Sitting of 16 April 1861

MINUTES.
NEW WRITS ISSUED—For Tynemouth, v. Hugh Taylor, esquire, Manor of Hempholme.
STREET RAIL COMPANY BILL.

  SECOND READING.
  Order for second Reading read.
  MR. CHILDERSsaid, that at the request of the promoters he wished to move that the second reading of this Bill be postponed to that day fortnight.
  Motion made, and Question proposed, "That the Bill be read a second time upon this day fortnight."
  MR. VINCENT SCULLYsaid, he would move that the Bill be read a second time that day six months. He opposed the Bill on public grounds. No person who had examined the Bill could suppose seriously that it could be entertained by the House. The practical effect of the Bill would be to give an entire monopoly to one particular company to possess itself of all the streets and roads in all the towns and cities in the United Kingdom. The proposed tramway might be a great public convenience, but the Bill was in its nature a public measure, and as such ought to be in the hands of the Government. He protested against it being postponed one night after another until the end of the Session, when it might perhaps be passed after the bulk of the House had left town. Let them, now that they were all there, dispose of it at once.
  Amendment proposed to leave out the word "fortnight," and to insert the words "six months," instead thereof.
  SIR JOHN SHELLEYseconded the Amendment. He had put himself to some trouble in order to find out whether the proposal was feasible, and he had no hesitation in saying that if the House of Commons sanctioned such a proposal to lay down tramways in the crowded streets and thoroughfares of this Metropolis he should not by his vote make himself responsible for the consequences that might follow. Mr. Train, by hook or by crook, had got hold of a member of the Board of Works in his (Sir John Shelley's) district, and had obtained permission to put down the rails in Victoria Street. He bad inspected the rails, and considered them dangerous in crowded thoroughfares. He had heard that a serious accident had occurred that morning on the Bayswater Line from the want of power to prevent the horses from running away with the omnibus. He also objected to the Bill as establishing a gross monopoly that ought not to be permitted by the House.
  MR. BRIGHTobserved that the arguments used by his hon. Friend, the Mem-
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  ber for the county of Cork, and his hon. Friend, the Member for Westminster, against the Bill were of the most antiquated description. The same arguments had been used against railways by people who had an objection to traverse the country by that mode of conveyance some thirty years ago. His hon. Friend, the Member for Westminster, had told them that an accident had occurred that morning on the tramway laid down to Bayswater. He (Mr. Bright) would undertake to say that no man—unless such as ought not to be allowed to go out without a keeper—who observed the traffic upon these tramways, but must see that the probability of accident was infinitely less than by the ordinary means of transit in the City. The Bill was merely permissive in its nature, and allowed the company to make arrangements for laying down those tramways with the persons who were supposed to have an absolute authority with regard to what should be done in the roads and streets. The Bill conferred no power on the company to do anything until they first obtained the sanction of the parties who at present had power to do that which was intended by the Bill to be done. By one clause in the Bill it was intended to give remuneration to the promoters of this new system of railways, by restricting to the company the right of running carriages on those rails with flange wheels. No doubt that amounted to a species of monopoly. ["Hear, hear!" from the Opposition.] He was glad to find that hon. Gentlemen opposite were opposed to monopoly. But that was the mode in which the promoters of the Bill proposed they should be remunerated for their expenditure. The House knew perfectly well that no one would go to the expense of putting down tramways without being remunerated. The question for the House to consider was what was the mode by which any company doing that work for the public should be remunerated? That clause, then, was one which the House ought to refer to a Select Committee; to take evidence and consider the subject fully, so as to indicate to the House what should be its policy in matters of this kind for the future. It should be remembered that the proposed mode of transit was found to be of great advantage in the towns and cities of other countries. He should be sorry that the House should, by a hasty vote, prevent that which might turn out to be a great improvement. He should, therefore, support the original Motion.
  MR. MASSEYsaid, that if the post-ponement of the Rill for a fortnight would; assist the object of the promoters he should have no objection to that course, but his objection to the Bill was one that arose from the forms and practice of the House. All the arguments urged in favour of laying down the rails would be extremely apposite if the Bill had been brought before the House as a public Bill. The Bill, however comprised subjects that did not belong to the province of private legislation. It was essentially a public Bill, and dealt with important public interest. He said that in the most decided manner, in the discharge of his duty as Chairman of Ways and Means, who was bound by Standing Order to call the attention of the House to all private Bills that trenched on public rights. One of the clauses empowered all public bodies having the control of the great highways of the country to sanction the laying down by a particular company of a system of transit, thus conferring on that company a monopoly of the roads. If that were desirable, it was a subject of great public interest; and the Bill ought to be introduced with the sanction of the Government. He should, therefore, support the Motion of the hon. Member for Cork.
  MR. CHILDERSsaid, he had merely proposed the postponement of the second reading in order to give hon. Members an opportunity of making themselves acquainted with the system of street railways to which it referred. He had himself seen it in operation on a large scale in the United States, where 13,000,000 persons had been carried by it in one year with scarcely any accidents to themselves, and with a very trifling amount of accidents to the passers by. After the statement of the right hon. Gentleman, the Chairman of Committees, however, he would withdraw the Bill, on the understanding that the question would be taken up by the House as soon as possible with the view of seeing how such a beneficial object as laying down Street railways could be carried out.
  MR. SPEAKERsaid, that although the hon. Gentleman had expressed his wish to withdraw the Bill, he could not entertain that question until the Amendment was withdrawn.
  MR. HENLEYsaid, he thought that before the Bill was withdrawn the House ought to have a clearer understanding on the subject. He did not think that the House had been fairly treated in respect to this Bill. The Bill had been before the
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  House for a long time, and had been postponed from week to week, and it had been proposed to postpone it again for another fortnight. Anything seemed desired but the decision of the House. If the question were withdrawn, there would be no record of the matter, and, therefore, he for one should wish to see it disposed of in accordance with the Motion of the hon. Member for Cork.
  LORD FERMOYsaid, that his hon. Friend the Member for Birmingham was practically adopting a principle of monopoly with regard to the proposed mode of conveyance. That was a rather remarkable proceeding for the apostle of free trade. The real question was whether the Bill before the House ought to be treated as a private or as a public Bill. He could not consent to allow the Amendment to be withdrawn.
  MR. CHILDERSsaid, he consented to the Bill being negatived.
  Question, "That the word 'fortnight' stand part of the Question."
  Put, and negatived.
  Words added.
  Main Question, as amended, put and agreed to.
  Bill put off for six months.

BELLIGERENT RIGHTS.

  OBSERVATIONS.
  SIR GEORGE GREYsaid, with reference to the Resolution proposed to be moved by the hon. Member for Liverpool (Mr. Horsfall)—
  "That in the opinion of this House the subject of Belligerent Rights at Sea is at present in an unsatisfactory state, and deserving of the serious attention of Her Majesty's Government."
  That it was a question of great national importance, but not of pressing and urgent necessity. His noble Friend, the First Lord of the Treasury, had been prevented by indisposition from taking his seat, but he hoped to be able to do so to-morrow. The noble Lord the Secretary for Foreign Affairs was also unavoidably absent that evening. He thought the hon. Gentleman would be of opinion that the question, if it were to be discussed at all, ought to be fully discussed, which could hardly be done in the absence of the two noble Lords. He (Sir George Grey) was authorized by the noble Lord, the First Lord of the Treasury, to say that if the hon. Gentleman would consent to posptone his

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  Motion, be would be happy to render him every facility in his power for bringing it forward at a future day.
  MR. HORSFALLsaid, that although under ordinary circumstances he should be unwilling to postpone the Resolution, yet, considering that any discussion on this subject in the absence of the two noble Lords must necessarily be imperfect, he could not refuse to assent to the right hon. Baronet's request.

RATES OF DUTY PAYABLE UNDER THE LANDED ESTATES ACT (IRELAND).

  QUESTION.
  MAJOR STUART KNOXsaid, he wished to ask the Chief Secretary for Ireland, Whether there is any intention on the part of the Government (in pursuance of the advice of the Irish Judges and other legal authorities) to take measures for the reduction of the rates of Duty payable on proceedings under the 88th Section of the Landed Estates Act; namely, 10 s. per cent under £10,000, and £1 per cent above that amount, in consequence of which high rates many persons are precluded from taking advantage of the Act?
  MR. CARDWELLstated that the propriety of modifying the rates of duty payable on proceedings under the 88th Section of the Landed Estates Act was now under consideration, and that be hoped soon to be able to make a satisfactory statement on the subject.

ELECTORAL RETURNS.

  QUESTION.
  MR. COLLINSsaid, he would beg to ask the Secretary of State for the Home Department, When the Return of the number of Electors, &c., for the West Riding of Yorkshire, ordered on the 1st day of March last would be presented?
  MR. CLIVEsaid, the Return had been made, but an error had been discovered in it, and in order that that might be rectified its production must be deferred for a few days.

  THE DOCKYARDS.—QUESTION.
  MR. ANGERSTEINsaid, he wished to ask the Secretary to the Admiralty. If the Officers of the Woolwich Dockyard have recently made any Report or Reports to the Admiralty upon the statements contained in the Report of the Royal Com-
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  missioners appointed to inquire into the management and control of Her Majesty's Dockyards, as to the number of errors alleged to have been discovered in certain documents in the departments of the Storekeeper, the Accountant, and the Chief Engineer; and if so, whether it is the intention of the Government to lay the same upon the table of the House?
  LORD CLARENCE PAGETsaid, that the Admiralty had received a very lengthy Report from the Officers of the Woolwich Dockyard, and that Report had been referred to the principal officers of the department in order that they might make inquiries into the statements it contained. Under these circumstances he was not at present in a position to state whether he would be able to lay the document upon the Table of the House.

FORESHORES AND TIDAL WATERS.

  SELECT COMMITTEE MOVED FOR.
  MR. AUGUSTUS SMITH, in bringing this subject again before the House said, The should endeavour as much as possible to avoid going over the same ground which he had been obliged to take on a former occasion: this was the less necessary since the discussion that had taken place, both in and out of the House, and more especially the more extended action of the Woods and Forests Commissioners, had made both Members of the House as well as the public at large better acquainted with the merits and subject matter of the question. He must, however, be allowed briefly to recapitulate the main features and points to which he had felt it his duty to draw the attention of the House on his former Motion. First, then, as to the nature of the property in question, which was a claim on the part of the Crown to all the seashores of the United Kingdom between high and low mark, and which are estimated to be above a million of acres; but the claim did not stop here, for it extended to the whole bed of the sea. To be sure in ancient days the Four Seas were always reckoned to be part of the realm; but that they were part of the freehold estate of the Crown, which it may deal with just like any of the other estates and demesnes from which what are called the Land Revenues of the Crown are derived, is quite a new doctrine, and one only that has been attempted to be set up within a very few years. Now let it be first observed, that all ancient authorities and documents are

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  against the claim, and whether we consult Domesday Book, where all the demesne of the Crown are so specially set forth—Magna Charts—the various Commissions of Seven—ancient Acts of Parliament—Inquisitions—the Year Books, or various Law Proceedings, all these, either by their silence or by their provisions repugnant thereto, negative the proposition. In like manner all old legal writers are opposed to the claim. The civil law, every one knows, gives no countenance to it, and that as the ground-work of much of our ancient law accounts for that being equally opposed. If all the old law writers, such as Bracton and Callis, usually quoted on this subject, are adverse, till the treatise ascribed to Lord Hale was written, so also are almost all the best modern authorities who have written on the subject, such as Chitty, Hall, Phear, and others. His former Motion, it will be recollected, was founded on certain Returns which had first been presented to the other House on the Motion of Lord Wynford, and subsequently laid on the table of this House on the Motion of Mr. Cheetham, the late Member for Lancashire. It will be recollected he directed the attention of the House to the various and numerous legal proceedings which had been instituted of late years in relation to this species of property as detailed in those Returns; but one point more especially he had attempted to impress on the attention of the House, that, in the greater number of those suits, and more especially in those of the greatest magnitude and importance, the question raised had not been carried out to its legitimate issue, and its merits, therefore, greatly prejudiced by the compromises in which those suits had terminated. The various arrangements and arbitrations which had been made and submitted to, more especially that arbitration between the Crown and the Duchy of Cornwall—by which all the great and most important evidences on which these claims were based—were kept out of view, and not tested by proceedings taken in open court That the great suit of the City of London was thus allowed to terminate, and not carried from court to court on appeal, must ever be regarded as a most unfortunate occurrence. Since the close of the last Session, another Return has been laid on the table of the House, on continuation of the former Returns, to which he must now be permitted to advert, and request the attention of the Members to the details given therein. If, on the one band, it appears the Woods and Forests Commis-
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  sioners have extended their operation in relation to lettings and sales, another feature is satisfactory as exhibited by these returns, since these suits are much fewer in number. And as respects these suits, there is still a more satisfactory result to be gathered—namely, that wherever the claim has been decidedly and ably dealt with, the Crown has lost. He more particularly called the attention to two suits mentioned, one brought against a Member of this House, Sir John Hanmer, in North Wales, and another against Sir Thomas Phillips in South Wales. Each of these happened to be rich and able men, who spared no pains to defend their rights, and succeeded accordingly in doing so. But they have advantages in this respect which poorer and humbler parties cannot command, and who, consequently, find it better to succumb than resist. But let it he observed how very hard is the position of all these parties. The existence of these claims were totally unknown as existing till very recently. All trace of the documents on which they depend are not easily discovered, and from their non-production he verily believed many parties had been unjustly deprived of their rights. One other point he desired to call attention to in respect of these suits, namely, the very large number which had been entered in reference to properties in the Principality of Wales. Now this is the more remarkable, as, by the ancient law of Wales, the ownership of the seashores was clearly settled, as he would show by an extract from the laws of Howell Dha, and which laws it should he recollected were guaranteed on the conquest of Wales by Edward the First, and he had yet to learn that their force has ever been legally abrogated. The extract is as follows:—
  "Whoever possesses land upon the margin of the shore, owns as much of the beach as the breadth of his land; and he may make a weir or other things thereon, if he will; and if the sea throws anything upon the land, or upon the beach, they belong to the king, for the sea is a pack-horse to the king."
  He more particularly alluded to these laws, as it is contended by the owners of similar lands in Scotland that such is the law there; and looking to the ancient position of Wales and Scotland as inhabited by people bearing a strong affinity to each other, it is easy to trace an identity of law on this subject from this common origin. And here be begged to thank his hon. Friend, the Member for Ayrshire (Mr. Finlay), for the papers bearing on this subject

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  which he had circulated since the last Session of Parliament; but there is one statement of his which he must beg to point out as erroneous. In reference to this seashore property he states it is now a settled point that such in England forms part of the patrimonial estate of the Crown. He must beg to correct him as to this term "patrimonial estate." There is no such term applicable to such property in England. The estates which are vested in the Crown, and called the Crown lands, are not a patrimonial estate at all as if attached to the person of the Sovereign, but are attached to the office of the Crown; and were so vested, not that the revenues should be merely for the maintenance of the Sovereign, but were intended, and were so always dealt with, for the support and carrying on the whole Civil Government of the country; the actual maintenance of the Sovereign was, no doubt, part of their appropriation, but is always mentioned as quite secondary. The Civil Government of the country, the whole administration of justice, the expense of its diplomatic relations with other countries, and even the defence of the realm, were in former days all equal claimants to be provided for out of these revenues. Now this is very important to be constantly borne in mind—as it is to be apprehended that there is a project afloat to claim these solely for the future maintenance of the Sovereign, and that, therefore, there is every exertion being made to swell and augment their amount. Among others this claim arises to deal with the seashores of the kingdom as if part and parcel of the freehold estates of the Crown with a view of enabling any future Sovereign on his coming to the throne to take these revenues, instead of depending as now for his provision on a civil list granted and settled by Parliament. This unconstitutional project should never be lost sight of. He would advert to the particulars as furnished by these last Returns, and first, as to lettings and sales.
  There appear to be of lettings, in England 29. of which 14 are at Little Hampton. Wales, 15–10 of these on the Menai. Isle of Man, 1–45. Of soles, in England there are 31, sold for £19,029; Wales, 15—£12,852; Scotland. 25—£2,921; Ireland, 26—£2,985; Isle of Man, 1—£15. Total—Sales, 98; sold for, £37,802. The whole of which, £.57,802, though including in it the value for rights which the public give up,
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  is added to the capital account of the Woods and Forests, whereas that share which is given in respect of such public rights ought to be paid over to the public account. One feature in respect of these lettings requires observation, namely, that there are several to different public departments for carrying on the public service. He would mention one only in illustration, that at Shoeburyness, where there exists a magnificent extent of dry sands at low water, admirably adapted for artillery practice; but before the War Department is allowed to use these sands for so important a public purpose, down come the Commissioners of Woods and Forests, and claim a rent as for property over which they call themselves owners. To be sure the amount of rent, £10, is not large, but it is the principle which is so objectionable, as it is also entirely novel. Formerly, as a matter of course, all Crown property was considered available for the public service whenever and wherever required, but no compensation for its use was attempted to be exacted. In the same manner Public Companies, whether for carrying out railways, forming harbours, piers, &c., are heavily charged for works intended for the public benefit, and for which the public give up certain rights. But this is not all; even private individuals are not allowed to put up any defences for the security of their own property on the seashore without paying an acknowledgment for the same. The lettings mentioned at Little Hampton are all for this purpose. Now if the Crown is to derive the profit, surely it ought to take upon itself the maintenance and security of what it claims as its property, especially when, by neglect of that duty, it endangers the property of others. But this is the singular part of these claims on the part of the Crown. The Commissioners of Woods and Forests never appear but when there is something to receive, some profit to be made; but whenever there is any call for outlay they not only are not to be found, but, dog-in-the manger-like, what they ought to do of themselves they will not permit other persons to execute without paying for permission. Now, what says Judge Black-stone on this point, who asserted that the shores belong to the king, and, for this reason, following what had been said before by Lord Coke—that the king is bound to protect the country from foreign enemies, so he is also bound to protect the shores

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  from the aggression of the sea. But this is just what the Woods and Forests never think of doing, though the proposition of ownership naturally begets the other, and that if there is a right of exaction, the duty of protection must necessarily follow. This, however, is not all as affecting the position of this property in relation to others. Not only does the Crown claim to be exempt from keeping up the shore as a barrier, but its right advances or eats into the property of others with the encroachments of the ocean—a heavy storm arises, an inroad of the sea takes place, and the shore line between high and low water mark is brought inland some hundred feet or so. It is still claimed as Crown property. and thus what was an individual's freehold estate to-day is claimed as that of the Crown tomorrow. It is quite inconceivable that such an irrational state of things can be defended for one moment, and said to be the law of the land. To proceed, however, with the remarks he was making on the various sales made by the Woods and Forests, and the heavy charges entailed on various useful public works by their demands; those on the works at Birkenhead, it appears, have not yet terminated, though some £60,000 or more has already been exacted on their accounts. Then, again, a sum of £7,000 is levied on the Penarth Harbour Works, near the entrance of the river leading up to Cardiff. This, be it remarked, is not simply for foreshore, but the greater part on account of the bed of the sea, below low-water mark, which is being enclosed for those useful works. This charging for the bed of the sea is quite a novelty, and at Bournemouth, on the coast of Hants, where a pier has been erected going down into deep water, there appears a similar charge. When the chain pier at Brighton was erected, though but a few years back, no such charge was ever thought of; but one would not he surprised to see a claim now made for the space of the bed of the sea which it occupies. It has been contended on former occasions, that it was far better the shores should be vested in the Crown than in private individuals, to prevent exaction, when such useful works were required to be erected for the public interests. But it is quite clear the Commissioners of Woods and Forests have no thought or regard for the public interest, or their protection, but that their whole and sole object is to realize all they can by the sale of these shores, which they are most active in car-
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  rying out, and almost enforcing, in every corner of the kingdom, being well aware that it is a very slippery property, of very doubtful character, and, therefore, to be made the most of while the sun shines. So little regardful, however, are these Commissioners of the public interests, that they do not care to retain under their charge shore property which is most important for the public service. There has especially been a sale on Milford Haven, in which they have grossly abused the trust reposed in them. There they have sold shore ground to the extent of eight acres, close adjoining on to the Royal Dockyard at Pembroke. The agreement for this sale was made as late as in 1854, and for a sum of £1,600. The Admiralty, actually, I am informed, remonstrated against the sale, but it has been carried out notwithstanding; though the late Board of Admiralty, I am told, found it so essential to be added to the yard, that they had a valuation made for its subsequent re-purchase, but which the present Board have not adhered to. Now, be it remarked, this shore, for the last fifty years at least, has always been used by the inhabitants in the neighbourhood for the drawing up and launching of their boats; for their convenience in all kinds of traffic; for the depositing of timber and other materials temporarily. It was to all intents and purposes a public common or waste, and used as such by certain parties. But the party, who has bought up the Crown Rights as they are called, is taking steps to turn it to his private account, and among other acts carried out with this view is the depositing large quantities of rubbish, so as to make that portion above high water of wider extent. The consequence is large quantities of mud in solution is carried down right in front of the dockyard, augmenting thereby the deposit banks in that quarter. Now for the removal of those mud accumulations by dredging, we a few nights since only, voted a sum of, I think, £4,000 in the Navy Estimates. Thus through the negligence of the Commissioners of the Crown Lands, not only is a property sold which it was important to retain for the public service, but a nuisance is created to enhance the charge on the public. This principle of sale of what is to all intents and purposes public property, though called Crown property, as vested in the Crown as trustees for the public, is altogether new, and is nothing more nor less than making the public buy that which

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  already belongs to it. Now in all the sales it should be remembered the public give up certain rights, such as those of navigation and fishing, when the tide is up, of passage as over a highway when the tide is down, of various easements as they are called in law, but the whole profits are pocketed by the Woods and Forests, and the value transferred in perpetue to the Crown lands. The whole amount of property thus sold of late years amounts, it appears by these returns and the accounts of the Woods and Forests, to the large sum of about £224,000. Now, accepting as true the theory of Lord Hale, as propounded in his Treatise, De Jure Maris, that these wastes of shores and water are, as it were, held by the Crown as appertaining thereto, as the wastes of a manor do to the lord there of, it is clear the proportion due to the Crown would be similar to that apportioned to the lord of a manor. Last year a return was laid on the table of this House showing what that generally was, as given by the Enclosure Commissioners, and was found to vary from a fourteenth to an eighteenth. The share, therefore, of the Crown out of the above sum would be about £16,000, and the remaining large sum, exceeding £200.000, ought to have gone direct into the Exchequer. The public are thus just simply defrauded of this large sum. Leaving, then, this part of the subject, it is time the attention of the House should be directed to a consideration of the various rights to which this property is subject, and their relation to each other. There are the rights of the Crown, the rights of the public—if they are not identical—and the rights of individuals, as subject to the two former. The pamphlet he held in his hand was the speech of Mr. Serjeant Merewether, in which he so ably and gallantly fought the battle of the City of London in its contest with the Crown. By the information in that suit the claim of the Crown is thus set forth—
  "By the Royal prerogative the ground and soil of the const and shores of the sea around this Kingdom, and the ground and soil of every port, haven, and arm of the sea, creek, pool, and navigable river thereof into which the sea ebbs and flows, and also the shore lying between high-water and low-water mark, belong to Her Majesty."
  The learned serjeant thus meets this assertion, and, as he believed, very accurately described the true state of the case—
  "I, of course, am not denying that the Crown has dominion and Government over the soil of the sea-
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  shore—there is no doubt of that—neither am I in any degree denying that the Crown has jurisdiction over the seashore by the Court of Admiralty when it is covered by water, and by the common law when it assumes again the state of dry land. But none of these go in the slightest degree to show—on the other hand there is rather a contrary influence—that the Crown has any private property on the shore. A jus privatum in the shore is that which is set up by the Crown, and that is the only doctrine which I am combating; therefore, admitting the Government—admitting the jurisdiction—admitting the right where there is no special occupant—I am contending that in all other cases the occupation and possession of the shore is so necessary to, and is so generally used and enjoyed by, the owner of the adjoining land, that there is no pretence to any right in the Crown preventing that occupation. The occupation may be slight in point of evidence I admit; perhaps it may be only by the straying of cattle—perhaps it may be only for the purpose of taking advantage of the sea adjoining—embarking and disembarking; and, therefore, the acts of occupation may be few; but there is a case much stronger than that, in which the Crown has not the possession nor the right of the soil, although the soil is called the King's soil. I am alluding to the case of highways. It has been said, indeed, that the seashore is the King's highway—it may be so called, and highways are so called, yet the occupation of the owner of the adjoining land is still held sufficient, by presumption of law, to entitle him to the land of half the highway; so I say in the case of the seashore, where the occupation is more frequent, but, perhaps, difficult of direct proof, the legal inference is the same."
  In corroboration of these views, the learned serjeant refers to various documents, but he would only mention two Statutes, one of modern and the other of ancient date. The first is the 54 Geo. III., c. 159, which authorizes the Admiralty to do certain acts on the seashore, but has this proviso—
  "Nothing in this Act shall abridge, diminish, or take away any right of property or ownership which any Lord of Manor, or other person, may have on any part, or the banks, shores or sides thereof."
  In this Act, it is to be observed, there is no reservation of any rights of the Crown; a legislative admission at that period, that the subject was entitled to the shore as belonging to the land, as the usual consequence, or it would have been otherwise provided. The other Statute is the 4 Edw. I. Extenta Maneru. This enumerates every species of property which can possibly belong to a manor, but no mention whatever is made of the seashore as having any peculiar quality, and which would lead to the supposition that at that period of time it could be regarded otherwise than as part of the adjoining land. It is, therefore, pure fiction to describe it, as has been lately attempted, as part of the original estate of the Crown yet ungranted. Had

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  it been so somewhere as still vested in the Crown, it could not fail to have been enumerated. But these shores are never mentioned as part of the possession of the Crown in any inventory or catalogue of such property. There is, further, no instance of any separate grant of the shore; but, if mentioned at all, always as an adjunct or rather boundary of the adjoining estate or manor. Neither is there any instance of such being put in charge for rent. Neither can any acts of ownership on the part of the Crown be instanced over the shores such as now claimed, as if they were part or parcel of the Crown lands and freehold estate. It was still his duty to trespass a short time longer, and be could assure the House it would be but for a brief period, to satisfy them as to the present unsettled state of the law, and how much it needed to be examined into and settled. The numerous suits which had of late been instituted are sufficient proof of that uncertainty; and any one attending to the substance of those suits must be convinced that many points have been mooted which still require to be determined. But referring to a work already mentioned, Hale's Rights of the Crown in the Sea Shores. published about thirty or forty years since, that writer speaks of it as a question even then of importance, how far the present state of the law was susceptible of alteration and amendment, though he very decidedly says, quoting Mr. Justice Bayley in the Brighton case—that if the king were to make the seashores of the realm a source of private sale and profit (just what the Commissioners of Woods and Forests are now doing) he would, according to what is said by the Judges, be acting contrary to the trust for which the ownership of the shore is vested in the Crown by the common law. The king's right is jus publicum. Again, a few years since, Lord Derby, in moving this question in the other House, in presenting some petitions, specially admitted the uncertain and unsatisfactory state of the law, and recommended its being defined and amended. But the language of the learned Attorney General on a former occasion, may be adduced as further proof as admitting this uncertainty. He says, "It was true in a certain sense"—now it was this certain sense he wished to have defined—"that the Crown could appropriate no part to the prejudice of others. This property was vested in the Crown for the good of the public. The Crown could
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  not appropriate any part"(but it is thus hedged by the learned Gentleman)"unless it was done without prejudice to the public and the benefit of the Crown." What could be more unsatisfactory and indefinite than such language? But to the same effect is the language more recently of that learned Gentleman, the Lord Advocate of Scotland, who was examined last year by a Committee of the House of Lords on the subject of the salmon fisheries, when this question of the shore right was incidentally brought up. Question 60—Earl Cawdor asked—
  "Independently of any property which the Crown has between high and low-water mark?" Lord Advocate: "It depends on the supereminent right of the Crown to the lands of the realm. The right of the Crown to the salmon fishery is not merely a trust for the public, but a patrimonial right."
  It would thus appear that the Lord Advocate considers the shore right merely a public trust; but on a subsequent question he adds,
  "I think the question of the shore a very difficult question. It is quite clear as regards the shore, to a certain extent, the exercise of the right of the Crown is limited, because there are public uses to which that shore may be put."
  Now, it is just those limits and those public uses which it would be the object of this Committee to ascertain. In a subsequent part of his evidence, the Lord Advocate, while contending for the right of the Crown, still spoke of it as a qualified right—qualification which, for the peace of the subject, ought to be ascertained. Before quitting these Returns, it is necessary to allude to a certain Schedule of Acts of Parliament which the Commissioners have appended of their own accord, as showing an acknowledgment of that right which is now set up. These Acts, be it observed, are all of very modern date—not any of them going further back than twenty years, and the greater part are private Acts. The earliest are those connected with the works at Birkenhead, then those at Grimsby, in Lincolnshire. Later is that respecting the Regalia of the County Palatine of Durham, and one of the latest that misnamed a Submarine Mines Act, which gave over all the seashores and harbours of Cornwall to the Duchy under the authority of an arbitration which was made on the evidence of documents which were never produced before this House, though it was promised by the then Secretary of the Treasury they should be printed in full. The Submarine Telegraph Act is further quoted, to which, on a former occasion, he made

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  allusion at considerable length, as furnishing evidence of the increasing claims set up, and likely to be set up, on this subject, and how the language used in respect of the same crept on, in stronger and stronger terms, in describing the properly.
  A paragraph in relation to this same subject is well worth the attention of the House, as it appears in the last Report of the Commissioners of Woods and Forests. They are speaking of a probable increase being necessary in the establishment of the Woods and Forests Office, and among other reasons given for this they say—
  "The proceedings which arise upon the frequent applications in reference to the sale and letting of land subject to the flow of tidal waters, have added very materially to the amount of correspondence passing through the office, and to the number of reports and accounts which have to be prepared and examined. The correspondence in many instances is of a very difficult character. We would specify, for instance, those relating to the Scotch teinds, and to the foreshore rights, and many other rights claimed by or against the Crown. In numerous cases laborious search has to be made through old documents and maps.…. The foreshore sales are likely to become more numerous for some time.… A considerable increase of business will certainly arise with reference to the salmon fishing in Scotland, owing to the recent decision in the House of Lords, in which the rights of the Crown to such fishings were upheld."
  Here is a fine prospect of active aggression in support of rights never heard of till lately, and to be sure to find all this energy and zeal in any Government officials is something quite unusual, and would be refreshing, were they really in support of the public interests. Could such agents be transferred to the Treasury Department, to replace our Stephensons in looking after the Red Sea Telegraph Contract, Galway Packet Contract, and such improvident engagements, the public interests might he benefited. But, unfortunately, these Commissioners have shown anything but regard as has been already shown, for the protection and care of the interests of the public, whose servants they strictly are, and have had in view but one object only, which is in every way that comes within their power, to seize and get hold of every species of property, so as to augment and enhance the revenues of the Crown lands for the object and purpose which has been already stated, and which has now been in course of development for some years. And this is the true key to these claims in reference to the sea shores; also to such seizures as that of the Hall Citadel, and to the revival of the Crown prerogative, not heard of for
  656
  centuries, to the salmon fishings of Scotland. It is the same spirit which has led to the claim of the Duchy on the waters of the Hamoaze, which enforced a payment for seventy acres of that estuary of £3,400 in order to form the docks at Keyham, and which, if sound, of course extends their right over the whole bed and surface of that hitherto, as it was considered, public port. It is the same which imposed a charge of £100 on every £1,000 that was proposed to be laid out in the improvement of the port belonging to the borough, which he had the honour to represent, and which claims £1,800, or £18 per acre, for the bed of the tidal waters required to form the new docks at Falmouth. These are heavy charges and exactions on owners of property, which never yielded to the parties one farthing profit, and over which they never excercised any acts of ownership. And these claims are as novel as they are unreasonable. He had now but one more point to press on the notice of the House, and to which, as really having a most important bearing on the right at issue, he requested their particular attention. Little or no reference, except incidentally, had been made to any ancient authorities in support of this Motion, and he had not forgotten what fell from the Attorney General on the last occasion, when with a courtesy peculiar to that learned Gentleman, and with a condescension in imparting instruction to one unlearned in law for which he hoped he was sufficiently grateful, he was told not to read old books and musty parchments. Well, he hoped he had profited by that advice, and accordingly had given his attention to a now course of study, the result of which he proposed to submit to the learned Gentleman. This was based, not on any black-lettered document, but on one derived from Parliamentary authority itself, and he was the more disposed to offer this to the learned Gentleman's attention, as he thought the House could not fail to have observed, as he himself had been able to detect that he was not very strong in constitutional law. Had not his very ears tingled when be had heard the learned Gentleman assert but a few nights since, that it was the prerogative of the Crown to create as many judges as it pleased? Such a doctrine, he would venture to affirm, bad not been propounded from any one holding the office of Attorney General during the period of the last two hundred years. But before he gave him the high authority from

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  the document to which he referred, or the subject matter of this Motion, he must draw the attention of the House to the previous circumstances which had called it forth. In the reign of that unfortunate monarch Charles I., about the year 1635, a Royal Commission was issued, which had for its aim to call in question every subject's title to every species of property throughout the kingdom, with a view of extracting composition in respect of disputed titles, just as the Woods and Forests were now doing. He referred more particularly to this Commission, because some faint rumour had reached his ears that there existed a notice that a Commission might be offered as a substitute for the Committee moved for—a course to which he should most decidedly object, knowing that Royal Commissions were often only used as a means for defeating the real justice of the case. As, however, should such a Commission be determined on, the learned Attorney General might be at a loss for the terms in which such Commission should be couched, he begged to offer tills as an appropriate formula on the occasion. The Commission in question was addressed to the Lord Archbishop of Canterbury, to sundry other servants of the Crown, and, among others, to Sir John Bancks, the then Attorney General. It was styled as issued pro titulis defectivis, for defective titles, and was, as he had already said, intended as an engine for extracting money on the plea of making such titles valid. It ran thus—
  " Rymer's Fæ dera. Vol. ix.—p. 7.
  "1635. Commission.—To Williams' Archiepiscopo Cantuariani et alii pro titulis defectieri.—Among others, Sir John Banck's our att. genl.
  "Whereas our dear and royal Father, King James of blessed memory, lately deceased, for the quiet of his loving subjects, and the settling of their estates, was pleased to give way to an Act of Parliament for confirming of their titles in such their manners, lands, tenements and hereditaments, (….) which they and their ancestors had enjoyed and possessed for the space of three-score years.
  …Relation being had thereto—the same being a favour that none of his predecessors yielded unto them in former times.
  "And whereas Wee, out of our royal and tender care of the common good of our subjects, and to establish unto them such their estates—as were defective and defeasible.
  We did grant a Commission upon reasonable fines and sums of money, to be paid by our subjects to our use, to compound with them for such supply of their said deficient estates as aforesaid.
  "And whereas we observed such slackness in our subjects in embracing that grace and bounty offered—it might justly induce and move us
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  …in reducing those lands and possessions to the increase of our revenue—Wee, preferring peace and quiet … and thereby to secure them from being brought to hazard of the loss of their honours, manors, &c. which in truth and right belong to us, as our own proper inheritance.
  We, therefore, have once more renewed and granted forth this our Commission of grace. We have appointed you … to our use to bargain, sell, conclude, demise, and in our name—any of our landships, manors, lands, tenements, rectories, tithes, portions, oblations, messuages, cottages, gardens, meadows, pastures, closes, marshes, as well fresh as salt, lands deserted, left, or gained by or from the sea—mines, woods.
  "Schedules expressing defective titles …
  I. ….tenements and marsh grounds, which formerly have been, and now are inned, gained, bank'd, fenced, left bare and dry, by and from the sea or any navigable or royal river, or other fresh waters, and all our ouzy grounds, marshes, and other low grounds surrounded and now subject to the surrounding of the sea. or other fresh or salt waters with all and singular their commodities and appurtenances whatsoever, either in charge or not in charge.
  "Commissioners at a house in Fleet Street, to whom subjects are referred to have their defective titles made good—upon moderate compositions—(which we intend shall be applied to our use.")
  Now, let us look to the result of this Commission. When a few years after, in the year 1641—just two hundred years previous to the time when this notable scheme was again hatched, as to the property of the seashore, in 1841, under the Chief Commissionership of the then Earl of Lincoln, the present Duke of Newcastle—the various grievances and wrongs of the subject were enumerated, after the most careful consideration, by Parliament, in that celebrated document called the Grand Remonstrance. This particular grievance is not lost sight of, and the clause in which it is specified is well worth the learned attorney's study, as well as those other clauses which refer to judicatories established without due authority of law. The words of the Remonstrance are few but very explicit, and are to be found in the 26th Clause, protesting against the grievance in question in these words: "The taking away of men's right under colour of the King's title to land between high and low-water mark."
  After such an authoritative declaration, he might feel entitled simply to call on the House to reaffirm such a declaration. He, however, did not intend to do that, but simply to ask the House to inquire into the subject matter which had called it forth in those days. Let it be recollected such a claim had never previously been

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  put forward, not even in the time of Henry VII., when every species of claim was made on behalf of the Crown, with a view to exactions for the increase of the Sovereign's revenues. From that day to this—a period of two hundred years—these claims have equally been in abeyance. On what ground inquiry is to be refused he is utterly unable to understand. That the claims, as now put forward, are novel, no one denies, and if there are any parties who ought to be anxious to establish their validity and justice they are the Commissioners of the Crown Lands themselves; who ought to feel bound to court instead of thwart inquiry. Refusal can only beget suspicion that these claims are not well founded, and they may rest assured till such an inquiry is fully instituted and carried out, these claims will never be patiently submitted to or their justice acknowledged.
  Motion made, and Question proposed,
  "That a Select Committee be appointed, to inquire into the rights of the Crown and Public, as well as of individuals, as connected with the £Foreshores and Tidal Waters of the United Kingdom; the manner in which the Commissioners of Woods and Forests are dealing with the same, and the state of the Law affecting this description of property."
  CAPTAIN JERVISseconded the Motion. Until 1830 no attempt was made on the part of the Crown to lay a claim to the foreshores in order to bring money into the Treasury of the country; and by an Act passed in 1855 even a person who won his case against the Crown had to pay his own costs. This induced compromises to be made, as the costs might be worth more than the article in dispute; and an inquiry ought to be made into such cases, which amounted to nothing more nor less than extortion. He would ask whether these cases were to go on, year after year, till the Board of Woods and Forests had got possession of all the foreshore of the country, which they might sell as fast as they acquired it? If the Board held it as trustees, he denied their right to part with it. At present the town which he had the honour to represent (Harwich) could not carry out a proper system of drainage because the Corporation could not come to terms with the Woods and Forests as to the disposal of the foreshore; and he knew that a similar inconvenience was experienced by other towns on the same coast.
  SIR JOHN HANMERsaid, he would recommend the House to refuse its assent
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  to this Motion. He had not been present at the debate or at the division, when the matter was formerly brought under the notice of the House, and when allusion was made to a case in which he was personally concerned; but having heard of that circumstance, he now attended, in order to reply to anything which might be said on that subject. He certainly had been surprized to hear from the hon. Gentlemen who had preceded him, that it was a new right that was asserted on the part of the Crown. He would undertake to show that, in every reign from William the Conqueror down to the present time, there was plain proof that the Crown was possessed of this right. In the charter of King William the Conqueror to the monks of Battle, which was in the British Museum, the King's sea rights were expressly mentioned. There was, to use the words of a learned Judge, "no mystery about the seashore," and there was no subject in English law, which had, to use an expressive phrase, been so well thrashed out. If there were a legal right to be tried in the matter, then let it be brought before a court of law and disposed of, and let not complaints be urged with respect to it in the House of Commons. It took him five years and cost him a good deal of money to collect evidence from the public records to show his own right, and if a Commission were to be appointed to go round the kingdom people who had really good rights would be unable to prove them. His own advice to hon. Members who had seashore rights was that they should study the book of Lord Hale, de jure maris, and prepare themselves to maintain those rights in a court of law, rather than submit them to discussion before a Select Committee of the House of Commons.
  MR. FINLAYsaid, very few persons who held property on the sea-coasts would or could follow the example of the hon. Baronet, for few could devote either the time or the money which would be required to combat the claims of the Crown. This question was exciting in Scotland a very great deal of dissatisfaction and especially in the county he had the honour to represent. Argyleshire comprised a greater extent of sea-coast than any other county in Great Britain, exceeding 1,000 miles, and its inhabitants naturally felt very keenly the evils arising from the unjust interference of the Crown. Whatever may be the law of England it cannot be denied that the decisions of the Scotch Courts of Law and the opinion of the best legal authori-

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  ties in Scotland prove that the Crown officers in that part of the United Kingdom are now pushing the claims of the Crown beyond the limits established by law. I shall quote a well-known writer on Scotch law, Professor Bell, who says—
  "The land which lies between high and low water mark is not, as in England, held to be the property rescued to the Sovereign, but presumed to be granted as part and pertinal of the adjacent land under the burden of the Crown's right as trustee for public uses."
  "If the sea or seashore be a boundary of any man's property the grant is construed to include the shore to the ebb mark, and to extend or recede with the waters."
  Lord President Campbell, in the case of Turner v. Downie, 1807, said—"Property of land adjacent to our heritor's shore is not a regale." In spite of many decisions establishing clearly the rights of adjacent proprietors to the seashore, subject to the lights of the public, the Crown officers aid in pushing their novel and illegal claims in the way which is most likely to establish them without exciting opposition. Clauses having that object in view are inserted into local and private Bills and advantage is taken of the necessities of individuals to induce them to acknowledge the rights of the Crown by small payments of money; but whenever these attempted encroachments have been opposed by legal proceedings they have been allowed to drop. The amount received by the Crown, in this way, is quite insignificant, being under £7,000 during the last thirty years, which is not sufficient to pay law expenses and salaries of agents and others employed. These claims have been detrimental to public as well as to private interests. In some cases when the seashore has been sold to the Crown, the public have been debarred from free access to it for purposes of fishing and navigation to which they are entitled; and private individuals whose properties are bounded by the sea, are prevented by these unjust claims from protecting their own lands and houses from the sea. The Road Trustees in Argyleshire have been obliged to complain of the damage done to the public roads from the same cause—an amount of damage which has caused a heavy expenditure and increased rates to the road payers. Improvements on the seacoast are interfered with and prevented, and a great deal of irritation is created in the minds of all persons concerned. It is neither politic nor seemly that such a state of things should be allowed to continue; and, it is
  662
  of the greatest importance that the rights of the Crown, if it has any, should be clearly defined, and with that view, he should give his cordial support to the Motion for an inquiry.
  THE ATTORNEY GENERALsaid, the hon. Gentlemen the mover and seconder of the Motion had displayed so much legal erudition, and had expressed their opinions—which, at least, had the merit of not being tinctured or clouded with any doubt on the legal points involved in it—with so much confidence, that he was disposed to think the ordinary functions of an Attorney General were entirely superseded. He was bound to acknowledge—and he did so with great sincerity—that the advice which he might take the liberty of tendering to the House ought to be received with some considerable deduction as compared with what the House had already heard. The hon. Member for Truro (Mr. A. Smith) had told them that he had read every authority upon the subject from the period when the Roman law prevailed down to the present time. Nay, the hon. Member was not only conversant with the books that spoke of the subject, but he had even examined those that did not speak of it, so that he was able to instruct the House with equal confidence and satisfaction—satisfaction, that was, to himself—both as to what the books contained, and as to what they omitted. He could not claim, for his own part, to have done any such thing, nor could he even pretend, like the hon. and gallant Member for Harwich, to have convinced himself that one might search in vain for any instance of the exercise of this right by the Crown from the time of the Restoration down to the year 1830. All he could do was to state to the House the views which had prevailed among the best and most erudite authorities during the last twenty or thirty years, and which, probably on account of the profound depth of their ignorance, were still current among the lawyers in Westminster Hall. Before proceeding further, however, he must express, he would not say his satisfaction, but his admiration of the resolution and pertinacity with which the hon. Member for Truro had returned to this subject. There had been three Sessions of annual incubation. Unfortunately, when the eggs were supposed to be ripe for batching the House was counted out, and the hon. Gentleman was left alone with his Motion. But now, with renewed strength and courage, redoubled by defeat, he rises

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  like Antæ us from the earth and proposes to do what he had not before ventured to suggest. On former occasions he had merely modestly suggested that an inquiry should be made into the conduct of the Commissioners, but now he asked the House to inquire into, not only the title of the Crown to this property, but that of the public and even of private individuals. With great humility he ventured to say that no proposition could be more revolutionary or extravagant than that which the hon. Member had submitted to the House. What was the theory of real property in this country as accepted in all the tribunals from every Court in Westminster Hall to the highest Court of all—the House of Lords. That the whole of it was to be considered as held by grant from the Crown. The Crown was the fountain and source from which all title was derived, and to which all landed property reverted on cession of the grant. There was some property which from its very nature was presumed to have been unappropriated by the Crown. Of this character were the foreshores, the ownership of the beds of all navigable rivers, creeks, bays, and harbours. It was perfectly clear this property must be vested somewhere, in order to answer the exigencies of the public, and that there might be some one to protect the rights of the public. The law gave that property to the Crown, which was the representative and protector of the public. The Crown was denominated the trustee of this property, in a metaphorical sense, whenever the interests of the public were concerned. But, consistently with the rights of the public, there were a great number of uses to which the seashore was applicable, which redounded to profit and benefit. These the law gave to the Crown; the profit and benefit might be the subject of grant from the Crown; or the right might be held as part of the revenue of the Crown. The question, therefore had always been in these cases whether the individual who contested the rights of the Crown could show that he was in the position of a beneficial grantee from the Crown. The hereditary property of the Crown were transferred by a species of compact with the Crown to the Commissioners of Woods and Forests, as trustees for the benefit of the public in return for the Civil List settled on the Crown and it was their duty to make the best use of it. In case of encroachment it was the bounden
  664
  duty of the Commissioners to make inquiry into the subject, and claim the property for the public. How had this duty been performed? What had been the result of the proceedings of the Commissioners? He would inform the House, and be thought that they would be of opinion that the Commissioners had no cause to be ashamed of their conduct. In regard to the foreshores of the whole United Kingdom there had been thirty-two suits in a period of thirty years. Of these twenty-five had ended most successfully for the Crown, rescuing from usurpation considerable valuable property for the public; three suits bad been withdrawn at the instance of the law advisers of the Crown, and two were decided against the Crown. Why did the hon. Gentleman expend all his anger on the Commissioners? The Commissioners took the advice of the law officers; upon that advice they acted, and therefore it was the law officers who were responsible for the Commissioners' proceedings. And they had acted rightly in vindicating the rights of the Crown for the benefit of the country. The hon. Member had referred to cases where acknowledgment of the right of the Crown was required, which he thought was a great grievance. But in requiring that acknowledgment the Commissioners only acted according to their bounden duty, and it was because of the neglect of those precautions in former times that private individuals now laid claim to a large extent of foreshore, to the injury of the public at large. It was quite true that the Commissioners required the War Department to pay £10 a year for using the sands at Shoeburyness, but the owner of an adjoining portion of the foreshore exacted £250 a year as rent. He (the Attorney General) had been at a loss to understand why the hon. Member, himself a grantee from the Crown, should return to this subject, and seek to destroy his own rights. The hon. Gentleman now told them that it had fallen to his lot to detect a fearful conspiracy against the liberties of the country, the Commissioners seeking to render the Crown independent of Parliament and completely self-supporting, the accumulating revenues of the Crown from these foreshores, sufficing to maintain the army and navy without the necessity of appealing to that House. It was scarcely necessary to say there was no foundation for such an idea. It was an extravagant notion—a delusion into which by long medita-

  665
  tion upon the subject the hon. Member had fallen, and had at last come to regard the creature of his imagination as a real fact. The hon. Member had complained of the Commissioners' proceedings in relation to measures taken to protect land adjoining the shore, but the Commissioners were only doing their duty. One part of their duty had been to prevent the removal from the shore those large boulders from the seaside, which were necessary for the protection of the shore. It was true that they would not allow a private proprietor to put up a groin without acknowledgment, and rightly so, because if such a thing were allowed to be done without acknowledgment, in the course of a few years it would be converted into evidence of a private right. The object of the Committee for which the hon. Member asked, was to discover, if possible, that the rights of the Crown to foreshores were merely fictionary. If such a ridiculous proposition could be supposed for a moment to prevail, the result would be that all corporations and individuals holding grants from the Crown would lose their rights, and even the foreshore of the hon. Members's own estate in the Scilly Islands would fall to the public. It would become merged under the general head of public property. He could only caution the hon. Gentleman that persons who read works of law without, in the first instance, obtaining a clear apprehension of the meaning of the words were apt to be led away by their own; crude conceptions from the true nature of the propositions laid down in such volumes. The proposition that the Crown was owner of this property as a trustee, was true to a certain extent, but to a certain extent only. He trusted the House would not for one moment think of entertaining a notion that went to the extent of utterly shaking the foundation of all property. The Motion laid down the proposition that the House of Commons might at any time inquire into the foundation and settled rule of property; and for what purpose should the House so inquire, except, possibly, to alter it? Were they to entertain the proposition that the House could alter the principle of English law, that all property is held of the Crown? If they were not prepared to affirm that proposition—what remained of the present Motion? Nothing but complaints of the conduct of a public office; but it had only asserted certain rights, and would not have done its duty if it had not asserted them. All that it had done had been under the authority of the
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  law. The estimate of the total value of the property it had recovered was no less than £370,000; the costs incurred were£l6,000, of which the greater part was incurred before the Act of Parliament was passed by which the Crown was placed in the position of an ordinary party with respect to costs. There was nothing to complain of in the conduct of the Commissioners, except from some disappointed persons, who thought they might make great gains from the foreshores if the Crown did not vindicate its rights. He hoped the House would reject an unexampled and mischievous Motion.
  Question put.
  The House divided:—Ayes 67; Noes 176: Majority 109.

NAVY (REVISED) ESTIMATES.

  RESOLUTION.
  SIR FREDERIC SMITHsaid, he rose, pursuant to notice, to call the attention of the House to the Report of the Commissioners appointed to inquire into the control and management of Her Majesty's Naval Yards; and to move. That a revised Estimate for Vote 10 for the Naval Service he substituted for the Estimate already submitted, adopting in such revised Estimate the principle of showing the amount proposed to be expended in the current year on each Ship to be built and converted in the Government Yards. The Report of the Committee recently made on the subject of the management of the dockyards, was one of the most important ever laid on the table of the House. It declared the system pursued in the dockyards to be inefficient, especially in organization, in the arrangement of the subordinate departments, and as to the means of effectively checking expenditure and examining the accounts. It also attributed the defective state of the dockyard establishment in some degree to the present constitution of the Board of Admiralty; but as a Committee was now sitting on that subject he would not further refer to that point. He confessed that he had risen from the perusal of the Report to which he had referred with feelings of great dissatisfaction; but there was one source of gratification, and that was that it was universally admitted that the work performed in the dockyards was of the very best description, and that there was nothing discreditable to the dockyard officers in the manner in which the accounts had been kept, or the

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  application of the money by those who had the control of the monetary transactions. The fault lay with those who established and sanctioned a defective course of action. The great defect was that there was a want of organization in the departments which had the control of the dockyards; that fact was in evidence, and it was a serious defect. There was also a want of system in the subordinate departments; there was no harmony of action between two of the most important departments—the comptroller's department and the storekeeper's department—and it appeared that the storekeeper general was ignorant of the wants of the dockyards, while the controller was equally ignorant of the amount of stores suitable for shipbuilding in charge of the storekeeper general. He had read the evidence given by the noble Lord, the Secretary to the Admiralty, with much satisfaction, and the House owed him their thanks for bringing the subject before it and the country. His noble Friend had, however, made a mistake in his figures; but he (Sir Frederic Smith) did not wonder at that, considering the confused state of the accounts. He believed the accounts to be substantially correct, although it would appear that five millions of money had not been accounted for as business men were in the habit of accounting; he did not charge any disreputable conduct on any one, but regarded the fact as owing to a blundering confusion. It appeared to him that it was advisable and easy to introduce a system by which the cost of each ship could be estimated and known. He believed that there existed in the dockyards a difference of opinion as to the construction of ships, and their cost?
  Notice taken, that Forty Members were not present; House counted; and Forty Members not being present,
  House adjourned at a quarter before Eight o'clock.

MINUTES.
Sat First in Parliament.—The Lord Braybrooke after the Death of his Brother.
PUBLIC BILLS.—2a Bankruptcy and Insolvency.
3a Law of Foreign Countries; Mutiny; Marine Mutiny; Exchequer Bills; Consolidated Fund (£3,000,000).

BANKRUPTCY AND INSOLVENCY BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  THE LORD CHANCELLOR, in rising to move the second reading of the Bankruptcy and Insolvency Bill, expressed a hope that, inasmuch as their Lordships had on previous occasions, by enactments that had passed that House, sanctioned the most material provisions of the present measure, they would be unanimous in supporting the second reading. In bringing
  624
  the measure before their Lordships he would abstain from minute technicalities; but he thought it his duty shortly to give to their Lordships some history of the past and present state of the law in regard to bankruptcy and insolvency. By the common law of England there was no distinction between traders and non-traders—between bankruptcy and insolvency. There was nothing resembling the cessio bonorum of the civil law. No remedy was given to the creditor till he had brought an action and recovered judgment, and then, upon that judgment, he might levy execution against the lands, the goods, and the person of the debtor. But until he had obtained that judgment, however insolvent the debtor might be, there was no remedy against him, and he could not he deprived of his property. An action being brought, and the person of the debtor being arrested, the debtor had no remedy. He was sentenced to perpetual imprisonment unless he paid the uttermost farthing that was due to his creditor. This state of things, which was injurious alike to debtor and creditor, received some mitigation in the reign of Henry VIII., when, in order to obviate the mischievous consequences of that state of the law, an Act was passed which enacted that those who were traders and obtained the goods of others in their hands, and then fied the country, or concealed themselves, or made away with such property, were liable to be made bankrupts. A commission issued under the Great Seal; they were arrested and thrown into prison, their property was confiscated and distributed among the creditors, but the debtors stript of all their property were still liable for their debts. The reign of Elizabeth, when an alteration was made by which the law was rendered still more stringent; and nothing could satisfy the creditor except perpetual imprisonment of the body of the debtor. So things continued down to the fourth year of the reign of Queen Anne; and then, for the first time, it was enacted that when a trader honestly and fairly delivered up all his property to his creditors he should be discharged from all liability to debts theretofore incurred. He obtained what was called a certificate of conformity, which was a protection against any action for a bygone debt. The bankruptcy law received various amendments, but still proceeded on the same general principle down to the time of Lord Eldon. Lord Eldon was a most consummate Judge in every

  623*
  department of the law, and in none more than in the law of bankruptcy; but, strange to say, although he, at an early period of his career, denounced the existing law of bankruptcy, he did nothing to improve it. In the sixth year of the reign of George IV. there was a consolidation of the bankruptcy law introduced by Lord Henley. But it was simply a consolidation, and it left all the abuses that before existed untouched. In the first place, there was a patentee of bankruptcy, who received for doing nothing about £8,000 a year from the estates of bankrupts that ought to have been distributed among the creditors. There would have been no harm in the Bankruptcy Court being made self-supporting; but this patenteeship was an enormous abuse. And there were various other sinecures. With regard to the judicial system by which the law was administered, strange to say, in the London district there were seventy judges, who went by the name of "The Septuagint." There was hardly any qualification required of them, any one could be appointed. He himself was once a candidate to become one of "The Seventy" The moment he was called to the bar he had a promise from the then Lord Chancellor that he should be appointed one of "The Septuagint"—not from any merit of which he could boast, but because his father had been at school and at college with the Lord Chancellor. It so happened, however, that before a vacancy arose, "All the Talents" were turned out; and if he (the Lord Chancellor) had not been disappointed he probably never would have risen higher than one of "The Septuagint." Under this system a great part of the estates of bankrupts was consumed before the creditors were thought of. "With regard to the country districts matters were much worse. In the country a Commission of Bankruptcy was like a wrecked ship on the Cornish coast. The Commissioners were selected by the solicitor to the bankruptcy, and the solicitor having appointed the Commissioners, the Commissioners taxed the bill of the solicitor. The abuses that took place were almost incredible. He bad been informed by a gentleman at the bar, who had sat on a country commission of bankruptcy, that on one occasion after a meeting they amused themselves by turning out a fox at the expense of the bankrupt's estate. This state of things continued down to the time when Lord Brougham became Chancellor;
  624*
  and he might say, in passing, that the country was much indebted to him for the improvements which he effected in the Court of Bankruptcy, as well as for the establishment of the Judicial Committee of the Privy Council and the Central Criminal Court, which would make his memory long respected as a law reformer. Lord Brougham swept away the sinecures; but, then, there were compensations to be paid the sinecurists out of the estates of those who might afterwards become bankrupt. There were appointed for the London district six Commissioners, who were permanently to be employed, and form the Court of Bankruptcy. In the country districts there were one or two commissioners for each district; for Birmingham, Manchester, Leeds, and other great towns. Lord Brougham also established a Court of Review, consisting of four Judges; but this did not succeed so well. He also introduced that great improvement in the bankruptcy system involved in the appointment of the official assignee. Most monstrous abuses had been perpetrated from the assignee being chosen by the creditors without any control whatever. The assignee employed an attorney who, too, often became the sole master of the concern, and the greater part of the estate of the bankrupt was spent in litigation. But on the appointment of official assignees by Lord Brougham it was found that £2,000,000 which ought to have been distributed amongst the creditors were locked up in the hands of the London bankers. In 1849 there was a consolidation of the bankruptcy law, embracing all the statutes from the 34th of Henry VIII. down to the 13th of Victoria. That measure failed to give satisfaction. It occasioned much disappointment and discontent in its operation. Had the Court and its machinery been properly constituted it would have been generally resorted to by those who sought a fair distribution of the effects of a bankrupt; but as it was the Court of Bankruptcy was shunned as an unmitigated evil, and composition deeds had become all but universal. To 10,000 eases brought into court there were 10,000 deeds of trust. Such was the state of the law with regard to traders. "With respect to non-traders the evil was considerably greater, both for creditors and debtors. There had been no alteration in the law in respect to non-traders since the time of William the Conqueror up to the period within his own recollection. In 1813 Lord

  625*
  Redesdale brought in a Bill the object of which was to give relief to non-traders by the establishment of the Insolvent Court, for until that time there was no tribunal to which the non-trader could apply for relief. The establishment of that Court was considered a great boon to non-trading insolvents, and he recollected a humorous scene in an opera, popular at that time, in which a number of insolvents in a debtor's prison were represented dancing round a May-pole and singing a song in praise of the Court and its first Judge:
  "Cease your dunning!
  Serjeant Running-ton will quickly set us free."
  The relief given under this Bill was, however, very inadequate, because the measure applied only to those who had been in prison for a certain time. Unless a person had been thrown into gaol by his creditor, there were no means under the law of making him surrender his property, and the insolvent, on the other hand, obtained no relief if he had surrendered it, unless he had been in prison. Early in the present reign an alteration was made in the law, by which the Court in every instance had the power to require the insolvent when he was discharged to confess a judgment binding all his future prospects. Under that judgment of the Court, the insolvent, if he became afterwards possessed of any property, was still liable to the payment of his debts to the last farthing. In practice that law was somewhat modified, so as not to deprive the insolvent of the whole of his future acquired property, but only of one-third portion of it. But still he was not a free man, and the vesting order was a clog upon him in his subsequent career. The insolvent, too, was only discharged from the debts returned in his schedule, and lawsuits were constantly arising respecting the construction of the schedule. Down, then, to the present moment, the non-trader, although surrendering the whole of his property, was not discharged from the liability to the payment of his debts, and can not commence the world again a free man. Moreover, the creditors have no effectual remedy against an insolvent. This state of the law was discreditable and injurious to all parties. It was well known that Boulogne and other towns on the Continent were crowded with English debtors, who drew their money from this country and set their creditors at defiance. It had been said that a strong reason for not, at present, introducing any measure for the re-
  626*
  form of the representation of the people in Parliament, was to be found in the fact that there was no popular demand for such Reform. That, at any rate, could not be said in respect of reform of the bankruptcy and insolvency laws. "Indignation meetings" had been held and every Chamber of Commerce in the kingdom almost had petitioned the House in favour of such a change in the law as that now proposed, and he had had numerous applications to receive deputations on the subject from all parts of the United Kingdom. His official duties made it impossible for him to receive those deputations; but there could be no doubt as to the strong and general feeling on the subject. Various Bills had been brought into Parliament to remedy those evils, but all of them had failed to give satisfaction. When his noble and learned Friend near him (Lord Chelmsford) was on the woolsack he introduced a Bankruptcy Bill. That measure passed the House of Lords; but it was regarded by the commercial world as not satisfactory, chiefly, he believed, because it did not give sufficient power to the creditors. Another Bill was introduced by the noble Lord the Member for London (Lord J. Russell) for the amendment and consolidation of the bankruptcy law, the noble Lord being asked, as the most influential Member for the largest mercantile community in the world, to take charge of it; but it made no further progress than being laid on the table of the other House of Parliament. They had now before their Lordships a Bill sent up to them from the other House, and upon which most laborious pains had been bestowed. Shortly after the formation of the present Government he had had a consultation on the subject of the law of bankruptcy with his hon. and learned Friend the Attorney General, and they entirely agreed as to the principles on which such a Bill should be constructed. The framing of the Bill had been left to his hon. and learned Friend, who had bestowed an immense amount of labour upon it, and made sacrifices of a more than ordinary character to accomplish the undertaking. He (the Lord Chancellor) sincerely hoped that the success of the measure would amply reward him for all his labour and sacrifice. The Bill of last Session included a consolidation of the bankruptcy law; but that was found to be an inconvenient course; and, upon consideration, he arrived at the opinion that the Bill, to be effectual, should be

  627*
  a Bill for the amendment of the law, and not one for the consolidation of the law. The Bill of the present Session was in reality limited to an alteration of the existing law. He would now shortly mention the leading features of the Bill. The first was, that though it would not entirely do away with the distinction between trader and non-trader—a point upon which a misunderstanding existed—yet it provided that when insolvency was established, whether the party were a trader or non-trader, his effects should be administered by the same tribunal and according to the same law. It seemed to him that there was no reason why such should not be the state of the law. As soon as a man was unable to pay his debts, his property was no longer his, and ought to be administered by other hands. But, in the second place, assuming that he made an absolute and really honest surrender of all that belonged to him, it was only just that the non-trader likewise should have the benefit of the provisions of the Bankruptcy Act, and, for the future, should be wholly relieved of responsibility in respect of his debts. The principle of this part of the measure was, that when insolvency was established it was immaterial whether the insolvent was a trader or non-trader. In a Bill which had been adopted by their Lordships and sent down to the other House, the principle of extending the law of bankruptcy to non-traders had been sanctioned, and he trusted their Lordships would not on the present occasion depart from the principle they then sanctioned. The Bill, therefore, proposed to abolish the distinction between trader and non-trader, and rendered it no longer necessary to show any trading on the part of the debtor. There was, however, a distinction as to what were acts of bankruptcy by a non-trader. The special acts which under the present Bill would constitute an act of bankruptcy on the part of the non-trader were these—departing the realm with the intent to defraud or delay his creditors, or remaining abroad with like intent; and making any fraudulent conveyance, gift, delivery, or transfer of his property. There were other acts of bankruptcy which were common alike to the trader and non-trader, such as lying in prison on arrest for debt for fourteen days, or escaping from such imprisonment; filing a declaration of insolvency; suffering an execution to he levied. Another and very important class of acts of bankruptcy resulted from what was known as the Judg-
  628*
  ment Debtor Summons. If, after one week, in the case of a trader or one month in the case of a non-trader, after judgment signed, the debtor shall fail to pay the debt, if the debt amount to £50 or upwards, the creditor is entitled to issue a Judgment Debtor Summons requiring his debtor to appear and be examined respecting his ability to satisfy his debt. If, on his appearance, he fails to satisfy his creditor, the Court may adjudicate a conditional bankruptcy against which he had three days to appeal, after which he might, if the Court thought fit, be finally adjudged bankrupt; but the Court was empowered to allow such time as it thought fit, in order to afford to the debtor the opportunity of paying his debt or giving security. If he failed within that time to do either, he would be guilty of an act of bankruptcy and adjudged bankrupt. It had been feared that a provision of this nature might be made to operate most unfairly behind the back of a non-trader who might be absent abroad. But this danger was effectually guarded against by a clause which had been introduced into the Bill in its passage through the other House, which provided that a copy of the petition for adjudication shall be served personally on the non-trader debtor whether at home or abroad, or, if personal service cannot be effected, then the Court may be satisfied that efforts have been made to effect personal service and have come to the notice of the debtor, and intentionally defeated by him; and such copy must be endorsed by a memorandum specifying the time within which the debtor is to appear; but such time is in no case to be less than thirty days after service. "Whether at home or abroad he must have at least thirty days to show cause; his defence must be heard by the Judge of the Court, and every facility was allowed him to show, if he could, that he had reasonable means or expectations of being able to pay his debts. A wise distinction was thus made between a trader and non-trader, the former being supposed to have some settled place in which he was to be found when his liabilities became due, while the non-trader was not so restricted. But no reason existed why in the event of his being unable to discharge his liabilities he should not equally with the trader be compelled to surrender his property. While it would punish the extravagant and fraudulently-disposed, the Act would entail no hardship whatever on any honest man. By the next clause,

  629*
  the Insolvent Court was entirely done away with, for it was absurd and mischievous to have two rival systems of jurisdiction, regulating cases of a kindred nature by wholly different modes of procedure. The expense of the Insolvent Court would be done away with, and in future there would be one general court for traders and non-traders. There would be in London one supreme Judge in bankruptcy. In the country all cases in which the property was under £300 would by the Act be referred to the County Courts, and in all other cases it would be open to the creditors, if they pleased, to take them into such Courts. The County Court Judges already exercised jurisdiction in certain cases of insolvency, and this extension of their powers would make but very little difference. He hoped that eventually all the bankruptcy business in the country would be disposed of by the Judges of the County Courts, and that we should be able to do without country Commissioners. In this respect a good example had been set us by Scotland, where already bankruptcies were administered by the Sheriffs' Courts, and a trustee was appointed by the creditors to manage the estate. The result of this was that, while in England the expense of distributing a bankrupt estate amounted to 33, in Scotland it reached only 13 per cent. By this Bill the Government proposed to confer the management of the estate upon an assignee to be appointed by the creditors. The measure did not, however, abolish official assignees. The enormous profits of those officers would be reduced, but it would still be their duty to take possession of the bankrupt's property, to hold it until a trustee or creditors' assignee was appointed, and to superintend the latter functionary in the management of the estate—a check which would, no doubt, prevent the waste and extravagance which prevailed under the old system. The next alteration was an important and a useful one, and was entirely new. It gave the Bankruptcy Court power to assist in winding up the affairs of persons who had entered into an arrangement with their creditors by deed of assignment. Hitherto the Court could not render any assistance unless the debtor absolutely became a bankrupt, but now it would be empowered to settle disputes and otherwise facilitate the carrying out of these arrangements. It was provided the voluntary deeds of composition should be registered, and that if any dispute arose
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  upon them the facts might be stated to the Court of Bankruptcy, which would at once decide the question. By this means justice would be done speedily and at little expense, without the necessity of bringing the estate into bankruptcy. It was further proposed to abolish the classification of certificates. There had never been any rules according to which certificates were classified, and in consequence great uncertainty had prevailed in that respect. The Commissioners had nothing to guide them; and thus each, taking his own individual views, took a different course in awarding certificates. For instance, in London during five years Mr. Commissioner Evans out of 479 applications granted but 17 first-class certificates, or about 1 in 28; Mr. Commissioner Fonblanque out of 653 applications granted 31 first-class certificates, or about I in 14; and Mr. Commissioner Fane out of 653 applications granted no fewer than 161 first-class certificates, or nearly 1 in 4. The punishments to which a bankrupt was liable for not appearing when summoned, and for other offences, were formerly excessively severe, but by the Bill all such offences were made misdemeanours, and three years' imprisonment was the heaviest punishment which could be inflicted for any of them. This power of making certain offences criminal in a great degree did away with the necessity for different classes of certificates. He understood that the clause imposing a stamp duty had given rise to a great deal of complaint, which was really groundless. There were now no sinecurists to be paid out of bankrupt estates, for the Chancellor of the Exchequer had agreed, though not without great reluctance, that the payment of compensation for abolished offices should be transferred to the Consolidated Fund. A number of fees were suppressed, and certain meetings rendered no longer necessary; and the stamp was imposed for the purpose of defraying only the necessary expenses of proceedings. The next matter was the right of attorneys and solicitors to practise in this Court. No one admitted more freely than he did the honour and respectability of that branch of the profession; they would be allowed to continue to practise as heretofore in the inferior Courts; but only counsel could appear before the Chief Judge. He thought that this arrangement would be found to be advantageous in every respect. The Chief Judge would be empowered with the Lord Chief Justice to make rules and orders of Court. This imposed a great additional

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  labour on the Lord Chancellor; yet it was manifest that it would be highly inconvenient to have to go to Parliament for every rule and order that the practice of the Courts might render necessary. He was sorry-he had had to detain their Lordships so long in making this explanation, and he would now move that now the Bill be road a second time.
  Moved, that the Bill be now read 2a.
  LORD CHELMSFORDsaid, the amendment of the existing bankrupt law had been so long and so earnestly desired and looked forward to by the commercial world, that he thought, he having himself formerly proposed some alteration in it, it would hardly be becoming at this stage of the Bill if he were not to offer a few observations as to the parts of the measure which he thought would require their Lordships' earnest attention. He felt that although the subject was one of considerable importance it was not a very inviting one, and he was afraid that he could hardly secure their Lordships' willing attention to it; but, at the same time, a measure abolishing the distinction between a trader and a non-trader was a step that must be personally interesting to all; and, although they might not be aware of it, to each one of their Lordships individually. He was aware of the inherent difficulties in this subject, and he knew how hard it was to reconcile conflicting interests and conflicting views in respect of it. He should rejoice, though he himself were were not the author of it, if the Government should succeed in passing a measure which would satisfy the expectations and wishes of the commercial world. Although, however, he had every disposition to look favourably on the efforts that had been made in this particular, he regretted to say that from communications he had received from various quarters from persons connected with trade and commerce, and from his own examination of different portions of this Bill, he was convinced that without considerable alteration it would hardly secure the approbation of the classes for whose benefit it was intended. He was glad to find that his noble and learned Friend had become a convert to the view which he (Lord Chelmsford) had himself suggested when he introduced his Bill in 1859, which view was opposed to the premature consolidation of the law. His noble and learned Friend on that occasion expressed himself strongly on the subject of the Bill which he (Lord Chelmsford) introduced. He said he was disappointed—
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  he was mortified—that an attempt was not made to consolidate the low of bankruptcy; he said that he merely proposed a patchwork on the existing system. The scheme which his noble and learned Friend now had under his protection had been described by its projector himself as a "fragmentary measure; "and he thought that the fragments would require much shaping and polishing before they would fit into this piece of patchwork. He had no difficulty in tracing in this Bill much of the hand of the Mercantile Law Amendment Society; indeed, they boasted that they had induced the hon. and learned Attorney General to make alterations in his Bill to suit their views. That society was composed of persons carrying on wholesale houses and large mercantile establishments—persons of the greatest respectability; but they had their own peculiar views of these subjects, and in falling in with those views the Attorney General had run contrary to the wishes of a very large class of persons. It was pretty well known that there were two distinct classes of opinions as to the manner in which the bankrupt law ought to be administered. One class of persons thought the creditors ought to have complete control over the administration of the affairs of the bankrupt; the other class thought that the official assignee or some person in the Bankruptcy Court should administer the affairs of the bankrupt, and should have so effectual a control as almost entirely to exclude the creditors from any interference in the winding up of the estate. The Mercantile Law Amendment Society entertained the view that the creditors ought to have absolute control over the administration of the affairs of persons who claimed the relief of the bankruptcy laws. Many persons connected with the mercantile body entertained opinions of an opposite kind, and on a former occasion Lord Overstone expressed his opinion in accordance with the views which he had last adverted to. It was very important to bear in mind that it frequently happened that the interests of the larger creditors of an estate and those of the smaller were not perfectly consistent, and that the machinery applicable to large bankruptcies was scarcely applicable to smaller ones. He understood that of the bankruptcies which annually took place 85 per cent were of estates the value of which did not exceed £1,000, many being as low as £300; and only 15 per cent were of estates of a larger character. This Bill applied particularly—

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  he-would not say exclusively—to large bankruptcies, and the machinery it provided was infinitely too cumbrous to be applicable to the smaller estates. The Mercantile Law Amendment Society proposed to give the creditors as much control over the estates of bankrupts as possible; and for that purpose it was necessary that they should in some way dispose of the official assignee. They could not get rid of him altogether; but this Bill lowered his position and considerably impaired his efficiency. By this Bill the moment a man was adjudicated a bankrupt the official assignee was required to take possession of the whole of the property. This duty had hitherto been performed by the messenger, who occupied the position of sheriffs officer of the Court; and certainly it was rather degrading the official assignee from his present position to impose such a duty upon him without the slightest necessity, as it had always been adequately and properly performed by the messenger. Provision was made for the subsequent transfer of the property from the official assignee to the creditors' assignee. Upon the adjudication of bankruptcy the Court was to order the first meeting of creditors, and that meeting was to take place at the time and place the Court should determine, having regard to the residences of the majority of the creditors. He should like to know how, in the case of a hostile bankruptcy, it would be possible for the Court to ascertain the residences of the majority of the creditors, so as to order the meeting to be held at the place most convenient for that majority. Suppose, however, the first meeting held. The creditors then had power, though they were not bound, to appoint a creditors' assignee; and the effect of this permission would be that in all large bankruptcies there would be a struggle for the assigneeship, which would be accompanied by the right to choose the solicitor, and probably by a considerable influence in the appointment of a manager, a new paid agent provided under the Bill. But in the small bankruptcies no creditors' assignee would be appointed, because nothing was to be gained by the appointment of the solicitor and manager. At present if the creditors did not choose to appoint their assignee, the official assignee might let the affairs remain in statu quo; but under this Bill the official assignee, possibly at his own risk, and the Court at its own expense must go on and carry the bankruptcy to its termination. Supposing a creditors' assignee to be chosen, the offi-
  628
  cial assignee was required "forthwith" to make out a balance-sheet of all payments, receipts, and transactions of the bankruptcy. That word "forthwith" seemed to him to be used in a manner that was almost flippant; for it seemed to be assumed that he would in a day or two make out this balance-sheet, whereas they all knew that in large bankruptcies the preparation of such a statement of their affairs might take weeks or even months? And what was to become of the estate in the meantime? The moment the creditors' assignee was appointed the estate became vested in him, and it was his duty to collect the debts, except a certain class of debts to which be would presently refer. And how was he to collect the debts? He must have the books for that purpose, but the official assignee would also want them to make out the balance-sheet. It was perfectly clear that, under these circumstances, delay, which was so much complained of under the present system, must take place to a very considerable extent, and that frequently detriment to the estate of the bankrupt must follow. But he would suppose the balance-sheet made out, and the official assignee vested with full power to perform his portion of the duty. At present the official assignees were the sole collectors of the debts, and he believed that they had performed this duty to the entire satisfaction of the mercantile community. Mr. Whitmore had during the time that he had been official assignee collected debts to the amount of £1,850,000, and had distributed the entire amount, with the exception of £40,000, without a single complaint; and of this £40,000, £20,000 remained to be divided, and £20,000 was not divisible in consequence of the smallness of the individual amounts. And his books were in such perfect order, that if inquiries were made he would be able in ten minutes to tell what had become of every portion—even to the application of a single postage stamp. It was proposed that the official assignee should collect debts under £10—and the majority were under that amount—and the creditors' assignee those above that amount; and, therefore, there would be a double collection by the two assignees. But who was to have the books? for each party would want them. In London the inconvenience, though great, might not be insuperable; but in the country, with the official assignee in one town and the creditors' assignee in another, double sets of books would be required, so that enormous ex-

  629
  pense would be thus incurred. If, however, all these difficulties were overcome, the creditors' assignee was then to deliver quarterly accounts to the official assignee, who was to audit them. It would frequently take two years to wind up a large estate, and therefore there would in such a case he eight quarterly accounts, requiring the assistance of a professional accountant; and this would entail very considerable expense. But there was to be no check or control over the accounts rendered by the official assignee; in default of there being a creditors' assignee, the official assignee was to render accounts to the registrar; and in the County Courts the registrar was to be the official assignee; so that in those courts the registrar would render the accounts to himself, and would himself audit them. This state of things would go on until the final dividend—though there was no definition of what that was—but then the creditors' assignee was to he entitled to his discharge, and the official assignee was then to go on, his responsibility reviving. He ventured to say that it would be quite impossible to work this Bill in its present shape, and that unless it received considerable alterteration at their Lordship's hands it would only result in mortification and disappointment. As to the prevention of expense, there would be, as he had pointed out, the expense of the balance-sheets of the assignee, of the quarterly accounts, and of the balance-sheet of the bankrupt; and in addition there might be a manager appointed at the expense of the estate. He could not for the life of him understand why there should be any such paid agent appointed, for if the creditors' assignee were not competent why should he be appointed, and if he were competent why was he to be supplanted by the appointment of a paid agent? For all these reasons he was perfectly satisfied that unless changes were made in the Bill it would bring to a dead-lock the performance of the duties of official and creditors' assignees, and that there would be an enormous increase of expense. He wished to speak with all respect of his hon. and learned Friend who had framed the measure, and of the industry which he had applied to it; but it proved the inherent difficulties of the subject, that, after all the care and diligence of his learned Friend, he was only able to produce a Bill of this description. Now, as to the abolition of the distinction between traders and non-traders, or, to speak more cor-
  630
  rectly, between bankruptcy and insolvency. His noble and learned Friend said, that upon this point he had followed the Bill which he (Lord Chelmsford) introduced in 1859. But his noble and learned Friend was mistaken in that, for the object of that Bill was that there should only be three acts of bankruptcy applicable to non-traders, whilst by this Bill, as it was now worded, they were to be affected, not only by these three acts of bankruptcy, but also by the ten other acts of bankruptcy applicable to traders under the present law. This was probably an inadvertence; but it showed that the Bill required careful attention at their Lordship's hands. They all knew how Bills were altered in Committee; and after this Bill had been so altered in Committee of the other House it was proposed to reprint it; but it was not, in fact, reprinted until just before the third reading, when it was too late to propose Amendments; so that the measure had not in fact received the finishing touch of the House of Commons. But there was a more important objection, namely, that the non-trader clauses were to have a retrospective effect. Such was not originally the intention of the Attorney General. There was in the Bill originally a clause that these provisions were not to be retrospective; but by some means or other this clause was struck out, and as the Bill at present stood any non-trader who had incurred any debt within six years of the passing of the Bill would be liable to be made a bankrupt upon that antecedent debt. It was said that there was no injustice in this, and that eases had frequently occurred where new modes of procedure and new facilities were created for the recovery of debts, and those new modes of procedure were applicable to persons liable in respect of antecedent transactions. But this was not analagous, for this Bill proposed to alter the whole status of the debtor by attaching consequences to the debt which were not anticipated when the debt was contracted, and thus to inflict all I the evils and injustice of a retrospective law. He hoped to obtain their Lordship's consent to reintroduce the clause preventing the retrospective operation of the Bill. With regard to the County Court Judges they seemed to be treated like beasts of burden, for every weight was placed upon them. It was now proposed that they should have jurisdiction in bankruptcy, and that where there should be no Commissioner in any district the Lord Chan-

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  cellor should have power to transfer the whole jurisdiction of the Commissioner to the County Court Judge, and to transfer to the Judge likewise the staff of official assignees and registrars. This power of transfer, according to the interpretation clause, was not limited to estates under £300, and this power was to be given, notwithstanding the Commissioners on the Bankruptcy Law in 1854, of whom Mr. Walpole was the chairman, in the strongest possible way described how unfit the County Courts were to deal with questions of bankruptcy. It was necessary that a court of bankruptcy should be stationary. But the County Courts were ambulatory; and according to this Bill 485 new courts of bankruptcy were about to be created. Where were the books to be left, or how was it possible that the Judges in the County Courts should administer the estate of the bankrupt in the same way as the district Court now did? Then, again, the official assignee was generally chosen on account of his experience in commercial affairs and his great knowledge of accounts. But how was the registrar of the County Courts to perform those official duties when he was appointed for quite other purposes? The thing must break down. Then it must not be forgotten that the Judges of the County Courts were for the most part already overloaded with their proper business, and great injustice would be done them by saddling them with the bankruptcy business which was now discharged by District Commissioners at salaries of £1,800 a year, while there was to be no addition whatever to the salaries of the County Court Judges. If the County Courts were to take cognisance of cases of bankruptcy at all their jurisdiction ought to be limited to estates that were under £300 a year, and he was satisfied that even with that limitation the County Court Judges and registrars would have great difficulty in performing their duty. There were various clauses in the Bill of which he approved, but which were so clogged with other provisions as to have their intentions in a great degree frustrated. He alluded especially to that clause by which bankrupts who had no means to pay the fees of application in the ordinary way might, by the interference of the registrar, on making an affidavit that they had not the means of paying the expenses, obtain their discharge. This was a humane and a wise provision; but the object was thwarted by Clauses 115 and 116, which provided that this provision should
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  not be applicable to parties committed by a County Court Judge, but that in such cases the parties must be imprisoned forty days before he could be discharged; and when after that he was discharged the debt must still remain as a hopeless clog upon him. He thought these provisions ought to be struck out of the Bill. There was a general impression abroad that this Bill had not received that attention from the House of Commons which its great importance deserved. It appeared that hon. Gentlemen trusted—as they well might under ordinary circumstances—to the authority of his hon. and learned Friend the Attorney General, and that they were glad to get the Bill into their Lordships' House, where they knew their Lordships were in the habit of giving measures of this kind the most careful attention. He believed, further, there was a general impression abroad in the public mind that they might rely upon their Lordships to make those alterations and Amendments which were requisite to make the Bill perfect, and he hoped that impression would not be disappointed. But he feared, if he might judge from the attendance that evening, that this Bill would not receive adequate attention if it were considered in a Committee of the "Whole House; and he trusted that his noble and learned Friend the Lord Chancellor would adopt the suggestion of his noble Friend (the Earl of Derby), and consent to the Bill being referred to a Select Committee, where alone it could receive that consideration and amendment which its importance deserved and of which it was so susceptible.
  LORD CRANWORTHsaid, that among all the subjects that could engage the attention of their Lordships, a good bankruptcy law was the most difficult. On the one hand there was the bankrupt, who was sore and irritable from the position in which he found himself; on the other hand the creditors, who were very angry when the bankruptcy took place, gradually became indifferent, and left the matter to agents and attorneys, until they found that the oyster was consumed and the shell alone remained for them. Any one who would settle this matter in even a tolerable manner deserved well of his country. The Bill now brought in by his noble and learned Friend contained many very excellent provisions. The clauses relative to traders and non-traders had, he thought, been framed with eminent skill. There ought to be no difference in the mode of administering the estates of in-

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  solvents whether traders or non-traders. The difficulty was in defining correctly an overt act of insolvency on the part of the trader and non-trader respectively. That difficulty had, he thought, been met very satisfactorily. Another part of the Bill was well calculated to give general satisfaction to the trading community. He referred to the clauses allowing the affairs of the bankrupt to be wound up by trustees without making the debtor a bankrupt, yet having the assistance of the Court of Bankruptcy if difficulties should arise. Another provision enabled the Chief Judge in London, where fraud had been committed of the nature of a misdemeanour, to try the bankrupt on vivâ voce evidence before a jury. This clause would require considerable modification. It would be necessary, for example, if such a severe punishment as three years' imprisonment was to be inflicted, that an appeal should be permitted such as now might take place in the case of persons tried under indictment. It would also be matter for consideration whether a penal jurisdiction of that kind ought to be extended to County Court Judges. In 1859 he had expressed his opinion, that the County Court Judges could not be advantageously employed in conducting bankruptcy business; he was still of that opinion, but in Committee he would carefully consider whether his objections were removed by the provisions of the present Bill. He doubted much whether the time of the Commissioners would be fully occupied; and, therefore, he approved of the power proposed to be given by the Lord Chancellor to order them to take accounts in Chancery; and he should like to know whether the Chief Clerks in Chancery might not be employed in some way in bankruptcy business—seeing that Chancery business was now disposed of so rapidly. He was afraid great evils would arise from the powers intrusted to the creditors' assignees. When in 1858 his noble Friend Lord Chelmsford's Bill was under discussion, he had communicated with a noble Lord who was not now present—Lord Ovcrstone—and that noble Lord satisfied him that the proposal to abstract the proceedings in bankruptcy from the official assignee and put them into the hands of the creditors' assignee was one that ought to be gravely considered. The effect would be to put them into the hands of the attorney of the creditors' assignee, and they might again see a state of things similar to that which existed
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  when Lord Brougham became Chancellor, when above £2,000,000 of money belonging to bankrupts' estates was found lying with London bankers. His noble and learned Friend referred to the great number of cases now settled out of Court; but there would always be a large number of cases settled privately, even with the most perfect system of bankruptcy law that could be established, for the general feeling was that when no fraud had been committed publicity should be as much as possible avoided. Then, with respect to the Chief Judge, he wished his noble and learned Friend had defined more exactly what the duties of that functionary were to be. He did not think the time of the Chief Judge could be occupied by the duties likely to devolve upon him. Indeed he could not see the necessity for such a functionary with a salary of £5,000 a year and a secretary at £300. Those were all matters that he thought would require serious consideration before the Bill passed into law.
  LORD KINGSDOWNsaid, he did not propose to go into details, but he thought it desirable that their Lordships should distinctly understand the effect of this Bill in its two great divisions. In the first place it annihilated the distinction between traders and non-traders; and, secondly, it constituted an entirely new court for the purpose of administering both bankruptcy and. insolvency. He must say that if their Lordships had not yet pronounced any opinion upon the subject, he should have asked them to consider carefully whether it was fit to abolish the distinction by which those who were engaged in trade, and those who were not, were placed in different positions as regarded the operation of the bankrupt law. It appeared to him that the duties and liabilities of the two classes were entirely different, and it had hitherto been the policy of this country uniformly to preserve a distinction between them. In so doing we had, in his opinion, acted upon a sound and well considered principle. The man who engaged in trade must, from the nature of his engagements, give and receive credit, and it was also a part of his engagements that he must at all times be ready to answer the demands which he was liable to have made on him. With respect to those who were not engaged in trade the ease was very different. Take the case which, unfortunately, too often happened—that of a young man at college; there were always tradesmen ready to

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  press their goods on him—to tell him that payment was a matter of no consequence, or that it would do at anytime. Even after he left college and came to London the same thing was likely to happen to him, especially if he was entitled in reversion to a large property. It might he extremely reasonable to seize and sell the whole of a trader's property the moment that he was unable to meet his engagements; but was it so just or so equitable to do that in such a case as he had described? "When a creditor gave a young man in such a position credit he knew that the young man had no necessity to contract the debt—that he was, in fact, seducing him into debt—and was it right to give a person who had induced or seduced a young man to contract debts the right to put the whole power of the bankrupt law in operation to recover those debts? But, after the opinions expressed on the subject both by their Lordships and the other House of Parliament, he had no intention to ask them to review their decision. He should merely observe that it would require great care to provide against the consequences which might follow from it. Let them take the case of an heir in tail with a large property. A Jew moneylender might commence by lending him £50 and end by selling the entailed property, though that sale might bring ruin on an entire family. He believed that the mixture of the bankruptcy and insolvency jurisdictions and the having both administered in the same court was a mischievous system; but, assuming that their Lordships should be of a different opinion, he must take the liberty of inviting their attention to what had been already done on this subject. His noble and learned Friend had already referred to what had been done in the way of amendments in the bankrupt law. Certainly, if the law was in a bad. state it was not from want of attempts to improve it. Experiment after experiment had been tried though it seemed with little success. In 1831 "The Septuagint" were swept away, and a Court was constituted, with a Chief Judge and three other Judges, as a Court of Review, and
  there were six Commissioners. The Chief Judge had a salary of £3,000 a year, the other Judges £2,000, and each of the Commissioners had £1,500. The Commissioners who acted under the old law all received compensation, some of whom, he rejoiced to say, were receiving it yet. It was found that the Chief Judge and the other Judges had not enough to do, and,
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  accordingly, in the next year, or in 1833, another Bill was passed by which a part of the business of the Insolvent Court was transferred to the Court of Bankruptcy. Still work could not be found for them. In 1835 the number of Judges was reduced to three. In 1836 another transfer was made to the Court of Bankruptcy of the power over insolvents. In 1838 another, and in 1844 another Bill was passed, and in 1847 the Court of Review was abolished altogether, the Judges were otherwise provided for, and one or two of them were still living and in the enjoyment of pensions for the offices which they had received in exchange. It was now proposed by this Bill to restore the Court of Review, which in 1847 was abolished as useless. It was proposed to restore the Chief Judge without any other Judge, and to give him £5,000 a year. The present Commissioners of Bankruptcy in London were as competent to give a decision on any point which might come before them in that court as any Judge who could be appointed. Of two of these gentlemen, Mr. Fane and Mr. Serjeant Goulburn, he could speak from an intimate acquaintance with them of near forty years, and Mr. Fane had been a law reformer long before law reform became a fashion, and he was nearly the only reformer who had not reformed to his own advantage. Another great defect in the Bill lay in the multitude of appeals which it allowed. A single appeal was necessary in all cases; but here they had first the decision of the Commissioner, then of a Judge, next an appeal lay to Chancery, and finally to the House of Lords.
  THE LORD CHANCELLORwas understood to state that in most cases the decision of the Judge was final.
  LORD KINGSDOWNreferred to the 75th section, which enacted that the decision of the Chief Judge should be final, unless he thought it a proper case for an appeal to the Court of Chancery, and asked whether it was becoming that the decision should rest with the Judge, whether or not he would permit his own ruling to be subjected to review. He contended that no Judges who might be appointed could more fittingly discharge the duties of an appellate jurisdiction than the Vice Chancellors, who, in the present state of business in the Court of Chancery, had ample time for the purpose. The Vice Chancellors were not fully occupied. He believed that for three days in each week for several weeks past the Master of the Rolls' Court had been

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  closed. Having referred to the provisions relating to official and trade assignees, the noble and learned Lord said he believed the operation of the Bill, instead of tending towards economy, would be productive of great extravagance. It was impossible to feel any confidence that this Bill would give satisfaction when it was remembered how many similar attempts had been made in the last thirty years, and that the result had been a state of things which the Lord Chancellor had described (though he believed erroneously) as exacting universal indignation. He had felt it right to give expression to these sentiments, intending no disrespect to the distinguished persons by whom the Bill had been prepared; but he felt it right to add that the measure now before the House was not that which the Attorney General had originally proposed. He had been obliged to consider the opinions and interests of a number of persons representing, with or without authority, the mercantile and trading interests of a portion of the Metropolis, and to introduce corresponding alterations into the measure.
  LORD WENSLEYDALEshortly addressed the House, but was inaudible.
  THE LORD CHANCELLORsaid, as it had been intimated that it was not intended to offer any opposition to the second reading of the Bill he should not think it necessary to occupy any of their Lordships' time in reply to the objections urged. He thought, however, that his noble and learned Friends, since they did not intend to oppose the Bill, would have done much better if they had reserved the greater portion of their observations until the measure had arrived at its next stage. It had been insinuated that the House of Commons had not duly considered the provisions of this Bill, and that they had been guilty of precipitation in sending up a Bill to this House to which they had not themselves paid proper attention. Now, he had known the House of Commons for many years, and he must say that he did not remember any instance of a Bill, with the exception of the Reform Bill in 1831 and 1832, which had occupied so large a portion of the attention of that House. When the Bill was in Committee each clause was duly considered and everything like party feeling was laid aside, and the Members on either side devoted themselves with great diligence to improving the measure. Several of the most important improvements in the Bill
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  had come from his Conservative Friends, amongst whom he should mention with honour the name of Sir Hugh Cairns. The Bill was amended, with their assistance, and it assumed such a shape as to satisfy them as well as the House of Commons. After such prolonged deliberations by the other House of Parliament it was now proposed by a noble Lord to refer the measure to a Select Committee. Such a proposition he (the Lord Chancellor) should resist, because he did not think it would be respectful to the House of Commons, after the most careful attention they had bestowed upon the provisions of the Bill that it should now be referred to a Select Committee. The commercial world had been informed every morning how the clauses had been disposed of the night before in the House of Commons; and now that the Bill was in their Lordships' House it was most undesirable that it should be considered by a select and secret tribunal, where perhaps some of its most valuable enactments might be smothered in private. He could not but express his surprise and regret at the objections urged by his noble and learned Friend near him (Lord Kingsdown), whose opinions he respected as much as that of any man living; but at the same time he (the Lord Chancellor) knew that the current of authority for the last fifty years had been against the barbarous distinction which now existed between trader and non-trader. With regard to the apprehensions entertained that family settlements would be disturbed by this measure, he would remind their Lordships that a provision similar to that now proposed had long been the law in Scotland, and had worked beneficially. The noble and learned Lord, in conclusion, said that when the Bill was in Committee he would answer at greater length the objections that had been urged against it.
  Motion agreed to.
  Bill read 2,a accordingly; and committed to a Committee of the Whole House on Monday the 29th Instant.
  House adjourned at half past Eight o'clock, to Thursday next, half-past Ten o'clock.