articles shall be bought from them in America, and all sorts of other conditions of an oppressive kind. Thereby they use the patent, not merely for the legitimate protection of themselves, but for the purpose of either preventing people in the United Kingdom from making the patented articles, or of attaching all kinds of irrelevant and oppressive conditions to the permission to make them. That is thought to be unfair; and the consequence is that certain conditions are proscribed here, as, for example, to require the purchaser or the licensee to acquire from the seller or the licensor any article or articles not protected by the patent. I have just given an illustration of that with regard to buying machinery. Still it is necessary to keep as much freedom as is consistent with preventing abuse of the patent; and accordingly we propose, in accordance with a sort of undertaking given in the House of Commons, that this subsection shall not apply if the seller, lessor, or

1359
licensor proves that at the time the contract was entered into the purchaser, lessee, or licensee had the option of purchasing the article or obtaining a lease or licence on reasonable terms without such conditions, and also that the contract entitles him to relieve himself of the liability to observe any such condition on giving notice and paying compensation. That seems to be the best and fairest way of enabling reasonable conditions to be made, or enabling practically any conditions to be made, provided there is a free opportunity for each party to contract. It is a technical and somewhat difficult matter—but the object is to prevent the imposition of these absolutely preposterous conditions by persons who sell from abroad—or indeed in this country also—patented articles.
Amendment moved—
"In line 30, after the word 'policy,' to insert the words 'Provided that this subsection shall not apply if (i.) the seller, lessor, or licensor proves that at the time the contract was entered into the purchaser, lessee, or licensee had the option of purchasing the article or obtaining a lease or licence on reasonable terms, without such conditions as aforesaid; and (ii.) the contract entitles the purchaser, lessee, or licensee to relieve himself of his liability to observe any such condition on giving the other party three months notice in writing and on payment in compensation for such relief in the case of a purchase, of such reasonable sum, or in the case of a lease or licence of such reasonable rent on royalty for the residue of the term of the contract, as may be fixed by an arbitrator appointed by the Board of Trade.'"—(The Lord Chancellor.)
THE MARQUESS OF SALISBURYsaid he certainly did not rise in any way to contest the principle of this clause, but he thought the clause as it stood in the Bill went much too far. However, the Amendment proposed by His Majesty's Government was certainly a considerable concession. He wanted to be as brief as possible, but there were two points to which he would like to call the noble and learned Lord's attention. In the first place, there was the compensation mentioned in the second subsection. That compensation was said to be
"such reasonable sum or such reasonable rent or royalty"—so that the word "reasonable" was attached to "compensation." If the noble and learned Lord
1360
would look at the second subsection the corresponding compensation had no such word as "reasonable" sum attached to it. Then, in the case of contracts made before the passing of this Act where the terms of the contract could be broken in return for compensation, the word appeared alone without the word "reasonable." Here again he considerably felt at a loss in discussing the matter with the noble and learned Lord, but he suggested to him that anybody seeing the section when it passed into an Act of Parliament would have their attention at once drawn to the point that the "compensation" mentioned in the first subsection was differently worded from the "compensation" mentioned in the second and third subsections.
THE LORD CHANCELLOR: I do not mind leaving out the word "reasonable"; I think that will cover it.
THE MARQUESS OF SALISBURYwas obliged to the noble and learned Lord, but, were they to understand that the word "compensation" in this connection meant the full amount which the person who received the compensation had lost by the operation of the clause? It was not, he presumed, compensation such as might be thought sufficient by the official of the Board of Trade, whose business it was to make the Act work, but not to care so very much about justice to the parties. He did not mean to say that there were such persons at the Board of Trade, but it was a conceivable case. The compensation he wanted was full compensation corresponding to the loss to the individual whose contract was broken. Would he get the full value? He had a contract; the contract was broken; he lost by, it; would the compensation correspond, so far as human ingenuity could make it, to his loss?
THE LORD CHANCELLOR: I will omit the word
"reasonable" in both places. I do not think it either adds to,or detracts from the value of the clause. With regard to the question which the noble Marquess put, he touched upon a very difficult subject, the measure of damages. What I think would be given would be what the arbitrator thinks, under the circumstances, it is fair to give,

1361
remembering what it is given for, namely, a man relieving himself of an obligation; he would have to compensate the other person whatever is fair.
THE MARQUESS OF SALISBURY: The same sort of damages as a jury would give?
THE LORD CHANCELLOR: Very much the same thing. In fixing damages, in nearly all cases you must consider what is reasonable, right and fair, and in this case you would have to compensate this person for the alteration in his position in consequence of notice having been given. That is the way it would be put to himself by the arbitrator; and I think it would be very difficult to go nearer to it. There is nothing that I know, either in the wording or the intention, to make any unfair limit.
THE MARQUESS OF SALISBURY: I think I must be satisfied with that. I should not have asked the noble and learned Lord the question but that there had been an observation by one of his colleagues in another place which led people to doubt what "full compensation" was intended to cover.
THE LORD CHANCELLOR: Those words were not before him.
THE MARQUESS OF SALISBURYsaid he could absolutely rely on what the noble and learned Lord had told him. There was just one other question he wanted to put with reference to the word "and." This was a much more important question. Should not the word be "or"? He thought they were entitled to some consideration from His Majesty's Government. After all, this was the case of two men wishing to make a contract; the two persons were perfectly free agents. It was not like the oppression by a rich man of a poor man, but it was a case of dealings between two business men, each of whom was perfectly capable of making a bargain. It was said that notwithstanding that hard terms were inserted. They could see that hard terms might be inserted in such a contract, and they accepted the principle of the Government
1362
clause, but, if it could be shown that there was a reasonable alternative given to these hard terms, then this restrictive clause should not apply. What were reasonable terms? Surely, if the seller could prove that the man with whom he was dealing could, in the alternative of those terms, have bought in the open market freely, that ought to be quite sufficient; or, if he could, on the other hand, show that he had offered the purchaser an arrangement which did not involve these restrictive terms, that ought to be perfectly sufficient. But why couple them both together? Why make the double condition? Surely, it was quite sufficient in the case of business men, who were perfectly able to make a bargain between themselves, to go as far as he had described, and to allow either of the alternatives. He begged to move, as an Amendment to the Amendment, to leave out the word "and" and insert the word "or."
Amendment moved to the proposed Amendment—
"To leave out the word 'and' at the end of Subsection (i.), and to insert the word 'or.'"—(The Marquess of Salisbury.)
THE LORD CHANCELLOR: I think if the noble Marquess will just look at the clause he will see that he cannot maintain that. He begins by admitting that there may be cases—in fact everybody knows there are numerous cases—in which these oppressive and unfair conditions are imposed upon persons who are not offered a fair alternative. If that is the case, would it be sufficient to say that that still may be imposed upon a person who is not offered a fair alternative if he is unable to get out of it by paying compensation? That is the effect of the noble Lord's Amendment; because either the first or the second limb of my proposed words would suffice to exclude the effect of the section. It is necessary, to my mind, in order to prevent the subsection applying, that there should be, in the first place, proof that the man could have got a licence on fair terms and, secondly, might have got out of it upon giving notice and paying compensation; and, if you say that he may still be oppressed if he got out of it by paying compensation, you put him to this alternative—that he is either to pay

1363
compensation in any event, or to pay compensation for getting out of what is unfair. That cannot be right.
On Question, original Amendment agreed to, with the omission of the word "reasonable" in lines 3 and 4.
Drafting Amendment agreed to.
LORD BALFOUR OF BURLEIGH,who had an Amendment in page 11, line 23, after the word "from" to insert the words "buying or," said that he did not desire to move the Amendment, because an Amendment inserted by the noble Lord in charge of the Bill met his point.
Drafting Amendments agreed to.
Cause 24, as amended, agreed to.
Clauses 25 and 26 agreed to.
Clause 27, with drafting Amendment, agreed to.
Clause 28:—
THE MARQUESS OF SALISBURY,in moving to insert a proviso giving leave to appeal under certain conditions, said that he had been in communication with the Lord Chancellor upon this point, but, unfortunately, owing to the demands upon his Lordship's time, they were not able to bring their conversation to a conclusion. He had therefore put the Amendment upon the Paper, but he would not press it if the noble Lord did not wish him to do so. He thought, considering the enormous importance of the issues involved, and the very large sums of money in question, there ought to be some possibility of bringing these cases to the Superior Courts if the Court of Appeal should think it right. He knew that in all cases of revocation there was an appeal granted now, but there were cases which did not involve revocation but yet were very important, as, for example, the case of a petition under Clause 16 with regard to a compulsory licence. That might be a decision of very great importance. He would say nothing more, except that if the noble and learned Lord was willing
1364
to accept his Amendment he would take it on any terms he liked. It was a matter much more for the noble and learned Lord than for himself.
Amendments moved—
"In page 12, line 35, after the word 'and' to insert the words 'save as hereinafter provided.'"
"In line 39, after the word 'opposed' to insert the words 'unless the Court of Appeal shall give leave to appeal upon such condition as to costs or otherwise as they shall think just; provided that in considering any application for leave to appeal the Court of Apeal shall have regard to the interests involved in the proceedings and the financial position of the parties thereto.'"—(The Marquess of Salisbury.)
THE LORD CHANCELLOR: This is one of the sort of points on which I wish, so to speak, both ways. In appeals, you have always got to consider, in the first place, that it is very hard if the decision of one Judge produces unfairness or injustice. On the other hand, you have to remember that the rich man can kill the poor man by constant appeal. It is extremely difficult to draw the line between the two. I am quite certain that the noble Marquess and I have exactly the same purpose in view. Will he just look and see what things are unappealable—I mean unappealable to the Court? In the first place, decisions of the Comptroller under Clause 15—that is, for the revocation of patents outside the United Kingdom—when a man takes out a patent outside England and never works it in England, but merely uses it to prevent industry in England. There is no appeal if it is proved that the patent ought to be revoked for not being worked outside the United Kingdom; and I think that is a fair issue enough to leave to the one Judge.
THE MARQUESS OF SALISBURYthought there was an appeal under that, because it involved revocation.
THE LORD CHANCELLOR: The only appeals in which decisions would be final would be, in the first place, decisions under the Comptroller. They would not be appealable. The next are decisions under Clause 16, where the Judge gives a compulsory licence on the ground that the patentee takes out his patent in this country and works it wholly abroad, and

1365
will not allow anybody to work it in England at all—which is a usual rule. We give the Judge power to say: "You shall allow it to be worked in this country; it is an English patent, and we will not allow you to use it for the purpose of preventing British industry." There is no appeal against that, and I do not see that there is anything very hard in such a case. The next is the decision of the Judge under Clause 17. Clause 17 is a clause for merely extending the term of a patent from fourteen years to something further. There is no appeal against that, and there is no appeal against the decision of the Comptroller (and this is the last, I am glad to say) under Clause 23, that is in regard to lapsed patents being restored, After all, they are not really fighting points as to whether there has been infringement of the patent. It is only those four points which are unappealable. I will not say we are absolutely right, but it seems to me not unreasonable to say finis litem at an early stage.
THE MARQUESS OF SALISBURYthought that the noble and learned Lord—if he might say so with respect—put the point not quite fairly. It was quite true that it was in the eyes of a true born Britisher an outrage that a patent could not be worked in England, but that was not the appeal which would go to the Appeal Court. Somebody would have to decide what was the interpretation of being "Wholly or mainly manufactured in the United Kingdom." That must be a matter of the most immense intricacy—indeed, he could not attach any meaning at all to the word "mainly," but then he was not a lawyer. He could not conceive how it would be interpreted. It might be said that "mainly" meant that of all the articles in question the majority were made outside the United Kingdom. If that was the meaning of "mainly" then the clause would work a great hardship, but if it meant that of the supply in England the larger number had been made abroad that would not be so bad. But it seemed
1366
to him a word of the vaguest possible kind, and likely to lead to any amount of litigation. Taking Clause 16 he found that somebody would have to interpret what the words "manufactured to an adequate extent" meant. Was not that a wonderful word for an Act of Parliament? Who in the world knew what an "adequate extent" could be? And, again, there was the expression "supply on reasonable terms." He did not want to insist, but he did not think the noble and learned Lord ought to import any prejudice from the kind of subject which these clauses dealt with. No doubt they were designed to prevent injustice to British subjects, but that was no reason why they should put in an Act of Parliament very vague terms and then not allow any appeal to a proper tribunal to say what they meant.
THE LORD CHANCELLOR: I do not deny that there may be cases of hardship arising upon this or upon any other clause in any other Act of Parliament. It is a choice of evils—whether you will protract litigation or whether you will risk error now and then. I think we must draw the line somewhere.
THE MARQUESS OF SALISBURY: I do not press it.
Amendment, by leave, withdrawn.
Clauses 31 to 33 agreed to.
Clause 34, with consequential Amendment, agreed to.
Clauses 35 to 43 agreed to.
Clause 44, with consequential Amendment, agreed to.
Clause 45 agreed to.
Clause 46, with drafting Amendment, agreed to.
Clauses 47 to 49 agreed to.
After Clause 49:—
THE LORD CHANCELLOR: I move to insert a new clause, which is only for the purpose of applying to Scotland the expression "rules of the Supreme Court." It appears that my countrymen in Scotland have not been as diligent as they are reputed to be, and your Lordspips may be able to make them work, I hope, by putting in that this refers to Scotland.
Amendment moved—
"To insert the following new clause:—'The expression
"rules of the Supreme Court" shall in this Act (except in Section 28) as applying to Scotland mean Act of Sederunt; and notwithstanding anything contained in the Patents, Designs, and Trade Marks Acts, 1883 to 1902, or in this Act, the expression "Court" in Section 16 and 17 of this Act shall, in reference to proceedings in Scotland thereunder, mean any Lord Ordinary of the Court of Session.'"—(The Lord Chancellor.)
LORD BALFOUR OF BURLEIGHsaid the Amendment sounded quite reasonable, but they would look at it when it was in print.
THE LORD CHANCELLOR: Before I put this clause the noble Lord has handed in an Amendment to Clause 48 relating to the Isle of Man. I will put that first.
On Question, Amendment agreed to
On Question, new clause after Clause 49 agreed to.
Clause 50, with drafting Amendment agreed to.
In the Schedule:—
Drafting Amendment agreed to.
Standing Committee negatived. The Report of Amendments to he received on Monday next, and Bill to be printed as amended. [No. 211].

PATENTS AND DESIGNS (CONSOLIDATION BILL).
Housein Committee(according to order.)
THE EARL OF GRANARD: My Lords, I do not know whether it will be con-
1368
venient to the House to move these Amendments altogether. They are all in conformity with the existing law. Would that meet with the wishes of noble Lords opposite?
THE MARQUESS OF SALISBURYsaid that, having regard to the way in which business was done, he did not think it mattered much.
Amendments moved en bloc, and agreed to.
Standing Committee negatived. The Report of Amendments to be received on Monday next.

OPIUM SHOPS AND DENS IN BRITISH CONCESSIONS AND SETTLEMENTS IN CHINA.
THE LORD BISHOP OF SOUTHWARK,who had given notice of his intention to ask the Under-Secretary for Foreign Affairs whether he could give any information as to the intentions of His Majesty's Government with regard to opium shops in the foreign quarters of towns in other parts of which these shops had been closed by the Chinese Government; and whether he could make any statement as to the instructions to be given to the British representative at the approaching international conference on the matter, said: My Lords, the Question I wish to put to the noble Lord the Under-Secretary for Foreign Affairs is not by way of criticism, but simply in order to obtain information. There has been certain anxiety caused by some notices in the Press with regard to the closing,by the Chinese Government of the opium houses in some of the great towns—Shanghai, Canton, and Foochow —in which there are foreign settlements. It is understood that this has been carried out by the authority of the Government, and carried out as part of a reform movement which appears to have enlisted a great deal of public enthusiasm. The fear which has been suggested is that this may lead to a very large influx of opium smokers into the still more numerous opium houses of foreign settlements, causing probably great scandal and, perhaps, disorder. The question was asked in another place of the Foreign Secretary some few weeks ago. At that

1369
time the action which the Chinese Government was taking had not become plain. The Foreign Secretary said that he would ask for more information,and my desire now is to ask the noble Lord whether he can give us information as to what the municipal authorities in foreign settlements are likely to do, and whether the Foreign Office is able to exercise any influence, and intends to use its influence in any way. Then, in connection with that, it has been announced that there is to be an International Conference upon the opium question, and I wish to ask respectfully—though I am quite aware that the noble Lord may not be able to give me any information—whether he can say anything about the instructions that will be given to the British representative, especially with regard to this matter of the opium houses. I beg to put the question of which I have given notice.
THE UNDER-SECRETARY OF STATE FOR FOREIGN AFFAIRS (LORD FITZMAURICE): The right rev. Prelate has raised a very interesting matter by the question which he has asked, but at this very late hour of the evening I think your Lordships would probably prefer that I confined my reply, tempting as the subject-matter is, to what is strictly necessary in order to give the information asked for.
His Majesty's Minister at Pekin has been instructed that it is desirable that the municipal councils of all British concessions and settlements in China should be moved to close any opium shops or dens that may exist in them, subject to the proviso that effective measures have been previously taken by the Chinese authorities to close establishments of this nature outside the concessions. Of course what is actually done in each concession will depend upon the particular circumstances of the case.
We have not yet heard that China has given any formal assent to the proposal of the United States Government for inquiry by a Conference or Commission of the Powers chiefly interested, though we have expressed our readiness to take part in it. No British representative has in consequence yet been
1370
appointed, and the question of what instructions should be given to him has not yet been considered.
His Majesty's Government are in entire sympathy with the wish of the Chinese Government to diminish as much as possible the consumption of opium in China, and in order to give practical effect to this sympathy they have, after consulting the Government of India, informed the Chinese Government that:—(1) They accept in principle the proposal that the import of Indian opium into China shall be diminished by one-tenth annually,pari passu with an equal decrease in the production of the native drug, up to the year 1910, and they will continue to reduce at the same rate the export in 1911 and subsequent years, on proof that China has carried out its share of the arrangement; (2) They have informed the Chinese Government that they have no objection to a Chinese official being stationed at Calcutta, provided that he has no direct powers of interference with Customs arrangements. That is a matter to which the Indian Government attached great importance. (3) His Majesty's Government have informed the Chinese Government that they are prepared to assent to such enhancement of the Customs and likin duty on foreign opium as will make its taxation in China equivalent to the taxation actually levied on native opium, differences in relative value and quality being taken into consideration. Steps have been taken to reduce the area of poppy cultivation in Bengal, which in the five years preceding 1906-1907 averaged 615,000 acres, and in 1907-1908 is not to exceed 562,000 aeres. In 1907 the number of chests of Bengal opium fixed for sale was originally 4,400 a month. This has now been reduced to 4,000 a month, while for 1908 it has been fixed at 3,900 a month. Further reductions will be fixed in succeeding years if the proposed arrangement with the Chinese Government becomes operative.
I hope that information, so far as it goes, will be satisfactory to the right rev. Prelate.
THE LORD BISHOP OF SOUTHWARK: I am extremely obliged to the noble Lord.

PUBLIC HEALTH (REGULATIONS AS TO FOOD) BILL.
House in Committee (according to order).
Clause 1:—
LORD ALLENDALE: I beg to move in page 1, line 21, after the word "intended" to insert the words "for sale." This is only a consequential Amendment which has been omitted inadvertently. Clause 1 of the Bill enables regulations to be made by the Local Government Board as to the importation, preparation, storage and distribution of articles of food intended for sale for human consumption. The words "for sale' were inserted in the House of Commons a few lines higher up to make it clear that it was only intended to apply to food intended for sale and not to food in private houses. The words in the Amendment are consequential on the alteration thus made.
Amendment moved—
'In page 1, line 24, after the word 'intended' to insert the words 'for sale.'"—(Lord Allendale.)
On Question, Amendment agreed to.
Standing Committee negatived.
Then (Standing Order No. XXXIX. having been suspended); Amendment reported. Bill read 3a with the Amendment, and passed, and returned to the Commons.

EDUCATION (ADMINISTRATIVE PROVISIONS) BILL.
Bill read 3a (according to order) and passed.
JUDICATURE (IRELAND) BILL.
Bill read 3a (according to order) and passed.

EVICTED TENANTS (IRELAND) BILL.
Report from the Committee of the reasons to be offered to the Commons for the Lords insisting on certain of their Amendments and disagreeing to certain of the Commons Amendments; read, and agreed to; and a message sent to the
1372
Commons to return the Bill with the Lords Amendments to the Commons Amendments; and reasons for insisting on certain of their own Amendments, and for disagreeing to certain of the Commons Amendments.

ADJOURNMENT.
THE EARL OF CREWE: I beg to move that the House do now adjourn till Twelve o'clock noon.
House adjourned at a quarter past One o'clock, a.m., till Twelve o'clock noon.